These Terms and Conditions (the “Agreement”) govern your access to and use of the Services, and is an agreement between Pipe Technologies Limited, New Zealand company number 1271594 ( “SIMPA”) and you or the legal entity you represent (“Customer”).

This Agreement takes effect when you submit an Order Form to SIMPA, or click an “I Agree” button, as applicable (the “Acceptance Date”).

You represent to us that you are lawfully able to enter into contracts. If you are entering into this Agreement on behalf of an entity, you represent to us that you have legal authority to bind that entity.

1. Definitions

   The following definitions (and additional definitions provided below) will apply to this Agreement:

   1. “Commencement Date” means the first day you have access to the Services.
   2. “Confidential Information” means non-public information, technical data or know-how of a party and/or its affiliates, which is furnished to the other party in written or tangible form in connection with this Agreement. Oral disclosure will also be deemed Confidential Information if it would reasonably be considered to be of a confidential nature or if it is confirmed at the time of disclosure to be confidential. Notwithstanding the foregoing, Confidential Information does not include information which is: (i) already in the possession of the receiving party and not subject to a confidentiality obligation to the providing party; (ii) independently developed by the receiving party; (iii) publicly disclosed through no fault of the receiving party; (iv) rightfully received by the receiving party from a third party that is not under any obligation to keep such information confidential; (v) approved for release by written agreement with the disclosing party; or (vi) disclosed pursuant to the requirements of law, regulation, or court order, provided that, where permitted by law, the receiving party will promptly inform the providing party of any such requirement in advance and cooperate with any attempt to procure a protective order or similar treatment.
   3. “Customer Account” means Customer’s account used to access the Software, and all usernames relating thereto.
   4. “Customer Content” means graphics, text, audio, photos, software, music, sounds, video or similar information or material provided or submitted by Customer or any User to SIMPA or the Software in the course of utilizing the Software.
   5. “Customer Data” means any information or data provided or submitted by Customer or any User to SIMPA or the Software in the course of utilizing the Software.
   6. “Intellectual Property Rights” means any intangible property right provided by law, including but not limited to (i) trademark, trade dress and service mark rights, (ii) copyrights, (iii) patent rights, and (iv) trade secret rights.
   7. “Order Form” means a completed order for the Service submitted to SIMPA by Customer, through SIMPA’s website or otherwise. All Order Forms are subject to the terms and conditions of this Agreement.
   8. “Services” means, collectively, all services provided or made available to Customer by SIMPA under this Agreement, and the functionality provided by the Software.
   9. “Software” means the software platform known as “SIMPA,” and all modules, tiers and extensions thereto, including all source code, object code, architecture, designs, functionality, content (excluding Customer Content), concepts, features, and documentation related thereto, as well as all updates and customizations to any of the foregoing.
   10. “Statement of Work” or “SOW” means a written description of Professional Services to be performed by SIMPA under this Agreement, which shall specify, as applicable, the fees associated with the work and other responsibilities of the parties. Each SOW will be included as an attachment to this Agreement and will be incorporated herein by reference, and will be deemed accepted and binding on the parties upon execution thereof. Each SOW shall remain in effect until the earlier to occur of: (a) termination of such SOW by either party in accordance with this Agreement and/or the terms of the SOW; or (b) expiration or termination of the Term or term of professional services identified in the SOW.
   11. “Support Services” means the support services further identified in Schedule B.
   12. “Term” means the length of this Agreement as specified in the Order Form and renewed pursuant to clause 12.
   13. “User” means one of Customer’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to use the Service and have been supplied User identifications and passwords by Customer (or by SIMPA at Customer’s request).
   14. “User Account” means an individual username and password account issued to Customer under the Customer Account.

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2. Hosted Software License
   1. License. Subject to payment in full of the fees due to SIMPA, and compliance with this Agreement, SIMPA grants to Customer during the Term, for the number of Users specified in the applicable Order Form, a non-transferable, non-exclusive licence, without right to sublicence, to access and use the tier of the Software and Software functionalities identified in the Order Form for the purpose of receiving Services, as hosted by SIMPA.
   2. Software Upgrades and Modifications. Customer agrees that SIMPA may update, upgrade or modify the Software, at any time, including the removal or modification of previously available functionality; provided, however, that any such updates, upgrades, enhancements and/or modifications shall not materially reduce the functionality of the Software. Subject to the foregoing, any updates, upgrades, enhancements and/or modifications provided to the Software will automatically be considered part of the Software and will be subject to the terms of this Agreement.
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3. Access and Availability
   1. Availability. SIMPA will, subject to planned downtime make reasonable efforts to ensure that the Software is generally available; however, SIMPA does not guarantee, represent or warrant that access to the Software will be uninterrupted or error-free, and SIMPA does not guarantee that Customer will be able to access or use all of the Software’s features at all times. SIMPA will make reasonable efforts notify Customer of system outages and scheduled downtime.
   2. Suspension. SIMPA may suspend or interrupt the Services, in whole or in part, if (i) Customer or Users are using the Services in violation of this Agreement or in violation of the law, (ii) Customer’s system, Customer Account, or User Account has been compromised or unlawfully accessed, (iii) suspension of the Services is necessary to protect the infrastructure of SIMPA or its affiliates, or is necessary to protect SIMPA’s other customers, (iv) suspension is required under the law, or (v) if Customer fails to pay the fees applicable under this Agreement when due, and provided that Customer has been notified in writing of its failure to pay and given fifteen (15) days to remedy this failure.
   3. Passwords and Access.
      1. SIMPA shall issue User Accounts for the Software in the number of seats identified on the Order Form.
      2. Other than access by SIMPA, Customer shall use commercially reasonable efforts to restrict individuals or entities outside of Customer to gain any access to the Customer Account or any User Accounts.
      3. Customer is responsible for all activities that occur under the Customer Account. Customer is responsible for maintaining the security and confidentiality of all Customer Account usernames and passwords. Customer shall notify SIMPA promptly of any unauthorized use of any Customer Account or any other known or suspected breach of security of which Customer becomes aware.
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4. Ownership
   1. Software Ownership. SIMPA retains all right, title and interest in and to the Software, and all Intellectual Property Rights therein. Title to and ownership of any modifications, upgrades, updates or customizations of the Software shall be held exclusively by SIMPA. In addition, Customer grants SIMPA the right and licence to make, use, sell, reproduce, modify, sublicence, disclose, distribute and otherwise exploit error reports, corrections, and suggestions provided by Customer concerning the Software and modifications based thereon or incorporated therein, which may include new functional features. Customer agrees to perform such acts, and execute and deliver such instruments and documents, and do all other things as may be reasonably necessary to evidence or perfect the rights of SIMPA set forth in this section.
   2. Updates/Upgrades. Customer agrees that SIMPA may update, upgrade or modify the Software, at any time, including the removal or modification of previously available functionality. Subject to the foregoing, unless separately identified as having additional terms, any updates, upgrades, enhancements and/or modifications provided to Customer by SIMPA will automatically be considered part of the Software and will be subject to the terms of this Agreement.
   3. Customer Content. All Customer Content is and shall remain the property of Customer or the applicable third party. Customer grants to SIMPA a nonexclusive, worldwide, royalty-free licence to use, reproduce, modify and prepare derivative works of the Customer Content for the Term of this Agreement solely in connection with its provision of the Services.
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5. Limitations, Notices and Additional Customer Obligations
   1. Customer is authorized to permit use of the Software by the number of Users identified in the Order Form, or in the amount of additional User seats purchased from time to time.
   2. Customer understands and agrees that neither Customer nor Users are permitted to distribute, upload, transmit, store, make available or otherwise publish or process through the Software any Customer Content that: (1) is unlawful or encourages another to engage in anything unlawful; (2) contains a virus or any other similar programs or software which may damage the operation of SIMPA’s or another’s computer; (3) violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any party; or, (4) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, illegal, threatening or bullying. Customer understands and agrees that SIMPA reserves the right to edit, modify or remove content being hosted by SIMPA, including for violations of the above standards.
   3. Customer agrees that it and its Users may only use the Software and Hardware in accordance with applicable law, and not for any illegal purpose or other purposes that violates the law.
   4. Customer understands and agrees that SIMPA may enter into end user terms with Users prior to and during User’s use of the Software and Services, that such an agreement shall form binding contracts between SIMPA and Users without Customer’s involvement.
   5. While Users may be any persons that Customer authorizes to use the Software for its business, including, but not limited to, Customer’s employees and contractors, Customer may not sublicence, resell or supply the Software for use in or for the benefit of any other organization, entity, business, or enterprise without SIMPA’s prior written consent.
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6. Support Services
   1. 6.1 Provided that Customer has elected the service on the Order Form and paid the fees associated therewith, SIMPA shall make its best efforts to provide the Support Services.
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7. Professional Services
   1. In the event that Customer requests Professional Services that SIMPA desires to render, SIMPA shall prepare a Statement of Work covering such Professional Services. If agreed upon and executed, each Statement of Work shall form a separate contract governed by this Agreement and the terms of the Statement of Work.
   2. Unless stated otherwise in an applicable Statement of Work, any estimates of time provided in connection with deliverables or Services, are good faith projections, but are not guarantees. Unless otherwise agreed to by the parties in writing, in the event that SIMPA provides Professional Services on a “time and materials” rate basis, SIMPA shall charge Customer at the rates specified by SIMPA in the SOW. In the event that SIMPA provides Professional Services hereunder on a “fixed fee” rate basis, such fixed fee will cover only the specific tasks, expenses, and deliverables that the Statement of Work defines as included within the fixed fee. Unless otherwise agreed to by the parties in writing, any and all services and deliverables that Customer requests that fall outside the Statement of Work or are otherwise not expressly included within such fixed fee payment schedule will be provided on a time and materials basis.
   3. Customer shall pay SIMPA for the Professional Services in accordance with the payment terms set forth in the applicable Statement of Work. SIMPA shall invoice Customer for all such fees when due, which shall be paid (in full, without set off or deduction) by the Customer within thirty (30) calendar days of receipt.
   4. SIMPA shall be entitled to reimbursement from Customer for all documented, reasonable, out-of-pocket expenses incurred in connection with the provision of Professional Services under this Agreement, including, without limitation, travel, lodging, meals and transportation. Such expenses are to be billed to Customer in SIMPA’s invoices as they are issued, and are to be paid by Customer accordingly. Any expenses in excess of five hundred dollars ($500) shall require pre-approval by Customer (which approval shall not be unreasonably withheld or delayed).
   5. Unless otherwise indicated therein, all Statements of Work may be terminated by either party if the other breaches a material term of the Statement of Work or this Agreement and such breach is not cured within fifteen (15) calendar days’ notice.
   6. Upon termination of any Statement of Work, SIMPA shall cease all work being performed thereunder and issue Customer a final invoice. Termination of a Statement of Work shall not eliminate Customer’s obligation to pay for time or deliverables incurred or performed prior to termination. In the event that Customer terminates a fixed fee Statement of Work before deliverables are completed but after they have been commenced by SIMPA, such Statement of Work shall be converted to a time-and-materials Statement of Work for such commenced but incomplete deliverables, and SIMPA shall invoice Customer for the reasonable time incurred in connection with such incomplete deliverables.
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8. Fees
   1. Customer shall be obligated to pay the amounts identified in the Order Form, at the times identified in the Order Form. Fees are exclusive of applicable tax, which shall be Customer’s responsibility.
   2. SIMPA may use a third-party payment processor (the “Payment Processor”) to charge Customer through an online account for use of the Software. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. SIMPA is not responsible for error by the Payment Processor.
   3. Customer agrees to pay SIMPA, through the Payment Processor, all charges for purchases made by Customer, and Customer authorizes SIMPA, through the Payment Processor, to charge Customer’s chosen payment provider or method (your “Payment Method”).
   4. If Customer wishes to cancel, upgrade or downgrade its subscription, it may do so at any time through Customer’s account. Any charges incurred prior to cancellation or downgrade are non-refundable. If Customer upgrades its subscription, Customer will be charged the difference in its current subscription and the upgraded subscription at that time, and Customer will be charged the price for the upgraded subscription on an ongoing basis until cancellation. If Customer downgrades its subscription, it will be charged the reduced price at the beginning of the next term.
   5. SIMPA will automatically invoice and charge Customer’s Payment Method monthly on the anniversary of the Commencement Date. If Customer purchases a subscription, it may result in recurring charges to Customer’s Payment Method, and Customer agrees that SIMPA may charge such amounts until such a time as Customer’s subscription expires or you cancel the subscription, depending on the subscription type. SIMPA MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY SIMPA) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE ITS PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE SIMPA REASONABLY COULD ACT.
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9. Customer Data
   1. All Customer Data, whether posted by Customer or by Users, will remain the sole property of Customer or such Users or their licensors, as applicable. Subject to the terms and conditions of this Agreement, Customer grants to SIMPA a non-exclusive licence to use, copy, store, transmit and display Customer Data to the extent necessary to provide and maintain the Software and to provide services to Customer and its Users. SIMPA’s Privacy Policy available on SIMPA’s website located at www.SIMPA.net.nz, as it may be updated from time to time, shall apply to its collection and use of Customer Data.
   2. Customer agrees that SIMPA may monitor Customer’s and its Users’ use of the Software and collect and use data and related information, including but not limited to information about Customer’s and its Users’ use of the Software, which may be gathered periodically to ensure compliance with this Agreement, to study and improve the Software, to facilitate the provision of updates, product support and to provide the services under this Agreement. Aggregated statistical data will be the property of SIMPA. Furthermore, SIMPA may communicate with Customer and its Users of the Software regarding the Software and its functions, and for other SIMPA needs.
   3. The Software is a productivity tool, not a backup system. Although SIMPA may provide you with copies of Customer Data from time to time, Customer understands that it is Customer’s responsibility to back up its Customer Data in the manner and at intervals of its choosing, and that SIMPA does not have the obligation to maintain copies or backups of Customer Data.
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10. Third Party Services
    1. Customer acknowledges that it may require and use third party products and/or services in relation to this Agreement (“Third Party Services”). Customer acknowledges and agrees that Third Party Services are not provided by SIMPA and that SIMPA provides no warranty and accepts no liability in relation to Third Party Services. Any referral for Third Party Services that may be made by SIMPA is provided for the convenience of the Customer only and shall not constitute any warranty or guarantee of any kind from SIMPA. If Customer elects to use Third Party Services, Customer understands and agrees that there may be additional terms and conditions in relation to Third Party Services.
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11. Indemnification
    1. Customer will defend, indemnify, and hold SIMPA (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or in connection with a claim, suit, action, or proceeding by a third party (i) alleging that the Customer Data, Customer Content or other data or information supplied by Customer infringes the intellectual property rights or other rights (including the privacy) of any person or has caused harm to any person; (ii) arising out of or related to a breach or alleged breach of this Agreement; or (iii) arising out of claims relating to Customer or its Users’ negligence or use of the Software in violation of the law.
    2. In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.
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12. Disclaimers and Limitations
    1. TO THE EXTENT PERMITTED BY LAW, AND SUBJECT TO CLAUSE 10.3 AND THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, THE SOFTWAREAND ALL SERVICES SUPPLIED BY SIMPA ARE PROVIDED “AS IS”, WITHOUT ANY FURTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED,. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SOFTWARE OR THE MATERIALS GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. SIMPA DOES NOT WARRANT THAT USE OF THE SOFTWARE OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
    2. Nothing in this Agreement shall exclude any condition, warranty or guarantee that cannot be excluded as a matter of law, including but not limited to those contained in the consumer protection laws to the extent that they apply.
    3. The liability, if any, of SIMPA arising from the breach of any condition, representation or warranty not excluded shall at the option of SIMPA be limited to and completely discharged by any one or more of the following:
       1. If the liability relates to the supply of services – the supplying of the services again, or the payment of the cost of having the services supplied again.
       2. Except with regard to Customer’s payment obligations and indemnification obligations, in no event will either party’s aggregate liability (for all claims) exceed the licence fees paid by the Customer in the initial twelve (12) month period from the Commencement Date. In no event will either party be liable for any indirect, special, incidental, consequential damages of any type or kind, or for any direct or indirect loss of data, revenue, profits, use or other economic advantage.
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13. Confidentiality
    1. Neither party will use the other party’s Confidential Information except as reasonably required for the performance of this Agreement. Each party will hold in confidence the other party’s Confidential Information by means that are no less restrictive than those used for its own confidential materials. Each party agrees not to disclose the other party’s Confidential Information to anyone other than its employees, confidential advisors, or subcontractors who are bound by confidentiality obligations and who need to know the same to perform such party’s obligations hereunder or to assist a party in meeting its legal obligations. The confidentiality obligations set forth in this Section will survive for as long as applicable information meets the definition of Confidential Information.
    2. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. Notwithstanding the foregoing, nothing herein shall require a party to remove or delete the other party’s Confidential Information from its long term backup storage, provided that any such retained information shall remain subject to the confidentiality obligations of this Agreement.
    3. In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will, where permitted by law, give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.
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14. Term and Termination
    1. The Term commences on the Acceptance Date. Billing of monthly licence fees will start on the Commencement Date. The initial term of this Agreement (“Initial Term”) will begin on the Acceptance Date and will end at the conclusion of the period identified in the Order Form. This Agreement will automatically be extended for successive periods of thirty (30) days (each a “Monthly Term”, and together with the Initial Term, the “Term”) beginning at the end of the Initial Term, unless either party provides notice of termination to the non-terminating party not less than thirty (30) days before the end of the Initial Term or current Monthly Term, as applicable. Applicable pricing, including monthly minimum fees, will continue unchanged from the previous term unless SIMPA notifies Customer of changes in pricing at least thirty (30) days prior to the expiration of the Initial Term or current Monthly Term.
    2. SIMPA, in its sole discretion, may suspend or terminate Customer’s usernames and passwords, accounts, or use of the Software and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within ten (10) business days of notice of such breach.
    3. Customer may terminate this Agreement at any time upon sixty (60) days’ notice to SIMPA, for any reason or no reason, provided, however, that Customer shall remain responsible for all fees remaining in the Term. SIMPA may terminate this Agreement without cause on sixty (60) days calendar notice. If SIMPA terminates without cause, no future fees shall be due and SIMPA shall issue a pro-rata refund of any fees collected covering a period that post-dates the effective date of termination.
    4. Notwithstanding the foregoing, SIMPA may update this Agreement from time to time, with such updates being binding on Customer fifteen (15) days after being made available to Customer. If Customer does not agree to such updated terms, it must notify SIMPA within said fifteen (15) day period of time , and upon such notice, Customer shall be considered to terminate this Agreement effective immediately and SIMPA shall issue a pro-rata refund of any fees collected covering a period that post-dates the effective date of termination. If Customer does not notify SIMPA of a rejection of the updated terms within said fifteen (15) day period of time, Customer shall be considered to accept such updated terms.
    5. Sections 1, 4, and 6 to 13 shall survive any termination or expiration of this Agreement.
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15. Dispute Resolution
    1. If a dispute arises out of or relating to this Agreement, including with regard to its existence, validity or termination (“Dispute”), the parties agree to follow the procedures set out in this clause.
    2. Neither party may commence arbitration or legal proceedings in relation to a Dispute unless the parties have first complied with the requirements of this clause. However, nothing in this clause prevents a party from seeking urgent injunctive relief or similar interim orders from a Court.
    3. If a party (“Complainant”) considers that a Dispute has arisen then the Complainant must refer the Dispute to the New Zealand Dispute Resolution Institute for mediation in accordance with this clause.
    4. The parties agree that any mediation shall, to the extent possible, be conducted in New Plymouth, Taranaki.
    5. Each of the parties shall keep the proceedings and any and all transcripts, statements, documents, discovery, correspondence and all other non-public information produced or otherwise disclosed in connection with any such mediation confidential.
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16. Miscellaneous
    1. Choice of Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws for the time being in force in New Zealand and the parties agree to submit to the jurisdiction of the courts and tribunals of New Zealand.
    2. Notice. SIMPA may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by post or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first post or sending by courier) or 12 hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to SIMPA by e-mail to [contact@SIMPA.net.nz]. Such notice will be deemed to have been given 12 hours after sending, or, if earlier, when received. A party may, by giving notice, change its applicable address, email, or other contact information.
    3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
    4. No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and SIMPA as a result of this Agreement or use of the Service.
    5. No Waiver. The failure of SIMPA to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by SIMPA in writing.
    6. Force Majeure. Except for the payment by Customer, if the performance of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of such party, that party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
    7. Assignment. Except for an assignment to a parent or subsidiary, this Agreement may not be assigned by Customer without the prior written approval of SIMPA. SIMPA may assign, transfer or novate this agreement to any person or entity by delivering written notice to the Customer. Any purported assignment in violation of this Section will be void. This Agreement may be enforced by and is binding on permitted successors and assigns.
    8. Entire Agreement. This Agreement comprises the entire agreement between Customer and SIMPA and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
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17. Support Schedule
    All capitalized terms used herein shall have their definitions from the Agreement of the “Definitions” section below.
    1. Support Services: Support Services consist of (a) Account Management, (b) Upgrades, (c) Error Correction, and (d) Feature Requests.
    2. Account Management: SIMPA may assign a Customer Success Manager to serve as Customer’s point of contact. The Customer Success Manager will be available to answer Customer’s questions and advise on how to get the most value from SIMPA’s service. Named contacts from Customer may contact the Customer Success Manager via email and phone during SIMPA’s business hours.
    3. Upgrades: During the Term, if SIMPA releases any Upgrades to the Software, it shall, pursuant to a mutually agreed-upon schedule, make available and install such Upgrades in the Software being used by Customer. Notwithstanding the foregoing, nothing herein shall require SIMPA to release Upgrades to the Software. All Upgrades shall be considered within the definition of Software under the Agreement, and licenced pursuant to the terms of the Agreement.
    4. Error Correction: All Errors shall be reported to SIMPA by emailing [EMAIL] or by submitting a ticket through the Support Center. SIMPA shall make its reasonable efforts correct any Error reported by Customer in accordance with the timeframes set out below.
       1 Errors – SIMPA shall

       (i) provide an Initial Response within four (4) to eight (8) Business Hours

       (ii) initiate Management Escalation promptly; and

       (iii) provide Customer with a Status Update within a further two (2) hours if SIMPA cannot resolve the Error.

       If SIMPA believes that a problem reported by Customer may not be due to an Error in the Software, SIMPA will so notify Customer. At that time, Customer may

       (1) instruct SIMPA to proceed with problem determination at Customer’s expense as set forth below, or

       (2) instruct SIMPA that Customer does not wish the problem pursued at its expense. If Customer requests that SIMPA proceed with problem determination at its expense and SIMPA determines that the error was not due to an Error, Customer shall pay SIMPA, at SIMPA’s then-current and standard consulting rates for all work performed in connection with such determination, plus reasonable, out-of-pocket related expenses actually and directly incurred therewith.

       Customer shall not be liable for:

       (1) problem determination or repair to the extent problems are due to Errors in the Software; or

       (2) work performed after Customer has notified SIMPA (in writing) 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 by SIMPA). If Customer instructs SIMPA that it does not wish the problem pursued at its possible expense or if such determination requires effort in excess of Customer’s instructions, SIMPA may, at its sole discretion, elect not to investigate the error with no liability therefor. If Customer requests that SIMPA proceed with problem determination at its expense and SIMPA determines that the error was due to an Error in the Software, then SIMPA shall be responsible for the cost of any such work.

       In all other respects, support services shall be provided by SIMPA on a time and materials basis, at the rates notified by SIMPA from time to time.

    5. New Features: Customer may submit requests for new features through its feature request portal, and if acceptable to SIMPA, SIMPA shall be engaged and performed pursuant to a Statement of Work under the Agreement. All new features shall be considered within the definition of Software under the Agreement, and licenced pursuant to the terms of the Agreement. SIMPA will inform customer, using commercially reasonable efforts, of the status of the development of the requested feature. If SIMPA does not plan to build the requested feature, or if it plans to build the feature but on a timeline that is not acceptable to Customer, SIMPA may, at its discretion, offer Customer the option to accelerate the development of the feature for a cost. Costs for accelerated feature development will depend on the feature being developed, and may include time, materials, and licensing fees and shall be previously approved by Customer.
    6. Exclusions: SIMPA shall have no obligation to support or provide maintenance with respect to or in the case of: (i) altered or damaged Software by a party other than SIMPA; (ii) problems with the Software caused by Customer’s negligence, abuse or misapplication, or unauthorized use of Software other than as specified in the SIMPA’s user manual or as approved by SIMPA; (iii) other causes beyond the control of SIMPA. SIMPA shall have no liability for any changes in Customer’s hardware or software systems that may be necessary to use the Services due to a Workaround or maintenance.
    7. Definitions
       1. “Business Hours” are from 9 a.m. to 9 p.m., Eastern Standard Time, Monday through Friday, excluding holidays.
       2. “E-mail support” means ability to make requests for technical support assistance by e-mail at any time (with reasonable efforts by SIMPA to respond within one business day) concerning the use of the then current release of the Software.
       3. “Initial Response” means the first contact by a Support Engineer after the incident has been logged and a ticket generated.
       4. “Management Escalation” means, if the initial Workaround or Fix does not resolve the Error, notification of SIMPA management that such Errors have been reported and of steps being taken to correct such Error(s).
       5. “Error” means an error in the Software than prevents the Customer or Users from accessing a significant feature of the Software.
       6. “Status Update” means if the initial Workaround or Fix cannot resolve the Error, notification of the Customer regarding the progress of the Workaround or Fix.
       7. “Upgrades” means, other than routine bug fixes and updates, additional software added to the Software that provides new functionality or modules to the Software.
       8. “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of the Software.
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