SOFTWARE MAINTENANCE AGREEMENT
BETWEEN
SUMMUS LIMITED AND HIGH SPEED NET SOLUTIONS
000 XXXXXXXXXXXX XXXXXX XXXX 000 XXXXXXXXXXXX XXXXXX XXXX
XXXXX 000 XXXXX 0000
RALEIGH, NORTH CAROLINA 27601 XXXXXXX, XXXXX XXXXXXXX 00000
(LICENSOR) (LICENSEE)
THIS SOFTWARE MAINTENANCE AGREEMENT (this "Agreement") is by and between Summus
Limited ("Licensor") and High Speed Net Solutions "HSNS" ("Licensee") and is
effective this 18th day of February, 2000. Licensor will provide Software
Maintenance Service for the MaxxSystem product suite (the "MaxxSystem Program")
licensed to Licensee pursuant to that certain Software License Agreement, dated
of even date herewith, by and between Licensor and Licensee (the "License
Agreement"). Capitalized terms herein not otherwise defined shall have the
meaning set forth in the License Agreement. The terms and conditions of the
License Agreement shall govern Licensee's use of the Program.
1. This Agreement shall serve as the exclusive definition of the
Maintenance Services for the MaxxSystem Program.
2. The term of this Agreement shall be coincident and conterminous with
the License Agreement (the "Term"). Maintenance Services shall be
provided without charge for the first year, and for a charge (the
"Maintenance Fee") of $ 180,000 for the second year. The Maintenance
Fee is payable in advance each year. Licensor shall invoice Licensee at
least thirty days prior to the renewal date, with the Maintenance Fee
payable on the renewal date. Licensor shall not be required to continue
providing Maintenance Services if Licensee is more than thirty days
late in payment. Licensor may increase the Maintenance Fee each year
after the second year by the increase in the Employment Cost Index of
the U.S. Bureau of Labor Statistics, for non- seasonally adjusted
private industry compensation for professional and technical
occupations, using the calendar year ending in the second year of
maintenance or the base year. Licensee may reinstate lapsed support and
maintenance for MaxxSystem Programs licensed from Licensor upon payment
for all support and maintenance fees in arrears and all costs invoiced
by Licensor on a time and materials basis for updating Licensee's
MaxxSystem Program to the then-current version.
3. During the Term, Licensee shall perform the Maintenance Services set
forth herein provided Licensee is not in breach of the terms of this
Agreement or the License Agreement. "MaxxSystem Program Upgrades" shall
mean bug fixes, new versions, and upgrades provided by Licensor to
Licensee under the License Agreement. those new versions of or
additions to the MaxxSystem Program together with such additional
Documentation as Licensor deems appropriate, which have been developed
by Licensor to enhance the MaxxSystem Program's operating performance
without changing its basic function and which may be provided to
Licensee under the Support Agreement.
4 Maintenance Services shall consist of the following:
A. SOFTWARE UPDATE SERVICE
Standard support only covers the latest version of the
Licensor developed software deliverables and third-party
software originally supplied by Licensor ("Covered
Third-Party Software") under the License Agreement.
Maintenance for other third-party software such as the
computer operating system must be obtained from the
supplier and are the responsibility of the Licensee.
Licensor will specify the third party version (operating
system, ORACLE, etc.) required for each MaxxSystem Program
release.
SOFTWARE UPDATE SERVICE INCLUDES:
o distribution and application of Covered Third-Party
Software maintenance modifications and enhancements,
when available from the third party vendors.
o delivery to Licensee on or before delivery to any
other customers of generally available versions of
the MaxxSystem Program and its component programs
that Licensor releases after the effective date of
the License Agreement, including (a) error
corrections, maintenance releases, major and minor
releases, and products that Licensor releases after
the effective date of the License Agreement that
supersede the MaxxSystem Program or its component
programs; (b) any migration aids for users migrating
from the prior version of the MaxxSystem Program; and
(c) any Documentation related to either (a) or (b).
Minor releases, containing incremental improvements
and minor new functionality, will be provided not
less than once a year.
B. SOFTWARE SUPPORT
MAXXSYSTEM PROGRAM support covers the latest version of
the Licensor developed software deliverables provided to
Licensee under the License Agreement and are defined by
the Casual Consulting services. Casual Consulting services
for the MAXXSYSTEM PROGRAM includes the following
services:
o Level 2 and Level 3 technical assistance regarding
installation and operation of the MaxxSystem Program.
o Level 2 and Level 3 Telephone 5 X 8 (5 days a week, 8
hours a day) support in accordance with published
Summus Limited holidays.
o Replication of errors reported by Licensee, if
reasonably practical..
o Creation of a test case that generates the reported
error.
o Includes application updates and application upgrades
to current licensed functionality.
o Provide incident report and resolution time frame
statistics on technical support calls.
o Creation and supply of error corrections on a prompt
commercial basis.
Support is provided via telephone or web during normal
business hours Monday through Friday (8:00 AM to 12:00,
1:00 PM - 5:00 PM, Eastern Time) except for Summus Limited
holidays.
Support will be provided according to the following
severity schemes for both production and BETA release
software:
- Severity 1: System is not operational and is causing
revenue impact to the customer. Response time due
within one hour. A fix must be provided within 24
hours.
- Severity 2: A portion of the system is not
operational and is causing business impact to the
customer. Response time due within 4 hours. A fix
must be provided within 3 days.
- Severity 3: A portion of the system is down with
limited to no impact on the customer's business
operations. Response time due within one business
day. A fix must be provided within 2 weeks.
- Severity 4: Cosmetic problems. Response timE due
within 3 business days. A fix must be provided within
three months.
The following items, among others, are specifically excluded from
Casual Consulting:
o Interpretation of the MaxxSystem Program's results.
o Supply of typical or representative data.
o Assistance with computer hardware and peripheral
questions not related to the MaxxSystem Program's
use.
o Assistance with computer operating system questions
not directly pertinent to the MaxxSystem Program.
o Data debugging and/or correcting.
o Services necessitated as a result of any cause other
than the MaxxSystem Program's ordinary, proper use by
Licensee, including but not limited to neglect,
abuse, unauthorized maintenance, or electrical, fire,
water, or other damage.
o Special applications of the MaxxSystem Program not
part of its intended, normal use.
o On-Site Maintenance.
o Guidance on the MaxxSystem Program's intended, normal
use.
o Services resulting from the failure of Licensee to
provide a suitable environment for the MaxxSystem
Program or as associated equipment.
o Service on any release of the MaxxSystem Program
prior to the latest release provided to Licensee
under the License Agreement.
5. Customer agrees that if Licensor performs the maintenance services
designated hereunder at Customer's site and Licensor determines that a
problem with the Licensed Software, or an apparent problem with the
Licensed Software, is or has been caused by (i) any software other than
the Licensed Software, or (ii) by hardware not provided by Licensor,
then Customer shall reimburse Licensor for its labor costs for such on-
site services at the Licensor's customary rates then in effect. In such
an event, Customer shall not be responsible for Licensor's labor costs
associated with other than on-site labor or for any travel costs
associated with such on-site labor.
6. The maximum liability of Licensor for any direct damages sustained by
the Licensee under this Software Maintenance Agreement arising from
Licensor negligence shall in no circumstance exceed the amount of the
annual maintenance fee payable by the Licensee to Licensor, plus the
fees paid by Licensee (including application of credits) under the
License Agreement depreciated on a straight-line basis over a six year
term. The Licensee and Licensor shall in no event be liable one to the
other for loss of revenue, profit, anticipated profit or indirect,
incidental, special or consequential damages, including but not limited
to, any losses to Licensee resulting from lost computer time or the
destruction or damage of records, or any claims or demands made against
the Licensee by a third party. Licensor shall maintain general
liability and property damage insurance in reasonable limits and shall
maintain proper worker's compensation insurance covering all employees
performing work under this Agreement and, upon request by Licensee,
shall furnish Certificates of Insurance evidencing such coverage.
7. During the term of this Agreement, Licensee shall:
A. Provide Licensor with modem connection to Licensee's computer
systems for the sole purpose of performing Maintenance
Services. Such connection shall be made only at times mutually
agreed by Licensee and Licensor. Licensor agrees that with
respect to any access of Licensee's computer system by
Licensor, whether in person or through modem connection,
Licensor shall not (i) access portions of the system that are
not necessary for performance of Maintenance Services; (ii)
access any data of customers of Licensee; (iii) disable any
virus checker or security program; or (iv) provide to
Licensee, through download or CD-ROM or other media, software
or data in electronic form that has not been examined with an
up-to-date commercial virus checking program shortly before
delivery to Licensee.
B. Provide adequate Level 1 support for MaxxSystem Program to
support Licensee customer base;
C. Ensure that only personnel properly trained in the operation
and use of the MaxxSystem Program and its associated equipment
call Licensor for direct phone support and that such personnel
have sufficient access and computer time when using such
service in order to implement the corrections suggested by
Licensor;
D. Install all application updates and MaxxSystem Program
Upgrades within 90 days of delivery of same, provided that
Licensee is not obligated to install or use any upgrade for
which Licensor requires an extra fee that Licensee has not
agreed to pay;
E. Perform and install all diagnostic activities and routines
recommended by Licensor;
F. Ensure the proper MaxxSystem Program environment is maintained
and that Licensee's personnel who have access to the
MaxxSystem Program are properly trained in the operation and
usage of the MaxxSystem Program and the associated equipment;
and
G. Provide, at no cost to Licensor, adequate safeguards for the
protection of Licensee's data and files while the Maintenance
Services are being performed on the MaxxSystem Program.
8. Licensee shall be solely responsible to ensure that all of its files
and data are adequately duplicated or documented, and Licensor shall in
no way be responsible for Licensee's failure to do so, nor for the
costs or expenses of reconstructing data which are lost, destroyed or
otherwise damaged or rendered useless during the course of or as the
result of the performance of any services under this Agreement.
9. All data or other information of Licensee or Licensee's customers to
which Licensor is exposed in the course of providing Maintenance
Services shall be treated as confidential in accordance with the terms
of the article on confidentiality in the License Agreement.
10. Licensor warrants that the services provided under this Agreement will
be performed in professional fashion and in accordance with good
quality practices in the software industry.
EXCEPT AS PROVIDED HEREIN, LICENSOR MAKES NO OTHER REPRESENTATIONS OR
WARRANTIES UNDER THIS AGREEMENT WHATSOEVER WHETHER STATUTORY, EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF
DEALING OR USAGE OF TRADE.
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IN WITNESS WHEREOF each of the parties has caused its duly authorized
officer to execute this Agreement as of the date and year first above written.
LICENSOR LICENSEE
SUMMUS, LTD. HIGH SPEED NET SOLUTIONS, INC.
By: /s/ Xx. Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxx
(Signature)
Date: March 13, 2000 Date: February 18, 2000
Name: Xx. Xxxxx Xxxxxxx Name: Xxxxxx X. Xxx
Title: CEO Title: Acting President and CEO,
Executive Vice President
