- Test Suite
- Opensphere Test Suite
- Message Detector
THIS DOCUMENT IS A LEGAL AGREEMENT (“Agreement”) BETWEEN CENTERACTIVE AG., (“We,” “Us”, “Our”, or “centeractive”) AND YOU OR THE ORGANIZATION ON WHOSE BEHALF YOU ARE UNDERTAKING THE AGREEMENT DESCRIBED BELOW (“Customer”, “You”) IN RELATION TO CENTERACTIVE SUPPORT AND SUBSCRIPTION SERVICES. BY UNDERTAKING TO RECEIVE AND/OR PAYING FOR THE SERVICES DESCRIBED BELOW (“Services”), YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, DO NOT PROCEED WITH RECEIVING THE SERVICES. THIS AGREEMENT DESCRIBES YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SERVICES.
Commencing on the purchase or renewal of a support term (“Effective Date”), We will supply the Services to Customer with respect to the Opensphere Software described in Section 2 below, for which We have granted a license to Customer pursuant to a software license agreement (the “End User License Agreement”, “EULA”) by and between centeractive and Customer and for whom the applicable support fee has been paid.
The Support Services governed by this agreement are purchased in the form of a 1 year Support Plan (“Support Plan”) for a specified number of Opensphere licenses. The size of a Support Plan is calculated in a number of seats (“Seats”), which must at any time match the number of active Opensphere licenses owned by the Customer.
An Opensphere license is active for 1 year after purchase and can be renewed for another term of 1 year as specified in the EULA. A Support Plan for a number of Seats is purchased for 1 year and can be renewed for another term of 1 year as set forth in this Support Agreement. A Support Plan can be extended with additional Seats at any time. If additionally purchased Seats will have a later termination date as the existing running Support Plan seats, centeractive will reimburse the difference in days as a credit for the purchase of a future Support Plan renewal.
To use the Support Plan for consumption of Support Services under this agreement, the Customer must at any time own an equivalent number of active Opensphere licenses as the Support Plan encompasses Seats and vice versa. The 1:1 relation between the sizing of the Support Plan in Seats and Customer’s active licenses is enforced by centeractive, on the first Support Request filed from the Customer, and regularly afterwards during the Support Services rendering, by comparing the Support Plan dimensioning in number of Seats with the Customers active Opensphere licenses. Different types of Seats, Standard or Premium, must not be combined into a single Support Plan. Support Plans with different Seat types cannot be combined for Service consumption.
All Support Services listed below apply only to the centeractive software product “Opensphere” for which they are purchased (“Software”) and do not apply to any other application, library or product developed or sold by centeractive. The support, if any, for any other such product will be governed by a separate agreement. All support features listed below are available only for the Maintenance Term plus any extensions or renewals, and such support features will become unavailable immediately upon termination of this Agreement.
Support Services are provided by centeractive in the container of Support Requests (“Support Request”, “SR”). After a Support Request has reached centeractive, centeractive tracks this SR in his systems and confirms the start of work to the customer. Until the completion of the SR, centeractive regularly updates the Customer about the status of the SR. Each SR is completed with a closing information to the Customer.
The specific service levels and other features of each Support Plan are listed in sections 2a and 2b.
Service Request Response Time
Delivery time for Support Patches or workarounds
Included Expert Services, for support plans > 4 seats
Service Request Response Time
Delivery time for Support Patches or workarounds
Included Expert Services for Support Plans > 4 seats
a. Issues and problems not directly related to or caused by the functionality of Opensphere
Support services supplied under this agreement are limited to issues and problems inherent in the functionality of the Opensphere Software. Building functionality that exceeds the functional range that the Opensphere Software consisted of, at the time the customer purchased or renewed his license, is not part of the Support Services rendered. centeractive may or may not choose at his sole discretion to undertake efforts to extend the Opensphere Software functionality in order to solve issues or problems that Customer encounters while using the Software.
Any work for building test cases and test suites, test consulting, analysis of test messages, creation, test or review of Opensphere test projects is considered to constitute “Expert Services”, that are described in section 3b.
b. Expert Services
Expert services include, but are not limited to, consulting and support for the creation of Opensphere projects, remote trouble-shooting on the Customer’s computer systems, performance tuning and Opensphere project code/messages review of the Customer’s Opensphere projects by centeractive support staff.
Expert services are not part of the support services supplied under this agreement and are ordered, scheduled and billed by centeractive separately from this agreement.
Depending on the Support Plan chosen by the Customer, a defined amount of Expert Services hours is contained in the Support Plan. Expert Services must be consumed by the Customer in minimum batches of 30 minutes. Support Plan included Expert Services must be consumed within the 1 year term of the Support Plan and do not accumulate into an future Support Plan renewal term.Terms of Support
a. Hours of Availability
Access to all web-based support features (online documentation, online help forums, and web contact form) are generally available 24 hours per day, 7 days a week, 365 days a year barring unforeseen interruptions in Internet service or planned exceptions by centeractive. Notwithstanding anything to the contrary in this Agreement, centeractive does not guarantee such availability. Any planned exceptions to the availability of support services will be communicated on the centeractive website as far in advance as possible.
centeractive support staff works within the time boundaries of Swiss business working days. On days that are not Swiss business working days such as Christmas Day, New Year’s Day, Easter, etc., the work on any support request will pause. The centeractive standard working hours are 09:00am – 05:00pm CET + 1.
b. Response Time
All response times (“Response Time”) listed in each support plan is respecting Swiss business working days; so that every day that is not an official Swiss business working day will not count towards the response time. The Response Time listed in each support plan is the elapsed time between the receipt of a Support Request via the centeractive product support web form and the time when centeractive begins the Support Service, including a verbal or written confirmation to the Customer thereof. The actual time required to fully resolve the support request, if such full resolution occurs, may be longer than the maximum response time listed.
c. Our Responsibilities
We will use commercially reasonable efforts to assist Customer to resolve problems in its use of the Software as described in Section 2. We make no guarantee that it can, or will, solve any problems with respect to the usage of Opensphere by Customer, and further disclaim any warranties above and beyond any limited warranties that may have been expressly made by Us in the EULA. This disclaim for guarantee and warranties is also in force for all third-party components (not developed by centeractive), that are part of Opensphere.
d. Customer’s Responsibilities
Customer is obliged to provide required information that helps the centeractive support team to identify the version of Opensphere (including the active license key) a Support Request is made for.
Customer must provide all information requested by the centeractive support team that helps them identify and reproduce the problem a Support Request is made for. This in particular includes configuration files, log files, screen shots and Opensphere projects but may include a range of other items.
Customer is responsible for all hardware, operating systems, network setup, network maintenance and setup and use of any file access control systems required in the support of the Software.
Customer is responsible to assist the centeractive support team in its effort to identify the cause of the reported problem. In cases where the same problem cannot be obviously reproduced in a standard centeractive test environment, Customer may be required to grant Us certain limited access rights to Customer’s proprietary computer systems in order that We may render support Services.
Customer is responsible for ensuring that its personnel have sufficient training to attain and maintain competence in the operation of the Software. If We determine, in Our sole discretion, in responding to a Customer request for Support, that the solution is provided in available media (including, but not limited to, the product documentation, tutorials and examples, websites or support forums), We may direct Customer’s personnel to the appropriate media for the solution to the problem.
If during the Services Term, a delivery from centeractive is made to Customer in order to provide a bug fixes or workarounds (“Support Patch”) within the scope of a support request of the Customer, this Support Patch may or may not be used by centeractive for or as an official release of Opensphere.
The change to the Opensphere software contained in the Support Patch that was custom made for Customer remains completely under the restrictions of the EULA of Opensphere.
“Major Release” means a generally available release of the Software that contains functional enhancements or extensions, designated by centeractive by means of a change in the digit to the left of the first decimal point (e.g. Software 3.0 >> Software 4.0). “Minor Release” means a generally available release of the Software that introduces a limited amount of new features and functionality, designated by centeractive by means of a change in the digit to the right of the decimal point (e.g. Software 3.0>>Software 3.1). “Maintenance Release” means a generally available release of the Software that typically provides maintenance corrections or fixes only, designated by centeractive by means of a change in the digit to the right of the second decimal point (e.g. Software 5.0 >> Software 5.0.1).
Our provision of the Services to Customer will commence on the Effective Date and will continue for an initial term of one (1) year (the “Initial Term”). If Customer has elected a Services plan with auto-renewals, Services will automatically renew for successive one (1) year terms (each a “Renewal Term”) unless either party gives written notice of its intent not to renew at least thirty (30) days prior to the end of the current Services Term (as hereinafter defined). If Customer has elected a Services plan without auto-renewals, the Services will automatically terminate at the end of the Initial Term, unless Customer chooses to renew Services, subject to centeractive’s written agreement (each such renewal also referred to as a “Renewal Term”).
A decision to terminate Services or otherwise not renew Services will not terminate the applicable Software licenses. “Services Term” shall mean the Initial Term as extended by each Renewal Term.
Failure to keep the same amount of Customer owned active Opensphere licenses related to the size of the Support Plan causes the Support Services to terminate immediately. If the Customer corrects the discrepancy by procuring the required Support Plan seats or Opensphere licenses, the Support Services restart and continue until the initially agreed term ends. The interrupt time from where the Support Services where terminated, because of breaching the Support Plan size to active Opensphere licenses regulation, to the restart of the Support Service because the discrepancy was corrected, is not reimbursed to the Customer. If additionally purchased Support Plan seats (used for the correction of a discrepancy between Support Plan sizing and number of active Opensphere licenses) will have a later termination date as the existing running Support Plan seats, centeractive will reimburse the difference in days as a credit for the purchase of a future Support Plan renewal.
Centeractive may update Services terms after the Initial Term with thirty (30) days advance notice to Customer of any changes deemed by centeractive to have potential adverse and/or material impacts to the Customer. Upon any renewal, centeractive’s then current terms and conditions for the Services will apply.
a. Fee Schedule
Unless otherwise agreed in writing, fees that are applicable for the Services (“Services Fees”) are payable on the Effective Date or, in the case of a renewal term, no later than the date of commencement of the applicable Renewal Term. Services Fees are non-refundable upon payment. Services Fees, including renewals, are at the then-current list price. centeractive may increase applicable Services Fees for renewals.
If Customer elects not to renew the Services or, in the case of Software that may initially be purchased without Services, if Customer elects not to purchase the Services when Customer acquires the Software license, Customer may later re-enroll or enroll, as the case may be, for the Services. If Customer purchases Services after acquiring the Software licenses, or had elected not to renew Services and later wishes to re-enroll in the Services, Customer must move to the then current latest Major Release of the Software, and must pay: (i) the applicable Services Fees for the current Services Period, and (ii) the amount of Services Fees that would have been paid for the period of time that Customer had not enrolled in the Services.
All Services Fees are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse centeractive for all federal, state, dominion, provincial, or local sales, use, personal property, excise, value added, withholding or other taxes, fees, or duties relating to the transactions contemplated by this Agreement (other than taxes on the net income of centeractive).
c. Invoicing and Late Payments
All invoices issued hereunder by centeractive are due and payable within thirty (30) days of the date of the invoice. All amounts that are not paid on time by Customer shall be subject to a late charge equal to one and one-half percent (1.5%) per month, or, if less, the maximum amount allowed by applicable law. If payment of any Fee is overdue, centeractive may also suspend support and service performance until such delinquency is corrected.
d. Non-Payment and Breach
centeractive may suspend performance of Services if Customer fails to meet its obligations as set forth under this Agreement. centeractive may terminate Services if such failure continues for thirty (30) days after centeractive’s written request to meet these obligations. centeractive may terminate the Agreement and all Services at any time if (i) it is discovered that Customer is in breach of its Software license restrictions, pursuant to Customer’s License Agreement, or (ii) Customer is in material breach of this Agreement.
We shall not be responsible to provide Services to the extent that the issue is caused by (a) Customer’s misuse, improper use, misconfiguration, alteration, or damage to the Software; (b) Customer’s use of the Software with any hardware or software not supplied or supported by Us; (c) Customer’s failure to install an update to the Software if such update would have resolved the issue; or (d) otherwise uses in a manner not in accordance with the Agreement. We shall have no responsibility for loss of or damage to Customer’s data, regardless of the cause of any such loss or damage.
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, RELATING TO PRODUCTS OR SERVICES FURNISHED TO CUSTOMER HEREUNDER. WE SPECIFICALLY DISCLAIM AND EXCLUDE ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THOSE OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT WILL BE DEEMED TO BE A WARRANTY BY US FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF US WHATSOEVER.
IN NO EVENT (i) SHALL OUR MAXIMUM LIABILITY FOR ALL DAMAGES EXCEED ACTUAL DIRECT DAMAGES CAUSED BY THE SPECIFIC PRODUCT OR SERVICE COMPLAINED OF, (ii) SHALL OUR MAXIMUM LIABILITY FOR ALL DAMAGES EXCEED THE TOTAL AMOUNT OF FEES PAID HEREUNDER, OR (iii) SHALL WE BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS AND THE LOSS, DAMAGE OR DESTRUCTION OF DATA) EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME.
No limitation as to damages for personal injury is hereby intended. Some states do not allow the exclusion or limitation of incidental or consequential damages under certain circumstances and the above exclusion or limitation may not apply.
You and Us are independent parties, and nothing in this Agreement shall be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf.
You agree to be identified as a customer of Ours and You agree that We may refer to You by name, trade name and trademark, if applicable, and may briefly describe Your business in Our marketing materials and website.
All notices given under this Agreement shall be effective upon receipt and shall be in writing and sent to the address of the other party set out at the beginning of this Agreement or to any replacement address of which the other party has been given notice in accordance with this Section. In no event shall either party be liable for any delay or failure to perform under this Agreement that is due to causes beyond the reasonable control of such party.
This document contains the entire agreement between the parties relating to the matters covered by it, superseding all other oral or written representations, understandings, proposals or other communications between the parties. This Agreement may be modified only by a written instrument signed by an authorized representative of each party. Customer may assign this Agreement only with Our prior written consent; We may freely assign this Agreement.
In the event that any provision of this Agreement is for any reason void or unenforceable in any respect, such provision shall be without effect to the extent of the voidness or unenforceability without affecting such provision in any other respect and without affecting any other provision.
No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has been or reasonably should have been discovered, or, in the case of an action for nonpayment, more than two years after the date the last payment was due.
This agreement shall be governed by and construed in accordance with Swiss law and both parties submit to the exclusive jurisdiction of the Court of the Canton of Berne, Switzerland. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this agreement shall continue in full force and effect.