THINLINC SUPPORT AGREEMENT 1.1
General Terms and Conditions
1. Scope and Definitions
This agreement (the "Agreement") describes the areas of responsibilities,
terms and fees associated with support for the Product. The following
definitions will apply in this Agreement:
By the "Product" is meant Cendio's product ThinLinc in such versions
which follows from section 4 below.
By "Incident" is meant a single support issue and the reasonable efforts
needed to resolve it. A single support issue is a problem that cannot be
broken down into subordinated problems. If a problem consists of
subordinated problems, each subordinated problem shall be considered as a
separate incident.
2. Cendio's Responsibilities
2.1 Support services
Cendio will provide support services for resolving technical problems in
the Product. All services will be provided remotely, by telephone,
Internet and telefax. The parties can however, according to Section 2.5,
below, mutually agree that Cendio shall provide support on-site at
Customer's location. In certain instances it might be necessary that
Customer sends hardware and peripherals to Cendio for diagnosis and test.
All shipments and return charges shall be paid by Customer.
Before Cendio provides support for an Incident, Customer and Cendio's
support engineer(s) must agree on what the problem is and the parameters
for an acceptable solution. An Incident may require multiple telephone
calls and off-line research to achieve a final resolution. The Incident's
severity will determine the response time from Cendio and the estimated
response times are shown in the table on Exhibit A.
2.2 Remote Access
Cendio requires access to Customer's system to analyze problems. Remote
access is a requirement for resolving issues remotely and Customer will
be informed prior to Cendio's conduct of such service. Cendio may provide
Customer with software to assist with diagnosis and/or resolution of the
problem. Any information reviewed by Cendio shall be deemed as
confidential in accordance with Section 7 below. In the event Cendio
requires remote access and Customer does not provide Cendio with remote
access, Cendio shall not be held liable to resolve such support issue,
but will use best efforts to resolve the issue remotely.
2.3 "Hotfixes"
In situations where Cendio cannot provide a satisfactory resolution to
Customer's critical problem through normal support methods, Cendio may
engage its product development team to create a so called hotfix to the
Product. Cendio retains all right, title and interest in and to such
hotfixes. Hotfixes are designed to address a specific Customer situation
and may not be distributed by Customer outside Customer organization,
without written consent from Cendio. Limited regression testing is
performed on hotfixes. Hotfixes can be released as updates to other
customers.
2.4 Other Customer Suppliers
Cendio will work with Customer's other suppliers to resolve problems in
Customer's IT-environment. When problems reported on the Product involve
interactions with another suppliers' products, and Customer has a support
agreement with that supplier, Cendio will share diagnostic information
and collaborate to provide a solution.
2.5 Onsite Support
In critical situations, Customer may request onsite support as a separate
billable service. Onsite support is subject to Cendio's resource
availability, and the tasks performed will vary based on the situation,
Customer's IT- environment, and the business impact of the problem. When
support is provided onsite Customer will be invoiced for traveling and
accommodation costs and for traveling time.
3. Customer Responsibilities
This section describes Customer's roles and responsibilities. Cendio's
performance is subject to Customer's fulfillment of the following
responsibilities.
a) Customer shall designate a contact person who will be responsible
for support issues. This contact person shall be Cendio's contact
regarding this Agreement and support services on the Product
(e.g. alterations in this Agreement, alterations in the support,
additional orders and price issues.)
b) Customer shall designate Named Contacts who will have the right
to contact Cendio for technical support inquiries. Each Named
Contact will be supplied with an individual service ID number for
contacting Cendio's technical support.
c) Cendio recommends that Customer have the Named Contacts certified
on the Product.
d) Customer may be asked by Cendio to perform certain problem
determination activities. These activities may include performing
network traces, capture error messages and collecting
configuration information. Customer may also be requested to
perform problem resolution activities including changing product
configurations, installing new versions of software or new
components, or modifying processes. Customer agrees to fulfill
such requests.
e) Customer is responsible for implementing such procedures
necessary to safeguard the software and data from unauthorized
access and to reconstruct lost or altered files resulting from
system failures.
f) Customer is responsible for procuring, installing and maintaining
all equipment, telephone lines, communications interfaces, and
other hardware in Customer's IT- environment and for providing
Cendio with access to such Customer facilities required to
operate the Product and permitting Cendio to perform support
according to this Agreement.
g) Customer agrees to pay the support fees against invoice annually
in advance. The fee for the first year shall be paid within
thirty (30) days after the day of the signing of this Agreement.
4. Exclusions
Cendio is not required to provide any support services relating to
problems arising out of (i) Customer's failure to implement all currently
available Upgrades to the Product; (ii) changes to the operating system
or IT- environment which adversely affect the Product; (iii) any
alterations of or additions to the Product performed by parties other
than Cendio; (iv) use of the Product on other CPU and peripherals than
for which the Product is designed and licensed; or (v) use of the Product
on other operating systems than the Product is licensed for; or (vi)
versions of the software released over three years ago. By "Upgrades" is
meant any new versions, updates, or hotfixes. Technical Support does not
include development work on software not licensed from Cendio or
development work for enhancements or functions that are outside the
documented functionality of the Product. Customer may request consulting
and/or development work from Cendio against a fee.
5. Term of Agreement etc.
This Agreement is valid for (1) year from the signing of this Agreement
and shall automatically renew for additional one (1) year terms unless
either party gives notice of termination at least ninety (90) days prior
to the end of the term of this Agreement. Notice of termination shall be
in writing. Cendio reserves the right to increase its prices at any
renewal of this Agreement. Such price increase shall not exceed the
alteration in the IT Consultant Index set by Statistics Sweden
(Statistiska Centralbyrån). Unused Incidents during any one (1) year term
may not be used the following term.
6. Warranty etc.
Cendio will use all reasonable commercial efforts to provide the support
requested by Customer under this Agreement in a professional and
workmanlike manner, but Cendio cannot guarantee that every issue or
problem raised by Customer will be resolved or guarantee a certain
resolution time. Cendio makes no warranties beyond what is explicitly
stated in this Agreement.
Either Party's liability to pay damages is limited to direct losses
amounting to a total of twelve (12) months' support fees. Provided there
has been no intent or gross negligence, neither party shall have any
liability for lost profits or other indirect damages or losses, including
the other party's liability to compensate any third party or loss of
information.
7. Confidentiality
Cendio may through this Agreement have access to certain information
which Customer deems confidential. Cendio shall for a period of two (2)
years from the date of receipt of confidential information maintain such
information confidential in the same manner and to the same extent as
Cendio protects its own confidential information of like kind or similar
nature. Cendio shall only disclose confidential information to those of
Cendio's employees who have a direct need to know this information.
Cendio shall maintain confidentiality through confidentiality agreements
with the employees and other appropriate measures. Upon request by
Cendio, Customer shall advise whether it considers any particular
information to be confidential.
The provisions of this Section 7 shall not apply to information: (i)
which is or becomes available to the public other than by breach of this
Agreement or of any other duty; (ii) which is already in Cendio's
possession prior to disclosure by Customer; (iii) which Cendio has
received by a third party without restrictions as to confidentiality; or
(iv) is developed by Cendio independently from Customer's information.
8. General Provisions
Modifications of this Agreement, or waiver of any rights, shall be
effective only in writing.
The waiver of a breach of agreement shall not constitute a waiver of any
other right in this Agreement or of the right to call attention to any
subsequent breach of agreement.
All notices concerning this Agreement shall be in writing, and shall be
delivered personally, by e-mail or by registered letter. Notice will be
deemed served a) at the time of delivery, if delivered personally, b) the
next working day, if delivered by e-mail during normal office hours, or
c), three (3) working days after mailing, if sent by mail.
Neither party shall be liable for any damage or loss resulting from
causes beyond such party's reasonable control.
This Agreement constitutes the entire agreement between the parties
hereto with respect to support services for the Product. The terms of
this Agreement supersede any possible contrary or additional terms in any
Customer-issued purchase order or other documentation.
Customer shall not assign its rights or obligations under this Agreement
without the prior written consent from Cendio, which is not to be
unreasonably withheld.
This Agreement shall be governed by and construed in accordance with
Swedish law.
Any dispute, controversy or claim arising out of or in connection with
this Agreement, or the breach, termination or invalidity thereof shall be
finally settled by arbitration in accordance with the Rules of the
Arbitration Institute of the Stockholm Chamber of Commerce. The arbitral
tribunal shall be composed of a sole arbitrator. The place of arbitration
shall be Linköping. The language to be used in the arbitral proceedings
shall be English.
If the dispute, inclusive of any counterclaims, claims for set-off and
interest should comprise of an amount less than US $ 200.000, exclusive
of VAT, the Rules for Expedited Arbitrations of the Arbitration Institute
of the Stockholm Chamber of Commerce shall be applied.
EXHIBIT A
Incidents Severity and Response Times
Severity 1
Definition:
System is down or effectively unusable as a result of the problem
and has no acceptable workaround. Problem causes mission-critical
impact on Customer's operation or on functionality used to
perform tasks considered to be essential to Customer's
operations, project completion or normal productivity of
end-user.
Estimated Initial Response Time:
Within 1 hour during normal office hours,
08:00 - 17:00 week days, CET.
Customer Should Be Prepared To:
a) Commit appropriate resources to be available to provide
additional information within 2 hours of Cendio's request.
b) Make reasonable efforts to apply suggested solutions within a
half day of receipt.
c) Enable Cendio to use remote access if necessary.
Severity 2
Definition:
System is up and running, but the problem causes significant
impact and has no acceptable workaround. High impact problem
where operation is proceeding, but in a significantly impaired
fashion or significantly impair functionality used to perform
tasks considered to be important but not primary to immediate
business operations.
Estimated Initial Response Time:
Within 2 Hours during normal office hours,
08:00 - 17:00 week days, CET.
Customer Should Be Prepared To:
a) Commit appropriate resources to be available to provide
additional information within 4 hours of Cendio's request.
b) Make reasonable efforts to apply suggested solutions within a
half day of receipt.
c) Enable Cendio to use remote access if necessary.
Severity 3
Definition:
System is up and running and the problem causes only limited or
insignificant impact. Important to long-term productivity, but is
not causing an immediate work stoppage.
Estimated Initial Response Time:
Within 4 hours during normal office hours,
08:00 - 17:00 week days, CET.
Customer Should Be Prepared To:
a) Monitor and respond as necessary.
b) Enable Cendio to use remote access if necessary.
Severity 4
Definition:
Problem does not have significant impact to Customer or effects
functionality that is not important and infrequently used.
Estimated Initial Response Time:
Within 4 hours during normal office hours,
08:00 - 17:00 week days, CET.
Customer Should Be Prepared To:
a) Monitor as necessary.
