Wise Systems Master Hosted Services Agreement
1. DEFINITIONS.
“Customer Data” means all electronic data or information submitted by Customer to the Service.
“Documentation” means the user and technical documentation, as up dated from time to time.
“Order” means the ordering documents, including but not limited to a Customer purchase order, Order Form, Statement of Work or accepted quotations, representing the purchase of the Service and any Profession al Services agreed to between the parties in writing from time to time and that specify, among other things, the Service ordered, any restric tions on sthe use of the Service, and the applicable fees. Such Orders shall be deemed incorporated into and a part of this Agreement.
“Professional Services” means training or other professional services identified in an Order or Statement of Work.
“Service” means the online, web-based Software service described in the Order Form.
“Software” means Company’s software application and third-party products included therein provided by Company to the Customer through the Service.
“Statement of Work” a mutually executed document describing the Professional Services provided by Company to Customer and such oth er terms and conditions mutually agreed by the parties.
“Users” means Customer’s employees, consultants, contractors or agents who are authorized to use the Software.
2. SERVICE.
2.1.Provision of Service. Company shall make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement. Only permitted Users may use the Service. The Service as specified in an Order shall commence upon completion of installa
tion of the Software in Company’s hosted facility or thirty (30) days following the Effective Date of this Agreement, whichever occurs first, or upon such other date as specified in an Order.
2.2.Limitations. In addition to the terms set forth elsewhere in this Agreement, Customer’s use of the Service is specifically subject to the following: (a) the Service shall be used only by Users for the internal business purpose of Customer, including for any unincorpo
rated divisions and majority owned subsidiaries of Customer, but excluding processing the data of or for any other third parties, with the exception of data for Customer’s clients, if any; (b) Customer may copy the Documentation to the extent necessary for Customer to exercise its rights hereunder. Customer shall reproduce all copyright, trademark or other proprietary rights notices on any copies of the Documentation and all such copies shall be subject to the terms, con
ditions and obligations under this Agreement; (c) Customer shall not reverse engineer, reverse assemble, decompile, or disassemble the Software; (d) Customer shall not modify, distribute, translate, or cre ate derivative works based on the Software; (e) Customer shall not remove, alter, cover or distort any copyright, trademark or other pro prietary rights notices on the Software or the Service; (f) the Software and the Service may not be sublicensed, distributed, leased, rented, offered under timesharing or application services providers’ agree ments or otherwise transferred to other third parties by the Customer; (g) Customer may not use the third party software provided with the Software independent from its use of the Software and the Service; and (h) Customer shall comply with Company’s acceptable use poli cy for the Service. Customer acknowledges and agrees that the input of data and accuracy and adequacy thereof, including the output gen
erated as a result of such input, is under the exclusive control of Cus tomer. Any use made by Customer of the data output, or any reliance thereon, is the sole responsibility of Customer.
2.3.Company Responsibilities. Company shall: (i) provide support consisting of telephone help desk or online support to the Customer’s designated support contacts as set forth in Company’s Customer Sup port Service guidelines, attached hereto as Exhibit B; and (ii) use commercially reasonable efforts to make the Service generally avail able 24 hours a day, 7 days a week except for: (a) planned downtime which may include weekly maintenance every Sunday between the hours of 3:00p.m. EST to 9:00p.m EST, (b) emergency maintenance if deemed necessary and (c) down time caused by an event of Force Majeure. Without limiting the foregoing, Company is not responsible for acts or omissions of Customer’s employees, agents, contractors or representatives that result in failure of, or disruption to the Service.
3. TERM AND TERMINATION.
3.1.Term of Agreement. This Agreement will commence upon the Ef fective Date and will continue for so long as the Service is being provided pursuant to any Order or renewal thereof.
3.2. Renewal Terms. Unless otherwise mutually agreed to in an Order, this agreement will automatically renew for successive one-year terms unless terminated thirty days prior to the end of the term. The renewal term will start the sooner of 15 months from the execution of the Order or upon the anniversary of initial solution deployment. Upon renewal, subscription fees will automatically increase by 3% each year.
3.3.Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expira tion of the notice period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insol vency, receivership, liquidation or assignment for the benefit of credi tors. Company may terminate the Agreement for cause: (i) upon thirty (30) days written notice of failure to pay for the Service, pro vided such breach remains uncured at the expiration of the notice period; (ii) automatically upon breach of Sections 2.1, 2.2, 4.1 or 5 (as regards the Software); or (iii) if the Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insol vency, receivership, liquidation or assignment for the benefit of credi tors.
3.4.Obligations upon Termination. Upon termination of the Agreement, Customer shall cease all use of the Service. Upon termination of the Agreement, each party shall return Confidential Information of the other party in its possession to the other party.
3.5.Outstanding Fees. Termination of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination.
3.6.Destruction of Customer Data. Within sixty (60) days of the effec tive date of termination of this Agreement, Company shall delete the Customer instance, no longer perform backup activities on the in stance and all backups of such Customer Data will be securely re moved. During such period until the Customer instance is deleted, Company agrees to provide Customer with reasonable access to its Customer Data.
4. OWNERSHIP.
4.1.Intellectual Property. Title to and ownership of all intellectual prop erty rights including, without limitation, any patent, trademark, copy right or intellectual or industrial property right, relating to the Service
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shall at all times remain with Company or its licensors. Customer expressly acknowledges that it does not have and shall not, by virtue of this Agreement, acquire any title or proprietary rights whatsoever of any kind in or over the Service or any adaptation, modification, derivation, addition or extension to the Service, whether made by Company or Customer, and that Customer’s sole right to the Service is as set forth in this Agreement. This Agreement does not authorize Customer to use Company’s name or any of its trademarks or those of its suppliers and/or licensors in any manner whatsoever, without Company’s prior written approval.
5. CONFIDENTIAL/PROPRIETARY INFORMATION.
5.1.Restrictions. The parties acknowledge that, in the course of their dealings, each party may acquire Confidential Information (as de fined in Section 5.2 below) of the other party. Neither party shall use or disclose any Confidential Information of the other party except as permitted by or in furtherance of the purposes of this Agreement. Confidential Information of a party will be maintained under secure conditions by the other party using reasonable security measures and in any event not less than the same security measures used by the receiving party for the protection of its own Confidential Information of a similar kind. Any Customer employees or agents having access to the Software shall be made aware of and are subject to the terms and conditions set forth herein.
5.2.Definition of Confidential/Proprietary Information. As used herein, “Confidential Information” means trade secrets, the Customer Data, the Software and other non-public information of or concerning such party or its business, products, or services. Information will be con
sidered to be Confidential Information if it (a) is marked as confiden tial, proprietary, or the equivalent, (b) is identified by the disclosing party as confidential or proprietary before, during, or promptly after the presentation, communication, or other disclosure thereof, or (c) reasonably should be understood to be confidential or proprietary based on the circumstances surrounding disclosure and/or the manner such information is treated in the industry. Notwithstanding the fore going, information shall not be considered to be Confidential Infor mation to the extent that it (i) is already known to the receiving party on a non-confidential basis at the time it is first obtained from the disclosing party, (ii) is or becomes publicly known through no wrongful act of the receiving party, (iii) is rightfully received by the receiving party from a third party without restriction on use or disclo sure, or (iv) was independently developed by the receiving party without the use of any Confidential Information of the disclosing party.
5.3.Compelled Disclosure. If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior notice of such compelled dis closure (to the extent legally permitted) and reasonable assistance, at disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
5.4.Remedies. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of this Section 5, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
6. FEES AND PAYMENT.
6.1.Fees. The fees for the Service and the Professional Services are set forth in the Order Form. Customer shall pay all fees specified in all executed Orders hereunder plus all applicable taxes, duties, custom charges and shipping charges. Except as otherwise provided, all amounts payable to Company under this Agreement are stated and shall be paid in U.S. dollars.
6.2.Payment. Unless otherwise mutually agreed to in an Order, all fees are due net thirty (30) days from the invoice date. Fees for the Ser
vice will be invoiced annually in advance unless otherwise specified in the relevant Order. Any agreement for monthly invoices will re quire Customer to provide ACH or credit card by which payments will be automatically paid. Any fees for such transactions will be paid by the Customer. If Customer reasonably and in good faith disputes all or any portion of any invoice, Customer shall notify Company in writing of its objection within ten (10) days from the date of Cus tomer’s receipt of the invoice, provide a detailed description of the reasons for the objection, and pay the portion of the invoice which is not in dispute. Any undisputed amounts not paid within the period set forth above shall bear interest at a rate equal to the lower of twelve percent (12%) per annum or the maximum rate of interest allowable under applicable law. All costs incurred for outside collec tion and related bank charges shall be paid by Customer. Customer shall pay any sales, use or other taxes of any nature, assessed upon or with respect to the Service and Professional Services which are im posed by any entity, but excluding taxes based on Company’s net income. If Company determines subsequent to original invoicing that additional taxes should have been charged, then Customer shall remit such taxes to Company within thirty (30) days of presentation of a valid invoice for such taxes to the extent that such taxes were not self-assessed as use tax by Customer.
6.3.Suspension. If Customer’s account is thirty (30) days or more over due (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Com pany reserves the right upon ten (10) days prior written notice to Customer, to suspend the provision of any Service or Professional Services, without liability to the Customer, until Customer pays all overdue amounts in full. Suspension shall not relieve Customer of its obligation to pay the entirety of the fees due.
7. LIMITED WARRANTY.
7.1.Authority and Performance. Each party represents and warrants that (i) it has the legal right and authority to enter into this Agreement and perform its obligations under this Agreement, and (ii) the perfor mance of its obligations and use of the Services (by Customer and its Users) will not violate any applicable laws, regulations, or cause a breach of any agreements with any third parties.
7.2.Service Warranty. Company represents and warrants that the Ser vice will perform substantially in accordance with the Documentation under normal use and circumstances. In the event of any breach of the warranty set forth in this Section which is so reported by Cus tomer to Company in writing, Company’s sole and exclusive respon sibility, and Customer’s sole and exclusive remedy, shall be for Com pany to correct any reported failure causing a breach of this warranty, however, that IF WITHIN A COMMERCIALLY REASONABLE PERIOD, COMPANY FAILS TO CORRECT SUCH DEFECTS THEN CUSTOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE A REFUND OF THE PREPAID POR TION OF THE FEES PAID FOR THE UNUSED PORTION OF THE TERM OF THE SERVICE.
7.3.Professional Services Warranty. Company represents and warrants that the Professional Services will be performed in accordance with industry standards. In the event of any breach of the warranty set forth in this Section which is so reported by Customer to Company in writing within thirty days of the performance of such Professional Services, Company’s sole and exclusive responsibility, and Cus
tomer’s sole and exclusive remedy, shall be for Company to correct any reported failure causing a breach of this warranty, however, that IF WITHIN A COMMERCIALLY REASONABLE PERIOD, COM PANY FAILS TO CORRECT SUCH DEFECTS THEN CUS TOMER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO RECEIVE A REFUND OF THE FEES PAID BY THE CUSTOMER FOR THE PORTION OF THE PROFESSIONAL SERVICES WHICH ARE NON-CONFORMING.
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7.4.Disclaimer of All Other Warranties. THE EXPRESS WAR RANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND COMPANY AND ITS LICENSORS DISCLAIM, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTA TIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE SOFTWARE AND THE SERVICES AND PROFESSIONAL SERVICES, WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE, IN CLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT COMPANY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), OR NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY.
8.1.Direct Damages. TO THE EXTENT PERMITTED BY APPLICA BLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND COMPANY’S LICENSORS FOR ANY BREACH OR DEFAULT UNDER THIS AGREEMENT (INCLUDING, WITH OUT LIMITATION, ANY BREACH OF ANY WARRANTY GIVEN BY COMPANY UNDER THIS AGREEMENT) SHALL BE LIMIT ED TO THE AMOUNT OF SUCH PARTY’S DIRECT DAMAGES RESULTING FROM SUCH BREACH OR DEFAULT, NOT TO EXCEED THE AMOUNTS PAID OR PAYABLE TO COMPANY BY CUSTOMER WITH RESPECT TO THE SOFTWARE OR THE SERVICE OR PROFESSIONAL SERVICES GIVING RISE TO SUCH BREACH OR DEFAULT WITHIN THE LAST TWELVE MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE THE CAUSE OF ACTION AROSE.
8.2.Indirect Damages. TO THE EXTENT PERMITTED BY APPLIC ABLE LAW, IN NO EVENT SHALL EITHER PARTY AND COM PANY’S LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNI TIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES (IN CLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFITS OR FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS) ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR THE OPERATION OR USE OF THE SOFTWARE OR THE SERVICE OR THE PROFESSIONAL SER VICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
8.3.Limitation of Action. Except for actions for nonpayment of fees hereunder, no action (regardless of form) arising out of this Agree ment may be commenced by either party more than two (2) years after the cause of action has accrued.
9. INDEMNIFICATION.
9.1.Indemnification by Company. Subject to the provisions of Section 9.2, Company shall defend Customer against any claim, suit, action or proceeding (each, an “Action”) brought against Customer by a third party to the extent that the Action is based upon a claim that the Software infringes any United States copyright or United States patent, and Company will indemnify and hold Customer harmless from damages, losses and liabilities finally awarded against Cus
tomer in any such Action that are specifically attributable to such claim or those which are agreed to in a monetary settlement of such Action made by Company. If the Software becomes, or in Compa ny’s opinion is likely to become, the subject of an infringement or misappropriation claim, Company may, at its option and expense, either: (i) procure for Customer the right to continue using the Soft ware, (ii) replace or modify the Software so that it becomes non-in fringing (provided any such replacement or modification does not materially degrade the Software’s functionality), or (iii) if (i) or (ii) are not commercially practicable despite Company using commer cially reasonable efforts, terminate this Agreement and provide Cus
tomer with a pro-rata refund of any fees paid under this Agreement for the remainder of any term for which the Service will not be pro vided following such termination. Notwithstanding the foregoing, Company will have no obligation with respect to any Action if the Software is being used not in accordance with this Agreement or not in accordance with the Documentation, or has been modified by Cus tomer or any third party. Company’s obligations under this Section 9.1 shall constitute its only obligations in the event that any claim or action is brought against Customer alleging that the Software in fringes, misappropriates, or otherwise violates the rights of any third party.
9.2. Notification and Cooperation. The obligations under this Section 9 are conditioned on: (a) Customer notifying Company promptly in writing of the commencement of any Action, (b) Customer giving Company sole control of the defense thereof and any related settle
ment negotiations, and (c) Customer cooperating with Company in such defense.
10. SERVICES.
11.1 Professional Services. From time to time during the term of this Agreement, Company may perform Professional Services as de scribed in a separately executed and delivered Statement of Work. Each Statement of Work shall be governed by the terms and condi tions contained herein. In the event of a conflict between the terms and conditions contained in this Agreement and the terms set forth in the Statement of Work, the terms in the Statement of Work shall pre vail.
11. GENERAL.
11.1. Miscellaneous. Any provision of this Agreement, other than the provisions regarding payment obligations, that is held to be invalid, illegal or unenforceable by a court of competent jurisdiction shall be severed from this Agreement, and the remaining provisions shall re
main in full force and effect. No failure or delay by either party to exercise any right or remedy specified herein shall be construed as a current or future waiver of such remedy or right, unless said waiver is in writing signed by a duly authorized representative of the party issuing such waiver.
11.2. Surviving Provisions. The following provisions of this Agreement shall survive any termination or expiration hereof: Sections 2.4, 3.3, 3.4, 3.5, 4, 5, 6, 7.4, 8, 9, and 11.
11.3. Assignment. This Agreement is binding upon the parties’ respec tive representatives, successors, and assigns; provided, however, neither party shall assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either par ty shall upon notice to the other party be permitted to assign this Agreement in the event of change of control, corporate reorganiza tion, merger, acquisition or, divestiture of all or substantially all of such party’s assets.
11.4. Notices. Any written notice required to be given to a party under this Agreement shall be given by personal delivery to such party, or mailed by registered or certified mail, return receipt requested, postage prepaid, or shipped by a nationally-recognized overnight carrier, shipping prepaid, to such party at such party’s address set forth at the beginning of this Agreement.
11.5. Governing Law and Jurisdiction. This Agreement will be inter preted and construed in accordance with the laws of the State of Del aware, exclusive of its rules governing conflict of laws and choice of laws. The parties consent to the exclusive jurisdiction of the state or federal courts of the State of Delaware.
11.6. Force Majeure. Except for the obligation to make payments, nei ther party shall be liable for delays or breaches in its performance under this Agreement due to causes beyond its reasonable control, such as acts of vendors, acts of god, acts or omissions of civil or mili tary authority, government priorities, fire, earthquakes, strikes or
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other labor problems, floods, epidemics, quarantine restrictions, riots, war, acts of terror, computer or telecommunications failures, network intrusions or denial of service attacks and delays of transportation (“Force Majeure”).
11.7.Export. This Agreement is subject to all United States government laws, regulations, orders or other restrictions regarding export from the United States of services, commodities, software, technology or derivatives thereof, as such laws, regulations, orders, or other restric
tions may be enacted, amended or modified from time to time. Not withstanding anything to the contrary in this Agreement, Customer will not directly or indirectly, separately or as part of a system, export or reexport any Company services, commodity, software, technology or derivatives thereof or permit the shipment of same without: (i) the express written consent of Company and (ii) obtaining, at Customer's sole expense, any required prior authorization from the United States Department of Commerce or other applicable authority as may be required by law. Each party will reasonably cooperate with the other and will provide to the other promptly upon request any end-user certificates, affidavits regarding reexport or other certificates or doc
uments as are reasonably requested to obtain approvals, consents, licenses and/or permits required for any payment or any export or import of products or services under this Agreement. The provisions of this Section will survive the expiration or termination of this Agreement for any reason.
11.8. Co-Marketing. During the Term, Company may use Customer’s name and/or logo on the portion of Company website dedicated to
identifying customers of Company, for the purpose of advertising and marketing the Software and Service, provided that no quotes or other attributions will be made without Customer’s prior written consent. Company and Customer may publicly refer to the other party as a service provider and customer, respectively. Customer may revoke the Company’s use of its name and/or logo on Company’s website upon written notification at any time during the Term.
11.9. Entire Agreement. This Agreement, including all schedules and addenda hereto, along with all Orders executed hereunder, constitutes the entire agreement between the parties as to its subject matter, and supersedes all previous and contemporaneous agreements, proposals or representations, oral or written, and all other communications be
tween the parties relating to the subject matter of this Agreement. Any modification of the provisions of this Agreement will be effec tive only if in writing and signed by the party against whom it is to be enforced. If any of the terms or conditions of this Agreement conflict with any of the terms or conditions of any Orders, then, unless other wise provided herein, the terms and conditions of such Order will control. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
11.10. Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
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Master Hosted Services Agreement
Exhibit B
Customer Support Service Guidelines
1. SUPPORT. Company will use all commercially reasonable
efforts to provide to the Customer the following support:
1.1.Phone and Email Support. Company will provide support
via email and telephone, according to the Error Re
mediation Process set forth in Section 2 below, be
tween 8:00 a.m. and 6:00 p.m. Eastern Time, Mon
day through Friday, exclusive of Company holidays
assign a support analyst to such problems (a “Support Analyst”). The Support Analyst will serve as Com pany’s primary contact for the Named Contacts for such Errors and will be responsible for the remedia tion of such Errors as set forth in the “Errors Reme diation Process.” Company will use commercially reasonable efforts, to remedy any reproducible Severity 1 or 2 Errors in the Service reported by Cus tomer.
(“Support Hours”). For concerns that are categorized as Severity 1 Production outages, which occur out side of the Support Hours, a twenty-four (24) hour, seven day a week hotline will be provided for the Customer to submit the Error to Company.
1.2.Standard Support. Support will be provided via email and phone during Support Hours.
1.3.Additional Support. Any additional support-related as sistance provided to the Customer by Company, be yond email and phone support, will be provided at Company’s then-current rates. This includes custom programming, data conversion and consulting.
1.4.Named Contacts.
1.4.1. Named Contacts means Customer will appoint up to two (2) Named Contacts that are knowledgeable and certified on the Service as the sole contacts with Company for purposes of receiving support.
1.4.2. Customer may change such Named Contacts from time to time with at least three (3) days prior written notice to Company.
1.4.3. All support will be conducted in English and only through the Named Contacts.
1.4.4. Company is not required to provide support to, or otherwise communicate with, any person other than the Named Contacts.
1.4.5. Customer acknowledges that all Customer autho rized users should direct inquiries to the Named Contacts.
1.5. Additional Definitions.
1.5.1. Error Correction means either a modification or addition that, when made or added to the Service, brings the Service into conformity with its Docu
mentation in all material respects or a procedure or routine that, when observed in the regular operation of the Service, avoids the practical adverse effect of such nonconformity.
1.5.2. Upgrades means any new Service releases, im provements, modifications, enhancements, updates, fixes and additions to the Service that Company markets or makes available to its customers from time-to-time to correct deficiencies and/or to im
prove or extend the capabilities of the Service.
2. ERROR REMEDIATION PROCESS.
2.1.Duty of Remediate. Upon notice from Customer of a Sever ity 1 or 2 Error (as defined below), Company will
2.2.Errors. The Severity Levels are set forth below. 2.2.1. Severity Levels.
2.2.1.1. Severity Level 1. A “Severity Level 1” Error occurs if the Company Service materially
fails to conform to the functional specifica
tions set forth in the Documentation and Cus
tomer is unable to proceed without a fix to
the Error or a work-around solution provided
by Company, and such Error is having
demonstrable impact on the Customer opera
tions due to the Error. All such Severity 1
Errors will be assigned to a Support Analyst.
Company will use its commercially reason
able efforts to initially respond to the Cus
tomer within four (4) hours of receipt of no
tice of the Severity 1 Error by Company.
This response will inform the Customer of
the identity of Company personnel assigned,
current status and findings of Error, and of
the plan to seek resolution. Company will in
addition provide daily status updates to
Severity 1 concerns.
2.2.1.2. Severity Level 2. A “Severity Level 2” Error occurs if the Service contains major function
al failures to conform with the Documenta
tion, which Customer is able to work around
but the Service can only be used to a limited
degree (partial or limited functionality).
Company will use its commercially reason
able efforts to initially respond to Customer
within eight (8) hours of receipt of the notice
of the Severity 2 Error by Company. This
response will inform Customer of the identity
of Company personnel assigned to remedy
the Error and of the plan to seek resolution.
Company will provide Customer with daily
status updates on the progress of remedying
the Error.
2.2.1.3. Severity Level 3. A “Severity Level 3” Error occurs if the Service contains incorrect logic,
incorrect descriptions, or functional problems
which Customer is able to work around, or
where a temporary correction has been im
plemented (fully functional but needs im
provement). Company will use its commer
cially reasonable efforts to initially respond
to Customer within two (2) business days of
the receipt of the notice of the Severity Level
3 Error.
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2.2.1.4. Severity Level 4. A “Severity Level 4” Error occurs if the Service contains cosmetic minor
flaws or if Customer has a suggestion for an
enhancement to the Service in which there is
little or no impact Customer’s use of the
software in accordance with its intended de
sign. Customer will report any Severity Lev
el 4 Errors to Company via a support ticket.
Company will, at its discretion, add Severity
Level 4 Errors to its development plan, but
there is no guarantee when, if ever, such
changes will be made to the Service.
2.3 Response and Resolution targets (during 9am to 5pm ET)
vice; or (c) alterations or modifications to the Service by anyone other than Company.
5. CUSTOMER’S RESPONSIBILITIES. Customer will provide Company with full, good faith cooperation and such information as may be required by Company in order to perform the support services contemplated herein, and Customer will provide Com
pany with: (1) specific detailed information concerning Cus tomer’s and authorized users’ use of the Service as maybe re quired for the performance of the support services; and (2) all necessary computer services information and access to key per sonnel needed to provide the support services. If Customer fails or delays in its performance of any of the foregoing responsibili ties, Company will be relieved of its obligations hereunder to
Severit y
Target
Response
Target Resolutio n
Solution (1 or more of the following)
extent such obligations are dependent upon such performance.
1 4 Hours Within 1 Business
Day
2 8 Hours Within 5 Business
Days
- Satisfactory workaround is provided.
- Program patch is provided. - Fix incorporated into future release.
- Fix or workaround
incorporated into the Service
- Satisfactory workaround is provided.
- Service patch is provided. - Fix incorporated into a future release.
- Fix or workaround
incorporated into the Service
3 2
Business
Days
4 3
Business
Days
3. UPGRADES.
Within 10 Business Days
Within 20 Business Days
- Answer to question is provided.
- Satisfactory workaround is provided.
- Fix or workaround
incorporated into the Service - Fix incorporated into future release.
- Answer to question is provided.
- Fix or workaround
incorporated into the Service
3.1.Customer is entitled to receive free Upgrades of the Service
when and if Company makes them available to its other
customers using the Service. Installation of Upgrades shall
be free unless the Customer software installation contains
non-standard customizations.
4. EXCLUSION FROM SUPPORT. Company is not required to
provide any Support relating to problems arising out of: (a) use
of the Service in a manner not specified in this Agreement or the
documentation; (b) accident, negligence or misuse of the Ser
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