IMPORTANT:

PLEASE READ THIS SOFTWARE LICENSE TERMS OF USE AND SERVICES AGREEMENT (THE “AGREEMENT”) CAREFULLY.  YOU WILL HAVE ACCEPTED THE AGREEMENT IF YOU: 1) SIGN THE QUOTATION PROVIDED TO YOU BY RESPEC; 2)  ISSUE A PURCHASE ORDER OR SIMILAR PURCHASE REQUEST IN RELATION TO THE QUOTATION PROVIDED TO YOU BY RESPEC; 3)  USE THE SOFTWARE LICENSED BY RESPEC INCLUDING WITHOUT LIMITATION ANY SOFTWARE ASSOCIATED WITH THIS AGREEMENT OR ACCEPT THE SERVICES SET FORTH IN THIS AGREEMENT OR IN THE QUOTATION PROVIDED BY RESPEC; OR 4) CLICK AN “I ACCEPT” OR SIMILAR BUTTON ASSOCIATED WITH THIS AGREEMENT.

This Agreement is a legal agreement between you, the client, and RESPEC regarding the subscription license, installation and use of RESPEC’s software including without limitation its mapFeeder Software, mapFeeder related Documentation, and services provided by RESPEC including without limitation installation, hosting, training, maintenance, upgrades, feature development and data base porting performed by RESPEC, (hereinafter individually and collectively the “RESPEC Products and Services”).  In this Agreement, “you” and “your” refer collectively to you, the client and any business or public entity you represent and your employees and agents, and “we”, “us” and “our” refer collectively to RESPEC.

RESPEC IS WILLING TO ALLOW THE LICENSE AND PERFORMANCES OF SERVICES FOR YOU IN RELATION TO THE RESPEC PRODUCTS AND SERVICES ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT.  BY ACCEPTING THIS AGREEMENT YOU ARE BINDING YOURSELF TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN RESPEC IS UNWILLING TO PROVIDE YOU WITH THE RESPEC PRODUCTS AND SERVICES AND YOU MUST NOT INSTALL, ACTIVATE, OR USE THE RESPEC PRODUCTS AND SERVICES.

THE AUTHORIZED AGENT ENTERING INTO THIS AGREEMENT ON YOUR BEHALF HEREBY REPRESENTS AND WARRANTS TO RESPEC THAT HE OR SHE IS AUTHORIZED TO ENTER INTO THIS AGREEMENT ON YOUR BEHALF AND BIND YOU TO THE TERMS AND CONDITIONS CONTAINED HEREIN.

RESPEC may make changes to this Agreement at its sole discretion. Changes will be communicated to you directly pursuant to the contact information you provide to RESPEC and your acceptance of and/or continued use of any RESPEC Products and Services after such notification of changes to this Agreement will constitute your acceptance of such changes. You may also be asked to re-acknowledge and reaccept this Agreement following any material changes.

  1. Scope of Work. During the term of this Agreement, RESPEC will provide and Client will purchase the Subscription Software License and Services as set forth in the Quotation for Subscription Software License and Services (the “Quotation”) agreed to by client.

  2. Software License Grant. Subject to the terms and conditions of this Agreement and as set forth in the Quotation, RESPEC hereby grants during the Term, and Client hereby accepts, solely for its internal use, a non-exclusive, non-transferrable, enterprise-wide, subscription right and license to use, copy, load, run, have run, and display the software identified in the Quotation (the “Software”) in object code form only, and any applicable Documentation (the “Licensed Use”). “Documentation” as used in this Agreement shall mean written information contained in user or technical manuals or specifications specifically pertaining to RESPEC Products and Services and made available by RESPEC in connection with the RESPEC Products and Services. The Licensed Use shall include the right, subject to the license conditions and restrictions set forth herein, to (i) permit use of the Software and Documentation by Client employees, administrators, and other designated third parties such as agents, consultants and contractors on Client-owned or controlled hardware (e.g., desktop computers at Client’s offices) on which the Software is installed; and (ii) make or install additional copies of the Software and Documentation for reasonable archival or back-up purposes, provided, however, that any copy of the Software or Documentation made by Client must bear the same respective copyright and other proprietary notices that appear on the copy of the Software or Documentation furnished to Client by RESPEC. Except as set forth herein, RESPEC reserves all other rights in and to the Software and Documentation and no implied licenses are granted by RESPEC.

  3. Software License Restrictions. Client shall not: a) access or use any portion of the Software not expressly licensed to Client; b) disassemble, decompile or otherwise reverse engineer all or any portion of the Software; c) use the Software for any unlawful purposes; d) export the Software or Documentation in violation of U.S. laws or regulations; e) except as permitted in this Agreement, sublicense, relicense, distribute, disclose, rent or lease the Software or Documentation, or any portion thereof, for third party use; or f) use the Software to develop any software application intended for resale which uses the Software in whole or in part.

  4. Client Responsibilities. Client is responsible for all actions of users accessing and using the RESPEC Products and Services, including without limitation, using any user name, password or other login credentials of Client. Clientshall use commercially reasonable efforts to prevent unauthorized access to, or use of, the RESPEC Products and Services and shall notify RESPEC promptly of any unauthorized use of which it becomes aware. Client is responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all electronic data or information submitted, provided, or entered into the Software by Client in connection with Client’s use of the RESPEC Products and Services (collectively “Client Data”). All Client Data, including geographical imaging data generated in relation to or resulting from the RESPEC Products and Services are owned by Client. Client represents and warrants that it has the right and full power and authority to enter into this Agreement and this Agreement is a valid and binding obligation on the Client, enforceable against it in accordance with its terms.

  5. Service Level Agreement. RESPEC shall use commercially reasonable efforts to provide the Services under the terms described on the Service Level Agreement incorporated herein by reference and available at http://respec.squarespace.com/terms-of-service/.

  6. Term of Agreement. This Agreement is effective as of the date set forth in the Quotation and will automatically renew for additional terms of the same length as set forth in the Quotation unless either party provides notice at least thirty (30) days from the end of a term that it does not wish to renew the term of the Agreement. RESPEC shall have the option to change the pricing terms set forth in the Quotation for any renewal term provided that RESPEC provides those new pricing terms in advance of the notice period for non-renewal of the Agreement. as provided in the Quotation or otherwise in this Agreement.

  7. Payment to RESPEC. Payment is due to RESPEC net thirty (30) days from the date of invoice. Any amounts which are not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law. Client shall be responsible for the payment of all applicable taxes, customs fees, and duties properly due and payable related to the RESPEC Products and Services, with the exception of taxes imposed on the income of RESPEC.

  8. Force Majeure. Neither party shall be liable for any damages or penalty for delay, for failure to give notice of delay, for failure to perform, or failure to give notice of nonperformance, due to circumstances beyond its reasonable control. The schedule for performance of services, if any, shall be extended by a period of time equal to the time lost because of any such delay.

  9. Successors and Assigns. RESPEC may assign this Agreement and RESPEC’s rights and obligations under this Agreement shall inure to the benefit of and shall be binding on successors and assigns.

  10. Attorneys’ Fees. If an action is instituted in any court involving this Agreement, and provided RESPEC shall prevail in the action, Client agrees to pay all RESPEC’s costs, expenses, and fees in the action or appeal including, without limitation, reasonable attorney’s fees.

  11. Disclaimer. EACH PARTY HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO THE SOFTWARE, PRODUCTS, AND/OR SERVICES PROVIDED HEREUNDER, AND THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. RESPEC DOES NOT WARRANT THAT THE SOFTWARE OR THE RESPEC PRODUCTS AND SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

  12. Limitation of Liability. RESPEC SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST DATA, LOST BUSINESS, OR LOST PROFITS) HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO INSTANCE SHALL RESPEC’S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR OTHERWISE) EXCEED THE FEES BY CLIENT FOR THE RESPEC PRODUCTS AND SERVICES PROVIDED BY RESPEC DURING THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE THE CLIENT NOTIFIES RESPEC IN WRITING OF THE CLAIM FOR DIRECT DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION ARE EACH INDEPENDENT OF ANY EXCLUSIVE OR LIMITED REMEDIES SET FORTH IN THIS AGREEMENT, AND SHALL SURVIVE AND APPLY EVEN IF SUCH REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. Client acknowledges that RESPEC has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.

  13. Intellectual Property Ownership. Nothing in this Agreement is intended to transfer title or ownership of any patent, trademark, trade secret, copyright, or similar right (collectively “Intellectual Property Rights”) from one party to the other except as specifically set forth in this agreement. All rights, title and interest in any Intellectual Property Rights in and to the RESPEC Products and Services, including without limitation the Software (whether in machine readable or source code form), Documentation, and any copies of the Software and Documentation, and anything developed by RESPEC for or in conjunction with Client (all of the aforementioned collectively being “Deliverables”) is owned by RESPEC. To the extent not already assigned, Client hereby agrees and does transfer all right, title, and interest in the Deliverables and any Intellectual Property Rights in the Deliverables to RESPEC. RESPEC represents that it holds all necessary licenses and rights in the Software to perform the Services as described herein.

  14. Termination. This Agreement may be terminated, and all licenses granted hereunder are thereby terminated, (i) by either party if the other party is in breach of this Agreement and fails to cure such breach within thirty (30) days after the non-breaching party provides notice of the breach, (ii) immediately by RESPEC if Client fails to make payment as set forth in this Agreement; (iii) by mutual written agreement of the parties, (iv) by either party upon thirty (30) days prior written notice to the other party, (iv) by either party if the other party is insolvent, unable to pay its debts as they become due, makes an assignment for the benefit of creditors or takes advantage of any law for the benefit of debtors or (v) by either party if the other party ceases to conduct business for any reason on an ongoing basis leaving no successor in interest. In the event this Agreement is terminated by Client pursuant to subsection (iv) of this Section 14 and such termination occurs prior to the commencement of the performance of the services by RESPEC, then, in addition to any other remedies available to RESPEC under this Agreement or otherwise, the Client shall pay RESPEC $500 as liquidated damages and not as a penalty. These liquidated damages do not include and do not limit any amounts owed for any subscription license, hosting, or maintenance fees related to the Software.

  15. Relationship of the Parties. RESPEC and Client acknowledge that they operate independent of each other. Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership, agency, or employee/employer relationship between the parties for any purpose, including, but not limited to, taxes or employee benefits. Each party will be solely responsible for the payment of all taxes and insurance for its employees and business operations.

  16. Notices. All notices made pursuant to this Agreement will be in writing and, except for routine operational or administrative communications, be sent by regular mail, registered mail, overnight mail, courier, transmitted by facsimile or e-mail or delivered personally, to the addresses indicated on the first page of this Agreement, or such other address as either party may indicate by at least ten (10) business days prior written notice to the other party. Notices will be effective on the date shown on the receipt evidencing delivery or on the facsimile confirmation, or if sent by regular mail or where there is no written evidence of delivery, on actual receipt or refusal of receipt.

  17. Remedies Not Exclusive. Unless expressly stated otherwise, the remedies in this Agreement shall not be exclusive of any other remedy either party may have against the other party at any time, and shall not limit either party’s ability to seek other remedies available under law or in equity. Unless expressly stated otherwise, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.

  18. Waiver of Contractual Right. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

  19. Complete Agreement. This instrument, including the Quotation and documents explicitly incorporated by reference into this Agreement, contains the entire Agreement of the parties, and supersedes all prior negotiations, agreements or understandings, whether oral or in writing. This Agreement may only be modified in writing or otherwise as set forth in this Agreement.

  20. Choice of Law/Consent to Jurisdiction. This Agreement shall be governed by and be construed in accordance with the laws of the State of Minnesota. Client hereby consents to personal jurisdiction in the State of Minnesota and agrees that the state and federal courts located in Hennepin County, Minnesota shall be the exclusive forums for the resolution of disputes related to this Agreement.

RESPEC SERVICE LEVEL AGREEMENT (SLA) and DATA MANAGEMENT PLAN for Software as a Service

This Agreement provides information to the Client about level of availability, performance and data management of the SaaS application running on servers managed by RESPEC (“Vendor”).

RESPEC shall use commercially reasonable efforts to provide the Services under the terms described in this Agreement.

1. Scope of the Agreement

The Vendor will provide to the Client the application, infrastructure, and operational support for the software application and functionalities as listed in the Quotation for Subscription Software License and Services.

2. Vendor Services

The Vendor will assume responsibility for the services as listed below:

A. Hosting Facility/Data Center

RESPEC uses Rackspace to host their servers.  For more information on Rackspace, please see their website. http://www.rackspace.com/

B. Operations/Monitoring Services

Applications provided by the Vendor are monitored by a 24 x 7 automated and alert monitoring system.

C. Application Administration Services

Applications provided under this agreement will be the responsibility of the Vendor. Vendor will manage all supported applications, related databases, supporting computing hardware, and necessary operating systems.  Vendor will retain ownership of all copyrighted, trademarked or patented intellectual property including all MapFeederTM source and database structures.  Client will retain ownership of all Client-generated data and files.  Nothing in this SLA gives Vendor ownership of Client data and nothing in this SLA gives Client ownership of Vendor intellectual property.

D. Software, Maintenance and Upgrade Services

Vendor will repair all configuration errors and software bugs that occur in all Vendor software licensed to Client pursuant to the Quotation for Subscription Software License and Services .  Vendor will repair all configuration errors in other supported software.  Vendor will report software bugs to the maintainers or owners of other supported software. Vendor may, at its discretion, choose to repair software bugs in other supported software but is not required to do so under the terms of this Agreement.

E. Data/Information Security Services

  • Physical Security – The facility where our server is located maintains the highest possible standards for physical security and is equipped with video and audio monitoring equipment and 24 x 7 on-site guards. All people entering the building are required to register with the security office and leave a valid ID while in the building. Visitors whose names are not present on a pre-authorized list are only allowed into the building with an escort. Visitors are checked a second time prior to entering the data center within the building. Only authorized Vendor staff has the ability to enter the locked area where our equipment is physically located.

  • Application Security – Access to Client applications, which the Client had deemed secure and private, will require authentication and authorization. Authentication is required for each user by entering dedicated login and password to access the application. Each login is assigned one of three different access roles: Administrator, Read-Write or Read-Only. The Client is responsible for assigning users to each role. A Client may designate portions of a Client application to be made available to the general public without the use of login and password for access.

  • Database Security – Client database tables are accessed by unique database-level accounts specific to each Client. The application software will connect to the database using the Client’s unique account. Communication between the application server and database server is protected by firewall access. Remote access to the database is permitted only from the application servers.

  • Developer and Systems Administration Backend Security – Software developer and system administrator access is permitted only through two methods: direct server console physically connected to the server and remote encrypted access. The remote encrypted access is performed via industry standard Secure Shell, requiring both public/private key pairs and passphrase authentication. Each developer accesses the servers with their own dedicated login. There is no sharing of logins between developers.

  • Web-Based Application Security – In addition to application-level authentication and authorization, web browser connections to Client applications, which the Client had deemed secure and private, are encrypted using industry-standard SSL protocol.

F. Application Backup and Recovery Services

Vendor performs nightly database backups stored on the server for speedy recovery of accidentally deleted or corrupted data. RESPEC is responsible for restoring backups when needed. Vendor also performs nightly system-level backups. These backups are stored on a separate server used exclusively for data storage.

G. Data Storage and Retention

All subscriber data is backed up once each day (midnight) and stored for no less than 30 days.

H. Problem Management/Client Support Service

The Client will describe problems encountered with the services provided pursuant to this agreement in an email to support@mapfeeder.net. Client may also direct problems encountered with the services provided pursuant to this agreement to the RESPEC Software Support Portal, a web application available at https://respec.atlassian.net/servicedesk/customer/portal/2.

At RESPECs sole discretion communications with Client regarding problems encountered will be carried out via email, the RESPEC Software Support Portal, telephone or web-based meeting software such as Microsoft Skype or Google Hangout.

Effective support of in-scope services is a result of maintaining consistent service levels. The following sections provide relevant details on service availability, monitoring of in-scope services and related components.

H.1 Hours of Support 

Requests for support of in-scope services are monitored during business hours. Business hours are defined as the hours of 9:00 A.M. and 5:00 P.M. US Central Time Zone on the days of Monday, Tuesday, Wednesday, Thursday and Friday. RESPEC may choose to but is not obligated to monitor requests for support outside of business hours.

Any of the following U.S. holidays, which falls on Monday, Tuesday, Wednesday, Thursday or Friday will exempt that day from being considered as having business hours: Christmas Day, New Years Day, Thanksgiving Day, Independence Day.

H.2 Support Severity

Reported problems will be assigned a severity level based on the following criteria:

  • Severity Level 1 - Client business process(s) unable to function; the system is not functioning and there is no workaround allowing a department or workgroup to perform mission critical business function(s).

  • Severity Level 2 - A major problem impedes the ability to perform mission critical business function(s) due to functionality not working. A temporary workaround is available.

  • Severity Level 3 - Not able to accomplish all functions; minor function(s) preventing non-critical work from being completed.

  • Severity Level 4 - The system is causing a minor disruption in the way tasks are performed by does not stop workflow. May include cosmetic issues.

H.3 Service Level Standards

The Vendor shall use all commercially reasonable efforts to meet or exceed the following Service Level Standards:

  • Support Request Response - Vendor will respond to Severity Level 1 and 2 problems within four (4) business hours from time the request is initially received. Vendor will respond to all Severity Level 3 and 4 problems within eight (8) business hours from the time the request was initially received. Depending on the time of day that the request was initially received, Vendor response may occur during business hours on the following day.

  • Support Request Resolution - Vendor will resolve Severity Level 1 problems within 8 business hours. Vendor will resolve Severity Level 2 problems within 2 business days. Vendor will resolve Severity Level 3 problems within 5 business days. Vendor will resolve Severity Level 4 problems within 20 business days.

H.4 Outages 

Clients will be notified by email should there be scheduled or unscheduled outages or downtime.

3. Modifications

RESEPC may make reasonable changes to the SLA from time to time. If RESPEC makes changes to the SLA, RESPEC will provide notice to the Client of those changes..