These Software Maintenance and Support Supplemental Terms and Conditions (“Supplemental Terms”) define the maintenance and support services that Leostream Corporation (“Leostream”) provides to its Licensees or Customers (each referred to herein as a “Customer(s)”), as applicable, pursuant to Section 7 (Maintenance and Support) of the Leostream Software License Agreement – Perpetual (“Perpetual Agreement”) or the Leostream Software Subscription Agreement (“Subscription Agreement”), respectively. These Supplemental Term are made a part of and incorporated in the Perpetual Agreement or Subscription Agreement, as applicable.
1. Definitions. Capitalized terms used but not defined herein will have the meaning set forth in the (“Perpetual Agreement”) or the Leostream Software Subscription Agreement (“Subscription”), as applicable.
“Enhancements” are new features.
“Product” is the Leostream computer software program(s) licensed to the Customer and the related but unspecified enhancements, releases, updates, or other modifications thereto that Leostream may release when and if available while this Agreement is in force, together with the associated documentation.
“Services” means the Support Services and the Maintenance Services provided by Leostream hereunder.
“Standard Support” includes Support and Maintenance Services during the hours of 8:00 a.m. and 6:00 p.m. Monday through Friday, Eastern Standard USA Time, excluding U.S. holidays.
“Premium Support” includes the definition of “Standard Support” but extends Support and Maintenance Services for urgent issues to 24x7x365
“Support License Key” or “Key” is a cryptographic hash loaded into the Product to provide licensing information.
“Upgrades” are new versions of the Product, designated by a new number to the left of the first decimal point, that offer significant changes, major improvements, or substantial enhancements over the previous Product version. Product Upgrades may require the purchase of the new version of the Product or an active subscription license.
“Updates” are new minor versions of the Product, designated by a new number to the right of the decimal in the product designation, that are generally made available to Customers. By way of example, error resolutions and enhancements that moderately increase the functionalities of the Product are considered Updates.
“Patches” are modifications, additions, or substitutions made to the Product that do not result in substantial performance, structural, or functional improvements, and are generally made available to Customers. They are designated by a new number to the right of the second decimal point. By way of example, error corrections and minor enhancements that do not substantially increase the functionalities of the Product are considered Patches.
2. Support Services. During the term of this Agreement, Leostream customer support will be rendered to Customers reporting that the Product is not working in accordance with the specifications contained in the Leostream User Guide, subject to the Customer’s obligation to maintain all necessary hardware and to input the configurations and implement the procedures required for the proper operation of the Product. Leostream is not responsible for identifying and working around issues with third-party products. Support is provided in three levels:
Level 1 Support consists of taking the initial report from the Customer either by phone or electronically and exerting reasonable efforts to resolve the problem. At a minimum, level 1 support will require customer cooperation to confirm network connectivity and to produce such information (log files, for example) as is required to duplicate the reported issue in the Leostream laboratory. Level 1 Support may be provided by Leostream or by a Leostream-authorized reseller.
Level 2 Support consists of recreating the reported issue in the Leostream laboratory and developing a fix or work around within the existing Product. Level 2 support may include coordination with other 3rd party vendors’ products and devices that are impacting the Product’s capabilities.
Level 3 Support consists of software code modifications from the Leostream engineering group designed to resolve the Customer’s specific issue. It should be expected that Level 3 support will result in a software patch or update.
3. Severity. Problems that are encountered by licensee should be reported to Leostream along with a Severity. Leostream reserves the right to assign a severity to all received issues, based on the following definitions.
4. Service Level. This contract defines support service levels. The delivery of Services is bounded by the following definitions:
|
Support Plan |
Severity |
Response Time |
|
Standard |
Urgent |
Within 4 business hours |
|
Standard |
Non-Urgent |
Within one business day |
|
Premium |
Urgent |
During Business Day: 2 Hours |
|
Premium |
Non-Urgent |
4 business hours |
5. Customer Procedures. Employees of the Customer that support the Product may contact Leostream with Support Services requests. Leostream reserves the right to refuse assistance or to charge additional fees if an operator seeks assistance with respect to such background information of any other matters not directly relating to the operation of the Product
6. Resolution Procedures. Leostream will resolve issues through our Support portal and email. If the Customer has agreed to the Standard Support plan, web-conferencing and screen-shares are scheduled at the discretion of Leostream and may require additional fees. Customers that upgrade to the Premium Support plan can schedule a screen-share with a Leostream Engineer based on the customer’s Premium Support contract, subject to Leostream availability.
7. Maintenance Services. Customer is entitled to all Updates and Patches released during (a) the then current Maintenance Term in the case of the Perpetual License or (b) the Subscription Term in the case of a Subscription. Maintenance Services do not include Upgrades. Customer agrees that the use of any and all Updates and Patches furnished hereunder shall be subject to the terms of the Leostream End User License Agreement.
8. Warranty; Disclaimer. Leostream warrants that the Support Services will be performed in a professional and workmanlike manner and with the care and skill ordinarily used by other members of Leostream’s profession practicing under similar conditions. Customer’s sole remedy for breach of this warranty will be re-performance of any Services that fail to conform to the warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, LEOSTREAM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, WITH REGARD TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. Liability. REGARDLESS OF THE BASIS FOR THE CLAIM, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF MAINTENANCE AND SUPPORT SERVICES HEREUNDER, EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. LEOSTREAM SHALL NOT BE LIABLE FOR ANY CLAIMS IN THE AGGREGATE ARISING UNDER THESE SUPPLEMENTAL TERMS IN EXCESS OF THE TOTAL THE FEES PAID TO LEOSTREAM UNDER THE PERPETUAL AGREEMENT OR SUBSCRIPTION AGREEMENT, AS APPLICABLE.
10. Confidentiality. “Confidential Information” means all information provided by one party to the other party relating to the Services, except for information that: (i) is public knowledge at the time of disclosure; (ii) becomes public knowledge through no act or omission of the receiving party; (iii) has been furnished to the receiving party by a third party whom the receiving party believes may legitimately provide the information without restriction on disclosure; (iv) was in the receiving party’s possession, as evidenced by written or computerized records, prior to the date of disclosure and which was not acquired under obligations of confidentiality from the disclosing party; or (v) was independently developed by the receiving party as evidenced by written or computerized records. Neither party may use the Confidential Information of the other party for any purpose or disclose it to any third party without the disclosing party’s prior written consent. However, each party may use any feedback, suggestions or ideas which the other party provides to improve such party’s products and services. Each of the parties agrees that it will disclose the other party’s Confidential Information only to its employees who need to know such information, provided that such employees are bound by terms and conditions protecting such Confidential Information substantially similar to those of this Section 10. This paragraph will survive the expiration or termination of this Agreement for five (5) years following the date the Confidential Information was disclosed.
11. Termination of Maintenance.
12. Miscellaneous. Title to and ownership of any correction, corrected copy, version or release of the Product and its related documentation provided to Customer will remain with Leostream, including any copies of any Product, or portion thereof made by any person or entity, regardless of the means used to make the copy or the media to which the copy is made. These Supplemental Terms and the Perpetual Agreement or Subscription Agreement, as applicable, constitute the entire agreement between the parties hereto with respect to its subject matter. All prior proposals, understanding, and other agreements, whether oral or written, between the parties that relate to this subject matter are superseded and revoked. These Supplemental Terms may be modified or amended by Leostream in its sole discretion by posting such modified or amended Supplemental Terms on its website, any such modification shall not be effective as to Customer unless and until Customer (a) in the case of a Perpetual Agreement, renews and/or extends its Maintenance Term by payment of the then applicable Support Term or (b) in the case of a Subscription Agreement, upon extension of the Subscription Term by payment for a Renewal Term.