Fill and Sign the Technical Support Assistance and Consulting Agreement for Computer Software Form

Technical Support Assistance and Consulting Agreement for Computer Software Agreement made on the ______________ (date), between ________________________ (Name of Consultant) of _______________________ __________________________________________________ (street address, city, state, zip code) , 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 referred to herein as Service Provider, and _____________________________ (Name of Company), 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 Customer. By accepting this Agreement and subject to the terms and conditions of this Agreement, including those terms and conditions that are set forth on the website located at ____________________________________________________________ __________________ (address of website), hereinafter called the Website, that are incorporated herein by reference, Service Provider agrees to provide certain technical support services (the Services) to the Customer in connection with the Customer's use of authorized versions of specific software (the Supported Software) for which Service Provider is prepared to provide support. 1. Technical Support Services A.Service Provider will provide an Internet-based support system for the Supported Software (the Support Helpdesk) generally available 24 hours a day on the Service Provider's Website. B. Assistance Assistance shall include (i) diagnosis of the deficiencies of the Supported Software and (ii) a resolution of the deficiencies of the Supported Software. Service Provider will use its best efforts to cure, as described below, reported and reproducible errors in the Supported Software. Service Provider utilizes the following two (2) priority levels to allow Customer to categorize reported problems: 1. Priority One – Normal Request Service Provider will commence work on resolving the deficiency within twenty four (24) hours of notification and will engage staff during business hours until an acceptable resolution is achieved. 2. Priority Two – Rush Request Service Provider will commence work on resolving the deficiency within twelve (12) hours (Monday-Friday) or within twenty four (24) hours (Saturday and Sunday) of notification and will engage staff during business hours until an acceptable resolution is achieved. Priority will be given to Rush Requests over Normal requests. 2 Consulting Service Provider will establish and maintain an organization and process to provide consulting for the implementation or use of the Supported Software to Customer. Service Provider utilizes the following two (2) priority levels to allow Customer to categorize the request: A.Priority One – Normal Request Service Provider will provide an initial response regarding the request within twenty four (24) hours. B. Priority Two – Rush Request Service Provider will provide an initial response regarding the request within twelve (12) hours (Monday-Friday) or within twenty four (24) hours (Saturday and Sunday). Priority will be given to Rush Requests over Normal Requests. 3. Maintenance During the term of this Agreement, Service Provider will provide the Customer with copyrighted patches, updates, releases and new versions of the Supported Software along with other generally available technical material. These maintenance materials including the Supported Software may not be used to increase the licensed number of versions or copies of the Supported Software. The Customer agrees not to use or transfer the prior version but to destroy or archive the prior version of the Supported Software. All patches, updates, release and new versions shall be subject to the license agreement related to the Supported Software. 4. Compensation A. Support FeesCustomer shall pay the fees (the Support Fees) set forth for the Services purchased by Customer in accordance with Service Provider's Pricing that is incorporated into this Agreement by reference. Service Provider may change its Pricing and the fees for its Services from time to time. Service Provider's changes to the Pricing are effective after Service Provider provides Customer with at least ______ days' notice of the changes by posting the changes on the Service Provider's Website. B. Taxes All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and Customer shall be responsible for payment of all such taxes (other than taxes based on Service Provider's income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of the Supported Software and performance of the Services hereunder. 5. Customer Responsibilities A.Customer shall always supply support requests in written form using the Support Helpdesk. Customer shall provide to Service Provider all data that is relevant for resolving each support request. Relevant data may include, but is not limited to, log files, database dumps, program scripts, descriptions of the hardware and software environment, examples of inputs, and expected and actual outputs. Customer acknowledges that it is the sole responsibility of the Customer, at all times, including specifically during all service functions performed by Service Provider pursuant to this Agreement and undertaken on the Customer's local installation of the Supported Software, to protect and maintain an up-to-date and restorable backup of any and all databases, files, utilities, software and other systems which Service Provider's staff may directly access or in connection with which Service Provider's staff may offer advice. B. Customer represents and warrants to Service Provider that it: 1. is engaged in a lawful business enterprise; 2. can form legally binding contracts and is authorized to enter into this Agreement; and 3. is in compliance with all applicable laws appropriate to its location of business and nature of work. 6. Disclaimer of Warranties A. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, SERVICE PROVIDER DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUPPORTED SOFTWARE, CORRECTI ONS AND THE SERVICES PROVIDED HEREUNDER, INCLUDING PROMISES, REPRESENTATIONS AND WARRANTIES AS TO CONDITION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON- INFRINGEMENT, OR ANY IMPLIED WARRANTY OF INFORMATION CONTENT OR SYSTEM INTEGRATION. B. Without limiting the generality of the foregoing disclaimer, Service Provider does not warrant that its advice or programming on behalf of the Customer will be error free. C. For a period of _____months following date of this Agreement, Service Provider shall have an obligation to correct demonstrated errors in the operation of the Supported Software which may appear as a result of incorrect provision of the Assistance Service. SERVICE PROVIDER SHALL NOT HAVE ANY OBLIGATION TO CORRECT ERRORS IN THE OPERATION OF THE SUPPORTED SOFTWARE IF THE PROGRAMMING CODE HAS BEEN MODIFIED BY CUSTOMER OR BY ANY OTHER PARTY. 7. Limitation of liability Service Provider disclaims all liability whatsoever to the Customer or any other party for any act or omission that may result in consequential, indirect, incidental, special or such other damages including but not limited to, any damage for lost profits, loss of data or loss of business, even if Service Provider has been advised of the possibility of such damages. In no event shall the liability Service Provider to the Customer for any claim whatsoever related to this Agreement exceed the total amount of Support Fees paid for the Services that gave rise to the claim within the calendar year during which the claim arose. 8. Termination This agreement shall run for a period of ____ years from the effective date and shall automatically terminate upon a written notice of termination within _____ days prior to the anniversary date of the effective date. Upon termination of this Agreement, Service Provider shall have no further obligation to provide any Services hereunder to Customer. Upon termination, there will be no refund provided to Customer, and all outstanding fees owed by Customer shall become immediately due and payable. Termination of this Agreement shall not affect any obligation owed by one party to the other party that have accrued prior to such termination. 9. 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. 10. 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. 11. Governing Law This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of ____________. 12. Notices Unless provided herein to the contrary, 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. 13. 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. 14. Entire AgreementThis 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. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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 Service Provider) (Name of Customer) By:____________________________ By:___________________________ ________________________ ________________________ (Printed name & Office in Corporation) (Printed name & Office in Corporation) ________________________ _______________________ (Signature of Officer) (Signature of Officer)