Omnigate Software Support and Maintenance Policy
Effective Date: February 7, 2019
This policy sets forth the terms under which Omnigate will provide the End User with certain professional and/or technical services on a subscription basis, for a set term, as provided in by any use of the Omnigate software. This policy supplements any order form, sales contract, sales agreement, purchase order and their respective appendix and addenda. This policy governs the End User’s initial purchase of Services as well as any future purchases made by the End User that reference this Support Policy, which is binding and enforceable by simple download of the software and/or signature of an Order Form or other contract. You indicate your assent to be bound by this policy by your utilization of Omnigate software. If you do not agree to this policy, do not use or access the software.
Unless otherwise indicated in the text, the words and expressions that start with a capital letter and that appear in the Contract, or in any documentation subordinated to it, shall be interpreted as follows:
- “Authorized Users” means all users of the Software, which may include the End User, its employees, representatives, consultants, contractors, agents, or Customers.
- “Contract” means an Order Form, Sales Contract, Sales Agreement, Purchase Order and their respective appendix, the whole subject to the Services ordered by the End User.
- “Documentation” means all current documentation for the Software, including tutorials and examples.
- “Embedded Software” means any third-party software embedded in or provided with Omnigate’s software.
- “End User” means the corporation agreeing to the terms and conditions of the Software License, downloading or using any of Omnigate’s software or signing any Contract from Omnigate.
- “Software License” means the digital usage rights of the Omnigate Software to the End User.
- “License Term” means the duration of the Software License as specified in a Contract, commencing on the purchase or renewal of a Support Agreement or on the day of download of the Software.
- “Maintenance Release” means a generally available release of the Software that typically provides maintenance corrections or fixes only, designated by Omnigate by means of a change in the digit to the right of the second decimal point (e.g. Software 5.0 >> Software 5.0.1).
- “Major Release” means a generally available release of the Software that contains functional enhancements or extensions, designated by Omnigate by means of a change in the digit to the left of the first decimal point (e.g. Software 3.0 >> Software 4.0).
- “Minor Release” means a generally available release of the Software that introduces a limited number of new features and functionality, designated by Omnigate by means of a change in the digit to the right of the decimal point (e.g. Software 3.0>>Software 3.1).
- “Order Form” means the Omnigate Software Order Form signed by the End User regarding the Services ordered to Omnigate and is synomyous with 1.2 “Contract”.
- “Service(s)” means the services ordered by the End User through a signed Contract.
- “Software” means any of Omnigate’s different software products that the End User orders and/or is provided by Omnigate, including the related documentation, any Updates, Supplementary Software, and/or Embedded Software, but excluding Third Party Software.
- “Supplementary Software” means any add-ons, plug-ins, APIs or Internet-based components of the Software provided by Omnigate.
- “Professional Support” means Omnigate’s support and maintenance services offered to the End Users for an additional fee as provided on a Contract.
- “Software Support and Maintenance Policy” means this Software Support and Maintenance Policy.
- “Support Term” means the duration of the Software Support and Maintenance Policy, commencing on the purchase or renewal of a Software License.
- “Third Party Software” means any add-ons, plug-ins, APIs or other code offered by third parties, or created by the End User itself.
- “Updates” means any generally released updates, upgrades, patches, and bug fixes for the Software when and if generally released at Omnigate’s sole discretion, excluding any new version of the Software.
- OMNIGATE’S RESPONSIBILITIES
- Support Services
The Services apply only to the Software for which they are bought and do not apply to any other application, library or product developed or sold or otherwise provided by Omnigate. All features listed below are available only while the end user maintains a valid software license.
The Support Services include the following features:
- Access to the current documentation for the Software, including tutorials and examples
- Unlimited access to the community-driven Omnigate public support forums
- Access to support staff via online chat during normal Omnigate business hours
- Access to Omnigate’s support staff and response to any support or maintenance query sent by email to Omnigate’s staff, within the terms and conditions of the Support services provided for in Section 4.0.
- Support Services
- THE END USER’S RESPONSIBILITIES
The End User agrees to provide Omnigate with reasonable access to the End User’s material, personnel, equipment or facilities to the extent that such access is necessary for the performance of Services, failing which Omnigate shall be excused from performance until such items are provided. The End User hereby grants Omnigate a limited right to use any of the End User’s materials in connection with the Services solely for the purpose of performing the services to the End User. The End User owns and will retain ownership (including all intellectual property rights) of its materials (subject to Omnigate’s ownership of any underlying products, service descriptions, documentation, and underlying technology).
The End User is responsible for all hardware, operating systems, network setup, network maintenance and set up and use of any file access control systems required in the Support of the Software. The End User may be required to provide Omnigate with reproducible test case(s). In other cases, the End User may be required to grant Omnigate certain limited access rights to the End User’s proprietary computer systems in order that Omnigate may render Services.
- Authorized Users
The End User is responsible for all use of the Software by its Authorized Users and their compliance with the Software License as well as all laws from any Federal, State, Regional, Municipal or other legal jurisdiction from which End User operates.
- End User’s staff
The End User is responsible for ensuring that its personnel has sufficient training to attain and maintain competence in the operation of the Software. If Omnigate determines, in Omnigate’s sole discretion, in responding to the End User 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), Omnigate may direct the End User’s personnel to the appropriate media for the solution to the problem.
All Services are offered only to the End User and Authorized Users. The End User is not permitted to use generic or shared email accounts or act in a way that gives access to the Services to any other user than an Authorized User.
- Reverse Engineer
The End User will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, Software, documentation or data related to the Services, modify, translate, or create derivative works based on the Services or Software or use the Services or Software for timesharing or service bureau purposes or otherwise for the benefit of a third party.
- TERMS AND CONDITIONS OF THE SUPPORT SERVICES
- Hours of availability
Access to all web-based support features (online documentation and source code, online help forums) 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 Omnigate. Notwithstanding anything to the contrary in this policy, Omnigate does not guarantee such availability.
Omnigate will provide Support to End User via both telephone and electronic mail on the availability periods provided as contractually provided with the exclusion of holidays. End User may initiate a helpdesk ticket by calling during business hours or any time by emailing Omnigate’s staff.
Omnigate will use commercially reasonable efforts to respond to all helpdesk tickets within the availability and response time of the End User’s support package as provided for in a Contract.
- Response time
The response time specified in the Order Form is the elapsed time between the receipt of a support request and the time when Omnigate begins the support service, including a verbal or written confirmation to the End User 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. Response times above are for English based support.
- Reasonable efforts
During the applicable Support Term, Omnigate agrees to use commercially reasonable efforts to offer the applicable availabilities and response times to the Services and to assist the End User to resolve problems in its use of the Software. Omnigate makes no guarantee that it can, or will, solve any problems with respect to the Software presented by the End User, and further disclaims any warranties above and beyond any limited warranties that may have been expressly made by Omnigate in the Software License.
- Limit of liability
End User’s sole and exclusive remedy, and Omnigate’s entire liability, in connection with Service availability shall be that for each period of downtime due to direct fault of Omnigate software, lasting longer than one (1) hours exceeding the provided response time, Omnigate will credit the End User 5% of Service fees, provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as the End User gives notice to Omnigate of that downtime and continues until the availability of the Services is restored. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service fees in any one (1) calendar month in any event.
- Updates and releases
Provided that the End User shall have continuously subscribed to the Services from the date of purchase of the Software or reinstated the Services, Omnigate will provide updates and major releases, from time to time.
Maintenance may provide any generally released updates, upgrades, patches, and bug fixes for the Software when and if generally released at Omnigate’s sole discretion.
- Third Party Software
Omnigate is not responsible for and does not offer any warranty, indemnity or support for Third Party Software.
- Hours of availability
- TERM AND TERMINATION
- Support Term
Omnigate’s provision of the Services to the End User will commence on the purchase or renewal of a Support Agreement and will continue until the expiration of the Support Term.
- Automatic renewals
Unless otherwise specified on the applicable contract, each Support Term for Services will automatically renew for additional successive Support Terms of the same length at Omnigate’s regular rates on the date of the renewal, unless either party gives the other written notice of non-renewal at least thirty (30) days prior to expiration of then-current Support Term.
- Version support term
Omnigate will offer Services for the then-current version of the Software for a maximum of twenty-four (24) months from the release date of the said current version. Omnigate may also offer Services for the prior major version to its sole discretion.
- End User data
Upon any termination, Omnigate will make all End User Data available for electronic retrieval for a period of thirty (30) days, but thereafter Omnigate may, but is not obligated to, delete stored End User’s data.
- Support Term
- SERVICE LIMITATIONS; LIMITATION OF LIABILITY
To the maximum extent permitted by applicable law, Omnigate disclaims all warranties and conditions, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and title and non-infringement, with regard to the Software and Services. Omnigate does not guarantee that the operation of the Software or any other code will be uninterrupted or error-free, and the End User acknowledges that it is not technically practicable for Omnigate to do so.
To the maximum extent permitted by applicable law, in no event shall Omnigate be liable under any legal or equitable theory for any special, incidental, indirect or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information or any other pecuniary law) arising out of the use of or inability to use the Software or the Services or any other subject matter relating to this policy, even if Omnigate has been advised of the possibility of such damages. In any case, Omnigate’s entire liability with respect to any subject matter relating to this policy shall be limited to the amount actually paid for the Services.
- CONFIDENTIAL INFORMATION
Each party (as “Receiving Party“) agrees that all code, inventions, know-how, and business, technical and financial information it obtains from the disclosing party (as “Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by Omnigate (or its agents) shall be deemed Confidential Information of Omnigate without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (d) is independently developed by employees of the Receiving Party who had no access to such information. Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with notice to the Disclosing Party).
The use of Omnigate software by the End User, unless otherwise specifically prohibited by End User provides the right to Omnigate to feature End User as the subject of a case study, testimonial or white paper written by Omnigate or a designated representative thereof. The testimonial or white paper will discuss your experience with Omnigate and may be published on our website, distributed in our marketing materials, or published in relevant media outlets. End User will have the right to review and approve such materials in advance, such approval not to be unreasonably delayed or withheld.
- DISPUTE RESOLUTION; GOVERNING LAW
- Dispute Resolution, Arbitration
In the event of any controversy or claim arising out of or relating to this policy or any executed contract, the Parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this policy 9.0 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
- Governing Law and Jurisdiction
This policy will be governed by and construed in accordance with the applicable laws of the Province of Quebec, Canada. Notwithstanding the foregoing, Omnigate may bring a claim for equitable relief in any court with proper jurisdiction.
- Injunctive relief
Nothing in this policy shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
- Exclusion of UN Convention and UCITA
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this policy. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this policy regardless of when or where adopted.
- Dispute Resolution, Arbitration
Omnigate may update Services terms with thirty (30) days prior notice to the End User of any changes deemed by Omnigate to have potential adverse and/or material impacts to the End User.
The End User and Omnigate are independent parties, and nothing in this policy or any contract 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.
If any provision in this policy shall be determined to be invalid, such provision shall be deemed omitted; the remainder of this policy shall continue in full force and effect. If any remedy provided is determined to have failed for its essential purpose, all limitations of liability and exclusions of damages set forth in this policy shall remain in effect. No action, regardless of form, arising out of this policy 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.