SPARROW Support Program Agreement for
(Customer name)
(Agreement Number)

1. AGREEMENT AND ATTACHMENTS: This Customer Support Program Agreement ("Agreement"), between the Customer and Sparrow sets forth the terms and conditions by which SPARROW Support Program Services will be delivered. This Agreement also includes Support Program Descriptions which are incorporated by reference.

"Program Descriptions" set out the Support Program Agreement details including: the associated periodic fee ("Fee"); the identify of systems covered by the Support Program ("Covered Systems"); the designated primary and secondary customer contacts ("Contacts"); the location of the Covered Systems ("Installation Address") and bill-to address (also for purposes of Notice); the date upon which the Schedule will commence ("Schedule Effective Date"); and the term of the Schedule ("Effective Period").

SPARROW may modify the Program Descriptions and Fees at any time, upon thirty (30) days' prior written Notice, provided that such modifications shall not apply to systems already covered by the Program, until the expiration of the current Effective period.

2. SUPPORT REQUESTS: Only Contacts may initiate a support request with SPARROW. Each Contact must possess the necessary expertise to diagnose and resolve system hardware and system software malfunctions.

3. SCHEDULE RENEWAL AND TERMINATION: A Support Program Agreement may be renewed for successive one year periods upon receipt by SPARROW of a purchase order at least sixty (60) days prior to expiration of the then current Effective Period. Either party may terminate a renewal Schedule by providing sixty (60) prior written Notice.

4. TERM AND TERMINATION: This Agreement commences as of the date indicated in the signature block below and shall continue in force until the expiration. Either party may terminate this Agreement (1) immediately, by Notice, upon material breach by the other party, if such breach cannot be remedied; and (b) by Notice, if the other party fails to cure any material remediable breach of this Agreement within thirty (30) days of receipt of Notice of such breach. Rights and obligations under this Agreement which by their nature should survive, will remain in effect after termination to expiration hereof.

5. EXCLUSIONS: SPARROW's obligation to provide hardware and/or software support under this Agreement is contingent upon proper use and care of Covered Systems. SPARROW shall be under no obligation to provide support under this Agreement, should such support be required because (a) improper use, abuse, accident, or neglect, (b) alterations, modifications, or unauthorized attempts to repair Covered Systems, (c) causes external to the Covered Systems, such as failure to maintain environmental conditions within the operating range specified by the manufacturer of the Covered Systems, (e) attachment of the Covered Systems to equipment which has not been approved by SPARROW, or (f) failure to maintain Covered Systems at SPARROW-specified minimum configuration or release level. Any support required as a result of such events or occurrences shall be charged and paid by customer at SPARROW's current published rates.

6. CUSTOMER'S OBLIGATIONS: Customer shall perform routine hardware preventive maintenance and cleaning. Prior to requesting support from SPARROW, Customer shall comply with all published operating and troubleshooting procedures. If such efforts are unsuccessful in eliminating the malfunction, Customer shall promptly notify SPARROW of the malfunction. Customer shall establish and maintain a procedure external to Covered Systems for reconstruction of lost or altered files, data, or programs. Customer shall provide SPARROW with (a) reasonable and safe access to Covered Systems; (b) adequate working space and facilities at the Installation Address; (c) access to and use of all facilities of Customer necessary for SPARROW to service Covered Systems; and (d) cooperation in maintaining a site activity log.

7. MOVEMENT OF COVERED SYSTEMS: Customer shall give SPARROW at least thirty (3) days' Notice, prior to any movement of Covered Systems specifying the new location, in order to prevent any interruption of support. Support of Covered Systems moved by Customer to a new Installation Address is subject to local availability and may be subject to additional fees. If requested by Customer, SPARROW may supervise the movement of Covered Systems at SPARROW's then current published time and material rates. If Covered Systems are not in good operating condition after a relocation not supervised by SPARROW, Customer shall pay current published time and material rates for all labor and materials required to place Covered Systems in good operating condition.

Services, updates, patches, and new software releases provided hereunder, including technical data and media containing such technical data, are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export or import services provided hereunder after delivery to Customer.

8. DISCLAIMER OF WARRANTY: ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING AND IMPLIED WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ARE HEREBY DISCLAIMED, EXCEPT AS SPECIFIED IN THIS AGREEMENT OR WHERE SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. THE PARTIES EXPLICITLY AGREE THAT, UNLESS SPECIFICALLY REFERRED TO IN THIS AGREEMENT AS A GUARANTY OR WARRANTY, NO ORAL TO WRITTEN STATEMENT AND NOTHING IN THE PROGRAM DESCRIPTIONS TO ANY OF THE ATTACHED PAGES SHALL BE CONSTRUED OR RELIED UPON AS AN EXPRESS OR IMPLIED WARRANTY.

9. LIMITATION OF LIABILITY: Except for breach of the Software license or confidentiality obligations and/or where prohibited by law, and even if the exclusive remedies provided in this Agreement fail of their essential purpose, each party's liability to the other for claims relating to this Agreement, whether for breach, including breach of warranty, or in tort, shall be limited to the Fee paid by the Customer to SPARROW for Support during the three (3) months immediately preceding the date upon which the claim arose or one hundred thousand dollars ($100,000.00), whichever is less. In no event will either party be liable for any Agreement (including but not limited to loss of profits, use, data, or other economic advantage or any reprocurement or data reconstruction costs), however it arises, whether for breach or termination of this Agreement, including breach of warranty, or in tort, even if that party has been previously advised of the possibility of such damage.

10. FORCE MAJEURE: SPARROW shall not be liable for nonperformance of this Agreement, if such nonperformance is caused by events or conditions beyond its control.

11. GENERAL: Payment terms are net thirty (30) days. All Fees and charges are exclusive of all sales and other taxes based upon the value of services or Covered Systems and Customer shall be responsible for payment of all such taxes.

This Agreement is the parties' entire agreement relating to the provision of support for Covered Systems. It superseded all prior to contemporaneous oral to written communication, proposals and representations with respect to its subject matter and prevails over any conflicting or additional terms of this Agreement. No modification of this Agreement will be binding, unless in writing and signed by a duly authorized representative of each party. Any waiver of any provision of this Agreement, or a delay by either party in the enforcement of any right hereunder, shall neither be constructed as a continuing waiver, nor create an expectation of nonenforcement, or that or any other provision or right.

Neither party shall assign or otherwise transfer any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that SPARROW may assign its right to payment and/or may assessing this Agreement to an affiliated company and/or may subcontract the provision of support hereunder.

All Notices must be in writing and delivered either in person or by a means evidenced by delivery receipt to the address specified on the Schedule. Such Notice will be effective upon receipt.

Any action related to this Agreement will be governed by the laws in the jurisdiction in which support in dispute is provided to Customer.

This Agreement must be signed by authorized representatives of Customer and SPARROW prior to the commencement of support.

The parties have read this Agreement and the pertinent Program Descriptions, and agree to be bound thereby.

The Effective Date of this Agreement is as of ______/______/______.
month day year

__________________________________ _________________________________
SPARROW CUSTOMER

 

___________________________________ _________________________________
BY BY

___________________________________ __________________________________
PRINTED NAME TITLE PRINTED NAME TITLE

 

SPARROW Program Description
for
(Customer name, installation)

1. Program Services: The SPARROW Customer Support Program provides technical support, software upgrades and regular maintenance for systems covered under a Support Program Agreement.

Requests for technical support may be made via electronic mail, telephone, or FAX.

Electronic Mail Support - support@sparrowcorp.com : Technical support is available via e-mail. The customer should provide his or her name, the Support Program Agreement Number, and the e-mail address to which the reply should be sent.

Telephone Support - (601) 324-0982: Technical support is provided via phone between the hours of 8:00 a.m. and 5:00 p.m. CST Monday through Friday. The customer should request technical support and provide his or her name and the Support Program Agreement Number.

FAX Support - (601) 324-3231: Technical support is provided via FAX between the hours of 8:00 a.m. and 5:00 p.m. CST Monday through Friday. The customer should complete the technical support form or provide his or her name, the Support Program Agreement Number, and the FAX number to which the reply should be sent.

Software Upgrades: Early releases software upgrades to Kmax and the MDR Library are provided during the tern of this agreement. This includes both incremental and major version releases. Upgrades to Kmax instrument software are also provided as they become available.

On-Site Maintenance: On-site maintenance is provided on a regular (annual) basis and at other times as needed. Every effort should be made to resolve malfunctions via the technical support channels described above. If an on-site visit is required, a technician will be available within 48 hours of the site visit approval.

2. Covered System: This agreement covers ( list of products covered). Failure of equipment or Software not provided by SPARROW should be handled via the manufacturers warranty or service program.