This Support and Maintenance Policy (“Policy”) governs the provision of Services by Wavelink to the licensee of Wavelink Products (“Licensee”) specified in the applicable purchase order (“Order”.)
1.1 “Documentation” means any instruction manuals and on-line help files relating to the use of the Software that Wavelink makes generally available to its customers.
1.2 “Error” means a material nonconformity of the Software with the Documentation, other than errors in the Documentation itself, that is reproducible by Wavelink on an unmodified copy of the most current version of the Software.
1.3 “Maintenance Release” means a modification to the Software that incorporates Error corrections or provides minor functional or performance improvements. Maintenance Releases are designed to keep the Software up-to-date with technological and firmware level changes to the hardware and wireless networks supported. Maintenance Releases are designated with a change in the tenths or hundredths digit (i.e., from version x.xx to x.xy or x.yx) in the numerical release identifier for the Software. Maintenance Releases do not include Major Releases.
1.4 “Major Release” means a modification to the Software that provides substantial functional or performance improvements. Major Releases are designated with a change in the whole digit (i.e., from version x.xx to y.xx) in the numerical release identifier for the Software. Wavelink will determine, in its sole discretion, whether a Software modification is a Maintenance Release or a Major Release.
1.5 “Services” mean the support and maintenance services to be performed by Wavelink under this Policy, as described in Section 2.
1.6 “Software” means the Wavelink software products licensed to Licensee and listed in the Order, together with any Maintenance Releases furnished by Wavelink to Licensee under this Policy.
2.1 Telephone and Email Support. Wavelink will provide Licensee with telephone and email support consisting of: (a) assistance related to questions on the installation and operational use of the Software; (b) assistance with identifying and verifying the causes of suspected Errors; and (c) workarounds for verified Errors when reasonably available to Wavelink. Wavelink will provide telephone and email support during the hours of 6:00 a.m. to 6:00 p.m., Pacific Time, Monday through Friday, excluding holidays observed by Wavelink. Wavelink will provide an after-hours answering service to record telephone inquiries from Licensee. Wavelink will use reasonable efforts to respond to after-hours telephone and email inquiries within one business day.
2.2 Web Support. Wavelink will permit Licensee to access Wavelink’s customer support web site on which Wavelink will occasionally publish information relating to then-existing Errors and workarounds, together with information about future Software releases and related Wavelink products. Wavelink reserves the right to modify or discontinue all or part of its customer support web site.
2.3 On-site Training and Support. Upon request, Wavelink will provide training for Licensee’s support contacts and trainers and direct support at Licensee’s site at Wavelink’s then-applicable rates.
2.4 Error Corrections. Wavelink will use reasonable efforts to correct reproducible Errors with a level of effort commensurate with the severity of the Error. Wavelink is not, however, obligated to correct all Errors.
2.5 Maintenance Releases. Within a reasonable time after general commercial publication, Wavelink will provide Licensee with one copy of all Maintenance Releases and all corrections to the associated Documentation. Licensee may obtain its copy of Maintenance Releases by downloading the Maintenance Release from Wavelink’s customer support web site. Licensee may acquire additional copies of the Documentation at Wavelink's then-current standard rates.
2.6 Major Releases and Discontinuations. Wavelink reserves the right, in its sole discretion, to create a Major Release of the Software or discontinue any of the Software. Wavelink’s policy is to support a previous release of the Software for a period of at least six months from the first production ship date of a Major Release or from the discontinuation date, as applicable. Special support prices may apply for the support of older or discontinued versions or releases of Software after the initial six-month period. Major Releases are not included as part of the Services and may be purchased at Wavelink’s then-current prices.
2.7 Exclusions. Unless otherwise expressly agreed to in writing by Wavelink, the Services do not include services for maintenance, modification, replacement, repair of damage, or increased service time caused by: (a) Licensee’s failure to implement all Maintenance Releases, Error corrections, and workarounds provided by Wavelink; (b) changes to the operating system or environment in which the Software operates; (c) modification of or addition to the Software, except as performed by, or as authorized in writing by, Wavelink; (d) performing services required by a relocation of the Software; (e) improper installation of the Software, unless performed by Wavelink; (f) interconnection of the Software with third party software or hardware not provided by Wavelink; (g) failure to provide a reasonably suitable operating environment including, but not limited to, adequate electrical power, temperature or humidity control, in each case, to the extent set forth in the Documentation; (h) use of the Software in a manner for which it was not designed or beyond the scope of the license set forth in the applicable license agreement; or (i) accident or disaster, which will include but not be limited to, fire, flood, water, wind, lightning, earthquake, neglect, or misuse.
2.8 Additional Services. Wavelink will use reasonable efforts to respond Licensee requests for support and maintenance services not specifically provided for in this Policy. Licensee acknowledges that additional services will be provided in accordance with Wavelink’s then-current terms and conditions, including pricing.
3.1 Trained Contacts. Licensee will appoint __ individuals within Licensee’s organization that are trained on the operation of the Software to serve as primary contacts between Licensee and Wavelink with regards to the Services. Licensee must initiate all requests for Services through these contacts, except that any number of Licensee’s personnel may access Wavelink’s customer support web site.
3.2 Access to Telephone and Email Support. Licensee will be responsible for furnishing, at its expense, all hardware, including modem, and software necessary to access Wavelink’s support web site, to send email to Wavelink, and to contact Wavelink by telephone. Licensee will also be responsible for paying any telephone or other charges incurred by Licensee in the use of such systems or in contacting Wavelink.
3.3 Reasonable Assistance. Licensee will provide Wavelink with reasonable access to all necessary personnel to answer questions regarding Errors and other problems reported by Licensee.
3.4 Error Reporting. Licensee will document and promptly report all detected Errors to Wavelink with enough detail to permit Wavelink to reproduce the Error. Licensee will assist Wavelink with recreating and diagnosing each Error.
3.5 Installation of Releases. Licensee will promptly implement all Maintenance Releases, Error corrections, and workarounds provided by Wavelink.
3.6 Supervision of Software. Licensee must supervise, control, and manage the use of the Software. In addition, Licensee must implement procedures for the protection of information and the implementation of backup facilities in the event of Errors.
3.7 Upgrade Systems. In order to provide Error corrections, workarounds, and Maintenance Releases, Wavelink may require Licensee to upgrade, at its own cost, its hardware and software systems to Wavelink’s then-current supported versions of system components.
3.8 Use of Recent Version. To be eligible to receive the Services, Licensee must purchase and install the last Major Release of the Software (i.e., if the most current release of the Software is 4.x, then Licensee must be using version 3.x or higher).
3.9 Compliance with License Terms. Licensee will be responsible for complying with the terms of all relevant license agreements pertaining to the Software. Wavelink reserves the right, in addition to other remedies available, to suspend its provision of the Services for so long as Licensee is in violation of a license agreement.
3.10 Good Standing. The provision of the Services by Wavelink during the term of this Policy is contingent upon Licensee’s performance of its payment and other obligations under this Policy. Wavelink reserves the right, in addition to other remedies available, to suspend its provision of the Services for so long as Licensee is not current with its obligations.
4.1 Fees. Licensee will pay Wavelink a non-refundable annual support fee equal to 20% of Wavelink’s then-current list price for use of the Software. Licensee will pay the annual support fee on the date specified in the Order and at the beginning of each renewal term of this Policy. Wavelink reserves the right to change the annual support fee from time to time effective at the commencement of the next annual period by giving Licensee at least 30 days' prior written notice of such change. Licensee also will reimburse Wavelink for any out-of-pocket expenses (i.e., travel, lodging, and food) that are actually incurred by Wavelink in providing the Services hereunder.
(a) Payment. Any amount payable to Wavelink under this Policy will be due and payable within 30 days after Licensee's receipt of Wavelink's invoice. All fees quoted and payments made will be in U.S. Dollars. Licensee will pay all amounts due under this Policy to Wavelink at the address set forth below or such other location as Wavelink has designated in an invoice. Any amount not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, determined and compounded on a daily basis from the date due until the date paid. Failure to pay amounts due within 60 days, or within 30 days for renewal payments, will result in automatic termination of this Policy.
(b) Taxes. Licensee will be responsible for all sales taxes, use taxes, and similar taxes of any kind imposed by any federal, state or local governmental entity for products and/or services provided under this Policy, excluding only taxes based solely upon Wavelink’s net income.
LICENSEE ACKNOWLEDGES THAT WAVELINK MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING OR RELATING TO THE SOFTWARE, THE DOCUMENTATION, OR THE SERVICES PROVIDED TO LICENSEE UNDER THIS AGREEMENT. NOTHING IN THIS AGREEMENT MAY BE CONSTRUED TO EXPAND A WARRANTY, IF ANY, PROVIDED UNDER A LICENSE AGREEMENT RELATING TO THE SOFTWARE. WAVELINK SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
Limitation of Liability
IN NO EVENT WILL WAVELINK’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT RECEIVED BY WAVELINK HEREUNDER DURING THE 12 MONTHS PRIOR TO ANY CLAIM. IN NO EVENT WILL WAVELINK BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, INCLUDING NEGLIGENCE, EVEN IF WAVELINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL APPLY NOT WITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
7.1 Term. The term of this Policy will be one year and will automatically renew for additional one year periods unless either party notifies the other of intention not to renew at least 90 days prior to the renewal date or unless terminated pursuant to paragraph 7.2
7.2 Termination for Default. If either party materially defaults in the performance of any of its material obligations under this Policy and fails to cure such default within 30 days after receiving written notice thereof, the nondefaulting party may terminate this Policy on written notice at any time following the end of such 30 day period.
7.3 Survival. Termination of this Policy will not affect the respective obligations or rights of the parties arising under this Policy prior to the effective date of such termination.
8.1 Applicability of License Policy. All Error corrections, Maintenance Releases, and other modifications to the Software provided under this Policy will be subject to the terms and conditions of the applicable license agreement.
8.2 Confidentiality. Portions of the information and materials supplied by Wavelink may be proprietary in nature and will be so marked. Licensee will abide by the terms of such markings and protect the confidentiality of such information and materials.
8.3 Ownership. Wavelink retains all right, title, and interest, including intellectual property rights, in and to: (a) all designs, engineering details, and other information relating to the Software, and (b) all original works, computer programs, discoveries, and inventions created by Wavelink, independently or jointly with Licensee, in connection with the provision of the Services.
8.4 Independent Contractors. The relationship of the parties established by this Policy is that of independent contractors, and nothing contained in this Policy should be construed to create a partnership, joint venture, or employer-employee relationship.
8.5 Binding Effect. This Policy will be binding upon and inure to the benefit of the parties and their successors and assigns.
8.6 Subcontractors. Wavelink may assign its duties under this Policy to a subcontractor or other third party so long as Wavelink remains responsible for all of its obligations under this Policy.
8.7 Force Majeure. Nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.
8.8 Governing Law and Litigation. This Policy is governed by the laws of the State of Washington, without giving effect to provisions related to choice of laws or conflict of laws. The application of the United Nations Convention on the Sale of Goods is not applicable and expressly disclaimed by the parties. Venue and jurisdiction of any lawsuit involving this Policy exists exclusively in the state and federal courts in King County, Washington, unless either party seeks injunctive relief that, in that party’s reasonable and good faith judgment, would not be effective unless obtained in some other venue. The prevailing party in any lawsuit arising from or relating to this Policy is entitled to recover its costs, including reasonable attorney fees.
8.9 Remedies Cumulative. The remedies provided to the parties under this Policy are cumulative and will not exclude any other remedies to which a party may be lawfully entitled.
8.10 Waiver and Severability. The waiver by either party of any breach of this Policy does not waive any other breach. If any part of this Policy is unenforceable, the remaining portions of this Policy will remain in full force and effect.
8.11 Entire Agreement. This Policy, together with the Order, is the final and complete expression of all agreements between these parties and supersedes all previous oral and written agreements regarding the provision of support and maintenance services.. It may be changed only by a written agreement signed by the party against whom enforcement is sought.