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SMA Terms

BETWEEN: Visix, Inc., a company having its registered office at 270 Scientific Drive, Norcross, Georgia 30092

Customer, as set out on the end user’s purchase order.

Customer agrees to purchase and Visix agrees to provide Software Maintenance and Support Services, for the systems listed on the end user’s purchase order on the terms and conditions listed below. The terms and conditions listed shall govern the parties respective rights and obligations in relation to the provision of the services.

WHEREAS:

Visix shall provide to the Customer the Maintenance and Support Services on the terms and conditions set out below, which shall govern the parties respective rights and obligations in relation to the provision of the services.

NOW IT IS HEREBY AGREED as follows:

DEFINITIONS

“Agreement” means this Agreement and any variations in writing as shall be subsequently agreed from time to time; “Anniversary Date” means the date one year after the Commencement Date and such annual date thereafter that arises until the termination of this Agreement.  “Commencement Date” means the date of execution of this Agreement or the date from which the parties agree the Maintenance Services shall be provided, whichever is the earlier; “Confidential Information” means all information (in whatever media) designated as such by either party in writing, or which relates to the business, affairs, activities, financial position, prospects, trade secrets, know how, source code, personnel or suppliers of that party; “Cover Page” means the front page of this Agreement, “Designated Equipment” means the computer hardware as identified in the original packing slip and/or Purchase Order in accordance with the terms of this Agreement.  “Intellectual Property Rights” shall include patents, trade marks (registered or unregistered), copyright, database right, designs (registered or unregistered), confidential information or know-how, or any rights of a similar nature existing anywhere in the world.  “Maintenance Charges” means the payments due from the Customer to Visix set out on the Cover Page; “Maintenance Services” means the software support and maintenance services provided by Visix to the Customer including a telephone help line, provision of New Releases and other services specified in clause 2; “New Releases” means the latest version of the Software, including any updates, revisions or modifications to be released by Visix or a third party; “Software ” means the computer programs and associated documentation listed on the Cover Page which are provided to the Customer by Visix and in respect of which Visix is either the owner or authorized reseller of software owned by a third party; “Software License Agreement” means the license agreement between the Customer and Visix in respect of the Visix Software;

2. SERVICES

2.1 Visix shall provide Support Services between 08:30 am and 5:00 pm Monday to Friday excluding public holidays unless otherwise agreed in writing.  Visix shall use its reasonable efforts to assist Registered Users in the resolution of problems identified by the Customer to Visix and Visix shall recreate where possible, using the latest unaltered release of the Software. The provisions of this Clause shall also apply to the previous unaltered release of the Software for a period of six (6) months following the issue of the next New Release.  Table 1 shows the level of service provided as Standard Support (for Customers who did not purchase a Software Maintenance Agreement or whose agreement has expired) and to SMA Subscribers (for Customers who purchased a Software Maintenance Agreement which has not expired).  Visix reserves the right to require the user to purchase and install an upgrade when Visix reasonably expects that doing so will resolve the problem.

Visix Support Options

Notes:

1.  Priority Tech Support requests may be initiated by calling Visix’s toll-free support line or sending e-mail. Requests may also be initiated at www.visix.com or by instant message.

2.  Standard Tech Support requests may be initiated by calling Visix’s toll-free support line or sending e-mail. Requests may also be initiated at www.visix.com. Instant messaging will not be available for Standard Tech Support.  Response times for Standard Tech Support are not guaranteed. These requests are handled on a first-come-first-served basis after priority requests.

3.  Upgrades include bug fixes, feature improvements, and feature additions applicable to products licensed to the user. Visix may introduce new programs, plug-ins, adapters, etc. that are not considered upgrades and must be purchased separately.

4.  For systems purchased prior to August 15, 2004, upgrades are provided for 1 year following system purchase.

Table 1

 2.2 When notifying Visix of a problem the Customer must provide Visix with an example of the problem, a listing of the related interactive command or batch job and a written explanation of where the Customer thinks the problem lies.

2.3 If requested by Visix, the Customer shall permit Visix or its representatives full access to the Software and the Designated Equipment during working hours (and any extra agreed cover) so that Visix can carry out its obligations under this Agreement.

2.4 Visix shall advise the Customer of any New Releases that are being incorporated into the Software as soon as practicable.

2.5 On the Customer’s request a copy of the Software incorporating the New Release will be sent to the Customer in machine-readable form. The terms and conditions and license provisions governing the use of any New Release shall be the same as those governing the initial provision of the Software.

3. CUSTOMER’S OBLIGATIONS

The Customer shall be responsible for maintaining sufficient suitably trained technical staff to operate and maintain the Software on a day-to-day basis, including backing up the Software and report handling.  The Customer is required to register the Visix system in accordance with instructions provided by Visix and to identify up to four individuals (Registered Users) who are authorized to request support services from Visix.  The Customer agrees to pay the listed fees for services requested by a Registered User.

4. TERM

This Agreement shall remain in force for a minimum period of one year from the Commencement Date and will end thereafter unless otherwise specified in the contract or terminated earlier by either party upon giving ninety (90) days written notice.

5. PAYMENTS

5.1 The Maintenance Charges are exclusive of all taxes (or other government excise on sales or use or occupation) or like taxes now in force or enacted in the future which shall in addition be payable.

5.2 The Customer shall pay Visix the annual Maintenance Charges set out on the Customer’s purchase order on the Commencement Date and thereafter annually, after receipt of invoice, in advance on each anniversary of the Commencement Date.  In addition, the Customer shall pay applicable fees as listed in Table 1 for services requested by Registered Users.

5.3 In the event that any of the Maintenance Charges remain unpaid for more than thirty (30) days after it has become due for payment, Visix shall be entitled to withdraw the Maintenance Services.

6. NON-DISCLOSURE/CONFIDENTIALITY

6.1 Each party acknowledges that any Confidential Information obtained from or relating to the other party, its servants or agents are the property of the disclosing party.

6.2 Each party hereby agrees that:

6.2.1 it shall treat as confidential all Confidential Information obtained from the other;

6.2.2 it (and any person employed or engaged by it in connection with this Agreement in the course of such employment or engagement) shall only use Confidential Information for the purposes of this Agreement; and

6.2.3 it (and any person employed or engaged by that party in connection with this Agreement in the course of such employment or engagement) shall not disclose any Confidential Information to any third party without the prior written consent of the other party.

6.3 The provisions of clauses 6.1 and 6.2 shall not apply to any information which:

6.3.1 is or becomes public knowledge other than by breach of this clause 6;

6.3.2 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party;

6.3.3 is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; or

6.3.4 is independently developed without access to the Confidential Information.

6.4 Nothing in this clause shall be deemed or construed to prevent Visix from disclosing any Confidential Information obtained from the Customer to any consultant, contractor or other person engaged by Visix in connection herewith, provided that Visix shall have obtained from the consultant, contractor or other person a signed confidentiality undertaking on substantially the same terms as are contained in this clause.

6.5 Nothing in this clause shall prevent the Customer or Visix from using data processing techniques, ideas and know -how gained during the performance of this Agreement in the furtherance of its normal business, to the extent that this does not relate to a disclosure of Confidential Information or an infringement by Visix or the Customer of any Intellectual Property Right.

7. LIMITATION OF LIABILITY

7.1 Neither party excludes or limits liability to the other party for death or personal injury.

7.2 Subject always to clause 7.1, the liability of either party for defaults (in contract and in tort including negligence) shall be subject to the financial limits set out in this clause 7.2.1 below;

7.2.1 The aggregate liability for each party for all defaults resulting in direct loss of or damage to tangible property of the other as a result of the provision and receipt of the Maintenance

Services shall in no event exceed one hundred thousand U.S. ($100,000)

7.2.2 The aggregate liability of either party during each year of this Agreement, calculated by reference to the Commencement Date for all defaults within each year other than those referred to at clause 7.2.1 above shall in no event exceed one hundred per cent (100%) of the Maintenance Charges during the year in which the default occurs (as determined at the date of the default).

7.3 Subject always to clause 7.1, in no event shall either party be liable to the other for:

7.3.1 loss of profits, business, revenue, goodwill or anticipated savings; and/or

7.3.2 indirect or consequential loss or damage.

8. WARRANTIES

8.1 Visix hereby warrants that it will use reasonable care and skill in the provision of the Maintenance Services.

8.2 Except as expressly set out herein, all conditions and warranties, express or implied, statutory or otherwise (including but not limited to any concerning fitness for purpose) are hereby excluded to the extent permitted by law.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 The Customer shall inform Visix forthwith on discovering that there is any claim or threatened claim by any third party that the Intellectual Property Rights of any third party have been infringed in connection with the obligations of the parties’ under this Agreement.

9.2 Provided the action, suit or claim does not result, in whole or in part, from the supply or use of Software made in accordance with the Customer’s specification, from the supply or use of the Software by the Customer in a manner not contemplated or approved by Visix, or from their supply or use by the Customer or any person to or through whom the Customer has supplied the Software in combination with other products not supplied by Visix or based upon the use of the Software in combination with other Software not furnished by Visix, Visix may, at its own expense and option, either:

9.2.1 Compromise, settle or defend any action, suit or claim in which such infringement is alleged, provided that it shall not take any action under this clause unless it is forthwith notified of and given complete control of the claim, and (subject to being indemnified for its reasonable costs and expenses) the Customer gives all such assistance as Visix may reasonably request in compromising, settling or defending any such claim, or 9.2.2 If a court of competent jurisdiction shall have made an order prohibiting the further supply or use of the Software:

9.2.2.1 procure for the Customer, the continued right to supply or use the Software; or

9.2.2.2 modify the Software so that they become non-infringing (but have equivalent functionality); or

9.2.2.3 terminate this Agreement on terms that Visix repurchases the Customer’s then current inventory stocks of the Software, at the then current price from the Customer.

10. FORCE MAJEURE

10.1 Neither party shall be in breach of an obligation under this Agreement if it is unable to perform that obligation in whole or in part by reason of Force Majeure.

10.2 If either party shall seek to rely on this clause, it shall immediately give notice to the other with full particulars of the act or matter claimed as Force Majeure event. The party so affected shall take all reasonable steps to remedy the failure to perform and keep the other party informed of the steps so being taken.

10.3 If an event of Force Majeure occurs which results in Visix being unable to provide the Maintenance Services the Customer shall cease to be liable to pay the relevant Maintenance Charges for the relevant Maintenance Service no longer provided until and to the extent that Visix resumes the provision of the Maintenance Services, but so that if Visix is able to provide, and the Customer is able to benefit from, one or more of the Maintenance Services, the Customer will remain liable to pay the element of the Maintenance Charges for the Maintenance Services that Visix continues to provide.

10.4 If Visix is the party affected by the event of Force Majeure, the Customer may obtain the affected Maintenance Services from any third party at the cost of the Customer until Visix resumes the provision of the affected Maintenance Services.

10.5 If any event of Force Majeure lasts for more than six (6) months, either party may, following consultation for a period of not less than thirty five (35) days with a view to resolving the matter, terminate this Agreement by one months’ notice in writing.

11. TERMINATION OF THIS AGREEMENT

11.1 Without prejudice to any of the rights which either party may have, unless otherwise specified on the contract, either party shall be entitled on giving written notice to the other to terminate this Agreement forthwith, demand immediate payment of any amount due to it accruing hereunder, suspend, cancel and/or stop in transit any deliveries under any contract between the parties, retain any advance and/or progress payments and/or require payment in advance for all or any such deliveries, unless otherwise specified on the signed contract, if any of the following occurs:

11.1.1 Any distress, execution or other legal process is levied upon or issued against either party’s property, either party is adjudicated bankrupt or petitions to or consents to any relief under any bankruptcy, reorganization, (otherwise than for the purpose of a solvent amalgamation or reconstruction where the resulting entity assumes all of the obligations of the relevant party under this Agreement) receivership, liquidation, insolvency, composition or arrangement with creditors, or any moratorium statute, whether now or hereafter in effect, or makes an assignment for the benefit of its creditors, or application is made for appointment of a receiver, liquidator, trustee, custodian, administrator or administrative receiver for all or a substantial part of its assets or such person is appointed, or any petition shall be presented or granted or resolution proposed or passed to wind up either party; or any default in the performance of or breach of any material agreement, covenant, obligation or undertaking by either party made hereunder (including, without limitation, any failure by either party to make any payment as it becomes due) and such default or breach is not remedied to the satisfaction of the other party within thirty days (30) of the date of service of written notice of the breach.

12. ASSIGNMENT

Neither party shall without the prior written consent of the other party assign or transfer the benefit or the burden of this Agreement or any part thereof.

13. WAIVER

No waiver of any term of this Agreement by either party shall be deemed to be a further or continuing waiver of any other term of this Agreement.

14. NOTICES

Notices may be served by first class pre-paid postal addressed in the case of the Customer at its registered office and in the case of Visix at 270 Scientific, Suite 10, Norcross, Georgia 30092 or such other address as the relevant party may from time to time notify to the other in writing. All notices shall be deemed to have been received the next business day after posting.

15. ENFORCEABILITY

If any clause of this Agreement is held to be void or unenforceable by any reason of law, it shall be void or unenforceable to that extent only and all other clauses shall remain valid and fully enforceable.

16. AMENDMENTS

Either party may at any time during this Agreement request the other party to revise or amend the Agreement and such revisions or amendments shall only be effected if agreed by both parties in writing.

17. NUMBER

As used herein unless the context otherwise requires, the singular includes the plural and vice versa.

18. GENDER

As used herein, unless the context otherwise requires, the masculine includes the feminine and vice versa.

19. HEADINGS AND CLAUSES

The headings in this Agreement are not intended to, and shall not, affect or limit the intent, scope or interpretation of this Agreement. References to clauses herein are references to the clauses of this Agreement.

20. SEVERABILITY

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if the Agreement had been executed with the invalid provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of the Agreement, the parties shall immediately commence good faith negotiations to remedy such invalidity.

21. ENTIRE AGREEMENT

With the exception of statements made fraudulently, the parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties which supersedes all proposals or prior agreements, whether oral or written, and all other communications between the parties relating to the subject matter of the Agreement.

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