Terms and Conditions for Professional Services provided by Donoma Software
Revised May 2016
These Terms and Conditions are incorporated into certain written agreements between Donoma Software, Inc. (“Donoma“) and its customers (“Customer“) and Resellers (“Reseller”) that reference this version of these Terms and Conditions.
Services and Fees. Donoma shall perform services for Customer or Reseller as described in a Sales Proposal, Quote, Support Services Agreement, Statement of Work or other written agreement (each “Agreement”) between Donoma and Customer or Reseller. Customer or Reseller agrees to pay Donoma the prices identified in each Agreement for services rendered during the term of the Agreement. In addition, in the event that onsite travel is specified as part of the services, Customer or Reseller agrees to pay the reasonable out-of-pocket travel expenses incurred by Donoma during performance of an Agreement. Rates do not include taxes. If Donoma is required to pay any federal, state, or local taxes based on services provided under this Agreement, such taxes will be billed and paid by Customer or Reseller, excluding taxes based on Donoma’s income.
Confidentiality. Each party recognizes and acknowledges that during the term of an Agreement it may be given access to valuable and important confidential technical and business information, processes and software of the other party, whether
oral or written, which is claimed by the disclosing party as proprietary and which shall be marked as proprietary by that party prior to disclosure, or if disclosed orally, shall be identified as proprietary at the time of oral disclosure (herein “Confidential Information“). Confidential Information does not include (a) information known to the recipient at the time of disclosure, which can be documented; (b) information learned by the recipient from a third party lawfully holding same and not disclosing same in violation of an obligation of confidentiality; (c) information that subsequently becomes generally known other than as the result of wrongful disclosure; and (d) information required to be disclosed publicly by law or regulation to the extent so disclosed, but only after prior written notice to discloser of such requirement prior to such disclosure.
Each party agrees that, except as authorized by the disclosing party, recipient shall not use any Confidential Information of the other party except for the purposes of an Agreement and shall not disclose such information unless authorized in writing by the disclosing party. Such obligation shall extend for five (5) years after termination of an Agreement.
Right to Development. Any ideas, inventions, works of authorship, know-how, or techniques that have been or may be developed by Donoma shall be and remain the property of Donoma. Donoma may in its sole discretion develop, use, market, and license such software or supporting material that is similar or related to that which was developed by Donoma for Customer. Donoma reserves all rights not expressly granted herein.
Warranties. Donoma ASSUMES NO LIABILITY FOR CUSTOMER’S (OR RESELLER’S) SELECTION OF PRODUCTS AND SOFTWARE APPLICATIONS, OR THE CAPACITY OR CONNECTIVITY OF SUCH PRODUCTS OR SOFTWARE APPLICATIONS, OR ANY FUTURE OBSOLESCENCE OF CUSTOMER’S PRODUCTS OR SOFTWARE APPLICATIONS OR THE FAILURE OF THE PRODUCT MANUFACTURER OR SOFTWARE PROVIDER TO SUPPORT SUCH PRODUCTS OR SOFTWARE APPLICATIONS AND, IN ANY AND ALL SUCH EVENTS, CUSTOMER SHALL PAY ALL OF THE COSTS OF UPGRADES OR REPLACEMENT. ALL PRODUCTS AND SOFTWARE CONNECTED TO THE INTERNET, TO A NETWORK, OR TO OTHER COMMUNICATIONS DEVICES OR SERVICES, ARE SUBJECT TO UNAUTHORIZED ACCESS, “HACKING,” AND OTHER DISRUPTION OR DAMAGE. NO MEASURES TO PREVENT SUCH DAMAGES ARE “FOOLPROOF.” THEREFORE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, Donoma DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO SERVICES, PRODUCTS AND SOFTWARE PROVIDED. THE WARRANTIES AND REMEDIES SET FORTH IN AN AGREEMENT ARE EXCLUSIVE AND NO OTHER WARRANTY OR REMEDY OF ANY KIND SHALL APPLY, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING THE WARRANTIES OF PERFORMANCE, DESIGN, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTIBILITY, QUIET ENJOYMENT, NON- INFRINGEMENT AND WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, ALL OF WHICH ARE WAIVED IN FULL BY CUSTOMER.
Limitation on Liability. THE TOTAL LIABILITY OF Donoma, ITS AFFILIATES, SUPPLIERS AND SUB-CONTRACTORS, ON ANY AND ALL CLAIMS, WHETHER IN CONTRACT, WARRANTY, TORT INCLUDING NEGLIGENCE) STRICT LIABILITY, EQUITY OR OTHERWISE SHALL NOT EXCEED THE AMOUNT RECEIVED BY Donoma FROM CUSTOMER OR RESELLER IN THE TWELVE (12) MONTHS PRECEDING THE DATE GIVING RISE TO THE CLAIM. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, EQUITY OR OTHERWISE, SHALL Donoma, ITS AFFILIATES, SUPPLIERS AND SUB-CONTRACTORS, BE LIABLE FOR LOSS OF ANTICIPATED PROFITS, LOSS BY REASON OF FACILITY SHUTDOWN, INABILITY TO OPERATE OR INCREASED EXPENSE OF OPERATION, SERVICE INTERRUPTIONS, CLAIMS OF CUSTOMER’S CUSTOMERS OR CONTRACTORS, GOVERNMENTAL FINES OR PENALTIES AGAINST THE CUSTOMER, LOSS OF CAPITAL OR REVENUE, COST OF MONEY, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY NATURE ARISING AT ANY TIME FROM ANY CAUSE WHATSOEVER, EVEN IF Donoma HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PROVISIONS OF THIS SECTION SHALL APPLY NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT OR ANY OTHER AGREEMENT AND SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THE AGREEMENT.
Delay in Performance. Donoma, its suppliers and sub-contractors shall be excused if delayed or prevented from performance by strikes, transportation delays, weather or other acts of God, equipment breakdowns, acts of civil or military authority, war or any other causes beyond the reasonable control of Donoma, its suppliers or subcontractors.
In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of the delay.
Disputes. Customer or Reseller shall make every effort to notify Donoma of a dispute or claim within ten (10) days of the date on which the dispute or alleged claim arose. Customer or Reseller shall not bring any claim against Donoma unless it provides written notice of such claim to Donoma within thirty (30) days of the date on which the alleged claim arose. In no case shall Customer or Reseller assert any claim more than one (1) year after the date on which the alleged claim arose.
Non-Hire. Each party agrees that it will not directly or indirectly hire, employ, engage, retain or otherwise contract with any employee of the other party during the term of an Agreement, and for a period of two (2) years thereafter. Should either party violate this provision, the violating party will promptly pay to the non-violating party seventy five percent (75%) of said employee’s annual salary or pay.
Business Hours & Travel Charge Policies. “Regular Business Hours” are 8 AM to 5 PM Eastern US Time, Monday through Friday, excluding the following holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, Thanksgiving Friday and Christmas Day. For each on-site coverage service visit to Customer, there shall be a minimum charge of one (1) Day.
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 an Agreement, whether for breach or enforcement of contract, tort or otherwise.
Equal Opportunity and Affirmative Action. Donoma is an equal opportunity/affirmative action employer. It is Donoma’s policy not to discriminate against qualified applicants and employees on the basis of race, color, religion, sex, national origin, and disability, status as a Vietnam era or special disabled veteran, or other legally protected status. Further, Donoma engages in affirmative action efforts, where appropriate, to employ, train and promote qualified minorities, women, the disabled, and Vietnam era and special disabled veterans.
General. The Agreement (including these Terms and Conditions) constitutes the entire understanding between Customer or Reseller and Donoma concerning the subject thereof and expressly supersedes and replaces any oral or written, past or present communication, proposal, understanding or agreement. Any representation, promise, understanding, proposal, agreement, warranty, course of dealing or trade usage not expressly contained or referenced herein or in an Agreement shall not be binding on Donoma. An Agreement may be supplemented by additional terms and conditions as mutually agreed upon in writing. An Agreement is only for the benefit of Customer or Reseller and Donoma and shall not be assigned and any products delivered hereunder shall not be transferred or sublicensed except by mutual written agreement. Customer or Reseller shall indemnify and hold harmless Donoma from any loss or damage resulting from any assignment or transfer in violation of this section. The invalidity, in whole or in part, of any section hereof or in an Agreement shall not affect the validity of the remainder of such section or the rest of an Agreement. The Agreement shall be governed by the laws of the Commonwealth of Virginia without regards to its conflict of laws principles and any action to enforce, construe or modify an Agreement shall be filed in either the General District Court or the Circuit Court for the County of Montgomery, Virginia. In any legal proceeding brought to enforce the terms of an Agreement, the non-prevailing party shall pay the reasonable attorneys’ fees of the prevailing party.