|
Services Addendum to Terms and Conditions
<br /> Rev. February 13, 2020
<br />Page | 1
<br />Services Addendum to Terms and Conditions
<br />THIS SERVICES ADDENDUM (“ADDENDUM”) INCORPORATES BY REFERENCE THE TERMS AND CONDITIONS, THE
<br />CONTRACT AND THE END USER LICENSE ADDENDUM TO WHICH THIS ADDENDUM IS ATTACHED, REFERENCED, OR
<br />INCORPORATED INTO AND INCLUDES THE FOLLOWING PROVISIONS. IN THE EVENT OF ANY CONFLICT BETWEEN THIS
<br />ADDENDUM, THE TERMS AND CONDITIONS, OR THE CONTRACT, THE CONTRACT SHALL FIRST TAKE PRECEDENCE, AND
<br />THEN ANY APPLICABLE ADDENDA. IN THE EVENT OF ANY CONFLICT BETWEEN THE END USER LICENSE ADDENDUM AND
<br />THIS ADDENDUM, THIS SERVICES ADDENDUM SHALL TAKE PRECEDENCE. TERMS NOT DEFINED HEREIN SHALL HAVE THE
<br />MEANING SET FORTH IN THE TERMS AND CONDITIONS OF SALE, THE CONTRACT OR THE END USER LICENSE ADDENDUM,
<br />AS APPLICABLE.
<br />1.Support Services.
<br />(a) During the term of the Contract, and subject to the exclusions set
<br />forth herein, Licensor will provide, or cause to be provided through
<br />subcontractors at its discretion, the following Services (such support
<br />Services, collectively, the “Support Services”), for consideration to be
<br />set forth in the applicable Contract (the “Support Fees”), with such
<br />consideration subject to increase in accordance with the notice and
<br />other applicable terms of the Contract:
<br />(i)Licensor will make available to Licensee a telephone number
<br />and email address (the “Support Contacts”) for Licensee to call or email
<br />reporting Errors. Such calls and emails will be returned and addressed
<br />during Licensor’s standard business hours which are from 9:00 am to
<br />5:00 pm local time from Monday to Friday, excluding local holidays;
<br />(ii) Notwithstanding the foregoing, Support Contacts may be
<br />inoperable and unavailable for reasons outside Licensor’s control
<br />including Licensee’s own telecommunications or network service
<br />providers, a Force Majeure Event (defined below), any systemic
<br />network failure, or any failure in Licensee’s own hardware, software or
<br />network connection; and
<br />(ii) Licensor will maintain the Licensed Software by providing to
<br />Licensee Software Updates and Maintenance Releases from time to
<br />time, in accordance with the terms of the End User License Addendum.
<br />(iii) Licensor will use commercially reasonable efforts so that the
<br />Subscription Software and Service Applications and Tools shall have
<br />an uptime (i.e., shall be operational and accessible by the Licensee) of
<br />at least 95%. The uptime percentage shall not include any minutes of
<br />downtime resulting from (1) scheduled maintenance (of which notice
<br />will be provided to Licensee), (2) Force Majeure Events, (3) malicious
<br />attacks on the system, (4) issues associated with Licensee’s computing
<br />devices, local area networks or Internet service provider connections,
<br />or (5) Licensor’s inability to deliver services because of Licensee’s acts
<br />or omissions. Licensor may take the Subscription Software offline for
<br />scheduled maintenances. While the unavailability of the Subscription
<br />Software due to such scheduled maintenance will not be included in
<br />the uptime percentage specified above, Licensor shall provide the
<br />schedule for the scheduled maintenance to Licensee in writing.
<br />Licensor may change its schedule for the scheduled maintenance upon
<br />providing advance written notice to Licensee.
<br />(iv) Except as provided in the Contract, Licensor reserves the right
<br />to limit Support Service phone and technical calls from Licensee to 5
<br />per month.
<br />(v) All Software Updates and Maintenance Releases, in each case
<br />whether updates to Licensed Software or to Subscription Software,
<br />provided to Licensee by Licensor pursuant to the terms of this
<br />Agreement shall be subject to the terms and conditions of the End User
<br />License Addendum between Licensor and Licensee. Licensee
<br />acknowledges and agrees that Maintenance Releases do not include
<br />new releases or versions of the Software or added functionality of the
<br />Software, which are provided at Licensor’s sole discretion under the
<br />terms and conditions of the End User License Addendum.
<br />(b)Licensor will provide, or cause to be provided through
<br />subcontractors at its discretion, software support only for (i) the current
<br />version of the Licensed Software and (ii) the immediately previous
<br />version of the Licensed Software for a minimum period of twelve (12)
<br />months following the general availability of a new release or Software
<br />Update. After this time, Licensor shall have no further responsibility for
<br />supporting and maintaining any prior release of the Licensed Software.
<br />Licensor will not provide software support for any version of the
<br />Subscription Software other than the current version.
<br />(c) Licensee shall not make any improvements,
<br />customizations or modifications to the Software and Service
<br />Applications and Tools without prior approval and in any case Software
<br />Support shall be provided pursuant to a written agreement for a fee
<br />outlined in a SOW executed by Licensor and Licensee.
<br />(d)Upon termination of the software license, Licensee or
<br />Licensor (upon request) shall disable the software.
<br />(e)Additional Support Services requested as a result of, or
<br />with respect to, causes which are not attributable to Licensor shall be
<br />provided at Licensor’s sole discretion. If provided, such Support
<br />Services shall be, billed to Licensee at Licensor’s then-current rates.
<br />Causes which are not attributed to Licensor include, but are not limited
<br />to:
<br />(i) technological change, modification of or damage to the Software
<br />or its operating environment (unless such modification or damage is
<br />caused by Licensor);
<br />(ii)Licensee’s failure to operate the Software in the proper and
<br />reliable network, hardware and software environment as specified by
<br />Licensor;
<br />(iii) Licensee’s failure to operate the Software in accordance with the
<br />Documentation;
<br />(iv) Licensee’s failure to implement any Maintenance Releases, or
<br />other updates, improvements, modifications and/or patches provided
<br />by Licensor in a timely manner, provided that Licensee has been
<br />provided with email notification to Licensee contacts who were flagged
<br />to receive such information and availability of the same;
<br />(v) any virus, malware or similar issue on Licensee’s system;
<br />(vi) fire, water damage, problems with the power grid, Internet
<br />connectivity, lightning, bad weather or any other such event; or
<br />(vii) compatibility of the Software with other software or hardware
<br />utilized by Licensee.
<br />(f)Licensor’s provision of software support to Licensee is
<br />subject to Licensee’s compliance with the following:
<br />(i) Licensee shall document and promptly report all Errors to
<br />Licensor;
<br />(ii) Licensee shall maintain a current backup copy of the Licensed
<br />Software and all related data;
<br />(iii) Licensee shall train its personnel in the use and application of
<br />the Software and provide all initial troubleshooting of Software and
<br />Errors to Licensor;
<br />(iv) Licensee shall comply with the applicable Service Applications
<br />and Tools Terms of Use; and
<br />(v) Licensee shall provide Licensor with reasonably appropriate
<br />access to the system(s) running the Software (including Service
<br />Applications and Tools),, but not limited to, passwords, system data,
<br />file transfer capabilities, and remote log-in-capabilities. Throughout the
<br />term of this Agreement, Licensee will: (A) at Licensee’s expense,
<br />maintain an approved, secure internet connection to enable Licensor to
<br />gain remote access to the computer system(s) on which the Software is
<br />installed for diagnostic, error correction, software downloading, error
<br />logging and other maintenance purposes; (B) cooperate with Licensor
<br />in identifying the cause of any claimed failure of the Software to
<br />perform as expected; and (C) allow Licensor remote access to the
<br />Software and to Licensee’s systems for the purpose of performing
<br />maintenance and to the extent reasonably necessary to perform
<br />maintenance.
|