terms and conditions for protégé system management suite ... - ICT

TERMS AND CONDITIONSFOR PROTÉGÉ SYSTEM MANAGEMENT SUITESOFTWARE MAINTENANCE AGREEMENT (SMA)The Protégé System Management Suite Software Maintenance Agreement (SMA)is provided subject to the following Terms and Conditions. These provisions setforth are only obligations of Integrated Control Technology Limited (ICT)regarding the SMA. For purposes of this Agreement, "You" or "Your" shall refer tothe entity enrolled in the SMA.BENEFITS:1. Unlimited use of ICT’s email, online and telephone support, VIAAUTHORISED ICT PARTNER (the “Partner”) to receive technicalassistance and/or general consultation with regard to software Youhave licensed from ICT, and for which You have elected to receive SMA(the "Covered Software").2. As they become available, ICT will provide new versions, updatesand/or enhancements, fixes, and workarounds to current versions ofthe Covered Software via the Partner.3. As they become available, ICT will provide updates and enhancementsto existing documentation via the Partner and onlinewww.incontrol.co.nz4. ICT will take all reasonable steps to correct defects in the CoveredSoftware that are directly attributable to programming if ICT, in its solediscretion, recognizes them as having a materially detrimental effecton the performance of the Covered Software.TERMS5. The Annual Maintenance period begins when the CD Key for theCovered Software is first registered with ICT.6. The initial 12 month SMA fee is included in the purchase price of thesoftware.7. Annual SMA renewals are based upon a % of current list price of theCovered Software. Renewal fees may be subject to an inflationaryadjustment of list price from time to time. If You purchase additionalSoftware upgrades or licensed clients for such Software, these willinclude SMA with their expiry to coincide with the CD key’s expiry date.ICT do not pro-rata SMA.8. All charges for SMA are payable in advance 12 months in advance.9. Charges do not include charges related to third party softwareprograms, which may be required to run the Covered Software. Youmay be required to pay separately for any upgrades in such third partyprograms.

EXCLUSIONS FROM SMAThe following is expressly excluded from the terms of this Agreement:10. Provision, installation and/or support of new versions and/orenhancements to current versions of non-ICT software. Non-ICTsoftware includes but shall not be limited to operating system software.11. Installation of updates and enhancements to ICT software.12. ICT reserves the right to charge additional support fees for servicesperformed in connection with reported incidents that are laterdetermined to have been due to hardware or software not supplied byICT. Notwithstanding the foregoing, ICT has no obligation to performsupport services in connection with issues resulting from hardware orsoftware not supplied by ICT.13. Integration with third party software or hardware.SOFTWARE MODIFICATIONS14. Any modifications that You make to the Software, or databasestructure, including any modifications to any third party licensedsoftware included with or embedded in the Software, will render anyMaintenance or Warranty obligations contained in this Agreement nulland void. ICT will not be liable, in any respect, for any suchmodifications or any errors, losses or damage resulting from suchmodifications. ICT has no other responsibilities with respect toMaintenance other than those specified in this Section and will not beresponsible for maintaining other than the most current, unalteredrelease of the Software.DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY15. NO WARRANTIES: ICT does not and cannot warrant the performanceor results obtained by You in using the software, that the software willmeet your requirements, or that the operation of the software will beuninterrupted or error free. The software is licensed "as is" and themaintenance services provided hereunder shall be performed in aworkmanlike manner. ICT expressly disclaims any and all otherwarranties with respect to the software and services, either express orimplied, including but not limited to the implied warranties ofmerchantability and fitness for a particular purpose.16. Limitation of liability. In no event will ICT be liable for any loss ofprofits, loss of use, business interruption, loss of data, cost of cover orother indirect, special, incidental or consequential damages arising outof the delivery of maintenance services or any delay in delivery of themaintenance services. ICT’s maximum aggregate liability (whether incontract or in tort or under any other form of liability) for damages orloss, howsoever arising or caused, shall in no event exceed the amountactually paid by you for the relevant services giving rise to the liability.

GENERAL17. Delivery of any Software Maintenance service to You by ICT is subjectto conditions beyond the control of ICT or its Partners, including butnot limited to, Acts of God, acts of any public enemy, fire, flood,epidemic or quarantine restrictions, strikes, riots or civil commotion,freight or other embargoes, weather conditions or any failures by ICT'ssubcontractors or suppliers.18. You may not sub-license, sell, rent, lend or lease any portion of theCovered Software.19. You may cancel maintenance by giving notice at least 30 days notice inadvance of the annual period renewal date. Cancellations will becomeeffective on the renewal date. No credit will be given for partialMaintenance periods.20. If You allow your Maintenance coverage to lapse, You may purchasetelephone and/or email support for currently supported softwareversions on an as-needed basis. Telephone and/or email support isbilled at $200 per hour, with a minimum charge of one hour. After thefirst hour, support is billed in 15-minute increments of $50.00 each.Software updates and access to the Support web site are not availablewithout Maintenance.21. Reinstatement of lapsed Maintenance is only available to a maximumof 6 months beyond expiration date, except at the sole discretion ofICT, and will require full payment of Maintenance fees that would havebeen due from the expiration of the last active Maintenance periodthrough the reinstatement date, an additional 12 months in advance,plus a 20% administrative surcharge. This reinstatement policy appliesif Maintenance has been cancelled or there is otherwise a lapse inMaintenance coverage, such as for non-payment of fees. Uponreinstatement, You will receive the latest version of the CoveredSoftware.22. If You choose not to install the latest version of the Covered Software,ICT reserves the right to limit the scope of the Maintenance servicesprovided.23. This Agreement may be updated from time to time, and the currentversion will be available on the ICT website www.incontrol.co.nzLast updated 21 st August 2009