Software Maintenance and Technical Support Agreement
Last Updated: 1/2023
QoS Networking, Inc.
Terms and Conditions
QoS Networking, Inc. (“QoS Networking”) will provide you with the Software Maintenance and Support Services listed under your Annual Subscription End User Software License agreement. Licensed users of the bitB™ software products (“Software”) who are not covered under this agreement will only be granted Limited Software Maintenance and Technical Support as defined in Software End User License Agreement.
Definitions
“QoS Networking” means QoS Networking Incorporated, a New York corporation with offices at 5 Southside Drive 11-284, Clifton Park, NY 12065.
“Computer” means a computer device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
“Software” means all computer programming code, entirely in binary form, which is directly executable by a computer of a specific version of the bitB™ software product, including related explanatory written materials and files (“Documentation”).
“Software Update” means a version of the Software, which is classified by QoS Networking as a “maintenance” release that corrects deficiencies and/or bugs affecting performance to the Software description.
“Software Upgrade” means a version of the Software as classified by QoS Networking which has been enhanced, improved and/or modified and replaces the existing version of the Software.
“Software Maintenance” means the unique software maintenance and technical support to be provided by QoS Networking pursuant to Annual Subscription End User Software License agreement.
“Licensee” refers to the Customer who purchased a license to use the Software.
“You” or “Your” refers to the Customer applying for the Software Maintenance pursuant to these Terms and Conditions.
1. Support
QoS Networking will establish and maintain an organization and process to provide support for the Software to the Customer. Support shall include (i) diagnosis of problems or performance deficiencies of the Software and (ii) a resolution of the problem or performance deficiencies of the Software. QoS Networking will provide telephone and internet based Live Chat support on a business day basis. Business day is defined as 9:00 AM through 6:00 PM eastern standard time, excluding holidays and weekends. In addition, QoS Networking will provide an internet based support system generally available seven (7) days a week, twenty-four (24) hours a day.
QoS Networking will use its best efforts to cure reported and reproducible errors in the Software. QoS Networking will engage staff during business hours until an acceptable resolution is achieved. If a technical issue with the Software is the end-result of a conflict or incompatibility with another software product (“Third Party Product”) which was not provided by QoS Networking and which was implemented at Your site during the terms of this agreement, then the vendor of the Third Party Product must assist QoS Networking in the resolution of the technical issue. If the vendor of the Third Party Product in not available or does not provide reasonable assistance in the resolution process, then QoS Networking expresses no warranty that the issue will be resolved.
Provision of Support by QoS Networking is conditioned upon Customer having deployed the current version of the respective Software for which such Maintenance is to be provided.
QoS Networking shall not be required to provide support for the Software or customization of the Software with regard to Your unique application requirements.
This agreement is not intended as a consulting agreement for customer services.
2. Maintenance
During the term of the Annual Subscription End User Software License, QoS Networking will provide the Customer with all released Software Updates and Software Upgrades of the Software along with other generally available technical material.
Software Updates and Software Upgrades release dates will be solely determined by QoS Networking. These maintenance materials, including the Software, may not be used to increase the licensed number of versions or copies of the Software. The Customer agrees not to use or transfer the prior version but to destroy or archive the prior version of the Software. All Software Updates and Software Upgrades shall be subject to the license agreement related to the Software.
All Software and related materials provided pursuant to Software Maintenance, including documentation and program materials are subject to these Terms and Conditions and the respective license agreement for the Software product.
3. Limitations
QoS Networking shall be under no obligation to furnish Software Maintenance under these Terms and Conditions to the extent that such Software Maintenance is required as a result of: (i) the operation of the Software in environmental conditions or configurations outside those prescribed in the user manual or other QoS Networking documentation for the Software; (ii) Your material failure to maintain the Software in accordance with the standards of maintenance prescribed in the user manual or other Software documentation provided to you with the Software; (iii) maintenance of the Software by anyone other than QoS Networking or a third party authorized by QoS Networking; and (iv) causes unrelated to the Software as delivered to You by QoS Networking, including without limitation; modifications to the Software, made by You or on Your behalf.
This license is granted solely for internal use and prohibits any commercial or for-profit activities. It is strictly intended for internal purposes within your organization and may not be used, directly or indirectly, to generate revenue, facilitate sales, or provide services for third parties.
4. Warranty
QoS Networking will undertake all reasonable efforts to provide technical assistance under this agreement and to rectify or provide solutions to problems where the Software does not function as described in the Software documentation, but QoS Networking does not guarantee that the problems will be solved or that any item will be error-free. This agreement is only applicable to QoS Networking Software running under the certified environments specified in the release notes for that product. QoS Networking will provide the Customer with substantially the same level of service throughout the term of this agreement. QoS Networking may from time to time discontinue Software versions and stop supporting Software versions one year after discontinuance, or otherwise discontinue any support service. THE FOLLOWING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR PROMISES TO CUSTOMER OR ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING BY STATUE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE OR TRADE USAGE. EXCEPT AS PROVIDED ABOVE, THE SERVICES AND MAINTENANCE ARE PROVIDED ‘AS IS’. QoS Networking is not liable for incidental, special or consequential damages for any reason (including loss of data or other business or property damage), even if foreseeable or if Customer has advised of such a claim. QoS Networking’ liability shall not exceed the fees that Customer has paid under this agreement. Customer agrees that the pricing for the services would be substantially higher but for these limitations.
Force Majeure. QoS Networking shall not be liable for its failure to perform due to unforeseen circumstances or any causes beyond QoS Networking’ reasonable control (“Force Majeure”). In the event of Force Majeure, QoS Networking’ performance will be extended for a period equal to the duration of the delay caused hereby.
5. Term and Renewal
Maintenance and Support are provided as a part of your Annual Subscription End User Software License agreement. If you do not renew your Annual Subscription License, you lose your right to technical support and Software updates as of the date that your current Subscription License expires.
6. General
(a) Each party acknowledges that it has read this Agreement; they understand the agreement and agree to be bound by its terms. Further, both parties agree that this is the complete and exclusive statement of the Agreement between the parties, which supersedes and merges all prior proposals, understandings, and all other agreements, oral and written, between the parties relating to this Agreement. The Software and the use thereof is subject to the license agreement related to the Software.
(b) Times by which QoS Networking will perform under this agreement shall be postponed automatically to the extent that QoS Networking is prevented from meeting them by causes beyond reasonable control.
(c) This Agreement is to be governed by and construed in accordance with the laws of the United Service of process upon either party shall be valid if served by registered or certified mail, return receipt requested and to the most current address provided by such party.
(d) No action, regardless of form, arising out of this Agreement may be brought by Customer more than two (2) years after the cause of action has arisen.
(e) If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent, deemed to be omitted.
(f) Customer may not assign or sub-license without the prior written consent of QoS Networking, Customer’s rights, duties, or obligations under this Agreement to any person or entity, in whole or in part. A sale of substantially all of Licensee’s assets to a third party or any transfer of more than 50% of the voting stock of Licensee to a third party shall not constitute an assignment under this license.
(g) The prevailing party in any action related to this agreement shall have the right to recover its reasonable expenses including attorney’s fees.