FotoWare Software Maintenance Agreement
This Software Maintenance Agreement (“Agreement") governs the delivery of software updates and services from FotoWare AS of Bryggegata 7, N-0250 Oslo, Norway and its appointed Partner to the Customer as defined below. This Agreement is frequently referred to as “SMA" in communication from FotoWare.
This Agreement is valid accompanied by a Order Form or a Software Maintenance Agreement Confirmation (“Confirmation Document"), which identifies the Customer, Agreement Period, and Software covered by this Agreement. Conditions in the Order Form takes precedence over conditions in the Agreement Confirmations, Software Maintenance Agreement (this agreement) and the End User License Agreement.
Confirmation Document: The document titled “Software Maintenance Agreement Confirmation" issued by FotoWare upon confirmed order of the services described in this Agreement.
Customer: The legal entity as specified in the Confirmation Document.
Agreement Period: The period defined in the Confirmation Document.
Start Date: The date when this Agreement is entered into.
Expiry Date: The end date of the Agreement Period.
Anniversary Date: The date when payment for this Agreement is due or is automatically renewed, i.e. the Start Date and same date each consecutive year in and after the Agreement Period.
Partner: The reseller of this Agreement and the party responsible for providing the 1st line support services under this Agreement, as appointed in the Confirmation Document.
Software: The software products licensed from FotoWare and covered by this Agreement, as defined under “Covered Products" in the Confirmation Document.
EULA: The End User License Agreement of the Software.
In the Agreement Period, the Customer is entitled to all updates, including major versions, of the Software covered by this Agreement.
FotoWare may, at its own discretion, release add-on modules to the Software, which are marketed and sold individually. Such modules are not included with this Agreement, but the Customer may choose to add such modules to this Agreement after acquiring a license for such modules separately.
In the Agreement Period, the Customer is entitled to email support from the Partner with a Next Business Day response time guarantee for the Software covered by this Agreement. Business Days are defined as Monday through Friday excluding public holidays in the country of the Partner.
The Customer must submit support requests to the email address specified in the Confirmation Document, and include the Authorization Number specified in the Confirmation Document. Only contact persons that are listed in the Contact Persons table of the Confirmation Document are authorized to submit support requests.
In the Agreement Period the Partner may escalate support requests to FotoWare on behalf of the Customer.
Should the Partner be unable to respond to a support request within 24 hours after the response time guarantee, the Customer may escalate the case to FotoWare by emailing email@example.com. Requests must be sent from an email address registered as a Contact Person in the Confirmation Document, and include the Authorization Number for this Agreement. FotoWare's response time guarantee for such escalated tickets is within the Next Business Day, defined as Monday through Friday excluding Norwegian public holidays, from the time when the request is received by FotoWare.
Software licenses and correct use
This Agreement grants the Customer the right to software updates, support services, and certain cloud services from FotoWare. It does not grant the Customer any license rights, but merely extends the warranty and support services provided with the initial license for the duration of the Agreement Period.
Use of the Software provided through this Agreement is subject to the EULA provided with the Software, and presented while downloading and/or installing the Software. Use of the Software implies acceptance of the EULA [i].
This Agreement is void if the covered Software is not rightfully licensed from FotoWare.
The Customer has the right to use non-current versions of the Software covered by this Agreement.
The Customer is entitled to support on non-current versions of the Software until versions are declared End-Of-Life by FotoWare.
FotoWare provides support for all software releases for a minimum of 12 months after the initial release date. End-Of-Life announcements are posted on FotoWare's web site and in newsletters to all Contact Persons listed on the Confirmation Document at least 6 months prior to the date when the product is considered End-Of-Life and support is no longer provided.
This Agreement may, for certain Software, give the Customer rights to use extended functionality provided by cloud services operated by FotoWare. Such functionality is not considered part of the Software's perpetual license, and access to such services will be terminated upon expiration, cancellation, or termination of this Agreement.
Flexible licensing schemes
This Agreement may, for certain Software, give the Customer the right to flexible licensing schemes that do not technically enforce the EULA. This includes, but is not limited to, Overdraft Licenses and License Files.
Upon expiration, cancellation, or termination of this Agreement, the right to use such licensing schemes is terminated, and the Customer must revert to using the Activation Keys presented on the original proof of purchase for the Software.
Special license grants
This Agreement entitles the Customer to run any licenses of FotoStation Pro through one or more Terminal Servers (Citrix, Microsoft Terminal Server or similar solutions). One license is required for each individual (named user) accessing (e.g. starting or initiating an action in) the Software one or more times in the Agreement Period. Upon expiry, cancellation, or termination of this agreement, the Customer must stop using the Software through Terminal Servers.
Under this Agreement, the Customer may acquire Staging LINK [ii] and Redundancy LINK [iii] licenses for the Software covered by this Agreement. The license grant for such licenses expires upon expiration, cancellation, or termination of this Agreement.
The Partner may, under separate contract and fees, offer enhanced services in addition to the services included in this Agreement. The Partner may not reduce, limit, or otherwise change the services included with this Agreement.
The Customer may, by written notification to FotoWare at least 30 days prior to the expiry of this Agreement, transfer the Agreement to another Certified Partner LINK SMA Addendum [iv]
Should the Partner be unable to fulfill its duties to the Customer as dictated by this Agreement, FotoWare may, on its own discretion, appoint a new Partner for the Customer, or take on the duties of the Partner for the remainder of the Agreement Period.
Changes to software covered or license counts
The Customer may at any time in the Agreement Period extend this Agreement to cover new licenses acquired from FotoWare or not previously covered by this Agreement.
The Customer may not reduce the amount of licenses or remove Software from the Agreement for the duration of the Agreement Period.
After the end of the Agreement Period, the Customer may freely remove products and/or licenses from the Agreement. Changes must be communicated to FotoWare in writing at least 30 days prior to the Expiry Date of the Agreement.
Fees and payment
The fees associated with this Agreement are to be paid yearly, and are due on the Anniversary Date. The yearly fee for this Agreement is 18% of the value of the Software covered by the Agreement, based on Suggested Retail Prices from FotoWare at the Anniversary Date. Prices may be adjusted by FotoWare with a maximum of 3% per year in the Agreement Period.
Payment for the fees associated with this Agreement is to be paid to the Partner, in accordance with the standard payment terms of the Partner, or as agreed separately with the Partner.
Late payments are subject to a fee of 9.5 percent per annum or the highest rate allowed under the law, whichever is lower, or as specifically agreed with the Partner. In case of late or missing payments, access to the services provided under this Agreement will be stopped until complete payment has been received.
After the end of the Agreement period, this Agreement will be renewed automatically for one year at a time. FotoWare will inform the Customer of the upcoming renewal 90 days prior to the Expiry Date via email.
The fee for renewal of this Agreement is 18% of the value of the Software covered by the Agreement at the time of renewal, based on Suggested Retail Prices from FotoWare at the time of renewal.
This Agreement may not be cancelled within the Agreement Period.
The Customer may opt out of automatic renewal by cancelling this Agreement in written form to FotoWare at least 30 days prior to the expiry date.
If the Software covered by this Agreement is licensed under a perpetual contract, the Customer may continue use of the latest software release available under this Agreement beyond the cancellation of this Agreement.
Should the Customer decide to stop all use of the Software before the end of the Agreement Period, the Agreement can be terminated subject to a Termination Fee equivalent of 50% of the remaining fees for the Agreement Period. Any already paid fees are not reimbursed.
Upon Termination, the Customer waives all usage rights to the Software, even if the Software is licensed under a perpetual license. Further use of the Software after Termination requires entering into a new Software Maintenance Agreement with FotoWare.
This Agreement is not transferable from the Customer to any parent, subsidiary, affiliated entity or third party except by written agreement between the parties.
The Agreement shall be governed by and interpreted in accordance with Norwegian law.
In case of a dispute between the parties which cannot be solved by negotiations, the Customer hereby submits for the benefit of FotoWare, to the jurisdiction of the Norwegian courts, with the Oslo City Court as due venue. Nevertheless, FotoWare has the right to instigate legal proceedings in the country where the Customer has its place of residence or perform business activities.
[i] EULAs for current versions of the Software are available on http://www.fotoware.com/company/legal.
[ii] A Staging license allows operation of a test environment for the Software, as defined in the EULA.
[iii] A Redundancy license allows operation of a secondary environment that takes over in case the primary system fails, as defined in the EULA.
[iv] A complete and current list of all Certified Partners can be found on http://www.fotoware.com/company/partners.
Revision 6, 27 November 2014