REPORTMILL SOFTWARE, INC.
PLEASE READ THE TERMS AND CONDITIONS
RELATING TO THE UPGRADE SUBSCRIPTION TO BE PROVIDED TO YOU. YOU ARE AGREEING TO
BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS, YOU
MUST IMMEDIATELY NOTIFY THE PROVIDER TO CANCEL THE SERVICE AND RECEIVE A REFUND
IF APPLICABLE.
In consideration of the upgrade
subscription support fee:
ReportMill, Software, Inc.,
("ReportMill") agrees to provide Software Upgrade Subscription Support,
in accordance with the following terms and conditions.
1. DEFINITIONS
The following
definitions of terms apply:
1.1.
"Installation and Configuration Support" means verbal assistance and
consultation, by telephone or electronic mail communication only, by ReportMill
to you relating to loading, setting up, preparing, and starting ReportMill
Software or Updates.
1.2. "New
Release" means Software which is commercially released by ReportMill
during the Term and is designated by ReportMill by a major version or release
number such as "1.0", "2.0", "3.0", etc., in
object code form only, and any related documentation accompanying such New
Release.
1.3.
"Patch" means a code segment, correction, enhancement or supplement
to Software released by ReportMill during the Term which is designated by
ReportMill as a patch or by a third-level version or release number, such as
"3.3a", in object code form only, and any related documentation
accompanying such Patch.
1.4.
"Software" or "ReportMill Software" means ReportMill Software
products which are commercially available.
1.5.
"Updates" means, collectively, the New Releases, Upgrades, and
Patches for Software.
1.6.
"Upgrade" means Software which is commercially released by ReportMill
during the Term and is designated by ReportMill by a minor version or release
number such as "1.2", "3.3", etc., in object code form
only, and any related documentation accompanying such Upgrade.
2. NATURE OF
SERVICES
2.1. For the
Term and Service Fee, ReportMill will provide Customer all Updates and
Installation and Configuration Support to the ReportMill Software (the
"Services").
2.2. Delivery of
Updates. ReportMill shall give notice to Customer when an Update covered by
this Agreement is commercially released by ReportMill during the Term. To
obtain an Update, Customer shall place an order for the Update, and ReportMill
shall deliver one copy of the Update with media and documentation to Customer
at no additional charge, and the use of the Update shall be governed by the
terms and conditions of the License Agreement for the Customer’s ReportMill
Software. Customer's order must be placed before expiration of the Term, and
ReportMill has no obligation to deliver an Update after expiration of the Term.
Customer may purchase additional copies of media or documentation at additional
cost.
2.3. Processor
Transfers During Term. If Customer exchanges some or all of its current
ReportMill Software licenses for ReportMill Software licenses for a different
microprocessor or different operating system during the Term, Customer shall
receive Services relating to Customer's different microprocessor or operating
system, for no additional service fees, upon shipment of such ReportMill
Software licenses for the different microprocessor or operating system and payment
of any applicable software license transfer fee.
2.4. Excluded
Services and Software. ReportMill has no obligation to provide or deliver bug
fixes, improvements to existing software functions, upgrades, revisions,
patches, or enhancements which are requested by Customer, prepared custom, or
have no general applicability to other ReportMill customers.
2.5. Upgrade to
Current Release. If Customer is not presently using the current commercial
release of ReportMill Software, Customer shall upgrade all its present
ReportMill Software licenses to the current commercial release level, at
regular upgrade prices. Updates do not include multiple upgrade levels that may
be required for Customer's licenses to reach the current commercial release
level.
2.6. General
Guidelines. During the Term of Services:
2.6.1.
ReportMill will utilize trained and skilled personnel selected by ReportMill
who will be able to respond to technical questions. ReportMill may substitute
or assign different persons to serve Customer at ReportMill's discretion.
2.6.2.
ReportMill will advise its support personnel about product changes being
considered from time to time by ReportMill. ReportMill may initiate support
inquiries to Customer for the purpose of monitoring Customer's progress in using
ReportMill Software or Updates.
2.6.3.
ReportMill anticipates that most of Customer's questions and requests for
assistance will be routine and that ReportMill support staff will have
readily-available answers and solutions. ReportMill will use reasonable efforts
to assist in locating appropriate solutions to Customer inquiries and problems,
but cannot guarantee any specific result. The parties recognize that some
problems or inquiries cannot be resolved without utilization of unreasonable
time or resources. In such cases, ReportMill may determine that a particular
problem will be addressed in a future Update. If ReportMill determines that an
Update is not an appropriate solution to Customer's problem, ReportMill will
consult with Customer as to alternative solutions.
2.6.4. While
ReportMill may from time to time deliver limited amounts of code to Customer in
rendering Services, ReportMill will not furnish extensive programming services
to Customer or be regarded as a contractor for programming services or custom
development work.
2.6.5. Services
will be made available by ReportMill to support prior releases of ReportMill's
software products in accordance with ReportMill's then current policy regarding
support of prior releases.
2.6.6. Services
will be provided to Customer by ReportMill by the remote communication. On-site
service is not included.
2.6.7. Except as
specifically provided to the contrary, ReportMill will furnish Services only
during ReportMill's then-regularly scheduled service hours, excluding
ReportMill-recognized holidays.
3. FEES AND
EXPENSES
3.1. Fee for
Services. In consideration for ReportMill providing the foregoing Services to
Customer, Customer shall pay the Service Fee agreed to. Customer represents
that it has accurately reported the total number of licenses held by Customer,
whether obtained directly from ReportMill or from a reseller, distributor or
other source. Service Fees are subject to change from year to year and upon
renewal of Services.
3.2. Payment
Terms. Service Fees shall be payable in U.S. dollars thirty (30) days after the
date of invoice therefor, in advance of the commencement of services. Payments
shall be made according to then-current credit policies. Any overdue amounts
shall be subject to a finance charge at the rate of 1.5% per month commencing
on the date such amount becomes overdue, or the highest rate permitted by
applicable law, whichever is lower. Service Fees are non-refundable.
3.3. Taxes.
Customer shall pay, and indemnify the distributor against, all sales, use,
value-added, property, import and export, and similar taxes, duties and fees,
if any, including penalties and interest, levied by any governmental authority
as a result of the furnishing of the Updates and Services to Customer (other
than taxes based upon distributor’s net income), as well as any costs
associated with the collection or withholding of such taxes or duties.
4. LICENSE OF
TECHNICAL INFORMATION
4.1. Customer
understands that, in the course of providing the Services to it, ReportMill may
furnish Customer with technical advice, software programs or code and other
information relating to, among other things, ReportMill's products and
operating system and programming environment that ReportMill considers
proprietary and which ReportMill may make available to other customers, and
that Customer's receipt of such information (whether written, oral or embodied
in other tangible media) therefore does not give rise to any ownership of or
exclusive right by Customer to use that information. Customer acknowledges and
agree that all Updates, documentation, publications, software programs or code,
and other information delivered, furnished or otherwise communicated by or on
behalf of ReportMill to Customer during Services, whether written or oral or in
electronic format, are licensed to Customer on a non-exclusive basis for
Customer's internal use only and not for distribution to third parties, and
that ReportMill retains all ownership rights and title to such information.
5. CONFIDENTIAL
INFORMATION
5.1. Whenever
Customer communicates with ReportMill, or grants ReportMill access to its
computers or network, including through remote access, Customer shall take all
reasonable precautions to prevent the delivery or disclosure to ReportMill of
information which Customer desires to be treated as confidential. ReportMill
does not agree to receive Customer information in confidence. No employee,
agent, or contractor of ReportMill has authority to modify or waive this
Section verbally or in writing.
6. SERVICES,
UPDATES AND INFORMATION LIMITATIONS
6.1. Warranties
and Warranty Disclaimers. ReportMill warrants, to Customer personally, for a
period of ninety (90) days from the date of shipment of each Update (the
"Warranty Period"), that the media containing the original copy of
such Update shall be free from defects in material and workmanship. ReportMill
further warrants, for the Warranty Period, that the Updates shall operate
substantially in accordance with the functional specifications in the
accompanying documentation if properly copied and used on a machine for which
it was designed. If during the Warranty Period a defect in the Updates or media
for the original copy of the ReportMill Software appears, Customer may return
the Updates to ReportMill for either, at the election of ReportMill,
replacement or refund a prorated portion of the amounts paid by Customer for
the license of the Updates. You agree that the foregoing constitutes your sole
and exclusive remedy for breach by ReportMill of any warranties made in
connection with Services or Updates.
6.2. Disclaimers
of Liability. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 ABOVE,
YOU AGREE THAT THE UPDATES ARE FURNISHED ON AN "AS-IS" BASIS. NEITHER
REPORTMILL NOR ANY THIRD-PARTY SUPPLIER MAKES ANY WARRANTIES OF ANY KIND,
EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER CONCERNING THE UPDATES,
DOCUMENTATION, PUBLICATIONS, SOFTWARE PROGRAMS OR CODE, AND OTHER INFORMATION
DELIVERED, FURNISHED, OR OTHERWISE COMMUNICATED BY OR ON BEHALF OF REPORTMILL
TO CUSTOMER, INCLUDING WITHOUT LIMITATION THE CONDITION, TITLE,
MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE UPDATES. NEITHER
REPORTMILL NOR ANY THIRD-PARTY SUPPLIER WARRANTS THAT THE REPORTMILL SOFTWARE
WILL MEET YOUR REQUIREMENTS, THAT IT WILL OPERATE IN THE COMBINATIONS WHICH YOU
MAY SELECT, OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. NEITHER
REPORTMILL NOR ANY THIRD-PARTY SUPPLIER ASSUMES ANY LIABILITY REGARDING USE OF,
OR ANY DEFECT IN, THE UPDATES OR REPORTMILL SOFTWARE.
6.3. Limitation
of Damages; Remedies. IN THE EVENT THAT REPORTMILL SHALL FAIL TO PROVIDE THE
SERVICES IN ACCORDANCE WITH THESE TERMS, REPORTMILL'S AND ANY THIRD PARTY
SUPPLIER’S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY SHALL BE FOR
REPORTMILL TO USE ITS REASONABLE EFFORTS TO REPERFORM THOSE SERVICES WITHIN A
REASONABLE PERIOD OF TIME; PROVIDED, THAT IN THE EVENT REPORTMILL IS UNABLE TO
CORRECT ANY DEFAULT OR BREACH BY IT, REPORTMILL MAY ELECT TO REFUND ALL
PAYMENTS ACTUALLY RECEIVED BY REPORTMILL OR THIRD-PARTY SUPPLIER FROM CUSTOMER
FOR THE SERVICES IN QUESTION IN FULL SATISFACTION OF REPORTMILL AND THIRD-PARTY
SUPPLIER’S OBLIGATIONS FOR SERVICES. SUCH REFUND SHALL CONSTITUTE REPORTMILL
AND THIRD-PARTY SUPPLIER’S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDY FOR
SUCH DEFAULT OR BREACH. IN NO EVENT SHALL THE AGGREGATE LIABILITY FOR DAMAGES
OF REPORTMILL AND THIRD-PARTY SUPPLIER’S, ITS EMPLOYEES OR AGENTS, EXCEED THE
LESSER OF (I) THAT PORTION OF THE TOTAL FEES PAID BY CUSTOMER TO REPORTMILL AND
THIRD-PARTY SUPPLIER DETERMINED TO BE REASONABLY ALLOCABLE TO THE PARTICULAR
SERVICES IN QUESTION OR (II) THE AMOUNTS CUSTOMER ACTUALLY PAID TO REPORTMILL
AND THIRD-PARTY SUPPLIER FOR SERVICES. IN NO EVENT SHALL REPORTMILL OR
THIRD-PARTY SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS
OR REVENUES OR ANTICIPATED SAVINGS, ARISING FROM SERVICES OR USE OF THE
INFORMATION CONVEYED BY THE RENDERING OF SERVICES, EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
6.4.
Indemnification. ReportMill agrees to defend any action brought against
Customer based on a claim that an Update provided in connection with Services
infringes or violates any United States copyright or other proprietary right of
any third party, except that ReportMill shall have no liability as to any claim
based on the use of the Update if modified by or for Customer or used in
connection with equipment, devices or software not supplied by ReportMill, if
such claim would have been avoided by the use of the Update without such
modifications or with other equipment, devices or software. ReportMill shall
pay any final award against Customer, or settlement entered into on Customer's
behalf, based on such infringement so long as Customer (i) gives ReportMill
notice of any such claim sufficiently promptly so as not to prejudice
ReportMill's interests, (ii) provides reasonable assistance in connection with
the defense and/or settlement, and (iii) permits ReportMill to control the
defense and/or settlement. The rights granted to Customer and ReportMill under
this Section shall be the sole remedy for the infringement or alleged
infringement of any patent, copyright, trademark or other proprietary right.
6.5. ALLOCATION
OF RISK. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS HEREIN CONCERNING
LIMITATION OF LIABILITIES, LIMITED WARRANTIES AND DISCLAIMER OF WARRANTIES AND
DAMAGES ALLOCATE THE RISK OF FAILURE BETWEEN REPORTMILL THIRD PARTY SUPPLIER AND
CUSTOMER, AND THAT THIS ALLOCATION IS REFLECTED IN THE PRICING OF THE SERVICES
AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN REPORTMILL,
THIRD-PARTY SUPPLIER AND CUSTOMER.
7. TERM AND
TERMINATION
7.1. Term.
Services shall be provided for a Term of one (1) year, commencing on the date
the Service is purchased, and terminating one year thereafter, unless specified
otherwise. ReportMill may at its option either terminate or suspend the
Services (i) upon five (5) days prior written notice to Customer if Customer
fails to pay fees as set forth herein, (ii) immediately upon written notice if
Customer is in breach of Section 4 or (iii) immediately upon written notice if
Customer has failed to cure any other default or breach within thirty (30) days
of written notice of the same to Customer from ReportMill. In the event of
termination, ReportMill's obligation to provide the Services to Customer will
terminate. Sections 3, 4, 6.4, 7, and 8 shall continue in effect
notwithstanding termination.
8. GENERAL
8.1. Customer
will not export or re-export, directly or indirectly, any Update, technical
information or data acquired or disclosed to Customer during Services without
the appropriate United States and foreign government licenses if so required by
United States or other foreign government export laws or regulations.
8.2. Neither
party has any authority to make any statement, representation, warranty or
other commitment on behalf of the other, and these terms do not create any
agency, employment, partnership, joint venture or similar relationship between
ReportMill and Customer.
8.3. Neither
party shall be liable for any delay or failure to meet its obligations
hereunder due to circumstances beyond its reasonable control, including but not
limited to war, riot, insurrection, civil commotion, labor strikes or lockouts,
shortages, factory or other labor conditions, fire, flood, earthquake or storm.
8.4. If any
provision of herein should be held to be unenforceable or invalid for any
reason, such unenforceability or invalidity shall not affect the enforceability
or validity of the remaining provisions, and the parties will substitute for
such provisions an enforceable and valid provision which most closely
approximates the intent and economic effect of the unenforceable or invalid
provision.
8.5. These Terms
and Conditions shall be construed in accordance with and governed by the laws
of the State of California as applied to agreements entered into and to be
performed entirely within California between California residents.
8.6. This
Agreement shall inure to the benefit of and shall be binding upon the parties
and their successors and assigns. Neither party may assign this Agreement or
any rights or obligations under this Agreement without prior written consent of
the other party, except that (a) either party may assign this Agreement to any
parent, subsidiary or other affiliated company, (b) either party may assign
this Agreement to a third party which succeeds to the business of the assigning
party through a sale of substantially all the assigning party's assets, merger,
reorganization, or consolidation, and (c) ReportMill may fulfill its
obligations hereunder through independent contractors.
8.7. These Terms
and Conditions, constitute the entire agreement between Customer and
ReportMill, and supersede any prior agreements or understandings between
Customer and ReportMill, whether written or oral, and any preprinted terms on
purchase orders, with respect to the subject matter hereof. No amendment of, or
waiver of any obligation under, this Agreement will be enforceable unless set
forth in writing signed by the party against which enforcement is sought.