License Agreement & Subscription SLA

Donoma Software Subscription Service Level Agreement (SLA)
Donoma Software Perpetual License End User License Agreement

Donoma Software Subscription Service – Service Level Agreement (SLA)

DONOMA UNIFY®, DONOMA MESSAGE VAULT™, DONOMA STONESCRIBE™, DONOMA MEDIASCRIBE ™, DONOMA ONEVIEW™
Last updated: April 29, 2019

Terms and Conditions.

PLEASE READ THIS SERVICE LEVEL AGREEMENT CAREFULLY BEFORE USING DONOMA SOFTWARE® (“DONOMA ” or “Licensor”) SOFTWARE OR DONOMA – SUPPLIED SOFTWARE. BY USING THE SOFTWARE, EVEN FOR REVIEW AND CONSIDERATION, OR USING THE EQUIPMENT THAT CONTAINS THIS SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN (A) DO NOT USE THE LICENSED SOFTWARE, AND (B) YOU MAY CANCEL SERVICE FOR THE SOFTWARE AND OBTAIN A REFUND OF ANY AMOUNTS PAID. YOUR RIGHT TO REJECT THE TERMS OF THIS AGREEMENT AND CANCEL SERVICE EXPIRES ON THE EARLIER OF THIRTY (30) DAYS AFTER PURCHASE FROM DONOMA OR AN AUTHORIZED DONOMA SUPPLIER, OR THIRTY (30) DAYS AFTER THE DATE THIS INFORMATION HAS BEEN PROVIDED TO YOU.

Software Service.

“Software Service” or “Service” means, as applicable to Customer, and of the following: the Voicemail – Email Synchronization Program in object code format designed by Donoma to synchronize IP-based Unified Communication (UC) systems with supported email systems, the Voicemail Archiving & Records Management Program in object code format designed by Donoma to archive the messages from the designated IP-based UC systems, the Voice/Video Call Archiving & Records Management Program in object code format designed by Donoma to archive the messages from the designated IP-based UC systems,  the Text/EML Communications Archiving & Records Management Program in object code format designed by Donoma to archive text-based message traffic from designated systems and/or the Call Detail Recording Program in object code format designed by Donoma to gather and report on call data from the designated IP-based UC systems including any updates, patches or modifications that Donoma, at its sole discretion, makes available to Customers of the  program(s) constituting the Licensed Software  (such programs referred to herein individually and collectively as, the “Licensed Software”).  Customer has sole responsibility for ensuring that it has obtained all appropriate or necessary third party licenses for related or interactive hardware and software. “Documentation” means any copy, version or translation, in whole or in part, of the end user documentation for Software Service, whether in printed manual or on-line format.

Evaluation of Service.

This Agreement shall apply generally to parties evaluating the Software Service during the permitted evaluation period (“Service Evaluation”), the Service Evaluation shall not include, and Donoma specifically disclaims, any warranties of any kind by Donoma, or any rights of Customer to indemnification. In addition, Donoma is not liable in any way for losses or damages of any kind whatsoever under this Agreement, including but not limited to direct, special, incidental, indirect, or consequential losses or damages, even if advised of the possibility of such potential loss or damage, to a Customer under a Service Evaluation. Customer also acknowledges that the Service Evaluation will operate only for the permitted evaluation period and after that period will cease to operate without further action on the part of Donoma.

Subscriptions.

During the term of the Subscription as stated in the purchase documents, Customers purchasing a Donoma Subscription Service (“Service”) may access and use Service pursuant to the policies contained in this Agreement. Donoma retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Customer any intellectual property rights in the Service or any of its components.

Software Updates & Service Monitoring.

Donoma will make available to Customers, from time to time as they are released, free of additional charge, patches and Updates of the Service that Donoma makes generally available to Customers and the public, excluding, however, any modules designated by us, in our sole discretion, as new Services. Acceptance of any Update is hereby deemed subject to the terms and conditions contained in this Agreement.

Cloud-based Service:

For those Customers on a cloud-based subscription, Updates will be applied to the Service as available. Proactive monitoring of the Service is included with cloud-based Service.

On Premise Service:

For those Customers with an on-premise Service, written notification of the Update will be sent and Customers may arrange installation by scheduling with Donoma Support. Update installation support for on-premise Service is included at no additional charge; but if the Customer prefers to perform the installation unassisted, Donoma will provide instructions on how to access and install the Update. On-Premise Service Customers may be required to license new third-party applications programs or operating systems programs, or update existing versions thereof or computer equipment, at their expense, in order to install or utilize an Update.

Maintenance & Support Provided for Service.

All active Service Customers, in addition to software Updates listed above, Customer will have access to remote support and application error monitoring as well as telephone support and online support via the Donoma support email address provided below for problems with the Service. Proactive monitoring of the Service is included, but if the Application Health Service is not allowed by a Customer with an on-premise Service, then proactive notification of Service issues will not occur. This support will be available only for the Service. If in analyzing a particular question, Donoma support staff determines that the problem is caused by something other than the Service, support may be offered on a time and materials or contract basis, if available.

Revisions.

Donoma may revise this Agreement by posting a new version at the URL below and provide written notice to Customer, provided no such revisions may materially degrade this Agreement’s required  performance. Service Level Agreement URL: https://www.donomasoftware.com/licenseagreement/

Availability for Cloud-based Service.

Donoma shall exercise reasonable efforts to deliver 99.9% service availability per month, excluding Permitted Downtime or Emergency Maintenance.

Permitted Downtime” means the Service is unavailable for Customer use during a prescheduled period which has been announced at least 10 business days in advance. Unless otherwise communicated, scheduled downtime shall not be more than 4 hours per month for major system configuration changes, upgrades or normal maintenance.

“Emergency Maintenance” means critical unforeseen maintenance (e.g. repairs, modifications, or upgrades) needed to ensure security or reliability of the Service.

Credits will be allocated as follows:

Monthly Availability Credit Percentage
100% – 99.5% 0%
≤ 99.4% – 99.0% 10%
≤ 98.9% – 98.0% 20%
< 98.0% 30%

Limitations.

Customer is not entitled to a credit if Customer is in breach of these Terms (including Customer’s payment obligations). Customer is not entitled to a credit if downtime would not have occurred but for Customer’s breach of these Terms, Customer’s network issues, or Customer’s misuse of the Service. Customer is not entitled to a credit for downtime or outages resulting from denial of service attacks, virus activity, hacking attempts, or any other circumstances that are not within Donoma’s control. To receive a credit, Customer must log a request via via email to billing@donomasoftware.com within fifteen (15) days following the end of the downtime. Customer must show that Customer’s use of Service was adversely affected in some way as a result of the downtime to be eligible for the credit. Notwithstanding anything in these Terms to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed one month’s fee for the Service. The credits set forth above are Customer’s sole remedy for Performance below the Target. Credits issued pursuant to this SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement. Donoma is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation termination of this Agreement.

Disaster Recovery Plan.

Donoma maintains a reasonable written Disaster Recovery Plan (the “DR Plan”) setting forth procedures for keeping Service functioning; and restoring cloud-based Service functionality promptly after a Disaster. The DR Plan includes procedures no less protective than industry standard, and Donoma shall update the DR Plan as the industry standard changes.

Problem Severity Definitions & Escalation Paths.

Donoma’s software defect tracking severity levels for support- does not include installations, upgrades or systems not directly controlled by Donoma including Customer’s network.

Severity Definition
1. Catastrophic

Diagnostic and response within eight (8) hours of problem report. Dedicated resources assigned.

Circumstances cause the entire system or solution to fail.
OR
Circumstances cause a major functional aspect of the Service to fail.
OR
Behavior causes other devices, systems, or critical applications on the network to fail.
AND
There is no reasonable workaround to prevent the failure occurrence.
2. Severe

Diagnostic and response within two (2) days of problem report.

An important but not critical Service function fails.
Services operates substantially below design specification.
Behavior requires other devices, systems or critical applications on the network to make unreasonable accommodations.
There is no reasonable workaround to prevent the failure occurrence.
3. Moderate

Diagnostic and response within two (2) weeks of problem report.

A minor Service feature does not work.
A feature fails under unusual or rare circumstances.
Service operates below design specification..
A serious error exists in the documentation.
A failure with a low impact work around
4. Minor

Diagnostic and response within one (1) month of problem report.

A failure that is self correcting within the Service that has minimal operational impact.
A minor feature fails under unusual or rare circumstances.
A minor error exists in the documentation.
5. Cosmetic Problem with the Service that does not impact the operation of the Service but has an aesthetic value.
6. Enhancement A request for new functionality or enhancement to an existing feature.

 

Elapsed Time Severity 1 Severity 2 Severity 3 Severity 4
 

1- Hour

Level 1 Support
 

4- Hours

Level 2 Support Level 1 Support
 

24- Hours

Level 3 Support

Sales Management

Level 2 Support Level 1 Support Level 1 Support
48- Hours President (CEO) Level 3 Support Level 2 Support
72- Hours Sales Management
96- Hours President (CEO) Level 3 Support Level 2 & 3 Support

“Response” refers to an e-mail, telephone, or in-person acknowledgment of a technical support request.

Support Level Definitions.

Level 1 Support. Ability to provide general Service information, configuration support, collection of relevant technical problem identification information, filter non-technical problems from technical problems

Level 2 Support. All Level 1 support capabilities, plus: Ability to support problem isolation and Service specification defect determination, Lab simulation and interoperability testing, Action plan definition, Ability to analyze traces of where the error occurred

Level 3 Support.  Level 3 Support includes fixing Software bugs or generating work-arounds, including any security vulnerabilities identified by Donoma or any third party, Troubleshooting bugs that Level 2 Support is unable to bring to resolution

Support Access.

To request support:
Support phone: (International) +1(540) 443-3575
Support phone (US & Canada) (866)-265-2770
Support email: support@donomasoftware.com

Support Schedule.

Service Customers will have access to support from 8:00 a.m. to 8:00 p.m. U.S. Eastern Time, (Hours) Monday through Friday each week, except Donoma observed holidays. However, any level of support may not be available due to matters out of our control.  Support will not be available to anyone on the following Donoma observed holidays:

  • New Year’s Day (January 1)
  • Memorial Day (last Monday in May)
  • Independence Day (July 4)
  • Labor Day (first Monday in September)
  • Thanksgiving and the following Friday (fourth Thursday and following Friday in November)
  • Christmas Eve and Christmas Day (December 24 and 25)

Engineering work required outside the stated business hours will be scheduled on a case-by-case basis to accommodate customers’ time zones.

Patent and Copyright.

The Service and the intellectual property it contains is owned by Donoma and is protected by U.S. patent and copyright laws and applicable international treaties and/or conventions. The Service, and any and all modifications, improvements and derivative works, shall remain the exclusive property of Donoma, and Customer shall have no right, title or interest in them whatsoever.

Consent to Use of Data.

Customer agrees that Donoma may collect and use technical data and related information—including but not limited to technical information about connected devices, system and Donoma application software—that is gathered periodically to facilitate the provision of software updates, product or Service support, and other services to Customer (if any) related to the Service. Donoma may use this information, as long as it is in a form that does not personally identifiable data , to improve its products and Services or to provide additional services or technologies to Customer.

Prohibited Uses.

Without the prior express written consent of Donoma, Customer agrees that it shall not and shall not allow any third party (by Service agreement or otherwise) to (a) take any action that would cause the loss or abandonment of Donoma’s proprietary rights in the Service ; (b) transfer, assign, resell, distribute, publicly display, transfer, rent, lease, lend, copy or otherwise reproduce, modify, translate, enhance, time-share, license, sublicense, electronically transmit or prepare derivative works of the Service, in whole or in part; (c) make error corrections to or otherwise modify or adapt the Service or create derivative works based upon the Service, or permit third parties to do the same; (d) disassemble, decompile, decrypt or reverse engineer in any way any of the Service; (e) otherwise use in any way the Service in any manner not expressly authorized by this Agreement; or (f) remove, alter or otherwise obscure any proprietary rights notices appearing in the Service. Customer agrees to use its best efforts and take all reasonable steps to safeguard the Service to ensure that no unauthorized person shall have access to the Service and that no unauthorized copy, publication, disclosure or distribution, in whole or in part, in any form shall be made. Customer acknowledges that the Service contains valuable, confidential information and trade secrets and that unauthorized use and/or copying are harmful to Donoma. Customer grants to Donoma and its agents the right to examine Customer’s business, books, records and accounts during Customer’s normal business hours to verify compliance with this Agreement. In the event such audit discloses non-compliance with this Agreement, Customer shall promptly pay to Donoma the appropriate licensee fees and, at the discretion of Donoma, reimburse Donoma for the costs of the examination.

Nondisclosure.

During the term of this Agreement, Customer may be exposed to certain information concerning Donoma’s services, software products, including the Service, and proposed new software products and Services that are the confidential and proprietary information of Donoma and not generally known to the public (“Confidential Information”). Customer agrees that during and after the term of this Agreement, it will not use or disclose to any third party any Confidential Information without the prior written consent of Donoma.

Proprietary Notices and Protection of Information.

Customer agrees to maintain and reproduce all patent, copyright and other proprietary notices on all copies, in any form, of the Service in the same form and manner that such copyright and other proprietary notices are included on the Service. Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of any Service components without the prior written permission of Donoma. Customer agrees that all aspects of the Service and associated documentation, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Donoma. Customer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Donoma. Customer shall implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Service and Documentation shall remain solely with Donoma.

Limited Warranty.

If Customer obtained the Service directly from Donoma or via an authorized Donoma supplier, then Donoma warrants that during the Warranty Period (as defined below), the Service will substantially conform to its published specifications, if any. The “Warranty Period” means a period beginning on the date of Customer’s Service begins processing applicable data and ending on the later of (a) thirty (30) days from the date Service began processing applicable data, or (b) the end of the minimum period required by the law of the applicable jurisdiction. The limited warranties extend only to Customer as the original customer. Customer’s sole and exclusive remedy and the entire liability of Donoma and its suppliers under these limited warranties will be, at Donoma’s option, repair of the Service or refund of applicable fees for the Licensed Software if reported to Donoma or its designee. Except as expressly granted in this Agreement, the Service is provided AS IS. Donoma does not warrant that the Service is error-free or that Customer will be able to operate the Service without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Donoma does not warrant that the Service or any equipment, system or network on which the Service is used will be free of vulnerability to intrusion or attack. This warranty does not apply if the Service (a) is licensed for beta testing, evaluation, or demonstration purposes for which Donoma does not receive a subscription fee, (b) has been altered, except by Donoma, (c) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Donoma, (d) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (e) is used in ultra-hazardous activities.

Warranty Exclusions.

OTHER THAN THE EXPRESS WARRANTY SET FORTH ELSEWHERE IN THIS AGREEMENT, DONOMA DOES NOT MAKE ANY, AND DISCLAIMS ALL, WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, QUIET ENJOYMENT AND NONINFRINGEMENT. NEITHER DONOMA, NOR ITS AFFILIATES OR ANY OF ITS SUPPLIERS, EMPLOYEES OR AGENTS WARRANT CUSTOMER’S USAGE OF SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.  DONOMA MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF ITSELF WITH RESPECT TO THIRD-PARTY SOFTWARE OR EQUIPMENT AND EXPRESSLY EXCLUDES ANY AND ALL LIABILITY ARISING FROM OR RELATING TO A THIRD-PARTY’S SOFTWARE AND/OR EQUIPMENT.

Exclusive Remedy and Limitation of Liability.

IN NO INSTANCE SHALL DONOMA BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES, WHETHER ARISING FROM TORT OR CONTRACT, INCLUDING INTERRUPTION OF USAGE, LOSS OF DATA, REVENUE OR PROFITS, OR ANY OTHER INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE TO FURNISH OR THE DEGRADATION OR INTERRUPTION OF THE USE OF THE SERVICE, HOWEVER CAUSED OR BASED ON ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF DONOMA HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT MAY ANY ACTION BE BROUGHT AGAINST DONOMA ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES, DETERMINED WITHOUT REGARD TO WHEN DONOMA SHALL HAVE LEARNED OF THE DEFECT, INJURY OR LOSS. DONOMA SHALL NOT IN ANY EVENT BE LIABLE FOR MORE THAN THE AMOUNT PAID (IF ANY) BY CUSTOMER TO DONOMA FOR THE SERVICE UNDER THIS AGREEMENT (WHETHER SUCH LIABILITY ARISES FROM ANY PROVISION OF THIS AGREEMENT, BREACH OF WARRANTY, BREACH OF THIS AGREEMENT, INDEMNIFICATION OR OTHERWISE, AND WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY). BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Indemnification.

(a) Subject to the limitations set forth above regarding warranty, Donoma agrees to defend, indemnify, and hold Customer harmless against any third-party claims for loss, damage, liability, or expense, including but not limited to reasonable attorneys’ fees (each a “Claim”) based on or related to allegations that the Service infringes any U.S. patent or copyright or misappropriates any trade secret of any third party. Donoma will have no obligation under Part (a) of this Paragraph as to any Claim unless: (i) Customer provides Donoma with prompt, written notice of any such Claim; (ii) Customer provides Donoma and/or Donoma’s designated suppliers that have rights in the Service with sole control of the defense and settlement of any such Claim; and (iii) Customer provides Donoma with all reasonable assistance in the defense and settlement of any such Claim, at Donoma’s sole expense. If Customer’s use of the Service under the terms of this Agreement is, or in Donoma’s opinion is likely to be, enjoined due to the type of claim specified in this Paragraph, then Donoma shall at its sole option and expense either: (A) procure for Customer the right to continue using such Service under the terms of this Agreement; (B) replace or modify such Service so that it is noninfringing; or (C) if options (A) and (B) above cannot be accomplished by commercially reasonable means despite Donoma’s reasonable efforts, then Donoma may terminate this Agreement. Donoma will have no obligation under this Paragraph with respect to any Claim to the extent it arises from: (1) any unauthorized modifications or enhancements to the Service; (2) use of the Service in combination with other products, Services, programs, data or equipment except as expressly permitted; or (3) use of an allegedly infringing version of the Service, if the claim could be avoided by the use of a different version of the Service made available to Customer by Donoma. THIS PARAGRAPH SETS FORTH DONOMA’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT OR OTHER PROPRIETARY RIGHT.

(b) Customer hereby releases Donoma’s officers, directors, employees, members, managers, insurers, agents and representatives (collectively, “Donoma Group”) from and against, and Customer hereby waives, any claim, demand, right or cause of action of whatever kind or nature that Customer has or may have against Donoma Group, and Customer agrees to indemnify and hold harmless Donoma and Donoma Group from such claim, demand, right or cause of action, whether for injury to property or persons, arising in connection with or caused by any acts or omissions of Customer, including but not limited to any action taken by Customer in reliance upon or related to the Service.

Relationship of Parties.

Donoma is an independent contractor and nothing contained in this Agreement shall be construed to constitute either party as a partner, joint venturer, co-owner, employee, or agent of the other party, and neither party shall hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both Donoma and Customer that each shall remain an independent contractor responsible for its own actions.

Assignment.

Customer shall not assign, transfer or otherwise dispose of this Agreement in whole or in part to any individual, corporation or other entity without written notification to Donoma.

Term and Termination.

This Agreement is effective until use of the Service ceases. In the case of an Evaluation License, this Agreement is deemed to be terminated at the end of the permitted evaluation period. Customer’s rights under this Agreement will terminate immediately without notice from Donoma if Customer fails to comply with any provision of this Agreement. Upon termination, Customer must destroy and delete any copies of Service Software in its possession or control. Either party may terminate this Agreement if the other party commits a material breach of this Agreement and does not cure such breach within thirty (30) days after receipt of written notice given by the other party. Upon termination of this Agreement pursuant to this Agreement, all further rights and obligations of the parties shall cease, except that the parties shall not be relieved of (a) their respective obligations to pay any moneys due or which become due as of or subsequent to the date of termination, and (b) any other respective rights and obligations under Paragraphs herein entitled Patent and Copyright, Prohibited Uses, Nondisclosure, Limited Warranty, Warranty Exclusions, Exclusive Remedy and Limitation of Liability, Indemnification, Term and Termination, Applicable Law, Notices, and Export Control.

Notifications.

Notifications should be addressed to:
Donoma Software
1750 Kraft Dr, Suite 1200
Blacksburg, VA 24060
Attn: Legal & Operations

Force Majeure.

If the performance of any obligation (other than payment and confidentiality obligations) under this Agreement is prevented, restricted or interfered with by reason of war, revolution, civil commotion, acts of public enemies, blockade, embargo, strikes, outage of the Internet, weather, law, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, whether similar or dissimilar to those referred to in this Paragraph, which is beyond the reasonable control of the party affected, then the party so affected shall, upon giving prior written notice to the other party, be excused from such performance to the extent of such prevention, restriction, or interference, provided that the party so affected shall use reasonable commercial efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.

Applicable Law.

TO THE FULLEST EXTENT PERMISSIBLE, THE PARTIES EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY THE COMMON LAW OF VIRGINIA RELATING TO WRITTEN AGREEMENTS AND VIRGINIA STATUTES OTHER THAN UCITA, WHICH MAY APPLY. In addition, this Agreement shall be deemed to have been made in, and shall be construed under, and any claim or controversy relating in any way to this Agreement shall be governed and interpreted exclusively in accordance with, the laws of the Commonwealth of Virginia and the United States, expressly disclaiming the United Nations Convention on Contracts for the International Sale of Goods and Services. Any mediation in connection with this Agreement shall be conducted in Roanoke, Virginia, United States of America. In addition, Donoma and Customer acknowledge and agree that the federal and state courts located in the City of Roanoke, Virginia, shall have exclusive jurisdiction in any action or proceedings with respect to this Agreement.  The parties agree that either of such forums is mutually convenient and bears a reasonable relationship to this Agreement, and the parties waive objection to any venue laid therein.  The parties irrevocably submit to the jurisdiction of such courts for the purpose of any suit, action or other proceeding arising or related to this Agreement.

Severability.

If any provision of this Agreement or the application thereof to any party or circumstances shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the parties shall use their best efforts to replace the invalid or unenforceable provisions by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

Waiver of Compliance.

Any failure by Donoma to enforce at any time any term or condition under this Agreement shall not be considered a waiver of its right to enforce at a later time each and every item and condition of this Agreement.

Export Control.

The Service, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export and import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Service. Customer will indemnify, if requested, Donoma for any failure to comply with this Paragraph.

Notice to Government End Users.

The Service is a “Commercial Item,” as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Licensor is Donoma, Inc., 1750 Kraft Dr., Suite 1200 Blacksburg, Virginia 24060.

Attorney Fees.

If Customer defaults in the performance of any of the terms, covenants, agreements or conditions contained in this Agreement, and Donoma places the enforcement of this Agreement, or any part thereof, in the hands of an attorney or files suit upon the same, Customer agrees to pay Donoma’s reasonable attorneys’ fees and costs.

Waiver of Trial by Jury.

ANY COURT PROCEEDINGS COMMENCED BY OR AGAINST EITHER PARTY SHALL BE RESOLVED BY A COURT WITHOUT A JURY, AND EACH PARTY WAIVES ITS RIGHT TO A JURY AS TO ANY DISPUTE OR CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT, WHETHER FOR BREACH OR ENFORCEMENT OF CONTRACT, TORT OR OTHERWISE.

Complete Agreement.

THIS AGREEMENT COMPLETELY AND EXCLUSIVELY STATES THE AGREEMENT OF THE PARTIES REGARDING ITS SUBJECT MATTER. IT SUPERSEDES, AND ITS TERMS AND CONDITIONS GOVERN, ALL PRIOR PROPOSALS, AGREEMENTS, OR OTHER COMMUNICATIONS BETWEEN THE PARTIES, ORAL OR WRITTEN, REGARDING SUCH SUBJECT MATTER. ANY PROVISION OF A PURCHASE ORDER PURPORTING TO SUPPLEMENT OR VARY THE PROVISIONS OF THIS AGREEMENT SHALL BE VOID. DONOMA AND CUSTOMER ACKNOWLEDGE HAVING READ THIS ENTIRE AGREEMENT AND AGREE TO BE BOUND BY IT.

Donoma Software License Agreement

DONOMA UNIFY®, DONOMA MESSAGE VAULT™, DONOMA STONESCRIBE™, DONOMA MEDIASCRIBE ™, DONOMA ONEVIEW™
Last updated: April 29, 2019

Terms and Conditions

PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING DONOMA SOFTWARE® (“DONOMA ” or “Licensor”) SOFTWARE OR DONOMA – SUPPLIED SOFTWARE. BY DOWNLOADING , INSTALLING, OR USING THE LICENSED SOFTWARE, EVEN FOR REVIEW AND CONSIDERATION, OR USING THE EQUIPMENT THAT CONTAINS THIS SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN (A) DO NOT DOWNLOAD, INSTALL OR USE THE LICENSED SOFTWARE, AND (B) YOU MAY RETURN THE LICENSED SOFTWARE AND OBTAIN A REFUND OF ANY AMOUNTS PAID. YOUR RIGHT TO REJECT THE TERMS OF THIS AGREEMENT AND RETURN THE LICENSED SOFTWARE EXPIRES ON THE EARLIER OF THIRTY (30) DAYS AFTER PURCHASE FROM DONOMA OR AN AUTHORIZED DONOMA SUPPLIER, OR THIRTY (30) DAYS AFTER THE DATE THIS INFORMATION HAS BEEN PROVIDED TO YOU, AND APPLIES ONLY IF YOU ARE THE ORIGINAL PURCHASER OR EVALUATOR OF THE SOFTWARE.

Licensed Software.

“Licensed Software” means, as applicable to Customer, and of the following: the Voicemail – Email Synchronization Program in object code format designed by Donoma to synchronize IP-based Unified Communication (UC) systems with supported email systems, the Voicemail Archiving & Records Management Program in object code format designed by Donoma to archive the messages from the designated IP-based UC system, the Voice/Video Call Archiving & Records Management Program in object code format designed by Donoma to archive the messages from the designated IP-based UC system,  the Text/EML Communications Archiving & Records Management Program in object code format designed by Donoma to archive text-based message traffic from designated systems and/or the Call Detail Recording Program in object code format designed by Donoma to gather and report on call data from the designated IP-based UC system including any updates, patches or modifications (but excluding any new versions) that Donoma, at its sole discretion, makes available to Customers of the  program(s) constituting the Licensed Software  (such programs referred to herein individually and collectively as, the “Licensed Software”).  Customer has sole responsibility for ensuring that it has obtained all appropriate or necessary third party licenses for related or interactive hardware and software. “Documentation” means any copy, version or translation, in whole or in part, of the end user documentation for Licensed Software, whether in printed manual or on-line format.

License Grants.

Subject to the provisions of this Agreement and timely payment of any and all fees due to Donoma, Donoma hereby grants to you (“you” or “Customer”) a nonexclusive, nontransferable, limited use license, a perpetual purchase license, without the right to sublicense, to (a) reproduce and use up to the number of permitted copies of Licensed Software, and (b) reproduce and use copies of the Documentation, solely in connection with Customer’s exercise of its license grant, in a number equal to or less than the number of system users (“users or devices”) of the Licensed Software. Customer shall use the Licensed Software only for its own internal business purposes and make it available for use only by its authorized personnel. Donoma reserves all rights not expressly granted in this Agreement.

In the event Donoma does not charge a license fee for evaluation of software, usage after the permitted evaluation period without either paying the fee or receiving express written permission from Donoma is strictly prohibited. If Donoma is required to pay any sales, use, excise or other taxes (whether federal, state or local, but excepting our income taxes) imposed with respect to providing Customer Licensed Software, such taxes will be billed to and paid by Customer.

Evaluation License.

This Agreement shall apply generally to parties evaluating the Licensed Software during the permitted evaluation period (“Evaluation License”), the Evaluation License shall not include, and Donoma specifically disclaims, any warranties of any kind by Donoma, or any rights of Customer to indemnification. In addition, Donoma is not liable in any way for losses or damages of any kind whatsoever under this Agreement, including but not limited to direct, special, incidental, indirect, or consequential losses or damages, even if advised of the possibility of such potential loss or damage, to a Customer under an Evaluation License. Customer also acknowledges that Licensed Software under an Evaluation License will operate only for the permitted evaluation period and after that period will cease to operate without further action on the part of Donoma.

Maintenance and Support for Licensed Software.

Customers running Licensed Software must purchase Maintenance & Support by purchasing the desired term and paying the required fee in order to receive Updates and ongoing Maintenance and Support. Provided that Customer is in compliance with this Agreement and Donoma has received all fees due, Maintenance & Support is provided as described below:

Licensed Software Updates.

Updates designed by Donoma to correct or improve the performance of Licensed Software (“Updates”) may be provided, solely at Donoma’s discretion, provided that Customer’s Maintenance & Support contract is current and  all applicable Maintenance & Support fees have been paid to Donoma. Updates exclude, any modules designated by us, in our sole discretion, as new products.

Update Installation support for Licensed Software is included with Maintenance & Support, but if the Customer prefers to perform the installation, upon request, Donoma will provide instructions on how to access and install each Update. Customers may be required to license new third-party applications programs or operating systems programs, or update existing versions thereof or computer equipment, at their expense, in order to install or utilize an Update. Acceptance of any Update is hereby deemed subject to the terms and conditions contained in this Agreement.

Within thirty (30) days of the notice of availability of an Update, Customers with on-premise installations shall incorporate the Update into Customer’s services and discontinue use of the previous version. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY SUCH UPDATES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH UPDATE, ALREADY HOLDS A VALID LICENSE TO THE LICENSED SOFTWARE AND QUALIFIES FOR THE UPDATE.

Maintenance & Support.

All Licensed Software Maintenance & Support Customers, in addition to Updates listed above, will have access to remote support and application error monitoring as well as telephone support and online support for problems with the Licensed Software. Proactive monitoring of the Licensed Software is included, but if the Application Health Service is not allowed by a Customer, then proactive notification of issues will not occur. This support will be available only for Licensed Software. If in analyzing a particular question our support staff determines that the problem is caused by something other than the Licensed Software, support may be offered outside of the standard Maintenance & Support Program on a time and materials or contract basis.

Customer Responsibilities.

(a) Customers are responsible for maintaining all items received from Donoma and all interacting software and hardware, including but not limited to Licensed Software, IP-based UC system with supported email systems, instant messaging platform or other Donoma supported electronic records platforms, and any updates, patches or modifications, in a safe and stable environment that is physically protected and within a secure network environment. Customers are responsible for all standard maintenance for and licensing of the necessary software and hardware, including but not limited to data archival and backup, service packs, security patches and updates. Customers will license and install anti-virus software and periodically update virus definitions to assure that Licensed Software is protected from viruses that could be contracted from any source, including but not limited to the local network, the Internet, email, physical disk or data exchange.

(b) Customers are responsible for sufficient data connections and internet bandwidth for remote diagnostics, the intended operation of the Licensed Software and for managing all third-party vendor relationships in facilitating with Donoma the correction of a problem with the Licensed Software.

(c) Customers are responsible for maintaining a current, reliable and adequate backup system.

(d) For any occurrence requiring technical support, Customers will notify Donoma Support immediately using the telephone number or technical support email address provided below. Customer contacts that call or email Donoma for technical support matters shall be familiar with the Licensed Software covered by this Agreement in order that such technical support matters may be resolved expediently by Donoma.

Revisions.

Donoma may revise this Agreement by posting a new version at the URL below and provide written notice to Customer, provided no such revisions may materially degrade this Agreement’s required  performance.

License Agreement URL: https://www.donomasoftware.com/licenseagreement/

Problem Severity Definitions & Escalation Paths.

Donoma’s software defect tracking severity levels for support- does not include installations, upgrades or systems not directly controlled by Donoma including Customer’s network.

Severity Definition
1. Catastrophic

Diagnostic and response within eight (8) hours of problem report. Dedicated resources assigned.

Circumstances cause the entire system or solution to fail.
OR
Circumstances cause a major functional aspect of the product to fail.
AND
There is no reasonable workaround to prevent the failure occurrence.
2. Severe

Diagnostic and response within two (2) days of problem report.

An important but not critical product function fails.
Product operates substantially below design specification.
Behavior requires other devices, systems or critical applications on the network to make unreasonable accommodations.
There is no reasonable workaround to prevent the failure occurrence.
3. Moderate

Diagnostic and response within two (2) weeks of problem report.

A minor product feature does not work.
A feature fails under unusual or rare circumstances.
Product operates below design specification..
A serious error exists in the documentation.
A failure with a low impact work around
4. Minor

Diagnostic and response within one (1) month of problem report.

A failure that is self correcting within the product that has minimal operational impact.
A minor feature fails under unusual or rare circumstances.
A minor error exists in the documentation.
5. Cosmetic Problem with the product or that does not impact the operation of the product but has an aesthetic value.
6. Enhancement A request for new functionality or enhancement to an existing feature.
Elapsed Time Severity 1 Severity 2 Severity 3 Severity 4
 

1-Hour

Level 1 Support

 

 

4-Hour

Level 2 Support Level 1 Support
 

24-Hour

Level 3 Support

Sales Management

Level 2 Support Level 1 Support Level 1 Support
48-Hour President (CEO) Level 3 Support Level 2 Support
72-Hour Sales Management
96-Hour President (CEO) Level 3 Support Level 2 and 3 Support

“Response” refers to an e-mail, telephone, or in-person acknowledgment of a technical support request.

Support Level Definitions.

Level 1 Support.  Ability to provide general product information, configuration support, collection of relevant technical problem identification information, filter non-technical problems from technical problems

Level 2 Support. All Level 1 support capabilities, plus: Ability to support problem isolation and product specification defect determination, Lab simulation and interoperability testing, Action plan definition, Ability to analyze traces of where the error occurred

Level 3 Support.  Level 3 Support includes fixing Software bugs or generating work-arounds, including any security vulnerabilities identified by Donoma or any third party , Troubleshooting bugs that Level 2 Support is unable to bring to resolution

Support Access.

To request support:

Support phone: (International) +1(540) 443-3575
Support phone (US & Canada) (866)-265-2770
Support email: support@donomasoftware.com

Support Schedule.

Maintenance & Support Customers will have access to support from 8:00 a.m. to 8:00 p.m. U.S. Eastern Time, (Hours) Monday through Friday each week, except Donoma observed holidays. However, any level of support may not be available due to matters out of our control.  Support will not be available to anyone on the following Donoma observed holidays:

  • New Year’s Day (January 1)
  • Memorial Day (last Monday in May)
  • Independence Day (July 4)
  • Labor Day (first Monday in September)
  • Thanksgiving and the following Friday (fourth Thursday and following Friday in November)
  • Christmas Eve and Christmas Day (December 24 and 25)

Engineering work required outside the stated business hours will be scheduled on a case-by-case basis to accommodate customers’ time zones.

Patent and Copyright.

The Licensed Software is owned by Donoma and is protected by U.S. patent and copyright laws and applicable international treaties and/or conventions. The Licensed Software, and any and all modifications, improvements and derivative works, shall remain the exclusive property of Donoma, and Customer shall have no right, title or interest in them whatsoever.

Consent to Use of Data.

Customer agrees that Donoma may collect and use technical data and related information—including but not limited to technical information about connected devices, system and Donoma application software—that is gathered periodically to facilitate the provision of software updates, product support, and other services to Customer (if any) related to the Licensed Software. Donoma may use this information, as long as it is in a form that does not include personally identifiable data, to improve its products or to provide services or technologies to Customer.

Prohibited Uses.

Without the prior express written consent of Donoma, Customer agrees that it shall not and shall not allow any third party (by license agreement or otherwise) to (a) take any action that would cause the loss or abandonment of Donoma’s proprietary rights in the Licensed Software (collectively “Licensed Software”) ; (b) transfer, assign, resell, distribute, publicly display, transfer, rent, lease, lend, copy or otherwise reproduce, modify, translate, enhance, time-share, license, sublicense, electronically transmit or prepare derivative works of the Licensed Software, in whole or in part; (c) make error corrections to or otherwise modify or adapt the Licensed Software or create derivative works based upon the Licensed Software, or permit third parties to do the same; (d) disassemble, decompile, decrypt or reverse engineer in any way any of the Licensed Software; (e) otherwise use in any way the Licensed Software in any manner not expressly authorized by this Agreement; or (f) remove, alter or otherwise obscure any proprietary rights notices appearing in the Licensed Software. Customer agrees to use its best efforts and take all reasonable steps to safeguard the Licensed Software to ensure that no unauthorized person shall have access to the Licensed Software and that no unauthorized copy, publication, disclosure or distribution, in whole or in part, in any form shall be made. Customer acknowledges that the Licensed Software contains valuable, confidential information and trade secrets and that unauthorized use and/or copying are harmful to Donoma. Customer grants to Donoma and its agents the right to examine Customer’s business, books, records and accounts during Customer’s normal business hours to verify compliance with this Agreement. In the event such audit discloses non-compliance with this Agreement, Customer shall promptly pay to Donoma the appropriate licensee fees and, at the discretion of Donoma, reimburse Donoma for the costs of the examination.

Nondisclosure.

During the term of this Agreement, Customer may be exposed to certain information concerning Donoma’s services, software products, including the Licensed Software, and proposed new software products that are the confidential and proprietary information of Donoma and not generally known to the public (“Confidential Information”). Customer agrees that during and after the term of this Agreement, it will not use or disclose to any third party any Confidential Information without the prior written consent of Donoma.

Proprietary Notices and Protection of Information.

Customer agrees to maintain and reproduce all patent, copyright and other proprietary notices on all copies, in any form, of the Licensed Software in the same form and manner that such copyright and other proprietary notices are included on the Licensed Software. Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates or any Licensed Software without the prior written permission of Donoma. Customer agrees that all aspects of the Licensed Software and associated documentation, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Donoma. Customer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of Donoma. Customer shall implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Licensed Software and Documentation shall remain solely with Donoma.

Limited Warranty.

If Customer obtained the Licensed Software directly from Donoma or via an authorized Donoma supplier, then Donoma warrants that during the Warranty Period (as defined below), the Licensed Software will substantially conform to its published specifications, if any. The “Warranty Period” means a period beginning on the date of Customer’s Licensed Software is downloaded and ending on the later of (a) thirty (30) days from the date Licensed Software began processing applicable data, or (b) the end of the minimum period required by the law of the applicable jurisdiction. The limited warranties extend only to Customer as the original customer. Customer’s sole and exclusive remedy and the entire liability of Donoma and its suppliers under these limited warranties will be, at Donoma’s option, repair or replacement of the Licensed Software or refund of applicable fees for the Licensed Software if reported to Donoma or its designee. Except as expressly granted in this Agreement, the Licensed Software is provided AS IS. Donoma does not warrant that the Licensed Software is error-free or that Customer will be able to operate the Licensed Software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Donoma does not warrant that the Licensed Software or any equipment, system or network on which the Licensed Software is used will be free of vulnerability to intrusion or attack. This warranty does not apply if the Licensed Software (a) is licensed for beta testing, evaluation, or demonstration purposes for which Donoma does not receive a license fee, (b) has been altered, except by Donoma, (c) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Donoma, (d) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (e) is used in ultra-hazardous activities. Customer must purchase Donoma Maintenance and Support, as  defined above.

Warranty Exclusions.

OTHER THAN THE EXPRESS WARRANTY SET FORTH ELSEWHERE IN THIS AGREEMENT, DONOMA DOES NOT MAKE ANY, AND DISCLAIMS ALL, WARRANTIES, EXPRESS OR IMPLIED, OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE, QUIET ENJOYMENT AND NONINFRINGEMENT. NEITHER DONOMA, NOR ITS AFFILIATES OR ANY OF ITS SUPPLIERS, EMPLOYEES OR AGENTS WARRANT CUSTOMER’S USAGE OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.  DONOMA MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF ITSELF WITH RESPECT TO THIRD-PARTY SOFTWARE OR EQUIPMENT AND EXPRESSLY EXCLUDES ANY AND ALL LIABILITY ARISING FROM OR RELATING TO A THIRD-PARTY’S SOFTWARE AND/OR EQUIPMENT.

Exclusive Remedy and Limitation of Liability.

IN NO INSTANCE SHALL DONOMA BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES, WHETHER ARISING FROM TORT OR CONTRACT, INCLUDING INTERRUPTION OF USAGE, LOSS OF DATA, REVENUE OR PROFITS, OR ANY OTHER INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE TO FURNISH OR THE DEGRADATION OR INTERRUPTION OF THE USE OF THE SOFTWARE, HOWEVER CAUSED OR BASED ON ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF DONOMA HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT MAY ANY ACTION BE BROUGHT AGAINST DONOMA ARISING OUT OF THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES, DETERMINED WITHOUT REGARD TO WHEN DONOMA SHALL HAVE LEARNED OF THE DEFECT, INJURY OR LOSS. DONOMA SHALL NOT IN ANY EVENT BE LIABLE FOR MORE THAN THE AMOUNT PAID (IF ANY) BY CUSTOMER TO DONOMA FOR THE LICENSE OF THE LICENSED SOFTWARE UNDER THIS AGREEMENT (WHETHER SUCH LIABILITY ARISES FROM ANY PROVISION OF THIS AGREEMENT, BREACH OF WARRANTY, BREACH OF THIS AGREEMENT, INDEMNIFICATION OR OTHERWISE, AND WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY). BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Indemnification.

(a) Subject to the limitations set forth above regarding warranty, Donoma agrees to defend, indemnify, and hold Customer harmless against any third-party claims for loss, damage, liability, or expense, including but not limited to reasonable attorneys’ fees (each a “Claim”) based on or related to allegations that the Licensed Software infringes any U.S. patent or copyright or misappropriates any trade secret of any third party. Donoma will have no obligation under Part (a) of this Paragraph as to any Claim unless: (i) Customer provides Donoma with prompt, written notice of any such Claim; (ii) Customer provides Donoma and/or Donoma’s designated suppliers that have rights in the Licensed Software with sole control of the defense and settlement of any such Claim; and (iii) Customer provides Donoma with all reasonable assistance in the defense and settlement of any such Claim, at Donoma’s sole expense. If Customer’s use of the Licensed Software under the terms of this Agreement is, or in Donoma’s opinion is likely to be, enjoined due to the type of claim specified in this Paragraph, then Donoma shall at its sole option and expense either: (A) procure for Customer the right to continue using such Licensed Software under the terms of this Agreement; (B) replace or modify such Licensed Software so that it is noninfringing; or (C) if options (A) and (B) above cannot be accomplished by commercially reasonable means despite Donoma’s reasonable efforts, then Donoma may terminate this Agreement. Donoma will have no obligation under this Paragraph with respect to any Claim to the extent it arises from: (1) any unauthorized modifications or enhancements to the Licensed Software; (2) use of the Licensed Software in combination with other products, programs, data or equipment except as expressly permitted; or (3) use of an allegedly infringing version of the Licensed Software, if the claim could be avoided by the use of a different version of the Licensed Software made available to Customer by Donoma. THIS PARAGRAPH SETS FORTH DONOMA’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT OR OTHER PROPRIETARY RIGHT.

(b) Customer hereby releases Donoma’s officers, directors, employees, members, managers, insurers, agents and representatives (collectively, “Donoma Group”) from and against, and Customer hereby waives, any claim, demand, right or cause of action of whatever kind or nature that Customer has or may have against Donoma Group, and Customer agrees to indemnify and hold harmless Donoma and Donoma Group from such claim, demand, right or cause of action, whether for injury to property or persons, arising in connection with or caused by any acts or omissions of Customer, including but not limited to any action taken by Customer in reliance upon or related to the Licensed Software.

Relationship of Parties.

Donoma is an independent contractor and nothing contained in this Agreement shall be construed to constitute either party as a partner, joint venturer, co-owner, employee, or agent of the other party, and neither party shall hold itself out as such. Neither party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other party, it being intended by both Donoma and Customer that each shall remain an independent contractor responsible for its own actions.

Assignment.

Customer shall not assign, transfer or otherwise dispose of this Agreement in whole or in part to any individual, corporation or other entity without the prior written notification to Donoma.

Term and Termination.

This Agreement is effective until use of Licensed Software ceases. In the case of an Evaluation License, this Agreement is deemed to be terminated at the end of the permitted evaluation period. Customer’s license rights under this Agreement will terminate immediately without notice from Donoma if Customer fails to comply with any provision of this Agreement. Upon termination, Customer must destroy and delete all copies of Licensed Software in its possession or control. Either party may terminate this Agreement if the other party commits a material breach of this Agreement and does not cure such breach within thirty (30) days after receipt of written notice given by the other party. Upon termination of this Agreement pursuant to this Agreement, all further rights and obligations of the parties shall cease, except that the parties shall not be relieved of (a) their respective obligations to pay any moneys due or which become due as of or subsequent to the date of termination, and (b) any other respective rights and obligations under Paragraphs herein entitled Patent and Copyright, Prohibited Uses, Nondisclosure, Limited Warranty, Warranty Exclusions, Exclusive Remedy and Limitation of Liability, Indemnification, Term and Termination, Applicable Law, Notices, and Export Control.

Notifications:

Notifications should be addressed to:
Donoma Software
1750 Kraft Dr, Suite 1200
Blacksburg, VA 24060
Attn: Legal & Operations

Force Majeure.

If the performance of any obligation (other than payment and confidentiality obligations) under this Agreement is prevented, restricted or interfered with by reason of war, revolution, civil commotion, acts of public enemies, blockade, embargo, strikes, outage of the Internet, weather, law, order, proclamation, regulation, ordinance, demand, or requirement having a legal effect of any government or any judicial authority or representative of any such government, or any other act whatsoever, whether similar or dissimilar to those referred to in this Paragraph, which is beyond the reasonable control of the party affected, then the party so affected shall, upon giving prior written notice to the other party, be excused from such performance to the extent of such prevention, restriction, or interference, provided that the party so affected shall use reasonable commercial efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.

Applicable Law.

TO THE FULLEST EXTENT PERMISSIBLE, THE PARTIES EXPRESSLY AGREE THAT THIS AGREEMENT SHALL BE GOVERNED BY THE COMMON LAW OF VIRGINIA RELATING TO WRITTEN AGREEMENTS AND VIRGINIA STATUTES OTHER THAN UCITA, WHICH MAY APPLY. In addition, this Agreement shall be deemed to have been made in, and shall be construed under, and any claim or controversy relating in any way to this Agreement shall be governed and interpreted exclusively in accordance with, the laws of the Commonwealth of Virginia and the United States, expressly disclaiming the United Nations Convention on Contracts for the International Sale of Goods. Any mediation in connection with this Agreement shall be conducted in Roanoke, Virginia, United States of America. In addition, Donoma and Customer acknowledge and agree that the federal and state courts located in the City of Roanoke, Virginia, shall have exclusive jurisdiction in any action or proceedings with respect to this Agreement.  The parties agree that either of such forums is mutually convenient and bears a reasonable relationship to this Agreement, and the parties waive objection to any venue laid therein.  The parties irrevocably submit to the jurisdiction of such courts for the purpose of any suit, action or other proceeding arising or related to this Agreement.

Severability.

If any provision of this Agreement or the application thereof to any party or circumstances shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the parties shall use their best efforts to replace the invalid or unenforceable provisions by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.

Waiver of Compliance.

Any failure by Donoma to enforce at any time any term or condition under this Agreement shall not be considered a waiver of its right to enforce at a later time each and every item and condition of this Agreement.

Export Control.

The Licensed Software, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export and import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Licensed Software. Customer will indemnify, if requested, Donoma for any failure to comply with this Paragraph.

Notice to Government End Users.

The Licensed Software is a “Commercial Item,” as that term is defined in 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Licensor is Donoma, Inc., 1750 Kraft Dr., Suite 1200 Blacksburg, Virginia 24060.

Attorney Fees.

If Customer defaults in the performance of any of the terms, covenants, agreements or conditions contained in this Agreement, and Donoma places the enforcement of this Agreement, or any part thereof, in the hands of an attorney or files suit upon the same, Customer agrees to pay Donoma’s reasonable attorneys’ fees and costs.

Waiver of Trial by Jury.

ANY COURT PROCEEDINGS COMMENCED BY OR AGAINST EITHER PARTY SHALL BE RESOLVED BY A COURT WITHOUT A JURY, AND EACH PARTY WAIVES ITS RIGHT TO A JURY AS TO ANY DISPUTE OR CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT, WHETHER FOR BREACH OR ENFORCEMENT OF CONTRACT, TORT OR OTHERWISE.

Complete Agreement.

THIS AGREEMENT COMPLETELY AND EXCLUSIVELY STATES THE AGREEMENT OF THE PARTIES REGARDING ITS SUBJECT MATTER. IT SUPERSEDES, AND ITS TERMS AND CONDITIONS GOVERN, ALL PRIOR PROPOSALS, AGREEMENTS, OR OTHER COMMUNICATIONS BETWEEN THE PARTIES, ORAL OR WRITTEN, REGARDING SUCH SUBJECT MATTER. ANY PROVISION OF A PURCHASE ORDER PURPORTING TO SUPPLEMENT OR VARY THE PROVISIONS OF THIS AGREEMENT SHALL BE VOID. DONOMA AND CUSTOMER ACKNOWLEDGE HAVING READ THIS ENTIRE AGREEMENT AND AGREE TO BE BOUND BY IT.

DONOMA SOFTWARE®
Donoma, Inc., 1750 Kraft Dr. Suite 1200, Blacksburg, Virginia 24060 USA
Copyright © 2004-2019 Donoma, Inc. All rights reserved.