POSitive Software Maintenance
The following Support and Maintenance terms and conditions apply to all current POSitive products.
POSITIVE SOFTWARE COMPANY GOLD PLUS SOFTWARE MAINTENANCE SUBSCRIPTION
It is important to remember that there are two separate programs that make up the installation of POSitive software products. The “front-end” allows you to input and access the information for your business, and is handled by a program such as POSitive Retail Manager. The “back-end” is where your data is stored and processed, and this is handled by Microsoft SQL Server. As a convenience, POSitive software products can automatically install Microsoft SQL Server Express, and you may also install and use any other compatible version of Microsoft SQL Server. The “front-end” component is created and supported by POSitive Software Company, and is referred to as the “Covered Software” in this document. The “back-end” component is created and supported by Microsoft Corporation.
POSitive Software Company is not obligated to provide support for Microsoft SQL Server products, but as a courtesy to our customers, POSitive Software Company offers a limited range of support for Microsoft SQL Server, as noted in this agreement. Additional Microsoft SQL Server support options may be available for a fee.
1. TERM AND PAYMENT
1.1 POSitive Software Company (“POSitive”) hereby offers to provide the following software maintenance, support and training services for the off-the-shelf software (the “Covered Software”) for which a subscription was purchased by the client (“Client”) pursuant to a written order (“Order”). To the extent that Client and POSitive have entered into a written agreement regarding maintenance, support and training services for POSitive software, the terms of such written agreement will prevail over this Software Maintenance Subscription with respect to such POSitive software.
1.2 Client shall pay POSitive a subscription fee (the “Subscription Fee”) either annually in advance, or by automatic, recurring monthly payments (the “Subscription Term”). POSitive reserves the right to change the Subscription Fee from time to time upon 30 days written notice, which change shall become effective upon the next Renewal Term.
1.3 Unless otherwise set forth in an agreement, these terms and conditions shall be in effect for a minimum of 30 days, and shall renew automatically for successive 30 day terms (each, a “Renewal Term”) unless either party provides the other with written notice of its intention not to renew at least 30 days prior to the next renewal date. Without prejudice to its other rights, POSitive may terminate software maintenance, support and training services in the event that: (a) Client fails to pay the applicable Subscription Fee; or (b) Client’s license to the Covered Software for which Client has purchased software maintenance, support and training services is terminated.
1.4 Upon acceptance of a payment by POSitive, Subscription Fees are non-refundable.
2. SCOPE OF MAINTENANCE
2.1 POSitive will provide the software maintenance, support and training services listed in Sections 2.2 through 2.6 to the Client for the Covered Software while the Subscription Term for the particular Covered Software is in effect and either paid in full, or by automatic, recurring monthly payments. “Covered Software” means the unmodified, unimproved release of the Covered Software made generally available by POSitive to similarly situated customers. POSitive shall not be obligated to provide maintenance or support services for any customizations or modifications to the Covered Software as part of the Subscription Fee. Such services may be available from POSitive for an additional fee. POSitive may provide maintenance, support and training services for the version of the Covered Software immediately preceding the Current Release at its discretion.
2.2 POSitive will use reasonable efforts to correct any failure in the Covered Software to substantially comply with its Documentation (“Errors”), provided such Errors are identified by Client in writing, are replicable by POSitive, and confirmed by POSitive to arise directly from the unmodified Covered Software. In particular, POSitive will use reasonable efforts to proceed as described below:
2.2.1 If an Error causes the Covered Software to be wholly inoperative, or so severely impaired that that Client is unable to use the Covered Software to perform any of its intended functions in accordance with the Documentation supplied by POSitive, (“Severity 1 Error”), POSitive will endeavor to: (a) within one (1) business day after receiving notice of a Severity 1 Error from Client, assign at least one qualified technician to dedicate full time within POSitive normal business hours to provide a correction or procedural workaround sufficient to reduce or eliminate the effect of the Severity 1 Error; and (b) within five (5) business days after receiving notice of a Severity 1 Error from Client, provide an error correction or procedural workaround sufficient to alleviate any material adverse effect of the Severity 1 Error on the operation of the Covered Software.
2.2.2 If an Error causes the Covered Software to fail to function in material accordance with its Documentation so that one or more primary functions are severely impaired but the Covered Software is still operational with respect to other functions (“Severity 2 Error”), POSitive will endeavor to, within ten (10) business days after receiving notice of a Severity 2 Error from Client, provide an error correction or procedural workaround sufficient to alleviate any material adverse effect of the Severity 2 Error on the operation of the Covered Software.
2.2.3 If an Error reported by Client causes inconvenience, but does not materially and adversely affect the primary functionality of the Covered Software (“Severity 3 Error”), POSitive will endeavor to include a correction of such Severity 3 Error in a future Upgrade of the Covered Software.
2.2.4 A “primary function” is defined by the following examples:
Starting the program
Logging into the program
Looking up, adding to or modifying Customer information
Looking up, adding to or modifying Inventory information
Creating and completing a Sale
Looking up Customer Sales history
Creating and completing a Layaway, Quote or Order (depending on version)
Retrieving a saved Layaway, Quote or Order (depending on version)
Taking a payment on a Layaway, Order or AR balance
Selling or redeeming a gift card
Creating and completing a Purchase Order
Retrieving a saved Purchase Order
Completing the “end of day” procedure
Settling credit cards
An Error involving a function not listed above will be categorized as a “Severity 3 Error”.
2.2.5 The Error resolution times referred to in this section are general guidelines only and not binding on POSitive staff.
2.3 POSitive will provide Client with support by telephone or e-mail during the support hours posted at POSitive client support website (http://gopositive.com/support ) for the Covered Software. Such support is limited to the use of reasonable commercial efforts to answer questions from Client regarding the general utilization of the Covered Software, but does not include support relating to any changes or customizations made to the Covered Software, or assistance with design, development and debugging of code or implementations, including but not limited to creation or deployment of customizations or developments using development or authoring tools licensed by POSitive. In connection with any request by Client for support, Client shall provide POSitive with all information and access to Client’s computers that is reasonably necessary to respond to the request.
2.4 POSitive shall make available Updates to the standard version of the major Covered Software at no additional cost to the Client. “Updates” shall mean updated, upgraded, or revised versions of the Covered Software which may include Error corrections and other enhancements that POSitive, at its sole discretion, makes available to POSitive customers who are similarly situated to Client. Updates shall not include any new releases which contain substantially new or different functionality, which POSitive licenses as separate products or which POSitive creates at the request of a specific Client. Installation of Updates by POSitive staff is determined by the Subscription Fee paid by the Client.
2.5 Support for Microsoft SQL Server: POSitive support staff will make a “best effort” when performing the following services: Correction of errors related to the installation of MS SQL Server through the POSitive Installer program. Correction of errors related to the configuration of the MS SQL database when used with POSitive software products. The creation of a MS SQL data backup if needed for diagnostic purposes by POSitive support staff. Troubleshooting and correction of Multi-site data replication issues requires the Multi-site add-on for your support subscription. Additional MS SQL Server support options may be available for a fee.
2.6 Client will have access to all regularly scheduled training classes during the duration of this subscription. Please check with your dealer or POSitive support for the current schedule. Individualized training is not covered by this subscription and may be purchased separately.
2.7 Please refer to Appendix A for POSitive support department hours and methods of contact.
3. OTHER SUPPORT TERMS
3.1 Client shall designate in writing to POSitive up to three (3) appropriate and knowledgeable persons to serve as Client’s liaisons with POSitive and through whom all contacts and questions shall be presented to POSitive. Client’s liaison persons may be changed by Client by providing written or email notice to POSitive.
3.2 From time to time upon Client’s request, POSitive may provide additional services outside the scope of the Maintenance Services to provide support or correct difficulties or defects caused by Client’s errors, hardware system changes, interactions with other software of Client, assistance with design, development and debugging of code or any authorized changes or customizing made to the Software Programs. The scope and costs of such additional services will be separately agreed upon by the parties in writing.
3.3 In the event that Client makes any unauthorized modifications, enhancements or improvements to the Covered Software, POSitive shall be relieved of its obligations to provide support and maintenance services for any portion of the Covered Software which has been affected, directly or indirectly, by such changes, modifications, enhancements or improvements.
4. WARRANTY DISCLAIMER.
THE MAINTENANCE SERVICES ARE PROVIDED ON AN "AS IS” BASIS WITHOUT ANY WARRANTIES (EXPRESS OR IMPLIED) WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTIABILITY, QUALITY, PERFORMANCE OR FITNESS FOR ANY PARTICULAR PURPOSE.
5. LIMITATION OF LIABILITY.
POSITIVE AND ITS THIRD PARTY SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF POSITIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. POSITIVE AND ITS THIRD PARTY SUPPLIERS’ LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT FOR THE MAINTENANCE SERVICES. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK, WHICH IS SET FORTH IN THIS SECTION. The foregoing limitations will apply even if the above stated warranty fails of its essential purposes. Some states do not allow the exclusion or limitation of liability for consequential or incidental damages so the above limitation may not apply.
POSitive reserves the right to amend this agreement from time to time by posting such amended Terms and Conditions on its support website, which shall constitute notice to Client of the amended agreement. Any such amendments will become effective with respect to Client upon the next Renewal Term, and Client’s renewal of a Software Maintenance Subscription shall constitute acceptance of the amended terms.
If any provision of this agreement is held unenforceable by a court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this agreement shall continue in full force and effect. Client may not assign this agreement or any of its rights or duties under this agreement without the prior written consent of POSitive, and any such purported assignment shall be null and void. Subject to the foregoing, this agreement shall be binding upon and shall inure to the benefit of each party, its successors, administrators, heirs, and assigns. This agreement is governed by the laws of the State of Washington, without reference to its conflict of law principles and without regard to the U.N. Convention on Contracts for the International Sale of Goods. The parties hereby consent to the jurisdiction of the courts located in Benton County, Washington state, U.S.A. in any action arising out of or relating to this agreement, and agree that any action arising out of or relating to this agreement shall be maintained in the same jurisdiction. In the event of a dispute arising out of or in connection with this agreement, the party prevailing in such dispute shall be entitled to recover its reasonable expenses, costs and attorneys’ fees, in addition to all other appropriate relief. This agreement, together with any Orders or other documents referencing this agreement, constitutes the complete and exclusive understanding and agreement of POSitive and Client relating to the subject matter hereof and supersede all prior or contemporaneous understandings, agreements and communications with respect to the subject matter hereof, including but not limited to the terms set forth in any standard customer purchase order.
8. PAYMENT OPTION
Client agrees to pay on an annual or monthly recurring basis until this subscription is terminated.
9. ENTIRE UNDERSTANDING
The foregoing statements constitute the complete and exclusive Agreement between POSitive and Client and supersede any prior Agreement in any form, written or oral, and any other communications relating to the subject matter of this Agreement.