Terms and Condition

 

This Agreement is made between The Company (Luxea, Inc.)  and the User , for the provision of software support and maintenance on The Software.

1. Conditions

The maintenance service is available only to the extent that:

(i) The Software is used in the form in which it was supplied and /or updated and/or upgraded by the

Company;

(ii) The Software is and has been at all times used in a proper manner and in accordance with the

instructions and manuals supplied by the Company;

(iii) The Software has not been altered, modified or tampered with by the User without the Company s

consent;

(iv) The Maintenance Fee has been paid for the current unexpired period.

 

2. Maintenance

Provided the Maintenance Fee has been paid to the Company to date, the Company  undertakes  with

The User  it will for the duration of this agreement:

(a) Make available to the User from time to time all new releases of the Software which are logical

extensions or modifications of the Software with all major enhancements  and changes of the

Software being offered at the standard release rates applying.

(b) The Company reserves the right to make Software enhancements available solely as new

chargeable product where in the Company’s reasonable opinion the existing  Software would

require a substantial re-write and the Company will offer the new chargeable product to the User,

at announced standard price minus the current annual Maintenance Fee paid.

(e) Provide advice and guidance on the use of the Software or for problem resolution (viz Section 3

Problem Management) by telephone and email access to the Company’s support staff (between the

Hours of 0900 and 1730 PST) Monday through to Friday excluding US public holidays.

 

3. Problem Management

(a)The Company will respond to written, faxed or electronically submitted problem reports (where

the problem has been caused by an error or defect in the Software) where the User has performed his

own problem determination procedures which provide to the Company a description of the detailed

circumstances in which the problem occurs, a detailed description of the effects of the problem,

providing sample data, system and program messages, and screen, file or history print-outs where

appropriate.

(b) The Company will make its best endeavors to provide such response within 48 hours of

receipt of a problem report.

(c) The Company will provide corrections where the problem results from an error in the Software

and where a circumvention is not possible.

(d) It is the User’s responsibility to make prudent provision for regular system house-keeping and file

back-up and to set up reasonable contingency procedures to mitigate the effects of any error or

defect.

(e) On-site support, if requested by the User will be provided by the Company, and will be charged at

the Company s then standard rates.

(f) The User shall maintain a written maintenance log and record each incident relating to the

Software, the date, time and explanation.

 

4. Maintenance Fee

The User undertakes with the Company it will pay:

(i) The Maintenance Fee annually in advance on the Commencement Date;

(ii) Time and materials invoices calculated on the basis of the Company’s current standard

rates submitted without deduction at the end of the month following the month of submission of

invoice;

(iii) VAT.

(iv) The Company reserves the right to vary the Annual Maintenance fee and will give the

User 120 days prior written notice of any variation.  The User shall have the right at any

time during such 120 day period to terminate this Agreement by giving 30 days notice in

writing.

(v) The Company shall be entitled to suspend performance of its obligations hereunder at any

time while the Maintenance Fee or charges are due but unpaid.

 

5. Term and Termination

(1) If the User breaks any of the terms of this agreement and does not remedy them within 30 days

notice in writing given by the Company, or if the User enters into liquidation or has a receiver

appointed, the Company will be entitled to terminate the rights granted by this agreement by notice

in writing.

(2) If the Company breaks any of the terms of the agreement and does not remedy them within 30

days after notice in writing the User will be entitled to terminate the rights granted by this

agreement by notice in writing.  Save only that a bona fide failure by the Company to provide

corrections pursuant to 3(c) above by reason of any event, including but not limited to an event of

Force Majeure shall not be deemed a default.

 

6. Governing Law

This agreement shall be governed in all respects by the laws of the State of California.

 

7. Waiver

The failure by either party to require strict performance by the other of  any of the provisions of this

agreement shall not waive or diminish the rights of that party under this agreement.