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 “Licensor”) 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 Licensee agrees to these terms. TSM Service covers 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. 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 TSM Service 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 for TSM Service 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 TSM Service Fee. If Licensee has been out of the program for more than one year, the reinstatement fee will equal the TSM Service Fee for each year Licensee has missed. Support in lieu of TSM service is defined as On Demand service and is available for an additional fee. On Demand service is billed in 15-minute increments with a 1 hour minimum.
Technical Support personnel are available to answer questions related to the Software & Documentation during American Innovation’s normal business hours. AI will use all reasonable efforts to respond to questions promptly and will create a case within one business day. Licensee and or affiliates must be trained on the use of the Software; technical support is not a substitute for training. Technical support is not available for resolution of issues not directly related to the Software [i.e. workstation environment, network security, or other extraneous issues].
A “Minor Release” is a generally available distribution of Software that corrects known issues and or offers enhancements in functionality. Upon shipment, a Release shall be deemed to be included in Software and shall be subject to all terms and conditions of TSM Service and the License. A Minor Release is designated as a decimal change in the Software version (e.g. 1.13 to 1.14). A “Maintenance Release” may be provided to address critical problems for which no feasible workaround is available. Maintenance Releases may or may not be intended for general installation since they do not undergo extensive testing. Maintenance Releases are periodically incorporated into Minor Releases that undergo more rigorous testing and are then made generally available. From time to time and at its complete discretion, AI will issue these Releases digitally or through any other means of its choosing. The latest Minor Release will be provided to Licensee free of charge if Licensee has paid its most recent TSM Service Fee and/or any applicable reinstatement fees.
A “Major Release” is a substantial Software change that offers major enhancements in functionality. A Major Release is designated as an integer change in the Software version (e.g., 1.13 to 2.0) that provides major enhancements, features or functions compared to the current series. AI will issue Major Releases digitally or through any other means of its choosing. The supported version of Software includes the latest Major Release regardless of if the Licensee has chosen to install such Release. Technical support for versions superseded by a Major Release will remain available for a minimum of one year; support for all releases prior to the superseded Release may be discontinued then or at any subsequent time at AI’s sole discretion.
Major Releases will be provided to Licensee at a discount from list price as long as Licensee has paid its most recent TSM Service 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 are available as Standard Support Materials, Technical Service and Maintenance (TSM), and Paid Services. Standard Support Materials are available to Licensee with Software purchase. TSM is available as long as Licensee has paid its most recent TSM Service Fee and/or any applicable reinstatement fees. Paid Services are available to Licensee for an additional fee through separate agreement by Licensee and AI.
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 TSM Service 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.