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.

B.       The objective of this Agreement is to provide:

1. Clear guidelines in the terms and conditions of Product(s) maintenance and support activities provided by Prism, and

2. 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”.

B.       “Initial Term” is the period immediately following the purchase by Customer of a Prism Product with which a Maintenance Support coverage was also purchased and in effect. Such Initial Term shall be no less than 1 year.

C.       "Renewal Term” any subsequent renewal term, after Initial Term, period of Maintenance Support coverage to which the Customer has subscribed and fully paid.

D.       “Active Maintenance” is a currently active and fully paid Prism Maintenance Support program between the Parties either during the Initial Term or Renewal Term.

E.       “Current Version” is the then-currently distributed version of the Prism Product at any point in time.

F.        “Professional Services” and “PS” are any technical or training services provided by Prism personnel.

G.      “Earlier Version” is a prior version of a Current Version.

H.      “Discontinued Product” is a legacy Product that is no longer offered for sale by Prism.

I.         “EOL” is end-of-life of a Product.

J.         “EOS” is end-of-service for Prism providing maintenance and support on its Product.

K.       “PII” is Personal Identifiable Information.

L.        “PHI” is Protected Health Information.

M.     “DSA” is Data Sharing and Confidentiality Agreement.

N.      “BAA” is Business Associate Agreement.

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.

B.       Maintenance Support is most often available on an Earlier Version; it is Prism’s sole election to provide Maintenance Support on an Earlier Version. However, Customer may have to upgrade to a Current Version to receive then-current Product corrections, features, and/or bug fixes. Any Professional Services and/or training required for such upgrade are not part of Maintenance Support and will be billed separately.

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:

1. Email:       

support@prismsoftware.com

1. Web site: 

http://www.prismsoftware.com/support

1. Phone:      949-855-3100, Extension 1 (please leave a voice mail if requested)

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)

1. 6:00 AM – 5:00 PM Pacific Time

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:

1. Designate individual(s) authorized to contact Prism for support and maintenance services.

2. 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.

3. Provide all reasonably requested network hardware and software access during normal business hours to correct reported problem(s).

4. Cooperate and collaborate with Prism to resolve any reported problems(s).

5. Provide instructions to Prism on how to replicate the problem(s) that Customer is experiencing.

6. Use reasonable efforts to duplicate the problems(s) and to check that they relate to the Product.

7. Use reasonable efforts to determine what occurred operationally just before the problem(s) arose and to identify any associated error code(s).

8. Perform diagnostic test(s) on Customer’s software/hardware/network environment.

9. 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

B.       Support for Prism-created custom-coded apps that don’t require changes. Any changes to custom-coded apps are not covered under maintenance and would incur professional service charges, and changes may also increase yearly maintenance charges.

C.       Product point updates (x.1 to x.2)

D.       Product full upgrades / major versions (3.x to 4.x)

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

1. Any Prism-provided labor and/or Professional Services required to migrate a Customer to a point update, full upgrade, or Prism-created replacement software is not included in this Agreement. All such labor and professional service fees are extra and shall be chargeable to Customer separately.

B.       Product training

1. Product training is considered Professional Services and is available from Prism for a fee.

C.       ‘How To’ questions

1. Prism Product User Guides are very detailed and provide this type of information.

D.       Customer’s network / IT assistance

1. Any technical or configuration issue, configuration, or how-to questions that involve Customer’s network or IT structure is outside the scope of Prism Maintenance Support.

E.       Customer’s database assistance

1. No support or maintenance – including but not limited to questions, how-to inquiries, changes, corrections, fixes, modifications, and configuration issues – of any third-party database(s) unless database was specifically and solely configured and used by Prism.

F.        Assistance with or support of third-party software, software code or scripts, or hardware

G.      Product configuration

1. No additions or modifications to existing Product configurations shall be made unless made under normal Maintenance Support due to Product errors.

2. Such change will require a separate Change Order that can be performed by Prism. Such Change Order shall be a separate fee.

H.      Custom engineering

1. No custom engineering. Such engineering MAY be available, at Prism’s sole election, by separate quote, such quote available upon request.

2. At Prism’s sole election, custom engineering by Prism for Customer may result in additional maintenance charges to the Customer.

I.         Feature requests

1. All requests for features or enhancements not presently in the Current Version of the Product are not covered.

J.         Disaster recovery

1. It is the sole responsibility of the Customer to set up, implement, and maintain a disaster recovery plan and system for all Prism Products, projects, and configurations.

K.       Correcting errors or omissions

1. Errors caused by Customer changes to or malfunctions of Customer hardware equipment.

2. That result from Customer’s failure to follow Prism’s instructions or advice.

3. Resulting from unauthorized use or modifications to the Product.

L.        On-site services

1. 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.

1. Unless otherwise explicitly stated in writing or email in a Prism Statement of Work (SOW) mutually agreed to by Prism and Customer, this Agreement shall start 30 days after the delivery of the Product by Prism to the Customer. Delivery is defined as Prism providing to the Customer both a Product download link(s) and a Product license key(s).

B.       During the Renewal Term, Maintenance Support, and a fee for such, for each Product is elective by the Customer. Either Party may elect not to renew Maintenance Agreement after expiration of the Initial Term.

C.       Prior to the end of Active Maintenance, if Prism desires to renew this Maintenance Agreement with Customer, Prism will invoice Customer for a Renewal Term. Payment from Customer must be received prior to the expiration of the Active Maintenance in order to maintain uninterrupted service under the terms of this Agreement; nonpayment will result in immediate termination of this Agreement.  After termination, maintenance coverage under this Agreement can be reactivated by mutual agreement upon payment by Customer of all fees due retroactive to the termination date.

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.

B.       If multiple Product(s) are covered by this Agreement, the termination of maintenance for any individual Product shall not affect maintenance for the other Product(s) that remain covered by this Agreement.

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.

1. 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.

2. 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:

   1. 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.

3. 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.

B.       Notwithstanding Section 13, Prism reserves the right to refuse to provide Maintenance Support to the Customer if Customer does not sign a BAA with Prism; in such a circumstance:

1. It shall not be construed as default of this Agreement by either Prism or Customer,

2. It shall be cause for immediate termination of this Agreement by either Prism or Customer, and

3. 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.

B.       Prism reserves the sole right to change the non-substantive terms of this Agreement, either for all active Maintenance Support Agreements or for any active specific Customer Maintenance Support Agreement, with at least ninety (90) days written or email notice. Any changes to the substantive terms of this Agreement shall require the written or email approval of both Parties.

C.       Customer is deemed to have accepted the terms of this Agreement upon the earlier of:

1. Submitting written acceptance documentation to Prism (e.g., purchase order, letter, fax, e-mail, or similar documentation),

2. Remitting payment to Prism, or

3. Licensing of the Product, with such Product licensing as being effected by Prism or its resellers providing, most usually via email, Product licensing keys to Customer.

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.

B.       The confidentiality obligations recited herein shall not apply to any information which:

1. Has been developed by either Party completely independent of any disclosure of Confidential Information under this Agreement.

2. Has been disclosed in publicly available sources of information.

3. Is, through no fault of the receiving Party or its employees or agents, hereafter disclosed in publicly available sources of information.

4. Is, as of the start of this Agreement, in the possession of the receiving Party or its employees without any obligation of confidentiality.

5. Has been or is hereafter rightfully disclosed to the receiving Party or its employees by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party.

6. Is disclosed by either Party to its accountants, auditors, or attorneys, or is required to be disclosed by applicable law, regulation or judicial authority, if the disclosing Party takes reasonable measures to seek confidential treatment to the extent permitted.

7. Is disclosed by Prism to a third party for the purpose of assisting Prism in fulfilling its obligations under this Agreement, provided that Prism takes reasonable measures to seek confidential treatment to the extent permitted (e.g., to a third party that provides a product that Prism resells or licenses for use as part of its own product(s).

C.       The obligation set forth in this Mutual Confidentiality section shall remain in effect for a period of five (5) years from the effective date of 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.

B.       LIMITATION OF LIABILITY

NEITHER PRISM OR ITS RESELLING PARTNER OR AGENT SHALL BE LIABLE TO OR HAVE ANY RESPONSIBILITY TO ANY END USER OR THIRD PARTY, FOR PAYMENT OR DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ITS BREACH, OR ARISING FROM THE RELATIONSHIP OF THE PARTIES OR THE CONDUCT OF BUSINESS BETWEEN THEM FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS OR SERVICES PROVIDED EVEN IF SO ADVISED PRIOR TO THE SIGNING OF THIS AGREEMENT.

C.       WARRANTY DISCLAIMER

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.