The following terms and conditions are incorporated into the Agreement. Capitalized words not defined in this Schedule shall have the meaning ascribed to such words in the Agreement.
SERVICE LEVELS
The Service will be provided twenty-four (24) hours per day, seven (7) days per week in accordance with the Service Levels set out below.
Automatic Updates: Automatic Updates to the Service shall occur periodically on a Saturday or Sunday between 19:00 and 24:00 Eastern Time and will result in a planned outage of the Service of less than 5 minutes. Notification of Automatic Updates will not be provided to Customer.
Planned Service Outages: Customer will be provided with no less than twenty-four (24) hours advanced notice for Planned Service Outages not inclusive of Automatic Updates. All Planned Service Outages shall occur between 19:00 and 24:00 Eastern Time. Customer will be provided with at least forty-eight (48) hours advanced notice for Planned Service Outages occurring outside of this timeframe.
Un-Planned Service Outages: When the Service Outage will exceed five (5) minutes, Company will give as much prior notice as possible for the Un-Planned Service Outage including emergency or critical issues.
Service Uptime: Outside of Planned Service Outages and Automatic Updates, the Service shall have an availability of ninety-nine-point five percent (99.5%) in an annual billing cycle.
SUPPORT SERVICES
Contact & Response Times
Customer may contact Company Technical Support via the Help Center in English, and other languages as they are available.
Customer’s designated and named representatives (system administrators and account holders) additionally receive the ability to contact Company, Monday – Friday (excluding statutory holidays) between the hours of 9am and 5pm Eastern Time via the appropriate email and phone support contacts.
During Support Hours Company will provide applicable Customer’s with such technical support, up to a monthly time limit as described on the Company website, by telephone or email, to resolve Customer’s difficulties and queries using the Service, hereinafter referred to as the “Service Request”. Company will NOT provide technical support for failure of the Service to conform to the Service Levels or perform as specified in any specification. For further support hours past the monthly allotted support time, Company will charge the Customer at the hourly rate that Company sets and communicates to the Customer prior to time being charged.
For clarity, Company Technical Support includes support for Customer issues such as Identifying and troubleshooting issues in the system, responding to and addressing software bugs. Company Technical Support does not include, implementation and configuration of the Service, product training, integration support with third party software or products, feature requests, reports customization for the Service, or any support in respect to Customer Service-Compatible Application(s).
Technical Response Times
Company will provide Technical Responses to Service Requests received from the Customer. The time allocated to delivery of Technical Responses shall be measured from the time of receipt of the relevant Service Request by Company during Support Hours. On receipt of a Service Request, the Service Request will be assigned a “Priority” where the Priority is a measure of the severity of the situation. The “Technical Response Time” will depend on the Priority as outlined in the following table:
| Priority | Definition | Action | Technical Response Time |
|---|---|---|---|
| Category 1 | A key function or feature of the Service is inoperable and further operation cannot proceed until it is fixed. | provide correction or workaround, as applicable | within 4 hours |
| Category 2 | A function of the Service is inoperable and further operation of that function cannot proceed but operation of other functions can proceed before it is fixed. | provide correction or workaround, as applicable | within 8 hours |
| Category 3 | While a function of the Service is operable, the operation is inconsistent with the Service Levels and the inconsistency involves a material failure to comply with specifications for the same. | provide correction or workaround, as applicable | within 12 hours |
| Category 4 | An issue which does not affect the functionality of the Service. | provide correction or workaround, if applicable | as Company determines in its sole discretion |
In the event that Company does not provide a workaround or a correction in the allotted Technical Response Time for a Category 1, 2 or 3 Service Request, Company will continue to work to correct the issue each day during the week for a Category 1 issue or during Support Hours for a Category 2 or 3 issue. In the event that Company provides a workaround, Company will work to correct the issue as set out in the terms in the previous sentence until such time as a correction is provided. Company will give updates to Customer as and when appropriate for the Category of the Service Request. Company will work to resolve Service Requests on a ‘best-efforts’ basis at all times.
Escalation process
To resolve client Service Requests as quickly as possible, Company will use a three-level process based on the severity of the issue. Escalation up the technical support chain is Company’s responsibility and will be initiated only when a Service Request has NOT been resolved within the Technical Response Time. The resolution process is described in the following matrix:
| Escalation Level | Responsibility | Escalation Times for Service Request Categories | |||
|---|---|---|---|---|---|
| Category 1 | Category 2 | Category 3 | Category 4 | ||
| Level 1 | Customer Support Personnel | 60 minutes | 60 minutes | 2 hours | 2 hours |
| Level 2 | Customer Support Specialist | 2 hours | 2 hours | 4 hours | 24 hours |
| Level 3 | Software Engineer | 4 hours | 8 hours | 12 hours | 48 hours |
Exceptions
Company will not be responsible for correcting a Service Request arising from any of the following:
Problems resulting from any modifications of the Service made by any party other than Company.
Problems resulting from any Customer Service-Compatible Application(s).
Incorrect use of the Service; or to the extent the relevant environment is not within Company’s control.
Any fault in the equipment or in any programs used in conjunction with the Service or in respect to any Customer Service-Compatible Application(s).
The Technical Response Times for Category 1 and 2 Service Requests as set forth in the section above, will be extended by the length of any delay in the time to fix issues attributable to any acts or omission of Customer or any of its employees, agents or subcontractors. Company will also charge the Customer, at its sole discretion, for the time required to resolve problems as a result of the Customer’s actions, the fees of which will be determined by Company and communicated to the Customer for acceptance prior to work being carried out.
Service Limits
Company will not be responsible for:
Responding to requests for assistance for anyone other than Customer’s named and designated representatives.
Supporting any 3rd party software or technology (unless said technology has been provided by Company as part of the Service), including all Customer Service-Compatible Applications.
HOSTING AND DATA
Data is backed-up regularly and stored by Company and its third-party service providers primarily in the USA and Canada, in accordance with Company’s Privacy Policy and the Agreement.
SANDBOX ENVIRONMENT SERVICE LEVEL
The Sandbox Environment will be provided twenty-four (24) hours per day, seven (7) days per week with no guarantee of availability or uptime.
Professional Services Terms
Company is willing to provide Professional Services on a time and materials or fixed price basis according to the terms and conditions set forth in the Rockwell Automation Software Cloud Services Agreement. Such Professional Services may include: instruction and training on the use of Company products and services; evaluation, design and implementation of the Service; custom development; and Service deployment consultations.
- General. All Professional Services to be performed by Company at Customer’s request shall be described in a Statement of Work. Upon execution by authorized representatives of each party, each Statement of Work shall become a part of the Agreement. Each Statement of Work will incorporate the terms and conditions of the Agreement and this Schedule B. In the event of a conflict between a Statement of Work and this Schedule B or the Agreement, this Schedule B or the Agreement, as the case may be, shall prevail.
- Company’s Obligations. Company shall perform Professional Services for Customer as described in any Statements of Work agreed to in writing by the parties. Company shall perform such Professional Services in a reasonable and workmanlike manner in keeping with industry standards and practices. Company shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services. Customer acknowledges and agrees that Company may retain the services of independent consultants (“Subcontractors”) from time to time to perform, or to assist Company in performing Professional Services under this Schedule B or a Statement of Work. Company personnel and/or Subcontractors shall remain under the direction and control of Company. If Company is performing any Professional Services at a Customer facility, then Company shall comply with all Customer facility policies, procedures and rules that have been communicated to Company in writing in advance of providing such Professional Services.
- Customer Obligations. Customer shall provide timely performance of its obligations under this Schedule B or any Statement of Work as required for Company to perform its obligations under this Schedule B or any Statement of Work. In support of such obligations, Customer shall provide sufficiently qualified personnel who are capable of completing Customer’s duties and tasks pursuant to this Schedule B or any Statement of Work. Customer acknowledges and agrees that any delay on its part in the performance of its obligations will have an effect on Company’s performance of the Professional Services.
Company may provide Professional Services at Customer’s facilities or at Company’s facilities as set forth in the relevant Statement of Work. If Professional Services are to be provided at Customer’s facilities, Customer shall provide Company with access to Customer’s facilities during normal business hours and at such other times as may be reasonably requested by Company to facilitate the timely performance of the Professional Services. Customer shall also provide Company personnel with working space and office support (such as telephone access, network connectivity and photocopying) while such personnel are performing Professional Services at Customer’s facilities.
Customer shall designate a project management contact for the purposes of communication with Company. The project management contact shall be the primary point of contact for Customer with Company for matters relating to the provision of Professional Services.
Customer shall ensure no personal information is provided to Company in the course of the Professional Services and that should Customer provide Company with personal information Customer will be solely and fully responsible for ensuring that it has a legal and legitimate basis to provide such personal information. Customer assumes all liability for damages, costs, fines and penalties in relation to the personal information and agrees to indemnify Company for any liability for damages, costs, fines and penalties in relation to the personal information.
- Price and Payment Customer shall pay Company the fees set forth in the Statement of Work either on a time and materials basis at Company’s then-current price, or on a fixed price per project basis to be negotiated between the parties. Customer shall reimburse Company for all reasonable out of pocket expenses (including travel, lodging and related expenses) incurred by Company in the performance of any Professional Services or development of any Deliverables. Company will be entitled to add a 15% administrative surcharge on any such expenses. The fees for Professional Services shall exclude all applicable Taxes.
Unless otherwise specified in the Statement of Work, Company shall invoice Customer for fees for Professional Services provided pursuant to this Agreement or a Statement of Work.
Purchased Professional Services are non-refundable. Any unused Professional Services will expire 12 months from the date of purchase.
- Term and Termination. Each party shall be entitled to immediately terminate a Statement of Work for cause in the event of: (i) a material breach by the other party of its obligations under this Schedule B or a Statement of Work, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) the filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) the assignment or attempt to assign a Statement of Work to a third party (except as permitted in the Agreement). In the event of termination for cause, the non-defaulting party may terminate any Statements of Work hereunder. The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.
- Intellectual Property Rights. Company shall own all right, title and interest and all intellectual property rights to any Deliverables or custom development created by Company pursuant to this Schedule B or any Statement of Work hereunder. Company shall retain all right, title and interest and all intellectual property rights to any and all Company proprietary information and Company software. Subject to payment of the fees set forth in the applicable Statement of Work, Company grants to Customer a non-exclusive, non-transferable (except as provided in Section 11.6 of the Agreement) license to use the Deliverables solely in connection with Customer’s permitted use of the Service as set forth in Section 2 of the Agreement.
- Non-Solicitation. Customer shall not enter into a contract for service with an employee of Company, who has been directly or indirectly involved with any of the Professional Services or development of any Deliverables hereunder (the “Employee”) within twelve (12) months of such employee’s last involvement with such Professional Services. Customer shall be permitted to make generalized employment searches, by advertisements or by engaging firms to conduct searches which are not focused on the Employees of Company.