The Licensee agrees to contract for and Software FX, Inc. agrees to provide to Licensee the Software Support Program specified below upon the terms and conditions of the Software License Agreement and of this Software Support Program Agreement ("Agreement"). THIS AGREEMENT, INCLUDING THE ACCOMPANYING TERMS AND CONDITIONS, IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
TERMS AND CONDITIONS
1. General.
"You" means the single end-user customer organization signing this Agreement and authorized to use the Software(s).
"Software FX, Inc." means Licensor.
"Update or Service Pack(s)" is reflected by a change in the second digit of the release number (right of the decimal), includes changes, modifications or improvements that improve operating performance or efficiency of the software, but do not alter the basic functions the software performs.
"Upgrade" is reflected by a change in the first digit of the release number (right of the decimal), includes changes, modifications or improvements which render the software capable of performing additional basic functions that are different from those provided in the original version.
"Error" means any failure of the Product to conform in any material respect to its published specifications.
"Error Correction" means either a modification or addition that, when made or added to the Product, brings the Product into material conformity with its published specifications, or a procedure or routine that, when observed in the regular operation of the Product, avoids the practical adverse effect of such nonconformity.
"Incident" means any single instance of support provided as described under the paragraph 3, "Scope of Maintenance". In the event of a dispute concerning the definition of an incident, Software FX, Inc. reserves the exclusive right to determine what constitutes an incident and whether it is chargeable or not.
Minor Releases shall include the provision of Error Corrections and/or Updates from time to time at no additional charge for each copy of the Product being maintained under this agreement. An example of a minor release is upgrading from 4.00 to 4.01.
Major Releases shall include Upgrades, Error Corrections, and /or Updates from time to time at an additional charge for each copy of the Product being maintained under this agreement. An example of a major release is upgrading from 2.2 to 2.3, 3.0 to 4.0, etc.
Software FX, Inc. reserves the exclusive right to determine what constitutes an Update or an Upgrade.
2. Terms and Termination. The maintenance term for each Software FX's Software Product shall commence upon crediting payment for this Agreement. The maintenance term shall continue until the expiration date, normally one year from when payment is credited. The Agreement shall expire unless and until Licensee issues a purchase order or payment to renew. Software FX, Inc. agrees to provide Licensee written notice of the expiration, which shall also include notice of any price increase for the upcoming annual term, if applicable.
3. Scope of Maintenance. During the maintenance term, Software FX, Inc. agrees to basic maintenance services in support of the Software(s). Basic maintenance services shall consist of:
a. Error Correction. Software FX, Inc. shall be responsible for using all reasonable diligence to correct verifiable and reproducible Errors when reported to Software FX, Inc. in accordance with its standard reporting procedures. The Error Correction, when completed, may be provided in the form of Service Pack(s).
b. Answers to Questions. Software FX, Inc. shall provide answers to reasonable and specific questions about the installation, setup, configuration, and use of Software FX, Inc. products. The answer, when provided, may be provided in the form of a reference to sources of information where the answer can be found. In addition, Software FX, Inc. may refer the licensee or licensee representative to sources of information not provided by Software FX, Inc.
c. Telephone Hot-Line and Electronic Mail Messages. Software FX, Inc.'s personnel will be available to you to report problems and seek assistance in use of the Software(s) during the hours of 9:00 AM to 5:00 PM, Eastern time, Monday through Friday, nationally recognized holidays excluded.
d. Updates or Service Pack(s). Software FX, Inc. may, from time to time issue updates of the Software(s), for Error Corrections, to their customers, whenever the following conditions apply: a) if the number of corrections on a specific version of the software are so great that the release of the service pack is necessary; b) if due to an error you are able to use the software only with limited or restricted functionality. Software FX, Inc. shall provide you with one (1) copy of each updated version for each copy of the Software(s) being maintained under this Agreement, without additional charge. Software FX, Inc. shall provide reasonable assistance to help you install and operate each updated version.
e. Upgrades. Software FX, Inc. is under no obligation to provide you with an upgrade of the software as part of this Agreement. Upgrades will be available for you to be purchased at the then current retail price.
f. Staff. Software FX, Inc. shall maintain a trained staff capable of rendering the services set forth in this Agreement.
4. Additional Services. In addition, Software FX, Inc. may provide additional services, as mutually agreed, in support of the Product, subject to payment of its standard rates then in effect:
a. Customizations. Software FX, Inc. will consider and evaluate the development of additional Upgrades and/or Additions to the software for your specific use and will respond to your requests for additional services pertaining to the Product (e.g., as data conversion, additional functionality, additional reports, and report-formatting assistance).
Software FX, Inc. will not undertake any additional Upgrades, Additions, customization or related work without first providing you with a dollar estimate of the work, and receiving a signed work order or purchase order for the Upgrade. Customizations are not guaranteed to work with future product Releases. In addition, Software FX, Inc. retains exclusive ownership of all Customizations and reserves the right to include Customizations in future Releases of Products.
b. Back-Level Support. If you choose not to install any Update, Software FX, Inc. will maintain back-level versions of the Program at your request, at extra charge (payable by a Purchase Order or Check), on a best-efforts basis and subject to availability of technical support staff.
c. Training On Demand. Software FX, Inc. does not provide training through this Support Agreement, including the telephone hot-lines, email, fax, or postal mail. However, if you need remote training, it can be provided at an additional cost. The terms of training are covered under a separate agreement. Contact Software FX, Inc. for information concerning these terms.
d. Cooperation Of Customer. You agree to notify Software FX, Inc. promptly following the discovery of any Error. Further, upon discovery of an Error, you agree, if requested by Software FX, Inc. to submit to Software FX, Inc. a listing of any data that Software FX, Inc. may require in order reproducing the Error and the operating conditions under which the Error occurred or was discovered. Also, customer should install the latest version of the Software provided by Software FX, Inc.
5. Exceptions. The following matters are not covered by basic maintenance:
1. Any problem resulting from the misuse, improper use, alteration, or damage of the Software(s);
2. Any problem caused by modifications in any version of the Software(s) not made or authorized by Software FX, Inc.;
3. Any problem resulting from programming not related to the Software(s), at Software FX Inc's discretion;
4. Any problem resulting from the combination of the Software(s) with such other programming or equipment to the extent such combination does not constitute regular use of the Software(s).
You will be responsible to pay Software FX Inc's normal charges and expenses for time or other resources provided by Software FX, Inc. to diagnose or attempt to correct any such problem. In addition, you are responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and other hardware necessary to operate the Software(s) and to obtain maintenance services from Software FX, Inc.
Software FX, Inc. will not be responsible for delays caused by events or circumstances beyond its reasonable control.
6. Fees and Expenses. Annual renewal rates are due and payable thirty (30) days following Licensee's receipt of an invoice provided Software FX, Inc. submits an invoice prior to the beginning of the initial and each renewal year of maintenance thereunder. Maintenance fees do not include travel and living expenses for installation and training, file conversion costs, products and services, directories, consulting services, or the costs of any hardware, or any item excluded as described in paragraph 5, Exceptions. Software FX, Inc. reserves the right to require prepayment or advance deposit for such additional charges or expenses in some instances. You agree to pay such fees and costs as the services are rendered and the expenses incurred, as invoiced by Software FX, Inc. You are also responsible for sales or use taxes and state or local property or excise taxes associated with your licensing, possession, or use of the Product or any associated services. Fee increases will not exceed twenty five percent (25%) for any annual renewal of the Software FX, Inc. Software Support Program.
7. Late Charges. If any fees or expenses are not paid within thirty (30) days after they are due, Software FX, Inc. may, at its option, charge interest at a rate of twenty one percent (21%) per annum, if less, the highest rate allowed by applicable law from the date such fee or charge first became due.
8. Use and Restrictions. Your rights and obligations concerning the use of any Error Corrections, Updates, or Upgrades (or any other programming provided by Software FX, Inc. regardless of its form or purpose) shall be as provided in the Software License Agreement of the Software. Software FX, Inc. shall have sole and exclusive ownership of all right, title, and interest in and to such works (including ownership of all copyrights and other intellectual property rights pertaining thereto), subject only to the license expressly granted to you therein. Unless otherwise agreed, you are entitled to make and use only the number of copies of such works as you are authorized to use of the Product to which they relate, and you agree to return or destroy, as requested by Software FX, Inc. superseded copies of the Product when replaced by such works. You may resort solely to the indemnification rights provided by Software FX, Inc. contained in the Software License Agreement in the event of any issue or claim concerning title or intellectual property rights.
9. Early Termination. Either party may terminate this agreement prior to expiration of the Initial Term, provided a thirty (30) days written notice is given to the other party. Software FX, Inc. shall have no obligation to refund any Fees paid upon execution of this agreement, once such fees have been delivered to Software FX, Inc.
10. Limited Warranty. Software FX, Inc. shall perform its services hereunder in a workmanlike manner. Notwithstanding the addition of any Error Correction, Enhancement, or Updates to the Software(s) for purposes of the Software License Agreement, Software FX's obligation to correct Errors in such additions shall be limited to the maintenance terms of this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, Software FX, Inc. SHALL HAVE NO LIABILITY FOR THE SOFTWARE(S) OR ANY SERVICES PROVIDED, INCLUDING ANY LIABILITY FOR NEGLIGENCE; Software FX, Inc. MAKES AND YOU RECEIVE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND Software FX, Inc. SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability. Exclusion of Consequential Damages. The cumulative liability of Software FX, Inc. to you for all claims relating to the Software(s) and any services rendered hereunder, in contract, tort, or otherwise, shall not exceed the total amount of all service fees paid to Software FX, Inc. for services within the prior year. In no event shall Software FX, Inc. be liable for any consequential, indirect, special, or incidental damages, even if has been advised of the possibility of such potential loss or damage. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies.
12. Default. Should you fail to pay any fees or charges due hereunder or fail to carry out any other obligation under this Agreement or any other agreement with Software FX, Inc., Software FX, Inc. may, at its option, in addition to other available remedies, terminate this Agreement or suspend maintenance services, provided that it first gives you fifteen (15) days' prior notice in order to permit you to cure your default. In addition, maintenance coverage will automatically terminate with respect to any copies of Software(s) that are no longer licensed for use under the Software License Agreement, whether as a result of expiration or termination of such license or replacement of such copies with new Releases.
13. Notices. All notices or other communications required to be given hereunder shall be in writing and shall be delivered either personally or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed as provided in this Agreement or as otherwise requested by the receiving party. Notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the party to whom they are addressed.
14. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida as it applies to a contract made and performed in such state.
15. Modifications and Waivers. This Agreement may not be modified except by a writing signed by authorized representatives of both parties. A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one (1) occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing. It is agreed that no use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. |
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