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PROGRESSIVE SOLUTIONS INC. EXHIBIT A: SOFTWARE
<br /> MAINTENANCE AGREEMENT
<br />AGSOFTMT(4.2) Page 5 of 6
<br />the Agreement, Licensor will, at no cost to Licensee, re-perform or perform the services
<br />so that the services conform to the warranties.
<br />f) Nothing contained in this Agreement shall be construed to obligate Licensor to
<br />provide any services whatsoever subsequent to the expiration of this Agreement or any
<br />subsequent renewals of this Agreement. Upon expiration of this Agreement, Licensee
<br />may offer and Licensee may purchase continued Software Maintenance on a periodic
<br />basis.
<br />IV. SUPPORT FEES AND PAYMENTS
<br />Payment for ‘Software Maintenance’ services is due in advance and non-refundable. ‘Software Maintenance’ services will not be provided until such advance payment has been
<br />received. Licensor agrees to provide at least 90 days prior written notification prior to implementation of any annual fee change. Any annual fee change shall not become effective until
<br />the first day of any annual extension. Maintenance for Revenue Enhancement functionality is excluded from any and all caps.
<br />Should Licensee terminate this agreement at any time after the most recent automatic renewal and cease all use of the Licensed software post expiration of the Licensed software, both
<br />parties agree that any billed and/or unpaid annual maintenance invoice amount submitted to Licensee prior to the automatic renewal shall be immediately due and promptly payable. If
<br />payment is not received by Licensor within 30 days from invoice date or 60 days post expiration of Licensee’s right to use the licensed software (whichever is earlier), a late fee of 10%
<br />of the invoiced amount shall also be due and payable. If Licensee continues use of the Licensed software for more than 60 days post Licensee's right to use the software without
<br />payment and absent alternate written arrangements, Licensee shall remove the licensed software per the provisions of the Default Section (V) of this agreement.
<br />To encourage Licensees to receive the benefits of the latest Software Maintenance Agreement, Licensor offers a 30 day Software Maintenance payment extension to Licensees that
<br />sign and return the Licensor provided Software Maintenance Agreement renewal without alternations to Licensor prior to expiration of each Software Maintenance term. Unless
<br />Licensor has received a newly signed Software Maintenance Agreement (to extend the payment due date) prior to the software expiration date, a reinstatement fee based of the
<br />delinquent maintenance balance (identified on the cover page of this agreement) shall be due for failure to tender payment either by the original expiration date or by the Licensor
<br />extended due date obtained by signing the new Maintenance Agreement. Further any payments not received by Licensor within 30 days from the invoice date, original contractually
<br />specified expiration or by any Licensor extended due date shall in addition to the reinstatement fee be subject to a finance charge of .05% per day from the support expiration date up to
<br />and including the date payment is received.
<br />
<br />V. DEFAULT
<br />(a) In the event Licensor or Licensee fails to exercise due care (defaults) with
<br />regard to its obligations under this Agreement, and has not remedied such default
<br />within 30 days after the date of written notice by the non-defaulting party, then the
<br />non-defaulting party shall be entitled to exercise any one or more of these remedies:
<br />1. The non-defaulting party may terminate this Agreement, accelerate all amounts
<br />due and unpaid hereunder such that all amounts will become immediately due
<br />and payable.
<br />2. Suspension of Obligations: The non-defaulting party may suspend
<br />performance & observance of any or all its obligations under this Agreement,
<br />without liability, until the other party’s default is remedied. However, Licensee
<br />may only suspend its obligation to make payments for Software Maintenance
<br />and other Services provided a written ‘Notice of Default’ has been transmitted to
<br />Licensor prior to the most recent automatic renewal date. At such time as the
<br />noticed default has been remedied, such suspended payment shall be
<br />immediately released to Licensor.
<br />3. If Licensee is the defaulting party, Licensor may allow the Licensed software to
<br />expire without demand or notice, without court order or other process of law,
<br />and without liability to Licensee for any damages occasioned by such expiration
<br />of the Licensed software.
<br />4. The non-defaulting party may pursue any other remedy available at law or in
<br />equity, including injunctive relief. While an attempt at good faith Mediation
<br />participation per Section XI (f) of the ‘Software and Services Agreement’ is
<br />required in order for either party to collect any costs of litigation, therefore it is
<br />mutually agreed that any ‘Notice of Default’ transmitted to Licensee shall be
<br />deemed adequate notification of a Licensor claim to protect its private
<br />intellectual property per California Government Code Section 905.1 (or similar
<br />code sections from any state where the software has been installed).
<br />(b) Removal of Licensed Software: For local implementations, upon 30 days from
<br />demand by Licensor made pursuant to the default provisions (Section V) of this
<br />agreement and/or the corresponding Software License Agreement pertaining to local
<br />licensed software implementations, Licensee shall discontinue use of Licensor's
<br />database/structure, software & related electronic forms. In addition, Licensee shall
<br />provide Licensor with written confirmation that: I) all previously licensed components
<br />have been erased and copies no longer reside on any computer system maintained
<br />or operated by: Licensee, Licensee’s staff members, or Licensee authorized 3rd party
<br />vendors II) all backup tapes which contain a copy of Licensor's proprietary property
<br />shall be securely maintained with the same care as other confidential data and
<br />overwritten as part of the normal backup plan after execution of the transmitted
<br />Licensor’s “Confirmation of Proprietary Rights and Destruction” III) no attempt shall be
<br />made to restore Licensor's proprietary property from backup tapes and IV) no breach
<br />of confidentiality relating to Licensor's intellectual property has occurred. Licensee
<br />agrees to complete and transmit Licensor's ‘Confirmation of Proprietary Rights and
<br />Destruction’ to Licensor within 30 days from expiration of the licensed software unless
<br />an alternative written agreement has been executed. Failure to transmit such
<br />statement prior to the 30 day due date shall result in a $1,000 charge for each
<br />subsequent 7 day period until such statement has been provided. Should any
<br />representation provided via a transmitted ‘Confirmation of Proprietary Rights a nd
<br />Destruction’ subsequently be found not to be true, the weekly penalty provision shall
<br />apply as if the statement had not been provided until the date subsequent proof has
<br />been tendered which verifies that any misrepresentation (intentional or unintentional)
<br />has been rectified.
<br />VI. GENERAL PROVISIONS
<br />(a) The Licensed software is subject to design and operational changes to allow for
<br />the use of new technologies and to correct known bugs as they are brought to the
<br />attention of the Licensor, either by the Licensor's own quality-control mechanisms or
<br />by the Licensee.
<br />(b) Licensee acknowledges that the Licensed software is of such complexity that it
<br />may have inherent defects and agrees that as Licensor's sole liability for such inherent
<br />defects and as Licensee's sole remedy for such inherent defects, Licensor will
<br />provide, during the term of this Agreement, all reasonable software maintenance
<br />services arising from a hosted and/or unaltered locally implemented version of the
<br />delivered Licensed software to correct 1) documented programming or documentation
<br />errors reported by Licensee and 2) failure of the Licensed software to meet the
<br />specifications identified in the electronic documentation provided with each release of
<br />the software.
<br />(c) Software maintenance is offered by Licensor to ensure that Licensee receives
<br />the quality support necessary to remain a highly satisfied customer. Support is
<br />offered for Licensed software and minor modifications to forms designed and/or
<br />created by Licensor to operate with the released software. Licensor utilizes Seagate's
<br />Crystal Report Writer to create most reports and forms. To ensure maximum
<br />flexibility, customers have the option to independently design, create and maintain
<br />additional forms, mailings, and/or reports. Licensor's annual software maintenance
<br />does not include technical support for user written Crystal Reportsor for minor
<br />individual modifications to accepted/completed forms that require more than 15
<br />minutes technical support. However, Licensor is pleased to offer such support on a
<br />time expended or fixed fee basis (should complete written specifications be available).
<br />(d) All documentation, programming and/or modifications shall be delivered via
<br />remote telecommunications from Licensor's place of business, to or through the
<br />Licensee's computer. Licensor shall not provide Licensee with possession of any
<br />tangible personal property such as storage media. Licensee shall reimburse Licensor
<br />for any state and or local requirements, which Licensor must meet or obtain to provide
<br />services under this Agreement (e.g. business licenses, additional insured statements,
<br />sales tax, etc.).
<br />(e) No action regarding services or deliverables, regardless of form, may be
<br />brought more than one (1) year after the first to occur of either 1) the conclusion of
<br />services and/or delivery of any deliverables arising from this or the Software License
<br />Agreement, or 2) such party’s knowledge of the event giving rise to such cause of
<br />action. This limitation does not apply to confidentiality obligations or to software
<br />license rights.
<br />(f) Notices: All notices and other communications required or permitted to be given
<br />or made pursuant to this Agreement shall be in writing and deemed delivered one (1)
<br />day after being sent by a nationally recognized overnight courier service or three (3)
<br />days after being sent certified U.S. mail, return receipt requested, postage prepaid.
<br />All notices will be given to the designated contact at the address indicated in this
<br />Agreement.
<br />(g) Should any conflict arise with any other unilateral writings of either party, this
<br />Agreement shall govern. This Agreement and any written modifications, amendments
<br />or addenda, executed pursuant to this Agreement constitute the entire agreement
<br />between the parties and supersede all negotiations and other proposals, oral or
<br />Docusign Envelope ID: 4B3DD47E-7332-8163-807C-64B627C64358
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