Services | Service Agreement |
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This Agreement for Technical Support Services ("Agreement") is entered into between Glenn Abbey Software, Inc., an Illinois company with offices at 1028 South Second St., Springfield, Illinois, and the Customer ("Customer") identified in the electronic order form (ìOrder Formî) submitted on behalf of the Customer. This Agreement establishes the terms and conditions pursuant to which the Customer wishes to obtain, and Glenn Abbey Software, Inc. wishes to provide, technical support services. 1. Technical Support Services. In exchange for the pre-payment of Annual Support Fees, Glenn Abbey Software, Inc. agrees to provide technical support services to the Customer in connection with its use of an authorized version of Centre (The Miller Group Software) developed by The Miller Group. Centre is identified on the downloads page http://www.miller-group.net/downloads/ of The Miller Group Website and excludes programs identified as "contributed" and other third-party modifications and programs. Annual Support Fees are described in the "Support Pricing " ("Support Pricing") as proposed by Glenn Abbey Software, Inc. on the date the Customer submitted the information required. 2. Customer Self-Definition. The Customer acknowledges that Glenn Abbey Software, Inc. allocates resources and determines pricing based upon the characteristics of the Customer's environment. The Customer represents and warrants that: (a) it has provided accurate student enrollment information; and (b) it meets all of the criteria for the Customer status determined by the enrollment information provided (the "Customer Status") as of the date it submitted the Order Form. In the event that a change in circumstances during any term of this Agreement were to cause the Customer not to continue to qualify for a different Customer Status, the Customer shall provide written notice to Glenn Abbey Software, Inc. of this change and, if required, pay to Glenn Abbey Software, Inc. an additional fee equal to the cost differential between the Annual Support Fees for the different levels of Customer Status for the applicable Support Level applied on a pro rata basis to cover the remaining months of the then-current term of this Agreement. 3. Compensation. Prior to the commencement of any twelve (12) month term of this Agreement, the Customer shall remit a one-time payment to Glenn Abbey Software, Inc. in exchange for the provision of technical support services (the "Annual Support Fee") during that term. The amount of the Annual Support Fee during the initial term of this Agreement shall be equal to the amount set forth in the Support Pricing Page and Customer Status selected by the Customer on the date the Customer submitted the Order Form. The amount of the Annual Support Fee during any subsequent term of this Agreement shall be equal to the amount set forth in the Support Pricing for the Support Level and Customer Status selected by the Customer forty-five (45) days prior to the commencement of such subsequent term. The Customer shall submit the Annual Support Fee in United States Dollars, and at the fee level identified for the particular type of currency. No services shall be provided to the Customer by Glenn Abbey Software, Inc. until payment has been received for the applicable term. The Customer shall pay all taxes, howsoever designated, to the extent attributable to this Agreement or to any part, service or material furnished hereunder. In addition, the Customer shall reimburse Glenn Abbey Software, Inc. the amount of any and all direct expenses incurred by Glenn Abbey Software, Inc. in the course of providing support services, provided that those expenses were incurred with the Customer's prior consent. Examples of such expenses include (without limitation) travel, phone tolls for services performed and mailing costs. The Customer shall reimburse Glenn Abbey Software, Inc. for such expenses no later than thirty (30) days after Glenn Abbey Software, Inc. issues an invoice for such expenses. Glenn Abbey Software, Inc. reserves the right to require advance payment of any such anticipated expenses. 4. Professional and Workmanlike Services. Glenn Abbey Software, Inc. will use its good faith, commercially reasonable efforts to: (a) ensure that support services are conducted in a professional and workmanlike manner by qualified personnel; and (b) in accordance with the applicable Support Level purchased by Customer, attempt to diagnose any failure of Glenn Abbey Software, Inc. Software used by the Customer to conform to written specifications and to advise the Customer of appropriate remedies. Glenn Abbey Software, Inc. is not required to provide support services regarding the following issues unless otherwise agreed to in writing at the time of Order: (a) any software other than Glenn Abbey Software, Inc. Software; (b) any classroom training or on-site consulting; (c) design of any Customer application (apart from its interface with Glenn Abbey Software, Inc. Software); (d) incorporation of the embedded Centre server library into other software products; (e) login hours to the Customer's servers above the maximum hours per month as specified in the Support Pricing; (f) patches or modifications to the source code of Glenn Abbey Software, Inc. Software authored by anyone other than Glenn Abbey Software, Inc.; (g) installation, configuration, or malfunctions of any part of the Customer's computer or networking hardware equipment; and (h) installation, configuration, or malfunctions of any part of the Customer's operating system, including without limitation kernels, libraries, patches, and drivers. Login hours above the maximum hours per month as specified in the Support Pricing may be obtained through Glenn Abbey Software, Inc. only by means of a separate, written consulting agreement at Glenn Abbey Software, Inc. then-current rates for special technical services. 5. Customer Responsibilities. Except for Support Levels that include telephone support, the Customer shall always supply support requests in written form, using the web-based support tracking system in use by Glenn Abbey Software, Inc. if requested or email otherwise. The Customer shall provide to Glenn Abbey Software, Inc. all data relevant for resolving each support request, even if the request was made by telephone. Relevant data may include, but is not limited to, log files, database dumps, program scripts, descriptions of the hardware and software environment, examples of inputs, and expected and actual outputs. To assist Glenn Abbey Software, Inc. in allocating resources appropriately, the Customer shall advise Glenn Abbey Software, Inc. when support requests are critically urgent. However, classification of a support request as critically urgent will not entitle the Customer to support at a level higher than the Support Level purchased by Customer. The Customer acknowledges that it is the sole responsibility of the Customer, at all times, including specifically during all service functions performed by Glenn Abbey Software, Inc. pursuant to this Agreement, to protect and maintain an up-to-date and restorable backup of any and all databases, files, utilities, software and other systems which Glenn Abbey Software, Inc. staff may directly access or in connection with which Glenn Abbey Software, Inc. staff may offer advice. The Customer represents and warrants to Glenn Abbey Software, Inc. that it: (a) is engaged in a lawful business enterprise; (b) can form legally binding contracts and is authorized to enter into this Agreement; (c) has a valid license to use Glenn Abbey Software, Inc. Software; and (d) is in compliance with all applicable laws appropriate to its location of business and nature of work. 6. Non-Exclusive License to Use Corrections. If, in the course of providing services under this Agreement, Glenn Abbey Software, Inc. creates and delivers to the Customer any software or software tools ("Corrections"), all copyright, patent and other intellectual property rights to such Corrections shall be retained by Glenn Abbey Software, Inc., and Customer shall receive a non-exclusive, royalty-free license to use such Corrections in connection with and during the term of, but subject to, its licensed use of Glenn Abbey Software, Inc. Software Suite. Glenn Abbey Software, Inc. reserves any and all rights not expressly granted herein. 7. Disclaimer of Warranties and Other Limitations. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN A VALID, SIGNED LICENSE AGREEMENT FROM Glenn Abbey Software, Inc. TO THE CUSTOMER, Glenn Abbey Software, Inc. DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO Glenn Abbey Software, Inc. SOFTWARE SUITE, CORRECTIONS AND THE SERVICES PROVIDED HEREUNDER, INCLUDING PROMISES, REPRESENTATIONS AND WARRANTIES AS TO CONDITION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY OF INFORMATION CONTENT OR SYSTEM INTEGRATION. Without limiting the generality of the foregoing disclaimer, Glenn Abbey Software, Inc. does not warrant that its advice or programming on behalf of the Customer will be error free. In no event shall the liability of Glenn Abbey Software, Inc. to the Customer for any claim whatsoever related to this Agreement exceed the total amount of all payments made under this Agreement by the Customer to Glenn Abbey Software, Inc. with respect to this Agreement in the then-current term. Glenn Abbey Software, Inc. disclaims all liability whatsoever to the Customer or any other party for consequential, indirect, incidental, special or such other damages including but not limited to, any damage for lost profits, loss of data or loss of business, even if Glenn Abbey Software, Inc. has been advised of the possibility of such damages. 8. Confidential Information. In connection with any information marked confidential or identified to the receiving party as confidential, the receiving party agrees to use the same care which it takes for its own confidential information and that it will not intentionally disclose such confidential information to anyone other than the disclosing party during the term of this Agreement and for two years following its termination. The foregoing obligation shall not apply if the information shall have: (a) first become generally known and published through no fault of the receiving party; (b) been learned by the receiving party from a third party; (c) been already known to the receiving party; or (d) been developed by or for the receiving party, independent of activities under this Agreement. In addition, unless otherwise requested by the Customer, Glenn Abbey Software, Inc. agrees not to retain copies of Customer's data files on any Glenn Abbey Software, Inc. system once a support request has been resolved. The Customer represents and warrants to Glenn Abbey Software, Inc. that it is permitted to disclose to Glenn Abbey Software, Inc. any information which it discloses to Glenn Abbey Software, Inc. 9. System Security. If Glenn Abbey Software, Inc. is given access to the Customer's computer systems in connection with performance of support, Glenn Abbey Software, Inc. shall not intentionally violate any security measures employed by the Customer and made known to Glenn Abbey Software, Inc. in writing. 10. Disclosure of Customer Identity. Glenn Abbey Software, Inc. will not intentionally disclose the identity of the Customer on its Web site, advertising, press releases, or other publicly released publicity without the Customer's prior written consent. 11. Term; Renewal; Termination. The initial term of this Agreement shall be for a one (1) year period commencing on the date Customer submitted its Order Form. This Agreement shall be automatically renewed for subsequent one (1) year periods (each a "Renewal Term") unless either party provides the other party with notice of its intent not to renew at least thirty (30) days prior to the expiration of the existing term. Glenn Abbey Software, Inc. may terminate this Agreement at any time and for any or no reason upon the provision of sixty (60) days written notice to the Customer, in which case Glenn Abbey Software, Inc. shall provide the Customer with a pro rata refund of the applicable Annual Support Fee for the remainder of the months in the then-current term of the Agreement. At its sole discretion, Glenn Abbey Software, Inc. reserves the right to amend this Agreement, the Support Pricing, or any other attachment by posting the amendment on Glenn Abbey Software, Inc. Website. Any such amendments may include material changes in Glenn Abbey Software, Inc.ís support services to the Customer. Unless otherwise noted in an amendment, amendments shall automatically be deemed to take effect on the first day of the calendar month that occurs at least 30 days after the date Glenn Abbey Software, Inc. first posts the amendment. In the event that the Customer objects to any such amendment, the Customer may terminate this Agreement by providing Glenn Abbey Software, Inc. with written notice thereof no later than the date that the amendment takes effect, in which case Glenn Abbey Software, Inc. shall provide the Customer a pro rata refund of the applicable Annual Support Fee for the remainder of the months in the then-current term of the Agreement. The Customer agrees to review Glenn Abbey Software, Inc. Website for amendments on a monthly basis. In the event either party becomes liquidated, dissolved, bankrupt or insolvent, whether voluntarily or involuntarily, or shall take any action so declared, the other party shall have the right to terminate this Agreement immediately. Sections 6, 7, 8, 13, 14 and 17 shall survive termination of this Agreement. 12. Legal Relationship. The parties enter this Agreement as, and shall remain, independent contractors with respect to one another. Nothing in this Agreement is designed to create, nor shall create between them, a partnership, joint venture, agency, or employment relationship. 13. Development Personnel. The Customer agrees that, without Glenn Abbey Software, Inc.ís prior written consent, the Customer will not, during the term of this Agreement and for a two (2) year period after termination, employ or use the services of any person (whether as an officer, director, shareholder, partner, employee, agent, consultant or independent contractor) who was a Glenn Abbey Software, Inc. employee or developer and who provided services to the Customer on behalf of Glenn Abbey Software, Inc. during the term of this Agreement. In the event the Customer breaches this provision, Glenn Abbey Software, Inc. shall be entitled to liquidated damages as calculated herein to compensate Glenn Abbey Software, Inc. for locating, recruiting, hiring and training a replacement person. Glenn Abbey Software, Inc.ís liquidated damages shall be a sum equal to two times the gross annual compensation of the person the Customer has wrongfully hired or engaged. Gross annual compensation means twelve times the wrongfully hired person's last full month's compensation from Glenn Abbey Software, Inc. including pro rata bonuses and benefits without set off for any sums due Glenn Abbey Software, Inc. The parties agree and acknowledge that this amount is a reasonable, liquidated amount and not a penalty. 14. Notices. Unless otherwise agreed to by the parties, any notice required or permitted to be given or delivered under this Agreement shall be delivered and addressed to Glenn Abbey Software, Inc. at the address set forth on the first page hereof, and to the Customer at the address indicated on the Order Form. Notice shall be deemed to have been received by any party, and shall be effective: (a) on the day given, if personally delivered or if sent by confirmed facsimile or electronic mail transmission, receipt verified, to a facsimile number or electronic mail address provided by the receiving party to the sending party for the purpose of receiving such notices; (b) on the third day after which such notice is deposited, if mailed by certified, first class, postage prepaid, return receipt requested mail, or by reputable, expedited overnight courier for delivery within the United States of America; or (c) on the fifth day after which such notice is deposited, if sent by reputable, expedited international courier for delivery in any country except United States of America. Either party may change its address for notice purposes upon issuance of notice thereof in accordance with this Section. 15. Force Majeure. Neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of the unavailability of communications facilities or energy sources, acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, or any causes beyond the reasonable control of that party. 16. Interpretation. The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation. If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law and, in its modified form, such provision shall then be enforceable and enforced. 17. Controlling Law and Arbitration. This Agreement shall be interpreted and enforced: (a) in accordance with the laws of the State of Illinois, U.S.A. The parties agree that no action by one party against the other may be brought in any court, in any jurisdiction, except according to the terms of this Section. If the Customer's principal place of business is located in North America, South America or the Caribbean, all disputes between Glenn Abbey Software, Inc. and Customer shall be submitted for arbitration before one arbitrator selected according to and applying the rules of the American Arbitration Association. In such a case, the parties agree to exclusive venue and jurisdiction in Baltimore, Maryland, U.S.A. If the Customer's principal place of business is located outside of North America, South America or the Caribbean, all disputes between Glenn Abbey Software, Inc. and Customer shall be submitted for arbitration before one arbitrator selected according to and applying the rules of the International Arbitration Association. In such a case, the parties agree to exclusive venue and jurisdiction in Stockholm, Sweden. Notwithstanding the foregoing, either party may bring a counterclaim in an action in the same jurisdiction in which the originating arbitration was filed, and either party may enforce any judgment rendered by such arbitrator in any court of competent jurisdiction. No termination or expiration of this Agreement shall affect the right to arbitrate disputes. The parties have agreed to execute this Agreement in the English language. In the event of any dispute in connection with this Agreement, the English language version of the Agreement will control for all purposes. Any action brought under this Agreement shall be conducted in the English language. 18. Entire Agreement; Waiver. This Agreement incorporates by reference the Order Form and all components of the Support Pricing, including the Checklist to Determine Standard or Advanced Customer Status (collectively, the ëAttachments'). This Agreement and the Attachments, if any, collectively contain the entire understanding of the parties with respect to the subject matter hereof. All prior commitments and understandings are merged herein. All other documents, whether signed or unsigned, including purchase orders, shall not be given any effect which is inconsistent with this Agreement unless this provision is specifically referred to and waived by Glenn Abbey Software, Inc. in writing. In the event of any conflict between this Agreement and the Attachments, this Agreement shall govern. 19. Print this Agreement. For record keeping purposes, we encourage the Customer to print this Agreement and all of its Attachments on the date that it submits the Order. Version 1.0 - Effective December 1, 2004 |