ObliqueMapper™ Software Maintenance Agreement
This Agreement regulates the support and maintenance for ObliqueMapper as licensed by the customer. By purchasing this maintenance service you agree to be bound by the terms of this Agreement.
1. AGREEMENT DEFINITIONS
a. "Vendor" means Gaiamatics Solutions Inc.
b. "Customer" means software maintenance purchaser.
c. "Software" means ObliqueMapper.
2. SCOPE OF AGREEMENT
During the term of this Agreement, as set forth in Section 3 hereof, Vendor agrees to provide Customer standard maintenance and email support, as set forth in Sections 4 and 5 hereof, for the Software.
3. TERM
a. Effective Date. This Agreement shall take effect upon the date of purchase.
b. Termination Date. This Agreement shall terminate one (1) calendar year from the date of purchase (e.g. August 15, 2009 to August 15, 2010).
4. STANDARD MAINTENANCE SERVICES
a. Scope of Services. During the term of this Agreement, Vendor will provide Customer the following Standard Maintenance Services for the Software:
i. Periodic updates of the Software that may incorporate (A) corrections of any substantial defects and (B) fixes of any minor bugs so that the Software will operate as described in the Software's user manuals and/or tutorials as well as (C) at the sole discretion of Vendor, minor enhancements to the Software.
ii. Discount, in an amount set by the Vendor, toward purchasing any major enhancements to the Software
iii. E-mail support, Monday through Friday, excluding statutory holidays, to assist Customer in using the Software.
b. Services Not Included. Standard Maintenance Services do not include:
i. Charged-for-Enhancements;
ii. Custom Programming Services;
iii. On-site support;
iv. Training; or
v. Hardware and related supplies.
5. EMAIL SUPPORT
The Vendor will acknowledge a request from the Customer via email within 24 hours and will work with the Customer to help resolve the issue within 3 business days.
6. MAINTENANCE FEE
a. Amount of Fee. Customer agrees to pay Vendor a Maintenance Fee, in the amount set by the Vendor and listed on the website (www.gaiamatics.com/purchase.html), plus taxes pursuant to Section 7 hereof, for Standard Maintenance Services provided by Vendor pursuant to this Agreement.
b. Discontinuance. Customer understands that if Customer discontinues and then resumes purchase of Standard Maintenance Services, Customer will be required to pay Vendor the entire Maintenance Fees for the period of discontinuance, plus the Maintenance Fee for the term of Standard Maintenance Services then commencing.
7. PAYMENT TERMS
a. Renewal. Customer agrees that to continue Standard Maintenance Services Customer will renew the agreement within 30 days of agreement's expiration date.
b. Payment Terms. Payment shall be in Canadian currency.
c. Taxes. "Taxes" means all federal, provincial, local and other taxes, including sales, use and property taxes, related to this Agreement, Customer's use of the Software, or any services provided by Vendor to Customer related to the Software, excluding taxes based on Vendor's net income.
8. OBLIGATIONS OF CUSTOMER
a. Customer Contact. Customer shall notify Vendor of Customer's designated Customer Contact. To the maximum extent practicable, Customer's communications with Vendor will be through the Customer Contact.
b. Installation. Customer agrees to install all corrections of substantial defects, minor bug fixes and updates, including any enhancements, for the Software in accordance with the instructions and in order of receipt from Vendor.
c. No Modification of Software. Customer agrees not to modify, enhance or otherwise alter the Software, unless and only to the extent specifically authorized by written consent of Vendor.
d. Error Documentation. Upon request for customer support, Customer, as requested by Vendor, agrees to provide Vendor a listing of output and any other data, including databases and backup systems, that Vendor reasonably may request in order to reproduce operating conditions similar to those present when the error occurred.
9. LIMITATIONS
No arbitration or other action under this Agreement, unless involving death or personal injury, may be brought by either party against the other more than one (1) year after the cause of action arises. Neither party shall be liable to the other for lost profits or indirect, special or consequential damages arising out of this Agreement, even if the party has been notified of the possibility of such damages. Under no circumstances will liability exceed the amounts paid by Customer to Vendor under this Agreement.
10. TERMINATION
a. Event of Termination. Vendor shall have the right to terminate this Agreement and all services provided pursuant to this Agreement (i) upon termination of Customer's Software License Agreement by either party for any reason, and (ii) if Customer or its employees or agents violate any provision of this Agreement and Customer fails to cure such violation within fifteen (15) days after receipt of written notice from Vendor.
b. Procedure. Within ten (10) days after termination of this Agreement, Customer will return to Vendor, at Customer's expense, the Software and all copies thereof, delete or destroy all other Software copies, and certify, in writing by an officer of Customer, that the Software has been returned, all copies deleted or destroyed, and its use discontinued.
11. OWNERSHIP
Customer acknowledges that Vendor owns all proprietary rights, including patent, copyright, trade secret and other proprietary rights, in and to the Software and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications, to the Software.
12. GENERAL PROVISIONS
a. Notices. All notices to the Vendor under this Agreement are to be sent by mail to the address below or to any other address as the Vendor may designate:
Gaiamatics Solutions, Inc.
P.O. Box 160,
Lawrencetown, NS,
B0S 1M0,
Canada
b. Assignment. Customer will not assign or sublicense, in whole or in part, any of its rights or obligations under this Agreement without the prior written consent of Vendor, which consent shall not be unreasonably withheld.
c. Complete Agreement; Amendment. This Agreement sets forth the entire understanding of the parties with respect to the subject matter of this Agreement. Any amendment to this Agreement must be in writing and signed by both parties.
d. Waiver. The waiver or failure of Vendor to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.
e. Severability. If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible.
f. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Nova Scotia and the parties hereby attorn to the jurisdiction of the courts of Nova Scotia.
g. Arbitration. The parties hereto agree that any dispute between them arising out of or relating to this Agreement shall be settled exclusively by arbitration in accordance with the rules of the Arbitration and Mediation Institute of Canada. A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within thirty (30) days, then the parties agree that a single arbitrator shall be appointed by the Arbitration and Mediation Institute of Canada. The arbitrator may award legal fees and costs as part of the award. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction.