Donoma OneVault Platform
End User Services Agreement
This Donoma Services Agreement (the “Agreement”) constitutes a legal, binding agreement between Donoma, Inc. (“Donoma”) and the client identified in the order form (“Client”) for certain archiving or other Services (as defined in Section 1.1) and states the terms upon which Donoma provides such Services to Client. The “Effective Date” of the Agreement shall be the date upon which Client first executes the order form for Services (“Order Form”). By executing an Order Form or placing an order for additional Services, as described in Section 1.2, Client agrees to the terms of this Agreement; provided that, to the extent of any conflicting term, the Order Form shall supersede this Agreement solely with respect to the conflicting term.
- SERVICES
1.1 Donoma Services. Subject to Client’s compliance with this Agreement, Donoma will provide, and hereby grants Client the limited, non-exclusive, non-sublicensable right to access and use Donoma’s Software as a Service products specified on the Order Form, and Donoma will provide any applicable professional services indicated on an Order Form (collectively, the “Services”). Donoma may modify the Services and the Service Descriptions from time to time, provided that such modifications do not materially adversely affect the Services. “Representative” means, with respect to Client, any entity which (a) Client purchases Services for, for use by such entity; or (b) purchases Services under an Order Form referencing Client’s Agreement; and, in the case of (a) or (b), where such entity either (i) controls Client; (ii) is controlled by Client; or (iii) is under common control with Client. Client may provide access to, or use of, the Services to Representative or Representative may purchase Services under the terms of this Agreement by executing a separate Order Form referencing this Agreement. Order Forms entered into by and between Donoma and a Representative shall be subject to the terms and conditions of this Agreement, and the terms of this Agreement shall be incorporated therein. As used in this Agreement, the term “Client” shall include Representative.
1.2 Additional Services. Following the execution of the Order Form, Client may order additional Services by (a) placing an order for additional Services via Order Form; or (b) by executing an Order Form for such Services. Additional Services will be included in the definition of Services upon Donoma’s acceptance of the Order Form, and such Services are subject to the terms of this Agreement.
1.3 Professional Services. If purchased pursuant to an Order Form, Donoma will provide Client with the professional services specified on the Order Form, according to the terms and conditions of a professional services addendum (“Professional Services”).
1.4 Service Activation. Following execution of the Order Form, or acceptance of an online order for additional Services, Donoma shall initiate activation of the Services by providing Client with access to an account within the applicable Services (“Activation Date”). Client is responsible for (a) providing Donoma with any historical data to be archived in a format acceptable to Donoma; and (b) configuring Client systems to transmit Client Data (as defined in Section 3.4) to Donoma.
1.5 Data Retention in Donoma Cloud. In circumstances where OneVault is provisioned inside Donoma’s private cloud, Donoma will host Client Data only for the Term of the Agreement, unless Client purchases third party extended data custodian services.
1.6 Support & Service Level Agreements. Donoma will provide the level of support applicable to the Services package purchased by Client. Client may initiate a support request via email to support@donomasoftware.com or scheduling a support session at https://www.Donomasoftware.com/support/.
1.7 Attestation Letter. If requested by Client, and required by regulations applicable to Client’s business, Donoma will provide Client with Donoma’s standard attestation letter.
1.8 Proof-of-Concept Services. Donoma may provide Client with a temporary account to one or more of the Services in a Proof-of-Concept (POC) if designated on the Order Form. The Services will be accessible for the period set forth in the Order Form, or if no period is stated, the period will be thirty (30) days from the Effective Date. During the POC, the Services are provided “AS IS” and without representation or warranty of any kind. Donoma is under no obligation to store or retain Client Data and will delete such data at the conclusion of the POC unless Client purchases the same Services as the POC Services. Donoma will not be responsible for any direct, indirect, consequential or any other damages resulting from Client’s access to or use of the POC Services.
- FEES FOR SERVICES
2.1 Payment of Fees. Client shall pay the fees for the Services as set forth in the Order Form (“Fees”). Fees may include One-Time Fees, Professional Service Fees, Subscription License Fees and/or any applicable cloud data overage Fees. One-Time Fees are one time service configuration fees or data import fees (“One-Time Fees”). Seat license and/or content archiving Fees are based on Client’s usage of the Service, more specifically described in Section 2.3 (“Subscription License Fees”). Subscription License Fees are not pro-rated. Professional Services Fees are the professional services which may be purchased by Client (“Professional Service Fees”). All Fees shall be invoiced according to the terms of the Order Form and are due and payable within thirty (30) days from the date of invoice unless otherwise specified on the Order Form. Client must notify Donoma within 30 days of the date of invoice in the event Client disputes any Fees. Invoices not disputed within 30 days from the date of invoice will be deemed accepted by Client. Donoma may charge a late fee of 1.5% per month on any Fees not paid when due. Donoma reserves the right to suspend Client’s access to the Services in the event Client fails to pay the Fees when due.
2.2 (Deliberately vacant)
2.3 Subscription License Fees. Subscription License Fees are based on usage metrics. For those services charged via the archived account per seat, a “Seat” means any user, device, email address, domain, or other usage metric indicated on the Order Form for which Donoma archives data via the Services. For data where Donoma charges by other metrics (such as size of the data set to be indexed and available for search) the measurement will be indicated on the Order Form. As Services are ordered by Client, Donoma grants Client the right to use the Services as set forth in the Order Form. The initial Order is the Client’s minimum commitment for that subscription term. Client shall pay for additional services if needed during the subscription period based on the then current rates. Client understands that any overage in the Services consumed will trigger an immediate invoice and agrees pay the associated Fees.
2.4 Professional Service Fees. Professional Services for one time custom or out of scope Services will be invoiced according to the Order Form and will be subject to the Donoma terms for Professional Services, available at https://www.donomasoftware.com/technical-services/
2.5 License Audits. From time-to-time Donoma may review Client’s account within the Services to validate Client’s usage of the Services for compliance with Sections 2.3. Additionally, Client agrees to provide Donoma with usage reports in the format Donoma may reasonably request. If Client’s use of a Services exceeds Client’s license for such Service, Client shall pay Donoma the Subscription License or data consumption Fees due for such usage for the months in which Client was not in compliance with Section 2.3.
2.6 Taxes. Fees do not included sales or use taxes, or similar taxes which may be assessed on the transaction. Client is responsible for all such taxes, fees, or charges.
- CLIENT’S USE OF THE SERVICES; INDEMNIFICATION
3.1 Client Account. Client must create at least one User account within the Services in the role of Administrator and at least one in the role of Compliance Officer. Client is responsible for (a) ensuring that Client’s account registration information is complete and accurate; and (b) the security and confidentiality of Client’s account credentials. Client shall designate at least one User who shall have administrative access to Client’s account, with access privileges as defined by their role, and the authority to place orders under Section 1.2 (the “Administrator”). The Administrator User is responsible for managing all technical aspects of the Services, including requesting changes or modifications to the Services, adding or removing users, additional data connections into OneVault, or adding or deleting authorized users with Administrator privileges. Client acknowledges and agrees that Donoma will only accept such requests from a Administrator User, a Compliance Officer User or a verified officer of Client’s organization. Donoma may, in its sole discretion, refuse to comply with any request if the identity of the person making any such request cannot be reasonably verified. The Services may only be used by Client’s authorized employees, agents, or contractors in the performance of their duties to Client. Client shall notify Donoma immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Client shall not permit Donoma competitors to access the Services for any reason. Client is solely responsible for all activity which occurs within Client’s account and for the actions of its employees, contractors, or agents, whether or not such person is or was acting within the scope of their employment, engagement or agency relationship. It is Client’s responsibility to notify Donoma immediately of changes to Client’s contact information, including the identity and email address of Client’s primary contact and Client’s address.
3.2 Acceptable Use Policy. Client shall comply with Donoma’s Acceptable Use Policy, incorporated by reference herein, available at https://www.donomasoftware.com/licenseagreement/acceptable-use. The Acceptable Use Policy may be updated from time to time by Donoma. Client is prohibited from, and shall not copy, modify, adapt, transmit, sell, distribute, or otherwise use the Services, in whole or in part, except as expressly permitted in this Agreement. Client is responsible for the data and content archived by, or provided to, Donoma via the Services and represents and warrants that such content shall not (a) infringe any third party right, including, without limitation, third party rights in patent, trademark, copyright, or trade secret; or (b) constitute a breach of any other right of a third party, including without limitation, any right under contract or tort theories. Notwithstanding the generality of the foregoing, Client represents that, with respect to any content Client directs Donoma to archive, Client has all necessary rights or licenses to archive such content and that the archiving of associated data does not place Client or Donoma (as Client’s agent) in violation of any terms and conditions governing that application. Client shall abide by all applicable local, state, national or foreign laws, rules, regulations, or treaties in connection with Client’s use of the Services including, without limitation, those related to data privacy, communications, or the transmission and storage of technical or personal data.
3.3 Client Data Transmission. Client acknowledges and agrees that (a) it is Client’s sole responsibility to monitor Client Data to ensure that Client Data is properly transmitted to Donoma OneVault; (b) despite any monitoring services provided by Donoma, Client must notify Donoma of any delivery failures or outages of Client’s systems (or its service providers) which may affect the transmission of Client Data. Donoma is not responsible or liable for any update, upgrade, patch, maintenance, or other change which affects the transmission of Client Data to Donoma OneVault. It is Client’s responsibility to ensure that Donoma is notified of all email domains, or other electronic data to be archived.
3.4 License to Client Data. “Client Data” means the data of Client which is either (a) transmitted to Donoma by or on behalf of Client in connection with the provision of the Services; or (b) collected or received via the Services at the direction of Client. Client hereby grants Donoma the limited, non-exclusive right to access, copy, transmit, download, display, and reproduce Client Data as necessary to provide, support and improve the Services, or as otherwise authorized hereunder. Client represents and warrants that Client has all necessary rights in and to the Client Data to grant the foregoing license to Donoma. It is Client’s responsibility to obtain all necessary consents with respect to the transmission, collection, and storage of Client Data.
3.5 Client Indemnification. Client shall indemnify, defend, and hold harmless Donoma, its officers, directors, employees and agents, from and against all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees), arising from Client’s breach of any of Client’s obligations under this Section 3. Client’s obligation for indemnification shall be predicated upon (a) Donoma providing Client with prompt written notice upon becoming aware of any such claim; provided that, Client shall not be relieved of its obligation for indemnification as the result of Donoma’s failure to provide such notice unless Client is actually prejudiced in defending such a claim as a result of Donoma’s failure to provide notice; (b) if requested by Client, and at Client’s expense, Donoma reasonably cooperating with the defense of such claim; and (c) Donoma allowing Client sole and exclusive control over the defense and settlement of any such claim.
- INDEMNIFICATION
4.1 Donoma will defend Client and indemnify and hold Client harmless from third party claims arising out of a claim that the Services infringe any United States patent, trademark or copyright, provided that (a) Client provides Donoma with prompt written notice upon becoming aware of any such claim; (b) Client reasonably cooperates with Donoma in the defense of such claim; and (c) Donoma has sole and exclusive control over the defense and settlement of any such claim. Notwithstanding the foregoing, Donoma will have no liability of any kind to the extent any claim is based on or arises from: (i) custom functionality provided to Client based on Client’s specific requirements; (ii) any modification of the Services by Client or any third party; (iii) the combination of Services with any technology or other services, software or technology not provided by Donoma; or (iv) the failure of Client to use updated or modified versions of the Services made available by Donoma. If the Services are subject to a claim of infringement of the intellectual property rights of a third party, Donoma may, in its sole discretion, either (a) procure for Client the right to continue to use the Services; (b) modify the Services such that they are non-infringing; or (c) if in the reasonable opinion of Donoma, neither (a) or (b) are commercially feasible, then Donoma may upon thirty (30) days prior written notice to Client, terminate the applicable Service. Client hereby releases Donoma’s officers, directors, employees, members, managers, insurers, agents and representatives (collectively, “Donoma Group”) from and against, and Client hereby waives, any claim, demand, right or cause of action of whatever kind or nature that Client has or may have against Donoma Group, and Client 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 Client, including but not limited to any action taken by Client in reliance upon or related to the Service.
4.2 The indemnification obligation contained in this Section 4, shall be Client’s sole remedy, and Donoma’s sole obligation, with respect to claims of infringement.
- CONFIDENTIALITY
5.1 Confidential Information. “Confidential Information” means (a) the non-public business or technical information of either party, including but not limited to information relating to either party’s product plans, Clients, designs, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how;(b) any information designated by either party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; (c) the terms of this Agreement; or (d) Client Data. “Confidential Information” will not include information that: (i) is in, or enters, the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party knew prior to receiving such information from the disclosing party; or (iv) the receiving party develops independently without reference to the Confidential Information.
5.2 Confidentiality Obligations. Each party agrees: (a) that it will not disclose to any third party or use for its own benefit or the benefit of any third party, any Confidential Information disclosed to it by the other party except as expressly permitted in this Agreement; and (b) that it will take reasonable measures to maintain the confidentiality of Confidential Information of the other party in its possession or control. Either party may disclose Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to contest such order or requirement; or (ii) to the parties agents, representatives, subcontractors or service providers who have a need to know such information provided that such recipient is obligated to maintain the Confidential Information on a confidential basis in accordance with the confidentiality terms of this Agreement.
5.3 Remedies. Each party acknowledges and agrees that a breach of the obligations of this Section 5 by the other party will result in irreparable injury to the disclosing party for which there will be no adequate remedy at law, and the disclosing party shall be entitled to seek equitable relief, including injunction and specific performance, without any requirement to post a bond or other security, in the event of any breach or threatened breach or intended breach by recipient.
- INTELLECTUAL PROPERTY RIGHTS
As between Donoma and Client, all server hardware, software, and applications required to operate the Services in Donoma’s cloud environment, (if that deployment option is selected) and other associated technology or documentation, are the sole and exclusive property of Donoma. Except as expressly stated herein, nothing in this Agreement shall serve to transfer to Client any intellectual property right in or to the Services, Software, Donoma trademarks or other intellectual property. Donoma retains all right, title and interest in and to the Services, Software and the associated technology and documentation. As between Donoma and Client, Client Data is the sole and exclusive property of Client and, other than the limited license to Client Data granted in Section 3, nothing in this Agreement shall serve to transfer to Donoma any intellectual property right in the Client Data.
6.1 Proprietary Notices and Protection of Information. Client agrees to maintain and reproduce all patent, copyright, and other proprietary notices on all copies, in any form, of the Services in the same form and manner that such copyright and other proprietary notices are included on the Services. Except as expressly authorized in this Agreement, Client shall not make any copies or duplicates of any Services components without the prior written permission of Donoma. Client agrees that all aspects of the Services and associated documentation, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of Donoma. Client 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. Client shall implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Services and Documentation shall remain solely with Donoma.
6.2 Prohibited Uses. Without the prior express written consent of Donoma, Client 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 Services; (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 Services, in whole or in part; (c) make error corrections to or otherwise modify or adapt the Services or create derivative works based upon the Services, or permit third parties to do the same; (d) disassemble, decompile, decrypt or reverse engineer in any way any of the Services; (e) otherwise use in any way the Services in any manner not expressly authorized by this Agreement; or (f) remove, alter or otherwise obscure any proprietary rights notices appearing in the Services. Client agrees to use its best efforts and take all reasonable steps to safeguard the Services to ensure that no unauthorized person shall have access to the Services and that no unauthorized copy, publication, disclosure, or distribution, in whole or in part, in any form shall be made. Client acknowledges that the Services contain valuable, confidential information and trade secrets and that unauthorized use and/or copying are harmful to Donoma. Client grants to Donoma and its agents the right to examine Client’s business, books, records, and accounts during Client’s normal business hours to verify compliance with this Agreement. In the event such audit discloses non-compliance with this Agreement, Client shall promptly pay to Donoma the appropriate licensee fees and, at the discretion of Donoma, reimburse Donoma for the costs of the examination.
- THIRD PARTY NETWORKS, PLATFORMS AND COMPONENTS
Certain Services offered by Donoma may be dependent on third party software, applications, platforms (such as third-party communications or business networking platforms), messaging or communication services or API’s (“Third Party Services”). These Third-Party Services are not offered, controlled, or provided by Donoma. In some cases, the Third-Party Services may make changes to its service, or components thereof, or discontinue a service without notice to Donoma. Accordingly, Donoma expressly disclaims any liability related to, or arising from, these Third-Party Services, including Client’s use thereof, or any updates, modifications, outages, delivery failures, corruptions, discontinuance of services or termination of Client’s account by the Third-Party Service. Donoma is not responsible or liable for how the Third-Party Services transmit, access, process, store, use or provide data to Donoma. Client is solely responsible for complying with any Third-Party Services terms and conditions. In order to integrate the Services with certain Third-Party Services, Client may be required to provide Client’s or Client’s end user access credentials for the Third-Party Services in order to receive Client Data. In such cases, in order to provide the Service, Donoma’s access must be approved (a) by Client for all end users or content; or (b) by each individual end user.
- TERM AND TERMINATION
8.1 Term. The Agreement shall commence as of the Effective Date and shall remain in effect for the term specified in Client’s initial Order Form (“Initial Term”). Unless Donoma or Client provides the other party with at least ninety (90) days prior written notice, this Agreement and all purchased Services will automatically renew. The Initial Term plus any renewal terms are, collectively, the “Term.” The term of any Order Form entered into subsequent to the Effective Date shall co-terminate with the then current Term and be subject to any renewals thereof.
8.2 Termination for Breach. Either party may terminate this Agreement if the other party materially breaches its obligations hereunder and such breach remains uncured for thirty (30) days following the written notice of such breach by the non-breaching party to the breaching party. Donoma reserves the right to suspend Client’s access to the Services in the event of any breach of this Agreement and shall not be liable for any damages resulting from such suspension.
8.3 Termination for Bankruptcy. This Agreement shall terminate immediately, upon written notice, where (a) either party is declared insolvent or adjudged bankrupt by a court of competent jurisdiction; or (b) a petition for bankruptcy or reorganization or an arrangement with creditors is filed by or against that party and is not dismissed within sixty (60) days.
8.4 Effect of Termination. Upon any termination or expiration of the Agreement: (a) all rights and licenses to the Services shall immediately terminate; (b) Client shall make payment to Donoma of any Fees due and payable up to the date of termination, except in the case of Donoma’s termination for Client’s breach, and in such case, Client shall pay the Fees owing for the remainder of the then current Term; and (c) upon request, each party shall return to the other or delete Confidential Information of the other party, provided however, if Client wishes Donoma to return Client Data, Client agrees to pay Donoma’s then current data extraction and exportation fees plus any hardware costs. In the case of a Trial Service, this Agreement is deemed to be terminated at the end of the permitted evaluation period.
- WARRANTY AND DISCLAIMERS
9.1 Performance Warranty. Donoma represents and warrants that it will provide the Services in accordance with generally accepted industry standards.
9.2 Proper Authority. Donoma represents that it has the right and authority to enter into this Agreement and that the performance of its obligations under this Agreement will not breach or be in conflict with any other agreement to which Donoma is a party to.
9.3 Compliance with Laws. Donoma warrants that it will comply with the laws and regulations applicable to Donoma’s business in the performance of the Services.
9.4 EXCEPT AS SET FORTH IN SECTIONS 9.1 – 9.3 ABOVE, DONOMA MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND IN CONNECTION WITH THE SERVICES OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY OTHER INFORMATION OR MATERIALS PROVIDED, OR MADE AVAILABLE, BY DONOMA. DONOMA HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DONOMA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR SOFTWARE WILL BE AVAILABLE OR ERROR FREE. DONOMA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF DONOMA. DONOMA MAKES NO REPRESENTATION OR WARRANTY THAT USE OF THE SERVICES OR THE ADVICE, CONSULTING OR PROFESSIONAL SERVICE PROVIDED TO CLIENT GUARANTEES LEGAL COMPLIANCE UNDER ANY FEDERAL, STATE, OR INTERNATIONAL STATUTE, LAW, RULE, REGULATION, OR DIRECTIVE AND DONOMA EXPRESSLY DISCLAIMS ALL LIABILITY ARISING OR RELATED TO CLIENT’S COMPLIANCE WITH ANY FEDERAL, STATE OR INTERNATIONAL STATUTE, LAW, RULE, REGULATION, OR DIRECTIVE.
- REMEDIES AND LIMITATION OF LIABILITY
10.1 In the event of a breach of the Performance Warranty under Section 9.1, Donoma shall use commercially reasonable efforts to provide Client with an error correction or work-around that corrects the reported non-conformity.
10.2 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. DONOMA’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT, NOTWITHSTANDING THE FORM IN WHICH ANY ACTION IS BROUGHT (E.G., CONTRACT, TORT, OR OTHERWISE), SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY RECEIVED BY DONOMA FROM CLIENT FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, TO DETERMINE IF THE LIMIT HAS BEEN REACHED.
10.3 THE ABOVE LIMITATIONS OF LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FEES BEING CHARGED BY DONOMA RELATIVE TO THE SERVICES DESCRIBED ARE MATERIAL TERMS HEREOF.
- GENERAL PROVISIONS
11.1 Export Restrictions. The Services, including any software, documentation and any related technical data included with, or contained in the Services, may be subject to United States export control laws and regulations. Client shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing or using the Services. Without limiting the foregoing: (a) Client represents that it and its Application User(s) and other users are not named on any United States government list of persons or entities prohibited from receiving exports; (b) Client represents that Client will not use the Services in a manner which is prohibited under United States Government export regulations; (c) Client will comply with all United States antiboycott laws and regulations; (d) Client shall not provide the Services to any third party, or permit any user to access or use the Services in violation of any United States export embargo, prohibition or restriction; and (e) Client shall not, and shall not permit any user or third party to, directly or indirectly, export, re-export or release the Services to any jurisdiction or country to which, or any party to whom, the export, re-export or release is prohibited by applicable law, regulation or rule. Client will indemnify, if requested, Donoma for any failure to comply with this Paragraph.
11.2 U.S. Government End User Provisions. Donoma provides the Services to federal government end users solely in accordance with the following: government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Donoma to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
11.3 Assignment. Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without the other’s consent in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
11.4 Force Majeure. No failure or omission by the parties hereto in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement, nor shall it create any liability, provided the party uses reasonable efforts to resume performance hereunder, if the same shall arise from any cause or causes beyond the reasonable control of the parties, including, but not limited to the following, which, for the purpose of this Agreement, shall be regarded as beyond the control of the parties in question: (a) acts of God; (b) acts or omissions of any governmental entity; (c) any rules, regulations or orders issued by any governmental authority or any officer, department, agency or instrumentality thereof; (d) fire, storm, flood, earthquake, pandemic, epidemic, accident, war, rebellion, insurrection, riot, strikes and lockouts; or (e) utility or telecommunication failures.
11.5 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to conflict/choice of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Roanoke City, in the Commonwealth of Virginia, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
11.6 Attorney Fees. If Client 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, Client agrees to pay Donoma’s reasonable attorneys’ fees and costs.
11.7 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.
11.8 Notices. Any legal notice under this Agreement will be in writing and delivered by personal delivery, express courier, or certified or registered mail, postage prepaid and return receipt requested. Notices will be deemed to be effective upon personal delivery, one (1) day after deposit with express courier, five (5) days after deposit in the mail. Notices will be sent to Client at the address set forth on the Order Form or such other address as Client may specify. Notices will be sent to Donoma at the following address: Donoma Software, Attention: Legal & Operations, 1750 Kraft Dr, Suite 1200 Blacksburg VA 24060.
11.9 No Agency. The parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture.
11.10 Entire Agreement. This Agreement (including the documents referred to herein) is the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreements, negotiations, and communications (both written and oral) regarding such subject matter.
11.11 Marketing. Client grants Donoma the limited right to disclose that Client is a Client of Donoma. Donoma agrees to obtain the prior written approval for any use of Client’s name in any print marketing materials, press release, case studies or white papers.
11.12 Severability. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
11.13 Waiver. Failure of either party to insist on strict performance of any provision herein shall not be deemed a waiver of any rights or remedies that either party shall have and shall not be deemed a waiver of any subsequent default of the terms and conditions thereof.
11.14 Electronic Signatures and Communications. The parties agree that electronic signatures, whether digital or encrypted, or click through acceptance, by a Application User or a party’s authorized signatory are intended to authenticate such signatures and give rise to a valid, enforceable, and fully effective agreement. The parties expressly agree that any terms in Client’s purchase order forms, or electronic communications, other than orders placed by Client pursuant to Section 1.2, form no part of this Agreement.
11.15 Modifications. Donoma may make modifications to this Agreement by posting the modifications to the weblink this Agreement is located at or at the Services login page. Client unequivocally indicates acceptance of any such modifications by (a) accepting the version of the Agreement with the modified terms at the product log in page, (b) executing an Order Form including the modified terms, or (c) continued use of the Services.
Donoma Software
1750 Kraft Dr, Suite 1200
Blacksburg, VA 24060
1–866-275-2770
legal@donomasoftware.com
Last updated: March 2, 2023
