CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE ACCEPTING THIS AGREEMENT. BY CLICKING ON THE 'ACCEPT' OR 'YES' BUTTON, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ACKNOWLEDGING YOUR AUTHORITY TO DO SO ON BEHALF OF YOUR COMPANY (IF APPLICABLE).
KAP IT, A FRENCH COMPANY WITH ITS PRINCIPAL PLACE OF BUSINESS AT 18 RUE DES GARDES, 91370 VERRIÈRES-LE-BUISSON, FRANCE (HEREINAFTER "KapIT") IS ONLY WILLING TO PROVIDE THE SERVICES TO YOU UNDER THESE TERMS AND CONDITIONS.
YOUR ACT OF CLICKING ON THE 'ACCEPT' OR 'YES' BUTTON WILL SIGNIFY YOUR AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE 'DO NOT ACCEPT' OR 'NO' BUTTON.
This Technical Support Agreement (the "Agreement"), made by and between KapIT and you (hereinafter "Customer") describes the terms and conditions pursuant to which KapIT shall maintain a software component (hereinafter the "Component").
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
"Affiliate" means, with respect to any person or entity ("Person"), any other Person that is controlled by Customer.
"Component" or "Product" means KapIT’s computer software program, excluding Third Party Software, deposited with the French “Agence pour la Protection des Programmes” under number 07.91.11864. A standard license or OEM license of the Component must be purchased by Customer in order to make this Agreement effective.
"Confidential Information" means all items identified as being confidential by the disclosing party, including: (i) any portion of the Component, in object and source code form, and any related technology, ideas, algorithms or any trade secrets; (ii) either party's business or financial information and plans; and (iii) the terms of this Agreement. "Confidential Information" will not include information that the receiving party can show: (a) is or becomes generally known or publicly available through no fault of the receiving party; (b) is known by or in the possession of the receiving party prior to its disclosure, as evidenced by business records, and is not subject to restriction; or (c) is lawfully obtained from a third party who has the right to make such disclosure.
"Documentation" means any user documentation, on any media, provided by KapIT for use with the Component including KapIT's on-line help files, standard manuals, program listings, data models, flow charts, logic diagrams, input and output forms, functional specifications, instructions and complete or partial copies of the foregoing.
"Error" means a defect that causes the Component not to perform substantially in accordance with the specification set forth in the Documentation and which can be reproduced by Customer and KapIT.
"Qualified Individual" means the individual appointed by Customer who is knowledgeable in the use and application of the Component to serve as primary contact between Customer and KapIT.
"Term" has the meaning given in Section 8.1.
"Third Party Software" means the computer program(s) (if any) required for the Component to operate.
"Update" means a set of the Component in which detected shortcomings are being remedied.
2. TECHNICAL SUPPORT SERVICES
2.1. Technical Support Services
KapIT shall provide Technical Support services to the Customer's Qualified Individual, concerning the use of the Component. KapIT shall answer information requests issued by Customer. The Technical Support includes first level support of Error management and second level support dedicated to bug fixing.
2.2. Error Correction
KapIT shall exercise commercially reasonable efforts to correct any Error reported by the Qualified Individual in the current, unmodified version of the Component in accordance with the Service Level Objectives hereunder.
Depending on the seriousness of the Error, KapIT shall, at its sole discretion, (i) provide the Error correction, or (ii) include the Error correction in the next Update.
2.3. Other Problems
If KapIT believes that a problem reported by Customer may not be due to an Error in the Component, KapIT will so notify the Qualified Individual. At that time Customer may: (i) instruct KapIT in writing to proceed with Error determination at Customer's own expense within a predefined budget or (ii) instruct KapIT that Customer does not wish the problem pursued at its own expense. If Customer instructs that KapIT proceed with problem determination at its own possible expense and KapIT determines that the problem was not due to an Error in the Component, Customer shall pay KapIT, at the consulting rates agreed between the parties, for all work connected to such determination, plus reasonable related expenses as incurred therewith. Customer shall not be liable for (a) problem determination or repair to the extent problems that are due to Errors in the Component; (b) work performed under this Section in excess of its instructions and (c) work performed after Customer has notified KapIT that it no longer wishes work on problem determination to be continued at its own possible expense (such notice shall be deemed given when actually received by KapIT). If Customer instructs KapIT that it does not wish the problem pursued at its possible expense or if such determination requires effort in excess of Customer's instructions, KapIT may, at its sole discretion, elect not to investigate with no liability therefor.
2.4. Assignment of Technical Support Services
KapIT shall have the right, at any time, to assign the Technical Support services hereunder to any assignee it deems appropriate after giving Customer three-month notice prior to assignment to a company other than KapIT and its subsidiaries. Customer has the option, upon 30-day notice to KapIT, to terminate support services and receive a refund for any unused technical support service fees if KapIT re-assigns support. Upon such assignment, KapIT shall remain responsible for the performance of its obligations as set forth herein.
2.5. Limitations to Technical Support
KapIT shall have no obligation to support: (i) altered, damaged or modified Component or any portion of Component incorporated with or into other software; (ii) Component problems caused by third party software malfunction, or by Customer's negligence, abuse, misapplication or use of Component other than that set forth in KapIT Documentation or other causes beyond the control of KapIT; or (iii) Component installed on any computer hardware not supported by KapIT. KapIT shall have no liability for any changes to hardware that may be necessary to use Component due to correction of the Error.
The Agreement does not entitle Customer to obtain subsequent versions of the Component.
2.6. Termination or Failure to Renew Product Technical Support
Termination of Technical Support or failure to renew will not affect the license of the Component. If Customer allows Technical Support to lapse, KapIT may thereafter renew said Technical Support, subject to payment of the then current Technical Support fees plus an amount equal to 50% of the aggregate Technical Support fees that would have been payable during the period of lapse.
2.7. Other Services
KapIT shall provide Customer with the following services and benefits:
- Direct access to support
- Defect tracker (JIRA)
- Information request
- Bug fixing
All other services not referred to in this Section 2 shall be charged separately according to the applicable KapIT's Professional Services tariffs.
3. TECHNICAL SUPPORT FEES
Technical Support Fees are set forth in Schedule A.
All amounts payable by Customer hereunder are exclusive of any taxes or other amounts, however designated, now or hereafter levied, including value added and withholding taxes which are levied in connection with this Agreement ("Taxes"). Customer shall bear and be responsible for the payment of all Taxes except for taxes on net income of KapIT.
5. WARRANTY AND LIMITATION OF LIABILITY
KapIT makes no warranties, whether express, implied, or statutory regarding or relating to the Component or the Documentation, or any services furnished or provided to Customer under any agreement. Specifically, KapIT does not warrant that the software will be error free or will perform in an uninterrupted manner. To the greatest extent allowed by law, KapIT specifically disclaims all implied warranties of merchantability, fitness for a particular purpose (even if KapIT had been informed of such purpose) with respect to the Component, the Documentation and services provided under any agreement, and with respect to the use of any of the foregoing.
5.2. Limitation of Liability
In no event shall KapIT be liable in connection with any matter arising out of or relating to this agreement, the performance, breach or delay in performance hereunder, or the termination hereof for:
- any loss of profits, loss of use, business interruption, loss of data, cost of cover or indirect, special, incidental or consequential damages of any kind; or
- any amount exceeding 150% of the aggregate of the Technical Support fees received by KapIT hereunder for the then current Term.
- The foregoing limitations shall not apply to KapIT's liability caused by (i) its gross negligence or willful misconduct or (ii) human body injury.
5.3. Disclaimer of Other Representations
No employee, agent, representative or Affiliate of KapIT has authority to bind KapIT to any oral representations or warranty concerning the Component. Any written representation or warranty not expressly contained in this Agreement is unenforceable.
6. PROPRIETARY RIGHTS
Customer acknowledges that ownership of and title in and to all intellectual property rights, including patent, trademark, service mark, copyright and trade secret rights, in the Component are and shall remain in KapIT. All Updates of the Component and Documentation shall be considered part of the Component and Documentation for purposes of this Section 6.
7. CONFIDENTIAL INFORMATION
Each party will protect the other's Confidential Information from unauthorized dissemination and use the same degree of care that such party uses to protect its own like information. Neither party will disclose to third parties the other's Confidential Information without the prior written consent of the other party. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement.
8. TERM AND TERMINATION
The initial term of the Agreement shall begin on the date of its acceptance by Customer.
Nevertheless, the Agreement shall only be effective if and when Customer acquires a standard or OEM license of the Component.
The Agreement shall remain in force for one (1) year, unless terminated pursuant to Section 8.2.
Upon expiration of the initial term, the renewal of this Agreement for successive terms of one (1) year shall be subject to the payment, in advance, of the Annual Renewal Fee by Customer.
The initial term and any renewal term may be referred to collectively in this Agreement as the "Term".
KapIT may, by written notice to Customer, terminate this Agreement, if any of the following occurs:
- Customer is in breach of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after KapIT gives Customer written notice of such breach; or
- Customer fails to pay the annual Technical Support fees as charged by the KapIT when due; or
- Customer terminated its business activities or becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
- The Customer may, by written notice to KapIT, terminate the technical support services if any of the following events occur:
- KapIT is in breach of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Customer gives KapIT written notice of such breach; or
- KapIT terminated its business activities or becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
8.3. Responsibilities Upon Termination
Nothing in the termination of this Agreement will affect:
- any indebtedness then owing by either party to the other, or
- any liability for damages resulting from an actionable breach.
8.4. No Harm Upon Termination
Except as otherwise expressly provided herein, upon the expiration or termination of this Agreement, Customer shall not be entitled to, and to the fullest extent permitted by law waives, any statutorily prescribed or other compensation, reimbursement or damages for loss of goodwill, clientele, prospective profits, investments or anticipated sales or commitments of any kind. In the event of any termination hereunder, Customer shall not be entitled to any refund of any portion of any monies that have been paid to KapIT.
8.5. Survival of Terms
The following terms shall survive any expiration or termination of this Agreement: Sections "Warranty and Limitation of Liability", "Proprietary Rights", "Confidential Information", "Term and Termination", "Construction and Interpretation" and "Enforcement of Agreement".
9. CONSTRUCTION AND INTERPRETATION
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, all of which together shall constitute one and the same instrument.
9.2. Section Headings
The Section headings contained herein are for convenience of reference only and shall not be considered as substantive parts of this Agreement. The use of the singular or plural form shall include the other form and the use of the masculine, feminine or neuter gender shall include the other genders.
In construing or interpreting this Agreement, the word "or" shall not be construed as exclusive, and the word "including" shall not be limiting.
9.4. Interpretation of Agreement
The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
Any notice, report, approval or consent required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by registered mail return receipt requested, or (c) sent by facsimile or e-mail, followed by a hard-copy confirmation, in each case forwarded to the appropriate address set forth herein. Either party may change its address for notice by written notice to the other party. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after posting or one (1) day after the moment of transmission by facsimile or e-mail.
11. ENTIRE AGREEMENT
The provisions of this Agreement, including its Schedule, constitutes the entire agreement between the parties with respect to the subject matter hereof, and this Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
12. COMMERCIAL REFERENCE
KapIT may use Customer's name and logo as a commercial reference in marketing materials such as brochures and presentations, such use being subject to Customer's approval, not to be unreasonably withheld; and Customer hereby grants such approval with respect to cases in which such use refers simply to Customer as a customer of KapIT using the Component.
13. ENFORCEMENT OF AGREEMENT
The provisions of this Agreement will be binding upon and shall inure to the benefit of the parties, their successors, and permitted assigns. Neither this Agreement nor any rights under this Agreement may be assigned, pledged, delegated or otherwise transferred by either party, in whole or in part, whether voluntary or by operation of law (including any direct or indirect change in the ownership or control of such party, sale of assets, merger or consolidation), without the prior written consent of the other party, except as follows:
- Either party may assign this Agreement to its Affiliate, provided that such party shall remain jointly and severally liable with such assignee for all of its obligations hereunder.
- Either party may assign this Agreement in connection with the sale of all or substantially all of its assets.
Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect or delay by a party to enforce the provisions of this Agreement or its rights under this Agreement will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to make subsequent action.
If any term, condition or provision in this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
13.4. Standard Terms of Customer
No terms, provisions or conditions or any purchase order, acknowledgment or other business form which the Customer may use in connection with the Component will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of KapIT to object to such terms, provisions or conditions.
13.5. Force Majeure
Except for the obligation to make payments, neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, floods, fire and explosions, but the inability to meet financial obligations is expressly excluded.
13.6. Governing Law
This Agreement will be interpreted and construed in accordance with the laws of France, without regard to conflicts-of-laws principles thereof.
ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE RESOLVED EXCLUSIVELY IN THE COURT OF PARIS (FRANCE).
This Schedule A is an integral part of the Agreement between KapIT and Customer.
The Technical Support fees for the first one-year period are included in the License Fee.
For subsequent years, they are included in the Annual Renewal Fee.
This Annual Renewal Fee shall be invoiced upon receipt of a renewal notice sent by Customer no later than the anniversary date of the Agreement. A reminder of the end of the Agreement will be sent to Customer by KapIT one month before the anniversary date. The Annual Renewal Fee shall be paid by Customer no later than ten days after the anniversary date of the Agreement (or ten days after receipt of KapIT’s invoice, if KapIT sends this invoice after the anniversary date).
Any expense related to travel and other incidentals incurred during the providing of technical support requested and authorized by Customer will be invoiced separately.
Following the first term, Technical Support fees will be increased each year as of each anniversary date of the Agreement, during the effectiveness of this Agreement, by a sum equal to the increase in the SYNTEC index.
Payment term is net 30 days from date of invoice.
2. SERVICE LEVEL OBJECTIVES
|Working hours||10:00 am - 08:00 pm UTC|
|Acknowledgement||Blocking Error: 4 hours |
Major Error: 1 day
|Qualification within||5 days|
|Resolution / Answer||Blocking Error: 10 days |
Major Error: 20 days
|Level of severity||Description|
|Blocking||Production application down or major malfunction causing business revenue loss resulting in majority of users unable to perform their normal functions|
|Major||Critical loss of application functionality or performance resulting in high number of users unable to perform their normal functions.|