Effective Date: April 1, 2013
These Terms and Conditions (“Terms and Conditions”) are entered into by and between Advanced Solutions, Inc., a Kentucky corporation (“Advanced Solutions”) and you, a purchaser of an Eligible Product as defined in Paragraph 2 (“You” or “Your”), and are made effective as of the date of Your purchase of the license or licenses for Enterprise Support Service (the “Purchase Date”). These Terms and Conditions govern Advanced Solutions’s Enterprise Support Service (“Enterprise Support Service”). By using Enterprise Support Service, You acknowledge and agree that You have read, understand, and agree to be bound by these Terms and Conditions.
Advanced Solutions may, in its sole and absolute discretion, change or modify these Terms and Conditions at any time. Such changes or modifications shall become effective immediately upon publication on Advanced Solutions’s website. Your use of the Enterprise Support Service after such change or modification has been published shall constitute Your acceptance of these Terms and Conditions as last revised. In addition, Advanced Solutions may occasionally notify You of changes or modifications to these Terms and Conditions by email. It is therefore very important that You provide Advanced Solutions valid contact information and that You keep that contact information current. Advanced Solutions assumes no liability or responsibility for Your failure to receive any notification if such failure results from incomplete, unavailable, or inaccurate contact information.
You may designate a maximum of two (2) contacts that may request Enterprise Support Service (the “Designated Callers”) on Your behalf. You must notify Advanced Solutions in writing of who your initial Designated Callers will be. You may modify Your Designated Callers at any time upon written notice to Advanced Solutions. Pursuant to these Terms and Conditions, only Your Designated Callers will contact Advanced Solutions requesting Enterprise Support Service on your behalf. Advanced Solutions will not be required to provide Enterprise Support Service to any individual who is not listed as Your current Designated Callers.
3.1 Submission of a Support Request. In order to receive Enterprise Support Service, the Designated Callers may call or e-mail Advanced Solutions’s technical support team and request support related to a Service Issue (a “Support Request”). In the Support Request, they must include sufficient information to identify the Service Issue so that Advanced Solutions is able to determine the nature of the Service Issue and identify a potential resolution for the Service Issue. It is Your sole responsibility to implement and maintain measures to ensure that Your data is backed-up and to ensure that any and all confidential, protected, or sensitive information is secure before submitting a Support Request or otherwise seeking Enterprise Support Service.
3.2 Delivery of Support. Advanced Solutions will make commercially reasonable efforts to provide a resolution for each Service Issue reported in a Support Request, but does not guarantee that any particular Service Issue can or will be resolved. You must cooperate to the extent necessary to allow Advanced Solutions to diagnose and provide a resolution for any Service Issue identified in Your Support Request. Advanced Solutions reserves the right to reject any Support Request that Advanced Solutions reasonably believes does not include a valid Service Issue.
3.3 Response Time. Advanced Solutions will make commercially reasonable efforts to respond to any Support Request within two business hours. A response may take the form of an initial communication from Advanced Solutions regarding an Issue, including an acknowledgment of Advanced Solutions’s receipt of a Support Request from You, or a substantive Resolution as defined in Section 3.4. However, Advanced Solutions does not guarantee any response will be provided within any specific time period. For purposes of these Terms and Conditions, business hours are Monday through Friday, between 8:00 AM and 5:00 PM Eastern Standard Time, excluding all federal holidays.
3.4 Resolution of Support Request. Upon diagnosis of a Service Issue pursuant to a Support Request, Advanced Solutions will attempt to provide a resolution addressing and resolving the identified Service Issue (a “Resolution”). A Resolution may include delivery of (a) a fix or patch which, when installed, restores the Eligible Product to substantial conformance with the Eligible Product’s original specifications; (b) a technique or method that alleviates or reduces the adverse effects of a Service Issue on the operation of the Eligible Product, but may not entirely restore the Eligible Product to substantial conformance with the Eligible Product’s original specifications, or (c) information that helps alleviate the adverse effects of a Service Issue on the operation of the Eligible Product. Advanced Solutions will determine, in its reasonable discretion, if a Service Issue has been resolved. In the event that Advanced Solutions cannot provide a Resolution to a Service Issue, Advanced Solutions will escalate the Service Issue to product support for the manufacturer of the Eligible Product. A Resolution to a Support Request by Advanced Solutions may not be possible in certain circumstances, including, but not limited to, where a Service Issue includes a Software Defect that only the manufacturer of the Eligible Product can correct or resolve. In the event that a Resolution is not possible despite Advanced Solutions’s commercially reasonable efforts to identify and provide a Resolution, a determination that no solution to the Service Issue will be delivered and You shall not be entitled to any refund or credit for the purchase price of the Eligible Product or for fees paid to obtain a license for Enterprise Support Service. In the event that a Resolution of a Support Request results in the loss or alteration of any file, data, or program, Advanced Solutions shall not be responsible for such loss or alteration, and You are solely responsible for any and all restoration or reconstruction of those files, data, or programs.
3.5 Limitations on Your Use of Enterprise Support Service. Enterprise Support Service is provided solely for Your internal use to resolve Service Issues related to the installation of and access to Eligible Products. All communications and documents shared between You and Advanced Solutions are considered confidential (the “Confidential Materials”) and You agree not to disclose those Confidential Materials to any other individual, entity, or the general public. In addition, You agree not to transfer Your right to receive, or provide support to any third party using, Advanced Solutions’s Enterprise Support Service without first obtaining Advanced Solutions’s written consent. Any disclosure of Confidential Materials or transfer or provision of support to third parties in violation of this provision is grounds for immediate termination of Your right to receive Enterprise Support Service without any refund or credit due to You whatsoever. To the extent that a court of competent jurisdiction determines the prior covenant represents liquidated damages, both parties agree that the forfeiture of fees paid by You to obtain a license for Enterprise Support Service is a reasonable estimate of any damages contemplated by Your breach of Section 3.5. In addition, You agree that any disclosure of Confidential Materials would cause irreparable harm to Advanced Solutions, entitling Advanced Solutions to any and all equitable relief available, including a permanent injunction, to prevent future disclosures of Confidential Materials by You. You agree to take reasonable precautions necessary to prevent the disclosure of Confidential Materials, as well as to prevent unauthorized use of Your Enterprise Support Service by any third party. This section shall survive the termination or expiration of Your license to Enterprise Support Service.
3.6 Exclusions to Your Enterprise Support Service. Advanced Solutions will not provide Enterprise Support Service where the Service Issue arises out of or from (a) issues that could be resolved by upgrading an Eligible Product to the most current version; (b) the use or modification of an Eligible Product in a manner for which the Eligible Product is not intended to be used or modified; (c) the use of third party products or technologies and their effects on or interactions with an Eligible Product; (d) damage to the device on which the Eligible Product is initially provided or to the device or computer on which an Eligible Product is installed; (e) use of a computer, operating system, or subsystem, such as a graphics card, that is incompatible with the Eligible Product; (f) Your failure to meet the minimum specifications prescribed for use with the Eligible Product; (g) operation of the computer or device on which the Eligible Product is installed in environmental conditions outside those prescribed by the manufacturer of that computer or device; (h) use of the Eligible Product with a version of the operating system software other than that specified by the manufacturer of the Eligible Product; and (i) issues relating to Internet, email, file management, network configuration, content creation, content customization, multimedia project planning/design, resource management, budgeting, training, onsite diagnosis, or other similar issues.
3.7 Support Service for Enhancements of Eligible Product. The Designated Callers may submit a Support Request for the inclusion of new features, enhancements, or functionality to Eligible Products, provided that Advanced Solutions shall be under no obligation to provide a Response to, or provide a Resolution for, that Support Request.
7.1 Governing Law; Jurisdiction; Venue. This Agreement will be governed by and construed in accordance with the federal law of the United States and the state law of Kentucky, whichever is applicable, without regard to conflict of laws principles. You agree that any action relating to or arising out of this Agreement shall be brought in the state or federal courts of Jefferson County, Kentucky, and You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, the jurisdiction and venue in the state and federal courts of Jefferson County, Kentucky.
7.2 Waiver of Trial By Jury. YOU AGREE TO WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT TAKES PLACE RELATING TO OR ARISING OUT OF THESE TERMS AND CONDITIONS.
7.3 Titles and Headings. The titles and headings of these Terms and Conditions are for Your convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein.
7.4 Independent Covenants; Severability. Each covenant and agreement in these Terms and Conditions shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision, or any portion of a provision, of these Terms and Conditions to be illegal, invalid, or otherwise unenforceable, the remaining provisions, or portions of provisions, of these Terms and Conditions shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
7.5 Entire Agreement; Merger; Conflicting Terms. These Terms and Conditions, and any documents they refer to, including the Enterprise Support Service Quote, constitute the entire agreement between the parties concerning Enterprise Support Service and supersede any prior or contemporaneous agreements, discussions or understandings between the parties, whether written or oral. To the extent that these Terms and Conditions or any other document conflicts with the Enterprise Support Service Quote, the terms of the Enterprise Support Service Quote shall govern and control.
7.6 Amendment. Except as otherwise stated in these Terms and Conditions, these Terms and Conditions cannot be amended without the prior written consent of both parties signed by authorized representatives of both parties.
7.7 Assignment; Third Party Beneficiaries. You may not assign any right or license, or delegate any duty, under these Terms and Conditions without first obtaining Advanced Solutions’s written consent. Advanced Solutions may assign or sub-contract any of its rights or obligations hereunder. Nothing in these Terms and Conditions shall be deemed to confer any rights or benefits to any third party.
7.8 Waiver. Waiver of any single breach or default will not constitute waiver of any other right under these Terms and Conditions or any subsequent breach or default.
7.9 Force Majeure. Advanced Solutions will not be deemed in breach of these Terms and Conditions if Advanced Solutions is unable to provide a Resolution to a Service Issue or services under these Terms and Conditions by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness, or incapacity of an employee, agent, or officer of Advanced Solutions, or any local, state, federal, national or international law, order, or regulation, or any other event beyond Advanced Solutions’s control.
7.11 United States Export Controls. Enterprise Support Service are subject to export laws, restrictions, regulations, and administrative acts of the United States Department of Commerce, Department of Treasury Office of Foreign Assets Control (“OFAC”), State Department, and other United States authorities (collectively, “U.S. Export Laws”). You shall not use the Enterprise Support Service to collect, store, or transmit any technical information or data that is controlled under U.S. Export Laws. You shall not export or re-export, or allow the export or re-export of, any Enterprise Support Service in violation of any U.S. Export Laws. No Enterprise Support Service may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country with which the United States has embargoed trade; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List, or any other denied parties lists under U.S. Export Laws. By using the Enterprise Support Service, You agree to the foregoing and represent and warrant that You are not a national or resident of, located in, or under the control of, any restricted country; and You are not on any denied parties list; and You agree to comply with all U.S. Export Laws (including “anti-boycott”, “deemed export” and “deemed re-export” regulations). If You obtain Enterprise Support Service from other countries or jurisdictions in violation of these Terms and Conditions, You do so on Your own initiative and You are responsible for compliance with the local laws of that jurisdiction, if and to the extent those local laws are applicable and do not conflict with U.S. Export Laws. If such laws conflict with U.S. Export Laws, You shall not obtain any Enterprise Support Service. The obligations under this section shall survive any termination or expiration of Your subscription or license to Enterprise Support Service.
7.12 Attorneys Fees. The prevailing party in any dispute that is resolved by arbitration or litigation arising from, or relating to, these Terms and Conditions shall be entitled to collect from the other party all of its reasonable costs and attorneys’ fees incurred.
7.13 Authority to Bind Corporate Entity. Your employee, officer, or agent who is submitting a Support Request to Advanced Solutions is agreeing to these Terms and Conditions on Your behalf. You agree that Your employee, officer, or agent has the ability to bind You.