This Software Addendum ("Software Addendum") only applies to the extent Software is designated on an associated Quote and current Order between Customer and ZOLL®. Capitalized terms not defined below but used herein will have the same meaning as in the ALS/BLS Software Solutions Master Software, SaaS and Services Agreement.
"Software" means any computer software program identified in a Quote and Order, on and after the Deployment Date (defined below) for such program and before that Order has expired or been terminated in accordance with the Agreement. Customer acknowledges that the Software is only compatible with equipment that has been enabled and configured for use with the Software in accordance with the Documentation.
Subject to the terms and conditions of the Agreement, including the disclaimer in Section 9.C of the Agreement, ZOLL warrants for ninety (90) days following the Deployment Date of any Software that such Software will materially operate in accordance with the Documentation (the "Software Warranty"); provided, that the Software Warranty will only apply to an initial purchase of Software and not to additional quantities or purchases of Software or related modules. Customer must provide written notice to ZOLL within thirty (30) days of the alleged inconsistency with this warranty, otherwise this Software Warranty will be void. Customer's sole remedy and ZOLL's sole obligation in the event of a breach of this warranty is for ZOLL to, at ZOLL's option, correct the material nonconformity or terminate the applicable Order and refund Customer pre-paid Fees for unused Software or SaaS.
Subject to the terms and conditions of this Agreement and Addendum, ZOLL grants to Customer a limited, non-exclusive, non-transferable license to: (a) install and use the Software, including any updated or enhanced version that ZOLL may provide pursuant to the Support Services, in executable code on an unlimited number of compatible personal computers or servers for use concurrently by an unlimited number of Customer users with respect to the limited quantity of monitor/defibrillators or TMS Equipment specified in any Quote and Order for Customer's internal business purposes; (b) make one copy of the Software solely for backup or archival purposes; and (c) copy and reproduce the Documentation provided to Customer along with the Software provided to Customer solely for the purposes of facilitating Customer's use of the Software.
5.1. ZOLL and Customer Obligations. ZOLL shall provide the installation, project management, training and other services for Software deployment identified in an Order (the "Deployment Services"). Customer shall, in a timely manner and at its own expense, cooperate and provide or make available to ZOLL access to the Customer's premises, systems, telephone, terminals and facsimile machines and all relevant information, documentation and staff reasonably required by ZOLL to enable ZOLL to perform the Deployment Services. ZOLL may suspend its obligations during such period that such conditions of access are not maintained and Customer agrees to reimburse ZOLL for any reasonable costs incurred as a result of such suspension at its then current time and materials rates. To the extent that ZOLL is performing work in accordance with specifications provided by Customer, Customer shall be solely responsible for compliance with all laws and regulations.
5.2. Extension of Time.
5.2.1. Delay. Customer acknowledges that time frames and dates for completion of the Deployment Services as set out in the Order are estimates only and the ability to meet them is influenced by a range of factors including: (a) the developing nature of the scope of work; (b) the performance of third party contractors involved in the process; (c) the contribution of resources by the Customer; and (d) times of response by and level of cooperation of Customer. Obligations as to time are therefore on a "reasonable efforts" basis only and ZOLL shall not be liable for failure to meet time frames or completion dates unless solely due to the negligence of ZOLL, and ZOLL's liability will be limited to the Fees paid for the deficient Deployment Services. If Customer postpones or cancels a scheduled installation with less than thirty (30) days' notice to ZOLL or requests a change in the timing or duration of the Deployment Services with less than thirty (30) days' notice to ZOLL, then ZOLL may charge, and Customer shall pay, any additional costs incurred by ZOLL as a result.
5.2.2. Changes. Customer understands that ZOLL's performance is dependent in part on Customer's actions. Accordingly, any dates or time periods relevant to performance by ZOLL hereunder will be appropriately and equitably extended to account for any delays due to Customer's acts or omissions. If either party proposes in writing a change to the scope, timing, or duration of the Deployment Services, the other party will reasonably and in good faith consider and discuss with the proposing party the proposed change and a revised estimate of the costs for such change.
ZOLL shall provide the following Support Services for Software without any additional Fees, except that ZOLL will have no obligation to provide such Support Services if any Fees for Software or Deployment Services are past due.
A. Emergency Support. ZOLL will provide 24/7 telephonic support for reproducible defects in the latest version of Software installed on supported hardware and software ("Supported Software") that cause the Supported Software to not operate substantially in accordance with the Documentation (an "Error") and completely prevent Customer from using the Supported Software (an "Emergency"). For example, the inability of all Users to use the Supported Software constitutes an Emergency, but the inability of a single User to use the Supported Software does not constitute an Emergency because there is an acceptable workaround available (for example, another User may log in).
B. Technical Support. ZOLL will provide telephonic support between 6:00 AM and 6:00 PM Eastern Time, Monday to Friday, excluding ZOLL holidays ("Business Days") for all non-Emergency Errors. Such telephonic support may include: (i) clarification of functions and features of the Supported Software; (ii) clarification of the Documentation; (iii) guidance in operation of the Supported Software; (iv) assistance in identifying and verifying the causes of suspected Errors in the Supported Software; and (v) advice on bypassing identified Errors in the Supported Software. Customer may only submit Errors to ZOLL via email at [email protected] or through ZOLL's call center at 1‑800‑663‑3911. ZOLL will create an incident report within one Business Day following submission by Customer and will provide Customer with a service request number for each Error. ZOLL will use commercially reasonable efforts to provide a modification, workaround or action plan for each Error.
C. Exclusions. ZOLL shall have no responsibility under this Agreement to fix any Errors arising out of or related to the following causes: (a) Customer's modification or combination of the Supported Software (in whole or in part), (b) use of the Supported Software in an environment other than in accordance with the Documentation; or (c) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure or fluctuation of electric power, air conditioning or humidity control; failure of media not furnished by ZOLL; excessive heating; fire and smoke damage; operation of the Supported Software with other media and hardware, software or telecommunication interfaces; or causes other than ordinary use. Any corrections performed by ZOLL for such Errors shall be made, in ZOLL's reasonable discretion, at ZOLL's then-current time and material charges. ZOLL will provide the Support Services only for the most current release and the one immediately preceding the major release of any Software. Notwithstanding anything to the contrary in the Agreement, (i) ZOLL may cease providing Support Services for any Software upon at least six (6) months advance notice to Customer of such cessation and (ii) Support Services do not cover third party products or services.
D. Updates. ZOLL may provide to Customer subsequent releases for any Supported Software as and when developed for general release, in ZOLL's sole discretion, that ZOLL generally makes available for a licensee of such Software, for no additional license fee other than shipping and handling charges ("Updates"), provided Customer has paid the Fees for such Supported Software for the relevant time period. Updates do not include any release, option of future Software that ZOLL provides a license separately. Customer will be solely responsible for the installation of any new general release for the Supported Software in accordance with the Documentation and installation instructions provided by ZOLL to Customer. Any technical support required by Customer for the installation of any such new general release of Supported Software may be provided by ZOLL in accordance with Section 6.C. above.
E. Designated Interface. Subject to ZOLL's request, Customer will designate an individual or group who has been trained to support the Supported Software to coordinate all Maintenance Services requests from Customer and only such individual or group will be permitted to request and coordinate Maintenance Services from ZOLL.