These support terms and conditions (the “Support Terms”, and together with (as applicable) your Order Form, the Terms, and Professional Services Addendum, the “Agreement”) are a binding agreement between you (“you” “or “Customer”) and Prophecy, (“Prophecy”, “us” or “we”) governing your use of the Support Services ordered on your Order Form. The Terms are hereby incorporated into these Support Terms. Prophecy reserves the right to amend, discontinue, limit, disable, terminate, or cancel any feature of the Support Services at any time.
The terms and conditions in this Addendum apply only if Customer has purchased Support Services.
1. DEFINITIONS. Capitalized terms used but not defined in the Standard Terms and Conditions shall have the meanings set forth in this Section 1:
1.1 “Acceptance Date” means the effective date on the Order Form.
1.2 “Error” shall mean a reproducible defect in the Supported Program when operated on a Supported Environment, which causes the Supported Program not to operate substantially in accordance with the Documentation.
1.3 “Major Release” means a release of the Prophecy Software which is not merely a revision or a bug fix release but which contains substantially new features or functionality (e.g., an overhaul of the interface, change in compatibility, etc). Major Releases are numbered as X.0.
1.4 “Minor release” is a release of the Prophecy Software which is merely a revision or a bug fix release but which does contain substantially new features or functionality. Minor Releases are numbered sequentially after the “.” such as 1.3, 1.4, etc.
1.5 “Patch or Hotfix” means piece of code designed to fix a problem with the Prophecy Software which Prophecy generally makes available for Prophecy Software licensees at no additional license fee, provided Customer has paid the Support Fee (or License Fees, as applicable) for such licenses for the relevant time period. Patches shall not include any release, option or future product which Prophecy licenses separately from Support Services for an additional fee.
1.6 “Resolution” shall mean a modification or workaround to the Supported Program and/or Documentation and/or other information provided by Prophecy to Customer intended to resolve an Error.
1.7 “Supported Environment” shall mean any hardware and operating system platform which Prophecy supports for use with the Supported Program as set forth in the Documentation or as otherwise provided in writing by Prophecy to Customer.
1.8 “Supported Program” shall mean the current Major Release and the immediately preceding Major Release of the Prophecy Software (including all Minor Releases under the same Major Release version number), for which Customer has paid the then-current Support Fees (or License Fees, as applicable).
1.9 “Update” means a subsequent release of the Prophecy Software which Prophecy generally makes available for Prophecy Software licensees at no additional license fee, provided Customer has paid the Support Fees (or License Fees, as applicable) for such licenses for the relevant time period. Updates shall not include any release, option or future product which Prophecy licenses separately from Support Services for an additional fee. Labor to install and configure updates in Customer environments is not included in Support Services.
2. SUPPORT TERM.
2.1 Term; Renewal. The initial term for the provision of Support Services by Prophecy for Customer under the Agreement will begin on the Acceptance Date and continue for the term noted on the order form, unless the Agreement is terminated in accordance with its terms. Upon expiration of the initial term, the provision of Support Services will automatically renew on the anniversary of the Acceptance Date for a minimum of an additional one (1) year renewal terms, unless Customer provides Prophecy with written notice of Customer’s intent not to renew the Support Services no later than sixty (60) days prior to the next anniversary of the Acceptance Date. The term for the provision of the Support Services shall automatically terminate and expire, without need for any additional notice or action, upon the expiration or termination of the Agreement. For clarity, notwithstanding, customers with Subscription licenses shall receive Support Services only so long as they pay the applicable License Fee, and customers with Perpetual licenses shall only receive Support Services so long as they pay the applicable Support Fee.
2.2 Reinstatement. Customer may reinstate Support Services for a Supported Program that has been terminated or allowed to lapse, by payment of a “Reinstatement Fee” equal to one hundred and ten percent (110%) of the Support Fees (or License Fees, as applicable) for the Support Services that would otherwise have been applicable (pursuant to this Agreement) for the period between the effective date of termination of Support Services and the effective date of reinstatement, plus, the annual Support Fee (or License Fees, as applicable) then applicable and commencing upon the effective date of reinstatement.
2.3 Changes in Support and Software. Customer acknowledges that Prophecy has the right to discontinue the manufacture and development of any Prophecy Software and the Support Services, at any time in its sole discretion, provided that Prophecy agrees not to discontinue Support Services for the Prophecy Software during any then-current term, subject to the termination provisions herein. Prophecy reserves the right to alter Support Services from time to time, using reasonable discretion but in no event will such alterations result in (i) materially diminished support from the level of Support Services set forth herein; (ii) materially diminished obligations for Prophecy; (iii) materially diminished Customer’s rights; or (iv) higher Support Fees during the then-current term. Prophecy will provide Customer with thirty (30) days’ prior written notice (delivered electronically or otherwise) of any permitted material changes to the Support Services contemplated herein. Prophecy will provide Customer with sixty (60) days’ notice before the end of any then-current term if it wishes to discontinue providing Support Services at the end of that term.
3. SUPPORT SERVICES PROVIDED.
3.1 Support Channels. Prophecy will provide virtual support 24×5 using the Prophecy Support portal. Prophecy will provide online support using a Prophecy portal. Support will include the following:
- (a) Clarification of functions and features of the Supported Program;
- (b) Clarification of the Documentation;
- (c) Guidance in operation of the Supported Program;
- (d) Assistance in identifying and verifying the causes of suspected Errors in the Supported Program; and
- (e) Advice on bypassing identified Errors in the Supported Program, if reasonably possible.
3.2 Resolution of Errors. For all inquiries received by Prophecy, Prophecy will provide an initial response according to the service level criteria in Table 1 below.
3.3 Travel and Other Expenses. Support Services provided hereunder shall be provided at Prophecy’s principal place of business. Should Customer request that Prophecy send personnel to any Customer facility to resolve any Error in the Supported Program, Customer shall pay Prophecy’s reasonable, pre-approved (by Customer) travel, meals and lodging expenses. Under such circumstances, Customer shall also pay actual costs for supplies and other expenses reasonably incurred by Prophecy and necessary for the Support Services, which are not of the sort normally provided or covered by Prophecy, provided that Customer has approved in advance the purchase of such supplies and other expenses.
3.4 Exceptions. Prophecy will provide the Support Services only for the Supported Program. Prophecy shall have no responsibility under this Agreement to fix any Errors to the extent arising solely out of or solely related to the following causes: (a) Customer’s modification of the Supported Program (in whole or in part), (b) use of the Supported Program in an environment other than a Supported Environment (unless such other environment was provided or used by or for Prophecy); (c) hardware problems (other than hardware provided or used by or for Prophecy); (d) performance and tuning issues which are outside of Prophecy’s control, including the workload, configuration and size of your system, arrangement of disk files, network traffic, database tuning and the like; or (e) your use of software not provided by Prophecy. Any corrections performed by Prophecy for such Errors shall be made, in Prophecy’s reasonable discretion, at Prophecy’s then-current time and material rates.
4. UPDATES AND PATCHES. Prophecy will provide Updates and Patches for the Supported Programs as and when developed for general release in Prophecy’s sole discretion. Each Update and/or Patch will consist of a set of programs and files made available on machine-readable media or electronic download, as determined by Prophecy, and will be accompanied by Documentation adequate to inform Customer of the problems resolved and any significant operational differences resulting therefrom. Prophecy shall have no responsibility to install or implement any Patches or Updates in the Supported Environment or to the Supported Program if Customer has not paid its Support Fees (or License Fees, as applicable).
5. CUSTOMER RESPONSIBILITIES.
5.1 Supervision and Management. Customer is responsible for: (a) assuring proper Supported Environment configuration, Supported Programs installation; and (b) following industry standard procedures for the security of data, accuracy of input, and back-up plans, including restart and recovery in the event of hardware or software error or malfunction.
5.2 Customer’s Obligation to Assist. Should Customer report a purported Error, Prophecy may require Customer to provide it with the following information: (a) a general description of the operating environment, (b) a list of all hardware components, operating systems and networks, (c) a reproducible test case, and (d) any log files, trace and systems files. Customer’s failure to provide this information may prevent Prophecy from identifying and fixing the error. [From time to time, it is helpful in troubleshooting issues with the deployment of the Supported Programs to receive log files from customers. Please be assured that Prophecy will treat your information with the utmost care and will ensure the destruction of any and all files upon completion of the troubleshooting session. We will never authorize access to this data for any ulterior purpose (ie Marketing). ]
5.3 Training. Except for training services provided by Prophecy to Customer pursuant to an agreed training engagement, Customer is responsible for ensuring that all appropriate personnel are knowledgeable in the operation and use of the Supported Programs (pursuant to the Documentation) and associated equipment.
6. SEVERITY LEVELS
A severity level will be assigned to each service request upon receipt pursuant to the descriptions set forth in Table 1 below. In some cases, it may be appropriate to upgrade or downgrade the severity level from its initial assignment. For example, if a work-around is identified and implemented for a Critical Level problem, the severity level will be downgraded to a Medium Level.
Resolution Method and Timing
An incident number will be assigned to each service request upon receipt. This incident number will be reported to Customer and used as a means to track support status. Resolution activities will be based on the Severity Level on the incident. If, upon investigation, Prophecy determines that the fault reported by you was not an Error or otherwise caused by Prophecy, you agree to pay Prophecy’s reasonable costs, at its then-current rate, for their work in fixing the fault. Prophecy will endeavor to advise you prior to incurring those costs.
Table 1 – Severity Levels Table
||Supported Program is inoperative or unusable and Customer is unable to operate its business. Critical or material impact on normal business operations.
||Prophecy will put forth commercially-reasonable efforts to sustain resolution activities as long as necessary. Resolution will restore the system to adequate operation as quickly as possible. Resolution may include but is not limited to, a work-around, a patch, a software correction or installation of a corrected version of the Supported Program.
||Supported Program is partially inoperative, causing a significant inconvenience to your business, and there are no work-arounds available. Less critical but severely restrictive impact on normal business operations.
||Prophecy will put forth commercially-reasonable efforts to resolve the issue. Resolution will restore the system or incorrect function to adequate operation within a reasonable timeframe. Resolution may include, but is not limited to, a work-around, patch, software correction or installation of a corrected version of the Supported Program.
||Supported Program is usable with limited functions, and is causing an inconvenience. Work-around exists to prevent impact on business operations.
||Prophecy will determine the activities necessary to resolve the problem and the timeframe in which resolution can be completed and will use best efforts to correct the Error in the next scheduled release. Customer may request that resolution be accelerated. An accelerated schedule may result in additional fees.
||Supported Program is usable but a minor or cosmetic problem has been identified and correction is required.
||Prophecy will determine the activities necessary to resolve the problem and the timeframe in which resolution can be completed and will use reasonable efforts to correct the Error in a subsequent release. Customer may request that resolution be accelerated. An accelerated schedule may result in additional fees.