サービス及びサポート契約 (Japanese Version)
By purchasing Maintenance and Support, Installation, Training, or other services from Arkivio, Inc. ("Arkivio") or a Reseller (defined below), you the purchaser of such services, as identified on your purchase order with respect to such services (such purchaser, the "Customer") are agreeing to the following terms and conditions with respect to such services.
If you have purchased services and/or support for ARKIVIO® auto-view and/or ARKIVIO® auto-stor, the terms and conditions that apply are found directly below under the heading "Terms and Conditions for ARKIVIO® auto-stor". If you have purchased services and/or support for ARKIVIO® NTC Server, ARKIVIO® NTC FM, ARKIVIO® NTC ILM, or HA (N+1) Server, the terms and conditions that apply are found below under the heading "Terms and Conditions for NTC products"
2. Customer has previously placed or will, prior to the installation of the Software, place an initial purchase order or orders (the "Initial Purchase Order") with Arkivio or a Reseller (as applicable) for the quantities of Central Server licenses and amount of initial Licensed Capacity required for Customer’s initial use of the Software (such licenses, the "Initial Licenses"), and for installation and maintenance and support and (if applicable) training services with respect to the Initial Licenses.
3. Maintenance and Support, Installation, Training.
3.1 Arkivio will provide maintenance and support services to Customer with respect to the Software pursuant to Arkivio's standard maintenance and support terms and conditions, as set forth herein, as renewed from year to year during the term of this Agreement, provided that Customer has duly purchased such maintenance and support services from Arkivio or a Reseller. Customer will pay Arkivio or a Reseller all applicable Annual Maintenance and Support Fees for such maintenance and support as provided below in Section 4.
3.2 Arkivio will provide installation services to Customer with respect to the Software as described in Section 5, provided that Customer has duly purchased such installation services from Arkivio or a Reseller. Customer will pay Arkivio or a Reseller all applicable fees for such installation services as provided in Section 5.
3.3 Arkivio will provide training services to Customer with respect to the Software as described in Section 6, as requested by Customer, provided that Customer has duly purchased such training services from Arkivio or a Reseller. Customer will pay Arkivio or a Reseller any applicable fees for such training services as provided in Section 6.
4. Maintenance and Support: Arkivio’s annual fee for each of Arkivio's available annual software maintenance and support options, which fee shall apply to the first Maintenance Year, and to each renewal thereafter ("Annual Maintenance and Support Fee") is:
a. Standard 18% of Arkivio's list prices for the Software, as described below.
b. Advanced 24% of Arkivio's list prices for the Software, as described below.
The amount of the Annual Maintenance and Support Fee for the Central Servers and the initial Licensed Capacity purchased by Customer, for each of the first and second Maintenance Years is equal to the amounts specified on the quote from Arkivio corresponding to the Initial Purchase Order. In determining the amount of the Annual Maintenance and Support Fee, for any increases in Licensed Capacity purchased during the first or second Maintenance Years from Arkivio, the percentage applicable as provided above (the "Applicable Percentage") will be multiplied by Arkivio's List Price in effect as of the date of Customer's purchase order for the increased capacity, or the date Customer first uses the increased capacity whichever is earlier (the "Capacity Increase Date").
The Annual Maintenance and Support Fee for the Central Servers and the initial Licensed Capacity for the period beginning upon the Effective Date of this Agreement and ending upon the day prior to the first anniversary of the Effective Date (the first "Maintenance Year") is due to Arkivio within thirty days of the Effective Date. The Annual Maintenance and Support Fee with respect to any increase in Licensed Capacity purchased by Customer is due to Arkivio within thirty days of the Capacity Increase Date. The Annual Maintenance and Support Fee for each period of one year following the first Maintenance Year (each, a "Maintenance Year") is due, in advance, on each anniversary of the Effective Date.
For the third and each subsequent Maintenance Year, the Annual Maintenance and Support Fee, if purchased from Arkivio, shall be an amount equal to the Applicable Percentage multiplied by Arkivio's List Price, in effect as of the date the Maintenance Year commences, for the Central Server License and the total Licensed Capacity of Customer as of such date, including the initial Licensed Capacity and the amount of any prior increases in Licensed Capacity.
Upon the purchase by Customer of any increase in the Licensed Capacity, Customer will pay, in respect of the balance of the Maintenance Year then in effect, a prorated fee for maintenance and support of such increased Licensed Capacity equal to (1) the product of (a) the Applicable Percentage multiplied by (b) Arkivio's List Price for the increase in Licensed Capacity as of the Capacity Increase Date, times (2) a fraction, the numerator of which is the number of days remaining in the Maintenance Year then in effect and the denominator of which is 365. For each subsequent Maintenance Year, the Annual Maintenance and Support Fee, will be determined by reference to the initial Licensed Capacity plus any and all increases in Licensed Capacity effective prior to commencement of the Maintenance Year.
The provision of maintenance and support services will, as of each anniversary of the Effective Date, be automatically extended for an additional Maintenance Year, upon the terms and conditions provided herein, unless either party will have given written notice of non-extension to the other party not less than thirty days prior to such anniversary.
The above maintenance and support services pricing and payment terms is for purchases from Arkivio. Licensee may, at its option, purchase the maintenance and support services from a Reseller rather than directly from Arkivio, in which event the Reseller’s pricing and payment terms shall apply instead of the above.
5. Installation Services: The fee for Arkivio's installation services to install the Software at Customer's site on/with Approved Hardware and Software ("Installation Fee") is, in the case of installation services listed in the Initial Purchase Order, the price given in the Initial Purchase Order, and, in the case of any other installation services purchased from Arkivio, Arkivio's then-current list price for such installation services. The Installation Fees are due within thirty days of installation of the Software, and exclude any reasonable travel or other out-of-pocket expenses actually incurred in performing the installation services, for which Customer shall reimburse Arkivio within thirty days following receipt of invoice from Arkivio for such expenses. The above installation services pricing and payment terms is for purchases from Arkivio. Licensee may, at its option, purchase installation services from a Reseller rather than directly from Arkivio, in which event the Reseller’s pricing and payment terms shall apply instead of the above.
6. Training: The fee for Arkivio's training services ("Training Fee(s)") is, in the case of training services listed in the Initial Purchase Order, the price given in the Initial Purchase Order, and, in the case of any other training services purchased from Arkivio, Arkivio's list price for such training services current on the Effective Date. The Training Fees are due within thirty days of installation of the Software, and exclude any reasonable travel or other out-of-pocket expenses incurred in performing training for Customer, for which Customer shall reimburse Arkivio within thirty days following receipt of invoice from Arkivio for such expenses. The above training services pricing and payment terms is for purchases from Arkivio. Licensee may, at its option, purchase training services from a Reseller rather than directly from Arkivio, in which event the Reseller’s pricing and payment terms shall apply instead of the above.
7. Software Maintenance and Support Terms and Conditions
7.1 License Grant. Updates or Workarounds are licensed to Customer under the same license terms as set forth in the end user license agreement for the Software.
7.2 Renewal After Lapse. If there is a lapse in the Software Maintenance and Support term, Arkivio will reinstate the Software Maintenance and Support only after Customer pays all fees that would have been due with respect to Software Maintenance and Support during the period of the lapse, plus the then-current lapse administration fee.
7.3 Termination of Support. Arkivio will have the right to terminate the provision of Software Maintenance and Support with respect to any Software by providing written notice of such election at least ninety (90) days prior to the termination of Support for such Software, provided that Arkivio no longer generally provides support for the Software, or no longer provides the specific services previously offered.
7.4 Services Warranty Disclaimer. All work performed hereunder will be in a professional and workmanlike manner and otherwise "as is" without warranty of any kind. Arkivio does not provide a guarantee to fix any reported problems or provide fixes within a pre-defined time frame. Arkivio hereby disclaims all warranties express or implied, statutory, or otherwise, including without limitation any implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
8. Scope of Technical Support
8.1 Technical Support will be provided to Customer only if Customer is current on all payments due to Arkivio. Customer-requested visits to Customer's site by Arkivio are not included in the scope of the Agreement and will be charged separately at the then-current rate, plus living and travel expenses.
8.2 Technical Support will be provided for a maximum of two Technical Contacts for Standard Support and a maximum of five Technical Contacts for Advanced Support. If Customer determines that additional Technical Contacts are required, additional Technical Contacts may be added at Arkivio's then-current standard fee for such additional Technical Contacts.
9. Arkivio Responsibilities
9.1 Standard Technical Support. For Standard Support, Arkivio will receive and track problems from up to two authorized Technical Contact(s) via telephone or e-mail. Arkivio will use commercially reasonable efforts to provide Technical Support consisting only of telephone assistance, fixes, access to web-based self-help and other web-based resources from 9:00 a.m. to 5:00 p.m., Pacific Standard Time, except weekends and holidays ("Business Day").
9.2 Advanced Technical Support. For Advanced Support, Arkivio will receive and track problems from up to five authorized Technical Contact(s) via telephone or e-mail. Arkivio will use commercially reasonable efforts to provide Technical Contact(s) with Technical Support consisting only of telephone assistance, fixes, access to web-based self-help and other web-based resources twenty-four (24) hours per day, seven (7) days per week.
9.3 Limitations of Support. Arkivio is not obligated to support: (i) modified or damaged Software or any portion of the Software incorporated with or into other software; (ii) Software that is not the then-current release or the immediately previous sequential minor release; (iii) problems caused by Customer's negligence, abuse or misapplication, use of the Software other than as is specified in the applicable user documentation, or other causes beyond the control of Arkivio; (iv) Software installed with any hardware or software that is not supported by Arkivio or (v) issues for which Customer has not complied with its obligations hereunder, including, without limitation, its obligations under Sections 10.3 and 10.4 hereof. Arkivio will not be responsible for the cost of any changes to Customer's hardware or software that may be necessary to use the Software due to a Workaround or Update.
10. Customer's Responsibilities. During the Term of the Agreement, Customer will:
10.1 Technical Contact List. Customer shall notify Arkivio in writing (e-mail acceptable for this purpose) a list of Customer’s Technical Contacts, including each Technical Contact’s name and contact information, within ten (10) Business Days of the Effective Date with a minimum of one Technical Contact and one alternate. If any of Customer's Technical Contacts listed in such notice changes, Customer must notify Arkivio in writing (e-mail acceptable for this purpose) by providing the name and contact information for each new Technical Contact. Arkivio will take two (2) Business Days to process any changes.
10.2 Case Management. Only Technical Contacts may initiate or manage problem tracking activity and/or questions.
10.3 Problem Reporting. Provide Arkivio with a complete and concise description, including all pertinent details, of the problem, Software name and version, and relevant operating system or platform information.
10.4 Problem Notification. Notify Arkivio of problems in accordance with the then-current procedures set forth in the Support Guide.
10.5 Training. Promptly obtain training on the use of all applicable Software for Technical Contacts and keep such Technical Contacts trained in all current releases of the Software.
10.6 Web Access. When possible, use web-access for all technical communication, including notification of problems and subsequent communication concerning the resolution of such problems.
10.7 Access to Information. Provide Arkivio with access to and use of all information and system facilities, including user IDs and passwords, reasonably determined necessary by Arkivio to provide timely support pursuant to the terms herein.
10.8 Other Errors. If Arkivio determines that a problem reported by Customer may not be due to Arkivio's Software, Arkivio will so notify Customer, who then may either: (i) instruct Arkivio to proceed with problem determination at Customer's possible expense on a time and materials basis plus travel and living expenses in the event that Arkivio subsequently determines that the problem was not caused by Arkivio's Software; or (ii) advise Arkivio that Customer does not wish the problem pursued at its possible expense, in which case Arkivio may elect, at its sole discretion, not to pursue the problem without liability therefor.
10.9 Provision of Updates. Upon payment of the Annual Maintenance and Support Fee for a particular year of the Agreement, Arkivio will provide Updates to the Software, as they may become available, during such year to Customer's authorized administrative contact.
11. General Provisions.
11.1 ARKIVIO’S LIABILITY TO CUSTOMER FOR A CLAIM OF ANY KIND RELATED TO THIS AGREEMENT, OR ANY SERVICE PROVIDED HEREUNDER, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE OF FEES PAID TO SUCH SELLER FOR THE SERVICE INVOLVED IN THE CLAIM.
11.2 IN NO EVENT WILL ARKIVIO OR ANY OF ITS LICENSORS OR SUPPLIERS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST BUSINESS REVENUES OR PROFITS, GOODWILL, ANTICIPATED SAVINGS, LOSS OF OR DAMAGE TO DATA, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE EVENTS THAT GAVE RISE TO THE CAUSE OF ACTION OCCURRED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CUSTOMER.
11.3 Customer will, at its expense, indemnify, defend, save and hold harmless Arkivio and its suppliers from any claim brought or filed by a third party against Arkivio or its suppliers due to any failure by Customer, its employees or agents to act in accordance with the terms of this Agreement.
11.4 Arkivio and Customer are independent contractors and will so represent themselves in all regards. Neither party may bind the other in any way.
11.5 Customer may not assign this Agreement without the prior written consent of Arkivio, which consent will not be unreasonably withheld. Any purported assignment in contravention of this Section is null and void. A transfer of a controlling interest in the equity of Customer will be deemed an assignment for purposes of this subsection. Subject to the foregoing, this Agreement will bind and inure to the benefit of any successors or assigns.
11.6 Neither party will be responsible for failure of performance, other than for an obligation to pay money, due to causes beyond its reasonable control, including, without limitation, acts of God or nature; labor disputes; sovereign acts of any federal, state or foreign government; or shortage of materials.
11.7 All notices or other communications required or given under this Agreement will be in writing, unless otherwise specified in the Agreement. Unless otherwise specified in the Agreement, such notices will be deemed to have been duly given upon delivery if delivered personally, by one-day courier, by facsimile transmission where receipt is acknowledged by the receiving machine, or sent by registered or certified mail, postage prepaid, return receipt requested, to the address for the other party set forth above. Either party hereto may change the address to which such communications are to be directed by giving written notice to the other party hereto of such change in the manner provided above. Customer will use the following email address (or such other email address as designated in writing from time to time by Arkivio) to send reports via email or to send email notices as required or permitted under this Agreement: license@arkivio.com.
11.8 This Agreement is the complete and exclusive statement of the parties to this Agreement on these subjects, and supersedes all prior written or oral proposals and understandings relating thereto. This Agreement may only be modified by a writing signed by an officer of Arkivio and an authorized representative of Customer. This Agreement takes precedence over any purchase order issued by or on behalf of Customer, which is accepted by Arkivio for administrative convenience only. If any court of competent jurisdiction determines that any provision of this Agreement is invalid, the remainder of the Agreement will continue in full force and effect. The offending provision will be interpreted to whatever extent possible to give effect to its stated intent.
11.9 Failure to require performance of any provision or waiver of a breach of a provision does not waive a party's right to subsequently require full and proper performance of that provision. Singular terms will be construed as plural, and vice versa. Section headings are for convenience only and will not be considered part of this Agreement.
11.10 This Agreement is governed by the laws of the State of California, without giving effect to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Each party submits to the jurisdiction of the appropriate state or federal courts in California. Arkivio may seek to specifically enforce or prevent a breach of any term of this Agreement in the appropriate courts of any state or country in which the Software is deployed by Customer or in which Customer maintains an office. The prevailing party in any suit under this Agreement will recover all costs, expenses and reasonable attorney fees incurred in such action. Nothing in this Agreement will be deemed a waiver by either party of any and all available legal or equitable remedies.
[End of Terms and Conditions for ARKIVIO® auto-stor]
1. Definitions.
"Approved Hardware and Software(s)" means the server hardware Arkivio has approved for use with the Software and the operating system and other software Arkivio has approved for use in conjunction with the Software on such hardware. The current list of Approved Hardware and Software may be found on the datasheets for ARKIVIO® NTC Server, ARKIVIO® NTC FM, ARKIVIO® NTC ILM, and HA (N+1) Server, each as applicable, which may be downloaded from Arkivio's website, at www.arkivio.com/2/partners/EMC-ILM/Reseller_Select.
1.1 "Agreement" means this Services and Support Agreement.
1.2 "Effective Date" means the date of installation of the Software, as reasonably determined by Arkivio.
1.3 "New Product" means a release of software and any associated User Documentation made generally commercially available by Arkivio through Reseller as a new product, module or extension offered for a separate or additional charge.
1.4 "Reseller" means a reseller, including but not limited to EMC Corporation, authorized by Arkivio to resell the Software and maintenance support, installation and training services related to the Software.
1.5 "Software" means the version of Arkivio's ARKIVIO® NTC Server, and ARKIVIO® NTC FM or ARKIVIO® NTC ILM software (as applicable), and if applicable, the optional HA (N+1) Server software installed by Customer, and including any Updates thereto delivered and installed as part of the maintenance and support services provided under this Agreement.
1.6 "Technical Contact" means Customer's designated technical support contact(s) as identified from time to time in writing by Customer (e-mail acceptable for this purpose). Names and contact information for the Technical Contact(s) must be provided to Arkivio prior to any Customer requests.
1.7 "Technical Support" and "Support" mean the remote technical support provided by Arkivio's technical engineers.
1.8 "Update(s)" means releases, revisions, fixes, and improvements to the Software that are made generally commercially available for the Software pursuant to maintenance arrangements without charge, other than payment of the applicable Maintenance and Support Fee. Updates do not include New Products
1.9 "User Documentation" means the user manual(s) and other written materials on proper installation and use of, and which are normally distributed with, the Software.
1.10 "Workaround" means a temporary solution or fix that restores operational capability without severely compromising the performance of the Software or integrity of the operating system or data. Workarounds may include changes to configuration parameters or operational processes.
2. Customer has previously placed or will, prior to the installation of the Software, place an initial purchase order or orders (the "Initial Purchase Order") with a Reseller for the quantities of ARKIVIO® NTC Server, ARKIVIO® NTC FM, ARKIVIO® NTC ILM, and/or HA (N+1) Server licenses required for Customer’s initial use of the Software (such licenses, the "Initial Licenses"), and for installation and maintenance and support and (if applicable) training services with respect to the Initial Licenses.
3. Maintenance and Support, Installation, Training.
3.1 Arkivio will provide maintenance and support services to Customer with respect to the Software pursuant to Arkivio's standard maintenance and support terms and conditions, as set forth herein, as renewed from year to year during the term of this Agreement, provided that Customer has duly purchased such maintenance and support services from a Reseller. Customer will pay Reseller all applicable Annual Maintenance and Support Fees for such maintenance and support as provided below in Section 4.
3.2 Arkivio will provide installation services to Customer with respect to the Software as described in Section 5, provided that Customer has duly purchased such installation services from a Reseller. Customer will pay Reseller all applicable fees for such installation services as provided in Section 5.
3.3 Arkivio will provide training services to Customer with respect to the Software as described in Section 6, as requested by Customer, provided that Customer has duly purchased such training services from a Reseller. Customer will pay Reseller any applicable fees for such training services as provided in Section 6.
4. Maintenance and Support: In order to receive maintenance and support services with respect to the Software from Arkivio, Customer must purchase maintenance and support for each ARKIVIO® NTC Server license and for each 4-Node ARKIVIO® NTC FM or 4-Node ARKIVIO® NTC ILM license (as applicable). The pricing for Reseller’s annual fees for Arkivio's annual software maintenance and support, is available from Reseller. The first year of maintenance and support services will begin on the Effective Date and will end on the first anniversary of the Effective Date. Purchases of each additional 4-Node ARKIVIO® NTC FM or 4-Node ARKIVIO® NTC ILM license will require the purchase by Customer of additional maintenance and support with respect to each such license from Reseller, at Reseller’s available prices for such additional maintenance and support. The provision of maintenance and support services will, as of each anniversary of the Effective Date, be automatically extended for an additional Maintenance Year, upon the terms and conditions provided herein, unless either party will have given written notice of non-extension to the other party not less than thirty days prior to such anniversary.
5. Installation Services: The fee for Arkivio's installation services to install the Software at Customer's site on/with Approved Hardware and Software ("Installation Fee") is, in the case of installation services listed in the Initial Purchase Order, the price given in the Initial Purchase Order, and, in the case of any other installation services purchased from Reseller, Reseller's then-current price for such installation services. The Installation Fees are due in accordance with Reseller’s payment terms, and exclude any reasonable travel or other out-of-pocket expenses actually incurred by Arkivio in performing the installation services, for which Customer shall reimburse Reseller in accordance with Reseller’s payment terms following receipt of invoice from Reseller for such expenses.
6. Training: The fee for Arkivio's training services ("Training Fee(s)") is, in the case of training services listed in the Initial Purchase Order, the price given in the Initial Purchase Order, and, in the case of any other training services purchased from Reseller, Reseller's then-current price for such training services. The Training Fees are due in accordance with Reseller’s payment terms and exclude any reasonable travel or other out-of-pocket expenses incurred by Arkivio in performing training for Customer, for which Customer shall reimburse Reseller in accordance with Reseller’s payment terms following receipt of invoice from Reseller for such expenses.
7. Software Maintenance and Support Terms and Conditions
7.1 License Grant. Updates or Workarounds are licensed to Customer under the same license terms as set forth in the end user license agreement for the Software.
7.2 Renewal After Lapse. If there is a lapse in the Software Maintenance and Support term, Arkivio will reinstate the Software Maintenance and Support only after Customer pays all fees that would have been due with respect to Software Maintenance and Support during the period of the lapse, plus the then-current lapse administration fee.
7.3 Termination of Support. Arkivio will have the right to terminate the provision of Software Maintenance and Support with respect to any Software by providing written notice of such election at least ninety (90) days prior to the termination of Support for such Software, provided that Arkivio no longer generally provides support for the Software, or no longer provides the specific services previously offered.
7.4 Services Warranty Disclaimer. All work performed hereunder will be in a professional and workmanlike manner and otherwise "as is" without warranty of any kind. Arkivio does not provide a guarantee to fix any reported problems or provide fixes within a pre-defined time frame. Arkivio hereby disclaims all warranties express or implied, statutory, or otherwise, including without limitation any implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
8. Scope of Technical Support
8.1 Technical Support will be provided to Customer only if Customer is current on all payments due to Reseller. Customer-requested visits to Customer's site by Arkivio are not included in the scope of the Agreement and will be charged separately at the then-current rate, plus living and travel expenses.
8.2 Technical Support will be provided for a maximum of five Technical Contacts for Advanced Support. If Customer determines that additional Technical Contacts are required, additional Technical Contacts may be added at Arkivio's then-current standard fee for such additional Technical Contacts.
9. Arkivio Responsibilities
9.1 Technical Support. Arkivio will receive and track problems from up to five authorized Technical Contact(s) via telephone or e-mail. Arkivio will use commercially reasonable efforts to provide Technical Contact(s) with Technical Support consisting only of telephone assistance, fixes, access to web-based self-help and other web-based resources twenty-four (24) hours per day, seven (7) days per week.
9.2 Limitations of Support. Arkivio is not obligated to support: (i) modified or damaged Software or any portion of the Software incorporated with or into other software; (ii) Software that is not the then-current release or the immediately previous sequential minor release; (iii) problems caused by Customer's negligence, abuse or misapplication, use of the Software other than as is specified in the applicable user documentation, or other causes beyond the control of Arkivio; or (iv) Software installed with any hardware or software that is not supported by Arkivio. Arkivio will not be responsible for the cost of any changes to Customer's hardware or software that may be necessary to use the Software due to a Workaround or Update.
10. Customer's Responsibilities. During the Term of the Agreement, Customer will:
10.1 Technical Contact List. Customer shall notify Arkivio in writing (e-mail acceptable for this purpose) a list of Customer’s Technical Contacts, including each Technical Contact’s name and contact information, within ten (10) Business Days of the Effective Date with a minimum of one Technical Contact and one alternate. If any of Customer's Technical Contacts listed in such notice changes, Customer must notify Arkivio in writing (e-mail acceptable for this purpose) by providing the name and contact information for each new Technical Contact. Arkivio will take two (2) Business Days to process any changes.
10.2 Case Management. Only Technical Contacts may initiate or manage problem tracking activity and/or questions.
10.3 Problem Reporting. Provide Arkivio with a complete and concise description, including all pertinent details, of the problem, Software name and version, and relevant operating system or platform information.
10.4 Problem Notification. Notify Arkivio of problems in accordance with the then-current procedures set forth in the Support Guide.
10.5 Training. Promptly obtain training on the use of all applicable Software for Technical Contacts and keep such Technical Contacts trained in all current releases of the Software.
10.6 Web Access. When possible, use web-access for all technical communication, including notification of problems and subsequent communication concerning the resolution of such problems.
10.7 Access to Information. Provide Arkivio with access to and use of all information and system facilities, including user IDs and passwords, reasonably determined necessary by Arkivio to provide timely support pursuant to the terms herein.
10.8 Other Errors. If Arkivio determines that a problem reported by Customer may not be due to Arkivio's Software, Arkivio will so notify Customer, who then may either: (i) instruct Arkivio to proceed with problem determination at Customer's possible expense on a time and materials basis plus travel and living expenses in the event that Arkivio subsequently determines that the problem was not caused by Arkivio's Software; or (ii) advise Arkivio that Customer does not wish the problem pursued at its possible expense, in which case Arkivio may elect, at its sole discretion, not to pursue the problem without liability therefor.
10.9 Provision of Updates. Upon payment of the Annual Maintenance and Support Fee for a particular year of the Agreement, Arkivio will provide Updates to the Software, as they may become available, during such year to Customer's authorized administrative contact.
11. General Provisions.
11.1 ARKIVIO'S LIABILITY TO CUSTOMER FOR A CLAIM OF ANY KIND RELATED TO THIS AGREEMENT, OR ANY SERVICE PROVIDED HEREUNDER, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE OF FEES PAID TO SUCH SELLER FOR THE SERVICE INVOLVED IN THE CLAIM.
11.2 IN NO EVENT WILL ARKIVIO OR ANY OF ITS LICENSORS OR SUPPLIERS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR ECONOMIC CONSEQUENTIAL DAMAGES(INCLUDING, WITHOUT LIMITATION, LOST BUSINESS REVENUES OR PROFITS, GOODWILL, ANTICIPATED SAVINGS, LOSS OF OR DAMAGE TO DATA, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE YEAR AFTER THE EVENTS THAT GAVE RISE TO THE CAUSE OF ACTION OCCURRED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CUSTOMER.
11.3 Customer will, at its expense, indemnify, defend, save and hold harmless Arkivio and its suppliers from any claim brought or filed by a third party against Arkivio or its suppliers due to any failure by Customer, its employees or agents to act in accordance with the terms of this Agreement.
11.4 Arkivio and Customer are independent contractors and will so represent themselves in all regards. Neither party may bind the other in any way.
11.5 Customer may not assign this Agreement without the prior written consent of Arkivio, which consent will not be unreasonably withheld. Any purported assignment in contravention of this Section is null and void. A transfer of a controlling interest in the equity of Customer will be deemed an assignment for purposes of this subsection. Subject to the foregoing, this Agreement will bind and inure to the benefit of any successors or assigns.
11.6 Neither party will be responsible for failure of performance, other than for an obligation to pay money, due to causes beyond its reasonable control, including, without limitation, acts of God or nature; labor disputes; sovereign acts of any federal, state or foreign government; or shortage of materials.
11.7 All notices or other communications required or given under this Agreement will be in writing, unless otherwise specified in the Agreement. Unless otherwise specified in the Agreement, such notices will be deemed to have been duly given upon delivery if delivered personally, by one-day courier, by facsimile transmission where receipt is acknowledged by the receiving machine, or sent by registered or certified mail, postage prepaid, return receipt requested, to the address for the other party set forth above. Either party hereto may change the address to which such communications are to be directed by giving written notice to the other party hereto of such change in the manner provided above. Customer will use the following email address (or such other email address as designated in writing from time to time by Arkivio) to send reports via email or to send email notices as required or permitted under this Agreement: license@arkivio.com.
11.8 This Agreement is the complete and exclusive statement of the parties to this Agreement on these subjects, and supersedes all prior written or oral proposals and understandings relating thereto. This Agreement may only be modified by a writing signed by an officer of Arkivio and an authorized representative of Customer. This Agreement takes precedence over any purchase order issued by or on behalf of Customer, which is accepted by Arkivio for administrative convenience only. If any court of competent jurisdiction determines that any provision of this Agreement is invalid, the remainder of the Agreement will continue in full force and effect. The offending provision will be interpreted to whatever extent possible to give effect to its stated intent.
11.9 Failure to require performance of any provision or waiver of a breach of a provision does not waive a party's right to subsequently require full and proper performance of that provision. Singular terms will be construed as plural, and vice versa. Section headings are for convenience only and will not be considered part of this Agreement.
11.10 This Agreement is governed by the laws of the State of California, without giving effect to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Each party submits to the jurisdiction of the appropriate state or federal courts in California. Arkivio may seek to specifically enforce or prevent a breach of any term of this Agreement in the appropriate courts of any state or country in which the Software is deployed by Customer or in which Customer maintains an office. The prevailing party in any suit under this Agreement will recover all costs, expenses and reasonable attorney fees incurred in such action. Nothing in this Agreement will be deemed a waiver by either party of any and all available legal or equitable remedies.
Arkivio Services and Support Agreement (website version) -- Copyright © 2006 Arkivio, Inc.