DigitalPersona SDK Pay Per Incident Support Agreement

This DigitalPersona SDK Pay Per Incident Support Agreement (“Support Agreement”) between DigitalPersona, Inc. and Customer (defined below) is effective upon receipt and acceptance of payment by DigitalPersona or by the authorized reseller from whom Support Services are purchased.

Provided that Customer (i) has a valid license for Software Product eligible for support; (ii) is current with payment of all applicable fees, if any, 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 Support Agreement in regards to the applicable Software Product. Customer acknowledges that the individual accepting this Support Agreement by clicking on the “ACCEPT” button is authorized to enter into this Support Agreement on behalf of the Customer.

  1. Definitions
    1. “Case Number” means the number assigned to the Incident by DigitalPersona which identifies the Incident and by which the activity regarding the Incident may be tracked. This number will be provided to Customer Contact by DigitalPersona prior to Registration.
    2. “Code Snippet” means a very minimal amount of software code created and made available to Customer, in the sole discretion of DigitalPersona, to help in resolution of the Incident.
    3. “Customer” means the entity that has been registered during the Registration process.
    4. “Customer Contact” means the individual developer responsible for providing and receiving information related to Support services as designated by Customer at time of Registration and as allowed under the Support Agreement.
    5. “Incident” means a specific, discrete problem whose origin can be isolated to a single cause. DigitalPersona, in its sole discretion, will determine what constitutes an Incident.
    6. “Registration” means the process of enrolling and paying for the Support Services as instructed by DigitalPersona, which process includes, without limitation, providing accurate and complete Customer, Customer Contact information, Case Number and other information as reasonably requested by DigitalPersona.
    7. “Resolution” refers to the completion of efforts to address and find a solution to an Incident. To the extent permitted by law, DigitalPersona, in its sole discretion, will determine whether or not there has been Resolution for an Incident.
    8. “Software Product” means the single software development kit (SDK) product for which Customer is requesting and paying for Incident assistance.

  2. Description of Services

    Support Services are available for developers only and are limited to support for the Software Product. Customer will receive the following services under the Support Agreement (“Support Services”):
    1. DigitalPersona will provide solely the Customer Contact with advisory assistance, code analysis and troubleshooting and clarification of the functions and features of the Software Product in efforts to provide a Resolution for the Incident. Resolution may include delivery to Customer Contact information that resolves the Incident, information on how to obtain a software solution that will resolve the Incident or information that identifies the Incident as being resolved by upgrading to a newer release of the Software Product or other software products; or, if none of the foregoing are possible despite commercially reasonable efforts to identify and provide such a solution, a determination that no solution to the Incident will be delivered.
    2. Support is provided Monday through Friday (excluding DigitalPersona holidays) between the hours of 8 a.m. and 5 p.m., Pacific Time (“Hours of Availability”). Support Services are provided remotely and in the English language only.
    3. Response Times. DigitalPersona will make commercially reasonable efforts to respond to an Incident within a reasonable time, during the specified Hours of Availability, but does not guarantee that a response or Resolution will be provided within any specific time period.

  3. Responsibilities of Customer
    1. Registration and communication.
      1. Customer must complete Registration and follow the access instructions provided by DigitalPersona.
      2. If Customer wishes to change the Customer Contact after Registration, Customer must provide prompt written notice of the change to DigitalPersona.
      3. Customer is responsible for all its own fees in establishing and maintaining email, telephone and other communications with DigitalPersona.
    2. Customer assistance requirements. DigitalPersona’s ability to provide Support Services 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. Provide DigitalPersona with data and reasonable information relating to Customer’s technology environment, as deemed necessary by DigitalPersona to provide Support Services;
      2. Run any appropriate diagnostic utilities, and perform any other tasks reasonably necessary to assist with Incident Resolution including but not limited to providing DigitalPersona trace files for any Software Product components covered by this Support Agreement.
      3. Have a reasonable understanding of the Software Product and the development environment for which Customer seeks Support Services.
      4. Refrain from abusive behavior. DigitalPersona reserves the right, in addition to all other remedies available to it at law, to terminate the Support Services described in this Support Agreement without any further obligation or liability on the part of DigitalPersona, if at any time Customer engages in threatening or abusive behavior towards support personnel, or engages in any fraudulent or misleading activities related to the Support Services being provided.
    3. Proprietary information of Customer.
      1. Customer is solely responsible for any and all security of its confidential, proprietary or classified information.
      2. Customer will not disclose to DigitalPersona confidential, proprietary or any information that is subject to intellectual property rights that may expose DigitalPersona to liability.
    4. Proprietary information of DigitalPersona.
      1. Customer may not transfer Support Services to a third party.
      2. Support Services and information provided to Customer in performance of Support Services (“Support Information”), are provided for the internal use of Customer only. Sharing Support Information with third parties is prohibited unless authorized in writing by DigitalPersona. Any unauthorized sharing or distribution of the Support Information or Support Services will be deemed a material breach of this Agreement and grounds for immediate termination of this Support Agreement and of Support Services. Support Information includes without limitation, Code Snippets.

  4. Restrictions and Exclusions
    1. Code development by DigitalPersona is NOT included in Support Services (except for Code Snippets which, in DigitalPersona’s sole discretion, may be provided to Customer in support of resolving the Incident).
    2. Customer acknowledges that DigitalPersona is under no obligation to perform Support Services with respect to any problems or malfunction resulting from an incompatibility between the DigitalPersona Software Product and the hardware or software product(s) of any third party.
    3. No further Support Services will be performed for an Incident after that Incident’s Resolution.

  5. Support Agreement Period
    1. This Support Agreement begins upon receipt by DigitalPersona of fees due and continues until the Resolution of Incident occurs.
    2. b. DigitalPersona may terminate the Support Agreement immediately upon written notice to Customer if Customer materially breaches any of the provisions of this Support Agreement. Termination shall not be deemed to be the exclusive remedy for a breach by Customer of this Agreement, but shall be in addition to all other remedies available at law or equity to DigitalPersona.

  6. Fees and Payment
    1. Pricing for Support Services purchased directly from DigitalPersona (“Support Services Fees”) is as set forth in DigitalPersona’s published pricing. DigitalPersona reserves the right to increase the Support Services Fee at any time.
    2. Payments of Support Services 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. 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. Support Services will not be provided until payment of Support Services Fees (including any applicable taxes or charges) is received by DigitalPersona. Support Services Fees are non-refundable and not transferable.

  7. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES. DigitalPersona will use commercially reasonable efforts to provide Support Services in a workmanlike manner, but makes no guarantee to resolve any Incident, or answer any and every question or problem raised by Customer. Support Services and Support Information are provided to customer “AS IS” and Customer is responsible for determining the correctness, applicability and safety of any Support Services provided by DigitalPersona for Customer’s code or environment. 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 SUPPORT AGREEMENT OR THE PROVISION OF MATERIALS OR SERVICES UNDER THIS SUPPORT AGREEMENT. TO THE EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTY AND REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED. 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.

  8. 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 SUPPORT AGREEMENT, THE SUPPORT SERVICES, OR 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 SUPPORT SERVICES OR THE SOFTWARE PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS. IN ANY CASE, DIGITALPERSONA'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS SUPPORT AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SUPPORT SERVICES OR ONE HUNDRED DOLLARS (US100.00), WHICHEVER IS GREATER. SOME JURISDICTIONS DO NOT PERMIT THESE EXCLUSIONS OR LIMITATIONS, SO SUCH EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO CUSTOMER.

  9. General
    1. The terms of this Support Agreement constitute a service contract and not a warranty of any kind. The Software Products and any tool or utility provided under Support Agreement are governed by the EULA accompanying the Software Product and are subject exclusively to the warranties and other terms set forth in such EULA.
    2. With respect to any technical information Customer provides while using Support 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.
    3. 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 Support Services solely to diagnose or analyze Incidents and/or update the Software Products currently licensed by Customer.
    4. DigitalPersona or its suppliers shall own all right, title and interest, including all Intellectual Property Rights, in and to the Support 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.
    5. 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, 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.
    6. No Third Party Beneficiaries. No provision of this Support 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.
    7. Governing Law and Exclusive Forum. This Support 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 Support Agreement, all disputes arising out of this Support 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 Support 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.
    8. Export Restrictions. Customer acknowledges and agrees that the Software Product and Support Services are 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.
    9. Severability. If any provision of this Support 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 Support Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this Support 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.
    10. No Waiver. Failure by DigitalPersona to enforce any provision of this Support Agreement will not be taken to mean that DigitalPersona has waived its right to enforce such or any other provision in the future.
    11. Entire Agreement. This Support Agreement contains and constitutes the sole, complete and entire agreement and understanding between Customer and DigitalPersona concerning the matters contained herein. This Support 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.
    12. Miscellaneous. Customer may not assign the rights granted hereunder or this Support Agreement, in whole or in part and whether by operation of contract, law or otherwise, without DigitalPersona’s express written consent. This Support Agreement is prepared and entered into in the English language only, which language shall be controlling in all respects. Any translations of this Support 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: “Proprietary information of Customer,” “Proprietary information of DigitalPersona,” “Limited Warranty; Disclaimer of Warranties,” “Limitation of Liability; Exclusion of Damages” and “General” shall survive the termination of this Support Agreement.

DigitalPersona SDK Pay Per Incident Agreement v110315