Custom Software Support Agreement (CSSA)
Incident based support
Pre-paid support plans
Advantage support plans
THESE INTESOLV SUPPORT SERVICES TERMS AND CONDITIONS ARE BETWEEN INTESOLV,INC. (DEFINED BELOW) AND “YOU” (COLLECTIVELY, THE “CLIENT”).
YOU AGREE THAT THIS AGREEMENT (DEFINED BELOW) IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY ON WHOSE BEHALF THE SERVICE IS USED: FOR EXAMPLE, YOUR EMPLOYER.
BY USING THE SERVICE (DEFINED BELOW), YOU AGREE THAT UNITED STATES LAW GOVERNS YOUR USE OF THE SERVICE IF YOU PURCHASE THE SERVICE IN ANY LOCATION OTHER THAN THE UNITED STATES, MEXICO, OR CANADA, AND YOU AGREE TO THE TERMS REGARDING GOVERNING LAW AND VENUE SET FORTH IN THIS AGREEMENT(SEE GOVERNING LAW).
Definitions
“InteSolv” means InteSolv,Inc. its licensors and successors, if any.
“LICENSE AGREEMENT” shall refer to the original license agreement agreed to upon the purchase of any software which is supported under the terms of this document.
“SOFTWARE” shall be defined and limited in the scope of this document to the product or products agreed upon in invoice addendum document by both INTESOLV and CLIENT and shall not exceed functional boundaries of those products.
The following agreement is agreed upon via purchase of applicable InteSolv products and services.
This document describes InteSolv’s Custom Application Software Support Services. InteSolv shall provide the Custom Application Software Support Services described below as selected and detailed on the Client Invoice for which InteSolv has been paid the appropriate fee. InteSolv will provide an Invoice work order which will detail the support plan purchased with scope and duration under which InteSolv will provide such services. InteSolv will receive Client sign-off and/or purchase order that references the Invoice.
In the case that the CSSA also refers to or includes SOFTWARE not originating with INTESOLV, e.g. Adobe Connect, product support terms and conditions as defined within this agreement shall not apply and any support agreement will be set forth in the Licensing Agreement of the originating party which is available on INTESOLV’s website at URL http://www.intesolv.com/index.php/license-agreements/.
WHEREAS, INTESOLV, its staff and representatives, are supporting the SOFTWARE identified in the Licensing Agreement and Support Agreement; or
WHEREAS, INTESOLV, its staff and representatives, are still developing the SOFTWARE and Support Materials and such SOFTWARE and Support Materials should not be considered to be at the same level as commercial software and support materials;
WHEREAS, the CLIENT has evaluated the SOFTWARE and has expressed interest in using this system; and
WHEREAS, the CLIENT wishes to engage INTESOLV to perform various Support services in connection with SOFTWARE and Support Materials, not originating with INTESOLV, and INTESOLV desires to provide such Support services;
WHEREAS, the CLIENT has executed the License Agreement for the SOFTWARE; and
NOW THEREFORE, in consideration of the mutual promises and agreements set forth in this Support Agreement, INTESOLV and CLIENT agree as follows:
1.Support Services
In accordance with the terms of this Support Agreement, INTESOLV will furnish support services under the terms and plans defined in section 8 of this document. “Support” shall refer to any work that requires the use of InteSolv resources:
(a) for the purpose of education of any users
(b) for installation, maintenance, troubleshooting, error-correction, testing, enhancement, or repair related to SOFTWARE covered under this CSSA.
(c) to perform activities outside of a previously defined service such as implementation, design, blueprinting, training, software development, pre-sale, event services, etc. that may be required by the CLIENT for any or all of the purposes above at the judgement and sole discretion of INTESOLV.
2. Support Fee and Expenses
CLIENT will pay INTESOLV the fee(s) set forth in this Support Agreement prior to work beginning or within thirty (30) days of the Commencement Date identified in this agreement, its most recent revision or subsequent renewals as specified by selected service plan in Section 8 of this document. INTESOLV shall have the right to change the fee once each year, effective with the next renewal date, provided that: (i) INTESOLV gives CLIENT at least ninety (60) days prior written notice of any such change; and (ii) so long as the change is not an increase of more than ten percent (10%) of the then-current standard rate. Promotional rates of any kind will never be used as a base rate calculation in regards to yearly increases. CLIENT shall pay INTESOLV for services outside the scope of this Support Agreement on a time and material basis at INTESOLV’s then-prevailing rates, which may not be reflected in this agreement but will be provided to the RECIPIENT prior to additional work. CLIENT is responsible for the payment of any taxes assessed in connection with payments due under this Support Agreement except for any tax based solely on INTESOLV’s net income.
CLIENT shall reimburse INTESOLV for any and all reasonable travel and living expenses incurred by INTESOLV in performing services under this Support Agreement. These expenses shall be billed to CLIENT, and CLIENT shall pay these billings within thirty (30) days of the date such services were rendered.
Upon termination of this Support Agreement, INTESOLV will be reimbursed for all reasonable costs and non-cancelable commitments incurred in the performance of the scope of work and for which the CLIENT has not yet paid.
3. Warranty and Remedies
INTESOLV warrants that it will use reasonable efforts to perform the services to conform to generally accepted industry standards, provided that: (a) the SOFTWARE has not been modified, changed, or altered by anyone other than INTESOLV; (b) the operating environment, including both hardware and systems software, meets or exceeds INTESOLV’s recommended specifications; (c) the computer hardware is in good operational order and is installed in a suitable operating environment; (d) CLIENT promptly notifies INTESOLV of its need for service; (e) CLIENT provides adequate troubleshooting information and access so that INTESOLV can identify and address problems; and (f) all fees due to INTESOLV have been paid. THERE ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS SUPPORT AGREEMENT, AND THE SERVICES TO BE PROVIDED BY INTESOLV UNDER IT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
CLIENT ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL INTESOLV, ITS STAFF OR REPRESENTATIVES BE LIABLE FOR ANY LOSS, COST, EXPENSE, OR DAMAGE TO CLIENT. END USER ACKNOWLEDGES AND AGREES THAT INTESOLV, ITS STAFF OR REPRESENTATIVES SHALL NOT BE LIABLE TO END USER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL DAMAGES OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF INTESOLV, ITS STAFF OR REPRESENTATIVES, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CLIENT WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS INTESOLV, ITS STAFF OR REPRESENTATIVES, AGAINST ANY LOSS, DAMAGE, EXPENSE, OR COST, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF ANY CLAIM, DEMAND, PROCEEDING OR LAWSUIT RELATED TO CLIENT’s UNAUTHORIZED USE OR MISUSE OF THE SOFTWARE.
4. Recipient Support
The level of support that INTESOLV can provide is dependent upon the cooperation of CLIENT and the quantity of information that CLIENT can provide. If INTESOLV cannot reproduce a problem or if the CLIENT cannot successfully gather adequate troubleshooting information, INTESOLV may need temporary login access on the CLIENT’s system to identify and address the problem, in such case, access will not be unreasonably withheld.
5. The CLIENT shall not make any modifications to the SOFTWARE, unless otherwise allowed under the License Agreement. If CLIENT is allowed to make modifications under such License Agreement, INTESOLV shall not be responsible for maintaining CLIENT modified portions of the SOFTWARE or for maintaining portions of the SOFTWARE affected by CLIENT modified portions of the SOFTWARE. Upon CLIENT’s prior written approval, corrections for difficulties or defects traceable to the CLIENT’s errors or systems changes shall be billed at INTESOLV’s standard time.
6. Right to Work Product
All error corrections, enhancements, new releases, and any other work product created by INTESOLV creator(s) in connection with the support services provided under this Support Agreement (“Work Product”) are and shall remain the exclusive property of INTESOLV regardless of whether the CLIENT, its employees, or agents may have contributed to the conception, joined in its development, or paid INTESOLV for the development or use of the Work Product. Such Work Product shall be considered SOFTWARE, and subject to the terms and conditions contained herein and in the License Agreement.
7. Term and Cancellation
(a) Term. This Support Agreement shall commence on the Commencement Date stated in Section 1 and continue for an initial period defined within section 8 of this agreement. This Support Agreement shall thereafter renew for successive periods defined in section 8 of this document or by falling below the plan thresholds defined in tables 8A or 8B unless terminated by either party upon request to the other party pursuant to 7B below. All terms and conditions of this Support Agreement shall apply during the Renewal Term, except for the fees. The fee for the Renewal Term shall be INTESOLV’s rates then in effect at the time of renewal, so long as such rate does not increase by more than ten percent (10%) annually. Any discounts given during initial service term, or at any other period of term or renewal, for any reason, will not be calculated when determining year over year rate increase percentage.
(b) Termination. This Support Agreement may be cancelled at any time during any initial or renewal period by written request (30 day notice required) by the CLIENT. INTESOLV also reserves the right to cancel any support contract prior to term (30 days notice must be given to the CLIENT) at INTESOLV’S sole discretion and judgement. By cancelling this agreement the CLIENT agrees to pay all fees and fines associated with cancellation of this agreement prior to term. These fees will be assessed based on current contract and time remaining as defined in the table below. If the agreement is cancelled by INTESOLV, no cancellation fee or penalty will be assessed to the CLIENT other than any outstanding balance due for support or services which have been rendered prior to the date of cancellation. Any outstanding balance will be due within thirty (30) days of effective cancellation date.
The following outlines the remaining contract term remaining and fee that would apply in the event of cancellation of a 12-month term:
Up to six months remaining = 50% of remaining total contract value
6 or fewer months remaining = 75% of remaining contract value
Natural expiration = No fee
For term lengths other than 12-months, the above values would be adjusted proportionately to the agreed upon term.
In the event of cancellation of a term contract the CLIENT may, only after payment of the above determined fee, move to a per month service agreement without any further penalty. The CLIENT may also move from per month to term agreement at the natural monthly expiration of the per month plan with no penalty. Cancellation fees are due to INTESOLV no later than thirty (30) days after effective cancellation of service.
8. Support Plan Options
In accordance with the terms of this Support Agreement, INTESOLV will furnish one or more of the following support plans for the SOFTWARE. Agreed upon pricing and plan options will be provided as Exhibit A to the CLIENT invoice which is also referenced to this document.
(a)Prepaid Ad Hoc Support Plans
Prepaid Ad Hoc Service plan hours do not accrue and do expire at the end of the contract term on the last day of the calendar month in which they are set to expire or upon utilization of the prepaid hours whichever is sooner. Prepaid Ad Hoc Service Plans can be canceled at any time subject to the same fees and penalties outlined in Section 7 b of this document which governs fees and penalties associated with cancellation of Support Plans without completion of minimum term requirements. For terms less than 12 months the same fee schedule shall be applied proportionally based on required minimum term so that a 6 month minimum term plan with more than 50% term remaining will be subject to identical percentage fees as a 12 month contract with more than 50% term remaining.
(b)Advantage Support Plans
Advantage Support Plan hours do not accrue and expire at the end of the calendar month in which they were granted. Premium support plans can be canceled at any time prior to completion of minimum term subject to the fees, penalties, and terms outlined in Section 7 b. Premium plan discounts are applied at the above scheduled rates to support and development services as defined by INTESOLV.
(c)Enhancements
At CLIENT’s request, INTESOLV will consider developing modifications or additions that materially change the utility, efficiency, functional capability, or application of the supported SOFTWARE (“Enhancements’) under the CLIENT’s Advantage support plan at such charge as the parties may mutually agree in writing,
(d)Support Outside Prepaid or Advantage support tiers
Support Services outside of the above listed plans will be considered Incident based Ad Hoc and billed under INTESOLV standard rates based on resources required. The Standard Rate card can be found at INTESOLV’S website at URL http://www.intesolv.com/index.php/license-agreements/. INTESOLV shall determine required resources for any and all support services provided and provide the CLIENT with a blended rate based on required resources. All Ad Hoc Service not prepaid or covered under an Advantage plan will be subject to a 250.00 per-incident service fee.
9. Non-Standard Working Hours
All INTESOLV support plans assume that work provided is within the typical working hours, defined as 8a.m through 5p.m. Central Standard Time. INTESOLV defines a standard work week as Monday through Friday. However, INTESOLV services a global CLIENT base and therefore applies any additional charges related to “nonstandard” work hours at the discretion and sole judgement of INTESOLV. In addition, holidays as defined by INTESOLV are to be billed at nonstandard rates INTESOLV uses the following chart to determine overage rates outside of standard hours/days.
Business Week Overtime Hours*
Overtime > Rate
8-10 hours > 1.5x SRC
10-12hours > 2x SRC
Weekend/Holiday Hours
Hours > Rate
1-8 hours > 2x SRC
10-12 hours > 2.5x SRC
*SRC refers to the standard rate card as provided to client.
*SRC Advantage Plan Discounts do apply
10. General
(a)Each party acknowledges that this Support Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreement, oral and written, between the parties relating to this Support Agreement. This Support Agreement may not be modified or altered except by a written instrument duly executed by both parties.
(b)This Support Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws rules.
(c)If any provision of this Support Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
(d)The CLIENT may not subcontract, assign, or transfer its rights, duties or obligations under this Support Agreement to any person or entity, in whole or in part, without the prior written consent of INTESOLV.
(e)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.
CLIENT ACKNOWLEDGES THAT END USER HAS READ THIS SUPPORT AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE LEGALLY BOUND BY IT.