Software Maintenance Agreement Specifies ongoing software maintenance and support services, including updates, bug fixes, and response times for support.
This Software Maintenance Agreement ("Agreement") is entered into as of the date of execution, by and between Opti Tech, a United States software development company ("Provider") and the party identified as "Client" in the signature block below ("Client").
2.1. ProSuite Software
"ProSuite Software" shall mean Opti Tech's proprietary software package known as ProSuite, including all accompanying documentation.
2.2. Maintenance Services
"Maintenance Services" shall mean the software support services provided by Provider, including bug fixes, updates, and upgrades for the ProSuite Software as described in this Agreement.
3.1. Bug Fixes
Provider shall correct defects, errors or malfunctions in the ProSuite Software that cause it to fail to operate substantially in accordance with its documentation.
Provider shall provide periodic updates to the ProSuite Software, which may include corrections, modifications, and improvements to the software's performance, functionality, compatibility, and security.
Provider shall provide upgrades to the ProSuite Software, including new releases and versions that enhance its capabilities or features or that add new functionality, in addition to the updates described in forgoing section 3.2.
3.4. Exclusions to Maintenance Services
Maintenance Services shall not include any support for errors, malfunctions, or other issues resulting from the Client's failure to properly install, integrate, or operate the ProSuite Software in accordance with the documentation or instructions provided by Provider, or from any hardware, software, or support services not provided by Provider under this or another applicable agreement.
This Agreement shall commence on the Effective Date and continue for an initial term of one (1) year. This Agreement shall automatically renew for subsequent one (1) year terms unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
4.2. Termination for Cause
Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice thereof.
4.3. Termination for Convenience
Either party may terminate this Agreement upon sixty (60) days written notice to the other party, provided that Client shall remain liable for all fees and charges due through the effective date of termination.
5.1. Support Request Procedure
Client shall submit a support request ("Support Request") to Provider via email to the designated support email address provided by Provider. Each Support Request shall include a clear description of the issue, steps to reproduce it, and any supporting documentation or information reasonably necessary for Provider to investigate and resolve the issue.
5.2. Response Times
Provider shall use commercially reasonable efforts to respond to each Support Request within the following response times:
i. Critical Issues: within four (4) hours
ii. Major Issues: within eight (8) hours
iii. Minor Issues: within twenty-four (24) hours
5.3. Resolution Times
Provider shall use commercially reasonable efforts to resolve Support Requests within the following resolution times:
i. Critical Issues: within twenty-four (24) hours
ii. Major Issues: within forty-eight (48) hours
iii. Minor Issues: within five (5) business days
6.1. Maintenance Fees
Client shall pay Provider an annual maintenance fee, as set forth in a separate Order Form or Statement of Work, for the Maintenance Services to be provided under this Agreement. Maintenance Fees shall be payable on the Effective Date and on each anniversary thereafter.
Client shall be responsible for all sales, use, value added, or other taxes or duties levied by any governmental authority, excluding taxes based on Provider's net income.
Provider warrants that the Maintenance Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. In the event of a breach of this warranty, Provider's sole and exclusive obligation, and Client's sole and exclusive remedy, will be for Provider to re-perform the applicable Maintenance Services so that they conform to this warranty.
EXCEPT FOR THE WARRANTY SET FORTH IN FORGOING SECTION 7.1, PROVIDER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT THE PROSUITE SOFTWARE OR MAINTENANCE SERVICES WILL MEET CLIENT'S REQUIREMENTS OR THAT THEIR USE WILL BE UNINTERRUPTED OR ERROR-FREE.
IN NO EVENT SHALL PROVIDER BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. PROVIDER'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CLIENT TO PROVIDER FOR THE MAINTENANCE SERVICES PROVIDED UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
This Agreement shall be governed by and construed in accordance with the laws of the United States and the State in which Opti Tech is incorporated, without regard to conflicts of law principles. The parties agree that any and all disputes arising out of this Agreement shall be resolved exclusively in the state or federal courts located in such State, and the parties hereby submit to the personal jurisdiction and venue of those courts.
This Agreement, together with any Order Forms or Statements of Work incorporated herein by reference, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals, understandings, and communications, whether oral or written. This Agreement may only be amended by a written document signed by both parties.
the parties have executed this Agreement as of the date first above written.
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