These terms and conditions state important requirements regarding your use of Esolvz website and Esolvz computer support service and your relationship with Esolvz. You should read them carefully as they contain important information and instructions such as how long it lasts, fees for early termination, our rights to change its conditions, limitations of liability, privacy, and settlement of disputes by arbitration instead of in court. If you accept this agreement, it will apply to all your service plans from us, including all your existing plans. Your acceptance of these terms & conditions will be implied by the use of the Esolvz service.
“Customer” means the person or entity whose authorized agent has ordered Support Services from ESOLVZ or from an authorized distributor or reseller.
“Documentation” means the official user or operator documentation for the Software published by ESOLVZ and generally made available to its customers, as may be updated from time to time by ESOLVZ. Such Documentation will identify the specific product features and functionality of the Software (and each component thereof).
“Extended Support” means the Support Services that may be available at an additional charge on any Product that has reached its End of Availability, as defined in Section 2.2 below. Extended Support, if purchased, extends the Technical Guidance period on an annual basis. The customer must be an actively supported customer in good standing in order to enter into Extended Support. Code modifications, patches or custom development by ESOLVZ on products supported under an Extended Support agreement will require a separate Statement of Work and are not included in the Support Services defined in this Agreement.
“General Support” means the Support Services provided for a defined period from general availability (“GA”) of a Major Release, as set forth in ESOLVZ’s Support Services Program. General Support includes bug and security fixes and technical support services.
“Maintenance Services” means the provision of Maintenance Releases, Minor Releases, and Major Releases (each defined below), if any, to the Software, as well as corresponding Documentation, to Customer.
“Maintenance Release” or “Update,” means a generally available release of the Software that typically provides maintenance corrections or fixes only, designated by ESOLVZ by means of a change in the digit to the right of the second decimal point.
“Minor Release” means a generally available release of the Software that (i) introduces a limited amount of new features and functionality, and (ii) is designated by ESOLVZ by means of a change in the digit to the right of the decimal point (e.g., Software 8.0>>Software 8.1).
“Major Release” of “Upgrade,” means a generally available release of the Software that (i) contains functional enhancements or extensions, and (ii) is designated by ESOLVZ by means of a change in the digit to the left of the first decimal point.
“Modified Code” means any modification, addition and/or development of code scripts deviating from the predefined product code tree(s)/modules developed by ESOLVZ for production deployment or use. Configuration of Software options which are intended to be altered is not considered a modification of the Software.
“Product(s)” means the software products identified by ESOLVZ and purchased by Customer and all updates and upgrades thereto, including error corrections, bug fixes, patches, functional enhancements, modifications, and extensions. “Products” may also include Support Services but excludes Open Source Software. Distributor may not modify or repackage the Products without ESOLVZ’s written consent.
“Services Fees” means the fees for Support Services specified in a corresponding ESOLVZ or reseller invoice.
“Support Level” means the Support Services package purchased by Customer.
“Services Period” means the period for which Customer has purchased the Support Services and any subsequent renewal periods and will commence: (a) for Software Licenses for which Support Services are mandatory, on the date the applicable Software License Key(s) are made available for download; and (b) for perpetual Software Licenses for which Support Services are optional, on the date of purchase of the Support Services.
“Service Request” means any written or electronically written request for any Support Services by a Customer.
“Severity” is a measure of the impact a Non-Conformity or issue, as reported in a Service Request, has on the use of the Software, as determined by ESOLVZ. The following Severity levels apply to all Software:
“Severity One” or “Severity-1” means Customer’s production server or other mission critical system(s) are down and no workaround is immediately available and (i) all or a substantial portion of Customer’s mission critical data is at a significant risk of loss or corruption; or (ii) Customer has had a substantial loss of service.
“Severity Two” or “Severity-2” means that major functionality is severely impaired such that: (i) operations can continue in a restricted fashion, although long-term productivity might be adversely affected and a temporary workaround is available; or (ii) a major milestone is at risk, ongoing and incremental installations are affected, and a temporary workaround is available.
“Severity Three” or “Severity-3” means a partial, non-critical loss of functionality of the software such that: (i) the operation of some component(s) is impaired but allows the user to continue using the Software; or (ii) initial installation milestones are at minimal risk.
“Severity Four” or “Severity-4” means (i) general usage questions and cosmetic issues, including errors in the Documentation, and (ii) cases opened via email for ESOLVZ Software.
“Software” means software offered by ESOLVZ to Customer, and all components delivered with the Software, including open source components.
“Support Services” means General Support, Maintenance Services, Technical Guidance, and Technical Support.
“Technical Guidance” means the Support Services provided for an additional period following General Support, as set forth in ESOLVZ’s Support Services Program. ESOLVZ Support Services will continue to be available for products within the Technical Guidance period; however, there will be no new releases, bug fixes or security patches for products within Technical Guidance. This phase is for usage by customers operating in stable environments with systems that are operating under reasonably stable loads, and this period should be utilized by customers to plan and complete upgrades to a current product version that is available within General Support.
“Technical Support” means the provision of telephone or web-based technical assistance by ESOLVZ to Customer’s technical contact(s) with respect to service requests, at the corresponding Support Level purchased by Customer.
“Third Party Products” means any software or hardware that (i) is manufactured by a party other than ESOLVZ and (ii) has not been incorporated into the Software by ESOLVZ.
“ESOLVZ Support Services Program” means the overview of ESOLVZ’s Support Services that can be found on ESOLVZ’s website at http://www.esolvz.com, or such other site as ESOLVZ may decide. ESOLVZ’s website and the ESOLVZ Support Services Program may be modified from time to time without prior written notice.
Software Support Services are provided for the most current version of Software (including release updates, program maintenance, and reasonable telephone support) and a previous release for no more than twelve (12) months from the release date of the new version Software (includes only program maintenance and reasonable telephone support). The level, type, and scope of Software Support Services shall be outlined in the appended Attachment(s), which shall be incorporated fully herein by reference:
Software Support Services shall extend for a designated term as outlined in the appended Attachment(s), which shall be incorporated herein by reference.
Software Support Services shall commence the earlier of (a) upon Licensor’s receipt of the completed Technical Support Agreement, contained in Attachment A, or (b) if purchased with Software, activation begins 30 days after Software shipment. Software Support Services shall continue for the period designated in Attachment A, unless terminated as follows
Licensee may terminate Software Support Services upon 90 days written notice to Licensor. Licensee’s termination of Software Support Services hereunder shall release Licensor from any further obligation under these Terms and Conditions. Licensee shall retain the right to continue to use the Software as per the terms of the License (provided Licensee is not in breach ofits terms and conditions). Notwithstanding anything contained herein to the contrary, if Licensee terminates Software Support Services prior to the expiration of the then-current term, then Licensee shall not be entitled to any refund of the support charges for said term.
Licensor may terminate Software Support Services (a) if Licensee commits a material breach of these Terms and Conditions or the terms and conditions of the License and such breach remains uncured thirty (30) days after written notice of such breach is delivered to Licensee, including, without limitation, the failure to pay any amounts due; or (b) immediately if Licensee becomes insolvent, makes an assignment for the benefit of creditors, or commences or has commenced against it in any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws, laws of debtor’s moratorium or similar laws.
Licensor reserves the right to limit the amount of Software Support Services assistance if Licensee’s request for assistance becomes unreasonable.
Support Charges for Software Support Services shall be billed in advance and upon terms mutually agreed to in writing and/or as set forth in Attachment A.
Licensor shall be entitled to increase the Support Charges in accordance with (a) any change in Licensor’s standard scale of charges, (b) movements in the Consumer Price Index or Retail Price Index, or (c) movements in the U.S. dollar exchange rate (if applicable), by giving to Licensee not less than ninety (90) days written prior notice. Notwithstanding the foregoing, Licensor shall be entitled to immediately increase Support Charges, in its sole discretion, if Licensee relocates the Software to an equipment location different from where the Software was originally installed.
Prices do not include, and Licensee is responsible for, all taxes, duties, fees, or other charges of any nature (other than taxes imposed on Licensor’s net income) imposed by any government authority related to Software Support Services provided hereunder. If Licensee deducts or withholds taxes for which Licensor is responsible, Licensee shall furnish within one (1) month to Licensor accurate official receipts from the appropriate governmental authority for each such deduction or withheld tax.
Unless otherwise set forth in Attachment A, Licensee agrees to make all undisputed payments to Licensor within thirty (30) days from Licensor’s invoice date. For purposes of these Terms and Conditions, “undisputed” means Licensee has no reasonable objection to a Licensor’s invoice and has not given Licensor notice of dispute within 15 days from Licensee’s receipt of such invoice. Any invoice not disputed within such 15-day period shall be considered undisputed.
In addition to the Support Charges, Licensee agrees to pay time and material charges, plus reasonable travel, lodging, meal expenses or any other expenses, for any extended technical support beyond the scope of Software Support Services, as further detailed in the then-current rate schedule and/or Attachment A. Such additional expenses shall include, but not be limited to, technical support for on-site service or attending to a problem caused by incorrect Licensee data, incorrect Licensee usage, and/or Licensee modifications to the Software. Such expenses shall be invoiced at cost, plus a twelve percent (12%) administrative fee.
Licensee agrees to pay a monthly late payment charge computed at the rate of one and one-half percent (1.5%), or the maximum interest rate permitted by applicable law, whichever is less, on any past-due amount for each calendar month (or fraction thereof) that such payment is overdue and all costs of Licensor collection efforts including reasonable attorney’s fees.
Upon termination as provided herein, Licensee shall have thirty (30) days from Licensor’s invoice date to pay any amounts due and payable to Licensor up to, and including, the date of termination. Licensee’s obligations to pay amounts owed shall survive termination.
Should Licensee wish to reinstate terminated Software Support Services, they may be reinstated by paying Licensor an amount equal to one and one-half (1-1/2) times the elapsed fees or by relicensing the Software at Licensor’s then-current license fee.
Title to Software Support Services shall pass to Licensee as performed.
Licensor represents and warrants that Software Support Services will be performed in a competent and diligent manner.
Licensor’s sole liability and Licensee’s sole remedy for any failure of Licensor to provide Software Support Services is (a) for Licensor to use commercially reasonable efforts to fix or resolve material programming Errors (where “Error” is defined as a problem caused by an incorrect operation of the unmodified computer code in the Software or an incorrect statement or diagram in the Documentation that produces incorrect results) so as to restore the Software to material conformance with the Documentation, or (b) for Licensee to terminate its receipt of Support Services and receive a refund of the portion of the Support Charges allocable to the period following the termination date.
Licensor shall determine in its sole discretion whether a particular enhancement constitutes an on-going improvement or a change to the Software or a new version of the Software.
Licensor is not liable for and is not required to perform Software Support Services with respect to problems caused by third party products or any Software that has been altered or modified by anyone other than Licensor.
This Section 5 sets forth the exclusive remedies for all claims based on failure of or defect in the Software Support Services, whether a claim, however instituted, is based on these Terms and Conditions, indemnity, warranty, tort (including negligence)/extra contractual liability, strict liability or otherwise. The foregoing warranties are exclusive and are in lieu of all other warranties and guarantees whether written, oral, implied or statutory. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
The total liability of Licensor, on all claims of any kind (excluding claims for death or bodily injury), whether in these Terms and Conditions, warranty, indemnity, tort (including negligence)/extra contractual liability, strict liability, or otherwise, arising out of or relating to the subject matter hereof, shall not exceed the Support Charges paid for the then-current term.
In no event, whether as a result of breach of these Terms and Conditions, warranty, tort (including negligence)/extra contractual liability, strict liability, indemnity, or otherwise, shall Licensor be liable for loss of profits or revenues, loss of use of products or services, interruption of business, cost of capital, or for any special, consequential, incidental, indirect, punitive, or exemplary damages
For the purposes of this Section 5, the term "Licensor" shall mean Licensor, its affiliates, and their successors or assigns.