This Maintenance and Support Agreement (the “Agreement”) is between OS Group, LLC dba Covalent Technologies (“Covalent”) and any purchaser or user of Covalent services that accepts the terms of this Agreement (“Customer” or “You”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING COVALENT SERVICES.  BY USING OR PURCHASING THE SERVICES, YOU SIGNIFY YOUR ASSENT TO THIS AGREEMENT.  IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORTIY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY.  IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT USE OR PURCHASE COVALENT SERVICES.

The “Effective Date” of this Agreement is the earlier of the date that Customer accepts this Agreement or the date that Customer uses Covalent’s services.

Whereas Covalent and Customer desire to establish certain terms and conditions under which Customer will, from time to time, receive maintenance, support or other services from Covalent;

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Covalent agree as follows:

1. Definitions.

Capitalized terms used in this Agreement are defined in this Section 1 or the Section in which they are first used

1.1 “Annual Term” means the successive twelve (12) month periods during the term of this Agreement for each Service Plan that end on each anniversary of the Effective Date.

1.2 “Documentation” means, with respect to a particular Supported Software, the standard end-user technical documentation and specifications that may be supplied with such software by the publisher or in the case of Covalent, that which may be provided with an Error Correction or Workaround.

1.3 “Error” means a reproducible failure of Supported Software to perform in substantial conformity with its Documentation, if any.

1.4 “Error Correction” means a bug fix or maintenance correction that Covalent provides Customer for the Supported Software, and Covalent makes publicly available in accordance with Section 8.1.

1.5 “Incident” means a single question or issue posed by Customer with respect to the Supported Software; the number of Incidents purchased by Customer is specified in a Service Plan.

1.6 “Intellectual Property Right” means a copyright, trademark, service mark, trade secret, patent, patent application, moral right, contractual right of non-disclosure or any other intellectual property or proprietary right, however arising.

1.7 “Service Plan” means a document (either electronic or hard copy) issued by Covalent that sets forth maintenance and support services and training (if any) to be provided by Covalent and which may be entitled Order Confirmation.

1.8 “Severity Error(s)” means the following:

    a) Severity 1 Error means an Error that severely affects the overall performance of the Supported Software’s function or process, so that the Supported Software is non-functional.

    b) Severity 2 Error means an Error that materially affects the overall performance of the Supported Software’s function or process so that the function or process is noticeably impaired, but where business operations continue.

    c) Severity 3 Error means an Error that does not materially affect the overall performance of the Supported Software’s function or process.

1.9 “Supported Server” means a physical operating system hardware platform that has on average two (2) CPUs or eight (8) cores (as specified in a Service Plan) for which Customer has purchased support services.

1.10 “Supported Software” means the software identified in a Service Plan as “Supported Software,” including:  (a) the specific version of such software identified in a Service Plan for which Customer purchases support services, and (b) any subsequent Error Corrections or Workarounds to such software that Covalent provides to Customer.

1.11 “Workaround” means a set of procedures to mitigate an Error and allow the Supported Software to substantially achieve the functionality set forth in the Documentation, if any.

1.12 “Work Product” means all work product created or provided by Covalent under this Agreement, including without limitation any Error Corrections, Workarounds, Documentation and/or training materials.

2. Service Plans.  Customer may purchase maintenance, support, or training services by entering into a Service Plan with Covalent.  In the event Customer elects to license and obtain services for a different type of the Supported Software than that for which Covalent has originally provided services, Customer must place an additional order with Covalent for such and enter into an additional Service Plan with Covalent.  If Customer elects to purchase additional maintenance, support, or training services for the Supported Software under an existing Service Plan, Customer may place an order with Covalent to purchase such at Covalent’s then-current prices, without executing a new Service Plan.  In accordance with the Service Plan, Covalent will provide support and maintenance during the Annual Term for the number of Supported Servers purchased or for the number of Incidents purchased by Customer.  In the event Customer elects to purchase support and maintenance based on a number of Incidents, once Customer has used all such Incidents, it must purchase additional Incidents to receive support and maintenance during such Annual Term.  Orders must specify the maintenance, support, and/or training to be purchased, including:  (a) the Supported Software for which the Customer is obtaining such services; (b) the relevant Supported Server(s); and (c) any other tracking numbers that Covalent should reference in its invoice.  Customer may transmit such orders to Covalent by telephone, mail, facsimile, email or other electronic channels.  Customer may submit orders using its standard forms, but any contractual terms contained in such forms (other than the information specified above) will not be applicable to any transaction between the parties unless contained in a written document signed by both parties.

3. Training.  If such is included in the Service Plan, Covalent will provide to Customer training services for the fees specified in the Service Plan.  Unless otherwise specified in a Service Plan, training will be at Customer’s facilities, conducted in English and made available to Customer in class sizes not to exceed ten (10) students.

4. Service Plans.  Customer may purchase maintenance, support, or training services by entering into a Service Plan with Cformation specified above) will not be applicable to any transaction between the parties unless contained in a written document signed by both parties.

5. Support

5.1 Services.  Covalent will provide support services to Customer for the specific Supported Servers as designated in a Service Plan.  Support services consist of: (a) answering questions regarding the installation and operation of the Supported Software; (b) attempting to identify causes of suspected Errors occurring on the Supported Software; (c) addressing confirmed Errors in the Supported Software in accordance with Section 5.3; and (d) any additional support services that may be specified in the applicable Service Plan. Unless otherwise mutually agreed, Covalent will have no obligation to provide on-site support services at Customer’s location.  Customer must separately procure the license rights from third parties to install and execute the Supported Software on Supported Servers.

5.2 Supported Servers.  Covalent will provide support services only for the Supported Software installed on the Supported Servers.  Customer may transfer support services to a new server from an existing Supported Server upon written notification to Covalent, in either hard copy or electronic form, specifying the existing Supported Server and the proposed new server.  Upon completion of the transfer, the new server will be supported, and the server from which the Supported Software was transferred will no longer be supported.

5.3 Service Levels and Procedures.  When Support Coordinators notify Covalent of a suspected Error in the Supported Software, Covalent will use commercially reasonable efforts to reproduce such suspected Error.  If Covalent identifies an Error, it will use commercially reasonable efforts to correct the Error in accordance with the service level commitments and procedures, if any, set forth in the Service Plan.  If Covalent cannot meet the service levels specified in a Service Plan (or, in the absence of any specified service levels, correct the Error within a reasonable time), Customer may as its exclusive remedy terminate the applicable Service Plan by giving thirty (30) days written notice to Covalent, whereupon Covalent will promptly refund to Customer that portion of the fees paid under that Service Plan for the then-current Annual Term that is attributable to the Supported Server on which the uncorrected Error resides.  This Section 5.3 sets forth Covalent’s entire liability to Customer and Customer’s exclusive remedy for any Error.

5.4 Exclusions.  Covalent will have no obligation to correct Errors caused by:  (a) improper installation of the Supported Software;  (b) installation of any release or error correction provided by a third party, unless Covalent has verified in writing that such release or error correction meets Covalent’s stability and performance standards; (c) malfunction, modification or relocation of Supported Server; (d) where Customer has failed to provide backups of the Supported Software in accordance with Customer’s internal procedures regarding backups of other software; (e) versions of the Supported Software that are greater than eighteen (18) months old or those which include security vulnerabilities; or (f) versions of the Supported Software that do no run on platforms supported by Covalent.  No support services will be provided for the Supported Software if Customer ceases payment hereunder.

5.5 Additional Charge Services.  Should Customer request that Covalent provide services in connection with problems (a) caused by the factors listed in Section 5.4, or (b) that are otherwise beyond the scope of this Agreement (including, for example, providing assistance or other services in connection with a non-conformity that does not constitute an Error), Customer will pay for such services that Covalent agrees to perform on a time-and-materials basis at Covalent’s then-current rates.

5.6 Customer Obligations.  As a condition to Covalent’s support obligations under this Agreement, Customer must:  (a) assist Covalent in identifying and correcting Errors; (b) execute reasonable diagnostic routines in accordance with instructions provided by Covalent (and inform Covalent of the results of such tests); (c) ensure that its employees that contact Covalent for support are sufficiently qualified and familiar with the Supported Software and Customer systems so as to provide Covalent with reasonable assistance in diagnosing and addressing Errors.

5.7 Limitations.  Notwithstanding any provision in this Agreement to the contrary, Covalent will only support the Supported Software published by Customer or any third party to the extent that such is the most current version that Covalent has verified in writing meets Covalent’s standards for stability and performance.

6. Payment

6.1 Fees.  In consideration of the services provided, Customer will pay at the outset of each Annual Term, the annual fees specified in each Service Plan.  Covalent will have no obligation to provide services under any Service Plan until it has received the fee for the then-current Annual Term..

6.2 Expenses.  Customer will reimburse Covalent monthly in arrears for Covalent’s reasonable travel, telephone and other actual out-of-pocket expenses incurred at Customer’s request, including travel expenses incurred in providing on-site services.  Covalent will keep complete and accurate records related to such expenses and, upon Customer’s request, will submit copies of such records with the applicable invoice.

6.3 Payment Terms.  The initial annual fee for services under each Service Plan is due within thirty (30) days after the execution of such Service Plan.  If Service Plans are renewed, the then-current annual fee is due within thirty (30) days after the commencement of the new Annual Term.  Covalent may change the annual fees specified in a Service Plan, on a going-forward basis and will provide Customer notification of such.  Additional fees and expense reimbursements are due within thirty (30) days of invoice.  All payments must be made in U.S. Dollars.  Late payments will accrue interest at the rate of one-and-a-half percent (1½%) per month or, if lower, the maximum rate permitted under applicable law.  Covalent will be entitled to recover its reasonable costs of collection, including attorney’s fees, on any overdue account.

6.4 Taxes.  The amounts payable to Covalent under this Agreement do not include any taxes, levies, or similar governmental charges, however designated, including any related penalties and interest.  Customer will pay (or reimburse Covalent for the payment of) the foregoing except taxes on Covalent’s net income.

6.5 Partial-Year Terms.  When a Service Plan commences during an Annual Term, the initial fee under that Service Plan will be prorated based upon the time remaining in the then-current Annual Term.  The full year’s fee will be due at the outset of the next Annual Term.

7. Term and Termination

7.1 Agreement Term.  The term of this Agreement will commence on the Effective Date and continue until terminated under this Section 7.

7.2 Service Plans.  Unless otherwise specified therein, a Service Plan is effective on a going-forward basis only, as of the date it is executed by both parties, and will remain in effect for the duration of the then-current Annual Term.  The Service Plan will automatically renew for additional Annual Terms, unless either party notifies the other of its intention not to renew such Service Plan at least thirty (30) days before the expiration of the then-current term.  Covalent will have no obligation to provide services under a particular Service Plan once the plan has expired or terminated.

7.3 Termination. Either party may terminate this Agreement at any time (upon five (5) days written notice) if no Service Plans are then in effect.  Customer may terminate any or all Service Plans at any time (but without refund) by giving Covalent thirty (30) days written notice.  If either party breaches this Agreement, the other party may, at its election, terminate for cause (a) this Agreement, inclusive of all Service Plans, or (b) only the specific Service Plan giving rise to the breach, by giving the breaching party written notice of termination, and specifying in such notice the alleged breach.  The breaching party will have a grace period of thirty (30) days after such notice is served to cure the breach described therein.  If the breach is cured within the thirty (30) day grace period, then this Agreement (or, if specified in the original notice, the particular Service Plan designated for termination), will remain in effect.  If the breach is not cured within such period, then this Agreement (or specific Service Plan, as the case may be) will automatically terminate upon the conclusion of the thirty (30) day grace period.  Either party may terminate this Agreement (including all Service Plans) at any time for cause if the other party files a petition or seeks relief under the bankruptcy or insolvency laws of any state or the United States.

7.4 Effect of Termination.  Following termination of this Agreement: (a) Customer will return the Confidential Information to Covalent; (b) all Service Plans will terminate; and (c) Customer will immediately pay to Covalent any fees or expenses incurred prior to the effective date of termination.  Sections 1 and 6 through 12 will survive expiration or termination of this Agreement or any Service Plan hereunder.

8. Work Product.  All Work Product (and all Intellectual Property Rights therein) provided by Covalent to Customer under this Agreement is licensed under the Apache License, Version 2.0, or subsequent versions of the Apache License.  The parties agree that Covalent owns the Work Product and makes such available to the open source community under the foregoing license.

9. Confidential Information.  The term “Confidential Information” shall mean any information disclosed by Covalent to Customer in connec­tion with this Agreement that is disclosed in writing, orally or by inspection and is identified as “Confidential” or “Proprietary.”  Customer shall treat as confidential all Confidential Information received from Covalent, shall not use such Confidential Information except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without Covalent’s prior written consent.  Customer shall use the same measures to protect the Confidential Information that it takes with its own most confidential information, but in no event less than reasonable measures, to prevent the disclosure and unauthorized use of Confidential Information.  Notwithstanding the above, the restrictions of this Section 9 shall not apply to information that:  (a) was independently developed by Customer without any use of the Confidential Information of Covalent; (b) becomes known to Customer, without restriction, from a third party without breach of this Agreement and who had a right to disclose it; (c) was in the public domain at the time it was dis­closed or becomes in the public domain through no act or omission of Customer; (d) was rightfully known to Customer, without restric­tion, at the time of disclosure; or (e) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; pro­vided, however, that Customer shall provide prompt notice thereof to Covalent and shall use its reasonable best efforts to obtain a protective order or otherwise prevent public disclosure of such information.

10. Disclaimer.  Covalent provides all Work Product, services, support, maintenance, and training to Customer on an “as is” basis and without warranty of any kind (whether express, implied or statutory), including without limitation the implied warranties of merchantability, fitness for a particular purpose, accuracy, result, effort, title and non-infringement.  Without limitation, no third party Documentation will create any additional warranties binding upon Covalent.  There is no warranty that any Work Product or services provided hereunder will be error free, will operate without interruption or will fulfill any of Customer’s particular purposes or needs.  The entire risk as to satisfactory quality, performance, accuracy and results obtained with respect to the Work Product and the services provided hereunder is with Customer.  Customer acknowledges and agrees that the fees paid under this Agreement reflect these negotiated warranty provisions.  To the extent that Covalent cannot disclaim any such warranty as a matter of applicable law, the scope and duration of such warranty will be the minimum permitted under such law.

11. Limitation of Liability.  In no event will Covalent be liable  for (i) any indirect, incidental, special, consequential or punative damages arising out of or related to this Agreement under any legal theory, including but not limited to (i) lost profits, lost data, or business interruption, even if such party has been advised of, knows or should have known of the possibility of such damages; and (ii) any claim attributable to errors, omissions, or other inaccuracies in or destructive properties of the Work Product or services.  Regardless of the cause of action or the form of action, Covalent’s total cumulative liability for actual damages arising out of or related to this Agreement will not exceed the total amount paid by Customer for Work Product or services giving rise to such liability during the then-current term in which such were provided.  The parties acknowledge that this Section 11 reflects the allocation of risk set forth in this Agreement.  This limitation of liability will appy notwithstanding the failure of essential purpose of any limited remedy set forth herein.

12. General.   Notices.  All notices, consents demands and approvals under this Agreement must be delivered in writing by courier, by fax, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on the Service Plan and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.  Relationship of the Parties.  The parties hereto are independent contractors.  Neither party (nor any agent or employee of that party) is the representative of the other party for any purpose, and neither party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.  Export Control.  Customer will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which the Work Product is used and, in particular, Customer will not export or re-export the Work Product without all required United States and foreign government licenses.  Customer acknowledges and understands that the Work Product contains encryption technology that may require an export license from the U.S. State Department and that export or re-export of the Work Product to certain entities and certain countries is prohibited.  Customer will defend, indemnify, and hold harmless Covalent from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees.  Assignment.  Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Software) to any third party without Covalent’s prior written consent.  Any attempted assignment or transfer in violation of the foregoing will be void.  No Waivers.  All waivers must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  U.S. Government End Users.  The Work Product is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein.  Choice of Law.  This Agreement will be governed by the laws of the State of California in the United States of America, as such laws apply to contracts between California residents negotiated, executed and performed entirely within California.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal court in the Northern District of California or in state court in Contra Costa County, California, and each party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding.  This Agreement will be written and construed in the English language.  Survival.  Sections 1 and 6 through 12 will survive the expiration or termination of this Agreement.    Entire Agreement.  This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.  This Agreement may be amended only by a written document signed by both parties.  The terms on any purchase order or similar document submitted by Customer to Covalent will have no effect.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HEREBY AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING ON THE “ACCEPT” BUTTON BELOW.

© 2005-2007 OS Group, LLC dba Covalent Technologies, All Rights Reserved.