PURCHASED SOFTWARE MAINTENANCE AND SUPPORT AGREEMENT
Last updated August 7, 2023
The following are the maintenance and support terms and conditions pertaining to the Licensed Software being licensed by the Licensor to the Licensee in accordance with the attached Master Software License Agreement. This Maintenance Agreement is attached as SCHEDULE 3 to the Master Software License Agreement.
ARTICLE 1 DEFINITIONS
For purposes of this Maintenance Agreement, the following terms shall have the meanings set forth below. Any capitalized terms not specifically defined herein shall have the same meaning ascribed to them in the Master Software License Agreement.
“Additional Services” means additional services (including training) that are not part of the Maintenance and Support Services, and that are agreed to in writing by Licensor and Licensee.
“Covered Software” means the Licensed Software as defined in the Master Software License Agreement.
ARTICLE 2 COVERAGE
During the term of this Agreement as set forth in ARTICLE 8 below, Licensor agrees to provide the Maintenance and Support Services for the Covered Software and any Licensor provided hardware systems and platform software. The Covered Software does not include Licensee-developed software or third-party software except any third-party software embedded in the Covered Software or in Licensor provided hosted servers, nor does it include custom software created by Licensor’s professional services team. All Maintenance and Support Services shall be subject to the Level of Use purchased by the Licensee in accordance with the Master Software License Agreement.
ARTICLE 3 DESCRIPTION OF MAINTENANCE SERVICES
3.1. Support Services
During the term of this Maintenance Agreement as set forth in ARTICLE 8 below, Licensor will provide the services described herein so as to maintain the Covered Software in good working order, keeping it free from material defects and Errors so that the Covered Software shall function in accordance with its specifications, the accepted level of performance and Level of Use set forth in the Master Software License Agreement.
3.1.1. Basic Support Response
Licensor will make available to Licensee an email address (the “Support Email”) for Licensee to initiate trouble reports requesting service of the Covered Software. The Support Email is accessible at all times, but requests other than those defined in SECTION 3.2 will be handled between 8:00am and 8:00pm Eastern Standard Time (GMT-5:00), Monday through Friday, excluding legal holidays in Maryland and/or the United States. The Support Email can also be used to notify Licensor of problems associated with the Covered Software and related documentation.
3.1.2. Call-In Support Response
Licensor will make available a telephone number (the “Support Center Hotline”) that may be used by any Licensee to report Severity 1 incidents (as defined in SECTION 3.2.1). The Support Center Hotline operates from 8:00 am to 8:00 pm Eastern Standard Time (GMT-5:00), Monday through Friday, excluding legal holidays in Maryland and/or the United States. At all other times, the Support Center Hotline is forwarded to a voicemail system that is monitored by an on-call support engineer.
The Support Center Hotline may not be used for Severity 2 or 3 incidents unless the Licensee purchases the Call-In Support Additional Service. Call-In Support contracts run concurrent with the Maintenance Agreement period and entitle the Licensee to designate one or more individuals as Licensee’s Designated Support Liaison(s). The Designated Support Liaison(s) will be allowed to call the Support Center Hotline for incidents of any Severity and to notify Licensor of problems associated with the Covered Software and related documentation.
3.2. Remedial Support
Upon receipt by Licensor of notice from Licensee through the Support Center Hotline or Support Email of an Error, defect, malfunction or nonconformity in the Covered Software, Licensor shall respond as provided below:
3.2.1. Severity 1
A Severity 1 incident is defined as one that produces an emergency situation in which the Covered Software is substantially or completely non-functional or inoperable. Licensee must report Severity 1 incidents to the Licensor by telephone, not by email.
3.2.1.1. Severity 1 RESPONSE
In the case of a Severity 1 incident, a qualified member of Licensor’s staff will respond via telephone to begin to diagnose the problem within one (1) hour. Licensor will devote all reasonable resources and use its best efforts to resolve Severity 1 problems as quickly as possible. The resolution will be delivered to Licensee as a work-around or as an emergency software fix. If Licensor delivers an acceptable work-around, the severity classification will drop to a Severity 2.
3.2.2 Severity 2
A Severity 2 incident is defined as one that produces a detrimental situation in which the Covered Software is usable, but materially incomplete; performance (throughput or response) of the Covered Software degrades substantially such that there is a severe impact on use under reasonable loads; one or more mainline functions or commands is inoperable; or the use is otherwise significantly impacted.
3.2.2.1 Severity 2 RESPONSE
In the case of a Severity 2 incident, a qualified member of Licensor’s staff will respond by telephone or email as soon as reasonably possible, but in any event a response will be provided within eight (8) business hours. Licensor will devote all reasonable resources and will use its best efforts to resolve Severity 2 problems within five (5) business days. The resolution will be delivered to Licensee in the same format as Severity 1 problems. If Licensor delivers an acceptable work-around for a Severity 2 problem, the severity classification will drop to a Severity 3.
3.2.3 Severity 3
A Severity 3 incident is defined as one that produces an inconvenient situation in which the Covered Software is usable, but does not provide a function in the most convenient or expeditious manner, but the user suffers little or no significant impact.
3.2.3.1 Severity 3 RESPONSE
Licensor will exercise commercially reasonable efforts to resolve Severity 3 problems in future maintenance releases.
3.3 Maintenance Services
During the term of this Maintenance Agreement, Licensor will maintain the Covered Software by providing to Licensee any and all software updates and enhancements to the Covered Software (“Updates”) offered by Licensor under its general maintenance policies. All Updates provided to Licensee by Licensor pursuant to the terms of this Maintenance Agreement shall be subject to the terms and conditions of the Master Software License Agreement. Updates will be provided when available and include bug fixes, security updates, new features, enhancements to existing features, and/or performance enhancements to existing features.
Updates do not include product extensions to different hardware platforms, different operating system platforms, or different database platforms. Updates also do not include new applications, new third party tools, new functionality being sold to new Licensees as separate modules, or add-on modules or custom software (whether created by Licensor, Licensee, or a third party).
Updates will be provided as executable installers. Updates to related documentation will be provided in electronic form. Duplication, distribution and installation of Updates is the responsibility of the Licensee. If requested, Licensor will provide on-site and/or remote assistance in the installation of Updates on a time and materials basis, plus expenses.
Licensor will provide Support and Maintenance services for previous releases for a period of one year. Licensor shall have no further responsibility for supporting and maintaining prior releases.
Licensor assumes no responsibility for the operation or performance of any add-on modules, custom software, or integrated applications, whether created by Licensor, Licensee, or a third party.
3.4 Services Not Included
Maintenance and Support Services do not include any of the following: custom programming services; on-site support, including installation of hardware or software; support of any software not Covered Software; training; out-of-pocket and reasonable expenses, including hardware and related supplies; or any other activity set forth in this Maintenance Agreement that is deemed an Additional Service.
ARTICLE 4 TIME AND MATERIALS SERVICES FOR NON-LICENSOR PROBLEMS
In the event that Licensee notifies Licensor of a problem experienced by Licensee in connection with the operation of the Covered Software, Licensor shall respond as provided in SECTION 3.2 above. If the cause of such problem is not an Error, defect or nonconformity in the Covered Software, Licensee shall compensate Licensor for all work performed by Licensor in connection therewith, on a time and materials basis at the Licensor’s rates as set forth in the Master Services Agreement (or such lower rate as mutually agreed upon) attached to the Master Software License Agreement.
ARTICLE 5 ACCESS
Maintenance and Support Services are conditioned upon provision by Licensee to Licensor of reasonable necessary access to the people and systems running the Covered Software, including, but not limited to, passwords, system data, file transfer capabilities, and remote log-in capabilities for servers as well as screen sharing and phone calls with administrators, technicians, and end users. Licensor will maintain security of the system and use such access only for the purposes of providing the services and will comply with Licensee’s standard security procedures. Information accessed by Licensor agents or employees as a result of accessing Licensee system shall be deemed “Confidential Information” pursuant to the terms of the Master Software License Agreement.
ARTICLE 6 ANNUAL MAINTENANCE AND SUPPORT FEES
6.1 Maintenance and Support Fees
Unless otherwise specified in the Sales Order Form attached to the Master Software License Agreement, the Maintenance and Support Fees for the Maintenance and Support Services are calculated by multiplying the current list price of the supported license level (all base license and add-on Assignee licenses previously ordered by Licensee) by 20%. Except for the first year of the Maintenance and Support Fees, which is due and payable in accordance with the Sales Order Form attached to the Master Software License Agreement, the payment of the Maintenance and Support Fees after the first year is optional. However, the failure to pay the Maintenance and Support Fees within fifteen days after Licensee’s receipt of written notice of its failure to pay shall result in the termination of Licensor’s obligations to provide the Maintenance and Support Services as provided in this Maintenance Agreement; and in such case the provisions of ARTICLE 9 of the Master Software License Agreement shall apply. The Maintenance and Support Fees shall be invoiced annually approximately thirty (30) days before the expiration of the previous year’s term, and such amounts shall be due and payable in accordance with ARTICLE 12 of the Master Software License Agreement.
6.2 Travel and Related Expenses
Licensee agrees to reimburse Licensor for reasonable travel and related expenses incurred by Licensor related to providing the Maintenance and Support Services. Such expenses shall specifically include charges for freight, travel (including lodging and associated expenses), printing and documentation, and other out-of-pocket expenses reasonably required for performance of the Maintenance and Support Services, but shall specifically exclude any expenses associated with the Licensor’s general overhead, including salaries of employees, unless otherwise agreed in writing by the parties.
ARTICLE 7 INCORPORATION OF TERMS
This Maintenance Agreement is attached to the Master Software License Agreement as SCHEDULE 3. Accordingly, this document shall be subject to the specific terms and conditions of the Master Software License Agreement, which are incorporated herein by reference. The parties’ execution of the Master Software License Agreement shall be deemed their execution of this Maintenance Agreement.
ARTICLE 8 TERM AND TERMINATION
The term of this Maintenance Agreement shall commence on the Effective Date of the Master Software License Agreement, and shall expire on the last day of the twelfth (12th) month following the Effective Date; provided, however, that this Maintenance Agreement shall automatically renew on each anniversary of the Effective Date for an additional twelve (12) month period unless Licensee provides written notice to Licensor of its intent not to renew or does not pay the Maintenance and Support Fees when due and payable pursuant to ARTICLE 6 of this Agreement or ARTICLE 12 of the Master Software License Agreement.
This Maintenance Agreement shall be terminable pursuant to the terms of SECTION 9.2 of the Master Software License Agreement, or if the Master Software License Agreement shall be terminated for any reason as set forth in ARTICLE 9 thereof.