Maintenance Support Agreement
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This Schedule ("Schedule") governs the Support and Maintenance Services provided by WhizAI in connection with Customer’s use of the Software (the "Support and Maintenance Services")
1.1. Error: a reproducible failure of the Software to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to a single cause.
1.2. Incident: a request for support that begins when Customer provides WhizAI with a Support Ticket with respect to one specific Error and ends when WhizAI either: (a) Resolves the Error; or (b) determines in its reasonable discretion that the Error cannot be Resolved.
1.3. Incident Backlog: is a list containing all the Errors that have been accepted by WhizAI for which the solution has not yet been planned.
1.4. Maintenance Release: any update, upgrade, release or other adaptation or modification of the Software, which may contain, among other things, patches, bug-fixes, Error corrections, enhancements, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software.
1.5. Normal Business Hours: Monday through Friday 9am – 6pm EST except U.S. bank holidays.
1.6. Resolve: the provision of: (a) Support and Maintenance Services that, in WhizAI's reasonable discretion, corrects the Error; (b) information to Customer that corrects the Error; (c) information to Customer on how to obtain a solution that corrects the Error; (d) notice to Customer that the Error is caused by a known, unresolved issue or an incompatibility issue with the Software; (e) information to Customer that identifies the Error as being corrected by an upgrade in the Software; or (f) notice to Customer that the Error has been identified as arising out of or resulting from a Service Exception (as defined herein). “Resolution” has a correlative meaning.
1.7. Respond: WhizAI's initial communication with Customer, whether by telephone, e-mail or otherwise, acknowledging Customer's request for Support and Maintenance Services in connection with a specific Error. "Response" has a correlative meaning.
1.8. Severity Level One Incident: an Error that causes the Software to not operate and which has a critical impact on Customer's business operations such that (a) it has affected or could affect the entire user community, (b) data integrity has been compromised, (c) there has been a complete crash of the system, and/or (d) it otherwise has cause an interruption in the Software’ primary functions.
1.9. Severity Level Two Incident: an Error that results in a lack of Software functionality that significantly affects material, but not essential, aspects, of Customer’s business operations, such that processing can continue on a limited basis, but with a high risk to data integrity and/or significant interruption to critical processes.
1.10. Severity Level Three Incident: an Error resulting in malfunctioning or abnormal behavior of the Software that does not substantially affect Customer's business operations.
1.11. Severity Level Four Incident: an Error resulting in minimal or no interruptions to normal business operations; this level is comprised primarily of Customer inquiries, including questions pertaining to API’s, integrations, configuration, enhancement requests and Documentation.
2. SUPPORT AND MAINTENANCE SERVICES.
2.1. Subject to the terms and conditions of the Agreement, and conditioned on Customer's and its Authorized Users’ compliance therewith, during the Term, WhizAI will provide the Support and Maintenance Services to Customer; provided, however, that WhizAI is not responsible for any delay or failure of performance caused in whole or in part by any delay or failure to perform any of Customer's obligations under the Agreement.
2.2. WhizAI shall provide to Customer, without any additional charge, the following Support and Maintenance Services (as described in further detail in this Schedule):a) Support. WhizAI shall provide support in connection with Incidents, and the identification, diagnosis and Resolution of Errors, including: (i) e-mail assistance; ;(ii) remote troubleshooting, via conference calls, and analysis; and (iii) access to Documentation (together, "Incident Support").b) Maintenance Releases. WhizAI shall provide to Customer access to all Major, Minor and Basic Maintenance Releases (as defined below) to the Software.3. INCIDENT SUPPORT RESPONSE TIME.
3.1. During the Term, WhizAI shall use commercially reasonable efforts to Respond to Incidents reported by Customer within the following time frames: a) Severity Level One Incident: Within two Normal Business Hours of WhizAI's receipt of Customer's Support Ticket for such Incident. In the event of a Severity Level One Incident, WhizAI will make all commercially reasonable efforts to provide a temporary code patch as soon as practicable and to assign WhizAI's personnel to address the Incident. b) Severity Level Two Incident: Within four Normal Business Hours of WhizAI's receipt of Customer's Support Ticket for such Incident. A Severity Level Two Incident will be added to the Incident Backlog and assigned the highest priority for Resolution. c) Severity Level Three Incident: Within one Business Day of WhizAI’s receipt of Customer’s Support Ticket for such Incident. A Severity Level Three Incident will be added to the Incident Backlog and Resolved based on the relative severity and priority of outstanding Incidents, in the sole discretion of WhizAI. d) Severity Level Four Incident: Within a reasonable time after WhizAI's receipt of Customer's Support Ticket for such Incident. A Severity Level Four Incident will be added to the Incident Backlog and Resolved based on the relative severity and priority of outstanding Incidents, in the sole discretion of WhizAI.
4. CUSTOMER ACKNOWLEDGES AND AGREES THAT, AS PART OF THE INCIDENT SUPPORT PROVIDED TO CUSTOMER,WHIZAI MAY PROVIDE REMOTE TROUBLESHOOTING SERVICES, IN THE FORM OF CONFERENCE CALLS, TO CUSTOMERTO ASSIST IN ANALYZING AND RESOLVING ANY INCIDENT. MAINTENANCE RELEASES.
4.1. During the Term, WhizAI will provide Customer with access to the following Maintenance Releases to the extent created and generally released to other customers who purchase a subscription to the Software: a) “Major Maintenance Release” means a Maintenance Release that provides a significant departure from the previous version of the Software, impacting substantially its features and functionality, including significant new and/or varied functions, significant code rewrites, and/or substantial or complete bug fixes to the immediately preceding Major Maintenance Release and any subsequent Minor Maintenance Release or Basic Maintenance Release. Incident Support will be provided only for the current Major Maintenance Release and the immediately preceding Major Maintenance Release.
b) “Minor Maintenance Release” means a Maintenance Release with a minimal impact on the features and functionality of the Software, and which may include minor new functions and/or bug fixes to the immediately preceding Minor Maintenance Release. Incident Support will be provided only for the current Minor Maintenance Release and the immediately preceding Minor Maintenance Release, or until the next Major Maintenance Release.
c) “Basic Maintenance Release” means minor bug fixes and patches for known errors and does not include any new functions. Incident Support will be provided only for the current Basic Maintenance Release or until either the current Minor Maintenance Release or Major Maintenance Release has been replaced by a subsequent Minor or Major Maintenance Release.
5. SUPPORT AND MAINTENANCE SERVICES CHANGES.
5.1. WhizAI may, in its sole discretion, change any aspect of the Support and Maintenance Services or performance thereof on 30 days' prior written notice to Customer, provided that no such change materially reduces or otherwise has a material adverse effect on the: (a) WhizAI's level of effort in performing the Support and Maintenance Services; (b) WhizAI's obligation to provide the Support and Maintenance Services under this Schedule; or (c) Customer's rights under the Agreement or thisSchedule.
5.2. WhizAI may, in its reasonable discretion, perform any of the Support and Maintenance Services by or through third parties, who will be subject to the terms of this Agreement, or any other WhizAI's personnel.
6.1. Unless otherwise stated in this Agreement, WhizAI has no obligation to provide Support and Maintenance Services relating to Errors that, in whole or in part, arise out of or result from any of the following (each a "Service Exception") :
a) any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer's use in the Documentation, unless otherwise expressly permitted in writing by WhizAI;
b) any negligence, abuse, misapplication or misuse of the Services;
c) any delay or failure by Customer to perform any of Customer's obligations, including its obligation to promptly install any Maintenance Release that WhizAI has previously made available to Customer;
d) any relocation, installation or integration of the Software other than by WhizAI personnel;
e) any Open-Source Components, beta software, software that WhizAI makes available for testing or demonstration purposes, temporary software modules or software for which WhizAI does not receive a license fee;
f) the operation of, or access to, Customer's or a third party's system or network;
g) any breach of or noncompliance with any material provision hereof by Customer or any of its representatives; or h) any Force Majeure Event (including abnormal physical or electrical stress).
7.1. The Support and Maintenance Services do not include training of any kind with respect to the Services. Training or consultant services will be subject to the parties agreeing on such professional services in a separate agreement.
7.2. WhizAI will use commercially reasonable efforts to: (a) Respond within the applicable Response time provided herein; and (b) Resolve an Incident, but does not guarantee that it will be able to Respond within that specific time period or that any Incident will be Resolved.
7.3. WhizAI is not responsible for any delay or failure of performance caused in whole or in part by any delay or failure to perform any of Customer's obligations under the Agreement.
8. CUSTOMER OBLIGATIONS.
a) Customer shall promptly notify WhizAI of any Error and provide WhizAI with:
− specific details of the nature and circumstances of such Error,
− Customer’s perceived Incident severity level for such Error; and
− any information required
b) Customer shall provide Notification to WhizAI by submitting a support ticket (each a “Support Ticket”) to WhizAI, by emailing such Notification to: email@example.com.
c) Customer shall provide separate Support Tickets for each individual Error. An Error that can be divided into subordinate Errors shall be submitted on separate Support Ticket for each subordinate Error.
a) Customer shall set up, maintain and operate in good repair and in accordance with the Documentation all necessary equipment, as well as all environmental conditions and components, including all networks, systems and hardware, in or through which: (a) the Services operate; and/or (b) Customer accesses or uses any of the Support and Maintenance Service.
a) In connection with the performance of the Support and Maintenance Services, Customer shall provide WhizAI personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable WhizAI to perform its obligations(including the provision of the Support and Maintenance Services.
a) Customer shall provide WhizAI with all information reasonably requested by WhizAI from time to time relating to Customer's use of the Services.
8.5. Data Back-up
a) Customer agrees to regularly back up all data, files and information (and in any event prior to the performance of any Support and Maintenance Services or installation of any Maintenance Release) and hereby assumes sole responsibility for any lost or altered data, files or information.
8.6. Technical Contact.
a) Customer shall designate and maintain throughout the Term at most two individuals to serve as its primary point of contact for day-to-day communications, consultation and decision-making regarding the Support and Maintenance Services (each, a "Technical Contact").b) The Technical Contact(s) shall be the sole contact(s) between Customer and WhizAI in connection with day-to-day matters relating to the provision of Support and Maintenance Services and be responsible for reporting Incidents, providing day-to-day consents and approval son behalf of Customer, and communicating with and providing timely and accurate information and feedback to WhizAI in connection with the Support and Maintenance Services. Customer shall ensure its Technical Contact(s) have the requisite organizational authority, skill, experience and other qualifications to perform these duties. Customer's initial Technical Contact(s) are identified in the Order Form to the Agreement. Customer shall use commercially reasonable efforts to maintain the same Technical Contact(s) in place throughout the Term and provide at least 30 days' prior written notice to WhizAI of any replacement or change in the name or contact information of any Technical Contact.
8.7. Current Release.
a) Except if otherwise agreed by WhizAI in writing, Customer must run only the current release level of the Software that WhizAI has made available to Customer. Customer shall install all Maintenance Releases as soon as reasonably possible but not more than 30 days from the date they are made available by WhizAI, unless otherwise agreed with WhizAI.