ACD/Labs Maintenance Services Terms

These Maintenance Services Terms may be incorporated by reference into an ACD/Labs Master Agreement or another written agreement ("Agreement") between Advanced Chemistry Development, Inc. ("ACD/Labs") and a customer ("Customer"), including a purchase order issued by the Customer or Order Document. These Maintenance Services Terms are effective the date set out in that Agreement for the term set out in that Agreement. All capitalized terms have the meaning defined in the Agreement.

BACKGROUND:

  1. ACD/Labs is in the business of licensing the Software and related documentation, and of providing related services including Maintenance Services;
  2. Customer wishes to receive Maintenance Services for Software it licenses from ACD/Labs; and
  3. ACD/Labs has agreed to provide such Maintenance Services on the terms and conditions of this Agreement.

For valuable consideration, the receipt and sufficiency of which are acknowledged, ACD/Labs and Customer agree as follows:

  1. DEFINITIONS

    "Customization" means any modification to the Software described in an Order Document, statement of work, or a schedule under a licensing agreement regarding the Software, and which ACD/Labs performs subject to the terms and conditions of such licensing agreement, but for certainty, does not include any Releases or Enhancements;

    "Customized Software", for greater certainty, means Software that has undergone Customization for Customer.

    "Maintenance Services" means Technical Assistance and any Enhancements as they become available, with respect to the Software, to be provided to Customer by ACD/Labs as described in an Order Document, in accordance with this Agreement and the Maintenance Services Terms;

    "Maintenance Services Fees" means the annual amount payable by Customer to ACD/Labs in consideration for the Maintenance Services (which the Parties agree will not include any fees paid to ACD/Labs for any License(s), Training Services or Professional and Scientific Services, or any amounts paid to reimburse ACD/Labs for out-of-pocket expenses);

    "Maintenance Service Terms" means the terms available at on http://www.acdlabs.com/support/maintenance.php or attached to this Agreement;

    "Order Document" means an invoice that has been issued by ACD/Labs in response to a request, order or purchase order of Customer requesting ACD/Labs Maintenance Services in accordance with this Agreement or a licensing agreement regarding the Software, or, in the absence of an invoice, any related ACD/Labs proposal setting out the particulars of the Maintenance Services to be ordered;

    "Release" means any upgrade, new version or new release of the Software indicated by a new version number that ACD/Labs makes available to Customer in accordance with the applicable Order Document, which is not necessarily included in Maintenance Services;

    "Software" means ACD/Labs’ proprietary application computer software, in executable object code format, or any database, which has been licensed to Customer under a separate agreement;

  2. MAINTENANCE SERVICES

    1. Provision of Maintenance Services: Maintenance Services consists of Technical Assistance for the licensed Software, and any Enhancements for that Software as they become available. Upon receipt of the applicable Maintenance Service Fees from Customer, ACD/Labs will provide to Customer Maintenance Services as described in the applicable Order Document. Unless otherwise expressly stated in this Agreement or another written agreement between the parties, Maintenance Services for Customized Software including any services required to repair defects or errors in Customized Software arising from an Enhancement will be provided on a time and material basis.
    2. Enhancements: "Enhancements" are currently categorized as follows:
      1. Corrective Maintenance: Software directed to the correction of an error or bug in response to issues raised in the course of providing Technical Assistance (as defined below);
      2. Perfective Maintenance: Software directed to improving the speed of execution or efficiency of existing licensed Software without adding new functionality to that Software; and
      3. Adaptive and Preventive Maintenance: Software directed to adapting to or anticipating changes introduced into the operating environment of the Software by third party hardware or software manufacturers.
      4. New Feature Implementation (NFI) Maintenance: Adding new features to the Software under ACD/Labs’ initiative or the request of our customers which is included in the Maintenance Services at no additional charge, at ACD/Labs’ sole discretion.
    3. Releases:  ACD/Labs may, from time to time, include Software typically considered by ACD/Labs to be a Release, such as Software directed to a collection of previously made Enhancements, or directed to completely new features or functionality of the Software, as an Enhancement instead.  This is entirely at ACD/Labs sole discretion, and does not imply that future Releases for the same Software will also be considered Enhancements and included within the Maintenance Services. 
    4. Delivery:  Enhancements will be provided to Customer by means of online update server application and/or distribution of digital media. 
    5. Discontinued Software:  ACD/Labs will provide Maintenance Services provided that the Software and version used by Customer is supported by ACD/Labs.  ACD/Labs will provide Customer with written notice of the discontinuance of the support of the Software used by Customer and any Maintenance Services for such Software will terminate effective on the expiration of the then current term of Maintenance Services.
  3. MAINTENANCE SERVICES FEES AND TERM

    1. Term:  The term of Maintenance Services will commence on the date set out in the applicable Order Document and will remain in force and effect for three (3) years or such other term that may be set out in the Order Document (the "Initial Maintenance Term"), subject to earlier termination in accordance with this Agreement.
    2. Renewal:  The term of Maintenance Services will automatically renew at the end of the Initial Maintenance Term and any Renewal Maintenance Term for successive one (1) year periods (each, a "Renewal Maintenance Term"), unless: (i) either Party provides written notice to the other Party at least thirty (30) days prior to the expiration of the Initial Maintenance Term or applicable Renewal Maintenance Term that it does not wish to renew, in which case the Order Document will expire at the end of the current Initial Maintenance Term or Renewal Maintenance Term, as applicable; or (ii) the Order Document or the Agreement is terminated in accordance with this Agreement.
    3. Payment of Maintenance Services Fees:  Customer will pay the applicable Maintenance Service Fees at least thirty (30) days prior to the commencement of the Initial Term or Renewal Term of Maintenance Services.  Failure to timely pay a Maintenance Fee due to ACD/Labs is a material breach of the applicable Order Document for which ACD/Labs may terminate that Order Document.  The annual Maintenance Fee will be non-refundable in the event that Customer terminates the Maintenance Services.
    4. Form and Timing of Payment:  Customer will pay ACD/Labs the Maintenance Service Fees applicable to the Initial Term in one (1) lump sum payment upon execution of the applicable Order Document and the Maintenance Service Fees applicable to each Renewal Term in one (1) lump sum payment in advance of the commencement of each such Renewal Term.  Customer will be invoiced for Maintenance Service Fees applicable to each Renewal Term, annually in advance of the commencement of such Renewal Term.
    5. Fees Subject to Increase:  Notwithstanding any other provision of the Agreement, Customer acknowledges that Maintenance Service Fees are subject to increase by ACD/Labs on written notice to Customer prior to the commencement of an Initial Term or Renewal Term, any such increase to be effective from the commencement of the applicable Initial Term or Renewal Term.
  4. TECHNICAL ASSISTANCE

    1. Technical Assistance" consists of the following:
      1. Error Correction: Correction of any error, problem or defect which ACD/Labs determines is a result of the incorrect functioning of the Software if, in any respect, such error, problem or defect renders the Software inoperable, causes the Software to fail to meet the specifications set out in any documents, reports, system and user manuals and guides published by ACD/Labs in respect of the Software, causes incorrect results or causes incorrect functions to occur.  For certainty, errors do not include any error, problem or defect attributable to any software provided by third Persons with which the Software is integrated;
      2. Helpdesk Support: ACD/Labs will provide helpdesk support to Customer by telephone and electronic mail to assist in the use of the Software;
    2. Contact Details: Customer may contact ACD/Labs to request Technical Assistance by telephone, e-mail/web and facsimile as follows:
      1. Toll free telephone assistance at 1-800-304-3988 between the hours of 9:00 a.m. and 5:00 p.m. (Eastern Standard Time) Monday through Friday (excluding Saturday, Sunday or any statutory holiday observed in the province of Ontario) ("Business Hours");
      2. E-mail support at support@acdlabs.com or web support at http://www.acdlabs.com/, and/or
      3. Facsimile support at (416) 368-5596 during Business Hours.
    3. Response Times: ACD/Labs will use commercially reasonable efforts to respond to all Customer support queries within eight (8) Business Hours.
    4. Assessment of Severity Categories: The Customer will, when making an initial request for Technical Assistance, provide ACD/Labs with an assessment of the severity of their query in accordance with the severity categories set out below and appropriate user and license information to verify entitlement to Technical Assistance. ACD/Labs has provided web-based forms that allow a quick entry of all required information.  Currently, these reside at http://www.acdlabs.com/feedback/bugs.html.
    5. Exclusions to Technical Assistance: Technical Assistance does not include the following:
      1. Programming services including changes to the source code of the software, macros, or usage of purchased technologies, including but not limited to ActiveX controls, Java applications and applets, and web services;
      2. Consultation on Customer internal operations;
      3. Customization of the Software;
      4. Automation of the Software;
      5. Training;
      6. Installation and/or re-installation of the Software beyond operations described in the documentation; 
      7. On-site support, consulting and implementation;
      8. Hardware and related supplies;
      9. Support of the Software when installed on non-supported hardware platform(s); or
      10. Support of prior versions of the Software, subject to ACD/Labs’ End-of-Life Policy as described at: http://www.acdlabs.com/support/lifecycle.php
  5. SEVERITY CATEGORIES

    1. Severity Categories: After ACD/Labs responds to Customer based on Customer’s assessment of the severity category, ACD/Labs will either confirm or assign one of the following severity categories to each problem identified in a Customer support query:
      1. "Category 1" (Low): Software does not perform to Specification, but Customer is able to work with the Software, or the problem is not business-impacting to the Customer.
      2. "Category 2" (Medium): Customer's use of the Software is mildly inhibited and a workaround is readily available.
      3. "Category 3" (High): Customer is significantly inhibited from working with the Software, and no workaround is readily available.
      4. "Category 4" (Critical): Customer is unable to work with the Software.
    2. Notwithstanding any other provision of the Agreement, ACD/Labs has final authority in determining the severity category of all problems and in determining the priority of repair of Category 1 through Category 4 problems.
  6. SUPPORT PROCEDURES

    1. Escalation Procedure:  After assigning a severity category to a problem, ACD/Labs will determine the escalation procedure to be followed, in accordance with the following:
      1. "Level 0": A technical support specialist works to analyze and verify the problem reported in a Customer support query.  A service number, bug number or feature request number may be associated with each query.  Attempts will be made by the technical support specialist to reproduce bugs, as only reproduced bugs will be accepted.  The problem may be broken up into component issues, each assigned unique service numbers.  If the problem is not resolved at this level within 8 Business Hours of ACD/Labs’ response to Customer, it will be escalated to Level 1. 
      2. "Level 1": If initial efforts fail to resolve a problem, the situation is re-evaluated by ACD/Labs in conference with available members of the technical support group.  If the problem is not resolved at this level within 4 Business Hours of escalation to this level, it will be escalated to Level 2. 
      3. "Level 2": If re-evaluation under Level 1 fails to provide a resolution, the Customer will be notified, and the product developer(s) for the particular ACD/Labs Software will be consulted.
      4. "Level 3": If the product developer(s) are unable to rectify the problem, the Product Manager or the Customer Success Manager is apprised of the situation and will determine the final course of action.
    2. Changes to Policy and Procedures:  ACD/Labs reserves the right to change any Maintenance Services policies and procedures at any time without providing prior notice to Customer.  However, at Customer's request, ACD/Labs will provide Customer with information relating to ACD/Labs’ then current severity categories and escalation policies and procedures.