Contents
Order Form
These terms, together with the Order Form referencing them, make up a software support agreement. The terms Developer and Customer are defined on the Order Form.
Scope
Software means the software identified on the Order Form.
Covered Versions depend on the Order Form:
If the Order Form specifies a particular version, Covered Versions include only that version.
If the Order Form specifies a version range, such as "1.y.z", then Covered Versions include the latest Generally Available version in that range on the date of this agreement, as well as any new versions within that range that Developer makes Generally Available during the term of this agreement.
If the Order Form does not specify a particular version or version range, then Covered Versions include the latest Generally Available version on the date of this agreement, as well as any new versions that Developer makes Generally Available during the term of this agreement.
A version of the Software is Generally Available if Developer offers to the public for use in production systems. Versions that Developer designates with labels like "Alpha", "Beta", "Preview", "Testing", and "Preview" are not Generally Available.
Service Limits means any limits on use of Developer's support services specified on the Order Form, such as the number of Customer Personnel who may contact Developer for support, or the maximum number of Support Requests Developer will respond to per month.
Developer's Obligations
Respond to Support Requests
Developer agrees to respond to Support Requests from Customer Personnel about Covered Versions of the Software.
Support Channels
If the Order Form specifies support channels, Developer only agrees to respond to Support Requests sent via those channels. If the Order Form does not specify support channels, Developer only agrees to respond to Support Requests via e-mail, and to give Notice of an e-mail address for Support Requests on entering into this agreement.
Diagnosis and Resolution
Developer agrees to diagnose and resolve Support Requests related to installing Covered Versions of the Software, configuring standard features of Covered Versions of the Software per its documentation, and software errors encountered when using Covered Versions of the Software.
Technical Support Escalation
If Developer is a company of more than one person, then Developer agrees to promptly escalate Support Requests that initially responding support personnel cannot resolve independently to a Developer engineer responsible for the Software. Where appropriate, initially responding support personnel may connect Customer Personnel to engineers directly.
Dedicated Support Personnel
If Developer is a company of more than one person and the Order Form specifies dedicated support personnel, then Developer agrees to assign a limited number of specific support personnel to respond to Customer's Support Requests, in order to maximize the chance that Customer Personnel will receive support from personnel familiar with Customer's use cases and pastSupport Requests.
Service-Level Agreement
If the Order Form specifies a service-level agreement:
Meet or Exceed Service Levels
Subject to Business Hours, Holidays, and Vacation and Sick Days Developer agrees to meet or exceed the service levels specified on the Order Form.
Refund Prepaid Fees
If Developer fails to meet Meet or Exceed Service Levels for three Billing Periods in a row, and Customer ends this agreement at the end of those Billing Periods, citing poor support responsiveness, Developer agrees to refund any Prepaid Fees.
Business Hours
If the Order Form specifies business hours, Developer agrees to respond to Support Requests during those hours. If the Order Form does not specify business hours, Developer agrees to respond to Support Requests during regular business hours in the time zone of Developer's Address.
Holidays
If the Order Form specifies holidays, Developer will not respond to Support Requests on those holidays. If the Order Form does not specify holidays, Developer will not respond to Support Requests on days when commercial banks in the city nearest Developer's Address typically stay closed.
Vacation and Sick Days
If Developer is an individual or a company of one person, then Developer will not respond to Support Requests on days Developer takes off as vacation or sick days. Developer agrees to give Notice of sick days, and advance Notice of vacation days. Developer may take as many sick days and vacation days as Customer's human resources policies allow full-time employees to take, or if Customer does not have such a policy, a reasonable number of sick days and vacation days.
Support Request Severity
Critical Support Requests are Support Requests that report that:
Customer cannot install the Software by following the directions in its documentation.
The Software crashes or becomes unresponsive.
The Software contains security vulnerabilities.
All other Support Requests are Regular Support Requests.
Credits
If the Order Form specifies a credit schedule:
Give Credits
Developer agrees to credit Customer's account on Notice and verification that Developer failed to provide service according to Meet or Exceed Service Levels in the current Billing Period or any of the three prior Billing Periods, according to that credit schedule.
Apply Credits
Developer agrees to apply credits under Give Credits against Customer's obligations to pay fees under this agreement as soon as possible. Developer does not agree to refund any credits.
Customer's Obligations
Pay Fees
Customer agrees to pay the license fees specified on the Order Form. Customer agrees to pay using the method specified on the Order Form. Customer agrees to pay all tax on fees under this agreement, except tax Developer owes on income.
Abide by Service Limits
Customer agrees to abide by any Service Limits.
Provide Information Promptly
Customer agrees to provide Developer support personnel the information they need to respond to Support Requests promptly.
Intellectual Property
This agreement does not license or assign any Intellectual Property Right.
Liability
Agreed Legal Remedies
If the Order Form specifies a credit schedule, Customer's only legal remedy for failures to meet Developer's service-level agreement will be credits under Give Credits and any refund under Refund Prepaid Fees.
Excuses
Neither side will be liable for any failure or delay in meeting any obligation under this agreement caused by:
failure of the other side or its personnel to meet their obligations under this agreement
actions done or delayed on written request of the other side
fire, flood, earthquake, and other natural disasters
declared and undeclared wars, acts of terrorism, sabotage, riots, civil disorders, rebellions, and revolutions
extraordinary malfunction of Internet infrastructure, data centers, or communications utilities
government actions taken in response to any of these causes
Limited Damages
Damages Limit
Subject to Damages Limit Exceptions, neither side's total liability for breach of this agreement will exceed the amount Customer paid Developer under this agreement during the twelve months before the first claim is filed. This limit applies even if the side liable is advised that the other may suffer damages, and even if Developer paid nothing at all.
Damages Exclusion
Neither side will be liable for breach-of-contract damages they could not have reasonably foreseen when entering this agreement.
Damages Limit Exceptions
Limited Damages does not limit damages for breach of Pay Fees.
Term and Renewal
Initial Term
This agreement will continue for the initial term specified on the Order Form.
Renewal
If the Order Form specifies automatic renewal, then this agreement will renew automatically for additional periods, each as long as the initial term.
Termination with License Agreement
If Customer licenses the Software from Developer, and Customer's rights to use the Software terminate during the term of this agreement, then this agreement terminates with it, and Developer agrees to refund any Prepaid Fees.
Changes
Changes Customer May Make
Subject to Change Process:
Customer may end this agreement at any time.
If the Order Form specifies flexible pricing for increased Service Limits, Customer may increase its Service Limits within that flexible pricing at any time. Customer changes to Service Limits take effect as soon as Customer pays the additional fees.
Changes Developer May Make
Subject to Change Process:
Developer may end this agreement when it would otherwise automatically renew by giving Notice at least 30 calendar days ahead of time.
If Customer breaches this agreement, Developer gives Notice of the breach, and Customer does not cure the breach within 30 calendar days, Developer may end this agreement immediately.
Process
Notice Process
Both sides agree that to give Notice under this agreement, the side giving Notice must send by e-mail to the address the recipient given with its signature, or to a different address given later for Notice going forward. If either side finds that e-mail can't be delivered to the e-mail address given, it may give Notice by registered mail to the address on file for the recipient with the state under whose laws it is organized.
Change Process
Customer and Developer agree to make changes allowed under this agreement by Notice.
General Contract Terms
Governing Law
The law of the state of Developer's Address will govern this agreement
Whole Agreement
Both sides intend the Order Form and these terms as the final, complete, and only expression of their terms about licensing of the Software. However, this agreement does not affect any separate nondisclosure agreement Developer and Customer may have.
Enforcement
Assignment
Each side may assign all its rights, licenses, and obligations under this agreement, as a whole, to a new legal entity created to change its jurisdiction or legal form of organization, or to an entity that acquires substantially all of its assets or enough securities to control its management. Otherwise, each side needs Permission to assign any right or license under this agreement. Attempts to assign against the terms of this agreement will have no legal effect.
Lawsuits
Lawsuit means a lawsuit brought by one side against the other, related to this agreement or the Software.
Developer's Local Courts means the state and federal courts with jurisdiction at Developer's Address.
Forum
Both sides agree to bring any Lawsuit in Developer's Local Courts.
Exclusive Jurisdiction
Both sides consent to the exclusive jurisdiction of Developer's Local Courts. Both sides may enforce judgments from Developer's Local Courts in other jurisdictions.
Inconvenient Forum Waiver
Both sides waive any objection to venue for any Lawsuit in Developer's Local Courts and any claim that the other brought any Lawsuit in Developer's Local Courts in an inconvenient forum.
Loser Pays
Each side agrees to pay the other side's costs of bringing any successful Lawsuit or collecting payment owed under this agreement.
Definitions
Billing Period means a successive, month-long period. The first Billing Period starts on the date of this agreement. The plural is Billing Periods.
Customer Personnel means Customer's employees and each Customer subsidiary's employees, as well as independent contractors providing services to Customer.
Intellectual Property Right means any patent, copyright, trademark, or trade secret right, or any other legal right typically referred to as an intellectual property right.
Notice means a written communication from one side to the other per Notice Process.
Permission means prior Notice of consent.
Prepaid Fees means fees Customer prepaid under this agreement for time remaining in the term of this agreement.
Developer's Address means the address that Developer gives along with its signature to the Order Form.