Terms and Conditions, Software Assurance Agreement
TERMS AND CONDITIONS
THE TERMS AND CONDITIONS SET FORTH BELOW CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN AVONTUS® SOFTWARE CORPORATION (“AVONTUS”) AND THE CONTRACTING PARTY IDENTIFED IN THE ATTACHED AVONTUS QUOTE OR INVOICE (“CUSTOMER”) WITH RESPECT TO THE PURCHASE AND/OR DEVELOPMENT OF SOFTWARE (“PRODUCTS”), SOFTWARE ASSURANCE AND/OR SUPPORT SERVICES, INSTALLATION AND/OR CONSULTING SERVICES AS MORE PARTICULARLY SET OUT IN SECTION 5 (“SERVICES”) IDENTIFIED IN THE ATTACHED AVONTUS QUOTE OR INVOICE UNLESS AN EFFECTIVE WRITTEN AGREEMENT SIGNED BY A DULY AUTHORISED REPRESENTATIVE OF AVONTUS FOR THE PURCHASE OF SUCH PRODUCTS, SOFTWARE ASSURANCE AND/OR SERVICES IS IN EFFECT BETWEEN CUSTOMER AND AVONTUS. IN THE EVENT OF A CONFLICT BETWEEN SUCH AN AGREEMENT AND THESE STANDARD TERMS AND CONDITIONS OF SALE, SUCH AGREEMENT SHALL PREVAIL.
1. CUSTOMER ORDER. Customer may offer to purchase Products and/or Services from Avontus by using the Products in a trial setting or issuing a payment or purchase order in response to a “Quote” or “Invoice” provided by Avontus, or otherwise. Each such offer constitutes a “Customer Order”. Customer shall be deemed to unconditionally accept these terms and conditions by either placing a Customer Order; using the Products (in a trial setting or otherwise); issuing payment; or placing any other purchase order. Avontus shall be at liberty to accept or reject any such Customer Order and Avontus’ commencement or execution of work pursuant to Customer Order, shall constitute Avontus’ acceptance of Customer’s offer and establish a contract for the supply and purchase of those Products and/or Services on these terms and conditions (“Contract”). The commencement date of such Contract shall be the date of Avontus’ acceptance howsoever communicated. No terms and conditions specified or pre-printed on any Customer Order or other form of acceptance shall add to or modify these terms and conditions and, to the extent permitted by law, these terms and conditions shall prevail over such specified or pre-printed purchase order terms or other inconsistent terms or conditions implied by law, trade custom, practice or course of dealing. All of these terms and conditions shall apply to the supply of both Products and Services except where application to one or the other is specified.
2. PAYMENT AND INVOICING TERMS. Unless otherwise stated, payment is due in advance of Product installation and/or commencement of the provision of any Services and shall be paid within in full and in cleared funds to a bank account nominated in writing by Avontus in accordance with the payment terms set out in the Quote. Notwithstanding any other rights of Avontus, in the event of late payment by Customer, Avontus shall be entitled to interest on the outstanding balance at a rate of 5% per month, compounded daily from the due date until the date of actual payment, whether before or after judgment. Notwithstanding the foregoing, Customer remains primarily responsible and liable for complete and timely payment of all invoices issued hereunder, and time for payment shall be of the essence of the Contract. Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Avontus may, without limiting its other rights or remedies, set off any amount owing to it by Customer against any amount payable by Avontus to Customer.
3. PRICES AND TAXES. The price for Products and Services shall be the price set out in the relevant Quote or, if no price is quoted, the price set out in the relevant Invoice. Where provided, all Quotes are valid for acceptance for a period of thirty (30) days unless withdrawn by Avontus or as may otherwise be specified. If a Quote was submitted prior to Invoice, then the Invoice prices shall be those specified in the Quote which have been accepted by Customer. In accordance with Section 1, if Customer offers to purchase the Products and/or Services where an Invoice has been issued without any prior Quote, then the price payable shall be as set out in the Invoice. Avontus shall be entitled to charge Customer for any expenses reasonably incurred by individuals whom Avontus engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Avontus for the performance of the Services. Avontus reserves the right to: increase its charges for the Services. Avontus will give Customer written notice of any such increase 30 days before the proposed date of the increase. If such increase is not acceptable to Customer, it shall notify Avontus in writing within 3 weeks of the date of Avontus’ notice and Avontus shall have the right without limiting its other rights or remedies to terminate its agreement with Customer by written notice to Customer. Avontus may increase the price of the Products, by giving notice to Customer at any time before delivery, to reflect any increase in the cost of the Products to Avontus that is due to any factor beyond the control of Avontus (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); any request by Customer to change the delivery date(s), quantities or types of Products ordered, or the Products Specification; or any delay caused by any instructions of Customer in respect of the Products or failure of Customer to give Avontus adequate or accurate information or instructions in respect of the Products. All prices set out in any Quote or Invoice are, unless expressly stated otherwise, exclusive of any tax, levy or similar governmental charge that may be assessed by any jurisdiction, including, without limitation, any export, federal, state or local VAT, sales, use or goods and services taxes and business taxes, customs or excise duties. If Customer is at any time required by any applicable law to make any such deduction from any payment due to Avontus hereunder, then the amount due from Customer to Avontus in respect of such payment shall be increased by such amount as will result, notwithstanding the deduction, in Avontus’ receipt on the due date of each amount, of the amount that Avontus would have received if Customer had not been required to make such deduction. Any taxes required by local law to be withheld by Customer shall be remitted to the appropriate governmental authorities by Customer on behalf of Avontus, with a copy of the tax receipt or certificate forwarded to Avontus.
4. SOFTWARE (PRODUCTS). Any Products delivered by Avontus hereunder shall be subject to the license terms provided with it. Such license terms are available at www.avontus.com/designer-eula and www.avontus.com/quantify-eula and Customer agrees to all such terms. Customer shall be responsible for distributing to end users of such Products any registration and password information that has been provided by Avontus to Customer, and Avontus shall not be liable for any unauthorised access to such Products. Avontus shall deliver such Products as have been ordered electronically to Customer as set out in the relevant Invoice or Order. Risk in any tangible media on which the Software is delivered shall pass on delivery. Customer shall be deemed to have accepted the Software if Customer commences operational use of the Products.
5. SERVICES. Avontus shall use all reasonable endeavours to meet any performance dates for the Services specified in any Quote or Invoice, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services. Avontus shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Avontus shall notify Customer in any such event. Avontus warrants to Customer that the Services will be provided using reasonable care and skill. If Avontus is providing any customisation, development, integration, support, or other services pertaining to a particular Product (“Services”), such Services shall be described in detail in the Quote or Invoice. All Products or other deliverables that may be created by Avontus pursuant to such Services are also subject to the Product license terms attached to these terms and conditions. Any discovery, design, improvement, enhancement or extension of or to Products which are independently or jointly conceived of, developed or made in the course of or as a result of Services or Support or related in any way to any feedback that may have been provided to Avontus by Customer shall be owned by Avontus. All patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world (“Intellectual Property Rights”) in or arising out of or in connection with the Services shall be owned by Avontus, and Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, Customer’s use of any such Intellectual Property Rights is conditional on Avontus obtaining a written licence from the relevant licensor on such terms as will entitle Avontus to license such rights to Customer.
6. CUSTOMER OBLIGATIONS. Customer shall (i) ensure that the terms of the Customer Order are complete and accurate; (ii) co-operate with Avontus in all matters relating to the Services; (iii) provide Avontus, its employees, agents, consultants and subcontractors, with such access or remote access to Customer’s premises, office accommodation and other facilities as reasonably required by Avontus to provide the Services; (iv) provide Avontus with such information and materials as Avontus may reasonably require to supply the Services, and ensure that such information is accurate in all material respects; (v) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and (vi) keep and maintain all materials, equipment, documents and other property of Avontus at Customer’s premises in safe custody at its own risk, and maintain these in good condition until returned to Avontus. If Avontus’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by Customer or failure by Customer to perform any relevant obligation (“Customer Default”): Avontus shall without limiting its other rights or remedies have the right to suspend performance of the Services until Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Avontus’s performance of any of its obligations. Avontus shall not be liable for any costs or losses sustained or incurred by Customer arising directly or indirectly from Avontus’s failure or delay to perform any of its obligations as set out in this section, and Customer shall reimburse Avontus on written demand for any costs or losses sustained or incurred by Avontus arising directly or indirectly from Customer Default.
7. PUBLICITY RIGHTS. We may identify you as an Avontus customer in our promotional materials. You may request that we stop doing so by sending an email to email@example.com at any time. Please note that it may take us up to 30 days to process your request.
8. APPLICABLE LAW.
(a) Alternative 1 – If Customer has paid for Products or Services and such payment was made to Avontus Software Corporation in California, United States, then this Section 8(a) shall apply. These terms and conditions are governed by the laws of the State of California. In the event of any dispute or claim arising out of or in connection with these terms and conditions or any associated matter or formation (including non-contractual disputes or claims), such litigation will be commenced and maintained in the courts located in San Francisco, California. The parties expressly submit themselves to the exclusive jurisdiction of such courts.
(b) Alternative 2 – If Customer has paid for Products or Services and such payment was made to Avontus Software Ltd in England, then this Section 8(b) shall apply. These terms and conditions are governed by the laws of the England. In the event of any dispute or claim arising out of or in connection with these terms and conditions or any associated matter or formation (including non-contractual disputes or claims), such litigation will be commenced and maintained in the courts of England. The parties expressly submit themselves to the exclusive jurisdiction of such courts.
Software Assurance Agreement
1. Software Assurance.
(a) Avontus Software Corporation (“Avontus”) will provide the contracting party identified in the attached Avontus quote or invoice (“Customer”) with (1.) technical support (“Support”), (2.) public online training sessions covering basic software functionality as well as new software features (“Training”) and (3.) access to Updates and Upgrades (as defined in sub-section (f) below and more particularly dealt with in Section 2 of this agreement, and together with Support and Training, “Software Assurance”) with respect to one or more of the following products for which Software Assurance has been purchased: Avontus Designer™ (previously “Scaffold Designer” and hereinafter “Avontus Designer”), Handset Designer and Avontus Quantify® (also known as “Quantify”) software products including Quantify-related modules licensed by Customer and any former or future nomenclatures for any such products (collectively, the “Software”).
(b) Technical support and training are provided in English.
(c) Software Assurance shall be provided in accordance with the terms of this Avontus Software Assurance Agreement (the “Agreement”) as follows: (1.) respond to support requests concerning the installation, configuration, and troubleshooting of the Software submitted to Avontus by phone, e-mail or at the Avontus web portal for customers or such other location as Avontus shall notify to Customer from time to time, in accordance with the response times specified in Section 6 of this Agreement; (2.) undertake commercially reasonable efforts, at Avontus’s discretion, to provide work-arounds or correct faults in the Software in accordance with the priority levels and response times set forth in Sections 5 and 6 of this Agreement; and (3.) make available Updates and Upgrades to Customer in accordance with the provisions of Section 2 below.
(d) Customer acknowledges and agrees that Avontus may subcontract the provision of Software Assurance to third parties.
(e) The term “Update” shall mean all modifications to the Software designated by Avontus as bug fixes, patches, updates or interim builds and updates to the relevant documentation, and which modifications are made available by Avontus generally to its licensees. The term “Upgrade” shall mean any release of the Software containing new functionality that is not an Update and any accompanying documentation, and which releases are available by Avontus generally to its licensees.
2. Updates and Upgrades. Avontus will provide Customer with (a) Updates as and when required in the reasonable opinion of Avontus, and (b) Upgrades as they may become available by Avontus generally to its licensees, and such releases will be subject to the terms of this Agreement except with respect to any mandatory flow-down provisions required by third party technology providers, if any, as provided to Customer with the Updates or Upgrades.
3. Limitation and Conditions.
(a) Customer shall not be entitled to Software Assurance if it fails to pay any amount due to Avontus, whether this is disputed, undisputed, or otherwise. Avontus’s obligation to provide Software Assurance shall extend only to the most recent version of the Software (including any Update or Upgrade) made available by Avontus to Customer. Software Assurance will not be provided for versions of the Software modified by Customer or on Customer’s behalf by a third party without prior written authorization of Avontus. Only the latest version of each Product is guaranteed to be compatible with other Products. If Software Assurance is not maintained for a Product, the Product may cease to function or its functionality may be reduced including, but not limited to:
i. Any code the customer has written that utilizes the Quantify API
ii. Integration between Quantify and Avontus Designer
iii. The Quantify end user report designer
(b) If Customer owns multiple Quantify licenses that are combined in a single database and chooses to maintain Software Assurance for some, but not all, licenses, Customer’s database will be modified by Avontus. Avontus will issue the Customer a new activation code for only the licenses with active Software Assurance. Data from licenses in the database that are not renewed will no longer be visible or usable; should the Customer wish to use these non-renewed licenses and their related data in the future, Software Assurance must first be renewed and supplemental fees per the schedule below may apply.
(c) Due to graphics limitations, Avontus Designer may not work properly in a virtualized environment, or over a remote desktop session. These are not supported environments.
(d) Avontus will support only Customer staff who are fully trained by Avontus. Support does not include any on-site support, software development including code fixing, or assistance with the use of the application programming interface (API) or end-user report designer (EURD) for Customer’s in-house or external developers. Guidance for API and EURD is in our developer forums.
(e) Avontus’s obligation to provide Software Assurance is conditional on Customer fulfilling its obligations as set out in Section 4 of this Agreement.
(f) Avontus will investigate errors in the Software reported by Customer. Subject to Section 2 of this Agreement, if Avontus’s investigation reveals an error or malfunction in the Software, Avontus will use commercially reasonable efforts to either correct the error or to provide a suitable workaround or patch. Avontus does not warrant or guarantee that response times set out in Section 6 of this Agreement will be met, or that all claimed or actual Software defects will be corrected.
(g) Avontus retains the right to modify Software Assurance but only if the modifications apply generally to all licensees.
(h) Where a problem prioritized as P3 or below (as defined in Section 5 of this Agreement) is to be corrected in a forthcoming Update or Upgrade, then for a reasonable period prior to the issue of such Update or Upgrade, Avontus shall be entitled to decline to provide assistance in respect of that problem.
(i) Failure to pay Software Assurance will result in disabling automatic updates and cease access to support personnel. Syncing with external websites the Software integrates with, such as Xero accounting software and Scaffold VR, may cease working without warning. The annual cost for Software Assurance may change without notice. Fees unpaid by the annual expiration due date will result in an increase of these fees up to a repurchase of the original software licenses and Software Assurance, at current prices. Continuity of Software Assurance is a critical element of the ability for Avontus to provide Software Assurance to Customer and its other customers. Accordingly, in the event that coverage for Software Assurance should lapse as a result of non-payment for Software Assurance, then Customer agrees to pay the following supplemental amounts (which the parties acknowledge is neither a late fee nor a penalty but rather a reasonable estimation of Avontus’ costs to confirm that Customer is using the latest version of the Software, provide any supplemental Training as described above and update such Software as necessary to bring the Software back into compliance under the terms of this Agreement) based on a percentage of the amount owing and number of days in which Software Assurance coverage has lapsed:
|Days of Lapsed Coverage||Customer Supplemental Amount (% of Amount Owing)|
|1- 60 days||25%|
|270 -364 days||150%|
|12 months – 15 months||200%|
|Over 15 months||300% (full repurchase)|
(j) If Customer fails to make any payment due to Avontus under this Agreement by the due date for payment, then, without limiting Avontus’ remedies under any other part of this Agreement or any other agreement with Customer, Customer shall pay interest on the overdue amount at the rate of 5% per month from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount.
(k) All amounts payable under this agreement shall be exclusive of VAT and any local sales taxes, which shall be paid at the rate and in the manner prescribed by law.
(l) Avontus may increase any charges payable by Customer under this Agreement upon written notice. Any increase shall be notified to Customer at least 30 days in advance.
(m) All amounts due under this Agreement shall be paid by Customer to Avontus in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
4. Customer’s Obligations. Customer shall: (a) notify Avontus if problems or errors with the Software are encountered and provide accurate descriptions of the errors to the Software; (b) answer questions and assist Avontus’s efforts to provide the Software Assurance and duplicate the Software errors or problems; (c) co-operate with Avontus in performing its obligations under this Agreement and provide any assistance or information as may reasonably be required by Avontus, including in relation to the diagnosis of any faults; (d) subject to Customer’s security requirements, provide Avontus with access to and use of information and system facilities reasonably necessary to enable Avontus to provide the Software Assurance in a timely manner; (e) assign each problem with a priority level in accordance with the “Priority Levels” set out below; (f) ensure that appropriate environmental conditions are maintained for the Software; (g) nominate a manager to be available to liaise with, and respond to queries from, Avontus personnel; (h) keep full backup copies of all of its data; and (i) indemnify Avontus against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against Avontus as a result of Customer’s breach of this agreement howsoever arising or any negligent or wrongful act of Customer, its officers, employees, contractors or agents. In addition, Customer agrees to not modify the default schema of any databases or configuration files, nor attach any external programs or scripts to the default database, other than through supported API calls. When modifications or unauthorized 3rd party access is discovered, the entire cost of the support case and reversion will be billed at Avontus’ current hourly development rate. All support will cease until the modification is reversed by Customer or Avontus, as verified by Avontus. Modifications may be programmatically reverted by Avontus. Where the Software Assurance is to be performed at any of Customer’s premises, Customer shall provide adequate working space and office facilities (including telephone) for use by the Avontus support staff and take reasonable care to ensure their health and safety.
5. Priority Levels.
When reporting a problem, Customer shall indicate its priority according to the following definitions:
P1 Urgent Problem: Customer is experiencing a major problem and work stoppage has occurred.
P2 Serious Problem: Customer is experiencing a problem causing a disruption of workflow. Critical functions cannot be performed. No acceptable workaround is available, however, operation can continue in a restricted fashion.
P3 Problem: Customer is experiencing a problem causing a minor loss of service. Impact is inconvenient. Workaround restores functionality.
P4 Minor Problem: all other errors. The inconvenience is slight and can be tolerated.
6. Avontus Response Levels.
Avontus responds to problem reports in three stages:
(a) Initial Response: Acknowledgement of receipt of problem. If Avontus disagrees with or has questions about the priority assigned to the problem or the question by Customer, the acknowledgement will note the issue and the priority will be discussed with Customer. Avontus will have final discretion in determining the level of priority of a problem or question.
(b) Second Level: The problem is diagnosed, reproduced, investigated and the production of a workaround or solution commenced.
(c) Final Level: Workaround or solution of the problem.
The priority of a problem report will determine response times as follows:
|Priority||Initial response (within the hours of 09:00 and 17:00 as described below)||Second level||Final level|
|P1||3 hours||1 day||Ongoing|
|P2||1 day||2 days||Ongoing|
|P3||2 days||N/A||Next Update (subject to Section 3 of this Agreement)|
|P4||4 days||N/A||Next Update (subject to Section 3 of this Agreement)|
The response times and days referred to above shall be limited to the hours of 09:00 and 17:00 Pacific Standard Time (PST) and 09:00 and 17:00 British Summer Time (BST) or Greenwich Mean Time (GMT), in each case during Avontus’s business workdays. All “days” above are business days. The second and final level response times listed above shall not include the time spent by Avontus in determining whether the reported problem is a result of a bug or error in the Software or a Branch or End User specific implementation problem.
7. Term and Termination. Software Assurance shall commence upon the first to occur of Training (including for trials of the Software) or the first coordination phone call (sometimes referred to as a ‘kick off call’) for the implementation process of the Software and shall continue for a twelve (12) month period. Provided that renewal fees are paid timely, Software Assurance shall continue for successive twelve (12) month periods thereafter. Notwithstanding the foregoing, and without prejudice to any other rights, Avontus may terminate Software Assurance and this Agreement if Customer fails to comply with the terms and conditions of this Agreement and any additional quote and/or invoice terms and conditions. Sections 7 through 9 shall survive termination of this Agreement.
8. Non-Solicitation. During the term in which Software Assurance is provided and for a period of twelve (12) months thereafter, Customer shall not directly or indirectly recruit, solicit or knowingly induce, or attempt to induce, any employee or consultant or supplier of Avontus or its affiliates to terminate his or her employment or consulting or supplier relationship with, or otherwise cease his or her relationship with, Avontus or its affiliates.
9. Incorporation of Certain Terms from License Agreement. Sections 7 through 15 of the Avontus Software License Agreement currently in effect between Avontus and Customer shall be incorporated in full and apply to this Agreement, mutatis mutandis.