Fill and Sign the Maintenance Agreement for Software Form

Maintenance Agreement for Software This Software Maintenance Agreement is entered into on ______________ (date) , between ____________________ (Name of Provider) , a corporation organized and existing under the laws of the state of _______________, with its principal office located at _____________________________________________________________ _________________ (street address, city, state, zip code) , referred to herein as hereinafter referred to as the Provider , and ____________________ (Name of Client) , a corporation existing under the laws of _____________, hereinafter referred to as the Client. Capitalized terms not defined herein shall have the meaning set forth in the Provider’s Internal Use License for ___________________ (name of software) which License Agreement is currently available on Provider’s website at URL: _____________ _______________________________ (address or website) . Whereas, Provider, has developed Software Support Materials identified in Schedule A ; and Whereas, Client has evaluated the Software and has expressed interest in using this system; and Whereas, Client wishes to engage the Provider to perform various maintenance services in connection with the Software and Support Materials and the Provider desires to provide such maintenance services; and Whereas, Client has executed the License Agreement for the Software ; Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Maintenance Services In accordance with the terms of this Maintenance Agreement, Provider will furnish the installation, support, or error-correction services identified on Schedule A , hereinafter called the Services, for the Software. 2. Maintenance Fee and Expenses A. Client will pay the Provider the fee(s) set forth on Schedule A to this Maintenance Agreement within (e.g., 45) ______ days of the Commencement Date identified in Schedule A . Provider shall have the right to change the fee once each year, effective with the next renewal date, provided that: (i) the Provider gives Client at least (e.g., 90) _____ days prior written notice of any such change; and (ii) so long as the change is not an increase of more than (e.g.,10%) _____ of the then-current fee. Client shall pay the Provider for services outside the scope of this Maintenance Agreement on a time and material basis at the Provider then-prevailing rates, but only with Client’s prior written approval. Client is responsible for the payment of any taxes assessed in connection with payments due under this Maintenance Agreement except for any tax based solely on the Provider net income. B. Upon Client’s prior written approval, Client shall reimburse Provider for any and all reasonable travel and living expenses incurred by the Provider in performing services under this Maintenance Agreement. These expenses shall be billed to Client, and Client shall pay these billings within (e.g., 45) _____ days of the date such services were rendered. C. Upon termination of this Maintenance Agreement, Provider will be reimbursed for all reasonable costs and non-cancelable commitments incurred in the performance of the scope of work and for which the Client has not yet paid. 3. Term and Termination A. This Maintenance Agreement shall commence on the Commencement Date stated in Schedule A and continue for an initial period defined in Schedule A , hereinafter called the Initial Term . This Maintenance Agreement shall thereafter renew for successive periods defined in Schedule A (the Renewal Term), of which Provider will notify Client in writing at least (e.g., 60) _____ days prior to the expiration date, unless terminated by either party upon written notice to the other party pursuant to Section 3 below. All terms and conditions of this Maintenance Agreement shall apply during the Renewal Term, except for the fees. The fee for the Renewal Term shall be the Provider’s rates then in effect, so long as such rate does not increase by more than (e.g.,10%) _____ annually. B. This Maintenance Agreement shall terminate: 1. Immediately upon termination or expiration of Client’s right to use the Software ; 2. Upon expiration of the then-current term, provided that at least (e.g., 30) _____ days advance written notice of termination is given to Provider by the Client; 3. Upon expiration of the then-current term, provided that at least (e.g., 60) _____ days advance written notice of termination is given to Client by the Provider; or 4. Upon (e.g., 30) _____ days advance written notice if the other party has breached this Maintenance Agreement and has not cured such breach within such notice period. 4. Warranty and Remedies A. Provider warrants that it will use reasonable efforts to perform the services to conform to generally accepted industry standards, provided that: (a) the Software has not been modified, changed, or altered by anyone other than the Provider; (b) the operating environment, including both hardware and systems software , meets the Provider’s recommended specifications; and (c) the computer hardware is in good operational order and is installed in a suitable operating environment; (d) Client promptly notifies the Provider of its need for service; (e) Client provides adequate troubleshooting information and access so that the Provider can identify and address problems; and (f) all fees due to the Provider have been paid . THERE ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS MAINTENANCE AGREEMENT, AND THE SERVICES TO BE PROVIDED BY THE PROVIDER UNDER IT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. B. Client’s sole and exclusive remedy and the Provider only obligation under this warranty is to redo the Services until the Software conforms to the most recent specifications stated in the documents listed in Schedule A . In the event that these services cannot be provided within a reasonable time after notification, Client’s sole and exclusive remedy is to terminate this Maintenance Agreement upon written notice to the Provider and to receive a refund of any fees paid for the period beginning on the date the problem requiring correction was reported to the Provider . RECIPIENT ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL PROVIDER BE LIABLE FOR ANY LOSS, COST, EXPENSE, OR DAMAGE TO RECIPIENT IN AN AMOUNT THAT COLLECTIVELY EXCEEDS THE ANNUAL MAINTENANCE FEE. CLIENT ACKNOWLEDGES AND AGREES THAT THE PROVIDER, SHALL NOT BE LIABLE TO RECIPIENT FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL DAMAGES OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE. C. RECIPIENT WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS PROVIDER AGAINST ANY LOSS, DAMAGE, EXPENSE, OR COST, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF ANY CLAIM, DEMAND, PROCEEDING OR LAWSUIT RELATED TO RECIPIENT’S UNAUTHORIZED USE OR MISUSE OF THE SOFTWARE. D. Provider agrees to defend, indemnify and hold harmless the Recipient, its officers, agents, and employees from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), or damages to persons or property arising out of or in connection with or occurring during the course of this Maintenance Agreement where such liability is founded upon or grows out of the acts or omissions of the Provider while acting within the scope of its duties under this Agreement. 5. Recipient Support The level of support that the Provider can provide is dependent upon the cooperation of Client and the quantity of information that Client can provide. If the Provider cannot reproduce a problem or if the Client cannot successfully gather adequate troubleshooting information, the Provider may need temporary login access on the Client’s system to identify and address the problem. 6. Client Responsibility Client shall not distribute the Software to any third party. Client shall not make any modifications to the Software, unless otherwise allowed under the License Agreement. If Client is allowed to make modifications under such License Agreement, Provider shall not be responsible for maintaining Client modified portions of the Software or for maintaining portions of the Software affected by Client modified portions of the Software. Corrections for difficulties or defects traceable to the Client errors or systems changes shall be billed at the Provider’s standard time and material charges. 7. Right to Work Product All error corrections, enhancements, new releases, and any other work product created by the Provider in connection with the support services provided under this Maintenance Agreement (the Work Product) are and shall remain the exclusive property of the Provider, regardless of whether the Client has contributed to the conception, joined in its development, or paid the Provider for the development or use of the Work Product. Such Work Product shall be considered Software, and subject to the terms and conditions contained herein and in the License Agreement. 8. Severability The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. 9. No Waiver The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. 10. Governing Law This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of ______________. 11. Notices Unless provided to the contrary above, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement. 12. Mandatory Arbitration Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect. 13. Entire Agreement This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. 14. Modification of Agreement Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. 15. Assignment of Rights The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party. 16. Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 17. Compliance with Laws In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties. 18. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine. WITNESS our signatures as of the day and date first above stated. _______________________ ______________________ (Name of Licensor) (Name of Licensee) By:____________________________ By:_______________________________ ________________________ _____________________ (P rinted name & Office in Corporation) (P rinted name & Office in Corporation) ________________________ _____________________ (Signature of Officer) (Signature of Officer)