| Table of Contents | ||
|---|---|---|
|
Product Support and Maintenance Agreement of Prism Software Products
Introduction & Objective
A. This agreement ("Agreement") defines product maintenance and support (“Maintenance Support”) to be performed by Prism Software Corporation (“Prism”) for its software products. This Agreement is between Prism and its customer (“Customer”) and pertains to the Prism software product(s) (“Product”) specified in any Customer Purchase Order agreement(s) for either net-new Product orders, or renewals of prior Prism maintenance and support agreements of Product and, if applicable, a Customer Statement of Work (“SOW”) or Customer SOW change order (“Change Order”) to which Prism Software is a signatory.
...
Clear guidelines in the terms and conditions of Product(s) maintenance and support activities provided by Prism, and
An outline and listing of activities and responsibilities that are expected of both Prism and the Customer.
Purpose of Maintenance Support
A. The purpose of Maintenance Support is to provide the Customer with technical assistance that will help resolve problems pertaining to the operation of their Prism Product.
B. Maintenance Support is not meant for Product installation, configuration, services, or training.
Additional Definitions & Terms
A. Prism and Customer may be referred to individually as “Party” or collectively as “Parties”.
...
O. “Confidential Information” is confidential business and technical information of either Party not publicly known.
Maintenance Support Eligibility
A. Maintenance Support is provided by Prism only to a Customer that is on Active Maintenance
Updates & Upgrades During Maintenance Support
A. All Customers who are under an Active Maintenance program are eligible to receive both incremental Product updates (x.1 to x.2) and full Product upgrades (3.x to 4.x) released during the Active Maintenance term.
B. Product changes, corrections, and/or bug fixes are always performed on the latest shipping and Current Version of the Product. No such changes are performed on the Earlier Version of the Product.
Maintenance Support Not Always Available on Older Products
A. Maintenance Support is always available on the Current Version of the Product. Prism will regularly obsolete earlier versions of the Product. Most often, but not always, Prism will obsolete two past Product versions: For example, if the Current Version is v4 then v3 would be supported and v2 would become an Earlier Version.
...
C. Maintenance Support may be available on a Discontinued Product, and it is Prism’s sole election to provide such service for a Discontinued Product.
Obtaining Product Maintenance Support
A. Customer initiated Maintenance Support is available from Prism through:
...
B. An effort will be made by Prism to resolve your Product problem while you are on the phone or to your initial email requesting support. Usually, this is not possible as additional information will likely be required from you. In such cases, a Prism service technician will promptly respond to you and assist in your problem resolution.
Prism Service Hours
A. Monday through Friday (normal business days, excludes holidays)
...
B. The above hours may be reasonably changed by Prism from time to time at Prism’s sole discretion. Prism shall not be responsible for communicating such changes to any Customer except on its corporate website.
What We Need from You
A. In order to provide Customer with effective Maintenance Support we need certain items and support efforts from Customer. The following are important to help us provide a resolution to Customer Product problem. Customer shall:
Designate individual(s) authorized to contact Prism for support and maintenance services.
Designate, and make available, the required technical personnel to effectively describe and assist with troubleshooting and resolving the problem. The technical personnel shall have knowledge and expertise that pertains to the Customer’s software, hardware, databases, and networks.
Provide all reasonably requested network hardware and software access during normal business hours to correct reported problem(s).
Cooperate and collaborate with Prism to resolve any reported problems(s).
Provide instructions to Prism on how to replicate the problem(s) that Customer is experiencing.
Use reasonable efforts to duplicate the problems(s) and to check that they relate to the Product.
Use reasonable efforts to determine what occurred operationally just before the problem(s) arose and to identify any associated error code(s).
Perform diagnostic test(s) on Customer’s software/hardware/network environment.
Provide Prism with a copy of the necessary file(s) as requested by the Prism technician.
Items Covered by Maintenance Support
A. Product error correction
...
E. All Maintenance Support and error correction services provided remotely by Prism technical personnel.
Items Not Covered by Product Maintenance Support
A. Professional Services for point updates and full upgrades
...
All Maintenance Support services are performed by Prism remotely.
Maintenance Fees
A. During the Initial Term, Maintenance Support, and a fee for such, for each Product is mandatory. Nonpayment of this fee will result in immediate termination of this Agreement.
...
D. Prism has no obligation to enter into a Renewal Term of Maintenance Support with the Customer.
Termination of Maintenance Support
A. Prism may terminate this Agreement and its Maintenance Support for either the Initial Term or Renewal Term for any reason and at any time upon written or email notice to Customer, accompanied by a pro-rated refund of the unused (as measured by time) Maintenance Support fee. Termination shall not relieve either Party of any obligation or liability incurred under this Maintenance Support prior to termination. See Section 16.B for additional Agreement termination cause.
...
C. The Parties agree that the termination provisions herein are reasonable and agree not to contest same by way of wrongful termination proceedings or otherwise. Neither Party shall be liable, by reasons of any termination of this Agreement, for compensation, reimbursement, or damages on account of the loss of prospective profits on anticipated orders or on account of expenditures, investments, leases, or commitments whatsoever in connection with the business or goodwill of the other Party.
Product EOL (End-of-Life) and Product EOS (End-of-Service)
A. Prism reserves the right, and at its sole discretion, to EOL any one of its products, including Product, at any time.
Such EOL is defined as Prism will no longer actively develop or maintain the software code base of the product and will no longer provide any bug fix or other correction for any software issue that might arise due to any reason including, but not limited to, software server updates, third-party software changes or updates, and hardware changes or updates.
If Prism does EOL its Product, then it shall provide notice of such EOL to any Customer then-presently on a Maintenance and Support Agreement with Prism. In such circumstances, Prism shall only provide the following limited support under this Maintenance Agreement for said EOL Product:
If available and/or applicable: A Prism-created replacement software alternative with no explicit or implicit guarantee that such Prism-created replacement software alternative will perform identical or similar-enough in function whereby it would be a suitable replacement for the EOL Product.
Prism reserves the right, and at its sole discretion, to End-of-Service (EOS) any Product at any time.
Personally Identifiable Information (PII)
A. To the extent that any work performed by Prism under this Agreement requires Prism to have access to PII (personally identifiable information) provided by Customer about an individual(s) including, but not limited to, students and employees, the Parties agree to execute a DSA (Data Sharing and Confidentiality Agreement) protecting such PII prior to Prism receiving any PII from Customer.
Protected Health Information (PHI)
A. Prism reserves the right to require Customer to enter into and sign a separate BAA (Business Associate Agreement) in the event that Prism has access or exposure to any healthcare records or PHI (Protected Health Information) of the Customer or pertaining to the Customer’s business or operation. Such BAA shall be in compliance with the privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA) and other applicable federal and/or state laws.
...
It shall not be construed as default of this Agreement by either Prism or Customer,
It shall be cause for immediate termination of this Agreement by either Prism or Customer, and
If this Agreement is terminated by either Party, Customer shall not be entitled to any refund, partial or complete, from Prism of any maintenance fees paid or owed by Customer to Prism.
Misc.
A. In the event that the Terms and Conditions of this Agreement contradict or are different than the Terms and Conditions of any Statement of Work that may accompany this Agreement or to which this Agreement is an Appendix, then the Terms and Conditions of the Statement of Work shall prevail.
...
D. Unless otherwise specified in this Agreement or any applicable SOW, Prism shall have no obligations to make changes or corrections, and/or add features, within the Product within a specific time duration. Any non-performance of these items by Prism shall not impact this Agreement.
Force Majeure
A. Neither Party shall be liable to the other for its failure to perform any of its obligations hereunder to the extent that and for so long as such performance is prevented or delayed in whole or in part by strikes, lockouts or other labor disturbances or by causes beyond its reasonable control such as, but not limited to, hurricanes, fire, flood, war, acts of domestic or foreign terrorism, embargoes, blockades, riots, governmental interference and delays or defaults by subcontractors or suppliers if caused by any circumstance referred to in this Section. The Party experiencing any such event shall inform the other Party of the event as soon as possible.
Headings
A. Headings are for ease of reference only and do not affect the construction of this Agreement. Unless otherwise stated, a reference to a clause is a reference to a clause of this Agreement.
Severability
A. If a court or other lawful authority of competent jurisdiction declares any provision of this Agreement to be invalid, illegal, or unenforceable, this Agreement will continue in full force and effect with respect to all other provisions and all rights and remedies accrued under such other provisions will survive any such declaration. If this Agreement as it relates to the Products under this Agreement shall be held by a court of competent jurisdiction or other lawful authority to be invalid, illegal, or unenforceable as to particular product(s), or if this Agreement is terminated as to particular product(s), this Agreement shall remain in full force and effect as to the remaining product(s).
Waiver
A. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
Product Transferability
A. Customer may move the Product from one hardware server, client desktop, and/or department to another within the same company. In such case, the Customer may need to obtain from Prism, and Prism shall not withhold, a new license key for such permitted transferred Product.
Agreement Assignment
A. This Agreement, and any rights, title or interest arising pursuant to it, may not be assigned, sublet, or transferred (cumulatively “Assigned”) by either Party (the “Assigning Party”) without the express prior written consent of the other Party, which shall not be unreasonably withheld.
Successors and Assigns
A. Subject to the limitations set forth in this Agreement, this Agreement will inure to the benefit of and be binding upon the Parties, their successors, administrators, heirs, and assigns.
Mutual Confidentiality
A. During the term of this Agreement a Party may, from time to time, communicate Confidential Information to the other Party, or a Party may learn or acquire such Confidential Information from the other Party in order to enable it to effectively perform its obligations hereunder. The receiving Party shall treat all Confidential Information as confidential, whether or not so labeled or identified, and shall not disclose any part thereof without the prior written consent of the disclosing Party. The receiving Party shall limit the use and circulation of Confidential Information, even within the receiving Party’s own organization, to the extent necessary to perform its obligations under this Agreement.
...
D. The Parties may elect to enter into a separate Mutual Nondisclosure Agreement.
Limitation of Liability; Disclaimer of Warranties
A. Prism shall not be liable for any indirect, special, incidental, or consequential damages (including, but not limited to: damages for loss of business, loss of profits or investment, or the like), whether based on breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if Prism or its representatives have been advised of the possibility of such damages. Except for the specific representations herein, Prism hereby disclaims any warranties, whether expressed or implied, including, but not limited to, any warranties of merchantability or fitness for a particular purpose.
...
THE WARRANTIES PROVIDED PURSUANT TO THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF, AND PRISM AND ITS RESELLING PARTNERS AND AGENTS EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
Governing Law
A. This Agreement shall be construed by and interpreted in accordance with the laws of the State of California and the federal laws of United States without giving effect, however, to California`s choice of law rules, and any action related hereto shall be brought exclusively in the Courts of the State of California, United States.
Dispute Resolution
A. All disputes arising out of or in connection with this Agreement shall be submitted to arbitration pursuant to the rules of the American Arbitration Association. Arbitration hearings shall be held only in or near Irvine, California. Reasonable costs and attorneys’ fees incurred shall be assessed against the unsuccessful Party.
Entire Agreement
A. This Agreement - and any other accompanying documents such as, but not limited to, a SOW, purchase agreement, accompanying terms and conditions, and other such accompanying written and agreed-upon specifications - constitute the entire and only agreement of the Parties as to the subject matter hereof, and supersedes any and all prior oral or written understandings and agreements as to such subject matter. Any amendments, modifications or alterations to this Agreement must be made in writing and signed on behalf of both Parties by their respective duly authorized representatives.