| title | edition | signatures |
|---|---|---|
IndieOpenSource.com Software Support Terms |
Development Draft |
These terms, together with the Order Form referencing them, make up a software support agreement. Developer and Customer are identified on the Order Form.
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Software means the software identified on the Order Form.
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Covered Versions depend on the Order Form:
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If the Order Form specifies a particular version, Covered Versions include only that version.
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If the Order Form specifies a version range, such as "1.y.z", then Covered Versions include the latest Generally Available version in that range on the date of this agreement, as well as any new versions within that range that Developer makes Generally Available during the term of this agreement.
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If the Order Form does not specify a particular version or version range, then Covered Versions include the latest Generally Available version on the date of this agreement, as well as any new versions that Developer makes Generally Available during the term of this agreement.
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A version of the Software is Generally Available if Developer offers it to the public for use in production systems. Versions that Developer designates with labels like "Alpha", "Beta", "Preview", "Testing", and "Preview" are not Generally Available.
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Service Limits means any limits on use of Developer's support services specified on the Order Form, such as the number of Customer Personnel who may contact Developer for support, or the maximum number of Support Requests Developer will respond to per month.
Developer agrees to respond to Support Requests from Customer Personnel about Covered Versions of the Software.
If the Order Form specifies support channels, Developer only agrees to respond to Support Requests sent via those channels. If the Order Form does not specify support channels, Developer only agrees to respond to Support Requests via e-mail, and to give Notice of an e-mail address for Support Requests on entering into this agreement.
Developer agrees to diagnose and resolve Support Requests related to installing Covered Versions of the Software, configuring standard features of Covered Versions of the Software per its documentation, and software errors encountered when using Covered Versions of the Software.
If Developer is a company of more than one person, then Developer agrees to promptly escalate Support Requests that initially responding support personnel cannot resolve independently to a Developer engineer responsible for the Software. Where appropriate, initially responding support personnel may connect Customer Personnel to engineers directly.
If Developer is a company of more than one person and the Order Form specifies dedicated support personnel, then Developer agrees to assign a limited number of specific support personnel to respond to Customer's Support Requests, in order to maximize the chance that Customer Personnel will receive support from personnel familiar with Customer's use cases and past Support Requests.
If the Order Form specifies a service-level agreement:
Subject to Business Hours, Holidays, and Vacation and Sick Days Developer agrees to meet or exceed the service levels specified on the Order Form.
If Developer fails to meet Meet or Exceed Service Levels for three months in a row, and Customer ends this agreement at the end of those months, citing poor support responsiveness, Developer agrees to refund any Prepaid Fees.
If the Order Form specifies business hours, Developer agrees to respond to Support Requests during those hours. If the Order Form does not specify business hours, Developer agrees to respond to Support Requests during regular business hours in the time zone of Developer's Address.
If the Order Form specifies holidays, Developer will not respond to Support Requests on those holidays. If the Order Form does not specify holidays, Developer will not respond to Support Requests on days when commercial banks in the city nearest Developer's Address typically stay closed.
If Developer is an individual or a company of one person, then Developer will not respond to Support Requests on days Developer takes off as vacation or sick days. Developer agrees to give Notice of sick days, and advance Notice of vacation days. Developer may take as many sick days and vacation days as Customer's human resources policies allow full-time employees to take, or if Customer does not have such a policy, a reasonable number of sick days and vacation days.
Unless the Order Form defines different terms for the severity of Support Requests:
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Critical Support Requests are Support Requests that report that:
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Customer cannot install the Software by following the directions in its documentation.
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The Software crashes or becomes unresponsive.
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Software errors prevent Customer from using the Software.
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The Software contains security vulnerabilities.
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All other Support Requests are Regular Support Requests.
If the Order Form specifies a credit schedule:
Developer agrees to credit Customer's account on Notice and verification that Developer failed to provide service according to Meet or Exceed Service Levels in the current month or any of the three prior months, according to that credit schedule.
Developer agrees to apply credits under Give Credits against Customer's obligations to pay fees under this agreement as soon as possible. Developer does not agree to refund any credits.
Developer agrees to refund any Prepaid Fees if this agreement ends under Ends with License Agreement.
Customer agrees to pay the license fees specified on the Order Form. Customer agrees to pay using the method specified on the Order Form. Customer agrees to pay all tax on fees under this agreement, except tax Developer owes on income.
Customer agrees to abide by any Service Limits.
Customer agrees to provide Developer support personnel the information they need to respond to Support Requests promptly.
This agreement does not license or assign any intellectual property right.
If the Order Form specifies a credit schedule, Customer's only legal remedy for failures to meet Developer's service-level agreement will be credits under Give Credits and any refund under Refund Prepaid Fees.
Neither side will be liable for any failure or delay in meeting any obligation under this agreement caused by:
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failure of the other side or its personnel to meet their obligations under this agreement
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actions done or delayed on written request of the other side
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fire, flood, earthquake, and other natural disasters
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declared and undeclared wars, acts of terrorism, sabotage, riots, civil disorders, rebellions, and revolutions
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extraordinary malfunction of Internet infrastructure, data centers, or communications utilities
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government actions taken in response to any of these causes
!!! Subject to Damages Limit Exceptions, neither side's total liability for breach of this agreement will exceed the amount Customer paid Developer under this agreement during the twelve months before the first claim is filed. This limit applies even if the side liable is advised that the other may suffer damages, and even if Customer paid nothing at all.
Limited Damages does not limit damages for breach of Pay Fees.
This agreement will continue for the initial term specified on the Order Form. If the Order does not specify an initial term, this agreement will continue for one year.
If the Order Form specifies automatic renewal, then this agreement will renew automatically for additional periods, each as long as the initial term.
If Customer licenses the Software from Developer, and Customer's rights to use the Software end during the term of this agreement, then this agreement ends with them.
Subject to Change Process:
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Customer may end this agreement at any time.
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If the Order Form specifies flexible pricing for increased Service Limits, Customer may increase its Service Limits within that flexible pricing at any time. Customer changes to Service Limits take effect as soon as Customer pays the additional fees.
Subject to Change Process:
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Developer may end this agreement when it would otherwise automatically renew by giving Notice at least 30 calendar days ahead of time.
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If Customer breaches this agreement, Developer gives Notice of the breach, and Customer does not cure the breach within 30 calendar days, Developer may end this agreement immediately.
Both sides agree that to give Notice under this agreement, the side giving Notice must send by e-mail to the address the recipient given with its signature, or to a different address given later for Notice going forward. If either side finds that e-mail can't be delivered to the e-mail address given, it may give Notice by registered mail to the address on file for the recipient with the state under whose laws it is organized.
Customer and Developer agree to make changes allowed under this agreement by Notice.
The law of the state of Developer's Address will govern this agreement
Both sides intend the Order Form and these terms as the final, complete, and only expression of their terms about licensing of the Software. However, this agreement does not affect any separate nondisclosure agreement Developer and Customer may have.
Only Developer and Customer may enforce this agreement.
Each side may assign all its rights, licenses, and obligations under this agreement, as a whole, to a new legal entity created to change its jurisdiction or legal form of organization, or to an entity that acquires substantially all of its assets or enough securities to control its management. Otherwise, each side needs Permission to assign any right or license under this agreement. Attempts to assign against the terms of this agreement will have no legal effect.
Lawsuit means a lawsuit brought by one side against the other, related to this agreement or the Software.
Developer's Local Courts means the state and federal courts with jurisdiction at Developer's Address.
Both sides agree to bring any Lawsuit in Developer's Local Courts.
Both sides consent to the exclusive jurisdiction of Developer's Local Courts. Both sides may enforce judgments from Developer's Local Courts in other jurisdictions.
Both sides waive any objection to venue for any Lawsuit in Developer's Local Courts and any claim that the other brought any Lawsuit in Developer's Local Courts in an inconvenient forum.
Each side agrees to pay the other side's costs of bringing any successful Lawsuit or collecting payment owed under this agreement.
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Customer Personnel means Customer's employees and each Customer subsidiary's employees, as well as independent contractors providing services to Customer.
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Notice means a written communication from one side to the other per Notice Process.
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Permission means prior Notice of consent.
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Prepaid Fees means fees Customer prepaid under this agreement for time remaining in the term of this agreement.
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Developer's Address means the address that Developer gives along with its signature to the Order Form.