Software Maintenance Agreement

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Software Maintenance Agreement Powered By Docstoc
					This is an agreement between the owner of a software program (the “Licensor”) and
another company (the “Licensee”) for the maintenance of a software program. This
agreement contains all of the essential terms typically included in these types of
agreements, such as, the obligations of the parties, the term, the fee charged, payment
due date, and much more. This agreement can be used by small businesses or other
entities that want to enter into an agreement for the maintenance of specific software.
               SOFTWARE MAINTENANCE AGREEMENT
                 ___________________ (the “Company”) and/or its assigns
            a company incorporated under the laws of the State of ________________

                                  (hereinafter, also the "Licensor")


                                                And

       _________________________________
           a company incorporated under the laws of the State of _______________

                                      (the "Licensee")
{Instruction: "Licensor" is the company providing the software, and "Licensee" is the
company purchasing and/or using the software.}

1.     Software, Training and Maintenance Package

1.1
"Software" means and includes the proprietary computer software program of the Licensor
designed to _____________________ [DESCRIBE WHAT SOFTWARE IS DESIGNED TO
DO] and which is licensed to the Licensee under this Agreement, including any modifications
thereof or enhancements thereto, but excluding any data or databases owned or compiled by the
Licensor, its affiliates or its designated supplier(s) for use in connection with the Software or
otherwise.

The Licensor shall provide maintenance of the software and the actual software only, and does not
provide business direction or advice. The Software does not include the source code, which is
property of the Licensor.

It is the Licensee's responsibility to ensure the success of their Business. The Licensor does not
guarantee the success of the Licensee’s business. Entering into any Business is risky and the
Licensee may lose money.

The Software will not function without an active subscription. Once the subscription expires, the
Software will operate for a grace period of approximately two weeks and the maintenance services
for the Software shall cease. After the grace period, the Software will no longer operate and the
maintenance services shall terminate.

2.     Grant of License and Maintenance Agreement

2.1
The Licensor hereby grants to the Licensee one non-exclusive license to use the Software, subject
to the following terms and conditions:
              © Copyright 2011 Docstoc Inc.                                                          2
(a)    The Software shall not be operated by persons other than the Licensee and
       authorized employees and/or contractors and agents of the Licensee;
(b)    The Software shall not be maintenance by any other service provider save and except for
the Licensor. In the event the Software is maintenance by any other party other than the Licensor,
this Agreement shall immediately terminate;

(c)    The Software shall be used by the Licensee only for the purpose of          conducting the
Business and shall not be used to perform any other function      whatsoever      for any other
person, entity or business;

(d)    The Licensee shall not, and shall not allow its employees and/or contractors      or
agents, to:

       (i)     sell, lease, sub-license, modify or market in any way, the Software or any
               component thereof or perform any maintenance to the Software;

       (ii)    use the Software for any purpose other than as described herein;

       (iii)   disclose or grant access to the Software or any component thereof to any third party
               other than one to whom the Licensor has consented in writing and who has agreed
               in writing with the Licensor to keep the Software confidential, as well as the means
               of operation of the Business, and to any other conditions so established by the
               Licensor in its sole discretion; or

       (iv)    copy or reproduce the Software or any component thereof, in any manner
               whatsoever, or modify the Software in any way, except to the extent necessary for
               normal backup, test and disaster recovery and operating thereof.

(e)    The Licensee shall keep the Software and the means of operation of the Business and the
       terms and conditions of this Agreement confidential during and after the term of this
       Agreement, and shall establish and maintain such security precautions as are prescribed by
       the Licensor from time-to-time to maintain the secrecy of the Software and to prevent
       unauthorized access to or use, disclosure or copying of the Software or unauthorized
       maintenance of the Software;

(f)    The Licensee warrants that all of its respective employees and/or contractors and permitted
       agents who have access to the Software will have signed the Licensor's standard non-
       disclosure Agreement if required. The Licensee will be fully responsible to ensure that each
       such employee handles the Software as required by this Agreement and will not perform
       any maintenance to the Software and the Licensee will be liable for any loss or damage
       resulting from any such employee or agent failing to do so. The Licensee will notify the
       Licensor promptly of any unauthorized use or possession of the Software or any
       unauthorized maintenance that comes to its attention;



               © Copyright 2011 Docstoc Inc.                                                          3
(g)    The Licensee acknowledges and agrees that the Software is the valuable, proprietary
       property and trade secret of the Licensor and the Licensee agrees to safeguard the Software
       and to maintain the secrecy and confidentiality thereof at all times both during and after the
       term of this Agreement. The Licensee shall not undertake to patent, copyright or otherwise
       assert proprietary rights to the Software or any portion thereof at any time now or in the
       future. The Licensee recognizes that all or part of the Software may be copyrighted and
       agrees that this will not be construed as causing the copyrighted material to be or become
       public information. The Licensee will ensure that all copies of the Software or any
       components thereof in its possession retain any copyright notice or other notice of
       proprietary rights included by the Licensor;

(h)    The Licensee shall not modify the Software in any way without the prior written consent of
       the Licensor; and

              (i)     The Licensee acknowledges and agrees that any violation by the Licensee of
                      the provisions of this section would cause the Licensor irreparable harm for
                      which the Licensor would have no adequate remedy at law and that, in
                      addition to any other remedies which it may have, the Licensor shall be
                      entitled to preliminary and permanent injunctive relief to restrain the
                      occurrence or continuance of any such violation without opposition from the
                      Licensee.

3.     Maintenance and License Fees

3.1
In consideration of the license and maintenance agreement granted by the Licensor to the
Licensee, the Licensee agrees to pay the Licensor a Maintenance and License Fee in the sum of
__________ ($________) Dollars plus all applicable taxes, currently _____ Percent (___%) (for a
total payment of $_________ for the Software and maintenance). The License fee includes up to
_____ hours of training during the first _____ months of operation at $_____ per hour, setting up
and granting access to the software (IT time) of $____________ (Note: This does not include
server set up at the Licensee’s business), administrative costs of $__________ (sales, phone calls,
commissions and time) and creation and layout of the graphics for a cost of $______ (Note:
Graphics already paid for and new graphics are not included.) and maintenance fees at the rate of
$______ per visit at the Licensee place of Business. The Licensee acknowledges that the grant of
the license for the Software and maintenance hereunder constitutes the consideration for the
payment of this Maintenance License Fee. The Maintenance and License Fee is due and fully
earned upon execution of the Agreement. In the event that any part of the Maintenance and
License Fee and corresponding taxes are not paid upon execution of the Agreement, the remaining
balance of the Maintenance and License Fee plus applicable taxes shall be due and payable in full
no less than one (1) year with twelve (12) equal payments commencing one (1) month after the
execution of the Agreement with interest accumulating at a rate of _____% compounded annually.

3.2


              © Copyright 2011 Docstoc Inc.                                                             4
The Licensee represents that he does not wish to obtain such right and license for speculative or
investment purposes and has no present intention to sell or transfer or attempt to sell or transfer all
or any part of the rights acquired in the Software. Furthermore, the Licensee acknowledges that the
License received hereunder is non-exclusive, and therefore he will be competing with any number
of providers of similar services, and which competitors may include the Licensor.

3.3
The Maintenance and License Fee shall furthermore entitle the Licensee to receive the following
from the Licensor:

       (a)     Training; and
       (b)     Maintenance.

(a)     The Licensor shall provide an initial training program to the Licensee for the
implementation and operation of the Software, at a location to be designated by the Licensor, with
such training being provided as required to ensure that the Licensee has a working knowledge of
the software, to a maximum of _____ hours of training. Additional training and ongoing support
shall be available as requested by the Licensee on the terms provided in Section 5.1 of this
Agreement, below.

4.     Obligations of Licensee

4.1
With respect to the Licensee’s operation of the Business pursuant to the license granted under this
Agreement, the Licensee agrees to comply with all of the conditions of use set out below.

(a)    Payment of the Subscription

       (i)     SUBSCRIPTION DESCRIPTION: Purchase of the subscription entitles you during
               the subscription period to Software telephone, email and on-site technical support
               during support hours (as defined below), software updates, offers to purchase new
               add-ons, upgrades (as defined below). "Updates" means a minor modification or
               addition that includes corrections or modifications (other than an upgrade) to
               correct errors, provide patches, bug fixes or minor enhancements. "Upgrades"
               means a major revision or modification which changes its utility or efficiency
               and/or which adds features, functions, applications or modules.

Subscription Pricing

The Licensee agrees to pay a $____________ monthly subscription fee to use the Software and for
Software Maintenance.

Payment Due Date



               © Copyright 2011 Docstoc Inc.                                                              5
All monthly payments required by this Agreement must be received by the Licensor by computer
transfer, direct debit, or such other manner as may be designated by the Licensor. Any payment
not actually received by the Licensor on or before the due date will be considered overdue and will
be subject to a late fee payable to the Licensor of $_____ for each and every instance of an
overdue amount owing, and interest shall accrue on all such overdue amounts at a rate of _____%
per annum until the overdue amount(s) are fully paid. Any returned payment will be subject to a
$______ NSF fee.

5.     Obligations of Licensor

5.1
In addition to other obligations otherwise detailed herein, the Licensor shall also provide ongoing
support and training as requested by the Licensee. The fees to be paid to the Licensor are as
follows:

(a)    $____________ per hour for training of Licensee and Licensee’s employees;            and

(b)    $____________ per hour for emergency IT support (e.g. server breakdown               or
       website failure).

6.     Term

6.1
This Agreement is effective as of the date of execution and will continue in full force and effect for
a period of ______ (__) year, thereafter automatically renewing on the anniversary date of
execution for successive _____ (__) year periods unless:

(a)    this Agreement is otherwise terminated in accordance with its terms;

(b)    this Agreement is terminated by the mutual desire of the parties hereto; or

(c)    one party gives the other a minimum of ______ (___) days written notice of           its desire
to cancel this Agreement.

7.     Termination

7.1
The Licensee will have _______ (___) calendar days after its receipt from the Licensor of a written
notice of termination to remedy any default described in this section and provide evidence of
compliance to the Licensor. If any such default is not cured within that time, this Agreement, at
the Licensor's option, will terminate without further notice to the Licensee effective immediately
upon the expiration of the ______ (___) day period. The Licensee will be in default for any failure
to comply substantially with any of the requirements imposed by this Agreement, or for any failure
to carry out the terms of this Agreement.


               © Copyright 2011 Docstoc Inc.                                                             6
8.     Obligations on Termination

8.1
Upon termination of this Agreement, the Licensee shall permit the Licensor's employees or agents
to retrieve the Software from anywhere it may be located, shall immediately return to the Licensor
the Software and shall immediately destroy any and all backup or other copies of the Software or
parts thereof, documentation for the Software, and any other materials or information which relate
to or reveal the Software and its operation.

8.2
If the Licensee terminates the Agreement, the Licensee shall not pay a termination fee.

9.     Disclaimer of Warranty

9.1
The Licensor represents and warrants that it has the authority to grant the rights contained in this
Agreement to the Licensee. The Licensor makes no other warranty with respect to the Software
and expressly disclaims any implied warranty of merchantability and of fitness for any specific
purpose. The license granted by this Agreement, the Software, and all other information provided
to the Licensee under this Agreement is provided on an "as-is" basis. The Licensor makes no
warranties about the Software and the decisions the Software makes. The Software may make
decisions which are not in the Licensee’s best interest. The Licensee should monitor the
Software’s decisions and check if they are in the best interest of the Licensee’s business. The
Licensor DOES NOT WARRANT THE SYSTEM AND SERVICES, OR THE ACCURACY OR
CORRECTNESS OF THE RECORDS, OR DATA AND THERE ARE NO WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

10.    Limitation of Remedies

10.1
Notwithstanding anything contained in this Agreement and except as limited by applicable law,
both parties agree that in the event of any actual or alleged failure, breach or default under this
Agreement by either party:

(a)     the sole and exclusive remedy shall be against the entity then constituting either party, and
shall be limited to the damages set out in this Agreement;

(b)    no partner, officer, director, shareholder or employee of either party shall be    sued or
named as a party to any suit or action and no service of process shall       be made against any of
them except as may be necessary to secure jurisdiction of either party, nor shall any of them be
required to answer or otherwise plead to any service or process;




               © Copyright 2011 Docstoc Inc.                                                            7
(c)     no judgment shall be taken against any partner, officer, director, shareholder or
employee of either party and if any judgment is so taken, such judgment may be vacated and set
aside at any time;

(d)     no writ of execution shall ever be levied against the assets of any partner, officer, director,
shareholder or employee of either party or any assets of the          either party, other than as
specified in subsection (a) above; and

(e)    these covenants and Agreements are enforceable by the either party and by       any
partner, officer, director, shareholder or employee of the either party and shall survive           the
termination of this Agreement for any reason.

11.    Limitation of Liability

11.1
The Licensor's liability for damages under this Agreement, regardless of the form of action, shall
not exceed the cost of replacing the Software with a replacement copy of the Software. However,
in the event the Licensor fails to provide the Licensee with a replacement copy of the Software or
with equivalent software satisfactory to the Licensee, the Licensor shall pay Licensee its cost to
acquire replacement software to replace the Software and transfer the Licensee’s data to such
replacement software. Except as stated above, the Licensor shall not be liable for any damages,
including but not limited to lost profits, arising out of or in connection with any use, or inability to
use, all or any aspect of the Software, even if the Licensor has been advised of the possibility of
such damages.

11.2
Incidental and Consequential Damages. In no event shall the Licensor be liable to Licensee for
indirect, incidental or special damages under any cause of action arising out of or related to this
Agreement including, without limitation, loss of use of facilities, business interruption, loss of
business, data loss, data error, lost profits or information or other economic loss.

11.3
Limitation of Liability. In no event shall the Licensor’s liability to Licensee for any purpose under
this Agreement exceed in the aggregate the amount paid by Licensor to the Licensee during any
_____ (__) month period during the Term of this Agreement.

11.4
Compliance with Laws by the Licensor. In no event shall Licensor be liable to Licensee for any
failure of the Systems and Services to comply with any law.

12.    Survival

12.1



               © Copyright 2011 Docstoc Inc.                                                               8
Both parties agree and acknowledge that all terms regarding the obligations to maintain the
confidentiality of the Business and the Software shall survive the termination of this Agreement
for a period of ______ (__) years.

13.    Deadlines

13.1
The parties agree that the deadlines set out in this Agreement will be strictly enforced.

14.    Amendments

14.1
Any amendment or modification of this Agreement is invalid unless made in writing and signed by
the Licensor and the Licensee.

15.    Notice

15.1
Any notice required or permitted to be given under this Agreement will be in writing and may be
given by personal service, sent by pre-paid courier or by pre-paid registered or certified mail, in a
sealed envelope addressed to the parties hereto at their mailing addresses provided on page one of
this Agreement. Notice to the Licensor should be delivered to its address set out on Page One of
this Agreement. The address given for the delivery of a notice may be changed at any time by
either party by written notice in accordance with this section. Any notice delivered personally will
be considered to be received on the day delivered. Any notice sent by registered or certified mail
will be considered to be received on the _____ (___) business day following the date of mailing.

15.2
Any notice sent by courier will be considered to be received on the next business day following the
date of dispatch.

16.    No Waiver

16.1
No failure of the Licensor to execute any power reserved to it by this Agreement, or to insist upon
strict compliance by the Licensee with any obligation or condition of this Agreement, and no
custom or practice of the parties that differs from the terms of this Agreement, will constitute a
waiver of the Licensor's right to demand exact compliance with any of the terms of this
Agreement. Waiver by the Licensor of any particular default by the Licensee will not affect or
impair the Licensor's rights with respect to any subsequent default of the same, similar or different
nature, nor will any delay, forbearance or omission of the Licensor to exercise any power or right
arising out of any breach or default by the Licensee of any of the terms, provisions or covenants,
affect or impair the Licensor's right to exercise any of its powers or rights, nor will such constitute
a waiver by the Licensor of any right under this Agreement, or the right to declare any subsequent
breach or default and to terminate this Agreement prior to the expiration of its term. Subsequent

                © Copyright 2011 Docstoc Inc.                                                             9
acceptance by the Licensor of any payments due to it under this Agreement will not be considered
to be a waiver by the Licensor of any preceding breach of the Licensee of any terms, covenants or
conditions of this Agreement.

17.    Uncontrollable Circumstances

17.1
Delays in the performance of any duties under this Agreement that are not within the reasonable
control of the parties due to fire, flood, natural disaster, act of God, governmental acts or orders or
civil disorders including strikes will not cause a default under this Agreement and the other party
will extend the time for performance for the period of such delay or for such other reasonable
period of time as may reasonably be required.

18.    Time of the Essence

18.1
Time is of the essence with respect to this Agreement and the time for performance of the
obligations of the Licensee under this Agreement may be strictly enforced by the Licensor.

19.    Further Assurances

19.1
Each of the parties agree to sign and deliver such other documents, cause such meetings to be held,
resolutions passed and by-laws enacted, exercise their vote and influence and do and cause to be
done and any other acts and things necessary or desirable in order to give full effect to this
Agreement.

20.    Entire Agreement

20.1
This Agreement, when fully executed, will supersede any and all prior and existing Agreements,
understandings, negotiations and discussions, either oral or in writing, between the parties with
respect to the subject matter of this Agreement and shall comprise one Agreement. Except as
specifically set out in this Agreement, there are no representations, warranties, undertakings,
provisos, inducements, covenants or Agreements whether direct, indirect, collateral, express or
implied made by the Licensor to the Licensee.

21.    Written Consent

21.1
Whenever this Agreement requires the prior approval or consent of the Licensor, the Licensee will
make a timely written request to the Licensor for such approval or consent, and such approval or
consent will be obtained in writing and will not be unreasonably withheld.

22.    Assignment

               © Copyright 2011 Docstoc Inc.                                                              10
22.1
Neither party will assign this Agreement without first obtaining the written consent of the other,
which consent may not be unreasonably withheld except that either party may assign all the rights
and interest under this Agreement to its parent, subsidiaries or affiliates, without prior written
consent from the other party. Nothing in this Agreement will limit the right of either party to have
any of its obligations performed by its subsidiaries, affiliated companies or parent companies,
provided that in all such cases the party to this Agreement will remain directly responsible for any
such obligation. Reorganization, merger or consolidation is not deemed to be an assignment. There
will be no charge to the Licensee or any permitted assignee for any assignment under this
Agreement other than any fees, costs and/or expenses incurred by the Licensor to reconfigure in
any way any of its operating systems or business methods to accommodate the assignee, which
shall be borne and fully payable by the Licensee.

23.    Headings

23.1
All headings in this Agreement are intended solely for the convenience of the parties, and no
heading will be considered to affect the meaning or interpretation of any part of this Agreement.

24.    References

24.1
All references in this Agreement to the masculine, neuter or singular will be interpreted to include
the masculine, feminine, neuter or plural, where applicable.

25.    Severability

25.1
Except as may be expressly provided to the contrary in this Agreement, each section, part, term
and/or provision of this Agreement will be considered severable and fully-enforceable on its own.
If, for any reason, any part of this Agreement is determined to be invalid and contrary to, or in
conflict with, any existing or future law or regulation by a court or agency having valid
jurisdiction, it will not impair the operation of, or have any other effect upon, any other part of this
Agreement as may remain otherwise intelligible, and that part will continue to be given full force
and effect and bind the parties. The invalid part or parts will be considered not to be a part of this
Agreement. To the extent permitted by applicable law, the parties hereto waive any provision of
law which renders any provision of this Agreement prohibited or unenforceable in any respect.




               © Copyright 2011 Docstoc Inc.                                                               11
                                                 12



26.    Benefit of Agreement

26.1
Nothing in this Agreement is intended, nor will be considered, to confer upon any person or legal
entity other than the parties and their respective successors and assigns any rights or remedies
under this Agreement. This Agreement is available for the benefit of, and is binding upon, the
heirs, successors, personal representatives and assigns of the parties.

27.    Governing Law

27.1
This Agreement will be interpreted exclusively in accordance with the laws of the State of
_______________ applicable therein. All parties to this Agreement agree to submit to the
jurisdiction of courts in the county of _______________________ [PROVIDE LOCATION
WHERE PARTIES AGREE THAT ANY DISPUTE OR DISAGREEMENT WILL BE
HEARD.]

28.    Indemnification

28.1
Licensee Indemnification. Licensee agrees to indemnify and hold harmless Licensor and its
affiliates, and their respective shareholders, directors, officers, members, managers, agents,
employees, and legal representatives (Licensor and each such person and entity being referred to
as an “Indemnified Person”), from and against any losses, claims, damages, or liabilities, including
all costs, fees and expenses (including without limitation reasonable attorneys’ fees) related to or
arising out of this Agreement, any breach of this Agreement or violation of any law. The
foregoing indemnity does not include any act of Licensor that is gross negligence by Licensor. The
foregoing indemnity shall be in addition to any rights that any Indemnified Person may have at
common law or otherwise, including, without limitation, any right to contribution.

29.2
Licensor Indemnification. Licensor agrees to indemnify and hold harmless Licensee from and
against any liabilities, including without limitation, losses, claims, damages, costs, fees and
expenses (including without limitation reasonable attorneys’ fees) Licensee incurs related to or
arising out of any breach by Licensor of this Agreement by Licensor. The foregoing indemnity
does not include liability as a result of gross negligence by Licensee. The foregoing indemnity
shall be in addition to any rights that Licensee may have at common law or otherwise, including,
without limitation, any right to contribution.

30.    Arbitration

30.1
In the event a claim, controversy or dispute (other than a claim for equitable relief) between
Licensor and Licensee arises out of or in connection with this Agreement or the transactions and
business contemplated thereby, either party may demand that such matter be submitted to final and
binding arbitration, and such demand shall compel the other party to participate in such arbitration.
                                                  13



All arbitration proceedings shall be held in ________________ [PROVIDE COUNTY
SPECIFIED IN PARAGRAPH 27.1, ABOVE] unless Licensor and Licensee agree in writing to
another location. Issuance of an arbitration demand shall suspend any judicial or administrative
proceedings instituted in connection therewith (except for equitable remedies), for the duration of
the arbitration proceedings. The arbitrator or arbitrators may award attorneys fees and costs to the
prevailing party. Termination or limitation of Licensor’s rights in the Agreement, or any associated
intellectual property rights may not be awarded under any circumstances. The right to demand
arbitration and to receive damages and obtain other available remedies as provided hereunder shall
be the exclusive remedy in the event an arbitration demand is made, except that Licensor shall be
entitled to obtain equitable relief, such as injunctive relief from any court of competent jurisdiction
in order to protect its rights in the Agreement or any associated intellectual property rights while
such proceeding is pending or in support of any award made pursuant to such arbitration. Licensor
and Licensee hereby consent to the enforcement of any arbitration judgment or award rendered
pursuant to this section in the courts of each state where Licensee or Licensor have offices or
significant assets.

                      31. Supersedes

31.1
This Agreement supersedes any prior or contemporaneous discussions, agreements, or
representations by or between the parties hereto.


             IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of this ____ day of ________,
201____.


                                      (LICENSEE)
                                      Per:



                                      Name: _______________
                                      Title: ________________
                                      I have authority to bind the Company.


                                      (LICENSOR)
                                      Per:



                                      Name: ____________________
                                      Title: ____________________
                                      I     have    authority  to          bind     the     Company.
                                                 14


				
DOCUMENT INFO
Description: This is an agreement between the owner of a software program (the “Licensor”) and another company (the “Licensee”) for the maintenance of a software program. This agreement contains all of the essential terms typically included in these types of agreements, such as, the obligations of the parties, the term, the fee charged, payment due date, and much more. This agreement can be used by small businesses or other entities that want to enter into an agreement for the maintenance of specific software.
This document is also part of a package Technology Services and Agreements 38 Documents Included