Software Support Agreement

Congratulations on selecting a TROY Software Maintenance Agreement. In order to finalize your purchase you must complete the following information and agree to the outlined terms and conditions:

TROY PRODUCT MAINTENANCE SERVICE AGREEMENT

 

TROY GROUP INC., A DELAWARE CORPORATION ("LICENSOR"), IS WILLING TO PROVIDE SOFTWARE MAINTENANCE SERVICES TO YOU AS AN INDIVIDUAL OR THE LEGAL ENTITY YO U REPRESENT (COLLECTIVELY WITH ANY AFFILIATES "LICENSEE") THAT WILL BE UTILIZING THE LICENSED SOFTWARE (AS DEFINED BELOW), SUBJECT TO LICENSEE'S ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. THIS IS A LEGALLY BINDING AND ENFORCEABLE CONTRACT BETWEEN LICENSEE AND LICENSOR (THE "AGREEMENT"). LICENSEE SHOULD READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE AGREEING. BY CLICKING THE "I AGREE" OR "YES" BUTTON, OR OTHERWISE INDICATING LICENSEE'S ASSENT ELECTRONICALLY, LICENSEE AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE "I DO NOT AGREE" OR "NO" BUTTON.

 

ALL OFFERS FOR SALE OF SERVICES ARE SUBJECT TO THESE TERMS, AND ANY PROPOSED ADDITIONS TO OR MODIFICATIONS MADE BY LICENSEE ARE HEREBY EXPRESSLY REJECTED. IF LICENSEE IS ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO B IND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.

 

For good and valuable consideration, the sufficiency of which is hereby acknowledged, Licensee and Licensor agree to the terms and conditions set forth below:

 

1. Agreement:

 

During the term of this Agreement, Licensor shall perform, or cause to be performed, maintenance services on the Software, and Licensee shall accept and pay for such services, pursuant to the terms and conditions herein provided. As used in this Agreement, "Software" shall mean the Software as defined in the separately executed License Agreement between Licensor and Licensee, as such Software may hereafter be updated with improvements, enhancements and modifications furnished to Licensee by Licensor.

 

2. Licensor’s Duties:

 

During the term of this Agreement, Licensor shall perform the following services for Licensee:

 

(a) Licensor shall use commercially reasonable efforts to remedy programming errors in the Software in the form provided by Licensor to Licensee that are attributable to Licensor and that significantly affect the performance of the Software ("Errors"). Such remedy may consist of corrected portions of the Software, patches, communication of a workaround that gives Licensee the ability to achieve substantially the same functionality as would be obtained without the Errors, or replacement of the Software.

 

(b) Licensor shall provide reasonable telephone and e-mail support for problems, discrepancies or Errors which, in Licensor's judgment, may most effectively be resolved through such support, during the hours set forth on the attached Schedule A, as such may hereafter be modified from time to time by Licensor; provided, however, that Licensor may charge, at its standard hourly rate as defined on the Statement of Work, for services provided in responding to support requests for which there exist adequate materials in Licensee's possession to address the general and specific areas and topics about which such requests are made.

 

(c) Licensor shall license to Licensee, subject to the terms and conditions set forth in the License Agreement, updates, improvements and modifications to the Software that are necessary to correct errors at such time as such updates, improvements and modifications are made available for general release to Licensor's customers.

 

3. Licensee's Duties:

 

During the term of this Agreement, Licensee shall do the following:

 

(a) Licensee shall notify Licensor of any Errors and shall provide Licensor with sufficient documentation, information support and test time on Licensee's computer system to duplicate the problem reported by Licensee, certify that the problem is with the Software and certify that the problem has been corrected.

 

(b) At Licensor's reasonable request, Licensee shall provide remote access to Licensor. Licensee shall be responsible f or installation, maintenance and use of such equipment and associated telephone equipment use charges. Licensor, at its option, shall use this remote access in connection with error correction. Such access by Licensor shall be subject to approval by Licensee in each instance and shall be subject to Licensee insuring that Licensor does not have access or exposure to confidential or personally identifiable data or information of Licensee, its customers or other third parties.

 

(c) Licensee shall perform problem definition activities and any remedial or corrective actions, as described in the Software user manuals and other system documentation provided to Licensee by Licensor, prior to seeking assistance from Licensor.

 

(d) Licensee shall allow Licensor reasonable access to Licensee's equipment at reasonable times and shall cooperate with Licensor for the purpose of providing the services set forth herein.

 

4. Additional Services:

 

At Licensee's request, Licensor may provide technical, operational or other assistance or consulting to Licensee in addition to the services specified in Section 2 at Licensor's then current rate.

 

5. Service Limitations:

 

(a) Licensor shall have no obligation to investigate or correct problems (including Errors) that (i) cannot be reasonably reproduced by Licensor based on information provided by Licensee, or; (ii) that cannot be demonstrated by the Licensee on the Licensor's request, or; (iii) that are due to a breach by Licensee of the terms of the License Agreement, or; (iv) that cannot be remedied due either to the operational characteristics of the computer equipment on which the Software is used that is not in compliance with the documentation included with the Software, or; (v) are due to modifications to the Software made by Licensee or any third party not authorized by the Licensor.

 

(b) Licensor shall have no obligation to provide the services provided for herein for versions of the Software, or any portions, aspects or components thereof, (i) that have been declared obsolete or discontinued by Licensor for one (1) year or more after written notice from Licensor to Licensee of such obsolescence or discontinuation, or (ii) that have been superseded by an update, improvement or modification provided at no additional cost by Licensor hereunder, if one (1) year after such update, improvement or modification has been provided to Licensee such update, improvement or modification has not been installed by Licensee.

 

(c) Licensor shall have no obligation to support Software that has not been maintained to the latest update, improvement or modification provided to Licensee, if one (1) year after such update, improvement or modification has been provided such update, improvement or modification has not been installed by Licensee.

 

(d) Licensor shall have no obligation to maintain Licensee or third party modified portions of the Software or portions of the Software affected by such modifications. (e) If Licensor agrees to correct any problems not covered by this Agreement, Licensee shall pay Licensor for all such work performed at Licensor's then-current standard rates for time and materials as defined on the Statement of Work.

 

6. Term:

 

The term of this Agreement shall commence on the date Customer agrees to the terms of this Agreement and ends twelve (12) months from the Effective Date (the "Initial Term"). This Agreement will then automatically renew for additional one (1) year periods (each a "Renewal Term"), unless either party gives written notice not to renew this Agreement to the other party no later than ninety (90) days prior to the anniversary date of the Initial Term or any Renewal Term.

 

7. Fees and Payments:

 

(a) Licensee shall pay to Licensor an annual maintenance fee equal to Licensor's "then-current" charges for such services in each geographic region or as separately quoted by Licensor.

 

(b) Licensee shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, Federal, state or otherwise, however designated, which are levied or imposed by reason of the services set forth in this Agreement, excluding only taxes based on Licensor's income, according to the terms and conditions contained herein.

 

(c) All invoices shall be due and payable in full thirty (30) days from the date of such invoice. All invoices past due shall bear interest at a rate of one and one half percent (1-1/2%) per month or the maximum amount allowed by law, until payment in full is made. Payment shall be made in U.S. Dollars.

 

8. Ownership of Software; Use of Name:

 

(a) The Software, any updates, improvements and modifications thereto, and any new or partial software, programs, tools or documentation as may be provided under this Agreement shall remain the property of and proprietary to Licensor and shall be licensed for use by the Licensee subject to the terms and conditions set forth in the License Agreement

 

(b) Except as necessary for its performance under this Agreement or as may be required by law, a relevant regulator, or the rules of any stock exchange or similar organization, each party shall not use the name of the other party, or its affiliates or subsidiaries, in connection with any representation, solicitation, promotion, sales or marketing publication or advertisement, or make any press release or other public statement relating to the other party, or its affiliates or subsidiaries, without the prior written consent of that party.

 

9. Limited Warranty and Limitation of Liability:

 

(a) Licensor represents that it shall use commercially reasonable efforts to remedy Errors. OTHER THAN AS SET FORTH IN THIS SECTION 9, LICENSOR'S SERVICES HEREUNDER ARE PROVIDE D "AS IS." OTHER THAN AS SET FORTH IN THIS SECTION 9, LICENSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, DESIGN, QUALITY, PERFORMANCE, CONTINUOUS USE, ERROR-FREE OPERATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, OR ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES, SHALL IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

 

(b) LICENSOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR USE OR PERFORMANCE OF THE SOFTWARE, OR OTHERWISE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, DELAY, ECONOMIC, PUNITIVE OR PROPERTY DAMAGES WHATSOEVER (INCLUDING ANY DAMAGES FOR LOSS OF USE OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY, WHETHER WARRANTY, TORT, CONTRACT OR OTHERWISE. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, LICENSOR'S MAXIMUM LIABILITY TO LICENSEE HEREUNDER SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY LICENSEE TO LICENSOR HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO ANY SUCH CAUSE OF ACTION.

 

10. Termination:

 

This Agreement shall terminate in the event of termination of the License Agreement. In addition, this Agreement may be terminated by:

 

a) Licensor if Licensee fails to pay when due any amounts due hereunder twenty (20) days after having serving notice requiring immediate payment, or;

 

b) either party if the other party: (i) commits a material breach hereof, and persists in such failure for twenty (20) days after receiving written notice thereof from non-breaching party, or; (ii) becomes subject to bankruptcy, insolvency or similar proceedings or makes an assignment for the benefit of creditors.

 

c) Upon termination of this Agreement under Sect ions 10(a) or 10(b) by the Licensor, all maintenance fees and charges payable for the Initial Term or the Renewal Term, as the case may be, shall become due and payable in full.

 

11. General:

 

(a) The parties acknowledge that they have read this Agreement, understand it, and agree to be bound by its terms. The parties further agree that this Agreement, including Schedule A, and the License Agreement are the complete and exclusive statement of the agreement between them with respect to the subject matter hereof and supersedes all prior oral and written proposals and understandings, including, without limitation, brochures, advertisements, manuals, sales books, invoices and other materials. This Agreement, including Schedule A, and the License Agreement may not be modified or altered except by a written instrument duly executed by both parties.

 

(b) All questions concerning the construction, validity and interpretation of this Agreement will be governed by the laws of the State of California without regard to its conflicts of laws. Any claim or controversy arising out of or related to this Agreement or any breach thereof shall be submitted to the Superior Court of the State of California, Santa Ana in Orange County, and the parties hereto hereby consent to the exclusive jurisdiction and exclusive venue of such court.

 

(c) Except with respect to the payment of fees hereunder, neither party shall be held responsible or liable for any delays in, failure or suspension of service or loss or damage due to causes beyond its control, including mechanical or power failure, computer malfunctions (including without limitation software, hardware and firmware), earthquake, war, acts of terrorism, fire, flood, power failure, telecommunication failure, inability to operate or obtain service for its equipment, explosions, acts of God or other catastrophes.

 

(d) If any provision of this 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.

 

(e) This Agreement shall be binding upon and for the benefit only of the parties hereto and their respective successors and permitted assigns. Licensee may not assign this Agreement or any of its rights, duties or obligations hereunder without the prior written consent of Licensor.

 

(f) 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.

 

(g) All communication or notices permitted or required to be given or served under this Agreement shall be in writing, shall be addressed to the President at the appropriate party's address as set forth below, and shall be deemed to have been duly given or served if delivered in person or deposited in the United States mail, certified mail, return receipt requested.

 

(h) Except as otherwise required by law, without the written consent of other party , each party agrees not to publicize or disclose the terms of this Agreement to any person other than the officers and directors of that party, and other employees (but not contractors) of that party with a need to know for purposes of this Agreement, provided that such officers, directors and employees are bound by a written confidentiality agreement with terms at least as restrictive as those set forth herein. Failure to comply with this provision shall be deemed a breach of this Agreement.

 

SCHEDULE A

SOFTWARE MAINTENANCE AGREEMENT

SERVICE LEVELS

 

1. CALL CENTER

 

TROY's call center will be available Monday through Thursday 8:00 a.m. – 6:30 p.m. and Friday 8:00 a.m. – 5:30 p.m. Eastern Time, excluding holidays. Holidays observed by TROY are: New Year’s Eve, New Year’s Day, Memorial Day, 4th of July, Labor Day, Thanksgiving Day and the day after Thanksgiving, Christmas Eve, and Christmas.

 

2. RESPONSE TIME

 

Average response time during the stated coverage period will be within four (4) working hours of a support request at least 80 percent of the time, unless deferred to a more convenient time by the customer.