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EXHIBIT 10.54
Xxxxxx, Inc.
Support Agreement
Agreement, made as of the date written below by and between Xxxxxx, Inc.
("Vendor"), a New York corporation, with offices at XX Xxx 000, Xxxxxxxxx, Xxx
Xxxx 00000 01801, and XXXxxxx.xxx, Inc. ("Customer"), an Arizona corporation,
with offices at Suite 202, 0000 X. Xxxxxxxx, Xxxxxxxxxx XX 00000, for a
Services Support Agreement ("Schedule A") attached hereto and made a part
hereof. This Agreement specifies the terms and conditions under which each
related services which Xxxxxx Inc. will offer to the Customer during the term
of the Agreement.
The foregoing Support Agreement is granted upon the following additional terms
and conditions:
1. INITIAL LICENSE FEES AND PAYMENT TERMS
The Initial Fee for the Support Agreement is specified in Schedule A. All fees
and other charges under this Agreement, including the Initial Support Fee, will
be due and payable upon receipt of an invoice. If any invoice remains unpaid
thirty (30) days from the later of the invoice date or the date on which the
amount invoiced is due and payable, a finance charge at the rate of one and
one-half percent (1.5%) per month (but in no event more than the maximum
allowed by law) will be applied to the unpaid balance.
2. DESIGNATED COMPUTER EQUIPMENT AND SITE
Customer must identify the Support Agreement Designated Computer Equipment at
the Designated Site as specified in Schedule A.
3. DOCUMENTATION
Vendor will provide Customer with documentation (the "Documentation") as set
forth in Schedule A detailing specifications and methods of use for the
Software Products as modified based on the customers support requests.
4. BACK-UP AND REPLACEMENT COPIES OF MODIFICATIONS
Customer may make copies of the Software Products in accordance with Vendor's
then-current technical procedures but only as reasonably required to replace a
defective copy, for archive purposes, or for program error verification by
Customer. All modifications are the property of Xxxxxx, Inc.
5. SOURCE AVAILABILITY AND ACCESS
(a) Customer agrees to furnish to Xxxxxx Inc. a single copy of the source code
for certain specified Software Products for the purpose of making requested
changes by the customers product provided that (i) all Software products
have been installed in accordance with the customers license Agreement; and
(ii) the use does not violate any customer license agreements. The source
code remains the property of the customer and may be returned upon request
by the customer.
(b) (b) Upon receipt of said source code, Xxxxxx Inc. shall be subject to the
same restrictions and terms of ownership contained in the Agreement
respecting the Software Products.
(c) Upon modification of said source code by Customer in accordance with this
Agreement, notwithstanding the foregoing, Vendor agrees it will continue
to maintain Software Products if it has previously approved in writing any
modifications made by Customer. If a problem with Software Product arises
due to Customer modifications and Vendor must intervene to resolve the
problem, Customer will be responsible to pay time and materials for Vendor
efforts. Any modifications shall be owned by Vendor although customer will
have a perpetual royalty free license to use such modifications itself.
6. NONDISCLOSURE
(a) Customer agrees to protect the Software Products and any Confidential
Information (as hereinafter defined) from disclosure to persons other than
Customer's personnel (and any consultants retained by Customer, for the
period of their engagement) by taking all reasonable precautions not less
than Customer employs to protect its own Confidential Information.
(b) Vendor agrees not to use or disclose at any time any Confidential
Information (as hereinafter defined) concerning Customer; excepting use of
Confidential Information for Software Products demonstration purposes
only, which demonstration will not be performed by Vendor without
Customer's prior approval.
(c) "Confidential Information" shall mean all data or information not
generally known outside of the offices or operations of Customer or of
Vendor, whether prepared or developed by or for Vendor or Customer or
received by Vendor or Customer from any outside source, including without
limitation source code and related information, software specifications or
performance data, design and research results, as well as business or
marketing information.
7. VERIFICATION
On Vendor's reasonable request, but not more frequently than annually, Customer
will furnish Vendor with a written certification that the Software Products are
being used in accordance with the terms and conditions of this Agreement,
including but not limited to a listing of the site and make and model and serial
number of the server computer equipment on which each Software Product is being
used.
8. COPYRIGHT
Vendor acknowledges that Customer (or its licensors, if any) owns and will
retain all title, copyright, trademark and other proprietary rights in and to
the Software Products. Vendor agrees to take all necessary measures, including
use of a proper copyright notice whenever appropriate, to protect and preserve
Customer's or its licensor's copyright in the Software Products.
9. SUPPORT SERVICES
(a) Coverage. Support services (the "Support Services") will be provided by
Vendor as described herein for the Software Products.
(b) Definitions. The following words shall have the following meanings when
used herein:
(i) "Workaround" shall mean an alternative method to provide an
acceptable temporary solution to a reported problem with the
Software Products.
(ii) "Enhancement" shall mean a modification to the Software Products
which extends their functionality or adds new functions, exclusive
of Workarounds.
(iii) "Release" shall mean a mandatory new version of the Software
Products, or portions thereof, other than Enhancements, which
incorporate permanent solutions to reported problems with the
Software Products or which make the Software Products operate more
easily or efficiently.
(iv) "Delta Release" shall mean a nonmandatory new version of the
Software Products, or portions thereof, other than Enhancements,
which incorporate permanent solutions to
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Support Agreement Page 2 of 5
reported problems with the Software Products or which make the
Software Products operate more easily or efficiently.
(v) "System Manager" shall mean the individual, appointed by
Customer, who shall have attended Hardware System Operator
training and all Vendor training courses for the Software
Products, and who shall have primary responsibility for (A)
maintaining security of Vendor software and Customer data; (B)
archival backup of Software Products and Customer data as
required hereby; (C) assistance to Customer personnel using
Software Products; (D) consulting with Vendor for assistance as
provided herein; (E) installation of Enhancements and Releases,
and (F) submitting requests for Enhancements to the local User
Group.
(vi) "Alternate" shall mean that individual, appointed by Customer,
who shall have attended all Vendor training courses for the
Software Products, and who shall have secondary responsibility
after the System Manager for the duties described in subparagraph
(v) above.
(c) Term.
(i) Support Services will be provided commencing upon signing of the
contracts as outlined in exhibit A. Support Services will
continue to be provided to Customer for a period as outlined in
exhibit A. Support Services shall continue to be provided for
additional terms at Vendor's then-current fee schedule for
Support Services, by a letter of amendment extending the term and
fixing the fee.
(ii) Should Customer cancel Support Services pursuant to subparagraph
(i) above, and subsequently wish to reinstate such Services,
Vendor may, at its sole option, agree to do so provided that the
Customer agrees to pay a "Recertification" charge at Vendor's
prevailing rates.
(d) Fees.
(i) The initial fee for Support Services is set forth in Schedule A,
attached thereto and made part hereof.
(ii) If Customer fails to pay the fee for Support Services as provided
herein, Customer will not be entitled to receive any further
Support Services. In the event of Customer's failure to pay such
fee, at Vendor's option, Customer may reinstate Support Services
by paying all accumulated unpaid fees and charges.
(e) Support Services. Subject to Customer's continuing compliance with the
Customer Responsibilities set forth in Paragraph (f) herein, Vendor
shall provide the following Support Services during the effective term
hereof:
(i) Telephone Consultation. Telephone consultation with a Vendor
Applications Specialist will be available from 9:00 a.m. to 5:00
p.m., Mountain Time Zone. Vendor will use its best efforts to
respond to a request. Assistance will take the form of (A)
identification and resolution of the reported problem through
telephone instruction; (B) correction of an identified problem by
dialing in through Customer's modem; (C) implementation of a
Workaround pending production of a corrective Release; or (D) at
Vendor's sole option, furnishing Customer with new media. Vendor
reserves the right to limit telephone assistance to the System
Manager, Alternate, or other individual(s) designated by Customer
who are trained in particular modules of the Software Products.
Such other individuals shall have attended all V training courses
for Software Products in their area of responsibility.
(f) Customer Responsibilities.
(i) The provision of Support Services hereunder is expressly
conditioned on Customer's compliance with the following terms and
conditions and to those described elsewhere herein:
(a) Customer shall install or arrange for vendor installation
each Release provided by Vendor within ninety (90) days of
receipt.
(b) Customer shall have in effect at all times a hardware
operating systems software maintenance agreement and shall
promptly install all Hardware Releases for such operating
system. In addition, Customer shall have in effect a
hardware maintenance agreement with a nationally recognized
third-party hardware maintenance organization.
(c) Customer shall appoint a System Manager (Vendor recommends
that an Alternate also be appointed).
(d) Customer shall maintain an operational dial-up minimum 9600
baud compatible Xxxxx modem to be connected as reasonably
requested by Vendor for performance of Support Services
hereunder.
(e) Customer shall conduct a complete archival backup at least
once every week. (Vendor recommends a partial system backup
every business day and complete system backup once a week.)
(ii) Upon any failure of Customer to comply with the provisions of any
of paragraphs 11, Vendor shall have the right to terminate
Support Services hereunder immediately. Should Vendor, at its
sole discretion, elect to continue Support Services hereunder,
Customer will be subject to time and material charges to diagnose
and repair problems caused by Customer noncompliance.
10. LIMITATION OF LIABILITIES
The aggregate liability of Vendor or its licensors for any losses or damages
arising out of or in connection with any Software Product or related services,
whether the claim is in contract or otherwise, shall not exceed the amount paid
by Customer to Vendor during the preceding twelve (12) month period for such
Software Product or related services. Under no circumstances shall Vendor or its
licensors be liable for special, indirect, exemplary, incidental and/or
consequential damages, including, but not limited to, legal fees, loss of
profits or loss resulting from business disruption, even if Vendor has been
advised of the possibility of such damages.
11. CUSTOMER RESPONSIBILITIES
Customer is solely responsible for selection of the Software Products and
computer equipment appropriate to Customers needs, proper use of the Software
Products by qualified personnel, measures to prevent loss of data, and all other
matters under its control.
12. USE OF CUSTOMER'S NAME
Vendor may identify Customer as a Xxxxxx Support Services Vendor in advertising
and marketing materials, so long as nothing therein contains any representations
by Customer.
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13. TAXES
Fees and other charges under this Agreement do not include taxes. If Vendor is
required to pay or collect any sales, use, inventory, property, excise or other
taxes (whether federal, state or local) imposed with respect to this Agreement
or any license or Software Product, such taxes will be billed to and paid by
Customer. Taxes based on Vendor's net income, however, will be the sole
responsibility of Vendor.
14. DEFAULT
Vendor may immediately terminate this Agreement or any license granted
hereunder by written notice to Customer if Customer breaches any term or
condition of this Agreement, including but not limited to failure to pay when
due any fee hereunder, and does not remedy such breach within thirty (30) days
of written notice thereof from Vendor to Customer. This remedy shall not be an
exclusive remedy and shall be in addition to any other remedies which Vendor
may have under this Agreement or otherwise. Neither party will be considered in
breach of this Agreement for failure or delay of performance due to any Act of
God, war, civil disobedience, labor dispute, severe weather conditions,
shortage or fluctuation of electrical power, heat, light, or air conditioning,
and any other forces beyond its control; provided, that the party whose
performances is affected shall have notified the other immediately of the
existence of any such obstacles to performance.
15. INSOLVENCY
a) Vendor may terminate this Agreement by written notice to Customer, and may
regard Customer as in default of this Agreement, if Customer becomes insolvent,
makes a general assignment for the benefit of creditors, suffers or permits the
appointment of a receiver or is subject to any proceeding under any bankruptcy
or insolvency law whether domestic or foreign, or has liquidated, voluntarily
or otherwise.
16. ASSIGNMENT
Customer may not assign this Support Agreement, its rights or obligations under
this Agreement, or the Software Products without the prior written consent of
Vendor.
17. NOTICES
Notices shall be deemed delivered when received by, or deposited postage
prepaid in the United States mail addressed to, the parties as follows or such
other address as the parties may specify by notice given as provided herein:
To Customer:
XXXxxxx.Xxx, Inc.
Xxxxx 000
0000 X. Xxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
The address shown above.
To Vendor:
Xxxxxx, Inc.
XX Xxx 000
Xxxxxxxxx, XX 00000
5/21/96
18. ORDER OF PRECEDENCE
a) This Support Agreement and any attachments take precedence over Customer's
additional or different terms and conditions, to which notice of objection
is hereby given. Acceptance by Customer is limited to these terms and
conditions. Neither Vendor's commencement of performance nor delivery shall
be deemed or construed as acceptance of Customer's additional or different
terms and conditions.
b) No change or modification of any of the terms or conditions herein shall be
valid or binding on either party unless in writing and signed by an
authorized representative of each party.
19. OTHER
No failure of Vendor to enforce or take advantage of any provision hereof shall
constitute a waiver of the right subsequently to enforce or take advantage of
such provision. This Agreement may not be modified or amended, nor will the
rights of either party be deemed waived, except by an agreement in writing
signed by authorized representatives of Customer and Vendor. This Agreement
shall be deemed to be executed in Rhinebeck, New York, U.S.A., and shall be
construed and enforced in accordance with the laws of the State of New York. The
parties hereto consent to the exclusive jurisdiction of the courts of The State
of New York or the Federal Courts sitting in New York, New York in respect to
any action or proceeding arising out of or relating to this Agreement. Each
party hereto irrevocably waives, to the fullest extent it may effectively do so,
the defense of improper venue or any inconvenient forum to the maintenance of
such action or proceeding arising out of or relating to this Agreement,
including, but not limited to any action or proceeding relating to any purchase,
license, and/or use by Customer of hardware or related services acquired from
Vendor to be used in connection with the Software Products. If any provision of
this Agreement is invalid or unenforceable in any circumstances its application
in any other circumstances and the remaining provisions shall not be affected
thereby. The headings in this Agreement are for convenience of reference only
and shall not affect the interpretation or meaning of the Agreement.
20. EFFECTIVE AGREEMENT
This Agreement will become effective when it has been duly signed by an
authorized representative of Customer and by an executive officer or contract
officer of Vendor. Customer's signature below constitutes its acceptance of the
licenses granted hereunder and its agreement to be bound by all terms and
conditions stated above.
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CUSTOMER
By:
/s/ Xxxxxxx X. Will
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Authorized Representative
XXXXXXX X. WILL
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Printed Name
President & COO
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Title
Dated: 7/28/2000
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XXXXXX, INC.
By:
/s/ Xxxxxxxx Xxxxxx
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Authorized Representative
XXXXXXXX XXXXXX
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Printed Name
PRESIDENT
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Title
Dated: 7/28/2000
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Schedule A - Support Agreement Page 5 of 5
SECTION 1 - SUPPORT FEE AND TERMS
A) SUPPORT TERM
Start Date: 07/15/2000
End Date: 07/14/2001
B) SUPPORT FEE:
Annual fee $90,000 payable in 12 monthly installments of $7,500, on the 1st
of each month.
C) SUPPORT DESIGNATED SITE:
XXXxxxx.Xxx
Xxxxx 000
000 X. Xxxxxxxx
Xxxxxxxxxx, XX 00000
D) PRIMARY CONTACT:
Xxxxx Xxxxx
Secondary Contacts: Xxxxxxx Xxxxx/Xxxxxxx Will
E) SUPPORT DESIGNATED HARDWARE EQUIPMENT:
HP Servers
F) SUPPORT DESIGNATED SOFTWARE:
Multicom, Progress, UNIX
G) DOCUMENTATION TO BE SUPPLIED:
N/A
SECTION 2 - ON SITE SUPPORT
TERMS AND CONDITIONS: REASONABLE ON SITE SUPPORT CAN BE PROVIDED. ALL TRAVEL
EXPENSES ARE TO BE PAID BY THE CUSTOMER IN ADDITION TO THE MONTHLY SUPPORT RATE.
SECTION 3 - PROJECTS AND DEVELOPMENT COSTS
PROJECTS AND NEW DEVELOPMENT WILL BE QUOTE SEPARATELY FROM THIS AGREEMENT. ONCE
DEVELOPED, TESTED, AND ACCEPTED BY CUSTOMER, NEW PROJECT MAINTENANCE WILL FALL
UNDER THE TERMS AND CONDITIONS OF THIS SUPPORT AGREEMENT.
SECTION 4 - OVERTIME, HOLIDAYS, AND TRAVEL TIME
WITH THE CUSTOMER'S AUTHORIZATION, THE VENDOR MAY ELECT TO WORK OVER 8 HOURS
DURING A NORMAL BUSINESS DAY OR ON WEEKENDS OR HOLIDAYS. THE CUSTOMER WILL BE
BILLED FOR THOSE HOURS AT THE CURRENT RATES CHARGED BY THE VENDOR.
WEEKEND TRAVEL-TIME, WHEN REQUIRED BY THE CUSTOMER, WILL BE CHARGED TO THE
CUSTOMER AT 1/2 THE CURRENT DAILY RATES CHARGED BY THE VENDOR.
