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

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(iv) Actions beyond S&S' reasonable span of control with respect to Customer's actions which alter the turnkey implementation environment, or cause Hardware or Third Party Software malfunctions. C. Enrollment & Pricing. Customer agrees to begin participation in the S&S Support Program commencing at Delivery of Application Software. Applicable pricing for the S&S Support Program are set forth in Exhibit I (Budget Detail/Notes). These prices are subject to annual increase not to exceed CPI Index + 4% per annum. ("CPI Index" means the most recently published "Consumer Price Index for All Urban Consumers" as published monthly by the U.S. Department of Labor, Bureau of Labor Statistics. If the U.S. Department of Labor discontinues the publication of the CPI Index, or alters its publication in some other material manner, then the parties shall adopt a substitute index or procedure that reasonably reflects consumer price changes in the United States). Participation in the program will automatically renew each year unless Customer notifies S&S of its desire to discontinue their participation in the S&S Support Program on or before September 3011 of the year preceding the year in which Customer wishes to discontinue their participation. If the Customer elects to discontinue their participation in the S&S Support Program S&S shall be under no obligation to continue providing maintenance services past the period for which Customer has paid for enrollment in the S&S Support Program. D. Hardware Maintenance. Customer agrees that it will enter into a maintenance contract for the Hardware from the vendor (via S&S), unless the Customer is utilizing its own Hardware, following the applicable warranty period for the Hardware. Said warranty contract shall be effective upon the installation of the Hardware at Customer premises. Customer acknowledges and agrees that maintenance and service of the System Equipment is a matter between the manufacturer and Customer and that S&S its not obligated to service or maintain the Hardware but will only act as a liaison with the manufacturer to arrange for maintenance and service on and cannot be a party to or responsible for the Hardware manufacturer's performance under the maintenance contract. Customer acknowledges and agrees that S&S shall not be liable to the Customer for damages of any type resulting from the failure of the Hardware manufacturer to perform under the maintenance contract. S&S' limited Hardware maintenance support is described in Exhibit 3 (S&S Software Maintenance & Support Guidelines). Hardware Maintenance under this Agreement shall be provided to Customer from the vendor via S&S for a period of 3 years from Delivery of Hardware. E. Major and Minor Releases. S&S shall provide Major and Minor Releases to Customer as part of Support Services; provided, that Customer is participating in the S&S Support Program. F. Termination of Support Services; Transition to New Vendor; NDA Required from New Vendor G) In the event that Customer elects to replace the Information System with another vendor's product, S&S will work with Customer to develop S&S' role in the transition. In order to protect the proprietary interests of S&S in the Application Software, Customer agrees that any replacement vendor shall have only such access to the Application Software as necessary to assist in the actual conversion. In the event a replacement vendor indicates that access to the Application Software is necessary to implement the actual conversion, the Customer shall deliver a notice to S&S, containing an explanation for the replacement vendor's need to access the Application Software, at least fifteen (15) days prior to allowing the replacement vendor access to the Application Software. S&S shall have the right, in its discretion, to have a representative of S&S present at the Customer's facility at all times when any replacement vendor has access to the Application Software. Customer will cooperate by providing S&S with scheduling information necessary to facilitate such presence. Any replacement vendor or other outside party required to assist in transition from the Application Software to another vendor shall execute a confidentiality and non -disclosure agreement in a form reasonably satisfactory to S&S, prior to the time said vendor or other third party has access to the Application Software. (ii) Customer shall provide written notice to S&S at least sixty (60) days in advance of the conversion. Customer and S&S shall develop a plan for services that the Customer desires in connection with a transition period to its new system. In the event the transition plan requires S&S to provide services in addition to its standard support services under this Agreement (and provided that S&S agrees to provide such services), Customer shall pay S&S for any such services in accordance with S&S' then -current hourly or other applicable rates. Customer shall be responsible to pay S&S under the then current Annual Maintenance and Support Contract through the end of the calendar year in which the conversion is completed; provided that, if the conversion is completed prior to June 30 of that year, S&S will prorate the fees for said final year in such manner to require the Customer's payment of six months rather than twelve months. S&S shall continue to support the Customer as outlined in the S&S Support Program through the transition period so long as the Customer continues to pay S&S the applicable fees and is not in material breach of this Agreement. 8. WARRANTIES; DISCLAIMERS; INDEMNIFICATION A. S&S warrants that all Application Software products delivered under this Agreement will perform in material compliance with the Documentation for the period ending thirty (30) days after System Acceptance (the "Warranty Systems & Software, Inc. Confidential 6