Maintenance Support Policy

DEFINITIONS

Except as otherwise expressly defined in this Maintenance and Support Policy (this “Policy”), all capitalized terms shall have the meaning set forth in the End-User Limited License (the “License”) located at sempre.ai/docs/end-user-license.pdf.

• “Current Release” means the then-current release of Software for use in a particular Operating Environment.
• “Customer Contact” means a Licensee employee (or independent contractor retained by Licensee) who is properly authorized to communicate with SEMPRE concerning Software and Hardware Maintenance. Customer contacts shall be knowledgeable in the use of the Software and Hardware and Licensee’s Operating Environment.
• “Enhancements” shall mean any program or any materials not included in the SEMPRE Product(s) which are not designated as Options and shall not include Software upgrades and Releases or revisions, patches, improvements, bug fixes or other modifications.
• “Error” means a defect in the SEMPRE Product and/or Third-Party Software or Hardware, which degrades the functional characteristics of the SEMPRE Product or Third-Party Software or Hardware as compared to SEMPRE’s published specifications which accompany the relevant SEMPRE Product, or a Release of such SEMPRE Product.
• “Fix” means the repair or replacement of object or executable code versions of the Software to remedy an Error.
• “Hardware” means any tangible SEMPRE Product that is not Software.
• “Operating Environment” means a single combination of a hardware and operating system, corresponding to a specific release of Software.
• “Previous Release” means the release of Software for use in a particular Operating Environment which has been replaced by the Current Release in the same Operating Environment.
• “Release” means a new version of Software that supersedes the previous version.
• “Software and Hardware Maintenance” means SEMPRE Software and Hardware Maintenance in accordance with the Software and Hardware Maintenance Service Level ordered by Licensee.
• “Software and Hardware Maintenance Fees” means the applicable Software and Hardware Maintenance fees paid for the Software and Hardware Maintenance Service Level ordered by Licensee with respect to the Software and Hardware.
• “Software and Hardware Maintenance Service Levels” means the Software and Hardware Maintenance service levels ordered by Licensee pursuant to a customer order form.
• “Update” means all published revisions and corrections to the printed documentation and corrections and new Releases of the Software, excluding versions that SEMPRE licenses separately.
• “Workaround” means a change in the procedures followed or data supplied by a Licensee to avoid an Error without substantially impairing Licensee’s use of the Software.

COVERAGE AND MAINTENANCE LEVELS

• SEMPRE will provide Licensee with Software and Hardware Maintenance upon payment to SEMPRE of the applicable fees as provided herein. Software and Hardware Maintenance shall be provided for the SEMPRE Products and Third-Party Software listed in Schedule A of this Policy. Software and Hardware Maintenance additional to that provided herein may be requested by Licensee and will be provided on a time and materials basis in accordance with negotiated applicable rates and charges, and availability. All Updates, Fixes, Workarounds and other components of software issued or provided hereunder to Licensee, but excluding any Enhancements, shall be deemed licensed to Licensee under the terms of the License, and subject to all terms and restrictions applicable to the License.
• Software and Hardware Maintenance Service Levels will be provided for the SEMPRE Products and the Third-Party Software and Hardware, upon the payment of the applicable fees for the relevant Software and Hardware Maintenance Service Level. All Service Levels include provision of Updates and Fixes, when generally released by SEMPRE, from time to time. Software and/or Hardware delivered as part of a Workaround, or a temporary Fix shall only be supported until a proper Fix is made available. Any Enhancements that are desired by Licensee shall be purchased pursuant to a separate customer order form.
• Under this Policy, SEMPRE is only obligated to provide Software and Hardware Maintenance for the SEMPRE Products or Third-Party Software for a Previous Release for a period of twelve (12) months from the release date of the Current Release.

EXCLUSIONS

• SEMPRE shall have no obligation to support:
  
  • SEMPRE Products and/or Third-Party Software or Hardware, or any part thereof, altered or modified by the Licensee or any third party without the prior written approval by SEMPRE;
  • Software or Hardware problems caused by Licensee’s negligence, or other causes beyond the control of SEMPRE;
  • Modifications needed for non-SEMPRE supported interfaces (Licensee alone shall be responsible for such modifications);
  • Repairing or restoring any corrupt data (If SEMPRE is requested to repair or restore any data corrupted, SEMPRE may charge Licensee for time and materials based on SEMPRE’s standard applicable rates and charges); or
  • SEMPRE Products and/or Third-Party Software installed in an Operating Environment or in a hardware environment which is not supported by SEMPRE.
• The Software and Hardware Maintenance is provided as is. SEMPRE hereby excludes all implied warranties, including warranties of merchantability, fitness for a particular purpose, non-infringement and any other statutory warranties of any kind. In no event shall SEMPRE be liable for special, indirect or consequential damages (including without limitation, damages for lost profits, even if SEMPRE has been informed of the possibility of such damages). SEMPRE’s total liability hereunder for any cause, whether based on contract, tort or otherwise, shall not exceed the fees paid by Licensee for the Software and Hardware Maintenance. Notwithstanding anything to the contrary, the sole liability of SEMPRE in case of any loss or damage resulting from any error in the SEMPRE Products and/or Third-Party Software or failure of the Software and Hardware Maintenance, will be to correct such error or failure in accordance with SEMPRE’s obligations hereunder. Licensee will not have any other remedy against SEMPRE under this Policy.

RESPONSIBILITIES

As part of this Policy, SEMPRE will:

• Maintain a current, running system to replicate the Software with respect to which Licensee has ordered Software Maintenance;
• Provide Licensee with a unique identifier that will be used to report and track Error resolution status;
• Track status of each Error or application discrepancy which has been reported and update Licensee of changes to status;
• Report patch availability to Licensee with descriptive documentation;
• Be available to advise and consult about proposed changes to the Operating Environment, which could impact the Software performance;
• If SEMPRE believes that a problem reported by Licensee is not due to an Error in the Software, SEMPRE will so notify Licensee. At that time, Licensee may, at its option, instruct SEMPRE to proceed with problem determination at the possible additional expense to Licensee beyond this coverage. If Licensee requests that SEMPRE proceed with problem determination and the reported problem was not due to an Error in the Software, Licensee shall pay SEMPRE, at standard SEMPRE applicable rates, for all work performed in connection with such determination, plus reasonable related expenses incurred therewith. SEMPRE agrees that it will not proceed with any such work to be billed to Licensee without Licensee’s prior written consent. Licensee shall not be liable for the expenses associated with any such consulting if such problem was due to Error(s) in the Software or for work performed after Licensee has notified SEMPRE that it no longer wishes work on the problem determination to be continued at its possible expense (such notice shall be deemed given when actually received in writing by SEMPRE); and
• If a connection to the SEMPRE Product is available, SEMPRE will notify Licensee if the SEMPRE management and control software detects an anomaly and if Licensee desires SEMPRE will attempt to rectify the problem.
• If it is initially agreed that a problem may not be due to an Error in the Software, and it is subsequently determined by SEMPRE that it was in fact an Error in the Software, then no charges shall be made or shall accrue for any problem analysis, consulting or development undertaken by SEMPRE.
• SEMPRE shall have no obligation to provide any Software and Hardware Maintenance to Licensee unless Licensee performs all of the following required actions:
  
  • Designate Customer Contacts;
  • Maintain trained support personnel, in order to pass to SEMPRE only real Errors that were clearly identified as Software Errors;
  • Inform SEMPRE in writing of any pending environmental changes requirements as early as possible, but no later than thirty (30) days prior, which would impact Software Maintenance;
  • Install Fixes and Updates according to SEMPRE installation instructions in a timely manner and in the sequence they are delivered by SEMPRE;
  • Inform SEMPRE of any changes to source code or a database which have been developed independently by Licensee;
  • Maintain a mirrored copy of the Licensee production database for support purposes;
  • Provide connected access with appropriate privileges to the server(s) loaded with the SEMPRE Products and/or Third-Party Software. It is the responsibility of Licensee to provide and maintain an “as needed” and authorized network connection between its operating servers. The network connection must be available to SEMPRE software engineers for the purpose of providing Software Maintenance (such as file transfers to the remote location(s)). Such connection will need to be authorized by Licensee for each instance that the network connection is deemed to be reasonably required for SEMPRE to perform its obligated support and analysis;
  • Maintain required database, network and client software, to support the SEMPRE Products and the Third-Party Software;
  • Maintain identical Operating Environments, and ensure all run time executables are generated from identical source for all supported operating sites; and
  • Install the new Releases of the SEMPRE Products, Updates and Fixes in the Licensee Operating Environment. Licensee can choose to purchase services from SEMPRE to assist in the installation and deployment of a new Release. These services will be available at SEMPRE’s then current time and materials charges.