Bancha Support and Services Agreement

Version 2.2
Effective March 21th, 2012

 

THIS DOCUMENT IS A LEGAL AGREEMENT (“Agreement”) BETWEEN CODEQ . U., (“We,” “Us”, “Our”, or “Bancha”) AND YOU OR THE ORGANIZATION ON WHOSE BEHALF YOU ARE UNDERTAKING THE AGREEMENT DESCRIBED BELOW (“Customer”, “You”) IN RELATION TO BANCHA SUPPORT AND SUBSCRIPTION SERVICES. BY UNDERTAKING TO RECEIVE AND/OR PAYING FOR THE SERVICES DESCRIBED BELOW (“Services”), YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, DO NOT PROCEED WITH RECEIVING THE SERVICES. THIS AGREEMENT DESCRIBES YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SERVICES.

Commencing on the purchase or renewal of a support term (“Effective Date”), We will supply the Services to Customer with respect to the Software described in Section 1 below, for which We have granted a license to Customer pursuant to a software license agreement (the “Software License Agreement”) by and between Bancha and Customer and for whom the applicable support fee has been paid.

1. Included Support Services

All support plans listed below apply only to the Bancha product(s) for which they are purchased (“Software”) and do not apply to any other application, library or product developed or sold by Us. The support, if any, for any other such product will be governed by a separate agreement. All support features listed below are available only for the Maintenance Term plus any extensions or renewals, and such support features will become unavailable immediately upon termination of this Agreement.

All support plans include the following basic features:

  • Remote and downloadable access to the most current source code documentation available (the “Documentation”), including tutorials and examples.
  • Read-only web access to the most current source code repository for the Software.
  • Unlimited, 24×7 access to the issue tracker.
  • 40 x-credits (support credits) included that can be used for any metered support services as detailed in Section 2.

All other support features are plan-specific as described below:

a. Standard Support Plan

  • Email support tickets as detailed in Section 2.
  • Maximum incident response time of 72 hours as detailed in Section 3a.

b. Premium Support Plan

  • Email and telephone support tickets as detailed in Section 2.
  • Maximum incident response time of 48 hours as detailed in Section 3a.
  • Emergency bug fix escalation available on an as-needed basis.
  • Remote troubleshooting services available as detailed in Section 2c.

2. Metered Support Services

All support features listed in this section are valued in x-credits and are only available up to the amount of x-credits available in the Customer’s support account at the time of the support incident. Additional x-credits may be purchased and spent on additional support at any time (provided such credits have not expired according to Section 5). All references to “cost” in this section mean the cost in x-credits based on the x-credit value of the service. All references to “billing” in this section mean the deduction of accumulated x-credits from the support account of the Customer.

a. Support Requests

Email support requests submitted to the Bancha team at support@banchaproject.com are valued per single related incident (multiple emails and/or replies can relate to a single incident). Each email support incident costs 10 support credits. If telephone support is also required to resolve the incident (premium support only), the cost for the telephone support is added separately and billed in addition to the email incident support cost under the terms of Section 2b. Support requests determined to be unrelated to the original request shall constitute a new support incident at the sole discretion of Bancha support personnel.

b. Telephone Support

Telephone support is valued in 30-minute increments, with a 30 minute minimum x-credit cost per call (even if the call does not have an actual duration of 30 minutes). Each 30 minutes of telephone support costs 25 x-credits, and the number of separate phone calls is limited only by the total cost in x-credits available in the Customer’s support account balance. Telephone support must be scheduled in advance so that the Bancha team and the Customer can establish mutually agreeable availability, and the Bancha team agrees to complete the scheduling of telephone support within the response time listed in the appropriate plan in section 1.

c. Expert Services

Expert services include, but are not limited to, remote trouble-shooting on the Customer’s computer systems, performance tuning and code review of the Customer’s application code by Bancha support staff. Each 30 minutes of any expert service except on-site training costs 25 x-credits with a 30 minute minimum x-credit cost per request (even if the service does not have an actual duration of 30 minutes). All requests for expert services must be scheduled in advance so that Bancha and the Customer can establish mutually-agreeable availability.

3. Terms of Support

a. Hours of Availability

Access to all web-based support features (online documentation and source code, screencasts and issue tracker) are generally available 24 hours per day, 7 days a week, 365 days a year barring unforeseen interruptions in Internet service or planned exceptions by Bancha. Notwithstanding anything to the contrary in this Agreement, Bancha does not guarantee such availability. All metered support services are also generally available 24 × 7 × 365, although the response to each request for metered support may not happen immediately, and will be governed by the response time terms outlined in section 3b. Any planned exceptions to the availability of support services will be communicated on the Bancha website as far in advance as possible.

b. Response Time

The response time listed in each support plan is the elapsed time between the receipt of a support request via email to support@banchaproject.com and the time when Bancha begins the support service, including a verbal or written confirmation to the Customer thereof. The actual time required to fully resolve the support request, if such full resolution occurs, may be longer than the maximum response time listed.

c. Our Responsibilities

We will use commercially reasonable efforts to assist Customer to resolve problems in its use of the Software as described in Section 1. We make no guarantee that it can, or will, solve any problems with respect to the Software presented by Customer, and further disclaims any warranties above and beyond any limited warranties that may have been expressly made by Us in the Software License Agreement.

We will offer Services for the then-current version of the Software (Version N). For not less than twelve (12) months from the release date of the then current version, We will also offer Services for the major version immediately preceding the then-current version (Version N-1) of the Software.A major version of the Software is defined as the number in the version preceding the first decimal place, e.g., version 1.5 has a major version of 1 (and a minor version of .5). As an example, if 1.1 is the current major version, then any version of the Software numbered 1.x would be supported until version 3.x becomes current, at which time support for all 1.x versions of the Software would no longer be offered.

d. Customer’s Responsibilities

Customer is responsible for all hardware, operating systems, network setup, network maintenance and setup and use of any file access control systems required in the support of the Software. Customer may be required to grant Us certain limited access rights to Customer’s proprietary computer systems in order that We may render support Services.

Customer is responsible for ensuring that its personnel have sufficient training to attain and maintain competence in the operation of the Software. If We determine, in Our sole discretion, in responding to a Customer request for Support, that the solution is provided in available media (including, but not limited to, the source code documentation, tutorials and examples, websites or support forums), We may direct Customer’s personnel to the appropriate media for the solution to the problem. Even if the support request were resolved in so doing, any minimum support charges outlined in section 2 would still apply.

4. Term and Termination


Our provision of the Services to Customer will commence on the Effective Date and will continue foran initial term of one (1) year (the "Initial Term"). The Services will automatically terminate at the end of the Initial Term, unless Customer chooses to renew Services, subject to Bancha's written agreement (each such renewal also referred to as a "Renewal Term").

A decision to terminate Services or otherwise not renew Services will not terminate any applicableSoftware licenses. "Services Term" shall mean the Initial Term as extended by each Renewal Term.

Support credits must be used during the term in which they were purchased, and at the end of the InitialTerm and each Renewal Term, any accumulated support credits for that term that have not been expended will be lost.  At the end of the Services Term the Services automatically terminate and any accumulated support credits that have not been expended will be lost.

Bancha may update Services terms after the Initial Term with thirty (30) days advance notice toCustomer of any changes deemed by Bancha to have potential adverse and/or material impact to the Customer. Upon any renewal, Bancha's then-current terms and conditions for the Services will apply

5. Fees

a. Services Fee Schedule

Unless otherwise agreed in writing, fees that are applicable for the Services ("Services Fees") are payable on the Effective Date or, in the case of a renewal term, no later than the date of  commencement of the applicable Renewal Term. Services Fees are non-refundable upon payment.  Services Fees, including renewals, are at the then-current list price. Bancha may at any time, and at its sole discretion, increase applicable Services Fees for Services or renewals.

If Customer elects not to renew the Services or, in the case of Software that may initially be purchased without Services, if Customer elects not to purchase the Services when Customer acquires the Software license, Customer may later at any time enroll or re-enroll, as the case may be, for the Services at the then-current list price.

b. Taxes

All Services Fees are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse Bancha for all federal, state, dominion, provincial, or local sales, use, personal property, excise, value added, withholding or other taxes, fees, or duties relating to the transactions contemplated by this Agreement (other than taxes on the net income of Bancha).

c. Invoicing and Late Payments

All invoices issued hereunder by Bancha are due and payable within thirty (30) days of the date of the invoice. All amounts that are not paid on time by Customer shall be subject to a late charge equal to one and one-half percent (1.5%) per month, or, if less, the maximum amount allowed by applicable law. If payment of any Fee is overdue, Bancha may also suspend performance until such delinquency is corrected.

d. Non-Payment and Breach

Bancha may suspend performance of Services if Customer fails to meet its obligations as set forth under this Agreement. Bancha may terminate Services if such failure continues for thirty (30) days after Bancha's written request to meet these obligations. Bancha may terminate the Agreement and all Services at any time if (i) it is discovered that Customer is in breach of its Software license restrictions, pursuant to Customer’s License Agreement, or (ii) Customer is in material breach of this Agreement.

7. Disclaimer; Limitation of Liability

We shall not be responsible to provide Services to the extent that the issue is caused by (a) Customer’s misuse, improper use, mis-configuration, alteration, or damage to the Software; (b) Customer’s use of the Software with any hardware or software not supplied or supported by Us; (c) Customer’s failure to install an update to the Software if such update would have resolved the issue; or (d) otherwise uses in a manner not in accordance with the Agreement. We shall have no responsibility for loss of or damage to Customer’s data, regardless of the cause of any such loss or damage.

THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, RELATING TO PRODUCTS OR SERVICES FURNISHED TO CUSTOMER HEREUNDER. WE SPECIFICALLY DISCLAIM AND EXCLUDE ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT WILL BE DEEMED TO BE A WARRANTY BY US FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF US WHATSOEVER.

IN NO EVENT (i) SHALL OUR MAXIMUM LIABILITY FOR ALL DAMAGES EXCEED ACTUAL DIRECT DAMAGES CAUSED BY THE SPECIFIC PRODUCT OR SERVICE COMPLAINED OF, (ii) SHALL OUR MAXIMUM LIABILITY FOR ALL DAMAGES EXCEED THE TOTAL AMOUNT OF FEES PAID HEREUNDER, OR (iii) SHALL WE BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS AND THE LOSS, DAMAGE OR DESTRUCTION OF DATA) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. No limitation as to damages for personal injury is hereby intended. Some states do not allow the exclusion or limitation of incidental or consequential damages under certain circumstances and the above exclusion or limitation may not apply.

8. Miscellaneous

You and Us are independent parties, and nothing in this Agreement shall be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf.

You agree to be identified as a customer of Ours and You agree that We may refer to You by name, trade name and trademark, if applicable, and may briefly describe Your business in Our marketing materials and website.

All notices given under this Agreement shall be effective upon receipt and shall be in writing and sent to the address of the other party set out at the beginning of this Agreement or to any replacement address of which the other party has been given notice in accordance with this Section. In no event shall either party be liable for any delay or failure to perform under this Agreement that is due to causes beyond the reasonable control of such party.

This document contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties. This Agreement may be modified only by a written instrument signed by an authorized representative of each party. Customer may assign this Agreement only with Our prior written consent; We may freely assign this Agreement.

In the event that any provision of this Agreement is for any reason void or unenforceable in any respect, such provision shall be without effect to the extent of the voidness or unenforceability without affecting such provision in any other respect and without affecting any other provision.

No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has been or reasonably should have been discovered, or, in the case of an action for nonpayment, more than two years after the date the last payment was due.

This license agreement shall be governed by and construed in accordance with the laws of Austria, excluding its conflict of laws principles providing for the application of the laws of any other jurisdiction. The material law in any conflict arising from this Agreement shall thus be Swedish law. All parties irrevocably submit to the jurisdiction of the courts of Austria and further agree to commence any litigation which may arise hereunder in the courts located in the judicial district of Vienna, Austria.