Support and Maintenance Agreement

VIRTUNET SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT

This Software Support and Maintenance Agreement (the “Agreement”) sets forth the terms and conditions under which Virtunet, LLC. (“Virtunet”) is willing to provide Software support and maintenance to licensees of certain Virtunet Software (“Customers”).  By payment of the annual support fee, Customer hereby agrees to the following terms and conditions:

  1. DEFINITIONS
    1. “Current Products” means Software products which have not been retired by Virtunet, and for which Virtunet continues to provide bug fixes, patches and software updates, in addition to handling escalations and standard telephone, e-mail, and on-line support.
    2. “Error” is defined in Section 3.2(a).
    3. “Legacy Products” means Software products which have not been retired by Virtunet, a then-current list of which may be obtained from the support website located at www.virtunetsystems.com, and for which Virtunet continues to provide standard telephone, e-mail, and on-line support, but not bug fixes, patches and software updates.
    4. “Object Code” means computer software in a form not readily perceivable by humans and suitable for machine execution without the intervening steps of interpretation or compilation.
    5. “Patch(es)” means additional programming code to be integrated with the Software to correct an Error or alleviate its effects.
    6. “Software” means the Virtunet software product licensed to Customer pursuant to a Software License Agreement and for which the Customer has paid the applicable annual support fee, any Patches, Updates and Upgrades (if applicable), and any accompanying documentation provided by Virtunet.
    7. “Software License Agreement” is defined in Section 5.3.
    8. “Source Code” means computer software in human readable form that is not suitable for machine execution without the intervening steps of interpretation or compilation.
    9. “Support Term” means, subject to Virtunet’s receipt of Customer’s payment for the applicable annual Software support fee, the period commencing upon the effective date of Customer’s initial licensing of the Software pursuant to the Software License Agreement and continuing for an initial term that expires one (1) year thereafter, and for any one (1) year renewal terms agreed to in accordance with Section 6.1.
    10. “Training Materials” means all materials provided by Virtunet to Customer as part of the training services (if any) provided by Virtunet to Customer during the Support Term, including instructional materials, user manuals, software and related documentation.
    11. “Update” means a modification, correction or addition to the Software or documentation, including updates and enhancements (generally denoted by a change to one or more numbers to the right of the decimal point in the name of the Virtunet product) that Virtunet makes available for the Current Products to its commercial customers as a part of the standard support under a software support and maintenance agreement without additional charge.  The definition of “Update” excludes Upgrades.
    12. “Upgrade” means an enhancement or addition to the Software other than an Update (generally denoted by a change to one or more numbers to the left of the decimal point in the name of a Virtunet product) which Virtunet does not make available to its commercial customers as a part of the standard support under a software support and maintenance agreement but rather is only made commercially available for the Current Products subject to payment of a separate incremental license fee, upgrade charge or as part of a subscription license fee.
    13. “Workaround(s)” means a series of instructions, procedural steps or usage clarifications to avoid an Error or circumvent its effects.  A Workaround does not involve issuance of new programming code.
  2. TRAINING SERVICES.  If Customer requests Virtunet to provide training services with respect to the Software during the Support Term, Virtunet will use reasonable commercial efforts to provide such services at a time, location, and for the number of students agreed by the parties, at Virtunet’s then-current training fees.  If the training location is not a Virtunet facility, Customer will provide at its expense adequate facilities and equipment required for the training at the specified facility and reimburse Virtunet for its reasonable travel expenses in connection with the training provided at such facility.  If Customer postpones or cancels a training class, Virtunet may charge Customer Virtunet’s standard postponement or cancellation fees.  If Customer and Virtunet have executed a separate training services agreement, that agreement will govern Virtunet’s provision of training thereunder and the terms therein will supersede the training-specific terms in this Agreement.
  3. SUPPORT SERVICES. During the Support Term, Virtunet shall perform the following support services:
    1. Updates.  For each type of Current Product licensed by Customer, Virtunet will deliver to Customer one (l) copy of any Software Updates (or as applicable, Upgrades) in the form the Software was originally provided to Customer (i.e., Object Code or Source Code) and one (1) set of documentation Updates (or as applicable, Upgrades), as Virtunet makes such Updates (or as applicable, Upgrades) available for general release and to the extent such Updates (or as applicable, Upgrades) apply to Software covered by this Agreement.
    2. Errors.
      • (a) Error Correction.  For each type of Current Product licensed by Customer, Virtunet will use reasonable commercial efforts to remedy programming errors in the Software in the form provided by Virtunet that prevent the Software from substantially conforming to its specifications (“Errors”).  Such remedy may consist of corrected portion(s) of the Software, Patches, or communication to Customer of a Workaround that gives Customer the ability to achieve substantially the same functionality as would be obtained without the Error, as determined by Virtunet.
      • (b) Notice of Errors.  Customer shall provide Virtunet with notice of Software problems by telephone (via the Virtunet support phone number), by e-mail sent to [email protected], or through another contact designated by Virtunet.  Such problem notice will contain sufficient information on computer-readable media, if practicable, for Virtunet to reproduce the problem.
    3. Telephone/E-mail Support for Current Products. For Current Products, Virtunet will provide reasonable telephone and email technical support during Virtunet’s normal business hours as follows:
      • (a) Virtunet will provide reasonable assistance to Customer to determine if a problem Customer is encountering is attributable to an Error, and will address Errors in accordance with Section 3.2(a).
      • (b) Virtunet will answer questions concerning installation of Software as originally delivered by Virtunet
      • (c) Virtunet will provide reasonable assistance to Customer to resolve Customer’s problems that occur during normal usage of the Software.  Notwithstanding the foregoing, if Virtunet determines that Customer requires ongoing help with a particular problem that is not caused by an Error, or that the resolution to such a problem involves customization of the Software, Virtunet may, at its sole discretion, refer Customer to Virtunet’s professional services support group for assistance, for which Virtunet requires an additional fee.
    4. Telephone/E-mail Support for Legacy Products. For Legacy Products, Virtunet will provide reasonable telephone and email technical support during Virtunet’s normal business hours as follows:
      • (a)   Virtunet will answer questions concerning installation of Software as originally delivered by Virtunet.
      • (b) Virtunet will provide reasonable assistance to Customer to resolve Customer’s problems that occur during normal usage of the Software.  Notwithstanding the foregoing, if Virtunet determines that Customer requires ongoing help with a particular problem that is not caused by an Error, or that the resolution to such a problem involves customization of the Software, Virtunet may, at its sole discretion, refer Customer to Virtunet’s professional services support group for assistance, for which Virtunet requires an additional fee.
  4. SUPPORT LIMITATIONS
    1. Discontinued/Obsolete Software.  Virtunet will have no obligation to provide services for versions of a Software product or any portions, aspects or components thereof, that have been declared obsolete or discontinued by Virtunet for one (1) year or more, or that have been superseded by an Upgrade, if one (1) year after such Upgrades have been released such Upgrades have not been licensed and installed by Customer. Virtunet shall have no obligation to support Software that has not been maintained to the latest Update or Patch, if one (1) year after such Update or Patch has been released such Update or Patch has not been installed by Customer.
    2.  General Limitations.  Virtunet shall have no obligation to investigate or correct problems (including Errors) that cannot be reproduced by Virtunet based on information provided by Customer, that are due to a breach by Customer of the terms of the Software License Agreement, or that cannot be remedied due either to the operational characteristics of the computer equipment on which the Software is used or to modifications to the Software made by Customer or any third party.  If Virtunet agrees to correct any problems not covered by this Agreement, Customer shall pay Virtunet for all such work performed at Virtunet’s then-current standard time and materials charges. Such amount shall be due and payable within thirty (30) days of the applicable Virtunet invoice date.
    3. Services.  Virtunet shall have no obligation to provide support for any Virtunet professional services, including any software that Customer may receive as part of such services.
  5. CUSTOMER RESPONSIBILITIES.
    1. Notice and Assistance.  Customers receiving support for Current Products shall notify Virtunet of Software problems in accordance with Section 3.2(b).  Customer shall provide relevant information as requested by Virtunet as well as sufficient support and test time on Customer’s computer system to determine if a problem is attributable to an Error and, if applicable, to correct any Errors and to determine if an Error has been corrected.
    2. Updates.  If Customer is entitled to receive Updates in accordance with Section 3.1, Customer shall incorporate the Updates as soon as practicable and acknowledges that failure to incorporate any such Update may make subsequent Updates unusable.
    3. Contact.  Customer must designate a named contact person and an alternate contact person for each Customer installation, which contact person shall submit problem reports and receive all corrections, Updates, Patches, Upgrades, Workarounds, correspondence and other communications, as applicable, concerning the Software. Customer shall notify Virtunet, in writing, of any change in the contact person or the alternate contact person.
    4. License Compliance; Use Restrictions.  Subject to Section 8, Customer acknowledges that the Updates, Patches and any other software, as applicable, provided to Customer pursuant to this Agreement are subject to the terms and conditions of the license agreement pursuant to which Customer initially obtained the applicable Software (“Software License Agreement”) and Customer agrees to abide by those terms and conditions. Customer may use the Training Materials solely for its internal development activities related to the Software. Customer may not copy, modify, distribute or disclose to third parties the Training Materials.
  6. TERM AND TERMINATION.
    1. Term.  Virtunet shall provide support as described in this Agreement during the Support Term.  After the initial term, this Agreement may be renewed for additional one (1) year terms upon payment by Customer of the then-current annual support fee, unless either party gives written notice to the other party at least thirty (30) days prior to the expiration of the then current one (1) year term of its intent not to renew this Agreement.  The duration of any training services provided during the Support Term will be agreed by the parties in writing.
    2. Termination.  Either party may terminate this Agreement if the other party materially breaches its obligations hereunder and fails to cure such breach within thirty (30) days of the non-breaching party’s written notice thereof (except for breaches of Section 8 or Section 9, for which there is no cure period).  Virtunet may terminate this Agreement upon the occurrence of any event which would permit Virtunet to terminate the Software License Agreement or any other agreement between Virtunet and Customer. In the event of termination or expiration of this Agreement, all fees or charges then due and payable, or to become due and payable in the future based upon services already rendered, shall be immediately due and payable and Customer’s obligations to pay such amounts shall survive the termination of this Agreement.  The following sections shall survive any expiration or termination of this Agreement: Sections 5.4, 6.2, 7, 8, 9, 10, 11 and 12.
  7. FEES AND PAYMENT. Customer shall pay to Virtunet the applicable annual support fees for the Software and the training fees (if any).  Support fees shall be payable annually in advance, within thirty (30) days after the date of the applicable Virtunet invoice, and shall accrue commencing upon the date the Software was licensed by Customer pursuant to the Software License Agreement. Training fees shall be payable within thirty (30) days after the date of the applicable Virtunet invoice. Virtunet may charge interest in the amount of one and a half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is less, from the due date until paid for all fees not paid when due. Upon at least sixty (60) days notice to Customer prior to the commencement of any renewal support term, Virtunet shall have the right to change the support fees that will apply during such renewal term.  All fees are exclusive of taxes, and Customer shall pay all sales, use, services or other similar taxes, if any, applicable to the fees. If Customer purchases support for any copy of the Software Customer has licensed from Virtunet, Customer must purchase support for all copies of such Software Customer has licensed from Virtunet.
  8. PROPRIETARY RIGHTS;  All software and Training Materials delivered under this Agreement (including Updates, Patches, and Upgrades, as applicable) and any modifications thereto shall be owned by Virtunet.
  9. CONFIDENTIAL INFORMATION.  In the event either party obtains access to the Confidential Information (defined below) of the other party in the course of performing this Agreement, the party obtaining such information shall maintain the confidentiality of such information in the same manner it maintains the confidentiality of its own similar Confidential Information, but in no event with less than reasonable care.  “Confidential Information” of either party means any information disclosed on written or magnetic media during the Support Term that is marked “confidential” or with a similar legend at the time of disclosure to the receiving party.  Notwithstanding the foregoing, all Updates, Patches, Upgrades, Workarounds, Training Materials and any software that may be provided by Virtunet pursuant to this Agreement shall be deemed Confidential Information without regard to whether such items are marked “confidential” or with a similar legend.  Confidential information shall not include any information that is (a) published or otherwise available to the public other than by breach of this Agreement; (b) rightfully received by the receiving party from a third party without confidentiality limitations; (c) independently developed by the receiving party without reference to the Confidential Information; (d) known to the receiving party prior to its first receipt of same from the disclosing party; or (e) hereinafter disclosed by the disclosing party to a third party without restriction on disclosure.  If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of the receiving party, the receiving party shall promptly notify the disclosing party of the order or request and permit the disclosing party (at its own expense) to seek an appropriate protective order.  This Agreement shall not be construed to prohibit, and Virtunet shall be entitled to use for any purpose, including without limitation use in development, manufacture, promotion, sale, support and maintenance of Virtunet’s or its customers’ products and services any information received from Customer in association with the support services described in this Agreement that may be retained as know how, ideas, processes or expertise in the unaided memories of Virtunet’s personnel.
  10. DISCLAIMER. VIRTUNET AND ITS LICENSORS PROVIDE NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS RELATED TO THE UPDATES, PATCHES, UPGRADES, WORKAROUNDS, TRAINING MATERIALS OR ANY SERVICES THAT MAY BE PROVIDED HEREUNDER.
  11. LIMITATION OF LIABILITY.  VIRTUNET AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY KIND ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS, LOSS OF PROFITS, OR THE LIKE) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY EVEN IF VIRTUNET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL VIRTUNET’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID TO VIRTUNET BY CUSTOMER HEREUNDER.
  12. GENERAL. Customer shall not export or re-export any software or Training Materials received pursuant to this Agreement in violation of the export control laws of the United States and/or any other jurisdiction.  This Agreement will be governed in all respects by the laws of the State of Delaware without regard to conflict of principles of laws. All disputes arising under this Agreement shall be brought in Superior court of the State of California in Santa Clara County or the Federal District Court of San Francisco, California as permitted by law. If any legal action or proceeding is brought for the enforcement of this Agreement, or because of any alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which such party may be entitled. If any provision or provisions of this Agreement are determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not in any way be affected or impaired thereby. This Agreement may not be assigned, sub-licensed, or otherwise transferred by Customer without Virtunet’s prior written consent.  Nothing contained herein shall be construed as creating any agency, employment relationship, partnership, principal-agent or other form of joint enterprise between the parties.  This Agreement constitutes the complete, final and exclusive statement of the agreement between Virtunet and Customer, which supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement.  No waiver, alteration or modification of the provisions of this Agreement will be valid unless made in writing and signed by a corporate officer of Virtunet. Each party agrees that use of pre-printed forms, such as purchase orders or acknowledgements, is for convenience only and all terms and conditions stated thereon are void and of no effect.

Should you have any questions concerning this Agreement, please write: Virtunet LLC, 1900 S Norfolk St, Ste 350, San Mateo CA 94403, USA.

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