THIS MAINTENANCE SERVICES ADDENDUM is subject to and made a part of the Agreement. Capitalized terms used and not defined in this Addendum have the meanings assigned to them in the Definitions Addendum at https://www.zolldata.com/legal
1. Applicability and Fees.
1.1. Software Not Subject to a Subscription License. For any Software not subject to a Subscription License, the maintenance services provided by ZOLL in accordance with this Addendum (the “Maintenance Services”) are without charge for any applicable Software Warranty Period and, after such period, are 20% of the then-current list price for such Software, excluding discounts, or the total combined Professional Services Fees for customization of such Software; provided, that ZOLL shall have the right to increase Maintenance Fees by up to 15% each year (the “Maintenance Fees”). If Customer elects to procure Maintenance Services from ZOLL in an Order for any such Software, then (i) 60 days following the commencement of any applicable Software Warranty Period for such Software, ZOLL will invoice Customer for a prorated one quarter of the Maintenance Fees for such Software to begin on the date of expiration of such Software Warranty Period and, for other such Software, ZOLL will invoice Customer promptly for such Maintenance Fees to begin on the Deployment Effective Date for such Software; (ii) ZOLL will invoice Customer on a quarterly basis thereafter in advance for all further Maintenance Fees for such Software unless Customer notifies ZOLL at least 30 days in advance of the cancellation of such Maintenance Services; and (iii) if Customer elects to discontinue such Maintenance Services at any time or ZOLL discontinues Maintenance Services as a result of Customer's failure to pay Maintenance Fees (the "Discontinuance"), and subsequently elects to reinstate such Maintenance Services and receive the applicable subsequent release of such Software that ZOLL generally makes available for licensees of such Software at no additional license fee other than shipping and handling charges, provided Customer has paid the Maintenance Fees for such Software for the relevant time period, which shall not include any release, option or future product that ZOLL licenses separately (”Updates”) and new releases and pays any past due Maintenance Fees (the "Reinstatement"), Customer must pay the Maintenance Fees such Software applicable to the time period between Discontinuance and Reinstatement; (iv) ZOLL will have no obligation to provide such Maintenance Services to Customer if any payment for them is past due; and (v) all Maintenance Fees shall be non-refundable; provided, that in the event of a Discontinuance before the end of a quarter then, unless an Early Termination Fee is payable as provided in the Agreement, ZOLL shall refund the amount of prepaid Maintenance Fees attributable to the period beginning on the date of Discontinuance and ending on the last day of such quarter.
1.2. Software Subject to a Subscription License. For any Software that is subject to a Subscription License and for ASP Services, Customer need not elect to procure Maintenance Services and ZOLL shall provide Maintenance Services for such Software and ASP Services without any additional Fees, except that (i) Customer shall pay Expenses as provided in this Agreement and (ii) ZOLL will have no obligation to provide such Maintenance Services if any payment for such Software or ASP Services is past due.
1.3. Third Parties. Maintenance fees for third party software and services are set by the party that owns such software.
2. Maintenance Services.
2.1. Emergency Support. ZOLL shall provide telephone support to the contact person or group designated by Customer and agreed to by ZOLL who will coordinate all Maintenance Services requests by Customer (the “Designated Interface”) for 24 hours a day, 7 days a week, to address a reproducible defect in the current version of Software for which Customer has paid the then-current Fees (“Supported Software”) when operated with hardware and in the operating system platform that ZOLL supports for use with the Supported Software in accordance with the Documentation or, for ASP Services, a browser and other technical environment that supports the use of the ASP Services in accordance with the Instructions (“Supported Environment”), that causes the Supported Software not to operate substantially in accordance with the Documentation for such Supported Software or the ASP Services that causes the ASP Services not to operate substantially in accordance with the Instructions for such ASP Services (“Errors”) and prevents Customer from using a Software or ASP Services for a purpose for which Customer user has an immediate and material need (an “Emergency”). For example, and without limiting the foregoing, the inability of all users to log in as a result of an Error in such Software or ASP Services constitutes an Emergency, but the inability of a single user to log in as a result of such an Error does not constitute an Emergency because is an acceptable workaround is available (another user may log in).
2.2. Technical Support. ZOLL shall provide telephone support to the Designated Interface during 6 a.m. to 6 p.m. Mountain Time, Monday to Friday, excluding ZOLL holidays (“Business Hours”) to address all other Errors relating to any Supported Software licensed by Customer or ASP Services provided to Customer. Such telephone support will include (i) clarification of functions and features of the Supported Software; (ii) clarification of the Documentation; (iii) guidance in operation of the Supported Software; (iv) assistance in identifying and verifying the causes of suspected Errors in the Supported Software; and (v) advice on bypassing identified Errors in the Supported Software, if reasonably possible. Problems with the ASP Services of Software can be logged by Customer through the ZOLL support email at email@example.com or through the ZOLL’s call center at 800.663.3911. As a result, an incident report (a “Support Ticket”) will be created and escalated as appropriate. Responses to such reporting shall be provided at a minimum within twenty-four (24) hours during Business Hours.
2.3. Resolution. ZOLL shall use commercially reasonable efforts to provide a modification or workaround for the Supported Program or ASP Services to resolve an Error ("Resolution"). ZOLL will acknowledge each Customer report of an Error by written notice, in electronic form, setting forth a service request number for use by Customer and ZOLL in all correspondence relating to such Error to track the Error until a Resolution for it exists.
2.4. Travel and Other Expenses. Maintenance Services provided hereunder shall be provided at ZOLL’s principal place of business, or at Customer’s location at ZOLL’s expense, as determined in ZOLL’s sole discretion. Should Customer request that ZOLL send personnel to Customer’s location to resolve any Error in the Supported Software, ZOLL may charge Customer for reasonable travel, meals and lodging expenses. Under such circumstances, ZOLL may also charge Customer for actual costs for supplies and other expenses reasonably incurred by ZOLL, which are not of the sort normally provided or covered by ZOLL, provided that Customer has approved in advance the purchase of such supplies and the incurrence of such other expenses. If Customer so requires, ZOLL shall submit written evidence of each cost and expense to Customer prior to receiving reimbursement of such costs and expenses.
2.5. Exceptions. ZOLL shall have no responsibility under this Agreement to fix any Errors arising out of or related to the following causes: (a) Customer’s modification or combination of the Supported Software (in whole or in part), (b) use of the Supported Software in an environment other than a Supported Environment; or (c) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure or fluctuation of electric power, air conditioning or humidity control; failure of media not furnished by ZOLL; excessive heating; fire and smoke damage; operation of the Supported Software with other media and hardware, software or telecommunication interfaces; or causes other than ordinary use. ZOLL need not provide any Maintenance Services if Customer has not paid applicable Maintenance Fees for such Maintenance Services. Any corrections performed by ZOLL for such Errors shall be made, in ZOLL’s reasonable discretion, at ZOLL’s then-current time and material charges. ZOLL will provide the Maintenance Services only for the most current release and the one immediately preceding major release of any Software. Notwithstanding anything to the contrary in the Agreement, (i) ZOLL may cease providing Maintenance Services for any ASP Services or Software upon at least six (6) months advance notice to Customer of such cessation and (ii) Maintenance Services do not cover Third Party Products or Services.
3. Updates. ZOLL may provide Updates for any Supported Software as and when developed for general release in ZOLL’s sole discretion. Each Update will consist of a set of programs and files and will be accompanied by Documentation adequate to inform Customer of the material problems resolved and any material operational differences resulting from installing the Update. Unless otherwise agreed by the parties, Customer will be solely responsible for the installation of any Update for any Supported Software licensed by Customer in accordance with the Documentation and the installation instructions provided by ZOLL to Customer for such Update. If Customer requests that ZOLL install any such Update, such Professional Services shall be subject to an SOW executed by the parties.
4. Warranty. Subject to Customer’s payment of the Fees, ZOLL warrants that any Maintenance Services provided to Customer will be performed with due care in a professional and workmanlike manner. ZOLL shall, as its sole obligation and Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 5, perform again the Maintenance Services that gave rise to the breach or, at ZOLL’s option, refund any Maintenance Fees paid by Customer for the Maintenance Services which gave rise to the breach. The availability of any remedy for a breach of the warranty set forth in this Section 4 is conditioned upon Customer notifying ZOLL in writing of such breach within 30 days following performance of the defective Maintenance Services, specifying the breach in reasonable detail. The warranty set forth in this Section 4 is qualified in its entirety by, and subject to, Section 3 of the Terms and Conditions.
5. Customer Responsibilities. Only individuals who have been trained with respect to the Products shall serve as the Designated Interface with ZOLL for the Maintenance Services provided hereunder. Customer shall provide ZOLL with access to Customer’s personnel and its equipment. This access must include the ability to remotely access the equipment on which the Supported Software are operating and to obtain the same access to the equipment as those of Customer’s employees having the highest privilege or clearance level. ZOLL will inform Customer of the specifications of the remote access methods available and associated software needed, and Customer will be responsible for the costs and use of said equipment.