PRECISE SOFTWARE SOLUTIONS, INC. AND/OR ITS AFFILIATES ("PRECISE") SHALL PROVIDE MAINTENANCE SERVCIES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS "YOU" OR "YOUR") THAT WILL BE UTILIZING THE PRECISE SOFTWARE LICENSED TO YOU (THE “LICENSED SOFTWARE”) UNDER A SEPARATE LICENSE AGREEMENT (THE “LICENSE AGREEMENT”) ONLY ON THE CONDITION THAT YOU (I) ACCEPT ALL OF THE TERMS OF THE LICENSE AGREEMENT AND (II) PAY ALL APPLICABLE MAINTENANCE FEES AS PROVIDED IN THIS MAINTENANCE AND SUPPORT AGREEMENT ("SUPPORT AGREEMENT").
READ THE TERMS AND CONDITIONS OF THIS SUPPORT AGREEMENT CAREFULLY BEFORE USING THE LICENSED SOFTWARE OR AGREEING TO THE LICENSE AGREEMENT.
UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS WILL HAVE THE MEANING GIVEN IN THE "DEFINITIONS" SECTION OF THE LICENSE AGREEMENT AND SUCH CAPITALIZED TERMS MAY BE USED IN THE SINGULAR OR IN THE PLURAL AS THE CONTEXT REQUIRES.
Support Contact Information:
Precise Support Web Site: http://precise.force.com/ (Note: First time users can follow the “Register Now” link on the sign in page to request access. Follow the instructions for submitting a technical issue or question to Precise.)
The contact information above is current as of the date of this Support Agreement. Precise reserves the right to change Precise's contact information from time to time upon notice to the Licensee Contacts.
(a) "Documentation" means the user documentation Precise provides with the Licensed Software.
(b) "Error" means a reproducible defect in the Licensed Software when operated in a Supported Environment, which causes the Licensed Software not to operate substantially in accordance with the Documentation.
(c) "Supported Environment" means an environment that conforms to the requirements in the published Support Matrix.
(d) "Error Correction" means a modification or patch that brings the Software into substantial conformance with the Precise published Documentation, or a procedure, routine or other information that enables Licensee to avoid the practical adverse effect of an Error.means a modification or patch that brings the Licensed Software into substantial conformance with the Documentation, or a procedure, routine or other information that enables Licensee to avoid the practical adverse effect of an Error.
(e) "Precise Instance" means one Precise Focal Point servers and the associated Precise Agents.
(f) "Licensee Contacts" means the individuals designated in writing by Licensee and agreed to by Precise who are authorized to contact Precise Support Representatives.
(g) "Maintenance Services" means Precise's commercially available professional maintenance and support offerings, which includes "Basic Support", "Essential Support", “Gold Support”, and “Platinum Support” (each as described in Table 1 attached at the end of this Support Agreement).
(h) "Maintenance Release" means an update to an existing version of the Licensed Software containing Error Corrections or minor functionality enhancements. A Maintenance Release is designated as a numbered service pack for the current version.
(i) "Maintenance Term" means any period during which Licensee is entitled to receive Maintenance Services hereunder, including any renewals or extensions thereof.
(j) "New Version Release" means a new version of the Licensed Software containing new features or enhancements to functionality. A New Version Release is designated by an increase in the version number. e.g. from 2.5 to 2.6 or 3.0. A New Version Release only includes releases of the Software in a language included in Licensee's license configuration.
(k) "Precise Support Representatives" means the individuals designated by Precise who are authorized to provide support to Licensee's Contacts and who will coordinate all of Licensee's Error submissions and support requests.
(l) "Primary Precise Instance" means a Precise Instance in Licensee's production environment containing Licensee's live records.
(m) "Production Environment" means the computer systems, databases, and hardware used by You in support of Your actual internal business operations and into which You install and operate software for its intended uses by end users in the ordinary course of Your business.
(n) "Releases" means collectively, Maintenance Releases and New Version Releases.
(o) "Test Environment" means any operating environment other than a Production Environment and includes, without limitation, the computer systems, databases, and hardware used by You to simulate a Production Environment for the purposes of testing or evaluating the functionality, interoperability or stability of software without impacting the actual Production Environment or Your actual internal business operations.
(p) "Severity 1" means (1) a product inoperative condition that makes the continued use of one or more functions impossible (or severely restricted) on a business-critical system and prevents Licensee from continued production or severely risks critical business operations, or (2) a problem impacting the Licensees production systems that may cause loss of data from the production systems and/or restrict data availability from those systems and/or cause significant financial impact to the Licensee.
(q) "Severity 2" means a problem that severely affects or restricts major functionality and is of a time-sensitive nature and is important to long-term productivity but is not causing an immediate work stoppage, where no workaround is available but operation can continue in a restricted fashion.
(r) "Severity 3" means (1) a minor problem that does not have a major effect on business operations, or (2) a major problem for which an acceptable workaround exists for the Licensee.
(s) "Severity 4" means (1) a minor condition or documentation error that has no significant effect on the Licensee's operations, or (2) additional requests or suggestions for new features which are defined as new functionality in the existing licensed Software.
(t) "Supported Environment" means a hardware, operating system and application platform meeting the minimum system configuration requirements for the proper use and operation of the Software as set forth in the Precise published Documentation.
(u) "Upgrade" means any version of the Licensed Software that has been released to the public and which replaces the prior version of the Licensed Software on Precise's price list pursuant to Precise's then-current upgrade policies.
2. Maintenance and Support.
Precise offers and you may initially select Basic, Essential, Gold, or Platinum service options. All Licensed Software must be covered by the same service option.
(a) "Overview of Service Options"
i. Precise Basic
A. Precise Basic provides the services defined in section (b) during regional business hours only.
ii. Precise Essential
A. Precise Essential provides the services defined in section (b) and extends service hours to twenty four hours per day, seven days per week.
iii. Precise Gold
A. Precise Gold is an enhanced services package that extends the services provided by Precise Essential.
B. Licensee receives a number of additional service days commensurate with the number of licenses covered by active support. Licensee may select various activities including installation support, report creation, upgrade support, etc. up to the limit of the service hours included in the package
iv. Precise Platinum
A. Precise Platinum is an enhanced services package that extends the services provided by Precise Gold.
B. Licensee receives a number of additional service days commensurate with the number of licenses covered by active support. Licensee may select various activities including installation support, report creation, upgrade support, etc. up to the limit of the service hours included in the package
C. Licensee receives one Opportunity Assessment annually.
D. Licensee is provided access to a special Platinum-only support hotline.
(b) "Overview of Core Maintenance Services Provided." During each Maintenance Term, Precise will provide the following Maintenance Services, subject to the procedures and limitations described herein:
(i) provide access to Self Help Support Resources.
(ii) clarify the Documentation.
(iii) assist in identifying and verifying the causes of suspected errors.
(iv) provide Error Corrections when required and available.
Such Maintenance Services will be provided for the Precise Instances that are covered during each Maintenance Term. Support will not be provided for licenses that are not covered under a current Support Agreement.
(c) "Overview of Services Not Included in Maintenance Services." The following services are NOT provided as Maintenance Services. The services described herein are not meant to represent all excluded services, but are representative of the type of services that are not included in standard Maintenance Services. Services of this type are available at additional cost through Precise Professional Services:
(i) Designing, Planning or Implementing Licensed Software.
(ii) Installing Updates or Patches.
(iii) Custom configuration of Licensed Software.
(iv) Supporting Third Party applications.
(v) Creating custom reports, alerts, dashboards, etc.
(iv) Troubleshooting customer’s hardware or software platforms and configurations.
(iv) Providing product training.
(d) "Self Help Support Resources." Precise provides a robust set of Self Help Resources to allow You to resolve issues quickly. You hereby agrees that You and your authorized end users of the Licensed Software will first attempt to answer any questions and resolve any issues with respect to the operation of the Licensed Software by using Precise’s self help resources. You further acknowledge and agree that Your failure to use these resources may result in refusal of technical support service otherwise made available as part of Maintenance Services. Precise provides the following self help resources:
(i) The Help function of the Software.
(ii) Software Updates / Upgrades and Patch Releases.
(iii) The Precise Customer Portal.
(iv) The Precise Community Site.
(v) The Precise Online Knowledge Base.
(vi) The Documentation.
(e) "Contacting Precise Support Representatives." If you are unable to resolve an issue or question with respect to the Licensed Software after using the Self Help Resources described above, Your support contact may contact a Precise Support Representative to receive technical support using one of the methods described below. Precise will provide technical support only in English and only to your Licensee Contact. Any communication between the Licensee Contacts and a Precise Support Representative must be in English. Precise will not provide support to end users of the Licensed Software or to any person that is not a Licensee Contact.
(i) Customer Portal. Precise provides a Customer Portal to be used for submitting support requests for all support issues that are not classified as Severity 1. The Customer Portal provides self-service tools to search the knowledge base, and allows a Licensee Contact to submit and track support request cases when additional support is required. The support portal is available at http://precise.force.com.
(ii) Email Case Submission. Precise provides an email option for submitting non-critical issues. A Licensee Contact may submit email support requests to email@example.com. Emails submitted to this address result in the creation of a new support case that can be tracked in the Customer Portal.
(iii) Telephone Hot Line. Precise provides a Telephone Hotline for Severity 1 issues. Precise shall provide technical support to You (through the Licensee Contacts) Monday through Friday 9:00am to 6:00pm (Central Standard Time), excluding local holidays (the "Support Hours"). Precise will provide You with a list of local holidays and any reduced Support Hours on those holidays upon your request. If You have purchased optional Essential Support as described in Table 1, Precise will provide additional telephone support outside the Support Hours twenty-four (24) hours per day during weekdays for all severity level Errors and twenty-four (24) hours per day, seven (7) days per week, including local holidays for Severity 1 Errors ("Extended Support Hours").
(iv) Email. Precise will use commercially reasonable efforts to provide an acknowledgement to web email sent to firstname.lastname@example.org within eight (8) business hours after Precise receives the email.
(f) "Error Correction." When You report an Error to Precise, You must include a detailed description of the Error and Your good faith estimation of the severity level determined in accordance with Table 1 below. You must also provide accurate information about the version and module of the License Software as well as version number of any companion product (for example: Oracle, SQL, etc.) and similar information regarding Operating System. When Precise receives notice of an Error, Precise will make a final definitive determination of the Severity Level (in accordance with Table 1 below), assign a problem tracking number to be included in all correspondence between You and Precise related to the Error and, after Precise's e-mail acknowledgement, Precise will provide a response in accordance with the Severity Levels and response times identified in Section 2(g) below. Thereafter, Precise will use commercially reasonable efforts to provide an Error Correction. The Error Correction may require that You install the latest Maintenance Release for the supported version of the Licensed Software on which You reported the Error. An Error Correction may require multiple contacts and off-line research. The Error Correction, when completed, may be provided in the form of a patch to the Licensed Software consisting of sufficient programming and operating instructions to implement the Error Correction, which will be provided to You via email, download or other electronic means.
(g) "Response Times." Precise's response to an Error depends on the severity of the Error and the level of Maintenance Services purchased by You, as determined by Table 1. For each Severity Level, Precise Support Representatives will use commercially reasonable efforts to respond, within the times set forth in Table 1. Response time is the time from Precise's receipt of notice of the Error until Precise contacts the Licensee Contact reporting the Error to begin resolution efforts, not the time to deliver an Error Correction. Precise will respond to an Error that arises in the Primary Instance at all severity levels set forth in Table 1. If an Error arises in the Secondary Instance, Precise will only respond according to the Severity 3 level response time, as set forth in Table 1.
(h) "Escalation Procedure." An escalation occurs when an open issue becomes critical and requires Precise's escalation procedure, which consists of the following:
(i) when escalation of a critical case becomes necessary, You will contact a Precise Support Representative for more information using the telephone or e-mail detailed on the Precise Support Web Site.
(ii) once You are connected with a Precise Support Representative, You must provide its name, case ID, and state that an escalation is required.
(iii) the Precise Support Representative will contact the support manager on duty and the support manager will set up an action plan that is required in order to progress the case and will monitor its execution on a regular basis involving the Precise Support Representative in charge.
(i) "Exclusions from Maintenance Program." Precise is not responsible or liable for causes external to the Licensed Software ("Excluded Services"), including but not limited to:
(i) Your failure to incorporate Releases.
(ii) installation of the Licensed Software or any New Version Releases not in accordance with the Documentation provided with the Licensed Software or New Version Releases
(iii) Your use of the Licensed Software with any software or hardware other than the Supported Environment.
(iv) problems resulting from use of the Licensed Software in a manner not permitted pursuant to Your license.
(v) modifications, alterations, or additions to the Licensed Software by parties other than Precise (including without limitation, modifications, alterations, or additions to the Licensed Software made by You).
(vi) damage from any source other than Precise including but not limited to water, humidity, fire, power surges, computer viruses, and accidents. Any services required to fix the Excluded Services will be billed to You as professional services on a time-and-materials basis in accordance with Precise then current rates and in accordance with the terms of Precise’s standard professional services agreement. Maintenance Services does not include services in connection with or correcting Errors arising out of or related to a database management server or a web server or any other third party component that is used in conjunction with the Software Licensed. Precise may, but is not required to, provide Error Corrections for such Errors at Precise then current time and materials rates. Maintenance Services does not include installation or configuration of the Licensed Software or any services provided on-site at Your location, facilities or datacenter. If Precise is required or requested to travel to your location, facilities or datacenter, any services will be provided at then current time and materials rates as professional services (subject to the terms of Precise’s standard professional services agreement) and You shall reimburse Precise for all reasonable travel expenses, including meals and lodging. Maintenance Services does not include problems or errors in modifications to the Licensed Software that Precise provides as a work product pursuant to a separate professional services engagement. Precise is not responsible for restoring lost data or damage to Your database that result from Your acts or omissions. If You desires to purchase upgrade services or other professional services from Precise outside the scope of the Maintenance Services in this Support Agreement, then Precise will provide such professional services to You for a charge as set forth in a mutually agreed upon professional services agreement.
3. Licensee's Responsibilities.
(a) "Supported Environment and Operations." You are responsible for undertaking the proper supervision, control and management of Your use of the Licensed Software and its use by Your authorized end users, including, but not limited to
(i) providing, maintaining and assuring proper configuration of the Supported Environment.
(ii) following industry standard procedures for the security of data, accuracy of input and output, and back-up plans, including restart and recovery in the event of hardware or software error or malfunction.
(iii) maintaining a procedure external to the Licensed Software for reconstruction of lost or altered files, data and programs.
(b) "Assistance in Providing Maintenance." You shall provide reasonable assistance to Precise in determining and resolving Errors Licensee reports. Error determination activities may include performing network traces, capturing error messages, collecting configuration information and other similar activities to allow Precise to reproduce the Error. Resolution activities may require access to your personnel and/or remote access to the Supported Environment. You hereby agree to Precise’s use of remote access tools to access the Licensed Software in the Supported Environment and modify its configuration as part of Precise Error determination and resolution activities. Precise may not be able to provide You with an Error Correction without such remote access. You are responsible for performing activities to implement any Error Corrections that Precise provides to You and for responding in a timely manner to requests for information by a Precise Support Representative. Error Corrections may include changing, installing or reinstalling new or existing versions of web browser software or new components, or modifying processes. Any information You provide to Precise in connection with Maintenance Services that You designates as “confidential” will be used by Precise only to resolve reported Errors and will not be disclosed to anyone other than Precise personnel involved in resolving the Error. As part of Precise's Error resolution process, information You provide to Precise may be made available to Precise employees in foreign countries, unless Licensee notifies Precise otherwise in writing when providing Precise with such information.
(c) "Designation of Support Contacts." For Basic Support, You shall designate at least one individual as the “Licensee Contact” and may designate one additional individual as a “Licensee Contact” for receiving Maintenance Services hereunder. For Essential Support, You shall designate at least one individual as the “Licensee Contact” and may designate up to three additional individuals as “Licensee Contacts” for receiving Maintenance Services hereunder. You shall promptly notify Precise in writing of the names of each Licensee Contacts and any changes subsequently made by You. You may not change the Licensee Contracts more than once in per calendar month.
(d) "Training." You are solely responsible for properly training the Licensee Contacts and all other appropriate personnel in the operation and use of the Licensed Software and the Supported Environment.
(e) "Solution Validation." You are responsible for informing Precise when any Reported Error has been corrected successfully. After providing a solution, Precise will attempt to confirm solution with the Licensee Contact two times during one business week before closing the case.
4. New Releases of the Software.
(a) "Maintenance Releases Provided with Maintenance and Support." During the Maintenance Term, if and as made available by Precise, Precise will provide You, at no additional charge, with any Releases that it makes generally available to customers who have purchased and paid for Maintenance Services. Each Release shall be deemed part of incorporated into the Licensed Software to which it relates for purposes of the License Agreement and shall also be subject to the terms and conditions of this Support Agreement. The designation of a release as a Maintenance Release or a New Version Release will be made by Precise, in its sole and reasonable discretion.
(b) "Maintenance and Support of Prior Releases." Precise will provide Maintenance Services, as provided herein, for the most current Maintenance Releases made with respect to the current New Version Release and the last two New Version Releases immediately preceding that release. Support for all other prior Versions will be provided by Precise as professional services and an additional charge on a time and materials basis shall apply.
(c) "Installation and Configuration of New Releases." Maintenance Services do not include the installation or configuration of any Releases. Any services to be provided in connection with the installation or configuration of Releases will be provided for a mutually agreed upon fee as professional services pursuant to a separate professional services agreement. New Version Releases may have significant changes from current versions and it is strongly recommended that Precise provide the services to install New Version Releases to ensure Precise's ability to continue to provide Maintenance and Error Corrections. Precise will not correct Errors arising out of or related to installation or configuration of the Licensed Software or any New Version Releases by any party other than Precise.
(d) "Migration of Customizations and/or Modifications." If You have customized and/or modified the Licensed Software, Maintenance Services does not include migrating Your customizations and/or modifications to any Release, unless otherwise provided under a separate professional services agreement pursuant to which Precise provided such customizations and/or modifications. Any services to be provided in connection with the migration of customizations and/or modifications to Releases will be provided for a mutually agreed upon fee as professional services pursuant to a separate professional services agreement.
5. Maintenance Fees.
Unless otherwise agreed in writing between Precise and You, the fee for all Maintenance Services provided by Precise during a Maintenance Term (the “Maintenance Fee”) are based on Precise's then current prices. You will be invoiced by Precise for the Maintenance Fees for the initial Maintenance Term upon entering into or agreeing to this Support Agreement and, subject to Section 6 below, You will be invoiced by Precise for any renewal Maintenance Term upon expiration of the then-current Maintenance Term. Fees for any additional services not included as part of Maintenance Services and all expenses incurred in connection therewith will be separately invoiced on a monthly basis at the end of the month in which such services are provided or expenses incurred.
6. Term, Renewal and Termination.
(a) "Initial Maintenance Term and Renewal." The initial Maintenance Term shall begin and end on the dates specified in the applicable order provided, however, that if such dates are omitted from the applicable order then the initial Maintenance Term shall be deemed to commence on the date of Your purchase of Maintenance Services and end one year thereafter. Upon expiration of the initial Maintenance Term and each subsequent Maintenance Term, if any, Maintenance Services shall automatically renew for consecutive additional one-year Maintenance Terms (each, a "Renewal Term") unless
(i) Precise notifies You in writing prior to expiration of the then-current Maintenance Term of its election to terminate Maintenance Services.
(ii) Precise notifies its general customer base in writing prior to expiration of the then-current Maintenance Term of its election to discontinue Maintenance Services in respect of one or more versions of the Licensed Software or
(iii) You notify Precise in writing at least thirty (30) days prior to the expiration of the then-current Maintenance Term of Your election to terminate or not renew Maintenance Services. Precise will provide You with written notice of the upcoming expiration date, which shall include notice of any price increase for the upcoming Renewal Term, if applicable. The failure to renew Maintenance Services shall not affect Your licenses to use the Licensed Software, but will result in the termination of Maintenance Services. Notwithstanding the above, Precise may terminate or suspend Maintenance Services, without any liability to You, if You fail to timely pay any Maintenance Fee or otherwise breach any term or condition of this Support Agreement or the License Agreement.
(b) "Termination of Maintenance and Support." If a party breaches any material term or condition of this Agreement, then the non-breaching party shall give the breaching party written notice of such breach specifying with a reasonable degree of detail the breach and the circumstances giving rise to the breach. If the breaching party fails to cure such breach within thirty (30) days of its receipt of such written notice of breach, the non-breaching party may terminate this Support Agreement. If You properly terminate this Support Agreement as a result of Precise’s uncured breach, then Precise shall refund to you the pro rata portion of any pre-paid Maintenance Fee in respect of the remaining portion of the then-current Maintenance Term and shall have no other liability to You under this Support Agreement, including any liability for any claims, losses or damages suffered by You as a result of such breach by Precise. Upon termination or expiration of this Support Agreement for any other reason (or for no reason) Precise shall have no obligation to refund or credit any Maintenances Fees You have paid.
(c) "Reinstatement of Maintenance Services." If Maintenance Services have terminated or expired (other than due to your breach of this Support Agreement or the License Agreement), You may reinstate Maintenance Services if
(i) Precise still offers Maintenance Services for the Licensed Software
(ii) You pay a reinstatement fee equal to (i) the Maintenance Fees for the period of time during which Maintenance Services lapsed or during which You were not entitled to receive Maintenance Services and (ii) You pay the Maintenance Fee for the current Maintenance Term. You are also required to upgrade the Licensed Software to the latest version that Precise has made available within sixty (60) days of any such reinstatement of Maintenance Services.
7. Confidential Information.
(a) "Confidential Information" means (i) a party's proprietary technology or computer software in all versions and forms of expression, whether or not the same has been patented or the copyright thereto registered, is the subject of a pending patent or registration application, or forms the basis for a patentable invention (collectively the "Proprietary Technology"); (ii) manuals, notes, documentation, technical information, drawings, diagrams, specifications, formulas or know-how related to any of the Proprietary Technology; (iii) information regarding current or proposed products, customers, contracts, business methods, financial data or marketing data, financial results and projections, company and market strategy, product roadmaps, product and competitive sales analysis and plans, product or marketing plans, pricing plans or structures, personnel and recruiting matters, and future releases; and (iv) offers or proposals which are made available or disclosed by a party (the “Discloser”) to the other party (the “Recipient”) , including, but not limited to, the fees charged by Discloser and such Confidential Information is either (1) in tangible or other form and labeled "confidential" or the like, or (2) in a non-tangible form, including, but not limited to, oral information and is followed up within two (2) weeks in a tangible form that is appropriately labeled.
(b) "A Recipient shall" (i) not disclose the Confidential Information to any third party at any time and Recipient shall limit disclosure of Confidential Information within its own organization to its employees or its legal, financial and accounting advisors having a need to know and who have agreed to be bound by the terms of this Support Agreement; and (ii) protect the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as Recipient uses to protect its own Confidential Information of a like nature, but no less than a reasonable degree of care. Recipient shall be entitled to disclose Confidential Information solely to the extent necessary to comply with a court order or as otherwise required by law or by a regulatory agency or government body, provided that Recipient shall first give notice to Discloser and make a reasonable effort to obtain a protective order to protect the confidentiality of the information. If such protective order is not obtained, Recipient agrees to disclose only that portion of the Confidential Information which it is legally required to disclose. Recipient shall immediately notify Discloser of any actual or suspected unauthorized disclosure of Confidential Information. Recipient shall not modify, reverse-engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information without Discloser's prior written consent.
(c) "Obligations" The obligations described in Section 7 imposes no obligation upon Recipient with respect to any Confidential Information which
(i) is or becomes a matter of public knowledge through no fault of Recipient;
(ii) is rightfully received by Recipient from a third party without a duty of confidentiality to a third party by, or with the authorization of, Discloser;
(iii) is disclosed without a duty of confidentiality; or
(iv) is independently developed by Recipient.
The burden of proving any of the above exemptions is on Recipient.
(d) Upon the written request of Discloser, Recipient shall immediately destroy or return to Discloser, as requested by Discloser, all Confidential Information of Discloser in its possession, together with all records in any manner pertaining to any of Discloser's Confidential Information. Recipient shall also, upon the written request of Discloser, furnish Discloser with a certificate of an officer verifying that all of the foregoing have been destroyed or returned to Discloser.
8. LIMITATION OF LIABILITY.
(a) "LIMITATION OF LIABILITY." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL PRECISE, ITS PARENT COMPANY, ANY OF THEIR AFFILIATES OR ANY OF THIEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, LICENSORS, RESELLERS OR SUPPLIERS (THE “INDEMNITEES”) BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THIS SUPPORT AGREEMENT OR THE LICENSE AGREEMENT, EVEN IF PRECISE OR ANOTHER INDEMNITEE HAS BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL ANY INDEMNITEE’S AGGREGATE CUMMULATIVE LIABILITY UNDER THIS SUPPORT AGREEMENT EXCEED THE AGGREGATE MAINTENANCE FEES PAID BY YOU FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM. NOTHING IN THIS SUPPORT AGREEMENT OR THE LICENSE AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT PRECISE'S OR ANY OTHER INDEMNITEE’S LIABILITY TO YOU FOR DEATH OR PERSONAL INJURY ARISING OUT OF PRECISE’S NEGLIGENCE OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW.
(a) "ENTIRE AGREEMENT." This Support Agreement is the complete and exclusive agreement between You and Precise relating to the technical support and maintenance services to be provided by Precise in respect of the Licensed Software and supersedes any previous or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This Support Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by You, even if signed and returned by Precise. Precise reserves the right to change or modify this Support Agreement without notice at any time in Precise's sole discretion by publishing the revised Support Agreement on the following website: www.precise.com. Your express acceptance or Your continued use of the Licensed Software shall constitute Your acceptance to be bound by the terms and conditions of the revised Support Agreement.
(b) "GOVERNING LAW AND VENUE; SEVERABILITY; WAIVER." THIS SUPPORT AGREE¬MENT WILL BE GOVERNED BY AND INTER¬PRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. PRECISE AND YOU EACH HEREBY IRREVOCABLY AGREE THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN AN APPROPRIATE FEDERAL OR STATE COURT IN THE STATE OF TEXAS LOCATED IN HARRIS COUNTY. Such governing law is exclusive of any provisions of the United Nations Convention on Contracts for Sale of Goods, including any amendments thereto, and without regard to principles of conflicts of law. If any provision of this Support Agreement is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of this Support Agreement shall remain in full force and effect. A waiver of any breach or default under this Support Agreement shall not constitute a waiver of any other subsequent breach or default.
(c) "Notices." All notices, requests, demands or other communications which are required or may be given pursuant to the terms of this Support Agreement shall be in writing and shall be deemed to have been duly given if sent by a nationally recognized overnight express courier. Notices shall be delivered to the following:
Precise Software Solutions, Inc.
2950 North Loop Freeway West
Houston, Texas 77092
Attn: Chief Financial Officer
(d) "Force Majeure." Neither party shall be in default if its failure to perform any obligation under this Support Agreement (other than obligations to make payments when due) is caused solely by supervening conditions beyond that party's reasonable control, including acts of God, war, terrorism, civil commotion, strikes, labor disputes, Internet service interruptions or slowdowns, vandalism or "hacker" attacks, or governmental demands or requirements.
(e) "Assignment." You may not assign the rights granted hereunder or this Support Agreement, in whole or in part and whether by operation of contract, law or otherwise, without Precise's prior express written consent.
||Severity Level Description
||Response Time Targets
||Emergency—product inoperative condition that impacts Licensee's production or business-critical operation.
||Time to respond is within 2 hour during Local Business Hours.
||Time to respond is within 1 hour.
||Critical—severely affects or restricts major functionality
||Time to respond is within 4 hours during Local Business Hours.
||Time to respond is within 2 hours.
||Major—issue with no major effect on business systems.
||Time to respond is within 10 hours during Local Business Hours.
||Time to respond is within 8 hours during Extended Support Hours.
||Minor—minor condition or documentation error.
||Time to respond is within 24 hours.
||Time to respond is within 24 hours.