SOFTWARE MAINTENANCE AND TECHNICAL SUPPORT AGREEMENT
This Software Maintenance and Technical Support Agreement (“M&S Agreement”) is made part of the End User License Agreement between PJ Technologies and the Licensee (the “Agreement”). The terms of this M&S Agreement are in addition to the terms contained in the Agreement. In the event of a conflict or inconsistency between the terms of this M&S Agreement and the Agreement, the terms of this M&S Agreement will govern with respect to the subject matter hereof. Capitalized terms not defined herein shall have the meaning defined in the Agreement.
PJ Technologies® Incorporated (“PJ Technologies”) will provide Customer with the Software Maintenance and Support Services listed under this M&S Agreement. Licensed users of the Goverlan™ Software product(s) (“Software”) who are not covered under this M&S Agreement will only be granted Limited Software Maintenance and Technical Support as defined in the Agreement. PJ Technologies and Customer may collectively be referred to herein as, the “Parties,” and individually as a “Party.”
Definitions
“Authorized Caller” or “Point of Contact” refers to an individual designated by Customer who may contact PJ Technologies to request technical support (e.g., to report Errors in the Software or request assistance with Software use).
“Business Day” means 9:00 AM through 6:00 PM eastern time, excluding holidays and weekends.
“Customer” or “You” or “Your” refers to the Customer who purchased a license to use the Software and purchased Software Maintenance pursuant to this M&S Agreement.
“Error” means a material error, problem, or defect resulting from an incorrect functioning of Software that (i) renders the Software inoperable or (ii) causes the Software not to perform in material compliance with its Documentation.
1. SUPPORT
PJ Technologies will establish and maintain an organization and process to provide support for the Software to the Customer in accordance with the terms of this M&S Agreement. Support shall include commercially reasonable efforts to (i) diagnose Errors in the Software, and (ii) resolve Errors in the Software (“Support”).
PJ Technologies will provide telephone and internet based Live Chat support each Business Day. In addition, PJ Technologies will provide an internet-based support system, which shall generally be available seven (7) days a week, twenty-four (24) hours a day, subject to routine maintenance.
Customers are required to designate up to two (2) Authorized Callers for all direct support services-related communications with PJ Technologies. Customer may replace an Authorized Caller at any time by notifying PJ Technologies’ Support Services.
PJ Technologies will use commercially reasonable efforts to cure reported and reproducible Errors in the Software. PJ Technologies will engage staff during business hours until a mutually acceptable resolution is achieved.
If a technical issue with the Software is the end-result of a conflict or incompatibility with another software product (“Third Party Product”) which was not provided by PJ Technologies nor included in the Documentation and which was implemented at Your site during the term of this M&S Agreement, then the vendor of the Third Party Product must assist PJ Technologies in the resolution of the technical issue. If the vendor of the Third Party Product is not available or does not provide commercially reasonable assistance in the resolution process, then PJ Technologies expresses no warranty that the issue will be resolved.
Provision of Support by PJ Technologies is conditioned upon Customer (i) timely paying PJ Technologies the applicable Support and Maintenance Fee in accordance with Section 5.2 herein; and (ii) having deployed the current version or the immediately prior version of the respective Software for which such Maintenance is to be provided, if such version was released in the immediately preceding twelve (12) months. PJ Technologies shall not be required to provide support for the Software or customization of the Software with regard to the Customer’s unique application requirements.
This M&S Agreement is not intended as a consulting agreement for customer services.
2. MAINTENANCE
PJ Technologies will provide the Customer with all released Software Updates and Software Upgrades of the Software along with other generally available technical material during (i) the three (3) months immediately following a new license purchase or (ii) the term of a Software Maintenance subscription.
Software Updates and Software Upgrades release dates will be solely determined by PJ Technologies.
The Software Updates, Software Upgrades and other technical material, including the Software, may not be used to increase the licensed number of versions or copies of the Software. Upon the installation of a Software Upgrade the Customer agrees not to use or transfer the prior version but to destroy or archive the prior version of the Software. All Software Updates and Software Upgrades shall be subject to the Agreement.
All Software and related materials provided pursuant to Software Maintenance, including Documentation and program materials are subject to the terms and conditions of this M&S Agreement and the Agreement.
3. LIMITATIONS
PJ Technologies shall be under no obligation to furnish Software Maintenance under this M&S Agreement to the extent that such Software Maintenance is required as a result of: (i) the operation of the Software in environmental conditions or configurations outside those prescribed in the user manual or other PJ Technologies Documentation for the Software; (ii) Your material failure to maintain the Software in accordance with the standards of maintenance prescribed in the user manual or other Software Documentation; (iii) maintenance of the Software by anyone other than PJ Technologies or a third party authorized by PJ Technologies; or (iv) causes unrelated to the Software as delivered to You by PJ Technologies, including, without limitation, unauthorized modifications to the Software, made by You or on Your behalf.
4. WARRANTY
PJ Technologies will undertake all commercially reasonable efforts to provide technical assistance under this M&S Agreement and to rectify or provide solutions to Errors, but PJ Technologies does not guarantee that the Software will be error-free.
PJ Technologies will provide the Customer with substantially the same level of service throughout the term of this M&S Agreement. PJ Technologies may from time to time, however, discontinue Software products or versions and stop supporting Software products or versions one year after discontinuance, or otherwise discontinue any support service.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR PROMISES TO CUSTOMER OR ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS PROVIDED ABOVE, THE SERVICES AND MAINTENANCE ARE PROVIDED 'AS IS'.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON (INCLUDING LOSS OF DATA OR OTHER BUSINESS OR PROPERTY DAMAGE), EVEN IF FORESEEABLE OR IF A PARTY HAS ADVISED OF THE POSSIBILITY OF SUCH A CLAIM. EXCEPT TO THE EXTENT OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY’S LIABILITY SHALL EXCEED THE FEES THAT CUSTOMER HAS PAID TO PJ TECHNOLOGIES UNDER THIS M&S AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIMS.
Force Majeure. Neither Party shall be liable for its failure to perform due to unforeseen circumstances or any causes beyond its reasonable control (“Force Majeure”), including any natural calamity, act of God or public enemy, act of any military, civil or regulatory authority, change in any law regulation, disruption or outage of communications, power or other utilities or any other cause beyond the reasonable control of such Party. In the event of Force Majeure, PJ Technologies' performance will be extended for a period equal to the duration of the delay caused hereby.
5. TERM AND RENEWAL
Subject to Section 7 of the Agreement (“Software Maintenance and Technical Support Obligations”), provided that Customer purchases a subscription for Software Maintenance prior to the expiration of the Warranty Period, and initial Software Maintenance subscriptions shall become effective upon the expiration of the Warranty Period (the “Commencement Date”), and, unless sooner terminated in accordance with the terms of Section 5.3, shall continue until the first anniversary of the Commencement Date.
5.1 Renewal
PJ Technologies will notify Customer when Software Maintenance subscriptions are scheduled to expire within 30 (thirty) days in advance of the expiration date. If Customer wishes to renew a Software Maintenance subscription and PJ Technologies still provides Software Maintenance for the Software, PJ Technologies will provide a renewal quote to the Customer no later than 15 business days prior to the current term’s expiration date. The Parties agree that PJ Technologies will have the right to adjust prices at each renewal.
If PJ Technologies has not received a purchase order from Customer prior to the expiration date, this Agreement shall terminate on the applicable anniversary of the Commencement Date. PJ Technologies will use reasonable efforts to provide Customer with a notification stating that this M&S Agreement has expired. Upon such expiration, Customer shall still be entitled to receive Support for an additional thirty (30) days (the “Support Extension”), but will no longer be eligible to receive any Software Upgrades that are released after the expiration date. After the expiration of the Support Extension, Customer shall only be entitled to receive Limited Software Maintenance and Technical Support in accordance with the Agreement. Any other Software Maintenance activities that are contingent on a current Software Maintenance subscription will also be terminated.
Customer shall have the right to reinstate any lapsed Software Maintenance subscription upon payment of (i) the amount that PJ Technologies would normally have charged if the Software Maintenance subscription had been in effect during the period of lapse or discontinuation plus (ii) the charge for the next twelve (12) months of a newly commenced subscription term at PJ Technologies’ then-current rates.
5.2 Payment
Software Maintenance subscriptions can be purchased in advance on an annual basis. Fees are due and payable annually in advance. Payment terms will be Net 30 Days. The initial fee for Maintenance and Support services hereunder is detailed in the applicable quote (the “Maintenance and Support Fee”).
If multiple Software products have been licensed throughout the course of a year by Customer, separate Maintenance quotes for each product are not issued. Instead, the Maintenance anniversary date for each license (and corresponding term of the M&S Agreement) is prorated to the anniversary date of the first product licensed. All licensed PJ Technologies Software products offering a maintenance subscription are synchronized to reflect a common start and end date to all Software Maintenance, regardless of when each was first licensed. These prorated dates will be reflected on the renewal quote for Software Maintenance.
5.3 Termination
Either Party (the “Non-Breaching Party”) may terminate this M&S Agreement if the other party breaches the terms of this M&S Agreement and fails to cure such breach within thirty (30) days of receiving written notice specifying such breach from the Non-Breaching Party. In addition, PJ Technologies may immediately terminate this M&S Agreement upon the delivery of written notice to Customer if Customer fails to comply with any of the terms and conditions in Section 3 of the Agreement, and this M&S Agreement shall automatically terminate upon any termination of the Agreement. All fees paid or due are non-refundable unless Customer terminates this M&S Agreement because PJ Technologies has materially breached this M&S Agreement or the Agreement and has failed to cure the breach within 30 days after receiving written notice. In such event, Customer shall be entitled to receive a pro rata refund of the Software Maintenance subscription fee calculated by multiplying the Maintenance and Support Fee for the then-current one (1) year term by a fraction, the numerator of which is the number of calendar months remaining in such term, and the denominator of which is 12.
Termination of this M&S Agreement or any Software Maintenance subscription shall not terminate the Agreement or any licenses granted thereunder.
6. GENERAL
Each Party acknowledges that it has read this M&S Agreement; they understand the M&S Agreement and agree to be bound by its terms. Further, both Parties agree that this is the complete and exclusive statement of the M&S Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to the subject matter of this M&S Agreement. This M&S Agreement may not be modified or altered except by written instrument duly executed by both parties. The Software (including, without limitation, all applicable Software Upgrades and Software Updates, all Documentation, and all components of any of the foregoing provided in accordance with the terms of this M&S Agreement) and the use thereof is subject to all of the terms and conditions set forth in the Agreement. This M&S Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to its conflicts of law provisions. Any civil action or legal proceeding arising out of or relating to M&S this Agreement shall be brought in the courts of record of the State of Florida in Miami-Dade County or the United States District Court, Southern District of Florida. Each Party consents to the jurisdiction of such Florida court in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such Florida court. In any action to enforce this M&S Agreement, the prevailing party shall be entitled to costs and attorneys' fees. Any notice, report, approval or consent required or permitted pursuant to this Agreement shall be in writing and shall be deemed to have been effectively received: (A) immediately upon delivery or successful facsimile transmission to the parties to be notified; (B) two (2) business days after deposit with a commercial overnight courier with tracking capabilities; or (C) five (5) days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid to the respective addresses of the parties as set forth below each of the parties' respective signatures. The waiver by either party of a breach of this Agreement or any right pursuant to this Agreement shall not constitute a waiver of any subsequent breach of this Agreement, nor shall any delay by either party to exercise any right under this Agreement operate as a waiver of any such right. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. All section headings are for reference purposes only. No action, regardless of form, arising out of this M&S Agreement may be brought by either Party more than two (2) years after the cause of action has arisen. Customer may not assign, sub-license or otherwise transfer any Customer's rights, duties or obligations under this M&S Agreement to any person or entity, in whole or in part without the prior written consent of PJ Technologies. Notwithstanding the foregoing, a sale of substantially all of Customer's assets to a third party or any transfer of more than 50% of the voting stock of Customer to a third party shall not constitute an assignment under this M&S Agreement. If any provision of this M&S Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this M&S Agreement shall otherwise remain in full force and effect and enforceable.
