Terms and conditions
These Software-as-a-Service Terms and Conditions (the “Terms”) are entered into by and between Dapt Tech, Inc. (“Provider”) and the organization or individuals (“Customer”) that has subscribed to licenses to access and use any software-as-a-service (“SaaS”) product provided by Provider (“Dapt Software”). These Terms are effective on the date on which Customer executes a purchase order or order form referencing these Terms (each, a “Order Form”);
1. SCOPE OF LICENSE; RESTRICTIONS.
1.1 Access; License. Subject to the terms of these Terms and the terms of the applicable Order Form, Provider grants to Customer a non-exclusive, revocable, non-sublicensable, non-transferable right to: (a) access and use the Dapt Software; and (b) use any applicable documentation or other information provided by Provider with respect to the applicable Dapt Software (“Documentation”), during the Term indicated on the applicable Order Form by those individuals authorized to access and use such SaaS Software on Customer’s behalf (each, an “End User”).
1.2 End Users. Customer is responsible and liable for all uses of the Dapt Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its End Users, and any act or omission by an End User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall use reasonable efforts to make all End Users aware of the provisions of these Terms, as applicable to such End User’s use of the Dapt Software, and shall cause all End Users to comply with such provisions.
1.3 Credentials. To access and use the Dapt Software, each End User shall register to receive login credentials. Customer shall ensure that each login credential is only used by the End User to whom it relates. Customer shall promptly notify Provider in writing if an individual ceases to be authorized to access and use the Dapt Software, so that access under that individual’s credentials can be terminated. Customer is solely responsible for the security and use of all login credentials. Customer shall promptly notify Provider in writing if it becomes aware of any unauthorized access to or use of the Dapt Software.
1.4 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Dapt Software, including without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall be responsible for maintaining the security of Customer’s Equipment and for all uses of its Equipment.
1.5 Use Restrictions. Except as otherwise provided in the order form , Customer shall not itself, or through any third party, and shall cause End Users to not: (a) decompile, disassemble, reverse engineer or otherwise attempt to discover the source code for the Dapt Software or determine how the Dapt Software is provided; (b) modify, transform or otherwise prepare a derivative work of the Dapt Software; (c) sell, distribute, sublicense, rent, lease, assign, pledge or otherwise make the Dapt Software available to or grant any rights in the Dapt Software to any unauthorized third party; (d) remove or modify any confidentiality or proprietary rights notices contained in or on the Dapt Software or the accompanying documentation for the Dapt Software; (e) attempt to gain access to areas of the Dapt Software which it has not been granted access to or unauthorized access to related systems or networks or breach any security measure; (f) use the Dapt Software in a manner that would be reasonably anticipated to interfere with, degrade or disrupt the integrity or performance of Provider’s technologies, services, systems or offerings; (g) develop a competitive product or service using ideas, features, functions or graphics that are the same as or similar to those contained in the SaaS Software; or (h) otherwise use the Dapt Software in a manner that is not contemplated by the Terms, including in a manner not contemplated by the accompanying Documentation for the Dapt Software or in a manner that violates any applicable laws or third-party rights.
1.6 Suspension. Provider may temporarily suspend Customer’s or any End User’s access to any portion or all of the Dapt Software, if: (a) Provider reasonably determines that (i) there is a threat or attack on any of the Dapt Software; (ii) Customer’s or any End User’s use of the Dapt Software disrupts or poses a security risk to the Dapt Software or to any other Customer of Provider; or (iii) Customer, or any End User, is using the Dapt Software for fraudulent or illegal activities; (b) Customer or any End User is in breach of these Terms; (c) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Dapt Software or (d) Customer has not paid any invoice within forty-five (45) days of the date of the invoice. Provider shall use commercially reasonable efforts to provide written notice of any such suspension to Customer following such suspension. Provider shall use commercially reasonable efforts to resume providing access to the Dapt Software as soon as reasonably possible after the event giving rise to the suspension is cured.
1.7 Right to Modify or Discontinue. Provider reserves the right to add or modify any feature, functionality, or other tool, within the Dapt Software at its own discretion and with or without prior notice to Customer. Provider shall provide Customer 90 days written notice prior to discontinuing any material feature or functionality within the Dapt Software.
2. AVAILABILITY; SUPPORT.
2.1 Dapt Software Availability. Provider shall use commercially reasonable efforts to make the Dapt Software available and provide certain support services in accordance with the terms of Exhibit A.
3. PAYMENT.
3.1 Fees. Customer shall pay to Provider all fees as set forth in the applicable Order Form. (“Fees”). All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any applicable governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
3.2 Payment. Unless otherwise set forth in the applicable Order Form, Customer shall pay all Fees within thirty (30) days of the invoice date. If Customer fails to make any payment of the Fees when due, without limiting Provider’s other rights and remedies, Provider may shut down access to the software and or charge interest on the past due amount at the rate of 1.5% per month or the maximum amount permitted by law, whichever is lower. In addition to Provider’s right to charge interest on the past due amount, Customer agrees to reimburse Provider for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
4. TERM AND TERMINATION.
4.1 Term. These Terms shall commence on the Effective Date and shall continue until all Order Form and License Terms have expired or been terminated pursuant to these Terms or the applicable terms of the Order Form (“Term”). Unless otherwise set forth in the applicable Order Form, the initial term of each Order Form shall be one (1) year (“Initial Term”). Upon expiration of the Initial Term, the Order Form shall automatically renew for successive one-year periods (each, a “Renewal Term”), unless either party provides written notice of non-renewal within sixty (60) days from expiration of the Initial Term or then-current Renewal Term.
4.2 Termination for Breach. Either party may terminate these Terms or any active Order Form upon written notice to the other party if such party breaches these Terms or the terms of an active Order Form and fails to cure such breach (if curable) within thirty (30) days after receiving written notice from the other party specifying the nature of the breach. Either party may terminate these Terms or any active Order Form immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors.
4.3 Effect of Termination. Upon expiration or earlier termination of these Terms or an Order Form, Customer shall immediately discontinue use of all applicable Dapt Software..
5. REPRESENTATIONS AND WARRANTIES.
5.1 Mutual Representations. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing; and (b) it has the full right, power and authority to enter into these Terms and to perform its obligations hereunder.
5.2 Limited Software Warranty. Provider does not warrant that the Dapt Software will be free of errors or defects or meet Customer’s requirements. Provider warrants only that the Dapt Software, when used in accordance with these Terms, will function substantially in accordance with the current version of the Documentation (“Software Warranty”). The Software Warranty does not apply upon any of the following: (a) any unauthorized modification to the Dapt Software; or (b) the operation of the Dapt Software in violation of these Terms or the Documentation. Provider shall use commercially reasonable efforts to correct the Dapt Software upon receipt of written notice of a warranty defect. In the event Provider is unable to remedy the warranty defects within a reasonable period of time, Customer’s sole remedy and Provider’s sole liability shall be to receive a refund of any Fees paid hereunder for the Dapt Software which contains an uncorrected warranty defect.
5.3 Third-Party Materials. Customer acknowledges that the Dapt Software may contain, incorporate, or otherwise make use of third-party materials or software (“Third-Party Materials”). Third-Party Materials are not covered by any warranties set forth in this Section 5. Provider makes no representations or warranties with respect to any Third-Party Materials, and all use of Third-Party Materials is at Customer’s own risk.
5.4 DISCLAIMER OF WARRANTIES. Provider does not specifically warrant the accuracy or completeness of any information or outputs provided by the Dapt Software. Provider is not responsible or liable in any manner for any inaccuracies, missing information, or other errors with respect to any information or outputs provided by the Dapt Software, including any inaccuracies with respect to payroll processing, and any reliance Customer places on such information is strictly at its own risk. Provider disclaims all liability and responsibility arising from any reliance placed on such materials and results by Customer. THE DAPT SOFTWARE AND DOCUMENTATION AND ANY SERVICES PROVIDED BY PROVIDER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES PROVIDED HEREIN AND ANY WARRANTIES EXPRESSLY PROVIDED IN SEPARATE WARRANTY DOCUMENTATION PROVIDED BY PROVIDER APPLICABLE TO THE DAPT SOFTWARE, PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE DAPT SOFTWARE OR THE SERVICES WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.
6. INTELLECTUAL PROPERTY.
6.1 Provider Intellectual Property. Provider, its third-party licensors, and their respective successors and assigns shall retain all right, title, and interest in and to all Intellectual Property Rights used to create or develop, embodied in, used in, or otherwise relating to the Dapt Software, Documentation, and components thereof. These Terms do not constitute a sale of any Intellectual Property Rights embodied in the Dapt Software, the Documentation, or any component thereof (or any copy, derivative work, upgrade, improvement, or modification thereof). Except for the limited rights expressly granted herein, Customer and its End Users are not granted any right, title or interest in or to any of the foregoing. To the extent any right, title or interest in or to any Intellectual Property Rights of Provider vests in Customer or its End Users, Customer, on behalf of itself and its End Users, hereby assigns to Provider all such right, title and interest. Customer acknowledges and agrees that any goodwill derived from its use of Provider’s Intellectual Property Rights inures to the benefit of Provider or its licensors, as applicable. All rights not expressly granted under these Terms are reserved by Provider. There are no implied rights. For clarity, no customization or alteration to any Dapt Software or any accompanying Documentation shall constitute a transfer of Intellectual Property Rights in such Dapt Software or Documentation.
6.2 Prohibited Acts. Customer shall not: (a) take any action that interferes with any of Provider’s Intellectual Property Rights, including Provider’s ownership or exercise thereof; (b) challenge any right, title or interest of Provider in or to Provider’s Intellectual Property Rights; (c) make any claim or take any action adverse to Provider’s ownership of Provider’s Intellectual Property Rights; (d) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Dapt Software or Provider itself; and (e) alter, obscure or remove any of Provider’s proprietary rights notices, including any patent markings or copyright notices, placed on the Dapt Software.
6.3 Feedback. Customer or any End User may provide Provider with comments, ideas, suggested changes, improvements, problems, defects and other feedback relating to the operation of the Dapt Software (collectively, “Feedback”). To the extent Customer or any End User provides any Feedback, Customer, on behalf of itself and its End Users, hereby assigns to Provider all right, title and interest therein and thereto, including all associated Intellectual Property Rights.
7. DATA.
7.1 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all information, data and other content provided to Provider by or on behalf of Customer or its End Users through the Dapt Software (collectively, the “Customer Data”). Customer grants Provider the right to host, use, process, display and transmit Customer Data to provide the Dapt Software pursuant to and in accordance with these Terms and the applicable Order Form. Customer (a) has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data, and (b) represents and warrants that it has obtained all rights related to Customer Data required by Provider to provide the Dapt Software.
7.2 De-Identified Data. Customer grants to Provider a non-exclusive, perpetual, royalty-free, assignable, transferrable, sublicensable license to reproduce, distribute, display, create derivative works of, and otherwise exploit the Customer Data solely for the purposes of providing the Dapt Software to Customer and creating the De-Identified Data. Provider and its licensors may use the De-Identified Data for any lawful purposes, including, but not limited to, for the purposes of improving and further developing the Dapt Software. “De-Identified Data” means all data derived by Provider through processing or analyzing the Customer Data and otherwise through the operation of the Dapt Software, provided that the De-Identified Data will not be in a form that could be used to identify Customer or its End Users.
7.3 Information Security. Provider will use commercially reasonable industry standard security technologies in providing the Dapt Software. Provider has implemented and will maintain appropriate technical and organizational measures, including information security policies and safeguards, designed to preserve the security, integrity, and confidentiality of Customer Data and to protect against unauthorized or unlawful disclosure or corruption of or access to Customer Data.
7.4 Data Retention and Archival. Upon expiration or termination of these Terms or any applicable Order Form, Provider will move Customer Data into an archived state. Archived Customer Data will not be actively processed or used but will remain securely stored for a period of one (1) year, unless a longer period is required by applicable law, regulation, or legal process. During this retention period, Customer may request retrieval of archived Customer Data. Provider will make such data available within a commercially reasonable timeframe, subject to payment of Provider’s then-current retrieval fees. At the end of the retention period, or upon Customer’s written request (unless prohibited by law, regulation, or legal process), Provider will permanently delete Customer Data from its systems. Provider may retain minimal system logs, backups, or anonymized information beyond the retention period for security, audit, or compliance purposes.
8. INDEMNIFICATION.
8.1 Indemnification by Provider. Provider shall indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, damages, losses, demands and expenses of every kind, including reasonable attorneys’ fees, costs and disbursements (collectively, “Damages”), arising out of or relating to any allegations or actual proceedings, investigations, actions, suits or any other claims brought by a third party (collectively, “Claims”) that the Dapt Software, as used in accordance with these Terms and the applicable Order Form, infringes, misappropriates or otherwise violates any third-party Intellectual Property Rights. Provider will have no obligation to indemnify Customer under Section 8.1 of these Terms to the extent the Claim is based upon (a) the unauthorized modification of the Dapt Software; (b) use of the Dapt Software in combination with other products, processes, equipment, data, materials, software or hardware not provided by Provider or contemplated or specified in the Terms or in the Documentation accompanying the Dapt Software; or (c) the use of the Dapt Software in a manner not authorized by the Terms. Section 8 of these Terms states the entire liability of Provider with respect to Claims for infringement of any third-party intellectual property rights by the Dapt Software. Without limiting Provider’s obligations set forth in Section 8.1 of these Terms, if the Dapt Software becomes, or in Provider’s reasonable opinion is likely to become, the subject of a Claim or if as a result of a Claim, or the settlement thereof, the use of the Dapt Software is restricted, prohibited or materially limited, Provider may, at Provider’s sole option and expense (a) procure the right for Customer to continue using the Dapt Software without any additional cost; (b) replace or modify the same so that it becomes non-infringing without any material impact on its functionality or performance; or (c) terminate the Terms and refund to Customer a prorated portion of any prepaid fees covering the period after the effective date of termination.
8.2 Indemnification by Customer. Customer will indemnify, defend and hold Provider harmless from and against any and all Damages arising out of or relating to any Claims (a) that the Customer Data infringes, misappropriates or otherwise violates any third-party Intellectual Property Rights or other rights; (b) arising out of or relating to Customer’s and/or its End Users’ breach of the Terms or Customer’s or any End User’s use of the Dapt Software; or (c) arising out of or relating to Customer’s or any End User’s gross negligence, willful misconduct or illegal acts, including those that cause tangible personal injury or property damage.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE UNDER ANY LEGAL THEORY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR SIMILAR DAMAGES ARISING FROM OR RELATING TO THE TERMS, EVEN IF THAT PARTY KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EXCEPT FOR (A) CUSTOMER’S PAYMENT OBLIGATIONS; (B) ANY MISUSE OF PROVIDER’S INTELLECTUAL PROPERTY RIGHTS BY CUSTOMER; (C) EACH PARTY’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 8; AND (D) BREACHES OF ANY CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 10 BY EITHER PARTY, EACH PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING FROM OR RELATING TO THESE TERMS WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO PROVIDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. CONFIDENTIALITY.
10.1 Defined. “Confidential Information” means all non-public confidential or proprietary information and materials of any nature of or relating to a party which the other party receives or otherwise becomes aware of in connection with the Terms. The Confidential Information of Provider includes the non-public elements of the Dapt Software. The Confidential Information of Customer includes Customer Data. The parties will endeavor to conspicuously mark all such information as confidential if in tangible form (or identify it as such if disclosed orally or in other intangible form), but information need not be marked or identified as confidential to be deemed Confidential Information under the Terms if, under the circumstances of disclosure, such information is, or ought to be, reasonably understood to be confidential.
10.2 Confidentiality Obligations. Each party shall (a) observe complete confidentiality with respect to the disclosing party’s Confidential Information and (b) not use or disclose, or permit to be used or disclosed, the disclosing party’s Confidential Information for any purpose other than as contemplated in the Terms. Notwithstanding the foregoing, the receiving party may disclose the disclosing party’s Confidential Information to, as applicable, those of its employees and any subcontractors who have a need to know such information to assist the receiving party or act on its behalf pursuant to the Terms and who prior to receiving access thereto have signed binding agreements containing confidentiality obligations that are at least as protective of the disclosing party’s Confidential Information as those set forth in the Terms. Without limiting the generality of the foregoing, each party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care. The obligations of confidence in this Section 10.2 shall not apply to Confidential Information which (i) is known by the receiving party before receipt from the disclosing party, and not impressed already with an obligation of confidentiality to the disclosing party; (ii) is or becomes publicly known without the fault of the receiving party; (iii) is obtained by the receiving party from a third party in circumstances where the receiving party has no reason to believe that there has been a breach of an obligation of confidentiality owed to the disclosing party; or (iv) the receiving party can establish by reasonable proof was substantially and independently developed by the receiving Party or representatives thereof who had no knowledge of such Confidential Information.
10.3 Permitted Disclosures. The receiving party may disclose the disclosing party’s Confidential Information (a) to the extent required by law or court order, or the requirement of a governmental authority; provided that the receiving party must provide prompt written notice, if allowed by law, and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict the nature and scope of such disclosure; (b) in privileged communications to such party’s agents, attorneys, auditors, insurers and other representatives and only subject to confidentiality obligations at least as protective as those set forth in the Terms and (c) in connection with a dispute or proceeding between the parties in accordance with the approval and at the direction of the mediator or arbitrator conducting such proceeding.
10.4 Remedies. Each party agrees and acknowledges that any breach or threatened breach of this Section 10 may cause irreparable injury to the disclosing party and that the disclosing party shall be entitled to seek injunctive relief, in addition to any other remedies that may be available to it under the Terms or at law or in equity.
11. MISCELLANEOUS.
11.1 Modifications. Provider may revise these Terms from time to time by posting the modified version on its website or via the Service. By continuing to access or use the Service and/or Website after the posted effective date of the modifications to these Terms, you agree to be bound by the revised version of these Terms.
11.2 Force Majeure. Provider shall not be held liable or responsible to Customer nor be deemed to have defaulted under or breached these Terms for failure or delay in fulfilling or performing any term of these Terms when such failure or delay is caused by or results from causes beyond the reasonable control of Provider including, but not limited to, failure, interruption, or outage of any communication facility, web host, or internet service provider; failure or outage of any products or services provided by a third party; malicious code, tools, or devices designed to disable or disrupt systems, infrastructure, and operations; earthquakes, fire, floods, and other acts of God; embargoes, insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances; acts of war or terrorism; epidemics, pandemics, or other public health events; and omissions or delays in acting by any governmental authority or the other party (“Force Majeure Event”).
11.3 Governing Law. These Terms will be governed by and construed in accordance with the laws of the State of Maryland, without reference to conflict of laws principles that would require the application of the laws of a different jurisdiction. Each party irrevocably agrees that any legal action, suit or proceeding brought by it in any way arising out of or relating to these Terms must be brought solely and exclusively in state and federal courts located in Maryland. The provisions of the United Nations Convention on the International Sale of Goods do not apply to these Terms.
11.4 Assignment. Customer may not assign the Terms or its respective rights and duties under the Terms, without Provider’s prior written consent. Any purported assignment in violation of the foregoing will be null and void.
11.5 Waiver; Severability. A party’s consent to, or waiver of, enforcement of the Terms on one occasion will not be deemed a waiver of any other provision or such provision on any other occasion. If a court of competent jurisdiction adjudges any provision of the Terms to be illegal, invalid or unenforceable, or if any provision becomes illegal, invalid or unenforceable, the remaining provisions of the Terms, if capable of substantial performance, will continue in full force and effect without being impaired or invalidated in any way.
11.6 Publicity. Customer shall not issue or release any publicity or marketing materials relating to the Terms or use Provider’s name or trademarks without the prior written consent of Provider. Provider may include Customer’s name in its list of current and former Customers in promotional and marketing materials with Customer’s consent.
11.7 Notice. If one party is required or permitted to give notice to the other, such notice will be deemed given when delivery confirmation is received and such notice is delivered by United States certified mail, e-mail, or a nationally or internationally recognized overnight courier service to the other party’s at the address set forth in the Order Form. A party may specify new contacts or a new address by providing notice to the other party in accordance with this Section 11.7. Sent via email will be sent to the addresses provided in the Order Form and will be deemed given upon acknowledgement of receipt by the recipient. Customer is solely responsible for ensuring that any email address for notices will be up to date and will communicate any changes in email address to Provider within a reasonable period of time.
11.8 Survival. All provisions that by their nature are intended to survive termination or expiration of these Terms shall survive, including without limitation, Section 4.4 (Effect of Termination); Section 5 (Representations and Warranties); Section 6 (Intellectual Property); Section 7 (Data); Section 8 (Indemnification); Section 9 (Limitation of Liability); Section 10 (Confidentiality); Section 11 (Miscellaneous).
11.9 Entire Agreement. The Terms, which is comprised of the documents set forth on the applicable Order Form and any additional terms and conditions available on Provider’s website, sets forth the complete, exclusive and final agreement of the parties concerning the subject matter hereof and supersedes, replaces and merges all prior and contemporaneous agreements, communications and understandings, oral and written, between the parties concerning the subject matter hereof.
EXHIBIT A
SERVICE LEVELS AND SUPPORT FOR DAPT SOFTWARE
- Service Levels. Provider will use commercially reasonable efforts to make the Dapt Software Available at least 99.5% of the time as measured over the course of each calendar month during the Term, excluding unavailability as a result of any of the exceptions described below (“Availability Requirement”). “Available” means the Dapt Software is available for access and use by Customer and its End Users in material accordance with the applicable Documentation.
- Exceptions. For purposes of calculating the Availability Requirement, the following are exceptions to the Availability Requirement, and the Dapt Software, will not be considered unavailable due, in whole or in part, to any of the following: (i) access to or use of the Dapt Software by Customer or any End User that does not comply with these Terms; (ii) delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under these Terms; (iii) Customer’s or its End Users’ internet connectivity; (iv) a Force Majeure Event; (v) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to these Terms; (vi) Scheduled Maintenance (as defined below); or (vii) Emergency Maintenance (as defined below).
- Scheduled Maintenance. In order to maintain performance and security of the Dapt Software, Provider may need to perform scheduled maintenance that can cause periods of unavailability of the Dapt Software (“Scheduled Maintenance”). Provider will use commercially reasonable efforts to: (a) conduct Scheduled Maintenance during off-peak hours; and (b) give Customer at least forty-eight (48) hours prior notice of all Scheduled Maintenance.
- Emergency Maintenance. Circumstances may require Provider to perform unplanned maintenance due to a condition or situation that may cause material disruption or outage to the Dapt Software and/or pose a security risk to the Dapt Software or Provider’s systems and networks (such unplanned maintenance, “Emergency Maintenance”). Provider will use commercially reasonable efforts to notify Customer with as much advance notice as possible under the circumstance prior to performing Emergency Maintenance.
- Dapt Software Updates. Provider shall provide Customer any update, upgrade, release, or other adaptation or modification of the Dapt Software, including any updated Documentation, that Provider provides at no additional charge to other similarly situated Customers.
- Technical Support. Provider shall provide technical support to Customer Monday through Friday during Provider’s general business hours (EST) (“Support Hours”). All instructions and information for initiating support requests during the Support Hours can be found on Provider’s website.
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