digiTICKET Software Agreements
digiTICKET END USER LICENSE AGREEMENT
This Software License covers the Saltus software that accompanies the digiTICKET Solution under this Agreement, which includes computer software and may include associated media, printed materials, “online” or electronic documentation, and Internet-based services (“Software”). The Customer agrees to be bound by the terms of this Section 3.0 by installing, copying, or otherwise using the Software.
- GRANT OF LICENSE. Saltus grants Customer the following rights provided that Customer complies with all terms and conditions of this Section 3.0: a) Saltus grants to Customer a nonexclusive license to use copies of the Software, provided that for each individual using the Software within Customer’s organization, Customer has acquired a separate and valid license for each user device as may be required by Saltus. b) Customer may make and use an unlimited number of copies of any documentation, provided that such copies shall be used only for Customer’s purposes pursuant to this Agreement and are not to be republished or distributed (either in hard copy or electronic form) beyond Customer premises. c) Customer may also store or install a copy of the Software on a storage device, such as a network server, used only to install or run the Software on computers used by a licensed end user in accordance with a) above. d) Software provided by Saltus may not be distributed to any individual, third party or entity that exists external to Customer’s organization or for any purpose other than use of the Software for Customer.
- RESERVATION OF RIGHTS AND OWNERSHIP. Saltus reserves all rights not expressly granted to Customer in this Agreement. The Software is protected by copyright and other intellectual property laws and treaties. Saltus owns the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold.
- LIMITATIONS ON DECOMPILATION, AND DISASSEMBLY. Customer may not reverse engineer, decompile, or disassemble any Software provided in compiled or object code form, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
- NO RENTAL/COMMERCIAL HOSTING. Customer may not rent, lease, lend or provide commercial hosting services with the Software.
- CONSENT TO USE OF DATA. Customer agrees that Saltus and its affiliates may collect and use technical information gathered as part of the product support services provided to Customer, if any, related to the Software. Saltus may use this information solely to improve our products or to provide customized services or technologies to Customer and will not disclose this information in a form that personally identifies Customer.
- ADDITIONAL SOFTWARE/SERVICES. This Software License applies to updates, supplements and add-on components of the Software that Saltus may provide to Customer or make available to Customer after the date Customer obtains the initial copy of the Software, unless Saltus provides other terms along with the update, supplement, add-on component.
- NOT FOR RESALE SOFTWARE. Software provided by Saltus may not be sold or otherwise transferred for value, or used for any purpose other than Customer’s application of the Software pursuant to this Agreement.
- EXPORT RESTRICTIONS. Customer acknowledges that the Software is subject to U.S. export jurisdiction and agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
- SOFTWARE TRANSFER & ASSIGNMENT. All rights to use of Software provided by this Agreement are for the sole use of Customer and may not be transferred, assigned, directly or indirectly without prior written authorization from Saltus.
- TERMINATION. Without prejudice to any other rights, Saltus may terminate the Software License if Customer fails to comply with the terms and conditions of this Agreement. In such event, Customer shall destroy all copies of the Software and all of its component parts.
- INDEMNIFICATION. Provided that Customer complies with all terms and conditions of this Agreement, Saltus agrees to indemnify, defend, and hold harmless Customer from and against any and all liabilities, actions, claims, damages, reasonable costs, and reasonable expenses arising from or relating to any claim that the Software infringes upon or violates any patent, copyright, trade secret, or other proprietary right of any third party. If a claim for indemnity is made pursuant to this paragraph, Customer shall give Saltus prompt written notice of any alleged liability or action and shall offer to tender the full defense thereof to Saltus. Saltus shall not be liable for any settlement of any such liability or action effected without the prior written consent of Saltus.
OTHER TERMS
- TERM AND TERMINATION. The term of this Agreement shall be for one (1) year and, thereafter, for renewal terms on a year-to-year basis until terminated (i) by Customer in the event the Software is taken out of service and upon thirty (30) days’ notice to Saltus; (ii) by either party with notice to the other party at least thirty (30) days’ notice prior to the expiration of the original one (1) year or any subsequent one (1) year renewal term, in which case, this Agreement shall terminate at the expiration of the original term or renewal term as the case may be; (iii) by either party upon a default of the other party, such default remaining uncured for thirty (30) days from the date of written notice from the non-defaulting party to the other specifying such default; (iv) upon the bankruptcy or insolvency of Saltus; or (v) the Software License is terminated. Upon such termination, provided the Customer is not in default under this Agreement, Saltus shall refund to Customer a portion of the fees prorated to reflect the date of termination. Notwithstanding the above, neither party shall be relieved of liability to the other party for damages sustained by the non-breaching party resulting from breach of the Agreement by the other party, and either party may withhold any payments to the other party for the purpose of setoff until such time as the exact amount of damages due are determined.
- DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SALTUS DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, AND OF FITNESS FOR A PARTICULAR PURPOSE.
- EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SALTUS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES.
- LIMITATION OF LIABILITY AND REMEDIES. EXCEPT AS OTHERWISE SET FORTH HEREIN,NOTWITHSTANDING ANY DAMAGES THAT CUSTOMER MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR OTHERWISE), THE ENTIRE LIABILITY OF SALTUS AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND CUSTOMER’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE GREATER OF THE ACTUAL DAMAGES CUSTOMER INCURS IN REASONABLE RELIANCE ON THE SOFTWARE UP TO THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SOFTWARE. Customer agrees that the purchase price would be substantially higher but for these limitations.
- GENERAL. Each party acknowledges that it is bound by the terms of this Agreement and further agrees that it is the complete and exclusive statement of the Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter of this Agreement. This Agreement may not be modified or altered except by a written instrument duly executed by both parties.
This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Oklahoma. Any and all proceedings relating to the subject matter hereof shall be maintained in the state or federal courts of Tulsa County, Oklahoma, which courts shall have exclusive jurisdiction for such purpose. Each of the parties waives any objection to venue or in personam jurisdiction.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
Neither party may assign, without the prior written consent of the other, its rights, duties or obligations under this Agreement to any other person or entity, in whole or in part.
The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.
digiTICKET MAINTENANCE AND SUPPORT AGREEMENT
- SERVICES. During the term of this Agreement, Saltus agrees to provide maintenance and support services, as described herein, for the Software operating under the license(s) and on the hardware configurations listed in Section 1.0 of this Agreement so as to maintain the Software in good working order, keeping the Software free from material defects so that the Software will function properly and in accordance with the accepted level of performance as set forth in Section 3.0 of this Agreement. Such maintenance and support shall include (i) diagnosis of problems or performance deficiencies of the Software and (ii) a resolution of the problem or performance deficiencies of the Software. Saltus will provide telephone software support twenty-four (24) hours a day, seven (7) days a week. Saltus will use its best efforts to cure, as described below, reported and reproducible errors in the Software. Saltus utilizes the following four (4) severity levels to categorize and respond to reported problems:
Severity 1: Critical Business Impact
The impact of the reported problem is such that the Customer is unable to either use the Software or reasonably continue work using the Software. Saltus will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 1 problem as soon as reasonably possible, but in any event a response via telephone will be provided within one (1) hour. Saltus will make best efforts to resolve Severity 1 problems in less than forty-eight (48) hours, but in any event, will engage staff until an acceptable resolution is achieved.
Severity 2: Significant Business Impact
Important features of the Software are not working properly and there are no acceptable, alternative solutions. While other areas of the Software are not impacted, the reported problem has created a significant, negative impact on the Customer’s productivity or service level. Saltus will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 2 problem as soon as reasonably possible, but in any event a response via telephone will be provided within four (4) hours. Saltus will exercise best efforts to resolve Severity 2 problems within five (5) days, but in any event, will engage staff until an acceptable resolution is achieved.
Severity 3: Some Business Impact
Important features of the Software are not working properly, but an alternative solution is available or non-essential features of the Software are not working properly with no alternative solution. The Customer impact, regardless of Software usage, is minimal loss of operational functionality or implementation resources. Saltus will provide a response by a qualified member of its staff to begin to diagnose and to correct a Severity 3 problem as soon as reasonably practical, but in any event a response via telephone will be provided within one (1) day. Saltus will exercise best efforts to resolve Severity 3 problems within one (1) week, but in any event, will engage staff during business hours until an acceptable resolution is achieved.
Severity 4: Minimal Business Impact
A noticeable situation exists in which use of the Software is affected in some way which is reasonably correctable by a documentation change or by a future, regular maintenance release. Saltus will provide, as agreed by the parties, a fix or fixes for Severity 4 problems in future maintenance releases.
With respect to any reported problems, Saltus may, with the concurrence of the Customer, elect to send senior support or development staff to the Customer location to accelerate problem resolution. Saltus will be responsible for the costs associated with this escalated problem resolution if the problem is determined to be related to the Software. If it is determined that the problem was not related to the Software, Customer agrees to pay reasonable travel and lodging expenses in addition to Saltus standard consulting rates. Travel time will be charged at consulting rates.
- MAINTENANCE. During the term of this Agreement, Saltus will maintain the Software by providing software updates and enhancements to Customer as the same are offered by Saltus to its Customers of the Software under maintenance generally (“Updates”). All Updates and enhancements provided to Customer by Saltus pursuant to the terms of this Agreement shall be subject to the terms and conditions of Section 3.0 of this Agreement. Updates will be provided on an as-available basis.
Updates will be provided in machine-readable format and updates to related documentation will be provided electronically. All such deliveries shall be made electronically to the handheld computers automatically during a sync process or as initiated by Saltus support staff using remote device management tools. All such deliveries for the laptop computers shall be made automatically during a sync process or as coordinated by Saltus and Customer support staff. If requested, Saltus will provide on-site assistance in the installation of Updates on a time and materials charge basis, plus expenses.
Saltus assumes no responsibility for the correctness of, performance of, or any resulting incompatibilities with, current or future releases of the Software if the Customer has made changes to the system hardware/software configuration or modifications to any supplied source code which changes effect the performance of the Software and were made without prior notification to and written approval of Saltus. Saltus assumes no responsibility for the operation or performance of any Customer-written or third-party application.
- MAINTENANCE AND SUPPORT WARRANTY. Saltus will undertake all reasonable efforts to provide technical assistance under this Agreement and to rectify or provide solutions to problems where the Software does not function as described in the Software documentation, but Saltus does not guarantee that the problems will be resolved or that any item will be error-free. This Agreement is only applicable to the Software running under the certified environments specified in the release notes for that product. Saltus will provide the Customer with substantially the same level of service throughout the term of this Agreement. Saltus may from time to time, however, discontinue Software products or versions and stop supporting Software products or versions one year after discontinuance, or otherwise discontinue support service. Saltus liability shall not exceed the fees that Customer has paid under this Agreement. Customer agrees that the pricing for the services would be substantially higher but for these limitations.
- ACCESS. Software maintenance and support services are conditioned upon provision by Customer to Saltus of reasonably appropriate access to the system(s) running the Software, including, but not limited to, passwords, system data, file transfer capabilities, and remote log-in-capabilities. Saltus will maintain security of the system and use such access only for the purposes of this Agreement and will comply with Customer standard security procedures. Information accessed by Saltus agents or employees as a result of accessing Customer system shall be deemed confidential information pursuant to the terms of this Agreement. Customer shall provide Saltus with internet access to the system(s) running the Software and a Primary Point of Contact at the Customer site to coordinate Support efforts with Saltus staff.
- FEES. Fees for maintenance and support services provided under this Agreement are contained in Section 1.0 of this Agreement. Any time a client license or software module is added or deleted from this Agreement; Saltus will automatically adjust and/or amend Section 1.0 of this Agreement accordingly. Saltus will periodically review Section 1.0 of this Agreement. If changes have occurred, Saltus will adjust and/or amend Section 1.0 of this Agreement and Maintenance and Support fees will be adjusted accordingly. Rates will be reviewed and adjusted accordingly when client licenses or software modules are added. Customer agrees to reimburse Saltus for reasonable expenses related to the performance of services. Expenses may include, but are not limited to, charges for materials, shipping and handling, travel (including lodging and associated expenses), printing and documentation, and other out-of-pocket expenses reasonably required for performance. Expenses will be pre-approved by Customer.
- PAYMENT OF MAINTENANCE AND SUPPORT FEES. Fees will be invoiced annually, with the annual term commencing 12 months from the 1st day of the month following on-site training. Invoices will be delivered thirty (30) days in advance of the commencement of the term. Expenses will be invoiced as actual and when incurred. All invoices are payable net fifteen (15) days.