AGTEK Software Maintenance Support Agreement

AGTEK Software Maintenance Support Agreement

1 Definitions

(a) “AGTEK” means AGTEK Development Company, Inc.
(b) “Coverage Period” means twelve (12) months unless otherwise designated in the Quote(s).
(c) “Customer” means the entity or person purchasing Software Maintenance Support.
(d) “Like Software” means all software of the same title, same product content, modules of that title or content, prerequisite software, Upgrades, or successor branding.
(e) “Quote” means a quotation for Software Maintenance Support submitted to Customer by AGTEK.
(f) “Software Maintenance Support” means the specific maintenance services contracted for by Customer and to be performed by AGTEK as defined in section 3.0 of this agreement.
(g) “Software Product” includes AGTEK’s computer software and all of the contents of the files, disks(s), CD-ROM(s) or other media with which the software is provided, including any templates, data, printed materials, and “online” or electronic documentation, all copies, and any upgrades, modified versions, and updates (which will be provided if the Software Product is covered under a current Software Maintenance Support Agreement) of the Software Product.
(h) “Third Party Software” means computer software or other technology in which any person or entity, other than AGTEK, a Hexagon Group Company, or any affiliate of AGTEK, has any right, title or interest including any restrictions or obligations (such as obligations to obtain consents or approvals and restrictions that may be eliminated only by obtaining such consents or approvals) applicable to the computer software or technology but does not include software embedded in AGTEK’s Software Products by license from third parties.
(i) “Upgrade(s)” means the subsequent releases of applicable Software Products and/or Third Party Software covered under this agreement.

2 Authorization and Performance

(a) Initiating Software Maintenance Support
(1) By either (a) returning a signed Quote; (b) submitting a signed purchase order referencing this agreement and the applicable Quote number; (c) paying any charges as set forth on a Quote; or (d) accepting Software Maintenance Support as set forth on a Quote, Customer thereby authorizes AGTEK to provide the Software Maintenance Support for Software Products and/or Third Party Software during the Coverage Period specified on the Quote, and thereby agrees to the terms and conditions in this agreement. The Coverage Period shall be considered as beginning on the first day of the month in which the Software Product was provided to the Customer, and thus the Coverage Period shall be for whole months only. Software Maintenance Support provided under this agreement must be utilized only for the quantity of licenses listed on the Quote.
(b) Renewing Software Maintenance Support
(1) By accepting a renewal Quote and agreeing to pay or paying all charges listed in the renewal Quote or submitting a valid purchase order, Customer thereby authorizes AGTEK to provide the Software Maintenance Support for Software Products and/or Third Party Software during the designated Coverage Period, and thereby agrees to the then current Software Maintenance Support Agreement terms and conditions referenced in the renewal Quote. AGTEK reserves the right to increase Software Maintenance Support prices at any time at its sole discretion, which shall, if applicable, take effect for the renewal Coverage Period. The termination of coverage will occur at the end of the Coverage Period if Customer fails to provide either (a) a signed Quote agreeing to pay all charges and accepting the terms and conditions therein, or (b) a valid purchase order referencing a Quote.

3 Software Maintenance Support

(a) Software Maintenance Support
(1) Software Maintenance Support will be provided to the Customer during the hours of 8:00 a.m. to 7:00 p.m. Central Standard Time, Monday through Friday, excluding AGTEK-observed holidays. Software Maintenance Support will include and be limited to the following for all Software Products and/or Third Party Software listed on the Quote:
(A) Unlimited support (standard business hours).
(B) 24 x 7 access to Solution Knowledge Base, an on-line self-help tool.
(C) Software Upgrades, fixes and service packs and how to obtain them, if available.
(2) Software Maintenance Support is limited to specific Software Products and/or Third Party Software as shown on the Quote covered under this agreement functioning on the appropriate AGTEK supported operating system.
(3) Any Upgrades furnished under this agreement shall be governed by the then current AGTEK software license agreement or relevant third party license agreement, if applicable, which shall supersede any software license agreement associated with prior releases of the Software Products or Third Party Software. Upgrades are shipped upon Customer request.
(b) Customer Response System
(1) Support requests for AGTEK Software Products may be made and support obtained through the contact details provided below:
Email contact address: Support@agtek.com
Support Phone Number: 800 248 3527

4 Excluded Software Services

(a) Software Maintenance Support is limited to specific Software Products and/or Third Party Software as shown on the Quote, functioning on the appropriate AGTEK supported operating system. Services for the following are outside the scope of this agreement and may be available under separate agreement at an additional charge:
(1) System installation (hardware/software platforms)
(2) Network configuration support for third party products not sold to the Customer by AGTEK
(3) System-level tuning and optimization
(4) Training
(5) Data, including reference data
(b) Software Maintenance Support provided by AGTEK under this agreement shall not include support calls that are necessary due to failure of software and/or configurations not supplied by AGTEK or its subcontractors and not covered in this agreement.

5 Charges

(a) Software Maintenance Support charges are annual in advance. Charges are due and payable in full within thirty (30) days of date of invoice. The Coverage Period shall begin on the first day of the month as shown on the Quote. A full month’s Software Maintenance Support charge will be invoiced for any partial month’s utilization. Software Maintenance Support on Software Products and/or Third Party Software added to this agreement for any period of time less than one (1) year shall be due and payable in full on the date that the Software Product and/or Third Party Software is added to this agreement. Charges for Software Products and/or Third Party Software added during a Coverage Period to this agreement shall be prorated to the remaining months of the Coverage Period, in whole month increments only.
(b) Payments that are not received thirty (30) days from date of invoice are subject to interest accrued at one and one-half percent (1%) per month or the maximum allowed by law, whichever is less.
(c) Subject to applicable law, if Customer intends to dispute a charge or request a credit, Customer must contact AGTEK within ten (10) calendar days of the date on the invoice. Customer waives any right to dispute a charge or receive a credit for a charge that Customer does not report within such period.

6 Taxes

All Software Maintenance Support charges are exclusive of, and Customer shall be liable for, and shall indemnify and hold AGTEK harmless from and against, any and all United States and/or any other country’s federal, state, municipal, or other governmental, withholding, excise, sales, use, value added or other taxes, tariffs, custom duties and importing fees (“Taxes”). Taxes shall expressly exclude any United States (i) federal, (ii) state, (iii) municipal, (iv) or other governmental income taxes, franchise taxes, business license fees and other like taxes measured by AGTEKs income, capital and/or assets. The total invoice amount for Software Maintenance Support charges is subject to increase by the amount of any Taxes which AGTEK is required to withhold, collect, or pay so that AGTEK receives the full amount of the Software Maintenance Support charges. Any certificate to exempt this agreement from tax liability or other documentary evidence of statutory exemption shall be obtained by Customer at Customer’s expense.

7 Additions and Removals of Software Products and/or Third Party Software

(a) Additions of Software Products and/or Third Party Software to Software Maintenance Support
(1) Additional Software Products and/or Third Party Software from AGTEK.
(A) In the event Customer purchases additional Software Product(s) and/or Third Party Software license(s) directly from AGTEK during the term of this agreement, AGTEK will provide Customer a Quote that reflects the additional licenses to be added to this agreement, effective date(s) of Software Maintenance Support and charges for those additional software licenses to be added under the terms and conditions of this agreement.
(2) Additional Software Products and/or Third Party Software via Software Transfer Policy.
(A) Customer shall purchase Software Maintenance Support coverage on all additional licenses of Software Products and/or Third Party Software for a site obtained via intra-company transfer. Any such software license transfers shall be in accordance with AGTEK’S then current Software Transfer Policy.
(b) Removal of Software Products and/or Third Party Software from Software Maintenance Support at Renewal
(1) Either party may provide written notice to the other party at least sixty (60) calendar days prior to the end of any Coverage Period of its intent to remove any individual Software Product(s) and/or Third Party Software from the agreement for the upcoming renewal period. Except as otherwise provided for in this agreement, neither party may remove Software Product(s) and/or Third Party Software from this agreement until Coverage Period renewal.

8 Reinstatement of Software Maintenance Support

(a) Lapse in Software Maintenance Support
(1) To reinstate Software Maintenance Support after any expiration, termination or suspension thereof, Customer must pay a Reinstatement Fee, as defined below, in addition to standard Software Maintenance Support charges. The Coverage Period for any reinstated Software Maintenance Support shall begin on the first day of the month after the expiration, termination or suspension of the last paid-in-full Coverage Period (“Reinstatement Period”). The Software Maintenance Support reinstatement fee is twenty-five percent (25%) of the past due Software Maintenance Support charges accumulated during the Reinstatement Period (“Reinstatement Fee”), and shall be in addition to the total Software Maintenance Support charges for the Reinstatement Period, all calculated at the current Software Maintenance Support list price. In addition to the Reinstatement Fee and the past due Software Maintenance Support charges, Customer will be required to pay for the upcoming Coverage Period at the time Software Maintenance Support is reinstated. AGTEK will provide a Quotation upon request.

9 Term, Termination, Nonrenewal, and Modifications

(a) Term
This agreement shall be effective as of the date of the first day of the Coverage Period as stated in the AGTEK Quote and shall expire at the end of the Coverage Period unless terminated earlier as provided in section 9(b), or renewed by mutual agreement of the parties pursuant to the terms as stated in section 2(b).
(b) Termination
(1) This agreement, and thus the Software Maintenance Support provided under this agreement, may terminate prior to the expiration of the Coverage Period for any of the following reasons:
(A) A new agreement between Customer and AGTEK is signed into effect for similar Software Maintenance Support for Software Products or Third Party Software covered under this agreement; or
(B) Either party petitions for reorganization under the Bankruptcy Act or is adjudicated a Bankrupt, or a receiver is appointed for either party’s business; or
(C) Customer fails to pay AGTEK any amount when due under this agreement; or
(D) Customer commits a material breach of any of the terms and conditions in this agreement.
(c) Nonrenewal
(1) If Customer chooses not to renew Software Maintenance Support for a Software Product licensed under a perpetual license, the network key shall be revoked and the license key for the Software Product shall be locked to one individual computer of the Customer’s choice. AGTEK will not transfer the license key to another computer, and AGTEK is not responsible if the computer that the license key is locked to stops functioning or is otherwise no longer useable.
(d) Modifications
(1) This agreement can be changed or modified during the Coverage Period in one of the following ways:
(A) AGTEK provides a written notice of intent to modify the agreement to remove a Software Product or Third Party Software from Software Maintenance Support effectively terminating this agreement with respect to that Software Product or Third Party Software; provided, however, such termination may only occur with respect to the discontinuance of a AGTEK product or by requirement of a third-party owner of any product or part thereof. This agreement will terminate with respect to the particular Software Product or Third Party Software thirty (30) days after the date of the notice. Upon termination, AGTEK shall provide a pro- rata refund for Software Maintenance Support not provided.
(B) Customer adds Software Products and/or Third Party Software licenses during the Coverage Period or at renewal of the Coverage Period or removes Software Products and/or Third Party Software at renewal of the Coverage Period in accordance with section 7.
(C) Any other changes or modifications by mutual agreement of the parties.

10 Warranties

(a) PERFORMANCE WARRANTY. FOR ANY SOFTWARE UPGRADE PROVIDED UNDER THIS AGREEMENT, AGTEK WARRANTS FOR A PERIOD OF THIRTY (30) CALENDAR DAYS FROM THE DATE OF SHIPMENT THAT THE SOFTWARE PRODUCT SHALL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION SUPPLIED WITH THE PARTICULAR SOFTWARE.
(b) SOFTWARE MEDIA WARRANTY. FOR ANY SOFTWARE UPGRADE PROVIDED UNDER THIS AGREEMENT, AGTEK WARRANTS FOR A PERIOD OF THIRTY (30) CALENDAR DAYS FROM THE DATE OF SHIPMENT THAT, UNDER NORMAL USE, SOFTWARE DELIVERY MEDIA SHALL BE FREE FROM DEFECT IN MATERIAL OR WORKMANSHIP.
(c) AGTEK DOES NOT WARRANT THAT THE SOFTWARE PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS, AND UNDER NO CIRCUMSTANCES DOES AGTEK WARRANT THAT THE SOFTWARE PRODUCT WILL OPERATE UNINTERRUPTED OR ERROR FREE. AGTEK’S ENTIRE LIABILITY UNDER THIS WARRANTY AND CUSTOMER’S EXCLUSIVE REMEDY SHALL BE AT AGTEK’S SOLE AND ABSOLUTE DISCRETION, (1) EITHER THE REPAIR OR REPLACEMENT OF ANY SOFTWARE ITEM THAT DOES NOT MEET THE RESPECTIVE WARRANTIES GIVEN ABOVE OR (2) A REFUND OF THE CHARGES FOR THE PARTICULAR WARRANTED ITEM.
(d) THE FOREGOING WARRANTIES ARE VOID IF FAILURE OF A WARRANTED ITEM RESULTS DIRECTLY, OR INDIRECTLY, FROM AN UNAUTHORIZED MODIFICATION OF A WARRANTED ITEM; AN UNAUTHORIZED ATTEMPT TO REPAIR A WARRANTED ITEM; OR MISUSE OF A WARRANTED ITEM, INCLUDING WITHOUT LIMITATION USE OF WARRANTED ITEM UNDER ABNORMAL OPERATING CONDITIONS OR WITHOUT ROUTINELY MAINTAINING A WARRANTED ITEM.
(e) CUSTOMER SHALL PROMPTLY NOTIFY AGTEK OF ANY SUSPECTED DEFECTS IN SOFTWARE DELIVERY MEDIA.
(f) THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, AND REPRESENT THE FULL AND TOTAL OBLIGATION AND/OR LIABILITY OF AGTEK.

11 Disclaimer

(a) EXCEPT AS PROVIDED IN THIS AGREEMENT, AGTEK MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE PRODUCT OR SOFTWARE MAINTENANCE SUPPORT SUPPLIED UNDER THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(b) IF UNDER THE LAW RULED APPLICABLE TO THIS AGREEMENT ANY PART OF THE ABOVE DISCLAIMER OF EXPRESSED OR IMPLIED WARRANTIES IS INVALID, AGTEK DISCLAIMS EXPRESS OR IMPLIED WARRANTIES TO THE MAXIMUM EXTENT ALLOWED BY SAID LAW.

12 Headings

The various headings in this agreement are inserted for convenience only and shall not affect the meaning or interpretation of this agreement or any paragraph or provision of this agreement. References in this agreement to any paragraphs are to the applicable paragraph of this agreement.

13 Assignment

Neither AGTEK nor Customer shall assign any of its rights or delegate any of its obligations under this agreement without the prior written consent of the other party, provided that such consent shall not be unreasonably withheld, except that AGTEK may assign its rights and obligations under this agreement without the approval of Customer to an entity which acquires all or substantially all of the assets of AGTEK, or to any subsidiary, affiliate or successor in a merger or acquisition of AGTEK.

14 Dispute Resolution and Interpretation

(a) For any controversy or claim that may arise out of or in relation to this agreement or with respect to breach thereof, the parties agree to initially seek to solve the matter amicably through discussions between the parties’ upper management. Should the parties fail to resolve such controversy, claim, or breach by amicable arrangement and/or compromise within thirty (30) days of the dispute being brought to the attention of parties’ upper management, then the parties may, at their sole discretion, seek resolution through non- binding mediation. If either party is not satisfied with the result of the non-binding mediation, such party may seek legal recourse through the courts in the jurisdiction chosen in this agreement. No party may commence litigation in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by negotiation and mediation, and the mediation has terminated, or the other party refused to participate in the mediation. Any time period stated in this section may be reduced for the sole purpose of avoiding the expiration of the statute of limitations for the event made the basis of the controversy.
(b) This agreement shall for all purposes be construed and enforced under and in accordance with the laws of the state of California and shall have been deemed to have been executed in Livermore, California. The parties agree that any legal action or proceeding relating to this agreement shall be exclusively instituted in the United States District Court for the Northern District of California, or the state courts for Alameda County, California. The parties agree to submit to the exclusive jurisdiction of, and agree that venue is proper in these courts in any such legal action or proceedings. The parties waive the application of the United Nations Commission on International Trade Law and United Nations Convention on Agreements for the International Sale of Goods as to the interpretation or enforcement of this agreement.

15 Nondisclosure

(a) AGTEK and Customer each acknowledge that they may be furnished with, receive, or otherwise have access to information of or concerning the other party which such party considers to be confidential, proprietary, a trade secret or otherwise restricted. “Confidential Information” shall mean all information, which may include third party information, in any form, furnished or made available directly or indirectly by one party to the other that is marked confidential, restricted, proprietary, or with a similar designation. The terms and conditions of this agreement shall be deemed Confidential Information. Confidential Information also shall include, whether or not designated “Confidential Information”, (i) all specifications, designs, documents, correspondence, software, documentation, data and other materials and work products produced by either AGTEK or its subcontractors, and (ii) with respect to either party, all information concerning the operations, financial affairs and businesses, and relations with its employees and service providers. This, however, shall not prevent AGTEK from disclosing that Customer is a customer of AGTEK.
(b) Each party’s Confidential Information shall remain the property of that party or relevant third party except as expressly provided otherwise by the other provisions of this agreement. Customer and AGTEK shall each use at least the same degree of care, but in any event no less than a reasonable degree of care, to prevent disclosing to third parties the Confidential Information of the other as it employs to avoid unauthorized disclosure, publication or dissemination of its own information of a similar nature. The parties shall take reasonable steps to ensure that its employees comply with these confidentiality provisions.
(c) This section shall not apply to any particular information which AGTEK or Customer can demonstrate (i) was, at the time of disclosure to it, in the public domain; (ii) after disclosure to it, is published or otherwise becomes part of the public domain through no fault of the receiving party; (iii) was in the possession of the receiving party at the time of disclosure to it; (iv) was received after disclosure to it from a third party who had a lawful right to disclose such information to it without any obligation to restrict its further use or disclosure; or (v) was independently developed by the receiving party without reference to Confidential Information of the furnishing party. In addition, a party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any legal requirement of a competent government body provided that, immediately upon receiving any such request and to the extent that it may legally do so, such party advises the other party promptly and prior to making such disclosure in order that the other party may interpose an objection to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.

16 Severability

Whenever possible, each provision of this agreement and each related document shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this agreement or any related document shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this agreement or such related document.

17 No Waiver

Any failure by either party to enforce performance of the terms or conditions of this agreement shall not constitute a waiver of, or affect said party’s right to avail itself of such remedies as it may have for any subsequent breach of the terms of the agreement.

18 Export

The Software Product may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software Product to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.

19 Force Majeure

Neither party shall be responsible for a delay in or failure to perform if caused by: acts of God or the public enemy; compliance with any order, rule, regulation, decree, or request of any governmental authority, agency, or person purporting to act therefore; acts of war, public disorder, rebellion, terrorism, or sabotage; floods, hurricanes, or other storms; strikes or labor disputes; or any other cause, whether or not of the class or kind specifically named or referred to in this agreement, not within the reasonable control of the party affected. The party who is prevented from performing by force majeure shall remedy such cause as soon as reasonably possible.

20 Entire Agreement

This agreement constitutes the entire agreement between the parties hereto with regard to the subject matter hereof. This agreement supersedes any and all prior discussions and/or representations, whether written or oral, and no reference to prior dealings may be used to in any way modify the expressed understandings of this agreement. This agreement may not be amended or modified unless done so in writing signed by authorized representatives of both parties.