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EXHIBIT 10.3
SOFTWARE MAINTENANCE AGREEMENT
This Agreement is made as of the _____ day of _____ , 1996, by and between
Credit Management Solutions, Inc. ("CMSI"), with its principal place of
business at 0000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 and
____________________________ ("Licensee"), with its principal place of business
at ________________________________________________.
CMSI and licensee hereby agree as follows:
1. Definitions. Capitalized terms in this Agreement have the same meaning as
they have in the Software License Agreement (the "Software License Agreement")
between CMSI and Licensee dated _______________________, 1996.
2. Support Services.
(a) CMSI will take all reasonable steps to correct the failure of the
Software to operate substantially in accordance with its Documentation and
specifications (as revised from time to time), and will provide updates,
corrections, new releases and modifications of the Software made generally
available at no charge to CMSI's other software licensees receiving Software
support similar to the support provided under this Agreement (collectively,
"Enhancements"). New software programs, modules and/or products (including,
but not limited to, significant new software functionality which is not made
generally available to CMSI's other customers at no additional charge) are not
provided under this Agreement, but will be made available at CMSI's
then-current fees for such items.
(b) Licensee may request corrective maintenance by telephone during
the hours of 8:30 A.M. to 5:00 P.M. Monday through Friday (excluding national
holidays) of the time zone of Licensee's principle business location (the
"Principal Period of Support"). In connection with all telephone support,
Licensee shall (i) provide CMSI with an "800" dial-in telephone number and (ii)
reimburse CMSI for all support related telephone charges incurred by CMSI in
the event that Licensee's "800" dial-in telephone number is unavailable at any
time Licensee requires telephone support. Excluding national holidays, CMSI
will provide emergency telephone support during non Principal Period of Support
hours. Licensee's request for emergency telephone support will be subject to
CMSI's then current time and material charges. Licensee will provide CMSI with
all information and assistance requested by CMSI to detect, simulate and
correct the failure of the Software to operate substantially in accordance with
the Documentation (a "Program Error"). CMSI will provide Licensee with
Software revisions or avoidance procedures to correct the Program Error within
sixty (60) days after confirming the existence of a Program Error, for
non-business critical Program Errors. However, CMSI will use its best efforts
to resolve Program Errors that are considered business critical in order to
minimize business interruption on the part of Licensee. CMSI will provide
corrective maintenance from its business premises, unless in its reasonable
opinion CMSI determines that such corrective maintenance may be more
effectively performed at Licensee's premises. Subject to Licensee's
responsibilities under section 5(e) of this Agreement, Corrective Maintenance
will be provided.
(c) Unless otherwise specified by CMSI, Licensee will install all
Program Error corrections with reasonable telephone assistance from CMSI, and
such corrections and Enhancements will be provided in a manner sufficient to
permit installation by Licensee.
(d) If Licensee requests CMSI to correct problems caused by any of
the following factors, and CMSI elects to do so, such corrective services
performed by CMSI will be deemed Supplemental Services governed in accordance
with Section 6 below.
(1) Licensee's modifications to the Software (including any Licensee
Enhancements)
(2) Licensee's failure to use Enhancements or Program Error
corrections or the most current release of the Software provided
by CMSI
(3) Problems with hardware, operating system software, networking
software, or any other software not provided by CMSI for use
with the Software
(4) Licensee's failure to use the Software in accordance with the
terms of its Software License Agreement
(5) Licensee's combination, operation, or use of the Software with
non-CMSI software or hardware or in an operating environment
outside of the environment recommended by CMSI.
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3. Term. This Agreement will commence on the Acceptance Date of the Software
as defined in the License Agreement and will remain in full force and effect
unless terminated as provided in Section 8 below. The Software License
Agreement, and Licensee's license thereunder, shall terminate on the date of
termination of this Agreement.
4. Payment Terms.
(a) For Software Support provided during the first year of the
Agreement, Licensee will pay the fees set forth in Exhibit A hereto (the
"Support Charges"). For Software Support provided after the first year,
Licensee shall Support Charges determined in accordance with this Agreement and
Exhibit A hereto.
(b) Following the first year of this Agreement, increases in the
Support Charges will not occur more frequently than once per twelve (12) month
period and will not increase by more than ten percent (10%) of the prior year's
annual Support Charges.
(c) CMSI shall be entitled to increase the Support Charges payable by
Licensee beyond the limitation set forth in Section 4(b) above in the event
that CMSI and Licensee mutually agree to expand the number of concurrent users
authorized to access the Software beyond the number specified in Exhibit A to
the Software License Agreement. Licensee may not expand the number of
concurrent users in the absence of CMSI's agreement thereto. CMSI's
maintenance Support Charges are based upon the number of concurrent users who
are allowed to access the Software (the "User Category"). In the event that
Licensee and CMSI agree to an increase in Licensee's User Category, Licensee
agrees that CMSI shall be permitted to increase Licensee's annual maintenance
Support Charges to conform to the then current fees CMSI charges for
maintenance to licensees of that User Category. The limitation on increase in
annual Support Charges established in Section 4(b) above shall then apply to
subsequent annual increases in Support Charges charged to Licensee for the new
User Category.
(d) Licensee shall reimburse CMSI for its reasonable travel and
related expenses incurred in connection with this Agreement. Licensee is
responsible for all taxes and duties based upon amounts payable hereunder
(exclusive of taxes based upon the net income of CMSI) and upon Licensee's
ownership of the license, use or possession of the Licensed Products.
5. Licensee's Responsibilities.
Licensee understands that in order for CMSI to provide Software Support,
Licensee must:
(a) Provide, at Licensee's expense, the "Remote Dial-up Capability"
specified by CMSI (e.g., "800" telephone number dial-in capability); and
(b) Identify to CMSI one person and one alternate to serve as
Licensee's support contact (the "Licensee Representative"). Only the Licensee
Representative will be authorized to request and receive Software Support on
behalf of Licensee. Licensee may change its Licensee Representative by written
notice to CMSI; and
(c) Provide CMSI with such access to the Software, Licensee hardware
and Licensee data as may reasonably be required by CMSI in order for it to
perform its duties hereunder. Access to such data will be used exclusively for
Software Support purposes and will be subject to CMSI's obligations to protect
the trade secrets and confidential and proprietary information of Licensee.
Licensee will cooperate fully with CMSI's reasonable requests for information,
personnel and time necessary to provide Software Support.
(d) Complete proper problem determination procedures as documented by
CMSI before calling CMSI, and then perform problem definition activities and
remedial actions, as reasonably requested by CMSI.
(e) Remain on the most current release of the Software which CMSI has
made available to Licensee within sixty (60) days after receipt of such
release.
6. Supplemental Services. All services, if any, performed by CMSI for
Licensee, in addition to the Software Support provided by CMSI under Section 2
above ("Support Services"), will entitle CMSI to additional compensation at its
then current time and materials rates, including reimbursement for travel and
related expenses. Further, Licensee shall be responsible for all telephone
charges incurred by CMSI in order to dial into Licensee's system. Supplemental
Services will include any services provided by CMSI to Licensee or on behalf of
Licensee's Authorized Affiliates, clients, agents, or vendors.
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7. Warranties and Limitation of Remedies.
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CMSI MAKES NO
WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES OR PRODUCTS
PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) CMSI'S LIABILITY TO LICENSEE FOR ANY LOSSES OR DAMAGES, DIRECT OR
INDIRECT, ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT WILL BE LIMITED
TO THOSE ACTUAL, DIRECT, OUT-OF-POCKET EXPENSES AND COSTS WHICH ARE REASONABLY
INCURRED BY LICENSEE, AND WILL NOT EXCEED THE CHARGES WHICH WOULD BE DUE FOR
THE THEN CURRENT TWELVE (12) MONTH PERIOD OF SOFTWARE SUPPORT FOR THE SPECIFIC
CMSI SOFTWARE MODULE FROM WHICH CMSI'S LIABILITY ARISES. CMSI WILL NOT BE
LIABLE FOR: (I) ANY CLAIM ARISING FROM LICENSEE'S FAILURE TO PERFORM LICENSEE'S
RESPONSIBILITIES AS DOCUMENTED, OR (II) INCIDENTAL, INDIRECT OR CONSEQUENTIAL
DAMAGES IN ANY EVENT, OR (III) FOR ANY CLAIM AGAINST LICENSEE BY ANY OTHER
PARTY.
8. Suspension of Services; Termination. If Licensee fails to fulfill its
responsibilities set forth in Section 5 above or to pay the Support Charges
payable under this Agreement, CMSI may suspend Software Support until such
failure is corrected. Either party may terminate this Agreement ninety (90)
days after written notice of a material breach of this Agreement by the other
party which remains uncured after such ninety (90) day period or, with respect
to those defaults which cannot reasonably be cured within ninety (90) days, if
the defaulting party fails to proceed within ninety (90) days to commence
curing the default and to proceed with all due diligence substantially to cure
the same, then the party not in default may terminate this Agreement by
providing the defaulting party with a written termination notice. If Licensee
terminates this Agreement with cause in accordance with this Section 8, CMSI
promptly will refund to Licensee all charges previously paid by Licensee for
Software Support to be rendered during the balance of the then current annual
coverage period. This refund constitutes Licensee's sole and exclusive remedy
and CMSI's maximum liability for breach of this Agreement.
9. Miscellaneous.
(a) Entire Agreement; Modifications and Amendments; Headings. This
Agreement contains the entire agreement between the parties with respect to the
subject matter hereof, and there are no other terms or conditions, agreements,
or representations, expressed or implied, written or oral, except for the
matters set forth in the Software License Agreement. This Agreement may not be
amended or modified except by written agreement signed by each party hereto.
The headings are for convenience only and do not affect the meaning of this
Agreement.
(b) Notices. Any notices required under this Agreement will be given
in writing in accordance with the "Notices" provision in Section 14(e) of the
Software License Agreement
(c) Successors and Assigns. This Agreement may be assigned by
Licensee or CMSI to the same extent, and in the same manner, as assignment of
the Software License Agreement is permitted under the Software License
Agreement.
(d) Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of Maryland, exclusive of its choice
of law rules. The parties agree that any disputes under this Agreement shall
be submitted for
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adjudication in the State or Federal courts located within Xxxxxx County,
Maryland.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
CREDIT MANAGEMENT SOLUTIONS, INC. --------------------------------
("CMSI") ("Licensee")
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Signature Signature
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Print Name/Title Print Name/Title
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Date Date
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MAINTENANCE AGREEMENT
EXHIBIT A
SUPPORT CHARGES
Dated __________
Support services fee for the first year of this Agreement will be as follows:
The "Support Charges" for Support Services for the first year of this Agreement
will be fifteen percent (15%) of the fees paid for the Software pursuant to
Exhibit A of the Software License Agreement (including all fees for
enhancements or modifications thereto provided pursuant to the Functional
Specifications or otherwise provided prior to the Acceptance Date under the
Software License Agreement); the Support Charges, as adjusted below, are
payable annually in advance.
After the first year of this Agreement, CMSI may annually increase the Support
Charges for any such renewal period over the Support Charges in effect for the
preceding year by a percentage not exceeding ten percent (10%).
The Support Charges will be increased by fifteen percent (15%) of the fees
charged for any requested Software customizations, modification, or Source Code
license which are provided to Licensee after the Effective Date of the Software
License Agreement; any such increases will first be implemented for the annual
billing period in which such customizations or modifications are first provided
to Licensee and will be subject to annual increases in the same manner as
provided in the preceding two paragraphs.
CREDIT MANAGEMENT SOLUTIONS, INC. --------------------------------
("CMSI") ("Licensee")
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Signature Signature
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Print Name/Title Print Name/Title
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Date Date
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