SUPPORT AND MAINTENANCE TERMS – SYNAPSENSE

This Support and Maintenance Agreement (“Agreement”) applies to all End Users who purchase Support and Maintenance Services from Vigilent for SynapSense® Licensed Software. This Agreement describes the technical support and product maintenance services that Vigilent provides to its End Users during the period for which the applicable Support and Maintenance Fee has been paid.

1. Definitions.

    1.1. Approved Source means either Vigilent or a Vigilent authorized partner or other third party who has been authorized by Vigilent to resell Vigilent’s SynapSense Licensed Software and related Support and Maintenance Services.

    1.2. Support and Maintenance Fee means the fee that the End User agrees to pay in exchange for receiving 12 months (or other designated coverage period) of Support and Maintenance Services for the SynapSense Licensed Software from Vigilent. 

    1.3. Documentation means the product description (including features and functionality), user instructions, and operator manual for the SynapSense Licensed Software published by Vigilent and as may updated from time to time at Vigilent’s sole discretion.

    1.4. End User means the company that purchased the Support and Maintenance Services from an Approved Source.

    1.5. End User License or EULA means Vigilent’s standard End User License Agreement or the existing End User software license for the SynapSense Licensed Software (if applicable), as may be published and amended by Vigilent from time to time.

    1.6. Hardware means Vigilent’s electrical, data communications and other products that it manufactures and/or sells, including related firmware.   

    1.7. Patches means any bug fixes, error corrections and minor enhancements to the existing functionality of the SynapSense Licensed Software. 

    1.8. Support and Maintenance Services means the technical support and product maintenance services for the SynapSense Licensed Software provided to the End Users.

    1.9. SynapSense Licensed Software or Software means the machine readable, object code version of the SynapSense Software that was licensed to the End User.

    1.10. Updates means any modifications and other minor feature changes and performance improvements of the SynapSense Licensed Software that are necessary to correct minor problems or other non-conformity of the Software to the Documentation. 

    1.11. Upgrades means any enhancements or new releases of the SynapSense Licensed Software that significantly add, enhance or increase product features and major functionality of the SynapSense Licensed Software without materially altering existing features or functionality. 

    1.12. “Vigilent” means Vigilent Corporation and any of its subsidiaries and affiliates.

2. Support and Maintenance.  Subject to the payment of the applicable Support and Maintenance Fee and compliance by End User with the terms of this Agreement and the EULA, Vigilent will provide the following Support and Maintenance Services for the SynapSense Licensed Software. 

    2.1. Telephone, Website and Email Support.  Vigilent will provide telephone, website and email support to End User for the SynapSense Licensed Software.  Telephone support is provided Monday through Friday, from 8:00 A.M. until 5:00 P.M. Vigilent local time, excluding government recognized holidays in the End User’s country of installation.  Such telephone, website and email support will include the opportunity to consult with a member of the Vigilent technical support staff that will assist the End User with the SynapSense Licensed Software capabilities, functionality and characteristics as described in the Documentation.  Vigilent technical staff will target a response email to the End User confirming its receipt of End User’s request for support within one (1) business day of receiving such request by telephone, website or email.  

    For technical assistance pertaining to the SynapSense Licensed Software contact Vigilent Customer Support at:

Email:        [email protected]

Phone:       +1 510 370 3201

    2.2. Patches, Updates and Upgrades.  Vigilent will provide availability to End User all Patches, Updates and Upgrades to the SynapSense Licensed Software which are announced by Vigilent as being made available generally to its End Users at no additional charge as part of the standard offerings for the Support and Maintenance Services.  All Patches, Updates and Upgrades will be deemed accepted, and treated as SynapSense Licensed Software under the EULA and this Agreement, upon delivery.  End User shall be responsible for applying and/or installing all Patches, Updates and Upgrades to the SynapSense Licensed Software in accordance with the installation instructions provided by Vigilent.  In the event that End User requests or requires more than four (4) hours of Support and Maintenance Services for the installation of any Upgrade to the Software or applying a Patch or Update, the End User will be billed for such Support and Maintenance Services at Vigilent’s standard hourly rates then in effect.  Vigilent will have no continuing obligation to maintain or support prior versions, unless otherwise mutually agreed in writing.

3. Exclusions from Support and Maintenance Services.  The following are specifically excluded from the Support and Maintenance Services provided herein:

    3.1. On-site support. On-site services may be performed by Vigilent in its sole discretion and subject to additional service fees as will be set forth in a Statement of Work.

    3.2. 24 Hour Support. 24 hour support is available for an additional fee and is only available for Priority 1 issues. A “Priority 1 issue” is defined as the Software being down and no workaround available.

    3.3. The Support and Maintenance Services only cover SynapSense Licensed Software, and do not cover new software products, new software modules or new or alternate operating environments.  Support and upgrades for such new software products, modules or new or alternate operating environments shall be available only upon negotiation of separate fees, terms and conditions.

    3.4. Services resulting from reconfiguration, misuse or modifications to the SynapSense Licensed Software by End User or others.

    3.5. Services required for the removal, installation and/or configuration of Hardware.

    3.6. Services required due to the failure or interruption of any electrical power, or any accident or cause external to the SynapSense Licensed Software, including, but not limited to, problems or malfunctions related to End User’s network, database, third party software products, and/or End User’s hardware, operator error, or End User’s negligence or willful misconduct.

    3.7. Implementation, installation, training, and technical integration services also are excluded under this Agreement but may be quoted separately by Vigilent.

4. End User Responsibilities. End User shall designate two points of contact who shall be the only persons authorized to submit support requests or otherwise make inquiries to Vigilent regarding the Support and Maintenance Services.  End User is responsible for notifying Vigilent of any material failure, malfunction or error in the SynapSense Licensed Software that End User detects and for following Vigilent’s standard problem determination, problem analysis, and service request procedures, including without limitation, testing and verifying any documented and reproducible errors in the SynapSense Licensed Software, and to provide Vigilent with a description of the problem and the conditions under which it occurred.   Any such error reports shall be treated as Vigilent’s Confidential Information. End User is solely responsible for maintaining procedures external to the SynapSense Licensed Software for reconstruction of lost or altered files, data or programs to the extent that it deems necessary and for performing any such reconstruction.  End User acknowledges that failure to promptly implement all Patches, Updates and Upgrades supplied by Vigilent may render the SynapSense Licensed Software unusable or non-conforming to the Documentation and otherwise will void any warranty and/or indemnification set forth in the EULA.  End User is solely responsible for any problems related to use of the SynapSense Licensed Software on equipment other than the specific equipment designated in the Documentation.

 5. Term, Termination, Reinstatement.

    5.1. Vigilent’s Support and Maintenance Services obligations under this Agreement will begin upon the date that Vigilent receives the Support and Maintenance Fee and continues for an initial term of 12 months, or such other term as may be stated in the specific Vigilent order documentation (“Initial Term”). 

    5.2. Support and Maintenance Services after the Initial Term, if applicable, will be subject to Vigilent’s Support and Maintenance Agreement in effect for the SynapSense Licensed Software at the time of such renewal and the then current Support and Maintenance Fee. The Support and Maintenance Fee is subject to annual increases not to exceed five percent (5%) over the previous year’s Support and Maintenance Fee.  Vigilent will provide End User with notice of any such rate increase at least sixty (60) days prior to the increase.   

    5.3. Support and Maintenance Fees will be invoiced in advance on an annual basis or as otherwise outlined in the Vigilent order documentation.  Vigilent reserves the right to withhold Support and Maintenance Services in the event that any Support and Maintenance Fees are more than thirty (30) days overdue or if End User is in breach of any term of this Agreement or the EULA. Vigilent reserves the right to not offer Support and Maintenance Services for any Software.

    5.4. End User may cancel Support and Maintenance Services at any time during the Initial Term or a subsequent term for any reason by providing Vigilent with thirty (30) days prior written notice but in such event End User shall not be entitled to a refund of any Support and Maintenance Fees paid in advance. Notice of cancellation of Support and Maintenance Services must be sent by the End User to [email protected]. 

    5.5. End User may terminate the Support and Maintenance Services upon Vigilent’s material breach of the terms of this Agreement if such default continues for thirty (30) days after written notice, in which case End User’s sole and exclusive remedy shall be to receive a pro-rated refund in an amount equal to the most-recent Support and Maintenance Fee times a fraction, the numerator of which is the number of whole months remaining in the current term and the denominator of which is 12 (the “Refund”).

    5.6. Vigilent may stop providing Support and Maintenance Services to the End User at any time if Vigilent decides to no longer offer Support and Maintenance Services to its End Users in general, subject to the Refund set forth above under Section 5.5. Vigilent may stop providing Support and Maintenance Services without Refund upon End User’s material breach of the terms of this Agreement if such default continues for thirty (30) days after written notice or immediately in the event of End User’s breach of the EULA.

    5.7. In the event that additional licenses and/or other software products (such as customizations, modules, integrations, etc., to the SynapSense Licensed Software) are purchased by End User during the Initial Term or any subsequent term, Vigilent shall not be obligated to provide Support and Maintenance Services for such additional SynapSense Licensed Software unless and until End User pays Vigilent the Support and Maintenance Fees for the additional SynapSense Licensed Software prorated for the remaining months of the then current term. Any such pro rata amount is due and payable in advance by End User as of the effective date of the order and payment for the additional SynapSense Licensed Software.  

    5.8. Vigilent reserves the right to charge for any services attributable to any Excluded Services under Section 3 or any other technical support services that are not covered by, or are outside the scope of, the Support and Maintenance Services provided under this Agreement. Such services shall be billed at Vigilent’s then current hourly rates. If Vigilent performs on-site services at End User’s facility, End User shall pay actual travel, living and out-of-pocket expenses reasonably incurred by Vigilent.  If Vigilent is unable to resolve a problem off-site within a reasonable period of time, then Vigilent, at its option, may send personnel on-site to resolve the problem. A Statement of Work must be completed and signed prior to engagement of Vigilent for any on-site services.

    5.9. Vigilent may, at its sole discretion, reinstate lapsed or terminated Support and Maintenance Services, at a later time provided that End User pay Vigilent the Support and Maintenance Fees for the SynapSense Licensed Software at Vigilent’s list prices then in effect and a reinstatement fee, as determined by Vigilent, which reinstatement fee will not exceed the amount that End User would have paid during the unsupported period. 

    5.10. The expiration or termination of Support and Maintenance Services shall not terminate or otherwise affect the EULA. 

 6. Limitation of Liability.  IN NO EVENT SHALL VIGILENT’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THE SUPPORT AND MAINTENANCE SERVICES EXCEED THE TOTAL SUPPORT AND MAINTENANCE FEE PAID TO VIGILENT BY END USER WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE. IN NO EVENT SHALL VIGILENT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, OR FOR ANY LOSS DUE TO DELAY OF PERFORMANCE, OR FOR ANY LOSS OR INACCURACY OF DATA, LOSS OF USE OF ANY PROPERTY, COSTS OF CAPITAL, DOWNTIME COSTS, COSTS OF INTERRUPTION OF BUSINESS, LOST PROFITS OR REVENUE OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING FROM THE PROVISIONS OF SUPPORT AND MAINTENANCE OR ANY QUOTATION RELATED TO THIS AGREEMENT, EVEN IF VIGILENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDIES PROVIDED IN THIS SUPPORT AND MAINTENANCE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.   

7. Proprietary Rights.  Vigilent retains all right, title and interest in and to the SynapSense Licensed Software and any products, tools, techniques, and other materials used in connection with providing the Support and Maintenance Services under this Agreement.

 8. Arbitration. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”).  The arbitration shall be conducted before a panel of three arbitrators.  Each party shall select one arbitrator within 30 days of the filing of the Demand for Arbitration. The parties shall then attempt to agree on the third arbitrator (the “Chairman”) within 30 days of the confirmation of the second arbitrator.  If the parties fail to agree on the Chairman within such period, then such Chairman shall be appointed by the ICC.  The arbitration shall take place in San Francisco, California, USA and be governed by the laws of the State of California without regard to principles of conflicts of law.  The arbitration shall be conducted exclusively in the English language.  Any award rendered by the arbitrators shall be final and binding on the parties, and each party hereto waives to the fullest extent permitted by law any right it may otherwise have under the laws of any jurisdiction to any form of appeal of, or collateral attack against, such award.  The arbitrators shall have the power to grant any remedy or relief that they deem just and equitable, including but not limited to injunctive relief, whether interim and/or final, and any provisional measures ordered by the arbitrators may be enforced by any court of competent jurisdiction.  Notwithstanding the foregoing, nothing in this Agreement shall prevent either party from seeking any provisional/preliminary relief (including, but not limited to, injunctions, attachments or other such orders in aid of arbitration) from any court of competent jurisdiction, and any such application to a court for provisional/preliminary relief shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate.

9. Miscellaneous.  This is the entire Agreement between End User and Vigilent with respect to the Support and Maintenance Services, and supersedes any prior agreement, whether written or oral, relating to the subject matter of Support and Maintenance Services provided herein (but does not amend or supersede the EULA).  The parties disclaim the application of the United Nations Convention on the International Sale of Goods.  This Support and Maintenance Agreement is governed by the laws of the State of California without regard to choice of law principles, and the applicable Federal laws and international treaties of the United States of America.  This Agreement, which is in English, shall be interpreted in accordance with the commonly understood meaning of the words and phrases in the United States of America. The Support and Maintenance Agreement is subject to change from time to time as Vigilent updates its support offerings.