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Software Maintenance Agreement

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This agreement outlines the terms and conditions for maintenance services supplied by Daeja for its software products, including its ViewONE and ViewONE Pro java applet image viewers and the range of optional modules.

Daeja offers a maintenance service for its software products on an annual basis that can be taken at any time.

This Software Maintenance Agreement (the “Agreement”), applies to services offered by Daeja Image Systems (“Daeja”) to The Licensee of a single valid fully paid-up license and any optional components (“The License”) as defined in the Daeja Image Systems Software License Agreement (the “Software License Agreement”).

Daeja is a United Kingdom (“U.K.”) corporation with offices at London House, High Street, Stony Stratford, Milton Keynes, Buckinghamshire, MK11 1SY, and whose U.K. corporation registration number is 3466397 and EEC VAT/Tax number is GB 745 8474 92.

Service fees:

20% of the fee paid for The License, payable annually in advance.

General description:

This service is available to The Licensee via the Daeja Web Site, email and telephone reporting service during United Kingdom (“U.K.”) times 10.00 a.m. to 6.00 p.m. excluding weekends and U.K. national and bank holidays and allowing for U.K. daylight saving time differences.

Maintenance updates made available as soon as they are released. No limit on the number of maintenance updates during the term of this Agreement.

On reception of a reported problem or a request for assistance Daeja will respond and look into all reports pursuant to the terms of this Agreement. Problems will be responded to via email or telephone as appropriate.

1. Definitions

Where The Licensee obtained their License via an authorized agent, reseller or partner (“The Agent”) of Daeja, then the term “Licensee” may be interchanged with “Agent” if those services are supplied to The Agent in place of direct supply to The Licensee. In such cases, and unless otherwise agreed, all services supplied to The Licensee, are supplied by The Agent and as such The Licensee must work through The Agent in its procurement.

Where references are made to “The Product”, this includes all software and documentation produced by Daeja and any subsequent updates, derivatives, or part thereof including license files.

Where references are made to “Software” this refers to any software part of The Product.

Where references are made to “Documentation” this refers to any documentation part of The Product.

Where references are made to “Downloads” this refers to any download from the Daeja Web Site or it’s Agents of The Product or part thereof.

2. Commencement

This Agreement shall commence when Daeja receives full payment from The Licensee of the service fees defined below.

3. Term

This Agreement shall continue for one year or until it terminates pursuant to its termination clauses.

If The Licensee chooses to renew the service at the end of that term, then this Agreement shall start afresh and shall be fully renegotiable pursuant to the “Retention of Rights” and “Terms and Conditions” clauses of this Agreement.

4. The Service

Daeja will provide maintenance updates as and when they are available for a single copy of the software and documentation (“The Product”) which has been and remains validly licensed to The Licensee pursuant to the terms of the Software License Agreement.
Maintenance updates are Product updates specifically to resolve errors that may have been present in The Product at the time of purchase of The License for The Product, or that may have been present in previous updates. Such updates will be represented by a change in the software build number (e.g. version 2.0 build 1 to version 2.0 build 2, or as commonly shortened to 2.0.1 and 2.0.2 respectively).
All software is supplied in electronic executable form only and all documentation is supplied in electronic readable form only. updates are provided by the Daeja Web Site or email. Charges may be applied for other delivery mechanisms and repeat copies; both remain at Daeja’s discretion which will not be unreasonably withheld.(Daeja recommend The Licensee maintain a backup copy of all such software and documentation).
This service is available to The Licensee via the Daeja Web Site (subject to the web site “Terms of Use” as published on the web site), email and telephone reporting service during United Kingdom (“U.K.”) times 10.00 a.m. to 6.00 p.m. excluding weekends and U.K. national and bank holidays and allowing for U.K. daylight saving time differences. The service is operated remotely from Daeja’s or its Agent’s offices.
This Service does not include functional or feature enhancements or additional functions, modules or features (“Enhancements”) to The Product as may be released by Daeja from time to time. The service applies only to errors present in the set of features contained within The Product at the time of purchase of The License for The Product.
The Service does not include any training The Licensee may require or request on any update, nor any additional assistance required to install and implement an update where The Licensee has requested non-standard features in The Product. Such services are additional services and will be provided at discretion of Daeja. However, Daeja will provide documentation for each release as applicable as part of the Maintenance Service.

5. Fees and Terms of Payment

20% of the fee paid for The License; payable annually in advance (The Licensee will attract an automatic discount of 25% on these fees for the first annual term if the maintenance service is taken up at the time of the purchase of The License).
If The Licensee subsequently purchases additional License options for The Product (e.g. licenses for the Print-Accelerator and/or Annotations Modules) then a fee of 20% of the additional module fees will be charged to cover maintenance of these modules, prorated to the annual term left of maintenance service for The License (to ensure annual renewal dates for The License and additional license options coincide).
If The Licensee subsequently purchases chargeable upgrades to The Product (e.g. from version 2 to version 3) then a fee of 20% of the upgrade fee will be charged to cover maintenance of the upgrade, prorated to the annual term left of maintenance service for The License (to ensure annual renewal dates for The License and version upgrades coincide).
In order for Daeja to be able to manage this Service properly, the Licensee must take up the Service for the all additional modules as it is not feasible to manage the Service for part of The Product.
Where The License is purchased in currencies other than U.K. GBP, the foreign currency quotation for this Service will be held for 3 months unless the exchange rate between U.K. and the respective country varies by more than 25%. The value of all foreign currency quotations for this Service will be revisable after 3 months from the purchase of The License provided this Service has yet to be purchased or paid for in full.
Where Daeja permits a credit period for payment of fees, Daeja reserve the right to charge interest for late payments at a rate of 5% per annum above the Bank of England base bank rate per annum and to terminate the service at Daeja’s discretion.
Additional fees may be charged for services outside the scope of this Agreement (“Surcharge Services”) and subject to prior agreement by The Licensee. Daeja may at its discretion deny the service being requested or charge as a Surcharge service which may include, but are not limited to, services requested because of any one or more of the following conditions:
1. repair, adjustment or modification of The Product or part thereof or License whether made or attempted, by persons other than authorized employees of The Licensee
2. failure of The Licensee to properly follow recommended daily back-up procedures
3. failure of The Licensee to properly follow procedures set forth in the Documentation
4. failure by The Licensee to implement recommendations in respect of or solutions to problems previously advised by Daeja
5. use of The Product on equipment or in environments other than that specified by Daeja
6. use of The Product for a purpose for which it was not designed
7. use of operating software that does not meet the manufacturer's or Daeja’s specifications or which has not otherwise been approved by either of them
8. misuse or accident caused by The Licensee
9. improper programming or improper installation by The Licensee (other than in accordance with instructions received from Daeja)
10. damage or problems caused in transit or reinstallation following any relocation of the equipment upon which The Product is installed or to which The Product is connected
11. damage or problems caused by accessories, alterations, attachments or other devices not furnished, maintained or approved by Daeja
12. failure of air conditioning, electrical power or humidity control, or
13. acts of God, fire, flood, earthquake, lightning strikes, riots, war, nuclear disaster or other such causes
14. delivery of updates, license files, The Product or part thereof other than by email or downloading from the Daeja Web Site
15. any expenses incurred by Daeja which it does not normally incur, such as those related, but not limited to, site visits, purchase of specific software, equipment or services necessary to replicate the problem under similar circumstances as those that occur at The Licensee’s installation site of The Product.
All fees will be revisable at the end of the annual term of this Agreement should The Licensee wish to renew.

6. Terms and Conditions

In order that Daeja is able to perform its services as defined in this Agreement, The Licensee will make available free of charge all information, facilities and services reasonably required by Daeja including without limitation, The License information to which the service relates, computer runs, core dumps, printouts, data preparation at a time convenient to The Licensee, and subject to their not damaging the performance of The Product, to install recommended utility programs to assist Daeja in providing the services, and where necessary run test runs using diagnostic versions of The Product, returning the requested information and results to Daeja as may be required from time to time.
If this Service is taken up by The Licensee, then The Licensee must take up the Service for each additional module purchased, either at the time of the initial purchase (with the then chosen modules) or any subsequent purchases of modules.
Daeja retains the right to reject, for any reason, the commencement of services, or part thereof, any requests for discount, and any service which is supplied is governed by the laws of England and Wales, and where sold outside the United Kingdom (“U.K.”) is governed by international treaties with the U.K. Further Daeja retains the right to adjust the fee at any time for subsequent service periods. A minimum fee may be imposed at Daeja’s discretion.If The Service has already been purchased or obtained via electronic means (i.e. without express prior agreement from Daeja), and subsequently Daeja rejects the supply thereof and terminates this Agreement, Daeja will return all fees paid in full.
Both parties are responsible for complying with any local laws, taxes, tax collection and administration in its jurisdiction which might impact its right to import, export or use The Product, Licenses, or part thereof, and both parties represent that it has complied with any regulations or registration procedures required by its governing law to make these terms and conditions enforceable.
Both parties assert that any information provided about the party, and any information disclosed during the process of administering the service is true, and neither has not, in any way intentionally misled the other.
Unless Daeja is expressly advised otherwise by The Licensee, The Licensee grants Daeja the right, at no charge and without the prior consent of The Licensee, to make reference to the existence of this Agreement and to otherwise utilize The Licensee’s name and other public information regarding The Licensee in any press release, marketing and advertising undertaken by Daeja. This right shall survive the termination of this Agreement.
Nothing in this agreement and no action taken by the parties pursuant to this agreement shall constitute, or be deemed to constitute a partnership, association, joint venture, the agents of each other or any other co-operative entity.

7. Warranties

Daeja do not guarantee a solution to any reported problem, or that any update or solution provided is free of any problems, however Daeja will spend time and effort in an attempt to understand and/or investigate reported problems specific to The Product. Daeja will then at its reasonable discretion endeavor to solve the problem with the intent that a solution is sought and released through changes to The Product, provided:
1. a solution has not already been found with updates which may have already been released subsequent to The Licensee purchase of it’s License for The Product or reception of an update;
2. the problem relates specifically to The Product and has not occurred due to use of any third party product;
3. is not due to equipment failure;
4. The Product would not be substantially changed in the process of attempting to resolve the problem;
5. the Licensee follows any reasonable recommendation from Daeja and/or instructions to help investigate or otherwise resolve or work around the problem;
6. the matter is not subject to a Surcharge;
7. it is within Daeja’s reasonable control to resolve the problem.
Daeja do not guarantee specific response or solution times to reported problems, save that Daeja will respond when reasonably and as promptly as it is able to do so. Daeja will endeavor to advise when problems can be looked into as soon Daeja knows and that Daeja is able to do so and will furnish any solutions as soon as they are available.
Daeja makes no representations or warranties about the suitability of The Product, or part thereof, or services either express or implied, including but not limited to the implied warranties or merchantability, fitness for a particular purpose, or non-infringement, or that it is free of defects. Daeja shall not be liable for any damages suffered by The Licensee as a result of using, modifying or distributing The Product, or part thereof, or any of its derivatives. The entire risk as to the suitability and performance of The Product, or part thereof, is borne by The Licensee. The Licensee agrees that Daeja is not liable in respect of loss of earnings, service, time, repair or any other caused while using The Product, or part thereof, and The Licensee agrees to determine that The Product, or part thereof, sufficiently meets its requirements prior to its use.
Daeja’s product(s) may be supplied with a Daeja digital certificate. The Daeja digital certificate is intended to provide the licensee with the comfort that the product is as shipped by Daeja (unmodified). If the product is found to have a non-Daeja certificate then there can be no assurances that the product is as shipped by Daeja, and if that certificate is replaced without correct written authority by Daeja then all warranties, whether stated or implied are withdrawn by Daeja and Daeja shall no longer provide any form of support or services of any kind for the product. Such an unauthorized replacement shall constitute a breach of these terms and conditions.
The Product, or any part thereof, or services supplied by Daeja are not designed or intended for use, resale or transfer to any equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the software could lead directly to death, personal injury, or severe physical or environmental damage ("high risk activities"). Daeja specifically disclaims any express or implied warranty of fitness for high risk activities. The Licensee agrees that Daeja will not be liable for any claims or damages arising from the use of The Product, or part thereof, in such applications.
Daeja warrants and represents to The Licensee that it will perform its Services and obligations under this agreement with reasonable skill, diligence and care.
With exception of those obligations laid out in this agreement, in no event will either party be liable, whether in contract, tort or otherwise, to the other, or any customer of the other, and/or to any other third party, for any claims or damages arising out of or related to this agreement. In no event shall either party be liable to the other for incidental, consequential, special or punitive damages, including without limitation, loss of use, loss of data, loss of profits or loss of business, arising out of or in connection with this agreement, the software modules, sample code of any kind, or the maintenance and product maintenance services, whether or not the party has been advised of the possibility of such damages.
Daeja represents that it has taken reasonable precaution to ensure that to the best of Daeja's knowledge, The Product does not contain
1. any virus or similar code that may destroy, modify, alter, or cause the deliberate destruction, modification or alteration, in whole or in part, of any of The Licensees equipment, devices or software or
2. other computer software routine or hardware components that are designed
  1. to deliberately permit unauthorized access or use by third parties of The Product installed on The Licensees equipment,
  2. to deliberately disable or damage hardware or deliberately damage, erase or delay access to software or data installed on The Licensees equipment, or
  3. to deliberately perform any other similar actions
Daeja’s products and modules may utilize technology licensed from third party vendors. Daeja neither warrants the performance of such third party technology, nor guarantees the availability of the features or modules which rely on such technology in future builds or versions of the products. Daeja, at its sole discretion, may cease to offer products, modules or features which rely on third party technologies. In such cases Daeja may offer alternative products, modules or features from alternative third party providers, but is not obliged to do so.
Where contact and co-operation is required with Licensee’s engineers, software developers or alike, Licensee will provide adequately skilled, educated and experienced personnel. Failure to do so may invalidate Licensee’s warranty and/or license(s).
Save as expressly set out in this Agreement and statutorily implied terms as to title, all representations, warranties, terms and conditions, whether oral or written, express or implied by law, custom, statute or otherwise and including but not limited to satisfactory quality or fitness for any particular purpose are excluded.

8. Retention of Rights

Daeja asserts its copyright, ownership rights, intellectual property rights including but not limited to trademark and patent rights (whether registered or not and any applications to register or rights to apply for registration of any of the foregoing) over all aspects of The Product and/or any services supplied and all other intellectual property rights of a similar or corresponding character which may subsist now or in the future in any part of the world. All rights are reserved.
The Licensee agrees that it, and its users, will not perform any translation or localization, decompile, disassemble, reverse engineer or otherwise attempt to derive source code or interfere with source code, license files or licensing information; remove, replace or alter any digital certificate, trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the software; or publish any results of benchmark tests run on the software to a third party without prior and express written permission from Daeja. The Licensee agrees not to limit or interfere in any manner with Daeja's ownership of rights with respect to any of the above.
All Software and Documentation produced by Daeja, whether used in whole or in part, must contain all of the original proprietary notices and digital certificates. The Licensee agrees not to limit or interfere in any manner with Daeja's proprietary notices with respect to any of the above without prior and express written permission from Daeja.
Unless express written notice or permission to state otherwise is given by Daeja, no permission is granted to use, copy, modify or distribute The Product, or part thereof, for NON-COMMERCIAL or COMMERCIAL purposes without fee (which must be received in full by Daeja) and a valid full License supplied by Daeja or its Agents to The Licensee.
Failure to comply with any of the above will be considered breach of this Agreement pursuant to The Licensee’s obligations and liabilities defined in this Agreement.
Daeja asserts its right to offer these maintenance services through or by a third party that is deemed capable of honoring this Agreement and will be bound by all its terms and conditions by Daeja. In such an event Daeja warrants that the level of service will be at least to the same standard than if it were Daeja operating those services.
The obligations under the provisions of this clause shall survive the expiry or the termination of this Agreement for whatever reason.

9. Confidentiality

For the purposes of this Section, "Confidential Information" means any information, in whatever form, received by the recipient party from the disclosing party.
Each party agrees to maintain the confidentiality to the same extent that it protects its own confidential and proprietary information and, at a minimum, each party will not directly or indirectly make available to third parties or reveal, disclose, display, transfer, distribute or make use of the Confidential Information except in accordance with the terms of this Agreement and as necessary to exercise its rights and discharge its obligations under this Agreement or applicable law.
The obligations of either party contained in this Section will not apply to any Confidential Information that:
1. now or hereafter may be in the public domain by acts not attributable to the other party;
2. was lawfully in the possession of the other party prior to receiving it from the disclosing party;
3. is required to be disclosed by any applicable law or regulation;
4. is received in good faith by the Receiving Party from a third party who, on reasonable enquiry by the Receiving Party claims to have no obligations of confidence to the other party to this Agreement in respect of it and who imposes no obligations of confidentiality upon the Receiving Party.
Without prejudice to any other rights or remedies the Disclosing Party may have, the Receiving Party acknowledges and agrees that in the event of breach of this clause the Disclosing Party shall, without proof of special damage, be entitled to an injunction or other equitable remedy for any threatened or actual breach of the provisions of this clause in addition to any damages or other remedies to which they may be entitled.
The obligations of the parties under the provisions of this clause shall survive the expiry or the termination of this Agreement for whatever reason.

10. Force Majeure

Neither party shall be deemed to be in breach of this Agreement or otherwise liable to the other party for any delay in performance or any non-performance of any obligations under this Agreement (and the time for performance shall be extended accordingly) if, and to the extent that the delay or non-performance is, due to an event or circumstance beyond the reasonable control of that party (‘an event of force majeure’).
Conditions beyond a party’s reasonable control include, but are not limited to, natural disasters, acts of government, power failure, fire, flood, acts of God, acts of terrorism, labor disputes, riots, acts of war, and epidemics.
If the event of force majeure in question prevails for a continuous period in excess of 3 (three) months after the date on which it began, the other party may give notice to the party terminating this Agreement. The notice to terminate must specify the termination date, which must be not less than 30 (thirty) days after the date on which the notice to terminate is given. Once a notice to terminate has been validly given, this Agreement will terminate on the termination date set out in the notice. Neither party shall have any liability to the other in respect of termination of this Agreement due to an event of force majeure, but rights and liabilities that have accrued before termination shall not be affected.

11. Termination

It is the responsibility of The Licensee to take all reasonable precautions to ensure the terms and conditions of The Product, its attachments and updates are not abused, breached or misused in anyway. Failure to comply with this requirement will render this Agreement automatically terminated, save for those terms that survive its termination, and may leave The Licensee liable for civil and criminal proceedings.
Without prejudice to any other rights, Daeja may terminate this Agreement if The Licensee breaches any of its terms and conditions.
This Agreement may be terminated, without cause upon 30 days’ prior notice by either party. This notice may be given by post or fax and must be signed by an appropriate authorized figure. If Daeja terminates the agreement mid term, then Daeja will offer a return of funds for remaining services not provided pro-rata, provided there is no outstanding payments due from The Licensee and no dispute (legal or otherwise) exists between the parties.
Daeja retain the right to terminate or suspend The Service if for any reason, The Licensee is late in payment for any Software License, Service or other products or services supplied Daeja.
Following termination of this Agreement, those clauses in this Agreement that are expressly stated as surviving termination shall remain in force and the Licensee remains obligated to them.
This agreement will terminate upon liquidation, voluntary closure/liquidation, bankruptcy orders against The Licensee, or any action by or against The Licensee leading to The Licensee being unable to conduct normal business.
This agreement will terminate upon liquidation, voluntary closure/liquidation, bankruptcy orders against Daeja, or any action by or against Daeja leading to the Company being unable to conduct normal business.
Material breach on any of the above terms or the attached terms and conditions, constitutes automatic termination of this agreement.

12. Infringement

If Daeja is notified promptly in writing of any action (and all prior related claims) brought against The Licensee alleging that The Licensee’s use of the unaltered validly licensed Product (the “Licensed Product”) infringes any United Kingdom, United States, or world-wide patent, copyright, or trademark right, Daeja will defend The Licensee against that action at Daeja’s expense and will pay the costs and damages awarded against The Licensee in the action, provided that Daeja shall have sole control of the defense of any such action and all negotiations for its settlement or compromise. Further, Daeja shall only hold harmless The Licensee if Daeja are the entire cause of such action. If a final injunction is obtained in such action against The Licensee’s use of any Licensed Product or if in Daeja’s opinion any Licensed Product is likely to become the subject of a claim of infringement, Daeja will, in its reasonable judgment, and at its option and expense either:
1. procure for The Licensee the right to continue to use the Licensed Product;
2. replace or modify the Licensed Product so that it becomes non infringing;
3. remove any features/code without the need for further replacement pursuant to the JPEG2000 and LZW/GIF clauses below
4. if (i), (ii) or (iii) above are not reasonably feasible, terminate this Agreement without liability to Daeja except that Daeja shall refund the price of the Licensed Product pro-rated to the extent that The Licensee is unable to use the Licensed Product during a one year period beginning with the commencement date of this Agreement.
The Licensee shall endeavor to inform Daeja of any information that it becomes aware relating to a potential case of infringement or facts that may lead to infringement by Daeja.
The Licensee shall defend and hold Daeja harmless against all expenses, judgments and losses for infringement of any patent, trademark, copyright or other right that results from:
1. The Licensee’s designs, specifications, instructions, products or services;
2. claims based on modifications to any Licensed Product made by or for The Licensee;
3. any third party software, documentation, services, product of any kind being used with The Licensed Product;
4. any software, documentation, services, product of any kind being used with The Licensed Product that is not under the control of Daeja.
No costs or expenses shall be incurred for the account of Daeja without the prior written consent of Daeja.
The Product may include features for handling image files/formats conforming to the JPEG2000 International Standard, an ISO/ITU Standard. Daeja will hold harmless of infringement the authors of any sample source code (JJ2000 or otherwise) that may have been used to assist in the development of extensions for The Product by Daeja. Further and unless otherwise expressly stated, such features will cover Part 1 (one) of this standard where the contributors have already expressly declared that no fees or royalties will be sought for use of such sample source or derived code including binaries and that such code may be used in this way for COMMERCIAL and NON-COMMERCIAL use. Daeja have taken all reasonable procedures to ensure no infringement has taken place, however if at anytime it is found that any features/code within The Product does infringe then that specific feature/code will be removed from The Product without further obligation to The Licensee.
The Product may include features for handling image files/formats conforming to the LZW/GIF Unisys standard. Such features have been licensed to Daeja by the Unisys Licensing Department (the “Unisys License”) for use within The Product provided these features remain unavailable until The Licensee can provide reasonable evidence of having their own license from the Unisys Licensing Department. Therefore, to ensure conformality with the Unisys License and to prevent infringement these features will be disabled until The Licensee is able to supply Daeja with a valid copy of The Licensee’s own license agreement with the Unisys Licensing Department.

13. Assignment

This Agreement may not be assigned by The Licensee without the prior written consent of Daeja.
Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of an agreed successor and assign.

14. Entire Agreement

This Agreement (including any addenda hereto signed by both parties) represents the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to the said subject matter.

15. Governing Law

This agreement is governed by the laws of England and Wales and international treaties where appropriate.

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