These Terms and Conditions (the “Terms and Conditions”) govern your license and/or use of software, associated Documentation, and related services from Datacor, Inc.
1. DEFINITIONS
1.1. “Affiliate” means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, a party.
1.2. “Agreement” means these terms, your Order(s), any Statement(s) of Work between you and us, and any attachments, exhibits and annexes hereto or to an Order or a Statement of Work.
1.3. “Customer”, “you” or “your” means the customer of Datacor’s that has entered into an Order with Datacor.
1.4. “Customer Data” means the data submitted by Users, or otherwise on your behalf, into the Services.
1.5. “Datacor” means Datacor, Inc. or the Datacor Affiliate you ordered from.
1.6. “Documentation” means Datacor information manuals containing operating instructions and performance specifications that Datacor generally makes available to users of its products, whether in print or online.
1.7. “Effective Date” (i) of the Agreement means the date when the first Order is signed by both you and us, and (ii) of an Order means when the Order is signed by both you and us.
1.8. “Intellectual Property Rights” means rights recognized by any jurisdiction with respect to intellectual work product, such as patent rights (including priority rights), design rights, copyrights (including moral rights), mask work rights, trade secret rights, trademarks, service marks, know-how and domain name rights.
1.9. “Order” means an ordering document executed by you and us for subscription to software and/or, if applicable, for the provision of professional services by us.
1.10. “Software Product” means the software product you have purchased a subscription for or license for from Datacor.
1.11. “SOW” or “Statement of Work” means a statement of work between you and Datacor for the provision of consulting or other professional services by Datacor related to the Services.
1.12. “Third-Party Service” means any product (e.g., software, cloud services, or forms), tool (e.g., integration or development tools) or service (e.g., implementation, configuration, development, or accounting) provided by a party other than Datacor (a “Third-Party Provider”).
1.13. “User” means a named individual authorized by you to use the Software Product, for whom you have purchased a subscription, and who has been supplied with user credentials for the Services by you or by us at your request.
Other capitalized terms have the respective meanings given to them elsewhere in this Agreement.
2. INVOICING AND PAYMENT
2.1 Invoicing. Datacor will invoice the Customer for fees as provided in the applicable Order or SOW. Unless otherwise provided in the Order, payment of invoices is due within 30 days of the date of Datacor’s invoice. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with other methods of invoicing and payment. The customer is responsible for providing complete and accurate billing and contact information to Datacor and providing any changes to such information.
2.2 Overdue Payments. Datacor may immediately suspend licenses, use of any Product or Service and performance of orders for which payment is overdue until the overdue amount is paid in full. Overdue payments will be subject to a late payment charge of the lesser of one and one half percent (1.5%) per month or the maximum rate allowed by applicable law. Customer will reimburse Datacor for reasonable attorneys’ fees and any other costs associated with collecting overdue payments.
2.3 Taxes. Unless Customer provides Datacor with a current tax exemption certificate, Customer is solely responsible for paying all legally required taxes, including without limitation any sales, excise or other taxes and fees which may be levied upon the sale, transfer of ownership, license, installation, or use of the Products, except for any income tax assessed upon Datacor.
3. CUSTOMER RESPONSIBILITIES
The customer will cooperate with Datacor as reasonably necessary for Datacor’s delivery of Software Products and performance of Services in a timely manner. Customer will provide Datacor with interface and other information regarding access to third party products in Customer’s network and necessary third party consents and licenses to enable Datacor’s performance under the Agreement. Customer is responsible for regularly backing up its data and files (in a non Datacor hosted environment) in accordance with good computing practices and for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and will promptly notify Datacor if Customer becomes aware of any such intrusion or attack. If Customer fails to meet its cooperation obligations under this Section or as otherwise provided in the Agreement, Datacor may delay or suspend its delivery of Software Products or performance of Services relating to Customer’s failure. “Confidential Information” means either party’s business and/or technical information, pricing, discounts and other information or data, regardless of whether in tangible or other form. Confidential Information excludes information that: (i) is publicly available other than by an act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information without restriction on its dissemination or disclosure; (iii) was known by the receiving party prior to its receipt and was not received from a third party in breach of that third party’s confidentiality obligations; (iv) was independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, provided the receiving party provides prompt written notification to the disclosing party of the pending disclosure so the disclosing party may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection (v) above, the receiving party will provide reasonable assistance to the disclosing party should the disclosing party attempt to obtain a protective order. Each party will protect the secrecy of all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. Neither party will use or disclose the other party’s Confidential Information except as permitted in this Section or for the purpose of performing obligations under the Agreement. The confidentiality obligations of each party will survive expiration or termination of the Agreement.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Customer Owns Customer IP. Customer reserves all rights, including, but not limited to, ownership, title, intellectual property rights and all other rights and interest in and to any computer programs (in object or source code format or any other form), know-how, inventions, processes, data bases, documentation, training materials and any other intellectual property and any tangible embodiments of it (collectively “Intellectual Property” or “IP”) that Customer makes available to Datacor (collectively “Customer IP”).
4.2 Datacor Owns Datacor IP. Datacor reserves all rights, including, but not limited to, ownership, title, and all other rights and interest in, and to, any Intellectual Property that Datacor owned prior to providing Services under the Agreement, any Intellectual Property that Datacor develops, creates or acquires independently of this Agreement, and any Intellectual Property that Datacor develops, creates or acquires (excluding Customer IP) while performing Services under the Agreement. The customer acknowledges and agrees that all Datacor IP will be considered Confidential Information of Datacor.
4.3 Feedback. You may, but are not required to, provide Datacor with ideas, suggestions, requests, recommendations, or feedback about the Services (“Feedback”). If you do so, you grant Datacor a non-exclusive, worldwide, perpetual, irrevocable license to use, reproduce, incorporate, disclose, and sublicense the Feedback for any purpose.
4.4 Data Analytics. Product Development. Datacor may collect data resulting from Users’ use of the Services, such as metadata, performance metrics, and usage trends or volume (“Usage Data”). Datacor may use Usage Data for its legitimate business purposes, provided that, except to provide the Services, to assist with the administration of Third-Party Services subscribed by you, or as required by law, any external disclosure or use of Usage Data by Datacor will be in an aggregated form that does not identify or otherwise permit the identification of you, any Users or other persons, unless you consent otherwise or initiate the sharing of Usage Data yourself. In addition, and subject to our obligations under section 6, Datacor may use Customer Data for product research, development, and innovation.
5. SOFTWARE LICENSE TERMS AND RESTRICTIONS
5.1 License. During the term of a Customer’s Order, Datacor grants Customer a personal, non-sublicensable, non-exclusive, non-transferable license to use software and Documentation provided under the Agreement and for which applicable fees have been paid at the indicated capacity and feature levels and within the scope of the applicable license types described below solely for Customer’s internal business purposes. Except for the limited license rights expressly granted in the Agreement, Datacor reserves all rights, title, and interest in and to the software and Documentation and any modifications to it. Documentation does not include marketing materials.
5.2 License Restrictions. To the extent permissible under applicable law, Customer agrees not to: (i) decompile, disassemble, or reverse engineer the software; (ii) alter, modify or create any derivative works based on the software or Documentation, except as expressly permitted by the Documentation; (iii) merge the software with any other software other than as expressly set forth in the Documentation; (iv) use, copy, sell, resell, license, sublicense, lease, rent, loan, assign, convey, make available or otherwise transfer the software or Documentation except as expressly authorized by the Agreement; (v) distribute, disclose or allow use of the software or Documentation, in any format, through any timesharing service, service bureau, network or by any other means; or (vi) allow any service provider or other third party to use or execute any software commands that cause the software to perform functions that facilitate the maintenance or repair of any Datacor product; (vii) gain access to or the use of any software or part thereof without authorization from Datacor; (viii) enable or activate, or cause, permit or allow others to enable or activate any logins reserved for use by Datacor; (ix) frame or mirror any software or part thereof; (x) access the software or Documentation any part thereof to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the software, (c) copy any ideas, features, functions or graphics of the software or (d) determine whether any software or Product is within the scope of any patent; or (xi) permit or encourage any third party to do any of the foregoing. Customer shall indemnify Datacor for any damages, loss, expenses, or costs incurred by Datacor as a result of non-compliance with this section.
5.3 Termination of License. Notwithstanding anything to the contrary contained herein, Datacor may, with immediate effect, terminate the software licenses granted in the Agreement and exercise all available rights and remedies if, within ten business days of Customer’s receipt of a reasonably detailed written notice, Customer has not cured all breaches of license limitations or restrictions.
5.4 License Compliance. During the term of the Agreement and for a period of two years after the termination of the Agreement, at Datacor’s request and upon reasonable prior written notice, Datacor will have the right to inspect Customer’s compliance with this Section 5.
6. WARRANTIES AND LIMITATIONS
6.1 Exclusions and Disclaimers. The warranties do not extend to any damages, malfunctions, or non-conformities caused by: (i) Customer’s use of Products in violation of the license granted under the Agreement or in a manner inconsistent with the Documentation; (ii) use of non-Datacor furnished equipment, software, or facilities with Software Products (except to the extent provided in the Documentation); (iii) Customer’s failure to follow Datacor’s installation, operation or maintenance instructions; (iv) Customer’s failure to permit Datacor timely access, remote or otherwise, to Products; (v) failure to implement all new Updates (defined below) to software provided under the Agreement; or (vi) Products that have been serviced or modified other than by Datacor. An “Update” is a change in software that typically provides maintenance correction only and is designated as a change in the digit to the right of the second decimal point (e.g., n.y.[z]). EXCEPT AS REFERENCED AND LIMITED IN THIS SECTION, NEITHER DATACOR NOR ITS LICENSORS OR SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY PRODUCTS OR SERVICES OR OTHERWISE RELATED TO THE AGREEMENT. DATACOR DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATACOR DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE WARRANTY REMEDIES EXPRESSLY PROVIDED IN THE AGREEMENT WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES.
6.2 Beta Products. From time to time, Datacor may make beta products available to Customer at no charge. Customer may choose to try such beta products or not in Customer’s sole discretion. Beta products are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Products are provided “As-Is” with no warranties or indemnification and are not considered “Products” or “Services” under this Agreement, however, all restrictions, Datacor’s reservation of rights and Customer’s obligations, shall apply equally to Customer’s use of beta products. Unless otherwise stated, any beta product trial period will expire upon the earlier of one year from the trial start date or the date that a version of the beta product becomes generally available without the applicable beta product designation. Datacor may discontinue beta products at any time in Datacor’s sole discretion and may never make them generally available. Datacor will have no liability for any harm or damage arising out of or in connection with a beta product.
7. INFRINGEMENT DEFENSE AND INDEMNIFICATION
7.1 Defense and Indemnity. Datacor will defend Customer, at Datacor’s expense, against any Claim, as defined below, and will indemnify Customer as provided in this Section for any judgments, settlements and court awarded attorney’s fees resulting from a Claim. Datacor’s obligations under this Section are conditioned on the following: (i) Customer promptly notifies Datacor of the Claim in writing upon Customer being made aware of the Claim; (ii) Customer gives Datacor sole authority and control of the defense and (if applicable) settlement of the Claim; and (iii) Customer provides all information and assistance reasonably requested by Datacor to handle the defense or settlement of the Claim. For purposes of this Section, “Claim” means any cause of action in a third party action, suit or proceeding against Customer alleging that a Product as of its delivery date under the Agreement infringes a patent, copyright, or trademark.
7.2 Remedial Measures. If a Product becomes, or Datacor reasonably believes use of a Product may become, the subject of a Claim, Datacor may, at its own expense and option: (i) procure for Customer the right to continue use of the Product; (ii) replace or modify the Product; or (iii) refund to Customer a pro-rated portion of the applicable fees for the Product based on a linear depreciation monthly over a five year useful life, or in the case of Products for which Customer pays a monthly subscription fee, refund the monthly fees paid for such Product over the prior 6 months, in which case Customer will cease all use of the Product and return it to Datacor.
7.3 Exceptions. Datacor will have no defense or indemnity obligation for any Claim based on: (i) a Product that has been modified by someone other than Datacor; (ii) a Product that has been modified by Datacor in accordance with Customer-provided specifications or instructions; (iii) use or combination of a Product with Third Party Products; (iv) Third Party Products; (v) a Product that is used or located by Customer in a country other than the country in which or for which it was supplied by Datacor; or (vi) possession or use of the Product after Datacor has informed Customer of modifications or changes in the Product required to avoid such Claim and offered to implement those modifications or changes, if such Claim would have been avoided by implementation of Datacor's suggestions and to the extent Customer did not provide Datacor with a reasonable opportunity to implement Datacor's suggestions. Customer will defend Datacor against any Claim, and will indemnify Datacor for any judgments, settlements and reasonable attorney’s fees resulting from a Claim to the extent the Claim is based on subsection (i) or (ii) above. “Third Party Products” means any products manufactured by a party other than Datacor, and may include, without limitation, products ordered by Customer from third parties pursuant to Datacor’s recommendations.
7.4 Sole Remedy. THE FOREGOING STATES DATACOR’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PARTY. THE FOREGOING ALSO IS IN LIEU OF, AND DATACOR DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE PRODUCT.
8. LIMITATION OF LIABILITY
8.1 Consequential Damages. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, COSTS ASSOCIATED WITH A SECURITY INCIDENT OR DATA BREACH, COST OF COVER, OR SUBSTITUTE GOODS OR PERFORMANCE.
8.2 Aggregate Liability. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE UNDER THE AGREEMENT IN THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY IN THIS SECTION ALSO WILL APPLY TO ANY LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND SUPPLIERS.
9. GOVERNING LAW AND DISPUTE RESOLUTION
9.1 Governing Law. The Agreement and any disputes arising out of or relating to the Agreement (“Disputes”) will be governed by New Jersey State laws applicable to contracts entered into and performed in New Jersey excluding conflict of law principles.
9.2 Arbitration. Subject to Section 9.3, all Disputes will be finally resolved by binding arbitration pursuant to the Commercial Rules of the American Arbitration Association. Proceedings will be conducted in Morristown, New Jersey before one arbitrator selected pursuant to those rules. The arbitrator: (i) will have the authority to determine issues of arbitrability and to consider and rule on dispositive motions; (ii) will have authority to award compensatory damages only and will not award punitive or exemplary damages; and (iii) will not have the authority to limit, expand or otherwise modify the terms of the Agreement. The parties, their representatives, other participants, and the arbitrator will hold the existence, content and result of arbitration in confidence. Customer will indemnify and reimburse Datacor for reasonable attorneys’ fees and any other costs associated with enforcing its rights under this Agreement.
9.3. Injunctive Relief. Nothing in this Section will be construed to preclude either party from seeking provisional remedies, including but not limited to temporary restraining orders and preliminary injunctions from any court of competent jurisdiction in order to protect its rights pending arbitration. Without limiting a party’s rights otherwise available in law or in equity, the parties agree that a breach or threatened breach by a party of Sections 5, 7 11, or 12 would cause the other party irreparable harm and such party is entitled to injunctive relief without any bond or security required (or, where a court determines this is unenforceable, a $1,000 bond will be adequate) to bar the offending party from a breach or threatened breach.
9.4 Time Limit. Actions on Disputes between the parties must be brought in accordance with this Section within two years after the cause of action arises.
10. TERM AND TERMINATION
The Agreement will be effective and continue in effect for one year from the Effective Date and will renew annually for successive one year periods unless terminated earlier in accordance with this Section. Either party may terminate the Agreement: (i) by written notice to the other party effective immediately upon receipt, if the other party fails to cure any material breach of the Agreement within a 30 day period after having received a written notice from the non-breaching party detailing the breach and requesting the breach be cured; and (ii) at any time for convenience upon 90 days written notice and subject to termination or cancellation fees, if any. The provisions concerning confidentiality and indemnity (as well as any other terms which, by their nature, are intended to survive termination or expiration) of these General Terms will survive any termination or expiration of the Agreement and any order. Except as expressly provided otherwise in the Agreement and termination for uncured breach, any termination of the Agreement will not affect any rights or obligations of the parties under any order accepted before the termination of the Agreement became effective.
11. NO SOLICITATION
During the period Datacor provides Services and one year after completion of all Services or payment by Customer of all fees for Services, whichever occurs later, Customer will not solicit or hire for employment any Datacor employee. In the event that Customer hires any Datacor employee prior to the end of this period either as an employee or independent, Customer will pay Datacor a finder’s fee equal to 100% of the Datacor employee’s last gross annual salary, in addition to any other remedies available to Datacor, at law or in equity.
12. NONDISPARAGEMENT.
Neither party will knowingly disparage, criticize, or otherwise make any derogatory statements regarding the other party, including, but not limited to, in reviews or social media, and in the parties’ respective official statements, will not and will instruct the members of their respective boards and executive officers not to knowingly disparage, criticize, or otherwise make derogatory statements regarding the other party. The foregoing will not be deemed to restrict a party or any of a party’s current or former officers and/or directors from providing information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they are requested or required to provide such information pursuant to applicable law or regulation.
13. MISCELLANEOUS
The parties will observe all applicable laws and regulations, including export and re-export laws and regulations, when using the Products and work product of any Services. Datacor may assign the Agreement and any order under the Agreement to any of its affiliated entities or to any entity to which Datacor may sell, transfer, convey, assign, or lease all or substantially all of the assets or properties used in connection with its performance under the Agreement. Any other assignment of the Agreement or any rights or obligations under the Agreement without the express written consent of the other party will be invalid. Datacor may subcontract any or all of its obligations under the Agreement but will retain responsibility for the work. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including without limitation, pandemics, fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute or shortages, government requirement, civil disturbances, civil or military authority, and inability to secure materials or transportation facilities (“Force Majeure”). The Agreement constitutes the entire understanding of the parties with respect to the subject matter of the Agreement and will supersede all previous and contemporaneous communications, representations, or understandings, either oral or written, between the parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the parties. If any provision of the Agreement is determined to be unenforceable or invalid by court decision, the Agreement will not be rendered unenforceable or invalid as a whole, and the provision will be changed and interpreted so as to best accomplish the objectives of the original provision within the limits of applicable law. The failure of either party to assert any of its rights under the Agreement, including, but not limited to, the right to terminate the Agreement in the event of breach or default by the other party, will not be deemed to constitute a waiver by that party of its right to enforce each and every provision of the Agreement in accordance with their terms. All notices under the Agreement and any modifications or amendments to the Agreement must be in writing.
Sections 14 - 17 are only applicable for software licenses or subscriptions purchased by Customer.
14. Subscription Fees and Payment
14.1 Subscriptions. Unless otherwise provided in the applicable order or Documentation, software products are purchased as subscriptions for the period specified in the order, and if no period is specified, the subscription period shall be one year, payable in advance. Subscriptions will automatically renew for one year until terminated in accordance with these Terms and Conditions. Software product fees payable upon the renewal of a subscription period will be at Datacor’s then standard rates.
14.2 Fees. From time to time, we may change our fees. You will be notified at least 30 days in advance before we apply any fee changes to your software subscriptions. Unless otherwise set forth in an Order, such changes will not affect the prices for software during the then-current subscription term and will become effective upon your next renewal term that commences at least 30 days after our notification of the fee change.
14.3 Overage. If, during a then-current subscription term, (i) you add additional volume or licenses to items that you are already subscribed to, such increased subscriptions will be billed at a prorated amount at the price of the underlying preexisting subscription, and (ii) you add new subscriptions to items that you are not already subscribed to, such items will be billed at a prorated amount at the then-current list price.
15. DATACOR RESPONSIBILITIES
15.1 Product Availability. Datacor will (a) make the software product available to Customer pursuant to these terms and any applicable order, (b) provide applicable standard support for the software product to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the software product available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Datacor shall take reasonable efforts to provide advance electronic notice), and (ii) any unavailability caused by circumstances Force Majeure, including but not limited to, Internet service provider failure or delay and denial of service attacks.
15.2 Data Protection and Processing. Datacor will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer data, as described in the Documentation. Any data collected or processed by Datacor with respect to Customer’s use of the Software and Services shall be done in compliance with and subject to the Datacor Privacy Policy (available at https://www.datacor.com/privacy-policy) and, to the extent required by applicable laws or regulations, the Data Processing Addendum, available at https://www.datacor.com/data-processing-addendum.
16. USE OF SAAS PRODUCTS
16.1 Usage Limits. Software products are subject to usage limits, including the quantities specified in order. Unless otherwise specified, (a) a quantity in an order refers to users, and the software product may not be accessed by more than that number of users, (b) a user’s password may not be shared with any other individual, and (c) except as set forth in an order, a user identification may only be reassigned to a new individual replacing one who will no longer use the SaaS Product. If Customer exceeds a contractual usage limit, Customer will complete and order and pay any invoice for excess usage in accordance with Section 14.3.
16.2 Customer Responsibilities. Customer will (a) be responsible the actions of any person or entity using Customer user names or passwords to access the software product and their compliance with this Agreement, Documentation and any applicable orders (b) be responsible for the accuracy, quality and legality of Customer data entered into or accessed by the software product, including, but not limited to, the means by which Customer acquired data and use of such data with the SaaS Product, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the software product and Documentation, and notify Datacor promptly of any unauthorized access or use, (d) use the software product only in accordance with these Terms and Conditions and the relevant Order(s), Documentation, orders and applicable laws and government regulations, and (e) comply with terms of service of any third-party applications with which Customer uses the software product.
16.3 Usage Restrictions. To the extent permissible under applicable law, Customer agrees not to: (i) decompile, disassemble, or reverse engineer the SaaS Product; (ii) alter, modify or create any derivative works based on the SaaS Product or Documentation, except as expressly permitted by the Documentation; (iii) merge the SaaS Product with any other software or product other than as expressly set forth in the Documentation; (iv) use, copy, sell, resell, license, sublicense, lease, rent, loan, assign, convey, make available or otherwise transfer the SaaS Product or Documentation except as expressly authorized by the Agreement; (v) distribute, disclose or allow use of the SaaS Product or Documentation, in any format, through any timesharing service, service bureau, network or by any other means; or (vi) allow any service provider or other third party to use or execute any software commands that cause the SaaS Product to perform functions that facilitate the maintenance or repair of any software or Product; (vii) gain access to or the use of any SaaS Product or part thereof without authorization from Datacor; (viii) enable or activate, or cause, permit or allow others to enable or activate any logins reserved for use by Datacor; (ix) frame or mirror the SaaS Product or part thereof; (x) access the SaaS Product or Documentation any part thereof to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the software, (c) copy any ideas, features, functions or graphics of the software or (d) determine whether the SaaS Product or any software or Product is within the scope of any patent; or (xi) permit or encourage any third party to do so. Customer shall indemnify Datacor for any damages, loss, expenses, or costs incurred by Datacor as a result of non-compliance with this section.
17. WARRANTY AND LIMITATION OF LIABILITY
17.1 Software Data. ANY DATA CUSTOMER ENTERS INTO THE SOFTWARE PRODUCT, AND ANY CUSTOMIZATIONS MADE TO THE SOFTWARE PRODUCT BY OR FOR CUSTOMER, WILL BE PERMANENTLY LOST UNLESS CUSTOMER EITHER CONTINUES TO PURCHASE A SUBSCRIPTION TO THE SOFTWARE PRODUCT OR EXPORTS SUCH DATA BEFORE THE END OF THE SUBSCRIPTION. IF CUSTOMER PURCHASES A PRODUCT THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE SUBSCRIPTION OR DISCONTINUES PURCHASING A SUBSCRIPTION, CUSTOMER MUST EXPORT ALL DATA BEFORE THE END OF THE SUBSCRIPTION OR SUCH DATA WILL BE PERMANENTLY LOST.
17.2 Warranty. Datacor warrants to Customer that during an applicable subscription period the Software Product will perform materially in accordance with the applicable Documentation.
17.3 Remedies. If a Software Product is not in conformance with the warranty above and Customer provides Datacor during the applicable warranty period (i) a written notice describing in reasonable detail how the Software Product failed to be in conformance, (ii) information in sufficient detail to enable Datacor to reproduce and analyze the failure, and (iii) remote access to the affected Software Product and Datacor cannot bring the Software Product in conformity with the warranty, as Customer’s sole and exclusive remedy, Customer may terminate this Agreement and Datacor will refund any prepaid fees covering the remainder of the term of any subscription period. THE REMEDIES CONTAINED IN THIS SECTION 17.3 WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND WILL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST DATACOR WITH RESPECT TO THE NONCONFORMANCE OF PRODUCTS.
Sections 18 – 23 are only applicable for Services provided by Datacor to Customer.
18. Reimbursable Expenses.
Customer agrees to reimburse Datacor for all related out-of-pocket expenses incurred by Datacor in the performance hereunder, subject to Customer’s approval in advance. These expenses are agreed to be, but not limited to, the reasonable cost of transportation, meals, and lodging. All sums so incurred or advanced shall be reimbursed after receipt by LICENSEE of detailed invoices rendered by Datacor. LICENSEE agrees to reimburse Datacor for the labor cost involved in transportation to and from LICENSEE at one half the current applicable billing rate.
19. SCOPE; ORDER OF PRECEDENCE; CHANGES
19.1 Services Provided. Datacor will provide the Services described in this paragraph (“Implementation Services”) as specified in an order and further described in a Statement of Work executed by both parties (“SOW”). “Installation” or “Installation Services” are Implementation Services where Datacor performs Software Product installation and configuration. “Milestone Services” are Implementation Services where Datacor creates and delivers customized software, hardware, documentation, or other work product (“Deliverables”) or completes other defined objectives (“Milestone Objectives”) on a milestone basis. “T&M Services” are consulting, and other Implementation Services provided on a time and materials basis in exchange for hourly, daily, or monthly fees and expense reimbursements calculated on the basis of Datacor service records. Deliverables and work product of T&M Services do not include generally available hardware and software and are not Products. To the extent a SOW provides that Datacor will deliver Products, the terms for Supply of Generally Available Products will apply to those Products. Implementation Services do not include Maintenance Services.
19.2 Order of Precedence. In the event of conflict among the General Terms, these Implementation Services Terms, a SOW and any ancillary attachments to or documents referenced in a SOW, the order of precedence is: (i) Implementation Services Terms; (ii) General Terms; (iii) SOW; and (iv) ancillary documents.
19.3 Changes. Changes in Implementation Services will be made in accordance with the change control procedure in the SOW. If there is no procedure: (i) Datacor will respond promptly to Customer’s change requests by identifying the impact of the proposed change on schedules and pricing; (ii) Datacor may identify a need for a change in scope or schedule and will submit a change request to the Customer which identifies the impact on the schedule and/or the pricing and (iii) changes will be valid only where agreed in writing by both parties.
20. ACCEPTANCE
20.1 T&M Services. T&M Services are deemed accepted upon performance.
20.2 SOW without Acceptance Procedures. Where the SOW does not contain specific acceptance criteria and procedures (“Acceptance Procedures”), Implementation Services are deemed accepted upon the earlier of either: (i) Datacor providing notice of completion to Customer; or (ii) production use of Deliverables or installed Products. If requested by Datacor, Customer agrees to promptly sign and return an acceptance certificate or other document evidencing acceptance.
20.3 SOW with Acceptance Procedures. Where the SOW contains Acceptance Procedures, the Deliverable or Milestone Objective is deemed accepted upon the earlier of either: (i) the end of the acceptance period defined in the Acceptance Procedures, unless Datacor has received from Customer a rejection notice indicating in reasonable detail the material failure of the Deliverable or Milestone Objective to conform to the criteria in the Acceptance Procedures (“Rejection Notice”); or (ii) production use (except to the extent production use is included in the Acceptance Procedures). If the Deliverable or Milestone Objective fails to conform to the criteria in the Acceptance Procedures and Datacor has received a timely Rejection Notice, then Datacor will re-perform the respective Milestone Services and re-submit the Deliverable or Milestone Objective for acceptance as described above. If, after resubmission, Customer provides another Rejection Notice, then Customer’s remedies will be either to: (a) terminate the SOW, return all Deliverables and receive a refund of fees paid under the SOW less an amount equal to Services performed calculated based on a time and material basis; or (b) accept the Deliverable or Milestone Objective subject to the warranties and remedies described in Section 6. If requested by Datacor, Customer will sign and return an acceptance certificate or other document evidencing acceptance in accordance with this Section.
21. TRANSFER OF RISK, TITLE; LICENSE TO DELIVERABLES
21.1 Transfer of Risk and Title. Title to hardware components of Deliverables will pass to Customer upon acceptance. The risk of loss will pass to the Customer when the carrier receives the Deliverable for shipment to Customer or when the Deliverable arrives on Customer’s premises, whichever occurs earlier.
21.2 Customer’s License to Deliverables. Subject to Customer’s payment of fees for the Services, Datacor grants Customer a non-exclusive, non-transferable, limited, non-sublicensable license to use Deliverables created by Datacor and delivered to Customer as part of the Milestone Services during the term of the Agreement. Software contained in Deliverables will be licensed subject to the Software License Terms contained in the Agreement.
22. INVOICING AND PAYMENT
Fees will be invoiced as follows: (i) Installation Services on completion of the installation, unless otherwise provided in the SOW; (ii) Milestone Services according to the schedule in the SOW; and (iii) T&M Services monthly in arrears, unless otherwise provided in the SOW.
23. WARRANTY
23.1 Warranty Period. The warranty period for Implementation Services and Deliverables will be 30 days beginning on the acceptance or deemed acceptance date of the Deliverables or the performance of the Service (the “Warranty Period”).
23.2 Warranty. During the Warranty Period, Datacor warrants to Customer that (i) Implementation Services will be carried out in a professional and workmanlike manner by qualified personnel; and (ii) Deliverables will conform in all material respects to the specifications contained in the SOW. However, Datacor does not warrant that software contained in the Deliverables will perform uninterrupted or error-free.
23.3 Remedies.
23.3.1 Implementation Services. To the extent that Datacor has not performed Implementation Services in conformance with the above warranty, and Datacor receives written notice from Customer within the Warranty Period that identifies the non-conforming Implementation Services in reasonable detail and requests Datacor cure the non-conformity, Datacor will re-perform the applicable non-conforming Implementation Services. If Datacor is unable to re-perform the applicable Implementation Services or determines that re-performance is not commercially reasonable, either (i) Datacor will refund to Customer the fees for the non-conforming Implementation Services; (ii) or, in the case of T&M Services, Customer may cancel the affected T&M Services, subject to payment of fees for T&M Services already performed.
23.3.2 Deliverables. If Datacor receives from Customer within the Warranty Period a written notice describing in reasonable detail how the Deliverables failed to be in conformance with the above warranty, Datacor will, at its option, repair or replace the non-conforming Deliverables, or refund to Customer the applicable fees upon return of the non-conforming Deliverables.
23.3.3 Exclusive Remedies. THE REMEDIES SET FORTH IN THIS SECTION 22.3.3 WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND WILL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST DATACOR WITH RESPECT TO THE NON-CONFORMANCE OF IMPLEMENTATION SERVICES AND DELIVERABLES.
23.4 Disclaimer. Services provided to enhance network security are not a guaranty against malicious code, deleterious routines, and other techniques and tools employed by computer “hackers” and other third parties to create security exposures. Neither Datacor nor its suppliers make any warranty, express or implied, that all security threats and vulnerabilities will be detected or that the Services will render an end user’s network or particular network elements safe from intrusions and other security breaches.
24. TERM AND TERMINATION
24.1 Term. The term of a SOW will begin on the date specified in the SOW or order, if any, or on the date executed by Datacor. The term of the SOW will continue until the work is completed or the SOW is terminated earlier in accordance with this Section.
24.2 Termination. Unless otherwise provided in the SOW, either party may terminate Implementation Services upon 45 days prior written notice, and Customer will pay for Services performed to the date of termination and all non-refundable or non-terminable out-of-pocket expenses incurred by Datacor.
Document last updated January 2025. Datacor reserves the right to update these Terms and Conditions upon providing notice to Customer.