Opening of Proposals - Utility Billing System - Systems & Software, Inc. - Part 2

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(ii) The Application Software is licensed in object code only. The Customer shall have no rights to the Source Code except as expressly specified in this Agreement. (iii) The Application Software is for use by the Customer in the current utility entity at the projected User level and the current Customer Account volume (being the current number of metered or non -metered water, wastewater, electric, gas, rental, refuse and other customers) specified in Exhibit 1 (Budget Details/Notes). The parties agree that, for purposes of this Agreement, Customer's current account volume is considered to be accounts (the "Current Account Volume"). The parties agree that, for purposes of this Agreement, the Customer's current number of users is (the "Current Number of Users"). Customer agrees that, if Customer expands the number of Users beyond the Current Number of Users, Customer shall pay an additional per User fee, The additional per User fee for the period of twelve (12) months following the Effective Date shall be as specified in Exhibit 1 (Budget Detail/Notes) and after such date the fee shall be subject to pricing at S&S' then -current fees. Customer shall provide S&S with an annual report specifying the then current number of Users. (vii) The Application Software shall be used solely on the server environment described in Exhibit I (Budget Detaii Notes) or as agreed to in writing by S&S. Third Party Software use and limits, including with respect to the number of named or concurrent users, will be subject to the terms of each third party vendor's own license which will be entered into separately between Customer and each third party vendor. (viii) Customer shall take all reasonable steps to preserve the confidential and proprietary nature of the Application Software and Documentation. (ix) Customer shall limit access to the Application Software to employees, auditors, consultants and agents of Customer who need access to the Application Software in order for the Customer to use the Application Software as permitted herein. Customer shall inform all persons with access to the Application Software of the confidential and proprietary nature of the Application Software and of the restrictions set forth in Section 10 of this Agreement. (x) All Third Party Software is licensed to Customer solely and directly by the third party supplier of such software, not by S&S. Customer, therefore, acknowledges and agrees that, notwithstanding the Delivery to the Customer and Customer's payment to S&S for such software, Customer's rights, obligations and remedies regarding such software shall be determined solely and exclusively by the terms and conditions of Customer's agreements with the third party supplier of such software. (xi) The parties acknowledge and agree that (a) the Application Software may include embedded third party software components licensed by S&S for use in the Application Software; (b) the terms and conditions of Sections 8C, 8F, 80, 81 and 10 of this Agreement shall inure for such third party's benefit and (c) subject to the license and sublicense rights granted to S&S in connection with its use and distribution as part of the Application Software, the third party software owner retains right, title and interest in such software, including statutory enforcement rights in the event of infringement. SUPPORT SERVICES A. S&S Support Program. Beginning at Delivery of the Application Software, the Customer is required to participate in the S&S Software Maintenance and Support Program ("S&S Support Program") for a period of twelve (12) months. Upon completion of this twelve (12) month period, participation in the S&S Support Program shall be optional. Participation in this Program is required to continue to receive support from S&S. Guidelines of this S&S Support Program are defined in Exhibit 3 (S&S Software Maintenance & Support Guidelines). S&S may modify said guidelines from time to time. The Application Software and systems support services described herein will be invoiced on a prorated basis from Delivery through the end of then -current calendar year and thereafter annually in -advance on a January through December calendar year basis. Customer's participation in the S&S Support Program shall automatically renew on an annual basis and shall be valid on a calendar year basis. In the event Customer wishes to cancel participation in the S&S Support Program, Customer must notify S&S in writing on or before September 3011 of the year preceding the year in which the Customer wishes to cancel participation. S&S reserves the right to modify the S&S Support Program throughout the Term. B. Exclusions from Support Services. S&S shall not be required to perform corrective maintenance as part of its Support Services with respect to Application Software malfunctions caused by: (i) Customer's modifications to the Application Software unless performed at the direction of S&S; (ii) Customer's failure to use updates, enhancements or program error corrections; (iii) Failure to use the Application Software in accordance with this Agreement; or Systems & Software, Inc. Confidential