SOFTWARE SUPPORT AGREEMENT
This Software Support Agreement is entered into this 31st day of
October, 1997 by and between Arkona Software Inc. a Utah Corporation of 0000
Xxxxx Xxxxxxx Xxxx #00X0 Xxxx Xxxx Xxxx, XX 00000 ("ARKONA") and OEC Medical
Systems, Inc., a Delaware corporation of 000 Xxxxxx Xxxxxxxx Xxxxx, Xxxx Xxxx
Xxxx, XX 00000 ("OEC").
RECITALS
Whereas, ARKONA and OEC entered into an Agreement dated June 12, 1997
("Development Agreement") under which ARKONA developed a certain software
product for OEC relating to computer communications between OEC offices and
OEC field service engineers; and,
Whereas, ARKONA and OEC desire now to enter into an agreement specifying
the terms of Arkona's supporting the software;
NOW, THEREFORE, in consideration of the foregoing Recitals and the
following mutual promises, the parties agree to the following:
TERMS
1. Term of Agreement. This Software Support Agreement shall be effective
from September 1, 1997 until August 31, 1998.
2. Renewal. This Software Support Agreement may be extended for three (3)
additional one year periods by OEC notifying Arkona in writing of its
intention to extend not later than August 1, of each succeeding year.
3. Definitions. The following terms shall have the following meanings in
this Software Support Agreement:
3.1. Incident means a request from OEC to Arkona for software support relating
to a specific problem that can be answered by isolating its origin to a single
cause or a specific question that can be answered by a single explanation or
instruction (each incident may include multiple contacts between Arkona and
OEC to reach resolution or closure of the problem or question);
3.2. Integration Error means a failure of the Product to perform as desired by
OEC caused by or related to integration of the Product with versions of
Third-party software different than those detailed in the Specifications or
other Third-party software not referenced in the Specifications;
3.3. Product means that software developed by Arkona for OEC as specified in
the Development Agreement which was delivered on August 1, 1997 and accepted
by OEC;
3.4. Remote means services provided by Arkona to OEC requiring the physical
presence of an Arkona employee outside of Salt Lake City, Utah;
3.5. Software Assistance means providing advice to OEC regarding the
operation of the Product;
3.6. Software Fault means a failure of the Product to comply with the
Specifications due to an internal error, omission or defect of the Product,
including, but not limited to, a failure of the Product to integrate with the
versions of Third-party software detailed in the Specifications;
3.7. Specifications means those specifications attached as Exhibit "A" to the
Development Agreement;
3.8. Specification Error means a failure of the Product to perform as desired
by OEC caused by an error or omission in the Specifications;
3.9. Third-party Software means software provided by companies other than
Arkona running on OEC main-office systems or on the laptop computers of OEC's
Field Service Engineers. Third-party software does not include programs
running within the Product;
3.10. Upgrade means an increase or change in the functionality of the Product
from that detailed in the specifications requested by OEC.
4. Basic Service Charge. OEC shall pay Arkona $25,000.00 as a Basic Service
Charge for the services specified below. The payments shall be made quarterly
in the amount of $6,250 each with the first payment due on the execution of
this Software Support Agreement and with subsequent payments due on the 1st
day of December, March, and June thereafter. The Basic Service Charge shall be
increased five percent (5%) for each year of any extension.
5. Reporting of Incidents. Incidents shall be reported to Arkona from OEC
only by Xxxxxxx Xxxxxx or Xxxxxxx Xxxx (or successors designated by OEC in
writing) except in extreme emergencies where neither Xxxxxx or Xxxx are
available. Incidents may be reported by telephone, fax or email to the
following addresses (or such changed addresses as may be provided in writing to
OEC from time to time):
5.1. Telephone: (000) 000-0000
5.2. Fax: (000) 000-0000
5.3 Email: xxxx@xxxxxx.xxx
6. Response by Arkona. Incidents reported to Arkona during regular working
hours (9:00 a.m. to 5:00 p.m., prevailing time in Salt Lake City) on regular
working days (excluding Federal and State of Utah legal holidays) shall be
responded to within 24 hours. Incidents reported to Arkona at other times
shall be responded to within 24 hours of 8:00 a.m. of the next regular working
day.
7. Best Efforts to Resolve. Arkona shall use its best efforts to resolve the
Incident, either by correcting the Software Fault or providing the Software
Assistance as soon as possible.
8. Incidents Included within Basic Service Charge. The Basic Service Charge
includes assistance each calendar month with a total of fifteen ( 15) Software
Assistance and/or Software Faults via telephone, fax, email or at the OEC main
office in Salt Lake City. These fifteen (15) assistance per month shall not
be cumulative and any unused assistance at the end of each month shall expire.
9. Incidents not Included within Basic Service Charge. In addition to any
Software Assistance or Software Fault Incidents exceeding the fifteen (15)
total per month, the Basic Service Charge shall not include correction of or
assistance with any Third-party Software, Integration Errors, Specification
Errors or Upgrades.
10. Charges for Incidents in Excess of Basic Service Charge. For Incidents
involving Software Assistance or Software Faults in excess of fifteen (15) per
month Arkona shall charge OEC $100.00 per Incident.
11. Arkona Responsibility Regarding Integration Errors or Specification
Errors. Arkona shall initially respond to all Incidents. If Arkona identifies
an Incident as arising out of or related to an Integration Error,
Specification Error or Third-party Software Arkona shall immediately notify
OEC of such determination in writing or by fax or email. Unless promptly
instructed otherwise, Arkona shall, if such resolution can be effectuated by
less than four (4) working hours of Arkona time, provide the necessary
resolution as soon as possible. For such resolution, Arkona shall charge OEC
$750.00 plus any additional costs such as Third-party Software and/or charges,
hardware, etc. If such a resolution is estimated by Arkona to take more than
four (4) working hours Arkona shall give OEC a written estimate of the cost to
make such resolution and shall proceed with the resolution only upon
authorization from OEC for an agreed-upon amount or time and expenses rate.
OEC shall pay for any such resolutions on Arkona's monthly invoice.
12. Assistance Report Logs and Notification. Arkona shall log and track all
Incident reports and resolutions and provide the log to OEC not later than the
15th of the following month. Arkona shall promptly notify OEC whenever in a
month OEC has used ten (10) of the fifteen (15) assistance per month included
within the Basic Service Charge.
13. Resolution Production Costs and Distribution. Arkona shall provide one (1)
copy of the resolution of any Incident (i.e., software patch or assistance
documentation) to OEC without charge except for any charges for Third-party
Software and/or any hardware necessarily included within the resolution.
Installation of any software patch and/or hardware on the main office OEC
system shall be performed by Arkona either at no additional charge if included
within the Basic Service Charge or as part of the costs billed to OEC if not
included within the Basic Service Charge. Copying, distributing to and
installing the resolution on any computers not at the main office of OEC shall
be the sole responsibility and cost of OEC or, if requested by OEC to be
performed by Arkona, shall be considered as Remote Work and billed
accordingly.
14. Charges for Remote Work. For any Remote Work OEC shall pay Arkona as
follows:
14.1. Billable Time. Billable Time shall include flight times (calculated from
1/2 hour before scheduled flight departure until landing), travel to and from
airport or hotel to remote site and actual working time. A Working Day shall
be eight (8) hours per day of Billable Time. The minimum charge for remote
work shall be for one ( 1 ) Working Day. The charge for each Working Day shall
be $1,500 for regular days (i.e., excluding weekends and Federal and State of
Utah legal holidays) and $2,500 for non-regular days. Billable Time on any day
in excess of eight (8) hours shall be charged at the rate of $300 per person
per hour for regular days and $400 per person per hour on non regular days.
14.2. Travel Expenses. OEC shall reimburse Arkona for all trave] expenses
including, but not limited to, airfare, car rental, hotels, meals, tolls and
parking incurred in providing such remote support.
14.3. Other Expenses. OEC shall reimburse Arkona for all other expenses
reasonably related to Remote Work including, but not limited to, necessary
Third-party Software and/or hardware and/or expendable tools or other
materials.
15. Arkona Responsibility Regarding Upgrades.
15.1. OEC Upgrade Requests. If Arkona identifies an Incident as arising out of
or constituting a request for an Upgrade, Arkona shall immediately notify OEC
of such determination in writing or by fax or email. Arkona shall give OEC a
written estimate of the cost (including, but not limited to, Arkona's time and
expenses and any charges for Third-party Software and/or hardware) to make
such Upgrade and shall proceed with the Upgrade only upon authorization from
OEC for an agreed-upon amount or time and expenses rate as specified in section
14.1. OEC shall pay for any such Upgrade on Arkona's monthly invoice. For any
such Upgrades OEC shall enter into a licensing agreement with Arkona similar to
that incorporated as Exhibit "B" to the Development Agreement and a Software
Support Agreement similar to this.
15.2. Arkona Upgrades. If Arkona releases any Upgrade during the Term of this
Agreement, Arkona shall offer such Upgrade to OEC at no cost except for
Arkona's time and expenses involved in installing the Upgrade and any charges
for Third-party Software and/or hardware to install and/or distribute such
Upgrade.
16. Monthly Invoices and Payment. Arkona shall invoice OEC monthly for all
work performed under this Software Support Agreement and/or any separate
projects authorized pursuant to this Software Support Agreement together with
reasonable supporting documentation. OEC shall pay Arkona on its invoices
within fifteen 15) days of receipt of an invoice. All invoices unpaid for more
than thirty (30) days shall bear interest at the rate of one and one-half
percent (1.5 %) per month.
17. Limitation on Liability. Arkona's sole liability to OEC pursuant to this
Software Support Agreement and the Development Agreement shall be limited to
resolving any Software Faults and resolving all Incidents as provided above.
Specifically, Arkona shall not be liable to OEC for any incidental and/or
consequential damages.
18. Miscellaneous. This Agreement shall be governed by the }aw of the State of
Utah and any action brought to enforce its terms shall be brought only in
Utah. In any such action, the prevailing party shall be entitled to its costs
of action including a reasonable attorneys fee.
This Agreement is deemed executed and effective as of the date and year first
written above.
Arkona Software, Inc. OEC Medical Systems, Inc.
By: Xxxxxxx Xxxxxx By: (Name not legible)
Its: VP Technical Operations Its: VP Finance
