LexisNexis Total Practice AdvantageTM

END-USER SOFTWARE AGREEMENT
 
End-User Software Agreement
June 1, 2009
 
PLEASE NOTE: THE TERMS CONTAINED HEREIN MAY HAVE CHANGED.  FURTHER, THIS AGREEMENT CONTAINS TERMS THAT APPLY TO A PERPETUAL RIGHT TO USE THE SOFTWARE AND TERMS THAT APPLY TO A SOFTWARE SUBSCRIPTION (DEPENDING UPON HOW YOU PURCHASED THE RIGHT TO USE THE SOFTWARE) AND TERMS THAT ARE COMMON TO EACH OF THE FOREGOING.
 
**If you have any questions as to which terms are applicable to you, please contact LexisNexis at 1.800.328.2898 for Time Matters/Billing Matters®, or 1.800.387.9785, option 1 for PCLaw®
 
A. COMMON TERMS
 
This Agreement ("Agreement") for Time Matters and/or Billing Matters software is entered into between You (defined below) and LexisNexis, a division of Reed Elsevier Inc.  for Time Matters/Billing Matters, or LexisNexis Practice Management Systems, Inc. for PCLaw ("Company") for the number of authorized users as referenced in a corresponding order form, proposal, invoice, or related documentation; the terms of which are incorporated by reference.
 
Capitalized terms used in the Agreement are defined below. 
 
A1. RIGHT TO USE
 
A1.1 Subject to the restrictions set forth below, You may (a) install the number of authorized copies of Product in executable form for Your internal operations; (b) use the Documentation for Your internal operations; (c) make a single backup copy of the Product, provided the backup copy is not used for production purposes; and (d) permit Your employees, agents, representatives, or contractors designated by You ("Authorized Users") to access and use the Product locally or remotely through an authorized Company provided software integration in accordance with this Agreement.
 
A1.2 Copyright notices and any other proprietary legends on the original copy of the Product must be reproduced on any copies of the Product.  You may not transfer the rights to a backup copy unless You transfer all rights in the Product.
 
A1.3 Use of some third-party materials included in the Product may be subject to other terms and conditions typically found in a separate agreement or "Read Me" file located in or near such materials.
 
A2. USE RESTRICTIONS
 
A2.1 By accepting the rights granted by Company, You agree that You will not, without the prior written consent of Company (a) sell, license, sublicense, distribute, lease or otherwise transfer or allow the transfer of the Product, or any backup copy, to third parties; (b) use the Product in any manner inconsistent with the rights granted, including but not limited to use of the Product in a service bureau, renting, leasing, lending or using the Product to provide commercial hosting services, or using more than the number of authorized copies or users, whichever the case may be, of the Product or permit access to the Product by more than the number of Authorized Users; (c) modify or create derivative works of the Product or Documentation or separate the Product's component parts for use on more than one device; or (d) unless specifically permitted under applicable law without the possibility of contractual waiver, attempt to decompile, disassemble or reverse engineer the Product, or otherwise attempt to (i) derive source code or underlying ideas, algorithms, structure or organization from the Product or (ii) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Product, including without limitation any such mechanism used to restrict or control the functionality of the Product.
 
A2.2 Any permitted transfer of the Product must include the Product and Documentation, any backup copies, any Updates or Upgrades, if applicable, and a copy of this Agreement.  Written notice of the transfer must be sent by You to Company within 15 business days of the transfer, specifying the new grantee.
 
A2.3 THERE MAY BE TECHNOLOGICAL MEASURES IN THE PRODUCT THAT ARE DESIGNED TO PREVENT UNAUTHORIZED USE OF THE PRODUCT, INCLUDING BUT NOT LIMITED TO A TIME-OUT ROUTINE THAT MAY RENDER THE PROGRAM “READ ONLY” OR DENY ACCESS TO THE PROGRAM IF NOT REACTIVATED.  You understand that You may need to activate or reactivate the Product from time to time to continue use of the Product.
 
A2.4 Internet-Based Services.  If the Product accesses a Company internet-based service associated with the Product, You agree that You will not use the Product in any manner that could damage, disable, overburden, or impair such services or interfere with any other party’s use and enjoyment of them.
 
A3. TAXES
 
If any authority imposes a duty, tax, levy or fee, excluding those based on Company’s net income, upon the Product, You agree to pay the amount specified.  You are responsible for any personal property taxes for the Product from the date it was acquired. 
 
A4. COPYRIGHT AND PROPRIETARY INFORMATION
 
A4.1 Company and its suppliers reserve all of rights with respect to the Product, Documentation and any copies under all applicable national and international laws and treaties for the protection of Intellectual Property, including, but not limited to, trade secrets, copyrights, trademarks and patents.  Any rights not expressly granted to You in this Agreement are retained by Company and its suppliers.
 
A4.2 Except as otherwise provided in this Agreement, You shall not cause or permit unauthorized copying, reproduction or disclosure of any portion of the Product or Documentation, or the delivery or distribution of any part thereof to any third party, for any purpose, without the prior written permission of Company.  This restriction shall continue beyond the termination of this Agreement.
 
 
 
A5.EXPORT
 
You will not ship, transfer or export the Product to any country, nor will You use the Product in any manner prohibited by the United States Export Administration Act or any other export laws national or international, restrictions or regulations that apply to the Product.  You agree to indemnify and hold Company harmless for any violation of this provision.
 
A6.U.S. GOVERNMENT RIGHTS
 
The Product and Documentation are “Commercial Items” as that term is defined at 48 CFR 2.101 consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR 12.212 or 48 CFR 227.7202, as applicable.  The rights to the Product and Documentation are granted to U.S. Government end users (a) only as Commercial Items and (b) only with those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
 
A7. LIMITED WARRANTY
 
A7.1 Company warrants that it has sufficient rights to grant the rights in the Product pursuant to this Agreement; Company further warrants that the Product will operate substantially in accordance with its written specifications.  No warranty is made that the Product will run uninterrupted or error-free.  The warranty period for the Product and Documentation is 60 days from delivery (“Warranty Period”). 
 
A7.2 Company’s and its suppliers' entire liability and Your exclusive remedy for any breach of this limited warranty or for any other breach of this Agreement or for any other liability relating to the Product shall be, at Company’s option from time to time exercised subject to applicable law, (a) repair, or (b) replacement, or (c) return with proof of purchase and refund of the applicable software fees, of a Product that does not meet this limited warranty.  You will receive the remedy elected by Company without charge, except that You are responsible for any expenses You may incur (e.g. cost of shipping the Product to Company, third party services not provided by Company).  This limited warranty is void if failure of the Product has resulted from accident, abuse, misapplication, abnormal use or a virus.  Any replacement Product will be warranted for the remainder of the original warranty period and Company will use commercially reasonable efforts to provide You remedy within a commercially reasonable time of Your compliance with Company’s warranty remedy procedures.  Outside the United States or Canada, neither these remedies nor any product support services offered by Company are available without proof of purchase from an authorized international source. 
 
A7.3 THE PRECEDING WARRANTIES ARE THE ONLY WARRANTIES RELATED TO THE PRODUCT, DOCUMENTATION AND SUPPORT SERVICES AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
 
A7.4 If an implied warranty or condition is created by Your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, You also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (60 DAYS).  AS TO ANY DEFECTS DISCOVERED AFTER THE 60 DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND.  Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to You.  This limited warranty gives You specific legal rights.  You may have other rights which vary from state/jurisdiction to state/jurisdiction.
 
A7.5 Company is acting on behalf of its suppliers for the purpose of disclaiming, excluding, and/or limiting obligations, warranties, and liability as provided in this Agreement, but in no other respects and for no other purpose.
 
A8. LIMITATION OF LIABILITIES
 
IN NO EVENT WILL COMPANY, 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.  COMPANY’S 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 YOU TO COMPANY UNDER THIS AGREEMENT.  NO ACTION OR PROCEEDING AGAINST COMPANY MAY BE COMMENCED MORE THAN ONE YEAR AFTER THE CLAIM ARISES EXCEPT FOR COMPANY CLAIMS RELATING TO COLLECTION OF FEES DUE AND PAYABLE BY YOU.  THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY.
 
COMPANY SHALL NOT BE RESPONSIBLE FOR THE NEGLIGENT, GROSSLY NEGLIGENT, OR WILLFUL ACTIONS OR INACTIONS OF ANY THIRD PARTY UNLESS SUCH THIRD PARTY HAS BEEN DIRECTLY ENGAGED BY COMPANY AS A SUBCONTRACTOR TO PERFORM SERVICES ON COMPANY’S BEHALF FOR YOU AND THEN ONLY TO THE EXTENT OF THE LENGTH OF THE ENGAGEMENT.  FURTHERMORE AND EXCEPT FOR AUTHORIZED COMPANY SUBCONTRACTORS, THIS LIMITATION SHALL APPLY EVEN TO THOSE THIRD PARTIES THAT MAY HAVE BEEN CERTIFIED PURSUANT TO A COMPANY CERTIFICATION PROGRAM OR RECOMMENDED OR REFERRED TO YOU BY COMPANY.
 
Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You. 
 
A9. INVOICES AND PAYMENT
 
A9.1 Fees relating to software, subscription, services, or any related charges, shall be payable within 30 days of the date of Company’s invoice.
 
A9.2 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.  You shall be liable for all costs of collection incurred by Company including without limitation collection agency fees, reasonable attorney’s fees and court costs if You fail to comply with the payment obligations set forth herein.
 
A10. MISCELLANEOUS
 
A10.1 Governing Law.  Any action, suit, or proceeding arising under or in connection with the Product, Technical Support Services or this Agreement must be commenced 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 conflicts of law.  If You acquired this Product in Canada, unless expressly prohibited by local law, this Agreement is governed by the laws in force in the Province of Ontario, Canada; and, in respect of any dispute which may arise hereunder; You consent to the jurisdiction of the federal and provincial courts sitting in Toronto, Ontario. If You acquired this Product in any other country, then local law may apply. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
 
A10.2 Severability.  If any term of this Agreement is held invalid or unenforceable for any reason, the parties agree that such invalidity will not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision.
 
A10.3 Waiver.  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.
 
A10.4 Assignment.  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, Company may assign this Agreement to any Affiliate or successor on notice to You.  As a condition to assignment, Your assignee must agree to assume and be bound by all terms and conditions of this Agreement.
 
A10.5 Compliance with Rights Granted. You agree that, upon request from Company or Company’s authorized representative, You will within 30 days fully document and certify any and all use of the Product at the time of the request is in conformity with Your valid and authorized rights granted from Company.
 
A10.6 Entire Agreement.  This Agreement is the entire agreement between You and Company relating to the Product and the Services (if any) and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or any other subject matter covered by this Agreement. 
 
A10.7 Parties Bound.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, heirs, legatees, successors, and permitted assignees.
 
A10.8 Force Majeure.  Except with respect to Your obligation to make timely payments, neither party shall be held responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosions, earthquakes, floods, wars, water, the elements, labor disputes, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation, facilities, acts or omissions of carriers or suppliers, or other causes beyond its control whether or not similar to the foregoing.
 
A10.9 Notices.  All notices under this Agreement (except for requests for Service) shall be in writing and shall may given by mail, postage prepaid or by overnight delivery addressed to the respective parties, if to You, at Your addresses set forth in the signature block below or to Company at:
 
All Time Matters/Billing Matters customers and PCLaw customers not located in Canada:
 
                LexisNexis – Practice Management
                2000 Regency Parkway
                Suite 600
                Cary, North Carolina 27518
                United States of America
 
For Canadian PCLaw customers:
 
                LexisNexis – Practice Management
                123 Commerce Valley Drive East
                Markham, Ontario L3T 7W8
                Canada
 
With a copy to:
LexisNexis
Attention: General Counsel
9443 Springboro Pike
Miamisburg, Ohio 45342
United States of America
 
Such notice shall be deemed to have been given when received.  Either party may change its notice address upon notice to the other party pursuant to this provision.
 
A10.10 Independent Contractor.  All work performed under the Agreement by a party shall be performed as an independent contractor and not as an agent of the other.  No persons furnished by either party shall be considered the other party's employees or agents, and each party shall be responsible for its own and its employees' compliance with all laws, rules, and regulations involving employment of labor, working conditions, payment of wages, and payment of taxes, such as unemployment, social security, and other payroll taxes, including applicable contributions from such persons when required by law.
 
A10.11 United Kingdom Customers.  For those customers that purchase the Product in the United Kingdom, the following shall apply:
 "Company" shall be defined as Reed Elsevier (UK) Limited trading as LexisNexis.  Further, in accordance with the Data Protection Act 1998, Company will provide and export personal information about Authorized Users to other members of our company group, including Reed Elsevier Inc. in the United States, for the purposes of (a) providing access to and use of the Product to Authorized Users, and (b) providing customer support, billing and other similar activities related to the Product.
 
A11. DEFINITIONS
 
"Affiliate" means a corporation, partnership, or other legal entity that controls, is controlled by, or is under common control with that party, either directly or through another Affiliate, but only while that control relationship exists; "control" of an entity means the power to direct the management and policies of that entity through a controlling vote on the board of directors or similar governing body of that entity or the ownership of interests entitled to more than 50% of the votes of that entity.
 
"Authorized Users" means Your total number of authorized employees, agents, representatives, or contractors whom You provide access to the Product which You have licensed from Company.
 
"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" mean written guides in any form or media describing the use and operation of Product, together with any related supporting documentation.
 
"Fix(es)" means a Workaround and/or additional or replacement lines of Software code provided by Company to remedy a defect in the Product that caused it to not operate substantially in accordance with its written specifications.
 
"Intellectual Property Rights" means all current and future patents, patent applications (including, without limitation, all reissues, divisions, renewals, extensions, continuations and continuations-in-part), copyrights (including but not limited to rights in audiovisual works and moral rights), trade secrets, trademarks, service marks, trade names and all other intellectual property rights and proprietary rights, whether arising under the laws of the United States or any other country, state or jurisdiction.
 
"Problem" means hardware that does not operate in accordance with its written specifications; Software that does not operate substantially in accordance with its written specifications; or Documentation that is not correct.
 
"Product" means the proprietary computer software program identified above. "Product" is the following, including the original and all whole or partial copies: 1) machine-readable instructions and data, 2) components, 3) audio-visual content (such as images, text, recordings, or pictures), 4) related software materials, and 5) software use documents or keys, and documentation.
 
"Services" or "Maintenance & Technical Support Services" means via an "Annual Maintenance Plan" the delivery of Updates and Upgrades and technical support to be provided pursuant to the terms of this Agreement or repairing or replacing Product that does not operate in accordance with its written specifications under the limited warranty.
 
"Software" means computer programs in machine-readable form for use on designated CPU(s). Software does not include any version of Source Code and any operating system software installed on the CPU.
 
"Software Policies" means those additional terms and conditions relating to Services as outlined in the Software Policies and FAQ for Time Matters, Billing Matters, and PCLaw found at www.lexisnexis.com/terms which are incorporated herein by reference.
 
"Source Code" means a high level program in that is not machine-readable.
 
"System Administrator" means an employee or agent of You with sufficient training and experience to identify and isolate Problems and to provide sufficient information and assistance to Company to be able to reproduce such Problems.  The System Administrator or his/her delegate shall be the single point of contact with Company when reporting Problems.  Company may require You to appoint a new System Administrator if Company 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 Company's support personnel.
 
"Updates" means subsequent service releases of Company Software which are generally made available for supported Software, other than media and handling charges, to correct design faults, discrepancies or defects ("bugs") in the Product.  Updates are generally designated by a change in the number appearing to the right of the initial decimal point in the Product’s version number (i.e., 1.1 vs. 1.0).
 
"Upgrades" means subsequent releases of the Product that contains an improvement in the Product that generally includes enhancements and new functionality, and is generally designated by a change in the number appearing to the left of the initial decimal point in the Product’s version number (i.e., 2.0 vs. 1.0).
 
"You" includes Your divisions and departments within Your organization and Your Affiliates, but does not include clients, co-counsel, independent third parties or non-Affiliates.  You agree that You shall be responsible for any use of the Product by Your Affiliates.
 
"Workaround" means a temporary solution to a Problem.
 
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
 
B. TERMS THAT APPLY TO A PERPETUAL RIGHT TO USE THE SOFTWARE
 
B1. SOFTWARE USE GRANT
 
Subject to Your payment of the software fees and Your compliance with the terms of this Agreement, Company grants to You a limited, personal, perpetual, non-exclusive, nontransferable and non-assignable (except as this Agreement otherwise provides) right to use the Product and Documentation as set forth in this Agreement. 
 
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
 
C. TERMS THAT APPLY TO LEXISNEXIS TOTAL PRACTICE ADVANTAGE CUSTOMERS ONLY
 
For those customers who receive the Product under a separately executed Company agreement ("LNTPA Agreement") for LexisNexis Total Practice Advantage ("LNTPA") the following shall apply:
 
C1. SOFTWARE USE GRANT
 
Subject to Your payment of all fees and Your compliance with the remaining Common Terms of this Agreement, Company grants to You a limited, personal, non-exclusive, nontransferable and non-assignable (except as this Agreement otherwise provides) right to use the Product and Documentation during the term as set forth in the LNTPA Agreement. 
 
C2. In the event You do not renew the LNTPA Agreement the Product will deactivate within 30 days after the end of Your LNTPA subscription.  If You are a customer in good standing, You may request Company to activate the Product to You as a perpetual use grant at no additional charge by contacting Technical Support at 1/866-422-1023. Upon activation to a perpetual right to use the Product, You may choose to purchase Maintenance and Technical Support through an Annual Maintenance Plan.  Without renewing the LNTPA Agreement, those subscription services provided under the LNTPA Agreement, including, but not limited to jurisdictional and area of practice-specific features, LexisNexis® Automated Forms, navigator links to other Lexis services, anytime training, instructor led training and software installation services will be no longer available.
 
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
 
D. MAINTENANCE & TECHNICAL SUPPORT TERMS
 
D1. MAINTENANCE & TECHNICAL SUPPORT SERVICES
 
For new customers, Company will provide You with 60 days from the date of delivery access to telephone technical support.  A the 60 day time period has elapsed or for existing customers, You may choose to purchase an Annual Maintenance Plan from Company.  The following terms, in addition to the Software Policies available for review at www.lexisnexis.com/terms, shall apply:
 
D1.1 Delivery of Updates/Upgrades.  Whenever Company makes Updates or Upgrades generally available to its users who have purchased Services, Company will grant You a copy of the new release containing the Updates and/or Upgrades.  Your use of all such Updates and Upgrades is subject to this Agreement and the terms of the applicable software agreement previously entered into by You for the Product.
 
Except for the immediate purpose of data conversion from the previous version to the Upgrade, after implementing the Upgrade You may no longer continue to use the earlier version of the Product. All Upgrades are provided to You on a per software copy exchange basis. You agree that by installing and implementing an Upgrade, You voluntarily terminate Your right to use any previous version of the Product.
 
D1.2 Access to Telephone Technical Support. Company will make a member of its technical support staff available by telephone to Your System Administrator to assist You in the standard business use of the Product.  Your System Administrator will be responsible for the daily maintenance of the Product per the Documentation, and will provide the first line technical support of the Product to Your users. Telephone Technical Support includes assistance relating to any Fixes and Workarounds.     
       
Company reserves the right to change or modify the Maintenance & Technical Support Services at any time and from time to time upon 45 days written notice to You.  In the event of a discrepancy about which Services and how Services will be provided between Section D and in the Software Policies, the Software Policies shall control interpretation.
 
D2. USE GRANT FOR REMOTE ASSISTANCE 
You may permit any device to access and use Your authorized copy of the Product for the sole purpose of providing You with Services.
 
You agree that Company and its affiliates may collect and use technical information gathered as part of the Technical Support Services provided to You, if any, related to the Product.  Company may use this information to ensure proper authorization of all copies of the Software as well as to improve Company's products or provide customized services or technologies to You.  Company will not disclose this information in a form that personally identifies You to any third parties.
 
D3. MAINTENANCE & TECHNICAL SUPPORT SERVICE EXCLUSIONS
In accordance with the Software Policies and unless otherwise agreed to in writing by Company, the Maintenance & Technical Support Services and the charges associated for said Services do not cover or include the following:

  1. Support of a Product which has been modified or repaired other than by Company or by a third party engaged by Company;
  2. Making specification changes or performing Services connected with the relocation of a Product;
  3. Modification or replacement of a Product, 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;
  4. Modification or replacement of a Product, repair of damage, or increase in service time caused by the use of the Product for other than the purposes for which it is authorized or not in accordance with the Product operating guidelines;
  5. Modification or replacement of a Product, repair of damage, or increase in service time caused by:
    • accident
    • natural or man-made disaster which shall include but not be limited to fire, water, wind, and lightning
    • transportation
    • neglect or misuse
  6. Modification or replacement of a Product, or increase in service time caused by the use of the Product in combination with other products (e.g. Microsoft® SQL Server or SQL Server Express or other Company products);
  7. Backing up or restoring programs and/or data;
  8. Keying, importing, converting or manipulation of data;
  9. On-site or formal classroom training on the operation and use of the Product or Software;
  10. Creation of any new non-standard, customer-defined reports; or
  11. Installation of the Product.

In the Company's sole discretion, Company may perform any of the foregoing services on a billable special service basis or as part of a separate professional services agreement. You agree that any Services rendered pursuant to Your request for Service which is determined by Company to have been caused by a problem set forth above will be considered a special service.
 
D4. OBLIGATIONS OF CUSTOMER
You shall provide access to Your facilities and equipment in connection with Company's performance of its obligations hereunder. No charge shall be made for such access and Company will provide prior notification when such access is required;
 
If applicable, You shall maintain a proper network connection near any CPU used with the Product being maintained by Company hereunder and provide access to a voice grade local telephone;
 
You shall be responsible for obtaining and maintaining any required third party hardware and/or software, including updates thereto;
 
Your System Administrator must be present in the event Company provides any on-site Service.  If applicable, You agree that if a representative is not present when Company’s technician arrives on site that no Service will be performed and You will be charged at the special service rate then in effect for such visit.
 
D5. SOFTWARE UPDATES, UPGRADES, FIXES AND WORKAROUNDS
You agree that all Updates, Upgrades and Fixes or Workarounds furnished to You shall be deemed to be part of such Product subject to the terms and conditions of the software agreement for the Product.
 
D6. WARRANTY FOR MAINTENANCE & TECHNICAL SUPPORT
Company warrants to You 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 prove to be not so performed and if You notify Company within a fifteen (15) day period commencing on the date of completion of the Service, Company will, at its sole and commercially reasonable discretion, consider correcting any commercially reasonable defects 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. 
 
 
*****************************************************************************************
June 1, 2009