THIS AGREEMENT GOVERNS THE PROVISION OF MAINTENANCE AND SUPPORT SERVICES (WHICH WILL BE REFERRED TO IN THIS AGREEMENT AS THE "SERVICE" OR "SERVICES") PROVIDED BY LOOP TO CUSTOMER
ATTENTION: BY ACCEPTING THIS AGREEMENT, EITHER BY CONTACTING LOOP FOR MAINTENANCE AND SUPPORT SERVICES THROUGH TELEPHONE, E-MAIL OR BY PURCHASING A SUPPORT PROGRAM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU ASSERT THAT YOU HAVE THE AUTHORITY TO BIND STATED ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO STATED ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT RECEIVE THESE SERVICES.
You may not receive the Services if You are a direct competitor of LOOP, except with prior written consent on behalf of LOOP. In addition, You may not receive the Services for purposes of evaluating or monitoring their quality or performance, or for any other benchmarking or competitive purposes.
This Agreement is effective between You and LOOP as of the date of Your acceptance of this Agreement.
"Affiliate" shall mean, with respect to You, any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, You; "control" (including, with its correlative meanings, "controlled by" and "under common control with") means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise).
"Case" shall mean Your support request for the Services that relates to the Software, or to the Error caused by the Software.
"Case Identification Number" shall mean the identification and tracking number generated by LOOP and provided to You to allow registration and tracking of Your Case.
"Error(s)" shall mean one (1) or more reproducible deviations in the standard, unmodified Software from the applicable specifications shown in the documentation.
"Error Report(s)" shall mean the document to be created by LOOP Software each time an Error occurs in the Software.
"LOOP Software Services" shall mean the current versions of LOOP web services software programs contained on or available through LOOP Software Services, and other services related thereto, which You have been validly licensed to use including Maintenance Releases and website updates (the "Updates"). Your use of LOOP Software Services is subject to the terms of the relevant LOOP Web Services Subscription Agreement.
"Maintenance Release" shall mean a small software update that improves the functionality of the Software and does not contain any new significant features or enhancements. Maintenance Releases are represented by the number that goes after the second decimal point in the version number. For example, 2.1.1 is maintenance releases of version 2.1.
"Major Upgrade" shall mean new subsequent releases of LOOP software which significantly enhances the Software with qualitative changes in functionality and usability and which bears a new first numeral such as 1.0 or 2.0.
"Minor Upgrade" shall mean a successor version of the Software which improves functionality or adds new features to the Software and bears a new second numeral such as 1.5 or 2.6.
"Object Code" shall mean the binary machine readable version of the Software.
"Services" shall mean the maintenance and support services to be provided under this Agreement.
"Software" shall mean a current version of LOOP Learning Management System services which You have been validly licensed to use including, Maintenance Releases, and Minor and Major Upgrades.
"Support Hours" means 24-hour, 7-day-a-week support hours.
"Support Request" means a request for Services submitted to LOOP by You in accordance with this Agreement. Support Requests shall be submitted via
"You" or "Your" shall mean the individual person who purchased and is using the LOOP Services on his or her own behalf; or, if the LOOP Services is being purchased on behalf of an organization, such as an employer, "You" or "Your" shall mean the company or other legal entity for which the LOOP Services is used.
"Your Data" shall mean electronic data and information which makes possible duplication of the Error in the LOOP testing environment, submitted by or for You to the Services or collected and processed by or for You using the Services.
2. LOOP REPRESENTATIONS, WARRANTIES AND COVENANTS.
2.1. LOOP represents, warrants and covenants that: the Services will be performed by LOOP in a professional manner in accordance with applicable industry standards;
2.2. It will comply with all applicable laws in Section 11.7 in providing the Services;
2.3. The performance of Services for You under this Agreement does not and will not violate any agreements or obligations LOOP may have to any other person or entity.
3.1. LOOP shall provide You with the Services for the LOOP Services during the Support Hours throughout the subscription period. "Services" include the identification, diagnosis and correction of Errors by providing the following services by help desk technicians sufficiently qualified and experienced to identify and resolve Your Support Requests reporting the Errors: (a) e-mail assistance, providing responses to You within 5 (five) business days; (b) access to technical information provided either on LOOP's website or delivered to You in writing by e-mail; error correction services, including without limitation identifying defective code and to provide corrections, workarounds and/or an object code patches to correct Errors, or a specific action plan as to how LOOP will address the problem and an estimate of how long it will take to rectify the defect. By rendering the Services, LOOP shall correct Errors in accordance to this Agreement, and, particular, Exhibit A hereto.
3.2. Handling of Support Requests. All Support Requests shall be investigated and if the request relates to the Software, or to an Error caused by the Software, (a) a Case shall be opened, (b) a Case Identification Number shall be generated and provided to You by an LOOP support representative(s), and (c) the Case shall be resolved in accordance with standard LOOP procedures and processes. For Error Reports received by LOOP during LOOP's business hours, LOOP will use business reasonable commercial efforts to communicate with You about the Error via e-mail or online facilities available on the LOOP web site.
3.3. Support Requests outside standard Support Hours. All emails will receive a response via email within the next business day.
3.4. Limitation on the Services. Notwithstanding any other provisions in this Maintenance and Support Services Agreement, LOOP shall provide the Services.
3.5. Maintenance and Support Services do not include: (a) development of custom computer programs, (b) repairs or service relating to any third party software or hardware.
3.6. Intellectual Property Rights. Title to all Error Corrections, Maintenance Releases and Minor and Major Upgrades shall remain solely and exclusively with LOOP. It is hereby acknowledged and agreed that the former shall be deemed to constitute the Software for purposes of the application of the software license agreement.
3.7. Scheduled Maintenance of LOOP Software Services. You acknowledge that certain scheduled maintenance activities regarding LOOP Software Services may be necessary or appropriate from time to time, including bug fixes, software updates, feature updates, and the addition of new applications and new modules. In most instances, LOOP infrastructure is designed to support updates by LOOP engineering and support teams without the need to interrupt LOOP Software Services. Where such scheduled maintenance activities are not reasonably anticipated to materially impact Your use of LOOP Software Service, LOOP will have no obligation to provide notice to You regarding such maintenance activities, although LOOP generally does so, in the ordinary course, at least (24) twenty-four hours in advance of the same. If LOOP reasonably determines that scheduled maintenance activities will require an unavailability or outage of LOOP Software Services in excess of ten (10) consecutive minutes, LOOP will give You advance notice of the same. LOOP will use commercially reasonable efforts to perform routine scheduled maintenance during non-business hours.
3.8. LOOP undertakes, in its sole discretion, to adopt commercially reasonable measures in order to ensure that LOOP Software Services are available over the Internet around the clock, seven (7) days a week. LOOP shall be entitled to take measures that affect the aforementioned accessibility where LOOP deems such to be necessary for technical, maintenance, operational, or security reasons. You are aware and acknowledge that the Your access to the Internet cannot be guaranteed and that LOOP shall never be liable for deficiencies in Your own Internet connections or equipment.
4. OUT OF SCOPE PROBLEMS
Any time incurred by LOOP in diagnosing or fixing problems that are not caused by the Software, or are not covered by this Agreement are billable to You at LOOP's then-existing rates with a four-hours minimum per support ticket created.
5. TERM AND TERMINATION.
5.1. Term of the Agreement. This Agreement commences on the date You purchased or subscribe the Software or LOOP Software Services and continues until the termination or expiration of a relevant subscription term
5.2. Term of the Services. The term of the Services for the Software and LOOP Software Services provided to You on a trial or evaluation basis, shall become effective on the beginning of a trial period and continues until the expiration date of a trial period.
5.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.4. Surviving Provisions. The Sections 1, 2, 7, 8, 9, 10 will survive any termination or expiration of this Agreement.
You hereby agree to indemnify and hold harmless LOOP, its Affiliates, officers, directors, agents, and employees, from any expense, loss, claim, damage, fine, penalty or liability, including reasonable fees for attorneys and other professionals, payable under any judgment, verdict, court order or settlement, to the extent resulting from any claim, demand, action, suit, arbitration, or other proceeding initiated by any third party, including the assessment, claim or demand by a governmental agency or entity, arising out of Your breach of this Agreement and any third party claims arising from Your Data.
7.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; LOOP Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and pricing, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by designated party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY
8.1. In no event shall LOOP be liable for any special, indirect, incidental, punitive, or consequential damages, including loss of profits arising from or related to the breach of this Agreement, even if LOOP had been advised of the possibility of such damages.
8.2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN THE EVENT ANY REMEDY FAILS ITS ESSENTIAL PURPOSE, LOOP’S LIABILITIES UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, OR OTHERWISE, SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT ACTUALLY RECEIVED BY LOOP PURSUANT TO THIS AGREEMENT.
8.3. THE SERVICES ARE PROVIDED “AS IS” AND EXCEPT AS SET FORTH IN SECTION 2.2, LOOP MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE OR THE SERVICES OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR USE BY CUSTOMER. LOOP FURNISHES THE WARRANTIES IN SECTION 2.2 IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.4. No action, regardless of form, arising under this Agreement, may be brought more than one year after the cause of action has arisen, except that an action for non-payment may be brought within three (3) years after the date of the most recent payment.
9. INDEPENDENT CONTRACTOR. All work performed by LOOP in connection with the Software and/or the Services described in this Agreement shall be performed by LOOP as an independent contractor and not as Your agent or employee. All persons furnished by LOOP shall be for all purposes solely LOOP’s employees or agents and shall not be deemed to be Your employees for any purpose whatsoever. LOOP shall furnish, employ, and have exclusive control of all persons to be engaged in performing maintenance services under this Agreement and shall prescribe and control the means and methods of performing such maintenance services by providing adequate and proper supervision. LOOP shall be solely responsible for compliance with all rules, laws, and regulations relating to employment of labor, hours of labor, working conditions, payment of wages, and payment of taxes, such as employment and other payroll taxes including applicable contributions from such persons when required by law.
10. GENERAL PROVISIONS.
10.1. Force Majeure. Except for the obligation to make payments, non-performance of either party shall be excused to the extent the performance is rendered impossible by pandemic, strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers.
10.2. Assignment. This Agreement may not be assigned, in whole or in part, by either party without the prior written consent of the other party, provided, however, that LOOP shall have the right to assign this Agreement to its Affiliates without Your prior consent by giving notification to You. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
10.3. Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after being sent by confirmed facsimile, or (iv) the first business day after being sent by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
10.5. Amendments. This Agreement may be amended by LOOP at any time by providing the new terms and conditions for You to accept when You next log in to the website. LOOP reserves the right to make changes or updates with respect to or in the Services or the Support Plans at any time without notice. You also understand and agree that the Services may include certain communications from LOOP including service announcements, administrative messages, and product updates and that these communications are considered part of your registration, and you will not be able to opt out of receiving them.
10.6. Export Regulations. The parties acknowledge that the Services and all related technical information, documents, and materials may be subject to export controls under laws of the Republic of Singapore and, to the extent applicable, the parties shall (a) comply with all requirements set forth in such regulations, and (b) cooperate fully with each other in any official or unofficial audit or inspection that relates to such export requirements.
10.7. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the Republic of Singapore without reference to conflicts of law rules and principles.
10.8. Severability. If this Agreement or any provision thereof is, or the transactions contemplated hereby are, found by a court of competent jurisdiction to be invalid, void, unenforceable for any reason or inconsistent or contrary to any valid applicable laws or official orders, rules and regulations, in whole or in part, the inconsistent or contrary provision of this Agreement shall be null and void and such laws, orders, rules and regulations shall control and, as so modified, this Agreement shall continue in full force and effect and the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law; provided, however, that nothing herein contained shall be construed as a waiver of any right to question or contest any such law, order, rule or regulation in any forum having jurisdiction.
10.9. No Waiver. No provision of the Agreement will be considered waived unless such waiver is in writing and signed by the party that benefits from the enforcement of such provision. No waiver of any provision in the Agreement, however, will be deemed a waiver of a subsequent breach of such a provision or a waiver of a similar provision. In addition, a waiver of any breach or a failure to enforce any term or condition of the Agreement will not in any way affect, limit, or waive a Party’s rights under the Agreement at any time to enforce strict compliance thereafter with every term and condition of the Agreement.
10.10. No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties and, except as otherwise provided herein, no other person will have any right, interest, or claim under this Agreement.
10.11. Entire Agreement. With the exception of prior Non-Disclosure Agreements, if any, the Agreement, together with the exhibits, attachments and appendices hereto, constitutes the entire agreement and understanding between the parties or any of their Affiliates with respect to its subject matters and supersedes all prior agreements, understandings and representations, written or oral, to the extent they relate in any way to the subject matter of the Agreement.
Publication Date : 31st Oct 2020
Business Impact Level and Resolution.
All Errors reported by You via email or ticket portal, to LOOP shall be assigned a Business Impact Level (BIL). LOOP shall classify or reclassify, as applicable, all Errors as 1, 2, 3 or Change Request (CR) pursuant to the definitions set forth in this Exhibit A.
|1||The problem is critical, there is no workaround is found on the client side.||The problem is solved, or the workaround is provided to bring the priority down to P2 level. The time estimate for the full resolution is provided.|
|2||The problem causes a degradation of service main functionalities; the problem is critical, but has a workaround available, the functionality is not essential for the service.||The problem is well analysed and either solved, or provided with the time estimate for the full resolution. The client is provided with the up-to-date information by vendor.|
|3||The problem causes minor loss or degradation of services, the problem is important, but has a workaround; the functionality is not important, but causes an inconvenience.||The problem is well analysed and either solved, or provided with the time estimate for the full resolution. The client is provided with the up-to-date information by vendor.|
|Change Request (CR)||The new change request||The request is analysed and then the effort and cost estimate for the implementation is provided.|
To adhere to the above BIL, You shall report the Error to LOOP support team via email or ticket portal. You shall provide the detailed description of the Error with screenshots/samples.
In case the Error is Medium/Low, You shall describe the consequences to the business.
Time for Resolution of Errors.
Based on Error's Priority Level, LOOP shall correct such Error within the time set forth below:
|BIL||Priority Description||Initial Response||Planned Resolution|
|1||Critical||1 business day||As soon as possible – within 72 hours|
|2||High||1 business day||Within 120 hours|
|3||Medium||1 business day||Within 120 hours|
|CR||Low||1 business day||Within 120 hours|