Exhibit 10.43
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SUPPORT AGREEMENT
This agreement (the "Support Agreement") is dated as of
February 13, 2003 (the "Effective Date") by and between the following parties:
"Licensor" "Licensee"
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PhoenixSoft, Inc., an Arizona corporation Company Name: Phone 1, Inc.
0000 Xxxxx 00xx Xxxxxx Address: 000 Xxxxx Xxxxxxxx
Xxxx., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000 City, State, Zip: Xxxxx, Xxxxxxx 00000
XXX Country: USA
Telephone: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
E-mail: _________________________ E-mail: _____________________
Contact: ________________________ Contact: Xx. Xxxxxxxx Xxxxxxx, CTO
Licensee operates the Software and wishes Licensor to perform Support
Services for the Software and the Covered Equipment on the terms and conditions
set forth in this Support Agreement. Software and the Covered Equipment that
will be covered by this Support Agreement and entitled to Support Services will
be described in one or more Support Orders to be attached to this Support
Agreement from time to time.
The parties hereby agree as follows:
1. SCOPE OF AGREEMENT.
A. TERM OF SUPPORT AGREEMENT. The term of this Support
Agreement commences on the Installation Date and will remain in effect
until terminated as provided in this Support Agreement.
B. SUPPORT ORDERS. The Support Services to be provided to
Licensee are described on the Support Orders (the "Support Orders")
attached to this Support Agreement from time to time.
C. TERM OF SUPPORT ORDERS. For each Support Order, Licensor
will provide Support Services from the Start Date of the Support Order
and for a period of 12 months thereafter, unless otherwise specified on
the Support Order (the "Initial Term").
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D. RENEWAL OF SUPPORT ORDERS. Each Support Order will be
automatically renewed for successive one year periods after the end of
the Initial Term (each a "Renewal Term") on the same terms and
conditions, unless either party notifies the other party in writing no
less than 60 days prior to the expiration of the Initial Term or
Renewal Term, as the case may be, of its desire to terminate or revise
the Support Order.
E. ADDITIONAL ORDERS FOR SUPPORT SERVICES. If during the term
of a Support Order, Licensee wishes to order additional services not
provided under the then-current Support Order, Licensee may request
additional services pursuant to amendments to the Support Order.
F. ACCEPTANCE OF SUPPORT ORDERS BY LICENSOR. Provided that
Licensee is not in default under this Support Agreement and has paid
all amounts required to be paid by it under the Support Orders, and
further provided that Licensor is not subject to an event described in
Section 4(a)(ii) below, Licensor agrees to accept and honor all Support
Orders presented to it by Licensee and not to terminate any Support
Order upon expiration of any Renewal Term.
2. CHANGES TO SERVICES AND SUPPORT CHARGES. Licensor may amend or
revise the Support Services or Support Charges at any time on 30 days written
notice to Licensee, subject to Licensee's consent, which may not be unreasonably
withheld. Notwithstanding the foregoing sentence, Licensor agrees not to amend
Support Charges until after the expiration of the Initial Term, and, thereafter,
no more often than annually. If Licensee does not consent to Licensor's proposed
changes, both parties will use reasonable efforts to agree to an amendment to
the Support Order.
A. SUPPORT CHARGES. Annual charges for Support Services (the
"Support Charges") are set forth in the attached Support Orders.
B. PAYMENT TERMS. The Support Charges will be payable
quarterly in advance of the period for which Support Services are
rendered. Any charges for any other products or services provided to
Licensee that are not covered by a Support Order will be invoiced when
provided and will be due and payable immediately on receipt of the
invoice.
C. TRAVEL AND EXPENSE CHARGES. Licensee will pay for all
travel, accommodations, and other reasonable expenses including but not
limited to meals, laundry, local transportation, and business
communications of Licensor's personnel for all on-site services
provided by Licensor or its representatives, except as otherwise
expressly provided in a Support Order.
3. LIMITATION OF SERVICES.
A. EXTENT OF EQUIPMENT SUPPORT. Support Services for the
Equipment are only applicable for equipment still covered under the
manufacturer's warranty, and only to the extent indicated on a Support
Order (the "Covered Equipment"). Licensor will assist with the
troubleshooting and identification of problems within the System, but
will only make recommendations on any Equipment, which is not on the
Support Order (the "Non-Covered Equipment") that is found to be
malfunctioning. It is the responsibility of Licensor to replace or
repair any Non-Covered Equipment that is found to be malfunctioning.
Support Services for Covered Equipment will provide for the repair of
the Covered Equipment or for the "like-for-like" replacements of failed
Field Replaceable Units ("FRUs").
B. MAINTAINING CURRENT SOFTWARE. If Licensee is current in all
amounts payable to Licensor under this Support Agreement, including all
amounts payable under all Support Orders, Licensor will make Updates
available to Licensee. Whenever an Update is released, Licensee agrees
to implement the Software within 90 days at all applicable Licensee
sites. After a period of 180 days following the release of an Update,
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Licensor will guarantee the availability of patches or bug fixes to
versions no older than 12 months from the date of the current release.
C. UNAUTHORIZED USE. Support Services will not be rendered for
any defects, malfunctions, problems or questions concerning the Covered
Equipment or Software arising out of any of the following, whether
resulting from the actions of Licensee or a third party (other than
Licensor):
(i) Use of the Covered Equipment other than in strict
compliance with the documentation furnished by Licensor for
the Covered Equipment.
(ii) Misuse, negligence or improper maintenance or
application of either the Covered Equipment or Software,
including operation outside the Covered Equipment or Software
design specifications;
(iii) Modification, repair, or alteration of either
the Covered Equipment or Software, except as authorized in
writing by Licensor;
(iv) Failure to provide and maintain a suitable
installation environment with all facilities prescribed by
Licensor, including, but not limited to: (A) adequate
electrical power with appropriate protection against local
anomalies; and (B) air temperature or humidity control, high
quality leased lines, etc.;
(v) Power failures, fluctuations, or brownouts,
telecommunication line disruptions and outages.
(vi) Unauthorized incorporation of Licensor spare
parts into the Covered Equipment or the use of supplies or
materials not meeting Licensor specifications, including the
attachment of any hardware whatsoever not authorized by
Licensor to any Covered Equipment.
Licensee acknowledges that any failure to comply with the recommendation of
Licensor management with regard to the use of the Covered Equipment or Software
may prevent the successful resolution of Licensor Software irregularities or
system failures. Support Services do not include the development of new
applications to "work around" problems known to be caused by Licensee's
hardware. Any services required as a result of any of the above will be billed
on a time and materials basis at Licensor's then-current hourly rates and be
payable immediately on receipt of the invoice for such services.
4. DEFAULT.
A. EVENTS OF DEFAULT. The occurrence of any of the following
events will constitute an "Event of Default" under this Support
Agreement and the Support Orders:
(i) The other party breaches any material provision
of this Support Agreement or a Software Support Order; or
(ii) The other party (A) terminates or suspends its
business, (B) becomes subject to any bankruptcy or insolvency
proceeding under Federal or state statute, (C) becomes
insolvent or subject to direct control by a trustee, receiver
or similar authority, or (D) has wound up or liquidated,
voluntarily or otherwise.
B. DEFAULT ON OTHER AGREEMENTS. In addition to the Events of
Default set forth in Section 4(a), breach of any material provisions in
the License Agreement will also constitute an Event of Default under
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this Support Agreement and the Support Orders, entitling the
non-breaching party to the remedies available at law, in equity or
under this Support Agreement.
C. NOTICE AND OPPORTUNITY TO CURE. Upon the occurrence of an
Event of Default, the non-defaulting party will deliver to the
defaulting party a notice of the Event of Default that identifies in
detail the Event of Default. The defaulting party will have 30 days
after the date of the notice to cure the default. If the defaulting
party fails to fully and completely cure the default within the 30 day
period, the non-defaulting party may exercise any remedies provided in
this License Agreement or at law or equity.
5. REMEDIES ON DEFAULT. The parties will be entitled to the following
remedies if an Event of Default remains uncured at the end of the 30-day cure
period:
(i) LICENSOR'S REMEDIES. In addition to any other
remedies available to Licensor at law or in equity, Licensor
will also be entitled to terminate this Support Agreement and
all Support Services under the Support Orders.
B. IMMEDIATE SUSPENSION OR TERMINATION BY LICENSOR.
Notwithstanding anything to the contrary in this Support Agreement or a
Support Order, if: (i) Licensee fails to pay, within seven (7) business
days' of when due, any amounts payable under this Support Agreement or
a Support Order; or (ii) Licensee uses the Software on unauthorized
equipment, or uses unauthorized software on the Covered Equipment or
anything that is not directly a part of the Covered Equipment, Licensor
will have the right to immediately terminate or suspend this Support
Agreement and all Support Services under the Support Orders. Licensor
will not be liable for any damages arising as a result of equipment or
software failures that occur during suspension or as a result of
termination.
C. SUPPORT AGREEMENT REINSTATEMENT. If Support Services are
suspended for a period equal to three consecutive months or more,
Licensee will be subject to a reinstatement fee equal to 25% of the
Support Charges. On reinstatement, Licensor will perform a technical
evaluation of the Covered Equipment and Software at Licensee's site, at
Licensee's expense. Any repair, replacement or other services required
to bring the Covered Equipment and Software back to a normal
serviceability level will be performed before full Support Services are
resumed. All of these services will be billed at the then-current
non-discounted systems engineer daily rates, plus expenses. Licensee
will also pay for all required repairs and replacement equipment or
Updates at Licensor's then current list prices.
A. LICENSEE'S REMEDIES. In addition to any other remedies
available at law or in equity, Licensee shall be entitled to terminate
this Support Agreement, and to have no further obligations under this
Support Agreement or any Support Orders.
6. ERROR RESOLUTION RESPONSE. Licensor's engineering personnel will
respond to reported problems under the following guidelines:
A. TROUBLE PRIORITIES.
(i) PRIORITY 1. A fatal error that has no work
around. Generally, these errors will not allow a user to
complete a required function.
(ii) PRIORITY 2. An error that prevents a function
from being completed as normally processed, but that has a
work-around that allows the user to complete the task at hand.
(iii) PRIORITY 3. A cosmetic error that does not stop
a user from completing a task, but does not work as would be
expected.
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B. ERROR RESOLUTION RESPONSE. Once a priority has been
established for a problem by Licensor and the relevant information has
been collected, Licensor will use commercially reasonable best efforts
to respond within the following response-time goals. Notwithstanding
the foregoing sentence, Licensee acknowledges that some problems may
take longer than the goals due to their complexity.
(i) PRIORITY 1. During regular business hours (9:00
am - 9:00 pm EST), calls will be answered immediately; after
regular business hours, a callback to the Licensee will be
made within 20 minutes of the initial call. Licensor will work
full time until an interim work-around or a permanent
resolution is provided.
(ii) PRIORITY 2. A resolution will be provided within
5 working days.
(iii) PRIORITY 3. A resolution will be provided
within 10 working days.
7. OTHER TERMS. Those terms not otherwise defined in this Support
Agreement will have the meanings set forth in Schedule G of the License
Agreement, and the Miscellaneous Provisions contained in Schedule H of the Sales
Agreement will apply to this Support Agreement and the Exhibits attached hereto.
Schedule G and Schedule H are both incorporated herein by this reference.
The parties have executed this Support Agreement as of the Effective
Date.
LICENSOR: PHOENIXSOFT, INC. LICENSEE: PHONE 1, INC.
Signature: /s/ Xxxx Xxxxx Signature: /s/ Xxxxx Xxxxxxxxx
Name: Xxxx Xxxxx Name: Xxxxx Xxxxxxxxx
Title: EVP Title: President-CEO
Date: 2-13-03 Date: 2-13-03
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SUPPORT ORDER
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SUPPORT AGREEMENT FOR CONTRACT #: PA00-PA-00000509002-01
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CURRENT SOFTWARE CONFIGURATION:
INITIAL TERM: ____/____/ 2002 ("START DATE") - ____/____/ 2003
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SYSTEM SUPPORT:
o Support fees charged at the quarterly rate of $1.50 per active
port USD $ 1.50
o Support fees to be prepaid quarterly
o Ports activated in each calendar quarter to pay support fees
in following quarter (e.g., support fees will be payable on
April 1 for any ports activated January 1 through March 31)
SOFTWARE SUPPORT SERVICES FOR SOFTWARE:
o Help Desk: Monday - Friday, 6:00 am - 6:00 pm PST/ 9:00 am-
9:00 pm EST
Outside of these standard hours, emergency help is provided
for switch outages 24 x 7
o Error Resolution, Patches, Fixes, Workarounds
o Software Diagnostics, Remote Analysis via Secure line provided
by Licensee
o Level 1 software Upgrades
o Two tech training slots per year (at Licensor facility) as
long as
Support Charges are current
ON-SITE RESPONSE PACKAGE: OPTIONAL
o On-site Emergency Field Support (travel and expenses not
included)
OPTIONAL CONSULTING SERVICES FEES: OPTIONAL
o Five (5) days on-site @ USD $6,000.00 per week plus travel and
expenses
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APPROVALS:
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LICENSEE: PHONE 1, INC. LICENSOR: PHOENIXSOFT, INC.
Signature: ________________________ Signature: ___________________________
Name: _____________________________ Name: ________________________________
Title: ____________________________ Title: _______________________________
Date: _____________________________ Date: ________________________________
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