EXHIBIT 10.1
SOFTSENSE COMPUTER PRODUCTS, INC. COMPU-TOUCH(R) LICENSE, SUPPORT AND EQUIPMENT
PURCHASE AGREEMENT
This Compu-Touch license, support and equipment purchase agreement (this
"Agreement") is entered into this ___ day of ____________, ______, between
Softsense computer products, Inc., a Georgia corporation, with its principal
place of business at 0000 Xxxxxxxx Xxxxx, Xxxxx X, Xxxxxxxxxx, Xxxxxxx 00000
(hereinafter "Softsense"), and ________________________________, a corporation,
organized and existing under the laws of the State of ______________, with its
principal place of business at _________________________________________________
(hereinafter "Customer").
Now therefore, for and in consideration of the mutual premises, warranties
and representations set forth in this Agreement and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. BACKGROUND Softsense is the developer and owner of several copyrighted
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computer programs (and associated copyrighted documentation) operable on certain
microcomputer equipment which are designed for use in managing convenience
stores and other retail establishments, and which are commonly referred to as
Compu-Touch. Softsense is also the developer of certain items of computer
equipment which are used in conjunction with these computer programs. Prior to
the date of this Agreement, Customer accepted a proposal dated __________,
199__, from Softsense whereby Customer agreed to license one or more of
Softsense's Compu-Touch programs from Softsense, purchase selected items of
computer equipment from Softsense and receive support and maintenance services
from Softsense with respect to such programs and equipment. The purpose of this
Agreement is to establish the terms and conditions which will apply to the
current and future licensing of the Compu-Touch programs, the purchase of
equipment and the support and maintenance of such programs and equipment,
whether such items are offered to Customer through one or more additional
proposals.
2. DEFINITIONS In this Agreement, the following terms shall have the
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meanings set forth below:
2.1 "Enhancement" shall mean any change or addition to the
Software that, when made, adds new function or improves the Software's utility,
efficiency, functional capability or application. "Enhancement" shall not
include separately priced or separately marketed computer programs, even if such
computer programs are designed to interface with the Software. "Enhancement"
includes all Error Corrections and Additional Enhancements (as defined in
Section 6.2.2 herein).
2.2 "Equipment" shall mean the computer equipment, parts and
supplies which have been formally approved by Softsense to be used in
conjunction with the Software, and which are purchased by Customer from
Softsense. "Equipment" includes equipment designed and manufactured by
Softsense, equipment designed by Softsense and assembled by third parties
(collectively, the "Softsense Equipment") and equipment designed and
manufactured by third parties ("non-Softsense Equipment"). The Equipment is more
particularly described in the Proposal, as defined below.
2.3 "Error" shall mean any failure of the Software to conform in
all material respects to the published specifications for the Software.
2.4 "Error Correction" shall mean either a modification or
addition that, when made, or added to the Software, establishes material
conformity of the Software to its published specifications, or a procedure or
routine that helps eliminate the practical adverse effect on Customer of such
nonconformity.
2.5 "Order" shall mean a Customer issued purchase order in
substantial conformity with the requirements of Section 3.6.2 herein, which when
accepted by Softsense (as specified in Section 3.6.1 herein) shall bind the
parties hereto to the terms on the face of the Order with respect to the
Software, Equipment and Professional Services listed thereon.
2.6 "Proposal" shall mean a written offer by Softsense made to
and accepted by Customer which relates to the licensing of Software, purchase of
Equipment and provision of Software Support and Equipment Maintenance Services.
The Proposal shall specify the Software and Equipment to be licensed and
purchased by Customer, the fees and charges associated with the Software,
Equipment, Software Support and Equipment Maintenance Services and other terms
and conditions pertaining to the business transaction between Customer and
Softsense. For purposes hereof, the proposal dated _____________, 19___ and
referred to in Section 1 shall be deemed a "Proposal," as well as any future
proposals offered to and accepted by Customer relating to the subject matter
hereof.
2.7 "Services" shall mean the Equipment maintenance services
that may be provided under an Equipment maintenance plan selected by Customer
("Equipment Maintenance Services"), Software support services that may be
provided under a Software support plan selected by Customer ("Software Support
Services"), and the professional services ("Professional Services") that may be
provided by Softsense hereunder.
2.8 "Software" shall mean only the Softsense developed and owned
computer programs licensed to Customer under this Agreement, consisting solely
of machine readable computer code, user manuals, specifications and other
materials in any form that relate to the Software. "Software" shall also include
all Upgrades and Enhancements that are made available to Customer as part of the
Software Support Services and Professional Services provided by Softsense
hereunder. The Software is more particularly described in the Proposal.
2.9 "System" shall mean the Software and certain non-Softsense
computer programs operating with the Equipment formally approved by Softsense.
2.10 "Upgrades" shall mean new versions or new releases of the
Software, which may include Enhancements or maintenance modifications to the
extent that such new versions and new releases are not developed to function
under a new operating system.
3. FEES, ORDERING AND PAYMENT
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3.1 System Pricing The fees for all Software and Equipment will
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be specified in each Proposal. Customer shall adhere to the following payment
terms for any Accepted Orders (as defined in Section 3.6.1 herein) for Software
and Equipment placed hereunder:
(i) Customer will issue an Order to Softsense via
fax, overnight mail or any other mutually agreed upon mode of delivery and shall
remit with such Order a deposit for the purchase in the amount of eighty percent
(80%) of the purchase amount;
(ii) Softsense will deliver the Software and
Equipment to the Customer - designated location by the delivery date specified
on the Accepted Order;
(iii) Softsense will generate and deliver to Customer
an invoice for the unpaid purchase amount upon shipment of the System to the
Customer-designated location;
(iv) Customer will process the invoice and remit the
payment due to Softsense within thirty (30) days of Customer's receipt of the
invoice.
3.2 Services Fees
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3.2.1 Software Support Services Fees Customer shall
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pay to Softsense an annual Software Support Services fee equal to ___ % of the
total license fees paid or to be paid by Customer for each copy of the Software
currently licensed and installed at each Licensed Site. Softsense will invoice
Customer in advance on a monthly basis for the Software Support Services, such
fee to be paid within thirty (30) days after Customer's receipt of Softsense's
invoice. To the extent Customer licenses and installs additional Software, the
monthly support fee will be recalculated based on the new total license fees
paid or to be paid by Customer.
3.2.2 Equipment Maintenance Services Fees Customer
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shall pay to Softsense an annual Equipment Maintenance Services fee equal to ___
% of the total charges paid or to be paid by Customer for each item of Equipment
installed at each Licensed Site. Softsense will invoice Customer in advance on a
monthly basis for the Equipment Maintenance Services, such fee to be paid within
thirty (30) days after Customer's receipt of Softsense's invoice. To the extent
Customer purchases and installs additional Equipment items, the monthly
maintenance fee will be recalculated based on the new total charges paid or to
be paid by Customer.
3.2.3 Professional Services Fees Customer will pay for
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the Professional Services at Softsense's then-current Professional Services
billing rates. Customer shall also pay all reasonable travel, meal and lodging
expenses incurred by Softsense in connection with providing such services.
Softsense will invoice Customer on a monthly basis for these expenses. Softsense
will also invoice Customer on a monthly basis for the Professional Services
unless the parties mutually agree to alternative payment terms. Customer shall
pay all fees and expenses within thirty (30) days after its receipt of
Softsense's invoices.
3.3 Softsense shall have the right, at any time, to change,
alter or amend the fees, charges and billing rates associated with the Software,
Equipment and Services upon sixty (60) days prior written notice to Customer.
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3.4 Any amount past due shall bear interest at a rate of 1.5
percent per month until paid in full.
3.5 Taxes In addition to the fees due under this Agreement,
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Customer agrees to pay the amounts equal to any federal, state and local taxes
and import and export duties, designated, levied or based on this Agreement or
any activities hereunder, exclusive of any taxes based on Softsense's net
income, including any taxes or duties levied subsequent to the effective date of
this Agreement. In regards to any applicable state and local sales and use
taxes, Customer shall provide Softsense with either a valid exemption
certificate or documentation indicating that Customer has self-assessed and paid
any such taxes.
3.6 Ordering
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3.6.1 Specific Software, Equipment and Professional Services
may be ordered by Customer under this Agreement by complying with the reasonable
ordering procedures established by Softsense, which, at a minimum, will require
Customer's submission of a signed Order to Softsense and Softsense's acceptance
thereof. Only those terms on the face (not back) of the Accepted Order shall be
enforceable. An Order for Professional Services which has been signed by an
authorized representative of Softsense and returned to Customer shall be deemed
accepted by Softsense ("Accepted Order"). An Order for Software and Equipment
which has been signed by Softsense and returned to Customer or upon which
Softsense has issued an invoice to Customer or upon which Softsense has
otherwise commenced performance, shall be deemed accepted by Softsense. Unless
otherwise agreed in writing by the parties, the Accepted Order listing the
Software programs licensed and the Customer locations ("Licensed Sites") where
the Software programs are to be installed, shall serve to conform and effectuate
Customer's license to the Software at such Licensed Sites, effective as to each
Licensed Site upon completion of payment of the charges stated in the Order for
such Licensed Site.
3.6.2 Orders for Software and Equipment shall identify: (i)
the subject Software and Equipment; (ii) the Customer location for the Software
and Equipment; and (iii) the mutually agreed upon delivery date. Orders for
Professional Services shall indicate: (i) the services requested; (ii) the
mutually agreed upon completion dates (including all milestone dates), where
applicable; (iii) the applicable billing rate; and (iv) the payment terms agreed
upon by the parties.
4. SOFTWARE
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4.1 License
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4.1.1 Subject to compliance by Customer with the terms set
forth herein, including payment of all license fees, Softsense hereby grants to
Customer a nonexclusive, nontransferable, nonassignable (except as permitted by
Section 17), limited and personal license to install, use and execute the
Software at each Licensed Site solely in support of Customer's internal business
activities. Customer acknowledges and agrees that a separate license from
Softsense is required for each Customer location where the Software will be
used, as designated in the applicable Accepted Orders. Customer may make one
copy of the Software for "archival" or "backup" purposes only, provided such
copy is
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labeled with Softsense's name and the version and serial number of the Software
and the label contains Softsense's copyright notices or other proprietary
markings designated by Softsense.
4.1.2 Notwithstanding the license granted in Section 4.1.1,
no license is granted to Customer to copy, reproduce or modify the Software, or
to adapt, transcribe or merge the Software or any portion thereof, except with
Softsense's express written consent. Customer has no right to market, sell,
sublicense, disseminate, distribute or otherwise transfer the Software or any
portion thereof, unless expressly authorized by Softsense in an addendum to this
Agreement signed by both parties. Customer shall not decompile, disassemble or
reverse engineer the Software, or attempt to do so.
4.1.3 With respect to the third-party computer programs
provided by Softsense for use in conjunction with the Software, Customer
acknowledges that any right and license to use such computer programs will be
specified on the license agreement provided by the manufacturer of such computer
programs.
4.1.4 The license granted to Customer hereunder is limited
to the United States and the Software shall not be used outside the United
States without first notifying and obtaining Softsense's consent, which consent
will not be unreasonably withheld by Softsense after taking into consideration,
among other factors, the extent of legal protection provided to intellectual
property by the country where Customer desires to use the Software.
4.2 Ownership of Software
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4.2.1 Customer acknowledges and agrees that, as between
Softsense and Customer, Softsense is the owner of the Software, including all
modifications, changes, updates and additions, whether made by Softsense or by a
third party with Softsense's permission.
4.2.2 Customer acknowledges and agrees that, except for
Customer's license described in Section 4.1 of this Agreement, Customer has no
right, title and interest in the Software, in any form, or in any copies
thereof, including all worldwide copyrights, trade secrets, patent rights and
any other Proprietary Information (as defined in Section 7.1) and confidential
information rights therein. In connection therewith, Customer agrees to at all
times hereafter keep the Software free of all security interests, liens,
encumbrances, mortgages and claims whatsoever, and Customer agrees that neither
it nor anyone at its direction shall file a financing statement, mortgage,
notice of lien, deed of trust, security agreement or any other agreement or
instrument creating or giving notice of an encumbrance or charge against the
Software. Additionally, the Software shall remain the property of Softsense even
if Customer, its employees or its contractors, may have contributed to the
conception of such work or helped in its development.
4.2.3 Except in the context of claims by third parties who
have established, by virtue of a final non-appealable judgment or order issued
by a court of competent jurisdiction, ownership rights to the Software, or to
any specific portion thereof, which are superior to those of Softsense, Customer
hereby agrees not to challenge the validity of or impair Softsense's ownership
of the Software, as well as not to challenge the
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copyrights, trade secret rights, patent rights or confidential and Proprietary
Information rights of Softsense therein.
4.2.4 Nothing herein shall be construed as granting
Customer any right, title or interest in, or to, the trade names or trademarks
owned or used by Softsense.
4.2.5 Nothing herein shall restrict Softsense from granting
similar rights and licenses to the Software to other individuals and entities.
4.3 Software Limited Warranty and Disclaimers
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4.3.1 Softsense hereby warrants to Customer that the
Software will conform, when shipped to Customer, to the published specifications
for the Software, provided that the Software is properly used in the minimum
operating environment recommended by Softsense. If Customer believes that there
is a defect in the Software such that it does not conform to this limited
warranty, Softsense must be notified immediately, but no later than ninety (90)
days following the delivery of the Software to Customer. As Customer's exclusive
remedy and sole measure of any recoverable damages by Customer and any third
party for breach of this limited express warranty with respect to the Software,
Softsense shall repair or replace, at Softsense's option and expense, the
nonconforming Software. Softsense shall have no obligation under this Section
4.3.1 should the Software be modified, altered, merged or subjected to misuse,
neglect, accident or improper use by Customer or any third party. Softsense does
not warrant that the Software will operate in conjunction with equipment or
software that is neither provided by nor formally approved by Softsense, or that
the operation of the Software will always be uninterrupted or problem or Error
free.
4.3.2 Customer understands and agrees that the limited
express warranty set forth above in Section 4.3.1 is exclusive and Softsense
disclaims any and all other warranties of any nature whatsoever with respect to
the Software and any Software Support Services and Professional Services
provided hereunder, whether oral or written, express or implied, particularly
including the implied warranties of merchantability and fitness for a particular
purpose.
4.4 Softsense will defend Customer against any claim that the
Software supplied infringes a United States patent or copyright and, subject to
the limitation of liability set forth in Section 8.1 herein, will pay all costs,
damages and attorneys' fees that a court finally awards as a result of a
determination of patent or copyright infringement. To qualify for such defense
and payment, Customer must: (i) provide Softsense with prompt written notice of
the initial claim and lawsuit relating thereto; (ii) permit Softsense the right
to defend, compromise or settle the lawsuit in the sole discretion of Softsense;
and (iii) provide Softsense with all available information, reasonable
assistance, authority and cooperation to enable Softsense to defend, compromise
or settle the lawsuit as provided herein. Customer, at its own expense, may
participate in any such lawsuit, compromise or settlement in an advisory
capacity. If such claim has occurred, or in Softsense's judgment, is likely to
occur, Customer agrees to allow Softsense, at Softsense's option and expense, to
modify the Software so that it becomes noninfringing, or to procure the right
for Customer to continue using the Software or to substitute the Software, and
if such remedies are not, in Softsense's judgment, reasonably available, then
upon written request, Customer will return the Software to Softsense for a
credit in the amount of the unamortized portion of the
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Software, using a five-year straight line amortization schedule. Softsense shall
not have any liability to Customer for any claim that the non-Softsense computer
programs infringes a United States patent or copyright. Customer's sole recourse
will be against the manufacturer of such non-Softsense computer programs to the
extent that the manufacturer assumes any responsibility for patent or copyright
infringement. The defense offered in this Section 4.4 shall not apply to any
claim based upon the combination, operation or use of the Software with data or
computer programs not provided, formally approved or manufactured by Softsense.
The foregoing states the entire obligation of Softsense for patent and copyright
infringement with respect to the Software.
4.5 Softsense hereby represents to Customer that Softsense is
the author of the Software and has full and exclusive right, title and interest
in the Software, including the exclusive right to grant the licenses and rights
granted herein to the Software and that the Software is free and clear of any
lien, claim or encumbrance whatsoever.
5. EQUIPMENT
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5.1 Title to the Equipment purchased hereunder will pass to
Customer upon payment to Softsense of all fees or charges hereunder related to
the Equipment.
5.2 Delivery of the Equipment will be made in accordance with
the Accepted Order therefor and the Equipment will be delivered to Customer's
location set forth in such Accepted Order. Softsense shall make all shipping
arrangements, and will invoice Customer for all shipping charges. Softsense will
assume all risk of loss, damage and destruction to the Equipment prior to the
delivery of the Equipment to the carrier. Upon delivery of the Equipment to the
carrier, Customer shall be responsible for and shall bear all risk of loss,
damage and destruction with respect to the Equipment.
5.3 Disclaimers
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5.3.1 Customer acknowledges and agrees that the
Equipment Maintenance Services described in Exhibit A are the sole remedies
available to Customer for defects in the Equipment.
5.3.2 With respect to the non-Softsense Equipment,
Customer acknowledges and agrees that the sole warranty available to customer
shall be such warranty, if any, that is offered by the non-Softsense Equipment
manufacturer. Softsense disclaims all warranties of any nature with respect to
the non-Softsense Equipment, and the Equipment Maintenance Services provided
with respect to such Equipment, whether oral or written, express or implied,
particularly including the implied warranties of merchantability and fitness for
a particular purpose.
5.3.3 Customer further acknowledges and agrees that
the Softsense Equipment is provided without a warranty from Softsense. Softsense
disclaims all warranties of any nature with respect to the Softsense Equipment
and the Equipment Maintenance Services provided with respect to such Equipment,
whether oral or written, express or implied, particularly including the implied
warranties of merchantability and fitness for a particular purpose.
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5.4 Softsense will defend Customer against any claim that any
item of Softsense Equipment infringes a United States patent or copyright and,
subject to the limitation of liability set forth in Section 8.1 herein, will pay
all costs, damages and attorneys' fees that a court finally awards as a result
of a determination of patent or copyright infringement. To qualify for such
defense and payment, Customer must: (i) provide Softsense with prompt written
notice of the initial claim and lawsuit relating thereto; (ii) permit Softsense
the right to defend, compromise or settle the lawsuit in the sole discretion of
Softsense; and (iii) provide Softsense with all available information,
reasonable assistance, authority and cooperation to enable Softsense to defend,
compromise or settle the lawsuit as provided herein. Customer, at its own
expense, may participate in any such lawsuit, compromise or settlement in an
advisory capacity. If such claim has occurred, or in Softsense's judgment, is
likely to occur, Customer agrees to allow Softsense, at Softsense's option and
expense, to: (i) settle or defend against such claim; (ii) procure for Customer
the right the use such item of Softsense Equipment; (iii) replace or modify such
item of Softsense Equipment to avoid infringement; or (iv) remove such item of
Softsense Equipment and refund the purchase price less a reasonable amount for
depreciation. Softsense shall not have any liability to Customer for any claim
that the non-Softsense Equipment infringes a United States patent or copyright.
Customer's sole recourse will be against the manufacturer of such non-Softsense
Equipment to the extent that the manufacturer assumes any responsibility for
patent or copyright infringement. The defense offered in this Section 5.4 shall
not apply to any claim resulting from the modification of the Softsense
Equipment performed other than by Softsense or based upon the operation or use
of the Softsense Equipment with data, computer programs or equipment not
provided, formally approved or manufactured by Softsense. This Section 5.4
states Softsense's entire obligation regarding patent and copyright infringement
with respect to the Equipment.
6. SERVICES
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6.1 Software Support and Equipment Maintenance Services For each
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System installed at a Licensed Site listed on an Accepted Order, Softsense will
provide, in connection with Customer's operation of the System, Software Support
Services and Equipment Maintenance Services pursuant to the terms of the
Software support and Equipment maintenance plans selected by Customer. The
aforementioned plans are more particularly described on Exhibit A attached
hereto. As of the date of execution of this Agreement (the "Effective Date"),
Customer elects to receive Equipment Maintenance Services under the
___________________ Plan and Software Support Services under the
___________________ Plan, such plans to be in effect at each Licensed Site for
the initial term described on Exhibit A. Upon expiration of the initial term and
each renewal term thereafter, Customer may receive such services under the
alternative plans offered by Softsense, such plans to be in effect at each
Licensed Site for the duration of each such renewal term, provided that Customer
provides Softsense with written notification of such election ninety (90) days
prior to the expiration of the then-current term.
6.2 Professional Services
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6.2.1 Customer may request and Softsense may provide,
Professional Services related to Customer's operation of the Software provided
hereunder, including, consultation services, user education services,
implementation services and development services, and such other services to
which the parties agree.
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6.2.2 Customer may from time to time request that
Softsense develop Enhancements or make modifications to the Software in addition
to the Enhancements or modifications made by Softsense as part of its Software
Support Services ("Additional Enhancements"). All such requests shall be made in
the form of an Order for Professional Services, subject to Softsense's
acceptance pursuant to Section 3.6.1 herein. Customer acknowledges and agrees
that all Additional Enhancements delivered under an Order for Professional
Services shall be deemed a part of the Software and shall be exclusively owned
by Softsense.
7. NONDISCLOSURE AND CONFIDENTIALITY
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7.1 For purposes of this Agreement, "Proprietary Information"
shall mean all ideas, concepts, techniques, know-how, technical information, or
other information or material, in whatever form, received by one party to this
Agreement from the other, that is either: (i) stamped or otherwise identified in
writing as proprietary, or (ii) if orally disclosed, identified by the
disclosing party as proprietary at the time of disclosure, although the failure
to make such identification under either (i) or (ii) shall not alone change the
classification of such information from Proprietary Information to non-
Proprietary Information. Proprietary Information shall include the Software.
7.2 Each party agrees to hold all Proprietary Information of the
other party in strictest confidence and not to copy, reproduce, distribute,
remanufacture, duplicate, reveal, publish, report, disclose, caused to be
disclosed, or otherwise transfer any such Proprietary Information to any third
party, except as authorized in writing by the disclosing party, or utilize any
such information for any purpose whatsoever other than specifically required
under this Agreement, except that each party may disclose Proprietary
Information of the other to its employees who have a specific need to know such
information and who are advised of the confidential nature of the information
and the provisions of this Section 7. The obligations under this Section 7 shall
last for the term of this Agreement and for a period of five (5) years
thereafter, except to the extent that the Proprietary Information disclosed
rises to the level of a trade secret under applicable law, in which case, the
obligations of this Section 7 shall continue for so long as such information
constitutes a trade secret under applicable law. Each party further acknowledges
and agrees that the Proprietary Information of the other party is and shall at
all times remain the sole and exclusive property of the other party, and in the
event of termination or expiration of this Agreement, for any reason, each party
shall immediately return to the other party all Proprietary Information in its
possession.
7.3 Each party agrees to neither discuss nor otherwise disclose
to any third party the terms of this Agreement, but each party has the right to
represent verbally or in any printed or visual promotion, advertisement or
informational brochure that Customer is a user of the Software and a customer of
Softsense, provided, however, that such representation is true, accurate and
correct.
8. LIMITATION OF LIABILITY AND DAMAGES
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8.1 Customer acknowledges and agrees that in no event shall
Softsense, any affiliate or any officers, directors, employees, shareholders or
representatives of Softsense be liable to Customer or any third party for
special,
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indirect, incidental or consequential damage or loss of any nature,
including, but not limited to, damages resulting from delay, loss of profits,
injury to person or loss of goodwill which may arise in connection with the
Software, any copies thereof, the Equipment, the Services or otherwise
pertaining to this Agreement, even if Softsense has been notified of the
possibility or likelihood of such damages occurring. The parties agree that this
limitation of liability shall survive in full force and effect despite any
failure of any exclusive remedy.
8.2 Customer acknowledges and agrees that Softsense's liability
for damages to Customer or any third party for any cause whatsoever related to
this Agreement, the Software, the Equipment, the Services and regardless of the
form of action, whether in contract or in tort, including negligence or strict
liability, shall be limited to all payments received by Softsense from Customer
hereunder for the particular Software program, Equipment component, or Service
activity that caused the damage or that is the subject matter of or is directly
related to, the cause of action. This limitation of liability will not apply to
claims for personal injury or property damage caused by Softsense's gross
negligence or willful misconduct or to claims of patent or copyright
infringement as set forth in Sections 4.4 and 5.4. In no event will Softsense be
liable for any damages arising from performance or nonperformance of the
Software or Equipment caused by Customer's or any third party's failure to
perform its or their responsibilities.
8.3 Softsense shall not be held responsible for misuse or
incorrect operation of the Software or Equipment, use of the Software or
Equipment by untrained personnel or improper entry of data in connection with
the Software. Customer understands that the use of any Equipment outside the
manufacturer's recommended specifications may seriously effect the performance
of the Software. Softsense shall not be held liable or responsible for external
environmental conditions that may affect the performance of the Software or
Equipment, including, but not limited to, loss or interruption of power,
interruption or degradation of phone or data line service or integrity,
conflicting radio frequencies or other such factors.
9. TERMINATION
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9.1 This Agreement is effective from the date on which it is
signed and accepted by the parties and will remain in effect until terminated by
Customer upon sixty (60) days written notice to Softsense, or by Softsense as
provided in Section 9.2 herein. This Agreement may be terminated by Customer
only when all Software and all associated documentation have been returned to
Softsense or destroyed upon instructions from Softsense.
9.2 Softsense may terminate this Agreement upon the occurrence
of a material breach hereof (including, without limitation, non-payment of fees
by Customer) which breach has not been cured, with respect to non-payment of
fees, within fifteen (15) days after the date of written notice thereof to
Customer by Softsense, and with respect to any other material breach, within
forty five (45) days after the date of written notice thereof to Customer by
Softsense. Said notice will identify and describe the basis for such
termination. If prior to the expiration of any cure period stated above,
Customer cures such default, termination shall not take place. The filing of
bankruptcy, voluntarily or
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involuntarily, by either party shall not be a cause for termination of this
Agreement, provided that such party continues to fully perform its obligations
hereunder.
9.3 Upon expiration or termination of this Agreement for any
reason, Customer shall return to Softsense all Softsense property including, but
not limited to, all copies of the Software, all documentation relating thereto
and all Equipment not fully paid for hereunder. Upon termination or expiration
of this Agreement, the provisions of this Agreement providing for payment of
charges to Softsense, protection of the parties' proprietary rights, Softsense's
limited express warranties, Softsense's limitation of liability and other
provisions of this Agreement concerning the ongoing interest of the parties,
including, but not limited to, the provisions of Sections 4.2, 4.3, 4.4, 5.3,
5.4, 7, 8, 9, 13, 15, 20 and 21, shall continue and survive in full force and
effect.
10. INDEPENDENT PRINCIPALS Softsense and Customer are independent
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principals in all actions contemplated by this Agreement. This Agreement shall
not be construed to create or authorize any partnership, joint venture or agency
relationship, nor to authorize either party to make any commitment or agreement
binding on the other party, without such other party's prior written consent.
11. FORCE MAJEURE Neither party shall be in default by reason of any
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failure of performance of this Agreement if such failure arises, directly or
indirectly, out of causes reasonably beyond the control or forseeability of such
party including, but not limited to, default by suppliers, acts of God or of the
public enemy, United States or foreign governmental acts in either a sovereign
or contractual capacity, transportation contingencies, fire, flood, epidemic
restrictions and strikes.
12. WAIVER Neither party shall, by mere lapse of time without giving
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notice or taking other action hereunder, be deemed to have waived any breach by
the other party of any of the provisions of this Agreement. Furthermore, the
waiver by either party of a particular breach of this Agreement by the other
party shall not be construed as, or constitute a continuing waiver of such
breach, or of other breaches of the same or other provisions of this Agreement.
13. EQUITABLE REMEDIES AND SPECIFIC PERFORMANCE Customer acknowledges
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that each provision of this Agreement providing for the protection of
Softsense's copyrights, patents, Proprietary Information, trade secrets and
other proprietary rights, is material to this Agreement. Customer acknowledges
that any threatened or actual breach of Softsense's copyright, patents,
proprietary rights or trade secrets shall constitute immediate and irreparable
harm to Softsense, for which equitable remedies may be awarded by a court of
competent jurisdiction.
14. NOTICES All notices and other communications required or permitted to
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be given under this Agreement shall be in writing and shall be considered
effective when: (i) mailed by registered or certified mail, postage pre-paid,
return receipt requested; or (ii) hand delivered. All such notices shall be
addressed as shown below or to such other address as may be designated by a
party hereto or by written notice to the other party. Addresses for notices are
as follows:
If to Softsense: If to Customer:
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Softsense Computer Products, Inc. _________________________
0000 Xxxxxxxx Xxxxx, Xxxxx X _________________________
Xxxxxxxxxx, Xxxxxxx 00000 _________________________
Attention: Legal Services Division _________________________
15. GOVERNING LAW This Agreement shall be governed, construed, and
-------------
interpreted in accordance with the laws of the State of Georgia. In any civil
action by either party relating to this Agreement, the prevailing party shall
recover from and be reimbursed by the other party for all costs, reasonable
attorneys' fees and related expenses. Customer hereby consents and submits to
the exclusive jurisdiction and venue over any action, suit, or other legal
proceeding that may arise out of, or in connection with this Agreement, by any
state or federal court located within Xxxxxx County in the State of Georgia.
Customer stipulates and admits that it is transacting business in Xxxxxx County
in the State of Georgia. Customer shall bring any action, suit or other legal
proceeding to enforce, directly or indirectly, this Agreement or any right based
upon it only in Xxxxxx County in the State of Georgia.
16. AUTHORITY TO CONTRACT Each party warrants and represents to the other
---------------------
that it is legally free to enter into this Agreement, that its execution of this
Agreement has been duly authorized and that full performance of the terms and
conditions of this Agreement shall not conflict with or violate any terms or
conditions of any other agreement by which it is bound.
17. ASSIGNMENT Customer represents that it is acting on its own behalf
----------
and is not acting as an agent for or on behalf of any third party and further
agrees that it may not assign its rights or obligations under this Agreement
without the prior written consent of Softsense.
18. SEVERABILITY If any provision herein is declared invalid by a court
------------
of competent jurisdiction, such provision shall be ineffective only to the
extent of such invalidity so that the remainder of that provision and all
remaining provisions of this Agreement will continue in full force and effect
and be enforced to the maximum extent permitted by applicable law.
19. AMENDMENTS This Agreement can be amended or supplemented only by an
----------
instrument in writing signed by authorized representatives of both parties.
20. LIMITATIONS OF ACTIONS No action, regardless of form, whether based
----------------------
on contract, strict liability or tort, including any action based on negligence,
arising out of this Agreement, may be brought: (i) in the case of an action
arising out of a breach of the terms and conditions of Section 7 herein, more
than five (5) years after the cause of action has arisen; or (ii) in the case of
any other action, more than two (2) years after the cause of action has arisen,
except that in the case of an action for monies due, an action may be brought
within two (2) years of the date of the last payment.
21. GENERAL
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21.1 Each of the parties hereto acknowledge that it has read
this Agreement, understands and agrees to be bound by its terms. The parties
further agree that this
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Agreement and each Proposal is the complete and exclusive statement of the
agreement between the parties relating to the subject matter of the Agreement
and supersedes and cancels all previous understandings, representations,
conditions, warranties and all other communications between the parties relating
to the subject matter of this Agreement.
21.2 The terms and conditions of any Proposal and any Exhibits
attached to this Agreement are incorporated by reference and made a part of this
Agreement.
21.3 Variance from the terms and conditions of this Agreement in
any Order or other written communication shall be of no force or effect. In the
event of a conflict between the terms of this Agreement and the terms of a
Proposal, the terms and conditions specified in this Agreement shall take
precedence.
21.4 The Agreement is neither valid nor binding upon either
party until accepted by each party as evidenced by the execution of this
Agreement by each party's authorized representative.
In Witness Whereof, Softsense and Customer have caused this Agreement to be
executed by their respective duly authorized representatives as of the date
first above written.
Accepted by:
"Customer" "Softsense"
_______________________________ Softsense computer products, inc.
By:____________________________ By:________________________________
(Authorized Signature) (Authorized Signature)
Name (Print): __________________ Name (Print):______________________
Title___________________________ Title:_____________________________
13
EXHIBIT A
EQUIPMENT MAINTENANCE AND SOFTWARE SUPPORT SERVICES
1. EQUIPMENT MAINTENANCE SERVICES
------------------------------
1.1. Express Depot Maintenance Plan
------------------------------
1.1.1 Under this plan, Softsense will provide a toll-free
telephone hotline 24-hours a day, seven days a week, which will enable Customer
to report Equipment malfunctions or defects to Softsense. Customer will be
responsible for notifying Softsense immediately upon discovering an Equipment
malfunction or defect. Upon receipt of such notification, a certified technical
support technician ("Support Specialist") will diagnose the Equipment problem
and make a determination as to whether a replacement component is required. If a
replacement component is required, the Support Specialist will issue a returned
merchandise authorization ("RMA") number to Customer, which number will
authorize Customer to return the failed Equipment component to Softsense, at
Customer's expense.
1.1.2 Softsense will dispatch replacement components to
Customer's Licensed Site, or such other mutually agreed upon location, in
accordance with one of the two following delivery options, as selected by
Customer:
(i) Normal Delivery Softsense will dispatch replacement
---------------
components via surface freight carrier on the same business day that the Support
Specialist determines that a replacement component is required if such
determination is made prior to 4:30 PM, EST, and by the next business day if
such determination is made after 4:30 PM, EST. Softsense agrees to pay all
shipping charges and bear all risk of loss, damage and destruction with respect
to the replacement components prior to the delivery of the components to
Customer, provided Customer pays to Softsense Softsense's then-current Normal
Delivery fee.
(ii) Expedited Delivery Softsense will dispatch
------------------
replacement components via overnight delivery on the same business day that the
Support Specialist determines that a replacement component is required if such
determination is made prior to 4:30 PM, EST, and by the next business day if
such determination is made after 4:30 PM, EST. Softsense agrees to pay all
shipping charges and bear all risk of loss, damage and destruction with respect
to the replacement components prior to the delivery of the components to
Customer, provided Customer pays to Softsense Softsense's then-current Expedited
Delivery fee.
As of the Effective Date, Customer elects to receive replacement components in
accordance with the _____________ Delivery option, such option to be in effect
at each Licensed Site for the duration of the initial maintenance term. Upon
expiration of the initial maintenance term and each renewal term thereafter,
Customer may receive replacement components under the alternative delivery
option offered by Softsense, provided that Customer provides Softsense with
written notification of such election 90 days prior to expiration of the then-
current term, such option to be in effect at each Licensed Site for the duration
of each such renewal term.
1.1.3 Softsense will use reasonable efforts to dispatch the
replacement components within the above response times. Customer acknowledges
and agrees that there will be no penalties associated with Softsense's failure
to dispatch the replacement components within such response times.
1.1.4 The on-site labor required to replace the failed
Equipment components will not be provided by Softsense under this plan. Customer
may enter into an agreement with a third party for the replacement of such
failed Equipment components. A Support Specialist will assist, via telephone,
store or other Customer personnel or an agent of Customer in the replacement of
all "Non-Technical Components", but will only provide telephone support to a
third party or store or other Customer personnel who is a certified Softsense
maintenance provider for the replacement of "Technical Components." All
Technical and Non-Technical Components are set forth in the Softsense Equipment
Maintenance Document, which document shall be made available to Customer upon
Customer's request.
1.1.5 Customer will be required to return all items of failed
Equipment to Softsense at Customer's risk and expense. Customer must also
remove all funds contained in the failed Equipment prior to returning such items
to Softsense. Softsense will not be responsible for removing and returning any
funds left in the failed Equipment, or for backing-up, removing, protecting or
restoring programs, data or removable storage media contained in or operating on
any item of failed Equipment, unless agreed to by the parties in writing.
1.1.6 The cost of the replacement components will be included
in the base price of the plan, provided that: (i) the Equipment malfunction or
failure was not caused by any of the circumstances set forth in Section 1.3
herein; and (ii) Customer returns the failed components within 30 days of
Customer's receipt of an outstanding RMA Equipment notice from Softsense.
Softsense will issue such notice to Customer upon Customer's failure to return
all items of failed Equipment within 30 days from the date such items are
diagnosed as defective. If either of the events set forth in subsections (i) or
(ii) do so occur, Customer will be charged Softsense's retail price for the
replacement component, as set forth in the applicable Proposal.
1.2 On-Site Maintenance Plan
------------------------
1.2.1 Under this plan, Softsense will provide a toll-free
telephone hotline 24-hours a day, seven days a week, which will enable Customer
to report Equipment malfunctions or defects to Softsense. Customer will be
responsible for notifying Softsense immediately upon discovering an Equipment
malfunction or defect. Upon receipt of such notification, a Support Specialist
will diagnose the Equipment problem and make a determination as to whether a
replacement component is required. If a replacement component is required,
Softsense will send replacement components to Customer's Licensed Site as
follows:
(i) All replacement components stocked locally to the
Licensed Site ("Locally Stocked Components") will be delivered within four hours
of the Support Specialist's determination that a replacement component is
required. Customer
2
acknowledges and agrees that Softsense may subcontract with a third party for
storage and delivery of Locally Stocked Components.
(ii) All replacement components stocked in the Softsense
Depot Center ("Centrally Stocked Components") will be sent by overnight delivery
on the same business day that the Support Specialist determines that a
replacement component is required if such determination is made prior to 4:30
PM, EST, and by the next business day if such determination is made after 4:30
PM, EST.
A listing of the Locally and Centrally Stocked Components is set forth in the
Softsense Equipment Maintenance Document, which document shall be made available
to Customer upon Customer's request.
1.2.2 The on-site labor required to replace the Technical
Components will be made available to Customer under this plan. The labor
required to replace all Non-Technical Components will be the responsibility of
Customer. Customer acknowledges and agrees that Softsense may subcontract with a
third party ("Third-Party Maintenance Provider") for the provision of on-site
labor in connection with the replacement of the Technical Components. In the
case of on-site labor provided by a Third-Party Maintenance Provider, Customer
acknowledges and agrees that Softsense will not be liable to Customer or any
third party for any losses or damages of any nature whatsoever arising from the
furnishing of services by the Third-Party Maintenance Provider.
1.2.3 Softsense will dispatch a Third-Party Maintenance
Provider or a Support Specialist, as the case may be, to perform the on-site
labor with respect to the Technical Components within four hours of the Support
Specialist's determination that a replacement component is required. The Support
Department will provide telephone support, via the toll-free support hotline, to
store or other Customer personnel or an agent of Customer for the replacement of
all Non-Technical Components.
1.2.4 Softsense will use reasonable efforts to: (i) send or
deliver, as the case may be, the replacement components within the response
times set forth in Section 1.2.1; and (ii) dispatch the Third-Party Maintenance
Provider or Support Specialist, as the case may be, within the response time set
forth in Section 1.2.3. Customer acknowledges and agrees that there shall be no
penalties associated with Softsense's failure to respond within such response
times.
1.2.5 Customer will be required, in the case of the Non-
Technical Components, to return all items of failed Equipment to Softsense at
Customer's risk and expense. Customer will also be required to remove all funds
contained in the failed Equipment prior to returning such items to Softsense.
Softsense will not be responsible for removing and returning any funds left in
the failed Equipment, or for backing-up, removing, protecting or restoring
programs, data or removable storage media contained in or operating on any item
of failed Equipment, unless agreed to by the parties in writing.
1.2.6 The cost of the replacement components will be included
in the base price of the plan, provided that: (i) the Equipment malfunction or
failure was not caused by any of the circumstances set forth in Section 1.3
herein; and (ii) Customer returns the failed components within 30 days of
Customer's receipt of an outstanding RMA Equipment notice from Softsense.
Softsense will issue such notice to Customer upon
3
Customer's failure to return all items of failed Equipment within 30 days from
the date such items are diagnosed as defective. If either of the events set
forth in subsections (i) or (ii) do so occur, Customer will be charged the
Softsense's retail price for the replacement component, as set forth in the
applicable Proposal.
1.3 Equipment Maintenance Limitations
----------------------------------
1.3.1 Equipment returned for reasons other than malfunction or
defect, including, without limitation, reasons relating solely to physical
appearance, aesthetic quality or other cosmetic factors, will not be considered
by Softsense as qualifying for Equipment Maintenance Services, regardless of the
plan, at no additional charge hereunder.
1.3.2 Malfunctioning Equipment or damage to Equipment caused by
the following circumstances will not be considered by Softsense as qualifying
for Equipment Maintenance Services, regardless of the plan, at no additional
charge hereunder:
(i) Failure to operate the Equipment continually in a
suitable operating environment as designated by Softsense or the manufacturer of
the Equipment;
(ii) Use of the Equipment for other than data processing
purposes or neglect or abuse of the Equipment;
(iii) Accident, disaster (including, but not limited to,
flood, fire and lightning);
(iv) Alteration by Customer or any third party other than
Softsense.
1.4 Term and Termination
--------------------
1.4.1 The maintenance term shall commence as of the Effective
Date, and, subject to Section 1.4.2, shall remain in effect for an initial term
of one year and shall automatically renew thereafter for successive one-year
terms. The Effective Date or renewal date, as the case may be, will apply to all
items of Equipment purchased and installed at a Licensed Site during the then-
current term.
1.4.2 If Customer fails to pay any of the Equipment Maintenance
Service fees due hereunder, Softsense has the right to suspend or terminate such
Equipment Maintenance Services or any part thereof. The Equipment Maintenance
Services may also be terminated by either party, without cause, upon 60-days
prior written notice to the other party, such termination to take effect upon
expiration of the then-current term.
1.5 Withdrawal Softsense may withdraw certain items of Equipment
----------
from Equipment Maintenance Services at each Licensed Site: (i) upon 30-days
prior written notice to Customer, should any item of Equipment be discontinued
by the original equipment manufacturer, or if such item of Equipment is no
longer eligible for service by the original equipment manufacturer; or (ii) upon
60-days prior written notice to Customer, under all other circumstances,
provided that under both subsections (i) and (ii), Softsense makes a suitable
replacement available to Customer in the event of a malfunction or defect.
4
2. SOFTWARE SUPPORT SERVICES
-------------------------
2.1 First Line Support Plan
-----------------------
2.1.1 Under this plan, Softsense will provide Software Support
Services directly to the Licensed Site. As part of these Services, Softsense
will provide a toll-free telephone hotline 24-hours a day, seven days a week,
which will enable Customer to report Software problems and receive assistance in
resolving Software problems from a Support Specialist. Customer will be
responsible for immediately notifying Softsense of any Software problems. Upon
receipt of such notification from Customer, Softsense will assign a severity
level to the reported Software problem in accordance with the below schedule.
Thereafter, Softsense will use best efforts to respond to Customer's call and
diagnose the Software problem within the estimated response period designated
below for the applicable severity level. In the event a problem with the
Software cannot be diagnosed via the toll-free hotline, Softsense may use a
computer modem to remotely control the Software at the Licensed Site. Software
problem diagnosis will include a determination as to whether:
(i) the reported Software problem constitutes an Error or a
Software irregularity, interruption or malfunction other than an Error;
(ii) the reported problem is excluded from Software Support
Services, as specified in Section 2.5 below.
2.1.2 In the event the reported problem is excluded from
Software Support Services under Section 2.5 below, Softsense shall notify
Customer promptly with its rationale for such a determination, and where
appropriate, will direct Customer to refer the problem to a Customer "support
representative" mutually selected by the parties.
2.1.3 If, in Softsense's opinion, the reported problem
constitutes an Error, Customer will be responsible for providing Softsense with
sufficient documentation, if any, in order for Softsense to reproduce the
reported Error. If the Error is verified, Softsense will use best efforts to
provide Customer with a temporary "fix" within the estimated resolution times
designated below for the applicable severity level and shall include the Error
correction in a future Upgrade. In the event that the verified Error is not, in
Softsense's opinion, valid or reproducible, Softsense shall notify Customer
promptly with its rationale for such a determination.
2.1.4 If, in Softsense's opinion, the reported problem
constitutes a Software irregularity, interruption, or malfunction other than an
Error, Softsense will provide Customer with the necessary technical assistance
to enable Customer to correct the problem or to otherwise become operational
within the estimated resolution times designated below for the applicable
severity level.
5
Severity Level Definition
-------------------------
Severity 1 Customer is unable to use the Software or the
problem results in a critical impact on Customer's
operations.
Severity 2 Customer is able to use the Software, but in
Customer's reasonable determination, Customer is
severely restricted in doing so.
Severity 3 Customer is able to use the Software with limited
functions which are not critical to Customer's
overall operations.
Severity 4 There is no impact to running the Software.
Estimated Response Time
-----------------------
Severity 1 Softsense will respond within 10 minutes of
Customer's initial call.
Severity 2 Softsense will respond within 1 hour of Customer's
initial call.
Severity 3 Softsense will respond within 2 hours of
Customer's initial call.
Severity 4 Softsense will respond within 24 hours of
Customer's initial call.
Estimated Resolution Time
-------------------------
Severity 1 Softsense will provide a fix or bypass within 4
hours of its diagnosis.
Severity 2 Softsense will provide a fix or bypass within 24
hours of its diagnosis.
Severity 3 Softsense will provide a fix/correction in a
future Upgrade.
Severity 4 Softsense will provide a fix/correction in a
future Upgrade.
2.2 Second Line Support Plan Under this plan, Customer-designated
------------------------
representatives (the "Customer Help Desk") will provide the first line of
Software support
6
directly to the Licensed Site. If the Customer Help Desk, using its best
efforts, is unable to resolve a Software problem after two attempts, the
Licensed Site or Customer Help Desk will notify Softsense and Softsense will
provide Software Support Services set forth in Section 2.1 above directly to the
Licensed Site. The determination as to whether the Licensed Site or Customer
Help Desk will notify Softsense shall be made by Softsense after taking into
consideration factors such as the technical capabilities of the Customer Help
Desk employees.
2.3 All Standard Upgrades Softsense will provide standard
---------------------
Upgrades for the Software installed at each Licensed Site, regardless of the
support plan chosen by Customer. The content and timing the Upgrades will be
determined by Softsense in its sole reasonable discretion. All requests for
Enhancements other than those included in a standard Upgrade shall be submitted
to Softsense in the form of an Order for Professional Services pursuant to
Section 6.2.2 of the Agreement, and shall be subject to Softsense's acceptance
pursuant to Section 3.6.1 of the Agreement.
2.4 Term and Termination
--------------------
2.4.1 The Software support term shall commence as of the
Effective Date, and, subject to Section 2.4.2, shall remain in effect for an
initial term of one year and shall automatically renew thereafter for successive
one-year terms. The Effective Date or renewal date, as the case may be, will
apply to all Software ordered and installed at a Licensed Site during the then-
current term.
2.4.2 If Customer fails to pay any of the fees for the Software
Support Services due hereunder, Softsense has the right to suspend or terminate
such Software Support Services or any part thereof. Customer may terminate the
Software Support Services upon 60-days prior written to Softsense, such
termination to take effect upon expiration of the then-current term. Customer
may request that Softsense reinstate Software Support Services at any time after
a termination by Customer, provided however, that Customer pays to Softsense the
per-site annual Software Support fee in effect during each year it did not
receive Software Support Services from Softsense.
2.5 Software Support Limitations:
-----------------------------
(i) Software defects, abnormal operation of the Software
or inability to operate the Software resulting from Customer's misuse or
improper use of the Software or Equipment, use of the Software or Equipment by
untrained personnel or personnel who require additional training from Customer,
improper entry of data in connection with the Software or from combining or
merging the Software with any computer equipment or computer programs not
supplied by Softsense (or not approved in writing by Softsense to be combined or
merged with the Software) will not be considered by Softsense as qualifying for
Software Support Services, at no additional charge hereunder;
(ii) Softsense shall not be responsible for providing
Software Support Services if the request for technical assistance arises solely
from the inability of Customer personnel to operate the Software in conformity
with store or Customer operational procedures, including, but not limited to
product pricing and cash management policies;
7
(iii) Softsense shall not be responsible for providing
Software Support Services for any version of a Software program other than the
most recent Upgrade, provided, however, that Softsense shall continue to support
the most recent superseded Upgrade for 90 days from the date of the general
distribution of the most current Upgrade.
8
