These Software Maintenance Program Terms (“Terms”) describe the terms and conditions under which Pimsoft Inc. (“Pimsoft Inc.”) will provide Maintenance and support services to Licensee (collectively, the “Software Maintenance Program”).
Any capitalized terms used but not defined in these Terms have the meanings attributed to such terms in the Software License and Services Agreement (the “Agreement”) entered into between Pimsoft Inc. and Licensee.
(i)“Company” or “Licensee” means the legal entity to which a license is granted under the Agreement.
(ii) “Designated System Manager” or “Licensee Contact” or “Designated Technical Contact” means the individual(s) designated by the Licensee responsible for maintaining the hardware and software of the Systems where Pimsoft Inc. Products are installed.
(iii) “Error” means any bug or defect which causes a material failure of the Software to substantially conform to the Documentation; an Error shall not include any material nonconformance that is attributed in whole or in part to hardware, software, or other equipment not referred to in the Documentation as being compatible with the Software, nor shall it include material nonconformance that is attributed in whole or in part to any third party hardware, software, or other equipment errors or failures not attributed to the Software (i.e., Hard disk failure, network or power outage).
(iv) “Non-supported Products” shall include any hardware or software product other than the Pimsoft Inc. Products, as well as any custom application program or other software developed by Pimsoft Inc. for Licensee. Pimsoft Inc. shall have no obligations or responsibilities of any kind hereunder with respect to Non-supported Products.
(v) “OEM Product” means any third party and/or OEM product that is provided together with the Software or otherwise provided to Licensee as part of a software product package that includes the Software (e.g., a bundle).
(vi) “Supported Software” means the Pimsoft Inc. Products covered by a current Software Maintenance Program.
(vii) “System” has the meaning set forth in Section 3.1 below.
(viii) “Pimsoft Inc. Products” means the licensed Software and bundled OEM Products (if any) ordered by Licensee.
(ix) “Pimsoft Inc. Software” or “Software” means any Pimsoft Inc. software product that is provided and licensed to Licensee or Licensee’s designee under the Agreement including those software products that are designated by Pimsoft Inc. to operate on a network server computer (“Server Software”), on a client computer (“Client Software”), or as an interface with certain hardware monitoring devices, third party software and/or multiple copies of Server Software (“Interface”), and all related Documentation and Modifications provided to Licensee by Pimsoft Inc. or its designee with respect to the foregoing.
(x) “Pimsoft Inc. Products Documentation” or “Documentation” means Pimsoft Inc.’s published user manuals relating to the Pimsoft Inc. Software.
Pimsoft Inc. will provide the following services to the Licensee upon the Licensee’s payment of the applicable Software Maintenance Program fee. The services are provided under the conditions specified in Section 3.
2.1 Telephone and Email Assistance
This service entitles the Designated Technical Contact to contact the Pimsoft Inc. support team through the Pimsoft Inc. telephone number or Pimsoft Inc. email address. The service is available 7 days a week, 24 hours a day. Such assistance will include endeavoring to (i) answer questions regarding the best use of the Pimsoft Inc. Products and Documentation, and (ii) provide assistance to the Designated Technical Contact in identifying and providing workarounds, if possible, for Errors associated with the Pimsoft Inc. Products. Pimsoft Inc. will use its best efforts to return all telephone calls for support within four (4) hours and answer emails for support within twenty-four (24) hours.
2.2 Product Suggestions
Licensee may submit to Pimsoft Inc. product suggestions identifying desired improvements to Pimsoft Inc. Products. Licensee grants the right to Pimsoft Inc. to use and exploit such suggestions freely without limitation or expectation of confidentiality, use, compensation, or attribution. Pimsoft Inc., in its sole discretion, may incorporate any such suggestions in any Pimsoft Inc. product or service without being required to provide any compensation to Licensee.
2.3 Bug Fixes
Pimsoft Inc. will use commercially reasonable efforts to provide Licensee with an avoidance procedure for and a correction of each Error in the Pimsoft Inc. Products that cause the Pimsoft Inc. Products not to conform in all material respects with the Pimsoft Inc. Documentation (each such correction a “Bug Fix”).
2.4 Software Updates
Pimsoft Inc. may incorporate permanent solutions for known Pimsoft Inc. Errors in Pimsoft Inc. Product Modifications. Such Modifications may also include minor enhancement or other changes resulting from product suggestions and are made available without additional charge by Pimsoft Inc. to Licensees whose Software Maintenance program fees are current. In the event that Pimsoft Inc. decides in its discretion to update the appropriate software reference manual or to issue release notes or other documentation corresponding to Modifications, Pimsoft Inc. will provide access to one copy of the same to Licensee at no charge as they become available.
2.5 Remote Support Service
When required in performing services described in Section 2.1, Pimsoft Inc. may make use of remote communication tools in order to connect to Licensee’s System. In order to receive remote support service for Pimsoft Inc. Products, Licensee must meet the following prerequisites:
Licensee must allow a Pimsoft Inc. remote support or assistance tool or other approved connection to the System, which, at a minimum, will accept reports, messages, and file transfers and a separate telephone line for simultaneous voice communication located with the System.
Licensee’s System must be available to Pimsoft Inc. when required, and Pimsoft Inc. must have a logon, password, and sufficient priority to access the System when needed.
2.6 On-Site Assistance
(i) In case Pimsoft Inc. is unable to resolve a Pimsoft Inc. Products problem through telephone or email assistance pursuant to Section 2.1 or through remote support services pursuant to Section 2.5, the Licensee Contact may request Pimsoft Inc. onsite assistance. After verifying needs for onsite assistance and only if Licensee has complied with conditions at Section 2.5, Pimsoft Inc. will use commercially reasonable efforts, subject to personnel availability, to initiate travel within five business days from the onsite assistance request verification subject to obtaining required travel authorizations required by authorities (e.g. Visas). Pimsoft Inc. will render onsite assistance until the identified problem is resolved or, in its sole judgment, reasonable progress is being made. Pimsoft Inc. may suspend onsite assistance in order to involve required additional resources and then resume when those resources become available.
(ii) Pimsoft Inc.’s obligations regarding onsite assistance are limited to problems demonstrated to be associated with Pimsoft Inc. Products. In such cases, Pimsoft Inc. will provide Licensee with Bug Fixes, as available. As an interim solution, Pimsoft Inc. will use commercially reasonable efforts to assist the Licensee in finding a workaround solution or an avoidance procedure that allows, if possible, the use of the Pimsoft Inc. Product. Licensee has sole responsibility and liability for implementation of Pimsoft Inc.’s recommended interim solution.
(iii) Pimsoft Inc. will invoice and Licensee will pay Pimsoft Inc.’s out-of-pocket expenses incurred in providing onsite assistance. In addition to the foregoing if onsite assistance is provided because Licensee has failed to comply with Section 2.5 above, then Pimsoft Inc. will invoice and Licensee will pay also for the time spent by Pimsoft Inc. personnel in relation to the provision of such onsite assistance in accordance with Pimsoft Inc.’s then-current service rates. The origin of any Errors associated with the Pimsoft Inc. Products will not affect any amounts invoiced for onsite services, even if such errors are caused by Non-supported Products.
2.7 Termination and renewal
Subject to Licensee’s payment of the applicable fees, Licensee’s Software Maintenance Program subscription shall commence on the Effective Date of the Agreement and continue for an initial term of one year and thereafter it shall automatically renew for additional one year periods unless Licensee notifies Pimsoft Inc. of its intent to cancel the Software Maintenance Program at least 30 days prior to the expiration of the then-current term.
2.8 Reinstatement of lapsed support
Should the Licensee terminate and then request to reinstate Software Maintenance Program support, Licensee must pay Pimsoft Inc. all Software Maintenance Program support fees that would have been due to Pimsoft Inc. during the intervening period had the Licensee not terminated Software Maintenance Program support.
3 Conditions to the Software Maintenance Program
All Software Maintenance Program services to be rendered by Pimsoft Inc. hereunder are subject to the following conditions:
3.1 Licensee contacts
Licensee shall designate a reasonable number of Licensee Contacts or Designated Technical Contacts, not to exceed three (3) individuals at any given time, for communication with Pimsoft Inc.’s Support Center. Licensee support requests must be made through a Licensee Contact. Each Licensee Contact shall have adequate technical expertise, training and experience to fulfill his or her responsibilities. Licensee Contacts are responsible for maintaining the integrity of the hardware and software of the system of which the Pimsoft Inc. Products are a part (the “System”). Licensee is responsible for maintaining individual(s) trained as Designated System Manager(s). Licensee personnel may register, at Licensee’s cost and expense, to attend standard Pimsoft Inc. training as periodically scheduled from time to time.
3.2 Non-supported Products
If the performance by Pimsoft Inc. of the Software Maintenance Program is made more difficult or impaired because of Non-supported Products, Pimsoft Inc. shall so notify Licensee, and Licensee will immediately remove the Non-supported Product at its own risk and expense during any efforts to render services under this Agreement. Licensee shall be solely responsible for the compatibility and functioning of Non-supported Products with the Pimsoft Inc. Products or the Pimsoft Inc. remote application used to provide remote services under Section 2.5 above.
3.3 System Versions
All Licensee System hardware and software must be maintained at the revision level deemed necessary by Pimsoft Inc. for proper operation of the Pimsoft Inc. Products as may be specified in the Documentation or by Pimsoft Inc. from time to time.
3.4 Backup Procedures
Licensee is solely responsible for maintaining a procedure external to the Pimsoft Inc. Products for reconstruction of lost or altered files, data, or programs to the extent deemed necessary by Licensee and for actually reconstructing any lost or altered files, data, or programs.
3.5 Operator Procedures
Licensee shall at all times follow routine operator procedures as specified in Documentation, such as Pimsoft Inc. operating manuals or other operating manuals for the Pimsoft Inc. Products.
3.6 Licensee Representative
A designated representative of Licensee shall be present at all times Pimsoft Inc. is performing services on Licensee’s premises or the premises of Licensee’s Client. Pimsoft Inc. personnel will not enter or remain at Licensee’s premises or the premises of Licensee’s client in the absence of such Licensee representative.
Licensee is solely responsible for ensuring that the System is isolated from any process links or anything else that could cause harm before requesting or receiving remote support service or on-site assistance.