Continuing support agreement—Software.
CONTINUING SUPPORT AGREEMENT—SOFTWARE
Effective Date: _________
This Agreement is made by and between _________ Incorporated, a _________[State] corporation having a principal place of business at _________[Address] (“A”) and _________(“Customer”), a _________[State] corporation having a principal place of business at _________[Address].
A and Customer entered into a License Agreement effective _________[date] (“License Agreement”); and Customer wishes A to provide support for the version(s) of the software licensed by A to Customer pursuant to the License Agreement and identified in Attachment 1 (“Software Implementations Covered by Support agreement”) hereto (as modified from time to time) in accordance with the terms and conditions of this continuing Support Agreement (“Support Agreement”);
A and Customer therefore agree as follows:
1.1. Appendix. “Appendix” shall mean an appendix to the License Agreement describing a version of the Software identified in Attachment 1 (“Software Implementations Covered by Support Agreement”) hereto.
1.2. Documentation. “Documentation” shall mean the documentation as delivered to Customer under the License Agreement for a version of the Software. Documentation shall not include modifications made by Customer to the Documentation.
1.3. Error. “Error” shall mean a reproducible defect in the Software or Documentation which causes the Software not to operate substantially in accordance with the Documentation and which is reported to A on the Software Error Report form set forth in Attachment 2 (“Software Error Report”) hereto, or in another format as provided by A from time to time.
1.4. Release. “Release” shall mean a particular version, including but not limited to updates supplied to Customer hereunder, of the Software and Documentation provided by A to Customer in accordance with the terms and conditions of the License Agreement or this Support Agreement and identified in Attachment 1 (“Software Implementations Covered by Support Agreement”).
1.5. Resolution. “Resolution” shall mean a modification(s) to the Software and/or Documentation and/or other information provided by A to Customer intended to resolve an Error.
1.6. Software. “Software” shall have the same meaning as “A Driver Software” as defined in the License Agreement.
1.7. Support. “Support” shall mean ongoing support provided by A pursuant to the terms of this Support Agreement.
1.8. Support Period. “Support Period” shall mean the period during which Customer is entitled to receive Support on a particular Release, which shall be a period of twelve months beginning from the “Support Starting Date” specified on Attachment 1 (“Software Implementations Covered by Support Agreement”) or from the expiration of the preceding Support Period.
2. Term and Termination.
2.1. The term of this Support Agreement with respect to a particular Release shall be the Support Period. Upon expiration of an existing Support Period for a particular Release (provided Support for such Release has not been terminated prior to expiration pursuant to Paragraph 2.2 or Paragraph 2.3 hereof), a new Support Period shall automatically begin for a consecutive twelve (12) month term (“Renewal Period”) so long as (a) Customer pays A’s then-current support fee (“Support Fee”) within thirty (30) days of invoice by A; and (b) A is still offering Support on such Release. This Support Agreement shall terminate upon the termination of Support for all Releases. The termination of this Support Agreement shall not terminate the License Agreement. From time to time the parties shall revise Attachment 1 (“Software Implementations Covered by Support Agreement”) to reflect the current Releases receiving Support and the associated Support Fees.
2.2. Either party shall have the right to terminate the Support for a particular Release without cause upon sixty (60) days written notice prior to the end of any Support Period for such Release. Upon such termination of Support for a Release by Customer, A shall retain any paid-up Support Fees for said Release. Upon termination of this Support Agreement by A with respect to a particular Release, A will promptly refund that portion of the Support Fee for said Release proportional to the percentage of the Support Period remaining at the time termination is effective. At such time the Release shall be deemed removed from the list on Attachment 1 (“Software Implementations Covered by Support Agreement”).
2.3. Either party may terminate the Support for a Release for cause in the event of a failure by the other party to meet any of its obligations set forth in this Support Agreement for such Release. Upon such termination of Support for cause by A, A shall retain any paid-up Support Fees for said Release. Upon such termination for cause by Customer, A will promptly refund that portion of the Support Fee for said Release proportional to the percentage of the Support Period remaining at the time termination is effective. At such time the Release shall be deemed removed from the list on Attachment 1 (“Software Implementations Covered by Support Agreement”).
3. Services Provided.
3.1. During the Support Period A shall provide the following services to a maximum of three Customer Technical Contacts for each Release identified on Attachment 1 (“Software Implementations Covered by Support Agreement”) hereto:
3.1.1. Forty (40) hours of written and telephone consultation pertaining to operation and application of the Software, during normal business hours, 9 A.M. to 4 P.M. Pacific Time, Monday through Friday, excluding A holidays.
3.1.2. Delivery of updates to the Software which are generally made available to similarly situated licensees who have licensed the same Software product from A under the applicable License Agreement.
3.2. During the Support Period, Customer may submit a Software Error Report to A specifying the Errors which Customer wishes to have corrected.
3.2.1. A shall use reasonable commercial efforts to provide a Resolution to mutually-agreed upon Errors reported on the Software Error Report in accordance with the guidelines set forth in Attachment 3 (“Support”).
3.2.2. Once Customer submits and A accepts one or more Software Error Reports requesting a Resolution to Errors in Customer’s then-current Release, Customer and A shall agree in writing to a schedule for the delivery of the corrected Software. If Customer submits additional Software Error Reports for a Release after the parties have agreed upon a schedule for delivery of corrections to such Release, the parties must agree upon a revised schedule for the delivery of the corrected Software. Otherwise, the additional Software Error Reports will be deemed to be the first of a new series of Software Error Reports for a subsequent Release.
3.2.3. Customer shall have thirty (30) days (or such other time as the parties may mutually agree upon) from the date on which A makes delivery of the Resolution to examine and test the Resolution to determine that it corrects the mutually-agreed upon Errors. The Resolution will be deemed to have been accepted by Customer if A does not receive within such thirty (30) day period a Software Error Report from Customer reporting Errors which Customer believes the Resolution did not sufficiently correct. In the event that Customer delivers to A within such thirty (30) day period a supplemental Software Error Report reporting such uncorrected Errors, A shall evaluate such supplemental Software Error Report and use reasonable means to provide to Customer a Resolution within thirty (30) days of receiving the supplemental Software Error Report. Should such Resolution not correct the Errors, Customer’s sole and exclusive remedy shall be to elect one of the following remedies in a written statement delivered to A within fifteen (15) days of Customer’s receipt of such Resolution.
(a) extend the correction period for a mutually agreed upon time;
(b) terminate the Support Agreement with respect to a particular Release as specified in Paragraph 2.3 above, provided Customer has returned all existing copies of the version of the Software which is nonconforming and has certified in writing that it has no right to use, market or distribute such version of the Software.
3.3. Unless A and Customer otherwise agree in writing, all Software or Documentation provided under this Paragraph 3 shall be distributed free of royalty or any other charge by Customer. Any distribution by Customer of Software or Documentation shall be governed by the terms and conditions of the License Agreement.
3.4. The following services are outside the scope of this Support Agreement.
3.4.1. Service for A products not licensed pursuant to the License Agreement.
3.4.2. Service for A products not identified in Attachment 1 (“Software Implementations Covered by Support Agreement”) to this Support Agreement.
3.4.3. Service for Software or Documentation which has been modified by Customer.
3.4.4. Service for other than the current Release of Software.
3.4.5. Errors which are not generated by the Software as delivered by A to Customer. If A establishes that no Error exists, or that the Error resulted from a modification by anyone other than A, Customer will pay A for its services at A’s then-current consultation rate.
3.4.6. Service which becomes necessary due to: 1) failure of computer hardware, equipment or programs not supplied by A; 2) catastrophe, negligence of Customer, operator error, improper use of hardware or software or attempted maintenance by unauthorized persons; or 3) any changes to the Software or Documentation that are not provided by A.
3.4.7. On-site support, unless mutually agreed to and subject to A’s then-current on-site support fees.
4. Customer’s Responsibilities.
4.1. Customer shall be responsible for distributing, at Customer’s expense, Releases within Customer’s organization and to its sublicensees, if any.
4.2. Customer and A agree that all Releases of the Software provided by A are subject to all the terms and conditions of the License Agreement.
4.3. Customer shall fully cooperate with A by providing relevant hardware, software, and other information if reasonably required by A, subject to any applicable agreements between Customer and A,
Customer and third parties, and Customer’s security regulations. Customer shall provide A with reasonably necessary hardware and software information, consultation and advice.
5. Support Fees.
5.1. Annual Support Fees shall be at A’s then-current rates. Customer shall pay Support Fees within thirty (30) days of its receipt of a correct invoice.
5.2. All payments made by Customer shall be in United States Dollars and directed to A, marked Attn: Accounts Receivable.
a. If Customer’s principal place of business is located outside of the United States, such payments shall be made by wire transfer directly to: (Name of Bank) _________(Address), _________(Contact:), _________(Account Number), _________(Routing Number), _________.
5.3. In addition to any other payments due under this Agreement:
(a). Customer agrees to pay, indemnify and hold A harmless from, any sales, use, excise, import or export, value added or similar tax or duty, and any other tax not based on A’s net income, including penalties and interest and all government permit fees, license fees, customs fees and similar fees levied upon the delivery of the Software and Documentation or other deliverables which A may incur in respect of this Agreement, and any costs associated with the collection or withholding of any of the foregoing items (the “Taxes”).
(b). If Customer fails to pay any Taxes as of the original due date for such Taxes and A receives any assessment or other notice (collectively the “Assessment”) from any governmental taxing authority providing that such Taxes are due from A, A shall, within thirty (30) business days of receipt of Assessment, give Customer written notice of the Assessment and Customer shall pay to A or the taxing authority the amount set forth as due in the Assessment within thirty (30) business days of receipt of such written notice from A. If A’s written notice to Customer of an Assessment is not made within the thirty (30) business days of A’s receipt of the Assessment, Customer shall pay to A within thirty (30) business days of receipt of such written notice only the amount set forth as due in the Assessment and A shall be responsible for any other penalties and interest due on the Taxes set forth in the Assessment.
5.4. If Customer requires on-site service, Customer agrees to pay actual costs for travel, lodging, and meals reasonably incurred by A in addition to the then-current support fees. Under such circumstances, Customer shall also pay actual costs for supplies and other expenses reasonably incurred by A, which are not of the sort which would normally be provided or covered by A; provided that Customer has approved in advance the purchase of such supplies and other expenses. Shipping and freight for Customer equipment shall be billed to Customer at actual cost. If Customer so requires, A shall submit written evidence of each expenditure to Customer prior to receiving reimbursement of any costs and expenses above.
6. LIMITATIONS ON WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, A DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED WITH REGARD TO SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER SHALL NOT HAVE THE RIGHT TO MAKE OR PASS ON, AND SHALL TAKE ALL MEASURES NECESSARY TO ENSURE THAT NEITHER IT NOR ANY OF ITS AGENTS OR EMPLOYEES SHALL MAKE OR PASS ON ANY SUCH WARRANTY OR REPRESENTATION ON BEHALF OF A TO ANY CUSTOMER, END USER OR THIRD PARTY.
7. LIMITATION OF LIABILITY. THE TOTAL OF A’S LIABILITIES UNDER OR IN CONNECTION WITH THIS AGREEMENT (WHETHER ARISING FROM CONTRACT OR OTHERWISE) IS LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT. A SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING FROM ITS PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT.
8. Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, telegram, telex, telecopier, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to: (i) the contract representative designated in the specific Licensed System appendix if the notice or report relates to one or more specific Licensed Systems and (ii) a copy to the signatory of this Agreement at the address set forth at the end of this Agreement or such other address as either party may specify in writing. If the notice is to A a copy shall also be sent to the attention of its General Counsel.
9. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
10.1. Assignment. Neither this Agreement nor any rights or obligations of Customer hereunder may be assigned by Customer in whole or in part without the prior written approval of A. For the purposes of this paragraph, a change in the persons or entities who control fifty percent (50%) or more of the equity securities or voting interest of Customer shall be considered an assignment of Customer’s rights. A’s rights and obligations, in whole or in part, under this Agreement may be assigned by A. A may exercise full transfer and assignment rights in any manner at A’s discretion and specifically may sell, pledge, or otherwise transfer its right to receive royalties under this Agreement.
10.2. Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
10.3. Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
10.4. Export. Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Release and related Documentation in any form or medium. Customer agrees that it will not export or re-export the Release and related Documentation in any form, without the appropriate United States and foreign government licenses. Customer agrees that its obligations pursuant to this paragraph shall survive and continue after any termination or expiration of rights under this Agreement.
10.5. Controlling Law. This Agreement shall be governed in all respect by the laws of the United States of America and the State of _________ as such laws are applied to agreements entered into and to be performed entirely within _________[state] between _________[state] residents. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
10.6. Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by Customer will cause A irreparable damage for which recovery of money damages would be inadequate, and that A shall therefore be entitled to obtain timely injunctive relief to protect A’s rights under this Agreement in addition to any and all remedies available at law.
10.7. No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
10.8. Headings. The paragraph headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such paragraph or in any way affect this Agreement.
10.9. Confidentiality of Agreement. Neither party will disclose any terms or the existence of this Agreement, except pursuant to a mutually agreeable press release or as otherwise required by law.
10.10. Entire Agreement. This Agreement together with the exhibits completely and exclusively states the agreement of the parties regarding its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. This Agreement shall not be modified except by a subsequently dated written amendment or appendix signed on behalf of A and Customer by their duly authorized representative and any provision or a purchase order purporting to supplement or vary the provisions hereof shall be void.
10.11. Full Power. Each party warrants that it has full power to enter into and perform this Agreement, and the person signing this Agreement on each party’s behalf has been duly authorized and empowered to enter into this Agreement. Customer further acknowledges that it has read this Agreement, understands it and agrees to be bound by it.
10.12. Forum. All disputes arising under this Agreement may be brought in Superior Court of _________ or the Federal District Court of _________, as permitted by law. The Superior Court of _________ and the Federal District Court of _________ shall each have nonexclusive jurisdiction over disputes under this Agreement. Customer consents to the personal jurisdiction of the above courts.
10.13. Attorneys’ Fees. In the event any proceeding or lawsuit is brought by _________, its suppliers or Customer in connection with this Agreement, the prevailing party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal.
10.14. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
This Support Agreement is made effective as of _________[date].
1. General Description of Support. Support shall consist of (i) the delivery of updates of Software as provided in Paragraph _________ of the Support Agreement and (ii) the Error resolution services described below with respect to Errors (as defined in Paragraph 1.5 (“Resolution”) of the Support Agreement) in the Software. Except as otherwise provided herein, capitalized terms shall have the same meaning as defined in the attached Support Agreement.
2. Description of Error Resolution Services Provided By A.
2.1. Software Error Reports (SERs). Customer shall submit to A by electronic mail or facsimile, Software Error Reports in the form attached hereto as Attachment 2 (“Software Error Report”) to identify any Errors. A may modify the form of SER from time to time and shall provide the new form to Customer.
2.2. Classification of Errors. Customer shall use its reasonable business judgment to classify Errors in accordance with the classifications set forth below and report such classification in the SER Customer submits to A.
(a). Level 4 Severity. Level 4 is the classification used in a SER to describe an Error (i) that causes the Software to fail to operate in a material manner or causes the Software to produce substantially incorrect results; and (ii) to which there is no work around solution.
(b). Level 3 Severity. Level 3 is the classification used in a SER to describe an Error (i) that causes the Software to fail to operate in a material manner or causes the Software to produce substantially incorrect results; and (ii) to which there is a difficult or no work around solution.
(c). Level 2 Severity. Level 2 is the classification used in a SER to describe an Error which produces an inconvenient situation in which the Software is usable but does not function in the most convenient or expeditious manner, and which does not significantly impact the use or value of the Software. Level 2 Errors will generally be corrected in a subsequent Release of the Software.
(d). Level 1 Severity. Level 1 is the classification used in a SER to describe an Error which is minor or that is cosmetic in nature. Generally, a Level 1 Error is reasonably correctable by a Documentation change or by a subsequent Release of the Software.
2.3. A’s Response to SERs. Within five (5) business days after receipt by _________ of a SER involving a classification of a Level 3 or 4 Severity Error or ten (10) days after receipt of a SER involving a classification of a Level 1 or 2 Severity Error, A shall acknowledge receipt of the SER. If in A’s judgment, a SER correctly identifies a Level 3 or 4 Severity Error, A shall use reasonable commercial efforts to correct the identified Error and issue and deliver to Customer a Release with such correction implemented, or take such other corrective action as A deems necessary to correct the Error. A acknowledges that it shall give priority and shall take corrective actions as expeditiously as possible in connection with any Severity 3 or 4 Error that prevents Customer from using the Software for the purposes set forth in the License Agreement and/or an Appendix.
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