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HomeMy WebLinkAboutC07-317 enerGov SolutionsSOFTWARE SUPPORT AGREEMENT
THIS SOFTWARE SUPPORT AGREEMENT
("Support Agreement") is made this _ day of October
2007 by and between EnerGov Solutions, LLC a Georgia
limited liability company ("EnerGov") and Eagle
County, Colorado ("Customer").
BACKGROUND
EnerGov has licensed Customer certain of EnerGov's
proprietary software in accordance with that certain
Master Customer Agreement dated October _, 2007 by
and between EnerGov and Customer (the "Master
Customer Agreement").
Customer desires to have EnerGov support such
software and EnerGov desires to support such software
for Customer under the terms and conditions set forth
herein.
IN CONSIDERATION of the foregoing and the
mutual covenants set forth herein, and intending to be
legally bound, the parties agree as follows:
1. Definitions. The following words shall have the
following meanings when used in this Support
Agreement:
"Error" means a substantial reproducible failure of the
EnerGov Software to conform to the specifications set
forth in the applicable end user Documentation.
"Error Correction" means either a modification or
addition to, or deletion from the EnerGov Software that,
when made to EnerGov Software, establishes the
substantial conformity of such EnerGov Software to the
specifications therefore as set forth in the applicable end
user Documentation, or a procedure or routine that, when
observed in the regular operation of the EnerGov
Software, eliminates the practical adverse effect of such
Error on Customer.
"Major Release" means a revision to the EnerGov
Software indicated by a change in the first digit of the
version number.
"Minor Release" means a revision to the EnerGov
Software indicated by a change in the second digit of the
version number.
"Release" means either a Major Release or Minor
Release.
"Support Services" shall mean the services described
in Section 3 of this Support Agreement.
Any capitalized terms not defined in this Support
Agreement shall have the meaning set forth in the Terms
and Conditions of the Master Customer Agreement.
CHATTANOOGA -437384 -v2 -Eagle County Software Support Agreement
2. EnerGov's Obligations.
2.1 In consideration of Customer's performance
hereunder, EnerGov shall render the Support Services
pursuant to Section 3.
2.2 All Support Services performed by EnerGov under
this Support Agreement shall be performed by EnerGov
in a professional manner. EnerGov does not warrant that
the Support Services or EnerGov Software will be
uninterrupted or error free.
2.3 The parties acknowledge and agree that,
notwithstanding anything to the contrary herein
contained, EnerGov shall not support or maintain any
hardware or any third party software.
3. Support Services.
3.1 During the term of this Support Agreement, and
subject to the terms and conditions of this Support
Agreement, EnerGov shall provide the following Support
Services to the Customer with respect to any EnerGov
Software licensed to the Customer:
3. 1.1 Unlimited Phone Support. The Customer
shall have unlimited access to phone support during the
hours of operation by calling 1-888-355-1093, or a toll
free number in use at the time requesting support. Hours
of operation are 8am to 8pm (EST).
3.1.2 Unlimited Email Support. The Customer shall
have unlimited access to email support by emailing
support@energov.com, or a mutually agreeable email
address designated for support. Email will be monitored
only during normal hours of operation.
3.1.3 Free Upgrades. EnerGov shall make available
to the Customer from time to time each Minor and Major
Release of the EnerGov Software without additional
charge to its customers who have continuously paid for
Software Support since Customer's initial purchase of all
EnerGov Software.
3.1.4 Remote Support. The Customer is entitled to
dial in support during normal hours of operation.
EnerGov will often utilize third party software products
to dial into a client workstation. Examples of third party
vendors are PC Anywhere and BLive. The Customer is
not required to purchase any additional software or incur
any expense to utilize this type of support. Customer
agrees to install such third party software furnished by
EnerGov as may be necessary to facilitate dial in
support.
3.1.5 Upon the written election of Customer,
EnerGov will provide offsite data storage of backups of
Customer's data on EnerGov's ftp servers. Customer
agrees to provide EnerGov with at least ten (10) days
prior written notice of its election to use the offsite data
storage services of EnerGov. Unless provided otherwise
on the Proposal attached hereto: (i) the storage space of
the data shall be limited to no more that 10 megabytes;
(ii) stored backup data will be saved for a period of no
more than seven (7) days; and (iii) all data may be
go
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removed and deleted by EnerGov five (5) days after the
termination of this Support Agreement or the Support
Services provided hereunder. To the extent Customer
has elected to use the offsite data storage services of
EnerGov pursuant to this Support Agreement, and in
such cases of disaster recovery, EnerGov agrees to
promptly make such data available to Customer upon
request.
3.2 Response Time. EnerGov shall be responsible for
the handling of all support issues, whether written or
oral. All support issues are entered into the EnerGov
tracking database and will be handled as efficiently as
possible. Support issues that indicate an Error will be
given higher priority and will be handled prior to non-
critical issues. EnerGov does not guarantee a resolution
time beyond the fact that it will work diligently to
resolve all customer issues and concerns as quickly as
possible.
3.3 Notwithstanding any other provisions in this
Support Agreement, EnerGov shall provide Support
Services only with respect to the two (2) most recent
Major Releases of any EnerGov Software.
3.4 Title to all Releases, Error Corrections, fixes,
enhancements, and other Proprietary Information shall
remain solely and exclusively with EnerGov and shall be
subject to the Terms and Conditions of the Master
Customer Agreement governing the license for the
EnerGov Software supported hereunder.
4. Out of Scope Problems.
4.1 This Support Agreement only covers the Support
Services described in Section 3. Without limiting the
foregoing, the following items are not covered by this
Support Agreement:
(A) Errors resulting from breach of the software
license, misuse, negligence, revision, modification, or
other improper use by Customer or any other person or
entity of the EnerGov Software or any portion thereof;
(B) Failure by Customer to timely install Error
Corrections or Releases provided to Customer by
EnerGov from time to time;
(C) EnerGov Software installed on any equipment
other than the Designated System or at the designated
Location or used with any software not specified in the
applicable end user Documentation;
(D) Errors or other problems caused by viruses;
(E) Any network failures or problems including, but
not limited to, cabling, communication lines, routers,
connectors, and network software; or
(F) On-site service visits to Customer's Location or
other facility.
4.2 Any time incurred by EnerGov in diagnosing or
fixing problems that are not caused by the EnerGov
Software, or are not covered by this Support Agreement,
are billable to the Customer at EnerGov's then -existing
rates for such services with a one-hour minimum per
call.
4.3. Any travel and expenses incurred in conjunction
with out of scope support shall be billed to Customer at
CHATTANOOGA437384-v2-Eagle County Software Support Agreement
2
EnerGov's actual costs, provided all such travel and
expenses shall be approved by Customer in advance.
5. Term of Support Agreement. This Support
Agreement shall become effective upon its execution and
continue for a one (1) year term (the "Initial Term"),
unless terminated earlier as provide for herein.
Thereafter, it shall continue on a year-to-year basis, until
terminated by either party thirty (30) days prior to the
anniversary date of this Support Agreement or any
renewal term. Notwithstanding the foregoing, (i) the
Customer may terminate the Support Services at any
time by providing EnerGov with written thirty (30) days
notice; and (ii) EnerGov may terminate this Support
Agreement in the event the Customer fails to timely pay
any amounts due pursuant to this Support Agreement and
such failure is not cured within fifteen (15) calendar days
after written notice of such failure is provided to the
Customer.
6. Fees for Support Services. Customer shall pay to
EnerGov the fees for the Support Services ("Support
Fees") in the amounts set forth on the Proposal attached
hereto. The initial Support Fees are due upon
completion of the Installation of the EnerGov Software.
Thereafter, all Support Fees are payable ten (10) days
before each successive quarterly period (i.e., 10 days
before January, April, July and October, as applicable).
After the Initial Term, EnerGov may modify from time
to time the amount of the fees charged for the Support
Services by providing Customer with written sixty (60)
days notice. In the event that the Customer purchases
additional licenses of any additional EnerGov Software,
the parties agree to either amend this Support Agreement
to add the additional Support Fees related to such
additional EnerGov Software or execute a new Support
Agreement with respect to such additional EnerGov
Software. All sums payable to EnerGov pursuant to this
Support Agreement which are past due shall accrue
interest at the rate of 1.5% per month or the highest legal
rate allowed whichever is less, commencing with the
date on which the payment was due.
7. Confidentiality. Proprietary Information provided
by either party to the other under this Support Agreement
shall be kept confidential in accordance with the terms of
Section 8 of the Master Customer Agreement.
8. Limitation of Liability and Disclaimer of
Warranty.
8.1. In no event shall EnerGov be liable for any
special, indirect, incidental, punitive, or consequential
damages, including loss of profits arising from or related
to the breach of this Support Agreement.
8.2. NOTWITHSTANDING ANY OTHER
PROVISION OF THIS SUPPORT AGREEMENT, IN
THE EVENT ANY REMEDY FAILS OF ITS
ESSENTIAL PURPOSE, ENERGOV'S LIABILITIES
UNDER THIS SUPPORT AGREEMENT, WHETHER
0
UNDER CONTRACT LAW, TORT LAW OR
OTHERWISE, SHALL BE LIMITED TO DIRECT
DAMAGES NOT TO EXCEED THE AMOUNT
ACTUALLY RECEIVED BY ENERGOV PURSUANT
TO THIS SUPPORT AGREEMENT.
8.3 EXCEPT AS SET FORTH IN SECTION 2.2,
ENERGOV MAKES NO EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES WITH
RESPECT TO THE ENERGOV SOFTWARE OR
SUPPORT SERVICES OR THEIR CONDITION,
MERCHANTABILITY, FITNESS FOR ANY
PARTICULAR PURPOSE OR USE BY CUSTOMER.
ENERGOV FURNISHES THE WARRANTIES IN
SECTION 2.2 IN LIEU OF ALL OTHER
WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
8.4 No action, regardless of form, arising under this
Support Agreement, may be brought more than one year
after the cause of action has arisen, except that an action
for nonpayment may be brought within two (2) years
after the date of the most recent payment.
9. Assignment. Customer may not assign or transfer its
interests, rights or obligations under this Support
Agreement whether by written agreement, merger,
consolidation, operation of law, or otherwise, without the
prior written consent of an authorized executive officer
of EnerGov. Any attempt to assign this Support
Agreement by Customer shall be null and void.
10. Amendments. Amendments, modifications, or
supplements to this Support Agreement shall be
permitted, provided all such changes shall be in writing
signed by the authorized representatives of both parties,
and all such changes shall reference this Support
Agreement and identify the specific articles or sections
of this Support Agreement that is amended, modified, or
supplemented.
11. Notices. All notices, demands, or other
communications herein provided to be given or that may
be given by any party to the other shall be in writing and
delivered to such party at the address set forth on the
signature page of this Support Agreement or at such
other address as such party may hereafter designate to
the other party in accordance herewith, which other
address shall not be effective for purposes hereof until
the receipt of same by such other party as designated
below. All such notices, demands, or other
communications given in accordance herewith shall be
deemed to have been given and received (i) on the date
of receipt if delivered by hand; (ii) on the earlier of the
date of receipt or the date five (5) business days after
depositing with the United States Postal Service if
mailed by United States registered or certified mail,
return receipt requested, first class postage paid and
properly addressed; or (iii) on the next business day after
CHATTANOOGA -437384 -v2 -Eagle County Software Support Agreement
3
depositing with a national overnight courier service if
sent by national overnight courier service, priority
delivery, properly addressed.
12. Obligations that Survive Termination. The parties
recognize and agree that the obligations of the other
party under Sections 7, 8, 13 and 15 of this Support
Agreement, shall survive the cancellation, termination, or
expiration of this Support Agreement.
13. Governing Law. All matters arising out of or
relating to the validity, construction, interpretation, and
performance of Sections 3.4 and 7 of this Support
Agreement shall be governed by and construed in
accordance with the domestic laws of the State of
Georgia except as to its principals of conflicts of laws.
All other matters arising out of or relating to the validity,
construction, interpretation, and performance of the other
provisions of this Support Agreement shall be governed
by and construed in accordance with the domestic laws
of the State of Colorado except as to its principals of
conflicts of laws. Each party hereto hereby voluntarily (i)
submits to personal, exclusive jurisdiction in the State of
Colorado, with respect to any suit, action or proceeding by
any person arising from, relating to or in connection with
this Support Agreement, (ii) agrees that any such suit,
action or proceeding shall be brought in any state or
federal courts of competent jurisdiction sitting in the
county or districts, as the case may be, where the
Customer is located, (iii) submits to the jurisdiction of
such courts, and (iv) irrevocably agrees not to assert any
objection as to the venue of any such suit, action or
proceeding in the courts described above and any claim
that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
14. Authority. Each party represents and warrants to
the other that it has the right to enter into this Agreement.
15. Costs and Attorneys' Fees. In any action, suit,
arbitration, mediation or other similar proceeding
brought by any party hereto for enforcement hereof or
arising out of or relating hereto or breach hereof, the
non -prevailing or unsuccessful party shall promptly pay
directly, or promptly reimburse the prevailing or
successful party for all costs and all consultants' and
attorneys' fees and expenses, paid or incurred by the
prevailing or successful party in enforcing this Support
Agreement, in addition to other such relief as such
prevailing or successful party may be entitled. For
purposes of this Section, the determination of which
party is to be considered the prevailing or successful
party shall be decided by the court of competent
jurisdiction or independent party (i.e., mediator or
arbitrator) that resolves such action, suit, dispute, claim,
or litigation.
16. Waiver. No waiver of breach or failure to exercise
any option, right, or privilege under the terms of this
Support Agreement on any occasion or occasions shall
be construed to be a waiver of the same or any other
option, right or privilege on any other occasion.
17. Severability. If any of the provisions of this
Support Agreement shall be invalid or unenforceable
under the laws of the jurisdiction where enforcement is
sought, such invalidity or unenforceability shall not
invalidate or render unenforceable the entire Support
Agreement but rather the entire Support Agreement shall
be construed as if not containing the particular invalid or
unenforceable provision or provisions and the rights and
obligations of EnerGov and Customer shall be construed
and enforced accordingly.
18. Counterparts. This Support Agreement may be
executed simultaneously in two (2) or more counterparts,
each of which will be considered an original, but all of
which together will constitute one and the same
instrument.
19. Delivery of Electronic Copy of Executed
Agreement. The parties agree that electronic
transmission via facsimile or email to the other party of a
copy of this Support Agreement bearing such party's
signature shall suffice to bind the party transmitting same
to this Support Agreement in the same manner as if an
original signature had been delivered. Without limitation
of the foregoing, each party who electronically transmits
an executed copy of this Support Agreement via
facsimile or email bearing its signature covenants to
deliver the original thereof to the other party as soon as
possible thereafter.
20. Entire Agreement. This Support Agreement and
the Master Customer Agreement constitute the entire
agreement between the parties hereto and replaces and
supersedes all prior agreements, written and oral, relating
to the subject matter hereof, between the parties to this
Support Agreement.
IN WITNESS WHEREOF, the parties have executed this Support Agreement under seal as of the day and year
first written above.
CU OM
ENERGOV SO TIONS, LL
By:
By:/ice
Title: t) �'
i Title: -P,'�G� - �H r, r sr e ,ter �
Address:
Address:
2763 Meadow Church Road, Suite 220
Duluth, Georgia 30097
CHATTANOOGA437384-v2-Eagle County Software Support Agreement
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