CIBER, Inc. RADS Lite Software Support Plan Agreement
IMPORTANT! PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE RADS LITE SOFTWARE OR SOFTWARE SUPPORT IN ANY WAY. THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) (“YOU” OR "LICENSEE") AND CIBER. BY PURCHASING OR USING THE CIBER RADS Lite SOFTWARE SUPPORT PLAN, YOU AGREE TO BE BOUND BY THE TERMS OF THIS SOFTWARE SUPPORT PLAN AGREEMENT (“AGREEMENT”). 1. Definitions "Software" is RADS Lite and its components and all related documentation and materials CIBER provides to you. "Support" is Software Support Plan as defined in this Agreement. Agreement CIBER agrees to provide Software Support for Software identified in this Agreement. Purchase of this Software Support Plan does not in any way extend, modify, or enhance the original Software warranty, if any. You must implement the current version of the Software in order to purchase the Software Support Plan. This Agreement does not cover Software that has been modified or amended by anyone other than CIBER. Fees and Taxes The fee for the Support Agreement is $1,995.00, exclusive of taxes, due and payable 15 days after your execution of this Agreement. These fees are non-refundable except as provided in Section 4. In that case, CIBER will refund the fees for the unused portion of the term prorated on a daily basis. You will pay all taxes levied or based on this Agreement and the charges payable under it. All such taxes payable by you may be added to the invoice or billed separately to you. Renewal fees shall be as set fourth in Section 5. Term and Termination This Agreement is not binding until approved in writing by CIBER. The Term of the Agreement is 12 months from the date of CIBER’s approval or such other date as the parties agree in writing. You may terminate this Agreement by providing CIBER with written notice at least thirty (30) days before the effective date of termination. You are not entitled to receive any refund of the fees paid under this Agreement. CIBER may terminate this Agreement for Cause immediately and without obligation of any kind or refund of any fees if you breach any of the terms of the Agreement and do not cure such breach within fifteen (15) days after you receive written notice of the breach. CIBER may terminate this Agreement for its convenience upon 30 days prior written notice to you of the termination. In the case of a termination for convenience by CIBER, CIBER will refund the fees for the unused portion of the Term prorated on a daily basis. Renewal Software Support Plan Renewal quote is mailed to Licensee sixty (60) days prior to Support expiration. The Support renewal quote includes the Support renewal dollar amount and billing and shipping information. Software Support Plan is considered renewed once a Purchase Order has been issued or payment is received. If Support has not been renewed, an invoice will be sent 30 days prior to the expiration date, and again on the due date. Support is terminated if a Purchase Order or a payment is not received within 30 days after the due date. Technical Support Telephone and e-mail technical support is available only for the Software. Technical support is restricted to questions on RADS Lite installation, configuration, and basic usage. Telephone and e-mail support is offered through CIBER Customer Support from the main U.S. location during regular business hours, Monday through
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Friday 9:00 a.m. to 5:00 p.m. Mountain Standard Time, except holidays. Technical support is provided to Licensee on a "best efforts" basis. CIBER does not guarantee a specific time for response or resolution of calls for Customer Support. Force Majeure CIBER is not liable for any failure to perform due to circumstances or causes beyond CIBER’s reasonable control, including, but not limited to, acts of God or nature, war, terrorism, riot, embargoes, acts of civil or military authorities, acts of government in a sovereign or contract capacity, criminal acts, fire, flood, accident, strikes, or inability to secure transportation or communications, facilities, fuel, energy, labor, or materials. Limited Warranty CIBER warrants that the Support will be provided in a professional a workmanlike manner during the terms of this Agreement. CIBER’s entire liability and your exclusive remedy under this Agreement shall be, at CIBER’s sole discretion, (a) return of the fees paid under this Agreement for the unused portion of the Term as of the date of the warranty failure, or (b) repair or replacement of the defective Support, Software or Documentation. This Limited Warranty is void if failure of the Support, Software or Documentation has resulted from accident, abuse, or misapplication. CIBER does not warrant that your use of the Support, Software or Documentation will be uninterrupted or that the Software operation will be error free. CIBER AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Limitation of Liability In no event will CIBER or its licensors be liable to you or any other party for any direct, indirect, incidental, consequential, or special damages or damages of any kind arising out of this Agreement, including, without limitation, your use or inability to use this Support, the Software or the Documentation including. The damges exclude damges include without limitation, loss or damage to data, lost revenue, profits or savings, regardless of the legal theory under which such claims are advanced, even if CIBER or its licensors knew or should have known of the possibility of such damages. Each of us agrees that the other Party’s liability hereunder for damages, regardless of the form of action, will not exceed the total fee actually paid to CIBER for the initial term of the Agreement. Notwithstanding the above, you liability may be increased to include CIBER's costs of collection of the fees due under this Agreement, including without limitation reasonable attorney's fees and court costs. The Parties agree that amounts stated herein are fair under the circumstances and that the charges reflect this limitation of liability. Exclusive Agreement This Agreement is the complete and exclusive agreement between you and CIBER, and supersedes all other communications between us. Modifications No modification or waiver of this Agreement or any provisions shall be binding unless made in writing and signed by an authorized representative of CIBER. Governing Law and Venue This Agreement shall be governed by and construed under the laws of the State of Colorado, without regard to choice of law provisions. The application of the United Nations convention on Contacts for the international Sale of Goods is expressly excluded. Venue for any disputes arising out of this Agreement, the Software and Documentation or you use of the Software and Documentation shall be exclusively in a State or Federal court of competent jurisdiction in the County of Arapahoe, State of Colorado. You hereby consent to the jurisdiction of such courts and agree to waive any rights you may have to contest their jurisdiction. Saving Clause If any provision of this Agreement is invalid under any applicable statute or rule of law, such provision is deemed omitted, and the balance of this Agreement shall remain binding on the parties. The remaining terms shall be interpreted as closely as possible to the intent of the parties as expressed in the unaltered Agreement. Remedies Your remedies, as provided in this Agreement, are exclusive.
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15. Non-Solicitation During the term of this Agreement and for a period of one (1) year after its termination, you will not directly or indirectly solicit for hire or engagement any of CIBER’s personnel involved in the provision or receipt of Support under this Agreement until one hundred eighty (180) days following the termination of the person’s or entity’s employment or engagement with CIBER. 16. Parties in Interest This Agreement is enforceable only by CIBER and you. It is not a contract or assurance regarding compensation, rights, obligations, or benefit of any kind to any other party. There are no third-party beneficiaries of this Agreement. 17. Assignment and Successors You may not assign this Agreement without CIBER’s prior written consent, except that you may assign the Agreement without consent to an entity controlling you, in common control with you or controlled by you. This Agreement benefits and will be binding upon the parties and their respective successors, heirs, and assigns. IN WITNESS WHEREOF, the parties have executed the Agreement by their duly authorized representatives.
CIBER, Inc. (Licensee)
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