T&C 1 Technical Support Terms and Conditions
CLOACINA CORPORATION AND/OR ITS AFFILIATES, IS WILLING TO PROVIDE TECHNICAL SUPPORT AS DEFINED BELOW TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY (REFERENCED BELOW AS “YOU” OR “YOUR”) TO SUPPORT YOUR USE OF CLOACINA provided SOFTWARE AND/OR HARDWARE AND/OR ONLINE SERVICES ONLY ON THE CONDITION THAT YOU ACCEPT THESE TECHNICAL SUPPORT TERMS AND CONDITIONS. READ THESE SUPPORT TERMS CAREFULLY BEFORE REQUESTING TECHNICAL SUPPORT. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND CLOACINA. BY USING TECHNICAL SUPPORT, YOU AGREE TO THESE SUPPORT TERMS. IF YOU DO NOT AGREE TO THE SUPPORT TERMS YOU WILL NOT BE ABLE TO RECEIVE TECHNICAL SUPPORT FROM CLOACINA.
1.1 Client Obligations
1.1.1 Eligibility. To remain eligible for Technical Support, You must be using a currently supported version of the Product. Cloacina cannot provide Technical Support if You do not notify Cloacina of a Problem during the support term.
1.1.2 Designated Contacts. You must identify to Cloacina Your Designated Contacts to serve as Your primary points of contact for all Product and any related Technical Support issues, and such personnel will cooperate with Cloacina to diagnose and resolve the Problem giving rise to the Technical Support Case. You are permitted to designate third-party consultants as Designated Contacts, provided that; You assume full responsibility for their actions in connection with these Support Terms.
1.1.3 Technical Data. You shall provide reasonable assistance to Cloacina when receiving Technical Support, which may include providing data from the Product, operating equipment onsite manually, calibrating equipment, verifying functionality of equipment visually or such other acts as may be reasonably required by Cloacina to provide Technical Support.
1.1.4 Supported Configuration. You shall operate the Product in an environment that solely consists of supported operating systems, hardware platforms, software solutions and applications, firmware levels, databases, devices, device drivers, and Cloacina custom-developed scripts and other configuration elements, as defined in Your Documentation, or that Cloacina has otherwise approved in writing, as working in conjunction with and/or supporting the Product.
1.1.5 Work Environment. If the Technical Support includes on-site support, You must provide to Cloacina’s Technical Support personnel who perform such on-site support the following: Site Location access; access to appropriate knowledgeable personnel; a healthy and safe working environment, including light, heat, electrical outlets and ventilation; adequate work space; and access to telephones with outside lines; as Cloacina may reasonably determine are necessary to perform Technical Support. You will provide all necessary authorizations for remote access, and maintaining sufficient equipment and technology to facilitate Cloacina’s remote diagnostic capability and provision of Technical Support.
1.1.6 Data and Recovery. You are solely responsible for management of Your data back-up, data recovery, and disaster recovery measures. Cloacina will not be responsible or held liable for Your internal processes and procedures to ensure the protection, loss, confidentiality, or security of Your data or information. You will maintain an unmodified copy of all Product and all related Documentation, archival files and configuration files necessary to reinstall, reconfigure or reconstruct any lost, altered or damaged Product. Cloacina and its authorized service representatives will not be liable for any claims and liabilities relating to or arising out this section. It is recommended that you save a hard file of the operating system/runtime prior to filling out a technical support ticket with Cloacina.
T&C 2 GENERAL SUPPORT:
2.1.1 Cloacina provides Technical Support to address Problems where Your Product does not substantially conform to its Documentation where such Product is used in accordance with its Documentation and in a supported configuration. If You report a Problem and demonstrate a non-conformance with Product specifications that can be duplicated by Cloacina and that is not addressed by an Update, Cloacina will aim to resolve such non-conformance. Such Resolution may include a Workaround or other temporary or permanent fix. Cloacina does not represent or warrant that all non-conformities of the Product will be corrected. Cloacina reserves the right to incorporate any Resolutions provided to You into future Product revisions, in its sole discretion
3.1.1 Cloacina is not responsible for any delay or inability to provide Technical Support due to delays You cause or which are caused by network, system or telephone line problems, or by outages, including, but not limited to, power failure or surge, unsuitable physical or operating environment, improper maintenance by You or others, or failure caused by components or technology that Cloacina did not supply, or denials of service or any events outside of Cloacina’s reasonable control.
4 LIMITATION OF LIABILITY:
4.1.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THESE SUPPORT TERMS FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL CLOACINA OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS BE LIABLE TO YOU FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THESE SUPPORT TERMS, EVEN IF CLOACINA OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS HAVE BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL CLOACINA’S LIABILITY EXCEED THE FEES YOU PAID FOR THE TECHNICAL SUPPORT GIVING RISE TO THE CLAIM. NOTHING IN THESE SUPPORT TERMS SHALL OPERATE TO EXCLUDE OR LIMIT CLOACINA’S LIABILITY TO YOU FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW
5 WARRANTIES: No Warranties; No High Risk Use. TO THE MAXIMUM EXTENT PERMITTED BY LAW CLOACINA MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND CONCERNING SUPPORT OR ANY SUPPORT BENEFIT EITHER, EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLOACINA DOES NOT SPECIFICALLY WARRANT THAT.
5.1.1 (A) SUPPORT BY CLOACINA WILL ENSURE ACCESS TO AND USE OF COVERED SOFTWARE OR COVERED SERVICES WILL BE ERROR FREE OR UNINTERRUPTED;
5.1.2 (B) ERRORS WILL BE CORRECTED SUCCESSFULLY BY CLOACINA;
5.1.3 (C) CLOACINA WILL RESOLVE ANY SUPPORT REQUEST; OR
5.1.4 (D) THAT ANY WORKAROUND, GUIDANCE OR SOLUTION PROPOSED IN RELATION TO A SUPPORT REQUEST WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS.
5.1.5 NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY. NO HIGH RISK USE. NONE OF THE SUPPORT BENEFITS ARE FAULT-TOLERANT, NOR ARE THEY GUARANTEED TO BE ERROR FREE OR TO OPERATE UNINTERRUPTED, NOR ARE THEY LICENSED OR OTHERWISE MADE AVAILABLE TO YOU FOR HIGH RISK USE. “HIGH RISK USE” EXISTS WHEN IT IS REASONABLY FORESEEABLE THAT FAILURE OF ANY SUPPORT BENEFIT USED BY YOU COULD CAUSE DEATH OR SERIOUS BODILY INJURY OF ANY PERSON OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
6 Governing Laws and Venue:
6.1.1 The terms of this agreement and all rights and obligations hereunder shall be governed by the laws The State of California. Any petitions filed against Cloacina shall be filed, heard, tried and decided in The San Luis Obispo County Superior Court. In international transactions, the rights and obligations of the parties hereunder shall not be governed by the 1980 United Nations Convention on Contracts for the International Sale of Goods.
6.1.3 To the fullest extent permitted by law, the Client agrees to indemnify, defend and hold harmless Cloacina and any of its respective officers, agents, employees, affiliates, parents and subsidiaries from and against any and all liability claims, loss, damage or costs (Including but not limited to attorney’s fees, loss of profit, business interruption or other special or consequential damages, damages relating to property damage, bodily injury or damages relating to wrongful death) arising out of or relating to the installation, operation, maintenance, use or possession of any Cloacina-provided equipment. This indemnity provision also applies to any claims asserted against Cloacina based upon strict or product liability causes of action. In furtherance of, but not in limitation to the indemnity provisions in this document, the Client expressly and specifically agrees that the foregoing obligation to indemnify shall not be in any way affected or diminished by any statutory or constitutional imitation of liability or immunity Client enjoys from suits by its own employees. The duty to indemnify will continue in full force indefinitely from the date of execution of this document and is not diminished by cancelation or early termination of the agreement if Cloacina provides any equipment to the Client.
6.1.5 By executing this technical support ticket you agree to pay Cloacina in accordance with the current schedule of fees for Cloacina services. At a minimum you agree to pay Cloacina $130/hr for all remote technical support provided, with a 1 hour minimum. Complete Schedule of Fees are available for review, please contact Cloacina to review the current schedule of fees.