This Support Plan Agreement (this “Agreement”) is made between Epiphan Systems Inc. (“Seller”) and Buyer (“Buyer”). Seller and Buyer agree that the following terms and conditions shall apply between them. This Agreement governs the following offerings by Seller: SupportPlan and SupportPlan+.
This Agreement shall commence upon payment of the Fees (as described below) in full (the “Effective Date”). The Term will cover a period of three (3) years or as agreed in writing by the parties starting from the shipping date of the Product. “Product” is defined as Seller’s product purchased by Buyer and designated by Seller to be covered by this Agreement.
a) During the Term of the Agreement, Seller shall provide Support Services as described below:
(i) A limited hardware warranty for the Product for the Term. Seller will, at its option, either repair or replace defective Products at its own expense or reimburse the Buyer its price paid for the defective Products. Full details of the limited hardware warranty can be found in section 8 of Seller’s Terms and Conditions of Quotation or Sale available on Seller’s website and are herein incorporated by reference.
(ii) Technical support by phone and troubleshooting.
(iii) When available Seller shall provide free firmware upgrades for the duration of the Product’s life limited to Product’s hardware architecture (ie hardware can accept the upgrade).
(iv) At Seller’s discretion an Advance Replacement may be provided to Buyer, typically after remote technical support options have been exhausted. “Advance Replacement” is defined as Seller’s current most comparable product to Product purchased by Buyer. Advance Replacement is owned by Seller and must be returned to Seller, typically after Buyer receives repaired Product, within 30 days of Seller’s request for Advance Replacement return. Shipping costs associated with returning the defective product to the Seller are the responsibility of the Buyer. Seller reserves the right to charge Buyer the price equal to the MSRP of the Advance Replacement if not returned within the 30 days.
(v) in addition to the above services, for those customers who pay for the SupportPlan+ (rather than the SupportPlan) they shall also receive prioritization of their support above customers who do not pay for the SupportPlan+. SupportPlan+ customers also receive remote support by internet or other means available to Seller.
(b) At any time during the Term, Buyer may upgrade its Support Plan level upon written agreement from Seller and payment of the appropriate additional fee.
(c) The Support Services shall not include any service, repair or support of:
(i) any Product component not designed and sold by Seller,
(ii) any Product damage, malfunction, inoperability, error or defect not directly caused by Seller or its products, or
(iii) any Product damage, malfunction, inoperability, error or defect diagnosed by Seller as being caused by abuse, misuse, neglect, accident, interference, or adverse environmental factors. For purposes of this Agreement, “environmental factors” shall include, but not be limited to: (A) use of incorrect line voltages; (B) improperly rated fuses or circuit breakers; (C) failure to install, maintain, and operate the Product pursuant to the operating instructions or technical information provided by Seller; (D) failure to comply with the applicable provisions of the National Electrical Code and Safety Standards of Underwriters Laboratories; (E) use of incompatible devices or accessories; (F) improper or insufficient ventilation; (G) unauthorized repairs or adjustments; (H) vandalism including a virus or computer hacker; (I) events beyond Seller’s control, such as acts of God, fire, lightning, flooding, tornado, earthquake, hurricane, acts of civil or military authority, riots, wars, sabotage, terrorism, labor disputes, or governmental actions; (J) relocation of the Product to another geographic location; or (K) failure to maintain equipment under the specified ambient temperature limits.
(d) Seller shall not perform any additional, extraordinary or special services outside the scope of the Support Services (“Additional Services”) unless agreed to in writing by the Buyer and Seller. Such Additional Services shall be performed at Sellers’s then standard hourly support fees, as agreed to by the Buyer and Seller in advance. In addition to its hourly support fees, Seller shall be entitled to reimbursement for any travel or other out-of-pocket expenses incurred in connection with Additional Services. Payment of any fees or expenses in connection with Additional Services shall be made upfront by wire or creditcard or within fifteen (15) days of Seller’s invoice date if credit is granted.
Seller’s obligation to perform the Support Services shall be conditioned upon, and Seller shall have no obligations under this Agreement unless, all of the following shall be complied with:
(a) The Product is required to have been designed and sold by Seller;
(b) Subject to reasonable confidentiality protections, Buyer shall provide Seller, at no cost, with such information, drawings, plans, assistance and materials as requested by Seller in connection with its duties hereunder;
(c) Buyer shall designate and make available a qualified, knowledgeable and instructible employee or person as its primary contact party in connection with the Product and this Agreement, and Buyer shall make available other Buyer’s personnel as requested by Seller in order to enable performance of its duties under this Agreement;
(d) Buyer shall upgrade its Product and Product Software promptly upon notification from Seller of upgrades required in connection with the operation of the Product;
(e) Buyer is responsible for making configuration backups (if applicable) and other routine maintenance such as care and cleaning;
(f) Buyer shall provide an internet connection and sufficient hardware and software to allow Seller remote internet access to administer, diagnose, troubleshoot, program and support the Product; and
(g) Buyer shall assist Seller, as reasonably requested by Seller, in following instructions and if applicable, obtaining any necessary permits or licenses.
As consideration for the Support Services rendered by Seller hereunder, Buyer shall pay to Seller the fee as agreed by both Seller and Buyer. All orders must be prepaid in full. Buyer may request to be granted credit. If Seller approves Buyer for credit, terms of payment are net 15 unless otherwise agreed with the Seller. Late payments are subject to 1.5% interest charge per month (18% per annum). If credit is not approved by Seller, all Buyer orders must be prepaid in full. Seller reserves the right to require Buyer to pay outstanding invoices via wire transfer. Seller reserves the right to withhold Support Services in the event Buyer is in arrears.
Seller may terminate and cancel this Agreement and Support Plan at any time and for any reason upon written notice to the Buyer. In the event of termination by Seller prior to the expiration of the Term, Seller shall refund Buyer a portion of the Fee, prorated in accordance with the portion of the Term prior to termination.
(a) Seller warrants that it will perform the Support Services in a good and workmanlike fashion and in accordance with the standards of care and diligence normally practiced by recognized firms in the industry in performing services of a similar nature for similar projects at the time the Support Services are performed.
EXCEPT FOR THE PRECEDING SENTENCE, SELLER MAKES NO REPRESENTATIONS AND EXTENDS NO WARRANTIES OF ANY KIND UNDER THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) IN NO EVENT WILL SELLER BE LIABLE FOR EXEMPLARY, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, PERSONAL INJURY, FAILURE TO MEET ANY DUTY, INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER), NOR FOR ANY DAMAGES IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SYSTEM OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF SELLER, AND EVEN IF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) NOTWITHSTANDING ANY DAMAGES THAT BUYER MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DIRECT DAMAGES AND ALL DAMAGES LISTED ABOVE), THE ENTIRE LIABILITY OF SELLER UNDER THIS AGREEMENT ON ANY CLAIM FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SUPPORT SERVICES, AND BUYER’S SOLE REMEDY FOR THE FOREGOING, WILL BE LIMITED TO THE AMOUNT PAID TO SELLER BY BUYER FOR THE SUPPORT SERVICES.
(d) Seller reserves the right to change the method by which Seller may provide Support Services to Buyer, and Buyer’s Products’ eligibility to receive a particular method of Support Service. Support Services will be limited to the options available in the country and location where Support Services are requested. Support Service options, parts availability and response times may vary according to country and location. Buyer may be responsible for shipping and handling charges if the Product cannot be serviced in the country it is in. Buyer will comply with all applicable import and export laws and regulations and be responsible for all custom duties, sales taxes, V.A.T. and other associated taxes and charges. For international Support Services, Seller may repair or exchange defective products and parts with comparable products and parts that comply with local standards.
Seller shall retain sole title and ownership to any data, information, copyrighted works, inventions, processes, product specifications, software, know-how and improvements in connection with the Agreement developed, authored, conceived or reduced to practice by Seller prior to the Effective Date or during the performance of its Support Services under this Agreement.
Buyer’s rights under this Agreement are non-assignable and non-transferable without the prior written consent of Seller, not to be unreasonably withheld.
a) Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
b) Entire Agreement. This Agreement constitutes the entire agreement between the parties on the subject matter hereof and supersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This Agreement may not be modified or waived orally and may be modified only in a writing signed by duly authorized representatives of each party. All pre-printed terms and conditions on a purchase order provided by Buyer shall be of no contractual effect between the parties.