SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT

The SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT (“Agreement”) is executed by and between SMRTR, Inc. (“LICENSOR”) and Software Licensed Customer (“LICENSEE”).  This Agreement is executed for providing Maintenance and Support services to the LICENSEE who has executed Software License Agreement(s) (“License Agreement”), with the LICENSOR for Use of a Licensed Products; or has purchased a Maintenance and Support service from LICENSOR for a third-party product.

SUPPORT HOURS

LICENSOR will provide LICENSEE with telephone and web-based support 24 hours a day, seven day a week. Expect some delays after normal business hours and nationally recognized holidays.  After hours and holidays support should be used when issues are production critical. Normal business hours are from 0700 am Pacific Time to 1600 (4:00 pm) Pacific Time.

CONTACT INFORMATION 

LICENSEE may contact LICENSOR at https://smrtrsolutions.com/help/ or for email support, LICENSEE may contact LICENSOR at support@smrtrcms.com. For telephone support, LICENSEE may contact LICENSOR at (800) 231-5280 (US and Canada) or +1 (949) 366-5234 (Outside US and Canada).           

 PRICE, TERMS and TERMINATION

The Maintenance and Support Services and the terms shall be applicable to “LICENSEE” only after signing this Agreement by paying the requisite Maintenance and Support as stated in the product order form or annual renewal invoice and all applicable taxes in advance.  Maintenance and Support Services are included with a Subscription License when the licensing fees are paid in advance.  This Agreement stipulates the terms and conditions in adherence to which LICENSOR shall provide certain Maintenance and Support Services to LICENSEE. The terms of this Agreement shall supplement the terms of the License Agreement. In the event of any direct conflict between the terms of this Agreement and the License Agreement, the terms of the Software Maintenance and Support Agreement shall supersede and have control. The services under this Agreement do not include any improvements, customizations or modifications made by, or for, the LICENSEE to the Licensed Product unless otherwise agreed to in a written agreement executed by LICENSOR and LICENSEE. Without such an agreement, modification of the Licensed Product is strictly prohibited. The term of this Agreement shall commence on the date set forth above and shall remain in force for one (1) year or for the applicable term of the Subscription License. Thereafter, for the holder of a Perpetual License the Annual Software Maintenance and Support shall be automatically renewed for successive one-year terms subject to LICENSEE’S payment of the Annual Software Maintenance and Support fee on or before the expiry of one year from the date of this Agreement or before the expiry of any successive renewal terms, whichever applicable (“Anniversary Date”). In the event that LICENSEE fails to pay the Annual Software Maintenance and Support fee on or before the Anniversary Date, this Agreement shall be deemed automatically terminated.  The Failure to renew by the holder of a Perpetual License will result in  LICENSEE not being eligible to receive technical support, upgrades, and maintenance from LICENSEE. For any Subscription License, irrespective of the term,  a  failure to pay the Subscription License fee will result in the termination of all Software Maintenance and Support services.     At the LICENSOR’S option and subject to the payment by LICENSEE of the accrued Software Maintenance and Support Fee for the period in which there was no Maintenance and Support coverage; this Agreement may be reinstated after such termination. “Maintenance and Support coverage” shall mean the duration of time between the date of termination and the date of Maintenance and Support reinstatement. This Agreement shall be deemed to be terminated on i) 30 days’ written notice of termination by LICENSEE or ii) 30 days’ written notice of termination prior to renewal of this Agreement by LICENSOR.

LICENSEE RESPONSIBILITIES

LICENSOR’s provision of support to LICENSEE is subject to LICENSEE’s compliance with the following:

LICENSEE shall provide LICENSOR with access to LICENSEE’s personnel, required equipment and systems if a problem LICENSEE is experiencing cannot be reasonably duplicated at LICENSOR’s support facilities. LICENSEE shall document and promptly report all errors or malfunctions of the Software to LICENSOR.    LICENSEE shall maintain a current backup copy of all Software and related data. LICENSEE shall train (or have trained by LICENSOR) its personnel in the use and application of the Software. LICENSEE should provide, in a reasonable amount of time, job logs, artifacts, trace files, screen shots or any other requested information. LICENSEE shall be responsible to reimburse all reasonable and ordinary costs that are incurred by the LICENSOR for any onsite assistance that is requested in writing by LICENSEE including travel, boarding and lodging.

DEFINITION OF ISSUE SEVERITY

 Level 1: Means that the Software is not functioning.  Some examples of Level 1 errors are as follows:

Software is down impacting the production environment; Software is not able to communicate with external systems and other processing are halted; or Software is generating a data corruption condition that halts other processing.

Level 2:  Means that the Software is running but LICENSEE is unable to use a major feature or functional component of the Software.  Some examples of Level 2 issues are a major feature or functional component of the Software is unavailable.

Level 3: Means that the Software is operating close to normal, but there is a non-critical Product defect for which either a temporary fix or work-around exists that can be provided to the LICENSEE or LICENSOR can create and will provide such a fix or other work-around.

SERVICE LEVEL FOR TECHNICAL SUPPORT

Severity of the issue dictates response times.  All response times are contingent upon LICENSEE providing requested information to support personnel in a timely manner.

Severity	Response Time	Resolution Objective
Level One	2 Hour	4 Hours
Level Two	4 Hours	1 – 2 Days
Level Three	1 Day	3 – 5 Days

PROCESSES FOR ISSUE RESOLUTION

All response times are contingent upon LICENSEE providing requested information to support personnel. It is the LICENSEE’s responsibility to allow access to the system and to have appropriate personnel available with the necessary authority.

Level 1

1. LICENSOR shall take immediate steps to solve the issue. LICENSOR shall work on a twenty-four (24) hour basis until the issue is resolved.  If necessary, LICENSOR shall reassign staff from lower severity level issues to service Level 1 software issue.
2. When a Level 1 software issue is reported, LICENSOR shall assign all personnel necessary to correct the issue promptly.
3. The objective shall be to resolve one hundred percent (100%) of all Level 1 issues within four (4) hours of receipt of the reported problem. LICENSOR shall use all commercially reasonable efforts to meet this goal.

 Level 2

1. LICENSOR shall analyze Level 2 issues in the order they are reported, and personnel will be assigned accordingly. All Level 1 issues will take priority over Level 2 issues.
2. LICENSOR shall assign appropriate technical resources to Level 2 software issues as long as Level 1 issues are not open.
3. The objective is to resolve one hundred percent (100%) of all Level 2 issues within 1 – 2 days of the reported problem. LICENSOR shall use commercially reasonable efforts to meet this goal.  Additional resources will be added until a solution to the software issue has been reached.

 Level 3

1. LICENSOR shall analyze Level 3 issues in the order they are reported. Level 1 and Level 2 issues will take priority over Level 3 issues.
2. The objective is to correct all Level 3 issues or defects using appropriate release process.

If waiting for information by the LICENSEE, LICENSEE will be reminded 3 days later, then again in 3 days. If no response is provided to the information request in 48 hours issue will be closed and can reopened once LICENSEE has provided the requested information. All issues with no response are closed in 10 days.

PROVISION FOR SOFTWARE UPDATES AND TECHNICAL SUPPORT

So long as LICENSEE is current in its maintenance fees and for the term of this Agreement, LICENSOR shall provide Updates to LICENSEE on the same schedule that LICENSOR makes such Updates generally available.

EXCEPTIONS

Maintenance and Support Services will not include services or support requested as a result of, or with respect to, causes which are not attributable to LICENSOR.  

Causes which are not attributed to LICENSOR include, but are not limited to:

1. Operation of the Licensed Product with other hardware, software or interfaces which does not meet minimum specifications or is not maintained in accordance with the manufacturer’s specifications; or causes other than ordinary use.
2. Operation of the Licensed Product when network or security changes have been made.
3. Improper installation by LICENSEE, or its agents, or Use of the Licensed Product that deviates from any operating procedures established by LICENSOR in the applicable Documentation.
4. Modification, alteration or addition, or attempted modification, alteration or addition, of the Licensed Product undertaken by persons other than LICENSOR or LICENSOR’S authorized representatives.
5. LICENSOR provided products, source files, libraries, APIs which have been developed or modified for the LICENSEE unless expressly contracted for separately.  

Maintenance and Support Services under this agreement are not extended to (a) the installation and support of third-party products unless provided or agreed by the LICENSOR, databases or operating systems used in conjunction with LICENSOR’s products such as application servers (Apache Tomcat, IBM Websphere), databases (DB2, Elasticsearch, Postgres), operating systems (Linux/Unix, Windows, IBM i) and multi-server environments;  (b) requests to software upgrades on behalf of the LICENSEE; (c) implementation of licensed products and licensed product features or functionality; (d) administration or end-user training. These services or support requests can be contracted through our professional services group, at LICENSOR discretion. Providing access to documentation to support upgrades and feature implementations will be provided as part of this agreement. Responding to frequently asked questions will be done at the discretion of the technical support personnel. Services or support related to causes or requests that are not attributable to LICENSOR will be billed to LICENSEE at LICENSOR’S then-current rates.

LIMITED WARRANTY

Each Product will conform to the written specifications and description contained in the Product documentation. In the event Product fails to conform to Product documentation, LICENSEE must immediately notify SMRTR in writing. LICENSEE’S exclusive remedy shall be replacement of the Product. SMRTR further warrants for LICENSEE’S benefit alone, that SMRTR owns the Product, including all associated intellectual property rights, or otherwise has the right to grant LICENSEE the right and license provided in this Agreement, and that as of the date of this Agreement, to the best of SMRTR’s knowledge, the Product does not infringe any valid patents, copyrights, trademarks, or other proprietary rights of any third parties.

LIMITS OF LIABILITY

EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE MAINTENANCE AND SUPPORT SERVICES DESCRIBED HERIN, ARE PROVIDED “AS IS,” AND SMRTR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING.  IN NO EVENT SHALL SMRTR, BE LIABLE TO LICENSEE OR ANY THIRD-PARTY FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR SPECIAL DAMAGES OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL SMRTR’S LIABILITY UNDER ANY OR ALL PROVISIONS OF THIS AGREEMENT FOR ALL CAUSES OF ACTION ON A CUMULATIVE BASIS EXCEED THE PAYMENTS ACTUALLY MADE TO SMRTR UNDER THIS AGREEMENT OR THE ANNUAL MAINTENANCE SUBSCRIPTION AGREEMENT DURING THE IMMEDIATELY PRECEDING 12 MONTH PERIOD, WHICHEVER IS GREATER. IN NO EVENT SHALL SMRTR, BE LIABLE TO LICENSEE OR ANY THIRD-PARTY FOR ANY DAMAGES ARISING OUT OF THIRD-PARTY CONDUCT OR CAUSED BY THIRD-PARTY PRODUCT OR THIRD-PARTY SERVICES.

ASSIGNMENT & AMENDMENT 

LICENSEE may assign its obligations under this Agreement to a third-party individual or entity subject to the prior written consent of the LICENSOR.  

No amendment to this Agreement shall be valid unless the same is in writing and signed by both parties. Both parties agree that they are not bound to any oral representations and warranties made concerning the services under this Agreement. 

PRICE INCREASES

The Annual Software Maintenance and Support fee will not be increased by more than 10% annually from date of this Agreement.

Thank you and we appreciate your business!