This Support Subscription Agreement (this “Agreement”) is a legal contract between (“you” or “your”), to receive Support Services from Tayana Holdings LLC. (“THL” or the “Company” or the “Supplier”).
This Agreement is applicable for those who have subscribed for any Support Services for the Software (Software Product and/or Plug-Ins and/or Extensions and/or Connectors) licensed by the Supplier. This is also applicable for the Software that is purchased/licensed from Supplier (directly or via Authorized Reseller) which has support or warranty as part of the purchase price.
READ THE TERMS OF THIS AGREEMENT CAREFULLY.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND SUPPLIER CONCERNING SUPPORT SERVICES, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH SUPPLIER CONCERNING OR RELATING TO THE SUPPORT SERVICES.
1. Support Services. During the Initial Term and any Renewal Term of this Agreement, as defined in Section 3, Supplier will provide to you the services set forth in this Section 1 (the “Support Services”):
a. General Description of Support Services:
Supplier will provide you the Support Servicesthat you subscribed to in a professional and workmanlike manner in accordance with industry standards. Support Services, in connection with Cases (as hereinafter defined) shall include direct response to you with respect to specific questions and issues (“Issues”) related to the software licensed by Supplier (“Software”). Support Services do not include or replace Professional or Implementation Services. The parties agree that Supplier shall have no obligation to provide any Professional or Implementation Services under this Agreement. Support Services are intended only for clients that are past the implementation phase, are operational and using the system in a live environment.
Each instance in which you contact Supplier for Support Services shall be considered a “Case” and shall be assigned a unique Case number. You must have an active Support Subscription as provided in this Agreement to be eligible to register a Case with Supplier and receive Support Services.
c. Issue Response
Supplier shall use its reasonable commercial efforts to respond to Cases reported by you. Notwithstanding anything herein to the contrary, Supplier makes no guarantee that: (i) all Issues will be resolved, (ii) that any version of the Software will be error free, or (iii) it will correct or attempt to correct all Issues. The decision whether to correct any particular Issue shall be made in Supplier’s sole discretion. The Software is designed to work with certain third party software and in cases where Supplier has isolated an Issue as being caused by a certain third party product, Supplier may require that you work with the support personnel of such third party software vendor. In the resolution of certain Cases, you may be required to: (i) provide Supplier a listing of output and other data, including databases and backup systems, that Supplier may need in order to reproduce operating conditions similar to those present when the Issue occurred: (ii) assist by eliminating any hardware, operating system software, and application software deficiencies or conflicts; (iii) provide any requested diagnostic information to allow Supplier to further diagnose the Issue; and (iv) implement recommended corrective or workaround procedure(s).
d. Methods of Assistance
Support customers will have access to Support Services by and through the Supplier’s Support Portal website, during regular business hours from 8:00 AM to 5:00 PM Eastern Standard Time.Support customers will have access to Support Services by and through the Supplier’s Support Portal only during Supplier’s business hours (regular business hours are from 8:00 AM to 5:00 PM (Eastern Standard Time), Monday through Friday, barring public and regional holidays). The terms for afterhours support can be found via Supplier’s contact personnel.
e. Supported Versions
Supplier does not provide support to versions that they no longer support. The list of supported versions can be obtained from Supplier’s contact person from time to time. Retired versions are not supported under this Agreement.
f. Service Limitations
Supplier promotes mutually respectful dialog between our employees and our clients. Repeated verbal abuse of Supplier employees and contractors may be deemed as cause to immediately terminate this Agreement and deny you any future Support Services. In any such event, no refunds shall be provided for the licenses and unused support hours.
g. Online Resources; Disclaimer
Your access to Support Services under this Agreement may also include access toSupplier’s support knowledgebase, online documentation, and the product suggestion system. Availability of any such online resources is NOT guaranteed by Supplier. SUPPLIER EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING INFORMATION IN THE SUPPLIER KNOWLEDGEBASE AND SUPPORT FORUMS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
h. Client Support Contacts
You will designate authorized support contact(s) for Support Services (the “Support Contact”) who is trained and knowledgeable in the use of the Software and to whom all Support Services shall be delivered.
i. Remote Support
In certain cases, where you have subscribed to Support and Supplieris unable to diagnose or resolve a Case reported by you, Suppliermay request access to your server or computer(s) experiencing issues in order to continue providing Support Services. In order to provide such support services, you will need to have Remote Desktop (“RDP”) capabilities on the systems that need to be accessed. In such cases, you authorize Supplierto remotely access your systems and data solely for the purpose of providing Support Services with respect to the Case and you agree to backup all of your data prior to providing Supplieraccess to your applicable computer(s). Supplier is not responsible for any loss of data during the process of identifying and providing solutions to you.
2. Disclaimers; Limitation of Liability.
EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 1a. AND 1d., SUPPLIER DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
b. Limitation of Liability.
- Limitation on Consequential Damages.IN NO EVENT SHALL SUPPLIER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION), REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, OR WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
- Limitation on Cumulative Liability. SUPPLIER’S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID TO SUPPLIER BY YOU UNDER THIS AGREEMENT FOR THE PAST 12 MONTHS. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS.
3. Term; Termination.
The initial term of this Agreement commences as provided in the Invoiceyou signed when you subscribed to the Support Services from your Authorized Reseller or Supplier. The length of the initial term of this Agreement for the Support Services (the“Initial Term”) is set forth in your Invoice. Unless you renew this Agreement for an additional term (each a “Renewal Term”), this Agreement will expire at the end of the Initial Term or any Renewal Term. It is your responsibility to contact your Authorized Reseller or Supplier regarding any potential expiration that you deem inappropriate. Supplier is not liable for any damages or costs incurred in connection with expiration of the Support Services.
In addition to expiration of this Agreement as described in Section 3.a, this Agreement may be terminated by either party if the other party commits a material breach or default of any obligation described in this Agreement, including your failure to pay invoices issued pursuant to this Agreement, which is not cured within 30 days following written notice of the breach or default.
4. Fees and Billings.
a. Charges for Services:
The fee for the Initial Term and any Renewal Terms shall be governed by Supplier’s standard price list and amount invoiced to you by your Authorized Reseller or Supplier.
b. Out-of-Pocket Expenses:
You will also pay your Authorized Reseller or Supplier all reasonable out-of-pocket expenses (including without limitation, travel expenses), if any, incurred by Supplierin the course of providing Support Services to you. Supplier will obtain prior approval from you for expenditures greater than $250.
Your Authorized Reseller, or Supplier, will invoice you for fees as set forth in Section 3a upon the commencement of the Initial Term and each Renewal Term. All invoices are due upon receipt. You shall be responsible for all taxes (including sales taxes) imposed as a result of the Support Services, excluding only taxes based on the net income of Your Authorized Reseller, or Supplier. Any amount not paid within thirty (30) days of the date of each invoice shall be subject to an interest charge equal to the lesser of 1.5% monthly or the maximum interest charge permissible under applicable law, payable on demand. Any charges not disputed by you in good faith within ten (10) days of the receipt of an invoice will be deemed approved and accepted by you.
5. Additional Terms.
a. Governing Law:
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Georgia, without regard to the conflicts of law rules thereof.
If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of that term or provision in any other situation.
Sections 2 and 4 of this Agreement shall survive the termination of this Agreement, regardless of the cause for termination, and shall remain valid and binding indefinitely.
d. No Waiver:
The failure of either party to enforce any rights granted under this Agreement or to take action against the other party in the event of any breach of this Agreement shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
The content of this document has been updated as on January 15, 2021