DigitalPersona Pro Workgroup Maintenance and Support

DIGITALPERSONA MAINTENANCE AND SUPPORT AGREEMENT
For DigitalPersona Software Products: DigitalPersona Pro Workgroup Suite

This Maintenance and Support Agreement (“M&S Agreement” or “M&S”) between DigitalPersona, Inc. and Customer is effective upon receipt and acceptance of Customer’s order by DigitalPersona or by the authorized reseller from whom M&S is purchased (“Commencement Date”).

Provided that Customer (i) has a valid license for Software Product eligible for M&S; (ii) is current with payment of all applicable fees for products, licenses and services acquired directly or indirectly from DigitalPersona; and (iii) accepts these terms and conditions, DigitalPersona agrees to provide the services set forth in this M&S Agreement in regards to the Software Product. Customer acknowledges that the individual accepting this M&S Agreement by clicking on the “I ACCEPT” button is authorized to enter into this M&S Agreement on behalf of the Customer.

Definitions

  1. "Customer Contact” means the Customer employee responsible for providing and receiving information related to Maintenance and Support services.
  2. “Error” means a verifiable and reproducible failure of the Software Product to substantially conform to applicable documentation.
  3. “Major Release” means a general release of software indicated by a change, from the previous release, in the number to the left of all decimal places in the version number. For example, in version number x.y.z, a change in x would indicate a Major Release.
  4. “Minor Release” means a general release of software indicated by a change, from the previous release, in the number to the immediate right of a Major Release number. For example, in version number x.y.z, a change in y would indicate a Minor Release.
  5. “Patch” means a hot fix, or other form of executable software created and made available to Customer to correct an Error.
  6. “Software Product” means the suite of software products identified above and any associated applications or add-ons and applicable usage licenses acquired by Customer from DigitalPersona.
  7. “Revision” means a general release of the Software Product indicated by a change, from the previous release, in the number to the immediate right of a Minor Release number. For example, in version number x.y.z, a change in z would indicate a Revision.
  8. “Workaround” means a technically feasible change in the operating procedure of software whereby the effects of the Error on the normal operation of such software are reasonably minimized.

Description of Services

Customer will receive the following services under M&S (“M&S Services”):

  1. Software Maintenance
    Customer is entitled to receive all software releases for the Software Product as they are made available by DigitalPersona specifically, Revisions, Minor Releases and Major Releases.

  2. Support Services
    DigitalPersona will provide the Customer Contact assistance with installation, deployment, troubleshooting and clarification of the functions and features of the Software Product. Support services include Error verification analysis and commercially reasonable efforts to correct such Errors. Support Services are available for the current version of the applicable Software Product, and one most recent Major Release or Minor Release. Support is provided Monday through Friday (excluding DigitalPersona holidays) between the hours of 8 a.m. and 5 p.m., Pacific Time. Support services are provided remotely and in the English language only.

  3. AskPersona.com
    DigitalPersona’s online electronic support services and tools are available 24x7 and may be accessed at www.askPersona.com

 

Responsibilities of Customer

DigitalPersona’s ability to provide M&S depends on Customer’s full and timely cooperation as well as on the accuracy and completeness of any information Customer provides. Specifically, Customer agrees to:

  1. Appoint one (1) Customer Contact and immediately notify DigitalPersona either electronically or in writing with contact information for the Customer Contact, and of any changes in the appointment of a Customer Contact;
  2. Provide DigitalPersona with data and reasonable information relating to Customer’s technology environment, as deemed necessary by DigitalPersona to provide Support Services;
  3. Train its users in the use of the Software Products, and provide supervision, control and management of the use of the Software Products. Customer shall, at its own expense, be solely responsible for providing all technical support to its users;
  4. Develop procedures for the implementation of recovery procedures in the event of an Error;
  5. Attempt to implement an appropriate Workaround in the event of an Error; and
  6. Document reported Errors of the Software Products sufficiently to enable DigitalPersona to replicate and verify such Errors. In addition, Customer shall run any appropriate diagnostic utilities, and perform any other tasks reasonably necessary to diagnose and/or replicate the Error including but not limited to providing DigitalPersona trace files for server component, workstation component and any other Software Product components covered by this agreement. Customer shall take all steps reasonably necessary to carry out procedures for the rectification of Errors within a reasonable time after such procedures have been received from DigitalPersona.

Restrictions and Exclusions

  1. M&S does not include analysis of or corrective efforts resulting from Errors due to Customer’s failure to incorporate a Major Release, Minor Release, Revision or Patch released by DigitalPersona in which such Error has been corrected.
  2. DigitalPersona assumes no obligation to provide M&S described herein for any Software Product which is installed, configured, used or maintained in a manner that deviates from the applicable documentation, nor for damaged, altered, modified or customized portions (unless performed by DigitalPersona or its agents) of the Software Product, if any.
  3. Customer acknowledges that DigitalPersona is under no obligation to perform services with respect to any software or hardware not included in the Software Product, or with respect to any problems or malfunction resulting from an incompatibility between a Software Product and the product of any third party. Customer shall reimburse DigitalPersona for any services, pre-approved by Customer, provided by DigitalPersona in response to any problems or malfunction not covered by the Support Services, at DigitalPersona’s then-current consulting rates.
  4. DigitalPersona shall have no obligation under this agreement to provide corrections for Errors arising from a breach of this agreement by Customer.

Support Period and Renewal

  1. The first M&S period begins upon Commencement Date and ends twelve (12) months thereafter. Each M&S period shall automatically renew for another twelve (12) months unless renewal has been cancelled by Customer with a written notification within fifteen (15) days prior to expiration of the M&S period.
  2. M&S may only be renewed, terminated or reinstated for all applicable Software Products, in the aggregate, licensed and/or purchased by Customer from DigitalPersona or from a DigitalPersona authorized reseller.
  3. In the event of expiration, lapse or other termination of M&S, Customer may subsequently reinstate M&S in accordance with DigitalPersona’s then-current reinstatement policy and payment of all applicable M&S Fees (defined below).
  4. DigitalPersona may terminate the M&S Agreement if Customer materially breaches any of the provisions of this M&S Agreement and fails to cure such breach within thirty (30) days of written notice.

Fees and Payment

  1. Pricing for M&S purchased directly from DigitalPersona (“M&S Fees”) is as set forth in DigitalPersona’s published pricing. DigitalPersona reserves the right to increase the M&S Fee to DigitalPersona’s then-current standard published prices upon expiration of any M&S period.
  2. Payments of M&S Fees may be made by credit card (American Express, MasterCard or Visa). Any other payment arrangement, including but not limited to wire transfer, money order or cashier’s check presented in U.S. dollars and drawn from a U.S. bank must be approved by DigitalPersona in writing. Failure by Customer to pay an invoice for M&S Fees by its due date may result in termination of M&S. Customer is responsible for payment of any applicable taxes, duties or other levies imposed by a government authority, excluding those based on DigitalPersona’s net income. M&S Fees (including any applicable taxes or charges) are due upon receipt of an invoice, in advance of any M&S period, and are non-refundable and not transferable.

LIMITED WARRANTY; DISCLAIMER OF WARRANTIES. DigitalPersona will use commercially reasonable efforts to provide M&S Services in a workmanlike manner, but makes no guarantee to resolve any Error, or any and every question or problem raised by Customer. DigitalPersona is not responsible for damage or loss of any programs or data nor is DigitalPersona responsible for recovery, restoration or reinstallation of any program or data. Customer is solely responsible for backing up Customer’s programs and data (including but not limited to encryption keys or authorization codes) and for taking any other measures to prevent any loss of data and files. EXCEPT FOR THE LIMITED WARRANTIES ABOVE, DIGITALPERSONA AND ITS SUPPLIERS, DISTRIBUTORS OR RESELLERS MAKE NO OTHER EXPRESS OR IMPLIED WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SPECIFICALLY DISCLAIM ALL WARRANTIES OF EVERY TYPE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, SUPPORT SERVICES, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS RELATED TO OR ARISING IN ANY WAY OUT OF THIS M&S AGREEMENT OR THE PROVISION OF MATERIALS OR SERVICES UNDER THIS M&S AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW SUCH EXCLUSIONS OR LIMITATIONS, SO THEY MAY NOT APPLY TO CUSTOMER. THESE LIMITED WARRANTIES GIVE CUSTOMER SPECIFIC LEGAL RIGHTS AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.

LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DIGITALPERSONA AND ITS SUPPLIERS, DISTRIBUTORS OR RESELLERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, WHETHER IN TORT, PRODUCT LIABILITY AND/OR NEGLIGENCE(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, PRIVACY OR CONFIDENTIALITY, BREACH OF SECURITY SYSTEMS OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING IN ANY WAY TO THIS M&S AGREEMENT, THE USE OF, OR INABILITY TO USE THE SOFTWARE PRODUCT , EVEN IF DIGITALPERSONA AND ITS SUPPLIERS, DISTRIBUTORS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR SELECTING THE SOFTWARE PRODUCT TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE PRODUCT. DIGITALPERSONA AND ITS SUPPLIERS, DISTRIBUTORS OR RESELLERS DO NOT GUARANTEE THAT M&S SERVICES OR THE SOFTWARE PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS. IN ANY CASE, DIGITALPERSONA'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS M&S AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE M&S SERVICES OR FIVE DOLLARS (US$5.00), WHICHEVER IS GREATER. SOME JURISDICTIONS DO NOT PERMIT THESE EXCLUSIONS OR LIMITATIONS, SO SUCH EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO CUSTOMER.

General

  1. DigitalPersona will use commercially reasonable efforts to resolve Errors reported by Customer in accordance with the terms and conditions of this agreement, but makes no promise or guarantee to resolve any and every such Error.
  2. The terms of this agreement constitute a service contract and not a warranty of any kind. The Software Products and all related materials, including without limitation any Patch, Workaround, any tool or utility provided under M&S are governed by the EULA accompanying the Software Product and are subject exclusively to the warranties set forth in such EULA.
  3. DigitalPersona reserves the right to terminate the M&S services described in this agreement if at any time Customer abuses such support services, engages in threatening or abusive behavior, or engages in any fraudulent or misleading activities related to the support services being provided.
  4. DigitalPersona reserves the right to modify the terms of this agreement at any time by updating the agreement on the DigitalPersona website. It is the Customer’s responsibility to review from time to time and stay familiar with these terms and conditions. Customer’s continuing use of the M&S Services constitutes Customer’s acceptance of the terms and conditions as modified. DigitalPersona will attempt to notify Customer of substantial modifications to the terms via the email address that Customer has registered with DigitalPersona.
  5. With respect to any technical information Customer provides while using M&S services, DigitalPersona may use such information for its business purposes, including without limitation, general product support and development. DigitalPersona will not use such technical information in a form or manner that personally identifies Customer.
  6. Subject to the terms and conditions of this agreement, DigitalPersona hereby grants to Customer a limited license to install and use any software provided as part of the M&S services solely to diagnose an Error and/or update the Software Products currently licensed by Customer.
  7. DigitalPersona or its suppliers shall own all right, title and interest, including all Intellectual Property Rights, in and to the M&S Services. All rights not expressly granted herein shall inure to the benefit of DigitalPersona. “Intellectual Property Rights” means copyright, trademark, and patent rights, trade secrets, moral rights, right of publicity, authors’ rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
  8. Privacy; Data Collection. Customer agrees that DigitalPersona may, subject to applicable law, collect (including, without limitation, through automatic Internet connection), retain, transfer and use (i) non-personal technical information including, without limitation usage data or data about the Customer’s computer system; and/or (ii) personal information, including without limitation, name, contact information, e-mail address, and payment details; (collectively, “Customer Information”) which will be used primarily for the purposes of providing products and services to Customer. DigitalPersona may share Customer Information with subcontractors that perform functions such as payment processing or customer service or technical support on DigitalPersona’s behalf to the extent necessary for such subcontractors to perform such tasks. DigitalPersona or its subcontractors may use Customer Information for additional communication with Customer subject to Customer’s notification of Customer’s decision not to accept such communication. For more detailed information please read DigitalPersona’s privacy policy on the DigitalPersona website at www.digitalpersona.com.
  9. No Third Party Beneficiaries. No provision of this M&S Agreement is intended, nor will it be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in third parties. All provisions hereof will be personal solely between Customer and DigitalPersona.
  10. Governing Law and Exclusive Forum. This M&S Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, United States of America, excluding its choice of law provisions. With the exception of disputes where DigitalPersona deems it necessary to file suit in another jurisdiction in order to seek temporary or permanent injunctive relief to enforce its Intellectual Property Rights under this M&S Agreement, all disputes arising out of this M&S Agreement shall be subject to the exclusive jurisdiction and venue of the Superior Court of the State of California of San Mateo County and the Federal District Court of the Northern District of California, United States of America, and the parties consent to the personal and exclusive jurisdiction and venue of such courts. If Customer acquired the M&S services in a country other than the United States of America, local laws may apply. The United Nations Convention on Contracts for the International Sales of Goods is specifically disclaimed.
  11. Export Restrictions. Customer acknowledges and agrees that the Software Product is subject to United States export restrictions, and that Customer will strictly comply with all applicable United States and international laws relating to the importing and/or exporting of the Software Product, and will not, directly or indirectly, export the Software Product and related technical data in violation of the Export Administration Regulations of the U.S. Department of Commerce and other applicable laws.
  12. Severability. If any provision of this M&S Agreement shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, partially or wholly, then such provision will be enforced to the maximum extent permissible and the remaining provisions of this M&S Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this M&S Agreement that limit, disclaim, or exclude warranties, remedies, or damages are intended by the parties to be independent and remain in effect despite the failure or unenforceability of an agreed remedy.
  13. Entire Agreement. This M&S Agreement contains and constitutes the sole, complete and entire agreement and understanding between Customer and DigitalPersona concerning the matters contained herein. This M&S Agreement may not be altered, modified or changed and no provision shall be deemed waived in any manner except with DigitalPersona’s written consent or written agreement executed by authorized personnel of both parties expressly setting forth such alteration.
  14. Miscellaneous. Customer may not assign the rights granted hereunder or this M&S Agreement, in whole or in part and whether by operation of contract, law or otherwise, without DigitalPersona’s express written consent. This M&S Agreement is prepared and entered into in the English language only, which language shall be controlling in all respects. Any translations of this M&S Agreement into any other language are for reference only and shall have no legal or other effect. The definitions contained herein and the following sections “Limited Warranty; Disclaimer of Warranties,” “Limitation of Liability; Exclusion of Damages” and “General” shall survive the termination of this M&S Agreement.

DigitalPersona M&S Agreement for Pro Workgroup Suite v100407