This agreement ("Agreement") is made between the
customer ("Customer") and SMC Technologies ("Supplier"). It sets out
the terms and conditions under which the
Supplier agrees to provide the Customer with support services for SMC
Technologies software solutions including smc WebStore, smc HomeSite,
smc WebMall, smc StoreBuilder, smc WebLinks, smc MailList, and smc
Webstore2Go
(the "Software").
Competence
Supplier shall retain the necessary competence for enablng further
development of the Software, maintenance of documentation, and for
providing training to the Customer.
Fault Reports
Supplier will during Monday to Friday, excluding holidays ("Business Days")
provide email and telephone support for reception of fault reports.
Response will be given within one to two Business Days to indicate receipt of the
report.
Fault Remedies
For serious faults, the Supplier will first seek ways to work around the
fault. If a fault cannot be worked around, the fault will be corrected.
Application of patches and updates will be
performed by the Supplier.
Customer Responsibility
To facilitate the Supplier's ability to identify and remedy faults, the
Customer will, as far as possible, supply documentation and other relevant
information. The Customer shall provide a contact who will be responsible
for providing this information to the Supplier.
Limitations
The Supplier does not guarantee that the Software can be used without
disruption, that provided remedies can be used without disruption, or that
all problems will be solved.
The Supplier is and will remain owner of all documentation and source code
in the Software. This applies irrespective of whether these materials have
been in the Customer's possession, or are made available to the Customer.
This Agreement does not alter, replace, or nullify the terms found in the
software license agreement for the Software.
Subcontracting
The Supplier may subcontract such portions of its undertakings under this
Agreement, as Supplier deems appropriate. The Supplier shall however
remain responsible to the Customer for the performance of any such
subcontractor, as if performed by the Supplier.
Limit of Liability
The Supplier's liability on any claim of damages arising out of this
Agreement, or the provision of services under it, shall be limited to the
sum amounting to the fees paid by the Customer, as outlined in Support
Fees below.
The Supplier shall in no event be liable for any exemplary, incidental,
special, consequential, or indirect damages, including damages for loss
of data or loss of business, even if the Supplier has been advised of the
possibility of likelihood of such damages.
Force Majuere
Neither the Supplier nor the Customer shall be liable for any breach of
this Agreement which is caused by a matter beyond its reasonable control
including Act of God, fire, lightening, explosion, war, disorder, flood,
earth quake, industrial disputes (whether or not involving their employees),
extremely severe weather, or acts of local or central government or other
competent authorities, or which is caused by a subcontractor's failure to
deliver due to such matters.
Should a breach caused by Force Majeure continue for more then three (3)
months, either party shall have a right to terminate this Agreement by
giving at least thirty (30) days' prior written notice.
Entire Agreement
This Agreement, including all parts, each of which is incorporated herein,
is the entire agreement between the Supplier and Customer with respect to
its subject matter and supersedes any other Support Agreement between the
parties. There are no other representations or agreements between the
parties relative to such subject matter.
Term and Termination
This agreement shall enter into effect on the date of report of fault when Customer is paying on a
per-incident basis. It shall remain valid for five (5) years from the date
it came into effect a
per-incident fault has been remedied, or at such time that the Supplier
determines that a fault reported on a per-incident fee basis cannot be
remedied.
Governing Law, Disputes
This Agreement shall be governed by and construed in accordance with the
law of the Commonwealth of District of Columbia, without regard to conflict of
law principles.
Unless otherwise agreed in writing, all disputes relating to this
Agreement (excepting any dispute relating to intellectual property rights)
shall be subject to final and binding arbitration in the State of District of Columbia, in accordance with the Licensing Agreement Arbitration
Rules of the American Arbitration Association, with the losing party
paying all costs of arbitration. Arbitration must be by a member of the
American Arbitration Association. If any dispute arises under this
Agreement, the prevailing party shall be reimbursed by the other party for
any and all legal fees and costs associated therewith.
