{"id":42880,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/support-agreement-accrue-software-inc-and-pilot-software.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"support-agreement-accrue-software-inc-and-pilot-software","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/support-agreement-accrue-software-inc-and-pilot-software.html","title":{"rendered":"Support Agreement &#8211; Accrue Software Inc. and Pilot Software Services Corp."},"content":{"rendered":"<pre>                                SUPPORT AGREEMENT\n\n      This Support Agreement (this \"Agreement\") is made and entered into as\nof May 30, 2002 (the \"Effective Date\"), by and between Accrue Software,\nInc., a Delaware corporation (\"Accrue\") and Pilot Software Services Corp., a\nDelaware corporation (\"Licensor\").\n\n                                    RECITALS\n\n      WHEREAS, Accrue and Licensor are party to a certain Asset Purchase\nAgreement dated May 30, 2002; and\n\n      WHEREAS, pursuant to the transaction contemplated by the Asset Purchase\nAgreement, Licensor desires to provide, and Accrue desire to receive, the\nsupport set forth herein.\n\n      NOW, THEREFORE, in consideration of the mutual promises and covenants\ncontained herein, the parties hereby agree as follows:\n\n                                   AGREEMENT\n\n1. DEFINITIONS.\n\n\"Hit List Software\" means the Hit List Software Products (as that term is\ndefined in the Asset Purchase Agreement) excluding the third party software\nembedded therein pursuant to the agreements set forth in Section 1.01(a)(iv) --\n5 of the Disclosure Schedule of the Asset Purchase Agreement.\n\n\"Pilot Software\" means the Pilot Software Products (as that term is defined in\nthe Asset Purchase Agreement) excluding the third party software embedded\ntherein pursuant to the agreements set forth in Section 1.01(a)(iv) -- 5 of the\nDisclosure Schedule of the Asset Purchase Agreement.\n\n\"Services\" shall have the meaning set forth in Section 2.2.\n\n\"Software\" means the Hit List Software and the Pilot Software.\n\nAdditional capitalized terms used herein shall have the same meaning set forth\nin the Asset Purchase Agreement.\n\n2. MAINTENANCE AND SUPPORT.\n\n2.1 Licensor will provide to Accrue, all bug fixes, patches, workarounds and\nother error corrections to the Software that Licensor generates and makes\ngenerally available to its customers during the term of this Agreement.\n\n2.2 Upon the request of Accrue, and subject to resource availability, Licensor\nshall provide support services with respect to the Software to Accrue and its\ncustomers (\"Services\"), on a time and materials basis.\n\n\n      2.2.1 Statements of Work. Accrue shall provide to Licensor a separate\nstatement of work (\"SOW\") for each project, assignment or task requested by\nAccrue. Each SOW shall expire upon the completion of the services under the SOW.\nEach SOW will become part of this Agreement by this reference when executed by\nauthorized representatives of Accrue and Licensor and shall include: (a) a\ndetailed description of the parties respective responsibilities; (b) an\nestimated performance schedule; and (c) the deliverables, if any. A SOW may only\nbe amended or modified by a written document signed by authorized\nrepresentatives of the parties. Licensor will retain the sole and exclusive\nright to control or direct the manner or means by which the Services are\nperformed and may subcontract any or all of the Services.\n\n      2.2.2 Data and Information. Accrue shall make available in a timely manner\nat no charge to Licensor all technical data, computer facilities, programs,\nfiles, documentation, test data, sample output, or other information and\nresources reasonably required by Licensor for the performance of the Services.\nAccrue will be responsible for, and assumes the risk of any problems resulting\nfrom, the content, accuracy, completeness and consistency of all such data,\nmaterials and information supplied by Accrue.\n\n      2.2.3 Equipment. Accrue shall provide, at no charge to Licensor, office\nspace and equipment (such as copies, fax machines, and modems) as Licensor\nreasonably requires to perform the Services.\n\n      2.2.4 Contact Person. Each party will appoint, in writing, an employee or\nagent of such party to act as the \"Contact Person\" for all communication between\nthe parties related to the Services. The Contact Person will be responsible for\nmonitoring the status of the Services and will schedule regular meetings with\nboth technical and management personnel of each party to review the status of\nthe Services.\n\n3. PAYMENT.\n\n3.1. Accrue shall be billed on a monthly basis for all Services provided under\nSection 2.2. All payments shall be made within thirty (30) days after receipt of\na valid invoice. Accrue will pay interest on any overdue amount at a rate equal\nto the lesser of the maximum rate allowed by law or 1.5% per month, until such\namount is paid in full.\n\n3.2 Accrue agrees to pay all sales, use, value-added, excise or similar taxes\nimposed as a result of the services provided to Accrue hereunder (other than\ntaxes based on Licensor's income).\n\n4. DISCLAIMER OF IMPLIED WARRANTIES.\n\n4.1 Licensor warrants that the Services will be provided by qualified, competent\npersonnel and in accordance with generally accepted industry practices.\n\n\n                                      -2-\n\n4.2 LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT\nLIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR\nPURPOSE.\n\n5. CONFIDENTIAL INFORMATION.\n\n5.1 Confidential Information. \"Confidential Information\" means any nonpublic and\nproprietary information or materials relating to a party's marketing business or\ntechnology which the disclosing party marks as \"confidential\" at the time of\ndisclosure or confirms in writing is confidential within a reasonable time (not\nto exceed thirty (30) days) after disclosure. The terms and conditions (but not\nthe existence) of this Agreement shall be deemed Confidential Information of\neach party. Notwithstanding the foregoing, Confidential Information does not\ninclude, and nothing in this Agreement shall prohibit or limit either party's\nuse of, information (including but not limited to ideas, concepts, know-how,\ntechniques, and methodologies) (i) previously known to it, (ii) independently\ndeveloped by it, (iii) acquired by it from a third party which was not, to the\nreceiving party's knowledge, under an obligation to the disclosing party not to\ndisclose such information, or (iv) which is or becomes publicly available\nthrough no breach by the receiving party of this Agreement.\n\n5.2 Protection of Confidential Information. Neither party will provide, disclose\nor otherwise make available to any third party any of the disclosing party's\nConfidential Information. Except as expressly provided herein, the receiving\nparty will not use or disclose such Confidential Information without the\ndisclosing party's prior written consent, except to the receiving party's\nemployees or consultants on a need-to-know basis, provided that any such\nconsultants have executed written agreements restricting use or disclosure of\nsuch Confidential Information that are at least as restrictive as the receiving\nparty's obligations under this Section 5. In addition to the foregoing\nnondisclosure obligations, the receiving party agrees to use at least the same\ncare and precaution in protecting such Confidential Information as the receiving\nparty uses to protect the receiving party's own confidential and proprietary\ninformation and trade secrets, and in no event less than reasonable care. The\nreceiving party shall return all Confidential Information promptly upon the\nrequest of the disclosing party or upon termination of this Agreement.\n\n5.3 Equitable Remedy. Each party acknowledges that due to the unique nature of\nthe other party's Confidential Information, the disclosing party will not have\nan adequate remedy in money or damages in the event of any unauthorized use or\ndisclosure of such party's Confidential Information. In addition to any other\nremedies that may be available in law, in equity or otherwise, each party shall\nbe entitled to seek any injunctive relief that may be appropriate to prevent\nsuch unauthorized use or disclosure.\n\n6. TERM AND TERMINATION.\n\n6.1 Term. This Agreement is effective as of the Effective Date, and will\ncontinue in effect for a period of two (2) years unless earlier terminated\npursuant to this Section 7.\n\n\n                                      -3-\n\n6.2 Termination. Either party may terminate this Agreement if the other party\nmaterially breaches this Agreement and such breach has not been cured within\nsixty (60) days after written notice thereof.\n\n6.3 Survival. Sections 5 (for a period of 3 years) and 7, as well as any accrued\nbut unpaid payment obligations, shall survive the termination or expiration of\nthis Agreement.\n\n7. LIMITATION OF LIABILITY.\n\n7.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT OR FOR BREACH\nHEREOF FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND,\nINCLUDING WITHOUT LIMITATION LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH\nPARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING\nTHE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.\n\n8. GENERAL.\n\n8.1 Independent Contractor Status. Each party agrees and acknowledges that in\nits performance of its obligations under this Agreement, it is an independent\ncontractor of the other party, and is solely responsible for its own activities.\nNeither party shall have any authority to make commitments or enter into\ncontracts on behalf of, bind or otherwise obligate the other party in any manner\nwhatsoever. No joint venture, franchise or partnership is intended to be formed\nby this Agreement.\n\n8.2 Entire Agreement; Amendment. This Agreement constitutes the entire Agreement\nbetween the parties with respect to the subject matter hereof and supersedes all\nprior contemporaneous oral or written understandings or agreements among the\nparties which relate to the subject matter hereof. No modification or amendment\nof this Agreement or any of its provisions shall be binding upon any party\nunless made in writing and duly executed by authorized representatives of all\nparties.\n\n8.3 Governing Law and Jurisdiction. This Agreement shall be governed by and\ninterpreted in accordance with the laws of the State of California without\nregard to the conflicts of laws principles thereof. All disputes arising out of\nor related to this Agreement will be subject to the exclusive jurisdiction and\nvenue of the California state and federal courts located in Santa Clara County,\nCalifornia and the parties hereby consent to such jurisdiction and venue. The\nUnited Nations Convention on Contracts for the Sale of Goods does not apply to\nthis Agreement.\n\n8.4 Assignment. Neither party may assign or transfer, whether voluntarily, by\noperation of law, or otherwise, any rights or delegate any duties under this\nAgreement without the prior written consent of the other party. Any purported\ntransfer, assignment or delegation without such prior written consent will be\nnull and void and of no force or effect. Notwithstanding the foregoing, both\nparties shall have the right to assign this Agreement to any successor to\nsubstantially all of its business or assets to which this Agreement relates,\nwhether by merger, sale of assets, sale of stock, reorganization or otherwise.\nSubject to the foregoing, this Agreement\n\n\n                                      -4-\n\nwill bind and inure to the benefit of the parties and their respective\nsuccessors and permitted assigns.\n\n8.5 Notices. All notices, requests, consents and other communications which are\nrequired or permitted hereunder shall be in writing, and shall be delivered by\nregistered U.S. mail, postage prepaid (effective three (3) days after mailing)\nor sent by facsimile or electronic mail, with a confirmation copy simultaneously\nsent by U.S. mail, postage prepaid (effective upon transmission), at the\naddresses set forth on the signature page. Notice of change of address shall be\ngiven in the same manner as other communications.\n\n8.6 Severability. If any provision of this Agreement is held to be invalid,\nillegal or unenforceable for any reason, such invalidity, illegality or\nunenforceability shall not affect any other provisions of this Agreement, and\nthis Agreement shall be construed as if such invalid, illegal or unenforceable\nprovision had never been contained herein.\n\n8.7 Counterparts. This Agreement may be executed in two counterparts, both of\nwhich taken together shall constitute a single instrument. Execution and\ndelivery of this Agreement may be evidenced by facsimile transmission.\n\n      IN WITNESS WHEREOF Accrue and Licensor, intending to be legally bound by\nthe terms of this Agreement, have caused this Agreement to be executed by their\nduly authorized representatives as of the Effective Date.\n\nACCRUE SOFTWARE, INC.\n\nBy:\n       -------------------------------\nName:\n       -------------------------------\nTitle:\n       -------------------------------\n\nPILOT SOFTWARE SERVICES CORP.\n\nBy:\n       -------------------------------\nName:\n       -------------------------------\nTitle:\n       -------------------------------\n\n\n                                      -5-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6556],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9613,9620],"class_list":["post-42880","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-accrue-software-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42880","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42880"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42880"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42880"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42880"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}