Terms And Conditions of Services

Acceptance of Agreement Terms

We understand a signed copy of this document will give Superna the authority to arrange resources on our behalf.   Service will be handled with reasonable effort based on resource availability and management discretion. Superna Inc and Superna LLC Terms and Conditions for shall govern the services provided under this SOW.

Company Name _____________

Signed: ____________________

Name (PRINT):______________                                                            

Position:___________________

Telephone: ________________                                                                        



These Terms and Conditions for flat rate Services (“Agreement”) govern all related services, parts and Software provided by Superna Inc (“Superna”) in connection with the applicable quote and/or other similar Superna Service Description document referencing this Agreement.

NOW, THEREFORE, it is agreed as follows:

1.0        DEFINITIONS

1.1        Core Software” means the programming, microcode and/or firmware (excluding source code), if any, and the related standard documentation therefor, if any, that is generally included by Superna, at no additional charge, with the related Superna supplied product to enable it to perform its basic functions.

1.2        Enterprise Storage Software” means the programming (excluding source code, Core Software and Maintenance Aids), and the related standard documentation therefor, that was obtained, directly or indirectly from Superna and is used in connection with the Supported Software.

1.3        Equipment” means the data storage devices and the central processing unit, if any, that comprise customer owned Equipment.

1.4        Supported System” means the configuration of Equipment and Software identified on the applicable Superna quote and/or other similar Superna documentation referencing this Agreement.

1.5        Installation Site” means the location identified as such on the applicable Superna quote and/or other similar Superna documentation referencing this Agreement.

1.6        Maintenance Aids” means any hardware, programming and other tools and/or utilities used by Superna to perform diagnostic or remedial activities hereunder.

1.7        Software” means Core Software and Enterprise Storage Software, and subsequent releases thereof provided hereunder.

1.8        Flat Rate (“Flat Rate”) Service” is as set forth in sub-section 2.2 below.

2.0        Flat Rate SERVICE

2.1        General Prepaid Service and the applicable fee for labor, as set forth on the applicable Superna published price list and/or other similar Superna documentation referencing this Agreement, and shall be binding on the parties hereto.

2.2        Description - Flat Rate Service consists of (i) identifying or configuration required (via remote resources) with regard to the Supported System, and the use of good faith efforts in an attempt to configure such system to good operating condition in conformance with Superna’s applicable specifications or SOW or Service Description; or (ii) performance outside the scope of the standard Superna service agreement, if any, between Superna and Customer. Equipment or Software provided hereunder, including that which is needed to utilize features or functionality in a later release of Software, are separately chargeable items.

2.3        Remote Support Capability – Customer authorizes Superna to use remote support capabilities via webex or similar tool, which may include temporarily enabling the Core Software to directly contact a Superna support center. Upon such contact, Superna may call back to such Core Software to gather additional diagnostic data, conduct further tests and remotely perform certain repairs and/or adjustments to equipment listed in the documents or quotes that reference this agreement. Superna shall use stringent security measures, such as authentication and encryption, to prevent unauthorized access during this process.

2.4        Customer Responsibilities - Customer shall promptly, and without charge to Superna, (i) allow Superna access to the Supported System to perform Flat Rate Service or implement the terms of this Agreement; (ii) furnish necessary facilities via remote access methods or sharing of files, screens and product login consoles to carry out the Flat Rate Service; and (iii) co-operate with, follow Superna’s full instructions and assist Superna by providing to Superna such information and such access to Customer’s personnel, Installation Site, equipment, databases, Software, and other resources as are required by Superna, or as Superna may reasonably request.  All such information and access will be considered Customer’s deliverables, the timely, complete, and accurate performance of which is a condition upon Superna providing its services.

2.5        Payments – This service is a flat rate fixed scope service as described in the SOW provided.  No further payment or fees are expected.  Scope of service if fixed with no changes allowed,  scope changes requested by customer or partner may incur increased fees and require new purchase of additional service hours.

3.0        ADDITIONAL TERMS

3.1        Maintenance Aids - Customer authorizes Superna to store Maintenance Aids at the Installation Site and agrees that such are for use only by Superna authorized personnel. Customer shall not make, and shall use reasonable care to prohibit its personnel or any third party from making, any copies, use, disclosure or transfer of Maintenance Aids. Superna is authorized, at any other time to request access to Maintenance Aids.

3.2        Replacement Parts - All hardware components are excluded and remain customer's responsibility to maintain support agreements for all equipment and software required for completion of the Flat Rate service. Failure to have support agreements with vendors for support purposes, is a condition upon Superna providing its services and failure to have support agreements is a fundamental breach of this agreement and voids all Superna obligations under this agreement, with Customer remaining liable to Superna for payment of its fees, expenses and related taxes.

3.3        Software Releases - All or any portion of any release of Core Software or Enterprise Storage Software provided hereunder shall be governed by the applicable licensing terms in the product ordering agreement then in effect between Superna and Customer, or, in the absence thereof, by the applicable licensing terms in Superna’s then current standard agreement for ordering Superna products (a copy of which is available upon Customer request and posted EULA and support agreement here).

4.0        WARRANTY

4.1        Product Maintenance - Superna warrants that (i) it shall perform Flat Rate Service in a workmanlike manner in accordance with generally accepted industry standards; and (ii) any components or Software provided hereunder shall perform in accordance with the applicable Superna specification for thirty (30) days after installation. Customer’s exclusive remedy and Superna’s entire liability under the foregoing warranties shall be for Superna, at its option, to use reasonable efforts to re-perform any deficient services within a reasonable time, repair or replace any Software that become defective within thirty (30) days after installation as covered by product maintenance terms and conditions.

4.2        Disclaimer Of Warranties - SUPERNA PROVIDES Flat Rate SERVICE PRODUCT MAINTENANCE ON AN “AS IS” BASIS. SUPERNA MAKES NO GUARANTEES WITH REGARD TO THE RESULTS OBTAINED FROM THE WORK UNDERTAKEN BY SUPERNA, THE TOOLS OR THIRD PARTY PRODUCTS.   SUPERNA DOES NOT WARRANT THAT THE WORK UNDERTAKEN BY SUPERNA OR THE TOOLS WILL BE ERROR-FREE. EXCEPT AS PROVIDED IN THIS SECTION  4, SUPERNA DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES OR ANY PRODUCTS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT RESTRICTED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.

5.0        PATENT AND COPYRIGHT INFRINGEMENT

5.1        All components and Software provided hereunder shall be governed by the patent and copyright infringement indemnity terms in the product ordering agreement then in effect between Superna and Customer, or, in the absence thereof, by the patent and copyright infringement indemnity terms in Superna’s then current standard agreement for ordering Superna products.

6.0        LIMITATION OF LIABILITY

SUPERNA’S LIABILITY TO THE CUSTOMER FOR ANY BREACH OF THIS AGREEMENT SHALL IN ALL CIRCUMSTANCES BE LIMITED TO THE  DIRECT  DAMAGES  ARISING  FROM  SUCH  BREACH,  AND SUPERNA SHALL NEVER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCLUDING LOSS OF DATA, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSS OF PROFIT, WHETHER IN  CONTRACT,  TORT  OR  OTHERWISE,  RESULTING  FROM  OR ARISING IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT BY SUPERNA.  IN ANY EVENT, THE LIABILITY OF SUPERNA FOR ANY CAUSE  OR  CAUSES  WHATSOEVER  SHALL  BE  LIMITED  TO  THE LESSER OF (i) CDN$10,000.00 AND (ii) THE FEES  PAID  BY THE CUSTOMER TO SUPERNA FOR THE FLAT RATE SERVICE FROM WHICH SUCH CLAIM ARISES; AND THE OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES OF SUPERNA SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED OR IMPLIED HEREIN, SUPERNA SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER RELATING TO THE TOOLS, THIRD PARTY PRODUCTS, OR ANY GOODS OR SERVICES NOT DEVELOPED OR PROVIDED BY SUPERNA.

7.0        TERMINATION

7.1        Survival Of Terms - Any provision of this Agreement that by its very nature or context is intended to survive any termination, cancellation or expiration, including but not limited to provisions concerning payment of outstanding amounts, indemnities and limitations of liabilities, shall so survive.

8.0        GENERAL

8.1        Independent Contractors - Nothing contained herein shall be deemed to constitute (i) either party as an agent or representative of the other, or (ii) both parties as joint venturers or partners for any purpose. Other than as detailed in this Agreement, neither party shall be responsible for the acts or omissions of the other, and neither party will have authority to speak for, represent or obligate the other party in any way without the prior written approval of the other party. Nothing contained herein shall be construed as preventing either party from developing, acquiring, marketing, selling, supporting or maintaining products and/or services similar to those described herein, or from entering into similar agreements with other entities, provided that in so doing, there is no breach of any obligation of confidentiality set forth herein.

8.2        Entire Agreement - This Agreement (i) is the complete statement of the agree­ment of the parties, and shall supersede all prior communications and agreements, either oral or written, with regard to the subject matter hereof; (ii) may be modified only by a writing signed by both parties; (iii) is governed by the laws of the Province of Ontario, excluding its conflict of law rules and The U.N. Convention on Contracts for the International Sale of Goods; and (iv) shall not be amended by and shall control in case of an inconsistent or conflicting term set forth on any other document used by customer in connection with the Flat Rate Service described on the applicable Superna quote and/or other similar Superna documentation referencing this Agreement. The waiver of any breach or default shall not constitute a waiver of (a) any other right or remedy hereunder; or (b) any subsequent breach or default. If any part of this Agreement is held unenforceable, the validity of the remaining provisions shall not be affected. Each party shall comply with and obtain all authorizations required by U.S. and Canadian export control laws and all related regulations.