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EXHIBIT 10.8
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SOFTWARE SERVICE AGREEMENT
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The following document constitutes a Software Service Agreement between:
SUMMIT V, INC., a subsidiary of Jenkon International, Inc., a corporation
organized and existing under the laws of the State of Washington, United States
of America, located at 4601 NE 77TH AVENUE, SUITE 300, VANCOUVER, WASHINGTON
98662, hereinafter referred to as Seller, and
IS 14, INC. (MAXIS GROUP INC.), a corporation organized and existing under the
laws of the State of GEORGIA, United States of America, located at 11205
ALPHARETTA HWY, SUITE G-3, ROSWELL, GEORGIA 30076, hereinafter referred to as
Buyer.
1. BASIS OF AGREEMENT:
Buyer has engaged Seller to provide certain software as described
further below with respect to the Summit V Jenkon Software Base System
and related modules (hereinafter referred to as the "Software") which
are the subject of a Software License Agreement dated as of 2/2/97
between Seller and Buyer.
2. PRICE AND PAYMENT:
2.1 PRICE:
Buyer shall pay annually to Seller for Covered Service as defined, the
sum of $6,075.00 in U.S. Funds.
2.2 PAYMENT SCHEDULE:
Seller will invoice Buyer in advance for each period of Covered
Service. Payments are required to be received by Seller prior to the
start of the period to insure continued service.
Payment Schedule: Payment of $506.00 Monthly
2.3 EFFECTIVE DATE
Date: 2/2/97. This is the effective date of this Agreement.
2.4 TAXES:
All service charges are exclusive of applicable federal, state or local
taxes. Buyer shall pay or reimburse Seller for any such taxes to the
invoices submitted to Buyer by Seller.
2.5 CHANGES IN SERVICE RATE:
Seller may change the service charges for Covered Service anytime with
thirty (30) days prior written notice to the Buyer. Buyer has the right
to cancel this Agreement within thirty (30) days of receiving such
notice with a written cancellation notice. Seller shall not increase
charges more than 10% of the price paid by Seller in accordance with
Section 2.1.
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3. COVERED SERVICE:
3.1 COVERED SERVICE:
The term "Covered Service" as used herein means the periodic service
Seller deems reasonable, appropriate and necessary to keep Buyer's
Software performing as documented in the documentation manuals provided
by Seller to Buyer. Covered Service shall be provided during Seller's
normal business hours on all weekdays, Monday through Friday. Buyer
shall have access to Emergency Hotline Support outside of normal
business hours and during holidays. Seller shall provide to Buyer under
the terms of this Agreement, the following:
3.1.1 Continuing warranty that the licensed programs will perform
substantially as described in the written manuals for the
version of Licensed Software in use.
3.1.2 Free telephone support service during Seller's normal business
hours.
3.1.3 Free access to 24 hour Emergency Hotline Support Services.
3.1.4 New enhancements and upgrades to Licensed Software. Major
enhancements that are priced separately to other Buyers who
purchase similar Software from Seller will be made available
to Buyer at costs charged by Seller to such other customers.
Where Buyer has implemented special changes to existing
programs, the new enhancements may required special
installation work to incorporate the Buyer's special changes.
In such cases, Seller will install the enhancements at buyers
request with special changes incorporated, and charge the fees
based on Seller's current rates.
3.1.5 New versions of computer equipment operating system tapes as
they are made available to Seller from the equipment vendors.
Seller will provide installation instructions for each tape.
3.1.6 Manufacturer/vendor technical notes as they are made available
to Seller. These notes often describe operating system
problems and solutions that the vendor has discovered and
other information of a technical nature that may assist Buyer
to keep the computer equipment operational and operating
system Software at the most current version releases and
functionality.
3.1.7 Seller will, from time to time, advise Buyer of new devices,
software programs, or other information that will aid Buyer in
the ongoing utilization of the computer system.
3.1.8 Patches and fixes to the Software as they are made generally
available by Seller.
3.1.9 System efficiency evaluation. Performed and reported as
needed.
3.1.10 Free Software program updates to generate 1099 and T4A forms
for U.S. and Canadian tax reporting.
3.1.11 Repair or correction of Software programming due to special
changes made by Seller at Buyer's request.
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3.2 EXCLUSIONS FROM COVERED SERVICE
Covered Service does not include the following:
3.2.1 Those items listed under 3.4, "Billable Service Call".
3.2.2 Correction of Buyer data caused by Buyer's error or equipment
failure.
3.2.3 Work on Software not sold and licensed to Buyer by the Seller.
3.2.4 Buyer shall advise Seller in writing of any modifications made
to the Software. Seller shall not be responsible for
maintaining Buyer modified portions of the Software.
Corrections or defects traceable to Buyer's errors or system
changes will be billed at Seller's standard time and materials
rate.
3.3 TRAINING
Seller reserves the right to require that Buyer undertakes further
training if the number of requests for support are excessive. If
further training is not undertaken, additional support fees may be
incurred by Buyer.
3.4 BILLABLE SERVICE CALL
Billable service call will be any service, other than Covered Service,
performed by Seller and includes, but is not limited to, the following
types of service:
3.4.1 Work requested by the Buyer for the creation of new software
programs, or the enhancement or customizing, of existing
Software programs.
3.4.2 Training, consulting, or advising Buyer on matters not covered
under Covered Service.
3.4.3 Correcting or changing data at the request of Buyer.
3.4.4 Work requested by Buyer to install new enhancements to
previously changed or customized programs where the new
version of the programs does not contain the special change or
customized feature previously installed for Buyer.
3.4.5 Work required to correct the Operating System or Licensed
Software which has been modified by the Buyer or a third
party.
3.4.6 Work required to correct problems which would not have
occurred if the current release of the Software, which had
been offered to the Buyer, was being used by Buyer but the
Buyer elected not to load it on the system.
3.4.7 Revisions to the operating system and the application Software
that are made available to the Seller by the Manufacturer for
a fee, are excluded from being provided at no charge and will
be made available to Buyer for a fee.
3.4.8 Assistance with setup of peripheral devices purchased from
Seller.
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3.5 BILLABLE SERVICE TERMS AND RATES
Billable service will be charged to the Buyer according to the Seller's
billable rates in force at the time the service is carried out. All
charges for billable service shall be paid by Buyer within the terms
set in the sales order for any work sold on a sales order, otherwise
within the due date on the invoice. Failure to comply with this shall
cause a default of this Agreement. Interest will be charged on the past
due balances at an annualized rate of 18% (1.5% per month) or the
maximum allowed by law, whichever is less.
Billable service calls, as defined herein, performed at Buyer's
location will be charged at the minimum rate of $800 for the first
eight hours. Each additional hour beyond the first eight will be
charged at the Seller's current billable rates, plus transportation,
lodging, and other related business expenses.
3.6 TAXES
All service charges are exclusive of applicable federal, state or local
taxes. Buyer shall pay or reimburse Seller for any such taxes to the
invoices submitted to Buyer by Seller.
4. TERM AND TERMINATION:
This Agreement shall become effective on the Effective Date of this
Agreement, and unless sooner terminated as hereinafter provided, shall
remain in full force and effect for an initial term of one (1) year
from such date, and then automatically renewed each subsequent year
unless otherwise terminated by either party by written notice delivered
at least 30 days in advance. Automatic renewal shall not occur if Buyer
is in default of a material term of the Agreement.
Buyer, after the initial term, may terminate this Software Service
Agreement at any time upon thirty (30) days written notice. Subject to
Sections 4.1-4.7 below, Seller may not elect to terminate for a minimum
of five years.
Seller shall have the right at its option to immediately terminate this
Agreement by written notice to Buyer in the event of:
4.1 An assignment for the benefit of creditors, or
4.2 Admitted insolvency, or
4.3 Dissolution or loss of charter by forfeiture, or
4.4 Being adjudged bankrupt or insolvent by a United States Court
of competent jurisdiction, or
4.5 A trustee or receiver being appointed for all assets or any
substantial proportion thereof, or
4.6 Filing a voluntary petition under any bankruptcy or other
similar law providing for reorganization, dissolution, or
liquidation, or
4.7 Consenting to the appointment of a receiver or a trustee for
all assets of any substantial part thereof.
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5. LIMITATION OF LIABILITY:
5.1 LIMITATIONS
In all situations involving performance or nonperformance of the
Licensed Software furnished hereunder, Licenser's entire liability and
the Licensee's exclusive remedy shall be as follows:
5.1.1 Buyer agrees that any damages resulting from Seller's
liability hereunder would be difficult to calculate with
certainty and, therefore, agrees that Seller's total liability
hereunder, including but not limited to any negligence of
Seller, shall not exceed the amount paid for Covered Service
by Buyer to Seller for the three (3) months immediately
preceding the occurrence giving rise to any claim by Buyer and
said amount shall constitute the maximum amount of liquidated
damages. In no event, will Seller be liable for any loss of
data, loss of profit, or liability to third parties, however
caused.
5.1.2 No action regardless of form, arising out of a claim of a
breach of this Agreement may be brought by either party more
than one (1) year after the date of the alleged breach, except
that an action for nonpayment will be limited only by the
statute of limitations of the State of Washington
6. GENERAL:
6.1 DEFAULT
It is a default under this Agreement if any one or more of the
following events occur and Seller is adversely affected:
6.1.1 Buyer breaches any one or more of the covenants, terms or
conditions of this Agreement to be paid, performed, or
complied with by Buyer; or
6.1.2 Buyer becomes bankrupt or insolvent
6.2 NOTICES
All notices required hereunder shall be given in writing and shall be
personally delivered or sent by postage prepaid mail addressed to the
parties at their addresses first mentioned, or at such other addresses
as either party may designate to the other by notice as provided in
this section. Notices shall be deemed effective upon their deposit into
the U.S. Mail, properly addressed and postage prepaid.
6.3 INVALID PROVISIONS
If any provision of this Agreement be invalid or unenforceable, then
the remainder of this Agreement shall not be affected thereby.
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6.4 ENTIRE AGREEMENT
This Agreement supersedes all prior agreements, letters of intent,
negotiations, representations and proposals, written or oral, requests
for proposals, or previous discussions of the parties. There have been
no other promises or inducements, oral or written, given by any party
to the other to enter into this Agreement. The parties agree that this
Agreement or any term or provision thereof shall not be modified in any
manner whatsoever without the written authorization of both parties
hereto and signed by both an authorized representative of Buyer and by
an authorized representative of Seller.
6.5 ARBITRATION
If any controversy or dispute arises out of this Agreement, or the
breach thereof, the parties will endeavor to settle such dispute
amicably. If the parties shall fail to settle any dispute, such dispute
shall be finally settled by binding arbitration conducted in Clark
County, Washington. All arbitration shall be in accordance with the
then existing Commercial Arbitration rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof, provided that
nothing in this section shall prevent a party from applying to a court
of competent jurisdiction to obtain temporary relief pending resolution
of the dispute through arbitration. The parties hereby agree that
service of any notices in the course of such arbitration at their
respective addresses as provided for in this Agreement shall be valid
and sufficient. If either party seeks to enforce its rights under this
Agreement, the non-prevailing party shall pay all costs and expenses
incurred by the prevailing party.
6.6 ATTORNEY FEES
The prevailing party in any arbitration or lawsuit concerning this
Agreement or any matter related thereto shall be entitled to any award
of reasonable attorney fees and costs from the other, including fees
incurred through trial, appeal or in bankrupt proceedings. Seller shall
be entitled to recover reasonable attorney's fees incurred with regard
to collection of payments due to repossession or disposal of
collateral, without regard to the institution of legal proceedings.
7. AUTHORIZED SIGNATURE:
This Agreement shall be binding upon Buyer and Seller only at such time
as it has been signed by an Authorized Officer of the Buyer and by an
Officer, identified below, of Seller.
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ACCEPTED BY: SUMMIT V, INC. GLOBAL ALLIANCE
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NAME (PLEASE PRINT) Brian W. Maggs James W. Brown
(Maxxis Group, Inc.)
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NAME (SIGNATURE) /S/ Brian W. Maggs /s/ James W. Brown
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TITLE: Executive Vice President President
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DATE: 2/10/97 2/2/97
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