Donoma Software Subscription Service Level Agreement (SLA)
Applicable to subscriptions of: DONOMA ONEVIEW™ DONOMA ONEVOICE™ DONOMA UNIFY®, DONOMA MESSAGE VAULT™, DONOMA STONESCRIBE™
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 Client, and of the following:
Unify for Gmail and/or OneVoice, the Voicemail – Email Synchronization Program in object code format designed by Donoma to synchronize IP-based Unified Communication (UC) systems with supported email systems,
Message Vault, the Voicemail Archiving & Records Management Program in object code format designed by Donoma to archive the messages from the designated IP-based UC systems,
StoneScribe, 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
OneView, the Call Detail Recording & Analytics 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 Clients of the program(s) constituting the Licensed Software (such programs referred to herein individually and collectively as, the “Licensed Software”).
Client 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 Client 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 Client under a Service Evaluation. Client 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.
Client Account. Client must create an Administrator account within the Service. 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 additional user who shall have administrative access to Client’s account, with full access privileges and the authority to place orders. The Administrators(s) are responsible for managing all aspects of the Service, including without limitation, requesting changes or modifications to the Service, adding, or removing users, or modifying access privileges. Client acknowledges and agrees that Donoma will only accept such requests from an Administrator, 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 Administrator or the officer making any such request cannot be reasonably verified. The Service 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 by email at salesteam@donomasoftware.com of changes to Client’s contact information, including the identity and email address of Client’s primary contact and Client’s address.
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 processed by, or provided to, Donoma via the Service 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 Service including, without limitation, those related to data privacy, communications, or the transmission and storage of technical or personal data. It is Client’s responsibility to obtain all necessary consents with respect to the transmission, collection, and storage of Client Data.
Subscriptions.
Subscriptions. During the term of the Subscription as stated in the purchase documents, Clients purchasing a Donoma Subscription Service (“Service”) may access and use Service pursuant to the policies contained in this Agreement.
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 thirty (30) 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.
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. In the case of a Trial Service, this Agreement is deemed to be terminated at the end of the permitted evaluation period.
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 Client any intellectual property rights in the Service or any of its components.
FEES FOR SERVICES
Payment of Fees. Client shall pay the fees for the Services as set forth in the Order Form (“Fees”). Fees may include Subscription License Fees, One-Time Fees, and/or Professional Service Fees. One-Time Fees are one time service configuration fees or data import fees (“One-Time Fees”). Seat license Fees are based on Client’s usage of the Service, more specifically described in “Subscription License Fees”. Subscription License Fees are not pro-rated. Professional Services Fees are the hourly or flat rate 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.
Subscription License Fees. Subscription License Fees are based on usage metrics. A “Seat” means any user account, device, email address, domain, or other usage metric indicated on the Order Form for which Donoma provides Services. If such Services are ordered by Client, Donoma grants Client the right to use the Services for the number of Seats with associated data allocation set forth in the Order Form. The number of Seats specified in the initial Order Form is Client’s minimum Seat commitment. Client shall pay for additional Seats based on the then current rates. Client understands that any overage in consumption will trigger an immediate invoice and agrees pay the associated Fees.
Professional Service Fees. Professional Services will be invoiced according to the terms of the Professional Service addendum, or if no invoice or payment terms are specified in the Professional Service addendum, Professional Service Fees will be invoiced upfront for the total estimated hours required. Additional hours actually incurred in the delivery of the Professional Service will be invoiced following delivery of the Professional Service at the hourly or other incremental rates agreed to by the parties in the Professional Service addendum.
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 the subscription purchase and fees paid. 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.
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.
Software Updates & Service Monitoring.
Donoma will make available to Clients, from time to time as they are released, free of additional charge, patches, and Updates of the Service that Donoma makes generally available to Clients 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 Clients 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 Clients with an on-premises Service, written notification of the Update will be sent, and Clients may arrange installation by scheduling with Donoma Support. Update installation support for on-premises Service is included at no additional charge; but if the Client prefers to perform the installation unassisted, Donoma will provide instructions on how to access and install the Update. On-Premises Service Clients 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 Clients, in addition to software Updates listed above, Client 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 Client with an on-premises 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 Client, provided no such revisions may materially degrade this Agreement’s required performance. Service Level Agreement URL: https://www.donomasoftware.com/licenseagreement/
Any written notice to be provided to Client under this Agreement may be sent by e-mail to the address of Client’s primary contact then on record with Donoma, by notification within the application, or by U.S. mail to Client’s address then on record with Donoma. Notice will be deemed to have been given; (i) on the date sent if by email; or (ii) if mailed, the third business day after mailing such notice. It is Client’s responsibility to notify Donoma by email at salesteam@donomasoftware.com of changes to Client’s contact information, including the identity and email address of Client’s primary contact and Client’s address.
Service Level Objective for Donoma Services via Cloud.
Donoma shall use commercially reasonable efforts to maintain availability of 99.95% of each calendar month for the Services. Availability will be calculated by dividing the total number of minutes of Uptime (defined below) during the applicable calendar month by the total number of minutes in such month, minus minutes of Outages (defined below) occurring due to scheduled maintenance and attributable to third-party Actions (defined below) and multiplying that amount by 100.
The formula for this calculation is as follows: Availability = (X ¸ Y) x 100 X= Total # of minutes of Uptime during calendar month. Y= (Total # of minutes in such calendar month) – (Total # of minutes of Outages from scheduled maintenance and third-party Actions)
For the purposes of this calculation, (i) An “Outage” means that the Donoma Service is unreachable, or that the Donoma Service is not processing or delivering any data, when your internet connection is working correctly, (ii) “Uptime” means the number of minutes where there were no Outages, excluding Outages for scheduled maintenance and Third-Party Actions, and (iii) “Third-Party Action” means any action beyond Donoma’s reasonable control including, without limitation, the performance of Internet networks controlled by other companies or traffic exchange points that are controlled by other companies, labor strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages. If a dispute arises about whether or not an Outage occurred, Donoma shall determine in good faith, based on its system logs, monitoring reports and configuration records, and as between Client records and Donoma records, Donoma records shall control. Donoma shall not be responsible for any Outages arising out of Third-Party Actions or for interruptions or shut down of the Service due to circumstances reasonably believed by Donoma to be a significant threat to the normal operation of the Service, a Donoma facility, or access to or integrity of data (e.g., hacker or virus attack). In the event of such interruption or shutdown, Donoma will return Service to normal operation as soon as reasonably possible.
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 Client’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 OR AND |
| 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 workarounds, 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 select any of the following avenues to start a support ticket:
Support by phone: (540) 443-3560, option 1
Submit a support request via email: support@donomasoftware.com
Request a support session: https://DonomaSoftware.as.me/Support
Support Schedule.
Service Clients 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 Clients’ 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 Client shall have no right, title or interest in them whatsoever.
Consent to Use of Data.
Client 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 Client (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 Client.
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 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. Client 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. Client acknowledges that the Service contains 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.
Nondisclosure.
During the term of this Agreement, Client 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”). Client 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.
Client 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, Client shall not make any copies or duplicates of any Service components without the prior written permission of Donoma. Client 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. 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 Service and Documentation shall remain solely with Donoma.
Limited Warranty.
If Client 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 Client’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 Client as the original Client. Client’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 Client 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 CLIENT’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 CLIENT 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 Client 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) Client provides Donoma with prompt, written notice of any such Claim; (ii) Client 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) Client provides Donoma with all reasonable assistance in the defense and settlement of any such Claim, at Donoma’s sole expense. If Client’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 Client 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 Client by Donoma. THIS PARAGRAPH SETS FORTH DONOMA’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, FOR ANY ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT OR OTHER PROPRIETARY RIGHT.
(b) 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.
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 Client that each shall remain an independent contractor responsible for its own actions.
Assignment.
Client 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. Client’s rights under this Agreement will terminate immediately without notice from Donoma if Client fails to comply with any provision of this Agreement. Upon termination, Client 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 Client 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. Client 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. Client 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 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.
Waiver of Trial by Jury.
ANY COURT PROCEEDINGS COMMENCED BY OR AGAINST EITHER PARTY SHALL BE RESOLVED BY A COURT WITHOUT A JUR Y, 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 CLIENT ACKNOWLEDGE HAVING READ THIS ENTIRE AGREEMENT AND AGREE TO BE BOUND BY IT.
Last updated: August 3, 2022
