Software Support Terms – June 1 2013
These Software Support Terms (these “Support Terms”) apply to each Software and Support Order (each “Order”) by and between Lyris, Inc. (“Lyris”) and the customer identified in such Order (the “Customer”). As such, these Support Terms shall be deemed incorporated into each Order and any reference to “Order” in these Support Terms shall be deemed to include these Support Terms.
1.1 Included Support Services - Thirty (30) Days. For all Software, Lyris shall provide the following Support Services during the 30 day period following the Original Delivery Date of such Software: direct technical assistance via Lyris’s Customer Support Portal (located at http://www.lyris.com/us-en/customer-service).
During this 30 day period, Customer may upgrade its license at no cost to any updated ListManager versions of the same level and configuration as originally purchased.
After said 30 day period has expired, Customer may continue to use the free online resources available on the Lyris website, but will not have access to the Customer Support Portal or telephone support. If Customer chooses to upgrade its Software license to a higher performance level, feature set, or new Minor or Major Release, Lyris will grant Customer a thirty percent (30%) credit of the price paid for Customer’s existing Software license, to be applied to the price of the upgrade Software license.
1.2 Comprehensive Support. When purchased by Customer pursuant to an Order, Lyris shall provide Comprehensive Support during the Support Term, which shall include the following: (i) direct technical assistance through the Customer Support Portal, (ii) direct technical assistance by Phone, and (iii) all new Minor Releases and new Major Releases that Lyris makes available during the Support Term (“Comprehensive Support”).
If Customer upgrades to a higher performance level or feature set during the Support Term, then Lyris will grant Customer a 100% credit toward the price paid for Customer's existing license.
1.3 Support Term. Comprehensive Support shall be provided for a 12 month period following the Delivery Date for the applicable Software (the “Initial Support Term”). All Support Fees shall apply separately to each Renewal Support Term. Unless the applicable Service Schedule otherwise provides, a Service Schedule shall automatically renew for successive and consecutive 12 month periods (each a “Renewal Term”), unless either party provides written notice of nonrenewal no fewer than ninety (90 days prior to the expiration of the then-current Minimum Term or Renewal Term.
1.4 Lapsed Support Services. If Customer chooses not to renew their Support Term and later wishes to obtain the cancelled Support Services, Customer shall pay to Lyris a fee in an amount equal to the total amount of Support Fees and/or legacy Support Fees, as applicable, that would have accrued between the date of lapse of Support Services for such Software and the date upon which the parties mutually agree that Support Services for the Software will resume; provided that such Support Services are at such time available for such Software (or such version of such Software).
1.5 Legacy Software Versions. Lyris will offer support for the current whole numbered version of the Software, as well as the previous numbered version. If the Customer is on a “Legacy Version” (more than two whole numbers) of the software, the Customer will be required to upgrade their software to the most recent version before support will be provided. For example, if the current version of the software is version 11.X, Lyris will support all versions of the software that start with the whole number 10, and the whole number 11. Lyris will not be able to support any version of the software that start with the whole number 9, without the customer first upgrading to the 11 series.
1.6 Response Times. Lyris will use commercially reasonable efforts to effectuate prompt resolution of errors in the Software pursuant to the Severity Levels, response time and resolution times described below (“Severity Levels”). Response times are calculated based on Lyris’ normal business hours, which are during the days Monday through Friday (excluding holidays) and between the hours of 6am-6pm Pacific Time zone. (Pacific Time) (“Business Hours”).
2. Severity Levels
2.1 “Severity Level 1” Error occurs where critical functionality is unavailable. Work cannot reasonably continue the impact of a Severity 1 Error on the business is severe and immediate; there are no workarounds to minimize business impact.
2.2 “Severity Level 2” Error occurs where central functionality of the system is restricted. Operation can continue in a restricted fashion or user experiences degradation of system functionality.
2.3 “Severity Level 3” Error causes minimal interruption to non-central functionality. The Error as a minor impact or is inconvenient.
2.4 “Severity Level 4” Error causes no loss of service. The Error may be a cosmetic Error, a documentation error, or minor incorrect behavior that does not impede the operation of the system and will be considered a development request for feature or functionality.
3. Error Resolution
3.1 Priority Level 1 & Priority Level 2. Lyris shall provide an initial response to a Priority Level 1 Error within one hour and Priority Level 2 Error within one Business day after receipt of the initial Customer contact. If Lyris does not provide Customer with a workaround, patch, fix or other solution within 24 hours after Lyris has replicated the Error and confirmed that the Error is a Priority Level 1 Error, Lyris will provide the Customer with daily updates until resolution.
3.2 Priority Level 3 & Priority Level 4. Lyris shall make an initial response to a Priority Level 3 and Priority Level 4 Error in a commercially reasonable time. Resolution of Severity Level 3 issues will be handled in our release planning process and Lyris will advise Customer as to an estimated timeframe for such resolution to be implemented in a Minor Release.
4. Payment. Except as otherwise provided in the Order, Customer’s payments of fees are due upon receipt of the date of the applicable invoice. All payments will be made in invoiced currency. All fees that are not paid when due shall be subject to late charges of the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount or (ii) the maximum permitted under applicable law. If Lyris has not received any payment within said 30 day period, then Lyris may also suspend Customer's access to the applicable Support Service(s) upon no less than five (5) days prior, written notice to Customer until payment is made. Any suspension of Support Services pursuant to this Section will not relieve Customer of its obligation to pay all amounts due.
5. Taxes. The fees set forth in each Order are exclusive of any applicable sales, use, excise and similar taxes. Lyris will bill, and Customer will pay, the amount of any such taxes assessed on the Software and Support Services (excluding any tax related to the net income of Lyris). If Customer is tax exempt, then Customer will provide Lyris with a copy of its tax exemption certificate on or before execution of the applicable Order. Customer agrees to reimburse Lyris for any tax, as well as any interest and penalties thereon, levied against Lyris for the provision of Software or Support Services to Customer pursuant to an Order.