1. Software Maintenance and Support
Software maintenance and support provided by Intellicate consists of the following:
1.1Telephone and Electronic Mail (Email) Support
Telephone and Email support services are available to the Customer during Intellicate's normal business hours, from Intellicate's locations in the United Kingdom.
1.2Software Support Services
To obtain Software Support Services from Intellicate, the Customer shall adequately report and explain its difficulty to Intellicate in accordance with the Reporting Procedures set forth in paragraph 2 below.Thereafter, Intellicate will provide the Customer with one or more of the following services, as necessary and as soon as reasonably possible:
a) Software problem diagnosis consisting of problem isolation and definition;
b) temporary work-around including, if necessary, delivery of Software patches;
c) if necessary, delivery of bug fixes to the Software, together with relevant amendments to the documentation;
d) assistance with the proper use and operation of the Software including, but not limited to, (i) providing general information on the use of the Software, (ii) advising on methods of operation where the Customer is unaware of these, (iii) advising on tests or checks, (iv) indicating Customer's operating error(s).
Software updates are undertaken at Intellicate's initiative and sole option, and will be made available to the Customer from time to time during the term of this Agreement.Software updates include, but are not limited to, consolidation of bug fixes and minor and major revisions to the Software.At Intellicate's discretion, Software updates may exclude major new features and enhancements to the functionality of the Software.
2.Software Problem Reporting Procedures
2.1The Customer may report Software problems to Intellicate by telephone, Email, facsimile, or post.When reporting problems to Intellicate, the Customer must explain its difficulty in sufficient detail so as to enable Intellicate to fully understand, reproduce and diagnose the problem or difficulty.
2.2The Customer's designated "prime contact" person, as defined further in paragraph 3.3 below shall normally contact Intellicate to report difficulties.
3.The Customer's Responsibilities
3.1The Customer acknowledges that the Software, including Software updates, is furnished to the Customer subject to the license set forth in the Customer's Software License Agreement with Intellicate, which the Customer will observe and maintain in effect.
3.2The Customer acknowledges that during the term of this Agreement, it will use only the latest version of the Software, together with any Software patches and bug fixes, provided to the Customer under the term of this Agreement.The Customer shall maintain one current backup copy of the Software.
3.3The Customer shall provide Intellicate with the name, telephone number and Email address of the Customer's employee designated as the "prime contact" person that will normally contact Intellicate to report difficulties.The Customer shall update this information when appropriate.
3.4Maintenance and support services are not intended to provide the Customer with extensive explanations in lieu of formal training.
4.1The initial term of this Agreement shall be twelve (12) months from the Effective Date.Thereafter, this Agreement may be renewed for additional twelve (12) month terms, upon the mutual agreement of the parties and by the Customer's payment of Intellicate's then-current fees.
5.Payment where applicable
5.1The Customer shall pay to Intellicate, annually in advance, maintenance and support fees in accordance with Intellicate's then-current fee schedule for such services.
5.2Upon the mutual agreement of the parties, the Customer may obtain maintenance and support services for other Intellicate proprietary software products, by amendment to Schedule A to this Agreement.To obtain such services, the Customer must have in effect with Intellicate a valid license for the additional software products, and must pay for the services according to Intellicate's then-current fee schedule.
6.1The Software maintenance and support services provided under this Agreement shall not include: (a) operating supplies or accessories, (b) support required due to failure of hardware, firmware or media not supplied by Intellicate, (c) failure of software not supplied by Intellicate (d) failure of the Software caused by fault or negligence of the Customer, by operating error or misuse, (e) faults of a minor or intermittent nature which do not affect the use of the Software, (f) replacement of Software or media which has been lost or physically damaged, (g) installation of the Software or updates, (h) on-site support services, (i) difficulties caused by the Customer's failure to perform its responsibilities under this Agreement.
6.2Additional Software enhancement(s) and development(s) required by the Customer and more extensive maintenance support may be made available by Intellicate to the Customer subject to additional terms and prices.
7.LIMITATION OF LIABILITY
7.1In no event shall Intellicate be liable, IN CONTRACT, TORT OR OTHERWISE, for ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL damages even if Intellicate has been advised of the possibility of such damages IN ADVANCE.IN no event shall Intellicate’s liability exceed the AMOUNT OF THE FEES PAID BY THE CUSTOMER UNDER THIS AGREEMENT
8.1This Agreement shall be construed in accordance with the laws of England.
9.1The provisions of this Agreement constitute the entire agreement between the parties and supersede all other communications between the parties relating to the subject matter hereof.This Agreement may only be modified by a writing signed by an authorized representative of Intellicate.
10.1Either Party may terminate this Agreement with immediate effect if the other party is in material breach of any term of this Agreement and fails to remedy such breach thirty (30) days after receipt of a written notice by the breaching party.Such notice shall specifically identify the nature of the breach and state an intent to terminate the Agreement in the event the breach is not cured within said thirty (30) days.The written notice shall be signed by an authorized representative of the non-breaching party.
11.1This Agreement and any rights granted hereunder may not be sold, assigned, sub-licensed or otherwise transferred by the Customer without the prior written permission of Intellicate, and any attempted assignment shall be void.
12.1Neither party shall be held liable or deemed to be in default for any delays or failures in performance under this Agreement resulting from acts reasonably beyond the control of that party including, but not limited to, extreme weather, acts of God, acts or regulations of any governmental or supra-national authority or national emergency, accident, riot, fire or other natural calamity.The party whose performance is so affected, upon prompt notice thereof to the other party, shall be excused from such performance to the extent caused by the force majeure interruption, provided that the party so affected shall use all reasonable efforts to remove such cause or causes of non-performance as soon as practicable.
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