This Support and Maintenance Agreement (“Agreement”) between you (either an individual or an entity) (“Customer”) and CIMQUEST INGEAR, LLC. (“INGEAR”) is a legal agreement for the provision of certain support services by INGEAR. By purchasing a Software Maintenance Subscription (SMS), Customer agrees to be bound by the terms of this agreement and will provide software maintenance and support services as provided in this Agreement at the service level to which the Customer has subscribed.
1. “Error” means
a) a material failure of supported INGEAR software to function in accordance with its documentation,
b) any other material defect in or malfunctioning of supported INGEAR software.
2. “Licensed Software” means the INGEAR software title licensed to a Licensed User.
3. “Licensed User” means a legal user (contact person or designated individual) of a INGEAR Licensed Software product.
4. “Update” means a bug fix, patch, or other revision to or modification of software that INGEAR provides to Licensed Users. Updates do not include Upgrades. When you receive an update, you surrender the rights and license of previous version(s)
5. “Upgrade” means a major release of software; generally, upgrades include major functionality improvements and/or enhancements. The distinction between an upgrade and an update is decided solely at the discretion of INGEAR, LLC. When you receive an upgrade you surrender the rights and license of previous version(s).
6. “Contact Person” means a single individual designated by the Customer to interface with INGEAR for the purpose of resolving issues requiring the support of INGEAR.
B. Support Subscription Program
1. Standard Support: All Licensed Users receive ninety (90) days of email support at no additional charge, starting on the purchase date of the Licensed Software. Customers reporting problems during this period may send email to firstname.lastname@example.org or use knowledge base found in the Support section of the INGEARDRIVERS.com web site.
2. Support and Maintenance Subscription (SMS): All Licensed Users with a paid up subscription to the SMS receive:
i) Product Upgrades (Major/Minor)
ii) Phone Support during normal business hours (see Working Hours for Customer Support)
iii) Priority Helpdesk response.
iv) Unlimited Email Support.
Licensed Users reporting errors shall send email to email@example.com outlining the problem and specifying the software version of our tools in which the problem is experienced. Error reports received by INGEAR Customer Support during working hours will be minimally acknowledged within 24 hours and a response sent to the Customer within 48 hours of receipt of the report. Working Hours for Customer Support are MON-FRI 8:30AM-5:30PM Eastern Time US (excluding observed holidays) .
C. Error Report Handling & Procedures.
1. Customers having purchased support must designate one (1) primary Contact Person. INGEAR Support must be provided with:
a. Name of single contact person.
b. Telephone number
c. E- mail address
d. The contact person will serve as your only contact with INGEAR for the purpose of initiating support incidents and providing the necessary information required to resolve them.
2. The support email address is used for error reporting unless stipulated otherwise in a custom support agreement. When reporting an Error you must:
a. Describe the Error in reasonable detail.
b. Indicate the software version, serial number, or order ID (from your paid invoice)
c. Indicate the severity of the Error as follows:
1 – exceptions
2 – error in data
3 – incorrect processing but not resulting in data error
4 – question regarding functionality
d. Specify any error message(s) observed.
3. INGEAR will make every commercially reasonable effort to respond to Customer Error reports within the stipulated time periods.
4. INGEAR acknowledgements of Error reports will contain either a resolution of the Error or acknowledgement that the Error report has been received and is being investigated. If INGEAR requests further information about an Error, you must promptly provide the requested information in order to ensure a prompt response from INGEAR. Customer’s failure to provide further information to INGEAR in a timely manner may affect INGEAR’s ability to reasonably solve an Error and Customer acknowledges that INGEAR will not be in breach of this Agreement in such event.
5. INGEAR will make reasonable efforts to correct within commercially reasonable time periods, any substantiated Error in the unaltered software reported by the Customer as specified above. INGEAR will determine the form of any Error correction, in their sole discretion, which may include, by way of example and not limitation, an individual patch, a work around, or a maintenance release provided in the normal course of INGEAR’s maintenance release schedule.
6. INGEAR provides support only for the most current major release of software and the immediately preceding major release. INGEAR will have no obligation to attempt to correct reported Errors that
a) cannot be reproduced or verified;
b) in INGEAR’s reasonable judgment, should not exist under the circumstances in which the software is being used, taking into account its design specifications;
c) result from;
i) misuse of software by you or others;
ii) modifications to software rendering it non-standard, regardless of who performed the modifications;
iii) failure or interruption of electrical power;
iv)obsolescence of software due to changes in your network, hardware, or third party software;
v) an accident or other cause external to the software, including, but not limited to, problems or malfunctions related to your network, hardware, or third party software. INGEAR cannot guarantee that all Errors will be corrected.
7. These terms and conditions do not modify any warranty, warranty disclaimers, or limitations on liability set forth in any agreement between the Customer and INGEAR. INGEAR has no obligation to implement Customer requests for changes or enhancements.
8. If INGEAR determines an Error to be outside the scope of INGEAR’s support obligations, INGEAR may charge the Customer for time and reasonable expenses responding to the reported Error, and the Customer is responsible for payment of these fees. INGEAR’s time will be billed at its standard daily consulting rate in effect for such services at the time the services are rendered. INGEAR’s support services do not include training or software implementation, integration or development services. These services are available at additional cost.
1. Unless software maintenance has been stipulated in a custom software licensing or software agreement with the Customer, the following terms and conditions apply:
2. INGEAR will periodically make software Updates available to all Customers at their own discretion. Updates will, upon installation, automatically become subject to the terms and conditions of the INGEAR license agreement pertaining to the software being updated.
3. Software Upgrades are not automatically distributed to all Customers and may, at the discretion of INGEAR, be restricted to those Customers paying a maintenance or upgrade fee.
III. General Terms and Conditions
1. All services provided hereunder, including Error corrections are provided on an “AS IS” basis. This Agreement does not augment or alter the warranties provided under the Licensed Software’s license or purchase agreements.
2. INGEAR AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. CUSTOMER HAS NO CONTROL OVER YOUR USE OF THE SOFTWARE. CUSTOMER DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS THAT MAY BE OBTAINED BY ITS USE. CUSTOMER IS NOT RESPONSIBLE FOR PROBLEMS ASSOCIATED WITH OR CAUSED BY INCOMPATIBLE OPERATING SYSTEMS OR EQUIPMENT, OR FOR PROBLEMS IN THE INTERACTION OF THE SOFTWARE WITH OTHER SOFTWARE (INCLUDING SOFTWARE DEVELOPMENT TOOLS) NOT FURNISHED BY CUSTOMER. CUSTOMER DOES NOT REPRESENT, WARRANT, OR GUARANTEE THE ACCURACY AND TIMELINESS OF THE DATA CONTAINED IN THE SOFTWARE AND CUSTOMER SHALL HAVE NO LIABILITY OF ANY KIND WHATSOEVER TO YOU, OR TO ANY OTHER PARTY, ON ACCOUNT OF ANY INACCURACIES IN, INCLUDING ANY LIABILITY FOR NEGLIGENCE, OR UNTIMELINESS OF THE DATA, OR FOR ANY DELAY IN REPORTING SUCH DATA CONTAINED IN THE SOFTWARE. VARIOUS INFORMATION IN THE SOFTWARE CONSTANTLY CHANGES, AND THE INFORMATION IN THE SOFTWARE IS ONLY AS OF A PARTICULAR DATE. CUSTOMER DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER IS NOT RESPONSIBLE FOR PROBLEMS CAUSED BY ACCIDENT, ABUSE, MISHANDLING, ALTERATION, OR IMPROPER USE. CUSTOMER DOES NOT WARRANT OR GUARANTEE THE SUITABILITY OF THE SOFTWARE OR THAT IT WILL MEET YOUR REQUIREMENTS.
3. In no event shall Customer’s cumulative liability for any claim arising in connection with this Agreement exceed the amount of the total fees and charges paid to INGEAR for support services by Customer during the six (6) months preceding any such claim.
4. Regardless of whether any remedy set forth in this Agreement fails of its essential purpose, IN NO EVENT SHALL INGEAR BE LIABLE TO CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED, EVEN IF INGEAR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
5. Waiver by any party of the breach of any provisions of this Agreement by the other party shall not be construed as a continuing waiver of such provision or a waiver of any other breach of any other provision of this Agreement. To be enforceable, a waiver must be in writing and signed by the waiving party.
6. Except as set forth herein, this Agreement may not be assigned or transferred by Customer to any third party; or to a successor entity by way of merger, acquisition, purchase of all or substantially all of its assets, or operation of law.
7. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. All prior or contemporaneous statements or agreements with respect to such subject matter are superseded by this Agreement.
8. No amendment of this Agreement shall be effective unless in a writing specifically referencing this Agreement and signed by the duly authorized representative of both parties
9. The validity, construction, and enforcement of this Agreement, and the determination of the rights and duties of the parties, shall be governed by the laws of the Commonwealth of Pennsylvania exclusive of any choice of law provisions.
10. Notices. Any demand, notice, or other communication required or permitted under this Agreement shall be in writing and shall be either (a) hand-delivered to the addressee, (b) faxed to a telephone number specified by the addressee in a previous notice, or © deposited in the mail (first class, registered, or certified) or delivered to a private express company, postage or freight prepaid, addressed to INGEAR at the INGEAR address and to Customer at Customer’s address. Each party may change such party’s fax number or address from time to time by giving the other party notice of the change.
11. Headings. The article and section headings used in this Agreement are for convenience and reference only, and the words contained therein shall not be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of any of the provisions of this Agreement.
12. Should either party fail to perform or should its performance under this Agreement be delayed by any factor beyond the reasonable control of the delayed party, then the time for performance of the delayed party shall be extended by a period of time equal to the duration of such delay provided that the parties work diligently to minimize any such delay.
13 GOVERNING LAW/JURISDICTION. These Agreement is governed by the laws of the Commonwealth of Pennsylvania. The parties expressly consent to the personal jurisdiction of the Commonwealth of Pennsylvania and, if applicable, the federal courts for the Eastern District of Pennsylvania and agree to venue in those courts, and further agree that this Agreement shall be construed, performed and interpreted in accordance with, and governed by, the laws of the Commonwealth of Pennsylvania, excluding the Pennsylvania principles of conflicts of law. English shall be the single language used to interpret this Agreement.