Support & Maintenance Agreement

1. DEFINITIONS

In addition to the other terms defined in this Agreement, the following terms shall have the following meanings:

• Affiliate: any entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such party
• Distributed Products: software products distributed by Opslogix on behalf of third parties
• Documentation: the user and reference manuals, in whatever form recorded, provided by Opslogix with the Programs
• Error: a material failure of a Program to conform to its functional specifications as described in its Documentation
• Error Correction: any bug fixes, modifications, or additions to a Program that are intended to correct the practical adverse effect of an Error
• Incident: a reported problem or issue that is unique from any other opened problem or issue reported by Customer in respect to a Program
• Initial Term: has the meaning ascribed to that term in Section 7
• Maintenance: the right to receive minor and major upgrades for the Programs and/or Distributed Products, as described in more detail in Section 4 and the Opslogix Support Guide
• Management License: has the meaning ascribed to that term in the Opslogix End User License between Customer and Opslogix
• Program: the Opslogix software licensed by You pursuant to a separate Opslogix End User License Agreement
• Opslogix End User License Agreement: that certain or those certain license agreement(s) entered into between Opslogix (or any of its Affiliates) and Customer (or any of its Affiliates), including all amendments and addendums to such agreement(s) and all orders thereunder
• Opslogix Support Guide: Opslogix's then-current support guide that describes certain additional Support policies and certain variable aspects of the Support services, such as without limitation pricing, as such guide may be amended from time to time by Opslogix in its discretion
• Opslogix Web Support: a website, or specific portion thereof, maintained by Opslogix that may be accessed by You which provides various self support resources
• Quote: the quotation document provided to You by Opslogix (or by one of its distributors or resellers) specifying the commercial terms under which Opslogix (or one of its distributors or resellers) is willing to provide Support to You
• Renewal Term: has the meaning ascribed to that term in Section 7
• Support: the Support Services and Maintenance
• Support Services: Incident support for the Programs and Opslogix Web Support set forth in Section 3 of this Agreement and the Opslogix Support Guide. Support Services consist of optional and included services as specified in more detail in the Program Guide
• Support Contact: an information technology specialist employed by Customer who has been suitably trained in respect to the operation of the Programs and who is knowledgeable about the Customer's IT environment and through whom all Support-related communications with Opslogix (whether by phone, email or web) will be channeled
• Support Anniversary Date: the annual anniversary of the first day of the month following the date of first delivery of the Programs
• Support Start Date: the date of first delivery of the Programs
• You, Your or Customer: means the individual or entity, as the case may be, to whom the Quote was issued. In the case of an entity, "You", "Your" or "Customer" includes any Affiliate of such entity
• Workaround: a temporary solution that can be implemented in respect to an Incident as an alternate method of providing temporary or partial process functionality that allows the affected systems and/or processes to deliver to Customer a reasonable level of Program functionality until a resolution can be implemented

2. SUPPORT FEES

• Support is available for annual and incremental fees as set forth in the Opslogix Support Guide.
• On the Support Start Date, and at the beginning of each Renewal Term, you must pay Opslogix the non-refundable annual fee for the Support level for which you are subscribing for that year.
• If you elect to purchase annual Support, then you must purchase annual Support for all the Programs that have been licensed to you and/or your Affiliates.
• You may elect to purchase incremental Support packs as described in the Opslogix Support Guide for the fees specified.
• Fees for annual Support are payable in advance and must be paid within thirty (30) days of receipt of the applicable invoice.
• Fees for incremental Support are payable upon acceptance by Opslogix of your order for such incremental Support and must be paid within thirty (30) days of receipt of the applicable invoice.
• Opslogix is only obliged to provide Support if you are in compliance with all your obligations under this Agreement.
• If you have not paid any fees within forty-five (45) days after receipt of an applicable invoice, or if you fail to perform any material obligations in this Agreement, Opslogix is entitled to suspend or terminate Support in addition to other remedies.

3. SUPPORT SERVICES

• Subject to the terms and conditions of this Agreement and payment of the applicable fees, Opslogix will provide Support Services to Customer during those periods for which Customer has purchased Support.
• In certain geographic territories, Opslogix may use a reseller or distributor to provide first-level Support services. If you have purchased Support from a reseller or distributor approved by Opslogix to provide first-level support, you will deal directly with such reseller or distributor unless directed otherwise by Opslogix.
• If after making commercially reasonable efforts, including consultation of the applicable Documentation, you cannot diagnose or resolve problems or performance deficiencies in the Programs, you may submit an Incident report through your Support Contacts. Opslogix will provide Support Services for such Incident according to the support level or optional support services subscribed.
• You are entitled to submit the number of annual Incident reports to Opslogix specified in the Opslogix Support Guide based on the Management Licenses purchased. If you've purchased an incremental Incident pack, you may submit the additional number specified for that pack. If your Incident reports for the year are used up, Opslogix is not obliged to respond to new Incidents unless you buy an incremental Incident pack.
• Support Services for the Programs can be accessed by Customer between 8:00 and 18:00 Central European Time (CET), Monday through Friday (excluding Opslogix HQ holidays) via telephone and e-mail.
• Your Support Contacts may also access self-service support materials via Opslogix Web Support, including:
  • Technical and product information
  • Frequently asked questions
  • Solutions to common problems
  • Release notes
  • A searchable knowledge base
  • Community forums
  • Other technical information for self-diagnosis and resolution
  Opslogix Web Support is available 24/7, subject to scheduled maintenance and temporary outages.
• When you report an Incident, Opslogix consults with you to classify the Incident according to severity and nature, logging it in their tracking system as Severity 1, 2, or 3. Severity definitions are found in the Opslogix Program Guide. In case of disagreement, Opslogix's final judgment applies.
• You may designate the number of Support Contacts per the Opslogix Support Guide and Management Licenses purchased. Support Contacts are the only personnel authorized to access Opslogix technical support and Web Support. Opslogix is not obliged to communicate with or support any other Customer personnel or users.
• Opslogix will use commercially reasonable efforts as described in the Support Guide to provide Error Corrections for Programs, provided Opslogix can reproduce the suspected Error and that:
  • You have not modified the Programs
  • You use the Programs as designed
  • You have implemented all upgrades, Error Corrections, and patches issued by Opslogix
  • Suspected Errors are not due to misuse, neglect, or external damage
  Incident reports should contain sufficient detail for Opslogix to understand and reproduce the issue. If Opslogix identifies an Error, they will use commercially reasonable efforts to diagnose it and provide an Error Correction or available software patch, aiming for target response times set in the Opslogix Support Guide.

4. MAINTENANCE

• Subject to the terms and conditions of this Agreement and payment of the applicable Support fees, Opslogix will provide Maintenance to Customer during those periods for which Customer has purchased Support.
• Pursuant to Maintenance, Opslogix shall provide Customer with all minor and major upgrades for the Programs and/or Distributed Products, if and when made generally commercially available. Upgrades are defined as those versions of the Programs that Opslogix, in its discretion, deems to be logical improvements or extensions to the Programs and that have been released for general commercial distribution.
• Upgrades do not include additional Program modules that may be released by Opslogix from time to time and that may or may not be connected to or integrated with the Programs.
• For Distributed Products, the designation of minor and major upgrades shall be as specified by the applicable third-party developer.
• Customer’s right to use any upgrades received pursuant to this Agreement is limited to rights granted in the Opslogix End User License Agreement. Receipt of upgrades does not increase the number of authorized copies or licenses.
• Releases designated by Opslogix as “third digit” releases (e.g., 4.2.2 to 4.2.3) are not considered upgrades, but rather fix releases which must be specifically requested by Customer.
• Support for a particular upgrade of a Program is available for a minimum of five (5) years from the date of first commercial release.
• If You have cancelled or discontinued Support for a period of one year or longer, You will not be entitled to receive free upgrades upon reinstatement of Support – upgrades will only be provided by Opslogix upon payment of the current list price for the upgrade or license fee for the most current version of the Programs, as applicable.
• Customer is responsible for distributing new minor and major upgrades within Customer’s and Affiliates’ organization, as permitted by the licensing terms of the Opslogix End User License Agreement.

5. LIMITED WARRANTY

• Opslogix warrants that it will use commercially reasonable efforts to provide Support.
• Customer's sole and exclusive remedy for any breach of the foregoing warranty shall be to have Opslogix re-perform the applicable Support service, provided such request for re-performance is made within thirty (30) days of the provision of the Support service that did not meet the foregoing warranty.
• EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN THIS SECTION, SUPPORT IS PROVIDED “AS IS,” WITHOUT ANY REPRESENTATIONS, CONDITIONS, OR WARRANTIES OF ANY KIND.
• WITHOUT LIMITATION, Opslogix AND ITS AFFILIATES, LICENSORS, SUPPLIERS, SUBCONTRACTORS, AND DISTRIBUTORS DISCLAIM ANY EXPRESS OR IMPLIED REPRESENTATIONS, CONDITIONS, AND/OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, DURABILITY, TITLE, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY STATUTE, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE.
• THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.
• CUSTOMER ACKNOWLEDGES AND AGREES THAT BUT FOR THE DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS AND LIMITATION OF LIABILITY, Opslogix WOULD NOT PROVIDE SUPPORT AS SET FORTH IN THIS AGREEMENT.

6. LIMITATION OF LIABILITY

• To the greatest extent permissible by applicable law, under no circumstances and under no legal theory (tort including strict liability and negligence, contract, or otherwise) shall Opslogix, its agents, representatives, distributors or licensors be liable to Customer or any other person or entity for any loss of use, revenue or profit, lost or damaged data, or other commercial or economic loss, or for any indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, even if advised of the possibility of such damages or if such damages are foreseeable.
• To the greatest extent permissible by applicable law, the maximum aggregate liability of Opslogix and its agents, representatives, distributors and licensors in any connection with this Agreement or the Programs, whether in tort (including strict liability and negligence), contract, or otherwise shall not exceed the Support fees paid by Customer under this Agreement during the twelve (12) months preceding the event or events giving rise to the claim.
• This limitation shall apply even in the event of a fundamental breach or a breach of the fundamental terms of this Agreement.
• Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so these limitations may not apply to you.

7. TERM

• This Agreement and Support shall begin on the Support Start Date and shall continue for an initial twelve (12) month period from the first day of the month following the Support Start Date (the Initial Term).
• Thereafter, this Agreement and Support shall automatically renew for successive twelve (12) month periods starting on the Support Anniversary Date (each such additional term a Renewal Term), unless at least sixty (60) days prior to the end of the Initial Term or the then-current Renewal Term Opslogix or Customer provides written notice electing not to continue Support and to terminate this Agreement at the end of the Initial or Renewal Term.
• Opslogix may terminate this Agreement immediately by giving Customer written notice if any of the following events occur:
  • Customer fails to pay any amount due to Opslogix within thirty (30) days after Opslogix gives written notice of non-payment
  • Customer is in material breach of any non-monetary provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after written notice
  • Customer has committed a non-curable material breach of this Agreement
• Sections entitled Definitions, Limited Warranty, Limitation of Liability, Fees and Taxes, Governing Law, Assignment, Confidentiality, and General shall continue in force even after termination.
• No termination of this Agreement entitles Customer to a refund of any Support fees paid, nor does it affect obligations to pay any outstanding fees relating to Support.
• Upon termination by either party, Customer shall promptly return all Opslogix confidential information and immediately pay any outstanding Support fees.

8. FEES AND TAXES

• Customer shall pay Opslogix, or its distributor or reseller if applicable, the charges and fees specified in the Quotes within the time specified in this Agreement unless another time period is specified in such Quotes.
• All charges and fees specified in any Quotes are exclusive of and do not include any taxes, duties or similar charges imposed by any government (“Taxes”).
• Customer agrees to pay or reimburse Opslogix, or its distributor or reseller if applicable, for all such Taxes other than taxes on the net income of Opslogix, or its reseller or distributor, as the case may be.
• If Customer is outside of The Netherlands, the amounts Customer remits to Opslogix, or its distributor or reseller if applicable, shall be the actual amounts due without withholding taxes or other assessments that may be imposed by authorities in the jurisdiction within which Customer is located, and which withholding taxes or assessments shall be paid by Customer.
• Upon request, Customer shall promptly furnish Opslogix with certificates evidencing payment of any withholding taxes or other assessments Customer may be required to pay in connection with Customers payment of the amounts owing under this Agreement and any Quotes.
• If it is subsequently determined that Taxes should have been paid in respect to any of Opslogixs fees under this Agreement, then Customer shall be liable for any such amounts together with any interest and penalties due thereon and/or in Opslogix's discretion shall pay Opslogix the equivalent amount that Opslogix is required to pay to the applicable tax/revenue/enforcement authorities.

9. GOVERNING LAW

• This Agreement shall be governed by the laws of The Netherlands, without giving effect to:
  • The principles of conflicts of law and that body of law applicable to choice of law
  • The United Nations Convention on Contracts for the International Sale of Goods, and/or its implementing and/or successor legislation and/or regulations
  • The Uniform Commercial Code and/or its implementing and/or successor legislation and/or regulations
  • The Uniform Computer Information Transactions Act and/or its implementing and/or successor legislation and/or regulations
• The parties agree that the courts of The Netherlands constitute a convenient forum for any litigation and both parties attorn and submit to the jurisdiction of such courts.
• Except to the extent required by law, the parties waive trial by jury.
• Each party hereby agrees to comply with all applicable laws, regulations, and government orders in performing its obligations under this Agreement.
• The parties agree that this Agreement, as well as any documentation, manuals, or any other items to be provided by one party to another (including letters, notices, or any other communication) shall be drafted and/or provided solely in the English language.

10. ASSIGNMENT

• Opslogix may assign and/or transfer all or part of its rights and obligations under this Agreement to any third party at any time without notice.
• Customer may not transfer or assign this Agreement without the prior written consent of Opslogix.
• Any successor, representative or assignee of Customer by purchase, merger, or consolidation of all or substantially all of the properties of Customer shall be entitled to the rights and shall be subject to the obligations of its predecessor in interest under this Agreement, provided that such entity executes a prior acknowledgment confirming such entity's agreement to be bound by the terms of this Agreement and Opslogix receives such written acknowledgment prior to the transfer.

11. CONFIDENTIALITY

• The parties acknowledge that they may receive confidential and/or proprietary information relating to the business of the other party or its licensors, including but not limited to trade secrets, customer lists, computer code (including the Programs), computer programming techniques, algorithms, processes, technical and marketing information, which is identified as confidential and/or proprietary at the time of disclosure or would be reasonably considered confidential (the "Confidential Information").
• The parties will only use such Confidential Information as authorized under this Agreement and will not disclose any such Confidential Information to any other person unless authorized in writing.
• Each party will implement and maintain reasonable security measures (at least those the receiving party uses to protect its own Confidential Information) to protect the other party’s Confidential Information.
• The foregoing obligations of confidentiality do not apply to information that:
  • Is or becomes generally known or available without fault of the receiving party
  • Is known by the receiving party prior to disclosure and is not restricted, as evidenced by written records
  • Is independently developed by the receiving party, as evidenced by written records
  • Is lawfully obtained from a third party who may disclose without restriction
  • Is released for publication in writing by the disclosing party
  • Is required to be disclosed by law

12. GENERAL

• This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes and replaces all prior oral or written agreements, representations, negotiations, or understandings relating to the subject matter.
• No change or modification to this Agreement shall be valid unless it is in writing and signed by representatives of both parties.
• Except for specifying the type and duration of Support, no provision in any Quote or other documentation employed by either party in connection with this Agreement shall affect the terms of this Agreement, even if accepted by the receiving party.
• Neither party shall be responsible for delays or failure of performance resulting from acts beyond their reasonable control.
• If any provision or part of any provision is found void or unenforceable by a court of competent jurisdiction, such provision or part shall be deemed severed, and the remainder of this Agreement shall remain in full force and effect.
• No party will be deemed to have waived the exercise of any right unless such waiver is in writing.
• Failure or delay by either party to exercise any rights, powers, or remedies does not constitute a waiver of those rights; single/partial exercise of a right does not prevent its subsequent exercise or the exercise of any other right.
• Customer acknowledges and agrees that Opslogix’s licensors of Distributed Products are third-party beneficiaries and have the right to enforce the obligations set forth in this Agreement.
• In this Agreement, words importing the singular include the plural and vice versa.
• The division into articles and the insertion of headings are for convenience only and do not affect construction or interpretation of this Agreement.