1
EXHIBIT 10.21
FORM OF PREMIUMCARE MAINTENANCE AND
TECHNICAL SUPPORT AGREEMENT
SALESLOGIX(R) CORPORATION
PREMIUMCARE MAINTENANCE AND TECHNICAL SUPPORT AGREEMENT
This PremiumCare Maintenance and Technical Support Agreement
("Agreement") is dated as of ______________,199 by and between SalesLogix
Corporation, a Delaware corporation ("SalesLogix"), with offices at 0000 Xxxxx
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, and , with offices at
("Licensee").
1. DEFINITIONS AND SPECIFICATIONS
The terms "Software," and "Documentation" shall have the meanings set
forth in the License Agreement.
"Anniversary Date" shall refer to each anniversary of the Commencement
Date.
"Commencement Date" shall refer to date the Software was first
delivered to Licensee by either SalesLogix or a SalesLogix Business Partner,
according to SalesLogix's records.
"License Agreement" shall refer to the International or Domestic
Multi-User License And Warranty Agreement received by Licensee with the package
containing the SalesLogix Software purchased by Licensee.
"Initial Support Term" shall mean the 12 month period commencing on the
Commencement Date.
"Renewal Term" shall mean any 12 month maintenance period subsequent to
the Initial Support Term and ending on an Anniversary Date.
"Maintenance Support" shall mean those maintenance services described
in detail on Schedule A to this Agreement.
"Technical Support" shall mean those maintenance services described in
detail on Schedule B to this Agreement.
"Support" when used without a modifier shall mean both Maintenance
Support and Technical Support.
2. AFFIRMATION OF LICENSE TERMS
Licensee hereby certifies that it has read, agrees with and hereby
reaffirms each of the terms and conditions contained in the License Agreement.
3. MAINTENANCE AND TECHNICAL SUPPORT
During the Initial Support Term and any applicable Renewal Term,
SalesLogix shall provide to Licensee the Maintenance Support described on
Schedule A and the Technical Support described on Schedule B. SalesLogix's
obligations under this Section 3 with respect to a Renewal Term are contingent
upon Licensee timely making the payments required by Section 4.1.
4. MAINTENANCE FEES AND PAYMENT; RENEWAL OF MAINTENANCE SUPPORT
4.1 SUPPORT FEES AND RENEWAL. Licensee in connection with purchasing a
license to the Software
SalesLogix Combined Support
Agreement (short form)
Revision Date: July 1, 1998 1
2
has already paid separately for Maintenance Support and Technical Support during
the Initial Support Term. Approximately 60 days prior to the expiration of the
Initial Support Term (and, if Maintenance Support is renewed, approximately 60
days prior to expiration of each Renewal Term thereafter) SalesLogix will
invoice Licensee for both: (i) Maintenance Support for the upcoming Renewal
Term, payable 12 months in advance, at a fee equal to ten percent (10%) of
SalesLogix's list price for the supported Software as of the effective date of
the relevant License Agreement; and (ii) Technical Support for the upcoming
Renewal Term, payable 12 months in advance, at a fee equal to ten percent (10%)
of SalesLogix's list price for the supported Software as of the effective date
of the relevant License Agreement. Licensee may accept Maintenance Support and
Technical Support for the upcoming Renewal Term by paying SalesLogix's invoice
in U.S. Dollars. If Licensee fails to pay such invoice within 30 days after the
commencement of the Renewal Term, SalesLogix may, notwithstanding Section 6 and
without further notice to Licensee, terminate Support and treat this Agreement
as terminated.
4.2 TAXES. Support fees and other charges set forth in this Agreement
do not include applicable taxes. In addition to the fees and charges due
SalesLogix under this Agreement, Licensee shall remain liable for and shall pay
all local, state, and federal sales, use, excise, personal property or other
similar taxes or duties, and all other taxes, which may now or hereafter be
imposed upon this Agreement or possession or use of the Software or
Documentation, excluding taxes based on SalesLogix's income.
5. WARRANTIES/LIMITATIONS OF LIABILITY
5.1 LIMITED PERFORMANCE WARRANTY. SalesLogix warrants that it will use
its best efforts to ensure that any Support it provides will be performed in a
professional and workmanlike manner. SalesLogix agrees to use reasonable efforts
to correct any error or defect in its provision of Support under this Agreement.
The foregoing warranty and remedy do not expand or extend any limited warranties
relating to the Software set forth in the relevant License Agreement. THE
PROVISIONS OF THIS SECTION SET FORTH THE ENTIRE LIABILITY OF SALESLOGIX AND THE
SOLE REMEDIES OF LICENSEE WITH RESPECT TO SALESLOGIX'S BREACH OF ITS OBLIGATIONS
UNDER THIS AGREEMENT.
5.2 DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN
THIS SECTION, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND
GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR
WRITTEN STATEMENTS OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY, TITLE, THE CONDITION OF ANY PRODUCT OR SERVICES, OR FITNESS FOR
A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
5.3 NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL SALESLOGIX OR ITS SUPPLIERS BE LIABLE TO
LICENSEE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE,
OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER
PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE
THE SOFTWARE, EVEN IF SALESLOGIX HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
5.4 ADDITIONAL LIMITATION OF LIABILITY. IN NO EVENT SHALL SALESLOGIX'S
TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND,
WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
BREACH OF WARRANTY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE FOR
THE MAINTENANCE SUPPORT PROVIDED UNDER THIS AGREEMENT.
6. TERMINATION
If either party defaults in performing any material obligations
required under this Agreement, the non-defaulting party may give written notice
of its intention to terminate this Agreement, describing in reasonable detail
the default. If the defaulting party fails to remedy such material default
within thirty (30) days following such written notice, or if such default is not
capable of cure within such thirty (30)-day period, and the defaulting party
SalesLogix Combined Support
Agreement (short form)
Revision Date: July 1, 1998 2
3
fails to commence cure procedures within such thirty (30)-day period and
diligently prosecute such procedures until the default is cured, then the
nondefaulting party may terminate this Agreement.
7. GENERAL
7.1 ENTIRE AGREEMENT. This Agreement and the License Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof, and all prior agreements, representations, and statements with
respect to such subject matter are superseded hereby. This Agreement may not be
altered, modified, amended, changed, rescinded or discharged in whole or in
part, except by written agreement executed by both Licensee and SalesLogix.
7.2 ASSIGNMENT. This Agreement may not be assigned without the prior
written consent from SalesLogix and any attempt to do so without permission
shall be void.
7.3 FORCE MAJEURE. Notwithstanding anything to the contrary in this
Agreement, no default, delay or failure to perform on the part of either party
shall be considered a breach of this Agreement (other than nonpayment of money
or breach of confidentiality provisions) if such default, delay or failure to
perform is shown to be due entirely to causes beyond reasonable control of the
party charged with a default, including, but not limited to, causes such as
strikes, lock-outs or other labor disputes, riots, civil disturbances, actions
or inactions of governmental authorities or suppliers, epidemics, war,
embargoes, severe weather, fire, earthquakes, acts of God or the public enemy or
nuclear disasters.
7.4 GOVERNING LAW. The validity and performance of this Agreement shall
be governed by and construed in accordance with the laws of the State of
Arizona, excluding that body of law applicable to choice of law.
7.5 ATTORNEYS' FEES. In any litigation or arbitration between parties,
the prevailing party shall be entitled to reasonable attorneys' fees and all
costs of proceedings, experts, investigations and related expenses, incurred in
enforcing, or pursuing other remedies with respect to, this Agreement, provided
that notice and an opportunity to cure pursuant to Section 6 was provided, to
the extent applicable.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
SALESLOGIX, CORPORATION,
a Delaware corporation LICENSEE
By: By:
-------------------------------- -----------------------------
Print Name: Print Name:
------------------------ --------------------
Title: Title:
--------------------------- --------------------------
SalesLogix Corporation "Licensee"
0000 Xxxxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 Site Address
Xxxxxxxxxx, XX 00000 --------------------------
--------------------------
SalesLogix Combined Support
Agreement (short form)
Revision Date: July 1, 1998 3
4
SCHEDULE A -- PREMIUMCARE MAINTENANCE SUPPORT
This Schedule describes the terms and conditions relating to
PremiumCare Maintenance Support that SalesLogix will provide to Licensee during
the Initial Support Term and any Renewal Terms. The Maintenance Support
described in this Schedule does not expand on or change the Software warranty
provisions set forth in the License Agreement.
SALESLOGIX PRODUCT UPDATES: From time to time SalesLogix may develop
permanent fixes or solutions to known problems or bugs in the Software and
incorporate them into a formal "Update" to the Software. If Licensee is
receiving Maintenance Support from SalesLogix on the general release date for an
Update, SalesLogix will provide the Licensee with the Update and related
Documentation, both at no additional charge to the Licensee.
SALESLOGIX PRODUCT UPGRADES: From time to time SalesLogix may release
to its end user licensees a major revision to the Software which adds new and
different functions or capabilities to the Software ("Upgrade"). If Licensee is
receiving Maintenance Support from SalesLogix on the general release date for an
Upgrade, SalesLogix will provide the Licensee with the Upgrade or Release and
related Documentation, both at no additional charge to the Licensee.
SalesLogix Combined Support
Agreement (short form)
Revision Date: July 1, 1998 1
5
SCHEDULE B -- PREMIUMCARE TECHNICAL SUPPORT
This Schedule describes the terms and conditions relating to
PremiumCare Technical Support that SalesLogix will provide to Licensee during
the Initial Support Term and any Renewal Terms. The Technical Support described
in this Schedule does not expand on or change the Software warranty provisions
set forth in the License Agreement.
A. TECHNICAL SERVICES
For the purposes of receiving support from and communicating with
SalesLogix with respect to support issues, Licensee shall designate no more than
one "Designated Licensee Contact" for each 50 licensed users of the Software.
Requests for telephone or other assistance shall come only from a Designated
Licensee Contact. In the event that a specific Designated Licensee Contact
leaves Licensee's employ, Licensee may designate a replacement Designated
Licensee Contact.
SalesLogix offers the following Technical Services for the Software:
TELEPHONE AND ELECTRONIC MAIL ASSISTANCE: Licensee's system manager
will be given the telephone number for SalesLogix's support line and will be
entitled to contact the support line during normal operating hours (between 6:00
a.m. and 6:00 p.m. U.S. Mountain Standard Time) on regular business days,
excluding SalesLogix holidays, to consult with SalesLogix technical analysts
concerning problem resolution, bug reporting, documentation clarification, and
general technical guidance. Licensee may also contact SalesLogix through
electronic mail. SalesLogix will assist the system manager in utilizing the
Software and in identifying and providing workarounds, if possible, for standard
component product problems. Assistance may include communicating via modem from
SalesLogix's facilities or through an electronic bulletin board.
WEB SITE SUPPORT: Online support is available 24 hours a day, offering
Licensee the ability to resolve its own problems with access to SalesLogix's
most current information. Licensee will need to enter its designated user name
and key number to gain access to the technical support areas on SalesLogix's web
site. SalesLogix's technical support areas allow the Licensee to: (i) search an
up-to-date knowledge base of technical support information, technical tips and
featured functions; (ii) access answers to frequently asked questions; (iii)
access current software releases and documentation; and (iv) send e-mail
inquiries to SalesLogix (current response time is between 3-5 days).
SOFTWARE PROBLEM REPORTING: Licensee may submit to SalesLogix requests
identifying potential problems in the Software. Requests should be in writing
and directed to SalesLogix by mail, courier, e-mail or by FAX. SalesLogix
retains the right to determine the final disposition of all requests, and will
inform Licensee of the disposition of each request. If SalesLogix decides in its
sole judgment to act upon a request, it will do so by providing a Bug Fix as
described below.
SERVICE PACKS: SalesLogix will use reasonable efforts to provide an
avoidance procedure for and a correction of each material defect in the Software
that caused the Software not to conform in all material respects with the
SalesLogix Documentation (a "Service Pack").
B. EXCLUSIONS FROM TECHNICAL SERVICES
SalesLogix shall have no support obligations with respect to any
hardware or software product other than the Software ("Nonqualified Products").
If SalesLogix provides support services for a problem caused by a Nonqualified
Product, or if SalesLogix's service efforts are increased as a result of a
Nonqualified Product, SalesLogix will charge time and materials for extra
service at its then current published rates for custom software services. If, in
SalesLogix's opinion, performance of Technical Support is made more difficult or
impaired because of Nonqualified Products, SalesLogix shall so notify Licensee,
and Licensee will immediately remove the Nonqualified Product at its own risk
and expense during any efforts to render Technical Support under this Agreement.
Licensee shall be solely responsible for the compatibility and functioning of
Nonqualified Products with the Software.
SalesLogix Combined Support
Agreement (short form)
Revision Date: July 1, 1998 1
6
C. LICENSEE RESPONSIBILITIES
In connection with SalesLogix's provision of Technical Support as
described in this Exhibit, Licensee acknowledges that Licensee has the
responsibility to do each of the following: (1) maintain the designated computer
system and associated peripheral equipment in good working order in accordance
with the manufacturers' specifications, and insure that any problems reported to
SalesLogix are not due to hardware malfunction; (2) maintain the designated
computer system at the latest code revision level deemed necessary by SalesLogix
for proper operation of the Software; (3) supply SalesLogix with access to and
use of all information and facilities determined to be necessary by SalesLogix
to render the Technical Support described in this Exhibit; (4) perform any tests
or procedures recommended by SalesLogix for the purpose of identifying and/or
resolving any problems; (5) maintain a procedure external to the Software for
reconstruction of lost or altered files, data, or programs to the extent deemed
necessary by Licensee; (6) at all times follow routine operator procedures as
specified in the Documentation; (7) remain solely responsible at all times for
the safeguarding of Licensee's proprietary, confidential, and classified
information; and (8) ensure that the designated computer system is isolated from
any process links or anything else that could cause harm before requesting or
receiving remote support assistance.
SalesLogix Combined Support
Agreement (short form)
Revision Date: July 1, 1998 2
