- “Third Party Software” means software products not manufactured by Stratodesk and shall be excluded from Support Services.
Support Offerings Terms and Conditions
These terms for support services set forth the terms and conditions under which Stratodesk will provide the support services purchased by Customer ( defined below ) and represents the agreement (“Agreement”) that governs the delivery of Stratodesk support and software update services from Stratodesk Corporation or its related entities (“Stratodesk”) to (a) an end-user customer who purchases Silver, Gold, or Platinum support and/or custom enterprise support services either directly or through an authorized Stratodesk Reseller/Technology Partner for their own use; or (b) a Stratodesk authorized Technology Partner obtaining Silver, Gold, or Platinum support and subscription services on behalf of their end customer or for the partner’s own end-use. (either, a “Customer”).
Stratodesk may at its sole discretion, release to Customer periodically new versions of Stratodesk software, making it generally available to customers with active support agreements. Stratodesk may also at its sole discretion provide customers with “Private-Builds“ or “LTS” (Long Term Support) versions of the software that have not yet reached end of maintenance*.
Customer Cooperation Duties
- Customer shall provide Stratodesk with all such cooperation, assistance and information as Stratodesk may reasonably request, or otherwise may reasonably be required, to enable Stratodesk to perform its obligations (including the provision of Support Services) hereunder, and Customer acknowledges that Starodesk’s obligations hereunder are subject to Customer’s provision of such cooperation, assistance or information.
- As a precondition for requesting Support Services from Stratodesk, Customer agrees to use reasonable efforts to: (i) attempt to solve the problem or error* and to utilize sufficient resources to clearly understand that a problem or error* exists before contacting Stratodesk; (ii) utilize sufficient resources to understand the instructions from Stratodesk in addressing the problem, and make reasonable attempts to correct the problem or error* as suggested by Stratodesk. In addition, Customer agrees and acknowledges that the extent of access and the accuracy of information and technical data provided may affect Stratodesk’s ability to provide the Support Services
Changes to Support Services
Stratodesk may, in its discretion, change from time to time these Terms and the service offerings provided under Support Services with 6 (six) months’ notice. Stratodesk shall provide such notice by publishing any such changes on www.stratodesk.com.
Duration of Support Services, Termination, Upgrade
- Customer shall receive the Support Services for the term specified in their applicable purchase.
- The Support Services shall not automatically renew upon expiration of the applicable term.
- Support Services are non-cancelable and non-refundable, and Customer may not downgrade its purchased Support Services package during the applicable term.
Limitation of Liability
Under no circumstances will Stratodesk or its licensors, representatives, suppliers, agents or resellers be liable for any consequential, indirect, special, punitive, or incidental damages, whether foreseeable or unforeseeable, arising out of or in any way relating to this agreement or the use of, or inability to use, the software, including without limitation, damages for loss of data, loss of use, loss of goodwill, loss of opportunity for profits, loss of use of the software, interruption in use or availability of data, stoppage of other work or impairment of other assets, computer failure or malfunction, or any and all other commercial damages or losses or for any special incidental, indirect or consequential damages arising from the support services, the Stratodesk software or third party software, even if advised of the possibility thereof ,and regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based. In any case, Stratodesk’s entire collective liability under any provision of this agreement shall not exceed in the aggregate the sum of the fees paid to Stratodesk for customer’s specific support services at issue during the twelve (12) month period immediately prior to the event giving rise to the claim.
Limitations of Service
Stratodesk support and subscription services do not cover any damage or failure caused by:
- Stratodesk software which has been supplemented, altered, customized or modified by Customer or any third party without Stratodesk’s express written consent.
- Errors due to outside influences, e.g. force majeure events and power blackouts.
- Improper use, site preparation, site or environmental conditions or other non-compliance with Stratodesk EULA.
- Phone and Remote Access support are granted at the discretion of Stratodesk technical support personnel for qualified customers. Severity of issue and escalation process will be determining factors for such scheduled engagements.
- For Stratodesk supported third party software, you may be required to obtain updates directly from the original manufacturer.
Each party shall keep confidential, and not disclose to any third party (except each party’s respective affiliates, employees and consultants who have a need to know and who agree in writing to keep the information confidential on terms no less restrictive than those contained herein) any Confidential Information which may be provided in connection with these Support Terms. “Confidential Information” means any non-public information disclosed by one party to the other party, either directly or indirectly, whether communicated in writing, orally or by inspection of tangible objects (including, without limitation, pricing, trade secrets, product plans, products, Support Services, customers, software including the Stratodesk Software (both object and source code), documentation, designs, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or financial information), which is designated as “Confidential,” “Proprietary” or some similar designation. Terms for Maintenance and Support Services communicated orally will be considered to be Confidential Information if such information is identified as Confidential Information at the time of its disclosure, or if such information by its nature should reasonably be understood by the receiving Party to be confidential. Confidential Information will include these Support Terms, any and all nonpublic information relating to any Support Services, Stratodesk Software and any associated training, documentation, and other related materials, regardless of whether or not such materials are marked as “Confidential,” “Proprietary” or some similar designation. Confidential Information may also include information that is disclosed to a party by one or more third parties. Notwithstanding the foregoing, Confidential Information will not include any information that: (a) was publicly known prior to the time of disclosure by the disclosing party; (b) becomes publicly known after disclosure by the disclosing party to the receiving party through no fault of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party (as shown by the receiving party’s files and records) prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information (as shown by documents and other competent evidence in the receiving party’s possession). In the event Confidential Information is required by law or lawful order to be disclosed by the receiving party, the receiving party will first promptly give the disclosing party written notice of such requirement prior to any disclosure so that the disclosing party may have sufficient time to seek a protective order or other appropriate relief, and disclose only that portion of Confidential Information that the receiving party is legally required to disclose.
Stratodesk is not liable for any failure or delay in performance due to any cause beyond its control, including without limitation: flood, fire, acts of war, civil unrest, Internet outages, terrorism, earthquakes, pandemics and acts of God. Stratodesk shall not be liable for any failure or delay in performing its obligations on account of Customer’s failure to perform its obligations hereunder.
This Agreement will be governed and construed in accordance with the laws of the State of Delaware and the United States of America without giving effect to conflict or choice of law principles. The parties agree to exclude application of the United Nations Convention on Contracts for the International Sale of Goods.
*Terms and Conditions Definitions
- An “Error” is a failure of the Stratodesk software to perform in substantial conformity with the then-current specifications relating to such Stratodesk software as provided in the Stratodesk Knowledge Base.
- “End of Maintenance” is when Stratodesk software, according to the information provided in Stratodesk’s knowledge base, Support Services are no longer being provided.