RETAINING CONCEPT INTERACTIVE INC. FOR THE IMPLEMENTATION OF THE CONCEPT SUITE SOLUTION
THIS AGREEMENT is made as of
(but if no specific date is inserted, the date of this Agreement shall be
the date of the execution and delivery of the Schedule A between the parties therein
that references its attachment as Schedule A to the Customer Agreement found at http://www.schoolbundle.ca/062017-agreement/customer-agreement.html
a corporation incorporated pursuant to the laws of the Province of Ontario, Canada
A. Concept and the Customer have executed and delivered or are deemed to have executed and delivered a Customer Agreement in relation to the implementation by the Customer of the Concept Suite Solution, all of the provisions of which Customer Agreement shall apply to and be incorporated by reference into this Agreement; and
B. The Customer wishes to retain Concept to provide additional support services in relation to the Concept Suite Solution, all as described in and subject to the terms below;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby irrevocably acknowledged, the parties agree as follows:
Capitalized terms used in this Agreement or in any Schedule to this Agreement, except as specifically defined herein, shall have the respective meanings ascribed to them in the Customer Agreement between the parties. In this Agreement and in any Schedule or Exhibit to this Agreement, the following words have the following meanings:
1.1 "Business Hours" means the hours between 8:30 a.m. and 5:30 p.m. (Eastern Standard Time) on Business Days.
1.2 "Customer Agreement’ means the duly executed Customer Agreement, or the Customer Agreement that is deemed to have been duly executed, between Concept and the Customer in relation to the Concept Suite Solution, and if there is no such duly executed agreement and no such agreement that is deemed to have been duly executed, shall be deemed to mean the form of customer agreement in general use by Concept for the Concept Suite Solution as at the date of this Agreement.
1.3 “Customer Support Manager” or “CSM” has the meaning ascribed in Section 5.1.
1.4 "Problem" means a Replicable error in the Software that causes it not to operate substantially in accordance with the related documentation for the Software as the same may be amended from time to time.
1.5 “Problem Support Services” has the meaning ascribed in Section 3.
1.6 "Replication" means a documented sequence of steps, set of environmental factors, or other factors that when repeated reliably reproduce a Problem and "Replicable", "Replicate", "Replicating" and "Replicated" have corresponding meanings.
1.7 “Statement of Work” has the meaning ascribed in Section 4.
1.8 “Support Level” means the Support Level (in terms of pre-purchased hours) selected by the Customer on Schedule A for each one (1) year Term of this Agreement.
1.9 “Technical Account Manager” or “TAM” has the meaning ascribed in Section 4.1.
1.10 “Term” has the meaning ascribed in Section 2.1.
1.11 "Workaround" means a solution or fix by Concept that restores operational capability of the Software without severely compromising the performance of the Software or the integrity of the related system or data, and may include changes to configuration parameters or operational processes.
2. TERM, INVOICING AND FEES
2.1 Term. The term of this Agreement is one (1) year (“Term”). The initial Term shall commence on the date of the later of the execution and delivery or deemed execution and delivery of this Agreement or the date the first module of the Customer’s installation is delivered to a production environment. The Term cannot be cancelled or terminated at any time prior to the end of such Term. The Term shall automatically terminate on its annual anniversary unless renewed as hereinafter provided.
2.2 Renewal. Should the Customer wish to renew the premier Support Services Agreement when it automatically terminates on its annual anniversary for an additional one (1) year renewal Term, the Customer shall provide to Concept not less than thirty (30) days before the expiry of the then current Term a purchase order for an additional one (1) year renewal Term of premier Support with a completed Schedule A selecting the Support Level required by the Customer for the renewal one (1) year Term. Upon receipt of such a purchase order, Concept shall deliver to the Customer a written invoice for the annual Fee applicable for the renewal Term (which Fee may be increased from the Fee payable for the preceding Term). Such annual Fee for the renewal Term must be paid in full prior to the commencement of the renewal one (1) year Term in order for the premier Support to continue without interruption, failing which the commencement of the renewal Term will be delayed until payment of such annual Fee is received by Concept. With respect to the renewal, the Customer and Concept are agreeing to be bound by and are deemed to have executed and delivered the premier Support Services Agreement found at the time of renewal at http://www.schoolbundle.ca/premiersupportservicesagreement. The renewal Term cannot be cancelled or terminated at any time prior to the end of such renewal Term. The renewal Term shall automatically terminate on its annual anniversary unless renewed as herein provided.
2.3 Pricing and Invoicing. premier Support is a prepaid service, the Fee for which is payable annually in advance in a single annual instalment. For the initial Term, the annual Fee is payable on the date of the execution and delivery or deemed execution and delivery of this Agreement. In consideration of the agreement by Concept to provide to the Customer the premier Support as set forth in this Agreement for the Term at the Support Level selected by the Customer on Schedule A, the Customer agrees to pay to Concept in advance the annual Fee set forth in Schedule A hereto, without setoff for any reason. Concept shall deliver to the Customer a written invoice for the annual Fee and written invoices from time to time for any other amounts due under this Agreement and the Customer agrees to pay to Concept all such invoices in accordance with the provisions of the Customer Agreement.
2.4 Unused premier Support. In the event that the Customer shall not fully utilize the hours for the Support Level selected on Schedule A during any one (1) year Term of this Agreement, the unused support hours shall be forfeited without any compensation or credit to the Customer and shall not be carried over into any subsequent or renewal Term.
2.5 Excess premier Support. In the event that the Customer shall exceed the hours for the Support Level selected on Schedule A during the one (1) year Term of this Agreement, the excess support hours shall be billable at the blended hourly rate set out on Schedule A and Concept shall deliver to the Customer a written invoice for the excess hours and the Customer agrees to pay to Concept all such invoices in accordance with the provisions of the Customer Agreement.
2.6 Reporting. The Customer may request from Concept at any time a written report as to the number of Support Level pre-purchased hours for the relevant Term, the number of such hours used during the Term to the date of such report and the number of unused hours remaining to the end of the Term.
3. PROBLEM SUPPORT SERVICES PROVIDED BY CONCEPT
For so long as the Customer Agreement remains in effect between the parties and the Customer is not in default in payment thereunder and hereunder, Concept will provide to the Customer during the Term hereof (and any renewal as may be agreed in writing between the parties) the following support services in relation to Problems (“Problem Support Services”):
3.1 Hours. Concept will provide to the Customer during Business Hours (except as otherwise indicated below) Problem Support Services as indicated below in respect of the attempted resolution of Problems relating to the Software. Email or on-callback support will also be available from Concept on Sundays to Thursdays from 9:00 pm to 5:00 am (Eastern Standard Time).
3.2 Problem Support Responsibilities of the Customer. The Customer will, in the first instance and before contacting Concept for Problem Support Services, use reasonable efforts to resolve support needs of the Customer and Service Users in respect of Problems in relation to the Software, using its own trained representatives who shall be responsible for:
3.2.1 gathering all relevant information related to the support need;
3.2.2 providing to Service Users all releases and documentation made available to the Customer through Concept;
3.2.3 reviewing existing documentation and other materials and resources provided to the Customer through Concept; and
3.2.4 attempting to determine the factors required in order to Replicate the Problem encountered by the Customer or Service Users.
If the Problem remains unresolved following such efforts, the Customer may initiate a Problem Support Service request with Concept. The Customer will be responsible for providing all reasonable information requested by Concept to assist Concept in diagnosing the Problem, including working with Concept to Replicate the Problem. Concept will provide Problem Support Services only to the Customer and, unless otherwise agreed in writing with the Customer, will have no obligation to deal directly with any Service User. Concept may request remote access to the Customer's computer systems to perform diagnostic and troubleshooting activities and the ability of Concept to resolve Problems may depend upon the Customer's consent to such access.
3.3 Concept’s Response to Problems. Concept, acting reasonably, shall determine the priority level of a reported Problem based on the impact of the Problem on the Customer and End Users. Response actions taken by Concept are based upon the assessment by Concept of the priority level of the reported Problem. Concept will use reasonable efforts to respond to and resolve the reported Problem, but Concept does not represent or warrant that all Problems can be resolved by it or will be responded to or resolved within any particular timeframe. Response activities are dependent upon the submission to Concept of the details of the Problem with all necessary information requested by Concept. If the Customer cannot provide all necessary information requested by Concept, or doesn’t provide appropriate resources to assist in resolution of a Problem, or if a Problem can’t be Replicated, Concept reserves the right to downgrade the priority level of the Problem. A Problem is considered resolved if Concept has provided to the Customer a reasonable solution, or a Workaround or a release that resolves the Problem.
3.4 Customer Resources. To assist Concept in the attempted resolution of Problems, Concept may require the Customer to, among other things, provide appropriate resources to perform network traces, capture error messages, collect configuration information, perform data reviews, change product configurations, install new versions of the Software or new components, and/or modify its processes.
3.5 Exclusions. Concept has no obligation to provide Problem Support Services or any releases or Workarounds in respect of:
3.5.1 use of the Software by the Customer or any Service User in a manner other than as permitted by the related documentation for the Software, or in environments, configurations or with hardware or software not identified in such documentation;
3.5.2 modifications, changes or enhancements to the Software made by any person other than Concept or under the direction of Concept;
3.5.3 Problems that cannot be Replicated by Concept, acting reasonably, using information provided by the Customer; or
3.5.4 any specific Major Release (and all included Minor Releases) for which Concept has ceased to provide maintenance and support services to all licensees generally, including the Customer.
3.6 Contacts. The Customer Support Manager will be the Customer’s primary contact in relation to all support matters and will be responsible for initiating Problem Support Service requests on behalf of the Customer to Concept under this Agreement. All Problem Support Service requests shall be directed to firstname.lastname@example.org.
3.7 Utilization of Support Level (Hours). Where a Problem is determined by Concept, acting reasonably, to be the fault of the Customer and not the fault of Concept or Concept’s Software, the hours expended by Concept in resolving or attempting to resolve the Problem will be recorded by Concept and deducted from the relevant prepaid Support Level (hours) selected by the Customer on Schedule A.
4. OTHER SUPPORT SERVICES AVAILABLE FROM CONCEPT
For so long as the Customer Agreement remains in effect between the parties and the Customer is not in default in payment thereunder or hereunder, the Customer may at any time and from time to time during the Term hereof (and any renewal hereof as may be agreed in writing between the parties) request additional support services, including but not limited to any of the services listed below. Upon receipt of such a request, Concept and the Customer shall work together and endeavour in good faith to reach agreement on the scope of work required, for which Concept shall provide a non-binding estimation of the hours required by Concept to perform such work and any additional costs to be invoiced separately to the Customer (for example, on-site travel, accommodation and related costs), all of which shall be set forth by Concept in writing in a “Statement of Work”. Upon agreement between the parties regarding all of the terms and scope of work and the non-binding estimate of the hours required, such Statement of Work shall be executed by both parties and shall be attached and numbered as a consecutive Exhibit to this Agreement and shall be sufficient authorization for the implementation by Concept of the work referred to therein and the deduction by Concept of the number of hours actually expended by Concept in performing the work from the relevant prepaid Support Level (hours) selected by the Customer on Schedule A. Until a Statement of Work has been executed by both parties, Concept shall not schedule any resources or commence any work thereunder. In the event of any conflict or inconsistency between the provisions of a Statement of Work and this Agreement, the provisions of this Agreement shall supersede and prevail, and the provisions of this Agreement shall apply to and be incorporated by reference into every executed Statement of Work.
4.1 Support Account Management. Support account management services are available to help coordinate the support and services relationship between Concept and the Customer. Concept will notify the Customer of its assignment of a “Technical Account Manager” (“TAM”) as the Customer’s advocate within Concept who can facilitate a team approach within Concept that can provide Workshops, Problem Support Services, and other Support Assistance. The TAM also serves as the point of information delivery and provides Customer feedback to Concept regarding the premier Support. Available services may include:
4.1.1 Planning and Resource Facilitation. The Customer may request in writing that an orientation and planning session be conducted with the Customer’s management and staff via teleconference or onsite. The purpose of such a meeting is to discuss the premier Support available, gather input regarding the Customer’s support needs, and jointly plan the Customer’s use of the premier Support under this Agreement;
4.1.2 Status Meetings and Reporting. The Customer may request in writing that a status report be prepared on a regular basis, to summarize the Services delivered during the previous reporting period. Status meetings may also be conducted via teleconference or onsite to discuss Service activities, monitor Customer satisfaction levels, and discuss actions or adjustments that may be required. The Customer may in writing also request customized reporting from time to time; and
4.1.3 Escalation Management. The TAM can closely manage support issues that require escalation to other resources within Concept to expedite resolution.
4.2 Workshops. Workshops can be made available to help the Customer reduce the number and minimize the impact of Problems related to Concept and third party products experienced by the Customer. At any time during the Term of this Agreement, the Customer may request in writing that Concept conduct instructor-led training sessions that emphasize the Concept and related technologies at the Customer’s facility or online. If the Customer elects to have a Workshop conducted at the Customer’s facility, Concept will provide the needed specifications for the Customer to configure its environment prior to the delivery of the Workshop.
4.3 Infrastructure Support Assistance. At any time during the Term of this Agreement, the Customer may in writing request infrastructure support assistance, which may include informal advice, guidance and knowledge transfer intended to help the Customer manage the Concept and related technologies in ways that avoid common support issues and decrease the likelihood of system outages. These services may also help to resolve Problems that are not attributed to Concept products, including:
4.3.1 Errors caused by the Customer’s networking infrastructure, hardware, Customer or third party software, operational procedures, architecture, IT service management process, system configuration or human error; and
4.3.2 Multi-vendor coordination interoperability problems. At the Customer’s written request, Concept will collaborate with third-party software suppliers to help resolve complex multi-vendor product interoperability issues.
4.4 Reviews. At any time during the Term of this Agreement, the Customer may request in writing that a specific review be conducted by Concept. Any such Customer request for a review and the applicable data must be submitted to Concept not less than sixty (60) days prior to the end of the applicable Term of this Agreement. By way of examples only, the Customer may request a review to address design, development, deployment and supportability issues, including the following:
4.4.1 Supportability Review is an assessment of a current implementation or planned implementation of a specific system, migration, or upgrade and may include recommendations for a more supportable environment;
4.4.2 Technology Architecture Review examines the alignment and planned deployment of technology intended to address the Customer’s business goals or problems with a focus on determining how Concept’s technology offerings best fit within the Customer’s overall technology architecture;
4.4.3 Application Design Review examines application or product component architecture, focusing on the design or components for deployment in a multi-tiered architecture model. This review specifically addresses issues including compliance with Concept’s component design guidelines, effective distributed component communication techniques, and efficient use of runtime services;
4.4.4 Code Review examines the specific, critical software components in the Customer’s applications for existing or expected problems. Concept will work with the Customer to choose the appropriate components for analysis; and
4.4.5 Custom Review that can be crafted to meet the Customer’s specific needs as they relate to the use of Concept’s technologies.
4.5 Development Support Assistance. At any time during the Term of this Agreement, the Customer may in writing request development support assistance to assist the Customer’s creation and development of internal applications on the Concept platform that integrate third-party technologies.
4.6 Change to Support Level. The Customer may in writing request an increase, but not a decrease, to the Support Level on Schedule A at any time during the Term of this Agreement. Concept will price such increase in the Support Level at the prevailing price for such services and notify the Customer in writing of additional fees payable to the end of the applicable Term of this Agreement. Upon written acceptance by the Customer of such additional fees, the Customer and Concept shall initial an amended Schedule A providing for such changes which shall then be attached to this Agreement. Concept shall then deliver to the Customer a written invoice for the additional Fee applicable to the end of the applicable Term of this Agreement, which invoice must be paid in full prior to such changes becoming effective.
5. CUSTOMER RESPONSIBILITIES
In order for Concept to provide the premier Support provided for in this Agreement, the Customer agrees that it has the following responsibilities, and acknowledges and agrees that failure or delay on the part of the Customer to adhere to such responsibilities may result in prevention or delays on the part of Concept to provide the premier Support.
5.1 Appointment of Customer Support Manager. The Customer shall designate and notify Concept of an individual appointed by it to act on its behalf as its "Customer Support Manager" or “CSM” herein. The Customer may replace its CSM at any time and thereupon shall promptly give written notice to Concept of any such replacement, and shall on a best efforts basis attempt to provide not less than two (2) weeks prior written notice of the pending replacement. The CSM will be the Customer’s primary contact in relation to all support matters and will be responsible for leading the Customer’s team and managing Customer’s support activities and internal processes for submitting support requests to Concept. Concept will supply the CSM with an individual account access to the Concept support online website, support issue submission and access to support services resources.
5.2 Utilization Plan. The Customer shall work with Concept to develop and maintain a plan for the utilization of premier Support based upon the Support Level selected on Schedule A.
5.3 Escalation Process. The Customer shall develop an internal escalation process to its senior management in order to facilitate communication between Customer’s senior management and Concept’s senior management in appropriate circumstances.
5.4 Remote Access. In order for Concept to provide Problem Support Services, the Customer must have access to the internet at the relevant time and provide remote internet access to Concept in relation to the relevant Customer’s systems in order for Concept to analyze and diagnose Problems. Concept’s personnel will access only those systems authorized by the Customer. Concept may provide the Customer with software to assist with Problem diagnosis and/or resolution. Such software is proprietary and must, at Concept’s direction, be deleted or returned to Concept promptly upon request.
5.5 Provision of Onsite Facilities. Where onsite services are required of Concept, the Customer shall provide reasonable office or other space, and telephone and high speed internet access and access to necessary Customer internal systems and processes where required.
5.6 Expenses for Onsite Services. Where onsite services are required of Concept, the Customer will be invoiced and shall reimburse Concept for travel, accommodation and other related expenses incurred by Concept’s employees or contractors.
5.7 Additional Customer Responsibilities. Additional Customer responsibilities and/or requirements may be set forth in a Statement of Work or in an Exhibit to this Agreement.
6. GENERAL PROVISIONS
The following provisions apply generally to the provision by Concept of the premier Support under this Agreement:
6.1 Services Provided Remotely. Unless otherwise set forth in a Statement of Work or in an Exhibit to this Agreement, all premier Support provided by Concept under this Agreement will be provided remotely to the Customer’s location in Canada, by telephone, email or internet.
6.2 English Language Only. All communications between the Customer and Concept, and all premier Support, will be provided in the English language only.
6.3 Support for Concept Software Only. Concept will provide software support only in relation to Concept software and related software products.
6.4 No Support for Pre-Release Products. No support is provided by Concept for pre-release products or IT Preview products.
6.5 Concept Resources. premier Support by Concept is dependent upon the availability of Concept resources at the relevant time.
7. MISCELLANEOUS PROVISIONS
7.1 Provisions of Customer Agreement to Apply. It is understood and agreed that the provisions of the Customer Agreement between the parties shall apply to and be incorporated by reference into this Agreement.
[remainder of page intentionally left blank. Signature page follows.]