Software Maintenance Agreement
- The terms set forth herein apply to any Software Maintenance purchased by the Customer from the Tilia entity listed in the relevant Order Document (“Tilia”). For purposes of this Agreement, “Order Document” means a quotation, order confirmation and any other document(s) in writing or electronic format, provided to Customer by Tilia which sets forth the software licensed to Customer. These terms may be supplemented by additional terms issued by a Distributor or third-party in the event Customer did not purchase Covered Products directly from Tilia. To the extent such terms are not in conflict with specific terms agreed upon as part of the Order Document. In case of conflict between the terms set forth herein and the terms set forth in the Order Document, the latter shall control.
- Software Maintenance Services. In exchange for the fees paid or payable by the Customer for Maintenance Services, as set forth in an Order Document, and subject to the terms herein, Tilia will provide Customer with Software Maintenance for Covered Products during the term specified in the applicable Quotation. For purposes of this Software Maintenance Policy, “Covered Product(s)” are the specific software products that Customer has licensed, and for which Software Maintenance services have been purchased. Customer’s Covered Product(s) and the duration of Software Maintenance coverage for those Covered Products is listed on the Order Document as may have been provided by Tilia, the reseller, equipment dealer, system integrator or other Tilia authorized distributor from which you ordered the Covered Products and Software Maintenance (the “Distributor”).
- Exclusions. Excluded from the performance of Software Maintenance are any services relating to (i) improper handling; use of a Covered Product not in accordance with the product documentation; or causes other than normal wear and tear; (ii) modifications made to, services performed, or attempts to repair a Product by anyone other than Tilia, Distributor, or authorized representative thereof; (iii) Customer’s failure to maintain a suitable operating environment or minimum system requirements specified as part of the product documentation or separately provided by Tilia; (iv) hardware products that require refurbishment; (v) hardware products subjected to unusual physical or electrical stress;
- Customer is eligible to receive Software Maintenance for Covered Products only during the time period purchased pursuant to an Order Document (“Term”).
- 4.1. Term Commencement. The Software Maintenance Term will commence on the date of the license key origination for the Covered Product. To the extent a Covered Product consists of a bundle of more than one Software License component, then activation of any one component of the bundle will simultaneously commence the Software Maintenance Term on all components of the bundle.
- 4.2. Renewal Term. Following the end of the Term specified in an Order Document, Customer may elect to purchase, if available, one or more additional Software Maintenance terms (each a “Renewal Term”), subject to an additional Order Document specifying the fees and duration of each such Renewal Term. In the event the parties do not enter into an Order Document for a Renewal Term, Software Maintenance will automatically terminate following the Term.
- Software Updates and Upgrades.
- 5.1. Updates. “Updates” means bug fixes and/or fixes of minor errors in the Covered Products that are incorporated in a new release of the Covered Products. The change from version X.Y.1 to version X.Y.2 or the change of version X.Y.Z.10 to X.Y.Z.20 shall be considered an Update. Tilia will make available all Updates for your Covered Products to you, either by making them available at a Tilia website or as otherwise specified by Tilia or Distributor.
- 5.2. Upgrades. “Upgrades” means enhancements and/or new functionalities in the Covered Product that are incorporated in a new release of the Covered Product. The change from version X.1 to version X.2 or the change of version 1.X to 2.X shall be considered an Upgrade. Tilia will make available all Upgrades for your Covered Products to you, either by making them available at a Tilia website or as otherwise specified by Tilia or Distributor.
- 5.3. Copies. So long as Customer is not in breach of the Order Document, EULA or this Software Maintenance Policy during the Term or any subsequent Renewal Term, Customer may download and install one copy of each Update and/or Upgrade for each Covered Product. Updates and Upgrades are governed by the EULA that governs the corresponding Covered Product.
- 5.4. Installation Assistance. Installation of Updates and/or Upgrades is not included as part of Software Maintenance. Installation assistance may be subject to additional fees pursuant to a Statement of Work. In the event a Distributor installs an Updates, the Distributor may charge installation fees for such service.
- Technical Support. Customer must contact its Distributor or other third-party from whom Software Maintenance was purchased in order to receive assistance in operating the Covered Products (“Level 1 Support”) during such hours and by such methods as established by the Distributor or third party. In the event Customer requires additional assistance after receipt of Level 1 Support, Distributor or third-party will escalate the support issue to Tilia for resolution efforts and manage all related communications. Tilia will provide technical support for Covered Products, other than Level 1 Support, via telephone and email, in its discretion, either directly with Customer or through the Distributor or third-party.
- Other Products. Tilia is under no obligation to provide Software Maintenance for products that are not Covered Products. Tilia may elect to provide Software Maintenance for products that are not Covered Products in its own discretion, subject to additional fees and a fully executed Statement of Work.
- High Priority Defects. Tilia will use reasonable efforts to issue Updates of the Covered Product to repair High Priority Defects encountered by Customer upon notification thereof, where a “High Priority Defect” is defined as a variance in action by the Covered Product from the documentation in which no workaround is available and production is halted.
- Customer Responsibilities.
- 9.1. Customer shall,
- provide for (i) remote access to the Products (TeamViewer or a similar software product as determined by Tilia), and (ii) in case an onsite intervention per the corresponding Software Maintenance is required, physical access to the Products in order to facilitate the performance of the Software Maintenance; and
- perform routine system and user file backups.
- 9.2. Modifications. In order to provide Software Maintenance pursuant to this Agreement, Tilia sponsored modifications may, at Tilia’s discretion, be made to the Covered Products. Customer shall provide access to the Covered Products (remote or otherwise as directed by Tilia), during normal service hours upon notification from Tilia that a modification is to be made. Tilia shall bear no for its failure to perform any of its obligations under this Agreement in case such access is refused.
- Software Maintenance Charges. In consideration of the rights set forth herein, Customer agrees to pay Tilia the Software Maintenance Fees set forth by the applicable Order Document, and any further charges set forth herein.
- End-of-life. Tilia reserves the right to declare any particular Product “end-of-life” at its sole discretion. In such case, following a corresponding notification to Customer, and unless agreed upon differently in writing, the Covered Product affected shall be considered removed from the scope of Covered Products covered under the affected Order Document from the corresponding date set forth in such notification. Software Maintenance Fees shall be adjusted accordingly.
- Termination. Each party may terminate this Agreement (i) in case of the other party failing to perform any material obligation set forth by this Agreement, with such material breach remaining uncured following a ten (10) days written notice identifying said failure; In case such failure is not capable of being remedied, termination may occur forthwith; or (ii) if a receiver is appointed over the other party or its property; if the other party becomes insolvent or materially unable to pay its debts as they mature in the ordinary course of business or makes an assignment for the benefit of its creditors; or if any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy, insolvency or debtor’s relief laws and such proceedings are not vacated or set aside within sixty (60) days from the date of the commencement thereof; Without prejudice to any other or further remedy available, Tilia reserves the right to suspend the performance of any obligation under this Agreement in case of Customer failing to pay the Software Maintenance Fees per the terms set forth in an Order Document. In the event this Agreement is terminated due to Tilia’s material breach, Customer shall be entitled to a prorate refund of any prepaid fees.
- 13.1. Confidential Information. During the Term of this Agreement, either party may receive from the other party or have access to certain information of a technical or business nature, labelled as confidential or proprietary to the other party, or which under the circumstances of disclosure is reasonably to be considered as being confidential or proprietary to the other party (“Confidential Information”).
- 13.2. Obligations. The receiving party agrees (i) to only use the other party’s Confidential Information for the purpose of performing its obligations under this, (ii) to protect the confidentiality of such Information using the same degree of care it uses to protect its own information of a confidential nature (and at least reasonable care) and to disclose such Confidential Information only to its employees, directors, consultants, contractors, affiliates or agents (“Authorized Representatives”) who have a need to know such information for the same purpose, provided that Authorized Representatives are bound by obligations of confidentiality substantially similar to those set forth
- 13.3. Exceptions. The obligations stated in this Section 13 shall however not apply in relation to any information which (a) was already known to the receiving party at the time of its disclosure by the disclosing party; (b) is or becomes publicly available through no fault of the receiving party; (c) is rightfully received from a third party without a duty of confidentiality; or (d) is independently developed by the receiving party without use of or reference to the other party’s Confidential Information;
14. Limitation of Liability.
TILIA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN THOSE EXPLICITLY SET FORTH IN THIS AGREEMENT.
IN NO EVENT WILL TILIA, REGARDLESS OF LEGAL THEORY, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, SUCH AS BUT NOT LIMITED TO ANY LOSS OF PROFIT, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, OR ANY OTHER ECONOMICAL ADVANTAGE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATERIALS OR SERVICES PROCURED UNDER THIS AGREEMENT.
IN NO EVENT WILL TILIA’s LIABILITY, REGARDLESS OF LEGAL THEORY, EXCEED, FOR ALL CLAIMS IN AGGREGATE, AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY CUSTOMER TO TILIA UNDER THIS AGREEMENT DURING THE PERIOD OF SIX (6) MONTHS IMMEDIATELY PRECEDING THE INITIAL CLAIM.
- 15.1. Assignment. Customer shall not assign this Agreement or any rights or obligations under this Agreement absent Tilia’s prior written consent.
- 15.2. Incorporation. This Agreement, including any terms incorporated herein by reference, shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior related proposals, negotiations and discussions between the parties. This Agreement shall not be modified except by a written instrument duly executed by authorized representatives of the parties. This Agreement may be executed by electronic signature in two or more counterparts, all of which seen together will constitute one and the same agreement.
- 15.3. Force Majeure Events. Neither party will be responsible for, nor be in default under this Agreement due to any delays or failure of performance (except payment obligations) resulting from acts or causes beyond its reasonable control, including without limitation acts of war, government restrictions or embargoes, third-party labor strikes, power failures, floods, fire, earthquakes, other natural disasters, or other similar events (“Force Majeure Event”). In the event that either party is unable to perform any of its obligations under this Agreement because of a Force Majeure Event, the party who has been so affected will promptly give notice to the other and will exercise all reasonable efforts to resume performance upon the passing of the Force Majeure Event.
- 15.4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the country, state or other geographic designation where Tilia is located, without reference to its conflicts of laws principles. The United Nations Convention on the International Sale of Goods will not apply. Each party hereby consents that any litigation between the parties relating to this Agreement, breach, termination, or invalidity thereof, shall be conducted in the courts of the country, state or other geographic designation where Tilia is located, and the parties irrevocably accept and submit to the exclusive jurisdiction of such courts. Notwithstanding the previous, Tilia shall be entitled to bring any actions against Customer in the courts of the jurisdiction or place where Customer is established, domiciled or operating, if the action concerns the collection of a debt, money owed or non-payment of invoices.