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Exhibit 10.2
SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT
THIS SOFTWARE SUPPORT AND MAINTENANCE AGREEMENT ("Agreement") is
entered into as of _________, 1994, by and between TRENDWEST RESORTS, INC.
("Trendwest"), and SAGE SYSTEMS, INC. ("Sage").
RECITALS
A. Sage has developed a computer software program, as more particularly
described in Exhibit A (the "Software").
B. Trendwest has obtained a non-exclusive, restricted joint ownership
interest in the Software from Sage pursuant to a Software Transfer Agreement
dated as of ________, 1994. Trendwest utilizes the Software in its business
operations. From time to time, Trendwest may require maintenance services from
Sage, may request upgrades, modifications or improvements to the Software, and
may request technical documentation relating to the Software.
X. Xxxx is willing to provide such maintenance and support to
Trendwest, and Trendwest is willing to accept such services, on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Definitions.
1.1 "Improvement" means any change to the Software that results in a
material improvement in any major performance characteristic of the Software.
Improvements may be released as a "new version" of the Software.
1.2 "Modification" means any substantial change to the Software
corrects program errors ("bugs"), but has no effect or makes no change to the
performance characteristics of the Software. Modifications may be released as an
"upgrade" to the Software.
1.3 "Technical Documentation" means technical specifications and
performance descriptions (but not including confidential source code), together
with user documentation, all of which is sufficient to enable an experienced
computer analyst to use the Software without resort to assistance from Sage
customer support personnel.
2. Development of Modifications and Improvements
2.1 Modification. To the extent Sage creates, from time to time,
Modifications to the Software, Sage shall promptly transfer and otherwise
provide such Modifications to Trendwest for no additional charge or royalty
whatsoever.
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2.2 Improvements. To the extent Sage creates, from time to time,
Improvements to the Software, Sage shall promptly transfer and otherwise provide
such Improvements to Trendwest for no additional charge or royalty in excess of
the consideration required to be paid to Sage under this Agreement.
2.3 Support. Sage shall provide to Trendwest, upon request and at no
additional charge in excess of the consideration required to be paid to Sage
under this Agreement, reasonable customer service and other technical assistance
for the purpose of operating and fully utilizing the Software. Such assistance
shall include the provision of reasonable engineering and technical information
and support by telephone, and in person access to Sage's engineering personnel
at Sage's Bellevue, Washington office during normal business hours.
2.4 Technical Documentation. Sage shall use its commercially
reasonable best efforts to develop, draft and provide Trendwest, at no
additional charge in excess of the consideration required to be paid to Sage
under this Agreement, with copies of its Technical Documentation as revised and
updated from time to time.
3. Prices
3.1 Price for Improvements and Support. For and in consideration of
the services provided by Sage pursuant to Sections 2.2 and 2.3, Trendwest shall
pay Sage a monthly retainer of $2,000. Upon Trendwest's pre-approval, if, during
any one month, work performed by Sage solely on Improvements requested by
Trendwest exceeds 10 hours, Trendwest will pay Sage $50.00 per hour for each
hour worked during such month in excess of the initial 10 hours. Upon providing
Trendwest each such Improvement, Sage shall be deemed to have granted to
Trendwest a non-exclusive, restricted joint ownership interest in such
Improvement, consistent with the Software Transfer Agreement.
3.2 Price for Technical Documentation. For and in consideration of the
services provided by Sage pursuant to Section 4, Trendwest shall pay Sage a
total of $12,000 plus tax. Payment shall be made in monthly payments of $ 1,000,
plus tax. Sage acknowledges that Trendwest has already paid Sage, through July
1994, a total of $7,574 under this Section 5.2.
3.3 No Charge for Modifications. Sage shall provide any and all
Modifications to Trendwest without charge, and any and all such transfers with
respect to Modifications shall be deemed made consistent with the Software
Transfer Agreement.
(ii) Sage possesses all rights necessary to sell and transfer to
Trendwest any and all Modifications, Improvements and Technical Documentation,
and Sage rightfully holds all third party intellectual property rights (if any)
that may be from time to time incorporated in the Modifications, Improvements
and Technical Documentation.
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4.2 Intellectual Property Indemnification. Sage shall defend, indemnify
and hold harmless Trendwest from all claims of any kind whatsoever that arise
out of any infringement or claim of infringement of any intellectual property
rights. In the event any part of the Software, Modifications, Improvements or
Technical Documentation (collectively, the "Intellectual Property"), or the use
or operation thereof, becomes or in the opinion of Sage is likely to become, the
subject of a claim of infringement of a United States patent or copyright, Sage
at its option and expense either (A) shall procure for Trendwest the right to
continue using such part of the Intellectual Property, or (B) shall replace or
modify the same so that such part of the Intellectual Property becomes
non-infringing.
5. Term and Termination
5.1 Term. The term of this Agreement shall be for five years, but shall
be subject to the termination provisions of Section 7.2.
5.2 Termination. After the initial term of this Agreement, either party
may terminate this Agreement, without cause, upon ninety (90) days prior written
notice.
6. Miscellaneous
6.1 Complete Agreement; Amendment. Each party acknowledges that it has
read this Agreement, and the attached exhibits, it understands it, and agrees to
be bound by its terms, and further agrees that this is the complete and
exclusive statement of the Agreement between the parties. This Agreement, and
exhibits thereto, may not be modified or altered except by written instrument
duly executed by both parties Agreement between.
6.2 Governing Law. This Agreement and performance hereunder shall be
governed by the laws of the state of Washington.
6.3 Severability. If any provision of this Agreement is invalid under
any applicable statute or rule of law, it is to that extent only to be deemed
omitted.
6.4 Assignment. Trendwest may not assign, without the prior written
consent of Sage, this Agreement to any person or entity, in whole or in part,
which consent Sage may not unreasonably withhold; provided, however, that any
merge, consolidation, share exchange, sale of assets, or other transfer of
interest not in the ordinary course of Trendwest's business shall not require
the consent of Sage.
6.5 Enforcement Costs. To the extent that any party incurs expenses in
the enforcement of this Agreement, the substantially prevailing party shall be
entitled to collection attorney and experts' fees and expenses.
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6.6 No Waiver. The waiver or failure of either party to exercise in any
respect any right provided for herein shall not be deemed a waiver of any
further right hereunder.
6.6 Notice. All notices required or permitted to be given by one party
to the other under this Agreement shall be sufficient if sent by certified mail,
return receipt requested, to the parties at the respective addresses set forth
herein or to such other address as the party to receive notice has designated by
notice to the other party.
SAGE SYSTEMS, INC. TRENDWEST RESORTS, INC.
By_______________________ By__________________________
ADDRESS: ADDRESS:
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List of Exhibits
Exhibits Description
Exhibit A Description of Software
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INTEROFFICE MEMO
To: Xxxxxx Xxxxxxxx
From: Xxx Xxxxxxx
Subject: Software Agreement
Date: December 1, 1994
CC: Al Xxxxxxxx, Xxxx Sites
SOFTWARE NAME: TIME/CAMP
List of Modules.
1. Reservations
A. Control of inventory at multiple resorts.
B. Awards and tracks usage by points.
C. Monitors and controls direct exchange.
D. Monitors and enforces by-laws for owner use.
E. Invoicing for other owner charges.
2. Owner Processing
A. Contract Processing.
B. Cash Management and Pending.
C. Sales commissions.
D. Accounts Receivable.
E. Upgrades
3. Marketing
A. Prospect processing.
B. Tour processing.
C. Premium control.
D. Owner Referral.
E. Outbound Calling.
4. Sales
A. Tour Registration.
B. Salesman performance reporting.
C. Site performance reporting.
D. Program performance reporting.
