IMPORTANT – READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU REPRESENT THAT YOU PURCHASED THE SOFTWARE FROM AN APPROVED SOURCE AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY, OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS:
This End user License Agreement (“ Agreement ”) is a legal agreement hereby entered into between you, either an individual, or a company or other legal entity and its Affiliates, if any (the “Licensee”), and SumX, Inc, a Delaware Corporation company (“Licensor”) for the Licensed Materials (as defined below).
1. Definitions. As used in this Agreement, the following terms shall have the following meanings:
(a) “ Affiliate ”means an entity controlled by, under common control with, or controlling a party, where control is denoted as having fifty percent (50%) or more of the voting power (or equivalent) of the applicable legal entity. All references to Licensee shall be deemed to be references to Licensee, or its company or other legal entity.
(b) “ Documentation ” means all documentation and supporting materials relating to the Software provided by Licensor from time to time in either machine readable or hard copy form.
(c ) “Intellectual Property Rights ” means any rights in all United States and foreign trademarks, service marks, copyrights, patents, mask works, trade dress, know-how, trade secrets and other proprietary rights of any kind whatsoever.
(d) “Licensed Materials” means the Software together with all Documentation, enhancements, Updates, upgrades, customizations and modifications thereto, provided by Licensor hereunder.
(e) “Licensee Materials” means any and all materials, information, intellectual property and other content provided by or on behalf of Licensee to Licensor in connection with this Agreement.
(f) “Software” means Licensor’s proprietary software, as described more fully in Exhibit A.
(g) “Support Services” means the service for the correction of errors and/or support of the Software and the issuance of any Updates.
(h) “Third Party Software”means any third party software or service which Licensee uses the Software to connect to.
(i) “Updates” means all subsequent releases and versions of the Software that Licensor makes generally available to its customers as part of purchased Support Services and which are not separately priced or marketed by Licensor.
2. Proprietary Rights.
(a) Ownership. Except for the limited licenses expressly set forth in this Agreement, Licensor and/or its licensors shall have and retain all right, title and interest in and to the Licensed Materials, including without limitation: (i) any and all related copyrights, patents, trademarks, trade secrets and other proprietary rights; and (ii) all general modifications, enhancements and releases as well as modifications and enhancements made specifically for Licensee, and modifications and enhancements made by Licensee, to the Licensed Materials. Licensee acknowledges that this Agreement conveys only a limited license to Licensee, as expressed in this Agreement, and does not convey to Licensee any title or ownership rights in the Licensed Materials.
(b) Proprietary Notices. Licensee will reproduce and include any copyright, patent, trademark and/or other proprietary notices in any form on all copies of Licensed Materials in the possession or control of Licensee and will not deface, alter or obscure any such notice from any copy of the Licensed Materials in Licensee’s possession or control.
3. License and Restrictions.
(a)License. Subject to the provisions of this Agreement, for the term of this Agreement, Licensor grants to Licensee a non-exclusive, non-transferable, non-assignable, restricted license (“License”), to use the Licensed Materials solely for its own internal business purposes. Licensee may not make any use of the Licensed Materials not expressly set forth in this Agreement without the prior written consent of Licensor, which consent may be granted or withheld in Licensor’s sole discretion.
(b) Restrictions. Licensee shall not, without the prior written consent of Licensor, do any of the following, nor authorize any third party to do any of the following: (i) reverse engineer, decompile, disassemble or otherwise attempt to determine the source code, ideas, algorithms or structure underlying the Licensed Materials or any Third Party Software; (ii) encumber, pledge, sell, sublicense, assign, transfer, rent, lease, transfer, distribute or offer for timesharing any of the Licensed Materials or Third Party Software to or in favor of any third party; or (iii) copy, reproduce, modify or create derivative works of any of the Licensed Materials or Third Party Software or otherwise attempt to discover any source code or trade secret.
4. Support Services.During the term of this Agreement, Licensor will provide Support Services to Licensee with respect to the Licensed Materials in the manner specified on Exhibit B, subject to any modifications specified by Licensor from time to time. Furthermore, during the term of this Agreement, the Licensor shall periodically provide Updates to the Licensee as they are developed or made available, if any, for no additional charge so long as no Fees (as defined herein) are past due and so long as Licensee already has a license for the particular software being updated.
5. Fees and Expenses; Taxes; Audit.
(a) Fees and Expenses. Licensee shall pay Licensor the license fees (“License Fees”) and fees for Support Services (“Service Fees”) set forth on the Exhibit A (with the License Fees and the Service Fees collectively referred to herein as the “Fees”), subject to any increases specified by Licensor from time to time in its discretion.
(b) Taxes. Licensee is solely responsible for the payment of all sales tax and GST (the “Taxes”) resulting from Licensee’s acceptance of the License granted under this Agreement and its use of the Licensed Materials, exclusive of taxes based on Licensor’s net income. Licensor reserves the right to have Licensee pay any other taxes as they fall due to Licensor for remittance to the appropriate authority. Licensee agrees to hold Licensor harmless from all claims and liability arising from Licensee’s failure to report or pay the Taxes.
(c ) Audit. During the term of this Agreement and for a period of one (1) year thereafter: (i) Licensee shall maintain adequate records and books of account regarding this Agreement and its obligations hereunder, including, but not limited to, financial records and payment obligations, if any, and records regarding its use of the Licensed Materials; and (ii) Licensor, its independent auditors or its other representatives may, upon reasonable notice to Licensee, audit and inspect such records and books of account of Licensee no more often than once annually during the term of this Agreement and for a period of one (1) year thereafter, in order to verify Licensee’s compliance with this Agreement.
6. Data Retention and Security.
(a) Licensee agrees to use commercially reasonable efforts to ensure that Licensor does not have access to any personally identifiable information (collectively, “Personal Information”) of Licensee or its customers. Furthermore, Licensee hereby acknowledges and agrees that Licensor does not store or retain any data provided to it through the use of the Software, except that it may temporarily store some of such data in cache memory for short periods of time, typically not more than 24 hours, and for the sole purpose of facilitating its obligations hereunder.
(b) Licensor is subject to certain government cyber security policies, which change from time to time. Licensee may request a copy of such policies by sending a written request to support@SumX.ai
7. Confidentiality.
(a) For the purposes of this Agreement, “Confidential Information” means the information disclosed by or on behalf of one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that should reasonably be considered to be proprietary or confidential in nature, including without limitation non-public information concerning the Disclosing Party’s business or technology or information of a third party to whom the Disclosing Party owes a duty of confidentiality.
(b) The Receiving Party shall use the Confidential Information of the Disclosing Party only for the purpose of exercising its rights and fulfilling its obligations hereunder, and shall not disclose any such Confidential Information to any third party without the Disclosing Party’s prior written consent. The Receiving Party shall disclose the Disclosing Party’s Confidential Information only to those advisors and employees of the Receiving Party who have a need to know such information for the purposes of this Agreement and only if such advisors are bound by their professional obligations or bound in writing by confidentiality obligations no less restrictive than those set forth in this Agreement. The Receiving Party shall use the same degree of care and discretion, but in any event no less than a reasonable degree of care and discretion, to avoid unauthorized use or disclosure of the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own information of a similar nature.
(c ) Notwithstanding subsection (b) above, the confidentiality and non-use obligations set forth in this Agreement shall not apply with respect to any information that: (i) the Receiving Party rightfully possesses at the time of disclosure by the Disclosing Party without duty of confidentiality; (ii) the Receiving Party receives from a third party authorized to disclose such information without requirements of confidentiality; (iii) the Receiving Party develops independently of and without reference to the Disclosing Party’s Confidential Information; or (iv) is or becomes generally available to the public through no fault of the Receiving Party. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that the Receiving Party is required by any applicable governmental authority to do so; provided, however, that the Receiving Party gives the Disclosing Party prompt written notice of such requirement, if possible, and reasonably cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in attempting to contest or limit such required disclosure.
(d) Within ten (10) days after termination or expiration of this Agreement for any reason, the Receiving Party shall return to the Disclosing Party or destroy, as instructed by the Disclosing Party, all copies of the Disclosing Party’s Confidential Information then in the Receiving Party’s possession, and the Receiving Party shall certify in writing to the Disclosing Party, within thirty (30) days after any termination or expiration of this Agreement, that through commercially reasonable efforts and to the best of its knowledge, all copies of the Confidential Information have been destroyed and/or returned to the Disclosing Party.
(e) Each Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential Information, there can be no adequate remedy at law for any breach of the Receiving Party’s confidentiality obligations under this Agreement, that any such breach may result in irreparable harm to the Disclosing Party, and that therefore, upon any such breach or threat thereof, the Disclosing Party shall be entitled to appropriate equitable relief, including without limitation injunctive relief (without the need to post a bond or surety), in addition to any remedies it may have available at law.
8. Representations and Warranties; Licensee Acknowledgments; Limitations and Disclaimers.
(a) Mutual Representations. Each party represents and warrants that: (i) it has the power and authority to enter into this Agreement and has taken all necessary corporate action to authorize its performance under this Agreement; (ii) this Agreement, when executed and delivered, will constitute a legal, valid and binding obligation of each such party, enforceable in accordance with its terms; (iii) no consent or authorization of, filing with, or notice to any governmental authority is required in connection with its performance under this Agreement; (iv) its entering into this Agreement or performance by it hereunder will not violate any federal, state or local licensing or other statute, rule or regulation, or any contractual obligation of such party; and (v) in connection with its obligations under this Agreement, it shall comply with all applicable laws, rules and regulations.
(b) Representations and Limited Warranty of Licensor. Licensor hereby represents that: (i) it is the owner of the Software and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without further consent of any person or entity; and (ii) the Software will not infringe any Intellectual Property Rights of any third party. Licensor warrants that, for a period of 30 days from the original date of delivery, the Software will be free from material defects and will substantially conform to the specifications set forth in the Documentation. This limited warranty does not apply to any Third Party Software or other software or materials not owned or provided by Licensor. In the event that the Software does not function materially in accordance with the specifications, Licensor’s liability and Licensee’s remedy shall be limited to Licensor issuing: (1) defect correction information, such as correction documentation; (2) corrected code; or (3) a restriction or bypass. If after repeated efforts Licensor is unable to make the Software operate in accordance with the specifications, Licensee may (A) terminate this Agreement and the License granted hereunder and receive a refund of the License Fees paid for such license less the reasonable value of use and less any Service Fees (as such fees are defined on Exhibit A), or (B) Licensee may continue the license with an appropriate reduction in the applicable License Fee as mutually agreed upon by the parties. Notwithstanding the foregoing, Licensor does not represent or warrant that the Software or other Licensed Materials are error-free or that all errors or defects will be corrected. The warranty set forth in this Section 8(b) shall be void if the error or defect is determined by Licensor: (A) to be of Licensee’s origin or otherwise within the control of Licensee; (B) to have resulted from the alteration, modification or conversion of the Software or other Licensed Materials without Licensor’s prior written approval; or (c ) to have resulted from the use of the Software or other Licensed Materials other than in accordance with Licensor’s instructions or in conjunction with software not approved by Licensor.
(c ) Representations of Licensee. Licensee hereby represents that: (i) it is the owner or has a valid and subsisting license of the Licensee Materials and that it has and will maintain the full power and authority to use the Licensee Materials as contemplated by this Agreement without further consent of any person or entity; and (ii) the Licensee Materials will not infringe any Intellectual Property Rights of any third party.
(d) Licensee Acknowledgments. Licensee hereby acknowledges and agrees that (i) the Software is solely a connector between Licensee’s software and Third Party Software and that Licensor is not responsible for any Third Party Software or the services that are provided to Licensee through that Third Party Software, and (ii) Licensee is responsible for obtaining and maintaining all licenses necessary to use the Third Party Software.
(e) Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SUBSECTIONS 8(a) and 8(b) ABOVE, NO WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE LICENSED MATERIALS OR WITH RESPECT TO THE SERVICES TO BE SUPPLIED BY LICENSOR HEREUNDER, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS MADE REGARDING THE RESULTS OF ANY SOFTWARE OR OTHER LICENSED MATERIALS, THAT THE USE OF THE SOFTWARE OR OTHER LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY ERRORS OR DEFECTS IN SOFTWARE OR OTHER LICENSED MATERIALS WILL BE CORRECTED, OR THAT THE FUNCTIONALITY OF THE SOFTWARE AND OTHER LICENSED MATERIALS, AS MAY BE APPLICABLE, WILL MEET THE LICENSEE’S REQUIREMENTS. FURTHERMORE, LICENSOR SPECIFICALLY DISCLAIMS ANY LIABILITY FOR ANY THIRD PARTY SOFTWARE OR THE SERVICES THAT ARE PROVIDED IN CONNECTION THEREWITH, INCLUDING WITHOUT LIMITATION, WHETHER LICENSEE’S DATA HAS BEEN PROPERLY TRANSMITTED OR ANY MISUSE OF ANY LICENSEE MATERIALS BY SUCH THIRD PARTY SOFTWARE, AND LICENSEE HEREBY FULLY RELEASES LICENSOR FROM ANY AND ALL LIABILITY IN CONNECTION THEREWITH.
9. Limitations of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT FOR (i) LICENSOR’S FRAUD OR WILFUL MISCONDUCT, AND (ii) LICENSOR’S INDEMNITY OBLIGATIONS CONTAINED HEREIN, LICENSOR’S LIABILITY UNDER THIS AGREEMENT AND/OR IN CONNECTION WITH ITS SUBJECT MATTER SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY LICENSEE IN THE PREVIOUS THREE (3) MONTHS FROM THE DATE OF THE CLAIM. FURTHERMORE, IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF PROFITS, OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
10. Indemnity.
(a) By Licensor. Licensor will indemnify and hold harmless, at its expense, Licensee and its officers, directors, agents and employees, from and against any and all claims, suits, damages, liabilities, costs and expenses (including reasonable attorney’s fees) and defend or settle any claim or suit arising out of or based upon: (i) a breach of Licensor’s representation set forth in Section 8(b)(ii); or (ii) Licensor’s gross negligence or intentional misconduct in connection with its obligations hereunder; provided, however, that: (1) Licensee shall notify Licensor promptly in writing of any such claim; (2) Licensee shall not enter into any settlement or compromise any claim without Licensor’s prior written consent; (3) Licensor shall have sole control of any such action and settlement negotiations; and (4) Licensee shall provide Licensor with information and assistance, at Licensor’s request and expense, necessary to settle or defend such claim. Licensor agrees to pay all damages and costs finally awarded against Licensee attributable to such claims. Notwithstanding the foregoing, however, Licensor’s duty to indemnify for a breach of Licensor’s representation set forth in Section 8(b)(ii) shall not apply if (A) the claim of infringement would be avoided by using the latest release of the infringing Software, Documentation or other Licensed Materials made available to Licensee, (B) the claim of infringement is based, in whole or part, on the combination, operation or use of the Software, Documentation or other Licensed Materials with other product(s), software, hardware, data or other materials not provided by Licensor; provided, however, that this exception shall not apply if Licensor had or has knowledge that such combination, operation or use of the Software, Documentation or other Licensed Materials would infringe a third party’s copyright, patent or intellectual property rights, (C ) the claim of infringement is based, in whole or part, on the Licensee’s non- conformance to specifications or instructions provided in writing by Licensor, or (D) the claim of infringement is based, in whole or part, on the modification of the Software, Documentation or other Licensed Materials by party(ies) other than Licensor. THE FOREGOING STATES THE SOLE LIABILITY OF LICENSOR AND THE EXCLUSIVE REMEDY OF LICENSEE FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE LICENSED MATERIALS OR ANY OTHER ITEMS PROVIDED BY LICENSOR HEREUNDER.
(b) Licensor Options. If any of the Licensed Materials become, or in the opinion of Licensor may become, the subject of a claim of infringement of any third party right, Licensor may, at its option and in its discretion: (i) procure for Licensee the right to use such Licensed Materials free of any liability; (ii) replace or modify such Licensed Materials to make them noninfringing; or (iii) remove such Licensed Materials, or any part thereof, from the scope of this Agreement.
(c ) By Licensee. Licensee will indemnify and hold harmless, at its expense, Licensor and its officers, directors, agents and employees, from and against any and all claims, suits, damages, liabilities, costs and expenses (including reasonable attorney’s fees) and defend or settle any claim or suit arising out of or based upon: (i) a breach of Licensee’s obligations under Section 7 (Confidentiality), (ii) a breach of Licensee’s representation set forth in Section 8(c )(ii), and (iii) Licensee’s gross negligence or intentional misconduct in connection with its obligations hereunder; provided, however, that with regard to any such indemnification claims: (1) Licensor shall notify Licensee promptly in writing of any such claim; (2) Licensor shall not enter into any settlement or compromise any such claim without Licensee’s prior written consent; (3) Licensee shall have sole control of any such action and settlement negotiations; and (4) Licensor shall provide Licensee with information and assistance, at Licensee’s request and expense, necessary to settle or defend such claim. Licensee agrees to pay all damages and costs finally awarded against Licensor attributable to such claim.
11. Term and Termination. This Agreement shall remain in effect until terminated by either party as provided for herein. Either party may terminate this Agreement for any reason or no reason upon thirty (30) days’ prior written notice to the other party. Upon the termination or expiration of this Agreement for any reason, the License granted hereunder shall immediately terminate, Licensee shall no longer be permitted to use the Licensed Materials, and Licensor shall no longer be permitted to use the Licensee Materials. Termination or expiration of this Agreement shall not relieve either party hereto of any of its obligations or liabilities accrued hereunder prior to such termination or expiration, including, but not limited to, any payment obligations of Licensee accrued through the date of termination. Within ten (10) days after termination or expiration of this Agreement for any reason, Licensee shall return to Licensor or destroy, as instructed by Licensor, all copies of Licensed Materials then in Licensee’s possession and shall certify such in writing to Licensor. The following provisions of this Agreement will survive the termination or expiration hereof: Sections 2, 3(b), 5, 7, 8(d), 9, 10, 11 and 12.
12. General.
(a) Assignment. Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, except that Licensor may assign or transfer this Agreement or any of its rights or obligations hereunder without the consent of Licensee to its parent or Affiliates, if any, or to any purchaser of all or substantially all of such Party’s assets, or to any successor by way of merger, consolidation or similar transaction. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
(b) Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with applicable U.S. federal law and the laws of the State of Virginia, without regard to conflict of laws principles. Notwithstanding the foregoing, either party may seek equitable relief in any court of competent jurisdiction to protect any of its intellectual property rights and/or Confidential Information.
(c ) Export Restrictions. Licensee shall comply with all applicable laws, rules and regulations in connection with its performance under this Agreement and its use of the Licensed Materials, including without limitation all export control regulations. Without limiting the foregoing, Licensee understands and agrees that it may not directly or indirectly export or re-export the Licensed Materials to (i) any U.S. embargoed countries; or (ii) anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
(d) Force Majeure. Except with respect to payment of amounts due hereunder, nonperformance of either party will be excused while and to the extent that performance is rendered impossible by strike, fire, flood, earthquake, acts of terrorism, governmental action, pandemic or any other reason where failure to perform is beyond the reasonable control of the nonperforming party.
(e) Notices. Licensor may send Licensee required legal notices and other communications about the Software or other Licensed Materials, including special offers and pricing or other similar information, surveys or other requests for feedback (“Communications”). Licensor will send Communications via in-product notices or email to registered email addresses of named contacts, or will post Communications on Licensor’s website. Licensee may notify Licensor of Licensee’s preference not to receive any such Communications (which may have a technical impact on Licensee’s use of the Software or other Licensed Materials and the provision of any Support Services). Licensor reserves the right, at any time and from time to time, to revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms or conditions (collectively, “Additional Terms”) on Licensee’s use of the Software or other Licensed Materials. Such Additional Terms will be effective immediately and incorporated into this Agreement upon posting the revised agreement on Licensor’s website, and Licensee waives any right to receive a specific notice of each such revision. Licensee’s use of the Software or other Licensed Materials signifies acceptance of this Agreement, inclusive of any future revisions.
(f) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded, and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(g) No Implied Waiver. No right under this Agreement or breach hereof may be waived except in writing signed by the parties hereto. The failure of either party to require performance of any provision of this Agreement will not be construed as a waiver of such party’s rights to insist on performance of such provision or any other provision at some other time.
(h) Relationship of the Parties. The parties are entering into this Agreement as independent contractors and this Agreement will not be construed to create a partnership, joint venture or employment relationship between them. Neither party has the right to represent itself to as an employee or agent of the other or to enter into any agreement or commitment on the other’s behalf or in the other’s name.
EXHIBIT A
SOFTWARE AND FEES
A. SOFTWARE NAME: SumX
B. DESCRIPTION OF SOFTWARE: Adaptable Project-Based Time Management System. Efficient, user-friendly, and backed by years of industry wisdom, our Timesheet Keeping System is the game-changer your business deserves. Revolutionize the way you manage time, projects, and resources.
C. FEES: EXHIBIT B
SUPPORT SERVICES
1. Support Service. Customer shall receive the following Support Service:
1.1. Web & Customer Support. Customer's designated representative shall have access to Company's technical support web site and may use call-in technical support as specified in the Service Level Agreement attached hereto as Schedule A. On-site support is not included and any out-of-scope work shall be subject to Company's standard hourly rate.
1.2. Service Upgrades. The Company shall automatically upgrade the Service with all Generally Available Updates (x.x.(x)), Versions (x.(x).x), and Releases ((x).x.x), as designated by the Company in its discretion, and at no additional charge. Upgrades do not include beta or pre-release features.
1.3. Certain Conditions. Company shall not be obligated to provide Support Service if: (i) the reported error was caused by changes in Service code, program parameters or other user adjustable features and such changes were not made by Company; (ii) the error results from operator error, errors in Customer Data or software not supplied by Company or use that is not in accordance with the Documentation; (iii) the error is in a prior release that was corrected through issuance of an Upgrade that Customer has informed the Company that it does not wish to receive, or (iv) the Customer has failed to pay any required fee or is otherwise in default of this Agreement. To the extent, if any, that the Service is third party software (such as operating systems or third party data or applications), it is acknowledged that Company's performance may be impacted by the level of support provided by such third parties. Support Service does not include preparation of Customer Data, configuration or customization of Service features needed to function in Customer's production environment.
1.4. Training. Other than the Documentation and online support features, this Agreement does not provide for any specific training with respect to the use and operation of the Service.
2. Call-In Support. Call-In Maintenance Service will be available during Normal Hours of Operation (currently 8:00 a.m. to 6:00 p.m., Eastern Standard Time). The Company may provide extended hours to respond to Code Red service requests.
(a) Submitting Service Requests. Customer's designated contact person will submit service requests according to Company instructions. The service request should assign a Severity Level and adequately describe and document the reported error so it can be reproduced. Company may re-characterize the Severity Level and charge for Consulting Maintenance Service if the Severity Level appears materially inaccurate. All service requests will be submitted by e-mail to support@sumx.ai .
(b) Severity Level. The Severity Level means a perceived error in the Service is reportedly having the following impact on Company's business:
3. 'Code Red' means the reported error is having a material impact on critical business operations at the enterprise level that cannot be worked around and which needs to be corrected as soon as reasonably possible (e.g., hosted system has crashed and cannot be accessed remotely).
4. 'Code Orange' means the reported error is having a material impact on important business operations that can be worked around or deferred for only a limited period of time (e.g., delay in daily reports is causing work stoppages).
5. 'Code Yellow' means the reported error is degrading business operations in a way that delays or interferes with some non-critical business operations and can be worked around for a reasonable time (e.g., slowdown in generation of reports that need to be produced in the next few days).
6. 'Code Green' means the reported error is having a minor impact on business operations that can be worked around and a fix should be included in the next Service Update (e.g., cosmetic changes to screen layouts, requests for feature enhancements or updates to Documentation).
(a) Response to Service Request. Response time begins when Company logs-in a service request in proper form from the Customer's authorized contact. Service requests received after Normal Hours are logged at the beginning of the next business day (except Code Red cases may be logged sooner if Company personnel are available). Response time ends with Company's notice that it has commenced diagnosis and error correction efforts. Company's Response Time Commitment is as follows:
| Severity Level | Response Time Commitment |
| Code Red | Within one (1) hour |
| Code Orange | Within three (3) hours |
| Code Yellow | Next Working Day |
| Code Green | Reasonable Time |
(b) Exclusions. If Company has made best effort to resolve issue and no material defect is found to cause error in Service described above, or if Company determines error was caused by a condition described in Section 3.3 (“Certain Conditions”),
Company may refer Customer to support@SumX.ai (or third party suppliers, if applicable) for problem resolution. Company will continue to closely work with Customer and SumX to resolve issue.