RCS has granted End User a non-exclusive,
non-transferable license to use certain computer programs and materials,
all as more fully set forth in the End User License Agreement.
Now, therefore, RCS and the End User
hereby agree to the following terms and conditions providing for software
support service to be performed by RCS, with respect to the LICENSED SOFTWARE
covered by the End User License Agreement.
For the purpose of this Agreement the
following are defined terms:
A.
The term "LICENSED SOFTWARE" shall mean a licensed data processing program consisting of a series of
instructions or statements in machine readable form, which is manufactured and provided
by RCS.
B.
The term "LICENSED SOFTWARE" shall mean software (as defined
in "A" above), user manuals, support materials, descriptive
materials, documentation, and all materials related to the LICENSED
SOFTWARE and provided for use in
connection with the LICENSED SOFTWARE and support services.
C.
The term "Updates" shall mean program logic and documentation
changes and improvements to correct known material defects and maintain the
operational quality of the LICENSED SOFTWARE as defined herein.
D.
The term "Enhancement" shall mean any software program,
any part thereof, or any materials not
included in the LICENSED SOFTWARE at the time of execution of the original End
User License Agreement between RCS and End User, that is developed for the
LICENSED SOFTWARE. Enhancements will
generally involve an added function to the LICENSED SOFTWARE, and may be
separately supported. Enhancements are provided at the sole discretion of RCS
and may be separately priced from the LICENSED SOFTWARE.
E.
The term(s) "material defect", "material error",
"material malfunction", or "bugs" shall be hereinafter
referred to as "material defect"
and shall mean a design fault in the software where a particular
function which was supposed to occur, cannot, due to a design fault, as defined
in the End User License Agreement.
1. PROGRAM SUPPORT SERVICES: During the term of this
Agreement, RCS will provide the program support services specified in the
following sections of this article.
Where End User requests support
services or other services in addition to those provided in this Agreement, at
RCS's sole discretion, RCS may respond to such request, and End User shall then
be charged RCS's current time and materials rates for such service.
A.
RCS will maintain
End User's LICENSED SOFTWARE so that it operates
in conformity with published RCS Program Specifications.
RCS shall use its best efforts to correct reproducible material defects
after written notification by End User,
as set forth in the End User License Agreement, and supply Licensed End
Users with Updates to the LICENSED SOFTWARE as they are released by RCS.
B.
RCS will begin a review of any
problem discovered by End User in using the LICENSED SOFTWARE
after written notification of the problem is received by RCS from End
User. In the event the problem is caused by a material defect of the LICENSED SOFTWARE, and such error or defect
has not been caused by abuse or misuse,
electrical, hardware or Operating System malfunction or failure, operator or
End User error, or unauthorized modification or service to the LICENSED SOFTWARE, or any other reason
beyond the control of RCS, RCS will work diligently to correct the error or
malfunction in such a manner as will
minimize any inconveniences, providing an alternate processing method
("work around") whenever applicable.
C.
Where End User notifies RCS of a
problem and after investigation by RCS it is
determined by RCS that the problem is due to End User error in the use of the Licensed Program(s)
or some other outside cause (including but not limited to electrical,
hardware or Operating System malfunction or failure), as opposed
to a material defect in the LICENSED
SOFTWARE itself, at End User's request and at RCS's discretion, such error or
malfunction shall be investigated and RCS will use its best
efforts to assist End User in
correcting the problem. End User
shall pay RCS's
then current time and materials
rates for all service provided.
D.
RCS's support responsibilities shall include, but not be limited to, the
exercise of good faith or best efforts
to correct any material defects of which RCS becomes aware, and to notify End User of the nature of such
errors.
E.
Any change, modification, enhancement, service or support to the
LICENSED SOFTWARE by End User or any third party without RCS's express written
authorization shall be an unauthorized change or service and RCS reserves the
right to void this Agreement or, at the sole discretion of RCS, to provide any
maintenance or corrective work that results therefrom at the sole cost of End
User at the current time and materials rate for all service provided by RCS.
2:
TELEPHONE AND FAX ASSISTANCE:
For the term of this Agreement,
End User shall be entitled to use RCS's telephone and fax assistance service. This service offers a source of information
for End User to use in solving immediate problems as well as on-going
LICENSED SOFTWARE support. The service shall be available to End User at no
cost beyond the Software Support Fee, provided the frequency and length of
calls is reasonable. This service
shall not be used by End User in lieu of training courses. The service shall be available between 9:00
a.m. and 5:00 p.m. Central Standard Time, Monday through Friday, except normal
business holidays observed by RCS.
Hours and days of service are subject to change at anytime without
notice. Service provided outside normal service time shall be charged to End
User at RCS current time and material rates.
3:
ON-SITE ASSISTANCE:
Assistance by RCS at End User's Location may be made available to End
User in applying services under this Agreement, at the sole discretion of RCS.
On-site assistance shall be charged to End User at RCS current rates plus
expenses, except when otherwise agreed upon in writing by RCS.
4:
ENHANCEMENTS: End User
may be advised of all Enhancements made in the LICENSED SOFTWARE by RCS during
the term of this Agreement.
Enhancements may be offered to End User from time to time at enhancement
fees set by RCS. Such Enhancements will
become part of the LICENSED SOFTWARE, and shall be supported as such by RCS.
5:
ADDITIONAL TRAINING:
Training in the use of the Licensed Software may be provided at RCS's
discretion at RCS current rates for training and according to RCS
policies. After completion of the
initial training period following original installation of the LICENSED
SOFTWARE on End User's computer system, RCS will make available for End User's personnel enrollment in RCS training
courses at RCS current fees and terms for such courses.
6:
END USER SUPPORT: End
User shall provide RCS necessary and reasonable on- site access or modem
access, without charge, to the LICENSED
SOFTWARE and related computing equipment so as to enable RCS to provide the
support services as set forth in this Agreement. End User shall make available to RCS, at no charge, all facilities, personnel and service reasonably required by RCS for
the performance of its obligations under this Agreement.
End User shall promptly provide RCS
with examples of the suspected error or malfunction and any supporting
materials that would reasonably enable RCS to identify suspected problems or
errors.
End User shall be responsible for
maintaining current archival (backup) copies of the data files which are stored
and/or maintained on the computer hard disk or diskette. End User shall maintain the proper
environment for the computer "System", as specified in the End User
License Agreement.
RCS SHALL NOT BE LIABLE FOR ANY
DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY OR OF ANY OTHER NATURE, RESULTING FROM OR ARISING OUT OF THE PARTIAL
OR TOTAL LOSS OR DESTRUCTION OF DATA.
IT SHALL BE THE SOLE RESPONSIBILITY OF END USER TO MAINTAIN CURRENT
ARCHIVAL (BACKUP) COPIES OF DATA AND/OR SOFTWARE PROGRAMS IN AN APPROPRIATE
STORAGE MEDIUM.
7:
PAYMENT: The Software
Support Fee is subject to change by RCS at each annual anniversary of the
effective date of the software installation upon at least thirty (30) days
notice by RCS to End User.
The Software Support Fee shall be
invoiced on an advance billing basis
and be due on the same day of each month for the duration of this Agreement.
RCS reserves the right to refuse
Software Support Services when any charges to End User remain unpaid after ten
(10) days from invoice date. RCS agrees
to reinstate Software Support Services promptly upon payment of all past due
charges plus any late fees.
Invoices unpaid by End User beyond
ten (10) days of the due date shall
be subject to a monthly finance charge of 1.5% on the unpaid
balance, which amount shall be added to the Software Support Fee due and owing
to RCS. In addition, a late fee of
$15.00 per month shall be charged for each monthly billing period showing an
unpaid balance from the previous month.
8:
ADDITIONAL CHARGES: RCS
shall be reimbursed by End User for all reasonable expenses incurred by RCS in
the performance of this Agreement, including, but not limited to, travel
expenses of RCS's employees while away from RCS's principal offices, long
distance telephone calls, food and lodging, reasonable computer time, and
supplies. All travel by RCS personnel
shall be in accordance with RCS standard policy governing travel and business
expenses. End User shall also reimburse
RCS for any and all special or unusual expenses incurred at End User's
request. End User shall reimburse
charges according to RCS current terms.
9:
TERM: Performance of this
Agreement and any Supplementary Agreements shall commence from the date of
execution and shall remain in effect for a term of one (1) year.
At the end of the initial term or any
subsequent renewal period, this Agreement shall be automatically renewed for an
additional one (1) year term, as long
as RCS is still offering support on the LICENSED SOFTWARE,
unless written notice by either party
of intention not to renew is given to the other party at least thirty (30) days
prior to the expiration of the then current term of the Agreement. Termination
of support for less than all of the LICENSED SOFTWARE listed in attached
Schedule A shall have no effect on this Agreement.
10:
TERMINATION: Either party
may terminate this Agreement at any time upon thirty (30) days prior written
notice to the other party. Termination
shall be effective at the end of the then current support period. End User shall pay any accrued charges
incurred prior to the date of termination.
RCS shall
be
entitled to receive and
shall not refund any Software Support Fees or other amounts received by RCS under this
Agreement for any term during which End User elects termination. Should the underlying End User License
Agreement be terminated, then this Software Support Agreement shall also be
terminated.
RCS shall have the right to terminate
this Agreement when End User fails to pay charges due within fifteen (15) days
of notice and demand. RCS shall
thereafter reinstate services under this Agreement only upon payment of all
past due charges plus any additional late fees.
RCS shall have the right to terminate this Agreement if End
User fails to implement all changes, corrections, and updates to the
LICENSED SOFTWARE within five (5) days of receipt of notification.
11:
WARRANTIES: RCS DOES NOT WARRANT THAT THE OPERATION OF THE LICENSED
SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
THERE ARE NO WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY AND
SPECIFICALLY DISCLAIMED. END USER
AGREES THAT REGARDLESS OF THE FORM OF ANY CLAIM, THE LIABILITY OF RCS FOR ANY
DAMAGES TO END USER OR ANY OTHER PERSON, FIRM, CORPORATION, OR ENTITY, SHALL BE
LIMITED TO REPAIR OR REPLACEMENT, AND SHALL NOT EXCEED THE SOFTWARE SUPPORT
FEES PAID TO RCS UNDER THE CURRENT TERM OF THIS AGREEMENT, AND SHALL BE END
USER'S EXCLUSIVE RECOVERY. IN NO EVENT,
INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY, NEGLIGENCE, OR OTHER TORT OR
CONTRACT CLAIM, SHALL RCS BE RESPONSIBLE FOR ANY DIRECT, INDIRECT, GENERAL,
SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES OR LOST PROFITS, OR INTERRUPTION OF
BUSINESS, EVEN IF RCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR
EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO END USER. IN NO EVENT SHALL RCS BE LIABLE FOR ANY DELAY IN PERFORMANCE
DIRECTLY OR INDIRECTLY DUE TO ACTS OF END USER, ITS AGENTS, EMPLOYEES, OR
SUBCONTRACTORS, OR ANY CAUSE BEYOND THE CONTROL OF RCS.
END USER AGREES THAT RCS'S
LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID FOR
SERVICES DURING THE CURRENT TERM, AND THIS SHALL BE END USER'S EXCLUSIVE
RECOVERY. END USER FURTHER AGREES THAT
RCS SHALL IN NO EVENT BE LIABLE FOR BUSINESS INTERRUPTION, LOSS OF PROFIT,
GOODWILL, OR OTHER SPECIAL, INCIDENTAL, GENERAL, OR CONSEQUENTIAL DAMAGES
SUFFERED BY END USER OR OTHERS AS A RESULT OF THE USE BY END USER OF THE
LICENSED SOFTWARE OR SERVICES PROVIDED BY RCS UNDER THIS AGREEMENT. IN NO EVENT SHALL RCS BE LIABLE FOR ANY
DELAY IN PERFORMANCE DIRECTLY OR INDIRECTLY DUE TO ACTS OF END USER, ITS
AGENTS, EMPLOYEES, OR SUBCONTRACTORS, OR ANY CAUSES BEYOND RCS'S CONTROL.
12:
DEFAULT: End User shall
be in default of this Agreement if it fails to pay any amount due, including
but not limited to the Software Support Fee, within ten (10) days after the
due date or if End User is in material breach of this Agreement and fails to
cure such breach to RCS's satisfaction within fifteen (15) days after RCS's written
notice of material breach.
In the event of End User's default,
RCS may without further notice terminate any and all services provided under
this Agreement.
13:
PROPRIETARY RIGHTS: The
LICENSED SOFTWARE and Materials are, and shall at all times remain, the
exclusive property of RCS and/or the program author, and End User shall have no
right, title, or interest therein, except as expressly set forth in this
Agreement and the underlying End User License Agreement.
The Licensed Programs and
Materials contain copyrighted material protected by United States Copyright
laws and other applicable laws.
Violation of those laws may result in criminal and/or civil prosecution.
The products offered by RIVER CITIES
SOFTWARE are of a standard format, and RCS does not do any customized
programming unless agreed to in writing and signed by RCS. RCS products use standardized check,
invoice, statement, purchase order and other forms.
14:
CONFIDENTIAL INFORMATION:
RCS may disclose to End User or End User may otherwise learn of
information belonging to RCS including trade secrets, formulae, proprietary
programs, technical know-how, methods of operation, and other materials
which have been developed at great time and expense by RCS, are the valuable
assets of RCS, and are confidential in nature.
Any such information shall be kept strictly confidential by End User.
In order to fulfill End User's
obligations under this Agreement, End User shall take specific action to
safeguard RCS's confidential information, including restricting access to such
information to those of its employees who have need of it in order to perform
their normal business activities.
Any data or materials furnished by
End User for use by RCS in connection with the support services provided under
this Agreement will be held in confidence by RCS.
End User obligations under sections
thirteen (13) and fourteen (14) shall survive termination of this Agreement.
15:
GOVERNING LAWS: This
Software Support Agreement is to be
governed and interpreted in accordance with the laws of the State of Texas. If
any term of this Agreement shall be
declared by final adjudication to be illegal or contrary to the public policy
of the State of Texas, it shall not affect the validity of any other term or
provision of this Software Support Agreement.
Any action against RCS under this
Agreement must be commenced within one (1) year after such cause of action
arises.
16: NON ASSIGNMENT: Neither this Agreement nor any rights or
obligations hereunder may be assigned or transferred by End User without the
written consent of RCS. Such assignment shall not relieve End User of its
obligations under this agreement.
Notwithstanding the above, nothing in this Agreement shall prevent RCS
from assigning this Agreement to the subsidiaries or affiliates of RCS.
17:
MISCELLANEOUS: RCS shall
not be liable because of a delay or failure to perform hereunder when such
delay or failure is due to an Act of
God, nature, or a federal, state or local government agency, war, civil
disturbance, labor disputes or shortages, electrical or mechanical breakdowns
(including but not limited to hardware or Operating System malfunction or
failure), operator or End User error, failure of End User to maintain current
archival (backup) copies and/or computer system environment, strikes,
manufacturer delay, delay or default of carriers, and/or any other cause beyond RCS's control.
18:
CONSTRUCTION: This
Agreement and its incorporated Schedules constitute the entire agreement
between RCS and End User superseding all previous communications and
negotiations, whether written or oral.
The terms and conditions of this Agreement shall prevail over any
additional or conflicting terms of any service order or memorandum submitted to
RCS by End User. Except as otherwise
provided in this Agreement, no modification of this Agreement shall be binding
unless it is in writing and signed by RCS.
The paragraph headings contained in
this agreement are inserted for identification purposes only and shall not be
deemed a part of this agreement for purposes of interpretation.
Whenever used in the Agreement, the
singular shall include the plural and the plural the singular, and the use of
any gender shall be applicable to all genders.
19:
LEGAL ACTION: If any
legal action is brought by RCS regarding the subject matter of this Software
Support Agreement against the End User,
RCS shall be entitled to
recover, in addition to any other relief, reasonable attorney fees and
expenses. It is understood by you, and
agreed that, notwithstanding any other provisions of this Software Support
Agreement, RIVER CITIES SOFTWARE,
in order to protect its proprietary rights in the LICENSED SOFTWARE delivered
to you under this Software Support Agreement, has the unequivocal right to
obtain timely injunctive relief, and to prohibit End User from using its
LICENSED SOFTWARE in violation of the terms and conditions of this Software
Support Agreement and the underlying End User License Agreement.
20:
NOTICES: Unless otherwise
provided in this Agreement, any notice
required or permitted hereunder
to the parties hereto shall be deemed to have been duly given if in
writing and mailed by first class
certified mail, return receipt requested, postage prepaid. If intended to be given to End User,
addressed to End User at the address set forth herein, and if intended to be
given to RCS, addressed to RCS at the address set forth herein, or at such
other address as the party to whom such notice is given may have designated in
writing to the other party.
21:
NON-WAIVER OF PROVISIONS:
No failure to exercise, and no delay in exercising, on the part of RCS,
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise by RCS of any right, power, or privilege
hereunder preclude any such further exercise thereof.