Please enter a preferred appointment date and time, and a secondary date and time in case the first slot is not available. We will do our best to accommodate these preferred time requests. A Network Services representative will email or call to confirm your appointment time is on the calendar.
Upgrade/Install appointments are available Monday - Thursday, 5am - 5pm, and Friday 5am - 4pm Pacific Standard Time.
COMPONENT CONTROL.COM, INC.
1731 KETTNER BLVD., SAN DIEGO, CA 92101
THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU, THE END USER, ON BEHALF OF YOURSELF AND ON BEHALF OF YOUR COMPANY OR ORGANIZATION (“SUBSCRIBER”), AND COMPONENT CONTROL.COM, INC., A DELAWARE CORPORATION (“COMPONENT CONTROL”). BEFORE YOU MAY RECEIVE A LICENSE UNDER THIS AGREEMENT AND IN ORDER TO RECEIVE A LICENSE HEREUNDER, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BY CLICKING ON THE “I ACCEPT” BUTTON BELOW,OR BY DOWNLOADING, INSTALLING, OR OTHERWISE USING THE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE SELECT “I DECLINE” AND DO NOT DOWNLOAD, INSTALL, OR OTHERWISE USE THE SOFTWARE. SELECTING “I ACCEPT” WILL BE THE LEGAL EQUIVALENT OF YOUR SIGNATURE ON A WRITTEN CONTRACT, AND EQUALLY BINDING. YOU MUST AGREE TO THESE TERMS AND CONDITIONS IN ORDER TO BE ABLE TO HAVE ACCESS TO AND RECEIVE SMA SERVICES FROM COMPONENT CONTROL HEREUNDER.
ARTICLE 1. License Grant:
In exchange for your payment to Licensor of the then current license fee (“License Fee”) as set forth on Licensor’s software proposal addressed to you (“Software Proposal”), Licensor grants to you, the end user, a personal, nonexclusive, nontransferable, nonassignable, terminable license, without the right to sublicense, to use a single copy of the Software modules identified in the Software Proposal, solely for your own internal use, on a single production database, on a single server and internal networks at your facilities, but only by the number of concurrent user connections that you have paid for, and solely in accordance with the terms and conditions of this Agreement (“License”).
ARTICLE 2. Definition of Software:
The term “Software” used herein, consists of a computer program designated as “Quantum Control,” and comprised specifically of the modules specifically set forth on the Software Proposal, that is designed to track inventory, manufacturer and historical data of parts; and if applicable in the context used, includes all related printed documentation, including manuals covering the installation, application, and use of the computer program and published specifications; and all subsequent improvements to either the software or related printed documentation made by Licensor. “Software” also includes all Quantum Control module customizations and additional functionality specifically identified as deliverables under one or more custom programming Development Proposals entered into by the parties, to be developed and integrated into the Quantum Control system.
ARTICLE 3. Limitations:
3.1 Use on Designated Hardware. Licensee shall use the Software with a single production database, on a single server within Licensee’s internal networks as limited to the number of concurrent user connections that you have paid for (upon payment of the License Fee). In addition, Licensee may make and install one Software copy for back-up purposes and one Software copy for test purposes, provided that only one instance of the Software shall be operated for production purposes at any time. Such back-up and test instances may be operated on separate servers provided that they remain on Licensee’s internal networks at a Licensee facility. Licensee agrees that it shall obtain a separate license from Licensor for the installation and use of the licensed Software on any computer systems other than the hardware designated by Licensee to Licensor prior to any such installation and/or use. Certain qualifications are required for the Licensee to add other sites for use of the Software.
3.2 Restrictions. Notwithstanding the License granted in Article 1, you shall not directly or indirectly: (a) copy the Software through any means (except as permitted above in Section 3.1), or modify the Software, or any portion of it; (b) use the Software in any service bureau capacity including, without limitation, using such Software to process any data for any third party; (c) reverse engineer, map, decompile, enhance, or make derivative works, translations, or compilations or portions or otherwise derive the source code, internal structure, organization or any other aspect of the Software or any part thereof or analyze such Software for the purpose of creating software having similar functionality as the Software being licensed, or directly or indirectly aid, abet or permit others to do so; (d) use or permit the use of the Software by anyone other than your employees for your internal purposes or your customers for purposes of approvals; (e) sell, license, transfer, lease, give away, distribute or otherwise dispose of the Software and/or modifications to the Software or any derivative works based upon the Software; (f) grant any sublicenses or any other subsidiary uses of the Software; (g) Disclose, transfer or otherwise make available the Software to any of your employees who do not have a specific need to know in order to perform your obligations under this Agreement, and/or to any other third party or entity at any time; and/or (f) remove, cover, or in the case of permitted copies of the Software, fail to include Licensor’s copyright notice, patent notice, trademark, service mark, or other company proprietary marking, and/or confidential legends on the Software.
3.3 Licensee’s Responsibilities. Licensee shall be exclusively responsible for the supervision, management, and control of its use of the Software, including, but not limited to, implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate action between it and its employees to prevent misuse, unauthorized copying, modification, or disclosure of the Software. Said procedures shall be provided to Licensor for its approval.
3.4 Limitations of Oracle XE. Licensee acknowledges the following limitations applicable to the use of the Software with Oracle® Database Express Edition (“Oracle XE”): (i) the Software may only be used on a single instance on any server; (ii) the Software may be installed on a multiple CPU server, but may only be executed on one processor in any server; (iii) the Software may only be used to support up to 11GB of user data; (iv) the Software database may use up to 1 GB RAM of available memory; and (v) Licensee is obligated to agree to the Oracle Database Express Edition License Agreement. Licensee further understands that should its desired use of the Software exceed the limitations imposed by Oracle XE then Licensee will be required to upgrade to an Oracle Database Standard Edition 2 license and additional Software modules. LICENSOR MAKES NO WARRANTIES REGARDING ORACLE XE AND ALL USE OF ORACLE XE BY LICENSEE IS SUBJECT TO THE ORACLE DATABASE EXPRESS EDITION LICENSE AGREEMENT AND TO ALL LIMITATIONS AND DISCLAIMERS THEREIN.
3.5 License Period. The License set forth in Article 1 shall remain in force for so long as the License Fee has been paid but only provided that Licensee does not breach this Agreement or the Licensor’s Software Maintenance Agreement (“SMA”). Notwithstanding anything else to the contrary, certain modules of Software require that Licensee subscribe to the SMA with respect to such modules and pay all maintenance fees thereunder for so long as Licensee uses such modules. Accordingly, the License set forth in Article 1 with respect to all modules that provide Software connectivity to external Internet services, such as, but not limited to, iQ, MarketPlace, Ebay, AvRef, or that are otherwise identified on the Software Proposal as “SMA required” (collectively “SMA Required Modules”), shall remain in force for so long as the License Fee and applicable maintenance fees under the SMA have been paid but only provided that Licensee does not breach this Agreement or the SMA.
3.6 Rights Reserved. Notwithstanding anything to the contrary herein, all rights not specifically granted in the License set forth in Article 1 shall be reserved and remain always with Licensor.
ARTICLE 4. Property Rights:
4.1 Title To Software. Licensee agrees that Licensor shall own and retain all right, title, and interest to the Software, to enhancements, improvements, and derivatives, and to all copyright, trademark, trade secret and all other intellectual and proprietary rights (“Intellectual Property Rights”) related thereto. Licensee acknowledges and agrees that Licensor is and shall remain the owner of all copies made by Licensee in accordance with Section 3.1 above.
4.2 Nondisclosure Of Software. Licensee acknowledges that the Software is confidential in nature and constitutes a trade secret belonging to Licensor. Licensee agrees to hold it in trust and not to, directly or indirectly, sell, rent, license, distribute, transfer, or disclose or permit the sale, rental, licensing, distribution, transfer, or disclosure of the Software or its contents to any other party and to use its best efforts to prevent inadvertent disclosure of the Software to any third party either during the term of this Agreement or thereafter.
4.3 Security. Licensee agrees to keep the Software in a secure place, under access and use restrictions designed to prevent disclosure of the Software to unauthorized persons, satisfactory to Licensor and not less strict than those applicable to Licensee’s own trade secrets.
4.4 Disclosure As Breach. Licensee further agrees that it shall be strictly liable for all damages to Licensor that result from any disclosure of the Software to any third party.
4.5 Copyright Or Other Marks. Licensee agrees not to remove, deface, or destroy any copyright, trademark, service mark, other proprietary markings, or confidential legends placed by Licensor on or within the Software.
ARTICLE 5. Warranty And Warranty Service:
5.1 Warranty Of Title. Licensor warrants that it has good title to the Software and that the Software does not knowingly infringe any third party’s Intellectual Property Rights.
5.2 Warranty Of Title Remedies. LICENSOR SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS HEREUNDER OR OTHERWISE FOR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEABLE BY LICENSOR. Licensor’s liability on any claim for damages arising out of this Agreement shall be limited to direct damages and shall not exceed the License Fee paid to Licensor by Licensee for the then current term of the License. Licensee shall notify Licensor of the assertion of any claim that the Software or Licensee’s use thereof under this Agreement violates the Intellectual Property Rights of any other party, and shall cooperate with Licensor in the investigation and resolutions on any such claim. Licensor shall defend Licensee against any and all such claims. If the Software becomes, or in Licensor’s opinion is likely to become, the subject of a claim of infringement of a copyright or patent, Licensor may procure for Licensee the right to continue using the Software or replace or modify the Software to render it non-infringing, or discontinue its use. Licensor shall have no liability for any claim of copyright or patent infringement based on the use of an original version of the Software if infringement would have been avoided by the use of an updated version made available to Licensee. Licensor shall have no liability for any claim of copyright or patent infringement due to Licensee’s modification or conversion of the Software and/or the subsequent use of the modification or conversion or use of combination of the Software with programs or data not supplied by Licensor.
5.3 Limited Warranty. Licensor warrants that for a period of ninety (90) days from the delivery of the Software to Licensee (“Warranty Period”) the Software will substantially conform to the functionality described in the then-current user manual provided by Licensor (“Limited Warranty”). If during the Warranty Period, Licensee demonstrates to Licensor that the Software does not substantially conform to the functionality described in its documentation provided by Licensor, Licensor shall either (i) replace such Software at Licensor’s cost, provided that upon inspection by Licensor, Licensor has found the Software to be defective; or (ii) refund the amount paid therefore, if the Licensee returns the defective Software to Licensor with a copy of proof that the warranty period has not expired, and Licensor has verified the defect. Licensee agrees that Licensee’s sole and exclusive remedy hereunder shall be limited to the corrective action set forth in this Section 5.3.
5.4 Warranty Disclaimer. THE LIMITED WARRANTY ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER CONDITIONS AND WARRANTIES FOR THE SOFTWARE. LICENSOR MAKES NO OTHER CONDITIONS, GUARANTEES, OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIMS ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE PROVIDED MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. LICENSOR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE SOFTWARE. TO THE EXTENT THE LICENSEE HAS IN EFFECT AN SMA, THEN SUCH SMA WILL DICTATE THE MANNER IN WHICH ERRORS OR OTHER PROBLEMS IN THE SOFTWARE ARE RESOLVED.
5.5 Limitation of remedies. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT FOR YOUR VIOLATION OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS OR YOUR INDEMNIFICATION OBLIGATIONS BELOW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THIS AGREEMENT, THE BREACH THEREOF, THE USE OR INABILITY TO USE THE SOFTWARE, THE RESULTS GENERATED FROM THE USE OF THE SOFTWARE, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER CHARACTERIZED AND/OR FROM ANY OTHER CAUSE WHATSOEVER. Licensee shall indemnify, defend and hold harmless Licensor, its members, managers, officers, directors, shareholders, employees, parent and affiliate entities, agents and representatives against all damages, claims, liabilities, losses and other expenses, including without limitation reasonable attorneys’ fees and costs, whether or not a lawsuit or other proceeding is filed, that in any way arise out of or relate to any third party claims arising from or related to (a) Licensee’s negligent or willfully wrongful acts or omissions; and (b) any use of the Software by or on behalf of Licensee.
ARTICLE 6. Termination:
6.1 Cause for Termination. The License granted herein shall automatically terminate without notice upon the occurrence of any of the following: (i) expiration of the term specified herein, or of any optional renewal term; (ii) disclosure of the Software to a third party, whether directly or indirectly, and whether inadvertently or otherwise; (iii) the breach by the Licensee of any of the terms contained herein, which is not cured within ten (10) days after notice, by the Licensee, or the commission of an Event of Default (as defined below), or (iv) the cessation of business by Licensee or any successor or assignee to whom the Software has been properly transferred.
6.2 Events Of Default. Licensee shall have committed an Event of Default, and this Agreement and the license granted hereunder shall automatically terminate, if any of the following occur: (i) Licensee attempts to use, copy, license, or convey the Software in any manner contrary to the terms of this Agreement or in derogation of Licensor’s proprietary rights in the Software; (ii) Licensee fails or neglects to perform or observe any of its obligations under this Agreement, including, without limitation, the timely payment of the License Fee, with respect to SMA Required Modules, or any fees due under the applicable SMA, as the case may be, or any other sums due Licensor within ten (10) days after notice that the payment is delinquent; or (iii) Licensee makes an assignment of Licensee’s business for the benefit of creditors, a petition in bankruptcy is filed by or against Licensee, a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or part of Licensee’s property, or Licensee is adjudicated bankrupt.
6.3 Effect of Termination. Licensee agrees that immediately upon termination of this Agreement, whether or not Licensee receives notice of such termination, the License shall be immediately terminated and Licensee shall not have any further rights to use the Software. Upon a termination, Licensee shall immediately return all copies of the Software to Licensor and certify that no additional copies were made. Licensee further agrees that in the event of termination through its default, all fees or charges due for the remaining term of this Agreement shall immediately become due and payable. Upon termination of the license granted hereunder, Licensor’s obligations to Licensee shall cease.
6.4 Cumulative Remedies. All rights and remedies conferred herein shall be cumulative and in addition to all of the rights and remedies available to each party at law, equity or otherwise.
ARTICLE 7. General Terms And Conditions:
7.1 Relationship of Parties. The relationship between Licensor and you is only that of a licensor and licensee. Neither party is the agent or legal representative of the other party, and neither party has the right or authority to bind the other party in any way. This Agreement creates no relationship as partners or a joint venture, and creates no pooling arrangement.
7.2 Notices. Unless otherwise provided in this Agreement, any notice required or permitted by this Agreement to be given to either party shall be deemed to have been duly given if in writing and delivered personally or mailed by first-class, certified mail, postage prepaid and addressed to Licensee at the address it has provided Licensor, or to Licensor at 1731 Kettner Blvd, San Diego, Ca. 92101.
7.3 Assignment. You have no right to assign, delegate, transfer or otherwise encumber this Agreement or any portion thereof without Licensor’s prior written consent. In the event of a corporate reorganization, merger and/or acquisition, the Licensee may assign its rights under this Agreement to its successor in interest, subject to the written approval of the Licensor, which may not be unreasonably withheld.
7.4 Amendments. This Agreement shall be modified only by a written agreement duly executed by Licensor and Licensee.
7.5 Waiver. The failure of either party to enforce any of its rights hereunder or at law shall not be deemed a waiver or a continuing waiver of any of its rights or remedies against the other party, unless such failure or waiver is in writing.
7.6 Attorneys’ Fee. In the event a dispute arises regarding this Agreement, the prevailing party shall be entitled to its reasonable attorneys’ fees and expenses incurred in addition to any other relief to which it is entitled.
7.7 Severability. If any provision, or part thereof, of this Agreement is judicially declared invalid, void or unenforceable, each and every other provision, or part thereof, nevertheless shall continue in full force and effect, and the unenforceable provision shall be changed or interpreted so as best to accomplish the objectives and intent of such provision within the limits of applicable law.
7.8 Governing Law. This Agreement shall be interpreted and enforced according to the laws of the State of California, without application of its conflicts or choice of law rules. This Agreement shall be deemed to be performed in San Diego, California. Both parties irrevocably submit to the jurisdiction of the state or federal courts located in San Diego, California, for any action or proceeding regarding this Agreement, and both parties waive any right to object to the jurisdiction or venue of the courts in San Diego, California.
7.9 Entire Agreement. This Agreement constitutes the entire agreements between the parties regarding the subject matter hereof, and supersede all prior or contemporaneous understandings or agreements, whether oral or written regarding the subject matter hereof.
7.10 Authority. If you are entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority from your respective governing body to enter into this Agreement and to bind your respective company to all the terms and conditions of this Agreement.
SOFTWARE MAINTENANCE AGREEMENT (SMA)
This Software Maintenance Agreement (“SMA”) is by and between Component Control.com, Inc. hereinafter, referred to as “Component Control”, and ________, hereinafter, referred to as the “Subscriber”.
Whereas, the Subscriber wishes to use and obtain a license for the use of certain Component Control software; and
Whereas, the Subscriber wishes to receive software maintenance and customer support, software updates and upgrades provided by Component Control, all as specified below.
NOW, THEREFORE, in consideration of the mutual provisions contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Article 1. Description of SMA Services Offered
1.01 License: Subscriber hereby agrees to all terms and conditions of the license agreement entered into between Component Control and the Subscriber (the “License Agreement”), which is fully incorporated herein. Subscriber agrees that all use of the Component Control software that it contracts and pays the appropriate license fee for shall be solely pursuant to the License Agreement. For purposes of this SMA, the term “Covered Software” means only the licensed modules specifically set forth on a Software Proposal entered into by Subscriber and Component Control which are subject to the License Agreement. For the avoidance of doubt, Covered Software only includes the licensed software package itself and does not include any Internet portals, EDI protocols, APIs or other interfaces required to interoperate the Covered Software with third party software or hardware and SMA Services expressly do not include any analysis, programming and testing of such Internet portals, EDI protocols, APIs or other interfaces. Any support for the foregoing and any other items that are not Covered Software shall be subject to Services Proposals as may be entered between the parties pursuant to the Basic Ordering Agreement between the Parties. All provisions of this Section 1.01 shall survive any termination or expiration of this SMA.
1.02 SMA Services: Provided the then-current SMA Subscription Fee (as defined below) is paid, Subscriber shall receive for the succeeding twelve (12) months (each such twelve (12) month period a “Maintenance Period”): (1) Customer Support Services as described and to the extent outlined in Article 2 below with respect to Covered Software; and (2) Covered Software upgrades and updates as discussed in Article 3 below (collectively “SMA Services”). The following exceptions apply to Component Control’s obligations to provide SMA Services during a Maintenance Period: (a) SMA Services to be provided under this SMA shall not cover the maintenance of any machines, computer hardware or equipment; (b) if Subscriber fails to follow all of Component Control’s installation, operation and maintenance instructions or comply with any of its obligations in this SMA or the License Agreement, then Component Control’s obligation to provide the SMA Services may be suspended until Subscriber complies with all such obligations to the satisfaction of Component Control.
1.03 Subscriber’s Technical Representative: Upon execution of this Agreement and for the benefit of both parties, Subscriber shall use commercially reasonable efforts to designate one (1) of its personnel as its technical representative who will be primarily responsible for directing and overseeing Subscriber’s activities pursuant to this SMA and for transmitting and receiving all material communications regarding this SMA on behalf of Subscriber. Subscriber’s technical representative shall possess the requisite skills and training as required to direct and oversee Subscriber’s activities pursuant to this SMA. If the Covered Software includes Component Control’s accounting module, then the Subscriber’s technical representative or Customer’s accounting personnel, as the case may be, shall additionally possess accounting training as required to set up and maintain the Covered Software general ledger and manage double entry accounting entries for Subscriber’s business. Subscriber’s technical representative shall direct all inquiries and questions regarding SMA Services and/or this SMA to Component Control’s Customer Support department. Subscriber may change its designated technical representative at any time effective upon providing written notice to Component Control.
Article 2. Definition of Customer Support Services
2.01 Purpose: By entering into this SMA, Subscriber will receive during the Maintenance Period the SMA Services as more fully set forth herein, as well as integration set forth in Section 3.02. Subscription under this SMA also provides support in the event of a disaster as outlined in Section 3.03.
2.02 Customer Support: To the extent Subscriber is covered under this SMA, it may submit its Component Control Covered Software support questions via phone during normal Component Control business hours or via e-mail or directly from the “Support” section of Component Control’s website or within the Quantum application. The preferred method for registering Customer Support calls is via Component Control’s website that is available 24 hours a day and where Subscriber trouble calls can be documented to facilitate assignment to the proper resource. Customer support means generally answering questions about the operation of the Covered Software and providing error corrections to the Covered Software for any failure by the Covered Software to materially comply with its published specifications. Customer support expressly excludes any other services, such as custom programming, training, implementation services, interface development and testing, data services, data validation, and other professional services or activities. Customer support also excludes requests to balance or reconcile subscriber’s General and Subsidiary ledgers and requests to correct or reverse data corruption or other ancillary data errors regardless of cause. Requests or questions relating to general accounting principles are considered Training and Implementation requirements and as such can be addressed under the Additional Services provision. Subscriber Customer Support requests will be answered as promptly as possible with a commitment that an initial response will be provided within six (6) hours after the request is properly submitted. Customer Support response time is based on Component Control standard Customer Support period, which begins each week Monday morning at 12:01AM and continues through 6:00PM Friday Pacific Standard Time, exclusive of holidays in the United States. Customer support will only be provided for Covered Software.
2.03 Additional Services:
2.03.1 Professional Services: Should a Subscriber issue be determined to require professional services, then Customer Support personnel will assign the issue to Component Control’s Professional Services helpdesk which will be responsible to facilitate a services proposal from the appropriate resource (data services, network services, custom programming, training and consulting). Professional Services will be provided on a time and materials basis as more fully set forth in the services proposals.
2.03.2 On-Site Professional Services: In instances where Component Control determines that on-site Professional Services are needed, Component Control will provide a services proposal for such work. An on-site visit can be arranged to examine unresolved issues pursuant to such proposal upon Subscriber’s approval. The cost of such a visit is not included within the terms of this SMA.
2.03.3 After Hours Support: After hours support is provided outside of the standard Customer Support period or on holidays in the United States by calling Component Control’s on-call
Customer Support Representative at (619) 696-5400. This support outside of the standard Customer Support period or on holidays in the United States is available on a time and materials basis at a rate of $175 per hour or issue with a minimum charge of one hour per support call.
2.04 Subscriber’s Cooperation: Subscriber agrees to cooperate with Component Control in accepting technical recommendations and in adhering to Component Control Covered Software requirements relating to network design, hardware specifications and system configurations as may be published by Component Control in Covered Software documentation or on Component Control’s website, or otherwise provided to Subscriber by Component Control.
Article 3. Software Updates and Upgrades
3.01 Entitlement to Software Updates and Upgrades: As long as the SMA Maintenance Fee is paid and this SMA is in effect, Subscriber shall be entitled to Updates (as defined below) and Upgrades (as defined below) for the Covered Software during the Maintenance Period. Updates shall be provided in the form of periodic minor modifications or maintenance releases designed to transmit Covered Software corrections or other modifications to correct errors, provide patches or bug fixes or minor enhancements (“Updates”). Upgrades shall be provided in the form of periodic major revisions or modifications which change the software utility or efficiency and/or which add features or functions (“Upgrades”). Upgrades shall include versions of the same database platform only as then-licensed by Subscriber, unless the Subscriber has paid for an additional license to use a different database platform. Under this SMA, the Subscriber shall receive during the Maintenance Period Updates and Upgrades from Component Control in the form of Covered Software releases are provided each 3-6 months during each Maintenance Period, to the extent possible, but at a minimum, annually during each Maintenance Period. Upgrades are available for download from the Component Control ftp site.
3.02 Integration Activation: Upon subscription under this SMA for SMA Services relating to the StockMarket, PartSearch App, EDI Services, Customer Portal, CAMP Integration, ILS Integration, QuickBooks Accounting Bridge, Avref and Government Procurement Integration and/or other similar services (“Third Party Services”), the integration of the Covered Software with these Third Party Services will remain during the Maintenance Period for so long as (a) such Third Party Services are available to Component Control for integration to the Covered Software, (b) the SMA agreement is in effect and (c) Subscriber separately obtains a license from and pays all fees to the corresponding Third Party Service provider as may be required to utilize such Third Party Services.
3.03 Emergency Software Replacement/Disaster Recovery: Provided the then-current SMA Subscription Fee is paid, and in the event that the Covered Software is lost due to hardware failure or other disaster, Subscriber shall receive a replacement copy of the then-current production release of the Covered Software, free of charge. Installation services are available for a fee in the event of hardware failure or other disaster.
Article 4. Payment of Fees
4.01 Cost Basis - SMA Subscription Fee: The Subscriber shall be entitled to the SMA Services only during a Maintenance Period and only upon commencement of payment of the SMA Subscription Fee. The “SMA Subscription Fee” for the initial Maintenance Period shall be equal to the “SMA Subscription Percentage” established at initial software purchase multiplied by the then-current list price for the Covered Software licensed from Component Control pursuant to the License Agreement, unless otherwise stated on the applicable Software Proposal. The cost of the SMA Services shall be proportionately increased if the Subscriber purchases additional software from Component Control, as provided below in Section 5.01, which additional software by this reference shall be added to “Covered Software” upon payment of the additional SMA Subscription Fee covering such additional software. Based on the foregoing, the initial SMA Subscription Fee payable by the Subscriber shall be set forth in the Software Proposal or Maintenance Proposal, as the case may be, provided to Subscriber and may be adjusted as provided herein.
4.02 Payments: The SMA Subscription Fee is due and payable in 12 monthly installments beginning upon the first business day of the first full calendar month during the Maintenance Period and continuing each month thereafter on the same day (or if such day is not a business day, on the subsequent business day). Subscriber must provide a credit card or electronic automated debit account to Component Control for charging the monthly amount due under the SMA Subscription Fee hereunder. Subscriber shall provide Component Control with notice of any changes to its credit card or electronic automated debit account information as soon as practicable but in all events prior to the date of the next monthly installment of the SMA Subscription Fee hereunder.
4.03 Credit Card Authorization/Automatic Renewals: Subscriber hereby warrants that all SMA Subscription Fee charges incurred hereunder will be honored by the applicable credit card company or bank, as applicable. Subscriber hereby authorizes Component Control to charge the SMA Subscription Fee, as may be adjusted pursuant to this SMA, on a monthly basis to the credit card or electronic automated debit account on file with Component Control and to automatically renew the Maintenance Period until Subscriber terminates this SMA in writing by sending Component Control a written notice of termination at least thirty (30) days before the then current Maintenance Period.
4.04 Maintenance Period: For Covered Software licenses arising from Software Proposals that are entirely SMA-Required, the initial Maintenance Period begins upon the date of this Agreement. For all other Covered Software, the initial Maintenance Period begins upon Go-Live or 90 days from contract signing, whichever comes first or if specified differently in the SMA Services Proposal. “Go-Live” means the first use of the Covered Software in a production environment.
4.05 Renewals: Maintenance Periods are subject to automatic renewal unless Subscriber terminates this SMA in writing by sending Component Control a written notice of termination at least thirty (30) days before the then current Maintenance Period or unless earlier terminated in accordance with the terms of this SMA. Subscriber may extend the Maintenance Period for the Covered Software an unlimited number of times during the term of this SMA, subject to its terms and conditions. In the event Subscriber fails to make continued payment towards the SMA Subscription Fee for a new Maintenance Period prior to the expiration of any Maintenance Period, Subscriber may, upon Licensor’s consent, reinstate SMA Services by paying 150% of the SMA Subscription Fee for the Covered Software that is in arrears as well as the SMA Subscription Fee at the then current rate, for the then-current Maintenance Period. Failure to renew the Maintenance Period shall terminate the license to use certain Covered Software under the License Agreement (as more fully set forth therein), until reinstated as provided above. Upon reinstatement of a Maintenance Period, the license to the affected Covered Software (as more fully set forth in the License Agreement) shall resume in full force and effect under its terms.
4.06 Taxes: Subscriber shall be responsible for all sales, use and other taxes and all applicable duties, levies and export fees and similar charges imposed by any federal, state or local government entity on the SMA Services provided and fees paid under this SMA, excluding taxes based solely upon Component Control’s income.
Article 5. Adjustments to SMA Subscription Fee
5.01 Change in Subscription Level: If the Subscriber adds to its current Component Control Software License by purchasing additional users and/or modules, the additional SMA Subscription Fee will be calculated based to the SMA Subscription Percentage multiplied by the then-current list price of the add-on modules and/or users, unless otherwise stated on the applicable Software Proposal. This additional SMA Subscription Fee will then be pro-rated for the months remaining on the current Maintenance Period. Upon the next renewal of Maintenance Period, the additional SMA Subscription Fee for all add-on modules and/or users purchased during the previous Maintenance Period will be added to the SMA Subscription Fee of the renewal Maintenance Period.
5.02 Annual Percentage Increase: Notwithstanding anything contained in the SMA to the contrary, to offset inflation and other increases in the cost of doing business, Component Control has the right to increase the SMA Subscription Fee (for the same Covered Software) by no more than 5% per annual Maintenance Period.
Article 6. System Requirements for SMA Services
6.01 System Requirements: To enable Component Control to remotely view and properly assess Subscriber’s Customer Support problems and to allow file transfer of software updates and upgrades provided under this SMA, Subscriber must have a high speed Internet connection prior to receiving SMA Services and must enable remote access of its Covered Software installation to Component Control.
6.02 Exceptions: Component Control’s obligations to provide the SMA Services hereunder shall not apply (i) if the Covered Software has been modified, changed or altered by anyone other than Component Control, unless authorized by Component Control in writing; (ii) if Subscriber is not operating or using the then-current version of the Covered Software that has been provided or made available by Component Control, or the immediate prior version of Covered Software (provided that the prior version of the Covered Software is not exhibiting known Bugs); (iii) if the computer hardware used in the operation of the Covered Software is not in good operating order or is not installed in a suitable operating environment; (iv) if the computer hardware and hardware configuration used in the operation of the Covered Software does not meet Component Control’s recommended specifications, including, but not limited, the requirement to install and execute the Covered Software on a dedicated server, or if Subscriber does not otherwise adhere to Component Control’s published Covered Software requirements relating to network design and system configurations; (v) if the Covered Software has been improperly installed or operated, and/or used in any way other than as contemplated by the License Agreement; (vi) if the Covered Software has been used, integrated or merged with any other software, peripheral device or other materials not supplied or approved by Component Control; and/or (vii) if the database is determined to be corrupt due to events that are not under Component Control’s direct supervision. If any claims fall within any of the above exceptions, then, in addition to any SMA Subscription Fee paid by Subscriber hereunder, Subscriber shall also pay Component Control’s costs of investigating and identifying the problem, and Component Control’s expenses to repair or correct the problem, based on Component Control’s then-current charges.
6.03 Access to Covered Software Installation: Subscriber hereby grants Component Control the right to access Customer’s Covered Software installation as required by Component Control to provide SMA Services hereunder, to provide all integration with StockMarket sourcing community or other applicable Third Party Services and otherwise remotely administer the Covered Software, including, but not limited to, using the Stock Market Agent to collect inventory updates and update the StockMarket, and collecting transaction data for the purpose of aggregating and publishing statistical aggregate non-identifiable transaction data on the StockMarket. In addition, Subscriber hereby grants Component Control the right to access Customer’s Covered Software installation to retrieve statistical information regarding Subscriber’s use of the Covered Software to better assist Component Control in providing SMA Services hereunder.
Article 7. Default or Termination
7.01 Default: No SMA Services shall be rendered by Component Control to the Subscriber if any payment due to Component Control is not received in full by the Invoice due date. Furthermore, Component Control shall have the right to terminate this SMA, in part or in whole, upon the occurrence of any of the following: (i) immediately without notice upon the expiration of the Maintenance Period or of any renewal thereof; (ii) immediately upon the breach by the Subscriber of any of the terms contained herein, which, if curable, is not cured within ten (10) days after notice, by the Subscriber or (iii) immediately without notice upon termination of the License Agreement.
7.02 Termination: Failure to renew this SMA by continued payment of the SMA Subscription Fee, as provided above, will result in the termination of all services provided hereunder. Reinstatement of Subscriber support benefits will be made only as provided in Section 4.05 and the payment of the applicable SMA Subscription Fee, or upon the execution of a new SMA and the payment of the applicable SMA Subscription Fee. This SMA may also be terminated as provided in Section 9.11. Notwithstanding anything to the contrary herein, to the extent any Third Party Services available through any Covered Software (x) is terminated or otherwise no longer available to Component Control for integration or connectivity to the Covered Software or (y) the Subscriber fails to separately obtain a license from and pay all fees to the corresponding Third Party Services provider as may be required to utilize such Third Party Services, then, in each case, Licensor shall have the right to, upon notice to Subscriber with immediate effect and without any penalty or premium, cease providing the integration activation set forth in Section 3.02.
7.03 License Termination: The license to use certain Covered Software, as more fully set forth in the License Agreement, shall terminate until Subscriber has in place an effective SMA and Subscriber has made all payments that are due thereunder.
Article 8. Warranty
8.01 Disclaimer: COMPONENT CONTROL EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE COVERED SOFTWARE AND/OR ANY SERVICES PROVIDED BY COMPONENT CONTROL TO SUBSCRIBER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR BASED ON COURSE OF CONDUCT OR TRADE CUSTOM OR USAGE.
8.02 Limitation On Liability: NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT FOR SUBSCRIBER’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, THAT ARE IN ANY WAY RELATED TO THIS SMA, THE BREACH THEREOF, THE USE OR INABILITY TO USE THE COVERED SOFTWARE, ANY COVERED SOFTWARE BUGS, THE RESULTS GENERATED FROM THE USE OF THE COVERED SOFTWARE, ANY TRANSACTIONS RESULTING FROM THIS SMA, LOSS OF GOODWILL OR PROFITS, LOST BUSINESS HOWEVER CHARACTERIZED AND/OR FROM ANY OTHER CAUSE WHATSOEVER. IN ADDITION, COMPONENT CONTROL’S ENTIRE LIABILITY TO SUBSCRIBER WHETHER IN TORT, CONTRACT OR OTHERWISE SHALL NOT EXCEED THE SMA SUBSCRIPTION FEE PAID BY SUBSCRIBER TO COMPONENT CONTROL UNDER THIS SMA FOR THE THEN CURRENT MAINTENANCE PERIOD.
Article 9. General Provisions
9.01 Relationship of Parties: Neither party is the agent or legal representative of the other party, and neither party has the right or authority to bind the other party in any way. This SMA creates no relationship as partners or a joint venture, and creates no pooling arrangement.
9.02 Governing Law and Venue: This SMA shall be interpreted and enforced under the laws of the State of California, without application of its conflicts or choice of law rules. Both Parties irrevocably submit to the jurisdiction of the state and federal courts located in San Diego, California for any action or proceeding regarding this SMA, and both parties waive any right to object to the jurisdiction or venue of the courts in San Diego, California.
9.03 Assignment: Neither party has the right to assign this SMA without the prior written consent of the other party, which will not be unreasonably withheld. In the event of a corporate reorganization, merger and/or acquisition, the Subscriber may assign its rights under this SMA to its successor in interest, subject to the written approval of Component Control, which may not be unreasonably withheld.
9.04 Counterparts: This SMA may be executed in several counterparts that together shall be originals and constitute one and the same instrument.
9.05 Waiver: The failure of either party to enforce any of its rights hereunder or at law shall not be deemed a waiver or a continuing waiver of any of its rights or remedies against the other party, unless such waiver is in writing and signed by the party to be charged.
9.06 Severability: If any provision of this SMA, or part thereof, is declared by a court of competent jurisdiction to be invalid, void or unenforceable, each and every other provision, or part thereof, shall nevertheless continue in full force and effect.
9.07 Attorneys’ Fees: In the event a dispute arises regarding this SMA, the prevailing party shall be entitled to its reasonable attorneys’ fees and expenses incurred in addition to any other relief to which it is entitled.
9.08 Entire Agreement: This SMA constitutes the entire agreement between the parties regarding the subject matter hereof, and supersedes all prior or contemporaneous understandings or agreements, whether oral or written. This SMA shall be modified or amended only by a writing signed by both Subscriber and Component Control. Notwithstanding the previous sentence, this SMA may be modified or amended by Component Control, from time to time, as required to comply with the specific SMA Services then being offered by Component Control. Any such modification shall be effective thirty (30) days following its delivery to Subscriber by Component Control.
9.09 Authority: The parties executing this SMA on behalf of Component Control and Subscriber represent and warrant that they have the authority from their respective governing bodies to enter into this SMA and to bind their respective companies to all the terms and conditions of this SMA.
9.10 Force Majeure: Other than for Subscriber’s payment obligations, neither party shall be liable for any delay or nonperformance due to acts of God, natural casualties, war, terrorism, material shortages, transportation and communications delays, energy shortages and disruptions, trade embargoes, governmental regulations, strikes, civil unrest and/or other causes beyond the reasonable control of a party (a “Force Majeure Event”). If a Force Majeure Event occurs, the party whose performance is affected shall give the other party written notice within ten (10) days of such occurrence, detailing the circumstances of the Force Majeure Event and an estimate of the anticipated delay in performance. The party whose performance is affected will use commercially reasonable efforts to develop a mutually acceptable work around plan in an attempt to minimize the impact of the Force Majeure Event. Performance shall be promptly resumed upon termination of the Force Majeure Event.
9.11 Non-Solicitation. Subscriber shall not directly or indirectly solicit or persuade any employee of Component Control to leave the service of Component Control for any reason, and/or hire or retain any such employee without the prior written approval of Component Control. In the event of a breach of the prohibition set forth in this Section 9.11 during the term of this SMA, Component Control shall have the right to immediately terminate this SMA upon written notice to Subscriber.
IN WITNESS WHEREOF, the parties have executed this SMA as of the date set forth below (“Effective Date”).
Company Name Component Control
By: _________ By:_________
Date: _________ Date:__________