Product And Services Agreement
Software Support Terms
These Software Support Terms govern the Software Support Services ibml will provide to Buyer during the Software Maintenance and Support Term and constitute a binding contract between Buyer and ibml. ibml’s performance and Buyer’s receipt of any Software Support Services is at all times subject to the terms and conditions outlined in these Software Support Terms, which incorporate by reference all other terms and conditions governing Buyer’s use of the Products, as described in the Contract Terms.
1. Maintenance. During the Software Maintenance and Support Term, ibml will provide the Software Support Services specified in the Profile and described in these Software Support Terms.
2. Term. The initial maintenance and support term for the Software Support Services will begin on expiration of the Warranty Period and will continue for twelve (12) months or such greater term as may be specified in the Profile applicable to that item of Software (the “Software Maintenance and Support Term”). Thereafter, the Software Maintenance and Support Term shall automatically renew for successive twelve (12)-month terms unless either Party terminates the Software Support Services prior to the expiration of the then-current term by providing the other Party written notice of termination not less than ninety (90) days prior to the expiration date of the then-current term.
3. Software Subscriptions; Software Support Services.
(a) Supported Software Services. The following describes the Software Support Services that are provided by ibml during the Software Maintenance and Support Term. Supported Software is eligible for subscription services and remedial support services as described hereinbelow. Limited Support Software is only eligible for limited support as described hereinbelow.
(i) Subscription Services: ibml will give Buyer written notice as to new maintenance revision levels of Supported Software available to Buyer under the Agreement. Such notice may be given via a posted message on ibml’s support website (www.imagetracsupport.com) as opposed to a personalized letter. New revision levels which are made generally available at no charge to ibml’s other licensees ordering Software Support Services will be made available to Buyer at no charge. Buyer shall be responsible for the installation of new revisions. For the avoidance of doubt, Software Support Services excludes any Voluntary OS Upgrade, and such Voluntary OS Upgrades do not constitute new revision levels of Supported Software for purposes of these Software Support Services. In the event Buyer requests ibml to install new revisions, such installation services shall be chargeable to Buyer at ibml’s then current rates for hourly service, plus any travel and living expenses associated with such installation services. ibml’s notice will specify the revision level of Limited Support Software that must be used in conjunction with the new revision level of the Supported Software. Buyer shall be responsible for obtaining the revision level of Limited Support Software specified. ibml will continue to support the prior revision level of Supported Software for the period stated in the notice to Buyer. Buyer’s failure to utilize the latest supported revision level(s) or to utilize a temporary solution provided by ibml at its option, shall relieve ibml of its obligation to provide support to resolve problems which would have been corrected by use of the designated revision level or temporary solution.
(ii) Remedial Support Services: If Supported Software fails to operate substantially as described in the then current Documentation for such Software, Buyer shall report the problem to ibml. Remedial services will consist of ibml’s verification of the problem’s existence, and a determination of the conditions under which the problem may reoccur. After such verification and determination, ibml will provide, at its option, one of the following: (A) a temporary solution for the problem, or (B) a correction of the problem in the next revision level of the Supported Software.
(iii) Limited Support Software: Limited Support Software is either software obtained from third parties and remarketed by ibml, or software for which only limited software support services are available. ibml will provide telephone support to answer operational questions as to the manner in which the Limited Support Software interfaces with the Supported Software. In the event Buyer believes that Limited Support Software is not operating substantially as described in the then current documentation for the Limited Support Software, Buyer shall report the problem to ibml. ibml’s Software Support Services in such instances will be limited to verifying the problem’s existence and either reporting the problem to the supplier of the Limited Support Software or referring Buyer directly to the supplier of the Limited Support Software for further technical assistance in resolving the problem.
(b) Custom Software Support Services. Custom Software is provided for use with specific release levels of ibml-developed and/or Third-Party Software (if applicable). Upon expiration of any warranty period specified by ibml for the Custom Software, ibml shall make available Software Support Services for Buyer to order on a time and materials basis. Except as otherwise agreed in writing between Buyer and ibml, any requested changes to Custom Software after the initial delivery and acceptance of the Custom Software are subject to additional charges.
(c) Support Availability. The Software Principal Period of Support (“SPPS”) is defined as telephone or e-mail support during the hours of 8:00 a.m. to 5:00 p.m. (Central European time) Monday through Friday, excluding holidays observed by ibml. System software technical support services will be provided to Buyer by ibml Software Technical Support staff via telephone or e-mail. The phone number for ibml Software Technical Support is +49-700-IMAGETRAC (+49-700-4624-38722). The e-mail address is euspport@ibml.com. If Buyer requests a SPPS any part of which is outside the hours of 8:00 a.m. to 5:00 p.m. (Central European time), the Software maintenance and support charge will increase in accordance with ibml’s then current pricing policy for after hours, weekend and holiday support. Buyer may change its designated SPPS at the beginning of any calendar month by giving ibml at least thirty (30) days prior written notice and obtaining agreement by ibml for such change. Support other than telephone or e-mail support, support requested by Buyer outside Buyer’s designated SPPS, or on-site support will be billed to Buyer in accordance with ibml’s then current time and material rates and policies for after hours, weekend and holiday support. In the case of on-site support, Buyer shall be responsible for reimbursing ibml for all reasonable travel and living expenses incurred by ibml’s support personnel in conjunction with the delivery of such support.
(d) ibml will not be responsible for maintaining or supporting any portion of the Software that has been modified by Buyer or for performing any Voluntary OS Upgrades.
(e) Corrections made by ibml for difficulties or defects traceable to Buyer error or system changes will be billed at ibml’s then current standard time and materials rates.
(f) Buyer agrees, if requested by ibml, to provide ibml with reasonable support and test time on Buyer’s computer system to replicate the problem, certify that the problem is related to the Supported Software, and determine that the problem has been corrected. If Buyer does not provide such support and test time on Buyer’s computer system, ibml will only be responsible for using its best efforts to resolve the problem.
4. Extended Coverage.
(a) The maintenance charges and applicable surcharges (if any) specified in the Profile cover Software Support Services during the SPPS for Software located in the ibml service zone applicable to the installation site of the Software. Service zones are based upon the number of miles from the geographic center of a city where ibml (or its authorized agent) has a service location.
(b) Subject to availability, Buyer may contract for extended hours of Software Support Services outside the SPPS (“SPPS Shift Extension”) on Monday through Friday, and shall pay a surcharge as specified in the Profile. In addition, where available, Buyer may contract for SPPS Shift Extensions to obtain Software Support Services on Saturday and/or Sunday, and shall pay a surcharge as specified in the Profile.
(c) The following conditions apply to all SPPS Shift Extensions requested by Buyer:
(i) SPPS Shift Extensions must be contiguous to the SPPS. SPPS Shift Extension hours selected on Monday through Friday shall be the same each day, and hours selected for Saturdays and/or Sundays shall be the same hours for all Saturdays and/or Sundays.
(ii) At least ninety (90) days prior written notice is required from Buyer to commence SPPS Shift Extensions.
(iii) Unless otherwise agreed to in writing by Buyer and ibml, SPPS Shift Extensions must be for a minimum period of six (6) months. If Buyer terminates a SPPS Shift Extension before the six (6)-month period expires, Buyer shall be responsible for payment of SPPS Shift Extension charges for the balance of the six (6)-month minimum SPPS Shift Extension period.
(iv) All requests for SPPS Shift Extensions are subject to acceptance and approval by ibml.
(d) The Software Support Services furnished by ibml outside the SPPS or outside contracted SPPS Shift Extensions shall be subject to ibml’s then current hourly rates for each service call. The hourly charge(s) shall apply to the time spent on-site and the travel time to and from the Software location or time spent on remote diagnostics or telephone support for Software, with a minimum charge for services of two (2) hours on weekdays and three (3) hours on weekends or ibml observed holidays.
5. Special Services. In the event Buyer orders special maintenance and/or software support services for certain Software by designating such services in the Profile, the corresponding Additional Terms, as referenced in the Profile, are incorporated herein by reference.
6. Conditions.
(a) Buyer shall ensure that, during the Software Maintenance and Support Term, the environmental conditions under which the Software is installed and used shall continue to conform to those set forth in the installation instructions and specifications provided by ibml when the Software was installed. Buyer shall be responsible for ensuring the proper use, management and supervision of the Software by properly trained personnel. Buyer shall not perform maintenance on the Software without ibml’s written authorization.
(b) For ibml to provide the Software Support Services, such Software Support Services must be ordered for (i) all Equipment comprising an integrated system, and (ii) all Software installed on such integrated system, including Equipment and/or Software subsequently purchased or licensed for use with the same integrated system.
(c) Buyer shall provide adequate working space, heat, light, ventilation, storage space for spare parts and tools, and electrical current and outlets conforming to the requirements set forth in the specifications for use provided by ibml. All spare parts and tools stored by ibml at Buyer’s site and all parts and components replaced by ibml under these Software Support Terms shall remain the property of ibml. Facilities used for storage of such parts, components, tools, etc. shall be within a reasonable distance of the Equipment to be maintained, properly secured, and provided to ibml at no charge.
(d) Maintenance charges shall not cover the following services: (i) changes or alterations in specifications; (ii) furnishing accessories, consumable items or supplies; (iii) reinstallation of the Software; (iv) installation, de-installation, or maintenance of accessories, attachments, machines, or other devices not furnished by ibml including, without limitation, any Voluntary OS Upgrades; and (v) repairs made necessary by accident, misuse, fault or negligence of Buyer, its employees, agents, contractors or invitees. If such services are ordered and provided by ibml, Buyer shall pay for such services in accordance with ibml’s then current rates and terms and conditions for time and materials service.
(e) If the Parties mutually agree that ibml will provide remote diagnostic service for the Software maintained under these Software License Terms, Buyer shall provide access to the Software via remote access technology which is approved by Buyer. ibml’s access to Buyer’s information technology or IT systems shall comply with all Buyer IT system access and security policies and procedures communicated by Buyer to ibml. Buyer shall have the right to restrict ibml’s remote access to the Software at any time. Buyer’s decision to not permit ibml to gain remote access to Buyer’s IT systems for performing remote diagnostic service for the Software shall not affect or diminish ibml’s maintenance and support responsibilities under these Software License Terms.
7. Invoice and Payment.
(a) Maintenance and support charges, plus applicable surcharges (if any) as specified in the Profile, for any additional Software Support Services requested by Buyer shall be due and payable in advance. Unless otherwise designated in the Profile, maintenance charges shall begin the first day following expiration of the Warranty Period. Charges for a partial period’s Software Support Services shall be prorated at 1/22nd of the calculated monthly service or support rate per day.
(b) Maintenance and support charges shall not be increased for a period of twelve (12) months after the commencement of the initial Software Maintenance and Support Term. ibml reserves the right at the end of the first twelve (12) months or any time thereafter, and upon ninety (90) days prior written notice, to increase maintenance and support charges in accordance with its standard pricing policies.
(c) Notwithstanding the foregoing, ibml reserves the right to additionally charge Buyer for services which may be required due to: (i) Buyer’s non-compliance with any or all laws relating in any way to the use or operation of the Software, or (ii) Buyer’s alterations, modifications, or attachments to the Software. In addition, should any alteration, modification or attachments to the Software interfere with the normal and satisfactory operation or maintenance of any component of the Software or create a safety hazard, Buyer shall, upon written notice from ibml to that effect, and within five (5) business days from its receipt of such notice, remove the alteration, modification, or attachment and restore the Software to its original configuration. In no event shall Buyer use the Software for any other purpose than that for which it was designed. Notwithstanding anything to the contrary contained herein, failure of Buyer to agree to the charges imposed by ibml pursuant to items (i) and (ii) above, or failure to comply with ibml’s instructions relative to safety standards for the use of the Software may, at ibml’s sole discretion, result in the cancellation by ibml of the Software Support Services provided under these Software Support Terms.
(d) Supplies and accessories furnished to Buyer will be billed to and paid for by Buyer in accordance with ibml’s then current price schedule. Payment for any such items shall be due net thirty (30) days from the date of the applicable invoice.
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