Exhibit 10.13
PRIMUS COMMUNICATIONS CORPORATION
SUPPORT AND MAINTENANCE AGREEMENT
This Agreement is made by and between Primus Communications Corporation
("Primus"), a Washington corporation, and Customer (as defined below) and is
dated as of the date set forth below Primus' signature at the end of this
Agreement. Terms not otherwise defined herein shall have the same meanings
ascribed to them as in the Software License Agreement between the parties
executed contemporaneously with this Agreement (the "License Agreement").
Basis of Agreement.
-------------------
A. Customer has licensed the Licensed Program(s) (as defined below) from Primus
under the License Agreement and desires to obtain support and maintenance for
such programs.
▇. ▇▇▇▇▇▇ desires to provide such support and maintenance services for such
Licensed Program(s) upon the terms and conditions set forth in this Agreement.
C. Accordingly, in consideration of these premises and the terms and conditions
set forth below, Customer and Primus agree as follows:
Section 1. Definitions.
------------------------
1.1 "Customer" means 3Com Corporation and all wholly owned subsidiaries of
--------
3Com Corporation.
1.2 "Error" means any failure of a Licensed Program(s) to conform in any
-----
material aspects to its published Documentation (as defined in the License
Agreement).
1.3 "Fix" shall mean a change, either a modification or addition, to a Licensed
---
Program(s) or its published Documentation (as defined in the License Agreement)
that when made or added to a Licensed Program(s), overcomes an Error.
1.4 "Licensed Program(s)" means the software product(s) listed on Exhibit A.
-------------------
The Licensed Program(s) includes any and all Fixes, Maintenance Releases, Major
Releases or New Releases delivered to Customer under this Agreement or the
License Agreement.
1.5 "Maintenance Release" means a new release of a Licensed Program with a
-------------------
change in the ZZ component of that Licensed Program's X.YY.ZZ version number or
a Fix.
1.6 "Major Release" means a new release of a Licensed Program with a change in
-------------
the YY component of that Licensed Program's X.YY.ZZ version number.
1.7 "New Version" means a new release of a Licensed Program with a change in
-----------
the X component of that Licensed Program's X.YY.ZZ version number.
1.8 "Workaround" usually means a set of procedures that a Customer follows to
----------
circumvent or mitigate the impact of an Error. The Error still exists. A
Workaround may be provided at Primus' discretion in lieu of a Fix for a specific
Error.
Section 2. Scope of Support and Maintenance Services.
------------------------------------------------------
2.1 Services Provided. During the term of this Agreement, Primus shall support
-----------------
Licensed Program(s) by providing the services described in the following
paragraphs of this Section 2. Primus has no obligation to correct or support
Errors resulting from Customer's misuse, improper use, alteration, or damage to
Licensed Program(s), or Customer's combining or merging Licensed Program(s) with
any hardware or software not identified as compatible by Primus.
2.2 Technical Support. Primus will provide telephone technical support
------------------
regarding use of the Licensed Program(s) and resolution of Errors to Customer's
Support Contacts designated under Section 2.6.2. Primus technical support
representatives will be available by telephone Monday through Friday from 5:00
a.m. to 5:30 p.m. PDT/PST. In addition, on-call technical support staff will be
available twenty-four (24) hours per day, seven days a week. A technical
support representative will endeavor to return the Customer's call within thirty
(30) minutes of receiving the page triggered by the Customer's voice message for
High Priority situations described below.
2.3 Support Response. Primus will assign all Customer requests for Error
----------------
support one of three response priorities which will dictate the timing and
nature of the response as follows:
High Priority. A major feature/function of the Licensed Program(s) is not
-------------
working or the system integrity is at risk.
Response Goal: Endeavor to provide a Fix or Workaround within twenty-four
(24) hours of Customer's report of the problem. If the Fix or Workaround
cannot be provided within the twenty-four (24) hours Primus will dedicate
resources to the problem resolution and will inform Customer on a daily basis
of the resolution status.
Medium Priority. Customer's work flow is inhibited or a non-major
---------------
feature/function of the Licensed Programs is not working.
Response Goal: Endeavor to provide a Fix or Workaround within two (2)
business days of the Customer's report of the problem. If the problem cannot
be resolved within the two (2) business days, Primus will inform Customer on a
weekly basis of the resolution status.
Low Priority. Customer has a problem which is not seriously impacting
------------
Customer's workflow.
Response Goal: Endeavor to provide a Fix or a Workaround within five (5)
business days of Customer's report of the problem. If the problem cannot be
resolved within the five (5) business days, Primus will provide Customer with
a status evaluation regarding the ultimate resolution.
2.4 Subsequent Release(s). Primus will send Major Releases, New Versions,
---------------------
Maintenance Releases and Fixes and Workarounds (for the same platforms as
Customer's) to Customer when made generally commercially available by Primus to
its customers. Maintenance Releases will be provided to Customer pursuant to
Section 2.3 when Customer is experiencing or in Primus' sole judgment may
experience an Error. Each Major Release, Maintenance Release, New Version, Fix
and Workaround delivered by Primus under this Agreement is subject to the
provisions of the License Agreement between Primus and Customer and shall be
automatically deemed to be included under the definition of Software under the
License Agreement.
2.5 Limits of Support.
-----------------
2.5.1 Seattle Headquarters. This Agreement covers the support that Primus is
--------------------
able to provide for a Licensed Program(s) from its Seattle headquarters by
telephone, fax or electronic mail. In the event that Customer desires or
requires on-site support for a Licensed Program(s), the parties will have to
negotiate that issue separately.
2.6 Customer Cooperation and Support Contacts.
-----------------------------------------
2.6.1 Customer Cooperation. Customer acknowledges that Primus may not be
--------------------
able to resolve an Error if Customer does not use its commercially reasonable
best efforts to cooperate with and assist Primus in resolving the Error.
2.6.2 Support Contacts. Customer will designate two (2) authorized Support
----------------
Contacts and agrees that each Support Contact will be knowledgeable in all
aspects of the Customer's operating environment in which Licensed Programs are
being used.
2.6.3 3Com Corporation and Subsidiaries. 3Com Corporation warrants and
---------------------------------
guarantees to Primus that 3Com Corporation and its wholly-owned subsidiaries
(collectively, the "3Com Group") shall each perform their obligations as a
Customer in accordance with the provisions of this Agreement. 3Com Corporation
further warrants that, by executing this Agreement, 3Com Corporation binds each
member of the 3Com Group as a Customer under this Agreement.
Section 3. Support and Maintenance Fees.
-----------------------------------------
3.1 Required Coverage. The following coverage conditions must be satisfied in
-----------------
order for this Agreement to be effective: 1) All Licensed
Page 1 of 4
Program(s) licensed by Customer must be included; and 2) all Licensed Program(s)
to be covered by this Agreement on the effective date of this Agreement are the
then current Licensed Program(s) furnished by Primus.
3.2 Annual Fee. Customer shall pay an annual Support and Maintenance Fee at
----------
Primus' rate in effect at the beginning of each annual term of this Agreement.
The annual Support and Maintenance Fee in effect as of the effective date of
this Agreement is set forth in Exhibit A hereto. Payment shall be due within
thirty (30) days of invoicing by Primus. A finance charge of one percent (1%)
per month will be charged on amounts not paid within forty-five (45) days of
the due date.
3.3 Notice of Change in Annual Fee. At least sixty (60) days before the end of
------------------------------
each year of the term of this Agreement Primus shall give Customer written
notice specifying changes in the annual Support and Maintenance fee for renewal
of this Agreement for the succeeding annual term.
3.4 Additional Licensed Program(s). If after the execution of this Agreement,
------------------------------
under the License Agreement Customer increases the Authorized Users of Licensed
Program(s) or acquires additional Authorized Workstations, Customer shall pay an
additional Support and Maintenance Fee proportional to the increase in license
fees under the License Agreement pro-rated in order to reflect how much of the
annual term is then remaining in the current annual term. Customer shall pay
this additional fee to Primus within thirty (30) days after the date of the
Primus invoice therefor. A finance charge of one percent (1%) per month will be
charged on amounts not paid within thirty (30) days of the due date.
Section 4. Limitation of Liability.
------------------------------------
4.1 Excused Performance. Neither party shall be liable for, or be considered
-------------------
to be in breach of or default under this Agreement on account of, any delay or
failure to perform as required under this Agreement as a result of any cause or
condition beyond either party's reasonable control.
4.2 Disclaimer of Warranty. THIS IS A SERVICES AGREEMENT. EXCEPT FOR ANY
----------------------
WARRANTIES SET FORTH IN THE LICENSE AGREEMENT APPLICABLE TO ANY MAJOR RELEASE OR
NEW RELEASE FURNISHED HEREUNDER, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTY ARISING OUT OF COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SERVICES SHOULD BE PERFORMED
IN A PROFESSIONAL MANNER PER INDUSTRY STANDARDS.
4.3 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S CUMULATIVE
-----------------------
LIABILITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED THE
ANNUAL SUPPORT AND MAINTENANCE FEE PAID TO PRIMUS BY CUSTOMER FOR THE PERIOD IN
WHICH THE CAUSE OF ACTION ACCRUED. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF
WHATEVER KIND AND HOWEVER CAUSED, WHETHER IN CONTRACT OR IN TORT, EVEN IF EITHER
PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Section 5. Term and Termination.
---------------------------------
5.1 Term. The initial term of this Agreement shall begin on the effective date
----
of the License Agreement and shall end on the first anniversary of the effective
date. Renewals of this Agreement shall be for a term of twelve (12) months and
shall begin on the ending date of the preceding term.
5.2 Renewal. This Agreement shall be automatically renewed for a succeeding
-------
term at the end of each current term unless Customer provides Primus with thirty
(30) day prior written notice before the end of the term of Customer's decision
to not renew this Agreement. In no event, however, shall the term of this
Agreement extend beyond the term of the License Agreement.
5.3 Termination. This Agreement will terminate: 1) upon the expiration or
-----------
termination of the License Agreement; 2) upon the expiration of the then current
term of this Agreement and timely receipt by Primus of Customer's decision to
not renew this Agreement; 3) upon failure of Customer to pay Support and
Maintenance Fees when due; provided, however, that if Customer is in breach for
non-payment, termination shall not occur automatically, but only if Primus, in
its sole and absolute discretion, provides Customer with written notice of
termination; or 4) upon thirty (30) days prior written notice if either party
has materially breached the provisions of this Agreement and has not cured such
breach within such notice period. Termination of this Agreement for any reason
shall not relieve Customer from any remaining obligations under this Agreement,
including but not limited to, the payment of any amounts due nor shall it affect
any additional remedies that Primus may have at law or in equity. If Primus
terminates this Agreement other than in circumstances in which Customer is in
breach of any provision of this Agreement, Primus shall refund to Customer that
portion of the annual support and maintenance fees that is attributable to the
unused number of days of the then current annual term, calculated on a day by
day basis.
Section 6. Miscellaneous.
-------------------------
6.1 Notices. Any notice or any other communication under this Agreement
-------
(excluding Customer's requests for support) given by either party to the other
shall be deemed to be properly given if given in writing and delivered in person
or mailed (return receipt requested), properly addressed and stamped with the
required postage, or sent via confirmed facsimile and confirmed by first class
mail.
6.2 Assignment. Neither party shall assign any of its rights under all or any
----------
part of this Agreement, directly, by operation of law, or otherwise, without the
prior written consent of the other party, which shall not be unreasonably
withheld. Subject to the foregoing restriction of assignment by Customer, this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns.
6.3 Non-waiver. Any failure by either party to insist upon or enforce
----------
performance by the other party of any provisions of this Agreement or to
exercise any rights or remedies under this Agreement or otherwise by law shall
not be construed as a waiver or relinquishment of either party's right to assert
or rely upon the provision, right, or remedy in that or any other instance;
rather the provision, right or remedy shall be and remain in full force and
effect.
6.4 Attorney's fees and Expenses. In the event of any proceeding under this
----------------------------
Agreement, the prevailing party in any such proceeding shall be entitled to
reasonable attorney's fees and expenses, including the full cost of any
arbitration, trial and any appeal.
6.5 Applicable Laws; Forum. This Agreement shall be interpreted, construed,
----------------------
and enforced in accordance with the laws of the State of Washington without
reference to its choice of law rules and not including the 1980 U.N. Convention
on Contracts for the International Sale of Goods. Plaintiff party may only
commence or prosecute a suit, proceeding, or claim to enforce the provisions of
this Agreement relating to the Software, or other items furnished under this
Agreement, or otherwise arising under or by reason of this Agreement, in a court
of competent jurisdiction in the state of the defendant party, Washington if
Primus is the defendant party and California if Licensee is the defendant party.
6.6 Entire Agreement. This Agreement constitutes the entire agreement, and
----------------
supersedes any and all prior agreements and representations, whether oral or
written, between Primus and Customer relating to the subject matter contained
herein. This Agreement may not be amended except by a written instrument
executed by both parties.
6.7 Exhibits. The Exhibit listed below shall form part of this Agreement:
--------
Exhibit A - Product Support and Maintenance Fee Schedule
Page 2 of 4
IN WITNESS WHEREOF, the parties hereto each acting with proper authority have
executed this Agreement as indicated below.
------------------------------------------------------------------------------------------------------------------------------------
PRIMUS COMMUNICATIONS CORPORATION CUSTOMER: 3COM CORPORATION
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Tel: ▇▇▇-▇▇▇-▇▇▇▇ Tel:
------------------------------------------------------------------------------------------------------------------------------------
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax:
------------------------------------------------------------------------------------------------------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name (Print): /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------------------------------------------------------------------------------------------
Title: President and Chief Executive Officer Title: SVP-CIO
------------------------------------------------------------------------------------------------------------------------------------
Date: 6-27-97 Date: 6/25/97
------------------------------------------------------------------------------------------------------------------------------------
Page 3 of 4
PRIMUS COMMUNICATIONS CORPORATION
SUPPORT AND MAINTENANCE AGREEMENT
EXHIBIT A
PRODUCT SUPPORT AND MAINTENANCE FEE SCHEDULE
-------------------------------------------------------------------------------------------------
PRODUCT % OF PURCHASE SUPPORT AND
PURCHASE PRICE PRICE MAINTENANCE FEE
-------------------------------------------------------------------------------------------------
SolutionBuilder [*]% $[*] (See Note 1)
-------------------------------------------------------------------------------------------------
SolutionPublisher [*]% $[*] (See Note 1)
-------------------------------------------------------------------------------------------------
Note 1: Customer shall pay Primus support and maintenance fees of $[*] for
the period commencing September 1, 1997, and ending May 31, 1998. Primus shall
provide support and maintenance to Customer under this Agreement at no charge,
for the period commencing on execution of this Agreement, and ending on August
31, 1997. Payment dates and amounts are specified in exhibit A to the Software
License Agreement between the parties, of even date herewith (the "Software
License Agreement").
ADDITIONAL ORDERS
-----------------
If Customer exercises the Option granted to it by Primus under the Software
License Agreement and acquires rights for additional Authorized Workstations
and/or additional Authorized SP Users pursuant to the Option, the annual Support
and Maintenance Fees for the additional Authorized Workstations and/or
additional Authorized SP Users shall equal [*] percent [*]% of their purchase
price. (The terms "Option," "Authorized Workstations" and "Authorized SP Users"
shall have the same meanings ascribed to them as in the Software License
Agreement.)
This exhibit is hereby approved and accepted:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name (Print): ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------------------------------------------------------------------------
Title: President and Chief Executive Officer Title: SVP-CIO
-----------------------------------------------------------------------------------------------------------------
Date: 6-27-97 Date: 6/25/97
-----------------------------------------------------------------------------------------------------------------
[*] * omitted, confidential material, which material has been separately filed
with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
Page 4 of 4