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SOFTWARE TECHNICAL SUPPORT & MAINTENANCE TERMS

Technical support & maintenance (“TSM”) service for all Software licensed from American Innovations (“AI”) is governed by the following terms and conditions. Licensee has entered into a software license agreement with AI (the “License”) and desires TSM Service from AI. Capitalized terms shall have the same meaning here as in the License. By paying the invoice for TSM service (the “Support Fee”), Licensee agrees to these terms.

Support Fees cover service for one year (or as otherwise specified on the invoice). Service will terminate immediately upon Licensee’s insolvency, assignment to creditors or commencement of a proceeding seeking bankruptcy, or upon a violation of the License. Upon termination of TSM Service for one of these reasons, Licensee will not be entitled to any refund of any Support Fee. Unless otherwise specified in writing, Licensee agrees to pay in U.S. dollars within thirty (30) days of the invoice date. All applicable sales, use, and excise taxes relating to the Support Fee shall be Licensee’s responsibility. Licensee may be charged a Reinstatement Fee if Licensee opts out of the TSM program at any time by failing to pay the Support Fee and later wishes to rejoin the program. If Licensee wishes to rejoin the program less than one year after the prior term expired, the reinstatement fee shall be 50% of the Support Fee. If Licensee has been out of the program for more than one year, the reinstatement fee will equal the Support Fee for each year Licensee has missed.

Technical support personnel are available to answer questions related to the Software & Documentation during normal business hours to contacts designated by you. Your support contacts must be trained on the use of the Software. Technical support is available for the on-going use of the Software and is not a substitute for training. Other support services, including, but not limited to, training, custom reports, custom programming, data integration, conversion or analysis, interpretation of results and resolution of IT-related issues not directly related to the Software are available for an additional cost. AI will use all reasonable efforts to respond to questions promptly. During peak periods, AI personnel will respond to questions based on severity classifications:

Class

Description

Support Actions

A

Licensee is unable to work because the Software, or a major area of functionality, does not respond or function.

AI personnel will provide assistance during normal business hours to get the Software working and/or provide a suitable workaround.

B

The Software, or a major area of functionality, does not function but a work-around exists that allows the Licensee to work.

A workaround will be provided with detailed instructions & the issue will be addressed on a future Maintenance Release or Upgrade.

C

Licensee has a basic question or has a minor problem that doesn’t limit work.

Licensee will be informed of the severity rating & a problem report will be logged for future repair.

D

Licensee requests a new feature or enhancement.

AI will log the request for review & prioritization or direct Licensee to the AI ideas portal.

“Maintenance Release” (incl. service packs and patches) is a general availability release within the current version of Software that corrects defects and/or offers minor improvements in functionality. A Maintenance Release is generally designated as a decimal change in the Software version (e.g., 7.1 to 7.2). Service packs correct known issues and extend functionality developed after a release and are cumulative - each new service pack contains all material in prior service packs as well as any new fixes. Patches may be provided to address critical problems for which no feasible workaround is available. Patches are not intended for general installation since they do not undergo extensive testing. Groups of patches are periodically incorporated into service packs that undergo more rigorous testing and are then made generally available. From time to time and at its complete discretion, AI will issue Maintenance Releases via secure FTP or any other means of its choosing. Upon shipment, a Maintenance Release shall be deemed to be included in Software and shall be subject to all terms and conditions of TSM Service and the License. The supported version of Software includes the latest general Maintenance Release regardless of whether or not Licensee has chosen to install such Maintenance Release. Maintenance Releases will be provided to Licensee free of charge as long as Licensee has paid its most recent Support Fee and/or any applicable Reinstatement Fees.

 “Upgrade” is a new version of PCS Software (defined as a whole number increase, e.g., version 5.0 to 6.0) that provides major enhancements, features or functions compared to the current version. Technical support for the version of Software superseded by an Upgrade will remain available for a minimum of one year; support for all versions prior to the superseded version may be discontinued then or at any subsequent time at AI's sole discretion. Upgrades will be provided to Licensee at a discount from list price as long as Licensee has paid its most recent Support Fee and/or any applicable Reinstatement Fees. The amount of such discount is at the sole discretion of AI.

Confidential Information means information constituting a trade secret under applicable law and any other non-public information of any nature, (including, but not limited to, engineering, financial, legal, regulatory, operational and business information, data, technology or designs) disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) whether in person, in writing, by telephone, electronically, or in any other manner. Receiving Party shall: i) restrict disclosure; ii) not disclose Confidential Information without the prior consent of the Disclosing Party; iii) not duplicate or reverse engineer any Confidential Information. Provision of TSM Service requires that Licensee periodically provide AI with data that it considers Confidential Information. Such data, and other Confidential Information of both parties, may be transmitted electronically from time to time. AI, on its own and through its Third-Party partners, has implemented various measures to ensure the security and confidentiality of such Confidential Information is protected both online and offline. However, no data transmission over the Internet or any wireless network can be guaranteed to be 100% secure. Accordingly, Licensee acknowledges that it undertakes any such data transmission at its own risk and AI does not assume responsibility for disclosure as a result of unauthorized access to its systems or those of its Third-Party partners.

 Support Services

Included in Support Fee

Not Included in Support Fee

  • Free Maintenance Releases & discounted Upgrades
  • Live phone support during normal business hours
  • Toll-free access in the United States and Canada
  • Remote diagnosis of Software-related issues
  • Security, password admin., license tracking
  • Frequently asked questions & basic knowledge
  • Priority consideration for enhancement requests
  • Software support including:
  • General Q&A about Software functionality & use
  • Basic setup (excluding configurations; algorithm and meta-data setup)
  • Assistance if software does not function & diagnosis of issues
  • Transfer license keys & reassigning users
  • Assistance installing Maintenance Releases
  • Documentation
  • On-line user manual & help files
  • Software release notes
  • Upon request, remote meetings for visibility on:
  • # of calls, response time, resolution time
  • Enhancement request status, prioritization
  • Product roadmap, upcoming enhancements
  • Newsletters
  • Product announcements
  • Best practices
  • Industry news
  • User community resources
  • Business announcements
  • Data hosting, database administration
  • Data loading, quality assurance, integration or conversion (new or additional data sets)
  • Data analysis or interpretation of results
  • Custom development, bridges or integrations to other applications/databases
  • Custom configuration or customizations
  • Service caused by client modifications or operating outside of recommended practice
  • Service caused by third-parties or unauthorized changes to database
  • Data storage, recovery of lost or corrupted data not caused by the Software
  • IT or SQL server management, installation, network security, workstation security or physical environment security
  • Resolution of issues not directly related to the Software [i.e., computer, network, user and environmental issues]
  • Installations, implementation or set-up, necessitated by non-Software failure
  • Free Upgrades or assistance and training associated with installing & using Upgrades
  • User training

Many of these services and more are available from AI for an additional fee – please ask our Sales or Support teams for more information including pricing and free quotation.

 LIMITED WARRANTY & LIMITATION OF LIABILITY

AI warrants that it has the necessary experience and capability to perform TSM Service with reasonable diligence using reasonable skill and care to a standard that is expected of a reputable firm for service similar to those specified herein and it will perform in a good and workmanlike manner. If Licensee is dissatisfied with the service provided, Licensee shall promptly notify AI in writing. Upon receipt of such notice, AI shall confer with Licensee to discuss the problem and, if applicable, will arrange for the performance to be raised to the warranted level. This sets forth the sole and exclusive remedy if Licensee believes TSM Service is inadequate or defective. Licensee acknowledges that the Software entails the possibility of some human and machine errors and will be based upon, and may incorporate, information (including Third Party information) that might not be correct or, if applicable, might fail to materialize or produce the results anticipated by Licensee. AI does not warrant that the Software will perform error free or without interruptions, nor does AI warrant that the Software will meet licensee’s requirements or that all errors or failures will be corrected. Licensee agrees to bear the entire risk as to the adequacy and performance of the Software and expressly acknowledges its responsibility to regularly back up data maintained on any Site using the Software and to adequately test the Software in an environment that reasonably simulates Licensee’s production environment prior to implementing the Software. EXCEPT FOR THE WARRANTIES LISTED IN THIS SECTION, AI EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE DELIVERABLES INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE AND ANY WARRANTIES ARISING BY VIRTUE OF CUSTOM OF TRADE OR COURSE OF DEALING.

All rights of ownership, title and interest in the Software and related documentation remain with AI and/or its suppliers and/or licensors and are protected by applicable copyright, patent, trademark, and trade secret laws. AI will defend Licensee against suits based on any claim that the use of AI goods infringes on any U.S. patent or copyright provided that AI is: a) notified promptly in writing of any claim or suit; b) given the right to control investigation, preparation, defense and settlement of same; and c) given Licensee’s reasonable cooperation for the defense of same. Following notice of any claim, AI may, at its sole discretion, procure the right to use such goods, replace or modify goods to make non-infringing, or terminate TSM Service. AI will have no liability for any claim of infringement if: a) goods are not supplied by AI; b) goods are made to Licensee’s specifications; c) goods are modified after delivery by anyone other than AI or a party approved in writing by AI; d) goods are combined with other products, services, processes or materials where the alleged infringement does not arise solely from the goods; e) Licensee continues the allegedly infringing activity after being notified; or f) Licensee’s use is not in accordance with these terms. Licensee will defend and hold AI harmless from all damages, settlements, attorneys’ fees and expenses related to any claim of infringement excluded from AI’s indemnity by the preceding. This paragraph states AI’s entire liability and Licensee’s exclusive remedy for infringement and shall survive the termination of service.

In no event shall either Party have the right to recover damages of any nature in connection with the business contemplated by this Agreement due to the expiration or permitted or lawful termination of this Agreement except as specifically provided in writing. In no event will one party be liable to the other for consequential damages or Third-Party claims for damages including lost profits or savings, indirect, special, or incidental damages, even if the party was informed or aware of the possibility of such damages. In no event will AI’s total liability exceed the total net amount of Support Fees received by AI from Licensee for the twelve (12) month period preceding such claim of liability. The Parties acknowledge that the foregoing limitation of liability is complete and exclusive and reflects an allocation of risk between the parties in view of the fees that are charged by AI to Licensee. This limitation of liability also applies to any directors, officers, employees, contractors, and agents and is the maximum for which AI is collectively responsible.