SOFTWARE MAINTENANCE AGREEMENT January 16, 1997 I. DEFINITIONS. The following are definitions of various terms to be used throughout this Agreement. A. "SUPPORTED SOFTWARE" means the computer program(s) designated by you on this form. B. "PRODUCT UPDATE" means a revision, enhancement, or new release of the software or user manuals designed to correct an error or improve the product. C. "SUPPORT CONTACT" means the authorized individual(s) specified on this agreement with whom DCS communicates when providing support services. The SUPPORT CONTACT may be you, your employee, or a consultant providing services directly to you. The SUPPORT CONTACT should be knowledgeable about how the SUPPORTED SOFTWARE is being used and the operating environment. D. A "SOFTWARE PROBLEM" is defective software distribution media and/or software function which is inconsistent with the user manual(s). II. SERVICES PROVIDED BY DESCRIPTIVE COMPUTER SYSTEMS (DCS) A. SOFTWARE MAINTENANCE LEVEL I - TIME AND MATERIALS This service provides: 1. WRITTEN PROBLEM ASSISTANCE. Software Maintenance customers may submit written requests for software assistance on forms provided by DCS by either U.S. Mail or FAX. DCS will respond within two (2) business days after DCS has received the written request. 2. MODEM SUPPORT. DCS can get on your system via modem to do software maintenance directly on your computer at DCS's option. 3. E-MAIL. DCS will provide an E-MAIL address to send requests. DCS will respond back via E-MAIL including programs at DCS's option. Whenever the SUPPORT CONTACT sends E-MAIL, the SUPPORT CONTACT must also call and leave a message that E-MAIL has been sent. 4. TELEPHONE ASSISTANCE. The SUPPORT CONTACT can call the Software Maintenance Center and request telephone assistance with a SOFTWARE PROBLEM. DCS may require that the request be put in writing. DCS will respond within two (2) business days. B. SOFTWARE MAINTENANCE LEVEL II - MONTHLY SUPPORT This service provides: 1. SOFTWARE MAINTENANCE LEVEL I services. 2. ENHANCED TELEPHONE ASSISTANCE. The SUPPORT CONTACT will be given the toll-free telephone number of the Software Maintenance Center. By calling this number, the SUPPORT CONTACT can contact a trained Support Analyst to ask questions or seek advice relating to the use of SUPPORTED SOFTWARE. The Software Support Analyst will assist the customer in utilizing their SUPPORTED SOFTWARE, and in identifying and providing a work- around, if possible, for SOFTWARE PROBLEMS found in SUPPORTED SOFTWARE. Telephone assistance shall be available weekdays from the hours of 9 am to 5 pm (Eastern Time) excluding holidays. Calls that are identified as urgent will be responded to within four (4) working hours of receipt. Calls not identified as urgent will be responded to within two (2) business days. III. LIMITATIONS OF SOFTWARE MAINTENANCE A. SUPPORTED SOFTWARE versions. DCS will provide support for only the current supported version and will only support the previous version for a period of six (6) months following announcement of the new version. When the six (6) month period expires, the customer must purchase the PRODUCT UPDATE to continue to be supported. Software Maintenance may not be purchased or renewed for software that is not the current version. B. The following are not supported under this Agreement: 1. Altered or modified software object code. 2. Consulting services, including applications design or recommendation, recovery of lost data, or any custom purchase recommendations. 3. SOFTWARE PROBLEMS created by your negligence or fault. 4. SOFTWARE PROBLEMS resulting from any hardware malfunction. 5. SOFTWARE PROBLEMS that do not significantly impair or affect the operation of SUPPORTED SOFTWARE. 6. SUPPORTED SOFTWARE used on a computer system other than that it is licensed for. 7. Support of software not specified as SUPPORTED SOFTWARE below and thus not covered under this Software Maintenance Agreement. C. Extraordinary expenses. DCS reserves the right to charge for unusual or excess telephone, shipping, handling, media or user manual expenses in connection with Software Support to be provided hereunder. In all cases, DCS shall notify you of these costs in advance. IV. CUSTOMER RESPONSIBILITIES. Customer agrees to limit use of the Software Maintenance services to occasions when the SUPPORTED SOFTWARE fails to work as set forth in the user manuals or the user manuals are unclear. Questions concerning adaptation or custom modification of the SUPPORTED SOFTWARE are not covered by this Agreement. Customer agrees to furnish descriptions of malfunctions in the form requested by DCS's support staff. Customer also agrees to assist DCS's efforts to duplicate the SOFTWARE PROBLEM. V. LICENSE AGREEMENT. All PRODUCT UPDATES, user manuals (or portions thereof), media, and services provided hereunder are subject to all of the terms and conditions of our CUSTOMER LICENSE AGREEMENT, including but not limited to the terms of the LIMITATION OF LIABILITY contained therein. VI. EXTRAORDINARY CIRCUMSTANCES. DCS shall not be responsible for failure to fulfill or delay in fulfilling its obligations under this Agreement due to causes beyond its control. VII. TERM AND TERMINATION OF AGREEMENT. You must complete and execute this Software Maintenance Agreement form before this Agreement will take effect. This Agreement will remain in effect for the period of one (1) year from the effective date of this Agreement, unless terminated by either party by reason of and upon any violation of the terms and conditions herein. DCS may, at DCS's option, terminate this Agreement if you default on any payment due to DCS hereunder. VIII. MISCELLANEOUS. You may not assign this Agreement to a third party without the prior written consent of an officer of DCS. This Agreement and the CUSTOMER LICENSE AGREEMENT shall be the only Agreements between the Customer and DCS with respect to the SUPPORTED SOFTWARE. They cannot be modified or amended unless a written amendment or modification is executed by an officer of DCS. These Agreements supersede all prior agreements, written or oral, relating to the SUPPORTED SOFTWARE. The laws of New Jersey shall govern the validity of these Agreements, the construction of their terms and the interpretation of the rights and duties of the parties. If any legal action is brought by either party to these Agreements regarding their subject matter, the prevailing party shall be entitled to recover, in addition to any other relief, reasonable attorneys' fees and costs. IX. SUPPORTED SOFTWARE: ______________________________________. X. SUPPORT CONTACT: __________________________________________. XI. FEES. A. LEVEL I - TIME AND MATERIAL. 1. The time fee is $39 per quarter (1/4) hour with a one (1) hour minimum charge per SOFTWARE PROBLEM. 2. The material fee is actual cost plus markup. All items listed above as "Extraordinary expenses" are chargeable. In addition, DCS will charge for all telephone, shipping, handling, media and/or user manual expenses in connection with this Agreement. B. LEVEL II - MONTHLY SUPPORT. 1. Monthly telephone and modem support for DCS software is optional and is the lesser of two percent (2%) of the then current license fee or $300 per month for the first ten (10) users and $15 per month for each additional user. 2. There is a minimum of $50 per month for each cpu or server location. C. The license fees and monthly support fees are contingent upon the number of users that can access the system. When additional users are added to the system, the additional fees are due as detailed on the then current LICENSE FEES schedule. D. Modem support requires both a Hayes compatible 9600 baud modem and Blast communication software. E. All prices are F.O.B. point of origin. XII. ARBITRATION Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. XIII. AGREEMENT. I agree to the above: _____ LEVEL I - TIME AND MATERIAL. or _____ LEVEL II - MONTHLY SUPPORT with the ongoing monthly charge of ___________. I understand software maintenance starts __/__/__ with that payment due __/__/__. __________________________________________________ ________ signed date