EULA Terms of Service

This Agreement was last updated on May 23, 2023. 

Software as a Service Agreement

This Software as a Service Agreement (the “Agreement”) sets forth the terms and conditions that govern access to and use of the Services (as defined below), and is between Deven Software LLC d/b/a Devensoft (“Devensoft”), a Maryland limited liability company, and the company or other legal entity accepting this Agreement, and affiliates of that company or entity (“Customer”). This Agreement is effective, and Customer agrees to its terms and conditions, as of the date that Customer accepts the Agreement by (1) clicking a box indicating Customer acceptance; (2) executing an order form that references this Agreement; or (3) using the Services (the “Effective Date”). 

If an individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represent that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “Customer” shall refer to such entity and its affiliates. 

1. Rights Granted and Use.

• Rights Granted. Subject to the terms and conditions of this Agreement, including payment of the Fees set out herein, Devensoft hereby grants to Customer, and Customer ac­cepts, a non-exclusive, non-transferable, non-­assignable, non-sublicensable right to access and use Company’s software listed in one or more Orders hereto (the “System”), in strict accor­dance with the terms and conditions set out in this Agreement. Company reserves all other rights in and to the System except for those expressly granted to Cus­tomer herein. Customer may access and use the Sys­tem for the term set out in one or more Orders hereto, com­mencing with the Effective Date until all Orders have expired or been terminated, after which time all rights of Customer with respect to the System shall terminate.
• Restrictions on Use. Any use of the System not expressly permitted by this Agreement is prohib­ited. In particular, and without limitation of the fore­going, Customer shall not (a) reverse assemble, re­verse compile, or otherwise reverse engineer or at­tempt to derive the source code of the System, (b) modify, enhance or create derivative works of the System, (c) allow the System to be used by more than the number of Authorized Users, as defined in one or more applicable Orders, (d) pro­vide multiple-user licenses, application service provider services, rental arrangements or time-sharing arrangements with respect to the System, (e) allow the System to be used other than for Customer internal business purposes, or (f) make any copy of the System, or any portion thereof, in­cluding without limitation, any copy made on any computer owned or operated by Customer or any representative or agent of Customer.
• Company Proprietary Rights in the System. Except for the usage rights expressly granted in Section 1.1, Customer shall have no right, title or interest in and to the System. This Agreement grants no express or implied license or rights to any copy­right, patent, trade secret, trademark, invention or other intellectual property right of Company other than the express use and rights set forth in Section 1.1. Cus­tomer shall not sublicense, assign, lease, market, transfer, encumber or suffer to exist any lien or secu­rity interest on the System, nor shall Customer take any action that would cause the System to be placed in the public domain. If Customer suggests new fea­tures, benefits, functionality or other aspects of the System, or any portion thereof, that Devensoft, at its sole discretion, adopts for the System, such new features, functionality or other aspects of the System or any portion thereof will be the sole and exclusive prop­erty of Devensoft. Customer shall not remove, or allow (through act or omission) to be removed, any copy­right, trade secret or other proprietary rights notice from the System.

2. Orders; Fees and Payments.

• Orders. Customer shall use a Company provided Order Form, a sample of which is included in Schedule 1, to procure new services from Devensoft or access to the System (the “Order”). At a minimum, each Order shall identify the System edition, the number of Authorized Users, the subscription term, and the associated Fees. Company may reject an Order in good faith if the Order contains terms that impose commercially unreasonable obligations on Devensoft and which are in addition to its Agreement obligations. If Devensoft rejects an Order, it shall notify Customer and shall propose alternative terms that would be acceptable to Devensoft.
• Fees. Customer shall pay Devensoft the applicable fees described in each Order in accordance with the terms therein (the “Fees”). Customer further agrees to pay Devensoft’s fees for professional services, if provided, in a separate Statement of Work executed by both parties hereunder (the “Professional Services”). Except for the early termination rights expressly provided under Sections 6.2, 7.1 and 9.3 of this Agreement, payment obligations associated with an Order are non-cancelable and fees paid are non-refundable. In the event Professional Services are cancelled by Customer for convenience, any fees incurred up to the date of cancellation are due and payable pursuant to Section 2.4 of this Agreement. If Customer believes that Company has billed Customer incorrectly, Customer must contact Devensoft no later than thirty (30) days from the date of invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries shall be emailed to the Devensoft’s billing department at billing@devensoft.com.
• Taxes. The Fees payable under this Agree­ment or any Order issued hereunder do not in­clude, and Customer shall pay, any sales, use, prop­erty, value-added or other taxes (including any amounts to be withheld for the purpose of paying the foregoing) relating to, resulting from or based on the rights granted or services performed here­under or Customer’s use of the System pursuant to this Agreement, except for taxes based on Company’s net income revenues, gross receipts, personnel, real or personal property, or other assets. If Devensoft is required to pay any of the foregoing taxes, then such taxes shall be billed to and promptly paid by Customer.
• Payment Terms. All Fees and all other amounts required to be paid by Customer by this Agreement or any Statement of Work issued hereunder are due and payable within thirty (30) days from date of invoice. Overdue payments of Fees and other amounts required to be paid by Customer by this Agreement (other than amounts that are the subject of a legitimate dispute, solely to the extent of the disputed amount) shall ac­crue interest at one and one-half percent (1.5%) per month thirty (30) days from the due date until paid, and Customer shall pay Devensoft’s costs of collection, including Devensoft’s reasonable attorneys’ fees and court costs.
• Suspension of Rights, Services and Acceleration. If any amount owing by Customer under the Agreement is overdue, Devensoft may, without limiting Devensoft’s other rights or remedies, accelerate Customer’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend all Devensoft services and Customer rights hereunder until such amounts are paid in full. Devensoft shall give Customer at least ten (10) days’ prior written notice that Customer account is overdue before suspending any rights or services.  Any notices required under this section will be sent to the relevant billing contact designated by Customer.

3. Implementation, Training and Support.

• Implementation. Devensoft shall provide to Cus­tomer the implementation services for the System specified in Schedule 1.
• Training. Customer shall be responsible for supplying all equipment and materials necessary for its personnel to participate in training of the System. All train­ing shall be scheduled at times mutually agreed upon by Customer and Devensoft. Customer shall reimburse Devensoft for its travel, meals and lodging incurred with any onsite training and in all cases pre-approved by Devensoft shall comply with travel cost/reimbursement policies of Customer provided to Devensoft reasonably in advance of the first planned travel.
• Maintenance and Support. Devensoft shall maintain the System and provide technical support to Authorized Users in accordance with Exhibit A. Unless otherwise agreed to in writing between the parties, all support ser­vices, computer screens, documentation, communica­tions of any kind whatsoever shall be made by either Devensoft or Customer only in English.
• Communications Link. Customer will be re­sponsible for maintaining a communications link to the Internet from the Customer’s or employee premises and com­puters (the “Communications Link”), and Devensoft will have no responsibility in connection with installing or maintaining such Communications Link to the Inter­
• Installation of System bv Devensoft. Devensoft will not be required to provide or deliver to Customer, and Customer will not be authorized to install, load, store, or use the System on Customer computer hardware. The System shall be installed on servers maintained by Devensoft’s hosting data center provider and all Customer access thereto will be through a compatible web browser or other interface defined in an applicable Order or Statement of Work.

4. Responsibilities of the Parties.

• Customer Responsibilities. Customer shall be solely responsible for its use of the System, including the assignment of appropriate personnel who will access the System using a web browser on Customer’s own equipment and who are familiar with the infor­mation, calculations, and reports that serve as input to and output from the System. By federating or otherwise associating Customer’ Single Sign-On with the System, Customer acceptsresponsibility for timely and proper termination of user records in Customer’s local (intranet) identity infrastructure and on Customer’s local computers. Devensoft is not liable for any harm caused by Customer, including individuals who were not authorized to have access to the Systembut who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Customer’s local identitymanagement infrastructure or Customer’s local Customer is responsible for all activities that occur under Customer passwords oraccounts or as a result of Customer’ access to the System and agrees to notify Devensoft immediately of any unauthorized use. Customer shall use commercially reasonable efforts to maintain full and complete files of all documents submitted to the Sys­tem for processing, storage or otherwise. Customer shall also be responsible, at its own expense, for en­suring a proper environment and proper utilities for the computers on which the web browser will operate, including use of anti-malware and anti-virus software updated with the latest patches and virus definitions. Customer’s cooperation shall include providing Devensoft with all necessary equipment, material, information, assistance and access to, and use of, Customer’s premises, computers and other equipment during normal business hours for the purposes of support and training to Customer. Customer shall also pro­vide Devensoft with access to Customer’s personnel during normal business hours reasonably requested in ad­vance.
• Uptime Service Level Agreement. The System shall be accessible at its portal for use by Customer, in accordance with this Agreement, and on the Uptime basis warranted in Section 6.1(c). The following shall not constitute down time in computing Uptime for the System, as further described in Section 6.1(c) below: (i) general emergencies, floods, hurricanes, other acts of God or force majeure, (ii) scheduled or emergency System maintenance, (iii) unavailability due to acts or omis­sions of Customer in accessing or using the System, (iv) any interruption caused by inability of Customer to make or sustain its Communication Link to the System or any failure of Customer’s equipment or electronic communications services or (v) interrup­tion in accessing or using the System due to Cus­tomer’s transmittals to, or retrieving, from the Sys­tem, at all or at any particular speed.
• Protection of Customer Data. Devensoft will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data located on Devensoft servers. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification, and disclosure of Customer Data by or to third parties lacking a valid username and password and by Devensoft personnel, except for actions by Devensoft personnel (a) to provide the Services and prevent or address service or technical problems; (b) as compelled by law in accordance with Section 5.2 (Compelled Disclosure) below, (c) as provided in Section 5.3 (Right to Customer Data) below, or (d) as Customer expressly permits in writing. A summary of these safeguards is currently available at https://www.devensoft.com/compliance/security/.

5. Confidentiality; Proprietary Rights

5.1 Confidentiality Obligations. Each party (the “Receiving Party”) ac­knowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the System. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the System (“Customer Data”). The Receiving Party shall hold the Proprietary Information of the Disclosing Party in confidence and protect the same with at least the same degree of care, but no less than reasonable care, with which it protects its own most sensitive confidential information. The Receiving Party shall use the Proprietary Information of the Disclosing Party solely in connection with the exercise of its rights and the performance of its obligations under this Agreement, and shall restrict disclosure of and access to the Proprietary Information to such party’s employees who require access to such Proprietary Information in connection with this Agreement. Each party shall require its employees to comply with the obligations of confidentiality set forth herein and shall be liable for any employee’s failure to so comply. In the event of a breach by either party of this Section 5.1, the breaching party shall provide the non-breaching party with written notice, including full disclosure, of such breach as soon as commercially practicable.

• Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil or administrative proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. 
• Right to Customer Data. Customer shall own all right, title and interest in and to the Customer Data. Customer grants Devensoft a worldwide, limited-term license to host, copy, display and use Customer Data: (a) as reasonably necessary for Devensoft to provide the System, or otherwise exercise Devensoft’s rights or obligations pursuant to this Agreement; (b) as necessary to provide support, address service issues/requests, or otherwise enhance Customer use of the System; (c) as required by law, regulation, or in accordance governmental request with legal process; (d) as requested by Customer; and (e) to investigate or address security or integrity issues related to the System. Except as expressly permitted by this Agreement, Devensoft acquires no right, title, or interest from Customer or Customer licensors under this Agreement in or to Customer Data or any third party application. Devensoft shall own and retain all right, title and interest in and to (a) the System, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Professional Services or support, and (c) all intellectual property rights related to any of the foregoing.
• Use of Data. Devensoft shall have the right to (and to retain third parties to) collect and analyze data and other information relating to the provision, use, and performance of various aspects of the System and related technologies, provided that Customer Data that is also personal information will only be used in connection with the permitted purposes in Section 5.3, unless such personal information is aggregated or otherwise de-identified. Devensoft may (during and after the term hereof) (a) use such information and data to improve and enhance the System and for other development, benchmarking, diagnostic, and corrective purposes in connection with the System and Devensoft’s other offerings, and (b) use third party service providers, contractors, and subcontractors (“Devensoft Providers”) to assist in providing, supporting, and improving the System. Devensoft may share all such information and data with Devensoft Providers, who may store and use it solely to provide, support, and improve the System. Devensoft shall be responsible for the compliance of Devensoft Providers with the provisions of this Agreement. 
• Personally Identifiable Information. Personally Identifiable Information (“PII”) stored in the System shall be limited to name and email address of Authorized Users. The System shall use PII for the purposes of identifying the Authorized User during the login process and to log actions performed by an Authorized User within the System.  Such logged actions include the date and time when the Authorized User logged into the System and when records were created, edited or deleted.  Customer may view these logs at any time within the System.  PII may also be accessed by other Authorized Users in order to share information between Authorized Users or to view who is assigned specific action items, tasks, or other records.  Each party warrants and undertakes that its processes, services and treatment of all personal data complies with the applicable federal, state and international laws regarding personal data and any national implementing laws, regulations and secondary legislation (as amended and collectively, “Privacy Laws”) and that it shall use best efforts to comply with such Privacy Laws. In particular, each party shall ensure that any personal data is processed only as needed to perform this Agreement. Each party will notify the other party immediately in writing of any: (a) actual or suspected breach of this Section; and (b) of any complaint or request by any individual concerning personal data. Each party shall use the personal data supplied solely for the purpose of this Agreement and shall store the data for as long as is strictly necessary to be able to complete said purpose. Except for the name and address of Authorized Users, no additional personal data, especially including personal information relating to special categories of personal data, shall be collected, and no additional processing or collection of further personal information shall be accepted unless the Agreement is amended appropriately. Each party also agrees to put in place appropriate technical and organizational measures to ensure the security of any personal data that it processes.
• Exceptions to Confidentiality Obligations. A party’s Proprietary Information shall not include information that: (a) is or becomes a part of the public domain through no fault of the receiving party; (b) was lawfully received by the receiving party from a third party free of any obligation of confidence; (c) was already in the lawful possession of the receiving party prior to receipt from the disclosing party; or (d) is required to be disclosed by law, provided that all reasonable legal remedies for retaining such informa­tion in confidence have been exhausted.
• Equitable Relief. Each party agrees that, in the event of a breach by the other party of Sections 1 or 5 of this Agreement, the non-breaching party may not have an adequate remedy solely in monetary dam­ages and any such breach will cause the non­breaching party irreparable harm. In the event of such breach, each party agrees that the non-breaching party shall be entitled, without the requirement of posting a bond or other security, to equitable relief, including to an injunction or specific performance.

6. Limited Warranties

6.1 Limited System Warranty: Limited Services Warranty. Subject to the terms and conditions of this Agreement, Devensoft warrants, for Customer’s benefit alone, that during the initial term and any renewals thereof: (a) the System will operate in accordance with the then current version of the documentation provided by Devensoft at support@devensoft.com and this Agree­ment, (b) any Professional Services provided by Devensoft hereunder will be provided in a professional and workmanlike manner, and (c) the System shall have Uptime (be accessible to Customer at the System’s point of entry, as further described in Section 4.2) of 99.9%, as computed in any two consecutive months. Devensoft shall provide Cus­tomer with as much advance notice of scheduled maintenance as is commercially practicable and whenever possible during non-business hours. Cus­tomer shall be responsible for tracking System down­time and immediately report any unavailability to the System via email to support@devensoft.com.

6.2 Exclusive Remedies. Customer shall notify Devensoft pursuant to Section 10.4 of this Agreement, of any fail­ure of the System to perform in accordance with the warranties specified in Section 6.1 (a “Warranty No­tice”). If at any time during the relevant warranty period specified in Section 6.1(a) or (b), Customer submits a Warranty Notice, Customer’s exclusive remedy and Devensoft’s entire liability will be: (i) in the case of a War­ranty Notice with respect to the System, the correc­tion of errors that cause breach of the warranty, and (ii) in the case of a Warranty Notice with respect to the Professional Services, the re-performance of any Professional Services not in material compliance with the warranty. If Devensoft is unable to correct the errors or re-perform the Professional Services within a commer­cially reasonable time, Devensoft will compensate Cus­tomer for its direct damages in an amount not to ex­ceed that portion of the Fees actually paid by Customer up to the date of the Warranty Notice. Customer’s exclusive remedy and Devensoft’s total liability with respect to Section 6.1(c) shall be as follows: If at any time during the term of the Agreement System Uptime falls below 99.9% in two consecutive months, Customer shall submit a Warranty Notice, be entitled to terminate this Agreement and receive a prorata refund for the paid but unused portion of the Fees.

6.3 Voiding of Warranties. The limited warran­ties contained in Section 6.1 shall be void as to Sys­tem or any component thereof damaged or rendered unserviceable by (a) the acts or omissions of Cus­tomer, its employees, or agents; (b) misuse by Cus­tomer; (c) alterations or additions not authorized by Devensoft in writing; or (d) Customer’s failure to observe the operating, security, and data-control procedures prescribed by Devensoft or commonly used.

6.4 DISCLAIMER OF WARRANTIES.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR RESPONSE TO INQUIRIES WITHIN ANY SPECIFIC PERIOD OF TIME, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

FURTHERMORE, DEVENSOFT IS NOT RESPONSIBLE FOR DATA QUALITY ISSUES OR LOSS OF DATA AND CUSTOMER WILL MAINTAIN BACKUP COPIES OF CUSTOMER DATA ON CUSTOMER’S OWN SYSTEMS. DEVENSOFT IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION, OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER DATA OR THIRD PARTY APPLICATIONS. DEVENSOFT HAS NO RESPONSIBILITY FOR THE PERFORMANCE OR OTHER OBLIGATIONS OF ANY PROVIDERS OF THIRD PARTY APPLICATIONS. 

7. Mutual Indemnification.

7.1  Indemnification bv Company. Subject to Section 7.3, Devensoft agrees to indemnify, defend and hold Customer harmless from and against any loss, claim, judgment, liability, damage, action or cause of action (including reasonable attorneys’ fees and court costs) (collec­tively, “Claims”) caused by a third party claim that Customer’s use of the System infringes or misappro­priates such third party’s valid patent, copyright or trademark; provided, however, that Devensoft shall have no obligation to in­demnify, defend or hold Customer harmless with respect to third party claims unless Customer promptly notifies Devensoft in writing of the claim, allows Devensoft to control the defense of such claim, and coop­erates with Devensoft in the defense of the claim or in any related settlement negotiations. If Devensoft receives information about an infringement or misappropriation claim related to the System, Devensoft may in its discretion and at no cost to Customer (i) modify the System so that it is no longer claimed to infringe or misappropriate, without breaching Devensoft’s warranties under this Agreement, (ii) obtain a license for Customer’s continued use of the System in accordance with this Agreement, or (iii) terminate Customer’s subscriptions to the System upon thirty (30) days written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.  The foregoing indemnification obligation will not apply: (a) if the Services are modified by any party other than Devensoft, to the extent the alleged infringement is caused by such modification; (b) if the Services are combined with other products, applications, or processes not provided by Devensoft, to the extent the alleged infringement is caused by such combination; (c) to Claims arising out of any unauthorized use of the Services; (d) to Claims arising out of any third party applications; or (e) to Claims arising out of Customer Data. THIS SECTION 7.1 SETS FORTH DEVENSOFT’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.

7.2  Indemnification by Customer. Customer will defend Devensoft against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that any of Customer Data or use of Customer Data under this Agreement, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer use of the System in an unlawful manner or in violation of the Agreement or Order (each a “Claim Against Devensoft”), and Customer will indemnify Devensoft from any damages, attorney fees and costs finally awarded against Devensoft as a result of, or for any amounts paid by Devensoft under a settlement approved by Customer in writing of, a Claim Against Devensoft, provided Devensoft (a) promptly gives Customer written notice of the Claim Against Devensoft, (b) give Customer sole control of the defense and settlement of the Claim Against Devensoft (except that Customer may not settle any Claim Against Devensoft unless it unconditionally releases Devensoft of all liability), and (c) give Customer all reasonable assistance, at Customer’s expense.

7.3      Limitation on Indemnification Obligations.
The indemnity against infringement set forth in Section 7.1 shall not apply to any claim arising out of (a) the combination, operation or use of the System with any product, data or apparatus not furnished by or on behalf of Devensoft or not specified by Devensoft in writing, (b) Devensoft’s compliance with Customer’s designs, specifi­cations or instructions, (c) Customer’s modification of the System, (d) use of the System in a manner that conflicts with the prescribed uses in the documenta­tion, or (e) use of the System other than in accor­dance with this Agreement.

8. Limitation of Liability.

• LIMITATION ON CUMULATIVE LIABILITY. EXCEPT FOR THE LIABILITY ARISING OUT OF THE INDEMNIFICATION OB­LIGATION SET OUT IN SECTION 7.1, SECTION 7.2 AND THE CONFIDENTIALITY OBLIGATION SET OUT IN SECTION 5.1, ABOVE, THE CUMULATIVE LI­ABILITY OF EITHER PARTY OR ITS THIRD PARTY COMPANIES TO THE OTHER PARTY FOR ANY ACTUAL OR ALLEGED DAMAGES ARISING OUT OF, BASED ON OR RELATING TO THIS AGREEMENT WHETHER BASED UPON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY OR ANY OTHER LEGAL THEORY, SHALL BE LIM­ITED TO THE PARTY’S DIRECT DAMAGES NOT TO EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THE AGREE­MENT IN THE MOST RECENT TWELVE (12) MONTHS UNDER THIS AGREEMENT.
• LIMITATION ON SPECIFIED DAMAGES. IN NO EVENT SHALL EITHER PARTY OR ITS THIRD PARTY COMPANIES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (IN­CLUDING DAMAGES RELATED TO DELAYS, LOSS OF DATA, INTERRUPTION OF SERVICE OR LOSS OF BUSINESS OR PROFITS), EVEN IF COMPANY OR SUCH THIRD PARTY HAVE BEEN AD­VISED OF THE POSSIBILITY OF SUCH DAM­ EXCEPT AS SET FORTH IN SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY THIRD PARTY CLAIM.

8.3 Additional Limitations of Liability. Customer shall not assert against Devensoft any claim or cause of action arising out of, based on or relating to this Agreement at any time after one (1) year has elapsed since the material facts giving rise to such claim or cause of action occurred. Customer shall have the duty to mitigate damages for which Devensoft may become responsible under this Agreement.

9. Term and Termination.

• Term of Agreement. This Agreement commences on the Effective Date and continues until all Orders hereunder have expired or have been terminated.
• Term of Subscriptions and Renewals. Subscriptions will automatically renew for additional twelve (12) month terms at the same number of seats subscribed at the end of the prior subscription term, unless either party gives the other notice of non-renewal at least sixty (60) days prior to the end of the relevant subscription term. The per-seat price during any renewal term may increase by up to five percent (5%) above the applicable pricing in the prior term, unless Devensoft provides Customer notice of different pricing at least ninety (90) days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Devensoft’s applicable list price in effect at the time of the applicable renewal.
• Termination. In addition to the termination rights expressly set out herein, either party may ter­minate this Agreement and any Orders and Professional Services upon written notice if the other party materially breaches this Agreement and fails to correct the material breach within thirty (30) days following written notice specifying the material breach and demanding its cure; provided, however, that Devensoft may terminate this Agreement and any Orders immediately upon notice if Customer materially breaches the provisions of Sections 1 or 5, above.
• Termination of Professional Services. In addition to the termination rights in Section 9.3, Customer may terminate any Professional Services for convenience upon thirty (30) days written notice. Customer shall pay Devensoft for Fees incurred up to the date of termination.
• Effect of Termination. In the event of any ter­mination of this Agreement for any reason, all rights granted to Customer hereunder shall terminate, and Customer shall immediately discontinue all use of the System and each party shall promptly return or de­stroy, as requested by the other party, all original and copies of Confidential Information of that party in the other party’s possession. If Customer terminates this Agreement pursuant to Section 9.3 of this Agreement, then Devensoft shall refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.
• Survival. The parties rights and obligations under Sections 1.2, 1.3, 5, 8, 9.3, 9.5, and 10 of this Agreement and any accrued rights to payment and remedies for breach of this Agreement shall survive termination or expiration of this Agreement.

10. General Provisions.

10.1 Construction. If any provision of this Agree­ment is held to be unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to this Agreement to the extent possible. The conjunction “or” shall be understood in its inclusive sense (and/or). The words “include,” “includes” and in­cluding” shall be deemed to be followed by the phrase “without limitation.”

• Governing Law: Remedies. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without giv­ing effect to its principles or rules of conflicts of Except as otherwise provided in this Agree­ment, the rights, powers, remedies and privileges provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies and privi­leges provided by applicable law. Without limiting the provisions of Section 10.3 below (Arbitration), the parties hereto consent and submit to the exclusive jurisdiction of the federal and state courts located in Rockville, Maryland to hear any action or suit concerning Section 10.3 below (Arbitration) or issues not subject to arbitration arising out of this Agreement or related matters.  Neither party shall raise, and the parties hereby waive, any defenses based upon venue, inconvenience of forum, lack of personal jurisdiction, improper service of process or the like in any such action or suit.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION, OR COUNTERCLAIM ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT AND UNDER ANY THEORY OF LAW OR EQUITY.
• Arbitration. Any controversy, dispute, or claim arising out of or relating to this Agreement shall be settled by binding arbitration by the American Arbitration Association (“AAA”) in accordance with the AAA’s Commercial Arbitration Rules. Arbitration shall be conducted in Rockville, Maryland before a single arbitrator who is an attorney licensed in Maryland, has practiced law for at least 10 years and has experience in the information technology industry.   If the parties cannot agree upon a single arbitrator, the AAA shall appoint the arbitrator within ten (10) days of the parties’ failure to agree upon a single arbitrator. Judgment upon any award of the arbitrator may be entered in any court having jurisdiction thereof (such judgment to include an award of reasonable attorneys’ fees and expenses, including the expense of arbitration, to the prevailing party). Notwithstanding the foregoing, any party to this Agreement may seek any appropriate equitable relief, including injunction, to which it may be entitled.
• Notices. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; or (c) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant Services system administrator designated by Customer. Notices to Devensoft should be addressed to Deven Software LLC, PO Box 6624, Annapolis, MD 21401, USA; Attention: Legal Department with an email copy to legal@devensoft.com.
• Independent Contractors. The status of the parties under this Agreement shall be that of inde­pendent contractors. Neither party shall be author­ized to waive any right, or assume or create any con­tract or obligation of any kind in the name of, or on behalf of, the other or to make any statement that it has the authority to do so. Nothing in this Agreement shall be construed as establishing a partnership, joint venture, agency, employment or other similar rela­tionship between the parties hereto.
• Publicity. Customer agrees (a) that Devensoft may identify the Customer as a Devensoft Customer or user across Devensoft’s marketing materials, promotional presentations, customer lists, website and other written and electronic materials (name and logo), and (b) upon reasonable request, to provide input towards and/or participate in Devensoft’s marketing and promotional activities. Where any Customer trademark or logo is used, such usage shall at all times be subject to any trademark or logo usage guidelines that Customer has provided to Devensoft.
• Assignment and Binding Effect. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), following written notice to but without the other party’s consent (i) to its Affiliate, (ii) in connection with a merger, acquisition, corporate reorganization, or (iii) in connection with the sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
• Excusable Delays. If the performance of this Agreement or of any obligation hereunder, except for the payment of any amounts due hereunder, is pre­vented, by any force majeure, act of God or other cause beyond the reasonable control of the affected party, such party, upon prompt written notice to the other party, shall be excused from such performance to the extent of the aforementioned prevention, re­striction or interference, provided, however, that the party so affected shall use its commercially reason­able efforts to avoid or remove such causes of non­performance and shall continue performance here­under with the utmost dispatch whenever such causes are removed.
• Third Party Rights. Except as expressly set forth herein, nothing in this Agreement shall be con­strued as giving any person or entity, other than the parties hereto and their successors and permitted as­signs, any right, remedy or claim under or in respect to this Agreement or any provision hereof, provided that any the third party licensors shall be third party beneficiaries to this Agreement.
• Counterparts: Amendments: Entire Agree­ Etc. This Agreement incorporates any exhibits, appendices and other documents referenced in it including, but not limited to if applicable, the Data Processing Addendum. This Agreement, together with each Order, is the entire agreement between the parties regarding the use of Services and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Devensoft may modify this Agreement by updating the Agreement as it appears on Devensoft’s website. Additionally, the parties may modify or amend this Agreement in a written instrument signed by both parties. Changes or amendments to Order(s) may be accomplished only in a written instrument signed by both parties. The parties agree that any term or condition stated in Customer purchase order, supplier information/setup or similarly titled forms, invoice management platforms, or in any other of Customer order documentation (excluding Order Forms) is void, including where such order, form, or other documentation is signed by Devensoft. In the event of any conflict between any provision of this Agreement and an SOW or Order Form, the terms of the SOW or Order Form shall prevail with respect to the matters covered by the applicable SOW and/or Order. 

SCHEDULE 1

1. Authorized Users

An Authorized User is an employee or authorized representative of Customer who is associated with an active subscription and occupies an active seat in the System. An Authorized User is al­lowed to log onto the System and to view, input, edit and delete an unlimited amount of data and documents for the duration of the subscription term applicable to that active seat.  An Authorized User login credentials may not be shared with any other individual.

The number of active seats may be modified by Customer in writing pursuant to Section II below by notifying Devensoft via email to support@devensoft.com or sales@devensoft.com.  Devensoft will periodically review the actual number of seats Customer has active in the System.  If the actual number of seats exceed the contractual usage limit, Devensoft may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Devensoft’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional seat quantities promptly upon Devensoft’s request, and/or pay any invoice for excess usage in accordance with Section 2.4 (Payment Terms).

1. Billing, Adding, and Transferring Seats 

Billing

Devensoft will submit to Customer an invoice for the Total Fees listed on each Order Form within five (5) days of the Subscription Start Date.

Adding Seats

Customer may purchase additional seats at any time by contacting Devensoft Support at support@devensoft.com.  Add-on seats are coterminous with the end date of the underlying subscription term.

Transfer of Users

Customer has control over the Authorized Users within the System.  Customer may modify or transfer seats by disabling and/or replacing names of Authorized Users as part of the System administrator function.

DEVENSOFT ORDER FORM

(Sample)

EXHIBIT A

Maintenance and Support

Overview

Purpose and Scope

The purpose of this document is to ensure that proper mechanisms are in place to provide high quality service and support to end users. This document provides clear description of service ownership, roles and responsibilities, service quality metrics, and available support. The scope of this document encompasses the entire Devensoft software platform, the infrastructure, storage, network, operating system, and databases on which it resides. 

Modifications

Devensoft reserves the right to modify this document periodically in order to improve overall Customer service and maintain a high level of application availability and exceptional Customer support.  Company will communicate changes to Customer in advance.

Service Level Agreement

Roles and Responsibilities

The Customer is responsible for: 1) accessing the System for its intended purpose and consistent with the terms and conditions of any agreement(s) between Devensoft and the Customer; and 2) promptly reporting to Devensoft any software performance degradation, errors, or connectivity issues that are not caused by the Customer’s internal network or the Customer’s connection to the Internet.

Devensoft is responsible for: 1) responding to Customer support requests in a timely manner; 2) support and maintenance related to the Devensoft cloud infrastructure; 3) maintenance and support of server software (server operating system, application servers, database servers, and web servers); 4) maintenance and support of the System; and 5) server and database backup.

Support Availability

The System is monitored on a 24×7 basis.

Available Customer support options include phone support, email reporting to a designated support email address, and self-service via help pages, knowledge base, and recorded tutorials available online.

Email and Web-Based Support

Available 24×7 via authorized login at https://support.devensoft.com

Requests for access to web-based support can be submitted to support@devensoft.com

Dial-in support

Unless otherwise agreed to in writing, dial-in support is available 8:30am to 5:00pm East Coast Time, Monday through Friday, excluding major US Holidays, by calling +1.571.348.3482.

Scheduled Maintenance

Software updates and system maintenance are generally conducted on either Saturdays or Sundays. At least 48-hour advanced email notification is sent to all Customers’ primary point of contact.

Unscheduled Maintenance

Service interruptions for emergency fixes and unscheduled outages. Due to the unpredictable nature of such occurrences it is not possible to specify the exact outage duration. However, due diligence will be taken to resolve any outages in a timely manner consistent with the Incident Resolution Times.  Customer will be notified of any emergency outages via email to their designated point of contact, followed by periodic updates on estimated resolution time and root cause analysis after investigation is completed.

Disaster Recovery Drills

Disaster recovery drills are conducted annually to ensure failover to redundant facilities and servers operates successfully.  These drills are conducted either on Saturdays or Sundays and take several hours to complete. At least 72-hour advanced email notification is sent to all Customers’ primary point of contact.