Terms of Service
Pursuant to your request, Kerio Technologies, Inc., a Delaware corporation (“Kerio”), will provide paid technical support services related to Kerio products on a per incident basis to “You” and any entity You represent (collectively the “Customer”), pursuant the terms and conditions of this Paid Technical Support Services Agreement (the “Agreement”) as set forth below. This Agreement will be presented to you on a popup screen on Your computer once you’ve requested support. By clicking “I agree” on the pop up screen, You agree to be bound hereby in connection with the provision of such services. If You do not agree with this Agreement, please terminate the pop up screen and refuse to accept such services.
1. Definitions.
a. “Documentation” means any user instructions, manuals or other materials, and on-line help files regarding the use of Kerio products, as revised by Kerio from time to time, that are generally provided by Kerio in connection with Kerio products.
b. “Error” means a failure in any Kerio product to materially conform to the specifications as described in the applicable Documentation.
c. “EULA” means Kerio’s Software End User License Agreement, a current version of which can be found on the Kerio Website. The EULA applies to the purchase and usage of all Kerio software products.
d. “Hardware” means any Kerio hardware product.
e. “Hardware Sale Agreement” means Kerio’s Hardware Sale Agreement, a current version of which can be found on the Kerio Website. The Hardware Sale Agreement applies to the purchase and usage of all Kerio hardware products.
f. “Incident” means any query made by Customer regarding to the existence of a single, specific issue or Error related to a Product. An Incident may involve several interactions between Customer and Kerio’s technical support personnel prior to resolution.
g. “Product/s” means any and all Kerio software and hardware products.
h. “Kerio Support Webpage” means Kerio’s technical support request webpage on its public website (the “Kerio Website”). Such webpage can be found at www.Kerio.com/support or the regional equivalent.
i. “Technical Support Guide” means Kerio’s Technical Support Guide, which can be found on the Kerio Support Webpage.
j. “Open Source Software” means components provided with the Software, for which the source code is generally available to the public and are licensed under the terms of various published open source software license agreements or copyright notices accompanying such software components in addition to any vendor specific license terms provided with the Open Source Software.
k. “Paid Technical Support Services” means the provision by Kerio to the Customer of technical assistance, paid for and provided on a per Incident basis.
l. “Services Fee” means the per Incident fee applicable to the provision of the Paid Technical Support Services.
m. “Software” means any Kerio software product.
n. “Third Party Products” means any third party proprietary software or hardware that is manufactured by a party other than Kerio or its affiliates and has not been incorporated into Kerio products or services offerings of Kerio or its affiliates.
2. Provision of Technical Support Services.
2.1 Kerio will provide technical support services in accordance with the support conditions provided on the Kerio Webpage, its Technical Support Guide, its EULA and its Hardware Sale Agreement, all of which can be found on the Kerio Website and may be updated from time to time without notice.
2.2 Free Technical Support Services. Technical support services will be provided free of charge to:
a. Kerio end user customers within 90 days of Customer’s registration of the Kerio Product identified in the Incident;
b. Kerio channel partners (authorized distributors and resellers), provided they identify themselves with their partner identification; and
c. Kerio registered trial licenses, for the life of the trial (usually 30 days).
2.3 No Technical Support Services. Kerio has no obligation to provide Paid Technical Support Services or adjudicate issues regarding Incidents caused by or related to:
(a) violation of the EULA or the Hardware Sale Agreement by Customer or its representative;
(b) accident; force majeure; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure of electric power, air conditioning or humidity control; usage of the Product with third party products; Customer’s negligence or misuse;
(c) improper installation by Customer or its representative;
(d) improper usage of the Product (usage that deviates from any operating procedures as specified in the Documentation);
(e) actual or attempted modification, alteration or addition to the Product by non-Kerio personnel;
(f) use of Third Party Products (ie. use of faulty/damaged hardware or media on which the Kerio Products are installed; or
(g) other reasons not related to Kerio Products.
2.4 Paid Technical Support Services.
2.4.1 Kerio will provide Paid Technical Support Services to Customer, upon Customer’s request and upon Customer holding a valid software maintenance subscription, on a pay-per-Incident basis pursuant to Section 3 below.
2.4.2 Customer may request such Services via phone, the Software’s web administration interface or by filling out a web form on the Kerio Support Webpage. Phone contact numbers, phone support hours of operation and target response times can be found on the Kerio Support Webpage. Customer will be asked to provide a valid license number at that time.
2.4.3 Once the technical support request is received by Kerio, the Incident reported on is deemed “open” unless service is denied. Kerio reserves the right to deny Paid Technical Support Services or suspend the provision thereof to any customer, at anytime, for any reason.
2.4.4 Kerio will make reasonable efforts to respond to each technical support request within a reasonable time, but does not guarantee that a response will be provided within a specific time period.
2.4.5 Each Incident will be limited to the discussion of a single, specific issue or Error. Kerio reserves the right to request that Customer submit multiple technical support requests where multiple issues exist. Accordingly, for example, to the extent Customer raises numerous unrelated issues on a technical support phone call, Kerio reserves the right to only respond to the issue raised in the initial request.
2.4.6 If the answer to the issue raised by Customer in its technical support request can be found in the Documentation, Kerio may refer Customer to such Documentation rather than address the issue in its response.
2.4.7 If the answer to the issue raised by Customer in its technical support request has been given in a previous technical support request response, Kerio may refer Customer to such response rather than readdress the issue.
2.4.8 If the issue raised by Customer in its technical support request is not of a technical support nature, Kerio may refer Customer to another source.
2.4.9 The Incident is deemed “closed” when the symptoms of the issue or Error reported, are no longer present, as determined by Kerio, or when:
a. Section 2.3 above applies (payable);
b. a bug exists in the Kerio Product in question (not payable); or
c. other, exceptional cases where either Kerio or the Customer determines that the Incident cannot be addressed and/or solved (may or may not be payable depending on work done by Kerio personnel).
Once an Incident is deemed closed, the provision of Paid Technical Support Services regarding the Incident is terminated.
2.5 Section 2.2 above notwithstanding, Kerio may, at its discretion, decide to discontinue any Product and/or the Paid Technical Support Services, in total or for any particular Product, at any time without notice (“End of Availability”). However, Kerio will make every effort to provide timely notice of End of Availability and applicable support lifecycle policies and timelines for discontinuance on the Kerio Support Webpage.
3. Services Fee.
3.1 The current, published Services Fee will be charged for each Incident reported and addressed. Multiple queries, issues or Errors will not be addressed in a single Incident, but will be billed separately.
3.2 The published Services Fee can be found on the Kerio Support Webpage and may also be provided via phone request from Kerio technical support personnel.
3.3 While payment information (along with invoicing details) will be requested when the Incident is opened, the Services Fee will not be charged until the Incident is closed by Kerio technical support personnel. Once charged, the Services Fee is non-refundable.
3.4 NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, KERIO ULTIMATELY RESERVES THE RIGHT TO CHARGE CUSTOMER THE SERVICES FEE REGARDLESS OF OUTCOME OF THE INCIDENT IF IT DEEMS APPROPRIATE (IE., BASED ON DEGREE OF WORK DONE BY KERIO TECHNICAL SUPPORT PERSONNEL, TIME SPENT ADDRESSING THE INCIDENT, ISSUES CONFRONTED AND COMPLEXITY OF THE SERVICES PROVIDED, ETC.).
3.5 Payment must be made by credit card.
3.6 The amount of the Paid Technical Support Services Fee is subject to change without notice, but will not change once an Incident is opened.
3.7 The Paid Technical Support Services Fee is exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse Kerio for all federal, state, dominion, provincial, or local sales, use, personal property, excise, value added, withholding or other taxes, fees, or duties relating to the transactions contemplated by this Agreement.
4. Open Source Software Support. To the extent possible, Kerio will provide Paid Technical Support Services for Incidents related to open source software contained in the Software.
5. Customer Obligations. Customer’s obligations regarding Paid Technical Support Services are as follows:
(a) Customer agrees to act professionally during the course of its technical support inquiry. Accordingly, Customer agrees to treat Kerio technical support personnel with respect and not use profanity or other aggressive or abusive language or behavior.
(b) Customer agrees to receive and implement any Kerio communications which may be provided as part of the Paid Technical Support Services, to include receiving product updates (new version releases) and/or product patches.
(c) Customer agrees to cooperate with Kerio during the provision of the Paid Technical Support Services, to include providing Kerio technical support personnel with remote access to its computer systems and with any necessary information, and shall follow instructions and implement any corrective procedures provided.
(d) Prior to the commencement of Paid Technical Support Services, Customer will protect and back up all Customer data and information stored on its computer systems and on the Product in question.
6. Disclaimer of Warranty. KERIO CANNOT GUARANTEE THAT AN INCIDENT WILL BE RESOLVED. HOWEVER, KERIO WILL MAKE REASONABLE EFFORTS TO PERFORM PAID TECHNICAL SUPPORT SERVICES IN A PROFESSIONAL MANNER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, (I) THIS EXPRESS LIMITED WARRANTY AND THE REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, WHETHER ORAL OR WRITTEN, STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT AND THE PAID TECHNICAL SUPPORT SERVICES PROVIDED HEREUNDER; AND (II) KERIO AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL STATUTORY AND IMPLIED WARRANTIES, RELATED TO OR ARISING IN ANY WAY OUT OF THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS EXPANDING OR ADDING TO THE WARRANTIES FOR THE KERIO PRODUCTS, AS SET FORTH IN THE EULA AND THE HARDWARE SALE AGREEMENT.
7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KERIO AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF EQUIPMENT OR FACILITIES, OR INTERRUPTION OF BUSINESS, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING FROM ITS PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT, WHETHER OR NOT KERIO AND ITS LICENSORS HAVE BEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO CUSTOMER. KERIO’S LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE PAID TECHNICAL SUPPORT SERVICES FEES PAID BY CUSTOMER TO KERIO IN RELATION TO THE INCIDENT/S DIRECTLY IMPLICATED IN ANY SUCH CLAIM FOR DAMAGES. THE ABOVE NOTWITHSTANDING, BE ADVISED THAT CUSTOMER’S RIGHTS MAY BE IMPACTED BY CERTAIN LAWS OR REGULATIONS OF CERTAIN STATES OR COUNTRIES FOR THE PURPOSES OF ANY SUCH CLAIM (IE., RELATED TO CONSUMER PROTECTION, EXCLUSIONS OR LIMITATIONS ON CERTAIN TYPES OF DAMAGES, EXCLUSIONS OR LIMITATIONS ON CERTAIN TYPES OF WARRANTIES).
8. Data Privacy and Protection. Customer agrees and understands that it may be necessary for Kerio to collect, process and use Customer data in order to perform the Paid Technical Support Services. This may include transferring Customer data to affiliated companies. In doing so, Kerio and its affiliates will: (i) protect and keep confidential such data; (ii) not use such data for reasons other than for facilitating the provision of the Paid Technical Support Services; and (iii) not sell, distribute or pass on such information to any third party, except as required by law.
9. Suspension of Service; Termination. Kerio may suspend its performance or terminate this Agreement and all Paid Technical Support Services at any time if (i) it is discovered that Customer is currently in breach of the EULA and/or the Hardware Sale Agreement, or (ii) Customer is in material breach of this Agreement (which includes, but is not limited to, the occurrence of one of the situations identified in Section 2.2 hereof, the nonpayment of Services Fee or Customer’s failure to honor to its obligations under Section 5 hereof ). In such cases, Customer will be liable for (and charged) the Services Fee.
10. Miscellaneous. Customer may not assign or delegate this Agreement to any third party without the prior written consent of Kerio. This Agreement shall be governed by the laws of the State of California without regard to conflict of laws principles. The parties consent to binding arbitration under the rules of the American Arbitration Association, proceedings to be held in Santa Clara County, California. This Agreement constitutes the entire agreement of the parties with respect to the provision of Paid Technical Support Services by Kerio to Customer, and supersedes all prior written or oral communications, understandings and agreements. This Agreement may not be amended except in writing and signed by both parties. Any waiver of the provisions of this Agreement must be in writing to be effective. Except as expressly set forth herein, no terms of any purchase order or other business form that Customer may use will affect the obligations of the parties under this Agreement, and any such purchase order or other business form of Customer which contains additional or conflicting terms are hereby rejected by Kerio. Customer agrees that purchase orders do not have to be signed to be valid and enforceable. If any provision of this Agreement is found to be invalid or unenforceable, the remaining terms will continue to be valid and enforceable to the fullest extent permitted by law.
