THIS MAINTENANCE AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH
AURON SOFTWARE B.V. WILL PROVIDE MAINTENANCE AND SUPPORT (COLLECTIVELY,
“MAINTENANCE”) TO LICENSEE. ALL TERMS NOT OTHERWISE DEFINED HAVE THE
GIVEN IN THE APPLICABLE LICENSE AGREEMENT.
YOUR GENERAL TERMS OF BUSINESS DO NOT APPLY.
In this Maintenance Agreement:
(i) "Auron" means Auron Software B.V.
(ii) "Customer" means the individual(s), organization or business entity
buying a license of the Software from Auron or its Distributors
or its Resellers.
(iii) "Software" means computer programs (and their storage medium) supplied
by Auron and known collectively as "Auron SMS Server " in which Auron has
property rights and any user manuals, example code, operating instructions,
brochures and all other documentation relating to the said computer programs
(the expression "Software" to include all or any part or any combination of
(iv) Patch shall mean a fix to a program error.
(v) Error shall mean a demonstrable instance of adverse and incorrect operation
of the Software that impacts Licensee’s ability to use a functionality
described in the Documentation.
(vi) Error Resolution shall mean the following: A solution has been generated
in the form of a Patch, or a Version of the Software corrects the error,
neither of which create additional problems; or The origin of the Error lies
in the Documentation and the appropriate Documentation has been clarified; or
Auron demonstrates that the technical issue is caused by third party software
or hardware or other causes beyond Auron’ control.
(vii) Version means a release of the Software, that is identified in the form
of x.y, where x represents a major release or base level, and y represents a
minor release level version.
This Maintenance Agreement is in effect for Twelve (12), Twenty-Four (24) or
Thirty-Six (36) months, depending on the Agreement period. Customer may
purchase Maintenance for additional annual Maintenance periods, unless Auron
has elected to retire the Software for which support is requested. If Auron
does retire the Software, Auron will notify Licensee at least ninety (90)
days before expiration of the existing annual Maintenance period. Maintenance
renewals that come in after the maintenance has expired will be backdated to
start from the old expiry date. Auron reserves the right, from time to time,
to change its standard Maintenance terms and conditions, including the
applicable fees. Any change to the Maintenance terms and conditions will not
materially reduce the level of support set forth herein. The new Maintenance
fees and/or terms and conditions will become effective on Customer’s next
annual Maintenance period. This Agreement shall be construed in accordance
with the laws of The Netherlands and the Dutch courts shall have sole
jurisdiction in any dispute relating to these conditions. If any part of these
conditions shall be or become invalid or unenforceable in any way and to any
extent by any existing or future rule of law, order, statute or regulation
applicable thereto, then the other conditions shall remain in full force and
effect as all other provisions.
3. DESCRIPTION OF MAINTENANCE
(i) Support and Response Times: Support is given by answering questions by
e-mail or phone in the English language. Support will be responded to within
two business days. By giving Support Auron does not warrant any result.
Support as defined in this Maintenance Agreement is an obligation of best
(ii) Version Life: All Versions of the Software are supported for at least
twenty-four (24) months from the date the Software is purchased or a New
Version is released.
(iii) New Versions: Provided that Licensee is a current subscriber to
Maintenance, Auron will make each New Version of the Software that Auron
releases available to Customer.
(iv) Right to Upgrade Software with New Versions: If Customer has purchased
maintenance for its Licenses, then Customer will be entitled to use and
distribute an upgraded version of Customer’s Software with the new features/
functionality of the new Version of the Software incorporated therein.
If Customer is not paying for Software Maintenance, Customer shall not have
the right to upgrade.
4. UPGRADES AND SUPPLEMENTS
If the Software is labeled as an upgrade, you must be properly licensed to use
a product identified by Auron as being eligible for the upgrade in order to use
the Software. Software labeled as an upgrade replaces and/or supplements the
product that formed the basis for your eligibility for the upgrade. You may use
the resulting upgraded product only in accordance with the terms of this
License unless we provide other terms along with the update or supplement. If
the Software is an upgrade of a component of a package of software programs
that you licensed as a single product, the Software may be used and transferred
only as part of that single product package.
5. PAYMENT OF FEES / SUSPENSION OF MAINTENANCE FOR NON-PAYMENT
Unless otherwise agreed in writing by the parties, Maintenance fees for the
first annual Maintenance period are due within thirty (30) calendar days of the
commencement date of the applicable license agreement, but no later than thirty
(30) calendar days of the commencement date of this Maintenance Agreement. If
Licensee chooses to renew Maintenance for subsequent annual Maintenance
periods, the annual Maintenance fees shall be due and payable thirty (30) days
following the next Maintenance period anniversary date, unless otherwise agreed
in writing by Auron. If payment is not received pursuant the applicable payment
terms agreed between parties, and Auron has not received confirmation that
Licensee has elected to renew Maintenance for the coming year within thirty
(30) days of Maintenance anniversary date, Auron shall have the right to
discontinue Licensee’s Maintenance until such time as Customer pays the
applicable Maintenance fees in full. Auron shall have no obligation to provide
Customer with Maintenance if Customer has not paid the applicable Maintenance
fees pursuant to the agreed payment terms.
(i) Maintenance does not cover resolution of Errors which result from (a) third
party software or hardware, (b) any non-Auron modification to the Software, or
(c) use of the Software by Customer which is not in accordance with the
(ii) Auron will only support (development) platforms and operating systems for
which all components are supported by their respective vendors, under standard
conditions, at the date the support request is made by the Customer to Auron.
(iii) Maintenance does not cover modifications to the Software (to work around
the dysfunction or limitation of third party software, hardware or services).
Without prejudice to any other rights, Auron may cancel or dissolve this
Maintenance Agreement if Customer does not abide by the terms and conditions
of the applicable License Agreement or this Maintenance Agreement.
8. LIMITATION OF LIABILITY AND REMEDIES
Customer's exclusive remedy and the entire liability of Auron will be, at Auron
option, repair, replacement, or refund of the Software if reported (or, upon
request, returned) to the party supplying the Software to Customer. In no
event does Auron warrant that the Software is error free or that Customer will
be able to operate the Software without problems or interruptions. The Customer
will safeguard Auron against any claim relating to the use of the Software by
the Customer. Auron is in no event liable if the Customer has not reported an
Error to Auron within two business days and/or if the software (a) has been
altered, except by Auron, (b) has not been installed, operated, repaired, or
maintained in accordance with instructions supplied by Auron, (c) has been
subjected to abnormal physical or electrical stress, misuse, negligence, or
accident, or (d) is used in ultra hazardous activities. Notwithstanding any
damages that you might incur for any reason whatsoever (including, without
limitation, all damages referenced above and all direct, indirect or general
damages), the entire liability of Auron under any provision of this Maintenance
greement and your exclusive remedy for all of the foregoing shall be limited
to the greater of the amount actually paid by you for the Maintenance of the
Software with a maximum of U.S.$5.00. Auron is relieved of any obligation to
pay damages if the Customer has not upgraded the Software when possible. The
foregoing limitations, exclusions and disclaimers shall apply to the maximum
extent permitted by applicable law, even if any remedy fails its essential
9. OTHER TERMS
Auron shall become owner of all the intellectual property relating to the
Support. All other terms of the applicable license, including but not limited
to the sections related to the license grants, title and general contractual
provisions, are hereby incorporated by reference. In the event of any
inconsistency between the terms of the applicable license agreement and the
terms of the Maintenance Agreement, the terms of this Maintenance Agreement
shall control only with respect to determining Auron’ obligations with respect
to providing Maintenance. In all other cases, the applicable license agreement