SOFTWARE SUPPORT AGREEMENT – SAMPLE
NSS CORP CUSTOMER:
19 KILTON ROAD CONTACT:
BEDFORD, NH 03110 ADDRESS:
SOFTWARE PRODUCT SUPPORT FEE
NSS PERSPECTIVE Ex$ell $
TOTAL ANNUAL SUPPORT FEES $ .00
CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT. CUSTOMER REPRESENTS TO NSS THAT CUSTOMER
UNDERSTANDS THOSE TERMS AND CONDITIONS AND AGREES TO BE BOUND BY THEM.
Name of CUSTOMER: Accepted by:
Authorized Signature Authorized Signature
Douglas J. Pearson
Name (Type/Print) Name (Type/Print)
Title (Type/Print) Name and Title (Type/Print)
NSS Ex$ell Support Agreement Page 1 of 5
ARTICLE 1.0. Definitions.
For purposes of this Software Support Agreement (Agreement), the following capitalized words and phrases shall have the following
meanings with respect to each Software Product:
1.1. Annual Support Fee: the fee payable by CUSTOMER to NSS for the Software Support Services for the Software Product:
(a) for the Initial Period, the amount specified under "ANNUAL SUPPORT FEE" on the first page of this Agreement; and
(b) for each subsequent twelve (12) month period thereafter during the Software Support Term, the standard fee then charged
1.2. CUSTOMER: the customer of NSS Corp (NSS) specified next to “CUSTOMER" on the first page of this Agreement.
1.3. Effective Date: the date labeled “EFFECTIVE DATE” on the first page of this Agreement.
1.4. Event of Default: the occurrence of any one or more of the following events:
(a) a breach of default by CUSTOMER in the payment or performance of any of CUSTOMER's obligations under this
(b) the insolvency (however evidenced) of CUSTOMER, an assignment for the benefit of creditors by CUSTOMER, or the
filing of any petition or the commencement of any proceeding by or against CUSTOMER under any bankruptcy or
insolvency laws or any laws relating to the relief of debtors, readjustment or indebtedness, reorganizations, compositions,
or extensions (and, in the case of an involuntary petition or proceeding, the failure to cause the same to be dismissed or
otherwise terminated within sixty (60) days of the filing or commencement thereof); or
(c) the dissolution, termination of business existence, business failure, suspension of the transaction of the usual business, or
appointment of a receiver of or for CUSTOMER.
1.5. Improvement: any enhancement or modification to the Software Product (together with any revisions to its documentation)
which is distributed generally by NSS at no additional charge to NSS' other software support customers for such Software
1.6. Initial Period: the initial period of time for which Software Support Services are to be provided under this Agreement, which
period of time shall commence on the Effective Date and shall continue thereafter for a (12) twelve month period, unless
otherwise stated on the first page of this Agreement.
1.7. License: the license granted, under a separate Software License Agreement, by Licensor to CUSTOMER authorizing
CUSTOMER to use the Software Product.
1.8. Licensor: NSS, as licensor, authorizes CUSTOMER to use the Quantity of copies of the Software Product, as specified on the
first page of this Agreement.
1.9. Quantity: the number of copies of the Software Product licensed by CUSTOMER under the License, as specified under
“QUANTITY" on the first page of this Agreement; or, if not specified, then one (1).
1.10. Software Product: a software product specified under "SOFTWARE PRODUCT" on the first page of this Agreement.
1.11. Software Support Services: as defined in Article 6.0 of this Agreement.
1.12. Software Support Term: the Initial Period; provided that the Software Support Term shall automatically be extended
thereafter for successive periods of twelve (12) months each unless and until either (a) the Software Support Services for the
Software Product are terminated as provided in this Agreement, or (b) this Agreement is terminated.
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ARTICLE 2.0. Software Support.
2.1. Support Services. Subject to and upon the terms and conditions of this Agreement, NSS agrees to provide CUSTOMER with
the Software Support Services for each Software Product during the Software Support Term.
2.2. Support Conditions. NSS' obligation to provide Software Support Services for any particular Software Product is subject to the
(a) Annual Support Fees for the period Software Support Services are requested have been paid by the CUSTOMER;
(b) such Software Product is in the form of the most recent or immediately prior release of such Software Product and has not
been modified from the standard form of such Software Product as is customarily licensed by Licensor to Licensor's other
customers, except to the extent that NSS specifically amends this Agreement to provide for any such Software Support
Services with respect to an Software Product that has been modified by NSS;
(c) such Software Product is being used by CUSTOMER in accordance with the terms and conditions of its License;
(d) CUSTOMER shall have provided NSS with all information reasonably requested by NSS from time to time in connection
with NSS' performance of Software Support Services for such Software Products; and
(e) the processor on which such Software Product is being used, any operating system and other system software associated
with such processor, and all other software upon which such Software Product relies or with which such Software Product
is interdependent, shall be operating properly.
(f) If NSS provides Software Support Services to CUSTOMER for any Software Product under circumstances where one or
more of the conditions set forth above have not been satisfied, then CUSTOMER agrees to pay to NSS, within ten (10)
days of NSS' invoice date and at NSS' then-current hourly rates, an additional fee for such services based on the services
ARTICLE 3.0. Payment Terms.
3.1. Initial Period. The Annual Support Fee for each Software Product for the Initial Period shall be payable in full upon the
execution of this Agreement; provided, that if the Initial Period is less than twelve (12) months:
(a) the total Annual Support Fee for the Initial Period shall be prorated on a monthly basis;
(b) a prorata portion of such total Annual Support Fee shall be payable in full upon the execution of this Agreement; and
(c) Except as may otherwise be specifically agreed in writing by NSS, no termination of Software Support Services shall
relieve CUSTOMER from the above payment obligations, it being acknowledged by NSS and CUSTOMER that NSS has
agreed to fix the amount of CUSTOMER's payment obligations for the Initial Period in exchange for CUSTOMER's
commitment to pay for Software Support Services throughout the Initial Period.
3.2. Subsequent Periods. For each subsequent twelve (12) month period following the Initial Period, CUSTOMER agrees to pay to
NSS the Annual Support Fee for each Software Product on or before the first (1st) day of such twelve (12) month period.
3.3. Non-Refundability. ALL SOFTWARE SUPPORT FEES ARE NON-REFUNDABLE.
3.4. Taxes. CUSTOMER agrees to pay all federal, state, and local taxes (including, without limitation, sales and use taxes, privilege
and excise taxes, and all other taxes of any kind or nature, exclusive only of taxes based on NSS' income) related to or arising
out of this Agreement, however such taxes may be designated, levied, or based, and whether on any of the fees set forth in this
Agreement, the Products, the Services, or any other performance whatsoever under this Agreement.
ARTICLE 4.0. Improvements to Software Products.
CUSTOMER agrees that CUSTOMER's right to make the Quantity of copies of each Software Product, and CUSTOMER's obligations
regarding the use of such Software Product, all as set forth in the License for such Software Product, shall also extend and apply to any
Improvements to such Software Product which are delivered under this Agreement.
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ARTICLE 5.0. Termination.
Software Support Services may be terminated by NSS or by CUSTOMER, as of the end of the Initial Period or any twelve (12) month
period thereafter, by providing the other party with a written notice of termination not less than thirty (30) days prior to the termination
date. In addition, upon the occurrence of an Event of Default, NSS, at NSS' option, shall be entitled to terminate Software Support
Services with respect to any or all of the Software Products by giving written notice thereof to CUSTOMER at any time thereafter.
ARTICLE 6.0. Software Support Services
6.1. Access. Telephone (toll free in continental U.S.) and e-mail access is provided to the NSS technical staff for application
6.2. Problem Diagnosis. NSS will provide diagnosis for problems occurring with all NSS supplied Software Products. If the
problem is determined to result from software not supplied by NSS, the problem diagnosis effort is billable to the CUSTOMER
at NSS’ standard hourly rates at the time the problem diagnosis effort was performed.
6.3. Software "FIXES". Software fixes will be provided for NSS developed and NSS customized components of all software
products. When a problem is determined to result from a third party software product (i.e., NT, Windows 2000, etc.), NSS will
facilitate the problem resolution process and bring third party supplier technical resources to bear as appropriate. The timely
creation of any required fix is the responsibility of the third party software developer.
6.4. NSS Support Hours. Support hours for the NSS technical staff are 8:00 am to 5:00 pm, Eastern Standard Time (EST).
6.5. Extended Hours Support Option. This service is available only to Software Support Services subscribers.
An additional fee will be required based upon the specific coverage requirement. It will consist of a base rate per 8 hour
extended coverage period, and a one-hour minimum per call charge. All time involved in support activities including the initial
call, problem diagnosis and resolution, and any follow-up activities or call backs will be billable at 150% of the then prevailing
NSS hourly rates.
Access to NSS technical staff will be available via a cell phone. Multiple staff members will be on call for all coverage periods.
A single technician will be assigned primary responsibility. Other technicians will be on call with backup responsibility. The
customer will receive a call back within a reasonable period of time, usually within 1 hour.
6.6. Response Time Commitment. Support calls from Software Support Services subscribers receive priority response over non-
subscribers. If the problem is determined to occur with a third party component of any Software Product, NSS will work with
the third party vendor to facilitate the solution in the shortest possible time frame. In the event that the third party vendor can
not supply a "fix" within a time frame acceptable to the CUSTOMER, NSS commits that all reasonable efforts will be made to
create a "temporary fix" or "work around". The "temporary fix" or "work around" will be supported until the third party vendor
provides a "permanent fix" for the problem.
6.7. Technical Services Web-site. NSS will provide a section of the NSS web-site (www.nsscorp.com) for access to support. It
will be accessible on a 24-hour basis.
6.8 Product Update Services. NSS developed product enhancements will be made available on a periodic basis. When practical,
minor enhancements and product fixes will be made accessible via e-mail. Major enhancements and product fixes will be
provided via CD shipped to the CUSTOMER.
Some fixes or updates will be specified as mandatory. The CUSTOMER is required to implement all mandatory updates within
90 days of their availability. Failure to implement a mandatory update may result in NSS' inability to support the old version of
Any system integration efforts or prerequisite software installation requirements (such as a specific operating system version)
that are needed to utilize NSS Software Product enhancements or to bring the CUSTOMER up to the "latest" product release
level are the CUSTOMER's responsibility. With reasonable notification NSS can provide technical resource to implement these
changes. All such work will be billable to the CUSTOMER at the then prevailing NSS hourly rates.
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ARTICLE 7.0. General Provisions.
7.1. Waiver. No Waiver by NSS or CUSTOMER of any breach or default by the other of any of the other's obligations under this
Agreement shall be deemed to be a waiver of any other breach or default of the same or any other nature. No failure by NSS or
CUSTOMER on any one or more occasions to exercise any right or remedy provided in this Agreement shall preclude the
exercise of such right or remedy on any other occasion.
7.2. Severability. Each term, condition, and provision of this Agreement shall be valid and enforced to the fullest extent permitted
by law. If there is any conflict between any term, condition, or provision of this Agreement and any statute, law, ordinance,
order, rule or regulation, the latter shall prevail; provided that any such conflicting term, condition, or provision shall be
curtailed and limited only to the extent necessary to bring it within the legal requirements and the remainder of this Agreement
shall not be affected thereby.
7.3. Binding Effect. This Agreement shall be binding on and for the benefit of NSS and CUSTOMER and their respective legal
representatives, successors, and assigns; provided that CUSTOMER shall not be entitled to assign, sublicense, delegate, or
otherwise transfer any of CUSTOMER's rights or obligations under this Agreement without the prior written consent of NSS.
NSS agrees not to withhold NSS' consent unreasonably to a proposed transfer of all of CUSTOMER's rights and obligations
under this Agreement to a third party that will be the successor to CUSTOMER's business by virtue of either (a) a statutory
merger, consolidation, or share exchange, or (b) a sale of all or substantially all of the assets of CUSTOMER, so long as
CUSTOMER requests NSS' consent prior to the proposed transfer.
7.4. Entire Agreement. Any oral or written statements, understandings, correspondence, purchase orders, or agreements previously
made by NSS and CUSTOMER with respect to the subject matter of this Agreement are merged into this Agreement, which
alone fully and completely expresses the respective obligations of NSS and CUSTOMER. This Agreement is entered into by
CUSTOMER after opportunity for investigation, and CUSTOMER represents that CUSTOMER is not relying upon any
statements, understandings, correspondence, purchase orders, or agreements not embodied in this Agreement and made by NSS
or on NSS's behalf.
7.5. Amendment. This Agreement may not be amended, in whole or in part, except by an instrument in writing signed by both
NSS and CUSTOMER.
7.6. Governing Law; Jurisdiction. This Agreement and all rights, remedies, and obligations under this Agreement, including
matters of construction, validity, and performance, shall be governed exclusively by the laws of the State of New Hampshire.
This Agreement shall be enforceable, at NSS' option, in any jurisdiction; provided, that CUSTOMER specifically consents to,
and agrees that CUSTOMER is subject to, the jurisdiction of the state and federal courts of the State of New Hampshire with
respect to any actions for enforcement of or breach of this Agreement.
7.7. Notices. Any demand, notice, or other communication required or permitted under this Agreement shall be in writing and shall
be either (a) hand-delivered to the addressee, (b) faxed to a telephone number specified by the addressee in a previous notice, or
(c) deposited in the mail (first class, registered, or certified) or delivered to a private express company, postage or freight
prepaid, addressed to NSS at the NSS Address and to CUSTOMER at CUSTOMER's Address. Each party may change such
party's fax number or address from time to time by giving the other party notice of the change.
7.8. Counterparts. This Agreement may be executed in one or more counterpart copies, each of which shall be deemed to an
original, but all of which together shall constitute one and the same instrument.
7.9. Headings. The article and section headings used in this Agreement are for convenience and reference only, and the words
contained therein shall not be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of any of
the provisions of this Agreement.
7.10. Survival. The provisions of Articles 4.0 of this Agreement shall survive any termination of this Agreement.
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