Hosting Service and Information System Agreement - Systems & Software Inc - Utility Billing System Implementation

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E. Maior 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. 7:"ertnin tion of S pport Scrviccs• Trwisition to New Vendor; 'NDA 'Required from New Vendor (i) 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. 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 Period"). S&S further agrees to furnish promptly and without additional charge, all labor and parts necessary to remedy any such defect that occurs during the Warranty Period; provided that S&S must receive the notice of defect during the Warranty Period. Thereafter support of the Application Software will be performed under the S&S Support Program, provided that Customer is validly participating in the S&S Support Program and is current with all fees due to S&S in connection therewith. B. S&S agrees that, to the extent permitted, it will pass through to the Customer any and all warranties that S&S receives from any manufacturer or supplier of any of the System Equipment. In the event that any component of the System Equipment has a defect in materials or workmanship or has an operating failure that occurs from normal use thereof, S&S shall use commercially reasonable efforts to work with the third -party supplier to provide a timely solution for the Customer. C. Customer acknowledges that any warranty provided by S&S is limited to the Application Software and used on the Customer's computer system listed in Exhibit 1 (Budget Detail Notes). Customer further acknowledges that modifications made to the Application Software by Customer, and not at the direction of S&S, will void S&S' warranty of the Application Software, unless specifically stated otherwise in writing by S&S. Customer also acknowledges that S&S cannot be responsible for the Customer's use of third -party software or hardware products that are used or implemented in conjunction with S&S' Information System, including Third Party Software and Hardware, and such other systems and modules where S&S did not consult on, provide, or configure the systems. D. S&S represents and warrants that all Third Party Software product manufacturers, listed in the Budget Detail, have authorized S&S to grant licenses or sub -licenses to such software. E. S&S' obligation for breach of warranty shall include timely correction or replacement of the module or component of the Application Software that fails to conform to such warranty. In no event shall S&S be liable for any breach of warranty unless notice thereof is given to S&S by the Customer during the Warranty Period. F. UNDER NO CIRCUMSTANCES SHALL S&S BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY KIND INCLUDING, BUT NOT LIMITED TO, Systems & Software, Inc.