GRAPHISOFT North America, Inc. and Customer agree as follows:
This “ARCHIPLUS Software Service Agreement (SSA)” (hereafter ARCHIPLUS) covers all licenses and services of the current software products described in the Appendix of this Agreement ("Software") possessed by the Customer. The list of licenses, Hardware Protection Devices ("Keyplug") serial numbers, or Software serial numbers - whichever is appropriate for Customer's Software - covered by this Agreement are found in the Order Information in this Agreement. Additional licenses purchased in the future will, be included in this agreement. This Agreement is nontransferable.
2. Services Provided in this Agreement
Benefits and features are subject to change from time to time. For current information on ArchiPLUS please visit http://archiplus.graphisoftus.com/archiplus_home.html
2.1. Software Updates
The Customer will receive all version Updates of Software from the term of this Agreement. "Updates" are defined as error corrections, enhancements, new releases or other modifications to the Software that the Company makes generally available to customers with current Subscription Agreements. The Company reserves the right to charge for new or additional features it may develop from time to time and that are not included with Updates. Fees for these new or additional features will be in accordance with Company pricing in force at the time the new or additional features are released.
2.2 Keyplug Insurance
If appropriate for the Software, Company will replace a lost or stolen Keyplug in accordance with Company policy. Declarations of a lost or stolen Keyplug must be supported by a police report, insurance claim, or other documentation.
The lost or stolen Keyplug becomes invalid at the time it is reported to the Company. If the lost or stolen Keyplug is recovered, End User will return it to Company immediately.
First line telephone and email support services from Company at the published telephone number and email address. Support is provided for the ongoing use of the Software and is not intended and should not be considered a substitute for professional services or training. Company will attempt to answer Customer’s specific questions. However support is offered on a good faith, diligent basis and Company may not be able to resolve every request.
Customers are strongly recommended and it is the Customers responsibility to maintain proper backup of their data. Under no circumstances will Company be responsible for lost or missing data.
3. Service Fee
The Service Fee is detailed in the Order Information in this Agreement.
3.1 Renewals Fee
All renewals start on the original anniversary date of the contract term defined in the Order Information in this Agreement no matter when payment is received. A membership with a fee that remains unpaid after the anniversary date of the contract term has passed will be considered terminated. Terminated contracts may not be reinstated. Customers with terminated contracts wishing to return to an ARCHIPLUS membership must upgrade the software licenses associated with the terminated contracts to the current available version, and enter a new contract on the upgraded licenses
4. Other Conditions
4.1 Validity of the Agreement
For additional orders of software licenses and associated ARCHIPLUS Memberships, the period covered in their first term will be from the date of acceptance by Company of their order until the expiration or termination of this Agreement.
4.2 Termination of the Agreement
Company may terminate this Agreement by giving written notice of termination to the Customer upon the occurrence of any of the following events:
- Customer materially breaches the terms of this Agreement or the License Agreement, and such default is not resolved within the applicable resolution period;
- Customer fails to make payment within thirty (30) days of its due date under this Agreement;
- Customer ceases business operations, is subject to any State or Federal bankruptcy, insolvency, or similar proceeding, becomes insolvent, or makes an assignment for the benefit of creditors or a receiver is appointed for a substantial part of Customer's assets, or becomes unable to pay its debts when due.
4.3 Suspension of the Agreement
In case of a delay in payment after thirty (30) days written notice, COMPANY reserves the right to suspend provision of services to Customer until payments are received. Suspension and reinstatement does not effect the expiration of this agreement.
4.4 Governing Law.
This Agreement is made in and shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its choice of law principles.
4.5 Entire Agreement
This Agreement and its Attachment constitute the entire agreement between the parties and it replaces and supersedes any prior verbal or written understandings, communications, and representations between the parties.
4.6 Warranty and Disclaimer.
The Company will use commercially reasonable efforts to provide the Support Services in a professional manner. Nothing in this Agreement shall be construed as expanding or adding to the warranty for the Software set forth in the End User License Agreement or any other agreement with the Company governing use of the Software.
THE SOFTWARE AND ALL PORTIONS THEREOF, AND ANY SERVICES ARE PROVIDED "AS IS." EXCEPT 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, THE COMPANY 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 AGREEMENT OR THE PROVISION OF MATERIALS OR SERVICES UNDER THIS AGREEMENT. THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
4.7 Limitation of Liability.
THE COMPANY'S AGGREGATE LIABILITY FOR ANY BREACH OF THIS AGREEMENT, USE OF THE SOFTWARE OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNTS ACTUALLY RECEIVED BY THE COMPANY HEREUNDER, EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE STATUTORY LAW. IN NO EVENT SHALL THE COMPANY 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 AGREEMENT UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.