Technical Support Assistance and Consulting Agreement
By accepting this Agreement and subject to the terms and conditions of this Agreement, including those terms and conditions that are set forth on the website located here (“Service Provider’s WebSite”) that are incorporated herein by reference, Service Provider agrees to provide certain technical support services (“Services”) to the Customer in connection with the Customer’s use of authorized versions of specific software (“Supported Software”) for which Service Provider is prepared to provide support.
1. Technical Support Services
Service Provider will provide an Internet-based support system (“Support HelpDesk”) generally available seven (7) days a week according to working hours on the Service Provider’s WebSite (https://secure.x-cart.com/).
Service Provider will establish and maintain an organization and process to provide assistance for the Supported Software to Customer. Assistance shall include (i) diagnosis of the deficiencies of the Supported Software and (ii) a resolution of the deficiencies of the Supported Software.
Service Provider will use its best efforts to cure, as described below, reported and reproducible errors in the Supported Software. Service Provider utilizes the following two (2) priority levels to allow Customer to categorize reported problems:
PRIORITY 1 – NORMAL REQUEST
Service Provider will commence work on resolving the deficiency within twenty four (24) hours of notification and will engage staff during business hours until an acceptable resolution is achieved.
PRIORITY 2 – HOTRUSH REQUEST
Service Provider will commence work on resolving the deficiency within twelve (12) hours (Monday-Friday) or within twenty four (24) hours (Saturday and Sunday) of notification and will engage staff during business hours until an acceptable resolution is achieved. Priority will be given to Hot Rush requests over Normal requests.
Service Provider will establish and maintain an organization and process to provide consulting for the implementation or use of the Supported Software to Customer. Service Provider utilizes the following two (2) priority levels to allow Customer to categorize the request:
PRIORITY 1 – NORMAL REQUEST
Service Provider will provide an initial response regarding the request within twenty four (24) hours.
PRIORITY 2 – HOTRUSH REQUEST
Service Provider will provide an initial response regarding the request within twelve (12) hours (Monday-Friday) or within twenty four (24) hours (Saturday and Sunday). Priority will be given to Hot Rush requests over Normal requests.
During the term of this agreement, Service Provider will provide the Customer with copyrighted patches, updates, releases and new versions of the Supported Software along with other generally available technical material. These maintenance materials including the Supported Software may not be used to increase the licensed number of versions or copies of the Supported Software. The Customer agrees not to use or transfer the prior version but to destroy or archive the prior version of the Supported Software. All patches, updates, release and new versions shall be subject to the license agreement related to the Supported Software.
2.1 Support Fees
Customer shall pay the fees (“Support Fees”) for the Services purchased by Customer in accordance with Service Provider’s Pricing that is incorporated into this Agreement by reference. Service Provider may change its Pricing and the fees for its Services from time to time. Service Provider’s changes to the Pricing are effective upon publishing on the Service Provider’s WebSite.
The Support Fees may include recurring fees for the subscription-based services which may be offered as as part of Services. Service Provider will bill Customer by credit card, ACH, or invoice for all such services, generally within the first week of each month.
All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and Customer shall be responsible for payment of all such taxes (other than taxes based on Service Provider’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Supported Software and performance of the Services hereunder.
3. Customer Responsibilities
Customer shall always supply support requests in written form using the Support Helpdesk. Customer shall provide to Service Provider all data that is relevant for resolving each support request. Relevant data may include, but is not limited to, log files, database dumps, program scripts, descriptions of the hardware and software environment, examples of inputs, and expected and actual outputs.
Customer acknowledges that it is the sole responsibility of the Customer, at all times, including specifically during all service functions performed by Service Provider pursuant to this Agreement and undertaken on the Customer’s local installation of the Supported Software, to protect and maintain an up-to-date and restorable backup of any and all databases, files, utilities, software and other systems which Service Provider’s staff may directly access or in connection with which Service Provider’s staff may offer advice. Customer represents and warrants to Service Provider that it:
(a) is engaged in a lawful business enterprise;
(b) can form legally binding contracts and is authorized to enter into this Agreement; and
(c) is in compliance with all applicable laws appropriate to its location of business and nature of work.
4. Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SERVICE PROVIDER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUPPORTED SOFTWARE, CORRECTIONS AND THE SERVICES PROVIDED HEREUNDER, INCLUDING PROMISES, REPRESENTATIONS AND WARRANTIES AS TO CONDITION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTY OF INFORMATION CONTENT OR SYSTEM INTEGRATION.
Without limiting the generality of the foregoing disclaimer, Service Provider does not warrant that its advice or programming on behalf of the Customer will be error free.
For a period of 4 (four) months following delivery of the Assistance Service Service Provider shall have an obligation to correct demonstrated errors in the operation of the Supported Software which may appear as a result of incorrect provision of the Assistance Service.
SERVICE PROVIDER SHALL NOT HAVE ANY OBLIGATION TO CORRECT ERRORS IN THE OPERATION OF THE SUPPORTED SOFTWARE IF THE PROGRAMMING CODE HAS BEEN MODIFIED BY CUSTOMER OR BY ANY OTHER PARTY.
5. Limitation of liability
Service Provider disclaims all liability whatsoever to the Customer or any other party for any act or omission that may result in consequential, indirect, incidental, special or such other damages including but not limited to, any damage for lost profits, loss of data or loss of business, even if Service Provider has been advised of the possibility of such damages.
In no event shall the liability Service Provider to the Customer for any claim whatsoever related to this Agreement exceed the total amount of Support Fees paid for the Services that gave rise to the claim within the calendar year during which the claim arose.
This Agreement shall have an initial term of 1 (one) year from the Effective Date, and shall thereafter automatically renew for successive 1 (one) year period, unless earlier terminated in accordance with the terms of this Agreement. The Customer may terminate this Agreement, without cause by ceasing to use The Services, or by deactivating their subscription.
Upon termination of this Agreement, Service Provider shall have no further obligation to provide any Services hereunder to Customer. Upon termination, there will be no refund provided to Customer except as set forth in the Moneyback Policy, that is incorporated herein by reference, and all outstanding fees owed by Customer shall become immediately due and payable.
Termination of this Agreement shall not affect any obligation owed by one party to the other party that have accrued prior to such termination.
7.1 Governing law
This agreement (and any dispute or claim relating to it or its subject matter) is governed by and is to be construed in accordance with the laws of the Republic of Cyprus. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Nicosia, Cyprus.
7.2 Force majeure
Except for the payment of any fees due and payable under this Agreement, neither party’s delay in the performance of any duties or obligations under this Agreement will be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, failures in electric power or telecommunications services, or any other event beyond the control of the party.
Customer shall not assign, transfer or delegate this Agreement or any rights or obligations hereunder. Any assignment, transfer or delegation in contravention of the foregoing provision shall be null and void. Customer agrees that this Agreement may be assigned by Service Provider, in Service Provider’s sole discretion.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
Both the Customer and the Service Provider agree that while this Agreement is in force and for a period of twelve (12) months thereafter, they shall not directly or indirectly solicit or offer employment to any of the other’s officers, employees, third party contractors and associates who have been involved in or associated with this Agreement without the other’s prior written consent.
Except as explicitly stated otherwise, any notification or written communication required by or contemplated under the terms of this Agreement shall be in writing and shall be deemed to be delivered via Support Helpdesk (https://secure.x-cart.com).
7.7 Additional terms
The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to the Services offered by Service Provider:
(a) Service Provider’s Pricing
(b) Moneyback Policy