Software License, Maintenance and
Subject to the other terms of this agreement, CommGate grants Customer, under an order, a non-exclusive, non-transferable license purchased and for the duration specified on the order to:
Operate the Software for use only in Customer’s operations and/or use in CommGate’s Cloud infrastructure;
(a) Make one copy of the Software for archival and backup purposes.
Customer may not:
2.1. Assign, sub-license, or rent the Software to third-parties who are not a Party to this Agreement;
2.2. Cause or permit the reverse engineering (except to the extent expressly permitted by applicable law despite this limitation), decompiling, disassembly, modification, translation, attempting to discover the source code of the Software; or
2.3. Evaluate or use, or facilitate the evaluation or use, of the Software for the purpose of commercially exploiting the Software to compete with CommGate.
Customer may request for source code of software via an escrow service. Such escrow service shall be chargeable and cost to be paid by Customer.
4. PROPRIETARY RIGHTS AND MUTUAL CONFIDENTIALITY.
4.1. Proprietary Rights. The Software, workflow processes, user interface, designs, know-how and other technologies provided by CommGate as part of the Software are the proprietary property of CommGate and its licensors (proprietary or open source), and all rights, title and interest in and to such items, including all associated intellectual property rights, remain only with CommGate and/or its licensors. Applicable copyright, trade secret, and other intellectual property laws protect the Software. Customer may not remove any product identification, copyright, trademark or other notice(s) from the Software unless agreed upon in writing or through “White Label” or “OEM Licensing” Agreements.
5. WARRANTY, REMEDY and DISCLAIMER.
5.1. For new Software purchase or implementation, CommGate warrants that the Software will perform in substantial accordance with its accompanying user manual for a period of forty-five (45) days from the date of the commissioning of Software. This warranty will not apply to any problems caused by third-party software, use other than in accordance with the user manual, or misuse of the Software. CommGate shall provide warranty and remedy any Software errors at no charge when faults are reported within the forty-five (45) days period. Beyond the warranty period, CommGate shall provide technical support and software maintenance as subscribed by Customer, based on the Customer technical support coverage.
5.2. EXCLUSIVE REMEDY AND SOLE LIABILITY. If Customer believes there is a breach of the above warranty, then Customer must notify CommGate within the warranty period (or within 30 days after the end of the warranty period) and cooperate with CommGate. CommGate shall use commercially reasonable efforts to remedy covered defects. THIS REMEDY IS CUSTOMER’S EXCLUSIVE REMEDY, AND COMMGATE’S SOLE LIABILITY FOR THESE WARRANTY CLAIMS, WHICH SHALL NOT EXCEED MORE THAN THE TOTAL VALUE OF THE SUPPORT FEES PAID BY CUSTOMER.
5.3. DISCLAIMER OF OTHER WARRANTIES. COMMGATE DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
6. TECHNICAL SUPPORT.
CommGate’s technical support and maintenance services (“Technical Support”) may be ordered for a fee. Support is provided under the Support terms then in effect. CommGate may change its Technical Support terms and such Technical Support will not materially degrade during any paid Technical Support term.
7. SCHEDULED MAINTENANCE.
As part of our systems and network maintenance operations, CommGate monitors our systems and network using automated systems and network management tools. We shall inform affected Customers of any scheduled maintenance at least one (1) week in advanced. Such maintenance operations will be scheduled once every three (3) months. For emergency maintenance, CommGate shall provide at least two (2) hour notice.
8. LIMITATION OF LIABILITY AND MUTUAL DISCLAIMER OF DAMAGES.
8.1. There may be situations in which, as a result of material breach or other liability, Customer is entitled to make a claim for damages against CommGate. In all situations, regardless of the form of the legal action (e.g. contract or tort claims), CommGate is not responsible:
a) beyond the amount of any direct damages up to the amount paid by Customer to CommGate for the applicable Software or Technical Support; and
b) for damages of bodily injury (including death), and physical damage to tangible property, to the extent caused by the gross negligence or wilful misconduct of CommGate employees while at Customer’s facility.
8.2. Other than a breach of the Confidentiality by either Party, or a violation of CommGate’ intellectual property rights by Customer, in no circumstances is either party responsible for any (even if it knows of the possibility of such damage or loss):
a) loss of, or damage to, data or information;
b) lost profits, business revenue or goodwill; or
c) other special, consequential, or indirect damages
9. INTELLECTUAL PROPERTY INDEMNITY.
9.1. If a third party asserts a claim against Customer asserting that its use of the Software in accordance with this Agreement (excluding all patent claims related to technology owned or used by Customer) violates that third-party’s patent, trademark, trade secret, copyright or other proprietary right (Infringement Claim), then CommGate must, at its own expense:
a) defend or settle the Infringement Claim, and
b) indemnify Customer for any finally awarded damages
9.2. Customer must promptly notify CommGate of any Infringement Claim, so that CommGate will retain sole control of the defence of any Infringement Claim and all negotiations for its settlement or compromise. CommGate’s obligations above will not apply to the extent the Infringement Claim is based on the use of the Software in combination with software not supplied or provided by CommGate, or Customer’s failure to use any updates to such software within a reasonable time after such updates are made available.
10.1. Compliance Audit. If required, and no more than once in any 12-month period, and upon at least 30 days advance notice, CommGate (or its representative) may audit Customer’s usage of the Software at any Customer facility. Customer will cooperate with such audit.
10.2. Non-Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned upon notice as part of a merger, or sale of all or substantially all of the business or assets, of a party.
11. TECHNICAL SUPPORT & MAINTENANCE TERMS
11.1. Technical Support Portal, Email and Telephone.
CommGate shall provide support through our support portal, email and/or phone as outlined in Table 1.
Table 1: Support Contact information
|Support Telephone||+65 6100-8981|
11.2. Software Support Process.
11.2.1. CommGate endeavours to resolve technical issues on the first call or online request for assistance as long as it is logged through the CommGate Support Portal and an incident number has been issued for tracking and communication till resolution is achieved.
11.2.2. All of our technical support engineers have the responsibility of assessing the nature of the fault reported by Customer and shall work with each Customer to resolve the issue independently. Should any issue persist or escalate;
18.104.22.168. The engineer will involve senior engineering management to work with the Customer until the issue is resolved;
22.214.171.124. If at any time, the Customer feels the engineer it is working with may not be able to resolve the issue in a timely manner; as shown in Table 2 below, Customer has the right to request to escalate the issue to a senior engineer;
126.96.36.199. In cases where it is established that an issue is not within the control of or purview of the Software or any other CommGate product, or is unrelated and originating elsewhere in a customer’s computers, network or third-party systems, CommGate engineers may continue to lend assistance in resolving the issue at a fee, at the discretion of the Customer;
188.8.131.52. All CommGate engineers’ time will be charged at the then current CommGate professional services hourly rate. All charges of this nature will be quoted in writing prior to work continuing, and will require written acceptance from the Customer.
Table 2: Method of response and support resolution based on severity levels
|Critical||Software substantially fails to perform and there’s no workaround immediately available. Business is impacted.||Email acknowledgement within 15 minutes, with the first diagnosis response within 2 business hours.
Updates will be provided to Customer every two (2) business hours until the issue is resolved.
Resolution time is within 24 hours provided Customer purchased a CommGate backup service.
|Major||Software is operational but substantially degrades in functionality and performance. No workaround immediately available, Customer operations can continue but are restricted.||Email acknowledgement within 30 minutes with the first diagnosis response in three (3) business hours.
Updates will be provided to Customer every four (4) business hours until the issue is resolved.
Resolution time is 3 business days.
|Minor||Operation can continue without impacting functionality or performance with some impairment of non-critical components.||Email acknowledgement within 60 minutes with the first diagnosis response within next business day.
Updates will be provided based on the software release or patches that addresses the issue.
Resolution time is 10 business days.
|Enhancements||Issues not classified as Severity 1, 2 or 3.||Enhancement shall be reviewed on a case-by-case basis, governed by Change Management procedures and not covered within this agreement.|
11.3. Technical Support Coverage.
CommGate technical support Level-1, Level-2 and Level-3 is part of the Support Escalation process for Customers with a valid Support Agreement.
11.3.1. Level-1 Technical Support refers to a process of CommGate diagnosing Customer reported fault. This includes and is not limited to diagnosing the Customer computer, network and network routing to CommGate Cloud Servers to ascertain the cause of the fault. If the fault does not reside with CommGate Cloud Servers, Customer shall be advised to contact their respective Vendors e.g. IT or Network Administrator or Internet Service Provider.
11.3.2. Level-2 Technical Support refers to a process of CommGate escalating the Customer reported fault to our senior infrastructure and software engineering team. This includes and is not limited to calling the Customer back to understand and reproduce the fault to help us trace the fault for rectification and resolution.
11.3.3. Level-3 Technical Support refers to a process of CommGate escalating the reproducible fault to our software engineering team to develop software patches to fix the fault and/or bugs. This may also include escalating the issue to our cloud vendor to fix critical infrastructure issues.
11.3.4. Customer may engage CommGate for ad-hoc technical support for technical issues outside of CommGate’s responsibility at CommGate standard rates.
11.3.5. Services offered as part of the Support Package are as follow:
a) Maintaining customer’s staging environment with the latest production system build.
b) Activity Surges will be provided, at a cost of SGD0.50/GB, for upon request and with at least 30 days notice prior to the event.
11.4. Conditions of Service.
11.4.1. Customer Assistance. Customer agrees to provide CommGate access to all necessary personnel to answer questions or resolve problems reported by Customer regarding the Software. Customer agrees to promptly implement all updates provided by CommGate and communicate to its users of the changes and/or fixes made to the Software under this Agreement. CommGate is not responsible for the delays caused by the unavailability of Customer.
11.4.2. Use of Software Updates. Customer’s use of any updates provided by CommGate as part of the Software Maintenance and Technical Support Services shall be governed by all license limitations and restrictions, and all other terms and conditions of the Agreement. CommGate may, at its discretion, change the services included in the Software License, Maintenance and Technical Support Services at any time, provided, however that such changes shall not become effective until the commencement of any renewal term.
11.5. Term and Termination.
11.5.1. Term. CommGate shall provide Software Maintenance and Technical Support Services for the duration of the term specified as per the Proposal or Quotation. Such term shall be automatically renewed at the end of the original maintenance period and again at the end of each term thereafter unless Customer gives written notice at least thirty (30) days before any such renewal date of its intent not to renew the Software Maintenance and Technical Support Services.
11.5.2. Termination. Customer may terminate a Software Maintenance and Technical Support Services contract at the end of any term by giving written notice to CommGate at least thirty (30) days prior to the end of such term. Software Maintenance and Technical Support Services included as part of a Term License will continue for the duration of the term license and terminate automatically at the end of the same. Either party may terminate Software Maintenance and Technical Support Services if the other party breaches any material term or condition of the Software Maintenance and Technical Support Services Terms and Conditions and such breach is not remedied within thirty (30) days after receiving written notice thereof. Notwithstanding the foregoing, CommGate may immediately, by written notice to Customer, suspend or terminate Software Maintenance and Technical Support Services if Customer fails to make payments which are due. Software Maintenance and Technical Support Services shall terminate automatically upon any termination of the Agreement.