Overview

“Customer” or “Customers” refers to the individual or entity that has licensed TOA software and ordered TOA Software Support & Software Maintenance Services from TOA or a TOA authorised VAR.

“TOA Software Support & Software Maintenance Services” refers to the TOA Software Support and Software Maintenance Services as described herein.

“Products” or “Product” refer to the Software and Hardware products/appliances developed and licensed by TOA.

“Software” refers to either standard or customized Software provided and licensed by TOA as a perpetual or temporary license to the Customer and/or an authorised TOA VAR.

“Premium Solutions” refer to all TOA Products (Software) that are Client-Server based. “Lite Solutions” refer to TOA Single (self-contained) Application Products (Software) for macOS only, with a dedicated Upgrade license policy.

“Certified Hardware” refers to supported Apple hardware or TOA Linux appliances and video I/O or network devices from supported vendors as listed in the TOA User Manuals covering and describing the related Product(s). TOA will not be liable for any failure of the Products to operate with any hardware, software or operating system except the ones specified or for any degradation in performance or reduction in functionality caused using the Products with any other equipment, software or operating system not listed as being supported in the TOA User Manuals.

“Machine ID” refers to the Hardware Machine Identifier required to issue a permanent or temporary TOA License activation code.

“Customer’s Technical Support Contacts” refers to named technical support contacts that are authorised Customer technical contacts or external technical contacts that have been authorised by the Customer to file support tickets or provide internal support in connection with TOA Products in use.

“LOD” refers to the Letter of Destruction process to transfer a license from a previously activated Machine ID to another Machine ID in the event of hardware replacements.

If Customer subscribes to TOA Software Support & Software Maintenance services and wages the Annual TOA Software Support & Software Maintenance fee, TOA shall provide the following TOA Software Support & Software Maintenance services:

• Annual Software Support & Software Maintenance Fee: The initial purchase includes the first (1) year of TOA Software Support and Software Maintenance services for Products (Software) licenses only!
  
  
• To be eligible for TOA Software Support & Software Maintenance Services as described herein, TOA Products (Software) must be properly licensed from TOA.
  
  
• Customer shall have unlimited secure access to TOA’s dedicated on-line support facility on TOA’s website at https://support.toolsonair.com to create support tickets or file feature requests.
  
  
• TOA will provide Customer with TOA Software Support Services to a targeted number of five (5) named technical support contacts (“Customer’s Technical Support Contacts”).
  
  
• Requests for TOA Software Support Services will only be accepted from the Customer’s Technical Support Contacts via a support ticket created on the TOA support website or by other electronic meanings mutually agreed between Customer and TOA.
  
  
• TOA Software Support services shall only be provided to Customers with a valid and active TOA Software Support & Software Maintenance contract pertaining to the specific Product(s) for which they have purchased licenses and support is required.
  
  
• Only Customers with a valid an active Basic Software Support & Software Maintenance contract will be entitled toprocess “LODs” (Letter of Destruction) and only for Machine IDs that are currently under maintenance.
  
  
• For the avoidance of doubt, the TOA Software Support and Software Maintenance contract does not cover third-party hardware, additional or extensive TOA and third-party customisations and installations or requests for and provision of ad-hoc consulting and training.
  
  
• Hardware support is provided for TOA hardware appliances only. Support for any other hardware such as Apple computers, video or network devices, third-party storage solutions or related devices is provided by the respective hardware vendor(s) through separate agreements between Customer and third-party vendor. Requests for project consulting and training may be scheduled accordingly with the TOA Professional Services team and will be quoted and charged separately.
  
  
• TOA Support Services shall only be provided for incidents/issues that are demonstrable in the supported release(s) of TOA Products (Software) running unaltered on supported and certified hardware and I/O video devices (“Certified Hardware”) as specified in the TOA User Manuals and where a TOA Software Support & Software Maintenance Agreement is in effect.
  
  
• TOA reserves the right to deny service or charge adequate processing fees to Customers without support entitlement.

TOA will provide code corrections as required to correct software malfunctions to bring the Software into substantial conformity with applicable documentation. If Customer encounters a problem in the usage of the software, Customer will provide TOA with sufficient detail to permit TOA to understand and reproduce the issue. TOA will use reasonable efforts to diagnose the issue and if it is mutually determined by Customer and TOA that the issue represents an error in the software that causes it to not operate in substantial conformity with applicable documentation, TOA will use technically reasonable efforts to provide a fix release to Customer. In addition, TOA may, at its sole discretion and occasionally, release fix releases generally available to Customers of TOA Products (Software).

TOA shall provide Customer, at no additional charge, all updates and upgrades for the software to keep the Software current, so long as Customer has a valid and active TOA Software Support & Software Maintenance Agreement in effect. “Updates” mean those minor versions of the Software products that TOA, at its discretion, deems to be logical improvements or extensions to the Software products and that have been released for general commercial distribution. “Upgrades” mean those major versions of the software products that TOA, at its discretion, deems to be logical improvements or extensions to the Software products and that have been released for general commercial distribution.

The provision of Software upgrades, as part of a valid TOA Software Support & Software Maintenance agreement in place, does not include update or upgrade installation services. Professional Services related to software update or upgrade installations will need to be purchased separately. Please contact a TOA representative for detailed information.

TOA Support Times

“Initial response” is defined as the first contact by a TOA support engineer after Customer(s) or VAR (collectively the “Customer”) has submitted a support incident ticket. The initial response does not equate to incident resolution. Regular status updates will be communicated to the Customer if the incident cannot be resolved immediately. Support tickets remain open until confirmation is received that Customer is satisfied with the proposed resolution, or TOA closes the ticket because Customer configuration is outside the defined guidelines.

TOA will respond to requests for Software Support Services between:
08:30 AM (08:30h) and 6:00 PM (18:00h) CET/CEST Monday-Friday (excluding Austrian holidays) via e-mail either direct or generated by the TOA Support System.

TOA highly recommends creating support tickets via the TOA Support System at https://support.toolsonair.com, as all incoming support tickets are regularly monitored by TOA support staff. TOA might require full TeamViewer or other applicable Remote Support software, IPMI or iDRAC (for TOA Appliances) access to the hardware running TOA Products and the provision of the related administrative accounts.

TOA guarantees an initial response time of four (4) hours for normal issues and two (2) hours for Critical/Blocking issues between 08:30 AM (08:30h) and 6:00 PM (18:00h) CET/CEST Monday-Friday (excluding Austrian holidays).

• a) Customer logs a normal issue support request at 1:00 PM (13:00h) CET/CEST on a business Wednesday. The guaranteed latest initial response time from TOA is 5:00 PM (17:00h) CET/CEST the same day.
• b)  Customer logs a normal issue support request at 7:30 PM (19:30h) CET/CEST on a Sunday. The guaranteed latest initial response time from TOA is 12:30 PM (12:30h) CET/CEST on Monday or the next business day.
• c)  Customer logs a normal issue support request at 5:30 PM (17:30h) CET/CEST on a Friday. The guaranteed latest initial response time from TOA is 12:30 PM (12:30h) CET/CEST on Monday or the next business day.
• d)  Customer logs a normal issue support request at 4:30 PM (16:30h) CET/CEST on a business Monday. The guaranteed latest initial response from TOA is 11:30 AM (11:30h) CET/CEST next business day.

PLEASE NOTE: Support Times outside the Standard Support Times need to be agreed separately b between TOA and the Customer (the “Parties”). If there’s no separate Support Times agreement in place between the Parties, TOA reserves the right to separately charge for support services that are requested outside the aforementioned support service business days and hours (08:30 AM and 6:00 PM (18:00h) CET/CEST Monday-Friday, excluding Austrian holidays).

Initial Term/Renewal Policy: TOA shall provide TOA Software Support & Software Maintenance Services under this Agreement for an Initial Term of one (1) year from the initial delivery or invoice date. Subsequent years renew automatically, by meaning of a Quote and Invoice issued to the Customer(s), unless either Party notifies the other of its intent to terminate this Agreement by providing the other Party written notice of termination at least ninety (90) days prior to the end of any term of the Agreement or of any Service period. If this Agreement lapses, Customer(s) may be subject to additional fees before the reinstatement of TOA Software Support & Software Maintenance Services.

Annual Software Support and Software Maintenance Fee (first year): The initial purchase includes the first (1) year of TOA Software Support and Software Maintenance for TOA Products (Software) Premium licenses only!

Annual Software Support and Software Maintenance Fee (second year and beyond): The annual Maintenance & Support renewal fee is 15% of list price in force per year. TOA or a TOA authorised VAR will provide Customer(s) with a renewal reminder within 30 days in advance of the expiration of the then-current term, so that Customer(s) can renew the TOA Software Support & Software Maintenance contract for a further one (1) year period or multiple years period, if so desired. Upon receiving Customer(s)’s order, TOA or TOA authorised VAR shall invoice Customer(s) for the next renewal term.

Reinstatement policy: If the TOA Software Support & Software Maintenance contract has expired, meaning that the provision of TOA Software Support and Software Maintenance Services has been interrupted, and the licensee wishes to reinstate its TOA Software Support & Software Maintenance contract, one of the following related policies shall be applied. Please contact the TOA Sales department for detailed information:

• Non-renewal for up to 1 year after the expiration date: the amount corresponds to the annual TOA Software Support and Software Maintenance fee of 15%, plus a 10% reinstatement charge, for a total of 25% based on the price list in force at the time of re-joining. The purchase order date of reinstatement will be applied as the new contract start date, with a validity of one (1) year.
  
  
• Non-renewal for more than 1 year after the expiration date: the amount corresponds to the annual TOA Software Support and Software Maintenance fee of 15%, plus a 15% reinstatement charge, for a total of 30%, based on the price list in force at the time of re-joining. The purchase order date of reinstatement will be applied as the new contract start date, with a validity of one (1) year.
  
  
• Non-renewal for more than 2 years after the expiration date: the amount corresponds to a 40% flat rate, based on the price list in force at the time of re-joining. The purchase order date of reinstatement will be applied as the new contract start date, with a validity of one (1) year.

One-Time Processing Fee: TOA reserves the right to offer a one-time or per-dedicated case processing fee for out-of- maintenance-related tasks (e.g., single support ticket processing or license transfer) at a fixed net price of EUR 250,00 or USD 250,00 respectively. Kindly contact TOA at (moc.rianosloot@selas) for further details and approval.

Right to Discontinue Software/Appliance Solutions or Modify Services: Customer acknowledges that TOA is entitled to discontinue the manufacture and development of any Products (standalone Software or Hard- and Software appliance) and the TOA Software Support & Software Maintenance Services for the Products including the distribution of older software versions, at any time in its sole discretion, provided that TOA agrees not to discontinue the TOA Software Support & Software Maintenance Services for the Products during the current annual term of the TOA Software Support & Software Maintenance Agreement in effect.

Termination by TOA: TOA Software Support & Software Maintenance Services may be terminated by TOA for:

• Decision of Customer(s) not to remunerate/renew the TOA Software Support & Software Maintenance Services
  
• Abusive or fraudulent use of provided licenses or support services by Customer (s)
  
• Breach of License or of Proprietary Rights.

Termination by Customer: TOA Software Support & Software Maintenance Services may be terminated by Customer for:

• Failure on the part of TOA to honour the contractual assurance for Software Support and Software Maintenance Services, although the authorised services were repeatedly requested in writing on several occasions.

Lite Solutions Support Services: Installation and Configuration Support (“Ready-to-Run”) is a key feature of the just:in mac lite and just:in mac lite NDI licenses and is provided free of charge to customers who purchase a Lite license. Any major Lite release licenses will be available via a dedicated Upgrade License purchase only. Fixes applied to TOA Premium Solutions will also be reflected in TOA Lite Solutions. Lite Solutions are available for the macOS platforms only.

License Crossgrades from TOA Lite Solutions to TOA Premium Solutions are available at a crossgrade charge. Once the crossgrade has been completed, the same TOA Software Support and Software Maintenance terms and conditions for TOA Premium Solutions apply.

Proprietary Rights: The Product(s) (Software) is/are licensed, not sold. All intellectual property rights, including all copyrights and patent rights, in and to the Product(s) (Software) shall, at all times, remain with TOA or its licensors. TOA and its licensors reserve all rights not expressly granted to Customer(s). Physical copies of the software remain the property of TOA. Customer(s) must fully reproduce any copyright or other notice marked on any part of the software on all authorised copies and must not alter or remove any such copyright or other notice.

Governing Law: This Agreement shall be governed by and construed in accordance with the laws of Austria, without egard to its conflict of laws principles.

Dispute Resolution: Any dispute arising out of or in connection with this Agreement shall be resolved amicably through good faith negotiations between the Parties. If the dispute cannot be resolved within ninety (90) days, either party may initiate arbitration proceedings in accordance with the rules of the Vienna International Arbitral Centre (“VIAC”) in Austria.