PICS DOCLIB SOFTWARE LICENSE AGREEMENT
“Customer” refers to the entity that has executed a Quote (as defined below) with PICS DocLib, LLC, a Delaware limited liability company with offices located at 1807a W 16th Street Wilmington DE 19806 (“PICS”). This Software License Agreement (“Agreement”) is valid for the Quote which references this Agreement.
1. Definitions.
(a) “Application” means the product described in a Quote in object code format, including any Updates provided to Customer pursuant to this Agreement and the services related thereto as described in this Agreement.
(b) “Authorized User” means an employee or contractor of Customer who Customer permits to access and use the Application and/or Documentation pursuant to Customer’s license hereunder.
(c) “Documentation” means PICS’ end user documentation relating to the Application made available generally to PICS’ licensees.
(d) “Professional Services” means certain professional services that may be performed by PICS, including installation or implementation services, as more fully set forth in a Quote.
(e) “Quote” means (i) the agreed ordering document for the licensing of the Application and procurement of Professional Services, (ii) that is subject to this Agreement, and (iii) that identifies the particulars of the purchase and fees to be paid.
(f) “Updates” means any updates, bug fixes, patches, or other error corrections to the Application that PICS generally makes available free of charge to all licensees of the Application.
2. License.
(a) License Grant. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, PICS hereby grants Customer a non-exclusive, non-sublicenseable, and non-transferable (except in compliance with Section 12(g)) license during the Term to: (i) use the Application solely for Customer’s internal business purposes; and (ii) use and make a reasonable number of copies of the Documentation solely for Customer’s internal business purposes in connection with Customer’s use of the Application. Customer may make one copy of the Application solely for back-up, disaster recovery, and testing purposes. Any such copy of the Application: (x) remains PICS’s exclusive property; (y) is subject to the terms and conditions of this Agreement; and (z) must include all copyright or other proprietary rights notices contained in the original.
(b) Use Restrictions. Customer shall not use the Application or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Application or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Application, in whole or in part; (iv) remove any proprietary notices from the Application or the Documentation; or (v) use the Application in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Reservation of Rights. PICS reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Application or Documentation.
(d) Delivery. PICS shall make the Application available for installation promptly following the Effective Date, and maintain the Application in accordance with Section 4 and Exhibit A of this Agreement (“Support”).
3. Customer Responsibilities.
Customer is responsible and liable for all uses of the Application and Documentation resulting from access provided by Customer, directly or indirectly, irrespective of whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Application, and shall cause Authorized Users to comply with such provisions.
4. Support.
During the Term, PICS shall provide Customer with Support as described in Exhibit A for the Fees described in the Quote.
5. Fees and Payment.
(a) Fees. Customer shall pay PICS the fees (“Fees”) set forth in a Quote without offset or deduction. Customer shall make all payments hereunder in US dollars within forty-five (45) days from receipt of invoice. If Customer fails to make any payment when due, in addition to all other remedies that may be available: (i) PICS may charge interest on the past due amount at the rate of one and one half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse PICS for all reasonable costs incurred by PICS in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days following written notice thereof, PICS may prohibit access to the Application until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such action.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on PICS’s income.
(c) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. PICS may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid PICS with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds five percent (5%) for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of two (2) years after the termination or expiration of this Agreement.
6. Confidentiality and Privacy.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback.
(a) Ownership. Customer acknowledges that, as between Customer and PICS, PICS owns all right, title, and interest, including all intellectual property rights, in and to the Application and Documentation.
(b) Feedback. If Customer, any Authorized User or any other of Customer’s employees or contractors sends or transmits any communications or materials to PICS by mail, email, telephone, or otherwise, suggesting or recommending changes to the Application or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), PICS is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to PICS on Customer’s behalf, and on behalf of its Authorized Users, employees, contractors and/or agents, all right, title, and interest in, and PICS is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although PICS is not required to use any Feedback.
8. Limited Warranties and Warranty Disclaimer.
(a) PICS warrants that the for a period of ninety (90) days following the effective date of a Quote the (i) Application will perform materially as described in the Documentation; and (ii) Professional Services will be performed in a professional and workmanlike manner.
(b) The warranties set forth in Section 8(a) do not apply and become null and void if Customer breaches any material provision of this Agreement, or if Customer, any Authorized User, or any other person provided access to the Application by Customer or any Authorized User, whether or not in violation of this Agreement: (i) installs or uses the Application on or in connection with any hardware or software not specified in the Documentation or expressly authorized by PICS in writing; (ii) modifies or damages the Application; or (iii) misuses the Application, including any use of the Application other than as specified in the Documentation or expressly authorized by PICS in writing.
(c) If, during the period specified in Section 8(a), any Application fails to comply with the warranty in Section 8(a)(i), and such failure is not excluded from warranty pursuant to Section 8(b), PICS shall, subject to Customer’s promptly notifying PICS in writing of such failure, at its sole option, either: (i) repair or replace the Application, provided that Customer provides PICS with all information PICS reasonably requests to resolve the reported failure, including sufficient information to enable the PICS to recreate such failure; or (ii) refund the Fees paid by Customer for such Application, subject to Customer’s ceasing all use of and, if requested by PICS, returning to PICS all copies of the Application. If PICS repairs or replaces the Application, the warranty will continue to run from the Effective Date and not from Customer’s receipt of the repair or replacement. If, during the period specified in Section 8(a), the Professional Services are not provided as waranted, the sole liability of PICS and the exclusive remedy of Customer shall be the re-performance of the Professional Services. The remedies set forth in this Section 8(c) are Customer’s sole remedies and PICS’s sole liability under the limited warranty set forth in Section 8(a).
(d) EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 8(a), THE PROFESSIONAL SERVICES, APPLICATION AND DOCUMENTATION ARE PROVIDED “AS IS” AND PICS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PICS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), PICS MAKES NO WARRANTY OF ANY KIND THAT THE PROFESSIONAL SERVICES, APPLICATION AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification.
(a) PICS Indemnification.
(i) PICS shall indemnify, defend, and hold harmless Customer from and against any and all damages finally awarded or payable to Customer in settlement (“Losses”) resulting from any third party claim, suit, action, or proceeding (“Third Party Claim”) that the Application or Documentation, or any use of the Application or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies PICS in writing of the claim, cooperates with PICS, and allows PICS sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit PICS, at PICS’ sole discretion, to (A) modify or replace the Application or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If PICS determines that none of these alternatives is reasonably available, PICS may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and promptly refund to Customer a pro rata portion of the Fees (based on the percentage of functionality that the affected component or part represents) paid by Customer in the last three (3) years.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Application in combination with data, software, hardware, equipment, or technology not provided by PICS or authorized by PICS in writing; (B) modifications to the Software not made by PICS; (C) use of any version other than the most current version of the Software or Documentation delivered to Customer; or (D) any third party products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at PICS’s option, defend PICS from and against any Losses resulting from any Third Party Claim based on Customer’s, or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Application or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Application in combination with data, software, hardware, equipment or technology not provided by PICS or permitted under the Documentation or authorized by PICS in writing; (iv) modifications to the Application not made by PICS; or (v) use of any version other than the most current version of the Application or Documentation delivered to Customer, provided that Customer may not settle any Third Party Claim against PICS unless such settlement completely and forever releases PICS from all liability with respect to such Third Party Claim or unless PICS consents to such settlement, and further provided that PICS will have the right, at its option, to defend itself against any such Third Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 9 SETS FORTH LICENSEE’S SOLE REMEDIES AND PICS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE APPLICATION OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability.
IN NO EVENT WILL PICS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PICS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PICS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination.
(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until three (3) years from such date (the “Initial Term”). This Agreement will automatically renew thereafter for successive one (1) year term[s] unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) PICS may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after PICS’ delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(b) or Section 6;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured sixty (60) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Customer’s obligations under Section 6, Customer shall cease using and delete, destroy, or return all copies of the Application and Documentation and certify in writing to the PICS that the Application and Documentation has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(d), 9, 10 and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12. Miscellaneous.
(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b) second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, pandemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns or other industrial disturbances; (viii) cybersecurity incidents; and (ix) shortage of adequate power or transportation facilities.
(d) Amendment and Modification; Waiver. PICS reserves the right to modify this Agreement at any time upon reasonable notice to Customer. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the city of Wilmington and County of New Castle, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of PICS, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
(h) Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
EXHIBIT A
SUPPORT TERMS AND CONDITIONS
1. Definitions.
a. “Error” means either (a) a failure of the Application to conform to the specifications set forth in the Documentation, resulting in the inability to use, or restriction in the use of, the Application, and/or (b) a problem requiring new procedures, clarifications, additional information and/or requests for product enhancements.
b. “Maintenance Release” means Updates and Upgrades.
c. “Update" means a subsequent release of the Application which PICS generally makes available for Application licenses at no additional license fee. Updates shall not include any release, option or future product which PICS licenses separately.
d. “Upgrade” means a revision of the Application released by PICS to its end user customers generally, during the Quote Term, to add new and different functions or to increase the capacity of the Application. Upgrade does not include the release of a new product or added features for which there may be a separate charge.
2. Updates. PICS will make commercially reasonable efforts to provide an Update designed to solve or by-pass a reported Error. The Update may be provided in the form of a temporary fix, procedure or routine, to be used until a Maintenance Release containing the permanent Update is available. PICS shall reasonably determine the priority level of Errors, pursuant to the following protocols:
a. Severity 1 Errors: A Severity One Error means the (i) production system is severely impacted or completely shut down, or (ii) system operations are down. PICS promptly initiates the following procedures: (1) assigns specialist(s) to correct the Error on an expedited basis; (2) provides ongoing communication on the status of an Update; and (3) begins to provide a temporary workaround or fix.
b. Severity 2 Errors: A Severity Two Error means (i) the production system is functioning with limited capabilities, or (ii) is unstable with periodic interruptions, or (iii) mission critical applications, while not being affected, have experienced material system interruptions. PICS assigns a specialist to begin an Update, and provides additional, escalated procedures as reasonably determined necessary by PICS Support staff. PICS exercises commercially reasonable efforts to provide a workaround or include a fix for the Severity 2 Errors in the next Maintenance Release.
c. Severity 3 Errors: A Severity Three Error means there (i) are errors in fully operational production systems, (ii) is a need to clarify procedures or information in Documentation, or (iii) is a request for a product enhancement. PICS may include an Update in the next Maintenance Release.
3. Maintenance Releases. During the Quote Term, PICS shall make Maintenance Releases available to Customer if, and when PICS makes any such Maintenance Releases generally available to its customers. If a question arises as to whether a product offering is an Upgrade or a new product or feature, PICS’ opinion will prevail, provided that PICS treats the product offering as a new product or feature for its end user customers generally.
4. Conditions for Providing Support. PICS’ obligation to provide Support is conditioned upon the following: (a) Customer makes reasonable efforts to correct the Error after consulting with PICS; and (b) Customer provides PICS with sufficient information and resources to correct the Error.
5. Support Process: PICS will provide Support during the Quote Term 24x7, 365 days a year through the PICS software support help desk
6. Exclusions from PICS’ Support. PICS is not obligated to provide Support in the following situations: (a) the Application has been changed, modified or damaged (except if under the direct supervision of PICS); (b) the Error is caused by Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of PICS; (c) the Error is caused by third party software not licensed through PICS; or (d) Customer has not paid the Application or Services fees when due. Further, PICS shall not be obligated to provide Maintenance Releases or Support for any third party products that are, or may be integrated into the Application