This Support Services Agreement ("Agreement') sets forth the terms and conditions applicable to the provision by OpenMake of maintenance and support services (the “Support Services”) for OpenMake software separately licensed to you by Catalyst Systems Corp., dba “OpenMake”, (the "Maintained Software") and for which you have paid the applicable annual maintenance fee. All software, documentation and media provided to you under the terms and conditions of this Agreement are also subject to the terms and conditions of the applicable OpenMake Software License Agreement relating to the Maintained Software.
This Agreement will become effective and Support Services provided hereunder will commence when OpenMake receives your order for Support Services. OpenMake may terminate this Agreement in the event your payment of the applicable annual maintenance fee for such order is not received within thirty (30) days of receipt of invoice. Unless terminated earlier in accordance with the terms of this Agreement, the Support Services provided hereunder will cease on the last day of the maintenance period which is twelve (12) months from the commencement of Support Services under this Agreement. This Agreement may be terminated at any time upon fifteen (15) days written notice by either party to the other party by reason of any violation of any material terms and conditions of this Agreement.
OpenMake responds to Customer requests for Support by telephone, facsimile, on line service (if available) or in writing to Customer from 7:00 am to 7:00 pm Eastern Standard Time, Monday through Friday excluding national Holidays. Customer can request weekend or Holiday support on an "as needed" basis by submitting the request in writing to OpenMake.
OpenMake will, with your assistance in providing sufficient information and the minimum length source code sufficient for OpenMake to reproduce the suspected Defect, investigate a suspected Defect in the then current release or immediately prior release of the Maintained Software by attempting to reproduce it. If the Defect is confirmed, OpenMake will use reasonable efforts to provide a Correction via temporary product fix or in a future release. When provided under this Agreement, such Correction will be provided without additional charge. OpenMake reserves the right to discontinue Support Services without notice on a past Correction for any Maintained Software after you receive or are given access to a new release, new version or subsequent maintenance release of the Maintained Software containing that Correction is available. Defects are defined as defects in the distribution media or material differences between the operation of the Maintained Software and the description of the operation of the Maintained Software as provided in the applicable end-user documentation. Corrections include, but are not limited to, workarounds, support releases, update disks, correction disks, component replacements, patches and/or documentation changes, as OpenMake deems appropriate.
OpenMake shall use reasonable efforts to respond to Customer requests for service within the following response times and to provide corrections or workarounds to all errors reported by Customer within the stated time periods:
- Severity 1 – Respond within 2 business hours. Provide work around or temporary fix restoring functionality of system (must be restored to Severity 2 or better level of functionality) within one business day and fix for error within 5 business days.
- Severity 2 – Respond within 4 business hours. Provide work-around or avoidance within 5 business days and fix within 10 business days.
- Severity 3 – Respond within 1 business day. Provide fix in next major release of the Product.
- Severity 4 – Respond within 2 business days. Reply to the advice and guidance call within a reasonable period of time.
- "Severity 1" means a suspected Product error that: (1) renders the Product inoperative; or (2) causes the Product to fail catastrophically (system down condition).
- "Severity 2" means a suspected high impact Product error that materially restricts the use or performance of the Product.
- "Severity 3" means a Product error that causes a minor impact on the use of the Products or a Documentation error.
- "Severity 4" means a question about Product use or implementation.
Provided that you have paid to OpenMake any applicable annual maintenance fees and charges, you will be entitled to receive from OpenMake all new releases, new versions, Corrections, enhancements and improvements to the Maintained Software to the extent that the same are made generally available to other OpenMake Support customers.
OpenMake reserves the right, after prior notice, to charge for services which are not the result of Defects in the Maintained Software. Examples of potentially billable services include: Debugging, application coding errors in a customer's application; and Debugging problems in non-Maintained Software, or in combinations of Maintained Software and non-supported products, where the problem occurs in the non-supported product. OpenMake may offer under separate agreements additional maintenance-related services, such as training and consulting. Such services can be performed at a site and time mutually agreeable. These services are normally charged on a time and materials basis plus expenses and are subject to availability.
The following are excluded from the Support Services:
- Altered or modified Maintained Software unless altered or modified pursuant to this Agreement or another Services Agreement with OpenMake;
- Any combination of Maintained Software and other software not covered by this Agreement or not authorized by OpenMake;
- A release or version of Maintained Software for which maintenance services have been discontinued by OpenMake;
- A product release or version that has been withdrawn by OpenMake from the market or is otherwise not generally available;
- Defects caused by your negligence or fault;
- Defects resulting from hardware malfunction or malfunction of software not covered by this Agreement;
- Defects that do not impair or affect the operation of the Maintained Software; and
- Maintained Software used on an unsupported computer or operating system.
The first annual maintenance fee shall be paid in accordance with Item 1 above. Annual maintenance fees for new annual maintenance periods must be paid in advance on or prior to each anniversary of the commencement of Support Services. Approximately forty-five (45) days prior to the termination of the then current annual maintenance period, OpenMake will invoice you for the next year's renewal of the Support Services. The annual maintenance fee due for the next maintenance period shall be the then current applicable OpenMake list price for the renewal of annual Support Services as of the date of invoice. OpenMake reserves the right to withdraw Support Services on any or all Maintained Software, and to alter the prices, terms and conditions for the Support Services in advance of any renewal of Support Services. Any such withdrawal or alterations will amend this Agreement between you and OpenMake as of such renewal date.
If you allow the Support Services to expire, in order to reinstate Support Services for a 12-month term for the applicable Maintained Software you must pay to OpenMake: if you are licensing the then current release of such Maintained Software, a fee equal to the then current annual maintenance fee for the applicable copy of the Maintained Software, plus the then current annual maintenance fee prorated for the period extending back to the date of expiration of Support Services; or if you are not licensing the then current release of such Maintained Software, a fee equal to the then current annual maintenance fee for the applicable copy of Maintained Software, plus the then current upgrade fee for the current release of the Maintained Software.
NEITHER OpenMake NOR ANY OF ITS THIRD-PARTY SUPPLIERS SHALL BE LIABLE FOR ANY INJURY, LOSS OR DAMAGE, WHETHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, ARISING OUT OF THE SUPPORT SERVICES OR THE USE OR INABILITY TO USE THE MAINTAINED SOFTWARE, INCLUDING WITHOUT LIMITATION LOST PROFITS, DATA OR PROGRAMS, AND THE COST OF RECOVERING SUCH DATA OR PROGRAMS, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
OPENMAKE’S cumulative liability to you for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the license fee paid by you to OPENMAKE for the use of the Software under this Agreement. In no event shall OPENMAKE be liable for any (a) indirect, punitive, incidental, consequential, special, or exemplary damages or lost profits, (b) loss of use of any computer or loss or corruption of data or the costs of system or data recovery, or (c) third party claims. The limitations contained in this paragraph apply whether the liability is based on contract, negligence, strict liability or otherwise, even if OPENMAKE has been advised of the possibility of such damages. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
OpenMake and its third-party suppliers have and will retain all ownership rights to the Maintained Software, including all patent rights, copyrights, trademarks, service marks, related goodwill, and confidential and proprietary information relating thereto. You have no rights in the Maintained Software except as explicitly stated in this Agreement or the applicable OpenMake Software License Agreement.
You may not assign this Agreement to a third party without the prior written consent of OpenMake. OpenMake shall not be liable for failure or delay in performing its obligations due to circumstances outside its reasonable control ("Force Majeure"). Unless otherwise agreed in writing by the parties, this Agreement and the applicable OpenMake Software License are the only agreements between OpenMake and you with respect to the Maintained Software. These Agreements supersede all prior agreements, oral or written, relating to the Maintained Software. This Agreement shall be construed and governed in accordance with the laws of the State of Illinois. Any action, suit, or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be commenced and prosecuted only in a state or federal court in Chicago, Illinois, and you hereby consent to the jurisdiction of such a court. If any action is brought by either party to this Agreement against the other party regarding the subject matter hereof, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney fees and expenses of litigation. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. OpenMake may assign this Agreement without notice to you. The headings of the sections of this Agreement are included for ease of references only, are not part of this Agreement and are not to be used in the construction and interpretation of the terms hereof.
Catalyst Systems Corp. ____________________________________
By: _______________________________ By: _________________________________
Name: _____________________________ Name: _______________________________
Title: ______________________________ Title:_________________________________
Date: ______________________________ Date:________________________________