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Support Subscription Agreement¶
1. Product. Customer represents and warrants that it has downloaded from www.pandorabots.com or http://corporate.pandorabots.com the Pandorabots software for which Support (as defined below) is being purchased (“Product”) and that it has licensed such Product under the terms of the Pandorabots License Agreement.
2. Support and Maintenance. So long as the Support period for a Product remains in effect, all applicable fees have been timely paid for each annual Support period and Customer otherwise remains in full compliance with the terms of this Agreement, Pandorabots will use reasonable commercial efforts to provide the support and maintenance services for that Product as and to the extent described in Pandorabots’ then current standard Support and Maintenance Terms applicable to that Product, as they may change from time to time (and the currently effective version of which is attached) (“Support”). Either party may terminate Support for Products by giving notice to the other no later than 30 days before the end of the initial one year Support term (“Initial Term”) or any renewal thereof. Unless such notice is timely given, the Support period for Product will renew for successive one-year Support periods upon expiration of the Initial Term or any renewal thereof.
3. Warranty Disclaimer. All products and services are “as is” without warranty of any kind from anyone, including without limitation, any warranty of merchantability or fitness for a particular purpose or noninfringement. Further, Pandorabots does not warrant results or freedom from bugs or uninterrupted use.
4. Limitation of Liability. Notwithstanding anything else herein or otherwise, and except for bodily injury, neither Pandorabots nor any licensor shall be liable or obligated with respect to the subject matter hereof or under any contract, negligence, strict liability or other legal or equitable theory (i) for any amounts in excess in the aggregate of the fees paid to it hereunder with respect to the applicable product during the six month period prior to the cause of action or (ii) for any cost of procurement of substitute goods, technology, services or rights; (iii) for any incidental or consequential damages; (iv) for interruption of use or loss of data; or (v) for any matter beyond its reasonable control. The product is not designed, manufactured, or intended for use in hazardous environments requiring fail-safe performance where the failure of the product could lead directly to death, personal injury, or significant physical or environmental damage. The parties agree that this section 4 represents a reasonable allocation of risk and that licensor would not proceed in the absence of such allocation.
5. Identification. Pandorabots may use Customer’s name and logo in client listings. Pandorabots may issue a press release announcing the relationship contemplated hereby.
6. Fees and Payment. Concurrently with Customer’s acceptance of this Agreement, and annually in advance thereafter, Customer shall pay Pandorabots’ then current standard Support fees for Product, as calculated in accordance with Pandorabots’ then current standard methodology. Each time fees are due (and otherwise when Pandorabots requests) Customer will accurately report to Pandorabots all information relevant to Pandorabots’ then current methodology for determining fees. In addition, without limiting Pandorabots’ remedies, if at any time the criteria upon which Support fees have been paid is exceeded, Customer will so report to Pandorabots and will pay additional fees equal to 125% of Pandorabots’ then current standard fees for the excess Support (from time to time upon request, Pandorabots will be entitled to audit or have audited all systems and records relevant to assure compliance with the foregoing; any audit showing noncompliance will be at Customer’s expense). All payments shall be made in the currency of, and within the borders of the United States. Any payments more than thirty(30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. In addition, Customer will pay all taxes, shipping, duties, withholdings, backup withholding and the like; when Pandorabots has the legal obligation to pay or collect such taxes, the appropriate amount shall paid by Customer directly to Pandorabots. Customer will reimburse Pandorabots for all reasonable travel and other related expenses incurred by Pandorabots in its performance hereunder.
7. Miscellaneous. Neither this arrangement nor any Support is assignable or transferable by Customer (and any attempt to do so shall be void); Pandorabots may assign and transfer any rights and/or obligations. The provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable. This agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. This is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof and any waivers or amendments shall be effective only if made in writing; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectiveness hereof, shall have no force or effect. The substantially prevailing party in any action to enforce this agreement will be entitled to recover its attorney’s fees and costs in connection with such action. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Products and accompanying documentation provided by Pandorabots are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.”
Support and Maintenance Services Terms
Capitalized terms not defined in Section 5 below have the same meaning as in the Agreement.
1. Support and Maintenance Services. Support consists of the following (with respect to applicable Products) made available only to the number of contacts for which Customer has paid the applicable fees (each of whom is designated in writing to Pandorabots): (a) Error Correction, (b) E-mail Support, (c) Web Support, and (d) Product updates that Pandorabots in its discretion makes generally available to its Support customers without additional charge.
2. Error Priority Levels. Pandorabots shall exercise commercially reasonable efforts to correct or workaround Errors reported by Customer in the current unmodified release of Product in accordance with the priority level reasonably assigned to such Error by Pandorabots.
Priority A Errors - Pandorabots shall respond within one business day and promptly commence the following procedures: (i) assign Pandorabots engineers to the Error; (ii) notify Pandorabots management that such Errors have been reported and of steps being taken to correct such Error(s); (iii) provide Customer with periodic status reports; and (iv) initiate work to provide Customer with a Workaround or Fix.
Priority B Errors - Pandorabots shall exercise commercially reasonable efforts to include the Fix for the Error in the next regular Product maintenance release.
Priority C Errors - Pandorabots may, in its discretion include the Fix for the Error in the next major release of the Product.
If Pandorabots believes that a problem reported by Customer may not be due to an Error in a Product, Pandorabots will so notify Customer. At that time, Customer may (1) instruct Pandorabots to proceed with problem determination at its possible expense as set forth below, or (2) instruct Pandorabots that Customer does not wish the problem pursued at its possible expense. If Customer requests that Pandorabots proceed with problem determination at its possible expense and Pandorabots determines that the error was not due to an Error in the Product, Customer shall pay Pandorabots, at Pandorabots’ then-current and standard consulting rates, for all work performed in connection with such determination, plus reasonable related expenses incurred therewith. If Customer instructs Pandorabots that it does not wish the problem pursued at its possible expense or if such determination requires effort in excess of Customer’s instructions, Pandorabots may, at its sole discretion, elect not to investigate the error with no liability therefor.
3. Exclusions. Notwithstanding anything else, Pandorabots shall have no obligation with respect to or in the case of: (i) altered or damaged Products or any portion of a Product incorporated with or into other software; (ii) any Product that is not the then current release or immediately Previous Sequential Release, as applicable; (iii) Product problems caused by Customer’s negligence, abuse or misapplication or other causes beyond the control of Pandorabots; (iv) Product installed on any hardware that is not supported by Pandorabots; or (v) any software that is not identical in every respect (including branding) to Pandorabots’ official version of the Product or (vi) Errors Correction with respect to third party code that is contained in Product or where Error Correction may result in branching with respect to recognized code. Pandorabots shall have no liability for any changes in Customer’s hardware which may be necessary to use Products due to a Workaround or maintenance release.
4. Premium Support. To the extent Customer is entitled to Premium support: Customer will be given access to consultative support for areas outside the core Pandorabots software including Pandorabots extensions, scaling and AIML customization; Customer will receive faster response time to support requests; and Customer’s Error reports will be given priority over Error reports of the same priority level from Basic support customers.
- Definitions.
“E-mail support” means ability to make requests for technical support assistance by e-mail at any time (with reasonable efforts by Pandorabots to respond within one business day) concerning the installation and use of the then current release of a Product and the Previous Sequential Release.
“Error” means an error in a Product which significantly degrades such Product as compared to Pandorabots’ published performance specifications.
“Error Correction” means the use of reasonable commercial efforts to correct or workaround Errors.
“Fix” means the repair or replacement of object or executable code versions of a Product or documentation to remedy an Error.
“Previous Sequential Release” means the release of a Product which has been replaced by a subsequent release of the same Product. Notwithstanding anything else, a Previous Sequential Release will be supported by Pandorabots for no more than twelve (12) months after release of the first subsequent release.
“Priority A Error” means an Error which renders a Product inoperative.
“Priority B Error” means an Error which substantially degrades the performance of a Product or materially restricts Customer’s use of such Product.
“Priority C Error” means an Error which causes only a minor impact on the Customer’s use of a Product.
“Web Support” means information made generally available to Pandorabots’ support customers at locations on the World Wide Web designated by Pandorabots, including support forums, frequently asked questions, product documentation and bug reporting.
“Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of a Product.
These terms and conditions constitute a service contract and not a product warranty. This attachment is an additional part of the agreement and does not change or supersede any term of the agreement except to the extent unambiguously contrary thereto.
| Revision: | Support Subscription Agreement - 1002-20090904 |
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Last update:
Feb 15, 2014