HermesSoft Company ("HermesSoft") and the person ("Customer") ordering the HermesSoft Expert Support Program ("Support Program") hereby agree that the following terms and conditions shall govern the delivery of support services by HermesSoft to Customer under the Support Program with respect to listed OS and products ("Software"). Subject to Customer’s termination right as set forth in Section 4 below, ordering the Support Program indicates Customer’s acceptance of the terms and conditions contained in this Service Agreement. This Service Agreement is effective upon receipt and acceptance of Customer's order by HermesSoft ("Commencement Date").
1. Services. HermesSoft will provide Customer the support services ("Support Services") described at www.hermessoft.com (the "HermesSOFT Site"). Such descriptions, as may be amended from time to time, are deemed to be part of this Service Agreement.
2. Restrictions. HermesSoft may limit or terminate the Support Services to, or may elect not to renew the Service Agreement of, any Customer who uses the Support Services in an excessive, abusive or fraudulent manner. Support Services will be provided to a single registered user only. Resale, assignment or transfer of support rights is strictly prohibited, and will be grounds for termination or non-renewal of the Service Agreement. The Support Program is not available to consultants, technical support agents, software developers or other parties using HermesSoft Expert Support on behalf of multiple clients or users.
3. Exclusions. HermesSoft shall not be required to provide any Support Services relating to problems or issues arising out of or from (i) Customer’s use of the Software in a manner for which they were not designed, (ii) damage to the media on which the Software are provided or to the computer on which the Software are installed, (iii) Customer’s negligence, misuse or modification of the Software, or (iv) versions of Software other than the most recent version (e.g., 5.x) and one version back (e.g., 4.x), provided that HermesSoft shall also not be required to provide any Support Services for Software that are no longer listed on the HermesSOFT Site/support as supported products.
4. Term and Termination. Absent early termination for the reasons stated herein, this Service Agreement shall have a term of one year from the Commencement Date. The Service Agreement shall terminate immediately upon nonpayment of the fees for the Support Services ordered. HermesSoft reserves the right to cancel this Service Agreement at any time or change the fees, terms, conditions, support features, procedures, pricing and support availability upon thirty (30) days notice. Customer may, by giving fifteen (15) days written notice to HermesSoft, terminate the Agreement on the effective date of any such change. In the absence of such notice of termination, the change will be deemed accepted by Customer.
5. Warranty and Disclaimer. HermesSoft will use reasonable commercial efforts to provide the Support Services under this Service Agreement in a professional manner, but HermesSoft cannot guarantee that every question or problem raised by Customer will be resolved. Nothing in this Service Agreement shall be construed as expanding or adding to the warranty for the Software set forth in the End User License Agreement that accompanies such Software. EXCEPT FOR THIS EXPRESS LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO CUSTOMER IN ITS JURISDICTION, HERMESSOFT MAKES, AND CUSTOMER RECEIVES, NO WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATED TO OR ARISING IN ANY WAY OUT OF THIS SERVICE AGREEMENT OR THE PROVISION OF MATERIALS OR SERVICES UNDER THIS SERVICE AGREEMENT. HERMESSOFT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY. HERMESSOFT’S LIABILITY UNDER THIS SERVICE AGREEMENT IS LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SUPPORT SERVICES ORDERED BY CUSTOMER. IN NO EVENT SHALL HERMESSOFT HAVE ANY LIABILITY FOR ANY SPECIAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF EQUIPMENT OR FACILITIES, OR INTERRUPTION OF BUSINESS, ARISING IN ANY WAY OUT OF THIS SERVICE AGREEMENT UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT HERMESSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7. Additions. Any additional services added to this Service Agreement by written notice to Customer will be governed by the terms of this Service Agreement.
8. General. This Service Agreement may not be transferred by Customer. This Service Agreement supersedes all other written and oral proposals, purchase orders, prior agreements, and other communications between Customer and HermesSoft concerning the subject matter of this Service Agreement and constitutes the entire agreement between HermesSoft and Customer regarding provision of Support Services.