Subscription and Support Agreement
IN CONSIDERATION of the mutual promise contained herein, the parties agree as follows:
- Scope: The following terms and conditions govern the relationship between Client and eBRIDGE SOFTWARE INC. ("eBridge") with regard to the ‘Support and Subscription Program’. During the term of this Agreement, eBridge will provide the Client, and the Client will accept from eBridge, Support and Subscription Services for the software described in section "2".
- Software covered under this agreement: Products licensed from eBridge including but not limited to the following:
- eBridge "Bridge application Software"
- eBridge's "Automatic Shipping Notification Module" (ASN)
- eBridge "Mapper"
- eBridge "Document Maps"
- "Asset Translator" - when purchased from eBridge
- Programs: eBridge offers two programs of Support and Subscription services, (1) Standard Program (2) Enhanced Program: the attached schedule "A" indicates the program and benefits provided for each program. Each program shall automatically incorporate provisions of this agreement.
- Products: Client must be on a currently supported version of the Product to purchase Support Services. Client represents and warrants that the Products included are all the Products currently licensed from eBridge.
- The Program fee ("Fee") will be based on the then-current list price. Multi-year options are also available. eBridge agrees to invoice the Client for the Fee forty-five (45) days in advance of the due date. Client agrees to pay the Fee as invoiced. Fees are non-transferable and non-refundable.
- Lapsed Program Coverage: To resume program coverage after a lapse, Client must purchase a minimum of one (1) full year of Service and pay a “Reinstatement Fee.” The Reinstatement Fee will be thirty percent (30%) of the current list price of the eBridge-licensed products.
- Upgrades: Clients who are not current on Support Program and desire to purchase a Product upgrade may do so by contacting eBridge.
- Term of Agreement/Renewal: This Agreement shall commence on the first date payment is received by eBridge and will continue for the period set forth on the invoice (“Term”), but in no event less than twelve (12) months or until terminated by providing eBridge with thirty (30) days written notice. The Fee is not refundable.
Upon notice to eBridge, client may change the program at the expiration of any term, and be charged no more than eBridge’s standard fees as applied to such changed program.
- Support Services to be provided under the support program shall be performed during Business Hours and shall consist exclusively of the Help desk support, as herein defined, correction of critical programming errors and provisions of the program release described in section 10, 11 and attached schedule "A".
- Help Desk Support: eBridge will supply help desk telephone support ("Help Desk Support") from its office. Help Desk Support will be provided only in respect of the use of the eBridge Software at the Designated Site described in the End-User-Software-License-Agreement. eBridge shall be under no obligation to provide Help Desk Support in respect of the use of the eBridge Software at any site other than that site.
- Help Desk Support: will consist of eBridge (i) using reasonable efforts to explain functions and features of the eBridge Software, (ii) clarifying any Support Materials relating to the eBridge Software, (iii) guiding the Customer in the operation of the eBridge Software and (iv) sending any information, correction for programming errors or Maintenance Releases by facsimile, electronic mail or modem as required to assist with solutions to calls receive in the Help Desk. Although the Help Desk Support may be used by Customer for both resolving problems with the eBridge Software experienced by the Customer, and for educating or training the Customer's employees, eBridge, at its sole discretion, reserves the right to limit the time spent with Customer providing education and training to the Customer’s employees that is in addition to any training contracted for by Customer and provided as part of the support package.
- Maintenance Releases: Subject to any correction times set forth in any Maintenance Schedule, at its sole option, eBridge shall be entitled to prepare and deliver to the Customer maintenance releases consisting of modifications and/or enhancements to the eBridge Software ("Program Modifications"). eBridge exclusively shall determine whether Program Modifications shall be included in maintenance releases provided hereunder. eBridge shall not be obligated to install any maintenance release on the Designated Computers. Delivery of a maintenance release to the Customer shall be deemed to have occurred if one copy of the maintenance release is sent by mail or courier, electronic mail, or is hand delivered to the Designated Site described in the applicable Maintenance Schedule, even if the Customer is licensed to use the eBridge Software at more than one Designated Site. eBridge agrees that any Program Modifications shall not eliminate any functionality in the Programs.
- Limitations: eBridge shall have no obligation to support altered, damaged or modified Product, or to remedy problems caused by: (i) Client's negligence, abuse or misapplication of the Product; (ii) use of the Product other than as specified in the eBridge documentation; or (iii) hardware malfunctions, software not licensed by eBridge, or Product which is not the current release. Client agrees, at its expense, to assist eBridge in its obligations hereunder by providing documentation of problems and test data. eBridge shall have no obligation to resolve problems if Client fails to reasonably cooperate. Support shall be provided in the English language, except as otherwise agreed by the parties and subject to payment of any additional fees required by eBridge in connection therewith.
- Limitation of Liability: eBridge liability for damages from any cause of action whatsoever relating to eBridge's agreement to provide services shall be limited to the amount paid by Client for the services for the applicable year. eBridge's liability shall be further limited as provided in the End User License Agreement between Client and eBridge for the Product, which may be either a signed agreement or electronic end-user license accompanying the Product (respectively "End-User-License-Agreement").
THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A PRODUCT WARRANTY. THE PRODUCT AND ALL MATERIALS RELATED TO THE PRODUCT ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE END USER LICENSE AGREEMENT (EULA). THIS AGREEMENT IS IN ADDITION TO THE EULA AND DOES NOT CHANGE, EXPAND OR SUPERSEDE ANY TERM OF THE EULA EXCEPT TO THE EXTENT UNAMBIGUOUSLY EXPRESSED TO DO SO.
IN NO EVENT SHALL eBRIDGE’S AGGREGATE LIABILITY FOR ANY CLAIM HEREUNDER EXCEED THE FEES PAID TO eBRIDGE FOR THE PRECEEDING TWELVE (12) MONTH PERIOD.
- Force Majeure: Neither party shall be held responsible for any reasonable delay or failure in performance hereunder caused by fires, strikes, embargoes, acts of nature, or other causes beyond their reasonable control.
- Default and Termination:
- If Client breaches any of the terms, conditions or provisions of this Program, and fails to cure such breach within thirty (30) days after written notice thereof, eBridge shall have the right to terminate the Services without further notice.
- In the event of Client’s breach, eBridge may, in addition to the right to withhold its performance under and/or terminate this Agreement, avail itself of all other rights, remedies and causes of action available at law, in equity or otherwise, against such party for damages as a result of such breach. Unless otherwise provided in this Agreement, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.
- Any expiration or termination of this Agreement shall not prejudice, limit, or restrict any other rights or remedies either party may have arising prior to such expiration or termination. eBridge shall be under no obligation to refund any amounts paid by Client.
- Governing Law. This agreement shall be governed and constructed in accordance with the laws of the Province of Ontario, Canada.
- Language The parties hereto have requested that this Agreement be drafted in English. Les parties aux présents ont exigé que le présent contrat soit rédigé en langue anglaise.
- Entire Agreement: This Agreement and the Maintenance Schedules constitute the entire agreement between the parties hereto with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties hereto with respect thereto. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the parties other than as expressly set forth in this Agreement. No modification of or amendment to this Agreement shall be valid or binding unless set forth in writing and duly executed by the parties hereto.
Schedule "A"Subscription and Support Services from eBridge include:
Standard Program Includes:
- Preferred access to our technical support professionals.
- On-line product updates/fixes
- Production down and material impairment of functionality we provide continuous service until resolved.
- Unlimited Business hour toll free telephone support
- Go to MyPC - Online diagnostics
- Unlimited email support
- Online product updates/fixes
- Support to resolve issues with current mapping, import/export or help with translator
- Four (4) targeted hour response time
Enhanced Program Includes:
- Includes all benefits in the Standard Program plus;
- No additional fees when upgrading current eBridge licenses;
- Two (2) hour targeted response time;