The following standard terms and conditions apply for all Maintenance and Support services granted by dcs plus unless otherwise agreed in writing (“Standard Maintenance and Support Terms”).
1.1 The definitions and rules of interpretation in this clause apply in these Standard Maintenance and Support Terms. Further, all definitions set out in the dcs plus Software License and Maintenance Agreement (“Agreement”) shall apply.
Commercially Reasonable Efforts: the same degree of priority and diligence with which dcs plus meets the support needs of its other similar customers.
Contact List: a current list of dcs plus contacts and telephone numbers to enable the Customer to escalate its Support Requests is available on the dcs plus Website.
Critical Fault: a reproducible fault which substantially hinders or prevents the Customer from using a material part of the functionality of the software in question, including any failure or error referred to in the Service Level Table.
Customer Cause: any of the following causes:
Deliverables: any Documentation, Software, know-how or other works created or supplied by dcs plus (whether alone or jointly) in the course of providing the Services.
Documentation: the documents provided by dcs plus for the Software, in either printed text or machine-readable form, including the technical documentation, program specification and operations manual.
Help Desk Support: any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Software.
Higher-level Support: any higher-level support provided by an individual on the Contact List.
Legacy Obligations: the obligations in respect of non-current versions of the Software.
Maintenance Release: a release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
Manager: the person appointed by the Customer from time to time in order to fulfil the role described in clause 6.3.
Modification: any Maintenance Release or New Version which is installed on the server of the Customer.
New Version: any new version of the Software which from time to time is publicly marketed and offered for free or for purchase by dcs plus in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Non-Critical Fault: any reproducible fault in the Software other than a Critical Fault.
Optional Service: Either of the following Services that the Customer and dcs plus may from time to time agree shall be delivered to the Customer by dcs plus under the terms of these Standard Maintenance and Support Terms:
Services: includes (as appropriate) the Standard Support Service, the Updating Service and any Optional Services which are included within an order for Optional Services under clause 4.
Service Levels: the service level responses referred to in the Service Level Table.
Service Level Table: the table set out in paragraph 17.1.b
Solution: either of the following outcomes:
License, Maintenance and Support Fee: As set out in the Agreement.
Support Period: The Term.
Support Request: request made by the Customer in accordance with this schedule for support in relation to the Software, including correction of a Fault.
Standard Support Services: maintenance of the then-current version or release of the Software, including Help Desk Support and Higher-level Support, but excluding any Out-of-scope Services.
Standard Support Service: the support service which is to be provided by dcs plus to the Customer under clause 3.
Standard Support Hours:
Support Manager: the person appointed by dcs plus from time to time in order to fulfil the role described in clause 5.1.
Support Staff: those individuals who perform dcs plus's obligations under these Standard Maintenance and Support Services Terms including (where the context permits) the Support Manager.
Supported Software: has the meaning set out in clause 2.
Updating Service: the service to be supplied by dcs plus to the Customer under clause 3.1 and clause 3.3.
1.2 Further all definitions set out in the dcs plus Software License and Maintenance Agreement (“Agreement”) shall apply.
2.1 The Supported Software is:
2.2 In relation to Maintenance Releases:
2.3 In relation to New Versions, if dcs plus releases a New Version and the Customer decides not to have such New Version installed, that decision shall not give rise to any right to terminate these Standard Maintenance and Support Services Terms, nor shall it result in any adverse effect on the Services or the performance of dcs plus's obligations under these Standard Maintenance and Support Services and Support Terms. However, if dcs plus has released a New Version since the version which forms part of the Supported Software, and the Customer has not, within 12 months of dcs plus having notified the Customer that a New Version is available, installed that New Version, dcs plus may terminate these Standard Maintenance and Support Services and Support Terms by giving one month's written notice to the Customer given at any time after the expiry of such period. Pending any such termination dcs plus's obligations in respect of the Supported Software shall be reduced to the Legacy Obligations.
3.1 dcs plus shall supply, and the Customer shall take and pay for, the following Services:
3.2 In relation to the Standard Support Service:
3.3 In relation to the Updating Service:
3.4 dcs plus may, on prior notice to the Customer, make changes to the Services, provided such changes do not have a material adverse effect on the Customer's business operations.
3.5 dcs plus shall have no obligation to provide the Services where faults arise from:
4.1 The Customer may from time to time request dcs plus to supply Optional Services. dcs plus shall use its reasonable endeavours to comply with the Customer's request, but the Customer acknowledges that dcs plus's ability to supply the Optional Services shall depend on the availability of appropriate resources at the time in question.
4.2 Where dcs plus agrees to provide Optional Services, such agreement shall be embodied in an order for Optional Services. Each order for Optional Services shall be made under, and shall incorporate, the terms of these Standard Maintenance and Support Services Terms.
5.1dcs plus shall appoint a Support Manager, who shall be responsible for the co-ordination of all matters relating to the Services. All communications, documentation and materials relating to these Standard Maintenance and Support Services and Support Terms shall be sent as appropriate by the Support Manager to the Manager. Each Party shall notify the other in writing promptly if there is any proposed change to those appointments.
5.2 In addition to its Support Manager, dcs plus shall provide sufficient Support Staff to fulfil its obligations under the terms of these Standard Maintenance and Support Services Terms. The Support Staff shall be suitably trained and experienced in the support and maintenance of the Supported Software.
5.3 In the absence of the Support Manager or of any other member of the Support Staff for any reason, dcs plus shall supply a replacement person who:
6.1 The Customer shall provide dcs plus, the Support Manager, the Support Staff and all other persons duly authorised by dcs plus with full, safe and uninterrupted access including remote access to the Customer's Software and to the server on which the Software is run as may reasonably be required for the purpose of performing the Services, such access, except in the case of emergency or agreed out-of-hours downtime, to be within the Standard Support Hours.
6.2 The Customer shall ensure that appropriate environmental conditions are maintained for the Supported Software and shall take all reasonable steps to ensure that the Supported Software is operated in a proper manner by the Customer's employees.
6.3 The Customer shall nominate a manager to be available to liaise with, and respond to queries from, the Support Manager.
6.4 The Customer shall:
6.5 The Customer shall indemnify dcs plus against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against dcs plus as a result of the Customer's breach of these Standard Maintenance and Support Terms howsoever arising or any negligent or wrongful act of the Customer, its officers, employees, contractors or agents.
7.1 Each Party shall, during the term of these Standard Maintenance and Support Terms and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of these Standard Maintenance and Support Terms) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such Party from the other Party and which relates to the other Party or any of its Affiliates (Confidential Information), unless such information is public knowledge or already known to such Party at the time of disclosure, or subsequently becomes public knowledge other than by breach of these Standard Maintenance and Support Terms, or subsequently comes lawfully into the possession of such Party from a third party. Each Party shall use its reasonable endeavours to prevent the unauthorized disclosure of any such information.
7.2 Each Party shall notify the other Party if any of its staff connected with the provision or receipt of the Services becomes aware of any unauthorised disclosure of any Confidential Information and shall afford reasonable assistance to the other Party, at that other Party's reasonable cost, in connection with any enforcement proceedings which that other Party may elect to bring against any person.
7.3 The terms of these Standard Maintenance and Support Terms may not be disclosed by the Customer (other than to its legal advisors) without the prior written consent of dcs plus.
7.4 dcs plus may refer to the Customer as being a client of dcs plus in Customer reference lists and sales presentations.
7.5 The provisions of this clause shall remain in full force and effect notwithstanding any termination of these Standard Maintenance and Support Terms.
Customer Personal Data and dcs plus Personal Data mean any Personal Data provided by or on behalf of the Customer or dcs plus, respectively.
8.1dcs plus shall:
8.2 dcs plus shall promptly and fully notify the Customer in writing of any notices in connection with the processing of any Customer Personal Data, including subject access requests, and provide such information and assistance as the Customer may reasonably require.
8.3 The Customer acknowledges that dcs plus will be acting as a data processor in respect of all such data processing activities which dcs plus carries out under these Standard Maintenance and Support Terms.
8.4 Except as expressly provided otherwise, these Standard Maintenance and Support Terms do not transfer ownership of, or create any licences (implied or otherwise), in any Intellectual Property Rights in any (non-personal) data.
9.1 dcs plus represents and warrants to the Customer that:
the Services will be performed:
9.2 If, during the term of these Standard Maintenance and Support Terms, dcs plus receives written notice from the Customer of any breach by dcs plus of the representations and warranties contained in clause 9.1(a) dcs plus shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice, or terminate these Standard Maintenance and Support Terms immediately on written notice to the Customer and repay to the Customer all sums which the Customer has paid to dcs plus under these Standard Maintenance and Support Terms during the year in which the termination occurs, less a charge for the Services performed up to the date of termination. The Customer shall provide all information reasonably necessary to enable dcs plus to comply with its obligations under this clause. This clause sets out the Customer's sole remedy and dcs plus's entire liability for breach of clause 9.
9.3 No representation or warranty is given by dcs plus that all faults will be fixed or will be fixed within a specified period of time.
9.4 All other conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into these Standard Maintenance and Support Terms or any collateral contract, whether by statute or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care.
10.1 Unless otherwise explicitly set out in the Agreement a termination for convenience shall be excluded.
10.2 The right to terminate the Agreement for cause remains without restriction. Subject to a previous warning letter with a period of at least 14 calendar days to render any outstanding payment, dcs plus shall be entitled to terminate for cause in case the Customer is in delay for more than 15 calendar days with
Under no circumstances the Delivery Fee or any other payment rendered under this Agreement has to be reimbursed.
No failure or delay by a Party to exercise any right or remedy provided under these Standard Maintenance and Support Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.1 Each Party acknowledges that in entering into these Standard Maintenance and Support Terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Standard Maintenance and Support Terms.
12.2 Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Standard Maintenance and Support Terms.
13. If any provision or part-provision of these Standard Maintenance and Support Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Standard Maintenance and Support Terms.
13.2 If any provision or part-provision of these Standard Maintenance and Support Terms is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
14.1 These Standard Maintenance and Support Terms may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute these Standard Maintenance and Support Terms.
15.1 During the Support Period dcs plus shall perform the Standard Support Services during the Standard Support Hours in accordance with the Service Levels.
15.2 As part of the Standard Support Services, dcs plus shall:
15.5 The Customer acknowledges that dcs plus is not obliged to provide Out-of-scope Services.
16.1 The provision of Standard Support Services on a remote basis (such as over the telephone or by e-mail) within the Support Period shall be included in the License, Maintenance and Support Fee.
16.2 The provision of Standard Support Services outside the Support Period or the provision of Out-of-scope Services shall be charged for at the time and materials rates applicable at the given time.
17.1 dcs plus shall:
|
Severity level of Fault |
Definition |
Service Level response |
|
1 |
Business Critical Failures: An error in, or failure of, the Software that: a) materially impacts the operations of the Customer's business or marketability of its service or product; b) prevents necessary work from being done; or c) disables major functions of the Software from being performed. |
Level 1 Response: Acknowledgment of receipt of a Support Request (i) if it was notified before 4 pm on the same day, and (ii) if it was reported after 4 pm on the next day. Level 2 Response: dcs plus shall provide by using all available resources on a 24/7 basis as soon as possible: a) an emergency software fix or workaround, or; and b) temporary release or update release Level 3 Response: dcs plus shall provide by using all available resources on a 24/7 basis a permanent Fault correction as soon as practicable after dcs plus’s receipt of the Support Request. If dcs plus delivers a Solution by way of a workaround reasonably acceptable to the Customer, the severity level assessment shall reduce to a severity level 2 or lower. |
|
2 |
System Defect with Workaround: a) a critical error in the Software for which a work- around exists; or b) a non-critical error in the Software that affects the operations of the Customer's business or marketability of its service or product. |
Level 1 Response: Acknowledgment of receipt of a Support Request (i) if it was notified before 4 pm on the same day, and (ii) if it was reported after 4 pm on the next day. Level 2 Response: dcs plus shall: a) restore the Software by using all available resources on a 24/7 basis to a state that allows the Customer to continue to use all functions of the Software in all material respects as soon as possible; and b) exercise Commercially Reasonable Efforts until full restoration of function is provided which allows the Customer to continue to use all functions of the Software in all material respects. Level 3 Response: dcs plus shall work on the problem continuously during standard business hours and implement a Solution as soon as possible after receipt of the Support Request. |
|
3 |
Minor Error: An isolated or minor error in the Software that: a) does not significantly affect Software functionality; b) may disable only certain non-essential functions; or c) does not materially impact the Customer's business performance. |
Level 1 Response: Acknowledgment of receipt of the Support Request two working days. Level 2 Response: dcs plus shall provide a permanent Fault correction by using commercially reasonable efforts. |
17.2 dcs plus shall give the Customer regular updates of the nature and status of its efforts to correct any Fault.
If a Solution is not provided as set out in the relevant Service Level, the Customer may escalate the Support Request to the parties' respective relationship managers at the contact details provided on the dcs plus Website.
