Juris from LexisNexis® Subscription Agreement

This Subscription Agreement ("Agreement") for Juris from LexisNexis® software is entered into between You (either an individual or a single entity) and LexisNexis, a division of Reed Elsevier Inc. ("Company") for the number of authorized users as referenced in a corresponding order form; the terms of which are incorporated by reference.

Capitalized terms used in the Agreement and Schedule A, which is incorporated herein by reference, are defined in the last section of this Agreement.

1. SOFTWARE GRANT

Company permits you to use the Product only in accordance with the terms of this Agreement and the number of Authorized Users, defined herein, referenced in a corresponding order form; the terms, if any, of which are incorporated by reference. Subject to your payment of the applicable Subscription Fees and your compliance with the other 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 as set forth in this Agreement.

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, contractors or customers designated by you ("Authorized Users") to access and use the Product locally or remotely in accordance with this Agreement.

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.

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.

2. USE RESTRICTIONS

2.1 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 above, 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 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.

2.2 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.

2.3 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" IF SUBSCRIPTION FEES ARE NOT PAID. You understand that you may need to activate or reactivate the Product from time to time to continue use of the Product.

2.4 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.

3. INVOICES, TAXES AND PAYMENT

Subscription Fees and any Special Services charges (as outlined in Schedule A), shall be payable within 30 days of the date of Company's invoice. If You request Special Services, the charges for such services shall be invoiced as soon as practicable after the Special Services are provided. 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. 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.

4. TERM, TERMINATION OR EXPIRATION OF AGREEMENT

The term of this Agreement shall commence with an initial term of 3 years (the "Initial Term"). Thereafter, the Agreement shall automatically renew for successive 12 month annual term(s), hereinafter known as the "renewal period(s)" (collectively "Term"). After the Initial Term, either party may provide written notice on or before 30 days preceding an anniversary of the Start Date of its intent not to renew for the next annual period. The amount of charges to Your subscription shall be at Company's then current prices in effect at the time of such renewal. If after the Initial Term a lapse occurs in Your subscription occurs at any time, Company may invoice You a reactivation fee to inspect the Products prior to entering into a new agreement. During the Term the Agreement may not be terminated except as follows:

4.1 If You fail to pay any invoice in full within a period of 30 days after the same is due, Company may terminate this Agreement upon 5 business days' notice to You without any liability to You whatsoever.

4.2 Except for Your failure to make payments, as invoiced, either party may terminate this Agreement on notice if the other party has defaulted in the performance of its obligations under this Agreement upon 30 days written notice, provided however, that the party in breach will have 30 days from the receipt of notice of termination to correct the default.

4.3 A party becomes insolvent, invokes as a debtor any laws relating to the relief of debtors' or creditors' rights, or has such laws invoked against it as a debtor. Such termination shall be effective 30 days after notice unless the terminating party is satisfied with other party's solvency within that time.

Upon termination of the Agreement due to your breach, Company shall be entitled to accelerate all remaining payments due for the term outlined in the order form and any prepaid fees shall not be refunded. On termination of this Agreement, you, at your option, will either (1) destroy all copies of the Product, including any backup copies and the originals and any copies of the Documentation and certify such destruction in writing to Company, or (2) return them to Company. This obligation shall survive the termination of this Agreement.

In the event You do not renew the Subscription, You will no longer receive Software Upgrades, Technical Support, access to the subscriber online portal and any other future benefits that may be available to subscribers at that time.

5. COPYRIGHT AND PROPRIETARY INFORMATION

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.

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.

6. 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.

7. 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.

8. LIMITED WARRANTY

8.1 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 90 days from delivery ("Warranty Period").

8.2 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 Subscription 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). 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 or 30 days, whichever is longer, 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.

8.3 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.

8.4 If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also has an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (90 DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE 90 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.

8.5 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.

9. 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.

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.

10. MISCELLANEOUS

10.1 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.

10.2 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.

10.3 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.

10.4 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.

10.5 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.

10.6 Entire Agreement. This Agreement is the entire agreement between you and Company relating to the Product and the Support 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.

10.7 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.

10.8 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.

10.9 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:

LexisNexis - Practice Management
Juris Software
2000 Regency Parkway
Suite 600
Cary, NC 27518

With a copy to:
LexisNexis
Attention: General Counsel
9443 Springboro Pike
Miamisburg, OH 45342

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.

10.10 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.

11. 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 employees, agents, representatives, contractors or customers whom you provide access to the Product, but does not include the number of timekeepers reflected in the Subscription Fees.

"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.

"Response Time" means the elapsed time from when Company receives a request for assistance until the commencement of assistance.

"Schedule A" means the terms relating to Software Upgrades & Technical Support attached to this Agreement and the terms of which are incorporated herein by reference.

"Services" or "Software Upgrades & Technical Support Services" means the delivery of Updates and Upgrades and technical support to be provided pursuant to the terms of this Agreement repairing or replacing Product that does not operate in accordance with its written specifications.

"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.

"Source Code" means a high level program in that is not machine-readable.

"Start Date" means the date execution by You which shall begin the Term.

"Subscription" means you may use the Product, subject to this Agreement, for a specified Term which use is conditioned on payment of a Subscription Fee for the current period. A Subscription is automatically renewable upon payment for each succeeding period and includes Support Services at no additional charge.

"Subscription Fee" means the amount payable by You for the access and use of the Product which is based upon the number of timekeepers designated on a corresponding order form.

"Support Period" means the initial 36 months following the Start Date (the "Initial Support Period"). The Support Period shall also include any subsequent 12 month renewal periods in which you have paid for Services.

"Special Services" means any Services provided that are not part of the Software Upgrades & Technical Support Services in Section 1 of Schedule A as well as any Services provided in excess of the Monthly Allotment or total maximum allotment defined in Section 1(B) therein.

"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.

"Term" means the initial 36 months upon entering into this Agreement and any 12 month renewal thereof.

"Updates" means subsequent releases of Company Software which are generally made available for supported Software at no additional charge, 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 Materials that contain an improvement in the Materials 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.

SCHEDULE A SOFTWARE UPGRADES & TECHNICAL SUPPORT

1 SOFTWARE UPGRADES & TECHNICAL SUPPORT SERVICES

A. Delivery of Updates/Upgrades. Provided you have paid Subscription Fees, 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 Materials.

Except for the immediate purpose of data conversion from the previous version to the Upgrade, after implementing the Upgrade into your practice 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.

B. Access to Telephone Technical Support. During its normal business hours of 8:00 a.m. to 8:00 p.m., Eastern Standard Time, Monday through Friday (except Company holidays), 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. For those customers who elect to purchase the Platinum level of technical support, there is no set monthly limit to access the telephone technical support. For all other customers, You will have 5 hours per month ("Monthly Allotment") access to telephone technical support free of charge. The Monthly Allotment is measured from the time assistance is provided in fifteen minute increments. You may carry forward up to five unused hours of the Monthly Allotment to the next month for a maximum Monthly Allotment in any given month of 10 hours. Any use of the Services over the total maximum allotment shall be considered a Special Service and any excess hours over the total maximum allotment may not be carried forward to the next month. Any overage of the Monthly Allotment is measured from the time assistance is provided in thirty minute increments. For purposes of clarity, the following is an illustration of the total maximum allotment of support hours for those customers who do not elect the Platinum level of technical support: In Month 1 You have 5 hours of support and use 3 hours for a remainder of 2 hours for the month. For Month 2 You will have the Monthly Allotment of 5 hours plus the 2 hours carried forward from Month 1 for a total of 7 hours; however, in Month 2 You use a total of 10 hours. This means that 7 hours will be free of charge but the remaining 3 hours will be considered a Special Service and therefore charged the Special Service rate.

Telephone Technical Support includes assistance relating to any Fixes and Workarounds as well as minor modifications to existing, standard Juris reports.

C. Access to Subscriber Online Portal. You will have access to a Juris online portal which provides helpful tools and tips as well as access to any Juris produced webinars free of any additional charge. Subscribers will be required to register for access under separate terms of use.

Company reserves the right to change or modify the Software Upgrades & Technical Support Services at any time and from time to time upon 60 days written notice to you.

2. SPECIAL SERVICES

During the Term you may request Special Services. Special Services are billed on an hourly basis of $250/hour (or the then current published rate), with a four-hour minimum. If applicable, You are also responsible for any reasonable travel and living expenses associated with on-site Special Services. The hourly rate is measured from the time assistance is provided or arrival on-site whichever the case may be. Each additional hour or fraction thereof will be charged in thirty minute increments.

3. 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.

4. SOFTWARE UPGRADES & TECHNICAL SUPPORT SERVICE EXCLUSIONS

Unless otherwise agreed to in writing by Company, the Software Upgrades & Technical Support Services and the charges quoted by Company for such Services do not cover or include the following:

A. Support of a Product which has been modified or repaired other than by Company;

B. Making specification changes or performing Services connected with the relocation of a Product;

C. 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;

D. 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 Materials operating guidelines;

E. 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

F. Modification or replacement of a Product, or increase in service time caused by the use of the Product in combination with other products or materials not furnished by Company or in combination with other Product or materials furnished by, but not combined by, Company;

G. Backing up or restoring programs and/or data;

H. Keying, importing, converting or manipulation of data;

I. On-site or formal classroom training on the operation and use of the Product or Software;

J. Creation of any new non-standard, customer-defined reports; or

K. Installation of the Product.

At Your request and 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.

5. 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;

You shall maintain a proper network connection near any CPU used with a Product being maintained by Company hereunder and provide access to a voice grade local telephone;

You shall be responsible for obtaining any required third party hardware and/or software, including updates thereto;

Your System Administrator must be present when any on-site Service is provided. 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.

You may permit any device to access and use your authorized copy of the Product for the sole purpose of providing you with Services. Prior to providing on-site or remote Services, it is Your responsibility to properly backup all data.

You agree that Company and its affiliates may collect and use technical information gathered as part of the Software Upgrades & Technical Support Services provided to you. 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.

6. SOFTWARE UPDATES, FIXES AND UPGRADES

You agree that all Updates, Upgrades and Fixes or Workarounds furnished to You shall be deemed to be part of such Materials subject to the terms and conditions of the software agreement for the Materials.

7. ADDITIONAL CPUs

If You become authorized under the terms of any separate Agreement to use the Software on additional CPU(s) and You desire to include such additional CPU(s) under this Agreement, You will be responsible for additional charges for such Services. For purposes of this Agreement, the term "CPU" shall include both the original CPUs and the new CPUs.

8. WARRANTY FOR SOFTWARE UPGRADES & 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 forty five (45) day period commencing on the date of completion of the Service, Company will, at its sole discretion, either correct any defects and deficiencies for which it is responsible or render a full or prorated refund or credit based on the original charge for the Service.

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. YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE COMPANY'S OBLIGATION TO MAKE CORRECTIONS OR GIVE A FULL OR PRORATED CREDIT OR REFUND AS SET FORTH ABOVE.