IMPORTANT - READ CAREFULLY: These OlinData Support Services Terms and Conditions set forth the terms governing the provision of Support Services by OlinData to its Customers (as used herein, a party entitled to receive Support Services subject to a quote or order shall be referred to as “Customer” or “You”). OlinData (which means (i) OlinData BV, if Customer is located in the European Economic Area; and (ii) the local OlinData sales subsidiary, if Customer is located in a country in which OlinData has a local sales subsidiary; and (iii) OlinData Asia Pte Ltd, if Customer is located outside the European Economic Area and in a country in which OlinData does not have a local sales subsidiary (in each case, referred to herein as “OlinData”), shall provide Support Services (as defined herein) (“Support Services”) to the Customer, per the terms of this Agreement (the “Agreement”) and as set forth at the OlinData Support Services Website, at http://www.olindata.com/support. The terms herein supplement the terms and conditions of OlinData’s End-User License Agreement (“EULA”) or other applicable signature-bearing agreement that references the OlinData Product Guide (such agreements are referred to as “Software License Agreement”) between OlinData and Customer. Capitalized terms not defined herein shall have the same meaning as defined in the applicable Software License Agreement.
1.1 “Error” means a failure in the Software to materially conform to the specifications described in the applicable product documentation (“Documentation”).
1.2 “Modified Code” means any modification, addition and/or development of code scripts deviating from the predefined product code tree(s)/modules developed by OlinData for production deployment or use. Modified Code excludes customizable Software options for which OlinData offers Support Services on the applicable OlinData price list.
1.3 “Services Fees” means the fees for Support Services specified in a corresponding OlinData or reseller invoice.
1.4 “Services Period” means the period for which Customer has purchased the Support Services and shall commence on the date (“Effective Date”) that such applicable Software is made available for download, unless an alternate date is described in an applicable OlinData service brief.
1.5 “Initial Services Period” means the initial purchase of Support Services commencing on the Effective Date.
1.6 “Renewal Services Period” means the subsequent purchase of Support Services following the expiration of the Initial Services Period, which shall commence on the day after the Initial (or immediately prior) Services Period ends.
1.7 “Severity” is a measure of the relative impact an Error has on the use of the Software, as defined by OlinData, and assigned by Customer when opening a Support request. The following Severity levels apply to all Software:
(a) “Severity One” means Customer’s production server or other mission critical system(s) are down and no workaround is immediately available and (i) all or a substantial portion of Customer’s mission critical data is at a significant risk of loss or corruption; (ii) Customer has had a substantial loss of service; or (iii) Customer’s business operations have been severely disrupted.
(b) “Severity Two” means that major functionality is severely impaired such that (i) operations can continue in a restricted fashion, although long-term productivity might be adversely affected; (ii) a major milestone is at risk; ongoing and incremental installations are affected; or (iii) only a temporary workaround is available.
(c) “Severity Three” means a partial, non-critical loss of functionality of the Software such that: (i) the operation of some component(s) is impaired but allows the user to continue using the Software; or (ii) initial installation milestones are at minimal risk.
(d) “Severity Four” means general usage questions and cosmetic issues, including errors in the Documentation.
1.8 “Software” means the computer programs (listed on OlinData’s official quote) for which Customer obtains a support license under an order or quote (which specifies a perpetual, Subscription Services time-bound or license Term), together with any Software Release that is provided to Customer pursuant to a Support Services and/or Subscription Services contract and that is not subject to a separate license agreement, and associated Documentation.
1.9 “Software Release” means any subsequent version of the Software after initial delivery of the Software, but does not include new Software products or services (as determined by OlinData).
1.10 “Subscription Services” means, during the Subscription Period set forth in the applicable quote or order for such Software: (a) access to the Software and Documentation, subject to the licensing terms and restrictions in the relevant software; and (b) Support Services, which include any new Software and Upgrades introduced with respect to the Software Subscription set forth in the quote on a “when and if available” basis during the Subscription Period. Subscription Services includes OlinData Premium Support Services offering described at http://www.olindata.com/support
1.11 “Support Services” means the services available from OlinData or its designee which provides Software Releases and Technical Support Services for Software during the Services Period as set forth at http://www.olindata.com/support
, as such schedule may be updated by OlinData from time to time, subject to the terms and conditions set forth herein.
(a) “Maintenance Release” means a generally available release of the Software that typically provides maintenance corrections only or high severity bug fixes, designated by means of a change in the digit to the right of the second decimal point (e.g. Software 5.0 >> Software 5.0.1), or for certain Software, by means of a change in the digit of the Update number (e.g. Software 5.0 Update 1).
(b) “Minor Release” means a generally available release of the Software that (i) introduces a limited amount of new features, functionality and minor enhancements; (ii) fixes for high severity and high priority bugs identified in the current release, and (iii) is designated by means of a change in the digit to the right of the decimal point (e.g., Software 5.0>>Software 5.1).
(c) “Major Release,” also known as an “Upgrade,” means a generally available release of the Software that (i) contains functional enhancements and extensions, (ii) fixes for high severity and high priority bugs, and (iii) is designated by means of a change in the digit to the left of the first decimal point (e.g., Software 5.0 >> Software 6.0).
1.12 “Technical Support Services” means the provision of telephone or web-based technical assistance by OlinData to Customer’s technical contact(s) with respect to installation, Errors and technical product problems, at the corresponding Support Services level purchased by Customer.
1.13 “Third Party Products” means any software or hardware that is manufactured by a party other than OlinData and is either: (i) not delivered with the Software; or (ii) not incorporated into the Software.
2. Service Terms
2.1 Provision of Services. Subject to the terms of this Agreement, OlinData shall, during the Services Period, provide You with the Support Services at the applicable Services level purchased, commencing upon the Effective Date.
2.2 End of Availability. OlinData may, at its discretion, decide to retire Software and/or Support Services from time to time (“End of Availability”). OlinData shall publicly post for all customers notice of End of Availability, including the last date of general commercial availability of the affected Software and the timeline for discontinuing Support Services, at http://www.olindata.com/support/lifecycle_policy
. OlinData shall have no obligation to provide Support Services for Software that is outside of the applicable Support Service life.
2.3 Purchase Requirements.
(a) Except as otherwise provided for by OlinData, You may purchase initial Support Services only for the most current, generally available release of the Software. (b) You must purchase and/or renew Support Services at the same level of Support for all of the licenses for a particular Software product or suite that has been installed in a given environment, such as Test, Development, QA, or Production (i.e. You cannot purchase Premium Support for only one license in its lab and purchase another level support for the other licenses in that environment). (c) For Software that is licensed on a perpetual basis, except as otherwise provided in the applicable price list, the minimum term for any Support Service offering is one (1) year. (d) These Support Services Terms and conditions will automatically update to OlinData’s then-current Support Services terms and conditions set forth at http://www.olindata.com/support/support_terms_conditions
upon any renewal of Support Services.
(a) Support Services do not cover problems caused by the following:
(i) unusual external physical factors such as inclement weather conditions that cause electrical or electromagnetic stress or a failure of electric power, air conditioning or humidity control; neglect; misuse; operation of the Software with other media not in accordance with the manufacturer’s specifications; or causes other than ordinary use; (ii) use of the Software that deviates from any operating procedures as specified in the Documentation; (iii) Third Party Products, other than the interface of the Software with the Third Party Products; (iv) Modified Code; (v) issues relating to Software offered as a Service (“SaaS”), or other “X”aaS offerings; (vi) any customized deliverables, including diagnostic tools, created by OlinData, OlinData partners or third-party service providers specifically for You as part of consulting services; (vii); use of the Software with unsupported tools (i.e., Java Development Kit (JDK); Java Runtime Environment (JRE)), APIs, interfaces or data formats other than those included with the Software and supported as set forth in the Documentation. You may request assistance from OlinData for such problems, for an additional fee. (b) In the event that OlinData suspects that a reported problem may be related to Modified Code, OlinData, may, in its sole discretion, (i) request that the Modified Code be removed, and/or (ii) inform You that additional assistance may be obtained by You directly from various product discussion forums or by engaging OlinData’s consulting services group for an additional fee.
2.5 Customer Responsibilities. OlinData’s obligations regarding Support Services are subject to the following:
(a) You agree to receive from OlinData communications via e-mail, telephone, web, and other formats, regarding Services (such as communications concerning support coverage, Errors or other technical issues and the availability of new releases of the Software and training options).
(b) Your technical contact shall cooperate to enable OlinData to deliver the Services.
(c) You are solely responsible for the use of the Software by its personnel and shall properly train its personnel in the use and application of the Software.
(d) You shall promptly report to OlinData all problems with the Software, and shall implement any corrective procedures provided by OlinData reasonably promptly after receipt.
(e) You are solely responsible for protecting and backing up the data and information stored on the computers on which the Software is used and should confirm that such data and information is protected and backed up in accordance with any internal or regulatory requirements as applicable, before contacting OlinData for Support Services. OlinData is not responsible for lost data or information in the event of errors or other malfunction of the Software or computers on which the Software is used.
(f) You will have dedicated resources available to work 24x7 on Severity One Errors.
3. Services Offerings and Fees.
3.1 Services Fee Terms.
(a) Service Fees are payable on or before the Effective Date or, in the case of a renewal term, no later than the date of commencement of the applicable Services Period. Services Fees are specified in the applicable price list and are non-refundable.
(b) In the event that You renew or add a Support Services offering that has a minimum term of one (1) year, You may elect to make Support Services for all of your Software Licenses coterminous with the renewed or added Services. In such case, OlinData will prorate the applicable Services Fees to extend the current Services Period to make it coterminous with such renewed or added Services.
(c) Reinstatement of Support Services. For Software that is licensed on a perpetual basis, if You purchase Support Services after acquiring the Software Licenses, or had elected not to renew Support Services and later wish to re-enroll in the Services, You must move to the then-current Major Release of the Software and must pay: (i) the applicable Services Fees for the current Services Period; (ii) the amount of Services Fees that would have been paid for the period of time that You had not enrolled in the Services, and (iii) a twenty-percent (20%) reinstatement fee on the sum of the Services Fees in (i) and (ii).
3.2 Advanced Offerings. Certain Support Services (e.g. Remote Designated Support Engineer services) require that You also purchase a base level of support. See the applicable service brief for details.
3.3 Open Source Licenses. Support Services for Software made available under open source licenses may be subject to additional policies located at http://www.olindata.com/support/oss
4. Payment Terms. Services Fees are exclusive of any taxes, duties, or similar charges imposed by any government. You shall pay or reimburse OlinData for all federal, state, dominion, provincial, or local sales, use, personal property, excise, value added, withholding or other taxes, fees, or duties relating to the transactions contemplated by this Agreement (other than taxes on the net income of OlinData). All invoices issued hereunder by OlinData are due and payable within thirty (30) days of the date of the invoice. Amounts not paid on time are subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. If payment of any Services Fee is overdue, OlinData may also suspend performance until such delinquency is corrected.
5. Limited Warranty. OlinData warrants that the Services to be performed hereunder will be done in a workmanlike manner and shall conform to industry standards. Upon You providing OlinData with a reasonably detailed written notice to cure within thirty (30) days of occurrence of the nonconformance, OlinData will re-perform the Services to achieve commercially reasonable conformance with the above warranty. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY IS GIVEN EXPRESSLY AND IN PLACE OF ALL OTHER WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT MANDATED BY LAW, THIS REMEDY WILL BE YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO NONCONFORMANCE OF SERVICES.
6. Limitation of Liability. IN NO EVENT WILL OLINDATA BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND ARISING UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE. OLINDATA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROVISION OR USE OF ANY AND ALL OF THE SERVICES PROVIDED HEREUNDER, WILL NOT, IN ANY EVENT, EXCEED THE LESSER OF (I) FEES YOU PAID FOR THE SERVICES DURING THE 12 MONTHS PRECEDING THE DATE OLINDATA RECEIVES WRITTEN NOTICE OF THE FIRST CAUSE OF ACTION TO ARISE HEREUNDER; OR (II) USD$250,000. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER OLINDATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7. Termination. OlinData may terminate the Agreement and all Support Services at any time if (1) it is discovered that You are currently in breach of your Software license restrictions, pursuant to your Software License Agreement or (2) You are in material breach of this Agreement.
8. Data Collection and Usage. You agree that OlinData may collect, use, store and transmit technical and related information about You, your use of the Software including but not limited to server internet protocol address, hardware identification, operating system, application software, peripheral hardware, and Software usage statistics, to facilitate the provisioning of updates, support, invoicing, online services to You. You are responsible for obtaining any consents required in order to enable OlinData to exercise the rights set forth in this Section 4.5, in each case in compliance with applicable law.
9. Data Protection. You acknowledge that correspondence and log files generated in conjunction with a request for Support Services should not contain any sensitive, confidential or personal information. You are solely responsible for taking the steps considered necessary to protect any data containing sensitive, confidential or personal information, including obscuring the logs or otherwise guarding such information prior to sending it to OlinData.
10. Other. You may not assign or delegate this Agreement to any third party without the prior written consent of OlinData. This Agreement shall be governed by the laws of the Kingdom of the Netherlands without regard to conflict of laws principles. The parties consent to the exclusive jurisdiction of the state and federal courts located in the Hague, Netherlands. This Agreement constitutes the entire agreement of the parties with respect to the provision of the Services by OlinData to You, and supersedes all prior written or oral communications, understandings and agreements. This Agreement may not be amended except in a written document signed by both parties. Any waiver of the provisions of this Agreement must be in writing to be effective. Except as expressly set forth herein, no terms of any purchase order or other business form that You may use will affect the obligations of the parties under this Agreement, and any such purchase order or other business form which contains additional or conflicting terms are hereby rejected by OlinData. You agree that purchase orders do not have to be signed to be valid and enforceable. If any provision of this Agreement is found to be invalid or unenforceable, the remaining terms will continue to be valid and enforceable to the fullest extent permitted by law.