EXHIBIT 10.17
DRAFT (International) 1/6/00 SUPPORT AGREEMENT
This Support Agreement ("Agreement") is entered into and is effective as of
the ____ day of _______________1999 (the "Effective Date") by and between XACCT
Technologies (1997) Ltd., an Israel corporation with its principal place of
business at 31 Halechi Street, Bnei-Brak 51200 Israel ("XACCT") and
________________________________, a _______________corporation with its
principal place of business at _________________________________("Licensee").
This Agreement sets forth the terms and conditions under which XACCT will
provide Support Services (as defined below) for the Product which is licensed by
Licensee pursuant to XACCT's End User Software License Agreement ("License
Agreement"). Except where superseded by this Agreement, all other terms and
conditions of the License Agreement are incorporated by reference. Capitalized
terms that are not defined in Section 1. below or elsewhere in this Agreement
have the same meaning as in the License Agreement.
1. DEFINITIONS
1.1 "Designated Support Contact " means Licensee's employee who is
authorized to contact the XACCT support center.
1.2 "Incident" means a single, discrete "bug", malfunction or other problem
which may require more than one (1) response before it is closed.
1.3 "Major Release" means a version of the Product containing significant
changes in functionality which usually will be designated with a whole
number product version change such as 3.2 to 4.0.
1.4 "Minor Release" means a version of the Product containing minor
improvements which usually will be designated with a one (1) decimal
version change such as 3.2 to 3.3, also sometimes referred to as "dot
releases."
1.5 "Support Services" means the software maintenance and support services
that are available from XACCT and selected by Licensee, as further
referenced herein and the attachments hereto as may be amended from
time to time.
2. COVERAGE AND PAYMENT OF FEES
Licensee may purchase the level of Support Services set forth in
Attachment 1 to this Agreement. XACCT will provide the Support Services
purchased by Licensee pursuant to the terms and conditions of this
Agreement and the License Agreement. Fees shall be payable within
thirty (30) days of invoice which shall be exclusive of any applicable
local, state, federal, use, excise or other taxes imposed on the fees
payable for the Support Services.
3. SUPPORT SERVICES
3.1 XACCT will provide reasonable commercial efforts to provide the bug
fixes and correction of reported Incidents. Initial response times for
reported Incidents are as set forth in Attachment 1.
3.2 XACCT will use reasonable commercial efforts to provide maintenance
releases and Minor Releases to the then-current embodiment of the
Product that it provides to its customers generally. Maintenance
Releases and Minor Releases may also include one copy of revisions to
the documentation applicable to such maintenance releases and Minor
Releases.
3.3 From time to time XACCT in its sole discretion may develop and provide
Major Releases which will be made available to Licensee with or without
additional fees according to the level of Support Services purchased by
Licensee as set forth in Attachment 1 referenced in Section 2.
3.4 In order for Licensee to receive the Support Services referenced above,
Licensee must:
(a) Appoint Designated Support Contact(s), trained and qualified,
who will maintain the integrity of the Product and who will
act as Licensee's liaison for all technical communications
with XACCT. The number of Designated Support Contact(s) will
be determined by the level of Support Services purchased by
Licensee set forth in Attachment 1 referenced in Section 2.
Names of Designated Support Contact(s) must be provided to
XACCT prior to initial contact with the XACCT support center.
All technical communications by Licensee to XACCT shall only
be made by the Designated Support Contact(s). All information
and materials provided to Licensee by XACCT pursuant to this
Agreement will be routed to the Designated Support Contact(s).
Licensee may change the Designated Support Contact(s) upon
written notice to XACCT.
(b) Promptly obtain training on the use of the Product for the
Designated Support Contact(s), and any other employee
substituting or replacing the Designated Support Contact(s).
(c) Subject to Licensee's applicable security requirements,
provide XACCT with access to and use of all information and
system facilities including but not limited to a modem
connection to Licensee's systems determined necessary by XACCT
to provide timely Support Services pursuant to this Agreement.
(d) Follow operating instructions and procedures as specified in,
but not limited to, XACCT's documentation and other
correspondence related to the Product.
(e) Follow procedures and recommendations provided by the XACCT
support center in an effort to correct problems.
(f) Notify XACCT of a "bug," malfunction and other problems in
accordance with XACCT's then current problem reporting
procedures and as provided in Attachment 1. If XACCT believes
that a problem reported by Licensee may not be due to an error
in the Product, XACCT will so notify Licensee. In such cases
support additional support fees may be required for support
provided by XACCT.
3.5 XACCT shall have no obligation to support:
(a) altered, damaged or Licensee-modified Product, or any portion
of the Product incorporated with or into other software other
than as contemplated by XACCT's documentation or as otherwise
expressly approved by XACCT in writing;
(b) any version of the Product other than the current version of
the Product, the immediately previous version and the version
preceding the immediately previous version; XACCT's obligation
to support the version prior to the immediately previous
version shall not extend beyond six (6) months after the
release of the current Major Release of the Product.
(c) Product problems caused by Licensee's negligence, abuse or
misapplication, use of Product other than as specified in the
XACCT documentation, or other causes beyond the reasonable
control of XACCT; or
(d) Product installed on any hardware, operating system version or
network environment that is not supported by XACCT.
(e) Incidents if XACCT makes a good faith determination that the
primary cause of the problem results from the failure or
malfunction of any system, equipment, facilities or devices
not furnished by XACCT.
3.6 Support for non-standard versions of the Product or portions thereof
developed for Licensee on a customized basis shall be as set forth in
an amendment or other supplement to this Agreement.
3.7 THE TERMS OF THE LICENSE AGREEMENT PERTAINING TO LIMITED WARRANTY,
DISCLAIMERS OF WARRANTY AND LIMITATION OF LIABILITY SHALL APPLY TO THE
MAJOR AND MINOR RELEASES OF PRODUCT DELIVERED ACCORDING TO THIS
AGREEMENT.
4. TERM AND TERMINATION
4.1 The initial term of this Agreement is one (1) year from the date of
delivery of the Product to Licensee unless earlier terminated in
accordance with this Agreement. The Agreement will be automatically
renewed for additional one (1) year terms (subject to applicable fee
adjustments) unless thirty (30) days prior to the anniversary of the
Effective Date Licensee gives written notice to XACCT of its intention
not to renew.
4.2 XACCT may suspend or terminate Support Services if Licensee fails to
timely pay Support Service fees as provided in this Agreement. XACCT
may also terminate Support Services if Licensee breaches any provision
of this Agreement or the License Agreement and such breach is not
remedied within thirty (30) days after Licensee receives written notice
of the breach. XACCT shall also have the right not to renew this
Agreement with respect to any Product by providing written notice of
such election at least sixty (60) days prior to the termination of
Support Services for such Product, provided that XACCT no longer
generally provides Support Services for such Product, or no longer
provides the specific Support Services previously offered.
4.3 Support Services shall automatically terminate upon termination of the
License Agreement.
5. REINSTATEMENT OR RENEWAL OF SUPPORT SERVICES
In the event License Support Services are terminated by Licensee by
notice of non-renewal, Support Services shall be discontinued at the
end of the then current term. If Support Services are terminated for
any reason, at XACCT's sole option, Licensee may reinstate or renew
Support Services by paying XACCT all applicable Support Services and
reinstatement fees.
6. LIMITATION OF LIABILITY
6.1 DIRECT DAMAGES. XACCT'S SOLE LIABILITY AND LICENSEE'S EXCLUSIVE REMEDY
FOR DAMAGES WITH RESPECT TO THE SUPPORT SERVICES UNDER ANY CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, SHALL BE
LIMITED TO THE AMOUNT PAID BY LICENSEE FOR THE SUPPORT SERVICES.
6.2 Consequential Damages. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE,
SHALL XACCT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS
OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,
ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF THE PRODUCT AND
DOCUMENTATION EVEN IF XACCT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR LOSSES.
7. GENERAL
This Agreement, the attachments and the License Agreement constitute
the entire agreement between the parties regarding Support Services and
supersede all previous agreements or representations, oral or written,
regarding the subject matter. This Agreement may not be modified or
amended except in a writing signed by a duly authorized representative
of each party. Both parties acknowledge having read the terms and
conditions set forth in this Agreement and attachments hereto,
understand all terms and conditions, and agree to be bound thereby. The
laws of the State of Israel shall govern all issues arising under or
relating to this Agreement, without giving effect to the conflict of
laws principles thereof. All disputes arising under or relating to this
Agreement shall be resolved exclusively in the appropriate court in
Tel-Aviv, Israel, and it is explicitly agreed that no other court shall
have such jurisdiction. This Agreement shall not be governed by the
United Nations Convention on Contracts for the International Sale of
Goods
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives:
LICENSEE XACCT TECHNOLOGIES (1997) LTD.
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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