This support services agreement is between OpenLogic, Inc., a Delaware corporation, and the customer identified on a Work Order signed by both parties ("Customer"). This agreement is effective as of the Effective Date stated on the relevant Work Order.
The parties agree as follows:
1. Services. OpenLogic will provide the services as described below and set forth in each Work Order issued under this agreement (the "Services"). All services provided by OpenLogic to Customer will be governed by the terms of this agreement and the Work Order applicable to those services.
1.1. Technical Support Description. Technical support includes assistance with problem resolution and "how to" questions as well as advice and recommendations on installation, configuration, integration, and open source package selection. Each single unique defect or question about an open source package will be counted as an incident. Technical support incidents can be submitted via email, by phone, or through complimentary access to the OLEX Support Edition. The number of incidents Customer can submit will be determined on the applicable Work Order.
2. Fees and Expenses. Customer will pay the fees set forth in each Work Order ("Fees"). Unless otherwise stated in the Work Order, OpenLogic will invoice Customer in advance for all Fees due under this agreement. Customer will reimburse OpenLogic for all pre-approved, reasonable, and documented expenses incurred by OpenLogic in the performance of the Services ("Expenses"). Customer will pay all invoiced amounts within 30 days of the date of the invoice. All Fees and Expenses are payable in U.S. dollars, unless otherwise specified in writing.
2.1. Taxes. Customer will be liable for all taxes and other governmental charges imposed on the Services or any amounts paid to OpenLogic under this agreement, except for taxes based on OpenLogic's net income.
3. Term and Termination. The term of this agreement will commence on the Work Order Effective Date. Unless earlier terminated, the term of this agreement will continue so long as there is an uncompleted Work Order pending under this agreement. Either party may terminate this agreement any time upon 30 days notice to the other party, so long as there is no uncompleted Work Order pending under this agreement. If twelve consecutive months pass during which time there is no active Work Order pending under this agreement, then this agreement will automatically terminate at the end of such twelve month period.
3.1. Termination for Breach. This agreement may be terminated by either party if the other party breaches any material provision of the agreement and fails to cure the material breach within 30 days after receiving notice thereof from the non-breaching party. If OpenLogic terminates for an uncured breach by Customer, Customer will cease using the Services provided under this agreement and OpenLogic may cease performing all Services being provided under the applicable Work Order. If Customer terminates for an uncured breach by OpenLogic, OpenLogic will refund Customer pro rata any pre-paid Fees under any pending Work Order.
3.2. Termination for Convenience. Customer may terminate this agreement for convenience upon 14 days notice to OpenLogic; in such event, Customer will forfeit any pre-paid Fees and remain liable for any remaining payment installments or other fixed price Fees as per any pending Work Order. Termination for convenience under this section will also terminate any pending Work Order.
3.3. Effect of Termination. Upon any termination of this agreement: (a) any Fees or Expenses owed to OpenLogic under this agreement or any applicable Work Order before such termination will be immediately due and payable; (b) each party will promptly destroy or return to the other party all property and equipment of the other party (including any Confidential Information as defined herein) in its possession or control, including all copies thereof; and (c) upon request, each party will certify in writing to its compliance with this section.
4. Confidential Information.
4.1. Confidential Information. For purposes of this agreement, "Confidential Information" means any data or information regarding the business, finances, services or technology of either party provided to or otherwise obtained by the other party, including, without limitation, technical, marketing, financial, pricing, employee, and planning information, and any other data or information received or otherwise obtained under this agreement that (a) is designated as confidential by the Discloser at the time of disclosure; or (b) should reasonably be considered, given the nature of the information or the circumstances surrounding its disclosure, to be confidential. Confidential Information also includes the terms and conditions of this agreement and the existence of the discussions between the parties.
4.2. Recipient's Obligations. Recipient shall: (a) hold Confidential Information in strict confidence and take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential materials); (b) not divulge any Confidential Information to any third party (other than to employees or contractors as set forth below); (c) not use the Discloser's ConÃždential Information, or permit it to be accessed or used, for any purpose other than the to fulfill the parties obligations under this agreement and any Work Order; and (d) not copy or reverse engineer any materials disclosed under this agreement or remove any proprietary markings from any Confidential Information. Any employee or contractor given access to any Confidential Information must have a legitimate Ã’need to knowÃ“ and Recipient shall be responsible for each such person's compliance with the terms of this agreement.
4.3. Exceptions. This agreement imposes no obligations with respect to information which: (a) was in Recipient's possession before receipt from Discloser; (b) is or becomes a matter of public knowledge through no fault, directly or indirectly, of Recipient; (c) was rightfully disclosed to Recipient by a third party without restriction on disclosure; (d) was or is independently developed by Recipient, as established by documentary evidence, without reference to or use of the Confidential Information; or (e) is required to be disclosed by Recipient pursuant to a subpoena or similar court order, provided that: (i) Recipient gives reasonable notice to Discloser and allows Discloser to participate in the proceeding; and (ii) Recipient uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order.
5. Intellectual Property Rights.
5.1. Intellectual Property Rights. Intellectual property rights includes, without limitation, all copyrights, trademarks, service marks, trade secrets, patents, moral rights, and any and all other legal rights protecting intangible proprietary information ("IPR"). All pre-existing intellectual property rights owned or licensed by either party are and will remain the exclusive property of that party.
5.2. License. Subject to the terms and conditions of this agreement, Customer hereby grants to OpenLogic a non-exclusive, worldwide, royalty-free license to use, reproduce, adapt, and modify Customer IPR to the extent necessary to perform the Services. Subject to the terms and conditions of this agreement, OpenLogic hereby grants to Customer a non-exclusive, non-transferable (except in accordance with Section 11 (Assignment)), worldwide license to use, reproduce, and modify any OpenLogic IPR provided to Customer during the course of performing the Services for Customer's own internal business purposes.
5.3. Open Source Deliverables. To the extent any Deliverable hereunder is a derivative work, modification, patch, or script of or directly relating to an open source software project (each an "Open Source Deliverable"), such Open Source Deliverable will be licensed under the same open source software license as the open source project to which it relates.
5.4. Use of Know-how. Customer agrees that nothing in this agreement or any applicable Work Order will be deemed to prohibit or limit OpenLogic's use, now or at any time, of ideas, concepts, know-how, methods, techniques, skill, knowledge and experience, in any way whatsoever, that are used or developed in the performance of Services under this agreement or any Work Order.
6.1. Mutual Warranties. Each party represents and warrants to the other party that: (a) such party has full power and authority to enter into and carry out its obligations under this agreement; (b) such party has and will continue to have all necessary rights, power and authority to enter into this agreement, to perform the acts, and to grant the rights required of it hereunder; and (c) the performance of such party's obligations hereunder do not and will not violate any law, rule or regulation applicable to such party.
6.2. OpenLogic Warranties. OpenLogic will perform all Services in a professional and workmanlike manner and according to the description on the applicable Work Order. If OpenLogic fails to comply with the previous sentence, OpenLogic will, at its sole discretion and as Customer's sole remedy and OpenLogic's sole obligation for any such failure: (a) re-perform the Services in a manner that resolves the alleged failure; or (b) refund any Fees paid by Customer attributable to the Services that are the subject of the failure.
7. Disclaimer of Warranties. THE WARRANTIES SET FORTH IN SECTION 6 (WARRANTIES) ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY OPENLOGIC UNDER THIS AGREEMENT AND OPENLOGIC SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICES, DELIVERABLES AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY.
8. Limitation of Liability. OPENLOGIC WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, AND INJURY TO REPUTATION, EVEN IF OPENLOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF OPENLOGIC RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE TOTAL FEES PAID TO OPENLOGIC BY CUSTOMER UNDER THE WORK ORDER UNDER WHICH THE LIABILITY AROSE DURING THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY.
9. Force Majeure. OpenLogic will be excused from performance under this agreement for any period and to the extent that it is prevented from performing pursuant to this agreement, in whole or in part, as a result of delays caused by Customer, third parties or any other cause outside of the reasonable control of OpenLogic (including, by way of example, an act of God, war, civil disturbance, court order, or labor dispute).
10. Export. Customer will comply with all applicable export and import laws and regulations in its use of the Services. Customer represents that neither it nor any of its employees receiving the Services is barred from receiving services under U.S. laws or other applicable jurisdiction, including without limitations, the Denied Persons List and the Entity List, and other lists issued by the U.S. Department of Commerce, Bureau of Industry and Security. Customer represents that it and all its employees receiving the Services are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods.
11. Assignment. Except in connection with the sale of its business by merger, stock sale, or transfer of a majority portion of its assets, neither party will assign or otherwise transfer its obligations under this agreement or any Work Order without the other party's prior written consent. Any attempted assignment or transfer by Customer in violation of the foregoing will be null and void.
12.1. Relationship of parties. This agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between Customer and OpenLogic. There are no third-party beneficiaries to this agreement.
12.2. Entire Agreement. This agreement and the documents referenced herein constitute the entire agreement between OpenLogic and Customer in regards to the subject matter herein and supersedes any and all oral or written communications between the parties. The preprinted terms of a purchase order or invoice will not apply to or modify this agreement. Any changes to this agreement, any Order Form, or any Services provided by OpenLogic will be set forth in a written change order describing the changes and any applicable fees signed and agreed to by both parties.
12.3. Severability. If any provision of this agreement is held to be unenforceable, that provision will be modified so as to be enforceable, or if such modification is not possible, will be removed and the remaining provisions will remain in full force. 12.4. Waiver. All waivers under this agreement must be in writing. Failure to enforce any provision of this agreement does not constitute a waiver of any term.
12.5. Counterparts. A signed copy of this agreement delivered by facsimile, e-mail or other means of electronic transmission will have the same legal effect as delivery of an original signed copy of this agreement. The agreement may be executed in one or more counterparts, all of which together will constitute one and the same instrument.
12.6. Notice. All notices under this agreement must be delivered in writing by electronic mail, courier, electronic facsimile, or certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address for each party first identified on the applicable Work Order, and will be effective upon receipt or three business days after being deposited in the mail, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
12.7. Choice of Law. The laws of the State of Colorado and the United States of America govern all matters arising out of this agreement without regard to conflicts of law principles. The jurisdiction and venue for any dispute arising under this agreement will be the Colorado state and United States federal courts located in Denver County, Colorado. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement.
12.8. Survival. Sections 4 (Confidential Information), 5 (Intellectual Property Rights), 7 (Disclaimer), 8 (Limitation of Liability), 10 (Export), and 12 (General) will survive any termination of this agreement.
-- Last updated 15 May 2012.