THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH NEOTYS PROVIDES ITS CLIENTS WITH MAINTENANCE SERVICES FOR NEOLOAD SOFTWARE AND WHICH CLIENTS ACCEPT IN WHOLE BY CLICKING THE BUTTON BELOW “I ACKNOWLEDGE HAVING READ THE NEOLOAD SOFTWARE MAINTENANCE AGREEMENT AND ACCEPT ITS TERMS AND CONDITIONS” AND/OR BY USING THE SERVICES PROVIDED BY NEOTYS. THE CLIENT THEREBY AGREES THAT THIS MAINTENANCE AGREEMENT IS ENFORCEABLE LIKE ANY NEGOCIATED WRITTEN AGREEMENT SIGNED BY CLIENT AND CLIENT AGREES TO BE BOUND BY THE TERMS AND CONDITIONS AS DESCRIBED BELOW.
PREAMBLE
The CLIENT has purchased from NEOTYS a license for the use of the Software under a separate license agreement (the “Software License Agreement”).
This agreement defines the terms and conditions under which NEOTYS accepts to provide support services to the CLIENT for the Software.
NOW, THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1 : Definitions
In the present agreement, the following capitalised terms shall have the meaning set forth below :
Date of maintenance: The day when maintenance begins is mentioned on the invoice.
Software : The NeoLoad software in object code and all accompanying documents and/or the associated modules.
Updates (minor releases): Updates are bundles of bug corrections or Software performance enhancements. Updates are regularly distributed to the CLIENT by any medium and method. NEOTYS shall decide when and how to distribute them.
New Versions (major releases): New Versions are Software versions with significant functional changes. They are Software milestones with corrections and improvements from the previous versions. They result from new developments and they offer new functionalities. The first figure in a version number stand for a major release, e.g. version 2.1.1.
Documentation: A new Software version may include the related documentation if updated.
ARTICLE 2: Maintenance Scope
The purpose of the present agreement (the “Agreement”) is to define the terms and conditions under which NEOTYS will provide the support services pertaining to the Software (the “Services”). During the term of this Agreement and pursuant to the terms and conditions that follow, NEOTYS shall support the Software at the CLIENT’s option under either one of the support levels as described below.
Standard Support
The Software license fee under the Software License Agreement includes Standard Support for a period of six (6) months. Standard Support includes :
* Updates of the Software (distributed under a medium and method decided upon by NEOTYS);
* Electronic mail assistance (information) in connection with the use of the Software ;
* Acknowledgement, analysis and fix by NEOTYS of reproducible errors which shall be dully reported and documented by the CLIENT.
Gold Support
Gold support shall consist in :
* Updates or New Versions of the Software (distributed under a medium and method decided upon by NEOTYS) ;
* Telephone assistance (information and advice) in connection with the use of the Software ;
* Electronic mail assistance (information) in connection with the use of the Software ;
* Acknowledgement, analysis and fix by NEOTYS of reproducible errors which shall be dully reported and documented by the CLIENT.
Gold Support CLIENTS may obtain support for the evolution of the Software to increase the number of virtual users for the price amounting to the difference between the price of the Software version currently in use by the CLIENT and the price of the new version with additional virtual users.
ARTICLE 3: Maintenance Resctrictions
3.1. General exclusions
Services only include items listed in article 2 on maintenance scope above, other software, hardware or operating system are not covered by this Agreement. Services do not include system administration related problems, system configuration and test assistance, except as specifically agreed by NEOTYS in writing.
NEOTYS is not liable for the Software deployment in the technical environment (hardware and software) of the CLIENT, the interoperability of the Software with other operating/information systems, and consultancy services required to audit the CLIENT’s needs and adjust the Software accordingly.
NEOTYS shall not be required to supply the Services if the CLIENT fails to comply with the obligations of the Software License Agreement and/or the obligations described in the Agreement.
NEOTYS reserves the right to terminate the Services in connection with the Software more than one version back to the current version (major releases), provided the CLIENT is notified three (3) months beforehand.
NEOTYS reserves the right to adapt, modify or correct the Software.
3.2. Specific exclusions
For the avoidance of doubt, the following support services are expressly excluded:
- -Development of new software programs ;
- Appending or modifying the existing programs unless required under mandatory applicable law ;
- Training the CLIENT staff ;
- Ensuring data backups ;
- Onsite maintenance.
NEOTYS shall not be liable to supply the Services in the following cases :
- Defaults are due to the CLIENT misusing the Software ;
- The Software has been altered, modified or maintained by the CLIENT, or any third party, without the prior written consent of NEOTYS ;
- Modifications made by the CLIENT are significantly different from those which were applicable at the time the Software was delivered for license ;
- Malfunctions are due to reasons external to the Software including, but not limited to, failure or interruption of the telecommunications and/or electrical networks, deficiencies of the hosting hardware, accidents or natural disasters.
ARTICLE 4: Maintenance Conditions
4.1 Maintenance Description
NEOTYS’ personnel based in France shall perform the technical support dedicated to the CLIENT. Nevertheless, NEOTYS reserves the right to invoice the CLIENT for the annual maintenance fee and to provide part of the Services through authorized partners.
The technical support shall be available on working days at regular office hours from 9am to 12 and from 2pm to 6pm (Central European Time except on bank holidays or legal work holidays at NEOTYS FRANCE). If otherwise in exceptional circumstances, the CLIENT will be informed seven (7) days before the technical support is unavailable.
The CLIENT will be able to contact the technical support of NEOTYS :
- by e-mail at « support@neotys.com » ;
- by phone at previously seen hours at: +33 (0)4
42 18 08 33
(for Gold Support only)
- by the Internet at « http://www.neotys.com/support/».
4.2 Fault Management Procedure
For every report of a fault by the CLIENT, a trouble-ticket number is set.
Then, NEOTYS processes the CLIENT's support need as follows:
A - Submission of the Fault to the Technical Support of NEOTYS
Whether the fault is reported to the technical team of NEOTYS by phone (for Gold Support only), e-mail, or Web, the CLIENT shall provide the documents, information, and other elements necessary for NEOTYS to clearly identify the fault. Such documents should at least cover the following:
- Description of the trouble (name, detailed description, consequences);
- Environment (hardware, Software, other software);
- Recursive attempts (scripts, configuration, and instructions to locate the fault);
- Reference of the CLIENT.
B – Fault Record and Priority Rating
An engineer of NEOTYS’ technical support team shall respond to the request of the CLIENT in the conditions as described in paragraph 4.5 below.
NEOTYS shall acknowledge receipt of the request and shall grant a reference number to the fault for further needs.
The engineer at the technical support of NEOTYS shall rate the fault level. The priority may be defined with the CLIENT.
The fault priority will be defined in accordance with the following criteria used as guidelines to establish the following three (3) levels scale:
* Priority 1: critical deficiency meaning that the Software does not work;
* Priority 2: moderate impact standing for a Software failure;
* Priority 3: minimum impact involving a change in the Software package (in particular, documentation updates, presentation defaults, enhancement requests).
C - Trouble-shooting Management Conditions
The engineer of NEOTYS’ technical support team shall try to produce the fault again with the information given by the CLIENT. The fault shall be properly described for NEOTYS to identify it. The engineer shall qualify the fault, and will determine whether the fault is due to the use of the Software or to a Software faulty feature.
* When the fault is due to a mishap in the use of the Software by the CLIENT and not to a Software deficiency, the engineer of NEOTYS’ technical support team shall consult the knowledge base about the Software and, if useful, about the add-ons before giving the CLIENT a solution (level 1). He/she shall answer questions about the Software and shall provide any information, recommendation and instruction to solve the trouble. When the solution is accepted by the CLIENT, the trouble-ticket is closed. Otherwise, the escalation procedure will be triggered and the fault will be processed by the Engineering department of NEOTYS as follows (level 2).
* When the fault is due to a Software deficiency, the ticket shall be processed by the Engineering department of NEOTYS to upgrade the Software (level 2). The engineer NEOTYS’ technical support team of shall suggest a workaround solution. When the solution is accepted by the CLIENT, the trouble-ticket is closed.
When there is no solution to bypass the fault, NEOTYS shall tackle the issue in the next Software upgrade. Should the CLIENT notify NEOTYS that it is not satisfied, the technical team of NEOTYS shall inform the management team of NEOTYS who shall decide the best way to solve the fault and meet the CLIENT's request.
D - Trouble Processing Reports
The contact person of the CLIENT will receive reports on the trouble processing from NEOTYS’ technical support team. Reports will be issued regularly according to the priority level as agreed between the technical team and the CLIENT.
E - Trouble-ticket Closure
A trouble-ticket is closed, when the fault is not due to the Software and/or to the add-ons, or when the CLIENT agrees with NEOTYS that :
* The problem has been resolved ;
* A suitable workaround solution is in place ;
* A satisfactory answer or reply has been made ; or
* A new release of the Software fixes the problem.
4.3 Unlimited Support
The authorized contacts of the CLIENT will be able to report trouble to the engineers at the technical support of NEOTYS without any fault limit for the duration of the Agreement.
4.4 Leadtimes
A fault reported by the CLIENT by e-mail shall be acknowledged by NEOTYS within 2 hours.
Leadtimes are defined as the timeframes between the time the CLIENT reports a fault to NEOTYS, and the time when the engineers at the technical support of NEOTYS start processing the ticket. The following standard leadtimes are for information purposes only:
- During working day for priority 1 faults,
- Next working day for priority 2 and 3 faults.
ARTICLE 5: Duration and Termination
Standard Support
The Agreement shall take effect from the starting date of the Standard Support for a six (6) months term. At the expiry of the Agreement, Standard Support Services shall end.
Gold Support
The Agreement shall take effect from the starting date of the Gold Support for a twelve (12) months term. The term of this Agreement shall be automatically renewed for successive twelve (12) months periods. Each Party may notify its decision not to renew this Agreement by providing the other a minimum of two (2) months prior written notice before the anniversary date of the Agreement.
Without prejudice to any right to compensation for any damage suffered, NEOTYS may immediately terminate this Agreement, without further obligation or liability (i) if CLIENT fails to pay any applicable fees due after receipt of written notice from NEOTYS of non-payment ; (ii) if CLIENT breaches any term or condition hereof and fails to correct such breach within thirty (30) days after NEOTYS notifies CLIENT in writing ; (iii) if CLIENT enters into reorganization, merger, change of control, demerger ; (iv) if CLIENT ceases to carry on business as a going concern, becomes the object of the institution of proceedings in bankruptcy or liquidation, or a receiver or similar officer is appointed with respect to a substantial part of its assets, to the extent authorised under applicable law; and (v) should unforeseeable difficulties incur costs out of proportion to the Services fee.
In addition, when the CLIENT is not entitled to use the Software, whatever the reason, this Agreement shall automatically terminate ipso jure.
Any obligation that by its nature shall persist will survive the termination of this Agreement.
ARTICLE 6: Maintenance Fee
6.1 The cost, exclusive of tax, for Gold Support, during the initial term of the Agreement as described in article 5 above, shall amount to twenty (20) % of each Software licence(s) fee. For the avoidance of doubt, support will apply to each and every Software licensed. The support fee shall be revised each year and invoiced one (1) month in advance of the anniversary date of the Agreement, except in case of non-renewal as described in article 5 above.
6.2 The support fee is due within thirty (30) calendar days after the invoice is issued by NEOTYS. Overdue payments shall accrue interest in an amount of one and a half (1.5) times the legal interest rate from due date until paid.
6.3 Any failure by CLIENT to pay any invoice on due date shall allow NEOTYS to suspend the Software Services until all unpaid amounts are paid off, without prejudice to any other rights or remedies it may have.
ARTICLE 7: Obligations of the Parties
7.1 Obligations of the CLIENT
NEOTYS will be able to perform the maintenance properly provided:
The CLIENT shall give NEOTYS all the means and information required for the good performance of the Services. Identifying the reported fault is subject to the CLIENT supplying the necessary related documents, information and any other element.
The CLIENT shall comply with the standard use of the Software and NEOTYS recommendations, in particular as provided for under the Software License Agreement. The CLIENT shall conform to NEOTYS specifications so that maintenance requests are not affected by environmental non-conformities. The CLIENT shall not perform any operations, which may impede or hamper NEOTYS support operations, without the prior authorization of NEOTYS.
The CLIENT shall properly maintain the hardware hosting the Software.
During the term of this Agreement, the CLIENT shall not have any other company but NEOTYS or any authorised partner maintain the Software. The CLIENT shall appoint two contacts for NEOTYS. The CLIENT shall notify NEOTYS in writing of any change in contact personnel.
The CLIENT shall inform NEOTYS of any change in the information system which may affect the Software in production or the performance of the Services by NEOTYS.
Before any Software maintenance operation starts, the CLIENT shall back up the data, files, or programs used with the Software in order to avoid any loss or damage.
The CLIENT shall be solely responsible for the security of its confidential and proprietary information and not disclose such information except on a “need-to-know” basis for the purpose of NEOTYS’ performance of this Agreement.
The CLIENT is fully aware that Software Services require active and consistent cooperation with NEOTYS. The CLIENT shall comply bona fide with the Agreement, and shall contribute to NEOTYS mission with honesty and in trust.
7.2 Obligations of NEOTYS
NEOTYS shall use the necessary means to provide maintenance, as herein described.
Due to the high technical level of the Software, NEOTYS does not warrant that the Software will run without faults or interruptions. NEOTYS does not warrant that the Services will solve all faults, or that the same faults will not occur again, or that any other fault will not occur later.
However, NEOTYS warrants that it will perform the Services with professional skill and care. The obligations of NEOTYS under this Agreement are limited to correcting any Software malfunctions or repairing the Software as provided herein. Should NEOTYS Services not solve the Software fault, the CLIENT’s sole remedy shall be limited to NEOTYS re-performing the Services as described above.
ARTICLE 8: Limitation of liability
The CLIENT is solely responsible for backing up data it owns. The CLIENT shall take all the security measures and apply the related procedures, before the Software is installed and before NEOTYS is contacted. It is therefore agreed between the Parties that NEOTYS shall under no circumstances be held responsible for the loss or the deterioration of the information, the programs, the files or the databases occurring during performance of any Software Services.
NEOTYS SHALL UNDER NO CIRCUMSTANCES BE HELD LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF OPPORTUNITY, BUSINESS DISRUPTION OR OTHER PECUNIARY LOSS ARISING OUT OF, OR FAILURE OF, PROVISION OF THE SERVICES, EVEN IF NEOTYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.
IN ANY CASE, NEOTYS’ ENTIRE LIABILITY FOR ANY CLAIM WHATSOEVER SHALL BE LIMITED TO TWICE THE SUPPORT FEE ACTUALLY PAID BY CLIENT UNDER THIS AGREEMENT.
ARTICLE 9: Confidentiality
All NEOTYS’ business and technical information including, but not limited to, financial information, software code, know-how, techniques, specifications, specific developments, marketing plans, strategies and forecasts are confidential (the “Confidential Information”). The CLIENT may only use the Confidential Information for the furtherance of this Agreement and shall not disclose the Confidential Information to any third party, other than employees who have a need to have access and knowledge of the Confidential Information solely for the purpose identified above. CLIENT agrees to take all appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorised use or disclosure of the Confidential Information.
This non-disclosure commitment is not applicable to information already known in the public domain as of its disclosure or which subsequently becomes available to the public through no breach of this article by the CLIENT.
ARTICLE 10: Intellectual Property
The Software and any authorized copy are the intellectual property, the valuable trade secrets and confidential information of NEOTYS who owns the relevant rights. The CLIENT acknowledges that Software any Updates or New Versions provided under this Agreement shall similarly remain the property of NEOTYS. The Software License Agreement shall cover all such Updates or New Versions, provided the maintenance cost is paid and the Software License Agreement is still valid and in effect.
ARTICLE 11: Force majeure
Except for the obligation to pay monies due and owing, neither Party shall be liable for any delay of failure in performance of its obligations hereunder due to events outside the defaulting Party’s reasonable control. The obligations and rights of the excused Party shall be extended on a day to day basis for the time period equal to the period of the excusable delay.
ARTICLE 12: Governing Law and Jurisdiction
This Agreement shall be construed and enforced in accordance with French Law. THE PARTIES EXPRESSLY AGREE THAT ANY DISPUTE SHALL BE SUBJECT TO THE COURTS COMPETENT FOR NEOTYS REGISTERED OFFICE’S LOCATION.
ARTICLE 13: Miscellaneous
In no event shall failure by either Party to exercise any right provided herein or late performance of any or the rights provided herein be construed as a waiver of the exercise of such right or any other provision of this Agreement.
In the event that any of the provisions of this Agreement shall be held unenforceable or declared invalid or void in accordance with applicable laws, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining provisions of this Agreement.
Any modification or amendment in the Agreement shall be made in writing and executed by both Parties.
The CLIENT agrees that its rights and obligations hereunder shall not be transferred or assigned directly of indirectly without the prior written consent of NEOTYS. Notwithstanding the above, this Agreement shall binding upon and inure to the benefit of the Parties hereto and their successors and permitted assigns. Any assignment of this clauses shall be null and void.
The CLIENT authorizes NEOTYS to use its name and trademark in a reference list which may be distributed to prospective customers.