UBIWORX™ SUPPORT AND MAINTENANCE AGREEMENT
Rev 1.0 OCT-2016
YOU ACCEPT THIS SOFTWARE AND SERVICE SUPPORT AND MAINTENANCE AGREEMENT (“AGREEMENT”), BY SIGNING (ELECTRONICALLY OR MANUALLY) THIS AGREEMENT OR AN ORDER FOR THE SERVICES THAT REFERENCES OR INCORPORATES THIS AGREEMENT. IF YOU ACCEPT THIS AGREEMENT FOR AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. YOU HEREBY AGREES TO THE FOLLOWING TERMS AND CONDITIONS AND THAT THEY SHALL SOLELY GOVERN THE SUPPORT AND MAINTENANCE SERVICES PROVIDED BY EMUTEX LTD (“EMUTEX”).
Any terms used in this Agreement which are not defined herein shall have the meaning ascribed to them in the ubiworx PaaS License Agreement between the parties.
“Error(s)” means programming errors in the Software in the form provided by Emutex that prevent the Software from substantially conforming to its published specifications.
“Patch(es)” means additional programming code to be integrated with the Software to correct an Error or alleviate its effects.
“Software License Agreement” means the ubiworx PaaS EULA persuant to which Customer initially obtained the applicable Software.
“Source Code” means computer programming code in human readable form that is not suitable for machine execution without the intervening steps of interpretation or compilation.
“Support Term” means the period in which Customer is entitled to receive support and maintenance under this Agreement. The Support Term shall be for the period described in the Order.
“Update” means a modification, correction or addition to the Software or documentation, including updates and enhancements made available by Emutex to its Customers under a support and maintainance agreement without additional charges. The definition of “Update” excludes Upgrades.
“Upgrade” means an enhancement or addition to the Software other than an Update which Emutex does not make generally available to its commercial customers as a part of support and maintenance under a software support and maintenance agreement, but rather is only made commercially available subject to payment of a separate incremental license fee, upgrade charge or as part of a subscription license fee.
“ubiworx Support Network” means Emutex’s ubiworx online support and maintenance web site accessible by a Customer Contact from www.emutex.com.
“Workaround(s)” means a series of instructions, procedural steps or usage clarifications to avoid an Error or circumvent its effects. A Workaround does not involve issuance of new programming code.
2. Scope of the Agreement
This Software and Service Support and Maintenance Agreement (the “Agreement”) sets forth the terms and conditions under which Emutex is willing to provide support and maintenance for its product(s).
3. Support and Maintenance
During the Support Term, and subject to payment of the applicable annual support and maintenance fees and the terms of this Agreement, We shall provide one or more of the following support and maintenance services:
E-Support shall include the following:
a) ubiworx Support Network
Which includes access to the “ubiworx community”, documentation and to all the sections of Our Technical Forum.
b) Updates & Patches
We will make available to You those Updates and Patches which have been published and made generally available via the ubiworx support network.
We will use reasonable commercial efforts to remedy Errors reported by You. Such remedy may consist of corrected portion(s) of the Software, Patches, or communication of a Workaround that gives You the ability to achieve substantially the same functionality as would be obtained without the Error, as determined by Emutex.
d) Live Support for Select Issues
You will have access to live telephone or e-mail support for resolution of non-technical support requests. For all the other requests You are eligible to use the Technical Forum.
3.2. Enterprise Support
Enterprise Support shall include e-Support as described in Section 3.1 above, and live telephone and e-mail support to (i) determine if a problem You are encountering is attributable to an Error and (ii) to assist in resolving Errors reported by You that occur during normal usage of the Service.
4. Limitations on Support and Maintenance Services
The following limitations and restrictions shall apply to all support and maintenance services provided under this Agreement:
a) Business Hours and Language
We shall provide support services only during the normal business hours from 9.00am to 1.00pm and from 2.00pm to 5.00pm of every working days excluding Emutex’s recognized holidays and Irish bank holidays. All support and maintenance shall be conducted in the English language only;
b) Out Of Scope
If You requests, and We agree, to correct any problems or issues not covered by this Agreement, You will be charged for all such work performed as specified in the ubiworx PaaS EULA terms and conditions;
c) No End User Support and Maintenance
We have no obligation to provide any support and/or maintenance services to Your licensees, end-users, customers, or any other third party;
d) Maintenance on Current Versions Only
Updates, Patches and bug fixes are only effective on the latest version of the Software. If Customer has not incorporated all available Updates, Patches and bug fixes to the Software, any subsequently released Patches, Updates or bug fixes may not be effective or usable;
We shall have no obligation to investigate or correct problems (including Errors) that cannot be reproduced by Us based on information provided by You, or that are due to a breach by You of the terms of the Software License Agreement, or that cannot be remedied due either to the operational characteristics of the computer equipment on which the Software is used or to modifications to the Software made by Customer or any third party. We will use commercially reasonable efforts to provide the services under this Agreement; however, You acknowledge that We cannot guarantee that every question, problem, issue or Error reported can or will be resolved. Nothing in this Agreement shall expand or add to the warranty for the Software set forth in the Software License Agreement or any other agreement with Us governing the use of the Software and/or the Service.
5. Customer Responsabilities
The following customer responsibilities and obligations shall apply to all support and maintenance services provided under this Agreement and shall be a precondition for Us to provide any support and maintenance services to You hereunder.
a) Notice and Assistance
You shall notify Us of problems with all relevant information known, and as requested by Us as well as sufficient support and test time on Your computer system to determine if a problem is attributable to an Error and, if applicable, to correct any Errors and determine if an Error has been corrected. Such problem notice must contain sufficient information for Us to reproduce the problem.
Pursuant to Section 3, if You are entitled to receive Updates in accordance with the terms of this Agreement, You shall incorporate the Updates as soon as practicable and acknowledges that failure to incorporate any such Updates may make subsequent Updates and Patches unusable.
You must designate one named contact person (“Customer Contact”) for each current seat license for Software licensed from Us. Only Customer Contacts shall be authorized to submit problem reports pursuant to Section 5(a) above, access ubiworx Support Network and receive Updates, Patches, Upgrades, Workarounds, correspondence and other communications, as applicable, concerning the Software. Customer will notify Us, in writing, of any change in the Customer Contact. In no event shall the number of Customer Contacts exceed the number of current valid seat licenses licensed by You from Us.
d) License; Use Restrictions
Subject to Section 1, You acknowledge that the Updates, Patches and any other software, as applicable, provided pursuant to this Agreement are subject to the terms and conditions of the Software License Agreement.
6. Term and Termination
We shall provide support and maintenance as described in this Agreement only during the Support Term. Either party may elect not to renew a Support Term by giving written notice to the other party at least thirty (30) days prior to the expiration of the then current Support Term of its intent not to renew this Agreement.
b) Termination and Survival
Either party may terminate this Agreement if the other party materially breaches its obligations hereunder and fails to cure such breach within thirty (30) days of the non-breaching party’s written notice thereof (except for breaches of 1, for which there is no cure period). We may terminate this Agreement upon the occurrence of any event which would permit Emutex to terminate the Software License Agreement or any other agreement between We and You. In the event of termination or expiration of this Agreement or any addenda hereto, all fees or charges then due and payable, or to become due and payable in the future based upon services already rendered, shall be immediately due and payable to Us and Your obligations to pay such amounts shall survive the termination of this Agreement or any addenda hereto. The following sections shall survive any expiration or termination of this Agreement or any addenda hereto: Sections 1, 5(d), 6(b), 7, 9 and 10.
7. Fees and Payment
a) Payment Terms
The fees for the support and maintenance are described in the Order. You will pay invoices for the support and maintenance within 30 days of the invoice date unless the Order specifically states otherwise.
b) Late Payment
If You are late in paying an invoice, any sum not paid by You when due shall bear interest from the due date until paid at the lesser of: (i) 10 percent per annum or (ii) the maximum rate permitted by law. In addition, if You are more than 30 days late in paying an invoice, We may suspend the Support and Maintenance service immediately after have sent a written notice to You.
c) Fee disputes
Except where provided by law or as otherwise expressly provided herein or agreed to by Emutex in a separate signed agreement, all Fees are non-refundable. You may withhold amounts that You reasonably and in good faith dispute as to the amounts owed. You will pay any undisputed fees. If You withhold any payment due to a dispute, You must notify Us in writing of any disputed fees within 5 days of the invoice date and provide Us with written details about why You dispute the invoice. After We receive notice of the dispute, We will work with You in good faith to resolve the dispute. If we are unable to resolve the dispute within 30 days, Emutex may terminate your access to the Service immediately after written notice.
Unless otherwise agreed in writing, all Fees are exclusive of applicable sales/use taxes and similar taxes, VAT, tariffs, duties, charges and assessments (“Taxes”). You are solely responsible for timely payment of all Taxes, and will indemnify, defend and hold Emutex harmless from and against claim, suit, proceeding or other action resulting from Your non-payment thereof, together with all related penalties and interest.
8. Proprietary Rights; Use of Source Code
All software delivered under this Agreement (including Updates, Patches, and Upgrades, as applicable) and any modifications thereto shall be owned by Emutex. At Our sole discretion, certain Updates, Patches, and Upgrades, as applicable, may be provided to You in Source Code. Emutex hereby grants Customer a restricted, personal, non-transferable, non-exclusive, internal-use license to use and modify the Source Code provided in an Update, Patch or Upgrade, as applicable, solely to the extent necessary to remedy any Error and to incorporate the Update, Patch, or Upgrade, as applicable, into the Software as specified by Emutex. Customer acknowledges and agrees that: (i) except as set forth above, the use of such Source Code shall be in strict accordance with the terms and conditions of the ubiworx PaaS EULA; (ii) that such Source Code is Confidential Information and must be treated accordingly. Customer acknowledges that Emutex has no obligation to provide, and You have no right to receive, the Source Code for the Software or any Update, Patch, or Upgrade, as applicable.
EMUTEX AND ITS AFFILIATES PROVIDE NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS RELATED TO THE UPDATES, PATCHES, UPGRADES, WORKAROUNDS OR ANY SERVICES, MAINTENANCE SERVICES OR SUPPORT THAT MAY BE PROVIDED HEREUNDER.
10. Limitation of Liability
EMUTEX AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF EMUTEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EMUTEX’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID TO EMUTEX BY CUSTOMER HEREUNDER FOR THE THEN-CURRENT SUPPORT TERM.