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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 N 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 4