The Semarca Corporation
ASSOCIATION MANAGEMENT SOFTWARE
SOFTWARE MAINTENANCE AGREEMENT
THIS SOFTWARE MAINTENANCE AGREEMENT (this “Agreement”) is entered into between The Semarca Corporation (“Supplier”), having its principal office at 8213-A Shoal Creek Blvd., Austin, TX 78757, and the company or person identified at the end of this Agreement (“Customer”).
Introduction
Supplier licenses the software program known as SAMS, referred to as the “Programs.” An End-User License Agreement separately signed by the parties grants Customer a license to the Programs.
Supplier and Customer agree as follows:
Section 1. Software Maintenance Services
1.1 Supplier agrees to provide Customer corrected or modified versions of the Software Product in the form of fixes and further releases that Supplier makes generally available to end-users. Supplier may charge an additional commercially reasonable fee for versions in which platform upgrades, substantial additional functionality or improved performance are provided.
1.2 Such modifications, when delivered and installed, shall become part of the Software Product and shall otherwise be subject to all of the terms of the License Agreement.
Section 2. Error Correction Services
2.1 Supplier shall use reasonable commercial efforts to correct or provide a usable work-around solution for any reproducible material error in the Programs, within a reasonable period of time. Supplier agrees, if feasible, to commence correction within eight (8) business hours after such error or malfunction is detected. If Supplier, in its discretion, requests written verification of an error or malfunction discovered by Customer, Customer shall promptly provided such verification, by email, telecopy, or overnight mail, setting forth in reasonable detail the respects in which the Program fails to perform. An error or malfunction shall be “material” if it represents nonconformity with Supplier’s current published specifications for the Programs that interfere with the usability of the Programs. Supplier is not obligated to fix errors that are not material. Upon request, Customer shall provide Supplier remote access to Customer’s computer system for the purpose of remote diagnostics.
2.2 Customer shall pay Supplier at Supplier’s then current time and material rates for work of Supplier spent investigating an error or malfunction that Supplier reasonably determines to have been caused by a modification to the Programs not made or authorized by Supplier.
Section 3. Telephone Support
3.1 Supplier shall, during the hours of 8:00 A.M. to 5:00 P.M. in Supplier’s home office time zone on weekdays (exclusive of holidays), make reasonable telephone support available to Customer’s Project Leader and other personnel of Customer who have been trained by Supplier in the use of the Programs. Supplier reserves the right to require Customer to reimburse Supplier for long distance telephone charges incurred by Supplier in the provision of telephone support.
Section 4. Request for Modification of the Programs
4.1 Customer may at any time request that Supplier make additional modifications to the Programs to add functions or improve performance. Supplier shall respond to a request for such work with the terms of which it may be willing to undertake such work.
Section 5. Delivery
5.1 In order to satisfy any delivery obligation, Supplier may, at its option, send to, have delivered to or email to Customer corrected Program(s) or “patches” in electronic, CD-ROM or magnetic form a copy of any modification, error correction, fix, or release to the Programs provided pursuant to this Agreement, together with installation instructions.
Section 6. Fees for Services
6.1 Customer shall pay Supplier a fee equaling 20% of Modules plus Users Licenses for one year of Software Maintenance and Error Correction Services under this Agreement. Yearly extensions will be available from year to year thereafter at Supplier’s then applicable fee. All such fees are payable in advance.
6.2 Unless Supplier agrees otherwise in writing, the Software Maintenance and Error Correction Services for any Software Product may not be extended more than 90 days plus four years. Unless extended, this Agreement shall terminate and expire. If this Agreement as to any Software Product has expired, Customer may reinstate support and maintenance only by payment of the then applicable fee plus the then applicable reinstatement fee.
6.3 Where this Agreement requires Customer to pay an additional time and materials, hourly, or per diem charge, such charge shall be billable to Customer at Supplier’s then current rates.
6.4 Customer agrees to pay when due (or, if necessary, reimburse Supplier for) any applicable sales, use, property, excise, VAT, and other similar taxes. A monthly interest charge at the rate of one and one-half percent (1.5%) or the maximum legal rate, whichever is less, will be assessed on all payments more than fifteen (15) days past due.
Section 7. Intellectual Property
7.1 The modifications to the Programs, including all intellectual property rights associated therewith, made or provided by Supplier pursuant to this Agreement, whether alone or with any contribution from Customer or its personnel, shall be owned exclusively by Supplier and its licensors.
Section 8. Limited Warranty; Disclaimers
8.1 Supplier warrants that it will render services under this Agreement in a professional manner. As Supplier’s sole responsibility and Customer’s exclusive remedy in the event of any material failure to meet such standard, Supplier shall make a reasonable effort to remedy any resulting discrepancies. Any claim based on the foregoing warranty must be submitted in writing in accordance with Supplier’s standard procedures within (90) days after delivery or the date of required delivery of such service.
8.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SUPPLIER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ITS SERVICES, ANY PROGRAMMING, OR ANY RESULT OF SOFTWARE USE. SUPPLIER SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Section 9. Limitation of Liability
9.1 The aggregate liability of Supplier (including its subcontractors and suppliers) for all claims, whether in contract, tort (including negligence and product liability), or otherwise, arising out of, connected with, or resulting from any performance or nonperformance hereunder shall not exceed the fees allocable to the services that give rise to the claim. In no event shall Supplier be liable for any incidental, consequential, indirect, or special damages, including, without limitation, damages for loss of revenue, cost of capital, claims of customers for service interruptions or failure of supply, and costs and expenses incurred in connection with alternate repairs and correction services.
Section 10. Term
10.1 This Agreement shall commence on the date when Supplier’s acceptance, as set forth at the end of this Agreement, which will occur only after the applicable initial fee has been paid. Unless sooner terminated in accordance with this Section, this Agreement shall continue in effect for one (1) year and thereafter shall automatically renew for successive renewal terms of one (1) year each, unless and until either party elects to terminate this Agreement upon expiration of the term (either initial or renewal) then in effect by giving notice of its intention at least sixty (60) days prior to the date of such expiration.
10.2 In addition to its termination rights set forth in Section 11.1 hereof, Supplier may terminate this Agreement by giving written notice of termination to Customer upon the occurrence of any of the following events:
1. Customer defaults in the performance of any material requirement or obligation created by this Agreement or the License Agreement and such default is not cured within the applicable cure period;
2. Customer fails to make any payment to Supplier within (30) days of its due date under this Agreement;
3. Customer ceases business operations, is the subject of any state or federal bankruptcy, insolvency, or similar preceding, becomes insolvent, or makes an assignment for the benefit of creditors or a receiver is appointed for a substantial part of Customer’s assets or becomes unable to pay its debts when due;
10.3 No termination of this Agreement shall release Customer from any obligation to pay Supplier any amount that has accrued or become payable at or prior to the date of termination.
Section 11. Miscellaneous
11.1 The date on which Supplier’s obligations are required to be fulfilled will be extended for a period equal to the time lost by reason of any delay arising directly or indirectly from acts of God, unforeseeable circumstances, or any other cause beyond Supplier’s reasonable control.
11.2 Any notice to a party required or permitted hereunder shall be sufficiently given only when provided in writing, and either personally delivered or sent via certified or registered mail to the party’s address indicated herein. Customer shall promptly give Supplier notice of any address change.
11.3 A failure by either party to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of either party under this Agreement.
11.4 This Agreement shall obligate and benefit the parties, their personal representatives, heirs, successors, and assigns. Supplier may assign all or any part of this Agreement, but no assignment or transfer of any interest in this Agreement (including sublicenses, pledge, security interests, and the like) may be made by Customer without the prior written consent of Supplier.
11.5 The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision, the remaining provisions being deemed to continue in full force and effect.
11.6 This Agreement is the entire agreement of the parties, and supersedes all prior agreements and communications, whether oral or in writing, between the parties with respect to the subject matter of this Agreement. No amendment or modification of this Agreement shall be made effective unless made in writing and signed by Supplier and Customer.
11.7 This Agreement shall be governed and construed under the laws of the State of Texas.
The Semarca Corporation
By:_________________________
Name and Title: _______________________
Address:
8213-A Shoal Creek Blvd.
Suite 201
Austin, TX 78757
Phone: (512) 343-1049
Fax: _(512) 343-0938
Email: salesinfo@semarca.com
Supplier Accepted-on Date: _____________
CUSTOMER: __________________________
Person or Company Name
By: ____________________________
Name and Title: _______________________
Address:
__________________________
__________________________
__________________________
__________________________
Phone: ______________________
Fax: ______________________
Email: ___________________________