On-Premise Software License Agreement & Service Agreement

Effective May 1, 2022

1. Service Offering. grants to Subscriber, a license which permits Subscriber to use the Provider’s software in executable code format only (“Software”) and in in accordance with applicable laws and regulations, under the Terms and Conditions and in accordance with Provider-supplied product offering documentation. The Software is licensed, not sold. Provider, and not Subscriber, owns the Software, which is protected by United States, Canadian and international copyright laws. Subscriber may use the Software only in the manner set out below. This Agreement gives Subscriber no intellectual property rights in the Software.

1.1 Provider will support your use of the Service Offering and will maintain the Service Offering in the manner set out below. Such support and maintenance is provided on condition that you are current in all payments due to Provider.

1.2 On your request, Provider may provide optional professional services (“PS”) to you. Such PS will be provided on mutually agreed terms set out as standard services in a Quote, or a Statements of Work (all described as “SOW”) and may include, for example, Software installation, implementation and additional training. Additionally:
(a) Your responsibilities and Provider’s responsibilities, project schedules, milestones, deliverables with respect to PS and its delivery will be set out in the SOW.
(b) Provider’s PS and the SOW will be provided based on assumptions and information set out in the information you have provided to Provider. If such assumptions/information provided by you is incorrect then you acknowledge that milestones, schedules, deliverables or pricing of PS may require adjustment. If required, such adjustments will be mutually agreed in writing.
(c) Charges for PS commenced in accordance with SOW milestones or schedules are non-cancellable once commenced. Unless the Service Offering is terminated by Subscriber for cause, PS will be provided in accordance with SOW milestones or schedules and charged based on those milestones and schedules even if deliverables set out such SOW cannot be delivered due to Subscriber’s act, omission or delay.

1.3 Subscriber’s responsibility generally are as follows.
a) The Service Offering is only for your use. You may not provide the Services to any other parties in any manner, including as a service bureau or application service provider.
b) In using the Service Offering, You will adhere to all applicable laws, rules, and regulations.
c) To use the Service Offering You must create a user account associated with a real person. You are responsible for that user account’s security, for all activities that occur under that account and for strictly monitoring who has user account access. You will immediately contact us immediately if you believe that a user account has been compromised or is being used by unauthorized persons.
d) You may use the Service Offerings only in accordance with any documentation and our Acceptable Use Policy (AUP).
e) Subscriber may not alter or modify the Software in any way.

1.4 You are responsible for the accuracy, quality, integrity rights to use and legality of data processed using the Service Offering. You are responsible for ensuring you have the right to use any data, text, audio, video, images, software, lab samples, operational readings, field readings, or other similar content (“Content”) you input into the Services Offering. More particularly it is your responsibility to ensure the following:
a) that Your Content is compatible with then-current interfaces for a Service Offering;
b) that Your Content complies with the terms of the Service Offering, with applicable law and regulation and any Provider AUP; and
c) that You are responsible for dealing with any legal claims relating to Your Content including any intellectual property-related claims.

1.5 No other services are provided with the Service Offering unless mutually agreed to otherwise. Provider may modify this Service Offering at any time. The modified terms will become effective immediately. By continuing to use the Service Offerings after the effective date of any Service Offering modifications, you agree to be bound by the modified terms.

2. Provider will maintain the Service Offering at the latest release making new enhancements and improvements available as part of Provider’s development methodology. In addition to regular maintenance of the Service Offering, Provider will support Service Offering by answering queries from technically trained users designated by Subscriber and resolve such queries in a manner set out below. Support and Maintenance Services as described below are provided with the Service Offering.

3. Service Offering Definitions.

(a) “Case priority 1” means the Service Offering has a system outage or does not work per user documentation, business operations have been severely disrupted and no work around is immediately available;
(b) “Case priority 2” means the Service Offering does not work per user documentation, business operations can continue in a restricted fashion (although long-term productivity might be adversely affected) and no work around is immediately available;
(c) “Case priority 3” means the Service Offering does not work per user documentation, impaired operations of some components, but allows the user to continue use, a work around exists but it is not obvious or is difficult and as a result there is significant impact productivity or efficiency;
(d) “Case priority 4” means the Service Offering does not work per user documentation, business operations are not significantly impacted;
(e) “Case priority 5” means the Service Offering does not work per user documentation and does not affect business operations or does not work as expected and is not in user documentation or is an enhancement request;
(f) “Documentation” means the instruction manual or help on the Service Offering;
(g) “Minor Release” means a release of Software containing bug fixes or other small software changes provided by Provider for the correction of Software anomalies, and made available to the Subscriber;
(h) “Major Release” means a release of Software containing new or improved functionality, and made available to the Subscriber;
(i) “Operating Hours” are 8:00 am – 8:00 pm (Mon – Fri) Eastern Time excluding Provincial, Canadian, State and US statutory holidays and 9:00 am – 5:00 pm (Mon – Fri); Australian Eastern Standard Time excluding Tasmanian and Australian statutory holidays via Hobart, Australia office;
(j) “Resolution” means one or more of the following outcomes: a) a mutually acceptable work around, b) a configuration/data change or c) a Service Offering Change;
(k) “Service Offering Change” means changes to Service Offering functionality;
(l) “Supported Release” means the current, generally available Major Release of the Software or one of its two previous Major Releases.

4. Support and Maintenance Services.

4.1 Description of Services. During any Subscription Term and subject to the provisions of our Terms and Conditions, Provider will use commercially reasonable efforts to provide the following Support and Maintenance Services:
(a) Live telephone support with a support representative during Operating Hours;
(b) Email support during Operating Hours;
(c) Live Web conferencing with a support representative during Operating Hours where required to understand the support case;
(d) Case tracking through our online case tracking system; and
(e) Access to an online Support Portal 24 hours a day, 7 days a week.
(f) Entitlement to download and use each new Major and Minor Release of the Software for which you have obtained licenses.

4.2 Support Service Level Agreement

Case Priority Initial Response Target Time to Resolution
1 1 business day or sooner 2 business days
2 1 business day 3 business days
3 1 business day 10 business days
4 1 business day At Provider’s discretion
5 At Provider’s discretion At Provider’s discretion

(a) A Software Change is only released before the next scheduled Major Release when the Software Change is the only way to resolve a priority 1 or 2 case;
(b) A Software Change is only released for compatibility with the current Major Release or one of the two previous Major Releases.
(c) If you are experiencing issues and not using a Supported Release of the Software, you must upgrade to a Supported Release (preferably the latest Supported Release) and then, if the original case persists, Provider will work with you to find a mutually acceptable resolution.
(d) You must check on the Provider Support Portal to determine if you are using a Supported Release.
(e) Initial Response and Target Time to Resolution time periods start once a case is logged in Provider’s Support Portal.
(f) Resolution times may exceed the Target Time to Resolution time targets depending on the complexity involved in determining the root cause of the case and the complexity of finding a resolution for it. Should this situation arise for priority 1 or 2 cases, the Subscriber will be provided a credit towards their next Annual Subscription Fee calculated as follows:
a. Credit = Annual Subscription Fee X ((Number of business days in excess of Target Time in a given Subscription Term) / (Total Number of business days in the same Subscription Term))
(g) The credit for any Subscription Term cannot exceed the Annual Subscription Fee.
(h) Subscription Term Credits can only be used as a rebate toward the purchase of a subsequent Subscription Term and otherwise has no cash value.
(i) Subscription Term Credits are Subscriber’s sole remedy if resolution times exceed the Target Time to Resolution.

4.3 Resolution of Service Offering Anomaly. A Service Offering anomaly will be considered to be resolved when:
(a) the Service Offering is working in substantial accordance with the Documentation when operated on the supported hardware, operating system and peripheral as designated by Provider; or
(b) Provider has advised the Subscriber of one of the following:
(i) how to correct or bypass the Service Offering anomaly;
(ii) that the correction to the Software anomaly will be available through a future Major or Minor Release; or
(iii) that the anomaly falls within an exception to this Agreement.

5 Exceptions.

5.1 Support and Maintenance Exclusions. Maintenance and Support Services are not provided for and do not apply to:
(a) third party software and middleware or services;
(b) when the Subscriber is in breach of this Agreement or any other agreement between Provider and the Subscriber;
(c) the Service Offering being improperly implemented;
(d) Hardware, peripherals (including printers) or software other than the Service Offering;
(e) Anomalies in the Service Offering that are not reproducible; or
(f) Anomalies, damage or problems in the Service Offering or its operation caused by:
i. an incompatible or non-functioning configuration, operating system or hardware system;
ii. accident, abuse or misapplication for which Provider is not responsible;
iii. malfunction or non-performance of products supplied by third parties;
iv. use contrary to its intended purpose or contrary to the Documentation; or
v. any other matters beyond Provider’s’ control.

5.2 Third Party Vendors. If Provider has corrected a Software anomaly in a Minor Release or Major Release provided to you, then Provider will not be required to provide any other correction for the Software anomaly provided that the functionality of the Software has been maintained in relation to your business requirements. The Subscriber will look solely to the third party vendors of third party software, middleware, hardware or peripheral if there are any anomalies, damage or problems to the Service Offering in or caused by such software, middleware, hardware and/or peripheral.

5.3 Interfaces. Provider will not be responsible for any of the Subscriber’s integration requirements for the Service Offering resulting from a Subscriber’s use of third party vendors who may not integrate with the Service Offering.

5.4 Inactive Support and Maintenance. Support and Maintenance only applies to customers with a valid and current Subscription Term in place, and who are in good standing with Provider’s accounting, finance and payment terms.