Exhibit A-B
Exhibit A
Subscription Service Terms of Use
1. Subscription.
1.1 The subscription to the DATABASICS software service (“Software Service”) specified in Exhibit A “1” is non-exclusive and non-transferable.
2. Use of Software Service.
2.1. DATABASICS owns all rights, title, trade secrets, copyrights, and interest in and to the Software Service. Included in the Software Service are all software provided with the Software Service; all modifications and enhancements; all associated documentation, designs, and other materials. This Agreement only provides Customer with a right of limited use. Customer must keep the Software Service free and clear of all claims, liens, and encumbrances. Customer agrees not to attempt to de-compile, reverse engineer, or otherwise produce a source code statement of any software provided through the Software Service.
2.2. Customer’s use of the Software Service is restricted to the remote access of a site created and maintained by DATABASICS in accordance with the provisions of this Agreement and its attachments.
3. Customer Purchase Orders.
3.1. Customer may submit a purchase order for the Software Service to DATABASICS, but Customer explicitly acknowledges that any purchase order is for the administrative convenience of Customer only. Its terms and conditions will not be binding upon DATABASICS.
4. Taxes.
4.1 All sales and use taxes and any other such taxes imposed upon the Software Services or the services ordered in Exhibit B are the sole responsibility of the Customer. Taxes due will be paid by Customer either through DATABASICS or directly to the taxing authority, depending upon the requirements of the jurisdiction. Customer shall pay no taxes based upon the net income of DATABASICS.
5. Warranty of Software Performance.
5.1. DATABASICS warrants that the Software Service will substantially perform functions described Attachment 1 (Professional Services Scope of Activities) and in product documentation provided by DATABASICS.
5.2. DATABASICS does not warrant that: Software Service will meet Customer’s requirements, Software Service will operate in combinations Customer may select for use, operation of Software Service will be uninterrupted or error-free, or all Software Service errors will be corrected. These warranties are exclusive and in lieu of all other warranties, whether express or implied, including implied warranties of merchantability or fitness for a particular purpose. If Customer reports an error in the Software Service, DATABASICS shall, at its option, correct the error, provide Customer with a reasonable procedure to circumvent the error, or, upon return of documentation to DATABASICS by Customer, refund Subscription Fees paid for the current Service Period. These are Customer’s sole and exclusive remedies for any breach of warranty.
5.3. It is understood by Customer that DATABASICS’ OCR (optical character recognition), if included in the Software Services, will be provided on an “as is” basis without warranty. It is further understood by Customer that OCR functionality is not integral to the Software Service and is offered only as a possible convenience to end-users.
6. Confidentiality.
6.1. Both parties shall maintain as confidential and shall not disclose, copy, nor use for purposes other than the performance of this Agreement, any information which relates to the other party's business affairs, trade secrets, technology, Software Service and related information, Software Service application data, research and development, pricing, or the terms of this Agreement ("Confidential Information"). Each agrees to protect that Confidential Information by taking reasonable and appropriate measures to prevent the unauthorized, negligent, or inadvertent use, disclosure, or publication thereof. Breach of confidentiality may cause irreparable damage and therefore, where the disclosing party has failed to protect the Confidential Information to the extent described above, the injured party shall have the right to equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys' fees and expenses) incurred in connection with such unauthorized use.
6.2. The parties shall have no obligation under this agreement with respect to any information that is:
6.2.1. Already known at the time of the disclosure;
6.2.2. Publicly known at the time of the disclosure or becomes publicly known through no wrongful act of the party in receipt of the information;
6.2.3. Subsequently disclosed on a non-confidential basis by a third party not having a confidential relationship with the disclosing party which rightfully acquired such information;
6.2.4. Independently developed by the party;
6.2.5. Communicated to a third party with the express written consent of the disclosing party; or
6.2.6. Required to be disclosed to any governmental agency or is required by any subpoena, summons, order or other judicial process.
6.3. The provisions of this Section shall survive the termination or cancellation of this Agreement.
7. Liability.
7.1. DATABASICS’ liability for damages resulting from Customer’s use of the Software Service or DATABASICS provision of other services to Customer shall not exceed the amounts actually paid to DATABASICS under this Agreement.
7.2. In no event shall either party be liable to the other for any special, incidental, or consequential damages, arising from breach of warranty, breach of contract, negligence, strict liability in tort, or any other legal theory, even if one party has been advised by the other of the possibility of such damages. Such damages include, but are not limited, to loss of profits or revenue, cost of capital, overhead costs, the cost of any substitute services, or claims of customers of Customer for any such damages.
8. Payment Terms.
8.1. Unless otherwise stated, all invoices, including Professional Services, will be due 30 days from the date of invoice.
8.2. Customer agrees to review invoices promptly and to inform DATABASICS in a timely manner of any questions Customer may have regarding an invoice. Failure to pay an uncontested invoice within 60 days constitutes breach of Agreement. Under breach, DATABASICS may cease all services provided under Agreement. Such actions by DATABASICS will not release Customer from Agreement.
9. Marketing Release.
9.1. Customer agrees that DATABASICS may use Customer’s name on DATABASICS’ website.
10. Default.
10.1. Should either party breach this Agreement, the other shall be entitled to give the breaching party written notice of such breach. If the party in default has not cured such breach within 45 days following such notice, or made substantial efforts towards curing such default if not curable within 45 days, the notifying party shall be entitled, in addition to any other rights it may have under this Agreement or otherwise under law, to immediately terminate this Agreement by written notice to the other party.
11. Termination.
11.1. In the event of Agreement termination by Non-Renewal according to the Order Form’s Software Service Terms “Renewal” provisions, or by a default according to the provisions of Section 10 of this Agreement:
11.1.1. Customer will no longer have access to the Software Service.
11.1.2. Customer will promptly pay any remaining amounts due under Agreement.
11.1.3. DATABASICS will destroy any confidential materials of Customer in its possession except as may be required for tax and regulatory purposes, or as otherwise agreed on or before the date of the notice of termination.
12. Miscellaneous.
12.1. If any one or more of the provisions of this Agreement are finally adjudicated to be partially or entirely unenforceable by a court of competent jurisdiction, then this Agreement shall be construed as if such provision had not been contained herein, but the remainder of the Agreement shall remain in full force and effect.
12.2. A waiver of any breach or default under this Agreement shall not be a waiver of any other or subsequent breach or default. Failure or delay by either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition.
12.3. This Agreement shall be governed by and be construed in accordance with the laws of the Commonwealth of Virginia.
Exhibit B Service Level Agreement
This agreement applies to the provision by DATABASICS of the Software Service to the Customer.
1. Services Summary. The following services will be provided under this agreement:
1.1 Installation and maintenance of two instances (test and production) of the Software Service for use by Customer. Use will include user access to the Software Service.
1.2 Monitoring of the application to ensure availability and acceptable responsiveness.
1.3 Remediation of availability and other problems.
1.4 Backup of the Customer database on a daily basis.
1.5 Retention of reports filed by Customer employees for up to seven years from the date of filing.
1.6 Installation and maintenance of security as agreed to by Customer.
2. Services Scope. In performing these services DATABASICS will maintain:
2.1 All aspects of the hardware, the operating system configuration, and updates, security software (firewall and SSL), and backup and recovery facilities.
2.2 Power connection, Internet Network connection, physical security, and environmental control.
2.3 All elements of the application including servers, application software, and the database including integration, and updates.
Customer is solely responsible for configuring and operating the Software Service as provided by the Software Service’s built-in functions, and for end-user training and support. Customer may contract separately with DATABASICS for assistance with any task not provided under this Service Level Agreement.
3. Support to Customer. DATABASICS will provide Customer:
3.1 Corrections of substantial defects in the Software Service so that the Software Service will operate as described in the Software Service’s user manuals;
3.2 Periodic updates of the Software Service that may incorporate
3.2.1 corrections of any substantial defects,
3.2.2 fixes of any minor bugs, and
3.2.3 at the sole discretion of DATABASICS, enhancements to the Software Service;
3.3 24-Hour Support via the Customer Support Portal, Monday through Sunday, excluding federal holidays. Customer’s support communications with DATABASICS will be exclusively through the Customer’s Designated Contacts. Telephone and Support Portal standard maintenance support will be limited to the following: reporting of software performance and availability problems, reporting of bugs and tracking their resolution; answering questions regarding the functionality of specific product features; answering questions regarding product availability and DATABASICS’ policies and procedures; and routing of calls to appropriate DATABASICS’ personnel. It is understood that standard maintenance support is not intended to deliver
Customer training or consulting. DATABASICS reserves the right to refer callers to DATABASICS Professional Services for Supplemental Services where the scope of the Customer’s request exceeds that of Support Services as defined in this section.
3.4 E-mail support. Customer’s Designated Contacts can e-mail any support issues to: support@data-basics.com
3.5 Supplemental Products and Services Available at Additional Charge.
3.5.1 Non-mandatory enhancements (i.e., not required to receive for standard upgrades or continued use of a current version) to the Software Service that DATABASICS at its sole discretion may make available from time to time to Customer.
3.5.2 Consulting Services including implementation project planning and management, business process analysis, configuration and prototyping of the Software Service, Software Service piloting, Software Service interfacing, and rollout assistance.
3.5.3 Custom Service Enhancements. DATABASICS will provide Custom Service Enhancements to Customer, as agreed to in a written addendum to this Agreement, signed by both parties, that specifies the Custom Service Enhancements and the charge for the Enhancements. Custom Service Enhancements charges shall include, but are not limited to, development of custom functionality, training, and on-going support with respect to such enhancements.
3.5.4 On-Site Services. Upon mutual written agreement, DATABASICS will provide Customer On-Site Services. Customer agrees to pay DATABASICS all costs associated with the provision of On-Site Services, including charges for DATABASICS’ personnel, charges for travel, lodging, miscellaneous travel charges and taxes.
3.5.5 Training. Upon mutual written agreement, DATABASICS will provide Training. Unless otherwise agreed, Training will be conducted at the offices of DATABASICS or by remote conferencing.
3.5.6 Implementation Services which will be described in writing in the “Software Services Terms”. Implementation Services may be required for Charged-for-Enhancements. Changes to “Software Services Terms” shall be made only in writing and executed by authorized representatives of both parties.
4. Software Service Performance Guarantee
DATABASICS will make all reasonable efforts to make the Software Service available for constant access. The Software Service is guaranteed to be available not less than 99% of “Prime time” for each calendar month. “Prime time” is defined as 6:00 a.m. Eastern to 10:00 p.m. Eastern, Monday through Friday.
If availability falls below the guaranteed level, Customer will be compensated as described below.
For the purposes of compensation, unavailability (“Down-time”) begins when DATABASICS is notified by the designated representative of the Customer or DATABASICS independently determines that the Software Service is unavailable (whichever is the earlier) and ends when DATABASICS notifies the Customer’s designated representative that Software Service has been restored. If after a restoration report by DATABASICS, the Customer still cannot access the Software Service, the Customer must notify DATABASICS within thirty minutes. If the Customer representative notifies DATABASICS after thirty minutes, the notification will be considered a new incident.
Down-time minutes (DTM) that are to be considered in the calculation of compensation refer to situations in which no Customer user can access the Software Service due to a failure or failures of components under the maintenance of DATABASICS. DTM that are the result of failures of the Customer network, ISP, or other network related problems outside the control of DATABASICS, or due to configuration or other errors by the Customer.
While routine maintenance will be conducted with two business days’ notice outside of Prime Time, DATABASICS may need to deactivate the Software Service during Prime Time to protect against attempted “hacking” of the Customer’s Confidential Information or attempted denial of service. In this instance, DTM will not be considered for compensation.
DTM disregarded for compensation will be considered “available” with respect to compensation calculations.
Availability will be calculated as follows: Available Prime time minutes for the month / Total Prime time minutes for the month.
The base rate per minute (BRM) will be calculated as follows to a precision of four decimal places: Customer monthly charge / Total Prime time minutes for the month.
If availability is less than the guaranteed level in any particular month, then the Customer will be issued a credit as follows:
Monthly Prime-time Application Availability Reimbursement Amount of Customer Monthly Charge
96.00 – 98.99% DTM x BRM
93.00 – 95.99% DTM x BRM x 1.5
Under 93 DTM x BRM x 2.0
The total credits for down-time in a month is limited to the Customer monthly charge. Credits cannot be carried over to a subsequent month in the event that the credits calculated for a month exceed the Customer monthly charge.
If Prime time Down-time exceeds 10% for the two most recent, complete months, Customer may declare DATABASICS in breach of the agreement.
5. Security
Standard security includes firewall protection of Customer’s data, SSL (Secure Socket Layer) encoding of transactions, password-based user authentication. DATABASICS will review its security procedures with the Customer to ensure that the level of security being implemented meets the Customer’s requirements. DATABASICS and the Customer Offerings have complied with, and are complying with, PCI Data Security Standard (“PCI DSS”) as applicable to the Company. An additional charge may be required for Customer requested upgrades.