Annual Maintenance Plan Agreement for PCLaw®, Time Matters® and Billing Matters®
ANNUAL MAINTENANCE PLAN AGREEMENT
This Annual Maintenance Plan Agreement (the “Agreement”) is entered into and effective as of the date the Order for Services is submitted to LexisNexis, a division of Reed Elsevier Inc. (“LexisNexis”) by the undersigned person or entity accepting these terms and conditions (“Licensee”) upon confirmation by LexisNexis (“Effective Date”). This Agreement provides for Maintenance and Support Services of Covered Software currently licensed by LexisNexis to Licensee pursuant to an applicable end user license agreement (“License Agreement”).
"Covered Software" means the Software titles and numbers of licenses/users set forth on the Order for Services.
"CPU" means a single computer, a central processing unit or logical partition (if a computer or server has more than one processor or logical partition).
"Documentation" means a written guide in any form or media describing the use and operation of Software, together with any related supporting documentation.
"Fix(es)" means a Workaround or Hot Fix and/or additional or replacement lines of Software code provided by LexisNexis to remedy a Problem in the Software that caused it to not operate substantially in accordance with its written specifications.
“Lapse” means an interruption in the continuous Maintenance and Support Services coverage (or allowing an agreement for Maintenance and Support Services to expire without renewing).
“Major Release” means a major release for the Software which may contain new features, enhancements and Problem corrections. A Major Release will generally include significant new functionality, database schema, underlying technology or user interface changes. Major Releases are designated by a change in the version number to the left of the decimal point.(e.g., “3.0”, to “4.0”).
“Minor Release” means a minor release for the Software which generally will contain fewer changes than a Major Release but will generally include any Fixes and may contain some new features, enhancements and Problem corrections. Minor Releases are designated by a change in the version number to the right of the decimal point (e.g., “3.1”, to “3.2”).
"Order for Services" means the form or telephonic request completed by or on behalf of Licensee that sets forth the Covered Software including Software titles, number of users, and the annual maintenance plan (“AMP”) which includes the Services and is a prerequisite for entering into this Agreement.
"Problem" means Software that does not operate substantially in accordance with its written specifications; or Documentation that is not correct.
“Service Pack” means a special release required to support specific regulatory changes (ex., mandated 1099 format changes) or to provide specific corrections to address Problems of a serious nature or significant impact. A Service Pack will typically not introduce new features or enhancements but may include a number of corrections.
"Services" or "Maintenance and Support Services" mean availability of Software Major Releases, Minor Releases, Fixes, access to web-based training and product information, and technical support to be provided Licensee pursuant to the terms of this Agreement or the repair or replacement of the Software in the event it does not operate in accordance with its written specifications under the limited warranty.
"Software" means the proprietary computer software programs in machine-readable form for use on designated CPU(s). Software includes the original and all whole or partial copies and the following materials: 1) machine-readable instructions and data, 2) components and releases, 3) audio-visual content (such as images, text, recordings, or pictures), 4) related software materials, and 5) software use documents or keys, and Documentation. Software does not include any version of Source Code and any operating system software installed on the CPU.
"Source Code" means a high level program that is not machine-readable.
“Special Services” means services not within the scope of this agreement, but that may be performed by LexisNexis for additional charge.
“Supported Version” means the current major version of the Software and the two immediately prior Major Releases.
"System Administrator" means an employee or agent of Licensee with sufficient training and experience to identify and isolate Problems and to provide sufficient information and assistance to LexisNexis to be able to reproduce such Problems. The System Administrator or his/her delegate shall be the single point of contact with LexisNexis when reporting Problems. LexisNexis may require Licensee to appoint a new System Administrator if LexisNexis reasonably determines that the System Administrator does not possess the training or experience necessary to perform the required functions of the System Administrator or cannot communicate effectively with LexisNexis' support personnel.
“Workaround” or “Hot Fix” means a manual process or a program executable or separate utility program that addresses a specific Problem in the Software. Workarounds and Hot Fixes are intended to provide an interim solution until it can be incorporated into the Software via a release of a Major Release, Minor Release or Service Pack.
1. MAINTENANCE AND SUPPORT SERVICES
Provided Licensee timely pays the fees set forth on the attached Order for Services and a License Agreement is in effect for a Supported Version of the Covered Software, the following Maintenance and Support Services shall be available to Licensee:
- Access to “Software Releases” (Major Releases, Minor Releases, Service Packs, and Workarounds)
- Access to Telephone Support in accordance with Section 1.2 below
- Access to self-service Anytime Training on the web located at http://lexisnexis.com/university
- Access to the Software via mobile device in accordance with the terms and conditions of the License Agreement and any mobility agreement with LexisNexis which may be in effect.
LexisNexis reserves the right to change or modify the Maintenance and Support Services at any time and from time to time upon 30 days written notice to Licensee or posting of notice at the website located at http://pm.lexisnexis.com/terms. In the event of a conflict between this Agreement and the License Agreement concerning which Services apply and how such Services will be provided, the License Agreement shall control interpretation.
1.1 Delivery of Software Releases. Whenever LexisNexis makes Software Releases generally available to its users who have purchased Services, LexisNexis will grant Licensee a copy of the new release containing the updated/upgraded version of the Covered Software. Licensee’s use of all such Software Releases is governed by the terms of the License Agreement entered into by Licensee for the Software.
Except for the immediate purpose of data conversion from the previous version to the updated/upgraded version of the Covered Software, after implementing the update/upgrade Licensee may no longer continue to use the earlier version of the Software. All updates/upgrades are provided to Licensee on a per copy exchange basis. Licensee agrees that by installing and implementing an update/upgrade, Licensee’s right to use any previous version of the Covered Software is terminated.
1.2 Access to Telephone Support. LexisNexis will make a member of its technical support staff available by telephone to Licensee’s System Administrator to assist Licensee in the standard business use of the Covered Software provided the Covered Software is a Supported Version. Licensee’s System Administrator will be responsible for the daily maintenance of the Software per the Documentation, and will provide the first line technical support of the Software to Licensee’s users. Telephone Support includes assistance relating to any Fixes. Telephone Support shall be available 8:00 am – 8:00 pm EST/EDT Monday through Friday, excluding holidays recognized by LexisNexis.
2. USE GRANT FOR REMOTE ASSISTANCE
Licensee may permit any device to access and use Licensee’s authorized copy of the Software for the sole purpose of providing Licensee with Services; provided, such access and use is in accordance with this Agreement and the License Agreement.
Licensee agrees that LexisNexis may collect and use technical information gathered as part of the Maintenance and Support Services provided to Licensee, if any, related to the Software. LexisNexis may use this information to ensure proper authorization of all copies of the Software as well as to improve LexisNexis' products or provide customized services or technologies to Licensee. LexisNexis will not disclose this information in a form that personally identifies Licensee to any third parties.
3. CONFIDENTIAL INFORMATION
As used in this Agreement, "Confidential Information" means (a) proprietary or trade secret information which is clearly labeled or designated in writing as confidential, proprietary or the like by the disclosing party, and (b) information disclosed orally with a designation of such information as secret, confidential or proprietary prior to or during the oral disclosure and a subsequent reduction of such information to a writing labeled confidential, proprietary or the like and sent to the party to whom the disclosure was made within 15 days after the oral disclosure. Information shall not be considered Confidential Information to the extent that such information is: (w) already known to the receiving party free of any restriction at the time it is obtained from the other party; (x) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (y) or becomes publicly available through no wrongful act of the receiving party; or (z) required to be disclosed by applicable law.
LN and Licensee each agrees that it will not, during the term of this Agreement and for one year thereafter, disclose to any other person or entity any Confidential Information received from the other, except (a) to the extent necessary or desirable to perform under this Agreement, (b) in connection with any pending action related to this Agreement, or (c) as required by a court of competent jurisdiction. Notwithstanding the provisions of this Section 3, the parties may disclose Confidential Information to their respective accountants, attorneys, and other similar professional advisors as long as the entity to which Confidential Information is disclosed is subject to obligations of confidentiality with the same effect as those specified in this Section 3.
4. MAINTENANCE AND SUPPORT SERVICES EXCLUSIONS
In accordance with the License Agreement and unless otherwise agreed to in writing by LexisNexis, the Maintenance and Support Services and the charges associated with said Services do not cover or include the following:
i. Support of Software which has been modified or repaired other than by LexisNexis or by a third party engaged by LexisNexis;
ii. Making specification changes or performing Services connected with the relocation of Software;
iii. Modification or replacement of Software, repair of damage, or increase in service time caused by failure to continually provide a suitable operational environment with all facilities prescribed by the applicable documentation; including, but not limited to, the failure to provide or the failure of adequate electrical power, temperature or humidity control, or computing environment;
iv. Modification or replacement of Software, repair of damage, or increase in service time caused by the use of the Software for other than the purposes for which it is authorized or not in accordance with the Software operating guidelines;
v. Modification or replacement of Software, repair of damage, or increase in service time caused by:
* natural or man-made disaster which shall include but not be limited to fire, water, wind, and lightning
* neglect or misuse
vi. Modification or replacement of Software, or increase in service time caused by the use of the Software in combination with other products (e.g., Microsoft® SQL Server or SQL Server Express or other LexisNexis products);
vii. Backing up or restoring programs and/or data;
viii. Keying, importing, converting or manipulation of data;
ix. On-site or formal classroom training on the operation and use of the Software;
x. Creation of any new non-standard, customer-defined reports;
xi. Initial installation of the Software and any subsequent releases; or
xii Use of the Software other than in accordance with system requirements
xiii. Support of Software which is not Covered Software.
In the sole discretion of LexisNexis, LexisNexis may perform any of the foregoing services on a billable Special Service basis or as part of a separate professional services agreement. Licensee agrees that any Services rendered pursuant to Licensee’s request for Services which is determined by LexisNexis to have been caused by a problem set forth in the exclusions above will be considered a Special Service.
5. OBLIGATIONS OF LICENSEE
Licensee’s rights to use a Software release commence upon installation. Therefore, Licensee agrees that it shall download and complete the installation of all Software releases prior to the expiration of the Term of this Agreement. Upon the termination or expiration of this Agreement, Licensee shall have no rights to install any Software releases even if such releases were downloaded during the Term of this Agreement.
Licensee shall provide LexisNexis with access to Licensee’s facilities and equipment to permit LexisNexis to perform its obligations hereunder. No charge shall be made for such access and LexisNexis will provide prior notification when such access is required;
If applicable, Licensee shall maintain a proper network connection near any CPU used with the Software being maintained by LexisNexis hereunder and provide access to a voice grade local telephone;
Licensee shall be responsible for obtaining and maintaining any required third party hardware and/or software, including updates thereto;
Licensee’s System Administrator must be present in the event LexisNexis provides any on-site Service. If applicable, Licensee agrees that if a representative is not present when LexisNexis' technician arrives on site that no Service will be performed and Licensee will be charged at the special service rate then in effect for such visit.
6. SOFTWARE UPDATES, UPGRADES, FIXES AND WORKAROUNDS
Licensee agrees that all updates and upgrades of the Covered Software, including all Fixes and Workarounds furnished to Licensee, shall be deemed to be part of such Covered Software subject to the terms and conditions of the License Agreement for the Software.
7. WARRANTY; LIMITATIONS OF LIABILITY
7.1 Warranty. LexisNexis warrants to Licensee that Services hereunder will be performed in a professional manner and in accordance with good usage and accepted practices as established in the community in which such Services are performed. If such Services are not so performed and if Licensee notifies LexisNexis within a fifteen (15) day period commencing on the date of completion of the Services, LexisNexis will, at its sole and commercially reasonable discretion, consider correcting any commercially reasonable problems and deficiencies.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.2 Limitation of Liability. IN NO EVENT WILL LEXISNEXIS, ITS PRODUCT DEVELOPERS OR SUPPLIERS HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN TORT, CONTRACT, WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST REVENUE, LOSS OF OR DAMAGE TO DATA, PROFITS OR BUSINESS INTERRUPTION LOSSES, SUSTAINED OR ARISING FROM OR RELATED TO THE PRODUCT, DOCUMENTATION OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LEXISNEXIS’ LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL AT ALL TIMES AND IN THE AGGREGATE AMOUNT BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE TO LEXISNEXIS UNDER THIS AGREEMENT. NO ACTION OR PROCEEDING AGAINST LEXISNEXIS MAY BE COMMENCED MORE THAN ONE YEAR AFTER THE CLAIM ARISES EXCEPT FOR LEXISNEXIS CLAIMS RELATING TO COLLECTION OF FEES DUE AND PAYABLE BY LICENSEE. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so that portion of the above limitation or exclusion may not apply to you.
8. SEVERABILITY OF PROVISIONS; WAIVER
This Agreement constitutes the entire agreement with respect to the Maintenance and Support Services specified in the Order for Services. If any provision of this Agreement is unlawful, void or unenforceable, or conflicts with any provision of the License Agreement, then such provision of this Agreement shall be deemed severable from the remaining provisions of this Agreement and shall not affect the validity and enforceability of such remaining provisions of this Agreement and the License Agreement. None of the requirements of this Agreement shall be considered as waived by either party unless the same is done in writing, and then only by persons executing this Agreement or other duly authorized agents or representatives. The waiver by either party of a breach or a violation of any provision of this Agreement shall not operate as or be construed to be a waiver of any subsequent breach or violation.
9. TERM OF AGREEMENT
This Agreement shall commence on the Effective Date and shall remain in effect through the last day of the same calendar month in the following calendar year (“Initial Term”). Licensee may renew this Agreement for an additional period (a “Renewal Period”) provided Licensee is bound by an effective License Agreement for use of the Software. The Initial Term and any Renewal Period(s) are collectively referred to herein as the “Term”. Licensee’s renewal of this Agreement shall be subject to payment of the Maintenance and Support Fees which may be adjusted in accordance with LexisNexis’ then-current prices which may increase over the Maintenance and Support Fees applicable during the Initial Term or any prior Renewal Period(s) and include additional charges associated with reinstatement due to any Lapse.
Neither party may assign (voluntarily, by operation of law, or otherwise) this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, LexisNexis may assign this Agreement to any affiliate or successor on notice to Licensee. As a condition to assignment, Licensee’s assignee must agree to assume and be bound by all terms and conditions of this Agreement.
All Maintenance and Support Fees are due and payable upon Licensee’s acceptance of this Agreement as set forth in Section 12 below and within thirty (30) days of the invoice date for any Renewal Periods or any Special Services. In the event Licensee fails to make payment to LexisNexis when due, LexisNexis reserves the right to cancel the Services without further notice to Licensee. Upon cancellation of the Services, Licensee shall have no further right to receive any Services.
Payments provided for in this Agreement shall, when overdue, be subject to a late payment charge calculated at a rate of one and one-half percent (1.5%) per month until paid; provided, however, that if the amount of such late payment charge exceeds the maximum permitted by law for such charge, such charge shall be reduced to such maximum amount. Licensee shall be liable for all costs of collection incurred by LexisNexis including without limitation collection agency fees, reasonable attorney’s fees and court costs if Licensee fails to comply with the payment obligations set forth herein.
12. AGREEMENT AND ACCEPTANCE; GOVERNING LAW; CANCELLATION
Licensee’s placement of an Order for Services and payment of the applicable fees constitutes acceptance of this Agreement. This Agreement is not effective until it has been confirmed by LexisNexis. This Agreement is limited to use of the Software in the United States of America (“USA”). Maintenance and Support for Software used outside of the USA may be subject to different terms and conditions. Any action, suit, or proceeding arising under or in connection with this Agreement must be commenced by Licensee within one year after the claim or cause of action arises. This Agreement shall be governed in all respects by the laws of the State of New York, without regard to its conflicts of law provisions.
UPON RECEIPT OF ORDER CONFIRMATION FROM LEXISNEXIS VIA EMAIL OR INVOICE, OR, BY CHECKING THE "I AGREE" BOX, LICENSEE HEREBY ACKNOWLEDGES THAT (1) IT HAS READ AND UNDERSTANDS THIS AGREEMENT; (2) IT IS AUTHORIZED TO ACCEPT THIS AGREEMENT; AND (3) IT AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
At its sole option, LexisNexis may use a third party or Matthew Bender & Company, Inc. (a Reed Elsevier/LexisNexis affiliate), as Company’s billing, payment and invoicing agent for selected products and services offered by the LexisNexis division of Reed Elsevier Inc. and affiliated companies.
FOR ONLINE TRANSACTIONS ONLY: IF LICENSEE DOES NOT ACCEPT THE TERMS AND CONDITIONS CONTAINED HEREIN, DO NOT CHECK THE "I AGREE" BOX AND THIS AGREEMENT WILL NOT TAKE EFFECT.
FOR OFFLINE TRANSACTIONS ONLY: AFTER PLACEMENT OF AN OFFLINE ORDER FOR SERVICES LICENSEE MAY CANCEL THIS AGREEMENT BY SENDING A WRITTEN NOTICE OF CANCELLATION TO LEXISNEXIS WHICH MUST BE RECEIVED BY LEXISNEXIS WITHIN TEN CALENDAR DAYS OF THE DATE OF THE ORDER FOR SERVICES FOR SUCH CANCELLATION TO TAKE EFFECT. NOTICE OF CANCELLATION SHALL BE SENT TO LEXISNEXIS VIA EMAIL SENT TO PMSALES@LEXISNEXIS.COM OR VIA FACSIMILE TO THE ATTENTION OF PM SALES AT 1-800-643-1280.