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MAINTENANCE SERVICES AGREEMENT
This Maintenance Services
") is made as of September 24, 2018 (the "Effective Date
") by and between
, an individual
with an address at
, a company
with an address at
This Agreement describes Party-1's purchase of Services from Party-2.
in consideration of the mutual promises and covenants contained in this
Agreement, the parties hereby agree to the following terms and
(a) "Business Hours" means the hours between 9:00 a.m. and 5:00 p.m. in the time zone where Party-2's address is located, except for weekends and Party-2 holidays. [QR-116]
(b) "Contract Year" means any twelve (12) month period during the Term beginning on January 1 and ending on December 31. [QR-65]
(c) "Correction" means the correction of a Malfunction at any and all priority levels to ensure that the Maintained Item performs in accordance with the requirements of this Agreement.
(d) "Government Authority"
means any governmental authority or court, tribunal, agency,
department, commission, arbitrator, board, bureau, or instrumentality
of the United States of America or any other country or territory, or
domestic or foreign state, prefecture, province, commonwealth, city,
county, municipality, territory, protectorate or possession.
(e) "Law" means
all laws, statutes, ordinances, codes, regulations and other
pronouncements having the effect of law of any Government Authority.
(f) "Maintained Item" means [QR-117]
(g) "Maintenance Services" means the specific Services consisting of Corrections, Revisions and Upgrades.
(h) "Malfunction" means a malfunction of the Maintained Item that prevents the Maintained Item from performing in accordance with the requirements of this Agreement.
(i) "Priority 1" means a severe Malfunction exists which makes the use of one or more Maintained Item critical functions inoperable or materially decreases the functionality required by this Agreement.
(j) "Priority 2" means a non-severe Malfunction exists which makes the use of one or more Maintained Item functions less operable or decreases functionality as required by this Agreement, but is not a Priority 1 Malfunction.
(k) "Revision" means a version of the Maintained Item with updates, modifications, patches, fixes, or changes that is a less substantial change to the Maintained Item than an Upgrade, as the version is made generally available to the Maintained Item's customers, and as indicated by a change in the release number to the right of the decimal point. [QR-120]
(l) "Services" means the services Party-2 provides to Party-1 as described in this Agreement.
(m) "Upgrade" means a version of the Maintained Item with major new features or significant enhancements, as the version is made generally available to the Maintained Item's customers, and as indicated by a change in the release number to the left of the decimal point. [QR-121]
2. MAINTENANCE SERVICES.
(a) Revisions and Upgrades. Party-2 agrees to provide Maintenance Services for the current Upgrade as of the Effective Date. Revisions are included with the Maintenance Services fee and are not subject to an additional charge. Upgrades are subject to an additional fee (at the same price Party-2 generally charges its customers) over and above the fee for Maintenance Services. [QR-122] Party-2 agrees to offer Revisions and Upgrades to Party-1 when and if available. Each Revision and Upgrade must be functionally compatible with the prior release or version of the Maintained Item, and must comply with the requirements of this Agreement that apply to the Maintained Item. Party-1 may not be required to install any Revision or Upgrade except: (i) as a prerequisite to installing a subsequent Revision or Upgrade; or (ii) to avoid violation of intellectual property or proprietary rights of a third party, in which case the Revision or Upgrade will be provided at no charge. Revisions and Upgrades must include appropriate changes to the documentation that is generally provided to the Maintained Item's customers.
(b) Corrections. After Party-1 has informed Party-2 of a Malfunction, and subject to Party-1 reasonably assisting Party-2 in attempting to recreate and diagnose the Malfunction, Party-2 agrees to: (i) provide a progress report to Party-1 within twenty four (24) hours of receiving each request to do so from Party-1, (ii) for Priority 1 level Malfunctions, promptly assign a Party-2 employee to address the Malfunction, provide a response within one (1) hour during Business Hours, and ensure that the assigned employees work continuously during Business Hours until a Correction is provided and (iii) for Priority 2 level Malfunctions, within twenty four (24) hours respond and assign technical support resources, and provide a Correction within a reasonable amount of time and at the same time or sooner than Party-2 provides the Correction to its other customers. During Business Hours, Party-2 agrees to provide Party-1 with telephone access to qualified employees able to provide Corrections. [QR-123]
3. MAINTENANCE SERVICES FEE. The annual Maintenance Services fee is: Party-2 may invoice Party-1 for the Maintenance Services fee annually and in advance on the first day of each Contract Year. If Party-1 does not timely pay the Maintenance Services fee, then Party-2 may suspend performance of the Maintenance Services until Party-1 does so, and, if Party-1 wants to end this suspension and re-initiate the Maintenance Services, Party-1 only must pay a pro rata amount reflecting the amount of time left in the then current Contract Year. The Maintenance Services fee may not be increased during the Term. [QR-128]
(a) Mutual Warranties. Each party represents, warrants and covenants to the other that:
(i) Law Compliance. It complies with all applicable Laws.
(b) Warranties by Party-2. Party-2 represents, warrants and covenants to Party-1 that:
(i) Warranty Length. For a period of thirty (30) days after receipt, the Services conform to the requirements of this Agreement, are free from any defect in material and workmanship, and are free of all liens, claims and encumbrances of any kind. [QR-82]
(ii) Services Performance. The
Services are performed in a professional and competent manner,
conforming to generally accepted standards applicable to services
provided by nationally recognized firms specializing in the area of
Services provided under this Agreement. Each of the
individuals assigned to provide any Services under this Agreement
have the proper skill, training, and background to provide the Services.
(c) Disclaimer. EXCEPT AS EXPRESSLY
STATED IN THIS AGREEMENT, PARTY-1 AND PARTY-2 EACH MAKE NO
REPRESENTATIONS AND EXTEND NO WARRANTIES OR COVENANTS OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. INDEMNIFICATION. The term "Claim" means any claim, suit or action by any third party, and the term "Losses"
means any damages awarded and fines assessed in any Claim by a court of
competent jurisdiction or pursuant to an arbitration proceeding, any
amounts due under Claim settlement, and any other costs or expenses
incurred in complying with any injunctive or equitable relief or any
(a) Party Indemnification.
(i) Indemnification by Party-2. Upon receipt of notice from Party-1 requesting Party-2 to do so, Party-2 agrees to indemnify, defend, and hold harmless Party-1 and its affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, and parents, from and against any Claim, and any associated Losses to the extent caused by violation of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right due to Party-2 providing the Services (except to the extent a Claim is caused by Party-1's internally created specifications). [QR-80]
(ii) Indemnification by Party-1. Upon receipt of notice from Party-2 requesting Party-1 to do so, Party-1 agrees to indemnify, defend, and hold harmless Party-2 and its affiliates, subsidiaries, shareholders, members, directors, officers, employees, agents, and parents, from and against any Claim, and any associated Losses to the extent caused by violation of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right to the extent caused by Party-1's internally created specifications or Party-1's use of the Services. [QR-74]
(b) Indemnification Procedures. The term "indemnifying party" means the party assuming indemnification obligations under this Agreement, and the term "indemnified party" means all parties, including any third parties, which the indemnifying party agrees to indemnify under this Agreement.
The indemnified party must give the indemnifying party prompt written
notice of a Claim, provided, however, that failure of an indemnified
party to give prompt written notice does not relieve the indemnifying
party from its indemnification obligations under this Agreement except
to the extent the defense is materially prejudiced by the failure. When
the indemnifying party receives notice of a Claim from an indemnified
party, the indemnifying party agrees, at its sole cost and expense, to
assume the defense of the Claim by representatives chosen by the
indemnifying party. The indemnified party may participate in the
defense of the Claim and employ counsel at its own expense to assist in
the defense of the Claim, subject to the indemnifying party retaining
final authority and control over the conduct of the defense.
(ii) Conduct of Defense.
The indemnifying party's defense attorneys must be reasonably
experienced and qualified in the areas of litigation applicable to the
defense. The indemnifying party has the right to assert any defenses,
causes of action or counterclaims arising from the subject of the Claim
available to the indemnified party and also has the right to settle the
Claim, subject to the indemnified party's prior written consent to the
extent the settlement affects the rights or obligations of the
indemnified party. The indemnified party agrees to provide the
indemnifying party with reasonable assistance, at the indemnifying
party's expense, as may be reasonably requested by the indemnifying
party in connection with any defense, including, without limitation,
providing the indemnifying party with information, documents, records
and reasonable access to the indemnified party as the indemnifying
party reasonably deems necessary.
6. TERM AND TERMINATION.
(a) Term. The term of this Agreement (together with any renewals, the "Term") begins on the Effective Date and expires one (1) year [QR-24] later. Immediately
upon expiration this Agreement automatically renews on the same terms
and conditions for additional successive periods of one (1) year on
each anniversary of the Effective Date, unless either party gives the
other party notice that the Agreement does not renew at least thirty
(30) days before the end of the then applicable Term. [QR-18]
The following captioned sections survive any termination, expiration or
non-renewal of this Agreement: "Disclaimer", "Indemnification", "Survival", "Publicity" and
"General", as well as any other provisions expressly stating that they are perpetual or survive this Agreement.
(c) Termination for Insolvency.
If either party is adjudged insolvent or bankrupt, or upon the
institution of any proceedings by it seeking relief, reorganization or
arrangement under any Laws relating to insolvency, or if an involuntary
petition in bankruptcy is filed against a party and the petition is not
discharged within sixty (60) days after filing, or upon any assignment
for the benefit of a party's creditors, or upon the appointment of a
receiver, liquidator or trustee of any of a party's assets, or upon the
liquidation, dissolution or winding up of its business (each, an "Event of Bankruptcy"),
then the party affected by any Event of Bankruptcy must immediately
give notice of the Event of Bankruptcy to the other party, and the
other party may terminate this Agreement by notice to the affected
(d) Termination for Breach.
If either party breaches any provision contained in this Agreement, and
the breach is not cured within thirty (30) days after the breaching
party receives notice of the breach from the non-breaching party, the
non-breaching party may then deliver a second notice to the breaching
party immediately terminating this Agreement.
7. PUBLICITY. Each party agrees to
not make, publish or distribute (whether in print, electronically or
otherwise) any public announcements, press releases, advertising,
marketing materials or promotional materials regarding the execution or
performance of this Agreement without the prior written consent of the
8. GENERAL. Entire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements regarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be amended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge that they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents, has the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. The parties may not subcontract any of their obligations under this Agreement. [QR-63] Governing Law and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of TEXTFIELD [QR-27], applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in TEXTFIELD [QR-28], regardless of the inconvenience of the forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and inures to the benefit of the parties' successors and assigns. Either party may assign, delegate, sublicense or otherwise transfer this Agreement, or any right or obligation under this Agreement, to a third party. [QR-46] No Waivers, Cumulative Remedies. A party's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly stated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive. Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions. Notices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in this Agreement by each party. Captions and Plural Terms. All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.
IN WITNESS WHEREOF, the parties execute this Agreement
as of the Effective Date. Each person who signs this Agreement below
represents that such person is fully authorized to sign this Agreement
on behalf of the applicable party.
Print Name: ___________________________
Print Name: ___________________________