AMS License Agreement
iBwave Solutions Inc.
– IMPORTANT: PLEASE READ CAREFULLY –
This Annual Maintenance and Support Agreement (“AMS Agreement”) contains the terms and conditions that governs the delivery of maintenance and support services to Customer for the Software (defined below) and is legal agreement between iBwave Solutions Inc. (“iBwave”) and Customer. If you are entering into this AMS Agreement for an entity, such as a company you work for, you represent to iBwave that you have legal authority to bind that entity.
1. DEFINITION
“Customer” means the person identified in iBwave’s invoice issued in relation to this AMS Agreement;
“iBwave Site” means https://www.ibwave.com;
“License Agreement” means the license agreement entered into by Customer and iBwave for the use of the
Software;
“Normal Business Hours” means 9:00 am to 5:00 pm from Monday to Friday in three different time zones: (a) in
the North American Eastern Time zone; (b) in the Central European Time zone; and (c) in the Asia Pacific Singapore
Standard Time zone;
“Revision” refers to as a set of features of the Software identified by a numeric code;
“Software” means the iBwave software covered by this AMS Agreement as specified in iBwave’s invoice issued to
Customer in relation to this AMS Agreement; and
“Term” means the period covered by this AMS Agreement as specified in iBwave’s invoice issued to Customer in
relation to this AMS Agreement.
2. GENERAL TERMS OF SOFTWARE MAINTENANCE
- (a) General Terms. iBwave Software services are subject to the terms of this AMS Agreement.
- (b) Limited to Software and limited number of user. Only Software is eligible for inclusion under this AMS Agreement and only for the permitted number of user(s) specified in the license agreement between iBwave and Customer in relation to the use of the Software.
- (c) Latest Revisions. Service under this AMS Agreement for Software is contingent upon Software being unmodified and properly maintained at the latest Revision supported by iBwave (or the two Revisions immediately preceding the most recent Revision for a period of no more than 12 months prior to the most recent Software Release). iBwave will not be responsible for providing Software fixes to prior Software Release if the defect is corrected in the latest Revision.
- (d) No Election. Licensee understands that if it does not elect to contract for Software maintenance and support services upon purchase of a license to use the Software or at the end of any maintenance and support agreement period, no maintenance and support including, but not limited to, enhancements, program maintenance and technical support, will be provided to Licensee. Prior to the commencement or recommencement of maintenance and support service for a Licensee which was not under a software maintenance and support agreement with iBwave or one of its authorized distributors at that time, Licensee will have to pay iBwave the fees for the period during which the Software was not covered by a support and maintenance agreement with iBwave or one of its authorized distributors.
- (e) No Breach. iBwave will have no obligation to provide Software services under this AMS Agreement if Customer is in breach of any of its obligations under this AMS Agreement or under any other agreement between Customer and iBwave or one of its authorized distributors.
3. SOFTWARE SERVICES
- 3.1 The following Software services are provided:
- (a) Technical Support. Technical support will be provided to Licensee during Normal Business Hours. Technical support is provided by phone, online chat, remote computer control or e-mail. Technical support includes support in the standard use and operation of the Software. If technical support is in relation to an error related to Software, Licensee must complete and send a report to iBwave by email at or through iBwave’s support section from iBwave customer portal at https://my.ibwave.com. Such report must contain the following information:
- (i) Customer product identification number (license serial number and Customer name);
- (ii) Customer Trouble Report identification number (if known);
- (iii) a description of the commands and procedures that reproduce the error;
- (iv) a short description of the error and its impact on Software’s performance;
- (v) a description of the hardware and software environment;
- (vi) Software name and version;
- (vii) examples of input;
- (viii) the resulting output;
- (ix) the expected output;
- (x) any special circumstances surrounding the discovery of the error (“Trouble Report”).
- (b) Software Enhancements and Modifications. Software enhancements and modifications will be made readily available to Licensee during the Term. Enhancements include releases which are generally made available at no additional cost to licensees which have a current maintenance and support agreement with iBwave or one of the authorized distributors in effect.
- (c) Transfer. License transfer services are provided to Customer during the Term but are limited to two transfers per supported user per per period of 12 months. Services related to additional transfers will be provided at additional costs.
- (a) Technical Support. Technical support will be provided to Licensee during Normal Business Hours. Technical support is provided by phone, online chat, remote computer control or e-mail. Technical support includes support in the standard use and operation of the Software. If technical support is in relation to an error related to Software, Licensee must complete and send a report to iBwave by email at or through iBwave’s support section from iBwave customer portal at https://my.ibwave.com. Such report must contain the following information:
- 3.2 iBwave will prioritize service requests as defined in Schedule A. iBwave will make a reasonable effort, as it sees fits, to provide Customer with status updates based on the priorities identified in Schedule A.
- 3.3 iBwave will make reasonable effort, as it sees fit, to provide Customer with a solution to Software problems but iBwave does not warrant results of its services with respect to Software. Nothing in this AMS Agreement shall be construed as expanding or adding to the warranty for the licensed Software in the License Agreement.
4. EXCLUDED SERVICES
- (a) The Software services provided under this AMS Agreement does not include:
- (i) training of Customer or end-users for use of Software;
- (ii) the development of Software enhancements pursuant to a Customer request whose primary purpose is the development of a Customer specific application. iBwave reserves the right to determine what constitutes an enhancement covered under this AMS Agreement;
- (iii) resolution of issues caused by third-party services providers, operating systems, hardware or other software, or networking problems. iBwave reserves the right to determine what is the source of any problem; and
- (iv) creation and modeling of components.
- (b) iBwave will have no obligation to provide Software services if the faults, failures or shortcomings in Software (or any elements thereof) arise from:
- (i) misuse, incorrect use of, tampering with or damage to Software;
- (ii) failure by Customer or its employees, contractors, agents or mandatories to follow any installation and other instructions provided by iBwave with Software, including any enhancements to Software;
- (iii) failure to maintain the necessary environmental conditions for use of Software;
- (iv) use of Software in combination with any equipment or software not provided for or approved in writing by iBwave, or any fault in any such equipment or software; or
- (v) relocation or installation of Software or alterations or internal modifications to Software by any person other than iBwave or a person acting under iBwave’s instructions
5. FEES
- (a) Payment of Fees. Customer shall pay the fees, if any, related to Software services as provided in the iBwave’s invoice(s) issued to Customer in relation to this AMS Agreement.
- (b) Non-Refundable. All fees payable pursuant to this AMS Agreement, if any, are non-transferable and nonrefundable even if Customer terminates this AMS Agreement prior to the expiration of the Term.
6. TERM AND TERMINATION
After the expiration of the term of this AMS agreement as specified in iBwave’s invoice to Customer, the AMS agreement will renew for a fee for additional terms of twelve (12) months. The AMS agreement is subject to terminate immediately upon non-payment of the fees.
7. DISCLAIMERS
The service offerings are provided ‘as is’. iBwave, its affiliates, licensors and distributors make no representations or warranties of any kind, whether express, implied, statutory or otherwise regarding the service offerings or the third party content, including any warranty that the service offerings or third party content will be uninterrupted, error free or free of harmful components, or that any content, including customer content or the third party content, will be secure or not otherwise lost or damaged. except to the extent prohibited by law, iBwave, its affiliates, licensors and distributors disclaim all warranties, including any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, non-infringement, or quiet enjoyment, and any warranties arising out of any course of dealing or usage of trade.
8. LIMITATION OF LIABILITY
- (a) Licensee agrees that iBwave’s total liability hereunder, including, but not limited to, any alleged inadequate maintenance or support by iBwave, shall not exceed the amount paid hereunder by licensee to iBwave for the 12-month period immediately preceding the occurrence giving rise to any claim by licensee that is attributable to the particular unit of software responsible for the claim.
- (b) In no event will iBwave be liable for any indirect, incidental or consequential damages for, loss of use, loss of data, loss of profit, loss of moneys related to software or any affiliated components, or liability to third parties, however caused, whether by the maintenance or support performed by iBwave personnel or otherwise even if iBwave has been advised of the possibility of such damages.
9. FORCE MAJEURE
Neither iBwave nor Customer will be liable to the other because of any delay or failure of performance, if such delay or failure arises out of causes beyond the reasonable control and without negligence of such party including, but not limited to, acts of God, fire, strike, war, riots, utility or communication failures, restrictions or orders of government agency or subdivision thereof, judicial action, unavailability or shortages of materials, failures or delays in delivery by vendors or suppliers or temporary unavailability of qualified service personnel.
10. NOTICE
- (a) To Customer. iBwave may provide any notice to Customer under this AMS Agreement by: (A) posting a notice on the iBwave Site; or (B) sending a message to the email address then associated with Customer account. Notices iBwave provides by posting on the iBwave Site will be effective upon posting and notices iBwave provides by email will be effective when iBwave send the email. It is Customer responsibility to keep Customer email address current. Customer will be deemed to have received any email sent to the email address then associated with Customer account when iBwave send the email, whether or not Customer actually receive the email.
- (b) To iBwave. Except for the report referred to Section 3.1(a), Customer may contact iBwave as follows: (i) by email at or (ii) by personal delivery, overnight courier or registered or certified mail to the iBwave Legal Dept., iBwave Solutions Inc., 8500 Bd Décarie, 3rd floor, Suite 116, Mont-Royal, Quebec, H4P 2N2, Canada. iBwave may update the facsimile number or address for notices to iBwave by posting a notice on the iBwave Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
SCHEDULE A
| Error Priority | Confirmation of receipt | Temporary solution | Final solution |
|---|---|---|---|
| Critical | 2 business hours | 1 business day | 1 week |
| Serious | 2 business hours | 2 business days | 2 weeks |
| Minor | 1 business day | 2 weeks | 8 weeks |
- Critical: Implies that Software cannot be substantially used.
- Serious: Implies that a functionality of Software is seriously affected, but can be circumvented so that Software can be used, or implies that some functionalities cannot be used although other functions remain unaffected, or implies that certain functions are somewhat disabled, give incorrect results or do not conform to agreed standards.
- Minor: Implies that there is no significant effect on the functionality or usability of Software.