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PREMIUM MAINTENANCE AGREEMENT
1. Purpose of Agreement. You (hereinafter "Customer") desire that Double-Take Software, Inc. 257 Turnpike Road, Suite 210, Southborough, MA 01772 (hereinafter "Licensor") maintain certain computer software programs (the "Programs"). LICENSOR is willing to provide these services upon the terms and conditions herein.
2. Term. Customer will receive Maintenance Services for the period of time set forth on Customer's invoice from the date of Customer's initial purchase ("Initial Term"), as described herein. Upon expiration of the Initial Term, and upon receipt of Customer's payment for Maintenance Services, Customer will receive Maintenance Services which shall expire on the anniversary date of the initial purchase of the Program(s). This agreement shall, unless earlier terminated pursuant to paragraph 8 below, remain in full force and effect for the Initial Term. Thereafter, this Agreement shall automatically renew for additional twelve (12) month renewal terms, provided that Customer pays the current renewal fee to LICENSOR, or unless either party terminates this Agreement in accordance with paragraph 8 below.
3. Maintenance Charge. The maintenance fee shall cover all services provided hereunder, but shall not cover costs of any materials, parts, manuals, software, travel, or other disbursements as may be necessary or requested by Customer, which shall be billed to Customer as separate costs when they occur. LICENSOR may change the yearly maintenance fee to reflect its then-current standard fees by notice to Customer at least thirty (30) days prior to the date on which the next maintenance fee payment is due from the Customer.
4. Maintenance Services. After the Initial Term, LICENSOR shall, in exchange for payment of the Maintenance Fee, perform the following maintenance services:
(a) Error Correction. LICENSOR shall work to correct all reproducible errors that materially affect operation of the Program(s) as follows: Customer shall notify LICENSOR of any such errors in writing, with a written description of each claimed error and the conditions under which it occurred. LICENSOR shall work to correct all such errors that it can verify based on Customer information, and shall continue working either until it corrects the error, develops a workaround for that error, or determines in good faith that the error cannot be corrected as part of the then current releases of the Program(s) (in which event LICENSOR shall attempt to correct or eliminate the error in the next release of the Program(s). Customer may notify LICENSOR of claimed errors by telephone, provided that the written notice described above must be furnished by the next business day, and that LICENSOR need not begin work promptly if the telephone information is incomplete or inadequate.
(b) Telephone Support. LICENSOR will provide 2 hours response time for telephone support 24 hours a day, 7 days a week, 365 days a year. This includes any assistance Customer may require in using the Program(s) that can be handled by telephone. For Technical Support in North America call 1-800-775-8674 or 317-598-2066. For Technical Support in EMEA call +44 (0)1905 330820 or +33 (0)1 47 77 15 06 or 49 (0) 69 95 92 52 46. Outside normal business hours for EMEA call +44 (0) 8707 777 383. Email support can be achieved using one of the following Double-Take support email addresses: support@doubletake.com; for EMEA use eusupport@doubletake.com Please recognize that an email response is not under the conditions of the telephone response times. Error correction services are subject to the provisions (a) above.
(c) Maintenance Updates. Customer will receive all standard Maintenance Updates released by LICENSOR for any of the Program(s), free of charge, during the paid maintenance period. A 'Maintenance Update" is a modified version of a Program released by LICENSOR generally to its existing Customers without charge, primarily to correct or eliminate errors in the prior release of the Program and also to enhance existing features (example: Updating from revision 4.1.1 to revision 4.1.2. Updating from revision 4.1 to revision 4.2 or even updating from revision 4.2 to revision 5.0).; it does not include new versions or upgrades of any Program for which LICENSOR generally charges an additional fee (example 1: upgrading from a Microsoft Server version of software to a Microsoft Advanced Server version of any program or example 2: upgrading from GeoCluster to GeoCluster+, or any new modules or products LICENSOR releases that are commercially sold separately).
(d) New Release and End of Life. In the event that LICENSOR releases a new version of the Program(s) or end of life's the Program(s), LICENSOR shall provide telephone support only for such prior release or end of life Program(s) for one year from the date of the new release or end of life Program(s).
(e) Other Services. All services not listed above, such as any on-site assistance or maintenance, and any requested modifications to any of the Programs, shall be performed by LICENSOR at its sole discretion, at its then-current standard hourly rates, and subject to such other written agreements as may be required by LICENSOR.
5. Customer's Obligations. Customer will cooperate with LICENSOR in connection with LICENSOR's performance of its services hereunder and shall provide LICENSOR with such information concerning Customers operations as LICENSOR shall reasonably request and as shall be necessary for the performance of LICENSOR's services hereunder.
6. Modifications by Customer. Customer shall not modify, create any derivative work of, or incorporate any other software into the computer software programs or any portion thereof. LICENSOR shall not be responsible for maintenance of or for repair of errors or malfunctions occasioned by any modification or enhancement to the Programs made by Customer or by anyone other than LICENSOR. Any modifications or enhancements made by Customer or by anyone other than LICENSOR shall be grounds for immediate termination of this Maintenance Agreement.
7. WARRANTY AND LIABILITY.
ALL SERVICES AND MATERIALS ARE PROVIDED BY LICENSOR "AS IS". IN NO EVENT SHALL LICENSOR, ITS DIRECTORS, OFFICERS, EMPLOYEES, AND/OR CONSULTANTS, BE LIABLE TO CUSTOMER OR ANY OF ITS AFFILIATES FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM THE SERVICES PROVIDED HEREUNDER. LICENSOR's cumulative liability hereunder for damages, regardless of the form of action, shall not exceed the Maintenance Fee actually paid hereunder as of the date such claim arose. LICENSOR shall not be liable for any lost profits, or for any claim or demand against the Customer by any third party on account of services performed hereunder. LICENSOR recommends that the Programs be installed by an LICENSOR certified implementation specialist through LICENSOR's Professional Services Group. However, if the Customer elects to install the Programs without the assistance of an LICENSOR certified implementation specialist, the Customer is solely responsible for ensuring that the Programs are installed properly to achieve their intended results and the results actually obtained. Accordingly, LICENSOR shall have no responsibility or liability under this Maintenance Agreement or any warranty hereunder, to the extent such warranty exists, to correct, validate, bring into compliance or otherwise remedy any problem with the Program(s) that is caused in whole or in part by the improper or inadequate installation of the Program(s) by Customer or incompatibility of Customer's environment, hardware or software with the Program(s).
8. Termination. LICENSOR may terminate this Agreement upon ten days' written notice to Customer in the event Customer fails to pay the Maintenance Fee within thirty (30) days of the date of invoice or breaches any of the terms set forth herein. Customer may terminate this Agreement immediately at any time, provided that it is responsible for the full amount of all maintenance payments due through the end of the term, unless termination is due to breach by LICENSOR.
9. License Rights. Any and all Program modifications and Maintenance Updates provided by LICENSOR hereunder shall be considered part of the Program(s) to which they apply and owned exclusively by LICENSOR, and Customer's rights and/or licenses thereto shall be governed by Customer's then-current agreement with LICENSOR regarding such Program(s).
10. General
(a) Merger. This Agreement contains the entire agreement of the parties with respect to its subject matter and supersedes all existing agreements and all oral, written or other communications between them concerning its subject matter. This Agreement shall not be modified in any way except by a writing signed by both parties.
(b) Assignment. Customer may not assign this Agreement without prior written consent by LICENSOR. This Agreement shall be fully binding and enforceable as against all permitted assignees and successors in interest.
(c) Enforceability. If any provision of the Agreement (or any portion thereof) shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.
(d) Law and Forum. If this Agreement (and any and all amendments thereto) is made in North America, its validity, construction and performance shall be governed in all respects by the laws of the State of Delaware, without regard to Delaware's choice of law rules. Exclusive jurisdiction and venue for all matters relating to this Agreement shall be in the State of Delaware, and the parties hereby agree and consent to such jurisdiction and venue.
If this Agreement (and any and all amendments thereto) is made between the Customer and Double-Take Software's Affiliate Double-Take Software SAS, this Agreement and its validity, construction and performance shall be governed in all respects by the laws of France. Exclusive jurisdiction and venue for all matters relating to this Agreement shall be held in Paris, France, and the parties hereby agree and consent to such jurisdiction and venue.
(e) Notices. All notices shall be in writing and shall be forwarded by registered or certified mail or by overnight express courier requiring signature of the recipient to complete delivery, and sent to the parties at the addresses set forth at the top of this Agreement or to any other addresses designated in writing hereafter, if to Customer, ATT: President, if to LICENSOR, ATT: Contracts Manager, Double-Take Software, Inc., 257 Turnpike Road, Suite 210, Southborough, MA 01772 with a copy to: CFO, Double-Take Software, Inc., 8470 Allison Pointe Blvd., Suite 300, Indianapolis, IN 46250. Notices sent by registered or certified mail shall be deemed delivered seven (7) business days after mailing; notices sent by express courier as described above shall be deemed delivered the day after they are given to the courier by the notifying party. Notwithstanding the foregoing, notices of Program errors under this Agreement may be sent by facsimile transmission with voice verification of receipt.
(f) Headings. The headings in this Agreement are intended for convenience of reference and shall not affect its interpretation.
(g) Non-Waiver. The failure of either Customer or LICENSOR to insist upon strict performance of any of the provisions contained herein shall in no way constitute a waiver of future violations of the same or any other provision.
(h) No Third Party Rights. This Agreement does not create any rights in any third parties, except assigns, successors of heirs expressly permitted hereunder.