Software Maintenance Terms & Conditions
IMPORTANT – READ CAREFULLY: These Software Maintenance Terms & Conditions, including any supplemental terms published from time to time (collectively, “Terms & Conditions”), set forth the basis upon which Positek RFID (“Supplier”) agrees to provide you (“Customer”) with maintenance support services (“Software Maintenance”) for the Covered Software identified on in the Master RFID Agreement for Equipment, Services, Software License and Maintenance, Positek RFID Quote, or any accompanying proposal, order acknowledgement, or invoice (as applicable, the “Sales Confirmation”). These Terms & Conditions, together with the Sales Confirmation, constitute our “Agreement.” To the extent there is a conflict between the terms of the Sales Confirmation and these Terms & Conditions, the terms of the Sales Confirmation shall control.
Table of Contents
Section 1. Using Covered Software
Section 2. Fees & Subscription Renewal
Section 3. Restrictions on Use
Section 4. Modifications; Reverse Engineering
Section 5. Upgrades & Additional Copies
Section 6. Use with Third-Party Products
Section 7. Beta & Trial Use
Section 8. Changes & End of Life
Section 9. Ownership
Section 10. Confidential Information & Use of Information
Section 11. Intellectual Property Indemnity
Section 12. Limited Warranty & Disclaimer
Section 13. Limitations & Exclusions of Liability
Section 14. Audit & Verification
Section 15. Export
Section 16. Termination & Suspension
Section 17. U.S. Government End Users
Section 18. Miscellaneous
Section 19. Definitions
Section 1. Maintenance Term; Renewal
Unless otherwise specified in the Sales Confirmation, the term of this Agreement is for a period of three (3) years (“Initial Term”) beginning on the Delivery Date. At the end of the Initial Term and each one-year anniversary thereafter, Software Maintenance shall automatically renew for successive periods of one (1) year (each, a “Renewal Term,” and together with the Initial Tern, the “Term”) at Supplier’s then current rates; provided, that, with respect to Covered Software that is licensed to Customer on a subscription or SaaS basis, this Agreement shall terminate automatically upon the expiration or termination of the applicable “Usage Rights” (as defined in accordance with the applicable Supplier end user license agreement); and, provided further, that, with respect to Covered Software licensed to Customer on a perpetual basis, either party may elect to not renew this Agreement by providing written notice to the other party at least 30 days prior to the end of the applicable Initial Term or the then current Renewal Term.
Section 2. Scope of Maintenance Services
The term “Covered Software” refers to both (a) Supplier software that is licensed to Customer on a perpetual basis for which Customer has expressly subscribed for Maintenance Service in the Sales Confirmation, and (b) Supplier software that is licensed to Customer on a subscription or SaaS basis. During the Term of this Agreement, except as may be stated to the contrary on in the Sales Confirmation, Supplier will provide Customer with the following maintenance services with respect to the Covered Software (“Support”):
(a) General Technical Support. Supplier will provide Customer with reasonable technical assistance as described below, such technical assistance to be provided via telephone, video conference, e-mail or facsimile: (i) Supplier will determine if the problems the Customer is encountering are attributable to errors in the Covered Software; (ii) Supplier will answer questions concerning installation of the Covered Software in the form originally delivered and installed, if applicable, by Supplier; and (iii) Supplier will seek to resolve Customer’s problems that occur during normal usage of the Covered Software. Notwithstanding the foregoing, if Supplier determines in its sole discretion that Customer requires ongoing help with a particular problem that is not caused by errors in the Covered Software, Supplier may refer Customer to Supplier’s professional services support group, for which an additional charge may apply.
(b) Remedying Software Errors. If Customer notifies Supplier in writing that such Covered Software does not operate substantially in accordance with standard user and technical documentation for such Covered Software (“Documentation”), Customer shall provide to Supplier such information and materials as Supplier may reasonably request to document and reproduce such problem and to verify whether any proposed solution corrects such problem. Such information may include a written explanation of such problem, a written description of the operating environment, and (if permitted) a copy of any software program used with the Covered Software. Following the receipt of such information and materials, if Supplier determines that such Covered Software does not operate substantially in accordance with the related Documentation, then Supplier will use reasonable commercial efforts to remedy any programming error in the Covered Software that is attributable to Supplier and prevents the Covered Software from substantially conforming to its Documentation. Such remedy may consist of correcting portions of the Covered Software or of communicating to Customer a workaround that gives Customer the ability to achieve substantially the same functionality as would be obtained without the programming error, as determined by Supplier. Supplier may, at Supplier’s option, replace the defective Covered Software.
(c) Contacting Supplier. To receive the Support under Section 2 (a) or (b) above, the Customer must contact Supplier by calling, emailing or faxing Supplier’s Customer Support Center at the numbers stated in the Sales Confirmation. The Customer Support Center will direct the Customer’s call to the appropriate Supplier support personnel, depending upon Supplier’s determination of the nature of the problem the Customer is experiencing with the Covered Software. Supplier will acknowledge requests for support within one (1) business day of its receipt of Customer’s request for support.
(d) Software Updates. During the Term of this Agreement, Supplier will make available to Customer for no additional fee updates, bug fixes and corrections generally released by Supplier for such Covered Software (collectively, “Updates”), together with updates to the applicable Documentation when made generally available to Supplier’s customers. The term “Updates” does not include any Upgrades, or any new products or modules which Supplier prices separately. Documentation will be in hard copy, on-line or another format as Supplier may determine. Updates shall be deemed included in the definition of “Covered Software” for purposes of this Agreement. If applicable, all prior versions or other portions of Covered Software replaced by an Update shall be destroyed by Customer.
(e) Software Upgrades. During the Term of this Agreement, Supplier will make available to Customer for purchase Upgrades to the Covered Software in object code, as the Upgrades become available for general release by Supplier. Any Upgrades agreed-upon by the parties shall be added as “Covered Software” to this Agreement and the costs thereof shall be added to the usage fees payable by Customer. The term “Upgrades” means modifications to Covered Software that generally include new features and/or significant enhancements to existing features, and which are generally denoted by Supplier as a change to one or more of the numbers to the left of the decimal point in the version number of the Covered Software, and include new product modules (a separate software product that offers new functionality) or edition upgrades (an upgrade to the next license level or next generation software product).
(f) Additional Support. Unless otherwise expressly agreed to in writing by Supplier and Customer, any services performed by Supplier beyond the scope of this Section 2 shall be billable to Customer at Supplier’s then current rates.
Section 3. Limitations to Maintenance Services
(a) Supplier’s Support obligations are limited to the then current version of the Covered Software and any previous version released no more than 90 days earlier; if the current version was released longer than 90 days ago, support will be continued until further notice.
(b) Support obligations hereunder do not extend to any third-party off-the-shelf application that may have been provided to the Customer, and expressly do not include training, migration of an existing installation to a new server or a different database management system, upgrade of the operative system, upgrade of the hardware, upgrade of the database management system, downgrade to a previous release, installation of SSL certificates, backup, restore of a damaged installation, recover caused by bad practices or interventions of the customer (e.g., manual editing of configuration files, database alterations, wrong deletions, etc.), custom reports design and assistance, custom form design and assistance, custom dashlets design and assistance, assistance in programming automation scripts, analysis, consultancy, assisted installation of patches and updates, fine tunings, performance optimizations, logs analysis, assistance in style and branding customizations.
(c) Supplier has no obligation to correct errors that are due to (i) a breach by Customer of the terms of Customer’s license for the Covered Software; (ii) computer equipment that has not been provided by Supplier; (iii) any modifications to the Covered Software made by Customer or a third party that have not been approved by Supplier; (iv) Customer’s failure to install or use the Covered Software in accordance with the Documentation accompanying the Covered Software; (v) any accident, abuse, or misapplication; or (vi) the use of the Covered Software in combination with any defective or malfunctioning hardware, operating system or peripheral device, or any third party software or hardware not authorized in advance by Supplier. In addition, Supplier has no obligation to provide Support with respect to any portion of the Covered Software which been used other than in the ordinary course of Customer’s business. In the event Supplier agrees to correct any errors not covered by this Agreement, Customer must pay Supplier for all such work at Supplier’s then-current standard time and materials charges and upon then-current terms and conditions.
(d) Supplier has no obligation to support Customer in connection with errors that are reported with equipment or items other than the Covered Software itself.
(e) Supplier has no obligation hereunder to provide Customer with any repaired or replacement key or media for the Covered Software.
Section 4. Customer’s Responsibilities
(a) Requests for support must describe the problem with the Covered Software in sufficient detail to enable Supplier to understand and duplicate or recreate the problem. Customer must provide such information as may be requested by Supplier when submitting a request for support, including but not limited to: (i) Covered Software installation address, Customer account number, equipment and serial number (as may be shown on the Sales Confirmation), product registration number, license number or incident number, if applicable; (ii) name and version number of the Covered Software; (iii) exact wording of error messages; (iv) recital of steps taken by Customer before the problem occurred; and (v) a list of steps taken by Customer in attempting to resolve the problem. Supplier reserves the right to request such further information as Supplier deems necessary.
(b) Customer shall make its computer systems available to Supplier via remote access in order to enable Supplier to perform the Support and any additional services with respect to Covered Software. Customer shall be responsible, at its own expense, for acquiring and implementing the necessary telecommunications connections and remote access software.
(c) Customer agrees to back up all data, files and information prior to the commencement of any Support and is responsible for any data, files and information lost or altered during the performance of such Support.
(d) Customer agrees to incorporate any and all Updates and Upgrades as soon as practicable and acknowledges that failure to incorporate such Updates and Upgrades may make subsequent Updates unusable.
(e) Customer must designate a named contact person per installation who will receive all corrections, Updates and Upgrades (if any), correspondence, and other communications concerning the Covered Software, and will notify Supplier in writing of any change in the contact person.
(f) Customer acknowledges that any Updates and Upgrades provided by Supplier are subject to the terms and conditions of the license agreement pursuant to which the Customer obtained the Covered Software and agrees to abide by those terms and conditions.
Section 5. Payment Terms
(a) Supplier will invoice Customer for the Covered Software support fees along with any other fees or charges arising hereunder in accordance with the payment terms set forth in the Agreement. Unless otherwise specified in the Sales Confirmation, payments are due within thirty (30) days of the date of Supplier’s invoice.
(b) Unless otherwise specified in the Sales Confirmation (i) support fees for Covered Software licensed or made available for Customer’s use on a subscription or SaaS basis are included in the applicable usage fees for such Covered Software, and (ii) support fees for Covered Software licensed to Customer on a perpetual basis are included in the applicable license fee for such Covered Software for the first twelve (12) months of the Support only.
Section 6. Taxes
All fees and charges hereunder are exclusive of any applicable federal, state or local taxes or VAT that are imposed as a result of transactions under this Agreement, and the same will be invoiced as a separate item to Customer, unless Customer has provided Supplier with documentation showing that Customer is authorized by law to be exempt from taxation or to pay any such taxes directly to the appropriate governmental jurisdiction. Any applicable Provincial Sales Tax and Goods and Services Tax or any other Consumption Tax will be shown separately on the invoices and will be payable by the Customer. Income taxes, or similar taxes, assessed or imposed on Customer remain Customer’s responsibility. Where applicable custom duties are included in the price.
Section 7. Termination; Suspension of Support; Reinstatement
(a) Either party may terminate this Agreement in the event the other party fails to cure a material breach within 30 days of receiving written notice of such breach. Such termination becomes effective upon expiration of the 30-day period and is in addition to all other rights and remedies arising from such breach. Supplier reserves the right to refuse to renew this Agreement for all versions of the Covered Software that were released longer than 90 days ago; support for these versions is contracted on a case-by-case basis only. Supplier further reserves the right to terminate this Agreement upon the occurrence of any event that would entitle Supplier to terminate the end user license agreement applicable to the Covered Software (“EULA”). In the event of termination or expiration of this Agreement, (a) all fees or charges then due or to become due based upon Support already rendered become immediately due and payable, and (b) if this Agreement is terminated by Supplier other than as of the end of the Term, Supplier shall be entitled to recover from Customer the amount of the fees remaining unpaid by Customer for the remainder of Term, and Customer’s obligation to pay such amounts survives the termination of this Agreement. Supplier has no obligation to provide any Support under this Agreement if any amounts due to Supplier from Customer hereunder remain due and unpaid for more than 60 days.
(b) If this Agreement is terminated, or if Customer discontinues Support for any reason, Supplier may reinstate Support, provided Customer pays to Supplier a reinstatement fee equal to the Support charges that would otherwise have been due for the period of discontinuance. Additionally, unless otherwise agreed in writing, Customer shall be responsible for costs associated with migrating Customer to the then-currently supported version of the Covered Software. Such costs may include, without limitation, license or upgrade charges for the Covered Software release, and any related installation, integration or customization fees.
Section 8. Disclaimer, Limitations & Exclusions of Liability.
(a) Supplier expressly disclaim all warranties, conditions or other terms, whether express, implied or statutory, including without limitation, warranties, conditions or other terms regarding merchantability, fitness for a particular purpose, design, condition, capacity, performance, title, and non-infringement. Supplier does not warranty the performance or results Customer may obtain using the Covered Software or that the Covered Software will operate uninterrupted or error-free or that all errors will be corrected. In addition, Supplier does not warrant that the Covered Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
(b) In no event will Supplier or its licensors be liable for the following, regardless of the theory of liability or whether arising out of the use or inability to use the Software or otherwise, even if a party been advised of the possibility of such damages: (i) indirect, incidental, exemplary, special or consequential damages; (ii) loss or corruption of data or interrupted or loss of business; or (iii) loss of revenue, profits, goodwill or anticipated sales or savings. All liability of Supplier, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to Customer, whether based in warranty, contract, tort (including negligence), or otherwise, shall not exceed the annual support fees received by Supplier with respect to such Covered Software. This limitation of liability for Software is cumulative and not per incident. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.
Section 9. Miscellaneous
(a) Survival. Sections 5 (Payment Terms), 6 (Taxes), 7 (Termination; Suspension of Support), 8 (Disclaimer, Limitations & Exclusion of Liability), and 9 (Miscellaneous) shall survive termination or expiration of this Agreement.
(b) Customer Representations. By accepting this Agreement and/or by using the Covered Software, Customer represents and warrants that all information provided by Customer to Supplier in connection with Customer’s purchase, license or acquisition of rights to access the Covered Software is true and accurate in all material respects. Customer further represents and warrants that Customer is duly authorized to enter into this Agreement for and on behalf of the appliable person, company, or other entity. Should either of these representations prove false at any time, Supplier may, in Supplier’s sole discretion, terminate this Agreement without any obligation to Customer.
(c) Third-Party Beneficiaries. This Agreement does not grant any benefits to any third party unless it expressly states that it does.
(d) Governing Law & Venue. This Agreement, and any dispute arising under or in connection with this Agreement, shall be governed by the law of the Commonwealth of Pennsylvania, and the federal laws of the United States of America, without reference to conflicts of laws principles or provisions. Any litigation under or in connection with this Agreement, or any Products or Services provided hereunder, shall be brought in the Montgomery County, Pennsylvania, Court of Common Pleas, or the U.S. District Court for the Eastern District of Pennsylvania, and each party hereby consents to the jurisdiction of such court.
(e) Assignment. Supplier may assign this Agreement effective upon sending written notice to Customer. This Agreement may not be assigned by Customer without Supplier’s prior written consent, which consent may be withheld in Supplier’s sole discretion. In no event may Customer assign this Agreement or any rights hereunder, to an entity deemed by Supplier to be a competitor of Supplier. For the purposes of this clause, assignment shall include a merger, consolidation, reorganization, or sale of substantially all of the assets or the shares or ownership interests of Customer.
(f) Severability. If any of the provisions of this Agreement are subsequently determined to be invalid under any applicable statute or rule of law, such provision shall be, to that extent, deemed omitted and the remainder shall be valid and enforceable.
(g) No Waivers. The failure of either party at any time to require performance by the other party of any provision hereof shall POSITEK RFID SOFTWARE not affect in any way the full right to require such performance at any time thereafter. The waiver by either party of a breach of any provision hereof shall not be taken, construed or held to be a waiver of the provision itself or a waiver of any breach thereafter or any other provision hereof.
(h) Force Majeure. Supplier shall not be liable for, nor be deemed in breach of this Agreement as a result of, any delay or failure of performance resulting from any act of God, pandemic or epidemic, governmental action, strike, labor shortage, war, civil disorder, unavailability or shortage of parts or supplies, failure of transportation or other cause beyond its control and without its fault or negligence. Supplier will not be responsible for Customer’s access to Covered Software to the extent it is adversely affected by (i) Customer’s equipment, software or other technology and/or third party equipment, software or other technology outside of Supplier’s control (e.g., local network or firewall issues); (ii) outages caused by hackers, sabotage, viruses, worms or other third party wrongful actions; (iii) power outages at Customer’s facility; or (iv) internet access or related problems at Customer’s facility.
(i) Authority. No agent, employee or representative of Supplier has any authority to bind Supplier to any affirmation, representation or warranty concerning any Covered Software supported under this Agreement unless such affirmation, representation or warranty is specifically included within this Agreement and is confirmed in writing by an authorized officer of Supplier.
(j) Merger; Amendment. This Agreement is the complete agreement between the parties with respect to the Covered Software and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral) regarding this subject matter. This Agreement shall not be amended or altered except in writing signed by the authorized representatives or officers of the parties.
(k) Non-Solicitation. Customer shall not, directly or indirectly, either for its own benefit or purpose or for the benefit or purpose of any other person, for the period of this Agreement and for one year thereafter, employ or offer to employ, call on, actively interfere with Supplier’s relationship with, or attempt to divert or entice away, any employee of Supplier or an affiliate of Supplier.
(l) Supplier Partner Transactions. If Customer purchases, licenses, or otherwise acquires access to Covered Software from a Supplier Partner, the terms of this Agreement apply to Supplier’s obligations to provide Support for that Covered Software and prevail over any inconsistent provisions in Customer’s agreement with the Supplier Partner.
(m) Changes. Supplier may alter or revise the terms of this Agreement by giving Customer thirty (30) days’ notice of the changes. If Customer does not agree to accept the changes, Customer’s sole remedy will be to terminate this Agreement.
(n) Notices. Supplier may provide Customer with notice via email, regular mail and/or postings on the PositekRFID.com website or any other website used with the Covered Software. Notices to Supplier should be sent to Positek RFID, Attn: Legal Department, 1210 Stanbridge St, Suite 710, Norristown, PA 19401, U.S.A., unless this Agreement, applicable supplemental terms or Sales Confirmation specifically allows other means of notice.
(o) Translations. Supplier may provide local language translations of this Agreement in some locations. Customer agrees those translations are provided for informational purposes only and if there is any inconsistency, the English version of this Agreement will prevail.
(p) Order of Precedence. If there is any conflict between this Agreement, any specific terms and conditions applicable to specific Covered Software as provided by Supplier (“Product Specific Terms”), an applicable EULA, or Supplier’s standard terms and conditions, the order of precedence is:
(i) such Product Specific Terms;
(ii) this Agreement;
(iii) the EULA; then
(iv) any applicable Supplier standard terms and conditions.
LAST UPDATED: 2/16/2023