Software Support & Maintenance Terms and Conditions
These Software Support & Maintenance Terms and Conditions (these “Support Terms”) supply the terms and conditions pursuant
to which Autonomous Stuff LLC d/b/a AutonomouStuff (the “Vendor”) will provide support and maintenance services to the user
(the “Licensee”) for all software licensed by the Vendor to the Licensee (the “Software”) under a separate Software License
Agreement (the “Agreement”).
- “Maintenance and Support” means commercially reasonable efforts to assist the Licensee in respect of the Software under these Support Terms.
- “Version Release” means with respect to the Software, or any part thereof, a new version that includes new functions to, or improves the performance of the Software, generally made available by the Vendor to its customers under its maintenance and support services. A Version Release may include, in the Vendor’s discretion, new features, enhancements as well as bug fixes and may be, at the Vendor’s discretion.
- “Documentation” means any printed, electronic and online documentation that may accompany the Software.
- Initial Term. The Licensee shall pay to the Vendor a fee (the “Fee”) for Maintenance and Support, the terms and conditions of which shall be pursuant to the then-current Software Support & Maintenance Terms and Conditions. The Fee and the duration (the “Initial Term”) of initial Maintenance and Support shall be identified in a purchase order, accepted and acknowledged by both parties, that expressly references the Software for which such Maintenance and Support is to be provided (each, a “PO”). The PO for the Initial Term shall be deemed accepted and acknowledged by the Licensee upon receipt by the Vendor of the Fee for the Initial Term.
- Add-On Term. Provided that the Licensee is in compliance with the terms of the Agreement and these Support Terms, prior to expiration of the Initial Term or any subsequent Add-On Term (as hereinafter defined), the Vendor may submit to the Licensee a PO for further Maintenance and Support for such Fee and duration as identified in the PO (the “Add-On Term”), the terms and conditions of which shall be pursuant to the then-current Software Support & Maintenance Terms and Conditions. The PO for the Add-On Term shall be deemed accepted and acknowledged by the Licensee upon receipt by the Vendor of the Fee for the Add-On Term.
- Reinstatement. If the Licensee elects to not purchase Maintenance and Support upon delivery of the Software or after the Initial Term or any Add-On Term and at a later point wishes to reinstate Maintenance and Support, and provided that the Software is then supported by the Vendor, the Licensee shall pay retroactively all Fees accrued during the period starting from delivery of the Software, the end of the Initial Term, or the end of the most recent Add-On Term, whichever occurs later, through the date of such request. In addition, the Licensee shall pay a reinstatement fee (the “Reinstatement Fee”) of twenty-five percent (25%) of the accrued Fees due as set forth above.
- Payment. The Fee(s) and any Reinstatement Fee shall be paid within thirty (30) days of, as applicable, the submission of the PO by the Vendor to the Licensee or the beginning of an Add-On Term; provided that, in no event shall the Fee for the Initial Term be paid later than delivery of the Software. All Fees and Reinstatement Fees are non-refundable and shall be in consideration for the Maintenance and Support set forth in the applicable PO.
- Taxes. All amounts payable for Maintenance and Support are exclusive of sales, use, VAT, customs duties, excise, and any other applicable transaction taxes, which the Licensee will pay (excluding taxes based upon the net income of the Vendor) (collectively, the “Taxes”). For services performed by the Vendor in the states where the Vendor has obtained authorization to collect the Taxes, the Vendor will make commercially reasonable efforts to collect from the Licensee and make payment of all applicable Taxes. For services performed in any state, territory or country where the Vendor has not obtained authorization to collect the Taxes, it shall be the responsibility of the Licensee to make payment of all applicable Taxes.
- Generally. Subject to the Licensee’s payment of all amounts payable for Maintenance and Support, during the Initial Term and any Add-On Term, the Vendor shall provide the following Maintenance and Support services subject to the limitations as set forth in Section 3.5: (a) Error corrections as set forth in Section 3.2; (b) Version Releases and updates to the Documentation as set forth in Section 3.3; and (c) hotline support as set forth in Section 3.4.
- Error Corrections. The Vendor shall correct, as soon as is practicable, any Error (as defined below) in the Software that is reported to the Vendor by the Licensee. As used herein, “Error” shall mean a material deviation between the Software and the description thereof contained in the Documentation; provided that a failure of the Software to function properly due to (i) changes made by the Licensee in or to the Software or (ii) the failure of the Licensee’s procedures or computer environment or application products in which the Software is used by the Licensee to conform with the procedures or computer environment specified in the Documentation does not constitute an Error. If the Licensee desires to have the Vendor correct any failure in the Software that does not constitute an Error, the Licensee shall pay the Vendor, at the Vendor’s customary billing rates, for time and expenses incurred in performing such correction.
- Version Releases and Documentation Updates. The Vendor shall notify the Licensee of Version Releases and updates to the Documentation from time to time during the Initial Term and any Add-On Term if and when the Vendor makes them generally available. The Licensee is expected to educate itself about Version Releases from the support section of the Vendor’s website. It is the Licensee’s responsibility to verify that the new update or release conforms with the implementation or application using the Software. Upon the Licensee’s request and the Vendor’s written agreement, the Vendor may assist in the verification effort or provide other on-site assistance subject to availability, at the Vendor’s then current rates.
- Hotline Support. The Vendor shall provide a consultation service for the Licensee’s questions regarding the Software between 8:30 AM CST and 4:30 PM CST. The Licensee shall appoint one primary and one backup on-site technical contact, listed in the PO as liaisons with the Vendor for hotline support. These contacts shall be the primary liaison between the Vendor and the
Licensee for all Maintenance and Support.
- Limitations. The Maintenance and Support services are subject to the following limitations: (i) the Vendor shall provide Maintenance and Support services only for the most recent Version Release; (ii) the Maintenance and Support services do not include on-site or remote installation of the Version Releases or any other on-site or remote assistance for the Software; and (iii) the Vendor shall not be obligated to provide Maintenance and Support for third-party software that may work in conjunction with the Software. To the extent the Licensee requests the Vendor to provide Maintenance and Support services that are within the scope of these limitations, the Licensee shall pay the Vendor, at the Vendor’s customary billing rates, for time and expenses incurred in performing such Maintenance and Support.
- LReliability. Maintenance and Support does not include a guarantee of the reliability of bug fixes, patches, or new revisions of the Software, nor does it include services such as assistance in program design, consultation services, or debugging of third-party software.
- Disclaimer of Other Warranties. OTHER THAN AS EXPRERSSLY PROVIDED IN THE AGREEMENT AND THESE SUPPORT TERMS, THE VENDOR MAKES NO WARRANTY, EXPRESSED OR IMPLIED, REGARDING THE MAINTENANCE AND SUPPORT OR THE SOFTWARE, INCLUDING WITHOUT LIMITATION THOSE OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL BE SUITABLE OR APPROPRIATE FOR THE SPECIFIC REQUIREMENTS OF THE LICENSEE.
5. DATA RIGHTS
- Ownership. The Licensee acknowledges and agrees that Supplier is the owner of, or holds license to, all right, title, and interest, including copyright and all other intellectual property rights, in and to any and all written materials, documents, flow charts, logic diagrams, source code, test materials, or other information relating to any intellectual property: (i) previously generated and used by Supplier; and (ii) generated by Supplier in performing Maintenance and Support (collectively, the “Work Product”). No transfer of ownership of any Work Product is intended by these Support Terms. The Licensee acknowledges that, to the extent the Licensee desires for the Vendor to develop any “works made for hire” within the meaning of the Copyright Act of 1976, as amended, such development shall be governed by a separate written agreement.
- Perpetual License to the Work Product. The Vendor grants to the Licensee a perpetual, non-exclusive, non-transferable right and license to use and modify the Work Product solely for its own internal use; provided that any of the Work Product that is licensed to the Vendor under a separate license agreement with a third party (“Third-Party License”), will continue to be governed by the Third-Party License, and the delivery of such Work Product by the Vendor to the Licensee will not relieve or alter the obligations or responsibilities of any party with respect to the Third-Party License.
- Post-Delivery Covenants. The Licensee agrees that it will not and will not permit or encourage any third party to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or any other proprietary information or trade secrets from the Work Product; (ii) use, modify, adapt, alter, translate, port, or create derivative works of or from the Work Product; or (iii) merge the Work Product with other software.
- Limitation of Liability. LIABILITY OF THE VENDOR FOR ANY CLAIM, SUIT, ACTION, DEMAND OR PROCEEDING ARISING FROM OR RELATED TO MAINTENANCE AND SUPPORT WILL BE LIMITED TO THE ORIGINAL PURCHASE PRICE OF THE SOFTWARE OR TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00), WHICHEVER IS LESS. THE VENDOR WILL NOT BE LIABLE FOR ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PRODUCTION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR ANY OTHER BUSINESS OR ECONOMIC DISADVANTAGE SUFFERED BY THE LICENSEE ARISING OUT OF THE USE OR FAILURE OF THE SOFTWARE.
- Equitable Relief. The parties acknowledge that any breach of its covenants or obligations set forth in these Support Terms may cause the other party irreparable harm for which monetary damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, a party is entitled to seek equitable relief, without bond, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which such party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in these Support Terms to the contrary.
7. CONFIDENTIAL INFORMATION
- Confidential Information. For the purpose of these Support Terms, “Confidential Information” shall mean any information, whether written or verbal, furnished or disclosed by a party, its employees, consultants or agents (the “Discloser”) to the other party, its employees, consultants or agents (the “Recipient”) pertaining to or regarding the business or business plans, financial condition, sales, research, strategies, products, developments, methodologies, techniques, processes, plans, customers, distributors, suppliers, properties and operations of Discloser. Confidential Information includes, without limiting the generality of the foregoing, all techniques, improvements, marketing plans, research or data, budgets, projections, forecasts, financing plans, time lines for implementation, inventions, trade secrets, know-how, discoveries, patent applications, products, products in development, pricing, services, data, formulas, formulations, recipes, compositions, unpublished databases, clinical study results and protocols, access codes, computer programs, processes, drawings, designs, research, plans or specifications relating thereto. Furthermore, Confidential Information includes the terms of any PO. Confidential Information does not include any information that: (a) is already rightfully known to Recipient prior to disclosure by Discloser; (b) is or becomes publicly known through no wrongful act of Recipient; (c) is obtained by Recipient from a third party without Recipient’s knowledge or notice of a similar restriction upon disclosure and without breach of these Support Terms; or (d) is independently developed by Recipient without breach of these Support Terms.
- Restrictions. Recipient shall use all Confidential Information solely for the purpose of fulfilling its obligations under these Support Terms and shall not copy, disclose, convey or transfer any Confidential Information to any third party, excluding its employees, directors, members, shareholders, consultants or agents who must have access to the Confidential Information to perform Recipient’s obligations under these Support Terms (its “Representatives”). Such disclosures may be made provided: (i) Recipient has given each Representative notice of the confidentiality obligations under these Support Terms and obtained his/her agreement to comply and (ii) such Representative is not engaged in a business that competes with Discloser. Recipient is responsible and liable for its Representatives’ compliance hereunder. In the event Recipient terminates its relationship with any of its Representatives, Recipient shall: (i) immediately terminate such Representative’s access to its premises and systems where Discloser’s Confidential Information is maintained, and (ii) use its best efforts to recover any of Discloser’s Confidential Information in such Representative’s possession or control.
- Mandatory Requests. If Recipient is requested or required to disclose (including, without limitation, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, or any governmental investigation) any Confidential Information, Recipient will notify Discloser promptly in writing of the terms and circumstances surrounding the request so that Discloser may seek a protective order or other appropriate remedy or, in its sole discretion, waive compliance with these Support Terms. Recipient agrees not to oppose any action by Discloser to obtain a protective order or other appropriate remedy and shall, at Discloser’s expense, cooperate fully with Discloser. In the event no such protective order or other
remedy is obtained, or Discloser waives compliance with these Support Terms, Recipient will furnish only the portion legally required.
- Independent Contractors. Supplier’s relationship with Client will be that of an independent contractor, and nothing in these Support Terms should be construed as creating a partnership, joint venture, or employer-employee relationship. Supplier will have sole discretion to determine the manner, method, and means of performing the Services.
- Conflicts. The terms for the use of the Software will continue to be governed by the Agreement, even after the installation of a new Version Release. In the event of any conflict between the terms the Agreement and the terms of these Support Terms, the terms of the Agreement shall prevail. Furthermore, unless otherwise expressly agreed upon in writing by Supplier, additional terms contained in a PO are rejected by the Vendor.
- Force Majeure. The Vendor will be free of liability to the Licensee where the Vendor is prevented from executing its obligations under these Support Terms in whole or in part due to causes beyond its reasonable control, including but not limited to earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event.
- Governing Law. The parties to these Support Terms submit to the jurisdiction of the courts of the State of Illinois for the enforcement of these Support Terms or any arbitration award or decision arising from these Support Terms. The Licensee further agrees that the state court located in Tazewell County, Illinois and federal court for the Central District of Illinois must be utilized solely and exclusively to hear any action arising out of or relating to these Support Terms.