THIS MAINTENANCE AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH EYE4SOFTWARE B.V. WILL PROVIDE MAINTENANCE AND SUPPORT (COLLECTIVELY, “MAINTENANCE”) TO LICENSEE. ALL TERMS NOT OTHERWISE DEFINED HAVE THE MEANINGS GIVEN IN THE APPLICABLE LICENSE AGREEMENT. YOUR GENERAL TERMS OF BUSINESS DO NOT APPLY.
1. GENERAL
In this Maintenance Agreement: (i) "Eye4Software" means Eye4Software B.V., Erica 23, 8471WL Wolvega (FR), The Netherlands. (ii) "Customer" means the individual(s), organization or business entity buying a license of the Software from Eye4Software or its Distributors or its Resellers. (iii) "Software" means computer programs (and their storage medium) supplied by Eye4Software in which Eye4Software has property rights and any user manuals, example code, operating instructions, brochures and all other documentation relating to the said computer programs (the expression "Software" to include all or any part or any combination of Software). (iv) Patch shall mean a fix to a program error. (v) Error shall mean a demonstrable instance of adverse and incorrect operation of the Software that impacts Licensee’s ability to use a functionality described in the Documentation. (vi) Error Resolution shall mean the following: A solution has been generated in the form of a Patch, or a Version of the Software corrects the error, neither of which create additional problems; or the origin of the Error lies in the Documentation and the appropriate Documentation has been clarified; or Eye4Software demonstrates that the technical issue is caused by third party software or hardware or other causes beyond Eye4Software’s control. (vii) Version means a release of the Software, that is identified in the form of x.y, where x represents a major release or base level, and y represents a minor release level version.
2. TERMS
This Maintenance Agreement is in effect for Twelve (12), Twenty-Four (24) or Thirty-Six (36) months, depending on the Agreement period. Customer may purchase Maintenance for additional annual Maintenance periods, unless Eye4Software has elected to retire the Software for which support is requested. If Eye4Software does retire the Software, Eye4Software will notify Licensee at least ninety (90) days before expiration of the existing annual Maintenance period. Maintenance renewals that come in after the maintenance has expired will be backdated to start from the old expiry date. Eye4Software reserves the right, from time to time, to change its standard Maintenance terms and conditions, including the applicable fees. Any change to the Maintenance terms and conditions will not materially reduce the level of support set forth herein. The new Maintenance fees and/or terms and conditions will become effective on Customer’s next annual Maintenance period. This Agreement shall be construed in accordance with the laws of The Netherlands and the Dutch courts shall have sole jurisdiction in any dispute relating to these conditions. If any part of these conditions shall be or become invalid or unenforceable in any way and to any extent by any existing or future rule of law, order, statute or regulation applicable thereto, then the other conditions shall remain in full force and effect as all other provisions.
3. DESCRIPTION OF MAINTENANCE
(i) Support and Response Times: Support is given by answering questions by e-mail in the English language. Support will be responded to within two business days. By giving Support Eye4Software does not warrant any result. Support as defined in this Maintenance Agreement is an obligation of best intents. (ii) Version Life: All Versions of the Software are supported for at least twenty-four (24) months from the date the Software is purchased or a New Version is released. (iii) New Versions: provided that Licensee is a current subscriber to Maintenance, Eye4Software will make each New Version of the Software that Eye4Software releases available to Customer. (iv) Right to Upgrade Software with New Versions: If Customer has purchased maintenance for its Licenses, then Customer will be entitled to use and distribute an upgraded version of Customer’s Software with the new features/functionality of the new Version of the Software incorporated therein. If Customer is not paying for Software Maintenance, Customer shall not have the right to upgrade.
4. UPGRADES AND SUPPLEMENTS
If the Software is labeled as an upgrade, you must be properly licensed to use a product identified by Eye4Software as being eligible for the upgrade in order to use the Software. Software labeled as an upgrade replaces and/or supplements the product that formed the basis for your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this License unless we provide other terms along with the update or supplement. If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package.
5. PAYMENT OF FEES / SUSPENSION OF MAINTENANCE FOR NON-PAYMENT
(a) The term of this Agreement shall commence as of the day and year set forth below and shall continue in force for one (1) year. This Agreement shall be automatically renewed annually thereafter unless either party delivers to the other written notice of the termination not less than ninety (90) days prior to the expiration of the initial, or any, renewal period. (b) Eye4Software may terminate this Agreement immediately if Reseller enters into liquidation, whether compulsory or voluntary or has a receiver appointed for all or part of its assets or takes or suffers any similar action in consequence of debt or becomes unable to pay its debts as they fall due. (c) Eye4Software may terminate this Agreement upon thirty (30) days' written notice if Reseller shall fail to make any payment required hereunder when due unless such payment is made within such period. (d) Termination or expiration of this Agreement shall not relieve Reseller of its then accrued payment obligations under this Agreement and shall not relieve either party of its obligations relating to confidentiality. (e) Reseller shall not have any right to any indemnity or payment of compensation or damages in the event of termination of this Agreement.
6. EXCLUSIONS
(i) Maintenance does not cover resolution of Errors which result from (a) third party software or hardware, (b) any non-Eye4Software modification to the Software, or (c) use of the Software by Customer which is not in accordance with the documentation. (ii) Eye4Software will only support (development) platforms and operating systems for which all components are supported by their respective vendors, under standard conditions, at the date the support request is made by the Customer to Eye4Software. (iii) Maintenance does not cover modifications to the Software (to work around the dysfunction or limitation of third party software, hardware or services).
7. TERMINATION
Without prejudice to any other rights, Eye4Software may cancel or dissolve this Maintenance Agreement if Customer does not abide by the terms and conditions of the applicable License Agreement or this Maintenance Agreement.
8. LIMITATION OF LIABILITY AND REMEDIES
Customer's exclusive remedy and the entire liability of Eye4Software will be, at Eye4Software option, repair, replacement, or refund of the Software if reported (or, upon request, returned) to the party supplying the Software to Customer. In no event does Eye4Software warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. The Customer will safeguard Eye4Software against any claim relating to the use of the Software by the Customer. Eye4Software is in no event liable if the Customer has not reported an Error to Eye4Software within two business days and/or if the software (a) has been altered, except by Eye4Software, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Eye4Software, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (d) is used in ultra-hazardous activities. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct, indirect or general damages), the entire liability of Eye4Software under any provision of this Maintenance Agreement and your exclusive remedy for all the foregoing shall be limited to the greater of the amount paid by you for the Maintenance of the Software with a maximum of U.S.$5.00. Eye4Software is relieved of any obligation to pay damages if the Customer has not upgraded the Software when possible. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
9. OTHER TERMS
Eye4Software shall become owner of all the intellectual property relating to the Support. All other terms of the applicable license, including but not limited to the sections related to the license grants, title and general contractual provisions, are hereby incorporated by reference. In the event of any inconsistency between the terms of the applicable license agreement and the terms of the Maintenance Agreement, the terms of this Maintenance Agreement shall control only with respect to determining Eye4Software’ obligations with respect to providing Maintenance. In all other cases, the applicable license agreement will prevail.