MAINTENANCE AGREEMENT SAMPLE (FOR VENDORS PROVIDING SOFTWARE FIXES, NEW RELEASES AND VERSIONS SUBJECT TO EXCLUSIONS FOR CUSTOMER MISUSE)

THIS MAINTENANCE AGREEMENT ("Agreement"), dated as of [_____________], is between [_____________], a [_____________] corporation with an address at [_____________] ("Customer") and [_____________], a [_____________] corporation with an address at [_____________] ("Contractor").

The parties agree as follows:

A. Definitions.

(i) "Documentation" means (a) those written manuals and other officially published written user documentation provided to Client by Contractor for Programs, and (b) all user, reference, system, programming and coding documentation and specifications related thereto, and all updates related to any of the foregoing.

(ii) "Fix" means a correction to a Product developed on an as-needed basis to address a reproducible error, bug, or malfunction and may include a temporary by-pass to correct or lessen the impact of the effect, or a permanent change to correct the defect.

(iii) "Product Release" means an accumulation of Fixes.

(iv) "Version" means an accumulation of Product Releases which changes a Program to a new system-operating platform.

B. Maintenance Services. Subject to the provisions of this Section 8 and the timely and full payment of applicable fees, Contractor will provide the maintenance and support services detailed in this Agreement ("Maintenance Services") for the following software programs ("Programs"):

[_____________]

C. Maintenance of Programs. Subject to the timely and full payment of the fees required hereunder and the conditions of this Agreement, during the term of this Agreement, Contractor will maintain the Programs in accordance with the Documentation for Programs that are current to within the most recent previous Product Release and Version, including the following requirements:

(i) Documentation. Contractor will supply applicable new Documentation as released by Contractor.

(ii) Fixes. Contractor will supply Customer with all Fixes for defects reported by Customer or where the Fix will lessen or correct a serious defect.

(iii) Product Releases. Contractor will offer Customer all Product Releases when they are made available generally to Contractor's customers at no additional charge to Customer.

(iv) Versions. Contractor will offer Customer all Versions. Versions may, in Contractor sole discretion, require payment of an additional license fee.

(v) If, as the result of Customer making any changes to the source code of the Product(s), any new Product Release or Version of the Products that Contractor supplies to Customer are not compatible with the older Products so modified, Contractor shall have no obligation to provide support or any Maintenance Service to Customer in respect of the new Release or Version.

D. Maintenance Services Delivery. All Fixes, Product Releases, and Versions provided hereunder shall be delivered as follows: [_____________].

E. Customer Support. Contractor will provide a Customer support center during normal business hours from [_____________] a.m. to [_____________] p.m., [_____________] time, to provide routine technical support for Products under maintenance and a [_____________]-hour, [_____________]-day telephone line. Customer agrees that when Customer notifies Contractor of an error or malfunction and Contractor determines that the problem is due to other than Contractor's failure to maintain the Products as required hereunder, any time expended by Contractor to fix the problem shall be at Contractor's then current hourly rate.

F. Account Managers. Each party shall assign an account manager to act as a single point of contact to the other party for all aspects of Maintenance Services. The respective account manager's duties will include:

(I) acting as primary interface with the other party;

(II) managing service levels;

(III) monitoring Customer's level of satisfaction with Contractor's services and continuously evaluating potential improvements of service quality; and

(iv ) coordinating the required modifications and associated approvals to any changes in this Agreement to which the parties may agree.

G. Installation. Unless otherwise agreed in writing by the parties, Customer will be responsible for the installation of all Fixes, Versions, and Product Releases. Customer acknowledges that its failure to install such items may eventually make the Programs unusable or nonconforming to their Documentation and Customer assumes all risks of such use.

H. Third Party Software. Contractor shall not be required to provide maintenance to anything other than a Program. If someone other than Contractor makes any modification to the source code of a Program without the express written authorization of Contractor, Contractor will continue to supply Maintenance Services to the unmodified portion of the Programs. Modification by anyone other than Contractor and release of Contractor's obligations for maintenance shall not relieve Customer from its obligation to pay fees hereunder.

I. Customer Responsibilities. Failure by Customer to install Programs that are current to within one previous Product Release or Version shall relieve Contractor of its obligation to provide Maintenance Services hereunder, but shall not relieve Customer of its obligations to pay full Maintenance Services fees hereunder.

J. Exclusions. Notwithstanding any other provision of this Agreement, Contractor's obligation to provide maintenance and support services under this Agreement does not cover maintenance services, repair or replacement caused by (i) failure to provide a suitable environment prescribed by Contractor; (ii) neglect, accident disaster (including water, wind and lightening), transportation or vandalism not attributable to Contractor; (iii) alterations, applications, additions or modifications to or for the Products which are not provided or approved in writing by Contractor; (iv) host computers, networks, telephone switches and other applications, attachments, machines, software or accessories, and modification or additions thereto, not provided by Contractor; (v) failure to use and operate the Products in accordance with the Documentation delivered to Customer; (vi) requests for remedial maintenance from any party other than Customer, or (vii) maintenance or repair not performed by Contractor.

K. GENERAL. Entire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements regarding the subject matter. This Agreement may be amended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors.  The parties acknowledge that they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents, has the power or authority to bind or obligate another party.  Except if expressly stated, no third party is a beneficiary of this Agreement. Governing Law and Forum.  All claims regarding this Agreement are governed by and construed in accordance with the laws of [____________], applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of law principles, and must be litigated in [____________], regardless of the inconvenience of the forum, except that a party may seek temporary injunctive relief in any venue of its choosing.  Assignment.  This Agreement binds and inures to the benefit of the parties' successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by Customer in whole or in part without the prior written consent of Contractor. Any transfer, assignment, delegation or sublicense by Customer without such consent is invalid. No Waivers, Cumulative Remedies.  A party's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly stated otherwise, all remedies under this Agreement, at law or in equity, are cumulative and nonexclusive.  Severability.  If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions.  Notices.  All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in this Agreement by each party.  Captions and Plural Terms.  All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement.  Terms defined in the singular have the same meaning in the plural and vice versa.

IN WITNESS WHEREOF, the parties execute this Agreement. Each person who signs this Agreement below represents that such person is fully authorized to sign this Agreement on behalf of the applicable party

CUSTOMER

By: __________________________________
Print Name: ___________________________
Title: ________________________________

CONTRACTOR

By: __________________________________
Print Name: ___________________________
Title: ________________________________