The subscription to the ServicePRO® Annual Software Assurance Plan is effective from the commencement date and shall continue for a period of one year.
For the charges stated herein, Help Desk Technology shall provide:
1. Software updates and upgrades made generally available during the term of this agreement. Software upgrades and updates are applied to previously purchased software license.. Improvements and enhancements to software documentation made generally available during the term of this agreement.
2. Unlimited access to online ServicePRO Training Tutorials.
1. Technical Support Service via telephone, email and/or via desk-to-desk technology such as GoToMeeting. There is no limit to the number of technical support requests that can be submitted. Technical support is defined as “problems” in the functioning of the ServicePRO® installation. Training style “how-to” questions or consulting questions (such as “how should I…”, or “what is the best practice…”) are not covered by Technical Support.
2. An annual “check-up” session to review help desk challenges and offer suggestions of optimization. In case of multi-year maintenance subscription, annual “check-up” session is applicable once every year.
1. The Licensee acknowledges that all software was licensed in accordance with Help Desk Technology’s Software License Agreement and the Licensee agrees to abide by such conditions.
2. The Licensee agrees to maintain the Software to the latest revision level within six months of official release.
1. Payment of all charges is due on the first day of the period covered by the ServicePRO® Annual Software Assurance Plan.
2. In addition to the charges due under this Agreement, the Licensee agrees to pay or reimburse Help Desk Technology any taxes or charges resulting from this Agreement which are levied by a taxing authority, except for taxes based upon Help Desk Technology’s net income.
3. Annual Software Assurance Plan payments are non-refundable after the maintenance subscription is renewed for the year.
4. If at any time the Licensee would like to cancel their prepaid multi-year maintenance subscription contract, the Licensee may cancel the Maintenance only for the years that are yet to begin, by providing a written notice of such termination within thirty (30) days before the commencement of the Next Annual Maintenance term and will be subjected to a cancellation fee. Any discounts applied to the original purchased amount will be deducted from the refunded amount.
1. Help Desk Technology’s liability to the Licensee for damages of any nature shall not exceed the annual charge payable under this Agreement.
2. In no event will Help Desk Technology be liable for any loss of use, data, or profits or any special indirect or consequential damages.
3. This agreement does not cover loss of data from failure to perform prudent backups.
If any provision of this Standard Terms and Conditions document is declared invalid, the remaining provisions shall remain in full force and effect. These terms and conditions supersede all prior Annual Software Assurance Plan agreements and understandings between Help Desk Technology and the Licensee pertaining to the Software.
This agreement shall be governed by the laws of the Province of Ontario, and any dispute shall be heard by an Ontario court.
In the event of litigation or alternative dispute resolution process the prevailing party will be entitled to recover attorney fees and expenses from the other party.
Grant and Term of License: Help Desk Technology (“HDT”) grants you the right to install and use the Software for a 30-day period for the purpose of testing and evaluation for use in your organization. The Software may be installed on computers under your control or on a network server, which allows you and others who have agreed to the terms of this License to access the Software.
The Evaluator agrees that their use of the ServicePRO® is solely for the purposes outlined above and will not be used directly or indirectly for the purpose of competing within the help desk market against ServicePRO®. The term “not compete” as used here shall mean that the Evaluator shall not develop or market a product substantially similar to or competitive with the present business of Help Desk Technology.
There is no restriction to the number of users that you can set up during the Evaluation Period. If you ultimately decide to purchase the software, the number of users that you can set up will be determined by the number of licenses that you purchase.
The Software and all copies of it are the property of HDT and are protected by U.S. and international copyright and intellectual property laws and treaty provisions. All rights to patents, copyrights, trademarks and trade secrets in the Software or any modifications to it shall be and remain in HDT. You may not modify, alter, translate, reverse engineer, decompile, disassemble or create derivative works based on the Software, or remove any proprietary notices or labels that it contains. You are permitted, however, personally to install the Software on more than one computer, to share the unaltered installation software with others on a non-commercial basis and to make one complete copy of the installed Software for backup purposes.
You expressly acknowledge and agree that use of this Software is AT YOUR OWN RISK and that the Software is provided “AS IS” without any warranties or conditions whatsoever.
HDT (i) DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES AS TO THE NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SOFTWARE OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; (ii) SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR PART BY, OR FAILURES, DELAYS OR INTERRUPTIONS OF, THE SOFTWARE OR HDT; (iii) SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS OR TRADING LOSSES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU AND SHOULD IT BE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF SERVICING, REPAIR OR CORRECTION OF SUCH DEFECTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
The Software communicates with HDT for the purpose of logging your registration information, error conditions, or to inform you when new releases are available to you. You expressly acknowledge and agree that such information may be communicated between yourself and HDT during your evaluation of the Software.
HDT reserves the right to include its own proprietary logos, slogans, and/or website links in the Web Interface, including, but not limited to “Powered by ServicePRO®”, the ServicePRO® logo, and a link to www.servicePRO.solutions
This License constitutes the entire agreement between you and HDT with respect to this Software and supersedes any other communication (including advertising). If any provision of this License is held unenforceable, that provision shall be enforced to the maximum extent permissible so as to give effect the intent of this License, and the remainder of this License shall continue in full force and effect.
This License shall be governed by the laws of the Province of Ontario without reference to conflict of laws principles.
END OF LICENSE AGREEMENT FOR ServicePRO Evaluation.
The licensed SOFTWARE is supplied by Help Desk Technology (HDT) solely for the PURCHASER’s internal business purposes for use with one database.
PURCHASER shall have a non-transferable and non-exclusive right to use the SOFTWARE only to process its own data and the data of its subsidiaries.
All rights, title and interest in and to the licensed SOFTWARE and all related materials are and shall at all times remain the sole and exclusive property of HDT.
Prices do not include Federal, State, Provincial or retail sales tax. Any extra tax, which HDT may be required to collect or pay upon the sale, licensing or delivery of the SOFTWARE, shall be paid by PURCHASER to HDT.
This commitment covers any HDT software licensed for a fee for your end use, except for embedded (industry or task-specific) software. When we refer to “covered software” within this commitment, we are referring to those HDT software offerings only. For any covered software, we will:
* Defend you against any claims made by an unaffiliated third party that the covered software infringes its patent, copyright, or trademark or misappropriates its trade secret, and
* Pay the amount of any resulting adverse final judgment against you (after any appeals) or settlement to which we consent.
DISCLAIMER OF WARRANTY. THE SOFTWARE IS LICENSED “AS-IS.” YOU BEAR THE RISK OF USING IT. HDT GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. YOU MAY HAVE ADDITIONAL CONSUMER RIGHTS UNDER YOUR LOCAL LAWS WHICH THIS AGREEMENT CANNOT CHANGE. TO THE EXTENT PERMITTED UNDER YOUR LOCAL LAWS, HDT EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION ON AND EXCLUSION OF REMEDIES AND DAMAGES. YOU CAN RECOVER FROM HDT AND ITS SUPPLIERS ONLY DIRECT DAMAGES UP TO THE AMOUNT PAID BY YOU FOR LICENSES IN THE CURRENT CALENDAR YEAR. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES.
This limitation applies to
* Anything related to the software, services, content (including code) on third party Internet sites, or third party programs; and
* Claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.
It also applies even if HDT knew or should have known about the possibility of the damages. The above limitation or exclusion may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.
In no event will HDT be liable for any loss of use, data, or profits or any special, indirect or consequential damages.
Neither the licensed SOFTWARE nor this agreement may be assigned, sub licensed or otherwise transferred by the PURCHASER without prior written consent from HDT.
The client must be on ServicePRO® Annual Software Assurance Plan in order to purchase additional user licenses.
The client must be on ServicePRO® Annual Software Assurance Plan in order to purchase the upgrade from Professional Edition to Enterprise Edition.
Help Desk Technology may, from time to time, use PURCHASER’s name or logo in a partial client list for promotional purposes. HDT will not use PURCHASER’s name or logo for promotional purposes in any other way without PURCHASER’s prior consent.
The Software communicates with HDT for the purpose of logging your registration information and license verification, error conditions, or to inform you when new releases are available to you. You expressly acknowledge and agree that such information may be communicated between yourself and HDT during your usage of Software.
If any provision of this Agreement, or portion thereof, is declared invalid, the remaining provisions shall nevertheless remain in full force and effect. This agreement supersedes all prior agreements and understandings between Help Desk Technology and PURCHASER pertaining to the SOFTWARE.
This Agreement shall be governed by the laws of the Province of Ontario and any dispute shall be heard by an Ontario court.
Purchaser has read and understood the foregoing Terms and Conditions, and does by clicking the “I Accept” button to the terms thereof.
This Application Hosting Services Agreement (the “Agreement”) is entered into between BIG-HDTC Canada ULC dba Help Desk Technology (“ServicePRO”) and the Customer. This Agreement is made effective as of the date of your electronic acceptance of this Agreement (the “Effective Date”). This Agreement establishes the terms and conditions pursuant to which the Customer wishes to obtain Service and ServicePRO wishes to provide Service. ServicePRO agrees to provide Service to Customer and Customer agrees to pay ServicePRO for Service subject to the following terms and conditions:
Please read this Agreement carefully. By electronically accepting this Agreement, you acknowledged and agree that you have read and understand the terms of this Agreement and represent that you have the authority to enter into this Agreement on behalf of Customer.
a. This Agreement shall be for an initial term of 12 months.
b. This Agreement shall be automatically renewed for successive 12-month periods, unless terminated by the Customer by giving thirty (30) days written notice to ServicePRO prior to expiration of the initial term or any successive term.
c. If the customer terminates the agreement or if payment of the service charge is not made, any Customer Data may be deleted by ServicePRO upon termination.
d. In the event of early termination by Customer, Customer agrees to pay ServicePRO for any months remaining in the term.
e. ServicePRO may terminate the term of this Agreement at any time and for any or no reason upon the provision of thirty (30) days written notice to the Customer, in which case ServicePRO shall provide the Customer with a prorated refund of the applicable Fees for the remainder of the months in the then current term of the Agreement. In the case of termination under this Condition, any Customer data may be deleted by ServicePRO.
f. ServicePRO reserves the right to amend this Agreement from time to time in its sole discretion by informing the Customer via the Customer’s email address of record and any such amendment may include material changes in ServicePRO’s services to the Customer. Unless otherwise noted in an amendment, amendments shall automatically be deemed to take effect on the first day of the calendar month that occurs at least thirty (30) days after the date that ServicePRO first posted the amendment.
a. Fees for the Service shall be as set forth in Exhibit A hereto.
b. Fees for the Service term and any associated services shall be invoiced in advance and shall be payable on receipt or in accordance with any payment terms that are included on the Invoice. All Fees are exclusive of all taxes, except for taxes based on ServicePRO’s income. Taxes imposed by government agencies, whether based upon the Hosting Services, Software Application, this Agreement or any other reason shall be paid by the Member.
c. If payment is not made within thirty (30) days of the Invoice date, a one and one half percent (1.5%) per month interest charge may be assessed until date of payment. If payment is not made within sixty (60) days of the Invoice date, ServicePRO reserves the right to terminate service and delete all stored Customer data.
d. ServicePRO will monitor the resource usage for the Customer’s hosted instance. If resource usage exceeds the threshold, the customer will incur additional charges.
a. ServicePRO shall host a copy of the “Software” which is available to ServicePRO, the Customer based on the terms of the Software Licensing Agreement attached hereto.
b. ServicePRO shall provide Customer with application level access to the Software via an Internet Uniform Resource Locator (URL) together with a User ID and password. No direct access to server hardware, operating system, database management system or other system resources shall be provided.
c. ServicePRO shall store all Customer data created and managed by the Software, including files, text and parameters; data shall be backed up on a separate storage system nightly.
d. ServicePRO may manage Internet traffic to ensure fair bandwidth usage and server storage to all customers to ensure optimal ServicePRO performance. ServicePRO is committed to deliver a consistent and reliable experience to all customers who use hosting services with us.
e. The Customer will submit any technical or administrative questions related to the hosting Service in writing via ServicePRO’s email address of record. ServicePRO agrees to answer all questions related to the Service in a timely and professional manner. If the issue cannot be resolved via email, the Customer will have the option to contact ServicePRO technical staff directly via telephone during ServicePRO business hours.
a. Customer represents and warrants to ServicePRO that Customer has a current, valid and fully- paid license to use the Software Applications and that the Customer is in compliance with all terms and conditions of each such license with each vendor of any Software Application. Improper licensing or license piracy may result in the applicable software vendor pursuing legal action and shall constitute a material breach of this Agreement and shall permit ServicePRO to terminate this Agreement and the Hosting Services immediately upon notice to Customer.
b. Customer shall obtain and maintain, at its sole expense, equipment and appropriate telecommunication service adaptable to, compatible with, and suitable for communication with ServicePRO’s network specifications.
c. Customer shall use reasonable efforts to protect User IDs and passwords.
d. Customer agrees that authorized ServicePRO support personnel may access system as required to diagnose and resolve technical issues.
e. Customer agrees that the use of Service is at their sole risk and ServicePRO is not responsible for any alleged or actual damages caused by or attributed to the use of the Service.
f. Customer represents and warrants to ServicePRO that it is engaged in a lawful business enterprise; can form legally binding contracts and is authorized to enter into this Agreement; and is in compliance with all applicable laws appropriate to its location of business and nature of work.
g. Customer acknowledges that use of Service is subject to all applicable local, provincial, national and international laws and regulations and Customer agrees not to violate such laws and regulations. Any attempt by any Customer to deliberately damage the Service is a violation of criminal and civil laws. ServicePRO reserves the right to seek damages from any Customer to the fullest extent permitted by law.
h. Customer acknowledges and agrees that Customer may use the Hosting Services only for its internal operations and for providing services to its Customers. Customer shall not have the right to use the Hosting Services to provide services to third parties other than its Customers under the terms of this Agreement.
i. Customer agrees not to post or transmit through the Service any material or content that violates or infringes in any way the rights of others including but not limited to copyright and related intellectual property laws; solicits, encourages or promotes the use of illegal substances or activities that is unlawful, threatening, abusive, harassing, defamatory, libelous, derogatory, invasive of privacy or publicity rights, vulgar, obscene, bigoted or hateful, profane, scandalous, pornographic, indecent or otherwise objectionable; gives rise to civil or criminal liability; or otherwise violates any local, provincial or federal law.
j. The Customer may not engage in any activity that restricts or inhibits any other user from using the Service by “hacking”, “cracking”, “spoofing”, or defacing any portions of them.
k. The Customer may not knowingly post or transmit through the Service or Software any materials that contain viruses, worms, time bombs, Trojan horses, or other harmful or disruptive component, political campaign materials; chain letters; mass mailings, spam mail, any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Service or its contents.
l. The Customer may not knowingly post or transmit through the Service or Software any materials that cause Denial of Service (DoS) attacks. If the Customer site is the target of a Denial of Service (DoS) attack the site will be changed to an unavailable state until such a time as the DoS threat has been remediated.
a. ServicePRO shall use reasonable efforts to protect User IDs and passwords.
b. ServicePRO represents and warrants to Customer that it is engaged in a lawful business enterprise; can form legally binding contracts and is authorized to enter into this Agreement; and is in compliance with all applicable laws appropriate to its location of business and nature of work.
Produces a high priority situation in which those components of the Software that are available to the general public via the Service are inoperable or fail catastrophically.
RESPONSE: The Customer shall notify ServicePRO via email service@servicepro.email or phone 1-800-563-4357 of the Severity 1 issue.
ServicePRO will provide a response by a qualified member of its personnel to begin to diagnose and to correct a Severity 1 issue as soon as reasonably possible during regular business hours 08:30am to 20:00pm Eastern Time, Monday to Friday and excluding statutory Canadian holidays. ServicePRO will respond via email to the addresses listed by the Customer, within one (1) hour if the issue is reported during regular business hours (see above), or the next business day if reported outside business hours, to provide a status update on the resolution process. ServicePRO will exercise best efforts to resolve Severity 1 issues as soon as possible. The resolution to the Severity 1 issue will be delivered as a resumption of the Service. ServicePRO will email the addresses listed by the Customer to notify them when the Service is operational again and to identify any related Severity 2 or Severity 3 issues that were part of the original issue or which were introduced as a workaround or emergency fix to remedy the Severity 1 issue. ServicePRO may, if required, revert to a previous backup of the Customer data to resolve a Severity 1 issue that results from incorrect or corrupt data. In no case shall ServicePRO be held responsible for data loss that may occur when reverting to a previous data backup when it is necessary to resolve a Severity 1 issue.
Produces a high priority situation in which the performance (throughput or response) of the Software degrades substantially under reasonable loads, such that there is a severe impact on use; the Software is usable, but materially incomplete; one or more functions or commands is inoperable; or the use is otherwise significantly impacted.
RESPONSE: The Customer shall notify ServicePRO via email service@servicepro.email or phone 1-800-563-4357 of the Severity 2 issue.
ServicePRO will provide a response by a qualified member of its personnel to begin to diagnose and to correct a Severity 2 issue as soon as reasonably possible during regular business hours 08:30 to 20:00 Eastern Time, Monday to Friday and excluding statutory Canadian holidays.
ServicePRO will respond via email to the addresses listed by the Customer within four (4) hours if the issue is reported during regular business hours (see above), or the next business day if reported outside business hours, to provide a status update on the status of the resolution process.
ServicePRO will exercise best efforts to resolve Severity 2 issues within five (5) business days. The resolution to the Severity 2 issue will be delivered to the Customer as a workaround, or as a configuration change to the web server hosting the Software. Those issues which are applicable to users other than the Customer will be filed on ServicePRO’s website or other public access means.
ServicePRO will email the addresses listed by the Customer to notify them when work to rectify the Severity 2 issue has been completed, and to detail any Severity 2 issues that were part of the original issue or which were introduced as a workaround or emergency fix to remedy the Severity 2 issue.
Produces an inconvenient situation in which the Software is usable, but does not provide a function in the most convenient or expeditious manner, and the user suffers little or no significant impact.
RESPONSE: The Customer shall notify ServicePRO via email service@servicepro.email or phone 1-800-563-4357 of the Severity 3 issue.
ServicePRO will exercise best efforts to resolve Severity 3 issues in the next public release of the Software.
ServicePRO may, at its discretion, apply a software patch to the Software to resolve a Severity 3 issues prior to the next public software release.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SERVICEPRO DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, SOFTWARE, AND CORRECTIONS PROVIDED HEREUNDER, INCLUDING PROMISES, REPRESENTATIONS AND WARRANTIES AS TO CONDITION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY IMPLIED WARRANTY OF INFORMATION CONTENT, SYSTEM INTEGRATION OR SYSTEM PERFORMANCE.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, SERVICEPRO DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE. IT IS EXPRESSLY AGREED THAT IN NO EVENT SHALL SERVICEPRO BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT LOSSES) ARISING FROM THE CUSTOMER’S USE, OR INABILITY TO USE, THE SERVICE, REGARDLESS OF WHETHER SERVICEPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERVICEPRO’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SERVICE THAT GAVE RISE TO THE CLAIM WITHIN THE CALENDAR YEAR DURING WHICH THE CLAIM AROSE.
The parties enter this Agreement as, and shall remain, independent contractors with respect to one another. Nothing in this Agreement is designed to create, nor shall create between them, a partnership, joint venture, agency, or employment relationship.
Unless otherwise agreed to by the parties, any notice required or permitted to be given or delivered under this Agreement shall be delivered and addressed to ServicePRO or the Customer at the address indicated for each party on this Agreement or the Invoice. Notice shall be deemed to have been received by any party, and shall be effective on the day given, if personally delivered or if sent by confirmed facsimile or electronic mail transmission, receipt verified, to a facsimile number or electronic mail address provided by the receiving party to the sending party for the purpose of receiving such notices; ServicePRO or Customer may change its address for notice purposes upon issuance of notice thereof in accordance with this Section.
Neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any causes beyond the reasonable control of that party. If a Force Majeure event occurs, ServicePRO will have up to five (5) business days to determine if and when the Service will resume.
The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation. If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced.
This Agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the laws of Canada applicable therein.
If the parties disagree over an interpretation of this Agreement or whether a party or a Customer is in breach of any part of this Agreement, the parties shall in good faith enter into negotiations to resolve the disagreement and discuss the feasibility of resolving the disagreement by mediation or other means short of litigation. The parties shall cooperate in good faith in pursuing mediation or such other means.
This Agreement incorporates by reference the Software License Agreement. This Agreement and the Invoice collectively contain the entire understanding of the parties with respect to the subject matter hereof, and supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement, including (without limitation) any preexisting agreement.
