UPKEEP CUSTOMER SUPPORT SERVICES

This UpKeep Customer Support Agreement (the “UCS Agreement”) is between Upstream Works Software Ltd (“UWS“) and You, the End User identified in the executed Purchase Order and acting as an integral part of this UCS Agreement, and is effective on the expiration date of the associated warranty for the Products (“Effective Date”) as set forth in the End User Software License Agreement accepted by the End User online.

WHEREAS as of the commencement of services UWS has provided the “Products” as outlined in the End User License Agreement (“EULA”) at End User’s request;

Therefore, UWS and End User agree as follows:

1. Definitions. The following terms are in addition to the definitions contained in the EULA or Purchase Order:

1.1 Version is the release level associated with the Licensed Products as delivered to End User by UWS at time of product Delivery. Each component of the Licensed Product may have an independent Version. UWS will provide the latest or next-to-latest version of the product available at the time of product delivery. UWS may, at its discretion, include a later Version of any listed Product.

1.2 Product Update is any Version change to the Licensed Product designated by the second decimal place (e.g., 7.23, 7.24)

1.3 Product Upgrade is any Version change to the Licensed Product which provides additional functionality to the End User for a Product, and is designated by the whole number and single decimal designation or the Version (e.g., 7.2, 7.3).

1.4 Third Party Software is any software provided by UWS that is owned by a third party.

2. Bound by EULA. End User expressly agrees that it remains fully bound by and subject to all of the terms and conditions of the EULA, and any terms and conditions set for in such EULA shall continue to be binding on the End User in addition to the terms and conditions set forth in this UCS Agreement. In the event of any conflict between the terms and provisions of this UCS Agreement and the terms and provisions of such EULA, the terms of this UCS Agreement shall prevail to the extent of the conflict.

3. UpKeep Customer Support. UWS agrees to provide and End User or Reseller agrees to accept Maintenance Service as described in Schedule B to this UCS Agreement (“UpKeep Customer Support”) on the UWS Products and Integrated Software licensed to the End User.

UpKeep Customer Support may be carried out by UWS at UWS’ premises, End User’s premises or elsewhere, as mutually agreed to.

UWS’s service obligations under this UCS Agreement at any time shall be limited to the then current whole number Upgrade Version of the Product (i.e., Version 2.x) and all subsequent point releases within that Upgrade Version. Customers may be required to upgrade to the latest point release at the request of UWS. UWS will provide support for the last two point releases prior to a whole number Upgrade Version for a period of 15 months after the release of the subsequent whole number Upgrade Version, or for 36 months from the original date of release, whichever is longer. UWS shall have no obligations with respect to Product which has been altered by any party other than UWS without the prior written consent of UWS, or has been used otherwise than as provided in the governing EULA, or has not been used or stored in accordance with the instructions contained in the relative documentation.  UWS shall have no obligation to repair or replace faulty magnetic tapes or discs on which the Product may be stored.

Nothing in this UCS Agreement shall impose an obligation on UWS to modify the UWS Product or to produce or release a new Version of the Product.

UpKeep Customer Support shall not include the following: (a) resolving software problems attributable to modifications or enhancements to the Products not created by UWS as part of the supplied Services; (b) consulting services, including application design, training, installation, implemen­ta­tion, or customisation unless specifically outlined in this UCS Agreement ; and (c) resolving software problems attributable to the operation of the Products in conjunction with computer systems or software not authorised or specified by UWS.

4. Customized Software.  

4.1 Customized by UWS. If the system includes customized software developed for End User by UWS, and UCS has been purchased for such customized software, UWS warrants that software will operate as per specification and will repair any defects as per the terms of this UCS Agreement.    As part of this UCS Agreement, UWS will maintain the integrated source code at its facilities under source control for End User. For software developed jointly by End User and UWS, UWS shall support the portions of software implemented by UWS.

4.2 Customized by “Approved Developers”. If the system includes customized software developed by an End User “Approved Developer”, then UWS will support all UWS-supplied components up to the UWS programming API. An “Approved Developer” is one who meets the minimum pre-requisites for using UWS integration toolkits and had taken UWS “Approved Developer Training”. UWS makes no representations or warranties for support of customized software developed by End User and makes no response time guarantees for any problems reported as a result. UWS will, if requested, provide ‘per diem’ assistance in trouble shooting End User customization problems.

4.3 Other Customization. If customized software is developed by non-Approved End Users, End User will be responsible for providing positive proof that the reported non-conformance is a result of the UWS products. The validity of ‘positive proof’ is in the opinion of UWS staff. UWS will provide support to End User for UWS-supplied components that interact with the End User developed software on a ‘per diem’ basis only.  If UWS, in its sole opinion, believes that the reported problem is not related to the End User Customization, then it will provide support as per the general terms of this Agreement for its products. UWS makes no representations or warranties for support of a system using customized software developed by non-Approved End Users and makes no response time guarantees for any problems reported as a result.

4.4 Support Restrictions. To support any customized software, UWS must (a) maintain the complete source code for the customization and have free and complete access to the software for purposes of providing warranty and support, or (b) maintain a unique Image ID for the executable software module containing the customization, consisting of a date and file size, executable software checksum, or some other uniquely identifying mark, and have remote access to a debug system containing the full source and compile system sufficient to debug and support the software.  In the case of b), response times are measured from the time UWS is provided access to this system. If the executable customized software module does not match the source maintained by UWS due to end use changes, or if the Image ID does not match that maintained and certified by UWS, then the software will be supported as per 4.2 or 4.3 above.

4.5 Exclusions. This UCS Agreement does not cover changes to any integrated or customized software that are required for functional reasons or due to product upgrades (either UWS products or integrated products) across major releases.

5. Term. The term of this UCS Agreement shall commence on the Effective Date for renewals, or the expiry of the product warranty period, and shall continue for a period of year(s) specified in the relevant purchase order (the “Term”). Thereafter, this UCS Agreement shall be renewed automatically from year to year unless one party notifies the other in writing of its desire to permit the UCS Agreement to expire at the expiration of the then current term at least 60 days in advance of an annual renewal date.

6. Charges. During the currency of this UCS Agreement, End User agrees to pay the annual charges established from time to time by UWS for the service described in this UCS Agreement and as listed in the attached Purchase Order. Such charges do not include taxes or duties. Specific charges for the first year of UpKeep Customer Support are listed in the Purchase Order.  Future payments will be calculated on the base services cost and licenses cost adjusted for any new supported components, and increased no more than in accordance with the following formula:      

                                           F+F([CPIⁱ-CPIⁱⁱ]/ CPIⁱⁱ) 

where F is the relevant fee for the first year, CPIⁱ is the Consumer Price Index published by the federal government last published prior to the anniversary date concerned, and CPIⁱⁱ is the Consumer Price Index last published prior to the date hereof.

7. New licenses or features. From time to time the End User may extend its Product purchases from UWS to support larger numbers of licensed agents or new features. Upon expiration of the Warranty Period, these purchases will be automatically covered by this UCS Agreement. Payment for the first year for new Product purchases shall be made in advance, and the applicable pro-rata service fees shall be levied thereafter to coincide with the Anniversary date of this Agreement. Should the first year maintenance payments for additional Product purchases extend beyond the anniversary date of this Agreement, and should this Agreement be canceled at the Anniversary date, then the outstanding maintenance amount will be amortized across all licensed Products and a new maintenance termination date calculated accordingly.

8. Payment. UpKeep Customer Support charges shall be payable in advance, and thereafter annually in advance. All charges shall be invoiced by UWS and shall be paid by End User according to the payment terms identified in the Purchase Order. UWS may terminate UpKeep Customer Support if all past due, undisputed invoices are not paid by the UpKeep Customer Support renewal date. If UpKeep Customer Support has terminated because of non-renewal or non-payment, and End User desires to reinstate UpKeep Customer Support, UWS will reinstate available UpKeep Customer Support within 24 months after termination of UpKeep Customer Support if End user pays UWS: (a) all undisputed invoices, (b) the annual UpKeep Customer Support fee for the next one year UpKeep Customer Support Term, and (c) a reinstatement fee equal to 2% per month of the total annual UCS fee dating back to the date of termination.

9. Expenses. UWS shall be responsible for payment of all expenses hereunder in carrying out the UpKeep Customer Support. Notwithstanding the foregoing, should travel by UWS personnel be required by End User, End User will reimburse UWS for all reasonable expenses pursuant to invoices delivered to End User in respect of same that have been pre-approved by End User.

10. Warranty. All services will be provided in a commercially reasonable manner; all service personnel will be sufficiently and adequately trained for the type of service they are providing. Unless otherwise stated in this UCS Agreement, UWS offers no warranty express or implied, including, but not limited to, implied warranties or conditions of merchantable quality and fitness for a particular purpose, warranties with respect to response times or problem resolution and warranties arising by statute or otherwise in law or from a course of dealing or usage of trade, with respect to the UpKeep Customer Support provided under the terms of this UCS Agreement.

11. Termination. In the event that either party fails to comply with any term or condition of this UCS Agreement and the default has not been cured within thirty (30) days following receipt of written notice given by the other specifying such default, the other shall be entitled, in addition to any other rights it may have under this UCS Agreement or otherwise under law, to terminate this UCS Agreement by giving written notice to take effect immediately.

Either party shall have the option exercisable by written notice given to the other to terminate this UCS Agreement immediately if the other enters into or is placed into receivership, becomes insolvent, voluntarily or involuntarily becomes bankrupt, makes an assignment for the benefit of its creditors, ceases to carry on business, or is wound up.

UWS shall have the option exercisable by written notice given to End User to terminate this UCS Agreement ninety (90) days from the date of such notice, and will provide a pro-rata refund of any unused fees prepaid by the End User.

End User shall have the option exercisable by written notice given to UWS to terminate this UCS agreement for Missed response Times as indicated in Schedule C.

This UCS Agreement shall be automatically terminated if the EULA with respect to the Product is terminated with no refunds due.

The right of either party to terminate this UCS Agreement shall not be affected by its failure to take action with respect to any previous default.

12. Third Parties. Except as expressly provided in this Agreement, a person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.

Accepted: 

UpKeep Customer Support Services

ATTACHMENT A – SERVICE TYPES

UpKeep Customer Support is Upstream Works’ ongoing software maintenance and evergreen solutions plan, and is comprised of 4 levels of support.

Level Zero Support means the ability to take initial calls; log and track customer problems through to resolution; document problem descriptions and customer information in a case tracking tool, and provide periodic status reports to the customer.  Provide general pre and post sales product information.  

Level One Support is equivalent to Level Zero

Level Two Support means the ability to provide Level One Support plus respond to hardware and software configuration issues; respond to questions on upgrades; collect relevant technical problem identification information including logs, screen shots and recreation procedures; isolation of non UWS problems including network issues; and perform base problem determination for basic product feature use and configuration issues.  

Level Three Support means the ability to provide Level Two Support plus the ability to resolve the majority of mis-configurations; troubleshoot and simulate complex configuration, hardware, and software problems; support problem isolation and determination of UWS Product defects; provide lab simulation and interoperability and compatibility testing for new software and hardware releases prior to being deployed at an End User; define and execute problem resolution action plans; and provide the End User with  complete steps to reproduce most problems.  

Level Four Support means the ability to provide Level Three Support plus the ability to provide hot patches and fixes; generate work-arounds that address UWS Product non conformances; troubleshoot non conformances that were not diagnosed during Level Three Support; work directly with End Users to resolve critical situations; and build and execute action plans for resolving complex issues.

ATTACHMENT B – SERVICES PROVIDED

 UpKeep Customer Support

1. Hours of Operation. UpKeep Customer Support (UCS) is provided 24×7 for Severity One and Two Level issues, and Business Days from 4 AM to 5 PM Eastern Time for Severity Three and Four Level issues.
2. Problem Reporting. Problems can be reported by phone to +1 (905) 660 0969 ext 1 or via email to support@upstreamworks.com.
3. Upgrades. UCS includes continuous Software upgrades for purchased features (“Evergreen”) if such are made available. Installation services are extra and Third Party Software is not included. Should additional fees be required for Software upgrades for support of integration or customized features, Resellers will be notified and will be required to authorize payment for new software prior to any changes being installed by UWS.
4. Warranty Support. UWS will provide diagnosis and bug fixes of supported UWS Products at no additional charge.
5. Updates. For customers with Products that are not at the current version, UWS may supply fixes in the form of Software Maintenance Releases or Minor Releases. Should additional fees be required for Minor Releases for support of integration or customized features, ATP will be notified and will be required to authorize payment for new software prior to any corrections being installed by UWS.
6. 24×7 Availability. UWS will provide 24×7 availability to qualified support technicians for critical issues. 24×7 availability for Severity 3 and Severity 4 level issues is available at the following rates:  

Mon to Fri, Business Days

4AM to 5PM –     included

8AM to 9AM –     per Diem hourly rate

5PM to 7PM –      per Diem hourly rate

7PM to 11PM –     per Diem hourly rate times 1.5; 3 hour minimum

11PM to 8AM –     per Diem hourly rate times 2; 3 hour minimum

Sat; Sun; Holidays

8AM to 7PM –       per Diem hourly rate times 1.5; 3 hour minimum

7PM to 8AM –       per Diem hourly rate times 2; 3 hour minimum

All times listed are Eastern Time.  

7. Response Time. UWS will respond to all UCS calls within 1 hour. Our typical response time is within 15 minutes. Problems must be reported by phone for guaranteed response times.

8. Test Systems. UWS will provide one 6 CAL license of the UWS Products for active, non-production use on an independent System. Licenses can be used for demonstration, development, training or testing purposes. Set up and configuration of this system by UWS personnel is not included in these fees.

9. Software Escrow. UWS offers access to its Software Escrow accounts for UpKeep Customers for an annual Escrow fee and subject to Customer agreeing to applicable Escrow Agreement provisions. Subject to the provisions of the EULA shall only use the source code internally in accordance with the EULA for the purpose of providing maintenance, and support for, or to add functionality to the Software. Subject to the terms and conditions of this EULA, Customer’s contractors shall have the same limited rights to use the source code as are granted to Customer under this section, provided that no more than two unrelated contractors will be utilizing the source code simultaneously. All contractors shall comply with the terms and conditions of the EULA and this section when working with or accessing the source code.

10. Scheduled Green Zone Support – UWS will provide resources for afterhours support during prescheduled maintenance windows.

11. Integration and Customized Software Support – Upstream Works will support integrated or customized software that has been provided to an End User by Upstream Works as long as it is operating on a supported release of Upstream Works software, and is covered under a valid UCS Agreement. Changes required to integrated or customized software as a result of system changes due to UWS or third party upgrades are not included. Upstream Works will also maintain all integrated software in an industry standard source and version control system at its premises. UWS will maintain the source code for any integrated or customized software under UCS at its facilities under source control for End User.

Time and Materials Support 

For End Users who do not have a valid UCS Agreement, Upstream Works will supply Time and Materials support at its then standard hourly rates for its current version of software and minus one revision level.  Upstream Works is under no obligation to provide support for customized software originally created by Upstream Works. Such support is provided during business hours using commercially reasonable efforts as it relates to response times.  After hours support is not provided on Time and Materials.  Problem reporting is via email only.

Upstream Works cannot supply additional licenses or upgrades to systems not under a valid UpKeep Customer Support Agreement.

End Users who are using software that is not currently supported and wish to get Time and Materials support must upgrade all software to the current version at Upstream Works’ then current cost.

Any software developed on a ‘per diem’ basis is delivered ‘as is’ and is not covered under the terms of this agreement.

ATTACHMENT C – UPKEEP CUSTOMER SUPPORT SERVICES

Release Support Policy 

UWS will provide support for the last two point releases prior to a whole number Upgrade Version for a period of 15 months after the release of the subsequent whole number Upgrade Version, or for 36 months from the original date of release, whichever is longer.

Upstream Works may, at its sole discretion, provide software fixes in the form of a newer minor release level at no charge.  Any implementation services that may be required are not included.

Definitions for All UCS Levels:  

Problem Definition

Severity 1 (S1) means an error isolated to the UWS Software or UWS Product in a production environment that renders the product inoperative or causes the product to fail catastrophically; e.g. critical system impact; system down.

Severity 2 (S2) means an error isolated to UWS Software or UWS Product in a production environment where the product’s operations are severely degraded or significant aspects of the product are not performing with significant business impact

Severity 3 (S3) means an error isolated to UWS Software or UWS Product in a production environment where most business functions remain operational

Severity 4 (S4) means any issue related to UWS Software or UWS Products that require additional information or a system error where there is no specific impact on service.

Response Times

Response to a problem report – 1 business hour or less for UCS. This response will determine the level of the problem being reported (S1, S2, S3, S4). All problem reports must be made by phone to qualify for a response time guarantee.

Resolution of a problem report

For problems that are recurring, UWS will provide a resolution or workaround to any S1 or S2 problem within 24 hours of the problems reporting, or provide best efforts to provide a resolution as quickly thereafter as is possible.  For problems with infrequent manifestations, UWS will provide a resolution within 6 problem cycles of the problem’s reporting.

For problems that are not easily re-creatable, UWS will endeavor to recreate the problem within 5 business days of the problems reporting. A resolution will then be provided as above.  Escalation to UWS management and to End User management will be made for problems that have not been recreated after one week.

S3 problems will be resolved as quickly as possible on a best efforts basis.

S4 problems will be resolved in the next scheduled maintenance release of the software, not to exceed 6 months from the reporting date of the problem.

Remedy for Missed Response Times

In the event that UWS does not meet its contracted response times, End User shall have the right to escalate directly to UWS management and seek the following remedies:

Ongoing written status reports from UWS’ management as to progress on the specific problem in question at a frequency as defined by End User

Ongoing verbal status reports via conference call from UWS management as to progress on the specific problem in question at a frequency as defined by the End User.

Failure of UWS to meet contracted response times more than four consecutive incidents in a ninety (90) day period will be grounds for termination pursuant to Section 11 of this Agreement.

Updated: January 23, 2024