Publisher End User Licence Agreement
Last updated: April 1, 2014.
Barisco is a SaaS platform for Digital Publishing and a product of Mols Media B.V.
OUR ADDRESS: Barisco, PO Box 1, 3958ZT Amerongen, The Netherlands.
Barisco consists of a SaaS platform for Digital Publishing to multiple platforms via Rich and multi layered designed content design including a Content Distribution Network and Data Storage Solution.
The licensor under this Agreement has acquired certain Barisco services enabling the production and deployment of publications in a rich digital media format on specified electronic devices; Licensee desires to use the Barisco Services according to the Publishing Plans (as configured by the Licensee at barisco.com) and to receive, to the extent applicable, certain services from Licensor, in connection with publishing Publication Title(s), Edition(s) for deployment on Target Platforms(s). The general terms and conditions contained in this Barisco End User License Agreement (“Barisco EULA”) regulate the relationship between the Licensor and Licensee in connection with this Agreement.
BRIEF SUMMARY OF EULA
The terms of the entire EULA are applicable and this is only a courtesy summary.
• You must agree to the terms of this EULA prior to engaging in any use of Barisco;
• Barisco is licensed to you by Licensor and not sold. You are not licensed the right to use the Licensor trademarks or logos or to sublicense any rights to Mols Media BV;
• This is a paid for version, subject to the terms selected by Licensee as well as, if in;
• Licensee is prohibited from reverse engineering, reverse compiling, and/or modifying the Software, and/or making Derivative(s) of the Software;
• The permitted usage is for the creation, deployment, and distribution of Licensee Publication Title(s) (in digital form) via Target Devices in accordance with the Software package licensed by Licensee;
• The laws of The Netherlands will govern in case of any legal dispute.
GENERAL TERMS AND CONDITIONS
“Agreement” means this EULA. “Business Days” means normal working days in The Netherlands (i.e. Central European Time) “Deliverable” any deliverable(s), identified in any writing agreed to by the parties concerning Professional Services that Licensor provides to Licensee. Deliverables are not covered under Support or Warranty unless the parties have reached a separate agreement regarding the same in writing. “Delivery” means the date of dispatch of the relevant item(s) to Licensee as regulated under the terms of Section 5.1 herein. “Derivatives” means (a) for copyrighted or copyrightable material, any abridgment, revision, translation, enhancement, improvement, modification, expansion, compilation or other form in which an existing work may be recast, transformed or adapted, (b) for patented or patentable material, any improvement thereof, or (c) for trade secrets, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent or trade secret. “Documentation” means any documentation in electronic or hard-copy form, any present and future manuals, instructions, user guides and any other materials related to Barisco provided by Licensor under the Agreement. “Effective Date” is the date of submitting a service. “Feedback” means any and all information (in oral, written, electronic or any other form) communicated voluntarily by Licensee, directly or indirectly, to Licensor, under this Agreement or otherwise pertaining to the Licensor’s Confidential Information, including, without limitation, performance data, error data, reports, information, comments, and suggestions. “Help Center” refers to paid or unpaid assistance in using the application as opposed to error correction. “Hosting” means the hosting of content uploaded and created by Licensee pursuant to Licensee’s use of the Software and/or applicable software components. Such content is cloud based hosted via Soft Layer Inc. “Independent Contractors” means any third party company used by Licensor or Licensee in connection with this Agreement. “IPR” means any and all now or hereafter known tangible and intangible: (a) right associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; (b) trademarks and trade name rights and similar rights, throughout the world; (c) trade secret and know-how rights throughout the world; (d) patents, designs, algorithms, and other intellectual and/or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license or otherwise; (e) all registrations, initial applications, renewals, extension, continuations, divisions or re-issues thereof now or hereafter in force; and (f) Derivatives. “Publication Title” means each applicable project or other periodical title directly owned by Licensee for every country of circulation via a Target Platform. An ”edition” is a publication to its respective Publication Title. Each time changes (as opposed to corrections) are published to the Publication Title, a new issue of such Publication Title has been created. “EULA” means these general terms and conditions for Barisco Publishing Software, Hosting services, including any appendices hereto. “Registered User” means each Licensee employee or Independent Contractor legally permitted to use Barisco according to the terms of this Agreement. “Software” means the Licensor Software programs, plugins, without limitation, protected by copyright laws and international copyright treaties, provided by Licensor under this Agreement. Software includes the Licensor Software programs (and any Updates thereof provided under this Agreement). “Support” means those services provided by Licensor as set forth in Appendix A hereof. “Target Platform(s) means each platform or device listed by the Licensee. “Updates” means any and all updates, fixes, patches, modifications (excluding modifications performed by Licensor as professional services) of the Software and Documentation (to the extent constituting updates on the production environment (i.e. plugin and production tool), as the context may require. “Upgrades” means any and all new releases of the Software and/or containing functional improvements. Upgrades can be provided to Licensee upon general commercial release, subject only to the applicable pricing for the same, depending upon the Barisco terms (if applicable) and the Software package selected by Licensee pursuant to the Licensee Order Confirmation. Upgrades, if furnished to Licensee, are included within the definition of Barisco for purposes of this Agreement. To clarify, in Upgrades, the version number appearing to the left of the decimal point is changed whereas with Updates 3 grades are defined. The second number left indicates a major update, the 3rd number from the left a minor update, the last and 4th number of the left indicates the latest revision number. Example: 184.108.40.206, meaning upgrade 1, major update 2, minor update 3 and revision 12.
2. Scope of agreement and agreement document.
2.1 The appendices form an integral part of this Agreement and are incorporated herein by reference. In the event of any inconsistency between the appendices and the main body of this Barisco EULA, the main body shall prevail and the appendice(s) shall thereafter prevail in accordance with their sequential order. Appendix A Support
3. License Grant; ownership
3.1 Subject to the terms and conditions of this Agreement and subject to the Publishing rights selected therein, Licensor grants Licensee the non-exclusive, non-transferable, and for the premium plans & premium plugins fee-based rights and licenses (without the right to sublicense) to: a) Have each Registered User use the Software, Documentation, and Deliverables in connection with developing, deploying, and distributing Publication Title(s) on or through Target Device(s).
3.2 Licensor shall retain and acquire all rights, title, and interest, including, without limitation, IPR, recognized anywhere in the world, to the Software, Feedback, Documentation, Deliverables, and any Derivatives of the same. Deliverables are licensed to the Licensee on the same terms and conditions as the Software as set forth in this Section 3. Licensee hereby assigns to Licensor (and warrants and represents that Licensee’s Independent Contractor(s) shall have assigned to the Licensee) all rights, title, and interests in and to the Software, Feedback, Documentation, and Deliverables (including, without limitation, IPR) as necessary to give full legal effect to this Section
3.3. Licensee agrees to take all actions reasonably requested by Licensor to secure and protect the IPR assigned to Licensor. To further clarify, no rights granted in this Agreement shall in any manner restrict Licensor’s ability to develop and commercialize such developments within the Software, Documentation, and any other technology Licensor chooses without having to provide any notice, accounting or payment of any kind to Licensee.
3.3 Licensee shall not copy Barisco. Licensee will not, with regard to the Software directly or indirectly, remove any Licensor trademarks or copyright notices, patent any results achieved as a result of the use thereof, sublicense, lend, rent, sell, copy, modify, create Derivatives of, translate, recreate or use Barisco in conjunction with any other software, data or equipment in such a manner as would cause the resulting product to infringe upon any third party IPR, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of Barisco, or make Barisco available to any third party unless permitted to do so, in writing, by Licensor. In no event shall Licensee use Barisco for Licensee’s development of any product(s) and/or service(s) competing with Licensor. Licensee warrants and represents that it has not developed and shall not, at any time during the term of this Agreement, develop any software similar to or competitive with Barisco. Upon any violation of the license grant or license restrictions set forth in this Agreement, Licensor shall have the right to seek any and all remedies available under the law and in equity.
3.4 Licensee shall remain at all times the owner of and is fully responsible for the published digital content knowing and respecting that:
• Licensee safeguards the licensor of any infringement on any copy write protected content. In case of an infringement the content will be removed by licensor at its sole discretion.
• Content expressing pornographic material, defined by Webster’s Dictionary as “explicit descriptions or displays of sexual organs or activities intended to stimulate erotic rather than aesthetic or emotional feelings”, are not allowed and will be removed by licensor at its sole discretion.
• Content referring to or commenting on a religious, cultural or ethnic group that are defamatory, offensive, mean-spirited or likely to expose the targeted group to harm or violence ” are not allowed and will be removed by licensor at its sole discretion.
• Content may consist of or quote on religious text provided the quotes or translations are accurate and not misleading. Commentary should be educational or informative rather than inflammatory. In case of any deviation, content will be removed by licensor at its sole discretion.
3.5 By registration, the Licensee confirms that it has read and agreed to Appendice A of this EULA.
3.6 In the event that the Uniform Computer Information Transactions Act, any version thereof, a substantially similar law or any other statutes implied for Internet transactions (collectively “UCITA”) is enacted as part of the law of any applicable state of the United States or any applicable country or any applicable region within any country, such statute shall not govern any aspect of this EULA, any license granted hereunder, nor any of the parties’ rights and/or obligations arising pursuant to this EULA. This EULA and the parties’ rights and obligations arising hereunder shall be governed according to the Governing Law provisions agreed explicitly in this EULA.
3.7 In the event of transferring ownership of the publishing licence between two legal entities, the new licensee shall obtain the rights and obligations of that licence as set forth in Barisco’s legal documentation including any outstanding and verifiable costs related to that license made by Mols Media BV or one of its subsidiaries. Such an transfer can only be executed by and written request send to Mols Media BV. Mols Media BV reserves the right to value and approve such a transfer at its sole discretion.
4. Duties of licensee
4.1 Licensee shall remit payment in accordance with the chosen Plans and payment terms as described in conditions of use. Any breach of this Section 4.1 shall be a material breach of this Agreement.5.
5. DELIVERY AND HOSTING
5.1 Within three (3) Business Days of Licensee having submitted the applicable payment for Barisco, all necessary information necessary for Licensee to access Barisco shall be dispatched, via email, to the Licensee. 5.2 Licensee has selected a publishing plan, the life span of the Publication Title(s) (i.e. web app(s)) will be indefinite from the date of initial publication, meaning that discontinuation of the licences must initiated by the licensee via barisco.com. When discontinued the Barisco account will no longer be accessible for any of the registered users.
5.3 To the upgrade, Licensee needs to revisit the publishing rights model and selected a new configuration. Monthly subscription license model, the life span of the Publication Title(s) (i.e. app(s)) will be until this Agreement, with respect to the Publication Title in question, has been terminated meaning that after the end of the termination period, Barisco will no longer be accessible for the app(s) or the brand administrator.
5.4 Both the Free and Unlimited Plan come with a certain amount of bandwidth based on our experience on usage of said Plans. Should bandwidth exceed expectations on the usage of Bandwidth, Mols Media BV reserves the right to contact at its sole discretion and inform the licensee to change to alternative Plans or Bandwidth options. Should the licensee not respond and take appropriate actions within 10 days after formal request, Mols Media BV reserves the right to terminate this Agreement with immediate effect and cannot be held liable for any claims or damages occurred at Licensee or any other third party, in such an event.
6.1 All Remuneration shall be subject to change from time to time.
6.2 All fees are exclusive of any expenses, costs, taxes, duties, and/or customs of any kind.
6.3 Any delinquent payments shall accrue penalty interest at the rate of two percent (3%) per commenced month of delay.
6.4 The applicable license fee(s), unless stated expressly to the contrary, are per Publication Title (URL).
6.5 The Charges for monthly plans can be retrieved via barisco.com and may be changed from time-to-time. Payments are due for the full month for which any part of the month is included in the “Term.” Payments are due for any month on the same date, or the closest date in that month, to the date of the month you signed up with us and made your first monthly payment (the “Pay Date”). Payments can be made via credit card and will be settled via Direct Debit. As long as you are a registered user or have an outstanding balance with us, you agree to at all times provide us with valid credit card information and authorize us to deduct the monthly charges against such credit card and to replace the information for any credit card that expires with information on a different valid credit card. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and the license fee Invoice is generated upon the Effective Date of Order.
6.6 Support, to the extent applicable, shall commence upon the Effective Date of the Licensee and shall terminate upon, as applicable, by discontinuation of the license.
6.7 Payment failure: Please note that all payments are due in full on the monthly anniversary date. If full payment has not been received within fifteen (15) consecutive days, including the anniversary date, editing within barisco web designer will be disabled and all services shall be reclaimed. Moreover a €75 excl VAT reconnect fee will be incurred.
Failure to remit payment for services within thirty (30) consecutive days, including the anniversary date, shall result in not being able to edit your publications with barisco web designer, your publications will not available online and all services shall be reclaimed. Your account will be saved for ninety (90) consecutive days including the anniversary date. A reconnection fee of € 250 excl VAT will be incurred. After ninety (90) consecutive days your account and content will be removed from our servers.
7. Limitation of liability; WARRANTY disclaimer
7.1 Licensor warrants that, to the best of its knowledge, Barisco solely in unmodified form, does not infringe any third party’s copyright(s), trade secret(s) or patent(s) granted as of the Effective Date.
7.2 Licensor warrants that Barisco shall materially comply with the Specifications (as applicable to the Publishing plan selected by Licensee), for the term of validity of the respective license under this Agreement. In the event of any material non-conformity with the Specifications of Publishing plan selected by Licensee (during the duration set forth in this Section), Licensor shall, at its discretion, repair or replace such defective Software, Update or Upgrade. This warranty expressly excludes any errors arising from improper use, viruses, external factors, Licensee’s failure to install prior Updates, in the event Barisco has been modified or altered in any manner or if the error arises as a result of the combination of Barisco with any other software or hardware, and in connection with any device which itself embodies technical limitations or deviations from the Target Platform. Any applications derived from the Software and/or Deliverables may contain bugs and/or may not be approved by third parties (without limitation) for commercial release in connection with the respective Target Platform. Licensee shall, itself, be fully responsible for final testing of any such application(s) and clearing the same for commercial release in connection with the respective Target Device. Licensor shall bear no liability of any kind in connection with any decisions made by any third party (without limitation) or for any changes made by any such third party in connection with a Target Platform or the technical specifications thereof. Any and all hosting services facilitated by Licensor shall be handled by Licensor’s current hosting vendor and shall be subject to such vendor’s terms and conditions. Licensor makes no warranty as to such third party vendor’s service level.
7.3 IN NO EVENT, EXCEPTING ANY ACTION BASED UPON WILLFUL MISCONDUCT, ONE PARTY’S INFRINGEMENT OF THE OTHER PARTY’S IPR OR BREACH OF CONFIDENTIALITY (SECTION 9 BELOW), SHALL EITHER PARTY HERETO BE ENTITLED TO, REGARDLESS OF WHETHER A CLAIM OR ACTION IS BASED UPON STRICT LIABILITY; NEGLIGENCE; INDEMNIFICATION; BREACH OF CONTRACT, WARRANTY, SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER THEORY OF LIABILITY IN CONNECTION WITH THIS AGREEMENT (INCLUDING THE APPENDICES), ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOST DATA, WHETHER OR NOT THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. 7.4 IN NO EVENT, EXCEPTING ANY ACTION BASED UPON WILLFUL MISCONDUCT, ONE PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR BREACH OF CONFIDENTIALITY (SECTION 9 BELOW), SHALL EITHER PARTY HERETO BE ENTITLED TO, REGARDLESS OF WHETHER A CLAIM OR ACTION IS BASED UPON STRICT LIABILITY; NEGLIGENCE; INDEMNIFICATION; BREACH OF CONTRACT, WARRANTY, SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER THEORY OF LIABILITY IN CONNECTION WITH THIS AGREEMENT (INCLUDING THE APPENDICES) AN AGGREGATE AMOUNT OF DAMAGES EXCEEDING THE LESSER OF USD TEN THOUSAND (10,000) OR THE AMOUNT ACTUALLY PAID BY LICENSEE DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE CLAIM IN QUESTION. ANY PAYMENTS DUE AND OWING BY LICENSEE TO LICENSOR SHALL NOT BE DEEMED “DAMAGES” UNDER THIS SECTION. 7.5 UNLESS STATED EXPRESSLY OTHERWISE IN THIS SECTION 7, BARISCO, DOCUMENTATION, AND DELIVERABLES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. 7.6 THE LIMITATIONS OF LIABILITY AND WARRANTY DISCLAIMERS IN THIS SECTION 7 ARE MATERIAL, BARGAINED FOR BASES OF THE AGREEMENT, AND HAVE BEEN RELIED UPON IN DETERMINING THE CONSIDERATION TO BE PAID UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. 7.7 Should Licensee desire to obtain a higher level of liability coverage and/or any type of extended warranty, Licensee shall contact Licensor with a specific request in writing, and Licensor shall reply within ten (20) Business Days with a quote for such additional Licensor undertakings.
8.1 The parties shall maintain confidentiality and may not, without the other party’s prior, written consent, unless expressly stated otherwise in this Agreement, disclose to any third party any documentation and any information designated by the furnishing party as confidential (which, to clarify, includes, PS, Deliverables, and Documentation), whether of a commercial or a technical nature, i.e. the receiving party shall use the information only for the purpose of this Agreement.
8.2 Neither party shall be liable for disclosing any such information if it was, in all material respects: (a) public knowledge at the time of disclosure or thereafter becomes public knowledge other than through an act or omission of the receiving party; (b) already lawfully known to the other party prior to its receipt from the disclosing party; (c) demonstrably developed at any time by the receiving party without any access to the information received hereunder; (d) lawfully obtained by a third party, free of any confidentiality obligations, from other unrestricted sources; or (e) disclosed with the prior written permission of the disclosing party.
8.3 Licensor shall, immediately after the Effective Date, have the right to release a public statement disclosing the existence of this Agreement, and to use any and all Licensee trademarks and logos in connection therewith. Further, Licensor shall be permitted to display the covers of Licensee’s Publication Titles on any of Licensor’s websites as well as in other media in connection with the promotion of the Software.
8.4 The Parties agree that any breach of the confidentiality obligations of this Section 8 or use of Barisco, Documentation and/or Deliverables beyond the express scope of the license grant set forth in Section 3 hereof, may result in irreparable harm to Licensor for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available, the Licensor shall be entitled to seek injunctive relief, whether interim or final, anywhere in the world reasonably necessary to safeguard Licensor’s interests.
8.5 The obligations set forth in this Section 8 shall survive any expiration or termination of this Agreement for a period of five (5) years. Notwithstanding the foregoing, the confidentiality obligations concerning Barisco, Documentation, Deliverables, and Feedback shall survive any expiration or termination of this Agreement until such time as one of the exclusions set forth in Section 8.2 applies thereto in all material respects.
8.6 Licensee has no obligation to give Licensor any Feedback. Licensor may use and include any Feedback to improve Barisco and/or other Licensor technologies. Accordingly, if Licensee provides Feedback, Licensee agrees Licensor and its licensees may freely use, reproduce, license, distribute, and otherwise commercialize the Feedback on Barisco or other technologies.
9.1 Licensor shall defend, indemnify, and hold harmless Licensee from and against any and all damages, costs and expenses incurred as a result of Licensor’s breach of its warranty under Section 7.1 hereof; provided Licensor has been notified without undue delay in writing of such claim and given authority, information, and assistance to settle the claim or control the defence of any suit or proceeding.
10. TERM AND TERMINATION
10.1 Unless stated otherwise, this Agreement shall come into force upon the Effective Date and shall remain valid until terminated by either party via written notice or electronic cancellation via Barisco.com. In the event of a material breach of this Agreement by either party not remedied within thirty (30) days from the other party’s written notice thereof or in case either party should become bankrupt or insolvent, the other party shall have the right to terminate this Agreement with immediate effect.
10.2 After termination of the Agreement by either party pursuant to Section 10.1 above, all Licensee’s rights in respect of Barisco, Deliverables, and Documentation shall cease. All Publication Titles released via the Target Platform(s) shall remain in full force and effect and continue to be available to Licensee’s customers for purchase during the thirty (30) day termination notice period.
10.3 The foregoing rights of termination are in addition to all other rights and remedies provided in this Agreement or at law, subject to the express limitations set forth in Section 7 (Limitation of Liability; Warranty Disclaimer).
10.4 Provisions contained in this Agreement that are clearly expressed or by their sense and context are intended to survive the termination of this Agreement.
11. GENERAL PROVISIONS
11.1 Governing Law. Unless stated otherwise this Agreement shall be governed by and construed in accordance with the substantive law The Netherlands. The United Nations Convention on the International Sale of Goods is expressly excluded from this Agreement.
11.2 Assignment. Neither party may assign this Agreement in whole or part to anyone without the other party’s prior, written consent. Any attempt to assign, transfer, or subcontract any of the rights, duties, or obligations of this Agreement without such required consent is void unless stated otherwise in this section. Notwithstanding the foregoing, Licensor shall be entitled to assign this Agreement to any company (i) owned or controlled, directly or indirectly, by Licensor or (ii) which owns or controls, directly or indirectly, Licensor or (iii) in the event of any change of control of Licensor.
11.3 Amendment, Waiver, Entire Agreement. No amendment to this Agreement or waiver shall be valid unless based on a written and signed undertaking. The waiver by either Party of any term or condition of this Agreement shall not be deemed to constitute a continuing waiver. This Agreement contains the entire agreement between the Parties on the subject matter of this Agreement, and supersedes all memoranda, representations, undertakings, and agreements, whether oral or written, previously made between the parties with respect to the subject matter of this Agreement. In the event any provision of this Agreement is deemed by a court or tribunal of competent jurisdiction to be unenforceable, such provision(s) shall be limited or eliminated to the maximum extent necessary so that this Agreement shall otherwise stay in full force and effect.
11.4 Notices. All notices, demands, or consents required or permitted under this Agreement shall be in writing and be delivered via electronic mail to the appropriate Party at the address set forth at registration or at such other address as shall be given to by either Party to the other in writing.
11.5 Relationship between the parties; no relationship of principal to agent, master to servant, employer to employee, franchiser to franchisee, partnership, or joint venture is established between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
12.1 Force Majeure : We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow down over the internet or any third party internet service providers.
12.2 Severability : The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.
12.3 Amendments : No amendment or other change of this Agreement shall be effective except as either expressly permitted under these Terms or agreed to in writing between the parties. Notwithstanding the foregoing, additional terms may be required for certain features of the Service (the “Additional Terms.”) The Additional Terms shall be considered incorporated into this Agreement at the time the feature is activated by you. Where there is a conflict between these Terms and the Additional Terms the Additional Terms shall control.
12.4 Further Actions : You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
12.5 Amendments : No amendment or other change of this Agreement shall be effective unless and until the revised Agreement is posted by us on the Website.
12.6 Notices : Any notice to you will be effective when sent to the last email or physical address you have given us or posted on our Website.
12.7 No Changes in Agreement at Request of Member : Because of our huge number of Members, we cannot, as a practical matter, change this Agreement for any one Member or group of Members. If we did that, keeping up with the changes alone would be a logistical nightmare. In addition one reason we are able to offer one of the most powerful email/electronic newsletter creation, distribution and management systems at a low price is that we are able to use this Agreement to reduce our financial risks.
APPENDIX A –SUPPORT AGREEMENT
Licensor shall put forth reasonable commercial efforts to provide, under this Agreement, the following services, via email, to Licensee, as further detailed below and in accordance with the Publishing Right package selected by Licensee. To clarify should such package exclude Support, then Support shall be so excluded. Error correction Updates of Software.
Help desk is not covered under Support in that it pertains to putting forth reasonable efforts to assist the Licensee in using the Software and/or EPS and does not relate to error correction. Certain Fee-based Support & Service plans can be obtained via Barisco.com
Support shall be available on Business Days between 0900 and 1700, (i) Greenwich Mean Time (“GMT”) via Ticket system from Licensor’s Support team.
Support is limited to named support persons at Licensee for issues not capable of resolution within Licensee or otherwise pursuant to the information contained in the Documentation or as a result of the Licensee’s representative(s) training from Licensor. To clarify, Licensee must put forth reasonable efforts to resolve such issue(s) prior to referring the issues to Licensor. Licensee shall ensure that all Licensee support personnel (including Independent Contractors) contacting Licensor have completed the above-mentioned training and possess the requisite skill necessary to effectively understand and implement Licensor’s support assistance. In addition, Licensee agrees that the number of contact points shall at no time exceed an aggregate number of two (2) such named persons for support.
Support shall only apply to the previous version release of Software. Any services provided by Licensor in connection with any version release older than the previous shall be deemed Professional Services subject to the terms of this Agreement as well as Licensor’s applicable Professional Service rates.
VERIFICATION, CLASSIFICATION AND CORRECTIONS OF ERRORS
TROUBLE REPORTS (“TR”)
Licensee shall report to Licensor any error for which Licensee requires replacement or correction by using TR: as set out below. All TRs shall be sent to the Licensor by using Barisco’s Ticket System. During the TR analysis, Licensee undertakes to provide Licensor with reasonable assistance in reproducing the error and all necessary equipment and other resources required. Each TR shall contain the following information: (a) Licensee company name, submitter name and e-mail address, (b) Licensee internal trouble report identification number, (c) Probable bug and severity level of the error, (d) Name and version of Software and hosting package, (e) Description and logging of the error and its impact on the Software performance (including error
log files reasonably establishing that the error originates from the Software and has not been caused
by improper use, viruses, external factors, Licensee’s failure to install prior Updates or Temporary
Solutions or other software integrated with the Software), and (f) Description of how to verify/reproduce the problem, including commands and procedures. For each TR, Licensor undertakes to:(a) Confirm its receipt of the TR by electronic mail,(b) Analyze the TR, verify the existence of the errors, and(c) Propose a solution.Support solely covers the generic, unmodified version of Software and errors originating therein. Consequently, support of any Deliverables shall not be covered under this Agreement but can be offered on a time and material basis corresponding to the Professional Service rates set forth in the Licensee Order Confirmation. Moreover, should Licensor expend time resolving a Licensee TR and later determine that the purported error did not originate from the Software itself, Licensor shall have the right to (at its discretion) invoice such time to Licensee according to the terms of this Agreement as well as Licensor’s current Professional Service rates.
PROVISION OF UPDATES
Licensor shall, when an Update has been released, upon Licensee’s request (to the extent Licensee has the right to Updates in accordance with the publishing rights package selected without delay provide Licensee with such Update at no extra cost for Licensee as long as this Appendix A is in effect.