This Master Services Agreement (the “Agreement") is between DockMaster Software, Inc. (subsidiary of Valsoft acting herein as service provider on behalf of parent company Valsoft Corporation Inc., a Quebec corporation having its registered office address at 7405 Transcanada Highway, Suite 100, H4T 1Z2, Montreal, Quebec, Canada), a Florida corporation with its office at 500 North Westshore Blvd, Suite 950 Tampa, FL 33609 collectively (“DockMaster"), and [Name of Client] (the “Client"). This Agreement incorporates by reference the Order Form executed by the parties and attached hereto, as may be amended from time to time.
DockMaster software is a marine management software solution for marinas, boat dealerships, boat repair centers or boatyards that is offered as a (i) Software as a Service, or SaaS, application (“Hosted Services") or (ii) an on-premise application (“Premise Services").
1. The Services.
Client subscribes to the DockMaster products and services selected on each Order Form attached hereto (for purposes of the Agreement, either the Hosted Services or the Premise Services, as applicable, shall be referred to as the “Services") on the terms set forth herein. The Services include the following:
- a. For Hosted Services Only. DockMaster shall provide access to the DockMaster Operations software and such other software for which Client subscribes on each Order Form solely for Client’s internal business purposes and solely for use by Authorized Users during the Term. All rights now expressly granted are reserved by DockMaster. The Hosted Services includes all updates during the Term which DockMaster makes generally available at no additional cost to its clients, but does not include those updates containing new or different functionality for which DockMaster charges its clients separately.
- b. For Premise Services Only. DockMaster hereby grants to Client, and Client accepts, the non-exclusive, non-transferable right to install and use the DockMaster Operations software as described on the attached Order Form on the Computer Server, which shall be located in a facility owned or controlled by Client. If the Computer Server malfunctions, Client may install and use the DockMaster software temporarily while rectifying the malfunction on a computer other than the Computer Server. This license extends only to the conduct of Client’s internal business and solely for use by Authorized Users during the Term and shall not extend to any use in the nature of a service bureau, rental, leasing, outsourcing or other use for the benefit of a third party. No additional or different rights are granted to Client, either expressly or by implication. DockMaster retains all rights not expressly granted to Client, and nothing in this Agreement constitutes a waiver of DockMaster’s rights under copyright laws or any other federal or state law or treaty. All rights not expressly granted are reserved by DockMaster.
- c. Implementation/Training Services. All delivery, installation, training and other services shall be performed in accordance with Exhibit A to this Agreement. “Installation" shall consist of loading the DockMaster Operations software on the Computer System in such a manner that it will perform in accordance with the functional specifications and capabilities listed in the on-line user documentation for the Licensed Software. Loading of the DockMaster software does not include data migration, data entry, Visual Marina configuration, delivery of custom forms and reports, delivery and verification of handheld devices requiring additional set-up, and credit card verification using applicable payment processor integration. DockMaster shall be responsible for installation, which shall be completed per the time period outlined in the Order Form. Client acknowledges that DockMaster’s ability to perform installation-related services is dependent upon Client’s timely and complete provision and access to all necessary personnel, equipment and facilities and Client’s failure or delay in providing or making available these items to DockMaster will result in delays in the installation and additional fees being due and payable to Valsoft Corporation Inc. for costs associated with rescheduling installation or delays.
- d. Support. During the Agreement Term, DockMaster shall render services, as defined in Exhibit C to this agreement, in support of the DockMaster Operations software subject to the compensation described on the attached Order Form (collectively the “Support Services") and the terms defined in the Fee and Payment section.
2. Restrictions on Use.
Client may not (i) sell, resell, share, lease or make the Services, or any portion thereof, available to any third party, (ii) create internet “links" to the Services or “frame" or “mirror" any portions of the Services on any other server or wireless or internet-based device (iii) access the Services in order to create a copy, derivative work of, reverse engineer, reverse assemble, disassemble or decompile the Services or otherwise attempt to discover any source code, modify the Services in any manner or form, or use unauthorized modified versions of the Services, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service (iv) otherwise use the Services in any manner that exceeds the scope of use permitted under an Order Form or this Agreement. In addition, Client may not use the Services to (a) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material (b) send or store computer viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs (c) interfere with or disrupt the integrity or performance of the Services or the data contained therein or (d) attempt to gain unauthorized access to any DockMaster computers. Client shall, at all times, comply with all applicable laws in using the Services. Client shall not remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Services. Client grants DockMaster or its agent the right to audit its use of the Services and provide access to the Computer Server or other servers, as applicable, and all books and financial records related to Client’s use of the Services to ensure compliance with this Agreement. Upon DockMaster’s written request, Client will certify in writing to DockMaster its compliance with the terms and conditions of this Agreement on an annual basis.
3. Fees and Payments.
- a. Payment Terms. In consideration of the Services provided by DockMaster, Client agrees to pay the fees set forth in the Order Form (the “Fees"). DockMaster shall invoice Client according to the terms of the Order Form. All invoices are due and payable in full no later than thirty (30) days after the date of invoice. Support Services fees are due in advance on the first day of the month. Late invoices are subject to interest of 1.5% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection. DockMaster reserves the right to suspend and/or terminate access to the Services and/or revoke the license granted under Section 1(b) if any Fees (including but not limited to the monthly support fee) payable hereunder are past due and Client fails to cure such non-payment within ten (10) days of receipt of written notice from DockMaster. Such a suspension of Services and/or revocation of the license granted under Section 1(b) shall not relieve Client from its obligation to pay all amounts due under this Agreement.
- b. Calculation of Fees. Client acknowledges that the Fees payable by Client are based on options selected by Client and listed on the Sales Proposal. Additionally, Client acknowledges for Hosted Services the monthly SaaS Rate shall be guaranteed for the first year. Dockmaster Software reserves the right to increase the SaaS Rate no more than 3% annually after the first year.
- c. On-site Services. If DockMaster performs the Services on-site, Client shall pay actual travel, living and out-of-pocket expenses reasonably incurred by DockMaster. If DockMaster is unable to resolve an Error by remote access within a reasonable period of time, then DockMaster, at its option, may send personnel onsite to resolve the Error.
- d. Taxes. Fees and all other amounts mentioned in this Agreement do not include any sales, property, use, value added or ad valorem taxes based upon this Agreement or any Services (collectively “Taxes"), all of which shall be paid by Client. In the event that DockMaster is required by applicable law to pay or remit such Taxes, Client shall reimburse DockMaster. Client shall not pay for taxes on DockMaster’s net income.
4. Client Data.
For Hosted Services, it is DockMaster’s practice to make tape backup copies (or some other form of archival media) of the Client Data in Client’s account and to store and maintain such data for 7 days (unless legally required to maintain such Client Data longer). Subject to the terms and conditions of this Agreement, Client grants DockMaster a limited non-exclusive non-transferrable (except in connection with an assignment permitted under Section 13(a) herein) license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Client Data to the extent necessary to provide the Services to the Client and for approximately 30 days after termination of the Services for the sole purpose of storing backup Client Data at DockMaster’s offsite storage facility. Subject to the terms of this Agreement, DockMaster agrees that, as between Client and DockMaster, Client Data shall at all times be considered property of Client. Client is solely responsible for Client Data and will not provide, post or transmit any Client Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity or privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, or surreptitiously intercept or expropriate any system, data or personal information.
As between the parties, DockMaster (and its licensors, where applicable) will retain all right, title and interest in the Services, report formats generated by the Services and all DockMaster Confidential Information, as well as any revisions, modifications, enhancements and derivative works thereof (together with the intellectual property rights therein). DockMaster retains all rights not expressly granted herein to Client hereunder.
6. Third Party Web Sites, Content, Products and Services.
The Services may enable the Client to link to, transmit Client Data to, or otherwise access, other Web sites, content, products, services, and information of third parties. DockMaster does not control and is not responsible for such Web sites or any such content, products, services and information accessible from or provided through the Services, and the Client shall bear all risks associated with access to and use of such Web sites and third party content, products, services and information (including integration of third party online applications into the Services). Client acknowledges that DockMaster is under no obligation to monitor or correct third party content, however, DockMaster reserves the right to take remedial action if any such content violates this Agreement, including the removal of, or disablement of access to, such content. Client acknowledges that the nature, type, quality and availability of third party content and features of the Services that interoperate with third parties depend on continuing availability of such third parties’ applicable programming interfaces (“APIs") for use with the Services. DockMaster may update, change or modify the Services under the Agreement or the Order Form as a result of a change in, or unavailability of, such third party content or APIs. If any third party ceases to make its third party content or APIs available on reasonable terms for the Services, as determined by DockMaster in its sole discretion, DockMaster may cease provided access to the affected third party content or third party services. Any changes to third party content, third party services or APIs, including their availability or unavailability, does not affect the Client’s obligations under this Agreement or the Order Form.
The term “Confidential Information" shall mean any and all information which is disclosed by either party to the other verbally, electronically, visually, or in a written or other tangible form which is either identified or should be reasonably understood to be confidential or proprietary, including but not limited to this Agreement and the terms, conditions and pricing contained herein. DockMaster’s Confidential Information includes, but is not limited to, DockMaster’s proprietary technology, DockMaster trade secrets, computer programs, software, formulas, data, designs, know-how, inventions, techniques, marketing plans, documentation, strategies, and forecasts. Client’s Confidential Information includes, but is not limited to, Client Data, financial data, personnel records, marketing information and any other data or information in any form relating to the business affairs of Client. “Confidential Information" does not include information of the other party that is (i) publicly available, (ii) already in such party’s possession and not subject to a confidentiality obligation, (iii) obtained by such party from third parties authorized to make such disclosure, or (iv) independently developed by such party without reference to or use of the other party’s Confidential Information. Each party agrees that it will not disclose the other party’s Confidential Information to any third party, except as authorized by this Agreement. Each party agrees that it will disclose Confidential Information of the other party only to those of its employees and contractors who need to know such information and who have previously agreed to be bound by the non-disclosure terms and conditions of this Agreement. Each party agrees that it will treat all Confidential Information of the other party with the same degree of care as it accords its own Confidential Information; each party represents that it exercises reasonable care to protect its own Confidential Information. No violation of this Section shall occur by reason of a disclosure of Confidential Information in response to a valid order by a court or other governmental body, provided that the party subject to such order provides the other party with commercially reasonable prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information, and provided that the party subject to such order has been advised by counsel that such disclosure is required by law.
8. Term and Termination.
- a. Term. This Agreement shall remain in effect for the Initial Term, subject to subsections 9(b) and 9(c) below. Upon completion of the Initial Term, this Agreement shall renew for additional 12 month periods (each, a “Renewal Term") unless either party provides written notice to the other party, at least one hundred twenty (120) days prior to the expiration of the then-current term, of its intention not to renew this Agreement.
- b. Termination of the Agreement for Convenience. Client may terminate this Agreement, subject to an early termination fee, by giving written notice delivered in the 30-day period ending 30 days before (i) the first 12 month anniversary, or (ii) the 24 month anniversary of the Date of Contract. Client may not otherwise terminate Support during the term of this or any renewal Agreement. If Client chooses to terminate this Agreement at the first 12 month anniversary, client shall pay an early termination fee equal to 20% of Initial Terms’ worth of Support fees. If Client chooses to terminate this Agreement at the 24 month anniversary, client shall pay an early termination fee equal to 10% of Initial Terms’ worth of Support fees. In both cases, the Initial Terms’ worth of Support fees for the early termination fee calculation will be calculated as the maximum number of licensed users at any point during the term multiplied by the average Support fee per license in effect at the date of the termination notice.
- c. Termination of Licenses for Convenience. Client may add licenses at then current prices during the Agreement term, and Client may also remove licenses during the term. However, client may not drop the number of supported licenses below 80% of the initial number of licenses in the Agreement. If the calculation of 80% of the initial number of licenses yields other than a whole number, round up to the nearest whole number of licenses if the resulting 80% figure ends with “.51" or greater, and round down to the nearest whole number if it ends with “0.50" or less. The minimum number of Supported licenses is four (4), meaning no Client can drop below four (4) licenses.
- d. Termination with Cause. Either party may terminate this Agreement upon written notice to the other party if the other party defaults in the performance of any of its material obligations under this Agreement (except for a default in payments by Client), which default has not been substantially cured within thirty (30) days after written notice has been given to the defaulting Party specifying the default. DockMaster may suspend access to the Services in the event it reasonably believes Client to be in violation of Section 2.
- e. Termination for Nonpayment. If Client defaults in the payment when due of any amount due to DockMaster and does not cure such default, within ten (10) days after written notice has been given to Client, DockMaster may terminate the Agreement.
- f. Effect of Termination. Upon termination or expiration of this Agreement for any reason, each party shall return to the other party all property (including but not limited to any Confidential Information) of the other party in its possession or control. DockMaster will immediately cease performing all Services, the license granted under Section 1(b) shall be revoked, and all Client and Authorized User access to the Services shall be immediately terminated.
- g. Survival. The following provisions shall survive the termination or expiration of this Agreement: Section 2 (“Restrictions on Use"), Section 3 (“Fees and Payments"), Section 5 (“Ownership"), Section 7 (“Confidentiality"), Section 8 (“Term and Termination"), Section 9(b) (“Disclaimer of Warranty"), Section 9(c) (“Internet Disruption"), Section 10 (“Limitation of Liability"), Section 13 (“General Provisions") and Section 14 (“Definitions").
9. Limited Warranties and Disclaimer of Warranty.
- a. Performance Warranty. DockMaster warrants that the Services will conform in all material respects to the specifications contained in the Order Form, and that the Services shall be provided in a workmanlike and professional manner by competent personnel. Client’s sole remedy for breach of the foregoing warranty will be for DockMaster to use commercially reasonable efforts to re-perform the applicable Services at no additional charge to Client.
- b. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, NEITHER DOCKMASTER NOR ITS SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Without limiting the generality of the foregoing, DockMaster does not warrant that (i) the Services will operate in combination with other hardware, software, systems or data not provided by DockMaster, except as expressly specified by DockMaster in such Order Form, (ii) that the operation of the Services will be uninterrupted or error free or (iii) that the Services will meet Client’s requirements. DockMaster will have no obligation under Sections 9(a) or 9(b) if any non-conformance or failure of, or error in, the DockMaster Services is caused by: (i) any modification of the Services by any person other than DockMaster or its agents, (ii) the use or attempted use of any software, hardware, attachment, feature or device other than that supplied by and/or approved by DockMaster, (iii) failure of Client to provide any information, data, support or assistance required under this Agreement or otherwise necessary for DockMaster to perform its obligations hereunder, (iv) failure of Client to meet the DockMaster software minimum system requirements (as may be updated from time to time), or (v) any use of the Services that is not in accordance with this Agreement, the Order Form or related documentation provided by DockMaster.
- c. Internet Disruption. CLIENT’S ACCESS TO THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS OR OTHER DISRUPTIONS INHERENT TO USE OF THE INTERNET. IN NO EVENT SHALL DOCKMASTER BE LIABLE FOR ANY DAMAGES (WHETHER IN CONTRACT OR IN TORT) ATTRIBUTABLE TO THE PUBLIC INTERNET INFRASTRUCTURE OR CLIENT’S ABILITY TO CONNECT TO THE INTERNET.
10. Limitation of Liability.
NEITHER PARTY TO THIS AGREEMENT SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (UNDER ANY THEORY INCLUDING BUT NOT LIMITED TO NEGLIGENCE, CONTRACT OR STRICT LIABILITY), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL DOCKMASTER’S TOTAL CUMULATIVE LIABILITY RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID TO DOCKMASTER BY CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT CLIENT MAY HAVE AGAINST DOCKMASTER WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
DockMaster shall at its own expense defend, or at its option settle any third party claim or action against Client of DockMaster to the extent alleging that the Services, when used by Client as provided in this Agreement, infringe a third party United States patent, copyright, trade secret or trademark, and DockMaster shall pay all costs (including reasonable attorney’s fees) arising therefrom and damages finally awarded against Client or paid in settlement by DockMaster thereof. DockMaster’s indemnification obligations under this Section are conditioned upon Client giving DockMaster: (a) prompt written notice of such claims; (b) reasonable assistance in defending the claim; and (c) sole authority to control the defense of such claim. DockMaster may, at its option and expense, and as Client’s exclusive remedy hereunder (i) replace the Services, without additional charge, with a functionally equivalent and non-infringing product; (ii) modify the Services to avoid the infringement; (iii) obtain a license for the Client to continue use of the Services at no additional charge to Client or (iv) cease providing the infringing portion of the Services and refund to Client a portion of the Fees paid for the infringing Services (as determined by DockMaster). DockMaster shall have no liability for (1) any third party claims arising from or caused by any use of the Services that is not in accordance with this Agreement, (2) any use of the Services with other programs, data, equipment or documentation not provided by DockMaster or (3) compliance with Client’s designs, specifications or instructions or for any Client Data. The indemnification rights of Client pursuant to this Section shall be the exclusive remedy of Client against DockMaster with respect to any infringement claims related to use of the Services.
Client acknowledges that the Services provide access to software and technology that may be subject to United States export controls. Client agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Services or any technical information about the Services, without fully complying with the United States Export Administration Act, any regulation thereunder, and any applicable similar law or regulation.
13. General Provisions.
- a. Assignment. Client may not assign its rights or delegate its duties hereunder without DockMaster’s prior written consent. This Agreement shall be binding on each party’s successors and permitted assignees.
- b. Subcontract of Services. Client agrees that DockMaster may subcontract certain portions of the Services to be performed by affiliates or other third parties in connection with this Agreement, provided that no such arrangement shall relieve DockMaster of any of its obligations hereunder.
- c. Change in Services. DockMaster has the right to change, modify, and otherwise convert the technology used to provide the Services and terms under which the Services are offered, provided that the basic functionality and quality of the Services will not be materially affected.
- d. Force Majeure. Except as otherwise provided, if performance hereunder (other than payment) is interfered with by any condition beyond a party’s reasonable control, including, but not limited to disruption of Internet access or services, the affected party, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such condition.
- e. Governing Law; Venue; Arbitration. This Agreement is made and shall be governed by and construed in accordance with the laws of the State of Florida, excluding its choice of law principles. Exclusive jurisdiction and venue of any actions connected with this Agreement shall be submitted to confidential arbitration in Palm Beach County, Florida except that, to the extent DockMaster determines in its sole discretion it is prudent to do so, DockMaster may seek injunctive or other appropriate relief in the state or federal courts residing in Palm Beach County, Florida. Arbitration shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
- f. Independent Contractors. The parties are independent contractors, and no agency, partnership, franchise, joint venture, or employment relationship is intended or created by this Agreement. Neither party shall make any warranties or representations on behalf of the other party.
- g. Notice. All notices shall be in writing and sent by regular mail, certified mail, overnight courier, facsimile (if confirmed by mail), or delivered personally to the addresses indicated on the most recent Order Form executed by the parties, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party. Notice will be effective on the date shown on the delivery receipt or facsimile confirmation or, in the case of regular mail, actual receipt.
- h. Non-Solicitation. Client shall not during the Term and for a period of one year following its expiration or termination, directly or indirectly, solicit, recruit, employ, retain or hire, either as an employee, agent, subcontract or independent contractor, any employee of DockMaster without DockMaster prior written consent.
- i. Severability. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
- j. No Third Party Beneficiaries. DockMaster and Client agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement.
- k. Publicity. Neither party shall issue publicity or general marketing communications concerning the other party without such other party’s prior written approval.
- l. Entire Agreement; Modification; Waiver. This Agreement (including any attachments) sets forth the entire understanding and agreement of the parties, and supersedes any and all oral or written agreements or understandings between the parties, as to the subject matter of this Agreement (for avoidance of doubt, the foregoing includes any legacy DockMaster products). No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement will be valid or binding on either party unless the same is mutually agreed to in writing by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. The terms and conditions of any Order Form issued by Client in connection with this Agreement that are inconsistent with the terms and conditions of this Agreement shall not be binding and shall not be deemed to modify this Agreement unless agreed to in writing by an authorized representative of DockMaster.
- a. “Authorized Users" means the named employees or contractors of Client or a Client Affiliate authorized to use the Services pursuant to an Order Form and whose identity has been reported in writing to DockMaster (and in the case of contractors are not competitors of DockMaster).
- b. “Client Affiliate" means any legal entity that Client controls through Client’s beneficial ownership of more than 50% of the voting interests in that entity.
- c. “Client Data" means any data, information or other materials of any nature whatsoever, provided to DockMaster by Client in the course of implementing and/or using the Services.
- d. “Computer Server" means the single computer server supplied by the Client on which the licensed software is installed for use, as designated to Client.
- e. “Emergency Hours" means all times other than Normal Working Hours.
- f. “Initial Term" means the period indicated as the Initial Term in the first Order Form executed by DockMaster and Client.
- g. “Normal Working Hours" means Monday through Friday from 8:00 am to 7:00 pm, Eastern Standard Time.
- h. “Services" means the Hosted Services or the Premise Services, as applicable, subscribed for by Client on an Order Form, together with any documentation, tools, utilities, methodologies, specifications, techniques or other materials or know-how related thereto.
- i. “Order Form" means each ordering document, which when executed by authorized representatives of both Client and DockMaster entered into in connection with this Agreement.
IMPLEMENTATION / TRAINING Services
INSTALLATION & SETUP
DockMaster System Requirements are included in Exhibit B. Client should make a network administrator or service provider available to review the requirements and have them contact DockMaster with any questions. Once the Client’s network is configured properly, DockMaster will download the software. Then DockMaster’s installation staff will then load the database and software with a remote connection to Client’s server for Premise Services. DockMaster will then work with Client’s system administrator or service provider to configure the workstations to connect to the server properly.
Once the software is installed, DockMaster’s Implementation team will send a specialist for a Pre-Implementation Visit to check the network and software installation and prepare Client’s system and staff for the upcoming training. The training staff and Support Center will also work with Client’s key personnel for the first few weeks over the phone and Internet by assisting them in becoming familiar with basic functions of the system and doing initial data entry. Any future server migration(s) after initial software of installation will be a billable charge at the current rate in place at that time.
A detailed description and timeframe for installation, set-up and training is included in the Implementation Plan provided.
DATA CONVERSIONS & IMPORTING
DockMaster shall convert data for customers, boats, boat slips, vendors and parts inventory for a specified fee as follows: If Client provides the data in Tab Delimited or Fixed Length ASCII file format in the record layout provided by DockMaster, DockMaster will convert this data at no additional fee. If Client is unable to provide the data in the layout provided by DockMaster, DockMaster will quote Client a fee for the conversion after review of the data and file format. The files DockMaster is able to convert includes the following: Customers, Customer Boats, Vendors, Parts Inventory, Slips, Operation Codes, Billing Codes, and beginning A/R balances. DockMaster will not convert transaction or accounting files from other systems. DockMaster will perform a single conversion of each of the data files listed above. Any data conversion re-work caused by data-related issues will be done at DockMaster’s normal billing rate.
CONSULTING & TRAINING
The implementation services list in the Order From includes on-site consulting and training at Client’s facility (travel expenses not included and will be billed separately). A DockMaster professional provided by DockMaster with several years of experience with DockMaster will work with Client’s staff to provide them the necessary tools to implement the system.
Additional on-site training is available and will be billed at DockMaster’s normal billing rate plus expenses. The amount of additional on-site training needed, if any varies from company to company.
DockMaster has regularly scheduled On-Line Training classes for the users who wish to enhance their knowledge of the system, as well as related business processes. There are several training packages for purchase at different price levels. Please contact DockMaster for further information.
Customization that is unique to Client will be made available and billable at DockMaster’s current hourly rate. If the Client requests modification to the software, DockMaster may elect to add the feature at no charge to Client. All customization quotes are given in the form of a time-and-materials estimate.
The DockMaster system includes many standard form layouts for statements, invoices, receipts, work orders, estimates, purchase orders, storage contracts, and other documents. Client will receive 10 forms with Boat /Unit Sales module. Client must submit all forms no later than 60-days after “go live". Client has the option to purchase additional forms in bundles of 10 for $3,000 or 5 for $1,750 or individually.
Additional forms or any modifications to the standard forms requested by Client after “go live" date will be billed by DockMaster at the then current billing rate (currently $95/hr.) for standard layout changes and for customizations requiring DockMaster’s development staff (currently $125/hr.). Any form(s) purchased after “go live" date must be submitted within 90 days of purchase.
DockMaster will offer the loading and use a standard chart of accounts designed for the marine industry. If Client agrees to use DockMaster’s standard chart of accounts, DockMaster will automatically create our default set of financial statements. If Client chooses to provide its own chart of accounts, DockMaster will provide basic training on creating and customizing financial statements. If preferred, DockMaster will quote a price to create or customize financial statements.
Section 1. Definitions
- 1.1 “Updates" shall mean any modifications or revisions to the DockMaster software that correct Errors or add new minor features.
- 1.2 “Errors" shall mean documented and reproducible errors caused by incorrect operation of the computer code of the DockMaster software, or an incorrect statement that produces incorrect results or causes incorrect actions to occur.
- 1.3 “Enhancements" shall mean the changes or additions, other than Updates to the DockMaster software that add significant new functions or substantially improved performance thereto by changes in system design or coding.
- 1.4 “Normal Working Hours" shall mean the hours between 8A.M. and 7P.M. EST on the days Monday through Friday, excluding regularly scheduled holidays of DockMaster.
- 1.5 “Emergency Hours" shall mean those hours outside Normal Working Hours in which DockMaster will respond to emergency calls made to DockMaster’s alternative support number, which shall be the hours of 7P.M. and 10P.M. EST Monday through Friday and 8A.M. to 10P.M. EST Saturday, Sunday, and Holidays.
- 1.6 “Call Center" shall mean DockMaster’s support center capable of receiving telephone, facsimile, or electronic mail operator reports of Errors and operator inquiries as to Client’s use of the DockMaster software in accordance with the on-line user documentation.
- 1.7 ‘Services" means collectively the services described in Section 2.1 of this Exhibit.
- 1.8 “Software Agreement" shall mean the Master Services Agreement executed by DockMaster and Client with respect to the granting of the use to the DockMaster software.
Section 2. Scope of Services.
- 2.1 During the Agreement Term, DockMaster shall render the following services in support of the DockMaster software during Normal Working Hours and Emergency Hours, as applicable, subject to the compensation described in the Order From (collectively the “Services").
a. DockMaster shall maintain the Support Center during Normal Working Hours.
b. DockMaster shall maintain a telephone hot line to the Support Center during Normal Working Hours and a mobile phone number to be monitored by DockMaster’s personnel during Emergency Hours. Such telephone hot-line and mobile phone shall be made available only to the two points of contact designated by Client.
c. DockMaster shall maintain a trained staff capable of rendering the maintenance and support services set forth in this Section 2.1.
d. DockMaster shall be responsible for using all reasonable diligence in correcting Errors when reported to DockMaster in accordance with DockMaster’s standard reporting procedures.
e. DockMaster shall provide Client with Updates via the internet or downloads when DockMaster makes such Update generally available to its customers at no additional charge. All Updates provided by DockMaster under this Support Services shall be treated as “DockMaster software" for purposes of this Exhibit and the Master Services Agreement. f. DockMaster shall use reasonable efforts to maintain the Support Level Standards set forth on Attachment 1 to this Exhibit, which may be amended by DockMaster from time to time and posted on the DockMaster’s website.
- 2.2 Any services provided by DockMaster outside the scope of the Services shall be provided at DockMaster’s discretion subject to Client’s payment of supplemental charges at DockMaster’s then current hourly rates. Such services outside the scope of the Services shall include without limitation any service attributable to: (a) modification, reconfiguration or maintenance of the DockMaster software by any person other than DockMaster; (b) any factor outside of DockMaster’s reasonable control, including without limitation catastrophes, Client’s negligence, operator error and environmental conditions; (c) any use of the DockMaster software on equipment other than the Computer Server on which the DockMaster software is originally installed; or (d) any hardware, whether or not recommended or delivered by DockMaster, or other software not supplied by DockMaster.
- 2.3 DockMaster, in its reasonable but sole discretion, shall consider and evaluate the development of Enhancements suggested by Client and shall respond to Client’s request for additional services pertaining to the DockMaster software (including, without limitation, data conversion and report formatting assistance), provided that such assistance, if agreed to be provided, shall be subject to Client’s payment of supplemental charges at DockMaster’s then current hourly rates.
- 2.4 DockMaster will only provide the Services under this Support Agreement during Normal Working Hours or Emergency Hours, as applicable, for (a) the then-current version of DockMaster software, and (b) the immediately preceding version of the DockMaster software for a period of six (6) months following the release of the then-current version of the DockMaster software.
SUPPORT LEVEL STANDARDS
DockMaster Software will use commercially reasonable efforts to make the Included Products and Services each available with a monthly uptime percentage of at least 99%. This will account for planned and announced database maintenance and operating system updates. Issues come into DockMaster Support (a.k.a. Help Desk) via phone, fax, e-mail and the internet portal. Each issue will be given a Service Ticket (ST) number. The ST will be used by all parties involved to refer to and track the issue.
We assign a priority level to a call or issue when we receive it based on “Impact" and “Severity". The four levels include:
Priority 1 – Emergency Response
This is often referred to as a “down system". This priority is assigned to calls that render the system “non-operational" or a fatal condition that precludes all useful work from being done. For example when users can’t log in or the system has crashed. This level is also assigned to calls that impact an end-users ability to complete a point of purchase transaction or provide a customer with an invoice or receipt. It also includes calls that corrupts or impacts data and there is no known work around. These are the only types of calls we will handle during “Emergency Hours" or from 7P.M. and 10P.M. EST Monday through Friday and 8A.M. to 10P.M. EST Saturday, Sunday, and Holidays.
NOTE: To receive Priority 1 support, the user must call our support line first.
If they are unable to speak with a support tech in person, they should leave a message and then send an e-mail or log a call via the support portal as a secondary measure.
Priority 2 – Quick Response
This priority is assigned to calls that require a quick response to meet an end-users impending deadline or a condition that substantially impacts production tasks. It also pertains to calls whereby data gets destroyed and/or corrupted, but a known work around is in place to avoid further data issues.
Priority 3 – Normal Response
This priority is assigned to calls that are important but that do not require a quick response. An example of this are calls that cause minimal or cosmetic deficiencies.
Priority 4 – Scheduled Maintenance
This priority is assigned to calls that require software updates, scheduled maintenance, configuration, the addition of data accounts, moving a system from one server to another, etc. These services may be billable at our standard hourly rates.
The matrix below indicates how issues are classified given their level of Severity and Impact:
|Response Matrix||High Severity||Medium Severity||Low Severity|
|High Impact||Priority 1||Priority 2||Priority 3|
|Medium Impact||Priority 2||Priority 3||Priority 3|
|Low Impact||Priority 3||Priority 3||Priority 3|
Response and Resolution Goals:
- – Initial response within thirty (30) minutes of notification during Normal Working Hours or Emergency Hours.
- – Implementation of a work-around as quickly as possible.
- – Implementation of a full resolution within four (4) hours of notification such that the problem is no longer a Priority 1 issue.
- – Hourly telephone or e-mail updates (whichever method is acceptable to the end-user) until resolution
- – Telephone or e-mail notification (whichever method is acceptable to the end-user) on resolution of the problem
- – Summary of problem within twenty-four (24) hours of resolution needs to be annotated in the ST and made available to the end-user either via e-mail or internet portal.
- – Initial response within two (2) hours of notification during Normal Business Hours
- – Implementation of a resolution within eight (8) hours of notification such that the problem is no longer a Priority 2 issue. Resolution may be either a full resolution or a workaround that will become a full resolution in a future release.
- – Telephone notification on resolution of the problem
- – Summary of problem within twenty-four (24) hours of resolution needs to be annotated in the ST and made available to the end-user either via e-mail or internet portal.
- – Initial response within one (1) business day of notification during Normal Business Hours.
- – Implementation of a work-around or full resolution within ten (10) days of notification such that the problem is no longer a Priority 3 issue
- – Summary of problem within ten (10) days of resolution needs to be annotated in the ST and made available to the end-user either via e-mail or internet portal.