2003 Agr Tech SupportSWEET COMPUTER SERVICES, INC.
TECHNICAL SUPPORT AGREEMENT
This Technical Support Agreement ("Agreement'3 is dated as of April 1, 2003 byand between
Sweet Computer Services, Inc., d/b/a, SWEET~ an Ortivu$ Com~ pany.,~a ~elaware Corporation
with offices at 2324 Sweet Parkway Road, Decorah, Iowa and ~--~ c~ ,~ [)'~
, with offices at , ~'Customer'3.
Definitions
a. The term '~Prograrn"shall have the meaning set forth in the Licensing Agreement.
b. "~4nn/versary Date"shall refer to each anniversary of the Commencement Date.
c. "Comme~Tceme~Tt DateXshall refer to the date the Program was delivered to Customer.
d. '~'ce~$/~7~.7 ~4~reeme~t"shall mean the licensing agreement dated
between SW£ETand the Customer.
e. '7~7/Ea/$upport Term"shall mean the 12-month period commencing on the
Commencement Date.
f. "Re~7ewa/Term"shall mean each 12-month period commencing on the expiration of the
Initial Support Term.
g. '?'echm'ca/$upport"shall mean those maintenance and technical services described in
detail on Schedule A to this Agreement.
h. 'L~upport"when used without a modifier shall mean Technical Support.
Affirmation of Ucensing Agreement
Customer hereby certifies that it has read, agrees with and hereby reaffirms each of the terms
and conditions contained in the Ucensing Agreement.
III. Technical Support
IV.
Dudng the Initial Support Term and any applicable Renewal Term, SWE~shall provide to
Customer the Technical Support described in Schedule A. $14~£E'/'s obligations under this
Section III with respect to a Renewal Term are contingent upon Customer's timely making the
payments required by section IV.1.
Fees and Payment; Renewal of Technical Support
1. Support Fees and Renewal. Customer by purchasing a license to the Program has
already paid for Technical Support for the Initial Support Term. Approximately 60 days
prior to the expiration of the Initial Support Term, SW'£ETwill invoice Customer for the
upcoming Renewal Term, payable 12 months in advance. Customer may accept
Technical Support for the upcoming Renewal Term by paying SWEETs invoice in U.S.
Dollars. If Customer fails to pay such invoice within 30 days after the commencement of
the Renewal Term, SWEETmay, notwithstanding Section VI and without further notice
to Customer, terminate and treat this Agreement as terminated.
Taxes. Support fees and other charges set forth in this Agreement do not include
applicable taxes. Tn addition to the fees and charges due SW£ETunder this Agreement,
Customer shall remain liable for and shall pay all local, state, and federal sales, use,
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excise, personal property, or other similar taxes or duties, and all other taxes, which may
now or hereafter be imposed upon this Agreement or possession or use of the Program,
excluding taxes based on SWEET'$income.
V. Warranties and Limitations of Liability
Limited Performance Warranty. SWEETwarrants that it will use its reasonable best
efforts to ensure that any Support it provides will be performed in a professional and
workmanlike manner. SWEETagrees to use reasonable efforts to correct any error or
defect in its provision of Support under this Agreement. The foregoing warranty and
remedy do not expand or extend any limited warranties relating to the Program set forth
in the relevant License Agreement. THE PROVZSIONS OF THiS SECTION SET
FORTH THE ENTTRE UABTL_TTY OF SW£ETAND THE SOLE REMEDTES OF
CUSTOMER WlTH RESPECT TO SWEE7'S BREACH OF ZTS OBLIGATIONS UNDER
THTS AGREEMENT.
Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY PROVIDED TN THTS
SECTION, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS,
TNDEMNI'I/ES, AND GURANTEES, WHETHER EXPRESS OR TMPI TED, AR/STNG
BY LAW, CUSTOM, PR/OR ORAL~ OR WR/TrEN STATEMENTS OR OTHERWISE,
TNCLUDTNG BUT NOT L/MITED TO, ANY WARRANTY OF MERCHANTABILTrlY,
TI'rLE, THE CONDITION OF ANY PRODUCT OR SERVICES, OR FI'rNESS FOR A
PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLATMED AND
EXCLUDED.
3. No Consequential Damages. TO THE MAXIMUM EXTENT PERMITrED BY
APPIJCABLE LAW, IN NO EVENT SHALL SWEETOR 1'rs SUppI TERS BE UABLE
TO CUSTOMER FOR ANY CONSEqUENTLAL, TNCTDENTAL, DTRECT, TNDTRECT,
SPEC[AL, PUNITWE, OR OTHER DAMAGES WHATSOEVER (TNCLUDTNG,
WTrHOUT I TMI'rATION, DAMAGES FOR LOSS OF BUSTNESS PROFTrS,
BUSTNESS TNTERRUPTION, LOSS OF BUSTNESS TNFORMATION, OR OTHER
PECUNIARY LOSS) AR/STNG OUT OF THTS AGREEMENT OR THE USE OF OR
TNABI'I.ITY TO USE THE PROGRAM, EVEN TF SWEETHAD BEEN ADVISED OF
THE POSSTBTLT'TY OF SUCH DAMAGES.
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Additional Limitation of Uability. TN NO EVENT SHALL SWEETS TOTAL
CUMULATIVE I.[ABIUTY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY
KIND, WHETHER AR/SiNG UNDER CONTRACT, TORT (INCLUDTNG
NEGLTGENCE), STRiCT LTABTLZTY, BREACH OF WARRANTY OR OTHERWTSE,
EXCEED THE TOTAL AMOUNT PATD BY CUSTOMER FOR THE TECHNTCAL
SUPPORT PROVIDED UNDER THTS AGREEMENT.
Vi. Termination
If either party defaults in performing any material obligations required under this Agreement, the
non-defaulting party may give written notice of its intention to terminate this Agreement,
describing in reasonable detail the default, if the defaulting party fails to remedy such material
default within thirty (30)-days following such written notice, or if such default is not capable of
cure within such thirty (30)-day pedod, and the defaulting party fails to commence cure
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procedures within such thirty (30)-day pedod and diligently prosecute such procedures until the
default is cured, then the non-defaulting party may terminate this Agreement.
V~. Business Associate Assurances
In the event that $14/EETis deemed to be a "Business Associate" of Customer pursuant to the
definition of that term set forth in 45 C.F.P,. § 160.~.03, SWEETshalI, effective on or after April
14, 2003, or such other implementation date established by law, carry out its obligations under
this Agreement in material compliance with the regulations published at 65 Federal Register
82462 (December 28, 2000) (the "Privacy P, egulations'~ pursuant to Public Law 104-19:1. of
August 21, 1996, known as the Health Insurance Portability and Accountability Act of :~996,
Subtitle F - Administrative Simplification, Sections 261, et seq., as amended ("HIPAA"), to
protect the privacy of any personally identifiable, protected health information ("PHI:") that is
collected, processed or learned in connection with the Technical Support services set forth in
Schedule A hereto, l~n conformity therewith, SWEETagrees that it will use its reasonable best
efforts to:
Not use or further disclose PHI except: (i) as permitted under this Agreement
(that is, for those activities specified in Schedule A hereto; and related
administrative functions pertaining to these activities); (ii) as required for the
proper management and administration of SW£ETin its capacity as a HIPAA
Business Associate of Customer, in the event SW£ETis deemed to be a
Business Associate of Customer for these specified purposes; or (iii) as
required by law;
· Use appropriate reasonable safeguards to prevent use or disclosure of PHI
except as permitt~:t by this Agreement;
· Report to Customer any use or disclosure of PHI not provided for by this
Agreement of which SWEETbecomes aware;
Ensure that any agents or subcontractors to whom SW£ETprovides PHI, or
who have access to PHI, agree to the same restrictions and conditions that
apply to SWEETwith respect to such PHI;
Make PHI available to the individual who has a right of access as required
under HIPAA in the event SWE£Tmaintains any PHI in a designated record
set as defined by 45 C.F.R. § 164.501;
Make available for amendment and incorporate any amendments to PHI
when notified to do so by Customer in the event that SWEET maintains any
PHI in a designated record set as defined by 45 C.F.R. § 164.501;
Make available to Customer the information required to provide an
accounting of the disclosures of PHil, if any, made by SWEETon Customer's
behalf, provided such disclosures are of the type for which an accounting
must be made under the Privacy Regulations;
Make its internal practices, books and records relating to the use and
disclosure of Customer's PHI available to the Secretary of the Department of
Health and Human Services for purposes of determining Customer's
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VIII.
compliance with HIPAA and the Privacy Regulations; and
At the termination of this Agreement, return or destroy all PHI received from,
or created or received by SWEETon behalf of Customer. In the event the
return or destruction of such PH! is infeasible, SW£E7'S obligations under
this section VI! shall continue in force and effect so long as SWEET
possesses any PH!, notwithstanding the termination of this Agreement for
any reason.
General
1)
Entire Agreement. This Agreement and the License Agreement constitute the entire
agreement between the parties with respect to the subject matter hereof, and all prior
agreements, representations, and statements with respect to such subject matter are
superseded hereby. This Agreement may not be altered, modified, amended, changed,
rescinded, or discharged in whole or in part, except by written agreement executed by
both Customer and SWELl..
2) Assignment. This Agreement may not be assigned without prior written consent from
SW£ETand any attempt to do so without permission shall be void.
3)
Force Majeure. Notwithstanding anything to the contrary in this Agreement, no
default, delay or failure to perform on the part of either party shall be considered a
breach of this Agreement (other than nonpayment of money or breach of confidentiality
provisions) if such default, delay or failure to perform is shown to be due entirely to
causes beyond reasonable control of the party charged with a default, including, but not
limited to, causes such as strikes, lock-outs or other labor disputes, riots, civil
disturbances, actions or inactions of governmental authorities or suppliers, epidemics,
war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy, or
nuclear disasters.
4)
Governing Law. The validity and performance of this Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Pennsylvania,
excluding that body of law applicable to choice of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
Sweet Computer Services, Inc., d/b/a
SWEE'7;, an Ortivus Company,
a Delaware Corporation
Customer
Print Name:
Print Name:
Title:
TiUe:
Sweet Computer Services, !nc. d/b/a
$1/VEETan Ortivus Company
2324 Sweet Parkway Road
Decorah, Iowa 52101
Customer
Site Address:
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Schedule A
This Schedule describes the terms and conditions relating to Technical Support that SW£ETwill
provide to Customer during the Znitial Support Term and any Renewal Terms. The Technical
Support Agreement described in this Schedule does not expand on or change the Program
warranty provisions set forth in the License Agreement.
Product UmJates:
From time to time SWEETmay develop permanent fixes or solutions to known problems or bugs
in the Program and incorporate them in a formal "Update" to the Program. Tf Customer is
receiving Technical Support from SW£ETon the general release date for an Update, SWEETwill
provide the Customer with the Update and related Documentation, both at no additional charge
to the Customer.
Technical SUDDOrt Services:
Telephone Assistance. Customer will be given the telephone number for SW£ET'$support
line and will be entitled to contact the support line during normal operating hours, (between 8:00
a.m. and 5 p.m.U.S. Central Standard Time) on regular business days, excluding SWEET
holidays, to consult with SW£ETTechnical Support staff concerning problem resolution, bug
reporting, documentation clarification, and general technical guidance. Assistance may include
communicating via pcAnywhere, modem, or electronic bulletin board.
Web site Support. Online support is available 24 hours per day, offedng Customer the ability
to resolve its own problems with access to SW£ETs most current information. Customer will
need to enter its designated user name and password to gain access to the technical support
areas on SWEETs web site. SWEETs technical support areas allow the Customer to: (i)
search an up-to-date knowledge base of technical support information, technical tips, and
featured functions; (ii) access answers to frequently asked questions (FAO_.); and (iii) access
current program releases and documentation.
Software Problem Reporting. Customer may submit to SWEET requests identifying potential
problems in the Program. Requests should be in writing and directed to SW£ETby e-mail or
FAX. SWEETretains the dght to determine in its sole discretion the final disposition of all
requests, and will inform Customer of the disposition of each request. Tf SWEETdecides in its
sole judgment to act upon a request, it will do so by providing a bug fix as described above.
Exclusions from Technical SUODOrt Services:
SWEETshall have no support obligations with respect to any hardware or software product
("Nonqualified Products'~ other than the Program. Tf SWEETprovides support services for a
problem caused by a Nonqualified Product, or if SWEETs service efforts are increased as a
result of a Nonqualified Product, SWEETwill charge time and materials for extra service at its
current published rates for custom software services. Tf, in SWEET'fi opinion, performance of
Technical Support is made more difficult or impaired because of Nonqualified Products, SWEET
shall so notify Customer, and Customer will immediately remove the Nonqualified Product at its
own risk and expense during any efforts to render Technical Support under this Agreement.
Customer shall be solely responsible for the compatibility and functioning of Nonqualified
Products with the Program.
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Customer Responsibilities:
In connection with SW£E'/'s provision of Technical Support as described in this Exhibit,
Customer acknowledges that Customer has the responsibility to do each of the following:
1) Maintain the designated computer system and associated peripheral equipment in good
working order in accordance with the manufacturers' specifications, and ensure that any
problems reported to SW£ETare not due to hardware malfunction;
2) Maintain the designated computer system at the latest code revision level deemed
necessary by SWEETfor proper operation of the Program;
3) Supply SWEETwith access to and use of all information and facilities determined to be
necessary by SW£ETto render the Technical Support described in this Exhibit;
4) Perform any test or procedures recommended by SWEETfor the purpose of identifying
andJor resolving any problems;
5) Maintain a procedure external to the Program for reconstruction of lost or altered files,
data, programs to the extent deemed necessary by Customer;
6) At all times follow routine operator procedures as specified in the Documentation;
7) Remain solely responsible at all times for the safeguarding of Customer's proprietary,
confidential, and classified information; and
8) Ensure that the designated computer system is isolated from any process links or
anything else that could cause harm before requesting or receiving remote support
assistance.
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