“Error” means either (a) a failure of the Software to conform to the specifications set forth in the Documentation, resulting in the inability to use, or restriction in the use of, the Software, and/or (b) a problem requiring new procedures, clarifications, additional information and/or requests for product enhancements.
“Update” means either a software modification or addition that, when made or added to the Software, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Software, eliminates the practical adverse effect of the Error on Customer.
“Upgrade” means a revision of the Software released by Driven to its end user customers generally, during the Support Services Term, to add new and different functions or to increase the capacity of the Software. Upgrade does not include the release of a new product or added features for which there may be a separate charge.
2. Driven Customer Support Services. Driven’s Support Services includes Maintenance Releases, telephone support and web-based Driven Support. Driven shall have no obligation to support or maintain any version of the Software except (i) the then current version of the Software, and (ii) the immediately preceding version of the Software for a period of six (6) months after it is first superseded. Driven reserves the right to suspend performance of the Support Services if Customer fails to pay any amount that is payable to Driven under the Agreement within thirty (30) days after such amount becomes due.
3. Updates. Driven will make commercially reasonable efforts to provide an Update designed to solve or by-pass a reported Error. If such Error has been corrected in a Maintenance Release, Customer must install and implement the applicable Maintenance Release; otherwise, the Update may be provided in the form of a temporary fix, procedure or routine, to be used until a Maintenance Release containing the permanent Update is available. Customer shall reasonably determine the priority level of Errors, pursuant to the following protocols:
a. Severity 1 Errors: A Severity 1 Production Error means the (i) production system is severely impacted or completely shut down, or (ii) system operations or mission-critical applications are down. A Severity 1 Development Error means (iii) an application is in final testing, facing a critical time frame of going into Production Use and is severely impacted or (iv) entire development efforts are blocked. Upon receiving a report of a Severity 1 Error, Driven will promptly: (1) respond to Customer’s request within 2 hours; (2) ensure that a specialist(s) begins work on the Error within 2 hours, where such specialist(s) shall continue to expend best-efforts thereafter to work towards providing an Update as soon as possible; and (3) provide ongoing communication on the status of an Update.
b. Severity 2 Errors: A Severity 2 Production Error means (i) the production system is functioning with limited capabilities, or (ii) is unstable with periodic interruptions, or (iii) mission critical applications, while not being affected, have experienced material system interruptions. A Severity 2 Development Error means (iv) there is a time sensitive question impacting performance or deliverables, or (v) a major subsystem under development is blocked. Upon receiving a report of a Severity 2 Error, Driven will promptly: (1) respond to Customer’s request within 4 hours; (2) ensure that a specialist(s) begins work on the Error within 8 hours, and the specialist(s) will make commercially-reasonable efforts thereafter to provide an Update as soon as possible; and (3) provide ongoing communication on the status of an Update.
c. Severity 3 Errors: A Severity 3 Error means there (i) are minor errors in fully-operational production systems, or (ii) there are errors in system development that may impact performance deliverables. Upon receiving a report of a Severity 3 Error, Driven will: (1) respond to Customer’s request within 24 hours; and (2) make commercially-reasonable efforts to include a patch or fix for the Error in Driven’s next Upgrade; and (3) provide ongoing communication on the status of an Update.
d. Severity 4 Errors: A Severity 4 Error is (i) a need to clarify procedures or information in documentation, or (ii) is a request for a product enhancement. Driven may include an Update in the next Maintenance Release. Upon receiving a report of a Severity 4 Error, Driven will: (1) respond to Customer’s request within 48 hours; and (2) provide ongoing communication on the status of an Update.
4. Maintenance Releases and Upgrades. During the Subscription Term, Driven shall make Maintenance Releases available to Customer if, as and when Driven makes any such Maintenance Releases generally available to its customers. If a question arises as to whether a product offering is an Upgrade or a new product or feature, Driven’s categorization will govern, provided that Driven treats the product offering as a new product or feature for its end user customers generally.
5. Conditions for Providing Support. Driven’s obligation to provide Support Services is conditioned upon the following: (a) Customer makes reasonable efforts to correct the Error after consulting with Driven; (b) Customer provides Driven with sufficient information and resources to correct the Error either at Driven’s Customer Support Center or via remote access to Customer’s site, as well as access to the personnel, hardware, and any additional software involved in discovering the Error; (c) Customer promptly installs all Maintenance Releases; and (d) Customer procures, installs and maintains all equipment, telephone lines, communication interfaces and other hardware necessary to operate the Software.
6. Technical Support Contacts: The Driven Customer Support Center will provide telephone support to two (2) Customer contacts (“Technical Support Contacts”). Technical Support Contacts will be the only interface to the Driven Customer Support Center. In an emergency, a Driven Customer Support Engineer will begin working on an Error for an unauthorized contact on an exception basis subject to later verification and involvement of a named Technical Support Contact.
7. Exclusions from Driven’s Support Services. Driven is not obligated to provide Support Services in the following situations: (a) the Software has been changed, modified or damaged (except if under the direct supervision of Driven); (b) the Error is caused by Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of Driven; (c) the Error is caused by third party software not licensed through Driven; or (d) Customer has not installed and implemented Maintenance Release(s).