May 30, 2015

Maintenance and Support Agreement

Version 2.9
Effective Jan 15, 2015
THIS DOCUMENT IS A LEGAL AGREEMENT (“Agreement”) BETWEEN FUSION APPLIED AND YOU OR THE ORGANIZATION ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (“Customer”) IN RELATION TO FUSION APPLIED MAINTENANCE AND SUPPORT SERVICES. BY UNDERTAKING TO RECEIVE AND/OR PAYING FOR THE SERVICES DESCRIBED BELOW (“Services”), YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, DO NOT PROCEED WITH RECEIVING THE SERVICES. THIS AGREEMENT DESCRIBES YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SERVICES.

Commencing on the purchase or renewal of a maintenance and support term (“Effective Date”), Fusion Applied will supply the Services to Customer with respect to the products described in Section 1 below, for which Fusion Applied has granted a license to Customer pursuant to a software license agreement (the “License Agreement”) by and between Fusion Applied and Customer and for whom the applicable maintenance and support fee has been paid.

1. Included Support Services

The Services listed below apply only to the Fusion Applied product(s) for which they are purchased (“Products”) and do not apply to any other application, library or product developed or sold by Fusion Applied or Fusion Applied resellers. The support, if any, for any other such product will be governed by a separate agreement. All features listed below are available only for the Support Term (as hereinafter defined), and the Services will become unavailable immediately upon termination of this Agreement. Software generally offered by Fusion Applied in un-obfuscated source code format is sometimes hereinafter referred to as Product Supporting Software.

The Services include the following basic features:

Access to the current supporting materials for the products , including sample code and examples.
Limited incident support as detailed in Section 2a.
Support contacts provided with access to the number of licensed users for which support fees have been paid.
A number of fa-credits included that can be spent on any metered support services as detailed in Section 2. The number of fa-credits included in Premium Support is 175 for a 5-Pack license, 750 for a 20-Pack license, and for volume licensees in excess of 20, 30 x-credits per licensed user in addition to any additional x-credits purchased.
Maximum incident response time of 48 hours as detailed in Section 3a.
Telephone support as detailed in section 2b.
Remote trouble-shooting services available as detailed in Section 2c.

2. Metered Support Services

All support features listed in this section are valued in fa-credits and are only available up to the amount of fa-credits available in the Customer’s support account at the time of the support incident. Additional fa-credits may be purchased and spent on additional support at any time (provided such credits have not expired according to Section 5). All references to “cost” in this section mean the cost in fa-credits based on the fa-credit value of the service. All references to “billing” in this section mean the deduction of accumulated fa-credits from the support account of the Customer.

a. Support Requests

Support requests submitted to the Fusion Applied Support are valued per single related incident. Each incident costs 10 fa-credits. If telephone support is also required to resolve the incident, the cost for the telephone support is added separately and billed in addition to the incident support cost under the terms of Section 2b. Support requests determined to be unrelated to the original request shall constitute a new support incident at the sole discretion of Fusion Applied support personnel. Support requests submitted to Fusion Applied Support must be in English. Foreign language support is addressed in Section 3c below.

b. Telephone Support

Telephone support is valued in 30-minute increments, with a 30 minute minimum fa-credit cost per call (even if the call does not have an actual duration of 30 minutes). Each 30 minutes of telephone support costs 25 x-credits, and the number of separate phone calls is limited only by the total cost in x-credits available in the Customer’s support account balance. Telephone support must be scheduled in advance so that Fusion Applied and the Customer can establish mutually agreeable availability. Fusion Applied telephone support is in English. Foreign language support is addressed in Section 3c below.

c. Expert Services

Expert services include, but are not limited to, remote trouble-shooting on the Customer’s computer systems, performance tuning and code review of the Customer’s application code by Fusion Applied support staff. Each 30 minutes of any expert service except on-site training costs 25 fa-credits with a 30 minute minimum fa-credit cost per request (even if the service does not have an actual duration of 30 minutes). All requests for expert services must be scheduled in advance so that Fusion Applied and the Customer can establish mutually-agreeable availability. Depending on the request, Fusion Applied may advise of prerequisite actions for a particular expert service.

3. Terms of Support

a. Hours of Availability

Access to all web-based support features (online documentation and source code, online help forums) are generally available 24 hours per day, 7 days a week, 365 days a year barring unforeseen interruptions in Internet service or planned exceptions by Fusion Applied. Notwithstanding anything to the contrary in this Agreement, Fusion Applied does not guarantee such availability. All metered Services are also generally available 24 × 7 × 365, although the response to each request for metered support may not happen immediately, and will be governed by the response time terms outlined in section 3b. Any planned exceptions to the availability of Services will be communicated on the Fusion Applied website as far in advance as possible. Hours of availability above are for English based support and foreign language support is addressed in Section 3c below.

b. Response Time

The response time listed in each support plan is the elapsed time between the receipt of a support request via the Fusion Applied Support Portal and the time when Fusion Applied begins the support service, including a verbal or written confirmation to the Customer thereof. The actual time required to fully resolve the support request, if such full resolution occurs, may be longer than the maximum response time listed. Response times above are for English based support and foreign language support is addressed in Section 3c below.

c. Fusion Applied Responsibilities

Fusion Applied will use commercially reasonable efforts to assist Customer to resolve problems in its use of the Software as described in Section 1. Fusion Applied makes no guarantee that it can, or will, solve any problems with respect to the Software presented by Customer, and further disclaims any warranties above and beyond any limited warranties that may have been expressly made by Fusion Applied in the License Agreement.

Services are provided in English by Fusion Applied. Provided, however, that Fusion Applied distributors, partners and/or resellers (“Resellers”) may provide support in Resellers’ local language(s). In such case Resellers may offer Customers such Resellers’ own terms of support (including, but not limited to hours of availability, response times, method of access and delivery) in Resellers sole discretion, and such Reseller’s own terms of support will control Resellers’ local language support, and Section 3a and 3b shall not be applied to such Reseller’s local language support.

d. Customer’s Responsibilities

Customer is responsible for all hardware, operating systems, network setup, network maintenance and setup and use of any file access control systems required in the support of the Software. Customer may be required to provide Fusion Applied with reproducible test case(s). In other cases, Customer may be required to grant Fusion Applied certain limited access rights to Customer’s proprietary computer systems in order that Fusion Applied may render Services. In some cases, Customer may be required to grant Resellers certain limited access rights to Customer’s proprietary computer systems in order that Resellers may provide Resellers’ local language support pursuant to Section 3c.

Customer is responsible for ensuring that its personnel have sufficient training to attain and maintain competence in the operation of the Software. If Fusion Applied determines, in Fusion Applied sole discretion, in responding to a Customer request for Support, that the solution is provided in available media (including, but not limited to, the source code documentation, tutorials and examples, websites or support forums), Fusion Applied may direct Customer’s personnel to the appropriate media for the solution to the problem. Even if the support request were resolved in so doing, any minimum support charges outlined in section 2 would still apply.

All Services are offered only to Services subscribed individuals, who are not permitted to use the Services on behalf of other developers. Customer is not permitted to use generic or shared email accounts to access the Services.

4. Subscription Services

During the Support Term, and provided Customer shall have continuously subscribed to the Services from the date of purchase of the Service and/or Software or reinstated the Services pursuant to Section 7 hereof, Fusion Applied will provide Customer access to and extend Customer’s License Agreement to Major Releases, Minor Releases, Maintenance Releases, if any, as well as corresponding Documentation, for each Service subscribed by customer that has licensed the Service and/or Software under a License Agreement. Issues are often resolved by these updates.

“License Agreement” shall mean the commercial license agreement in effect between Fusion Applied and Customer for the Services and/or Software as generally published on Fusion Applied website and as may be amended by Customer and Fusion Applied .

5. Term and Termination

Fusion Applied provision of the Services to Customer will commence on the Effective Date and will continue for an initial term of one (1) year (the “Initial Term”). If Customer has elected a Services plan with auto-renewals, Services will automatically renew for successive one (1) year terms (each a “Renewal Term”) unless either party gives written notice of its intent not to renew at least thirty (30) days prior to the end of the current Support Term (as hereinafter defined). If Customer has elected a Services plan without auto-renewals, the Services will automatically terminate at the end of the Initial Term, unless Customer chooses to renew Services, subject to Fusion Applied written agreement (each such renewal also referred to as a “Renewal Term”). A decision to terminate Services or otherwise not renew Services will not terminate the applicable Software licenses. (“Support Term” shall mean the Initial Term as extended by each Renewal Term.)

fa-credits must be used during the term in which they were purchased, and at the end of the Initial Term and each Renewal Term, any accumulated fa-credits for that term that have not been spent will be lost. At the end of the Support Term the Services automatically terminate and any accumulated fa-credits that have not been spent will be lost.

Fusion Applied may update Services terms with thirty (30) days advance notice to Customer of any changes deemed by Fusion Applied to have potential adverse and/or material impacts to the Customer. Upon any renewal, Fusion Applied then current terms and conditions for the Services will apply.

6. Fees

a. Services Fee Schedule

Unless otherwise agreed in writing, fees that are applicable for the Services (“Services Fees”) are payable on the Effective Date or, in the case of a renewal term, no later than the date of commencement of the applicable Renewal Term. Services Fees are non-refundable upon payment. Services Fees, including renewals, are at the then-current list price. Fusion Applied may increase applicable Services Fees for renewals.

If Customer elects not to renew the Services, Customer may later re-enroll or enroll, as the case may be, for the Services. If Customer purchases Services after acquiring the Software licenses, or had elected not to renew Services and later wishes to re-enroll in the Services, Customer must pay: (i) the applicable Services Fees for the current Services Period, and (ii) the amount of Services Fees that would have been paid for the period of time that Customer had not enrolled in the Services.

b. Taxes

All Services Fees are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse Fusion Applied for all federal, state, dominion, provincial, or local sales, use, personal property, excise, value added, withholding or other taxes, fees, or duties relating to the transactions contemplated by this Agreement (other than taxes on the net income of Fusion Applied).

c. Invoicing and Late Payments

All invoices issued hereunder are due and payable within thirty (30) days of the date of the invoice. All amounts that are not paid on time by Customer shall be subject to a late charge equal to one and one-half percent (1.5%) per month, or, if less, the maximum amount allowed by applicable law. If payment of any Fee is overdue, Fusion Applied may also suspend performance until such delinquency is corrected. Notwithstanding the foregoing, Services ordered through Resellers is subject to the fees and payment terms set forth on the applicable Resellers’ invoice.

d. Non-Payment and Breach

Fusion Applied may suspend performance of Services if Customer fails to meet its obligations as set forth under this Agreement. Fusion Applied may terminate Services if such failure continues for thirty (30) days after Fusion Applied written request to meet these obligations. Fusion Applied may terminate the Agreement and all Services at any time if (i) it is discovered that Customer is in breach of its Software license restrictions, pursuant to Customer’s License Agreement, or (ii) Customer is in breach of this Agreement or any other agreement with Fusion Applied.

7. Service Limitations; Limitation of Liability

Neither Fusion Applied nor Fusion Applied resellers shall be responsible for providing Services to the extent that the issue is caused by (a) Customer’s misuse, improper use, mis-configuration, alteration, or damage to the Software; (b) Customer’s use of the Software with any hardware or software not supplied or supported by Fusion Applied; (c) Customer’s failure to install an update to the Software if such update would have resolved the issue; or (d) uses in a manner not in accordance with the Agreement. Fusion Applied shall have no responsibility for loss of or damage to Customer’s data, regardless of the cause of any such loss or damage. Services for Fusion Applied Space refer to issues with the use or functioning of the Fusion Applied Space product, and do not refer to matters relating to application development.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FUSION APPLIED AND ITS RESELLERS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE. AND SERVICES. FUSION APPLIED AND RESELLERS DO NOT GUARANTEE THAT THE OPERATION OF THE SOFTWARE OR ANY OTHER CODE WILL BE UNINTERRUPTED OR ERROR-FREE, AND CUSTOMER ACKNOWLEDGE THAT IT IS NOT TECHNICALLY PRACTICABLE FOR US TO DO SO.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FUSION APPLIED OR ITS RESELLERS BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LAW) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE SERVICES OR ANY OTHER SUBJECT MATTER RELATING TO THIS AGREEMENT, EVEN IF FUSION APPLIED OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, FUSION APPLIED AND RESLLERS’ ENTIRE LIABILITY WITH RESPECT TO ANY SUBJECT MATER RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE SERVICES.

8. Miscellaneous

Customer and Fusion Applied are independent parties, and nothing in this Agreement shall be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf. Fusion Applied resellers act as independent parties, and any agreements between Customer and a Fusion Applied reseller or other obligations agreed to be resellers shall be the responsibility of that reseller and not Fusion Applied.

All notices given under this Agreement shall be effective upon receipt and shall be in writing and, if to Customer, sent to the email or physical address provided by Customer to Fusion Applied, and if to Fusion Applied, by certified mail at Fusion Applied headquarters as listed on Fusion Applied website. You may not assign or transfer this Agreement without Our prior written consent. Any attempted assignment or delegation in violation of this Section shall be null and void. This Agreement may be assigned by Us in whole or part and will inure to the benefit of Our successors and assigns.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No oral or written information given by Us, Our resellers, or otherwise on Our behalf shall create a warranty or collateral contract, or in any way increase the scope of this Agreement in any way, and You may not rely on any such oral or written information. Any waivers or amendments shall be effective only if made in writing. Further, any different or additional terms of any related purchase order, confirmation, or similar form shall have no force or effect.

If any provision in this Agreement shall be determined to be invalid, such provision shall be deemed omitted; the remainder of this Agreement shall continue in full force and effect. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability and exclusions of damages set forth in this Agreement shall remain in effect. No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has been or reasonably should have been discovered, or, in the case of an action for nonpayment, more than two years after the date the last payment was due.

This Agreement shall be governed by the substantive laws (notwithstanding conflicts of laws provisions) of the Commonwealth of Virginia, United States and all parties irrevocably submit to the jurisdiction of the courts of the Commonwealth of Virginia, United States and further agree to commence any litigation which may arise hereunder in the state or federal courts located in the judicial district of Loudoun County, Virginia, USA.