AGREEMENT FOR TRAINING AND SOFTWARE MAINTENANCE

LICENSOR:

PATH tech

, Canada

LICENSEE :

CLIENT'S NAME

address

city, province postal code

1.0	TRAINING

We will provide training for your employees in the operation of the SYSTEM, defined as that portion of our software library licensed to you in object code format listed on Schedule 1, the licensed portion hereinafter being referred to with two (2) copies of user-documentation but not source codes.

Training provided under this Agreement will be billable at our rate then in effect plus reasonable expenses. Our current rate is $_____ per hour. You shall receive 30 days advance notice of changes in our hourly rates.

2.0	MAINTENANCE

The first three months of maintenance after delivery of the software is free of charge. You agree to pay us for maintenance service with respect to the SYSTEM the sum of $_____ per month, which amount shall be due on the first day of each month. The fee may be increased each year by an amount not to exceed TEN (10%) PERCENT.

Maintenance service will provide you with:

2.1	WARRANTY

Continuing warranty of the SYSTEM, and any approved changes modifications, additions, or enhancements thereto, made by us, as follows:

We warrant that the SYSTEM, and any approved changes, modifications, additions, or enhancements thereto, shall be reasonably free from program coding errors as delivered. In the event coding errors are discovered subsequent to delivery, for a period of three (3) months we will supply corrections at no further charge. After this three (3) month period, all corrections will be charged at $_____ per hour if the maintenance contract is in effect, otherwise you shall be charged at our regular rate of $_____ per hour. This warranty is void if any changes, modifications, additions, or enhancements are made to the SYSTEM without our written authorization.

You will allow us, without charge, reasonable access to and use of your hardware as may be necessary to diagnose or repair any defect.

Our warranty shall not apply to defects which are the result of improper handling or use, or in the event that any changes, modifications, additions, or enhancements to the SYSTEM are made not in conformity with this Agreement.

THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL WE BE LIABLE FOR SPECIAL INCIDENTAL, OR CONSEQUENTIAL DAMAGES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

2.2	CHANGES, MODIFICATIONS, ADDITIONS OR ENHANCEMENTS

All changes, modifications, additions or enhancements to the SYSTEM offered by us to our maintenance CUSTOMERS, provided, however, that new modules to the system shall be separately offered at prices determined by us.

2.3	CONSULTATION AND ASSISTANCE

Appropriate consultation and assistance in the event of a software malfunction.

(1)	We will usually respond via telephone to inquiries from you within two (2) hours.

(2)	On-site visits, if required, will usually be made within three (3) business days.

(3)	Maintenance service will be provided by us from Monday through Friday, excluding holidays, from 9:00 a.m. to 5:00 p.m. Eastern time.

(4)	We reserve the right to make additional charges for time at our normal rates and expenses for the correction of malfunctions directly traceable to errors by your staff.

2.4	CONVERSION

Consult with and make recommendations to you regarding conversion of your information to our data base and regarding the preparation of any pre-printed forms required by you for the SYSTEM.

3.0	TERM

The term of this Agreement shall be one (1) year. It shall then be renewed automatically from year to year, unless you shall give us written notice requesting termination of training and maintenance services at least three (3) months prior to the end of the original or any renewed term.

4.0	CUSTOMER RESPONSIBILITIES

4.1	PROJECT MANAGER

You shall designate a Project Manager with whom we shall deal directly on all matters concerning the SYSTEM.

4.2	SUPERVISION

You shall be exclusively responsible for the supervision, management, and control of your use of the SYSTEM.

4.3	SITE PREPARATION

You are responsible for physical site preparation and for maintenance of the hardware and all peripheral equipment.

4.4	COMPETENT PERSONNEL

You will provide sufficient employees and/or agents to compile and input the necessary information to build the required data base for the SYSTEM and to operate the SYSTEM. You must have at least one (1) person trained in the operations of the hardware by the hardware vendor, and you must make available a minimum of two (2) of your employees or agents for at least four hours during the training period.

5.0	GENERAL PROVISIONS

5.1	SEVERABILITY

The waiver, invalidity, or unenforceability of any particular provision of this Agreement shall not affect any other provision, and this Agreement shall be construed in all respects as if such waived, invalid, or unenforceable provision were omitted.

5.2	CONSTRUCTION AND FORUM

This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario. Jurisdiction for any dispute hereunder shall lie only in the federal and provincial courts located in the Province of Ontario.

5.3	COMPLETE AGREEMENT

This Agreement and its schedules embody the full and complete understanding between you and us.

5.4	EXCLUSIVENESS OF TERMS

No salesman, agent or subcontractor has made, or is authorized to make, any representation or agreement with respect to the SYSTEM or this Agreement, except upon the terms and conditions of this Agreement.

5.5	TAXES

You agree to pay and be responsible for any sales and/or use taxes.

5.6	PLAN OF PAYMENT

All payments shall be due in accordance with the terms and conditions hereof and shall be made directly to us at the address herein specified.

5.7	MODIFICATIONS TO THIS AGREEMENT

No modifications shall be made to this Agreement except as agreed to in writing, signed by you and by us. You acknowledge that you have read this Agreement, understand it, and agree to be bound by its

terms and conditions. Further, you agree that this Agreement and the schedules hereto are the

complete and exclusive statement of the agreement between you and us, superseding all proposals or prior agreements, oral or written, and all other communications between you and us relating to the subject matter of this Agreement.

Agreed to: _____________________________________ Date: _________

For ____________________________________________

Agreed to: _____________________________________ Date: _________

For ____________________________________________

SCHEDULE A - Equipment and Software

This schedule will set out in detail each of the items of Equipment and Software that form part of the SYSTEM and which will be included under the Maintenance Services. The schedule should set out the equipment and software that is grouped together at a particular location with the location(s) identified and specified (the “Designated Premises”)

It may be appropriate to set out the individual prices for each item and any uplift(s) for extended travel.

SCHEDULE B - Maintenance Services

This schedule will detail the services that make up the “Maintenance Services”. This is likely to include those maintenance services that are “preventative” and those that are “remedial”. It is important that any exclusions (other than what is stated in the body of the Agreement) are identified as well.

The services relating to extended coverage and/or “time and materials” should be set out.

SCHEDULE C - Service Levels

This schedule will set out the Service Levels that will apply to all services to be supplied under this Agreement. It is likely to include:

the hours of coverage (including weekends, public holidays, etc.)

any provision for support outside the coverage period

any provision of different levels of call and response (eg “critical” and “non critical”)

“work to completion” or work only during hours of coverage

provision for preventative maintenance outside the normal coverage period

the target time for initial response to a call logged by the Customer for service (also “same day” or “next day” if call logged late in the coverage period?)

the target time for the Supplier to arrive at the Designated Premises in the event this is required

the target time for the Equipment, Software and/or System to be available again for the Customer’s use

any targets for “system availability” and the formulae for calculating this

definition of “system down” or any other performance measures for the purposes of any availability calculations

the provision for any replacement or loan equipment

any special provisions for spare part inventories

response to out of hours coverage

response to “time and material” calls

the service level issues regarding the Supplier’s roles/responsibilities with respect to any third party suppliers

any limitations on the eligibility of any software or equipment (eg age or version).

SCHEDULE D - Prices and Payments

This schedule will set out the charges applicable for all services and the payments and payment milestones that will apply. Depending on the approach, it may be appropriate to merge this schedule with Schedule A to simplify updates and amendments. The relevant clause references will then need to be adjusted.

This schedule will also set out the milestones and procedures for reviewing charges and the rules (if any) that will apply, including limitations on any increases.

The schedule will include the address for the Supplier’s invoices.

SCHEDULE E - Service Plan

This schedule should set out the plan for the delivery of services. It might include:

a plan and timetable for the preventative maintenance work

the procedures for logging calls for service (including outside the coverage period if applicable)

any definitions of “critical” and “non critical” faults and reference to the service levels that will apply

the procedures that the parties follow in the event of a call for service (arrival on site, access, closing down the system, documenting the call, restoring the system, declaring the problem resolved, reporting the problem, etc)

the account management plan (regular meetings, reports required, etc)

the problem escalation plan and procedures

plan and procedures for the Supplier with respect to other parties who have responsibilities for maintenance of any Equipment or Software on the System

any special requirements of the service that relate to travel, access, reporting, etc

any additional roles/responsibilities of the parties that should be documented

the procedures for requesting additional work (equipment relocation, addition or removal)

how equipment or software that is not under maintenance is dealt with

the policy/plan with respect to remote engineering login

policy procedures for the Supplier in accepting equipment or software under maintenance (including any immediate or longer term refurbishment work required)

the quality assurance plan

any consumables or supplies that it is agreed that the Supplier will provide

procedures and responsibilities for restoring from backup media the Software or Data in the event it is lost for any reason.

Copyright G. Roderick Singleton © 1992

Maintenance and Training Contract

Copyright Gerry Roderick Singleton (c) 1992

G. Roderick Singleton

2004-07-14T10:18:49