These Terms and Conditions become effective upon receipt of applicable Service Fees by Hsoft Interactive. (“Hsoft”) for Support Services related to valid software licenses purchased by Customer. These Terms and Conditions will govern the rights and obligations of Hsoft and Customer in relation to the Support Services described in any related Order Form(s), Statement(s) of Work, Contract(s) or other document(s) between Hsoft and Customer.
1.1 “Customer” means the person or entity whose authorized agent has ordered Support Services from Hsoft or from an authorized distributor or reseller.
1.2 “Documentation”means the official user or operator documentation for the Software published by Hsoft and generally made available to its customers, as may be updated from time to time by Hsoft. Such Documentation will identify the specific product features and functionality of the Software (and each component thereof).
1.3 “End User” means a user authorized to access or use the Product(s).
1.4 “Extended Support” means the Support Services that may be available at an additional charge on any Product that has reached its End of Availability, as defined in Section 2.2 below. Extended Support, if purchased, extends the Technical Guidance period on an annual basis. The customer must be an actively supported customer in good standing in order to enter into Extended Support. Code modifications, patches or custom development by Hsoft onproducts supported under an Extended Support agreement will require a separate Statement of Work and are not included in the Support Services defined in this Agreement.
1.5 “Regular Support” means the Support Services provided for a defined period from general availability (“GA”) of a Major Release, as set forth in Hsoft’s Support Services Program. Regular Support includes (off-site) bug and security fixes and providing answers to product specific quesctions.
1.6 “Maintenance Services” means the provision of Maintenance Releases, Minor Releases, and Major Releases (each defined below), if any, to the Software, as well as corresponding Documentation, to Customer.
“Maintenance Release” or “Update,” means a generally available release of the Software that typically provides maintenance corrections or fixes only, designated by Hsoft by means of a change in the digit to the right of the second decimal point (e.g. Software 8.0 >> Software 8.0.1).
“Minor Release” means a generally available release of the Software that (i) introduces a limited amount of new features and functionality, and (ii) is designated by Hsoft by means of a change in the digit to the right of the decimal point (e.g., Software 8.0>>Software 8.1).
“Major Release” of “Upgrade,” means a generally available release of the Software that (i) contains functional enhancements or extensions, and (ii) is designated by Hsoft by means of a change in the digit to the left of the first decimal point (e.g., Software 8.0 >> Software 9.0).
1.7 “Modified Code” means any modification, addition and/or development of code scripts deviating from the predefined product code tree(s)/modules developed by Hsoft for production deployment or use. Configuration of Software options which are intended to be altered is not considered a modification of the Software.
1.8 “Non-Conformity” or “Non-Conformities” means a failure in the Software to operate substantially in accordance with the applicable product documentation (“Documentation”).
1.9 “Product(s)” means the software products identified by Hsoft and purchased by Customer and all updates and upgrades thereto, including error corrections, bug fixes, patches, functional enhancements, modifications, and extensions. “Products” may also include Support Services but excludes Open Source Software. Distributor may not modify or repackage the Products without Hsoft’s written consent.
1.10 “Services Fees” means the fees for Support Services specified in a corresponding Hsoft or reseller invoice.
1.11 “Support Level” means the Support Services package purchased by Customer.
1.12 “Services Period” means the period for which Customer has purchased the Support Services and any subsequent renewal periods and will commence: (a) for Software Licenses for which Support Services are mandatory, on the date the applicable Software License Key(s) are made available for download; and (b) for perpetual Software Licenses for which Support Services are optional, on the date of purchase of the Support Services.
1.13 “Service Request” means any written or electronically written request for any Support Services by a Customer.
1.14 “Severity” is a measure of the impact a Non-Conformity or issue, as reported in a Service Request, has on the use of the Software, as determined by Hsoft. The following Severity levels apply to all Software:
“Severity One” or “Severity-1” means Customer’s production server or other mission critical system(s) are down and no workaround is immediately available and (i) all or a substantial portion of Customer’s mission critical data is at a significant risk of loss or corruption; or (ii) Customer has had a substantial loss of service.
“Severity Two” or “Severity-2” means that major functionality is severely impaired such that: (i) operations can continue in
a restricted fashion, although long-term productivity might be adversely affected and a temporary workaround is available; or (ii) a major milestone is at risk, ongoing and incremental installations are affected, and a temporary workaround is available.
“Severity Three” or “Severity-3” means a partial, non-critical loss of functionality of the software such that: (i) the operation of some component(s) is impaired but allows the user to continue using the Software; or (ii) initial installation milestones are at minimal risk.
“Severity Four” or “Severity-4” means (i) general usage questions and cosmetic issues, including errors in the Documentation, and (ii) cases opened via email for Hsoft Software.
1.15 “Software” means software offered by Hsoft to Customer, and all components delivered with the Software, including open source components.
1.16 “Support Services” means General Support, Maintenance Services, Technical Guidance, and Technical Support.
1.17 “Technical Guidance” means the Support Services provided for an additional period following General Support, as set forth in Hsoft’s Support Services Program. Hsoft Support Services will continue to be available for products within the Technical Guidance period; however, there will be no new releases, bug fixes or security patches for products within Technical Guidance. This phase is for usage by customers operating in stable environments with systems that are operating under reasonably stable loads, and this period should be utilized by customers to plan and complete upgrades to a current product version that is available within General Support.
1.18 “Technical Support” means the provision of telephone or web-based technical assistance by Hsoft to Customer’s technical contact(s) with respect to service requests, at the corresponding Service Level purchased by Customer.
1.19 “Third Party Products” means any software or hardware that (i) is manufactured by a party other than Hsoft and (ii) has not been incorporated into the Software by Hsoft.
1.20 “Hsoft Support Services Program” means the overview of Hsoft’s Support Services that can be found on Hsoft’s website or such other site as Hsoft may decide. Hsoft’s website and the Hsoft Support Services Program may be modified from time to time without prior written notice.
2. SERVICE TERMS
2.1 Provision of Support Services. Subject to the terms of this Agreement, Hsoft will, during the Services Period, provide Customer with Support Services at the applicable Service Level purchased.
2.2 End of Availability. Hsoft may, at its discretion, decide to retire Software and/or Support Services from time to time (“End of Availability”). Hsoft will post notice of End of Availability, including the last date of general commercial availability of the affected Software and the timeline for discontinuing Support Services on Hsoft’s website. Hsoft will have no obligation to provide Support Services for Software that is outside of the applicableSupport Services life.
2.3 Purchase Requirements.
Except as otherwise provided by Hsoft, Customer may purchase initial Support Services only for the most current, generally available release of the Software.
Customer must purchase and/or renew Support Services at the same Services Level for all of the Software in a given environment (e.g., Test, Development, QA, and Production).
Except as otherwise provided in the applicable price list, the minimum term for any Support Services offering is one (1) month.
These Terms and Conditions will automatically update to Hsoft’s then- current Support Services terms and conditions set forth at the Hsoft Support Services website upon any renewal of Support Services.
Support Services do not cover problems caused by the following: (i) accident;unusual physical, electrical or electromagnetic stress; neglect; misuse; failure of electric power, air conditioning or humidity control; failure of rotation media not furnished by Hsoft; operation of the Software with other media not in accordance with the manufacturer’s specifications; or causes other than ordinary use; (ii) improper installation by Customer or use of the Software that deviates from any operating procedures as specified in the Documentation; (iii) Third Party Products, other than the interface of the Software with the Third Party Products; (iv) Modified Code; (v) issues relating to Software offered as a Service (“SaaS”); (vi) any customized deliverables created by Hsoft specifically for Customer as part of consulting services; or (viii) use of the Software with unsupported tools (e.g., Java Development Kit (JDK); Java Runtime Environment (JRE)), APIs, interfaces, or data formats other than those included with the Software and supported as set forth in the Documentation; or (vii) any issue not covered by Technical Support. Customer may request assistance from Hsoft for such problems, for an additional fee.
If Hsoft suspects that a reported problem may be related to Modified Code, Hsoft, may, in its sole discretion: (i) request that the Modified Code be removed; and/ or (ii) inform Customer that additional assistance may be obtained by Customer directly from various product discussion forums or by engaging Hsoft’s consulting services group for an additional fee.
Hsoft Interactive is not obligated to provide any Updates or Upgrades (or otherwise perform Maintenance Services) to Customer if Customer has not paid the applicable Service Fee or if Customer is not in compliance with these Terms and Conditions.
2.5 Customer Responsibilities. Hsoft’s obligations regarding Support Services are subject to the following:
Customer will promptly report to Hsoft all problems with the Software, and will implement any corrective procedures provided by Hsoft reasonably promptly upon receipt of the request.
Customer will provide Hsoft with all information, access, and full good faith cooperation reasonably necessary to facilitate the provision of the Support Services, and will do anything that is identified in the relevant Order Form or Statement of Work as the Customer’s responsibility. Customer’s failure or delay in its performance of any of the foregoing relieves Hsoft of its obligations under this Agreement to the extent that such obligations are dependent upon Customer’s performance.
Customer will provide Hsoft a list of contacts (including name, email address, and phone number) of those individuals authorized to open Service Requests on Customer’s behalf. These authorized contacts must have the access and authority to administer or configure the Software as required by the nature of the Service Request. Hsoft does not provide support directly to the end users of the Software.
Customer is solely responsible for the use of the Software by its personnel andwill properly train its personnel in the use and application of the Software.
Customer is solely responsible for protecting and backing up the data and information stored on the computers on which the Software is used, and should confirm that the data and information is protected and backed up in accordance with any internal or regulatory requirements as applicable before contacting Hsoft for Technical Support. Hsoft is not responsible for lost data or information in the event of errors or other malfunction of the Software or computers on which the Software is used.
Customer will have dedicated resources available to work 24X7 on Severity One service requests.
Customer is solely responsible for maintaining procedures external to the Software for reconstruction of lost or altered files, data, or programs to the extent that it deems necessary and for performing any such reconstruction.
Customer is responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation, computers, computer operating systems, data storage, network devices, and web browsers.
3. SUPPORT SERVICES OFFERINGS AND FEES
3.1 Services Fee Terms.
Services Fees are payable on the Effective Date or, in the case of a renewal term, no later than the date of commencement of the applicable Services Period. Services Fees are non-refundable.
If Customer renews or adds a Support Services offering that has a minimum term of one (1) month, Customer may elect to make Support Services for all or a portion of its Software licenses coterminous with the renewed or added Support Services. In that case, Hsoft will prorate the applicable Services Fees to extend the current Services Period to make it coterminous with the renewed or added Support Services.
For Software that is licensed on a perpetual basis, if a Customer purchases Support Services after acquiring the Software licenses, or had elected not to renew Support Services and later wishes to re- enroll in the Support Services, Customer must move to the then-current Major Release of the Software and must pay: (i) the applicable Services Fees for the current Services Period; (ii) the amount of Services Fees that would have been paid for the period of time that Customer had not enrolled in the Support Services; and (iii) a twenty-percent (20%) reinstatement fee on the sum of the Services Fees in (i) and (ii).
In cases where Customer purchases a license to migrate up from one edition of the Software to another, any unused period of the Services Period on the original license will be converted and used to extend the Services Period for the newly purchased upgraded license. This paragraph (d) will not apply to enterprise license agreements.
If Customer originally purchased Support Services from a Hsoft Authorized Service Provider and is now renewing only Technical Support through such Hsoft Authorized Service Provider, Customer may purchase Maintenance Services separately on a renewal basis directly from Hsoft. The renewal fee for such Maintenance Services will be as set forth in the applicable price list.
3.2 Support Services Notice. During any Services Period, Customer will be entitled to: (a) reasonable notice from Hsoft of the discontinuance of Support Services for a particular version of the Software; and(b) reasonable notice from Hsoft as to any material changes to the key features and functionality of the Software, provided that existing material functionality of the Software will not be removed in any subsequent Updates or Upgrades to the Software, unless made technically necessary by changes to the operating system.
3.3 Advanced and Complimentary Offerings.
Certain Support Services may require that Customer also purchase a base level of support.
Hsoft may offer complimentary Support Services, as more fully described on the Hsoft website such as the provision of Maintenance Releases and Minor Releases, if any, to Customer.
Support Services for Software made available under open source licenses may be subject to additional policies governing open source software.
4. TERM AND TERMINATION
4.1 At least fifteen (15) days prior to expiration of the initial Service Period, Customer may renew for a one (1) year term unless one party provides the other party with written notice of termination more than thirty (30) days prior to the expiration of the then current Service Period. Subsequent annual Service Fees shall be charged at Hsoft’s then current standard rates. Within sixty (60) days prior to the expiration of the then current Service Period, Hsoft shall provide Customer with written notice (which maybe in the form of an invoice) detailing the annual Service Fee for the subsequent renewal of such Service Period. If Customer does not renew prior to expiration of the initial Service Period, all Support Services will be terminated.
4.2 If Support Services have been terminated by Customer, Customer may reinstate such Support Services upon payment of the annual Service Fee in effect at the time, plus all unpaid annual Service Fees for periods subsequent to the date of termination or such alternate reinstatement fee, if any, as the parties mutually agree to accept in writing at the time of reinstatement.
4.3 Support Services may be terminated by Hsoft prior to the expiration of the Service Period upon the occurrence of any of the following events of default and the failure of Customer to cure such default within thirty (30) days after written notice of such default has been given by Hsoft to Customer: (a) if any undisputed sum of money owed byCustomer
is not paid when due; (b) if any breach occurs under any confidentiality provisions; or (c) if any material breach by Customer occurs as to any other term hereof or any other agreement between Hsoft and Customer.
4.4 In the event of any such default and the continuance thereof beyond the applicable cure period, Hsoft shall have the option to terminate Support Services by giving written notice of termination to Customer. Upon such termination, all amounts owed by Customer and unpaidasof the date of such termination shall become immediately due and payable to Hsoft.
4.5 If either party goes into receivership, bankruptcy, or insolvency, or makes an assignment for the benefit of creditors, or ceases to operate its business, Support Services shall be immediately terminable by the other party by written notice, but without prejudice to any rights of the terminating party hereunder, such termination to be effective as of one day prior to such event.
4.6 Support Services may be terminated by Customer prior to the expiration of the Services Period in the event of a breach by Hsoft of any warranty expressly set forth herein or a material breach by Hsoft of any other term or condition hereof and Hsoft fails to cure such breach within thirty (30) days after written notice of such breach is given by Customer to Hsoft. In the event of any such default, Customer shall have the option to terminate Support Services by giving notice of termination to Hsoft immediately and receive a refund of any prepaid Support Fees for that portion of the Services Period subsequent to such termination.
4.7 Customer’s payment obligations andany other provision hereof, which by its terms is intended to so survive, shall survive any expiration or termination of Support Services for any reason.
5. WARRANTIES, DISCLAIMERS, AND EXCLUSIVE REMEDIES
5.1 Hsoft warrants that Support Services will be provided in a professional manner consistent with industry standards. Customer must notify Hsoft of any service deficiencies within thirty (30) days from performance of the defective services. Hsoft DOES NOT GUARANTEE THAT THE SOFTWARE WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT Hsoft WILL CORRECT ALL SOFTWARE ERRORS.
5.2 FOR ANY BREACH OF THE ABOVE WARRANTIES, CUSTOMER’S EXCLUSIVE REMEDY AND Hsoft’S ENTIRE LIABILITY SHALL BE: (A) THE CORRECTION OF SOFTWARE ERRORS THAT CAUSE BREACH OF THE WARRANTY; OR, IF Hsoft CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY END THE SERVICES PERIOD AND RECOVER A PRORATED PORTION OF ANY MAINTENANCE FEES PREPAID TO Hsoft; OR (B) THE REPERFORMANCE OF THE DEFICIENT SUPPORT SERVICES. TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE
AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING WARRANTIES OR CONDITIONS
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. MISCELLANEOUS PROVISIONS
6.1 Confidentiality. Neither party will disclose any Support Services-related terms, conditions, and/or fee amounts to any third party, unless required to do so by order of any court or governmental authority of competent jurisdiction.
6.2 Binding. No Assignment. This agreement shall be binding upon and inure to the benefit of the parties and their successors, permitted assigns, and legal representatives. Customer may not assign, sublicense, or otherwise transfer the Support Services unless in conjunction with a transfer of the Software.
6.3 Language. This Agreement has been agreed to only in the English language. This English language version will control regardless of whether any translations of thisAgreement have been prepared or exchanged. Customer acknowledges and represents that it has carefully reviewed this Agreement with the involvement and assistance of your employees, advisors, and/ or legal counsel fluent in the English language, that it has consulted with local legal counsel and counsel competent to render advice with respect to transactions governed by the law applicable to this Agreement, that it has no questions regarding the meaning or effect of any of this Agreement’s terms, and that it has obtained high-quality translations of this Agreement for use by Customer or any of Customer’s team who are not fluent in the English language, with the understanding that Customer alone will bear the risk of any misunderstandings that may arise as a result of such translation. All communications in connection with this Agreement will be in the English language.
6.4 Notices to Hsoft. Any notices to Hsoft under this Agreement must be in writing and either delivered in person, sent by email, or first class mail (if within the United States), or sent by air courier to the address set forth below. Notices will be considered to have been given at the time of actual delivery in person, five (5) business days after deposit in the mail, or two business (2) days after delivery to an air courier service or confirmation of email receipt.
Attn: Legal Department
Address: Ekiti State House
Address: Central Business District
Country: Abuja, Nigheria
6.5 Choice of law; Jurisdiction; Jury Waiver. This agreement shall be governed by and construed and enforced in accordance with the laws of the Federal Republic of Nigeria without regard to its choice of law, and all applicable laws, regulations, treaties, or ordinances of Nigeria. This agreement shall be interpreted in accordance with the commonly understood meaning of the words and phrases in Nigeria. All judicial proceedings regarding any dispute and/ or controversy relating to Maintenance shall be initiated in the State or Federal courts sitting in Abuja, and each party irrevocably submits to the jurisdiction and venue of any such court in any such proceeding. BOTH PARTIES WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
6.6 Attorneys’ Fees. In the event of any legal action, arbitration, or proceeding brought by either party against the other arising out of this agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in such action and such amount shall be included in any judgment or arbitration decision rendered in such proceeding.
6.7 Severability. If any of the parties’ obligations under this agreement are found by a court
of competent jurisdiction to be illegal or unenforceable in any respect, such illegality or unenforceability will be interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law but shall not affect the other provisions of this agreement, all of which shall remain enforceable in accordance with their terms.
6.8 No waiver. The parties shall not be deemed to waive any of their rights or remedies under this agreement unless such waiver is in writing and signed by the party to be bound. No delay or omission on the part of either party in exercising any right or remedy under this agreement will be construed to be a waiver thereof. A waiver of any right or remedy on any one occasion shallnot be construed as a bar to or waiver of such right or remedy or any other right or remedy on any future occasion.
6.9 Data Protection. Customer acknowledges that correspondence and log files generated in conjunction with a request for Support Services may contain sensitive, confidential, or personal information. Customer is solely responsible
for taking the steps it considers necessary to protect the data, including obfuscating the logs or otherwise guarding the information before sending it to Hsoft.
6.10 Force Majeure. In no event shall a party be liable to the other party for any delay or failure
to perform its obligations under this agreement (other than a failure to pay amounts owed), which delay or failure to perform is attributable to an event of force majeure or other causes beyond the control of such party and without the fault or negligence of the party claiming excusable delay.
6.11 Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular and the singular the plural; (b) “or” has the inclusive meaning frequently identified with the phrase “and/or;” and (c) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation.” Any reference in this Agreement to any statue, rule, regulation, or agreement, including this Agreement, will be deemed to include such statute, rule, regulation, or agreement as it may be modified, varied, amended, or supplemented from time to time.
6.12 Modifications to the Agreement. Hsoft may modify this Agreement (including anything in Hsoft’s Support Services Program) at any time by posting a revised version on theHsoft website. The modified terms will become effective upon posting. By continuing to use the Support Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Hsoft website regularly for modifications to this Agreement. Hsoft last modified this Agreement on the date listed at the beginning of this Agreement.
6.13 Entire Agreement. This agreement supersedes and terminates all prior written
and oral agreements, proposals, promises, and representations of the parties with respect to the services covered by this agreement. The terms of this agreement shall not be amended or changed by the terms of any purchase order or acknowledgement of Customer, even though Hsoft may have accepted or signed such document. Any terms or conditions in any amendment, addenda, or written order form that vary from, or add to, the terms and conditions of this agreement shall be of no force and effect. This agreement has been written in the English language and each party waives any rights that it may have under applicable law to be written in the language of the country of that party’s domicile or incorporation.