The following Terms and Conditions (“Agreement”) govern the maintenance and support (M&S) offered by Concordia Publishing House (“CPH”), ordered, and paid for by you (“You” or “Customer”):
1. Maintenance. Maintenance consists of updates, upgrades, bug fixes and new releases of valid Shepherd’s Staff Software (“Licensed Software”) when CPH, through Concordia Technology Solutions, makes them available to all its customers. All maintenance deliveries are subject to the applicable End User License Agreement (“EULA”) for the Licensed Software.
2. Support.
a) Support entitles Customer to assistance with the Licensed Software via CPH’s published telephone number, and/or via email. Support is currently available on business days Monday through Friday, 7:30 a.m. until 5:00 p.m. CST. Telephone support requests are CPH’s top priority. However, during times of heavy volume, Customer may expect a short wait for a call to be answered or be requested to leave a message. CPH strives to respond to telephone messages, emails and fax request within one business day.
b) CPH will attempt to answer Customer’s specific questions. However, Support is offered on a good faith, diligent effort basis only, and CPH may not be able to resolve every request for Support. Support is provided for ongoing use of the Licensed Software. It is not intended to be a substitute for training or professional services necessary for implementation or system redesign of the Licensed Software, which are outside the scope of this Agreement.
c) CPH provides support only for:
(i) Licensed Software;
(ii) All Licensed Software upgrades and relevant documentation issued during this M&S agreement, including service packs and software patches issued between upgrades, which are available through Shepherd’s Staff website or by request; and
(iii) Backup storage on CPH servers (as further described in paragraph 5),
provided, Customer is currently subscribing to Shepherd Staff Maintenance and Support.
d) Unless otherwise stated, Support does not include any of the following:
(i) Supporting database products, including without limits, set-up and alteration and/or configuration of database products, and database or database connectivity software specific errors;
(ii) Resolving network, workstation or environmental errors not directly related to the Licensed Software;
(iii) Supporting or maintaining any external programs, networks, printers or peripheral equipment used in connection with the Licensed Software;
(iv) Supporting any Licensed Software customizations (changes to the Licensed Software made outside of the product’s administration interface);
(v) Supporting any Licensed Software being used in a manner for which it is not designed.
3. Term/Termination.
a) This Agreement will automatically terminate as to each Licensed Software upon termination of the EULA corresponding to such Licensed Software or upon non-renewal of Shepherd Staff’s M&S subscription by Customer. Customer may also terminate this Agreement for convenience at any time but will not be entitled to a refund of any paid fees.
b) If a CPH breach remains uncured more than one month after CPH receives written notice from Customer of such breach, Customer may terminate this Agreement for breach and receive a pro-rata refund of the M&S fees paid to CPH. Any such refund shall be Customer’s exclusive remedy, and CPH’s sole liability, for CPH’s breach of this Agreement.
4. Fees. Customer will be invoiced prior to any initial or renewal Term and agrees to make payments to CPH no later than thirty (30) days from invoice. CPH’s obligations hereunder are subject to Customer’s timely payment, and if CPH does not receive timely payment for products or services provided by CPH to Customer, this Agreement will terminate.
5. Disposition of Data on Termination. Included with Support, is a service to back-up Customer’s Shepherd Staff data on the CPH servers. This is not meant to be Customer’s primary back-up storage. It is Customer’s responsibility to make and maintain adequate on-site back-ups. In no event will CPH be responsible for lost data.
The last Shepherd Staff data backup is retained for a 90-day period following termination of this Support Agreement. Other backups will be kept as follows:
i) Every backup will be kept for one week
ii) The last backup of any given day will be kept for 30 days
iii) The last backup of any given month will be kept for 90 days.
The service provided to Customer by CPH may be terminated under Section 3 above. Customer understands that all data stored by CPH under this Agreement shall be deleted on or after ninety (90) days from the termination date of this Agreement (“Termination Period”). Customer must inform CPH in writing (email: support@cts.cph.org or by mail at 3558 S. Jefferson Ave., St. Louis, MO 63118) prior to the expiration of the Termination Period if Customer wishes to (a) receive a copy of its stored data (“data copy”) or (b) have CPH immediately delete all stored data whereupon such date will no longer be accessible to Customer or CPH. A fee may be accessed in order for Customer to obtain copies of its stored data. Customer’s data will be kept confidential at all times subject to the terms of this Agreement. If CPH does not receive a written request for a data copy, Customer acknowledges and understand that CPH will destroy all Customer’s data files immediately on the expiration of the Termination Period with no liability to Customer. By using the backup service outlined in this M&S Agreement, Customer agrees to release CPH from any and all liability, claims and damages due to lost or stolen data whether or not Customer requests a data copy.
6. Warranty. CPH warrants that the M&S services provided to Customer under this Agreement shall be performed with due care, and in a professional and workmanlike manner. CPH does not otherwise warrant the accuracy or completeness of any services provided pursuant to this Agreement. CPH DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, IN CONNECTION WITH THE SUBJECT OF THIS AGREEMENT.
7. Limitation of Liability. IN NO EVENT, UNDER ANY THEORY OF LAW, SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF, OR RELATED TO THIS AGREEMENT, EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY THEREOF. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CPH’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE PREPAID AND UNUSED PORTION OF YOUR M&S FEES PAID TO CPH. In order to perform some services under this M&S Agreement, CPH may need to employ third-party software to remotely log-on to Customer’s computer. CPH SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY PROBLEMS CUSTOMER MAY EXPERIENCE DUE TO USING THIS THIRD PARTY SOFTWARE.
8. Confidentiality. CPH will use reasonable effort to prevent the unauthorized disclosure of Customer’s confidential information and data. CPH will not seek to decrypt Customer data. CPH, however, will not be responsible for any matter beyond its reasonable control, including, without limitation, unauthorized electronic access of Customer’s confidential information or data.
9. Indemnification. Customer will indemnify, defend, and hold CPH and its affiliates, officers, directors, employees, agents, and third-party service providers harmless from and against any and all claims, demands, causes of action, debts or liabilities (including reasonable attorneys’ fees and expenses) that arise from or relate to (a) Customer’s access or use of the Services, (b) any content that Customer upload, download, store, display, transmit, or distribute through the Services, (c) Customer’s breach of this Agreement, or (d) any action that CPH takes as part of its investigation or cooperation with law enforcement officials or other appropriate authorities regarding suspected inappropriate or illegal activity enabled or carried out through the Services.
10. Severability. If any provision of this Agreement is unenforceable or invalid, such provision(s) shall be amended to achieve as nearly as possible the same economic effect as the original provision(s) and the remainder of the Agreement shall remain in full force and effect.
11. Miscellaneous. Except as expressly set forth herein, this Agreement is a complete statement of the agreement between Customer and CPH, and sets forth the entire liability of CPH and its suppliers, and Customer’s exclusive remedy with respect to Customer’s access and use of the Service. Each party represents and warrants that it has the right and authority to enter into this Agreement. The suppliers, agents, distributors, dealers, licensors and employees of CPH are not authorized to make modifications to this M&S agreement, or to make any additional representations, commitments or warranties binding on CPH. The failure of CPH to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Any waiver of the terms herein by CPH must be in a writing signed by an authorized officer of CPH and expressly referencing the applicable provisions of this Agreement.
12. Governing Law. This Agreement will be governed by Missouri law as applied to agreements entered into and to be performed entirely within Missouri, without regard to its choice of law or conflicts of law principles that would require application of law of a different jurisdiction, and applicable federal law. The parties hereby consent to the exclusive jurisdiction and venue in the state courts in St. Louis, Missouri or federal court for the Eastern District of Missouri.
