Aurea Email Marketing: Maintenance and Support Terms and Conditions

These Maintenance and Support Terms and Conditions (“Conditions”) apply to and are incorporated by reference into the ordering document (the “Quote”) made by and between the Service Provider (as identified on the Quote) and the Customer (as identified on the Quote). These Conditions, together with the Quote will constitute the “Support Agreement.” Capitalized terms used but not defined have the meanings assigned to them in the Quote.

Service Provider and Customer hereby agree as follows:

  1. DEFINITIONS
    1. “Basic Support” means the level of Maintenance and Support as set out in Section 3.
    2. “Issue” means a failure of the Software to substantially conform to the functional specifications set forth in the Documentation (as defined in the Software License Agreement entered into between Customer and Service Provider).
    3. “Maintenance and Support” means the maintenance and support services to be provided by the Service Provider to the Customer in accordance with this Support Agreement.
    4. “Platinum Program” means the level of Maintenance and Support as set out in Section 4.
    5. “Response Time” means the time period in which the assigned support resource shall provide Customer with an initial technical response as a result of an Issue reported by Customer.
    6. “Service Level” means the specific level of Maintenance and Support (Basic Support or Platinum Program) that has been selected by the Customer on the Quote.
    7. “Software” means certain software program(s) licensed to Customer by Service Provider pursuant to a separate, previously executed, license/ subscription agreement (the “Software License Agreement”), for which Maintenance and Support services are being provided hereunder. If the Quote references specific software program(s), then “Software” shall be limited to only those specific software program(s) listed therein. If the Quote does not reference specific software program(s), then “Software” shall mean all software program(s) licensed by Service Provider to Customer pursuant to the Software License Agreement, and for which Service Provider continues to provide Maintenance and Support during the Term to its general customer base.
    8. “Term” means the number of years of Maintenance and Support services purchased by Customer pursuant to the Quote.
    9. “Updates” means a subsequent release of the Software that Service Provider makes generally available to its supported customers.
    10. “Workaround” means a modification or “patch” for a particular version of the Software, which may be of a temporary or interim nature, to help cure or avoid an Issue.
  2. MAINTENANCE AND SUPPORT SERVICES
    In consideration of the Customer’s payment of the applicable fees related to the Service Level, Service Provider agrees to provide the Service Level of Maintenance and Support selected by the Customer on the Quote, for the duration of the Term, and solely for the Software.
  3. BASIC SUPPORT
    Basic Support includes the program features that Service Provider makes generally available to its Basic Support customer base during the applicable Term as follows:

    1. Basic Support Level.
      • Annual Software Maintenance. Service Provider shall use commercially reasonable efforts to maintain the Software so that it operates without Issues.
      • Updates. Service Provider shall supply Customer with Updates for the Software that are released to the general customer base during the Term. Such Updates shall be provided to Customer at no additional charge, other than any applicable shipping charges. Except for Updates, Customer shall not be entitled to any other software as part of any level of Maintenance and Support. Updates may be delivered via physical media or made available electronically, at Service Provider’s discretion. All Updates and Workarounds are licensed pursuant to and subject to the terms and conditions of the Software License Agreement.
      • “Support” Defined. Support shall consist of assistance to customers via the Internet and telephone with respect to use of the Software and to resolve Issues. Support cases are tracked and managed through access to a Customer support portalhttp://www.aurea.com/support/  and any successor or related locations designated by Service Provider as may be updated by Service Provider from time to time (the “Customer Support Portal”). Support will be available from 8:00 am to 6:00 pm in the Customer’s local time zone, Monday through Friday, excluding local holidays.
      • Submission of Issues for Resolution. Customer shall submit to Service Provider via the Customer Support Portal and provide all relevant data requested, including, but not limited to: (a) Customer contact information; (b) Software version; and (c) a complete description of the Issue and Customer Software environment. Customer shall also provide access to the Customer Software environment so the Issue may be replicated.
      • Problem Definition. Customer shall provide to Service Provider: (a) error messages and indications that Customer received when the Issue occurred; (b) description of what the user was doing when the Issue occurred; (c) steps Customer has taken to reproduce the Issue; (d) steps Customer took to solve the Issue; and (e) any relevant log files.
    2. Severity Classification and Response Time Goals. Issues are classified according to severity of impact on the use of the Software, according to the chart below. All disputes regarding severity classification will be resolved by Service Provider in its sole discretion.Basic Support Response Time Goals
      Severity

      Impact

      Response Time goal

      1 Production system is down impacting all applications and associated business systems. No Workaround exists. 4 business hours

      (by phone or via the Customer Support Portal)

      2 Production system performance is degraded, but operational; Issue affects essential functions and no Workaround exists; or Issue is blocking critical systems tests or deliverables. 1 business day
      3 General product questions relating to development, feature issues, or documentation. 2 business days
  4. PLATINUM PROGRAM.
    1. Platinum Program. Platinum Program includes the features that Service Provider makes generally available to its Platinum Program customer base during the applicable Term.
    2. Electing Platinum Program. Customer may upgrade to the Platinum Program at any time provided that Customer pays additional associated fees indicated on the applicable Quote. Such fees may be prorated if the upgrade is made any time during the then-current Term. However, Customer may only downgrade from Platinum Program to Basic Support at the time of renewal. To downgrade from the Platinum Program to Basic Support, Customer must provide written notice to Service Provider at least sixty (60) days prior to the expiration of the then-current Term.
    3. Severity Classification and Response Time Goals. Issues are classified according to severity of impact on the use of the Application, according to the chart below.  All disputes regarding severity classification will be resolved by Service Provider in its sole discretion.Platinum Program Response Time Goals
      Severity

      Impact

      Response Time goal

      1 Production system is down impacting all applications and associated business systems. No Workaround exists. immediate (by phone)

      1 hour (via the Customer Support Portal)

      2 Production system performance is degraded, but operational; Issue affects essential functions and no Workaround exists; or Issue is blocking critical systems tests or deliverables. 4 hours
      3 General product questions relating to development, feature issues, or documentation. next business day
  5. ADDITIONAL SERVICES.
    1. Coverage. For an additional fee, Customer may elect to receive certain additional services. Fees related to such services will be described in a statement of work signed by both parties and will be provided by Service Provider at the fee stated therein, or if no fee is stated, at Service Provider’s standard rate for equivalent services in effect at the time the statement of work is executed. For clarity, if any services are explicitly included in the Maintenance and Support plan selected by Customer, then such services do not require payment of additional fees.
      • On-Site Services. For an additional fee, Customer may elect to receive on-site support and maintenance.
      • Training. For an additional fee, Customer may elect to receive training with respect to the Software.
      • Consulting.For an additional fee, Customer may elect to receive consulting services related to problems caused by issues other than the Software.
    2. Out of Pocket Expenses. Customer shall pay all reasonable out-of-pocket expenses incurred by Service Provider, including costs for meals, lodging and travel related to additional support services.
  6. OBLIGATIONS OF CUSTOMER.
    1. Support Contact. All communications relating to Maintenance and Support shall be supervised, coordinated, and undertaken by no more than two (2) designated contact persons per Customer work-shift who shall act as a point of contact between Customer and Service Provider. Each contact must possess or, at Customer’s expense, acquire the necessary expertise and training to diagnose and resolve Issues with direction by Service Provider.
    2. Pre-Call Procedures. Prior to requesting support from Service Provider, Customer shall comply with all published operating and troubleshooting procedures for the Software. If such efforts are unsuccessful in eliminating the Issue, Customer shall then promptly notify Service Provider of the Issue. Customer shall confirm that the following conditions are true before contacting Service Provider for support:
      • Reproduction. If possible, the situation giving rise to the Issue is reproducible in a single supported Software;
      • Support Representative. The Customer contact has the technical knowledge regarding the Software and any other software or hardware systems involved, and in the facts and circumstances surrounding the issue;
      • Access. The entire system, including all software and hardware, is available to the Customer contact without limit during any communication with Service Provider support personnel; and
      • Availability. If requested and required, Customer must make available to Service Provider a technical representative during support hours of coverage for all Issues. Service Provider reserves the right to suspend all work relating to any Issues during periods for which the Customer does not provide access to a technical representative or requested data to continue to work on the Issue.
    3. Remote Connection. If appropriate, Customer will cooperate with Service Provider to allow and enable Service Provider to perform support services via remote connection using standard, commercially available remote control software. Customer shall be solely responsible for instituting and maintaining proper security safeguards to protect Customer’s systems and data.
    4. Updates. Customer acknowledges and agrees that Updates provided by Service Provider pursuant to this Support Agreement may, in Service Provider’s sole discretion, require additional training of Customer’s personnel. Such training shall be performed in accordance with Section 5.
    5. Disclaimer. Service Provider shall not be responsible for providing Maintenance and Support, Updates, or any other maintenance and support to the extent that Issues arise because Customer (a) misuses, improperly uses, misconfigures, alters, or damages the Software; (b) uses the Software with any hardware or software not supplied or supported by Service Provider; (c) uses the Software at any unauthorized location; (d) fails to install an Update to the Software if such Update would have resolved the Issue; or (e) otherwise uses the Software in a manner not in accordance with the Support Agreement or Software License Agreement.
  7. LIMITATIONS ON MAINTENANCE AND SUPPORT SERVICES
    1. Non-Compliance Problems. If Customer notifies Service Provider of a problem and Service Provider correctly determines that the problem is due to Customer’s incorrect or improper use of the Software or failure to comply with the terms of this Support Agreement or the Software License Agreement (as opposed to an Issue with the Software), the resolution of such problem is not covered by Maintenance and Support. However, Service Provider may provide consulting services to correct the problem pursuant to Section 5.
    2. Release Support Period. Service Provider shall support a release of the Software if such release was made generally available during the previous twenty-four (24) months. Other versions of the Software will not be supported unless Service Provider and Customer mutually agree otherwise in writing.
    3. Third Party Products. Maintenance and Support does not cover the operation or use of third-party hardware or software or Software modified by any party other than Service Provider or used in any manner in violation of the Software License Agreement or inconsistent with the Documentation.
    4. Data. Customer is encouraged to backup data often and to always do so prior to installing any Update. Service Provider shall have no responsibility for loss of or damage to Customer’s data, regardless of the cause of any such loss or damage.
  8. TERM AND TERMINATION.
    1. Term. The Maintenance and Support services Term shall be as indicated in the Quote. For clarity, the Quote will provide the Customer with an option to select a single year or multi-year period of coverage; upon selecting such period of coverage, the period selected shall constitute the Term and Customer shall be contractually obligated to pay the Maintenance Fees for the full length of the Term and, unless terminated in accordance with the terms herein prior to the end date of the Term, Service Provider shall be obligated to provide the selected Service Level to the Customer for the Term. Maintenance and Support services WILL automatically renew for successive terms equal to the Term in the Quote unless Customer notifies Service Provider in writing of Customer’s intent not to renew at least sixty (60) days prior to the expiration of the then-current Term. Fees for Maintenance and Support services provided during renewal terms shall be at Service Provider’s then current rates.
    2. Renewal of Lapsed Maintenance and Support. If Customer elects not to renew Maintenance and Support, Customer shall no longer be eligible for Maintenance and there shall be no right of reinstatement.
    3. Termination of Support Agreement. If Service Provider or Customer terminates the Software License Agreement in accordance with the terms provided therein, then the Maintenance and Support hereunder shall also terminate. Further, Service Provider may terminate this Support Agreement upon the following conditions:
      • if Customer fails to make any payments due hereunder within fifteen (15) days after Service Provider delivers notice of default to Customer;
      • by giving prior written notice to Customer if Customer fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Customer’s receipt of Service Provider’s notice to cure such non-performance of material obligation; or
      • if Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
    4. Effect of Termination. All Fees already due or payable to Service Provider prior to the date of termination shall become immediately payable upon termination.
  9. WARRANTY
    Service Provider warrants all services performed under this Support Agreement shall be performed in a workmanlike and professional manner. EXCEPT AS OTHERWISE STATED IN THIS Support Agreement, SERVICE PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
  10. LIMITATION OF LIABILITY AND DAMAGES DISCLAIMER.
    1. LIABILITY CAP. SERVICE PROVIDER’S (AND ITS AFFILIATES, LICENSORS AND AGENTS) LIABILITY ARISING OUT OR RELATED TO THIS SUPPORT AGREEMENT WILL NOT EXCEED, IN THE AGGREGATE, THE FEE ACTUALLY PAID TO SERVICE PROVIDER FOR THE MAINTENANCE AND SUPPORT SERVICES UNDER A QUOTE THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM.
    2. DISCLAIMER OF DAMAGES. IN NO EVENT WILL SERVICE PROVIDER (OR ITS AFFILIATES, LICENSORS OR AGENTS) BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OR ANY LOSS OF REVENUE, GOODWILL, PROFITS, DATA OR DATA USE ARISING OUT OR RELATED TO THIS SUPPORT AGREEMENT.
    3. THE LIABILITIES LIMITED BY SECTIONS 10.1 AND 10.2 APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; (C) EVEN IF SERVICE PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; (D) ATTORNEYS FEES AND COSTS, AND (E) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 10, SERVICE PROVIDER’S LIABILITY (AND ITS AFFILIATES, LICENSORS AND AGENTS) WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
  11. MISCELLANEOUS
    1. Customer Facilities. To the extent required by Service Provider, Customer will, upon request, promptly make available to Service Provider certain of its facilities, computer resources, software programs, networks, personnel, and business information as are required to perform any service or obligation hereunder. Service Provider agrees to comply with Customer’s rules and regulations regarding safety, security, and conduct, provided Service Provider has been made aware of such rules and regulations.
    2. Purchase Orders. Customer may provide Service Provider with a valid purchase order immediately upon execution of a Quote. Notwithstanding anything to the contrary herein, purchase orders are to be used solely for Customer’s accounting purposes and any terms and conditions contained therein shall be deemed null and void with respect to the parties’ relationship and this Support Agreement, including any Quotes entered into pursuant hereto. Customer’s failure to issue a purchase order or provide such purchase order to Service Provider shall in no way relieve Customer of any obligation entered into pursuant to this Support Agreement including, but not limited to, its obligation to pay Service Provider in a timely fashion.
    3. Third Parties. Subject to Section 11.6, Service Provider shall have the right to use third parties, including offshore entities who employ foreign nationals, as well as employees and consultants of Service Provider’s affiliates who may also be foreign nationals (“Subcontractors”) in performance of Service Provider’s obligations hereunder and, for purposes of this Support Agreement, all references to Service Provider or its employees shall be deemed to include such Subcontractors.
    4. Technical Data. Customer shall not provide to Service Provider any Technical Data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10. Customer shall certify that all information provided to Service Provider has been reviewed and scrubbed so that all Technical Data and other sensitive information relevant to Customer’s ITAR regulated projects has been removed and the information provided is only relevant to bug reports on Service Provider products.
    5. Suggestions/Improvements to Software. All suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other Service Provider materials provided to Customer shall be owned by Service Provider, and Customer hereby agrees to assign any such rights to Service Provider. Nothing in this Support Agreement shall preclude Service Provider from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Service Provider in the performance of services hereunder.
    6. Confidentiality. Each party (“Receiving Party”) agrees to keep confidential all technical, product, business, financial, and other information regarding the business and software programs of the other party (“Disclosing Party”), its affiliates, customers, employees, investors, contractors, vendors, and suppliers (the “Confidential Information”). For clarity, the term ‘Confidential Information’ does not include any personally identifiable information. Obligations with respect to such information (if any) will be set forth in a separate written agreement between the parties. Receiving Party shall at all times protect and safeguard the Confidential Information and agrees not to disclose, give, transmit, or otherwise convey any Confidential Information, in whole or in part, to any third party, except that each party may disclose any Confidential Information to its directors, officers, and employees (and in the case of Service Provider, to its Subcontractors, as well) provided that such directors, officers, employees, or Subcontractors are bound by confidentiality conditions as restrictive as those contained herein. Receiving Party shall not, by authorized or unauthorized access, review, reverse engineer, disassemble, or decompile any Confidential Information. Except as provided hereunder, Receiving Party agrees that it will not use any Confidential Information for its own purpose or for the benefit of any third party and shall honor the copyrights and other intellectual property rights of the Disclosing Party and will not copy, duplicate, or in any manner reproduce any such copyrighted materials. Upon request of Disclosing Party or upon termination of this Support Agreement, the Receiving Party shall promptly deliver to the Disclosing Party any and all documents, notes, or other physical embodiments of or reflecting the Confidential Information (including copies thereof) that are in its possession or control. Within seven (7) days of termination of this Support Agreement or upon request by the Disclosing Party, the Receiving Party shall return or destroy all Confidential Information of the Disclosing Party. If Confidential Information is destroyed rather than returned, the returning party shall certify such destruction. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to, in addition to any other remedies available at law or in equity, seek temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.
    7. Assignment. Customer may not assign or transfer this Support Agreement by operation of law, change of control, or otherwise without the prior written consent of Service Provider. Any assignment or transfer in violation of this Section shall be null and void.
    8. Governing Law; Venue. The laws of the State of Texas, USA govern the interpretation of this Support Agreement, regardless of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to this Support Agreement. The parties agree that the federal and state courts located in Travis County, Texas, USA will have exclusive jurisdiction for any dispute arising under, out of, or relating to this Support Agreement. Mediation will be held in Austin, Texas, USA.
    9. Dispute Resolution.
      • Negotiations. Where there is a dispute, controversy, or claim arising under, out of, or relating to this Support Agreement, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each of the parties shall meet in person or communicate by telephone within five (5) business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties.
      • Mediation. Any dispute, controversy, or claim arising under, out of, or relating to this Support Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach, or termination, as well as non-contractual claims, shall be submitted to mediation in accordance with the WIPO Mediation Rules. The language to be used in the mediation will be English.
      • Opportunity to Cure. Notwithstanding anything contained hereunder, Customer agrees and acknowledges that no dispute resolution or litigation shall be pursued by Customer for any breach of this Support Agreement until and unless Service Provider has had an opportunity to cure any alleged breach. Customer agrees to provide Service Provider with a detailed description of any alleged failure and a description of the steps that Customer understands must be taken by Service Provider to resolve the failure. Service Provider shall have thirty (30) days from Service Provider’s receipt of Customer’s notice to complete the cure.
      • Injunctive Relief. The choice of venue does not prevent a party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights or confidentiality obligations. For clarity, the parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the mediator.
    10. Entire Agreement. The provisions of these Conditions together with the applicable Quote referenced herein constitute the entire agreement between the parties with respect to the subject matter herein and supersede all prior agreements, oral or written, and all other communications relating to the subject matter of the Support Agreement. Customer acknowledges and agrees that it is not relying on any agreement, representation, statement or warranty (whether or not in writing) made or given prior to commencement of the Term set out on the Quote, except as expressly provided in this Support Agreement, with respect to the maintenance and support services provided hereunder. This Support Agreement may only be modified or supplemented by a writing manually signed by the authorized representatives of the parties. Notwithstanding the foregoing, Service Provider may change these Conditions from time to time by posting such changes to Service Provider’s site, but will provide sixty (60) days advance notice to Customer before materially reducing the benefits offered to Customer under the Support Agreement. This Support Agreement does not in any way amend any portion of the Software License Agreement except for the portion of the Software License Agreement that specifically governs maintenance and support activities as to the Software. All other terms and conditions of the Software License Agreement remain in full force and effect, including, but not limited to, all license provisions.
    11. Severability and Reformation. Each provision of this Support Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Support Agreement to remain in effect in accordance with its terms as modified by such reformation
    12. Waiver. Any waiver made by either party of any term or condition of this Support Agreement shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof.
    13. Import/Export Laws. The Software, its related technology and services, and Customer’s use of the Software and its related technology and services are subject to U.S. export control and sanctions laws and regulations, including, but not limited to, the Export Administration Regulations, 15 C.F.R. Parts 730-774 (the “EAR”), and sanctions imposed or administered by the Department of the Treasury, Office of Foreign Assets Control (“OFAC”), and the Department of State and may be subject to export or import regulations in other countries. Customer warrants and certifies that: (i) Customer is not a citizen, national, permanent resident of, or incorporated or organized to do business in, and is not under the control of the governments of Iran, North Korea, Sudan or Syria, or any country to which the United States embargoes goods; (ii) Customer is eligible under U.S. law to receive exports of the Software, in that it is not included on any list of sanctioned or ineligible parties maintained by the U.S. government, including, but not limited to, OFAC’s lists of Specially Designated Nationals and Blocked Persons (“SDN List”), U.S. Department of Commerce’s Table of Denial Orders, the Entity List, or the Unverified List; (iii) Customer will not sell, export, re-export, transfer, use, or enable the use of the Software, its related technology and services, or any other items that may be provided by Service Provider, directly or indirectly: (a) to or for end-use in or by the countries listed in (i) above or any citizens, nationals, or permanent residents of such countries; (b) to or for end-use by any person or entity determined by any U.S. government agency to be ineligible to receive exports, including, but not limited to, persons and entities designated on the lists described in (ii) above; and (c) to or for end-uses prohibited by U.S. export or sanctions laws and regulations, including, but not limited to, activities involving the proliferation of chemical, biological, or nuclear weapons, weapons of mass destruction or the missiles capable of delivering such weapons, and their related technology.
    14. Independent Contractor. Each party is and will remain an independent contractor with respect to all performance rendered pursuant to the Support Agreement.
    15. Headings. The headings of this Support Agreement are provided for reference only and will not be used as a guide to interpretation.
    16. Notices. All notices under this Support Agreement will be in writing and will be considered given as of twenty-four (24) hours after sending by electronic means (such as fax or e-mail as duly provided by the authorized representatives of either party for such purpose) or by overnight air courier service, or upon delivery to the party to whom addressed after deposit in the mail (certified, return receipt requested) to the addresses mentioned on the Quote.
    17. Force Majeure. Service Provider shall not be liable to Customer for any delay or failure of Service Provider to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Service Provider. Such causes shall include, but are not limited to, acts of God, floods, fire, utility failure, acts of terrorism, war, etc.
    18. Conflict. In the event of a conflict between the terms and conditions of this Support Agreement, the Software License Agreement, or a Quote, the terms and conditions of the Quote, this Support Agreement, or the Software License Agreement will prevail, in that order.
    19. Survival. The terms of Sections 8.4, 9, 10, and 11 will survive the Term of this Support Agreement.
    20. Payment. Unless otherwise specified in the Quote, Service Provider may invoice Customer for all fees immediately following the Term Start Date and all such fees shall be due and payable within thirty (30) days of such invoice date. Notwithstanding any provision to the contrary, any and all payments required to be made hereunder shall be timely made, and no payments to Service Provider shall be withheld, delayed, reduced, or refunded if Service Provider has performed its material obligations.
    21. Late Payment Fees. Any late payment will be subject to costs of collection (including reasonable legal fees) and bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
    22. Non-solicitation. During the Term of this Support Agreement and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of Service Provider without the prior written consent of Service Provider. Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of Service Provider for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with Service Provider. Violation of this provision shall entitle Service Provider to a liquidated penalty against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.
    23. Patent Notice. You are hereby placed on notice that the Software, its related technology and services may be covered by one or more United States (“US”) and non-US patents. A listing that associates patented and patent-pending products included in the Software, Software Updates, their related technology and services with one or more patent numbers is available for you and the general public’s access at www.aurea.com/legal (the “Patent Notice”) and any successor or related locations designated by Service Provider. The association of products-to-patent numbers at the Patent Notice may not be an exclusive listing of associations, and other unlisted patents or pending patents may also be associated with the products. Likewise, the patents or pending patents may also be associated with unlisted products.  You agree to regularly review the products-to-patent number(s) association at the Patent Notice to check for Updates.
    24. Marks and Publicity. Service Provider and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), shall be the sole and exclusive property of the respective owning party, which shall own all right, title and interest therein. Service Provider may: (a) use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (b) quote the Customer’s statements in one or more press releases; and/or (c) make such other use of the Customer’s name and/or logo as may be agreed between the parties. Additionally, Service Provider may include Customer’s name and/or logo within its list of customers for general promotional purposes. Service Provider shall comply with Customer’s trademark use guidelines as such are communicated to the Service Provider in writing and Service Provider shall use the Customer’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section.

Updated: April 15, 2016.