1.1. Support Defined. “Support” shall consist of assistance to Customer with respect to the following (each a “Product”):
- Google Chrome Extension HYFY Screen Recorder Product
- HYFY Add-on for Atlassian Hip Chat Product
- HYFY Add-on for Atlassian Jira Product
1.2. Support Hours. Kickdrum shall provide support from 8 am — 4 pm central time zone Monday through Friday excluding (Thanksgiving Day, day after Thanksgiving, Christmas Eve, Christmas Day, New Years Day, Memorial Day, July 4, Labor Day).
1.3. Submission of Issues. Customer shall submit the following information through Kickdrum’s support email at firstname.lastname@example.org: (a) Customer contact information, (b) Product version, (c) a complete description of the Issue and Customer software environment.
1.4. Issue Definition. Customer shall record the following information for reference and provide it to Kickdrum: (a) error messages and indications that Customer received, (b) what the user was doing that led to the Issue, (c) what steps Customer has taken to reproduce any malfunction related to the Issue, (d) what steps Customer may have already taken to solve the Issue and (e) system logging.
1.5. Severity Classification. Issues are classified according to severity of impact according to the chart below. All disputes regarding severity classification will be resolved by Kickdrum in its sole discretion.
|Urgent||Continued performance of one or more functions is impossible.|
|High||Continued performance of one or more functions is difficult and may be circumvented or avoided on a temporary basis.|
|Normal||Continued performance of one or more non-essential functions is impaired.|
|Low||The issue is not a defect or is not service impacting.|
1.6. Response Time Goals. Kickdrum agrees to use reasonable efforts to acknowledge issues submitted to Kickdrum by Customer and to use reasonable efforts to provide workarounds. All Issues will receive a response from Kickdrum within three (3) business days.
2. TERM AND TERMINATION.
2.1. Term. The Support Services shall commence once the product has been downloaded and continue until such time that the Customer stops paying for the Product. Support Services may be cancelled by either party with thirty (30) days notice. In such an event, no refund will be provided to Customer.
2.2. Termination of Agreement. Kickdrum may terminate Support upon the following conditions:
2.2.1. if Customer fails to make any payments due hereunder.
3.1. Third Parties. Kickdrum shall have the right to use third parties (“Subcontractors”) in performance of Kickdrum’s obligations and Services.
3.2. Warranty. EXCEPT AS OTHERWISE STATED IN THIS Agreement, KICKDRUM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
3.3. LIMITATION OF LIABILITY. IN NO EVENT SHALL KICKDRUM OR ITS CONSULTANTS BE LIABLE ON ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SUPPORT WHICH GAVE RISE TO SUCH DAMAGES DURING THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL KICKDRUM OR ITS CONSULTANTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOOD WILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
3.4. Choice of Law; Jurisdiction. This Agreement shall be governed and interpreted by the laws of the state of Texas without regard to the conflicts of law provisions of any state or jurisdiction. Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments hereto, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be brought in the state or federal courts located in Austin, Texas and each party agrees to the exclusive jurisdiction of such courts.
3.5. Entire Agreement. The provisions of this Agreement constitute the entire agreement between the Parties with respect to the subject matter herein and supersede all prior agreements, oral or written, and all other communications relating to the subject matter of the Agreement. The Agreement may only be modified or supplemented by a writing manually signed by the authorized representatives of the Parties.
3.6. Miscellaneous. Each provision of this Agreement is a separately enforceable provision. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement will remain in full force and effect and will be interpreted, to the extent possible, to achieve its purposes without the invalid, illegal or unenforceable provision. Any waiver made by either party of any term or condition of this Agreement shall not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof. In no event shall Kickdrum be liable for any delay or failure to perform due to causes beyond the control and without the fault or negligence of Kickdrum, but only to the extent that such delay could not have been avoided by the taking of reasonable precautionary measures. Such causes shall include but are not limited to acts of God, floods, fire, utility failure, acts of terrorism, war etc. The terms of Section 3 shall survive termination or expiration of this Agreement.