|Paladin DesignBase Software Maintenance
Agreement (SMA) Terms and Conditions
These Software Maintenance Agreement Terms and Conditions (“Terms and Conditions”) govern the support and maintenance provided to authorized licensees (each a “Licensee”) of the EDSA Micro Corporation (“EDSA”) Paladin® DesignBase™ Software (the “Software”) who have purchased support and maintenance during the Term (as defined below).
1. Scope. During the Support and Maintenance Term, as set forth in Section 2, EDSA agrees to provide Standard Maintenance Services (as such term is defined in Section 3) for the Software, which was licensed to Licensee pursuant to the terms and conditions of the EDSA Micro Corporation Software License Agreement for the Software (the “License Agreement”).
2. Term. The Term during which Standard Maintenance Services will be provided shall commence on the effective date of the License Agreement and shall continue for so long as Licensee remains current in its Software Maintenance payment obligations.
3. Standard Maintenance Services
a. Scope of Services. During the Term, EDSA (or their designated agents) will provide Licensee with the following support services ("Standard Maintenance Services") for the Software:
i. Unlimited telephone and email product support shall be provided by a technical representative of EDSA to designated Licensee contacts between the hours of 8:00 a.m. and 5:00 p.m., Pacific Time, Monday through Friday, excluding federal, state and EDSA holidays, to assist Licensee in using the Software.
ii. Periodic updates of the Software that may incorporate (A) new product releases, (B) minor Software updates, and (C) at the sole discretion of EDSA, enhancements to the Software. EDSA reserves the right to determine the timing and content of Software updates, if any.
iii. Periodic updates of the project libraries.
iv. Three (3) days of training for one full time employee of Licensee (free with initial product purchase, ˝ off with SMA renewal) at a mutually agreed time at the offices of EDSA, unless EDSA agrees to conduct the training elsewhere.
b. Services Not Included. Standard Maintenance Services do not include:
i. enhancements or upgrades of the Software that are offered, at EDSA's sole discretion, to Licensees upon payment of a license fee.
ii. Custom programming services.
iii. On-site support or maintenance.
iv. Training beyond the initial training session pursuant to Section 3.a.iv. above. v. Hardware and related supplies.
v. Support or maintenance of any separately identified third-party programming which is not being sub-licensed by EDSA as part of the Software under the License Agreement, but which must be obtained by Licensee under the License Agreement for operation with the Software.
vi. Support or maintenance of any additional products created, sold and/or licensed by EDSA.
4. Obligations of Licensee
a. Licensee Contact. Licensee shall notify EDSA in writing of any changes to Licensee's designated Licensee Contact(s). Licensee's communications with EDSA will be through a Licensee Contact.
b. Installation. Licensee agrees to assist in installing all corrections of substantial defects, minor bug fixes and updates, including any enhancements, for the Software in accordance with the instructions and in order of receipt from EDSA.
c. No Modification of Software. Licensee agrees not to modify, enhance or otherwise alter the Software, unless and only to the extent specifically authorized in any user manuals provided by EDSA or pursuant to the prior written consent of EDSA.
d. Error Documentation. Upon detection of any error in the Software, Licensee, as requested by EDSA agrees to provide EDSA a listing of output and any other data, including databases and backup systems that EDSA reasonably may request in order to reproduce operating conditions similar to those present when the error occurred.
5. Limitations. No litigation or other action under these Terms and Conditions, unless involving death or personal injury, may be brought by either party against the other more than one (1) year after the cause of action arises. EDSA MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OF ANY KIND WHATSOEVER, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY EDSA AND WAIVED BY LICENSEE. EDSA SHALL NOT BE LIABLE TO LICENSEE FOR LOST PROFITS OR NDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THESE TERMS AND CONDITIONS, EVEN IF EDSA HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL EDSA'S LIABILITY EXCEED THE AMOUNTS PAID BY LICENSEE TO EDSA FOR THE SUPPORT PROVIDED UNDER THESE TERMS AND CONDITIONS.
6. Termination. EDSA shall have the right to terminate all services provided pursuant to these Terms and Conditions: (i) upon termination of the License Agreement by either party for any reason, (ii) upon Licensee’s failure to pay any Maintenance Fees when due, or (iii) if Licensee or its employees or agents violate any provision of these Terms and Conditions and Licensee fails to cure such violation within fifteen (15) calendar days after receipt of written notice from EDSA.
7. Ownership. Title to and in the Software and its documentation, including any modifications, interfaces, copies or derivative works thereof prepared by EDSA or Licensee, shall belong to and remain with EDSA.
8. General Provisions
a. Assignment. Licensee will not assign or sub-license, in whole or in part, any of its rights or obligations under these Terms and Conditions, except to a successor corporation without the prior written consent of EDSA, which consent shall not be unreasonably withheld.
b. Complete Agreement; Amendment. These Terms and Conditions, together with any agreement on payment terms and the License Agreement, sets forth the entire understanding of the parties with respect to the subject matter of these Terms and Conditions. Any amendment to these Terms and Conditions must be in writing and signed by both parties.
c. Waiver. The waiver or failure of EDSA to exercise in any respect any right provided for in these Terms and Conditions shall not be deemed a waiver of any further right under these Terms and Conditions.
d. Severability. If any provision of these Terms and Conditions is invalid, illegal or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted. The remainder of these Terms and Conditions shall be valid and enforceable to the maximum extent possible.
e. Governing Law. These Terms and Conditions are to be construed in accordance with the law of the State of Delaware.