END USER LICENSE AGREEMENT
BY ACCEPTING THIS USER AGREEMENT THROUGH AN ORDERING DOCUMENT/FORM THAT INCORPORATES THIS USER AGREEMENT (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES (as defined below)TO THE TERMS AND CONDITIONS OF THIS USER AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS USER AGREEMENT SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. The terms of this User Agreement shall apply to use of the subscription services identified in the Ordering Document. This User Agreement and the Ordering Document shall collectively be referred to herein as the “Agreement.” The terms of the Ordering Document shall control over any conflicting terms in this User Agreement.
You may not access the Services if you are a direct competitor of CorVant (as defined below). You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose.
1. Definitions
(a) “Add-On Module” means optional modules (listed in the Quotation) that offer specific functionality that is not covered under the Power User License and Workforce User License.
(b) “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
(c) “Claim” has the meaning given to such term in Section 9(a).
(d) “Confidential Information” has the meaning given to such term in Section 7(a) of this Agreement.
(e) “Contract Rate” is the amount described in Section 2(d) of this Agreement. The Contract Rate may be amended from time to time upon the submission of each Order Amendment Form by you (and acceptance by CorVant).
(f) “Contract Term” means the term of this Agreement, as set forth in your Quotation.
(g) “CorVant” means CorVant, LLC, or any successor entity.
(h) “Disclosing Party” has the meaning given to such term in Section 7(a) of this Agreement.
(i) “Implementation” means the one-time process of data conversion, system set-up and initial training related to the Services.
(j) “Implementation Fee” means the fees contained in your Quotation related to the one-time charges for Implementation.
(k) “License” or “Licenses” means a license that provides access to the specific Services of PierVantage purchased by you pursuant to the terms and conditions of the Quotation, any Order Amendment Forms and this Agreement.
(l) “Malicious Code” means viruses, worms, time bombs, Trojan horses and other forms of malicious code, files, scripts, agents or programs.
(m) “Order Amendment Form” means the form that will be used by CorVant from time-to-time to formalize the purchase of incremental licenses and/or add-on Modules by you under this Agreement.
(n) “PierVantage” is the trade name and mark under which CorVant provides the Services.
(o) “Power User License” means a License that provides role-based access to the Services of PierVantage, purchased on a concurrent user basis pursuant to the terms and conditions of the Quotation, any Order Amendment Forms and this Agreement.
(p) ‘Quotation” means the Quotation agreement entered into by you and CorVant to purchase the Services hereunder, as may be amended from time to time by the parties.
(q) “Receiving Party” has the meaning given to such term in Section 7(a) of this Agreement.
(r) “Service Level Specifications” means the service level standards by which CorVant will provide the Services, as set forth in Exhibit A below, as amended at the discretion of CorVant from time to time.
(s) “Services” means the online, web-based applications and platform provided by CorVant via https://myportal.piervantage.com/ and/or any other designated websites made available by CorVant to you.
(t) “Subscription” means your acceptance of this Agreement and the purchase of the Services (based on the applicable Licenses purchased by you as set forth on the Quotation and/or any Order Amendment Forms) for the term of this Agreement.
(u) “Subscription Rate” means the rate specified for each Power User License, each Workforce User License as well as any Add-On Modules for the Contract Term, as described in Section 2(b) below.
(v) “Taxes” has the meaning given to such term in Section 3(i) of this Agreement.
(w) “Third-Party Applications” means online, web-based applications and offline software products that are provided by third parties, interpolate with the Services, and are identified as third party applications (for example, Microsoft Excel™).
(x) “User Guide” means any educational or other product functionality information or instructions provided to you by CorVant. The User Guide may be updated by CorVant from time to time.
(y) “Users” means individuals who are authorized by you to use the Services, for whom subscription to the Services have been purchased, and who have been supplied user credentials and passwords by you (or by CorVant, at your request). Users may include, but are not limited to, your employees, consultants, contractors and agents, or to third parties with whom you transact business and provide access to the Services.
(z) “Workforce User License” means a license that provides limited access to the Services, that provides specific limited functionality such as, time and attendance tracking, applying time to work orders, checking out parts from inventory and applying them to a specific work order, purchased on a named user basis. Workforce User licenses cannot be granted without the purchase of at least one Power License.
(aa) “You” or “Your” means the company or other legal entity for which you are accepting this Agreement, Quotation and any Order Amendment Forms and the Affiliates of that company or entity. References to “your data” means all electronic data or information submitted by you in use with the Services.
2. Contract Rate; Contract Term; Payment Terms and Conditions
(a) License Level. You hereby purchase the number of Power User Licenses and the Number of Workforce User Licenses as indicated in the ordering document/form and any Order Amendment Forms.
(b) Subscription Rate. The Subscription Rate for each Power User License or each Workforce User license during the Contract Term is as indicated in the Quotation and any Order Amendment Forms. To the extent that those agreed upon Subscription Rates are limited to a set number of licenses, that number is as indicated in the Quotation and any Order Amendment Forms. To the extent that you purchase additional modules at the time of subscription or anytime thereafter, the terms of said purchase(s) are as indicated in the Quotation or the Order Amendment Form.
(c) Implementation Fee. The total one-time Implementation Fee charged to you for Implementation, plus customary travel expenses for on-site implementation, education and support, are as indicated in the Quotation or any Order Amendment Forms.
(d) Contract Rate; Contract Term. The Contract Rate for your Subscription is as indicated in the Quotation or any Order Amendment Forms, but is affected in part by the number of licenses you purchase, the Subscription Rates agreed to above, the number of additional modules you purchase, the timing of your payments and the method of payment. The Contract Term for the Licenses subscribed for hereunder shall commence on the final “go-live” date as evidenced by an email from CorVant confirming that date based on the facts surrounding the particular start date for your subscription hereunder and will be for the initial term indicated in the Quotation and thereafter will automatically renew in twelve month increments unless written notice is given 30 days prior to the end of the then existing term.
(e) Payment Terms. You agree to pay for the Subscription as indicated in the Quotation, any Order Amendment Forms and this Agreement You will provide us with valid credit card information or other form of payment acceptable to CorVant (at our sole discretion). If you provide a credit card to CorVant, you authorize CorVant to charge the credit card for all Services purchased during the Contract Term (including any extensions thereof as provided hereunder or as agreed to in connection with Order Amendment Forms, if any). If you elect to use a payment method other than credit card, we will invoice you in advance and otherwise in accordance with the applicable Quotation, any Order Amendment Form and this Agreement. Unless otherwise stated invoiced charges must be received by CorVant on or prior to date of service. You are responsible for maintaining complete and accurate billing and contact information in the method provided in connection with the Services.
(f) Overdue Charges. If any charges are not received from you by the due date, such charges shall accrue late payment interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date such charges are paid by you, and/or (2) CorVant may condition future subscription renewals and additional Subscriptions on payment terms different than those otherwise specified in the Quotation, any Order Amendment Forms and this Agreement.
(g) Suspension of Service and Acceleration. If any amount owing by you under the Quotation (or any Order Amendment Form) is past due (or 2 or more days past due in the case of amounts you have authorized us to charge to your credit card), CorVant may, without limiting our other rights and remedies under this Agreement, accelerate your unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and CorVant may suspend services to you until such amounts are paid in full.
(h) Taxes. Unless otherwise provided herein (or in the Quotation or any Order Amendment Form), our fees shall not include any taxes, levies, duties, or similar governmental assessments of any nature including, but not limited to, value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with your Subscription and use hereunder. If we have the legal obligation to pay or collect taxes for which you are responsible under this Section 2(i), the appropriate amount shall be invoiced to, and paid by you, unless, before such payment, you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For purposes of clarification, CorVant is solely responsible for any taxes assessable against it based upon our income, property and/or employees.
3. Provision of Services; Subscription
(a) Provision of Services. CorVant shall make the Services available to you pursuant to the terms and conditions of this Agreement, the Quotation and any applicable Order Amendment Form, during the Contract Term. You agree that your Subscription hereunder is neither contingent on the delivery of any future functionality or feature of the Services, nor dependent on any oral or written public comments made by CorVant regarding future functionality or features.
(b) Subscriptions. Unless otherwise specified in this Agreement or in any Order Amendment Form, (1) Services are purchased on a concurrent license basis for the number of licenses purchased by you as set forth in the Quotation, as may be updated pursuant to any Order Amendment Form(s) approved by you, (2) additional Subscriptions may be added during the Contract Term in the number and based upon the pricing and other terms set forth on any Order Amendment Form approved by you and accepted by CorVant, and (3) any additional Subscriptions purchased by you (together with the Licenses subscribed for by you upon your initial purchase and acceptance of this Agreement) shall terminate on the same date as set forth herein unless extended in any applicable Order Amendment Form). Unless otherwise provided, the Power-User Licenses Subscribed for hereunder are provided on a concurrent basis and may be used by any user with a valid username and password applicable to such License. Workforce User Licenses are provided on a named-user basis.
4. Use of the Services
(a) CorVant’s Responsibilities. We will (1) provide you with support (as indicated in your Quotation ) for the Services as defined in the Service Level Specifications, (2) use commercially reasonable efforts to make the Services available to you 24 hours a day, 7 days a week, and every day of the year except for (A) planned down time (of which CorVant shall give 8 hours notice via the Services and which CorVant shall schedule, to the extent reasonably practicable, during the hours of 9:00 pm Eastern time and 2:00 am Eastern time), or (B) any unavailability caused by circumstances that are beyond CorVant’s reasonable control including, without limitation, acts of God, acts of government, flood, fire, earthquakes, other natural disaster, civil unrest, acts of terror, strikes or other labor problems (other than those involving CorVant’s employees), or internet service provider failures or delay, and (3) provide the Services only in accordance with applicable laws and government regulations.
(b) Your Responsibilities. You will (1) be responsible for compliance with this Agreement, (2) be solely responsible for the accuracy, quality, integrity and legality of your data, (3) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify CorVant promptly of any such unauthorized access or use of the Services, and (4) use the Services only in accordance with the User Guide and applicable laws and government regulations. You will not (i) make the Services available to anyone other than authorized users, (ii) sell, resell, rent or lease the Services, (iii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use the Services to store or transmit Malicious Code, (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (vi) attempt to gain unauthorized access to the Services or their related systems or networks.
(c) Usage Limitations. Services may be subject to other limitations, as may be set forth in the User Guide from time to time.
5. Third-Party Providers
(a) Acquisition of Third-Party Products or Services. From time-to-time we may offer Third-Party Applications for sale. Any acquisition by you of any third-party products or services, including Third Party Applications and implementation, customization and other consulting services, and any exchange of data between you and any third-party provider, is solely between you and the applicable third party provider. We do not warrant or support any third-party products or services, including any Third-Party Applications, whether or not they are designated by CorVant as “certified” or otherwise. No purchase of third-party products or services is required to use the Services.
(b) Third Party Applications and Your Data. If you install or enable Third-Party Applications for use with the Services, you acknowledge that CorVant may allow providers of those Third-Party Applications to access your data as required for the interoperation of those Third-Party Applications with the Services. CorVant shall not be responsible for any disclosure, modification or deletion of your data resulting from any such access by Third-Party Application providers. The Services shall allow you to restrict such access by restricting users from installing or enabling such Third-Party Applications for use with the Services.
6. Proprietary Rights.
(a) Reservation of Rights. Subject to the limited rights expressly granted hereunder, CorVant reserves all right, title, and interest in and to the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
(b) Restrictions. You shall not nor shall you permit any employee, agent or third party to: (1) access the Services except as permitted herein or in an Order Amendment Form, (2) create derivate works based on the Services, (3) copy, frame, or mirror any part or content of the Services, (4) reverse engineer the Services, or (5) access the Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Services.
(c) Ownership of your Data. As between you and CorVant, you exclusively own all rights, title and interest in and to your data. Notwithstanding the foregoing, CorVant may use, disclose and aggregate data collected from its users so long as it does not provide information or detail that identifies you (unless you have provided your prior written consent to use or disclose such identifying characteristics or information).
(d) Suggestions. CorVant shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by you (including your authorized users) relating to the operation of the Services.
7. Confidentiality
(a) Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include your data; CorVant’s Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Amendment Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than your data) shall not include any information that (1) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (3) is received from a third party without breach of any obligation owed to the Disclosing Party, or (4) was independently developed by the Receiving Party.
(b) Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (1) the Receiving 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) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (2) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
(c) Protection of your data. Without limiting the above, CorVant shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data that is transmitted in connection with your use of the Services. CorVant shall not (1) modify your data, (2) disclose your data except as compelled by law in accordance with Section 8(d) below (Compelled Disclosure) or as expressly permitted in writing by you, or (3) access your data except to provide the Services or prevent or address service or technical problems, or at your request in connection with customer support matters.
(d) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8. Warranties & Disclaimers
(a) CorVant Warranties. CorVant warrants that (1) the Services shall perform materially in accordance with the User Guide, and (2) unless otherwise provided herein (or in any Order Amendment Form) the functionality of our Services will not be materially decreased during a Contract Term. For any breach of either warranty contained herein, your exclusive remedy shall be as provided in Section 11(c) (Termination for Cause) and Section 11(d) (Refund or Payment upon Termination).
(b) Mutual Warranties. Each party represents and warrants that (1) it has the legal power and authority to enter into this Agreement, and (2) it will not transmit to the other party any Malicious Code.
(c) Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(d) Mutual Indemnification.
▪ Indemnification by CorVant. CorVant shall defend you against any claim, demand, suit, or proceeding (each a “Claim”) made or brought against you by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify you for any damages finally awarded against, and for reasonable attorney’s fees incurred by you in connection with any such Claim; provided, that you (1) promptly give CorVant written notice of the Claim; (b) give CorVant sole control of the defense and settlement of the Claim (provided that CorVant may not settle any Claim unless the settlement unconditionally releases you of all liability); and (c) provide to CorVant all reasonable assistance, at CorVant’s expense.
▪ Indemnification by You. You shall defend CorVant from and against any Claim made or brought against CorVant by a third party alleging that your data, or your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify CorVant for any damages finally awarded against, and for reasonable attorney’s fees incurred by, CorVant in connection with any such Claim; provided, that CorVant(1) promptly gives you written notice of the Claim; (2) give you sole control of the defense and settlement of the Claim (provided that you may not settle any Claim unless the settlement unconditionally release CorVant of all liability); and (c) provide to you all reasonable assistance, at your expense.
▪ Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
9. Limitation of Liability
(a) Limitation of Liability. IN NO EVENT SHALL CORVANT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED, THE LESSER OF $100,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 2.
(b) Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. Contract Term & Termination
(a) Contract Term. This Agreement becomes effective on the date of this Agreement and the term of this Agreement commences on the “go-live” date referred to herein in Section 2(d) and continues until all Subscriptions granted hereunder (including any Order Amendment Form(s) delivered by you and accepted by CorVant) have expired or been terminated.
(b) Term of Subscriptions. Subscriptions purchased by you hereunder (or under any Order Amendment Form(s)) commence on the start date specified herein (or in the applicable Order Amendment Form) and continue for the Contract Term specified herein (or therein). Unless otherwise specified herein or in the applicable Order Amendment Form, all Subscriptions shall automatically renew for additional periods equal to the expiring Contract Term or one (1) year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the relevant Contract Term. Unless otherwise agreed by the parties, the per-License pricing during any such renewal term shall be at the pricing terms in the Quotation.
(c) Termination for Cause. A party may terminate this Agreement for cause: (1) upon thirty (30) days written notice to the other party of a material breach if such breach has not been cured at the expiration of such period, or (2) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
(d) Refund or Payment upon Termination; Escrow of Source Code; Return of Data. Upon any termination for cause by you, CorVant shall refund you any prepaid fees covering the remainder of any Contract Term of all Licenses after the effective date of such termination. Upon any termination for cause by CorVant, you will pay any unpaid fees covering the remainder of the Contract Term of any Licenses Subscribed for by you for the period remaining after the effective date of termination. In no event shall termination relieve you of the obligation to pay any fees payable to CorVant prior to the effective date of termination. CorVant has deposited the source code for PierVantage with a third party escrow agent. You may elect to be a third party beneficiary at any time under that escrow agreement by paying the annual fee to the escrow agent. In the event that CorVant files for bankruptcy protection and you are a third party beneficiary, the escrow agent shall release the source code to you, at your election and cost. In the event of termination (with or without cause) or expiration of this Agreement, provided all amounts due to CorVant are paid, your data will be returned immediately in CSV format using the PierVantage data structures.
(e) Surviving Provisions. Section 2 (Contract Rate; Contract Term; Payment Terms and Conditions); Section 6 (Proprietary Rights); Section 7 (Confidentiality); Section 8(c) (Disclaimer); Section 9 (Mutual Indemnification); Section 10 (Limitation of Liability); Section 11(d) (Refund or Payment Upon Termination); Section 12 (Manner of Giving Notice; Governing Law; Jurisdiction); and Section 13 (General Provisions) shall survive any termination of this Agreement.
11. Notice; Governing Law; Jurisdiction
(a) Manner of Giving Notice. Except as otherwise specified in this Agreement notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon (1) personal delivery, (2) the second business day after mailing, (3) the second business day after sending by confirmed facsimile, or (4) the first business day after sending by email (provided, however, that email shall not be sufficient for notices of termination or an indemnification claim hereunder). Notices to you shall be addressed to the person designated by you as the “account administrator” for your Subscription(s) and in the case of billing-related notices, to the relevant billing contact designated by you.
(b) Governing Law and Jurisdiction; Waiver of Jury Trial. Each party hereby agrees and consents to the application of the laws of the State of Delaware to this Agreement, without regard to the principles of conflict of laws thereof, and to the exclusive jurisdiction of the court of competent jurisdiction in the State of Delaware, New Castle County. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. General
(a) Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
(b) No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
(c) Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
(d) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
(e) Attorney Fees. Upon demand of CorVant, you shall pay CorVant’s reasonable attorney fees and other costs incurred by CorVant to collect any fees or other charges due to CorVant under this Agreement or to enforce CorVant’s right following your breach of Section 2 hereof.
(f) Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Amendment Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this Section 13(f) shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
(g) Storage. Each Power User License Subscription provides adequate storage capacity based on normal business volumes. Should you wish to retain more history, store more pictures or have incremental data storage needs, you may purchase additional storage in increments of 2GB at any time at the then current monthly rate per GB.
(h) Entire Agreement. This Agreement, the Quotation, and all Order Amendment Forms, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, whether written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Any modification, amendment or waiver of a provision of this Agreement must be signed by an authorized CorVant representative at the CorVant main office. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Amendment Form, the terms of such exhibit, addendum or Order Amendment Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in the Quotation or the Order Amendment Form shall supersede any inconsistent provision of this Agreement, and all such terms or conditions shall be null and void. To the extent possible the terms and conditions of this Agreement, the Quotation and the Order Amendment Form shall be read as consistent. However in the case of inconsistent terms and provisions then the provisions of this Agreement shall control.
EXHIBIT A
SERVICE LEVEL SPECIFICATIONS
Definitions
Support Request
For the purposes of this agreement, a support request is generally defined as a request for support to fix a defect in the existing application code or a request for support that involves no modifications to application code, such as a question.
Change Request
For the purposes of this agreement, a Change Request is generally defined as any request to make modifications to the functionality of an existing system or any request to add functionality to an existing system. Such requests are not covered under this agreement.
Availability of Support
Support is provided under the following terms with e-mail being the preferred method for reporting a problem. Users may be asked to leave a message when calling Phone Support. Only Power Users may e-mail or phone in support requests. Response and resolution times are determined based on the Severity Level of the support request as defined in the Severity Codes section below.
Hours: 8:00 A.M.- 6:00 P.M. ET, Monday through Friday
Severity Codes
The following characteristics are used to identify the severity of a support request:
• Financial impact – Loss of sales revenue
• Work outage – Loss of productivity
• Workaround – Any reasonable actions to mitigate the impact of the problem
• Response time – Elapsed time between receipt and response by CorVant
• Resolution time – Elapsed time between response to the final resolution by CorVant
It is not necessary (nor is it likely) to have perfect match of each characteristic to categorize a support request at a particular severity level. A given problem must be judged against each of the characteristics to make an overall assessment of which severity level best describes the problem. Upon submission of a support request you will specify the impact and severity based on the matrix below. CorVant and you will jointly determine the final severity rating for the request.
| Severity 1 (Critical) | Severity 2 (High) | Severity 3 (Medium) | Severity 4 (Low or All Questions) | |
| Financial Impact | ||||
| The application failure creates a serious financial impact. | The application failure creates a serious financial impact. | The application failure creates a limited financial impact. | The application failure creates a minimal financial impact. | |
| Work Outage | ||||
| The application failure causes the client to be unable to work or perform some significant portion of their job. | The application failure causes the client to be unable to work or perform some significant portion of their job. | The application failure causes the client to be unable to perform some small portion of their job, but they are still able to complete most other tasks. May also include questions and requests for information. | The application failure causes the client to be unable to perform a minor portion of their job, but they are still able to complete most other tasks. | |
| Workaround [This bullet carries the heaviest weighting of the characteristics for Severity 1 and 2.] | ||||
| There is no acceptable workaround to the problem (i.e., the job cannot be performed in any other way). | There is an acceptable and implemented workaround to the problem (i.e., the job can be performed in some other way). | There may or may not be an acceptable workaround to the problem. | There is likely an acceptable workaround to the problem. Any question that is answered in the on-line Help will be responded to with a link to the appropriate section in the Help. | |
| Response Time | ||||
| Within one hour. | Within four hours. | Within eight hours or by next business day (ET). | Within one business day (ET). | |
| Resolution Time | ||||
| The maximum acceptable resolution time is 24 continuous hours, after initial response time. | The maximum acceptable resolution time is five business days. | The maximum acceptable resolution time is 30 business days. | The maximum acceptable resolution time is determined by CorVant and you. | |
Roles and Responsibilities
CUSTOMER
You have the following general responsibilities under this agreement:
• Conduct business in a courteous and professional manner with CorVant.
• Users of the application will use the appropriate channel to request support.
• You will use your own appropriate IT support provider for desktop, network, firewall, and infrastructure support services, including desktop software installation.
• You will provide all information required to open a support request.
• You will assign severity codes adhering to the correct usage of these codes as defined in the Severity Codes matrix above.
• Once a support request has been submitted, you will make the appropriate resources available to work with CorVant through the resolution of the support request.
• Non-Power Users do not contact CorVant directly to report a problem. All support requests must be submitted by a Power User.
CORVANT
CorVant has the following general responsibilities under this agreement:
• CorVant will conduct business in a courteous and professional manner with you.
• CorVant will log all information from you required to establish contact information and document the nature of the problem.
• CorVant will allocate the appropriate resources to ensure resolution of support requests consistent with the service levels outlined above.
• CorVant will obtain your approval before closure of the support request.
EXHIBIT B
SUPPORT BILLING GUIDELINES
You need help, and we are here to provide it! We offer our customers world class support for PierVantage. Like all businesses, we define our support to ensure all customers get the assistance they need to enable them to get the most out of PierVantage as possible.
The following support billing guidelines should be helpful in determining if a support ticket falls into a billable or non-billable category.
What types of Support Tickets are Non-Billable?
• A request to fix a defect in the existing PierVantage application code.
• A request for support that involves no modifications to application code, such as:
– A “how to” question related to general functionality
– A question related to an error message or other unexpected system behavior
• A request to modify system settings that are unavailable to end users.
• Feedback on improving our software or documentation.
What types of Support Tickets are Billable?
• A request for assistance to resolve issues that are the result of user error.
• Any request that involves a member of the support team operating PierVantage on your behalf, or performing other services such as:
– Importing or updating of data
– Creating custom database queries or reports
– Assistance with financial reconciliation
– Consultation on Month and Year End Closing practices
• A request for training of an existing employee on how to perform their job duties.
• A request for training/education of new employees that need to be brought up to speed quickly
When Contacting PierVantage Customer Support
• First refer to the documentation and videos available within the Support Portal to see if your question can be answered there.
• Articulate the problem and symptoms in a detailed but concise fashion. Be as exact as possible in explaining your problem or question to our support engineers.
• Answers to following questions will help us resolve your problem as quickly as possible:
– What steps led to the problem?
– Can you reproduce the problem? If so, what steps are required?
– What error messages were received during the time of the problem?
– Provide screen shots whenever possible.
– Provide work order number, PO number, GL Account, Invoice Number etc.
Billable Support Pricing
We appreciate your business and understand that a certain level of assistance is expected to come along with your PV subscription, and as such will spend up to 1 hour working a request before we will consider categorizing it as Billable Support. For complex requests, we will provide you with our plan of action for the next steps to be performed at the then current pricing. Typically, we will communicate this in a ticket and will need your written approval before we take any action.
Disclaimer: (i) The above listed items do not include all items that may be billable or non-billable, they are simply meant as a guideline. (ii) CorVant has the right to update this guideline at our discretion at any time.