[# insert] 12 months. 12 months from Anniversary date. [# insert] [# insert] [# insert] Annually. Premium. [# insert] [# insert] [# insert]

Transcription

1 ZAP SOFTWARE MAINTENANCE AND SUPPORT SERVICES AGREEMENT DETAILS Date: Parties: (Customer) Recitals: A. Zap is the licensor, and the Customer is the licensee, of the Zap Software. (Zap) (each a Party and cumulatively the Parties) B. The Customer requires maintenance and support service from Zap for its use of the Zap Software. C. The parties have agreed that Zap will provide the Support Services to the Customer on the terms of this Agreement SCHEDULE 1 Commencement Date: Initial Term Renewal Term Territory Payment Currency Site(s) (provide address/es) Payment Frequency (from Commencement Date) Support Plan [# insert] 12 months 12 months from Anniversary date [# insert] [# insert] [# insert] Annually Premium Support Plan Special Conditions apply Yes/No (refer to Annexure 3) Support Hours Time Zone Support Fees Maintenance Fees Supported Users [# insert] [# insert] [# insert] [# insert] [# insert] Maintenance and Support Agreement for Premium Service June

2 1. Definitions and interpretation External information 1.1 This Agreement comprises a number of documents which are to be read together, including: this document (the Zap Maintenance and Support Services Agreement wording); any schedules, exhibits, annexures, or attachments (which are attached to this Agreement at the date of signing); information from the Website included by reference; and, documents otherwise included in accordance with the terms of this Agreement. To the extent of any inconsistency between these documents, the document appearing first in the following list shall prevail over each subsequent document: (c) (d) Information published on the Website from time to time of which Customer is notified in writing or ; The wording of the Zap Support Services Agreement including the Details and Schedule 1, but excluding all other attachments; Any Annexure; Any other attachment. Definitions 1.2 In this Agreement each of the capitalised terms defined in Schedule 1 has the corresponding meaning. To the extent that any of the defined terms in Schedule 1, also appears in the following list, the definitions are to be read together. In this Agreement the following terms have the corresponding meanings unless the context requires otherwise: Additional Support Charges means charges for services not included in the Support Plan, and calculated in accordance with a quotation provided by Zap or on a time and materials basis at Zap s time and material hourly charges current from time to time. Administration Fee means an amount of US$250 or equivalent payable in the Payment Currency. Maintenance Charge means the charge for the Maintenance Services specified in the Quotation or otherwise, if not so specified, Zap s published maintenance charge in respect of the Zap Software from time to time current; Maintenance Services Includes error corrections, and enhancements published from time to time, in respect of the Zap Software specified in the Sales Order; Confidential Information means all information whether or not in material form relating to the business or the affairs of the Parties Maintenance and Support Agreement for Premium Service June

3 including but not limited to tangible or intangible, visual or verbal paper based or electronic, present or future information such as trade secrets; financial information, including but not limited to financial reports and pricing; (c) technical information including but not limited to ideas, concepts, software, hardware or other technologies whatsoever; (d) business information including but not limited to operations, planning, marketing, interests, and products; (e) the terms of any agreement entered into between the Parties. Customer Environment means the Customer s information technology, communications, internet, software and other relevant infrastructure that interfaces with the Zap Software and/or Support Services. Hardware Requirements Documentation means the hardware requirements for the Zap Software, which are updated by Zap from time to time and published here ZAP Technical Specifications. Sales Order means the Sales Order quotation issued by ZAP and accepted by the Customer. SLA means the Service Level Agreement as updated by Zap from time to time which is published here: Premium Service Level Agreement and a copy of which is attached to this Agreement as Annexure AB. Special Conditions means the special conditions, if any, included in Annexure C. Support Plan means the combination of Support Services to be delivered to Customer by Zap as specified in Schedule 1 and outlined in Annexure A, Section 2. Support Services means the services in Annexure A, Section 1 provided by Zap in accordance with the applicable Support Plan updated by Zap from time to time and published here.. Support Ticket means an electronic request for one or more Support Services by completing the form at This is limited to: a. Inquiries regarding the regular operation of properly functioning Supported Software to achieve or use functions stated to be available in the documentation; or b. Requests for clarification or guidance in the use of the Supported Software where such requests could not have been answered by a trained member of the Customer s staff. It is understood by Customer that Support tickets do not constitute a replacement for Training or Education. Support tickets that are deemed to be Knowledge Related and not concerning an area in which Customer has achieved proper Training and Education as mutually agreed upon will be billed at the then published Maintenance and Support Agreement for Premium Service June

4 professional service rates on a time and material basis, reasonable discretion applies. Supported Version means specified releases and point releases updated by Zap from time to time and published here: BI -BI Supported Versions CX - CX Supported Versions Term means the then current term of this Agreement whether the Initial Term or any Renewal Term. Website means and each sub domain and related URL. Zap Consulting Agreement means the Zap Consulting Agreement published on the Website from time to time, and the terms of which can be downloaded here. Zap Software means Zap Business Intelligence, Zap CubeXpress, or any other software offering that is described under the Products pages on the Website. Zap Standard Definitions means the definitions published by Zap from time to time here: Premium Service Level Agreement Interpretation 1.3 In these terms and conditions the following rules of interpretation apply: reference to: (i) (ii) (iii) (iv) (v) one gender includes the others; the singular includes the plural and the plural includes the singular; a person includes a body corporate; a party means a party to these terms and conditions and includes the party s executors, administrators, successors and permitted assigns; a statute, regulation or provision of a statute or regulation ( Statutory Provision ) includes: A. that Statutory Provision as amended or reenacted from time to time; and B. a statute, regulation or provision enacted in replacement of that Statutory Provision. The word including and similar expressions are not words of limitation. Maintenance and Support Agreement for Premium Service June

5 (c) (d) (e) (f) (g) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning. If the Customer is constituted by more than one person, an obligation of the Customer is owed by each of the persons constituting the Customer jointly and severally and a right of the Customer is held by each of the persons constituting the Customer jointly and severally and any other reference to those persons is a reference to each of those persons separately. Headings and captions are for convenience only and do not form part of these terms and conditions or affect its interpretation. A provision of these terms and conditions must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of these terms and conditions or the inclusion of the provision in these terms and conditions. If an act must be done or if money is payable on a specified day which is not a Business Day, it must be done or paid instead on the next Business Day. 2. Maintenance Subject to due and punctual payment of all Maintenance Charges, ZAP will provide Customer with: o All releases (including Version Releases and Point Releases) of the Zap Software which is licensed to Customer, if any, and the corresponding Documentation; and o Any bug fixes released by us which relate to the Zap Software which is licensed to Customer. ZAP will provide Maintenance Services for previous releases for a minimum period of 24 months following the general availability of a new release or software update. After this time, ZAP will have no further responsibility for supporting and maintaining the prior releases. All software updates and enhancements provided to Customer by ZAP pursuant to this Agreement shall be subject to the relevant terms of this Agreement. 2.1 Manner of provision ZAP will provide the Maintenance Services in whatever manner ZAP may see fit. 2.2 Maintenance Charges Maintenance Charges will be determined and payable in accordance with the Sales Order unless otherwise agreed by the parties in writing. Maintenance and Support Agreement for Premium Service June

6 2.3 Additional Charges In the event that: o The provision of the Maintenance Services is delayed or complicated and the delay or complication is attributable to any action or inaction on the Customers part; o ZAP are required to perform services in circumstances other than those expressly or reasonably anticipated; or o There is a change in the timing or complexity of the Maintenance Services; and such circumstances are not a result of a breach of this Agreement by us, then ZAP will be entitled to make an additional charge on a time and materials basis. 3. Provision of Support Services 3.1 During the Term Zap will supply the Support Services as included in the Support Plan (refer Annexure A) in accordance with the terms of this Agreement and the response times in the SLA (refer Annexure AB) subject to Customer payments being up to date and Customer complying with all Customer Obligations. 3.2 To the extent that any Zap representative is to visit the Site, such visit is subject to the terms of the Zap Consulting Agreement; and prior to any site visit Zap may require that Customer agree to, and sign, a Zap Consulting Agreement. 4. Payment 4.1 The Customer will pay the Maintenance and Support Fees and any applicable Additional Support Charges in accordance with this clause Maintenance and Support Fees will be invoiced annually in advance starting on the Commencement Date. The Customer s payment is due within 30 days of the receipt by the Customer of an invoice from Zap. 4.3 Prior to the start date of any Renewal Term, the Maintenance and Support Fees may be increased for that Renewal Term by an amount not exceeding the annual increase in the Consumer Price Index (CPI). 4.4 If the provision of the Support Services requires travel and the Site is located at a distance in excess of 50 miles from a Zap service centre, Zap may apply an Additional Support Charge for the time and travelling expenses of its support personnel in respect of travel beyond that 50 mile limit to and from the Site. However it is anticipated by the parties that the majority of support services will be provided remotely. All travel (if required) will be approved in advance and will be included in the Statement of Work. Maintenance and Support Agreement for Premium Service June

7 4.5 If the Customer disputes the whole or any portion of the claim in an invoice submitted by Zap, the Customer shall pay the portion of the amount stated in the invoice which is not in dispute and shall notify Zap in writing (within seven days of receipt of invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Customer shall pay the amount finally resolved together with an Administration Fee in accordance with the terms of payment set out in these terms and conditions. 4.6 In the event that: (c) (d) the provision of the Support Services is delayed and the delay is attributable to the action or inaction of the Customer; Zap is required to perform services in circumstances other than those expressly or reasonably anticipated; the provision of the Support Services requires a visit to the Site; or there is a change in the timing or complexity of the Support Services; and such circumstances are not a result of a breach of the Agreement by Zap, then Zap shall be entitled to apply an Additional Support Charge. 4.7 The Maintenance and Support Charges are exclusive of taxes, duties and charges imposed or levied in the connection with the supply of the Support Services. Without limiting the foregoing, the Customer shall be liable for any new taxes, duties or charges imposed subsequent to the date of the Agreement in respect of the Support Services. 4.8 The Customer must make all payments due to Zap in the Payment Currency. If, for any reason, an amount received by Zap from the Customer is not received in the Payment Currency, then the Customer must indemnify Zap against any shortfall between the amount Zap receives on converting the payment made into the Payment Currency and the amount of the Payment Currency that ought to have been paid. 5. Zap s obligations 5.1 Zap warrants: it will supply the Support Services with all due care and skill and in a professional manner consistent with generallyaccepted industry standards and in accordance with the SLA; and Maintenance and Support Agreement for Premium Service June

8 Zap s entry into and performance of its obligations under this Agreement will not infringe the rights of any third party or cause the Customer to be in breach of any obligations to a third party. 5.2 Zap does not warrant that all logged Incidents will be able to be fixed. 6. Both Parties obligations Zap and the Customer agree: (c) (d) they have full power and authority to enter into and perform this Agreement; to act reasonably in performing their obligations and exercising their rights under this Agreement; that when communicating with each other, each Party is responsible for conducting appropriate virus checks on any electronic media sent or received to/from the other Party; and to ensure any of their locations the other Party s personnel are required to attend, comply with all applicable legislative and regulatory requirements, including but not limited to as workplace occupational health and safety, equal opportunity and anti-discrimination legislation and no smoking policies. 7. Customer obligations In order for Zap to supply the Maintenance and Support Services, Customer must: (c) (d) (e) ensure that all undisputed payments for their Software License, Software Maintenance, and Support Service agreements are up to date; ensure that the Customer Environment is in good working order and complies with the minimum specifications articulated in the Hardware Requirements Documentation; ensure that it is running a Supported Version of the Zap Software; ensure that its personnel are suitably qualified and adequately trained in the use of the Zap Software as advised by Zap; ensure the Zap Software and customer data is adequately backed up; Maintenance and Support Agreement for Premium Service June

9 (f) (g) (h) (i) (j) let Zap know of any defect in the operation of the Zap Software as soon as it becomes aware of the defect; submit all required information into the Support Ticket; grant Zap s personnel access to its location(s) and Customer Environment (including relevant passwords and/or data) reasonably required by Zap to perform Zap s obligations under this Agreement. Zap will comply with the Customer s security and workplace policies where they are provided to Zap in advance; provide all other reasonable information, including but not limited to sample data, error logs and error messages, and assistance that Zap requires to replicate and resolve Customer s problem; if required, make its suitably qualified and informed personnel available to assist Zap to replicate the problem, undertake testing of resolutions provided by Zap, and otherwise assist Zap to resolve the problem. 8. Service exclusions 8.1 Unless otherwise agreed in writing, Zap has no liability for, and is not required to provide Support Services under this Agreement to the extent the service request relates to: (c) (d) (e) (f) (g) Support Services outside of Support Hours; information provided by the Customer that is inaccurate or incorrect; damage due to external causes outside Zap s control including accident, disaster, electrical fault, power surges, lightning, internet connection fault, vandalism or burglary; the Customer not following Zap or the reseller s written instructions for the Software; damage caused by non-zap personnel installing or modifying the Software; the Customer s or its third party s incorrect and/or abnormal use of the Software and/or any repair or damage caused by such misuse; any malfunction or specific requirement of the Customer Environment or any other item of hardware or software that the Customer has linked to the Software; Maintenance and Support Agreement for Premium Service June

10 (i) (ii) (iii) (iv) (v) (vi) correction of errors in any non-zap proprietary software or other software not supplied by Zap; Customer data that is lost or damaged due to reasons not attributable to Zap; the Customer changing its Customer Environment (other than as agreed in writing); where the Customer has not installed or maintained any error correction, current updates or new releases supplied or made generally available by Zap or other relevant third party manufacturers; repair necessitated by a virus or denial-of-service attack (or similar) in the Customer Environment; the Software demonstrates a fault, or capability limitation, for which Zap has not or does not intend to release a correction; (vii) where the Customer customises the Software (when customisations are permitted under its licence terms); (viii) any other services not included in the Support Services. 8.2 The Maintenance and Support Services specifically exclude any other service offerings from Zap which are the subject of a further agreement or additional terms and conditions. This may include such services as, consulting, training and the like. 8.3 Zap may at its option provide the services stated in clause 8.1 or clause 8.2 for an Additional Support Charge. 9. Suspension of support services Zap may immediately suspend its provision of support service if: (c) (d) (e) Customer has not paid any undisputed Support Fee by the due date; Customer has not paid any undisputed Additional Support Charge by the due date; Customer has not paid any other undisputed amount due under any agreement to licence or purchase Zap Software or maintenance services for Zap Software; Customer has used all entitlements under its Support Plan; Customer has requested a specific Support Service which it has used all of its entitlements to under its Support Plan; or Maintenance and Support Agreement for Premium Service June

11 (f) Customer has not met one or more of its obligations under this Agreement which generally prevents or obstructs Zap from delivering one or more Support Services. 10. Term and termination 10.1 The Support Services shall be provided by Zap to the Customer for the Initial Term Upon payment of the Support Fees for the relevant year this Agreement may be renewed by the Customer for the Renewal Term as notified to Zap in writing. If Zap notifies the Customer in writing of any variation to the terms of this Agreement prior to the renewal of this Agreement, then upon renewal the Customer is deemed to have accepted those changes and this Agreement is varied to the extent of those changes Without limiting the generality of any other clause in these terms and conditions this Agreement will terminate automatically and with immediate effect if: any licence agreement for the Zap Software is terminated for whatever reason; the Customer for any reason destroys, disposes of or loses custody of the Zap Software; 10.4 Without limiting the generality of any other clause in this Agreement, either Party may terminate this Agreement immediately by notice in writing if: (c) (d) any software maintenance agreement applicable to the Zap Software is terminated for whatever reason; the other Party is in breach of any term of this agreement and such breach is not remedied within 30 days of the first Party notifying it of the breach; either Party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration or; either Party ceases or threatens to cease conducting its business in the normal manner If this contract is terminated pursuant to clause 10.3 or clause 10.4; Zap may, in addition to terminating the Agreement: repossess any of its property in the possession, custody or control of the Customer; Maintenance and Support Agreement for Premium Service June

12 (c) (d) (e) retain any moneys paid in respect of products and services provided to Customer prior to termination, provided that Zap shall refund moneys previously paid by the Customer pursuant to this Agreement for goods or services not provided by Zap to the Customer; charge a reasonable sum for work performed in respect of work for which no sum has been previously charged; be regarded as discharged from any further obligations under this Agreement; and pursue any additional or alternative remedies provided by law Clauses 11, 12, 13, 17.2 and 17.3 survive termination of this Agreement. 11. Confidentiality 11.1 During the Term, the Parties may exchange Confidential Information, and each Party agrees to protect the Confidential Information of the other Party in accordance with this clause The Party receiving Confidential Information (a Recipient ) will use the Confidential Information disclosed to it by the other Party ( Discloser ) only for the purposes of this Agreement, and will take reasonable steps to protect and safeguard the Confidential Information and to prevent any use of Confidential Information in violation of this Agreement; the Confidential Information being entered into a computer database or network that is not solely operated by it; and (c) communication of Confidential Information to any unauthorised third parties The Recipient may disclose Confidential Information only to those of its employees, directors, advisors and agents of third party contractors (together Authorised Persons ) who have a need to know (and only to the extent that each has a need to know); and are aware that Confidential Information must be kept confidential The Recipient will only have a duty to protect information disclosed to it by the Discloser if it is clearly marked as confidential or with similar designation; if it is identified by the Discloser as confidential before, during or promptly after presentation or communication; or (c) if it is disclosed in a manner in which the Recipient should reasonably have understood under the circumstances that the disclosure should be treated as confidential. Maintenance and Support Agreement for Premium Service June

13 11.5 The obligations of confidentiality under this Agreement do not extend to information that is rightfully known to or in the possession or control of the Recipient and not subject to an obligation of confidentiality on the Recipient; is public knowledge (otherwise than as a result of a breach of this Agreement); (c) is independently developed by the Recipient without breach of this Agreement; (d) is disclosed by the Recipient with the Discloser s written approval; or (e) the Recipient is required by law to disclose, provided that the Recipient shall immediately and before the disclosure is made, notify the Discloser in writing of such legal requirement The Recipient must at its expense establish and maintain effective security measures to safeguard Confidential Information from access or use not authorised by this Agreement; keep Confidential Information under the Recipient s control; (c) ensure, at all times, that each person, to whom Confidential Information has been disclosed complies with this Agreement; (d) notify the Discloser immediately if it becomes aware of a suspected or actual breach of this Agreement; (e) immediately take all steps to prevent or stop the suspected or actual breach; and (f) ensure that any Authorised Persons of it to whom Confidential Information of the other Party is disclosed does each of those things. 12. Implied terms 12.1 Subject to clause 12.2, any condition or warranty which would otherwise be implied in the Agreement is hereby excluded Where legislation implies in the Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in the Agreement, however, the liability of Zap for any breach of such condition or warranty shall be limited, at the option of Zap, to one or more of the following: if the breach relates to goods: (i) (ii) (iii) (iv) the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and if the breach relates to services: Maintenance and Support Agreement for Premium Service June

14 (i) (ii) the supplying of the services again; or the payment of the cost of having the services supplied again. 13. Liability of ZAP Scope of Liability 13.1 Except in relation to liability for personal injury (including sickness and death), in no event will either Party be liable for indirect, consequential or special damages arising from or related to this Agreement. Neither Party s aggregate liability arising from or related to this Agreement shall exceed the payment received by Zap hereunder.. Reliance 13.2 Subject to clause 12.2, Customer warrants that it has not relied on any representation made by Zap which has not been stated expressly in this Agreement or incorporated herein by reference or upon any description, illustration or specification contained in any document including any catalogue or publicity material produced by Zap. No Representations 13.3 Customer acknowledges that, to the extent that Zap may have made any representation that is not otherwise expressly stated in this Agreement or incorporated herein by reference, Customer has been provided with a reasonable and adequate opportunity to independently verify the accuracy of that representation. Breach 13.4 Each Party will at all times indemnify and hold the other party, including its officers and employees, harmless from and against any loss (including reasonable legal costs and expenses but excluding consequential losses, lost profits, special, indirect or incidental damages) or liability suffered or reasonably incurred by such Party, its officers or employees arising from any proceedings where such loss or liability was caused by: a breach by such Party of its obligations under this Agreement; or any wilful, unlawful or negligent act or omission by such Party, its officers or employees. Maintenance and Support Agreement for Premium Service June

15 14. Force majeure 14.1 Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure the performance of that Party s obligations will be suspended If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds 60 days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party If this Agreement is terminated pursuant to clause 14.3, Zap shall refund moneys previously paid by the Customer pursuant to this Agreement for goods or services not provided by Zap to the Customer. 15. Sub-contracts Zap may, without the consent of the Customer: (c) sub-contract for the performance of the Agreement or any part of the Agreement engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of services pursuant to this Agreement. all clauses in this agreement will equally apply to the subcontractor, provided that no such sub-contract shall release Zap from its obligations to provide services to Customer hereunder. No additional agreement will be required between Customer and Sub-contractor. 16. Disputes 16.1 Prior to initiating proceedings, other than with respect to disputes regarding unauthorized use or disclosure of Confidential Information, the parties must: formally refer the dispute to their respective contract managers for consideration; if the respective contract managers are unable to resolve the dispute after seven (7) days (or such other period as is agreed between the parties) from the date of referral, refer the dispute to the respective chief executive officers (or their delegates) of each Party; Maintenance and Support Agreement for Premium Service June

16 (c) (d) if the respective chief executive officers (or their delegates) are unable to resolve the dispute after a further seven (7) days (or such other period as is agreed between the parties), the Parties may agree in good faith to undertake a formal mediation process with an independent mediator; if the formal mediation process does not resolve the dispute after a further seven (7) days (or such other period as is agreed between the Parties) or the Parties do not elect to pursue formal mediation, each Party shall be permitted to pursue all rights and remedies available at law or in equity Nothing in this clause shall prevent a Party from seeking urgent equitable relief before an appropriate court. 17. General provisions Assignment 17.1 The benefit of the Agreement may not be assigned by either Party without the other Party s written consent, provided that either Party may assign this Agreement (i) to any entity controlled by, controlling, or under common control with it, or (ii) to a successor or acquirer in connection with a merger or acquisition, or the sale of all or substantially all of such Party s assets or the sale of that portion of such party s business to which this Agreement relates, upon written notice. Notices 17.2 All notices, demands, or consents required or permitted under the Agreement or required by law shall be in writing. Notices must be: (c) delivered in person or by facsimile; sent by mail; or sent by overnight courier, in each case properly posted and fully prepaid to the address above Either Party may change its address for notice by written notice to the other Party given in accordance with this Clause. Notices will be considered to have been given at the time of actual delivery in person or by facsimile if on a business day at the place of delivery, and otherwise as at 9.00am on the next business day, 3 business days at the place of delivery after deposit in the mail as set forth above, or one (1) business day at the place of delivery after delivery by the sender to an overnight courier service. Maintenance and Support Agreement for Premium Service June

17 Waiver 17.4 No waiver of any provision of the Agreement shall be effective unless in writing and signed by the Party to be charged. No failure or delay by either Party in exercising any right, power, or remedy under the Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power, or remedy, and will not in any way affect the validity of the whole or any part of the Agreement or prejudice such Party s right to take subsequent action. The express waiver by either Party of any provision, condition, or requirement of the Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition, or requirement. Amendment 17.5 Subject to item 17.6 below, no modification or amendment of any provision of the Agreement shall be effective unless in writing signed by both parties. The terms and conditions of the Agreement will take precedence over all terms, provisions, or conditions of any purchase order, acknowledgment, or other business form that Customer may use in connection with the acquisition of goods and services which will only apply to the extent that such documents are not otherwise inconsistent with the Agreement Zap may make changes to any information, definition, or other provision which is referred to in this Agreement and published on any one of Zap s websites, whether such information is also included in this Agreement or not, provided that any such changes made by Zap will only be effective and will bind the Customer upon: The Customer s agreement to such revisions as evidenced in writing; or The Customer s renewal of this Agreement after having been notified in writing of the proposed revisions. Governing Law 17.7 This Agreement shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of California. The parties expressly agree that any legal action brought by either party shall be filed in a court of competent jurisdiction, and the parties consent and submit themselves to the personal jurisdiction and venue of said court for such purposes. Independent Contractors 17.8 The parties are independent contractors. Neither Party shall be deemed to be an employee, agent, partner, or legal representative Maintenance and Support Agreement for Premium Service June

18 of the other for any purpose and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other. Severability 17.9 If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted. Entire Agreement This Agreement contains the entire agreement between the parties about the subject matter; and, supersedes any previous understanding, agreement, representation, or warranty relating to the subject matter. ZAP Technology, Inc. One Embarcadero Center, Ste San Francisco, CA By: Name: Title: Date: By: Name: Title: Date: Maintenance and Support Agreement for Premium Service June

19 Annexure A Support Services Agreement 1 Services 1.1 Support Services include: Self-service access to information including: (i) (ii) (iii) Remote access (via the support site) to a community forum which provides an online discussion community to exchange ideas and possible feature requests. Remote access (via the support site) to a knowledge base of information that provides a searchable repository of information on how to use the Zap Software. Remote access (via the support site) to a database of how to use videos (c) (d) (e) (f) Zap provided services including: Remote access for designated support contacts log Incidents and Questions into an online helpdesk ticketing system available 24 x 7 x 365 (excluding scheduled and unscheduled outages) A remotely provided resolution or response from Zap in relation to the logged ticket within Support Hours in accordance with priority and response times set out in the Support Plan Where Zap deems necessary and by agreement with the Customer, on-site attendance of Zap personnel (travel fees and charges will apply) Ticket Status is the terminology used to track the status of tickets according to the following definitions. 1) New An incident has been accepted by Zap and logged into the ticket tracking system. This is the default status assigned to all incidents when they are first entered. 2) Open A Support Analyst is now actively troubleshooting, researching, or working with other colleagues to addressing an incident. 3) Pending A Support Analyst is waiting for some extra information from the Customer, or other party. 4) Resolved A solution is accepted by the Customer in writing or verbally to a Support Analyst. Incidents may also be moved to resolved by Zap if an incident stays in pending status for more than 5 days. Maintenance and Support Agreement for Premium Service June

20 2 Support Plans Support Feature Support Hours Support Site Support Contacts 2 How To Questions Customer Reporting Ticket summary report Dedicated Support Agent Site Visits Monday to Friday 9am 5pm 10 First month following implementation Additional Packs of 12 can be purchased Weekly Yes Yes Training Discount 15% Urgent Priority Ticket Response time High Priority Ticket Response time Normal Priority Ticket Response time Low Priority Ticket Response time Automated case escalation 2 hour 4 hours 8 hours 12 hours Yes 3 Premium Add-Ons Support Feature N/A Maintenance and Support Agreement for Premium Service June

21 Annexure B Service Level Agreement (SLA) When requesting Support Services from Zap, including logging Incidents and Questions, the Incident or Question shall be categorised in accordance with the following priority categories: Zap shall use reasonable commercial endeavours to respond to logged Incidents and Questions within the time frames specified in the table below. Customer Priority Urgent High Normal Definition Business Impact Premium Response Time Business Hours only Emergency Production Issue High Level Production issue or emergency development issue Operational Issue Major impact - Customer unable to use the Zap Software and no alternative solution being available. Significant impact Customer able to use the Zap Software, but with functional errors or reduced functionality. Project deployment delayed No alternative solution available Minor impact - Customer able to use the Zap Software with minor errors not affecting core functionality or 2 Hour 4 Hours 8 Hours Software error for which there is an acceptable workaround Low How-To Minor performance degradation Minimal impact on errors or functionality, or 12 Hours Tips/Techniques Maintenance and Support Agreement for Premium Service June

22 Annexure C Special Conditions Maintenance and Support Agreement for Premium Service June

23 Maintenance and Support Agreement for Premium Service June