Last Updated 6/8/2020
These Nextech Support Terms and Conditions (“Support Terms”) set forth the terms and conditions applicable to the Nextech support services (the "Support Services") to be provided by Nextech to Customer (“Customer”) pursuant to the Nextech Master Software License Agreement by and between Customer and Nextech (“License Agreement”) for the Software which Customer has paid the applicable Support Fee ("Supported Software"). All Software, including the Supported Software, and all Documentation relating thereto are subject to the terms and conditions of the License Agreement. Terms not defined in these Support Terms shall have the meaning ascribed to such terms in the License Agreement.
1.1 These Support Terms will become effective and the Support Services will commence on either (i) the delivery of the Supported Software to Customer; or (ii) for Supported Software licensed under a Hosted Services License, upon Nextech providing access to the Supported Software.
1.2 For Supported Software licensed under a Client Server License, the Support Services shall continue for the number of months indicated on the Support line of the Purchase Agreement (“Initial Support Period”). Following the expiration of the Initial Support Period, and each Renewal Period thereafter, the Support Services will automatically renew for successive 12-month periods (each a “Renewal Period”), unless Customer provides Nextech with at least sixty (60) days’ prior written notice of Customer’s intention to not renew the Support Services for the upcoming Renewal Period. Nextech may terminate Support Services at any time without notice in the event Customer’s payment of the applicable annual fee payable for the Support Services for the Supported Software (the “Support Fee”) is not received by Nextech when due. Except as otherwise provided in these Support Terms, these Support Terms and the Support Services may be terminated upon fifteen (15) days written notice by either party to the other party for any material breach of these Support Terms that is not cured during such fifteen (15) day notice period.
1.3 For Supported Software licensed under an on-premises Subscription License or a Hosted Services License, the Support Fee is included as part of the payments for the applicable License and the Support Services shall continue for so long as Customer remains current on the applicable License.
Subject to the exclusions described in Section 5.0 below and to Customer either paying the applicable Support Fee for the Supported Software or remaining current on the applicable payments for a Subscription or Hosted Services License, Nextech will provide the following Support Services for the standard version of the Supported Software:
2.1 Nextech will provide Customer with access to Nextech support from 7:00 am to 8:00 pm Eastern Time Monday through Thursday and 7:00 am to 7:00 pm Eastern Time Friday. Nextech reserves the right to change the hours for Support Services upon reasonable prior notice to Customer;
2.2 Nextech will provide Support Services for non-critical issues through Nextech’s web-based Community Portal. Customer may access the Community Portal by going to www.nextech.com and clicking on “Clients” at the top of the page and then clicking on “Log into the Community Portal.”
2.3 Customer may utilize Nextech’s toll-free support line to report critical/system-down issues only. Nextech reserves the right to charge Customer a $150 processing fee for any non-critical issues called into Nextech’s support line (provided the Community Portal is available for use).
2.4 As part of the Support Services, Nextech will provide, at its discretion, Upgrades, enhancements or modifications to the Supported Software, so long as such Upgrades, enhancements or modifications are not separately priced or licensed by Nextech as new or separate products. Upgrades to the Supported Software licensed under a Client Server License or an on-premises Subscription License are made available to Customers as they are requested and if not requested then by Nextech-initiated contact at least once each year. Upgrades to the Supported Software licensed under a Hosted Services License will be made to the Supported Software automatically.
2.5 Nextech shall use commercially reasonable efforts to provide Corrections (as defined below) or circumvent Errors in the Supported Software in accordance with the provisions of Section 3 and Exhibit A. An “Error” is defined as a bug, error or material difference between the use of the Supported Software and the specifications of the Supported Software as provided in the applicable Documentation. A “Correction” shall consist of fixes, workarounds, support releases, service packs, component replacements, patches and/or documentation changes to the Supported Software for Errors as Nextech deems appropriate. Additional information on severity level classification and target response times are outlined in Exhibit A – Support Definitions and Target Response Times.
2.6 Nextech will offer to Customer, at Nextech’s then current rates, the opportunity to attend training seminars relevant to Customer’s use of the Supported Software.
Upon discovery of an Error, Customer shall promptly report the error to Nextech as set forth in Sections 2.2 or 2.3 above. Upon receipt of an Error report from Customer, Nextech will attempt to reproduce the reported Error within in a commercially reasonable timeframe. If the reported Error is confirmed, Nextech will use commercially reasonable efforts to provide a Correction in accordance with the target timeframes set forth in Exhibit A, depending on the Severity of the Error.
3.1 If Nextech has previously developed a Correction for an Error and has included that Correction within an Upgrade, Nextech may, at its option, provide Customer with only the Upgrade instead of providing the specific Correction.
3.2 In the event that the resolution of such Errors or defects involve a significant function requiring special or custom software development, Nextech shall advise the Customer of the incident number and shall place the Customer on a priority list to develop the required fix through a software patch or update. For Severity 1 and Severity 2 Errors, Nextech shall give Customer regular status reports regarding when such software patch or update release will be available in accordance with Exhibit A. For Severity 3 Errors, such software patch or update releases will be queued for future release within Nextech’s standard development cycle.
Should the situation arise where, for technical reasons, a Correction cannot be made for a particular Error, then Nextech will notify Customer. Nextech will work with Customer to agree on the course of action to be taken. Provided that Nextech can reasonably demonstrate to Customer a valid reason why no Correction is available, then any inability of Nextech to provide a Correction shall not be regarded as a breach of the terms of this Agreement.
Notwithstanding anything contained in these Support Terms to the contrary, Customer shall ensure that the following steps are taken in advance of making any support request to Nextech:
4.1 Customer is using either the latest release or the immediately preceding release of the Supported Software;
4.2 Customer has taken reasonable steps to eliminate any hardware, operating system software and application software deficiencies;
4.3 Customer has collected all relevant data and documented all operating conditions and other operation information relating to the incident; and
4.4 Customer fully implements any correction or temporary work-around prior to fix release (within 30 days), fully describes any limitations imposed by such correction or temporary work around prior to fix, and fully cooperates with Nextech.
5.1 Nextech does not provide support for any hardware, networking, printers or third party software, including the Windows operating system. Backups are the sole responsibility of the Customer for any data that is not hosted by Nextech (“Client Server Backups”). Nextech will assist, as requested, in the setup of Client Server Backups, but in all situations, the Customer is solely responsible for verifying that Client Server Backups are occurring. Nextech will not be responsible for any data loss from such Client Server Backups. Nextech shall not be obligated to provide any Support Services, including the use of the NexWeb Portal and any other services that use the Nextech’s servers, if Customer is not current on payment of all Support Fees or is otherwise in violation of these Support Terms or Customer’s License Agreement.
5.2 Nextech has an “All or None” policy for Support Services. Customer must either purchase Support Services for all then-current licenses for the Software or must elect to not purchase Support Services for any of the licenses. For example, if Customer has 5 licenses of the Supported Software, Customer must either purchase Support Services for all 5 licenses or for none of the licenses.
5.3 Additionally, Nextech shall have no obligation to provide Support Services for any modules and features operating on any hardware or systems software configuration that does not meet the technical specifications described in the applicable Documentation.
5.4 Customer agrees to provide Nextech with access to its facilities and equipment as are reasonably necessary for Nextech to perform its obligations hereunder, including remote access to the Customer’s computing environment containing the Supported
5.5 Nextech will only provide Support Services for the most current version and the one immediately prior version of the Supported Software.
5.6 Support Services do not apply to:
a. Altered, modified, or customized versions of the Supported Software unless altered or modified pursuant to this Agreement;
b. Any combination of Supported Software and any third party software to form an interconnected environment.
c. Any version of the Supported Software other than those described in Section 5.6 above; and
d. Errors arising from or relating to Customer’s negligence, fault or otherwise resulting from malfunction of Customer’s hardware or other software not covered by these Support Terms or the License Agreement.
Nextech reserves the right to charge Customer reasonable out-of-pocket expenses actually incurred by Nextech in connection with its investigation of Errors reported by Customer. Nextech Support Services are only intended to assist with Corrections and Errors. Brief instructional questions can be submitted and addressed via the Nextech Community Portal. Training, consulting, implementation/set-up, customization, assistance with report writing and/or configuration services are specifically excluded from Support Services but may be purchased separately as needed by Customer at Nextech’s then-current rates.
7.1 For Supported Software licensed under a Client Server License, on or about each Renewal Date, Nextech will invoice Customer for the applicable Support Fees for the new Renewal Period unless either party gives notice of termination pursuant to Section 2 above. Such Support Fees will be due for payment by Customer by the earlier of (i) thirty (30) days from the date of invoice or (ii) the applicable Renewal Date. If payment of the Support Fee for the new Renewal Period is not received by the due date, other than as a result of a good faith dispute by Customer, Support Services for the Supported Software will automatically lapse. Upon such lapse, Customer may reinstate the Support Services in accordance with Section 7.2 below.
7.2 If the Support Services lapse in accordance with 7.1 above and the Nextech software products have been off Support Services for less than one (1) year, Customer can reinstate Support Services for such Nextech software products for a Support Services period of not less than twelve (12) months by paying to Nextech the applicable Support Fees backdated to the time of the lapse plus, in Nextech’ sole discretion, either:
a. a 10% reinstatement fee (calculated at 10% of the applicable Support Fee) if Customer is licensing the then current version of the Supported Software, or
b. 25% of the then current license fee list price of the Supported Software if Customer is not licensing the then current version of such Supported Software.
c. If the Nextech software product has been off Support Services for longer than one (1) year, Customer will be required to purchase the most current version of the Nextech software product in order to renew Support Services.
7.3 Nextech reserves the right (i) upon 120 days written notice prior to the commencement of any Renewal Period to discontinue Support Services for a particular software product if such Support Services will be discontinued for all similarly situated customers; and (ii) upon 60 days written notice prior to any new Renewal Period of Support Services, to alter the prices, terms, and conditions for the Support Services.
8.1 Nextech and its third-party suppliers have and will retain all ownership rights to the Supported Software, including without limitation all Intellectual Property Rights relating thereto or incorporated therein. Customer will have no rights in the Supported Software except as explicitly stated these Support Terms or the License Agreement. Nextech reserves the right to alter these Support Terms from time to time in its sole discretion, provided that Nextech provides Customer with thirty (30) days prior written notice of any change that materially and adversely affects Customer.
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EXHIBIT A - Support Definitions and Target Response Times Priority |
Definition |
Expected Initial Response Time |
Resolution* Communication |
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Severity 1 - Critical Priority |
System down or any issue affecting access to the Nextech application for all users |
15 min Please call support rather than leveraging the Portal. |
|
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Severity 2 – High Priority |
Any issue posing a significant patient safety or financial risk that could adversely impact business continuity |
< 4 hours Please emphasize the impact of this issue when submitting it online. |
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Severity 3 – Standard Priority |
All remaining issues or a high priority issue with an alternative solution or workaround. |
1 business day |
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*Resolution is the determination of the outcome of the reported problem. Depending on the nature of the issue, the Resolution of a case is likely to be one of the following:
a. additional education or explanation of the issue
b. additional documentation provided
c. notification to a third-party vendor of a problem
d. data modification performed to restore database integrity
e. an intermittent problem that should be monitored by you and that cannot be duplicated, or
f. temporary alternative or workaround
g. problem identified as a potential change in the Supported Software
h. submitted or planned enhancement to the Supported Software
i. submission of a work order for custom changes to the Supported Software
