Effective Date of Current Version: July 1st 2022
The following agreement sets forth the terms and conditions of the ToolsOnAir Broadcast Engineering (hereinafter referred to as “TOA”) Basic Software Support & Software Maintenance Service Agreement. Unless otherwise stated, this Basic Software Support & Software Maintenance Agreement applies to all TOA software product lines that are sold either as standalone software solutions or as part of a TOA appliance solution.
“Customer” refers to the individual or entity that has licensed TOA software and ordered TOA Basic Software Support & Software Maintenance from TOA or a TOA authorised VAR.
“Basic Software Support & Software Maintenance” Services refer to the services provided by TOA to VAR or End User(s) under the terms of this Agreement.
“Products” refer to the software and hardware products developed and licensed by TOA.
“Software” refers to either standard or customized software provided and licensed by TOA as a perpetual or temporary license to VAR and/or the Customer.
“Support Services” refers to the basic support and software maintenance services as described herein.
“Machine ID” refers to the hardware machine identifier required to issue a permanent or temporary TOA Licence activation code.
To be eligible for Basic Software Support & Software Maintenance Support as described herein, TOA Products (Software) must be properly licensed from TOA.
Support Services shall only be provided for incidents that are demonstrable in the supported release(s) of TOA Products (Software) running unaltered on certified hardware in conjunction with other certified hardware and I/O devices as specified in the TOA User Manuals and where a Basic Software Support & Software Maintenance Agreement is in effect.
All agreements are governed by the laws in force in Austria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the court of Vienna, Austria.
Basic Software Support
If Customer subscribes to Basic Software Support & Software Maintenance and pays the Annual Basic Software Support & Software Maintenance Fee, TOA shall provide the following Support & Software Maintenance Services:
- Customer shall have unlimited secure access to TOA’s on-line support facility on TOA’s website at https://support.toolsonair.com
- TOA will provide Customer with Support Services to a maximum of three (3) named technical support contacts (“Customer’s Technical Support Contacts”).
- Requests for Support Services will only be accepted from the Customer’s Technical Support Contacts via a support ticket created on the TOA support website.
- Support services shall only be provided to customers with a valid and active Basic Software Support & Software Maintenance contract pertaining to the specific product(s) for which they have purchased licences and support is required.
- Only customers with a valid an active Basic Software Support & Software Maintenance contract will be entitled to process LODs (Letter of Destruction) and only for Machine IDs currently under maintenance.
- For the avoidance of doubt, the TOA Basic Support and Software Maintenance contract does not cover third-party hardware, additional or extensive TOA and third-party customisations and installations or requests for and provision of ad-hoc consulting and training. Hardware support is provided for TOA hardware appliances only. Support for any other hardware such as Apple computers, video or network devices, third-party storage solutions or related devices is provided by the respective hardware vendor(s) through separate agreements. Requests for project consulting and training may be scheduled accordingly with the TOA Professional Services team and will be quoted and charged separately.
TOA reserves the right to deny service or charge adequate processing fees to customers without support entitlement.
“Initial response” is defined as the first contact by a support engineer after VAR or Customer has submitted an incident ticket. The initial response does not equate to incident resolution. Regular status updates will be communicated to Customer if the incident cannot be resolved immediately. Incident tickets remain open until confirmation is received that Customer is satisfied with the proposed resolution, or TOA closes the ticket because Customer configuration is outside the defined guidelines.
TOA will respond, toll-free, to requests for Support Services between 08:30 AM (08:30h) and 6:00 PM (18:00h) CET/CEST Monday-Friday (excluding Austrian holidays) via e-mail. TOA highly recommends creating support tickets via the TOA Support System at https://support.toolsonair.com, as all incoming support tickets are regularly monitored by TOA support staff. TOA might require full TeamViewer, IPMI or iDRAC access to the hardware running TOA Products and the provision of the related administrative accounts.
TOA guarantees an initial response time of four (4) hours for normal issues and two (2) hours for Critical/Blocking issues between 08:30 AM (08:30h) and 6:00 PM (18:00h) CET/CEST Monday-Friday (excluding Austrian holidays).
a) Customer logs a normal issue support request at 1:00 PM (13:00h) CET/CEST on a business Wednesday. The guaranteed latest initial response time from TOA is 5:00 PM (17:00h) CET/CEST the same day.
b) Customer logs a normal issue support request at 7:30 PM (19:30h) CET/CEST on a Sunday. The guaranteed latest initial response time from TOA is 12:30 PM (12:30h) CET/CEST next business day.
c) Customer logs a normal issue support request at 5:30 PM (17:30h) CET/CEST on a Friday. The guaranteed latest initial response time from TOA is 12:30 PM (12:30h) CET/CEST on Monday or the next business day.
d) Customer logs a normal issue support request at 4:30 PM (16:30h) CET/CEST on a business Monday. The guaranteed latest initial response from TOA is 11:30 AM (11:30h) CET/CEST next business day.
TOA reserves the right to separately charge for support services that are requested outside of the aforementioned support service business days and hours (08:30 AM and 6:00 PM (18:00h) CET/CEST Monday-Friday, excluding Austrian holidays).
Software Updates (Software Maintenance)
TOA will provide code corrections as required to correct software malfunctions in order to bring the software into substantial conformity with applicable documentation. If Customer encounters a problem in the usage of the software, Customer will provide TOA with sufficient detail to permit TOA to understand and reproduce the issue. TOA will use reasonable efforts to diagnose the problem and if it is mutually determined by Customer and TOA that the issue represents an error in the software that causes it to not to operate in substantial conformity with applicable documentation, TOA will use commercially reasonable efforts to provide a fix release to Customer. In addition, TOA may, at its sole discretion and occasionally make fix releases generally available to users of the software.
TOA shall provide Customer, at no additional charge, all upgrades for the software to make the software current, so long as Customer has a valid and active Basic Support & Software Maintenance Agreement in effect. “Upgrades” mean those versions of the software products that TOA, at its discretion, deems to be logical improvements or extensions to the software products and that have been released for general commercial distribution.
The provision of software upgrades, as part of a valid Basic Support & Software Maintenance agreement in place, does not include upgrade installation services. Professional Services related to software upgrade installations will need to be purchased separately. Please contact a TOA representative for detailed information.
Annual Support Fee / Initial Term & Renewals / Termination / Reinstatement Policy
Annual Maintenance & Support Fee: The initial purchase includes the first (1) year of Basic Support and Software Maintenance – Products (Software) licences only!
The annual Basic Support & Software Maintenance renewal fee is 15% of list price in force per year.
Reinstatement policy: If the Basic Support & Software Maintenance contract has expired, meaning that provision of Basic Support and Software Maintenance services had been interrupted, and the licensee wishes to reinstate its Basic Support & Software Maintenance, one of the following related policies will be applied:
- Non-renewal for up to 1 year after the expiration date: the amount corresponds to the annual support and software maintenance fee of 15%, plus a 10% reinstatement charge, for a total of 25% based on the price list in force at the time of re-joining. The purchase order date of reinstatement will be applied as the new contract start date, with a validity of one (1) year.
- Non-renewal for more than 1 year after the expiration date: the amount corresponds to the annual support and software maintenance fee of 15%, plus a 15% reinstatement charge, for a total of 30%, based on the price list in force at the time of re-joining. The purchase order date of reinstatement will be applied as the new contract start date, with a validity of one (1) year.
- Non-renewal for more than 2 years after the expiration date: the amount corresponds to a 40% flat rate, based on the price list in force at the time of re-joining. The purchase order date of reinstatement will be applied as the new contract start date, with a validity of one (1) year.
Initial Term: The initial term for the Basic Software Support & Software Maintenance Agreement is one (1) year, unless otherwise stated. TOA or a TOA authorised VAR will provide End User(s) with a renewal reminder within 30 days in advance of the expiration of the then-current term, so that End User(s) can renew the Basic Support & Software Maintenance contract for a further one (1) year period. Upon receiving End User(s)’s order, TOA or TOA authorised VAR shall invoice End User(s) for the next renewal term.
Right to Discontinue Software/Appliance Solutions or Modify Services: Customer acknowledges that TOA has the right to discontinue the manufacture and development of any Products (standalone software or hard – and software appliance) and the Basic Support & Software Maintenance Services for the Products including the distribution of older software versions, at any time in its sole discretion, provided that TOA agrees not to discontinue the Basic Support & Software Maintenance Services for the Products during the current annual term of Basic Support & Software Maintenance Agreement.
TOA shall provide Basic Support & Software Maintenance Services under this Agreement for an initial term of one (1) year from the initial delivery or invoice date. Subsequent years renew automatically, by meaning of a Quote and Invoice issued to the End User(s), unless either party notifies the other of its intent to terminate this Agreement by providing the other party written notice of termination at least ninety (90) days prior to the end of any term of the Agreement or of any Service period. If this Agreement lapses, End User(s) may be subject to additional fees prior to the reinstatement of Basis Support & Software Maintenance Services..
One-Time Processing Fee: TOA reserves the right to offer a one-time or per-dedicated case processing fee for out-of-maintenance-related tasks (e.g., single support ticket processing or license transfer) at a fixed net price of EUR 250,00 or USD 250,00 respectively. Kindly contact TOA at (moc.rianosloot@selas) for further details and approval.
Basic Support & Software Maintenance Services may be terminated by TOA for:
- Failure of End User(s) to pay/renew for Basic Support & Software Maintenance Services
- Abusive or fraudulent use of provided licences or support services by Customer
- Breach of Licence or of Proprietary Rights.
Proprietary Rights: The Products (Software) is/are licensed, not sold. All intellectual property rights, including all copyrights and patent rights, in and to the Products (Software) shall, at all times, remain with TOA or its licensors. TOA and its licensors reserve all rights not expressly granted to End User(s). Physical copies of the software remain the property of TOA. End User(s) must fully reproduce any copyright or other notice marked on any part of the software on all authorised copies, and must not alter or remove any such copyright or other notice.