Effective Date of Current Version: June 1st 2021
The following agreement sets forth the terms and conditions of the ToolsOnAir Broadcast Engineering (hereinafter referred to as “TOA”) Software Maintenance & Basic Software Support Service Agreement. Unless otherwise stated, this Software Maintenance & Basic Software Support Service 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 Software Maintenance & Basic Software Support from TOA or a TOA authorized dealer or distributor.
“Software Maintenance & Basic Software Support” Services refers to the services provided by TOA to Customer under the terms of this agreement.
To be eligible for Software Maintenance & Basic Software Support as described in this Software Maintenance & Basic Software Support Agreement, software products must be properly licensed from TOA.
Support Services are provided only for incidents that are demonstrable in the supported release(s) of TOA software running unaltered on certified hardware in conjunction with certified I/O devices as specified in the TOA User Manuals and where a Software Maintenance & Basic Software Support 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, and pays the Annual Software Maintenance & Support Fee TOA shall provide the following Support 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 web-ticket over the TOA support web site.
Support services shall only be provided to customers with a valid and active Software Maintenance & Basic Software Support contract pertaining to the specific product(s) for which they have purchased licences and support is required.
Only customers with a valid an active Software Maintenance & Basic Software Support 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 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 entitlement.
TOA will respond, toll-free to requests for Support Services between 08:30 AM and 5:30 PM CET/CEST Monday-Friday (excluding Austrian holidays) via e-mail and/or TeamViewer.
TOA guarantees an initial response time of four (4) hours between 08:30 AM and 5:30 PM CET/CEST Monday-Friday (excluding Austrian holidays). For critical or serious issues within two (2) hours between 08:30 AM and 5:30 PM CET/CEST Monday-Friday (excluding Austrian holidays).
a) Customer logs a support request at 1:00 PM CET/CEST on a business Wednesday. The guaranteed latest initial response time from TOA is 5:00 PM CET/CEST the same day.
b) Customer logs a support request at 7:30 PM CET/CESTon a Sunday. The guaranteed latest initial response time from TOA is 12:30 PM CET/CEST next business day.
c) Customer logs a support request at 5:30 PM CET/CEST on a Friday. The guaranteed latest initial response time from TOA is 12:30 PM CET/CEST on Monday or the next business day.
d) Customer logs a support request at 4:30 PM CET/CEST on a business Monday. The guaranteed latest initial response from TOA is 11:30 AM 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 5:30 PM CET/CEST Monday-Friday, excluding Austrian holidays).
“Initial response” is defined as the first contact by a support engineer after Customer has submitted an incident ticket. 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 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 problem. TOA will use reasonable efforts to diagnose the problem and if it is mutually determined by Customer and TOA that the problem 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 from time to time, 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 ToolsOnAir 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 – (SW licenses only)! The annual Maintenance & Support renewal fee is 15% of list price in force per year. Please contact TOA(firstname.lastname@example.org) for information regarding the just:store maintenance policy.
Reinstatement policy. If the Annual Maintenance & Support Fee has expired and the licensee wished to reinstate its Annual Maintenance & Support contract, the following policy 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 Software Maintenance & Basic Software Support Agreement is (1) year, unless otherwise stated. TOA or a TOA certified reseller or distributor will provide Customer with a renewal reminder within 30 days in advance of the expiration of the then-current term, so that Customer can renew the Software Maintenance & Basic Software Support Agreement for a further one year period. Upon receiving Customer’s order TOA shall invoice Customer 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 solution (standalone software or hard – and software appliance) and the Software Maintenance & Support Services for that solution, including the distribution of older software versions, at any time in its sole discretion, provided that TOA agrees not to discontinue the Software Maintenance & Support Services for that solution during the current annual term of this Agreement.
TOA shall provide Maintenance & Support Services under this Agreement for an initial term of one (1) year from the initial delivery or invoice date. Subsequent years renew automatically 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, Customer may be subject to additional fees prior to the reinstatement of Maintenance & Support Services.
Software Maintenance & Support Services may be terminated by TOA for:
- Failure of Customer to pay/renew for Software Maintenance & Support Services;
- Abusive or fraudulent use of provided licenses or support services by Customer;
- Breach of License or of Proprietary Rights.
Proprietary Rights. The Software is licensed, not sold. All intellectual property rights, including all copyrights and patent rights, in and to the Software shall, at all times, remain with TOA or its licensors. TOA and its licensors reserve all rights not expressly granted to Customer. Physical copies of the software remain the property of TOA. Customer must fully reproduce any copyright or other notice marked on any part of the software on all authorized copies and must not alter or remove any such copyright or other notice.