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Software Support Agreement Terms & Conditions

 

Software Support Agreement Terms & Conditions

 

This Agreement contains the terms and conditions that apply to your purchase from Famatech Corp. ("Famatech") that will be provided to you ("Customer") on orders for Famatech services and support ("Support Agreements"). By accepting delivery of the Famatech services and support described on the invoice or order confirmation, Customer agrees to be bound by and accepts these terms and conditions. If you do not wish to be bound by this Agreement, you must notify Famatech immediately and return your purchase pursuant to Famatech's return policy below. THESE TERMS AND CONDITIONS APPLY (i) UNLESS THE CUSTOMER HAS SIGNED A SEPARATE PURCHASE AGREEMENT WITH FAMATECH, IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (ii) UNLESS OTHER FAMATECH STANDARD TERMS APPLY TO THE TRANSACTION. These terms and conditions are subject to change without prior written notice at any time, at Famatech's sole discretion.

1. Support Services
  a. Famatech will provide Customer with telephone and email technical support assistance ("Support Services") for a term of two (2) years with the quantity of supported incidents depending on Support Agreement purchased (table below). Term begins upon Famatech's receipt and acceptance of Customer's order of Support Services ("Commencement Date").

Silver package 6 incidents $200 for 2 years
Gold package unlimited number of incidents $600 for 2 years
  b. Famatech defines a support incident as a specific, discrete issue that can be addressed by isolating its origin to a single cause. Famatech, in its sole discretion, will determine what constitutes a support incident. A support incident has reached resolution when the customer receives one of the following:
  • Information that resolves the issue
  • Information on how to obtain a software solution that will resolve the issue
  • Notice that the issue is caused by a known, unresolved issue or an incompatibility issue with the supported product
  • Information that identifies the issue as being resolved by upgrading to a newer release of the supported product
  • Notice that the issue has been identified as a hardware equipment issue
  • Information that isolates issue to a third-party product, not supported by Famatech
  c. Phone and email support is available Monday through Friday, 2:00AM to 11:00AM Central Standard Time or 9:00AM to 18:00PM Central European Time - excluding weekends and observed U.S. Holidays. Support availability may occasionally vary from stated hours due to downtime for systems and server maintenance, company events, holidays in country where technical support is located with a list of such days available at http://www.radmin.com/about/legal/radvspsla-app.php, and circumstances beyond the control of Famatech. Phone support requests will be handled in the order in which they are received. Agreement-based email support requests will be processed within one (1) business day.
  d. Support Agreements will be directly associated to the Famatech Support ("Product") Package ID. Customer will be required to provide the Support Package ID prior to receiving support.
2. Restrictions
  a. Service and support will be provided, to Customer in accordance with the terms indicated in this document and on Famatech's website. Famatech has no obligation to provide service or support until Famatech has received full payment for the Support Agreement(s). Terms, conditions, support features, procedures, pricing and support availability for future periods are subject to change at any time without notice and are available on Famatech's website. Customer will be provided Support Services only for the Famatech software product ("Product") in which the Support Agreement was purchased. Support availability for a particular Product version is subject to change at any time without notice.
  b. Famatech may limit or terminate support service to, or may elect not to renew additional support if Customer uses the service in an irregular, excessive, abusive or fraudulent manner or uses Product(s) with third party software that is determined at Famatech's sole discretion to be incompatible. Examples of such use include a high number of support requests that concern previously resolved issues and/or general usability, repeated posing of questions to which the answer is readily found in Product documentation, and discussion of issues that are not related to technical support. Coverage is non-transferable and is valid for the Customer only. Resale or transfer of support plans is strictly prohibited, and will be grounds for termination or non-renewal of support.
 

c.

Famatech is not responsible for any lost or corrupted software or data. Famatech strongly recommends that Customer maintain a complete data backup and disaster recovery plan.
3. Returns. Famatech may change this policy without prior written notice at any time, at Famatech's sole discretion. Please refer to Famatech's website for a current return policy. Customer may cancel this Agreement within 30 days of receipt. Any refund will be determined by Famatech based on the passage of time and/or the number of support incidents at Famatech's discretion. Customer must contact the Famatech Customer Service department for return processing and may not cancel this Agreement after thirty (30) days of receipt except as provided by any applicable provincial or federal law which may not be varied by agreement.
4. Dispute Resolution. The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against Famatech, its agents, employees, successors, assigns or affiliates (collectively for purposes of this paragraph, "Famatech" ) arising out of or relating to this Agreement, Famatech advertising, or any related purchase (a "Dispute" ) through face to face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then current CPR Rules for Non-Administered Arbitration. The Arbitration will be conducted before three (3) independent and impartial arbitrators. Famatech will appoint one (1) arbitrator and the other party or parties will appoint one (1) arbitrator. The two (2) appointed arbitrators will then select a third arbitrator, who shall be the presiding arbitrator. The arbitration hearing shall take place in Virginia. The arbitrators shall base their award on the terms of this Agreement, and will follow the law and judicial precedents that a United States District Judge would apply to the Dispute. The arbitrators shall render their award in writing and will include the findings of fact and conclusion of law upon which their award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. The existence or results of any negotiation, mediation or arbitration will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this paragraph.
5. DISCLAIMER OF ALL WARRANTIES. FAMATECH MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SUPPORT, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR CONDITION WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE USED IN CONDUCTING SERVICES, OR ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS CONCERNING THE RESULTS TO BE OBTAINED FROM THE SUPPORT OR THE RESULTS OF ANY RECOMMENDATION FAMATECH MAY MAKE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION FAMATECH MAY PROVIDE. Famatech reserves the right to modify its warranty retroactively at any time, at its sole discretion.
6. LIMITATION OF LIABILITY. FAMATECH DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES SET FORTH HEREIN, INCLUDING ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE OR FOR LOST OR CORRUPTED DATA OR SOFTWARE, OR THE PROVISION OF SERVICES AND SUPPORT. FAMATECH WILL NOT BE LIABLE FOR LOST PROFITS, LOSS OF BUSINESS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. CUSTOMER AGREES THAT FOR ANY LIABILITY RELATED TO THE PURCHASE OF THIS SERVICE, FAMATECH IS NOT LIABLE OR RESPONSIBLE FOR ANY AMOUNT OF DAMAGES ABOVE THE AGGREGATE DOLLAR AMOUNT PAID BY CUSTOMER FOR THE PURCHASE OF SUPPORT UNDER THIS AGREEMENT.
7. Other Documents. These terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s), except as otherwise noted. Any attempt to alter, supplement or amend this document or to enter an order for product(s) or services and support that are subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both Customer and Famatech.p;
8. Governing Law. This Agreement shall be governed by the laws of the State of Virginia. For the purpose of resolving conflicts related to or arising out of this Agreement, the parties expressly agree that venue shall be in the State of Virginia only, and, in addition, the parties hereby expressly consent to the exclusive jurisdiction of the federal and state courts in the State of Virginia.
9. Waiver. The failure of either party to enforce at any time or for any period of time the terms of this document shall not be construed as a waiver of such terms or the rights of such party thereafter to enforce each term contained herein.
10. Severability. If any term or condition is held void or unenforceable, it shall be severed, and every other provision shall be enforced as if the void or unenforceable term or condition had never been a part hereof. The parties agree the court is entitled to read the otherwise invalid provision as narrowly as is necessary to make it valid and enforceable. Both parties hereby agree such scope may be judicially modified accordingly in any enforcement proceeding. Both parties agree that the covenants contained herein are necessary for protection of legitimate business interests and are reasonable in scope and content.
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