SUPPORT AND MAINTENANCE TERMS AND CONDITIONS
You agree that the following terms and conditions (“Terms and Conditions”) shall govern the delivery of any support and/or maintenance services by Qmulos (“Support”) listed on an Order Document entered into pursuant to the Qmulos Software License Agreement (the “Agreement”) to which these Terms and Conditions are attached and made a part thereof. Subject to your termination rights set forth in the Agreement, ordering any Support from Qmulos or any authorized reseller indicates your acceptance of these Terms and Conditions. These Terms and Conditions are effective upon receipt and confirmation of acceptance of your purchase order by Qmulos or an authorized reseller (the “Effective Date”).
- Unless otherwise defined in these Terms and Conditions, capitalized terms shall have the meanings set forth in the Agreement.
2. SUPPORT AND MAINTENANCE.
- Subject to your timely payment of the applicable annual Support fees set forth in your Order Document(s) (the “Support Fees”), Qmulos will provide the level of Support identified in your Order Document(s) in accordance with the Support descriptions set forth below. Qmulos will notify (electronic or otherwise) you of any amendments to such Support descriptions in each notice of term renewal. No other maintenance or support for the Software is included in these Terms and Conditions.
- Support Fees. Support Fees will be due and payable in accordance with the Order Document(s). Qmulos will notify (electronic or otherwise) you of the then-current annual Support Fee for your level of Support in each notice of term renewal. Support Fees will be non-refundable once paid.
- Qmulos will have no obligation of any kind to provide Support for problems caused by or arising out of any of the following (each, a “Licensee-Generated Error”): (i) modifications to the Software not made by Qmulos; (ii) use of the Software other than as authorized in the Agreement or as provided in the documentation for the Software; (iii) damage to the media on which the Software is provided or to the machine on which the Software is installed; (iv) your negligence or fault; (v) versions of the Software other than the most recent version or the Supported Prior Version (defined in Section 2.5.9); (vi) third-party products not expressly supported by Qmulos; or (vii) conflicts related to replacing or installing hardware, drivers, and software that has not been Qmulos certified. If Qmulos determines that it is necessary to provide support for a problem caused by a Licensee-Generated Error, Qmulos will notify you thereof as soon as Qmulos is aware of such Licensee-Generated Error and Qmulos will have the right to invoice you at Qmulos’s then-current time and materials rates for any such support provided by Qmulos.
- Support is delivered in English only unless you are in a location where Qmulos has made localized Support available.
2.5 Support Descriptions.
- Qmulos Enterprise Qmulos Enterprise Support provides telephone and email support submitting cases and tracking case status. Support cases are handled based on case priority levels as described in Section 2.5.2. When submitting a case, customers select the priority for initial response in accordance with the priority guidelines set forth in Section 2.5.2. When the case is received, Qmulos Customer Support may change the priority if the issue does not conform to the criteria for the selected priority and will provide you with notice (electronic or otherwise) of such change. Qmulos will respond to Qmulos Enterprise Support requests and will provide workarounds or fixes in accordance with the guidelines set forth in Section 2.5.3.
- Case Priority Case priorities are assigned based on the technical importance of the problem on your Qmulos environment.
- P1: Qmulos Software is completely inaccessible or the majority of its functionality is
- P2: One or more key features of Qmulos Software are
- P3: Any other case where a Qmulos Software feature is not operating as
- P4: All enhancement
- Target Fix, Workaround, Escalation and Response Authorized Support Contacts.
Initial Response & Acknowledgment, by case priority:
- P1: 4 hours
- P2: Next business day
- P3: Two business days
- P4: Two business days
Targeted Fix Date or Workaround, by case priority:
- P1: 1 day
- P2: 1 week
- P3: Next release
- P4: At Qmulos’s discretion
Escalation, by case priority:
- P1: Manager: Immediate / VP: 1 business day
- P2: Manager: 1 business day / VP: 1 week
- P3: CTO reviews all open bugs quarterly
- P4: CTO reviews all enhancement requests quarterly
Email Status Updates for Open cases, by case priority:
- P1: Daily
- P2: Weekly
- P3: None
- P4: None
- Additional Support. Support will be provided solely to the authorized individual(s) specified by you that Qmulos will communicate with when providing Support (“Support Contacts”). Qmulos strongly recommends that your Support Contact(s) be trained on the Your Order Document(s) will indicate a maximum number of authorized Support Contacts for your license level. You will be asked to designate your authorized support contacts, including their primary email address, following Qmulos’s acknowledgment of your Order Document(s).
- Defect Resolution. Should Qmulos in its sole judgment determine that there is a defect in the Software, it will, at its sole option, repair that defect in the version of the Software that you are currently using or instruct you to install a newer version of the Software with that defect repaired. Qmulos reserves the right to provide you with a workaround in lieu of fixing a defect should it in its sole judgment determine that it is more effective to do so.
- Support Hours. Support is provided via telephone, email and web portal. Support will be delivered by a member of Qmulos’s technical support team during the hour of 9-5 EST.
- Your Obligation to Assist. Should you report a purported defect in the Software to Qmulos, Qmulos may require you to provide them with the following information: (a) a general description of the operating environment, (b) a list of all hardware components, operating systems and networks, (c) a reproducible test case, and (d) any log files, trace and systems Your failure to provide this information may prevent Qmulos from identifying and fixing that purported defect.
- Software Upgrades and Software End of Life Policy. When available, Qmulos provides updates, upgrades, maintenance releases and reset keys only to Qmulos Enterprise or Global Support customers. Qmulos Software comes with a three digit number version. The first digit represents the major release (i.e. upgrade), the second digit identifies the minor releases (i.e. updates) and the third digit identifies the maintenance releases. With a new major version, the number to the left of the decimal is changed and for minor releases, the number to the right of the decimal point is increased. If your Qmulos Enterprise or Global Support agreement expires, you will receive only maintenance releases, when available. Subject to the foregoing, Qmulos provides full Support, including, when available, bug fixes, only on the current major release and (a) the immediately prior major release or (b) twenty-four months from the then current major release (“Supported Prior Versions”).
- Changes in Support and Software. You acknowledge that Qmulos has the right to discontinue the manufacture and development of any Software and the Support for any Software, including, without limitation, the distribution of older Software versions, at any time in its sole discretion, provided that Qmulos agrees not to discontinue Support for the Software during the current annual term of these Terms and Conditions, subject to the termination provisions herein. Qmulos reserves the right to alter Support from time to time, using reasonable discretion but in no event shall such alterations result in (i) diminished support from the level of Support set forth herein;
(ii) materially diminished obligations for Qmulos; (iii) materially diminished your rights; or (iv) higher Support Fees during the then-current term. Qmulos shall provide you with thirty (30) days prior written notice (delivered electronically or otherwise) of any permitted material changes to the Support contemplated herein.
3. CONFIDENTIAL INFORMATION.
- Confidential Information. “Confidential Information” means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party that: (A) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (B) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (C) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Confidential Information of Qmulos shall include the Qmulos Materials.
- Use and Disclosure Restrictions. The receiving party of Confidential Information (the “Recipient”) agrees: (i) to maintain the Confidential Information of the party disclosing such information (the “Discloser”) in the strictest of confidence; (ii) not to disclose such Confidential Information to any third parties; and (iii) not to use any such Confidential Information for any purpose other than in furtherance of this Agreement and the activities described Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, employees and consultants (collectively, “Representatives”) who have a bona fide need to know such Confidential Information, but solely to the extent necessary to pursue the activities described herein and for no other purpose; provided that each such Representative first executes a written agreement (or is otherwise already bound by a written agreement) that contains use and nondisclosure restrictions at least as protective of the other party’s Confidential Information as those set forth herein.
- Exclusions. The obligations of Recipient under Section 3.2 shall not apply to any Confidential Information which: (a) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (b) was known by or lawfully in the possession of Recipient, prior to receiving such information from Discloser, without restriction as to use or disclosure; (c) is rightfully acquired by Receiver from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (d) is independently developed by Recipient independently without access to any Confidential Information of Discloser.
- Required Disclosures. The provisions of Section 3.2 will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law or regulation or compelled by a court or administrative agency of competent jurisdiction.
- Independent Development. Recipient reserves the right to develop and market any technology, products or services or pursue business opportunities that compete with or are similar to those disclosed by Discloser under this Agreement without the use of the Discloser’s Confidential Information. Nothing contained in this Agreement shall prohibit or restrict Recipient from employing general ideas, concepts or techniques which may be retained in the unaided human memory by Recipient personnel in the course of their review of the Confidential Information (but without any attempt to memorize such information). The foregoing sentence shall not, however, grant Recipient any rights under any patents or copyrights.
- Return or Destruction of Confidential Information. Upon termination of the Agreement or support and maintenance, Recipient will promptly return to Discloser, or at Discloser’s option, destroy, all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.
4. TERM AND TERMINATION.
- These Terms and Conditions will commence on the date when Qmulos delivers the Software to you and, unless terminated earlier in accordance with the terms of the Agreement, for a period of one year thereafter (the “Initial Term”). If you allow your support Term to expire, then you may seek to re-activate Support by submitting a purchase order that includes fees for the lapsed period.
- The rights and obligations of the parties contained in Sections 1, 3, 4.2 and 5 will survive the expiration or termination of the Agreement, these Terms and Conditions or any Order Document(s).
- LIMITATION OF LIABILITY. In no event will Qmulos be liable to customer or to any third party for any special, incidental, punitive or consequential damages (including loss of use, data, business or profits) or for costs of procuring substitute services, arising out of or in connection with these terms and conditions or the support services, however caused and regardless of the theory of liability, even if Qmulos has been advised of the possibility of such damages. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy. Qmulos’s total liability to you, from all causes of action and all theories of liability, will be limited to and will not exceed the amounts paid to Qmulos by you under the order document(s) for support giving rise to any liability hereunder.
- FORCE MAJEURE. Qmulos will not be responsible for any failure or delay in its performance under these Terms and Conditions due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, war, acts of terror, riot, acts of God or governmental action.