Elim Support Terms & Conditions
Effective Date: July 15, 2017
Agreement: Any reference to the Agreement pertains to the Support Agreement(s) executed between Elim and Client.
Case: The documentation of a request for services under the Agreement from Client to Elim and it’s related activities and communications.
Approved Case: A Case that has met the conditions defined in “Case Approval”.
Support Services: The services provided for the Agreement as requested by Client through Client Communication. Documentation and written Client Communication of confirmation of will be required prior to any Component modification requests. Elim will be responsible and perform Support Services based solely on the direction provided in the Case submitted from the Client. Elim may make recommendations but shall not take additional actions unless directed to so. The Client is responsible for providing all requirements and use cases prior to development activities provided in the Support Services. Client shall obtain any internal Client approvals necessary for Component modification requests. All Support Services are only applicable to NetSuite Accounts (NetSuite, NetSuite OneWorld, NetSuite CRM+).
Actual Time/Effort: The actual amount of time taken to perform Support Services work. All meetings for which Client does not provide 24 hours notice of cancellation will be billed at a minimum of 0.5 hours.
Estimated Time: The number of hours that is estimated by Elim to complete a specific Support Service(s) work. Any and all Estimated Time provided by Elim within the Case is based solely on the information provided by the Client. This is generally provided as a maximum amount of Effort expected.
Approved Time: The number of hours approved by Client for Elim to perform and subsequently bill Client for Effort. Only Actual Time/Effort will be billed to Client.
After Hours Support Services: Upon Client’s request, Elim will assess the severity of the issue to determine if Support Services will be provided outside of the ‘Hours of Operation’ for the Agreement and Agreed to by Client. Actual Time/Effort provided will be billed at 1.5 times the Hourly Rate of the Agreement.
Designated Support Email Address (“DSEA”): An email address provided by Elim specifically to access Support Services under the Agreement.
Designated Support Phone Number(“DSPN”): A telephone number provided by Elim to access Support Services under the Agreement.
Online Customer Portal: Internet based secure web site located at the URL: www.elimsolutions.ca/support
- 12.1.Client Contact: An identified contact within the Client’s organization.
- 12.2.Administrator: The designated Client Contact as identified in the Support Agreement
- 12.3.Authorized Support Contact(s): Client Contact(s) that have the authority to perform the following actions on behalf of the Client:
i) Communicate/direct Elim on the Support Services provided, ii) Authorize the approval of Estimated Time to define Approved Time
Non Authorized Contacts: A Client Contact that is neither the Administrator nor the Authorized Support Contact.
Case Contact: The individual to whom Elim will communicate regarding the Support Services to be performed for a specified Case.
Case Types: Cases will be categorized into the following types: i) Administration, ii) Configuration, iii) Question, iv) issue, v) System Maintenance
Events and Communication Types:
- 14.1.Case Creation: A Case can be created by any one of the following; a) receipt of an email to the DSEA, b) Elim receiving of a phone call to the DSPN from an Authorized Support Contact c) Submission of the Case form utilizing the Online Customer Portal or d) an agreed Maintenance Schedule
- 14.2.Case Confirmation: A Case Confirmation in the form of email will be sent to Client Contact by Elim upon the receipt of any Support request
- 14.3.Case Assessment Response: Elim will communicate the assessment of a Support Request to the client in the form of email. The content of a Case Assessment Response typically includes investigation, cause and solution.
Case Update: Any updates of existing cases by Client or Elim that have not been closed.
Client Communication: An email, online portal or telephone communication from the Case Contact which provides a progression towards a Case Resolution.
Case Closure: A case will be deemed closed based on the following: i) Client's written acceptance ii) A lapse of two (2) business days where no Client Communication has been received after Elim has provided a Case Update or Case Assessment Response
Case Resolution: Communication from Elim on resolving a Case to the Case Contact.
Non Response: The Client acknowledges and agrees to provide Elim with reasonably prompt and adequate responses to Elim’s requests for information and other requests related to the Support Services to be performed under a Case. In the event that Elim has made a request and the Client has not responded within 48hrs with the requested information, Elim will deem the Case Closed and issue a Case Closure Communication. Client may reopen the Case by providing the requested information thereafter through Client Communication. The Closed Case will be billed based on Actual Time/Effort provided pursuant to the “Support Plan Fees” section of the Agreement. The Case may subsequently be reopened and any additional Actual Time/Effort will be billed. A reopened will maintain its outstanding Approved Time.
Initial Assessment: Elim will perform an initial assessment of the Case to determine if the request can be managed through the Support Services. Generally, any assessment of a Case where: i) Estimate Time exceeds ten (10) hours ii) Higher level planning and management activities are required. These requests may be assessed by our Professional Services team which may be engaged through a separate agreement.
The assessment response of a Case is dependent on the Case Type. The table below identifies the content of the Assessment communication that should be expected:
||Answer or Clarification to the question.
||Clarification on replicating the issue or,
Confirmation that the issue was reproduced or,
Identification of the cause of the issue
||Clarification/confirmation of Configuration details.
16.1. Configuration Components:
- Transaction body
- Transaction Column
- Item number
- PDF/HTML forms
- Advanced PDF/HTML template
- Sublists and subtabs
- Centers and tabs
- Saved searches
- CSV Imports and updates
- Single script
- Single workflow
16.2. Administration Components
User Creation (utilizing NetSuite License)
Case Qualification Criteria:
- General criteria
- 17.1. Single deliverable to the Client will deem the Case closed
- 17.2. All information regarding the action to be taken is provided to Elim
- Support Agreement Summary: This summary includes i) Total Hours approved, ii) Total Hours logged iii) Total Hours pending
- Case Summary: This summary includes i) Hours approved, ii) Hours logged iii) Hours pending
- Elim Support Administration Notifications: Administration Notification is sent when i) New Cases are created, ii) Closing of Existing Cases, iii), Request for additional hours on Existing Case. These notifications include a Support Agreement Summary and Case Summary.
- Maintenance Report: The Maintenance Report content will be defined between Elim and the Administrator. It will be generated in accordance with a schedule defined with the Administrator. The Report will be reviewed, summarized and sent to the Administrator. Upon sending the Maintenance Report a Case (where the Case Type is Maintenance) will be created and closed with a 0.5 hrs (minimum) Effort.
- Maintenance Schedule: The schedule defined for the System Maintenance Service in the Agreement.
- Case Approval: A case is considered approved upon: 1) Receipt of a Case from an Administrator or Authorized Support Contact, 2) Approval of a Case from an Administrator. Client agrees that an Approved Case will confirm that Elim may initially utilize up to two (2) hours of Actual Time/Effort towards resolving the Case.
- NetSuite Account Access: Account access will be requested by Elim from Client. The number of logins requested will be based on Elim resources assigned to provide Support Services. If the number of requested users is not provided, service level agreement timelines may be impacted in addition to overall case resolution time. Client will provide Elim NetSuite Account Access with the Standard NetSuite role of either ‘Administrator’ or ‘Full Access’. Client understands that a ‘Full Access’ role will limit the ability for Elim to provide Support Services. The Client hereby authorizes Elim to access it’s NetSuite account and will provide a NetSuite User License at Client’s expense.
- NetSuite Account Permissions: Client understands that the identified Authorized Support Users may request support services to perform actions which may be restricted by their assigned NetSuite role. Client understands that Elim is not responsible for determining the authority of an Authorized Support User. Client will not hold Elim liable or accountable in any manner for the support services performed based on the Authorized Support User’s submitted cases.
- Automatic Approval: Upon submission of a Case from an Authorized, Client agrees that up to two (2) hours of Support Service time is approved (Approved Time) and only Actual Time/Effort will be billed under the Agreement. Elim will seek additional Approved Timel from Client for any subsequent Estimated Time that may be required.
Support Plan: Elim provides the following Support Service engagement options:
- 27.1.Pay-As-You-Go: Deposit will be required based on the agreed monthly amount of allocated Elim hours and Client will be invoiced upon Case Resolution per Case.
- 27.2.Contract: A monthly payment based on number of allocated Elim hours. Client will be invoiced thirty (30) days prior to the beginning of the calendar month. In the event Cases have depleted the allocated hours, Elim will invoice subsequent Cases based on a Pay-As-You-Go basis.
Service Levels: Elim does not guarantee responses to Cases beyond the Hours of Operations identified within the Support Agreement.
||Response Time (within Hours of Operation)
||2 business hours
||Case Assessment Response
||Twenty-four (24) hours
|Any of the following:
1. Case Update
2. Case Assessment Response
3. Client Communication
||Twenty-four (24) hours from previous update
- Finance Charges: Invoices not paid by the “Due Date” of the invoice are subject to a 1% monthly finance charge.
- Export of Client Data: The Client acknowledges that certain software and technical data (“Restricted Data”), which may be in the Client’s possession, custody, or control, may be subject to export controls under the laws and regulations of Canada, the United States, the European Union and other jurisdictions. The Client will not provide Elim with any Restricted Data nor shall the Client cause or request Elim to export or re-export any such Restricted Data or to undertake any transaction in violation of any such laws or regulations. For avoidance of doubt, the Client’s failure to abide by this item shall be considered a material breach of the Agreement. The Client shall indemnify and hold Elim harmless for any losses, claims or damages, including legal fees, that result from such breach.
- Right to Developed Materials:
31.1 Elim Technology. Elim and its contracted affiliates and subcontractors have created, acquired or otherwise have rights in, and may, in connection with the performance of the Support Services, employ, provide, modify, create, or acquire or otherwise obtain rights in, various intellectual, industrial and other property, including, without limitation, concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems (collectively, the “Elim Technology”).
31.2 Ownership of Deliverables. For purposes of the Agreement, “Deliverables” shall mean all work first created by Elim for delivery to the Client in connection with the Support Services, but shall not include any third-party software or related documentation licenced directly to the Client from or third party, or any modifications or enhancements thereto or derivatives thereof, including the Sub-Licensed Technology. Subject to the Client’s full and final payment to Elim under the applicable Case, Elim shall (i) transfer, assign and convey to the Client all right, title and interest in and to the Deliverables (except for any Elim Technology or Sub-Licensed Technology contained therein), and (ii) grant to the Client a non-exclusive, royalty-free, worldwide, non-transferable licence to use for the Client’s internal business purposes any Elim Technology contained in the Deliverables.
31.3 Ownership of Elim Property. To the extent that Elim utilizes any Elim Technology or any other intellectual, industrial or other property in connection with the performance of the Support Services, Elim shall retain all right, title and interest in and to such property and, except for the licence expressly granted in this Agreement, the Client shall acquire no right or interest in such property.
- Ownership to Web Pages, Graphics and Root Access: Copyright to the finished assembled work of web pages produced by Elim and graphics shall be vested with the Client upon final payment for the Case. This ownership is to include design, photos, graphics, source code, work-up files, text, and any program(s) specifically designed or purchased on behalf of the Client for completion of the related Case. Client will be the owner of all work produced including owning the access rights to the Servers/Software upon payment.
Design Credit: Elim may include references in its various forms of advertising to the section of the Client’s website, including in publications and competitions.
- Published Content: The Client agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server or Elim. Abusive and unethical materials and uses include, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming advocacy of an illegal activity, and any infringement policy.
The Client hereby agrees to indemnify and hold Elim harmless from any claim resulting from the Client’s publication of material or use of those materials.
It is also understood that Elim will not publish information over the Internet, which may be used by another party to harm another. Elim will also not develop an abusive or unethical web site for the Client. Elim reserves the right to determine what is and is not abusive or unethical content.
- Indemnification: Each party will defend, indemnify and hold harmless the other party and its officers, directors, employees and agents, from and against any and all liability, claims, loss, damages, injury or expenses (including reasonable legal fees) brought by a third party arising from (a) a breach of the provisions of the Agreement by such party and (b) the inaccuracy of any representation or warranty set forth herein by such party. More specifically, the party causing the breach of the Agreement or making the inaccurate misrepresentation or warranty is responsible to indemnify the other party.
- Non-Solicitation: During the term of the Agreement and for a period of six months thereafter, neither party shall directly or indirectly employ, solicit or retain the Services of the personnel of the other party or its contracted affiliates, who are involved in the receipt or provision of the Services, for its own benefit or the benefit of another. This provision shall not restrict the right of either party to solicit resources through advertisements or solicitations generally in the media. The Client will not interfere with or impede the contractual relationship between Elim and any of its subcontractors, contractors, Licensors or agents or suggest or cause any subcontractor, contractor, Licensors or agent to modify, cancel, or fail to renew or extend any contract with Elim.
- Assignment: Neither party may assign the Agreement or any of its rights or delegate any of its duties under the Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. The Agreement shall be binding upon, enforceable by and inure to the benefit of the parties and their respective successors and assigns.
- Force Majeure: Neither party shall be liable for any failure or delay in performance under the Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its obligations under the Agreement, provided that, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- Governing Law and Attornment: The Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada. Each party irrevocably and unconditionally attorns to the exclusive jurisdiction of the Courts of Ontario for the purpose of any action or proceeding brought by either of them in connection with the Agreement or any alleged breach thereof.
- Relationship: The relationships created by the Agreement are nonexclusive, and each party remains free to enter into similar arrangements with third parties. The parties are independent contractors, and not partners, agents or fiduciaries of each other.
The Agreement shall not render Elim an employee, partner, joint venturer, joint employer, or agent of the Client for any purpose. Elim is and will remain an independent Elim. The Client shall not be responsible for withholding taxes with respect to Elim’s compensation hereunder. Elim shall have no claim against the Client hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
- Entire Agreement: The Agreement constitutes the entire agreement between the parties with respect to the subject matter of the Agreement, and supersedes and replaces all prior or contemporaneous understandings or agreement, written or oral, regarding the subject matter hereof. No waiver of any breach of any provision of the Agreement will be effective or binding unless made in writing and signed by the party purporting to give the waiver and, unless otherwise provided, will be limited to the specific breach waived.
- Severability: Each provision of the Agreement shall be considered severable; and if, for any reason, any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of the Agreement which are valid.
- Survival: All sections herein relating to compensation, expenses, payment of invoices, ownership, limitation on warranties and actions, limitation on damages, confidentiality and internal use, indemnification, survival, binding nature and assignment, non-solicitation, non-exclusivity, interpretation governing law, and jurisdiction and venue shall survive the expiration or termination of the Agreement and any Case.
- Support Services Warranty: Elim warrants that (a) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and the Support Services has the necessary knowledge, skills, experience, qualifications, rights and resources to provide and perform the Support Services in accordance with the Case; and (b) the Support Services will be performed for and delivered to the Client in a good, diligent, workmanlike manner in accordance with industry standards, and applicable laws, rules and regulations. If the Support Services do not conform to the foregoing warranty, and Client shall notify Elim within thirty (30) days of Elim’s delivery of the Support Services, the Client’s sole and exclusive remedy is to have Elim re-perform the non-conforming portions of the Support Services.
Elim’s Support Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, the Client.
- Disclaimers: THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SUPPORT SERVICES PROVIDED TO CUSTOMER ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS.
- Limitations of Liability: THE CLIENT ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH ELIM IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY ELIM OF THE RISK OF THE CLIENT’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, GOODWILL USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THE AGREEMENT The Client’s exclusive remedy for any breach of this warranty shall be for Elim, upon receipt of written notice, to use reasonable efforts to cure such breach, or failing any such cure in a reasonable period of time, to return the fees paid to Elim under the Agreement with respect to the Support Services giving rise to such breach. The essential purpose of this provision is to limit the potential liability of the parties arising from the Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of consideration levied in connection with the Support Services and that, were Elim to assume any further liability other than as set forth herein, such consideration would of necessity by set substantially higher.
Elim shall assume no liability in respect of the Client’s data as a result of the implementation of Support Services. The Client shall be responsible for the security, storage, handling and integrity of its data, including data that may be impacted by or otherwise interface with the Support Services. No action, regardless of form, arising under or relating to this engagement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment of any invoice may be brought by a party not later than two years following the date of the last payment due to such party on any invoice hereunder.