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 Terms & Conditions Click here to print this page.Click here to bookmark this page.  

Terms and Conditions

Unless Customer has another valid agreement with SIMCOM, the following terms and conditions will apply. SIMCOM's sale of Products and Support and SIMCOM's license of Software are governed by these SIMCOM Single Order Terms.

SIMCOM Base Terms

Definitions


a) "Affiliate" of a party means an entity controlling by, or under common control with, that party.

b) "Deliverable" means the tangible work product resulting from the performance of Support excluding Products and Custom Products.

c) "Hardware" means computer and related devices and equipment, related documentation, accessories, parts, and upgrades.

d) "SIMCOM Branded" means Products and Support bearing a trademark or service mark of SIMCOM or any SIMCOM Company Affiliate, and embedded SIMCOM selected third party Software that is not offered under a third party license agreement.

e) "Product" means Hardware and Software listed in SIMCOM's standard price list at the time of SIMCOM's acceptance of Customer order, and including products that are modified, altered, or customized to meet Customer requirements ("Custom Products").

f) "Software" means machine-readable instructions and data (and copies thereof) including middleware and firmware and related updates and upgrades, licensed materials, user documentation, user manuals, and operating procedures.

g) "Specification" means technical information about Products published in SIMCOM Product manuals, user documentation, and technical data sheets in effect on the date SIMCOM delivers Products to Customer.

h) "Statement of Work" means an executed document so titled, that describes the Custom Support to be performed by SIMCOM under the Support Terms section.

i) "Support" means Hardware maintenance and repair, Software maintenance, training, installation and configuration, and other standard support services provided by SIMCOM and includes "Custom Support" which is any agreed non-standard Support as described in a Statement of Work.

j) "Transaction Document(s)" means an accepted Customer order (excluding pre-printed terms) and in relation to that order valid SIMCOM quotations, license terms delivered or otherwise made available to Customer with Software, SIMCOM published technical data sheets or service descriptions, SIMCOM limited warranty
statements delivered with or otherwise made available to Customer with Products, and mutually executed Statement of Work, all as provided by SIMCOM, or other
mutually executed documents that reference these SIMCOM Single Order Terms ("Terms").

k) "Version" means a release of Software that contains new features, enhancements, and/or maintenance updates, or for certain Software, a collection of revisions packaged into a single entity and, as such, made available by SIMCOM to its customers (also called a "Release").

Prices and Taxes


a) Prices. Product and Support prices are specified in the current local published SIMCOM price list at the time SIMCOM receives Customer's order, or in a valid Transaction Document. Prices are subject to change at any time prior to SIMCOM's acceptance of Customer's order, unless stated otherwise in a Transaction Document.

b) Price Validity. Unless prices are changed by SIMCOM in accordance with these Terms, prices are valid for the period set forth in a Transaction Document. Product prices for an order remain valid for seven (7) days from original order date unless otherwise quoted by SIMCOM.

c) Taxes. Prices are exclusive of, and Customer shall pay, all taxes, duties, levies or fees, or other similar charges imposed on SIMCOM or on the Customer by any taxing authority (other than taxes imposed on SIMCOM's income) related to Customer's order, unless Customer has provided SIMCOM with an appropriate resale or exemption certificate for the delivery location. "Delivery location" means the location where SIMCOM transfers title or possession of Products to Customer or its designate or the location where Support is performed or, in the case of remote or intangible Support, where the Products being serviced are located.

d) Withholding Tax. If Customer is required by law to withhold and remit tax relating to Customer's order, Customer shall:

1) be entitled to reduce the payment by the amount of such tax;

2) withhold and remit such tax to the applicable tax jurisdiction;

3) assist SIMCOM to obtain the benefit of any reduced withholding tax under applicable tax treaties; and

4) furnish to SIMCOM a tax certificate or other acceptable evidence of payment of such tax as required by the relevant taxing authorities.
e) Financing. Third party financing transactions require advance notice to SIMCOM for appropriate tax treatment.

Customer Orders


a) Orders. Orders will be governed by these Terms and are subject to acceptance by SIMCOM. Orders must specify a "ship to" address and have a delivery date within thirty (30) days from the order date unless otherwise provided in a Transaction Document.

b) Cancellation. Customer may cancel an order for Products (but not Custom Products) at no charge up to five (5) business days prior to the scheduled shipment date. A restocking will apply and will vary depended on any given order.

c) Extended Delivery Dates. Changes to orders that extend delivery dates beyond thirty (30) days from the order date shall be considered new orders at the prices in effect when SIMCOM receives the changed order.

Delivery


a) Delivery. SIMCOM will deliver Products by arranging shipping to the receiving area at the "ship to" address specified in Customer's order within the country in which SIMCOM accepted the order. SIMCOM may elect in its sole discretion to deliver Software, Deliverables, Specifications, or Product documentation by enabling electronic transmission to, or electronic access or download by Customer in the country where SIMCOM accepted the order.

b) Delivery Charges. Transportation and handling charges are payable by Customer and will be specified in an SIMCOM invoice unless otherwise specified in a Transaction Document. Special packing or shipping arrangements will be charged separately to Customer.

c) Delivery Requirements. If SIMCOM is unable to meet Customer's Product delivery requirements, Customer may cancel that order, and such cancellation is Customer's sole remedy.

Payment


a) Payment Terms. Customer agrees to pay, without offset, all invoiced amounts within seven (7) days of SIMCOM's invoice date. SIMCOM may change credit or payment terms for unfulfilled orders if, in SIMCOM's reasonable opinion, Customer's financial condition, previous payment record, or relationship with SIMCOM merits such change.

b) Customer Default. SIMCOM may discontinue performance if Customer fails to pay any sum due, or if after ten (10) days written notice Customer has not cured any other failure to perform under these Terms.

c) Security Interest. SIMCOM retains a security interest in Products until payment. Customer shall execute any paperwork required by SIMCOM to effectuate any such security interest.

Warranty Provisions


a) Warranty Statements. SIMCOM limited warranty statements for Hardware, Software and Support, as applicable, are contained in their respective sections of these Terms. The limited warranties in these Terms are subject to the terms, limitations, and exclusions contained in the limited warranty statement provided for the Product in the country where that Product is located when the warranty claim is made. A different limited warranty statement may apply and be quoted if the Product is purchased as part of a system.

b) Transfer. Warranties are transferable to another party for the remainder of the warranty period subject to SIMCOM license transfer policies and any assignment restrictions.

c) Delivery Date. Warranties begin on the date of delivery, or on the date of installation if installed by SIMCOM. If Customer schedules or delays such installation by SIMCOM more than thirty (30) days after delivery, Customer's warranty period will begin on the 31st day after delivery.

d) Exclusions. SIMCOM is not obligated to provide warranty services or Support for any claims resulting from:

1) improper site preparation, or site or environmental conditions that do not conform to SIMCOM's site specifications;

2) Customer's non-compliance with Specifications or Transaction Documents;

3) improper or inadequate maintenance or calibration;

4) Customer or third-party media, software, interfacing, supplies, or other products;

5) modifications not performed or authorized by SIMCOM;

6) virus, infection, worm or similar malicious code not introduced by SIMCOM; or

7) abuse, negligence, accident, loss or damage in transit, fire or water damage, electrical disturbances, transportation by Customer, or other causes beyond SIMCOM's control.

e) Non-SIMCOM Branded Products and Support. SIMCOM provides third-party products, software, and services that are not SIMCOM Branded "AS IS" without warranties of any kind, although the original manufacturers or third party suppliers of such products, software and services may provide their own warranties.

e) Disclaimer. THE WARRANTIES AND ANY ASSOCIATED REMEDIES EXPRESSED OR REFERENCED IN THESE TERMS ARE EXCLUSIVE. NO OTHER WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY SIMCOM OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT ALLOWED BY LOCAL LAW SIMCOM DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT.

Intellectual Property Infringement


a) Third-Party Claims. SIMCOM will defend or settle any claim against Customer alleging that SIMCOM Branded Products or Support (excluding Custom Products and Custom Support) provided under these Terms infringes intellectual property rights in the country where they were sold, if Customer:

1) promptly notifies SIMCOM of the claim in writing;
2) cooperates with SIMCOM in the defense of the claim; and
3) grants SIMCOM sole control of the defense or settlement of the claim.

SIMCOM will pay infringement claim defense costs, SIMCOM-negotiated settlement amounts, and court-awarded damages.

b) Remedies. If such a claim appears likely, then SIMCOM may modify the SIMCOM Branded Products or Support, procure any necessary license, or replace the affected item with one that is at least functionally equivalent. If SIMCOM determines that none of these alternatives is reasonably available, then SIMCOM will issue Customer a refund equal to:

1) the purchase price paid for the affected item if within one year of delivery, or the Customer's net book value thereafter; or
2) if the claim relates to infringing Support, the lesser of twelve (12) months charges for the claimed infringing Support or the amount paid by Customer for that Support.

c) Exclusions. SIMCOM has no obligation for any claim of infringement arising from:

1) SIMCOM's compliance with Customer or third party designs, specifications, instructions, or technical information;
2) modifications made by Customer or a third party;
3) Customer non-compliance with the Specifications or the Transaction Documents; or
4) Customer use with products, software, or services that are not SIMCOM Branded.

d) Sole and Exclusive. This sub-section A.7 states SIMCOM's entire liability for claims of intellectual property infringement.

Intellectual Property Rights


No rights in copyright, patents, trademarks, trade secrets, or other intellectual property are granted by either party to the other except as expressly provided under these Terms. Customer will not register or use any mark or internet domain name that contains SIMCOM's trademarks (e.g., "SIMCOM", "SIMCOM Enterprises", or "SIMCOM Software").

Restricted Use


Products, Support, and Deliverables are not specifically designed, manufactured, or intended for use as parts, components, or assemblies for the planning,
construction, maintenance, or direct operation of a nuclear facility. Customer is solely liable if Products, Support, or Deliverables purchased by Customer are used
for these applications and will indemnify and hold SIMCOM harmless from all loss, damage, expense, or liability in connection with such use.

Limitation of Liability and Remedies


a) Limitation of Liability. Except for the amounts in sub-section A.7 above and damages for bodily injury (including death) SIMCOM's total aggregate liability is limited to the amount paid by Customer for:

1) the Product; or
2) Support during the period of a material breach up to a maximum of twelve (12) months; that in each case is the subject of the claim.

b) Disclaimer of Consequential Damages. EXCEPT FOR CLAIMS BY A PARTY FOR INFRINGEMENT OF THEIR INTELLECTUAL PROPERTY RIGHTS AGAINST THE OTHER PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL COSTS OR DAMAGES INCLUDING, WITHOUT LIMITATION, DOWNTIME COSTS; LOST BUSINESS, REVENUES, OR PROFITS; FAILURE TO REALIZE EXPECTED SAVINGS; LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA; OR SOFTWARE RESTORATION.

c) Legal Theory. TO THE EXTENT ALLOWED BY LOCAL LAW, THESE LIMITATIONS WILL APPLY REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, MISREPRESENTATION, BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT OR OTHERWISE.

General

a) Electronic Orders and EDI. Where facilitated under local law, the parties may do business electronically, including order placement and acceptance. Once accepted, such orders will create fully enforceable obligations subject to these Terms. Such orders and acceptances will be deemed for all purposes to be an original signed writing. Customer and SIMCOM will adopt commercially reasonable security measures for password and access protection.

b) Internal Use. Products and Support acquired by Customer under these Terms are solely for Customer's own internal use and not for resale or sub-licensing.

c) Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control; however, this provision will not apply to Customer's payment obligations.

d) Assignment. Customer may not assign, delegate or otherwise transfer all or any part of its rights or obligations under these Terms without prior written consent from SIMCOM. Any such attempted assignment, delegation, or transfer will be null and void. Assignments of SIMCOM Software licenses are subject to compliance with SIMCOM's Software license transfer policies.

e) Export and Import. Customer who exports, re-exports, or imports Products, technology, or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations. SIMCOM may suspend performance if Customer is in violation of any applicable laws or regulations.

f) Governing Law. Disputes arising from these Terms will be governed by the law of the jurisdiction of the principal place of business of the SIMCOM Affiliate accepting the order to which the dispute relates and the courts of that locale will have jurisdiction, except that SIMCOM may, at its option, bring suit for collection in the country where the Customer Affiliate that placed the order is located. Customer and SIMCOM agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Claims arising or raised in the United States will be governed by the laws of the State of California, excluding rules as to choice and conflict of law.

g) Bankruptcy. If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may cancel any unfulfilled obligations.

h) Survival. Any provisions in these Terms which by their nature extend beyond the termination or expiration of any sale or license of Products or Support will remain in effect until fulfilled and will apply to both parties' respective successors and permitted assigns.

i) Notices. All notices that are required under these Terms will be in writing and will be considered effective upon receipt.

j) Entire Agreement. These Terms represent the entire agreement between SIMCOM and Customer regarding Customer's purchase of Products and Support, and supersedes and replaces any previous communications, representations, or agreements, or Customer's additional or inconsistent terms, whether oral or written. In the event any provision of these Terms is held invalid or unenforceable the remainder of the Terms will remain enforceable and unaffected thereby.

k) Waiver. Neither party's failure to exercise or delay in exercising any of its rights under these Terms will constitute or be deemed a waiver or forfeiture of those rights.

l) Order of Precedence. Unless otherwise agreed or provided herein, documents will apply in the following descending order of precedence:

1) Transaction Documents consisting of license terms or limited warranty statements delivered or otherwise made available to Customer with Products;
2) the sections of these Terms;
3) all other Transaction Documents.

m) Independent Contractor. SIMCOM is an independent contractor in the performance under these Terms and neither SIMCOM nor any SIMCOM personnel are employees or agents of Customer. Nothing in these Terms will be construed as creating a joint venture, partnership or employment relationship between the parties, nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other.

SIMCOM Hardware Terms


Risk of Loss

Risk of loss or damage, and title to Hardware, will pass to Customer and acceptance will occur upon delivery to the "ship to" address or, if special shipping arrangements are agreed to, upon delivery to Customer's carrier or designee.

Installation

If SIMCOM provides installation services, Customer will make available facilities that meet SIMCOM published site guidelines that will be provided to Customer upon request. Upon delivery, Customer will place each item of Hardware in its designated location. Installation is billed at SIMCOM's published installation charges unless quoted as part of the Hardware purchase price. Installation by SIMCOM is complete when the Hardware passes SIMCOM's standard installation and test procedures.

Trade-in Programs

Customer has the responsibility for risk of loss for trade-in Hardware until receipt by SIMCOM. Such items must be returned to SIMCOM as soon as reasonably practicable at Customer's expense free of all liens, claims, or encumbrances, or Customer will repay to SIMCOM the applicable trade-in credit.

Hardware-Limited Liability

Customer has the responsibility for risk of loss for trade-in Hardware until receipt by SIMCOM. Such items must be returned to SIMCOM as soon as reasonably practicable at Customer's expense free of all liens, claims, or encumbrances, or Customer will repay to SIMCOM the applicable trade-in credit.

Operation

SIMCOM does not warrant that the operation of Hardware will be uninterrupted or error free, or that Hardware will operate in Hardware and Software combinations other than as expressly required by SIMCOM in the Product Specifications or that Hardware will meet requirements specified by Customer. Customer may only use firmware embedded in the Hardware to enable the Hardware to function in accordance with its Specifications.

Exclusive Remedies

Upon notice of a valid warranty claim during the warranty period and if provided reasonable access to the SIMCOM Branded Hardware, SIMCOM will, at its option, repair a defect in the SIMCOM Branded Hardware, or correct a material non-conformance to Specifications, or replace such Hardware with Hardware of equal or better functional performance. If SIMCOM is unable, within a reasonable time, to complete the repair or correction, or replace such SIMCOM Branded Hardware, Customer will be entitled to a refund of the purchase price paid upon prompt return of such Hardware to SIMCOM. Subject to the terms in Customer's specific Product warranty statement Customer will pay expenses for return of such Hardware to SIMCOM. SIMCOM will pay expenses for shipment of repaired or replacement Hardware to Customer. This sub-section states SIMCOM's entire liability for Hardware warranty claims.

SIMCOM Software License Terms

License Grant

SIMCOM grants Customer a non-exclusive, non-transferable license to "Use", in object code form, the Version or Release of the SIMCOM Branded Software delivered from an SIMCOM accepted order. For purposes of these Terms, unless otherwise specified in the Transaction Documents, "Use" means to install, store, load, execute, and display one copy of the Software on one device at a time for Customer's internal business purposes. Customer's Use of such Software is subject to these license terms and the Use restrictions and authorizations for the Software specified by SIMCOM in Transaction Documents that accompany or are otherwise made available to Customer with the Software (the "Software License"). In the event of any conflict among such terms, the order of precedence will be the accompanying Transaction Documents then the terms of this section.

Third Party Software

For non-SIMCOM Branded Software, the third party supplier's license terms and use restrictions found in the Transaction Documents that may accompany that Software will solely govern its Use.

Ownership

This Software License confers no title or ownership and is not a sale of any rights in the Software. Third-party suppliers are intended beneficiaries under these Terms and independently may protect their rights in the Software in the event of any infringement. All rights not expressly granted to Customer are reserved solely to SIMCOM or its suppliers.

Acceptance


Customer accepts Software upon delivery.

Upgrades

Software Versions or maintenance updates, if available, may be ordered separately or may be available through Software Support. SIMCOM reserves the right to require additional licenses and fees for Software Versions or separately purchased maintenance updates or for Use of the Software in conjunction with upgraded Hardware or Software. When Customer obtains a license for a new Software Version, Customer's Software License for the earlier Version shall terminate. Software Versions are subject to the license terms in effect on the date that SIMCOM delivers or makes the Version available to Customer.

Licence Restrictions

a) Use Restrictions. Customer may not exceed the number of licenses, agents, tiers, nodes, seats, or other Use restrictions or authorizations agreed to and paid for by Customer. Some Software may require license keys or contain other technical protection measures. Customer acknowledges that SIMCOM may monitor Customer's compliance with Use restrictions and authorizations remotely, or otherwise. If SIMCOM makes a license management program available which records and reports license usage information, Customer agrees to appropriately install, configure and execute such license management program beginning no later than one hundred and eighty (180) days from the date it is made available to Customer and continuing for the period that the software is used.

b) Copy and Adaptation. Unless otherwise permitted by SIMCOM, Customer may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software. If Customer makes a copy for backup purposes and installs such copy on a backup device, unless otherwise provided in the Transaction Documents, Customer may not operate such backup installation of the Software without paying an additional license fee, except in cases where the original device becomes inoperable. If a copy is activated on a backup device in response to failure of the original device, the Use on the backup device must be discontinued when the original or replacement device becomes operable. Customer may not copy the Software onto or otherwise Use or make it available on, to, or through any public or external distributed network. Licenses that allow Use over Customer's intranet require restricted access by authorized users only.

c) Copyright Notice. Customer must reproduce all copyright notices that appear in or on the Software (including documentation) on all permitted copies or adaptations. Copies of documentation are limited to internal use.

d) Designated System. Notwithstanding anything to the contrary herein, the Software License for certain Software, as identified in Transaction Documents, is non-transferable and for use only on a computer system owned, controlled, or operated by or solely on behalf of Customer and may be further identified by SIMCOM by the combination of a unique number and a specific system type ("Designated System") and such license will terminate in the event of a change in either the system number or system type, an unauthorized relocation, or if the Designated System ceases to be within the possession or control of Customer.

e) OS Software. Operating system Software may only be used when operating the associated Hardware in configurations as approved, sold, or subsequently upgraded by SIMCOM or an authorized SIMCOM business partner.

f) Changes. Customer will not modify, reverse engineer, disassemble, decrypt, decompile, or make derivative works of the Software. Where Customer has other rights mandated under statute, Customer will provide SIMCOM with reasonably detailed information regarding any intended modifications, reverse engineering, disassembly, decryption, or decompilation and the purposes therefore.

g) Use for Service Provision. Extending the Use of Software to any person or entity other than Customer as a function of providing services, (i.e.; making the Software available through a commercial timesharing or service bureau) must be authorized in writing by SIMCOM prior to such use and may require additional licenses and fees.

License Term and Termination

Unless otherwise specified in a Transaction Document, the Software License granted Customer will be perpetual, provided however that SIMCOM may terminate the Software License upon notice for failure to comply with these Terms. Immediately upon termination of the Software License or upon expiration of any individual limited term license, Customer will destroy the Software and all copies of the Software subject to the termination or expiration or return them to SIMCOM. Customer shall remove and destroy or return to SIMCOM any copies of the Software that are merged into adaptations, except for individual pieces of data in Customer's database. Customer may retain one copy of the Software subsequent to termination solely for archival purposes only. At SIMCOM's request, Customer will certify in writing to SIMCOM that Customer has complied with these requirements.

License Transfer

Customer may not sublicense, assign, transfer, rent, or lease the Software or the Software License to any other party except as permitted in this section. Except as provided in sub-section C.6.d above, SIMCOM Branded Software licenses are transferable subject to SIMCOM's prior written authorization and payment to SIMCOM of any applicable fees or compliance with applicable third party terms. Upon transfer of the Software License Customer's rights under the License will terminate and Customer will immediately deliver the Software and all copies to the transferee. The transferee must agree in writing to the terms of the Software License, and, upon such agreement, the transferee will be considered the "Customer" for purposes of the license terms. Customer may transfer firmware only upon transfer of the associated Hardware.

US Federal Government Use

If the Software is licensed for use in the performance of a U.S. Government prime contract or subcontract, Customer agrees that, consistent with FAR 12.211 and 12.212, commercial computer Software, computer Software documentation and technical data for commercial items are licensed under SIMCOM's standard commercial license.

Compliance

Customer agrees that SIMCOM may audit Customer's compliance with the Software License terms. Any such audit would be at SIMCOM's expense, require reasonable notice, and would be performed during normal business hours. If an audit reveals underpayments then Customer will immediately pay SIMCOM such underpayments together with the costs reasonably incurred by SIMCOM in connection with the audit and seeking compliance with this sub-section.

Warranty

SIMCOM Software will materially conform to its Specifications. If a warranty period is not specified for SIMCOM Branded Software, the warranty period will be ninety (90) days from the delivery date.

Virus Warranty

SIMCOM warrants that any physical media containing SIMCOM Branded Software will be shipped free of viruses.

Warranty Limitation

SIMCOM does not warrant that the operation of Software will be uninterrupted or error free, or that Software will operate in Hardware and Software combinations other than as expressly required by SIMCOM in the Product Specifications or that Software will meet requirements specified by Customer.

Exclusive Remedies

If notified of a valid warranty claim during the warranty period, SIMCOM will, at its option, correct the warranty defect for SIMCOM Branded Software, or replace
such Software. If SIMCOM is unable, within a reasonable time, to complete the correction, or replace such Software, Customer will be entitled to a refund of the
purchase price paid upon prompt return of such Software to SIMCOM. Customer will pay expenses for return of such Software to SIMCOM. SIMCOM will pay
expenses for shipment of repaired or replacement Software to Customer. This sub-section C.14 states SIMCOM's entire liability for warranty claims.

Implied license

There are no implied licenses.

Freeware and Open Source

Notwithstanding other statements in these Terms, Software licensed without fee or charge also referred to as Freeware and/or Open Source is provided "AS IS" without any warranties or indemnities of any kind. Software provided under any open source licensing model is governed solely by such open source licensing terms which will prevail over these Terms.

SIMCOM Support Terms

Support Services

a) Description of Support. SIMCOM will deliver Support according to the description of the offering, eligibility requirements, service limitations, and Customer responsibilities described in the relevant Transaction Documents.

b) Electronic Job Cards. Once accepted, such jobs will create fully enforceable obligations subject to these Terms. Such orders and acceptances will be deemed for all purposes to be an original signed writing. Customer and SIMCOM will adopt commercially reasonable security measures for password and access protection.

c) Ordering Support. Customer may order Support:

1) at the time of Product purchase, or prior to installation of Products for which Support is being purchased, for a fixed term (may be referred to as "SIMCOM Care Pack");
2) after the time of Product purchase, for either a fixed term or an initial term that may be renewed (may be referred to as "SIMCOM Contractual Services");
3) on a per-event basis; or
4) at any time, when agreed non-standard Support has been offered by SIMCOM for the Customer according to a Statement of Work (also known as "Custom Support") or as otherwise offered by SIMCOM.

d) Cancellation. Customer may cancel Support orders or delete Products from Support upon thirty (30) days written notice, unless otherwise stated in a Transaction Document. SIMCOM may discontinue Support for Products and specific Support services no longer included in SIMCOM's Support offering upon sixty (60) days
written notice, unless otherwise agreed. If Customer cancels prepaid Support, SIMCOM will refund Customer a pro-rata amount for the unused prepaid Support, less any early termination fees or subject to any restrictions set forth in a Transaction Document.

e) Return to Support. If Customer allows Support to lapse, SIMCOM may charge Customer additional fees to resume Support or require Customer to perform certain hardware or software upgrades. SIMCOM will review and assess whether such fees are required, and explain these to Customer at the time of the request to return to Support.

f) Local Availability. Customer may order Support from SIMCOM's current Support offerings. Some offerings, features, and coverage (and related Products) may not be available in all countries or areas.

g) Support Warranty. SIMCOM warrants that it will perform Support using generally recognized commercial practices and standards.

h) Exclusive Remedies. SIMCOM will re-perform Support not performed in accordance with the warranty herein. This sub-section D.1.g states SIMCOM's entire liability for Support warranty claims.

Pricing services, availability, and invoicing

a) Pricing. Except for prepaid Support or as otherwise stated in a Transaction Document, SIMCOM may change Support prices upon thirty (30) days written notice.

b) Additional Services. Additional services performed by SIMCOM at Customer's request that are not included in Customer's purchased Support will be chargeable at the applicable published service rates for the country where the service is performed. Such additional services include but are not limited to:

1) Customer requests for Support after SIMCOM's local standard business hours (unless Customer has specifically purchased after-hours coverage for the requested Support);
2) Customer requests for repair for damage or failure attributable to the causes specified in sub-section A.6.d of the SIMCOM Base Terms ("Warranty Exclusions"); and
3) Customer requests for Support where Customer does not, in SIMCOM's reasonable determination, meet the applicable prerequisites and eligibility requirements for Support.

c) Local Availability. Support outside of the applicable SIMCOM coverage areas may be subject to travel charges, longer response times, reduced restoration or repair commitments, and reduced coverage hours.

d) Invoicing. Invoices for Support will be issued in advance of the Support period. SIMCOM Support invoices and related documentation will be produced in accordance with SIMCOM system standards. Additional levels of detail requested by Customer may be chargeable.

Site and Product Access


Customer shall provide SIMCOM access to the Products covered under Support; adequate working space and facilities within a reasonable distance of the Products; access to and use of information, customer resources, and facilities as reasonably determined necessary by SIMCOM to service the Products; and other access requirements described in the relevant Transaction Document. If Customer fails to provide such access, resulting in SIMCOM's inability to provide Support, SIMCOM shall be entitled to charge Customer for the Support call at SIMCOM's published service rates. Customer is responsible for removing any Products ineligible for Support to allow SIMCOM to perform Support. If delivery of Support is made more difficult because of ineligible Products, SIMCOM will charge Customer for the extra work at SIMCOM's published service rates.

Site and Product Access

Customer shall provide SIMCOM access to the Products covered under Support; adequate working space and facilities within a reasonable distance of the Products; access to and use of information, customer resources, and facilities as reasonably determined necessary by SIMCOM to service the Products; and other access requirements described in the relevant Transaction Document. If Customer fails to provide such access, resulting in SIMCOM's inability to provide Support, SIMCOM shall be entitled to charge Customer for the Support call at SIMCOM's published service rates. Customer is responsible for removing any Products ineligible for Support to allow SIMCOM to perform Support. If delivery of Support is made more difficult because of ineligible Products, SIMCOM will charge Customer for the extra work at SIMCOM's published service rates.
Standard support product eligibility

a) Minimum Configuration for Support. Customer must purchase the same level of Support and for the same coverage period for: all Products within a minimum supportable system unit (i.e. all components within a server, storage, or network device) to allow for proper execution of standalone and operating system diagnostics for the configuration.

b) Eligibility. For initial and on-going Support eligibility Customer must maintain all Products and associated hardware and software at the latest SIMCOM-specified configuration and revision levels and in SIMCOM's reasonable opinion, in good operating condition.

c) Modifications. Customer will allow SIMCOM, at SIMCOM's request and at no additional charge, to modify Products to improve operation, supportability, and reliability, or to meet legal requirements.

d) Loaner Units. SIMCOM maintains title and Customer shall have risk of loss or damage for loaner units if provided at SIMCOM's discretion as part of Support or warranty services and such units will be returned to SIMCOM without lien or encumbrance at the end of the loaner period.

e) Relocation. Customer is responsible for moving Products. If Customer moves the Products to a new location, SIMCOM may charge additional Support fees and modify the response times, and Customer may be required to execute amended or new Transaction Documents. If Customer moves Products to another country, Support shall be subject to availability in the destination country. Reasonable advanced notice to SIMCOM may be required to begin Support for some Products after relocation.

f) Maximum Use Limitations. Certain Products have a maximum usage limit, which is set forth in the manufacturer's operating manual or the technical data sheet. Customer must operate such Products within the maximum usage limit.

g) Multi-Vendor Support. SIMCOM provides Support for certain non-SIMCOM Branded Products. The relevant Transaction Document will specify availability and coverage levels, and govern delivery of multi-vendor Support, whether or not the non-SIMCOM Branded Products are under warranty. SIMCOM may discontinue Support of non-SIMCOM Branded Products if the manufacturer or licensor ceases to provide support for such Products.

Proprietary Service Tools

SIMCOM will require Customer's use of certain system and network diagnostic and maintenance programs ("Proprietary Service Tools") for delivery of Support under certain coverage levels. Proprietary Service Tools are and remain the sole and exclusive property of SIMCOM, are provided "as is," and include, but are not limited to: remote fault management software, network Support tools. Proprietary Service Tools may reside on the Customer's systems or sites. Customer may only
use the Proprietary Service Tools during the applicable Support coverage period and only as allowed by SIMCOM. Customer may not sell, transfer, assign, pledge, or in any way encumber or convey the Proprietary Service Tools. Upon termination of Support, Customer will return the Proprietary Service Tools or allow SIMCOM to remove these Proprietary Service Tools. Customer will also be required to:

a) allow SIMCOM to keep the Proprietary Service Tools resident on Customer's systems or sites, and assist SIMCOM in running them;

b) install Proprietary Service Tools, including installation of any required updates and patches;

c) use the electronic data transfer capability to inform SIMCOM of events identified by the software;

d) if required, purchase SIMCOM-specified remote connection hardware for systems with remote diagnosis service; and

e) provide remote connectivity through an SIMCOM approved communications line.

Customer Responsibilities

a) Data Backup. To reconstruct lost or altered Customer files, data, or programs, Customer must maintain a separate backup system or procedure that is not dependent on the Products under Support.

b) Temporary Workarounds. Customer will implement temporary procedures or workarounds provided by SIMCOM while SIMCOM works on permanent solutions.

c) Hazardous Environment. Customer will notify SIMCOM if Customer uses Products in an environment that poses a potential health or safety hazard to SIMCOM employees or subcontractors. SIMCOM may require Customer to maintain such Products under SIMCOM supervision and may postpone service until Customer remedies such hazards.

d) Authorized Representative. Customer will have a representative present when SIMCOM provides Support at Customer's site.

e) Product List. Customer will create and maintain a list of all Products under Support including: the location of the Products, serial numbers, the SIMCOM-designated system identifiers, and coverage levels. Customer shall keep the list updated during the applicable Support period.

f) Documentation. If Customer purchases a Support offering that includes documentation updates, Customer may copy such updates only for systems under such coverage. Copies must include appropriate SIMCOM Trademark and copyright notices.

Supported Software

Customer may purchase available Support for SIMCOM Branded Software only if Customer can provide evidence it has rightfully acquired an appropriate SIMCOM license for such Software. SIMCOM will be under no obligation to provide Support due to any alterations or modifications to the Software not authorized by SIMCOM or for Software for which Customer cannot provide a sufficient proof of a valid license. Unless otherwise agreed by SIMCOM, SIMCOM only provides Support for the current Version and the immediately preceding Version of SIMCOM Branded Software, and then only when SIMCOM Branded Software is used with Hardware or Software included in SIMCOM-specified configurations at the specified Version level.

Accessories and Parts and Miscellaneous


a) Compatible Cables and Connectors. Customer will connect Products covered under Support with cables or connectors (including fiber optics if applicable) that are compatible with the system, according to the manufacturer's operating manual.

b) Support for Accessories. SIMCOM may provide Support for cables, connectors, interfaces, and other accessories if Customer purchases Support for such accessories at the same Hardware service level purchased for the Products with which they are used.

c) Consumables. Support does not include the delivery, return, replacement, or installation of supplies or other consumable items (including, but not limited to, operating supplies, magnetic media, print heads, ribbons, toner, and batteries) unless otherwise stated in a Transaction Document.

d) Replacement Parts. Parts provided under Support may be whole unit replacements or be new or functionally equivalent to new in performance and reliability and warranted as new. Replaced parts become the property of SIMCOM, unless SIMCOM agrees otherwise and Customer pays any applicable charges.

e) Service Providers. SIMCOM reserves the right and Customer agrees to SIMCOM's use of SIMCOM-authorized service providers to assist in the provision of Support.

 

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