SOFTWARE MAINTENANCE AGREEMENT
| 1. TERM AND PAYMENT
1.1 Gatespace Networks, Inc. (“Gatespace”) will provide the following software maintenance and support services for the Test ACS software (the “Covered Software”) for which the maintenance services are purchased by the client (“Client”) pursuant to a written order (“Order”). To the extent that Client and Gatespace have entered into a written agreement regarding maintenance services for Gatespace software, the terms of such written agreement will prevail over this Software Maintenance Agreement with respect to such Gatespace software.
1.2 Client shall pay Gatespace the annual maintenance fee (the “Maintenance Fee”) annually in advance. Gatespace reserves the right to change the Maintenance Fee from time to time upon 60 days written notice, which change shall become effective upon the next Renewal Term.
1.3 Unless otherwise set forth in an Order, these terms and conditions shall be in effect for a one year term, and shall renew automatically for successive one year terms (each, a “Renewal Term”) unless either party provides the other with written notice of its intention not to renew at least 30 days prior to the next renewal date. Without prejudice to its other rights, Gatespace may terminate support and maintenance services in the event that: (a) Client fails to pay the applicable Maintenance Fee; or (b) Client’s license to the Covered Software for which Client has purchased support and maintenance services is terminated.
1.4 Gatespace will non pro-rate or issue any refunds for any unused time on this agreement.
2. SCOPE OF MAINTENANCE
2.1 Gatespace will provide the software maintenance and support services listed in Sections 2.2 and 2.3 to the Client for the Covered Software while the annual maintenance fee for the Current Release of the particular Covered Software is in effect and paid in full. “Current Release” means the then-current unmodified, unimproved release of the Covered Software made generally available by Gatespace to similarly situated customers. Gatespace shall not be obligated to provide maintenance or support services for any customizations or modifications to the Current Release as part of the Maintenance Fee. Such services may be available from Gatespace for an additional fee. Gatespace may provide maintenance and support services for the version of the Covered Software immediately preceding the Current Release at its discretion.
2.2 Gatespace will use reasonable efforts to correct any failure in the Covered Software to substantially comply with its Documentation (“Errors”), provided such Errors are identified by Client in writing, are replicable by Gatespace, and confirmed by Gatespace to arise directly from the unmodified Covered Software. In particular, Gatespace will use reasonable efforts to proceed as described below:
2.2.1 If an Error causes the Covered Software to be wholly inoperative, or so severely impaired that that Client is unable to use the Covered Software to perform any of its intended functions in accordance with the Documentation supplied by Gatespace, (“Severity 1 Error”), Gatespace will: (a) within one (1) business day after receiving notice of a Severity 1 Error from Client, assign at least one qualified technician to dedicate full time within Gatespace normal business hours to provide a correction or procedural workaround sufficient to reduce or eliminate the effect of the Severity 1 Error; and (b) within five (5) business days after receiving notice of a Severity 1 Error from Client, provide an error correction or procedural workaround sufficient to alleviate any material adverse effect of the Severity 1 Error on the operation of the Covered Software.
2.2.2 If an Error causes the Covered Software to fail to function in material accordance with its Documentation so that one or more material functions are severely impaired but the Covered Software is still operational with respect to other functions (“Severity 2 Error”), Gatespace will, within ten (10) business days after receiving notice of a Severity 2 Error from Client, provide an error correction sufficient to alleviate any material adverse effect of the Severity 2 Error on the operation of the Covered Software.
2.2.3 If an Error reported by Client causes inconvenience, but does not materially and adversely affect the functionality of the Covered Software (“Severity 3 Error”), Gatespace will endeavor to include a correction of such Severity 3 Error by the next Upgrade of the Covered Software.
2.3 Gatespace shall provide Upgrades to the standard version of the major Covered Software at no additional cost to the Client. “Upgrades” shall mean updated, upgraded, or revised versions of the Covered Software which may include Error corrections and other enhancements that Gatespace, at its sole discretion, makes available to Gatespace customers who are similarly situated to Client at no additional charge. Upgrades shall not include any new releases which contain substantially new or different functionality, which Gatespace licenses as separate products or which Gatespace creates at the request of a specific Client.
3. OTHER SUPPORT TERMS 3.1 Client shall designate in writing to Gatespace up to three (3) appropriate and knowledgeable persons to serve as Client’s liaisons with Gatespace and through whom all contacts and questions shall be presented to Gatespace. Client’s liaison persons may be changed by Client by providing written or email notice to Gatespace.
3.2 In addition to the support and maintenance services described above, at Client’s request and with Gatespace assent, Gatespace may also perform additional services for Client to correct difficulties or defects caused by Client’s errors, hardware system changes, interactions with other software of Client, or any authorized changes or customizing made to the Covered Software. Such additional services are not included in the fees set forth above and shall be provided at Gatespace then applicable rates and charges.
3.3 In the event that Client makes any unauthorized modifications, enhancements or improvements to the Covered Software, Gatespace shall be relieved of its obligations to provide support and maintenance services for any portion of the Covered Software which has been affected, directly or indirectly, by such changes, modifications, enhancements or improvements.
4. WARRANTY DISCLAIMER.
THE MAINTENANCE SERVICES ARE PROVIDED ON AN "AS IS” BASIS WITHOUT ANY WARRANTIES (EXPRESS OR IMPLIED) WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTIABILITY, QUALITY, PERFORMANCE OR FITNESS FOR ANY PARTICULAR PURPOSE.
5. LIMITATION OF LIABILITY.
GATESPACE AND ITS THIRD PARTY SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF GATESPACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GATESPACE AND ITS THIRD PARTY SUPPLIERS’ LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE FEES PAID BY CLIENT FOR THE MAINTENANCE SERVICES. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK, WHICH IS SET FORTH IN THIS SECTION. The foregoing limitations will apply even if the above stated warranty fails of its essential purposes. Some states do not allow the exclusion or limitation of liability for consequential or incidental damages so the above limitation may not apply.
6. OFAC COMPLIANCE.
Client warrants that it is not owned or controlled, directly or indirectly, by any person or government from countries that are subject to economic, trade, or transactional sanctions imposed by the United States Government, including but not limited to Burma, Cuba, Iran, North Korea, Syria, or Sudan and that neither Client nor any of its owners, directors, officers, employees, or group companies appears on any lists of known or suspected terrorists, terrorist organizations or other prohibited persons made publicly available or published by any agency of the government of the United States or any other jurisdiction in which Client or any of its group companies are doing business, including but not limited to the List of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury. Client agrees that it will notify Gatespace if these circumstances change.
If any provision of this agreement is held unenforceable by a court of competent jurisdiction, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this agreement shall continue in full force and effect. You may not assign this agreement or any of your rights or duties under this agreement without the prior written consent of Gatespace, and any such purported assignment shall be null and void. Subject to the foregoing, this agreement shall be binding upon and shall inure to the benefit of each party, its successors, administrators, heirs, and assigns. This agreement is governed by the laws of the State of Colorado, without reference to its conflict of law principles and without regard to the U.N. Convention on Contracts for the International Sale of Goods. The parties hereby consent to the jurisdiction of the courts located in Colorado, U.S.A. in any action arising out of or relating to this agreement, and agree that any action arising out of or relating to this agreement shall be maintained in the same jurisdiction. In the event of a dispute arising out of or in connection with this agreement, the party prevailing in such dispute shall be entitled to recover its reasonable expenses, costs and attorneys’ fees, in addition to all other appropriate relief. This agreement, together with any Orders or other documents referencing this agreement, constitutes the complete and exclusive understanding and agreement of Gatespace and Client relating to the subject matter hereof and supersede all prior or contemporaneous understandings, agreements and communications with respect to the subject matter hereof, including but not limited to the terms set forth in any standard customer purchase order.
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