INTERNATIONAL DECISION SYSTEMS
LICENSE AND SUPPORT AGREEMENT (US)
BY SIGNING AN ORDER FORM REFERENCING THESE TERMS OR PAYING AN INVOICE REFERENCING THESE TERMS, CUSTOMER AGREES TO THE FOLLOWING TERMS AND CONDITIONS OF THIS LICENSE AND SUPPORT AGREEMENT, INCLUDING ALL ORDER FORMS, ATTACHMENTS, EXHIBITS AND SCHEDULES HERETO (COLLECTIVELY THE “AGREEMENT”) GOVERNING THE USE OF THE SERVICES (DEFINED BELOW) OFFERED BY INTERNATIONAL DECISION SYSTEMS, INC. (DBA IDS), A COMPANY INCOPRATED IN DELAWARE, U.S.A., HAVING ITS PRINCIPAL OFFICE AT 220 S. 6TH STREET, SUITE 700, MINNEAPOLIS, MN 55402 U.S.A. (“SUPPLIER”)
1.1 “Annual Support Fee” means the annual fee for Support set forth on the applicable Order Form or invoice.
1.2 “Annual Subscription Fee” means the annual fee for the Subscription Licensed Products (which includes Support) set forth on the applicable Order Form or invoice.
1.3 “API” means any application programming interface for the Products provided by Supplier to Customer.
1.4 “Archival Product” is defined in Section 2.6.
1.5 “Authorized Purpose” is defined in Section 9.1.
1.6 “Authorized Users” means Named Users and External Users.
1.7 “Confidential Information” means the terms of this Agreement and any trade secrets or other nonpublic information of a party to this Agreement, whether of a technical, business, or other nature (including information relating to a party’s or its affiliates technology, products, product documentation, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a Receiving Party during the Term and that such Receiving Party knows or has reason to know is confidential, proprietary, or trade secret information of the Disclosing Party. Supplier’s confidential information also includes the Products and all algorithms, methods, techniques, and code and processes revealed or utilized therein. Personal Data is among the Confidential Information of Customer. Supplier Technology is the Confidential Information of Supplier. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) was known to the Receiving Party prior to receiving the same from the Disclosing Party in connection with this Agreement; (b) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; (c) acquired by the Receiving Party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Receiving Party.
1.8 “Contractors” is defined in Section 11.7.
1.9 “Disaster Recovery Product” is defined in Section 2.8.
1.10 “Disclosing Party” means the party to this Agreement disclosing Confidential Information to the Receiving Party.
1.11 “Documentation” means published, then-current user manuals or other standard technical documentation relating to the Products provided by the Supplier to the Customer.
1.12 “Effective Date” means the date of this Agreement or an Order Form, as applicable, as set forth by both parties. If the Effective Date is not specified, then the last date noted on the signature blocks will be the Effective Date of such document.
1.13 “Error” means a material discrepancy between the performance of the Product and its associated Documentation, which is verifiable and reproducible by Supplier on Supplier’s system based upon the information provided by Customer.
1.14 “Extended Support” means that support offered by Supplier for a Product for which a new Release of the Product that has been made generally available to other customers for more than 24 months prior to the last day of month that the Customer’s annual Support period commences.
1.15 “Extended Support Fee” means the additional annual fee charged for Extended Support for a Perpetual Licensed Product and/or Subscription Licensed Product.
1.16 “External User” means a Customer employee or third party that Customer has authorized to use the Product on a limited and restricted basis, in each case to whom Customer has provided a user identification and password for accessing the Product and who uses the Product solely to initiate an application for a lease or loan or to check the status of a task, and not to use the Products for the internal computing operations of the Customer.
1.17 “Initial Subscription Period” means, with respect to Subscription Licensed Products, the multi-year period specified in the applicable Order Form, which cannot be cancelled or terminated under this Agreement except as provided in Section 5.4.
1.18 “Initial Support Period” means, with respect to Perpetual Licensed Products specified in an Order Form, the twelve-month period beginning on the effective date of the Order Form, unless otherwise specified in the Order Form.
1.19 “Intellectual Property Rights” means any and all rights in patents, patent applications, copyrights, copyright registrations, trademarks and service marks (including, where applicable, all derivative works of the foregoing).
1.20 “Licensed Territory” means the geographic territory where Customer is authorized to install and use the Product(s), as set forth on the applicable Order Form. Authorized Users may access the Products from outside the Licensed Territory. If no geographic territory is listed in the Order Form, then the geographic territory will be in the United States.
1.21 “Module” means a Product that contains non-customized programming that is separately designated on an Order Form as a “Module” and is generally available for license to customers for additional license fees.
1.22 “Named User” means a Customer employee or a third party individual to whom Customer has provided an individual user identification and password for accessing the Product, and who personally uses the Product only for the internal operations of Customer.
1.23 “Non-Production Product” is defined in Section 2.7.
1.24 “Open Source Product” is defined in Section 2.16.
1.25 “Order Form” means the order form or other similar ordering document signed by the parties incorporating the terms of this Agreement, and which contains information regarding the Perpetual Licensed Products and/or Subscription Licensed Products, Use Description, Support, and associated fees, among other terms.
1.26 “Outsourced IT Providers” is defined in Section 3.3.
1.27 “Personal Data” means information provided to Supplier by or at the direction of Customer, or to which access was provided to Supplier in the course of Supplier’s performance of Services that identifies or can be used to identify individual customer and consumer information or authenticate an individual (including without limitation names, addresses, telephone numbers, account numbers, biometric or health data, demographic, passwords or PINs, credit report information, financial and transactional information) Personal Data includes any non-public personal information regarding any individual that is subject to applicable laws and regulations governing the confidentiality and protection of non-public personal information.
1.28 “Perpetual Licensed Product” means any Product licensed by Supplier on a perpetual basis and identified in an Order Form as a “Perpetual Licensed Product”. “Perpetual Licensed Products” refers, collectively, to every Perpetual Licensed Product listed on the applicable Order Form between the parties.
1.29 “Product” means any one of the Product programs (including Modules) identified on the applicable Order Form as a Perpetual Licensed Product or Subscription Licensed Product, in object code format. “Products” refers, collectively, to every Product listed on the applicable Order Form between the parties.
1.30 “Receiving Party” means the party to this Agreement receiving Confidential Information from the Disclosing Party.
1.31 “Release” means a numeric designation to the right of the decimal point (e.g. X.1) indicating the level of programming for the Product.
1.32 “Renewal Subscription Period” and with respect to Subscription Licensed Products, each successive twelve-month period following the Initial Subscription Period unless otherwise set forth in an Order Form.
1.33 “Renewal Support Period” means, with respect to Perpetual Licensed Products, each successive twelve-month Support period following the Initial Support Period.
1.34 “Subscription Licensed Product” means any Product licensed by Supplier on a subscription basis and identified on an Order Form as a “Subscription Licensed Product”. “Subscription Licensed Products” refers, collectively, to every Subscription Licensed Product listed on the applicable Order Form between the parties. Subscription Licensed Products include Support for the entire period of the Initial Subscription Period or any Renewal Subscription Period.
1.35 “Supplier Technology” means, collectively, the Products, APIs, and related Documentation, and all derivative works of the Products, APIs, and related Documentation.
1.36 “Support” means the support and maintenance package for the Products that Customer elects to purchase in an Order Form.
1.37 “Support Policy” means the then current Supplier policy as it relates to availability of extended and sustaining support.
1.38 “Sustaining Support” means that support offered by Supplier, if any, for Products that are no longer generally supported by Supplier (as further defined in the then-current Support Policy).
1.39 “Sustaining Support Fee” means the additional annual fee charged by Supplier for Sustaining Support.
1.40 “Tender Date” means the date when the Product is made available for download or electronic access by Customer, as indicated on the Order Form.
1.41 “Term” is defined in Section 5.3.
1.42 “Third Party Product” means any third party owned Product (including any database and including Open Source Product) used with the Products for which Supplier has a license to sublicense, regardless whether a separate fee is charged or collected from the Customer.
1.43 “Update” means a modification, enhancement, update, upgrade, or other change to the then current general Release of the Product provided to Customer under paid Support or included in a Subscription Licensed Product, that is, in Supplier’s numbering system, to the right of the decimal point for that version, e.g., “1.x.”
1.44 “Use Description” means the description of restrictions on Customer’s right to use the Product, as set forth on the Order Form (e.g., and without limitation, Asset, Contract, Concurrent Logins, and Named User as defined in the applicable Order Form).
1.45 “Use Period” means the period during which Customer is licensed to use the specific Product, which shall be perpetual for a Perpetual Licensed Product, and a finite term as set forth on the Order Form for a Subscription Licensed Product. The Use Period commences on the Tender Date.
1.46 “Version” means the numeric designation to the left of the decimal point (e.g. 2.X) indicating the level of programming for the Product.
1.47 “Warranty Period” is defined in Section 6.2.
2. LICENSES AND RESTRICTIONS
2.1 Termination of Previous Agreements for Perpetual License Product. Supplier may have previously granted to Customer certain rights in a prior version of the Products identified as “Previous Perpetual Licensed Products” (including any Documentation and API’s) on an Order Form pursuant to the license agreement and maintenance and support agreement identified on the Order Form (“Previous Agreements”). Notwithstanding anything to the contrary in the Previous Agreements, the parties hereby terminate the Previous Agreements, and, as of the Effective Date, any continued use of the Previous Perpetual Licensed Products by Customer and any other items licensed or provided by Supplier to Customer pursuant to any Previous Agreement (e.g., documentation, APIs), and any provision by Supplier of maintenance and support for the Previous Perpetual Licensed Product, is subject solely to the terms and conditions of this Agreement.
2.2 License to Product. Subject to the terms and conditions of this Agreement and the applicable Order Form, and except as otherwise set forth in this Section 2 for Archival Product, Non-Production Product, and Disaster Recovery Product, Supplier grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable license during the Use Period to: (a) download and install, on permitted servers owned or controlled by Customer or authorized by Supplier under Section 3.3 of this Agreement, up to the number of copies of the Product, and any Updates thereto, provided by Supplier to Customer specified on the Order Form; (b) permit Authorized Users and Outsourced IT Providers to use the Product and Updates provided by Supplier to Customer in accordance with the Use Description and Documentation; in all cases, solely for the purposes of Customer’s internal computing operations.
2.3 Added Product. The parties may increase the scope of Customer’s usage rights to a Product during its Use Period, or add other Supplier Products to this Agreement by executing one or more mutually-agreed to Order Forms. Unless otherwise stated in an Order Form, each new Order Form will supersede and extinguish the prior Order Form(s) for those particular Products.
2.4 License to Documentation. Subject to the terms and conditions of this Agreement, Supplier grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Use Period for the Product to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with the use of that Product.
2.5 License to APIs. Subject to the terms and conditions of this Agreement, Supplier grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, right during the Use Period for the Product to use the APIs provided by Supplier to Customer only to build applications that create, read, update, or delete records from the Product or any Update thereto for internal use purposes only, and provided that such use application does not in any way modify, alter, copy, or reprogram any Product or Update code. Supplier may restrict usage of APIs in its sole discretion and without notice, including limiting the number of calls that Customer’s application may make via an API, and maximum file size or records that may be accessed. Customer must clearly and conspicuously attribute Supplier as the source of any record retrieved from the Product or Update via an API. Supplier may require that Customer immediately cease or change use of records if Customer displays any record in a way that Supplier determines will impair the value, integrity, or goodwill of Supplier or any Supplier Technology.
2.6 Archival License. For any Product designated on the Order Form for an “Archival License” (“Archival Product”), Customer will have the rights described in this Section 2.6. Subject to the terms and conditions of this Agreement and any applicable Order Form, Supplier grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable license, solely during the Use Period for the “Production License” version of that Product so long as Customer is obligated by law, regulation, or rule to maintain the Archival Product as a system of record, to: (a) maintain a reasonable number of copies of the Archival Product, on servers owned or controlled by Customer; and (b) permit Named Users to use the Archival Product solely for the purpose of retrieval of data, reports, or other information from that version of the Product as required by Customer’s auditors or as otherwise required by law. Customer is prohibited from using any Archival Product for the purpose of production, training, testing, back up or transitioning data to a new system. Supplier is not obligated to provide any Support for any Archival Product. Following any termination, Customer may retain a reasonable number of copies of Archival Product and its Documentation solely to the extent (including duration) required by applicable law to maintain systems of record. When Customer’s obligations under applicable law, regulation, or rule to maintain a version of Archival Product as a system of record expire, Customer must destroy the Archival Product in accordance with Section 5.5.
2.7 Non-Production License. For any Product designated on the Order Form for a “Non-Production License” (“Non-Production Product”), Customer will have the rights described in this Section 2.7. Subject to the terms and conditions of this Agreement, Supplier grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable license, solely during the Product-specific Use Period set forth on the Order Form, to install a the number of copies of the Non-Production Product licensed in the applicable Order Form and Updates thereto on servers owned or controlled by Customer; and permit Named Users to use the Non-Production Product solely for the purpose of back-up, quality assurance, testing or any other non-revenue generating functions of Customer’s business operations, regardless of where or how installed. Supplier will provide Support for Non-Production Product subject to payment of the applicable Annual Support Fee.
2.8 Disaster Recovery License. For any Product designated on the Order Form for a “Disaster Recovery License” (“Disaster Recovery Product”), Customer will have the rights described in this Section 2.8. Subject to the terms and conditions of this Agreement, Supplier grants to Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable license, solely during the Product-specific Use Period, to: (a) install a reasonable number of copies of the Disaster Recovery Product and any Updates thereto on servers owned or controlled by Customer or authorized by Supplier under Section 3.3 of this Agreement; and (b) permit Named Users to use the Disaster Recovery Product and Updates thereto solely for the purpose disaster recovery, as a failover under circumstances in which the Product licensed for production use under Section 2.2 fails. Any server on which the Disaster Recovery Product is installed must not be turned on (unless otherwise provided in and Order Form) or otherwise used for any purpose other than disaster recovery. For example, Disaster Recovery Product must not be used for back-up, quality assurance, testing, or any other purpose for which Supplier licenses Non-Production Product. Supplier is not obligated to provide any Support for any Disaster Recovery Product, unless otherwise agreed by Customer and Supplier for additional fees in an Order Form.
2.9 Database Use Restrictions. The Product embodies a database schema and operates on a specific version of database Product that is required for proper operation of the Product. Customer will not, itself or through a third party, modify or upgrade the version of the database Product, modify the database schema in any manner, or change the physical or virtual distribution of data within the database. Any breach of this Section 2.9 by or on behalf of Customer will automatically void any warranties and obligation of Supplier under the Agreement to provide Support, and Customer acknowledges that any breach may result in data corruption or render the Product unusable. Supplier reserves the right to modify the database schema and the database Product at any time, and Customer may be required to obtain and use the most recent database schema in order to obtain the complete functionality of the Product as set forth in the Documentation.
2.10 Use Restrictions. Customers may only use the Products during the Use Period and subject to any Use Descriptions specified in the applicable Order Form. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of, the Supplier Technology; (b) rent, lease, or otherwise permit third parties (other than authorized pursuant to Section 3.3) to access or use the Supplier Technology; (c) use the Product to provide services to third parties (e.g., as a service bureau or to otherwise provide data processing services to third parties); (d) circumvent or disable any security or other technological features or measures of any Supplier Technology; (e) interfere with or disrupt the Product; (f) create user accounts under false or fraudulent pretenses; (g) introduce into the Product any virus, worm, defect, Trojan horse, or any other item of a destructive nature; (h) create shared or generic identifications and passwords to any Product; nor (i) remove or alter any of the Intellectual Property Rights notice(s) or restrictive legend(s) embedded in or that Supplier otherwise provides with the Products. Customer may not obscure and must reproduce the unaltered Intellectual Property Rights notice(s) or other restrictive legend(s) in any full or partial copies that Customer makes of the Products and Documentation and on any record obtained from the Product via an API.
2.11 Licensed Territory. The rights in the Product granted to Customer under this Agreement are for the use and installation of the Products only in the Licensed Territory specified in the Order Form for that Product. Customer may not use or install the Product in any other geographic territory without Supplier’s prior written consent. If Supplier consents, the approved territory will be deemed a Licensed Territory and additional fees may be assessed. Supplier does not guarantee the compliance of any Product, or Customer’s use of any Product will enable Customer to comply, with the laws, regulations, or rules of any territory.
2.12 Compliance with Laws. Customer will use the Supplier Technology in compliance with all applicable laws, rules, and regulations.
2.13 Protection against Unauthorized Use. Customer will be responsible for any use by its Authorized Users of the Supplier Technology and for the secure maintenance of log-in credentials for protecting access to the Product. Customer will safeguard and prevent any unauthorized use of the Supplier Technology and immediately notify Supplier in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Supplier Technology directly or indirectly through Customer, Customer will take, at Customer’s sole cost, all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Supplier to prevent or terminate unauthorized use of the Supplier Technology.
2.14 Ownership Rights. Customer agrees that Supplier (or its third party licensors) owns all right, title and interest in and to the Supplier Technology, including all intellectual property rights therein. Customer hereby irrevocably assigns to Supplier any and all rights it may be deemed to have in the Supplier Technology and (other than the rights expressly granted under this Agreement) agrees to execute, at Customer’s expense, all documents necessary to implement and effect such assignment. Supplier also reserves the right to modify any portion of the Supplier Technology at any time.
2.15 Customer Systems. Customer is solely responsible for ensuring that its hardware and/or systems software configuration meet the requirements of the Products during the Term.
2.16 Open Source Product. Certain programs contained in a Product may be subject to open source terms (collectively, “Open Source Product”). Open Source Product is documented in the “help” files for the Product. All Open Source Product (if any) is and will remain subject to the terms and conditions under which it is provided.
3.1 Support. Subject to the terms and conditions of this Agreement and Customer paying the applicable fees hereunder for a particular Product, Supplier will provide Customer with Support elected by Customer on the Order Form for such Product. Supplier may modify its policies regarding the Support of Product at any time with reasonable prior written notice to Customer. As part of paid Support, Supplier shall: (a) provide Customer with access (via the Internet, telephone or other means established by Supplier) to Supplier’s support helpline to provide general technical information and assistance with problem determination, isolation, verification and resolution; (b) provide, when and if generally available Updates to Products; and (c) use reasonable efforts to correct Errors. Supplier has no obligation to provide any Support with respect to: (i) any API; (ii) any modification made other than by Supplier as part of Support to any portion of the Product; (iii) any source code licensed to Customer; or (iv) any Product operating on any hardware or systems software configuration other than the hardware and/or systems software configuration on which Supplier generally supports use of the Product. Customer will pay Supplier on a time and materials basis for any API or Product modification support agreed to and provided by Supplier in response to Customer’s request. Customer agrees to provide Supplier with access to such facilities and hardware and/or systems as are reasonably necessary for Supplier to perform its obligations under this Agreement. With respect to each Release of a Product, standard Support for such Release is available for twenty-four (24) months from the date Supplier makes that Release generally available to its customers. Thereafter, Extended Support fees or Sustaining Support fees may apply to any Support purchased by Customer
3.2 Updates. Supplier will provide Customer, when and if generally available, Updates to the Product from time to time during the Initial Subscription Period and any Renewal Subscription Period for Subscription Licensed Product, and during the Initial Support Period and Renewal Support Period for Perpetual Licensed Product, in each case only if Customer is current in its payment of all applicable fees. Updates to the documentation will be available on Supplier’s support website or provided to Customer directly.
3.3 Outsourced IT Providers. Customer may provide the Supplier Technology to a third party who is hosting the Product on Customer’s behalf if Customer obtains Supplier’s prior written consent (“Outsourced IT Provider”). If approved, Customer will be fully responsible and liable for any action or inaction of Customer’s service providers and must ensure that all service providers agree to written terms that obligate the providers to comply with the applicable terms and conditions of this Agreement, including terms that are at least as protective of the Supplier Technology as Section 9. Customer will keep and have available all necessary records and make all payments, reports, collections, and deductions, and otherwise do any and all things necessary so as to fully comply with all federal, state and local laws, ordinances and regulations in regard to its service providers so as to fully relieve Supplier from and protect it against responsibility or liability regarding Customer’s service providers.
4. FEES AND PAYMENT
4.1 Fees and Payment Terms. Customer will pay Supplier the fees and any other amounts owing under this Agreement within thirty (30) days of the invoice date unless otherwise specified on the Order Form, plus any applicable sales, use, excise, or other taxes. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by Supplier to collect any amount that is not paid when due. In addition, if Supplier does not receive any amount when due, Supplier may suspend the provision of Support and any other services until all past-due amounts are received, or terminate this Agreement in accordance with Section 5.4. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. If Customer requires Supplier to use a system of payment that causes Supplier to incur any fees or Supplier incurs fees in connection with accessing the Products, Supplier may invoice, and Customer will pay, all of those amounts. Unless otherwise stated in an Order Form, all amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all amounts in United States dollars.
4.2 Taxes. Other than net income taxes imposed on Supplier, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Supplier shall invoice Customer the amount of the applicable taxes and Customer shall make payment under the invoice to Supplier within thirty (30) days of the invoice date. Customer will provide Supplier with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Supplier to establish that such taxes have been paid.
5. USE PERIODS; TERM AND TERMINATION
5.1 Subscription Periods. The Initial Subscription Period is set forth on the applicable Order Form. At the end of such Initial Subscription Period, the license will automatically renew for additional Renewal Subscription Periods of twelve (12) months, but:
(a) Customer or Supplier may elect to not renew by providing written notice to Supplier at least ninety (90) days before the commencement of the next Renewal Subscription Period, or
(b) Supplier reserves the right to change any fees under this Agreement for any Renewal Subscription Period or as otherwise expressly provided by this Agreement by providing written notice to Customer.
5.2 Support Periods. The applicable Initial Support Period for the Products is set forth on the applicable Order Form. At the end of the Initial Support Period, Support will automatically renew for additional Renewal Support Periods of Support twelve (12) months, but:
(a) Customer or Supplier may elect to not renew by providing written notice to the Party at least ninety (90) days before the commencement of the next Renewal Support Period, and
(bi) Supplier reserves the right to change any fees under this Agreement for any Renewal Support Period or as otherwise expressly provided by this Agreement by providing written notice to Customer.
5.3 Term. This Agreement will commence upon the Effective Date and unless terminated earlier pursuant to this Agreement will continue in effect pursuant to its terms (“Term”). Except as set forth in Section 5.4, the Use Period for a Subscription Licensed Product cannot be terminated prior to the expiration date of the Initial Subscription Period or Renewal Subscription Period. Except as set forth in Section 5.4, neither Party may terminate the Initial Support Period or any Renewal Support Period during the term of such period. Either party may terminate this Agreement upon prior written notice to the other party if all Order Forms to this Agreement are terminated.
5.4 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement or an Order Form within thirty (30) days (or within another period expressly specified by this Agreement) of receiving written notice of the material breach from the non-breaching party. In addition, Supplier may terminate Support if Customer fails to pay the Annual Support Fee, Extended Support Fee, or Sustaining Support Fee when due, or any other payment when due, and Customer does not make the applicable payment within thirty (30) days of receiving written notice of the material breach from Supplier. Termination in accordance with this Section 5.4 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the thirty (30)-day cure period.
5.5 Post-Termination Obligations. Upon termination of this Agreement by Customer or Supplier: (a) except with respect to any Archival Product, Customer’s license to use the Products will immediately terminate; (b) Supplier will discontinue the provision of Support as of the effective date of such termination; and (c) the total amount of all fees due during the Term, including all unpaid Annual Subscription Fees, and unpaid fees for Support, immediately become due and payable, and Customer will pay all of those amounts within five (5) business days after the date of termination. In addition, except with respect to any Archival Product License granted pursuant to this Agreement; upon termination of this Agreement (i) any and all liabilities accrued prior to the effective date of the termination will survive; and (ii) Customer will discontinue further use of the Products; (iii) within ten (10) days after the termination, and Customer will provide Supplier with a written certification signed by an authorized Customer representative certifying that all use of the Supplier Technology by Customer and its Authorized Users has been discontinued and that all copies of the Supplier Technology provided to, created by or otherwise in the possession of Customer or its Authorized Users (including any source code) have been irretrievably destroyed.
5.6 Survivorship. The following provisions will survive expiration or termination of this Agreement: Sections 1, 2.6, 2.14, 4, 5.5, 5.6, 8, 9, and 11.
6. WARRANTIES, REMEDIES, AND DISCLAIMER
6.1 Mutual Warranties. Each party represents and warrants to the other that this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms.
6.2 Supplier Warranty. Supplier warrants to Customer that the then current Version of the Product licensed to Customer will perform without an Error for a period of ninety (90) days from its Tender Date (“Warranty Period”). If Supplier is unable to repair or replace such Product within a reasonable period of time, then, subject to the limitations set forth in Section 8 of this Agreement, Customer may pursue its remedies at law to recover direct damages resulting from the breach of the applicable warranty. The remedies in this Section 6.2 are exclusive and in lieu of all other remedies, and represent Supplier’s sole obligations, for a breach of the foregoing warranty.
6.3 Warranty Exceptions. SUPPLIER WILL HAVE NO OBLIGATION UNDER ANY WARRANTY SET FORTH IN THIS AGREEMENT TO THE EXTENT THE ALLEGED BREACH OF WARRANTY IS CAUSED BY, OR THE CLAIM ARISES OUT OF OR RESULTS FROM:
(a) ANY MODIFICATION OF THE PRODUCT NOT DONE BY SUPPLIER UNDER SUPPORT;
(b) COMBINATION OF THE PRODUCT BY CUSTOMER WITH ANY COMPUTER, COMPUTER PLATFORM, OPERATING SYSTEM, WEB SERVICE OR DATA CALL OR DATA COMMIT TO THE PRODUCT ON OTHER THAN WHICH SUPPLIER GENERALLY SUPPORTS USE OF THE PRODUCT, OR THROUGH THE USE OF AN API;
(c) USE OF THE PRODUCT OUTSIDE THE SCOPE OF USE IDENTIFIED IN THIS AGREEMENT OR ANY DOCUMENTATION, INCLUDING USE OF THE PRODUCT IN ANY GEOGRAPHIC REGION THAT IS NOT IDENTIFIED ON THE ORDER FORM;
(d) CUSTOMER’S USE OF ANY RELEASE OF PRODUCT OTHER THAN THE THEN-CURRENT RELEASE IF THE BREACH COULD HAVE BEEN AVOIDED BY USING THE THEN-CURRENT RELEASE AND SUPPLIER NOTIFIED CUSTOMER OF THE CURRENT RELEASE’S AVAILABILITY;
(e) ANY THIRD PARTY PRODUCT; OR
(f) CUSTOMER’S FAILURE TO PROMPTLY IMPLEMENT CHANGES THAT SUPPLIER PROVIDES TO CORRECT OR IMPROVE THE PRODUCT.
THE LIMITED WARRANTY IN SECTION 6.2 DOES NOT APPLY TO PREVIOUSLY LICENSED PRODUCTS OR PRODUCTS FOR WHICH CUSTOMER IS CHANGING USE DESCRIPTIONS (E.G., WITHOUT LIMITATION, ADDING USERS).
6.4 Disclaimer. THE LIMITED WARRANTIES IN SECTION 6 ARE MADE BY SUPPLIER TO CUSTOMER EXCLUSIVELY AND ARE IN LIEU OF ALL OTHER WARRANTIES. ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF COMPLIANCE WITH APPLICABLE TAX LAWS OR TAX RULINGS, TITLE, AND NON-INFRINGEMENT AS WELL AS ANY WARRANTIES IMPLIED BY LAW, SUCH AS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SATISFACTORY QUALITY OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. SUPPLIER DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SUPPLIER TECHNOLOGY. SUPPLIER DOES NOT WARRANT THAT ANY SUPPLIER TECHNOLOGY IS ERROR-FREE, OR THAT OPERATION OF ANY PRODUCT OR ANY API WILL BE SECURE OR UNINTERRUPTED OR WILL MEET CUSTOMER’S REQUIRMENTS. SUPPLIER DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH ANY PRODUCT OR API IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE PRODUCT OR API WILL ALWAYS BE AVAILABLE. SUPPLIER EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE PRODUCT AND/OR API.
6.5 Warranty Notification. CUSTOMER MUST NOTIFY SUPPLIER WITHIN THE APPLICABLE WARRANTY PERIOD UPON LEARNING OF ANY CLAIMED BREACH OF ANY WARRANTY AND, TO THE EXTENT ALLOWED BY APPLICABLE LAW, CUSTOMER’S REMEDY FOR BREACH OF ANY WARRANTY IS SUBJECT TO THE LIMITATION OF LIABILITY IN THIS AGREEMENT.
7. INDEMNITY OBLIGATIONS
7.1 Supplier’s Indemnity Obligations. Supplier shall defend and indemnify Customer, its subsidiaries, parents and affiliates from and against any loss, cost and expense (including reasonable attorneys’ fees) that Customer incurs because of a third party claim that the use of the Products as delivered by Supplier under this Agreement infringe a third party’s Intellectual Property Rights. Supplier will have no obligation under this Section 7.1 if the infringement is based on a claim arising as a result of the actions set forth in Section 6.3 above.
7.2 Customer’s Indemnity Obligations. Customer shall defend, indemnify and hold harmless Supplier, its subsidiaries, parents and affiliates from and against any loss, cost and expense (including reasonable attorneys’ fees) that Supplier incurs because of a third party claim that Customer’s use of the Products or Supplier Technology miscalculated or otherwise mistakenly charged such third party for taxes, payments, or other amounts that were not otherwise properly owed as a result of Customer’s input, failure to use the Products in accordance with Documentation, or failure to verify each asset location and applicable tax rate.
7.3 Notice and Obligations to Receive Indemnity. A party seeking indemnity agrees to no later than thirty (30) days after it receives notice of the claim (or sooner if required by applicable Laws):
(a) promptly notify the indemnifying party in writing as to any such third party claim or action;
(b) give the indemnifying party sole control of the defense and any settlement negotiations, provided, that the indemnifying party will not agree to any settlement without the indemnified party’s prior written consent, unless such settlement includes a release of all claims by the claiming party against the indemnified party, does not require payment of any money by the indemnified party, and does not require the indemnified party to admit any wrongdoing; and
(c) provide the indemnifying party with the information, authority, and assistance reasonably necessary to defend against or settle any such claim or proceeding.
If the indemnified party chooses to represent its own interests in any such action, it may do so at its own expense, but such representation must not prejudice the indemnifying party’s right to control the defense of the claim and negotiate its settlement or compromise.
7.4 Mitigation/Limited Remedy. If Customer’s use of the Product is, or in Supplier’s opinion is likely to become, enjoined or materially diminished as a result of a third party claim arising under Section 7.1, then Supplier will, at its option either: (a) procure the continuing right of Customer to use the Product; (b) replace or modify the Product in a functionally equivalent manner so that it no longer infringes; or (c) with terminate the license for the Product and provided that Customer has returned or destroyed and discontinued its use of such Product; and refund to Customer (i) for Perpetually Licensed Products, the portion of the license fee paid to Supplier for Perpetually Licensed Product(s) giving rise to the infringement claim, less a charge for use by Customer based on straight line depreciation assuming a useful life of five (5) years, plus prorated unused prepaid annual Support fees for the then current annual Support period based on the termination date; or (ii) for Subscription Licensed Products, the unused prepaid Annual Subscription Fees for the then current annual subscription period based on the termination date for Subscription Licensed Products. Except as provided in this Section 7, Supplier shall have no obligation to indemnify Customer for infringement claims stemming from Third Party Products. In the event of any such infringement claim for which Supplier has an obligation to indemnify Customer under this Agreement, Customer will have the right to terminate this Agreement upon written notice to Supplier. Customer will be responsible for paying all fees due or owing under this Agreement through the termination date. Supplier’s Indemnity Obligations in this Section, state Supplier’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party Intellectual Property Right by the Customer.
8. LIMITATIONS OF LIABILITY
8.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL SUPPLIER, ITS AFFILIATES OR THIRD PARTY LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE AND EVEN IF SUPPLIER IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
8.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SUPPLIER’S AND ITS AFFILIATES OR THIRD PARTY LICENSORS TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SUPPLIER FOR THE PRODUCTS AND SUPPORT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
8.3 Statute of Limitations. EXCEPT FOR ACTIONS FOR CUSTOMER’S NONPAYMENT, BREACH OF PROPRIETARY RIGHTS, OR WHERE NOT STATUTORILY ABLE TO SHORTEN, NO ACTION OR PROCEEDING AGAINST EITHER PARTY PURSUANT TO THIS AGREEMENT MAY BE COMMENCED MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION ARISES, UNLESS THE BREACH IS ONGOING.
8.4 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SUPPLIER TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN SECTION 6 AND THIS SECTION 8 WILL SURVIVE AND APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9.1 Permitted Uses or Disclosures. Confidential Information is being provided solely for the purpose of enabling Customer to license and use the Products and purchase related Support from Supplier and for Supplier to provide such Products and Support to Customer under the terms of this Agreement (“Authorized Purpose”). Receiving Party, in connection with the Authorized Purpose, shall only disclose Confidential Information to individuals who will reasonably need to know, and who agree in writing to confidentiality obligations that are substantially similar to the terms contained in this Section 9, and then are limited to its officers, employees, agents, consultants, contractors and professional advisors who reasonably need to know. In the event of disclosure to an agent or advisor, the Receiving Party, upon request, shall provide the Disclosing Party with the identity of the same. The Receiving Party will use at least the same standard of care to maintain the confidentiality of the Disclosing Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in no event less than reasonable care. Notwithstanding anything to the contrary in this Agreement, Confidential Information of the Disclosing Party may not be disclosed to i) an equipment finance and/or leasing software or services provider or ii) a third party with direct access to Supplier’s Technology or without prior express written permission by the Supplier.
9.2 Authorized Purpose. Without the prior written consent of the Disclosing Party, the Receiving Party shall not disclose to a third party any Confidential Information or use Confidential Information for any other purpose other than the Authorized Purpose, or as otherwise agreed to in this Agreement. Receiving Party will promptly provide Disclosing Party with written notice of any breach of Personal Data or other personal information of which it is aware. Except as may otherwise be expressly set forth in a separate definitive agreement between Supplier and Customer, no party will be deemed to make, or will be deemed to have made any representation or warranty as to the accuracy or completeness of Confidential Information, or any item(s) thereof.
9.3 Authorized Disclosure. Notwithstanding the above, nothing herein will prevent a Receiving Party from disclosing Confidential Information that the Receiving Party is required to disclose by court order pursuant to the rules and regulations of a governmental agency or body having jurisdiction over the Receiving Party, to the extent so required; provided, however, that prior to any such disclosure, the Receiving Party shall, when legally permissible (a) notify the Disclosing Party promptly in writing of any order or request to disclose, and of the facts and circumstances surrounding such order or request, so that the Disclosing Party may seek an appropriate protective order and (b) cooperate with the Disclosing Party, at Disclosing Party’s sole cost and expense, in any proceeding to obtain an appropriate protective order.
9.4 Destruction of Confidential Information. Upon termination of this Agreement: (a) Customer shall return or destroy, at Supplier’s option, all materials relating to Confidential Information of Supplier and shall de-install and delete all copies of Products other than permitted Archival Copies, and (b) Supplier shall return or destroy, at Customer’s option, all Confidential Information of Customer relating thereto. If either party chooses destruction, a certificate of destruction shall be provided evidencing compliance with this Section 9.4, each party retaining always the right to maintain the books and records necessary to satisfy its auditors, regulators and other reasonable legal requirements. To the extent it is impossible to destroy or return the Confidential Information as required under this Section 9.4, such Confidential Information will remain subject to the confidentiality obligations under this Agreement.
10. DATA SECURITY
The parties will each maintain industry standard physical, organizational, and technical processes and procedures designed to protect against unauthorized access, processing, loss, destruction, theft, use, or disclosure of Personal Data. Supplier will provide Customer its data security policy upon request.
11.1 Third Party Products. Customer may obtain Third Party Products from Supplier to be used in conjunction with the Product. However, such Third Party Products may not be used on an independent basis or other than with the Products. Customer acknowledges that each Third Party Product is considered a valuable asset of the third party licensor and that all right, title, and interest in each Third Party Product, in any language and any media, and all other materials and Documentation delivered to Customer with respect to that Third Party Product, will be and remain the property of the third party licensor, subject to the license granted to Customer and any restrictions specified in this Agreement.
11.2 Independent Contractors. The parties to this Agreement are independent contractors and are not agents or representatives of each other. No party will have the power to bind the other, nor will any party misstate or misrepresent its relationship under this Agreement.
11.3 Assignability. Customer may not assign, sublicense, publish, sell, transfer, or otherwise exploit this Agreement or any rights or obligations under this Agreement whether by operation of law or otherwise, without the prior written consent Supplier. For purposes of this Agreement, an “assignment” includes use of the Products for the benefit of any third party to a merger, acquisition and/or other consolidation by, with or of Customer, including any new or surviving entity that results from such merger, acquisition and/or other consolidation. Any attempt at such assignment will be void without the prior written consent of Supplier.
11.4 No Third Party Rights. This Agreement is made solely for the benefit of the parties to this Agreement, any Third Party Product providers, and permitted successors and permitted assigns of the parties, and no other person or entity will have or acquire any right by virtue of this Agreement.
11.5 Supplier Audit. Supplier will have the right to audit Customer’s use of the Supplier Technology upon ten (10) business days’ prior written notice. Customer agrees to provide reasonable assistance and access to information in the course of the audit, including running diagnostic Product on Customer’s systems to verify Customer’s usage, and to permit the reporting of the results to Supplier or Third Party Product suppliers, as applicable. Supplier will be responsible for the costs and expenses related to the audit unless the audit reveals Customer is in violation of the Use Description, Section 2, or any other limit on Customer’s usage of the Product described in this Agreement or applicable Order Form, then without limiting Supplier’s other remedies under this Agreement, Customer will promptly pay Supplier all applicable, additional fees for that usage at Supplier’s then current rates and will promptly reimburse Supplier for all reasonable costs and expenses associated with the audit.
11.6 Export. Customer shall comply with all relevant export laws and regulations of the United States and other applicable export and import laws (including “deemed export” and “deemed re-export” regulations) which govern the use and distribution of the Products (including technical data) and any materials provided to Customer under Support. Customer agrees that no information, Products and/or materials resulting from Support (or direct product thereof), will be exported, directly or indirectly, in violation of these laws, or is used for any purpose prohibited by these Laws. Customer will be solely responsible for all fees and expenses related to a permitted export or re-export of the Products or materials resulting from Support. Supplier will provide reasonable assistance in Customer’s efforts to comply.
11.7 Contractors. Supplier may perform any of its obligations under this Agreement though any of Supplier’s affiliates or subcontractors (“Contractors”), but, in all such cases, Supplier will remain subject to the obligations contained in this Agreement. Supplier will keep and have available all necessary records and make all payments, reports, collections, and deductions, and otherwise do any and all things necessary so as to fully comply with all federal, state and local laws, ordinances and regulations in regard to its Contractors. Supplier and Customer intend that this Agreement will not benefit or create any right or cause of action in, or on behalf of, any person or entity other than the parties.
The following notice types must be given within the time periods set forth below, and will be deemed sufficiently given in writing if personally delivered or sent by commercial express mail or other commercially appropriate means that provides prompt delivery and requires proof of delivery to a party at its address set forth on the Order Form, or at such other address as a party may from time-to-time specify by written notice to the other party:
NOTICE TYPE: TIME PERIOD:
– Within thirty (30) days of notification of claim (or sooner if required by law)
Breach of Section 6.2 or other breach by Supplier:
– Within the Warranty Period for a breach of Section 6.2 or within ninety (90) days of a breach for any other Supplier breach
– Within thirty (30) days from date of invoice
Non-renewal In accordance with Section 5.1 and 5.2
All other notices and correspondence, including invoices, payments, and other documents and communications may be sent electronically or via regular mail. The parties will have the right to rely on the last known address of the other party. Any correctly addressed notice to the last known address of the other party that is relied on in this Agreement, but that is refused, unclaimed, or undeliverable, will be deemed effective until the first date that the notice was refused, unclaimed, or deemed undeliverable by electronic mail, the postal authorities, or through messenger or commercial express delivery service.
11.9 Force Majeure. No party will be in default if its delay or failure to perform any obligation under this Agreement is caused solely by supervening conditions, such as an act of war, hostility, or sabotage, act of nature, electrical, internet, or telecommunication outage that is not caused by the obligated party, government restrictions (including the denial or cancellation of any export or other license), or other events beyond the obligated party’s reasonable control. This Section 11.9 does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligations to pay amounts due under this Agreement.
11.10 Publicity. Each party must not, without the prior written consent of the other party: (a) use the other party’s name or refer to the other party directly or indirectly in any media release, public announcement, or public disclosure, including any promotional or marketing materials, or websites; or (b) use any trademark, trade name, trade dress or service mark of the other party. Each party may, without the other party’s consent, use the other party’s name or marks to refer to the other party in customer lists or referral lists, and, in the case of Supplier, demonstrations of the Product to a customer or prospective customer. Customer must not publish any results of benchmark tests of any kind run on any portion of the Supplier Technology.
11.11 Language. The parties prepared this Agreement in the English language, and in the event of any conflict between the English language version of this Agreement and a translation of this Agreement, the English language version will govern.
11.12 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of New York, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Act. Any dispute arising under these terms and conditions will be settled amicably and, if not successful, the dispute must be referred to a competent court in Minnesota. Supplier and Customer each waive their right to a trial by jury for any disputes between the parties.
11.13 Waiver. The waiver by a party of a particular breach of this Agreement by the other will not be construed as nor constitute a continuing waiver of such breach or of breaches of the same or similar nature or other terms of this Agreement.
11.14 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
11.15 Counterparts. This Agreement and any amendments to this Agreement or other signed agreement or instrument entered into in connection with this Agreement, may be executed in counterpart. Any such counterpart, to the extent delivered by means of digital imaging, facsimile machine, or electronic mail will be treated in all manner and respects as an original executed counterpart and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
11.16 Non-Solicitation. During the term of this Agreement, the Customer must not, and will procure that any affiliate of the Customer does not, directly or indirectly (whether on its own account or for the benefit of another party) hire, or offer to hire, retain as an independent contractor, solicit or induce or procure or assist any other person or organization on its behalf to solicit or induce any employee, officer or contractor of the Supplier to terminate their employment or to cease offering their services to the Supplier, unless otherwise prohibited by law. Notwithstanding the above, Customer may solicit for employment or employ (a) any such person who responds to a general employment solicitation by such party not directed specifically to employees of the other party or any of its affiliates or their subsidiaries, or (b) any former employee of the non-hiring party whose employment with that party ended more than twelve (12) months prior to the date of such offer to hire, hire, Solicitation, or employment. In the event a court or competent jurisdiction deems any term, obligation, or condition of this section unenforceable, the other terms, obligations, and conditions of this section shall remain in full force and effect, and the unenforceable term, obligation, or condition shall be deemed to have been amended so that it shall be enforceable.
11.17 Entire Agreement. This Agreement, including the Order Form, and all exhibits referenced therein, are the complete and exclusive statement of the Agreement and supersede all prior understandings and other prior or contemporaneous oral or written communications or obligations between the parties relating hereto, all of which are terminated. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. No modification of this Agreement will be effective unless it is in writing, is signed by each party, and expressly provides that it amends this Agreement. Supplier will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement that is proffered by Customer in any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Supplier specifically agrees to such provision in a writing signed by an authorized agent of Supplier.
Support Service Levels And Continuous Improvement
As part of the Annual Subscription Fees, Supplier will make best efforts to meet the Response Targets set forth each Severity Level described in this Exhibit during the Subscription Term.
Case Severity Level
An IDS support representative will work with the customer to assign the appropriate severity level to the Case based on the following descriptions:
|Severity 1||System Down. Users cannot conduct any business on the system|
|Severity 2||System severely impacted. A critical business process is not functioning.|
|Severity 3||System moderately impacted. The problem affects a small area of business. A workaround may be suggested or in place.|
|Severity 4||System minimally impacted. A minor error or issue is occurring that does not affect the business.|
Each Response Target below is calculated base on the difference between the time an incident is logged into Supplier’s tracking system and the time of the first communication sent to the Customer regarding the incident.
Supplier’s current Response Targets are defined in the following table:
|Severity Level:||Response Targets:|
|Severity 1 – Production Down||Within 1 hour|
|Severity 2 – High||Within 4 hours|
|Severity 3 – Medium||Within 24 hours|
|Severity 4 – Low||Within 48 hours|
The above Response Targets may be modified by Supplier from time to time to reflect current business practices, however such targets will not fall below the times set forth herein.