THIS ANNUAL MAINTENANCE AGREEMENT (“Agreement”) is entered into between Parallax Investors, LLC d/b/a Percipia, a Delaware limited liability company, with its principal office located at 4256 N. Ravenswood Avenue, Suite 203, Chicago, Illinois 60613 (hereinafter referred to as the “Company”), and the customer that has entered into, accepted, and/or executed a quotation (“Quote”) with Company (“Customer”). This Agreement shall govern the Maintenance Services (defined below) provided by Company to Customer as described herein and in the applicable Quote.
WHEREAS, Company has implemented certain products and/or software as further set forth in the applicable Quote (hereinafter referred to as the “Covered Products”) pursuant to a Master License and Software Agreement (“MSA”) entered into between the parties hereto; and
WHEREAS, Company will provide Maintenance Services for the Covered Products to Customer based on the terms and conditions of this Agreement.
In consideration of the mutual promises herein contained, the parties hereto agree as follows:
During the term of this Agreement, Company shall provide maintenance and technical support including bug-fixes, technical Updates (as defined herein), software maintenance and additional support as set forth herein and/or in the applicable Quote (collectively, “Maintenance Services”) as described below:
The Maintenance Services are provided on a remote basis. In the event Customer requests on-site Maintenance Services, then such Maintenance Services may be provided on-site at Company’s then-current rate (currently $300/hour) plus travel and living expenses, which may be subject to change from time to time in Company’s sole discretion.
Company will provide remote support twenty four (24) hours per day, seven (7) days per week, three hundred and sixty five (365) days per year. In the event of an error, defect, malfunction and/or nonconformity in the Covered Products, Customer shall promptly: (i) call Company at 800-806-0408, option 3, (ii) email Company at helpdesk@percipia.com, or (iii) contact Company through its web portal at https://percipia.com/support. Upon receipt by Company of notice from Customer, Company shall use commercially reasonable efforts to respond as follows:
If Company does not respond within the timeframes set forth above, Customer may escalate to Company by contacting the help desk coordinator or duty engineer (after hours), who will log the notice received by Customer. At any time, Customer may escalate the issue further by contacting the support supervisor or head of support. At the commencement of the Maintenance Services, the Customer will be provided with names and contact information for each individual identified in the above progression. Customer may contact any of these individuals if issues are not addressed in a timely manner.
Notwithstanding anything herein to the contrary, the Maintenance Services do not cover any of the following: (i) maintenance and/or support of any software that is not Covered Products; (ii) out of pocket reasonable expenses, including hardware and related supplies; (iii) faults due to Customer abuse, misuse and/or misapplication, including but not limited to modification of the Covered Products, its configuration or settings by Customer or other personnel not authorized by Company to make such modifications; (iv) use of the Covered Products in combination with other products and/or materials not furnished or authorized by Company; (v) a Force Majeure Event occurs or access beyond the demarcation point of the Covered Products; (vi) an outage affected during maintenance; and/or (vii) new features and/or functionality. (viii) PercipiaCare PLUS Upgrades do not include installation services. Installation services and professional services will be billed separately prior to installation.
In order for Company to provide the Maintenance Services set forth herein, the Customer acknowledges and agrees it shall: (i) provide a safe and suitable environment for Company personnel when engaged in performing Maintenance Services on-site; (ii) provide Company engineers with remote access to the products via ‘VPN’ connection; (iii) provide an assessment of the severity of the issue when reporting it to the Company’s help desk; (iv) provide reasonable assistance and support for troubleshooting efforts upon Company’s request; and/or (v) not abuse, misuse and/or misapply the product and/or software, nor permit any modification, reconfiguration and/or change in settings by individuals not authorized by Company for such intervention. Furthermore, Customer agrees that Customer will maintain its account information, including without limitation, account password and/or login credentials confidential at all times as Customer is solely responsible to Company for all activity that occurs via Customer’s account. In the event Customer does not comply with the foregoing duties, then Company, without limiting other available remedies, may terminate the Agreement without liability upon written notice to Customer.
In order for Company to provide the Maintenance Services set forth herein, the Customer acknowledges and agrees it shall: (i) provide a safe and suitable environment for Company personnel when engaged in performing Maintenance Services on-site; (ii) provide Company engineers with remote access to the products via ‘VPN’ connection; (iii) provide an assessment of the severity of the issue when reporting it to the Company’s help desk; (iv) provide reasonable assistance and support for troubleshooting efforts upon Company’s request; and/or (v) not abuse, misuse and/or misapply the product and/or software, nor permit any modification, reconfiguration and/or change in settings by individuals not authorized by Company for such intervention. Furthermore, Customer agrees that Customer will maintain its account information, including without limitation, account password and/or login credentials confidential at all times as Customer is solely responsible to Company for all activity that occurs via Customer’s account. In the event Customer does not comply with the foregoing duties, then Company, without limiting other available remedies, may terminate the Agreement without liability upon written notice to Customer.
In consideration of the provision of the Maintenance Services described herein, Customer agrees to pay Company the fees set forth in the Quote. Company will provide Customer with an invoice for fees that become due hereunder. Unless otherwise set forth on the Quote, each invoice shall be due and payable by Customer within thirty (30) calendar days after Customer’s receipt of such invoice.
The Maintenance Services fee is exclusive of all applicable federal, state, provincial and local taxes including, without limitation, sales, use, property, value added, goods and services, excise, and similar taxes, and all such taxes shall be assumed and paid by Customer, excluding taxes on Company’s net income and payroll taxes.
If the Customer does not make payment on or before the date on which it is due to be paid, interest will be payable and calculated daily at a rate of one and a half percent (1.5%) per month. In the event Customer does not make payment within ten (10) days from the date the invoice is due, Company shall suspend Maintenance Services, without liability to Customer, until all fees are paid in full. All fees due and payable by the Customer to Company under this Agreement must be paid in full without any deduction, set-off, counterclaim and/or withholding of any kind unless required by law.
This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year thereafter (“Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for additional one (1) year periods (“Renewal Term”) unless either party provides the other party with written notice at least ninety (90) days prior to the expiration of the then-current term of its intention not to renew. The Initial Term, together with the Renewal Terms, shall be collectively referred to herein as the “Term.”
If a party materially breaches this Agreement (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement upon written notice to the Defaulting Party. In addition, either party may terminate this Agreement in the event the other party becomes Insolvent. For purposes of this Section 6.2, “Insolvent” or “Insolvency” shall mean a party that makes an assignment for the benefit of creditors, has a receiver, trustee, custodian (or similar party) appointed or designated to administer its affairs or otherwise take control of its assets or business operations, becomes a debtor in a voluntary proceeding under any chapter of the United States Bankruptcy Code or any law or statutory scheme relating to insolvency, reorganization or liquidation, or an involuntary petition in bankruptcy, or other insolvency proceeding is filed against a party and is not dismissed within sixty (60) calendar days thereafter. Termination of this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement and/or at law and/or in equity.
In the event of any termination of this Agreement, Customer will promptly pay all outstanding fees, charges, and expenses incurred through the effective date of termination. All prepaid fees, charges and expenses shall be non-refundable unless otherwise determined by Company in its sole and absolute discretion.
Each party represents and warrants that it (i) is a duly organized, validly existing and in good standing under the laws of the State of organization; and (ii) has the power and authority to enter into this Agreement.
Company warrants that Maintenance Services will performed in a good and workmanlike manner in accordance with applicable industry standards and practices.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
COMPANY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAYABLE BY CUSTOMER TO COMPANY HEREUNDER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Company is an independent contractor and will determine the method, details and means of performing the Maintenance Services. No party shall have the authority to bind, represent and/or commit the other. Nothing in this Agreement shall be deemed and/or construed to create a joint venture or agency relationship between the parties for any purpose. Nothing contained herein shall give and/or is intended to give any rights of any kind to any third persons.
Notwithstanding any other provision of this Agreement, neither party is liable for any failure to perform, and/or delay in performing, any particular obligations under this Agreement where the failure and/or delay arises from any cause or causes beyond its reasonable control, including without limitation fire, flood, earthquake, elements of nature, epidemic and/or pandemics, acts of God, acts of war, terrorism, riots, civil disorders and/or rebellions (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform its obligations for a period of three (3) months due to such Force Majeure Event. This Section does not apply to any obligation to pay money and/or any obligation that is unaffected by the Force Majeure Event.
This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles. Any action related to or arising from this Agreement shall take place exclusively in the courts situated in the City of Chicago, Cook County, Illinois and the parties hereby submit to the venue of the courts situated therein.
No waiver of any of the terms of this Agreement will be valid unless in writing and designated as such. Any forbearance and/or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence and/or any other occurrence. If any one (1) or more of the provisions of this Agreement are for any reason held to be invalid, illegal and/or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect. All Quotes and any amendments thereto may be executed in counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed Quote (in counterparts or otherwise) by fax, electronic or computer image shall be sufficient to bind the parties to the terms and conditions of this Agreement and any signature affixed thereto shall be considered for all purposes as originals. The parties agree that no certification authority and/or other third party verification is necessary to validate its electronic signature and that the lack of such certification and/or third party verification will not in any way affect enforceability of the parties’ electronic signature and/or any resulting agreement between Company and Customer. The headings and titles of the paragraphs of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit and/or construe the contents of the provisions contained herein. The recitals are hereby incorporated into the body of this Agreement for all intents and purposes as if fully set forth herein. Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement will survive any such termination or expiration of this Agreement. This Agreement, schedules and/or exhibits attached hereto, together with all applicable Quotes, constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.