These Terms and Conditions become effective upon receipt of applicable Service Fees by Zimbra, Inc. ("Zimbra") for Support Services related to valid software licenses purchased by Customer. These Terms and Conditions will govern the rights and obligations of Zimbra and Customer in relation to the Support Services described in any related Order Form(s), Statement(s) of Work, Contract(s) or other document(s) between Zimbra and Customer.
1.1 "Customer" means the person or entity whose authorized agent has ordered Support Services from Zimbra or from an authorized distributor or reseller.
1.2 "Documentation" means the official user or operator documentation for the Software published by Zimbra and generally made available to its customers, as may be updated from time to time by Zimbra. Such Documentation will identify the specific product features and functionality of the Software (and each component thereof).
1.3 "End User" means a user authorized to access or use the Product(s).
1.4 "Extended Support" means the Support Services that may be available at an additional charge on any Product that has reached its End of Availability, as defined in Section 2.2 below. Extended Support, if purchased, extends the Technical Guidance period on an annual basis. The customer must be an actively supported customer in good standing in order to enter into Extended Support. Code modifications, patches or custom development by Zimbra on products supported under an Extended Support agreement will require a separate Statement of Work and are not included in the Support Services defined in this Agreement.
1.5 "General Support" means the Support Services provided for a defined period from general availability ("GA") of a Major Release, as set forth in Zimbra's Support Services Program. General Support includes bug and security fixes and technical support services.
1.6 "Maintenance Services" means the provision of Maintenance Releases, Minor Releases, and Major Releases (each defined below), if any, to the Software, as well as corresponding Documentation, to Customer.
1.7 "Modified Code" means any modification, addition and/or development of code scripts deviating from the predefined product code tree(s)/modules developed by Zimbra for production deployment or use. Configuration of Software options which are intended to be altered is not considered a modification of the Software.
1.8 "Non-Conformity" or "Non-Conformities" means a failure in the Software to operate substantially in accordance with the applicable product documentation ("Documentation").
1.9 "Product(s)" means the software products identified by Zimbra and purchased by Customer and all updates and upgrades thereto, including error corrections, bug fixes, patches, functional enhancements, modifications, and extensions. "Products" may also include Support Services but excludes Open Source Software. Distributor may not modify or repackage the Products without Zimbra's written consent.
1.10 "Services Fees" means the fees for Support Services specified in a corresponding Zimbra or reseller invoice.
1.11 "Support Level" means the Support Services package purchased by Customer.
1.12 "Services Period" means the period for which Customer has purchased the Support Services and any subsequent renewal periods and will commence: (a) for Software Licenses for which Support Services are mandatory, on the date the applicable Software License Key(s) are made available for download; and (b) for perpetual Software Licenses for which Support Services are optional, on the date of purchase of the Support Services.
1.13 "Service Request" means any written or electronically written request for any Support Services by a Customer.
1.14 "Severity" is a measure of the impact a Non-Conformity or issue, as reported in a Service Request, has on the use of the Software, as determined by Zimbra. The following Severity levels apply to all Software:
1.15 "Software" means software offered by Zimbra to Customer, and all components delivered with the Software, including open source components.
1.16 "Support Services" means General Support, Maintenance Services, Technical Guidance, and Technical Support.
1.17 "Technical Guidance" means the Support Services provided for an additional period following General Support, as set forth in Zimbra's Support Services Program. Zimbra Support Services will continue to be available for products within the Technical Guidance period; however, there will be no new releases, bug fixes or security patches for products within Technical Guidance. This phase is for usage by customers operating in stable environments with systems that are operating under reasonably stable loads, and this period should be utilized by customers to plan and complete upgrades to a current product version that is available within General Support.
1.18 "Technical Support" means the provision of telephone or web-based technical assistance by Zimbra to Customer's technical contact(s) with respect to service requests, at the corresponding Support Level purchased by Customer.
1.19 "Third Party Products" means any software or hardware that (i) is manufactured by a party other than Zimbra and (ii) has not been incorporated into the Software by Zimbra.
1.20 "Zimbra Support Services Program" means the overview of Zimbra's Support Services that can be found on Zimbra's website at http://www.zimbra.com/support/support_overview.html, or such other site as Zimbra may decide. Zimbra's website and the Zimbra Support Services Program may be modified from time to time without prior written notice.
2.1 Provision of Support Services. Subject to the terms of this Agreement, Zimbra will, during the Services Period, provide Customer with Support Services at the applicable Support Level purchased.
2.2 End of Availability. Zimbra may, at its discretion, decide to retire Software and/or Support Services from time to time ("End of Availability"). Zimbra will post notice of End of Availability, including the last date of general commercial availability of the affected Software and the timeline for discontinuing Support Services on Zimbra's website. Zimbra will have no obligation to provide Support Services for Software that is outside of the applicable Support Services life.
2.3 Purchase Requirements.
2.5 Customer Responsibilities. Zimbra's obligations regarding Support Services are subject to the following:
3.1 Services Fee Terms.
3.2 Support Services Notice. During any Services Period, Customer will be entitled to: (a) reasonable notice from Zimbra of the discontinuance of Support Services for a particular version of the Software; and (b) reasonable notice from Zimbra as to any material changes to the key features and functionality of the Software, provided that existing material functionality of the Software will not be removed in any subsequent Updates or Upgrades to the Software, unless made technically necessary by changes to the operating system.
3.3 Advanced and Complimentary Offerings.
3.4 Payment Terms. Services Fees are exclusive of any taxes, duties, or similar charges imposed by any government. Customer will pay or reimburse Zimbra 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 Zimbra's net income). All invoices issued hereunder by Zimbra are due and payable within thirty (30) days of the date of the invoice. Amounts not paid on time are subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount allowed by applicable law. If payment of any Services Fee is overdue, Zimbra may also suspend performance until the delinquency is corrected.
4.1 Upon expiration of the initial Service Period, the Service Period shall renew automatically for successive one (1) year terms unless one party provides the other party with written notice of termination more than thirty (30) days prior to the expiration of the then current Service Period. Subsequent annual Service Fees shall be charged at Zimbra's then current standard rates. Within sixty (60) days prior to the expiration of the then current Service Period, Zimbra shall provide Customer with written notice (which may be in the form of an invoice) detailing the annual Service Fee for the subsequent renewal of such Service Period.
4.2 If Support Services have been terminated by Customer, Customer may reinstate such Support Services upon payment of the annual Service Fee in effect at the time, plus all unpaid annual Service Fees for periods subsequent to the date of termination or such alternate reinstatement fee, if any, as the parties mutually agree to accept in writing at the time of reinstatement.
4.3 Support Services may be terminated by Zimbra prior to the expiration of the Service Period upon the occurrence of any of the following events of default and the failure of Customer to cure such default within thirty (30) days after written notice of such default has been given by Zimbra to Customer: (a) if any undisputed sum of money owed by Customer is not paid when due; (b) if any breach occurs under any confidentiality provisions; or (c) if any material breach by Customer occurs as to any other term hereof or any other agreement between Zimbra and Customer.
4.4 In the event of any such default and the continuance thereof beyond the applicable cure period, Zimbra shall have the option to terminate Support Services by giving written notice of termination to Customer. Upon such termination, all amounts owed by Customer and unpaid as of the date of such termination shall become immediately due and payable to Zimbra.
4.5 If either party goes into receivership, bankruptcy, or insolvency, or makes an assignment for the benefit of creditors, or ceases to operate its business, Support Services shall be immediately terminable by the other party by written notice, but without prejudice to any rights of the terminating party hereunder, such termination to be effective as of one day prior to such event.
4.6 Support Services may be terminated by Customer prior to the expiration of the Services Period in the event of a breach by Zimbra of any warranty expressly set forth herein or a material breach by Zimbra of any other term or condition hereof and Zimbra fails to cure such breach within thirty (30) days after written notice of such breach is given by Customer to Zimbra. In the event of any such default, Customer shall have the option to terminate Support Services by giving notice of termination to Zimbra immediately and receive a refund of any prepaid Support Fees for that portion of the Services Period subsequent to such termination.
4.7 Customer's payment obligations and any other provision hereof, which by its terms is intended to so survive, shall survive any expiration or termination of Support Services for any reason.
5.1 Zimbra warrants that Support Services will be provided in a professional manner consistent with industry standards. Customer must notify Zimbra of any service deficiencies within thirty (30) days from performance of the defective services. ZIMBRA DOES NOT GUARANTEE THAT THE SOFTWARE WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT ZIMBRA WILL CORRECT ALL SOFTWARE ERRORS.
5.2 FOR ANY BREACH OF THE ABOVE WARRANTIES, CUSTOMER'S EXCLUSIVE REMEDY AND ZIMBRA'S ENTIRE LIABILITY SHALL BE: (A) THE CORRECTION OF SOFTWARE ERRORS THAT CAUSE BREACH OF THE WARRANTY; OR, IF ZIMBRA CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY END THE SERVICES PERIOD AND RECOVER A PRORATED PORTION OF ANY MAINTENANCE FEES PREPAID TO ZIMBRA; OR (B) THE REPERFORMANCE OF THE DEFICIENT SUPPORT SERVICES. TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.1 Confidentiality. Neither party will disclose any Support Services-related terms, conditions, and/or fee amounts to any third party, unless required to do so by order of any court or governmental authority of competent jurisdiction.
6.2 Binding; No Assignment. This agreement shall be binding upon and inure to the benefit of the parties and their successors, permitted assigns, and legal representatives. Customer may not assign, sublicense, or otherwise transfer the Support Services unless in conjunction with a transfer of the Software.
6.3 Language. This Agreement has been agreed to only in the English language. This English language version will control regardless of whether any translations of this Agreement have been prepared or exchanged. Customer acknowledges and represents that it has carefully reviewed this Agreement with the involvement and assistance of your employees, advisors, and/or legal counsel fluent in the English language, that it has consulted with local legal counsel and counsel competent to render advice with respect to transactions governed by the law applicable to this Agreement, that it has no questions regarding the meaning or effect of any of this Agreement's terms, and that it has obtained high-quality translations of this Agreement for use by Customer or any of Customer's team who are not fluent in the English language, with the understanding that Customer alone will bear the risk of any misunderstandings that may arise as a result of such translation. All communications in connection with this Agreement will be in the English language. Les parties ont demandé que cette convention ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.
6.4 Notices to Zimbra. Any notices to Zimbra under this Agreement must be in writing and either delivered in person, sent by email, or first class mail (if within the United States), or sent by air courier to the address set forth below. Notices will be considered to have been given at the time of actual delivery in person, five (5) business days after deposit in the mail, or two business (2) days after delivery to an air courier service or confirmation of email receipt.
|Attn:||Amy Howell, General Counsel|
|Address:||3000 Internet Blvd., Suite 200|
|Address:||Frisco, Texas 75034|
|Email:||email@example.com and firstname.lastname@example.org|
6.5 Choice of law; Jurisdiction; Jury Waiver. This agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to its choice of law, and all applicable laws, regulations, treaties, or ordinances of the U.S. This agreement shall be interpreted in accordance with the commonly understood meaning of the words and phrases in the U.S. All judicial proceedings regarding any dispute and/or controversy relating to Maintenance shall be initiated in the State or Federal courts sitting in Texas, and each party irrevocably submits to the jurisdiction and venue of any such court in any such proceeding. BOTH PARTIES WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
6.6 Attorneys' Fees. In the event of any legal action, arbitration, or proceeding brought by either party against the other arising out of this agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in such action and such amount shall be included in any judgment or arbitration decision rendered in such proceeding.
6.7 Severability. If any of the parties' obligations under this agreement are found by a court of competent jurisdiction to be illegal or unenforceable in any respect, such illegality or unenforceability will be interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law but shall not affect the other provisions of this agreement, all of which shall remain enforceable in accordance with their terms.
6.8 No waiver. The parties shall not be deemed to waive any of their rights or remedies under this agreement unless such waiver is in writing and signed by the party to be bound. No delay or omission on the part of either party in exercising any right or remedy under this agreement will be construed to be a waiver thereof. A waiver of any right or remedy on any one occasion shall not be construed as a bar to or waiver of such right or remedy or any other right or remedy on any future occasion.
6.9 Data Protection. Customer acknowledges that correspondence and log files generated in conjunction with a request for Support Services may contain sensitive, confidential, or personal information. Customer is solely responsible for taking the steps it considers necessary to protect the data, including obfuscating the logs or otherwise guarding the information before sending it to Zimbra.
6.10 Force Majeure. In no event shall a party be liable to the other party for any delay or failure to perform its obligations under this agreement (other than a failure to pay amounts owed), which delay or failure to perform is attributable to an event of force majeure or other causes beyond the control of such party and without the fault or negligence of the party claiming excusable delay.
6.11 Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular and the singular the plural; (b) "or" has the inclusive meaning frequently identified with the phrase "and/or;" and (c) "including" has the inclusive meaning frequently identified with the phrase "including but not limited to" or "including without limitation." Any reference in this Agreement to any statue, rule, regulation, or agreement, including this Agreement, will be deemed to include such statute, rule, regulation, or agreement as it may be modified, varied, amended, or supplemented from time to time.
6.12 Modifications to the Agreement. Zimbra may modify this Agreement (including anything in Zimbra's Support Services Program) at any time by posting a revised version on the Zimbra website. The modified terms will become effective upon posting. By continuing to use the Support Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Zimbra website regularly for modifications to this Agreement. Zimbra last modified this Agreement on the date listed at the beginning of this Agreement.
6.13 Entire Agreement. This agreement supersedes and terminates all prior written and oral agreements, proposals, promises, and representations of the parties with respect to the services covered by this agreement. The terms of this agreement shall not be amended or changed by the terms of any purchase order or acknowledgement of Customer, even though Zimbra may have accepted or signed such document. Any terms or conditions in any amendment, addenda, or written order form that vary from, or add to, the terms and conditions of this agreement shall be of no force and effect. This agreement has been written in the English language and each party waives any rights that it may have under applicable law to be written in the language of the country of that party's domicile or incorporation.