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1. Support Services. During the term of this Agreement and subject to the terms and conditions hereof and the Agreement, including payment of the applicable Support Fee described in the applicable Order Form, Company, if Customer purchases directly from Company, agrees to provide the following support services to Customer:
a. Company agrees to use prompt and commercially reasonable efforts to correct verifiable and reproducible Errors in the Software which are reported to Company by Customer in accordance with Company’s standard reporting procedures. For purposes of this Agreement, the term “Error” means any failure of the Software to function substantially as provided in the then current Documentation. The correction of Errors shall involve either a Software modification or addition that, when made or added to the Software, makes it capable of functioning substantially as provided for in the Documentation or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect on Customer of the Error. Company shall have no responsibility under this Agreement with respect to Errors in any version of the Software other than the most recent release thereof made available by Company to Customer pursuant to this Agreement, provided that Company shall continue to support a prior release for a reasonable period sufficient to allow Customer to implement the most recent release subject to Section 3 (Limitations of Support) below.
b. Company’s obligations under this Section 1 are conditioned upon proper use of the Software and shall not apply if Customer makes or permits any modification or alteration therein, or deviates from the operating procedures which are suggested by Company, or if an Error results in whole or in part from any neglect, accident or misuse by Customer or its employees or agents, or from any other equipment failure or failure to maintain a proper operating environment. If Company performs services to correct an Error and it is determined that the Error resulted in whole or in part from circumstances described in the preceding sentence, Company shall have the option to charge Customer a reasonable fee for such service in addition to the fee provided for Support Services, which fee shall be based on Company’s then standard rates for personnel, travel and other costs.
c. Company will provide a Help Desk and electronically-available support resources to support Customer’s and its Users’ use of the Software. The Help Desk and other support resources will be available as set forth in the then-current Documentation (available on the Company Legal Documents Resource Center on Company Support Center). The Help Desk provided by Company shall not be a substitute for proper training of Customer’s employees. Except in emergency situations, all telephone communications by Customer shall be made by Customer’s representatives designated by it from time to time for such purposes.
d. Company shall supply Customer with upgrades to the Software developed by Company which may contain error corrections and/or enhancements. For the avoidance of doubt, upgrade shall mean improvements to the Software provided hereunder and shall not include new products developed by Company. Upgrades provided to Customer pursuant to this Agreement shall in no event include source code. Customer is responsible for installing and deploying the upgrade unless Company is providing hosting services, in which case Company shall install and deploy the upgrade on behalf of Customer.
e. Company will provide regular routine system administration and maintenance for the Software components and Services hosted by Company. Planned maintenance will occur during the routine maintenance windows set forth in the Documentation. Company may also provide emergency maintenance as needed without prior notice to Customer. Company will monitor and administer hourly incremental and full weekly disk backup. Company will also monitor and administer weekly full backups with offsite storage with a 30 day retention period. Longer offsite retention periods are available, but will require additional costs for additional storage fees.
2. Customer Responsibilities.
a. Customer agrees to follow installation requirements, data backup, and archiving procedures outlined in the Documentation, unless hosting is performed by Company. Customer’s failure to follow such procedures releases Company from any obligation to perform Support Services for related Error(s).
b. Customer, or Customer’s contractor, agrees to provide assistance at the location of the Software or equipment problem when telephone or remote diagnostic support is performed. This assistance includes, but is not limited to, moving cables, rebooting equipment, following verbal instructions to edit files and search directories, read screens, and any other such assistance as is required by Company to effectively diagnose and resolve the Error. Unless hosted by Company, Customer agrees to provide reasonable remote or on-site access to the Software and the hardware on which the Software is hosted, sufficient to perform the Software Support described in this Agreement. Customer’s inability or refusal to provide such assistance or access releases Company from any obligation to perform Support Services at that location, for the affected service incident(s).
c. Customer agrees to limit use of Support Services to occasions when the Software fails to function as described in the Documentation, or Customer generally requires clarification of the Documentation. Customer agrees to furnish descriptions of Errors in the form reasonably requested by Company’s support staff. Customer also agrees to reasonably assist Company’s efforts to duplicate the Error.
d. For any on-site maintenance, support or services requested by Customer and agreed to by Company, Customer shall pay for such services, and related costs and expenses, in the amounts and at the times reflected on Company’s then current price list, as it may be adjusted from time to time. Unless otherwise explicitly agreed to in writing, Company will not provide on-site services on weekends or Company’s then-current holidays.
3. Limitations of Support.
a. Company provides Support Services for the current version of the Software. Company will also, at Customer’s request, provide Support Services for a previous version of the Software for a period of twelve months following availability of the new version to Customer. With respect to new versions, when this twelve-month period expires, Customer must use the new version to continue to receive Support Services. Customer understands and agrees that Company, at its option, may provide support for a prior version, but that may not include fixes or changes to the prior version. Additionally, Customer understands and agrees that it may be required at Company’s discretion to upgrade to the applicable new version in order to receive changes or fixes to a prior version.
b. After Company has notified Customer of the following issues, Company reserves the right to refuse Software Support requests when:
c. Unless caused directly by Company’s negligence, Company shall not be obligated to provide Support Services for the following matters:
d. Notwithstanding the foregoing, Company may consent to provide such Support Services on special terms agreed to by the parties. If following the provision of Support Services it is established that the problem requiring Support Services was due to one of the above excluded conditions, then Customer shall make Company whole and reimburse Company for the 100% of the cost of Support Services at Company’s standard support rates.
4. Additional Services. Upon written request from Customer from time to time, but subject to specific agreement by Company in each instance, Company shall use commercially reasonable efforts to perform additional support services which Customer may reasonably need in addition to those otherwise provided for in this Agreement. Customer agrees, upon receipt of an invoice, to pay reasonable fees and expenses for such additional services, which shall be based on Company’s then standard rates for personnel, travel and other costs.
5. Additional Licenses. Customer’s purchase of additional licenses also requires Customer’s purchase of prorated Support Services to match Customer’s current Software Support Services. Any additional licenses, interfaces, and add-on Software and Services will increase the annual Support Services fees and will be included in the annual renewal amounts, billed at the prevailing rate(s). The Support Services term for additional licenses, interfaces and add-on Software and Services is coterminous with Customer’s Support Services term for its Software, unless otherwise stated on an Order Form.
6. Reinstatement of Support Services. In the event that Customer elects to stop receiving Support Services and later elects to reinstate Support Services, Customer shall pay the full amount of Support Services Fees that would have been due during the period when Customer was not receiving Support Services, and an additional fee, pursuant to the then current fee schedule, in each case prior to the reinstatement of Support Services.
