END USER LICENSE AGREEMENT – LITIGATION SOFTWARE PRODUCTS
THE FOLLOWING TERMS APPLY TO THE FURNISHING OF THIS SOFTWARE AND SERVICES. LEXISNEXIS, A DIVISION OF RELX INC., LICENSES THIS SOFTWARE. CAPITALIZED TERMS ARE DEFINED IN THE LAST SECTION OF THIS AGREEMENT.
IMPORTANT—READ CAREFULLY: This End User License Agreement ("Agreement") is a legal agreement between You (either an individual or a single entity) and Company for the Software that accompanies this Agreement, which includes associated media and Internet-based services, if any ("Program"). This Agreement applies to CaseMap® software, Concordance® software, LAW PreDiscovery software, and LexisNexis Sanction software, including any associated software programs or modules thereof. An amendment or addendum to this Agreement may accompany the Program. YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, COPYING, OR USING THE PROGRAM. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE PROGRAM; YOU MAY RETURN IT FOR A FULL REFUND, IF APPLICABLE.
If You have executed a separate license agreement with Company for this Program, the terms of that separately executed agreement will supersede this Agreement.
PLEASE NOTE: THIS AGREEMENT CONTAINS TERMS THAT APPLY TO A PERPETUAL RIGHT TO USE THE PROGRAM, TERMS THAT APPLY TO A SOFTWARE SUBSCRIPTION (INCLUDING MAINTENANCE & SUPPORT), AND TERMS THAT ARE COMMON TO EACH OF THE FOREGOING.
A. COMMON TERMS
This End User License Agreement ("Agreement") is entered into between You (either an individual or a single entity, sometimes referred to herein as "Customer") and LexisNexis, a division of RELX Inc. ("Company"), for the number of Authorized Users (as defined below) as referenced in a corresponding Software Order, the terms of which are incorporated by reference as if fully set forth herein.
Capitalized terms used in this Agreement and Schedule A hereto, which is incorporated herein by reference, are defined in the last section of this Agreement.
1. RIGHT TO USE
1.1 Subject to the restrictions set forth below, You may (a) install the number of copies of the Program by using no more than the number of seats, concurrent users, options, or named users (collectively, "Licenses") identified in the Software Order in executable form for Your internal operations; (b) use the Documentation for Your internal operations; (c) make a single backup copy of the Software, 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 Program locally or remotely in accordance with this Agreement.
1.2 Copyright notices and any other proprietary legends on the original copy of the Program must be reproduced on any copies of the Program. You may not transfer the rights to a backup copy of the Software unless You transfer all rights in the Software.
1.3 Use of some third-party materials included in the Program may be subject to other terms and conditions typically found in a separate agreement or "Read Me" file located in or near such materials. If the Program includes software supplied by Information Graphics Corporation (IGC), IGC is a third-party beneficiary to Your rights and obligations under this Agreement with respect to Your use of any IGC software included in the Program. IGC shall have authority to enforce such rights against You.
2. USE RESTRICTIONS AND LIMITATIONS
2.1 By accepting the License 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 Program, or any backup copy, to third parties; (b) use the Program in any manner inconsistent with the rights granted above, including but not limited to use of the Program in a service bureau, renting, leasing, lending or using the Program to provide commercial hosting services, or using more than the number of Licenses or permit access to the Program by more than the number of Authorized Users; (c) modify or create derivative works of the Program or Documentation or separate the Program'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 Program, or otherwise attempt to (i) derive source code or underlying ideas, algorithms, structure or organization from the Program or (ii) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Program, including without limitation any such mechanism used to restrict or control the functionality of the Program. CONCORDANCE NATIVE VIEWER MUST BE INSTALLED ONLY AS A DESKTOP APPLICATION AND MAY NOT BE INSTALLED ON A CENTRAL SERVER FOR ACCESS BY USERS.
2.2 Any transfer of the Program or assignment of this Agreement shall be at Company's sole discretion. Any permitted transfer of the Program must include the Program and Documentation, any backup copies, any Updates and Upgrades, if applicable, and a copy of this Agreement. Written notice of the permitted transfer must be sent by You to Company within fifteen (15) business days of the transfer, specifying the new licensee, who must agree in writing to be bound by the terms and conditions of this Agreement.
2.3 THERE MAY BE TECHNOLOGICAL MEASURES IN THE PROGRAM THAT ARE DESIGNED TO PREVENT UNLICENSED USE OF THE PROGRAM. You understand that You may need to activate or reactivate the Program from time to time to continue use of the Program.
2.4 Arabic Text. Concordance® software supports the processing of justified Arabic text by stripping out kashida. Kashida is a type of justification used in some cursive scripts, particularly Arabic. In contrast to white-space justification, which increases the length of a line of text by expanding spaces between words or individual letters, kashida justification is accomplished by elongating characters at certain chosen points. The process provides for the electronic searching of justified Arabic text, but does not change the meaning or alter the original documents.
2.5 Internet-Based Services. If the Program accesses a Company internet-based service associated with the Program, You agree that You will not use the Program in any manner that could damage, disable, overburden, or impair such services or interfere with any other party's use and enjoyment of them.
If any authority imposes a duty, tax, levy or fee, excluding those based on Company's net income, upon the Program, You agree to pay the amount specified. You are responsible for any personal property taxes for the Program from the date it was acquired.
4. COPYRIGHT AND PROPRIETARY INFORMATION
4.1 Company and its suppliers reserve all of rights with respect to the Program, Documentation and any copies under all applicable national and international laws and treaties for the protection of Intellectual Property Rights, 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.
4.2 Except as otherwise provided in this Agreement, You shall not cause or permit unauthorized copying, reproduction or disclosure of any portion of the Program 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.
You will not ship, transfer or export the Program to any country, nor will You use the Program, 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 Program. You agree to indemnify and hold Company harmless for any violation of this provision.
6. U.S. GOVERNMENT RIGHTS
The Program 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 Program 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.
7. LIMITED WARRANTY
7.1 Company warrants that it has sufficient rights to grant the rights in the Program pursuant to this Agreement; Company further warrants that the Program will operate substantially in accordance with its written specifications. No warranty is made that the Program will run uninterrupted or error-free. The warranty period for the Program and Documentation is ninety (90) days from the date the Program is first made available for Your use ("Warranty Period").
7.2 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 Program 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 subscription and refund of the applicable Subscription Fees, of a Program 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 Program to Company). This limited warranty is void if failure of the Program has resulted from accident, abuse, misapplication, abnormal use or malware. Any replacement Program will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Company will use commercially reasonable efforts to provide You with a remedy within a commercially reasonable time of Your compliance with Company's warranty remedy procedures. Outside of the United States or Canada, neither these remedies nor any product support services offered by Company are available without proof of subscription from an authorized international source.
7.3 THE PRECEDING WARRANTIES ARE THE ONLY WARRANTIES RELATED TO THE PROGRAM, 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.
7.4 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 WARRANTY PERIOD. AS TO ANY DEFECTS DISCOVERED AFTER THE WARRANTY 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.
7.5 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.
8. LIMITATION OF LIABILITIES
IN NO EVENT WILL COMPANY, ITS PROGRAM 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 PROGRAM, 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.
9. PROFESSIONAL SERVICES
9.1 Scope of Services. Subject to the terms of this Agreement, including payment of all applicable Professional Services fees, Company may provide Professional Services in connection with the Program as specified in one or more Statements of Work ("SOW"). Each SOW will be governed by the terms of this Agreement. In the event of a conflict or inconsistency between the terms of this Agreement and those of an SOW, the terms of this Agreement will control, unless this Agreement expressly permits the SOW to override the applicable term of this Agreement. Customer acknowledges that Company may update the Services Guide from time to time. Modifications to the Services Guide will not take effect, with respect to implementation Professional Services contracted for pursuant to Schedule B or, with respect to all other Professional Services contracted for pursuant to a Statement of Work in effect at the time an update is issued, until completion of such in-progress Professional Services.
9.2 Change Orders. Professional Services described in each SOW are based upon Company's understanding of Customer's technical environment, data, needs and personnel, as of the applicable SOW effective date. Any substantive change to the technical environment or any latent or unusual conditions that materially impact the scope, cost, manner, method or schedule to perform, or if Customer fails to meet its responsibilities or provide accurate, correct and complete information, or does not provide requested information in a timely fashion, as well as requests that alter scope tasks, Deliverables, assumptions or project schedule will be subject to the Change Order process described in this Section 9.2. Changes to the scope of the Professional Services under any SOW shall be made in writing and signed by both parties ("Change Order") prior to implementation of the changes.
Either party may initiate a request for a Change Order for reasons that may include regulatory changes, changes in scope, fees, project duration or other project issues or requirements (each, a "Change Request"). The initiating project coordinator will submit a written Change Request specifying any and all changes, as applicable, to the scope of work and any corresponding changes to the estimated fees, schedule, delivery or related terms in the applicable SOW, to the other party's project coordinator, and both parties will review the Change Request to ensure feasibility.
The receiving party will review and either accept or reject any Change Request submitted to it within five (5) business days of receipt. If the Change Request is rejected, both parties shall negotiate in good faith whether to continue performance of the Professional Services or suspend all Professional Services being performed until a mutually agreed-upon Change Order has been signed by both parties.
No Change Request will be binding upon either party until it is signed by the authorized representatives of both parties and becomes a Change Order. Change Orders are incorporated into the applicable SOW by reference upon signature by the second party to sign.
9.3 Cooperation. Customer shall cooperate reasonably and in good faith with Company in its performance of Professional Services by, without limitation: (a) obtaining all permissions and licenses from third parties necessary for Company to successfully perform the Professional Services, and make available to Company in a timely manner complete, current and accurate data, computer facilities, programs, files, documentation, sample output, feedback and other information required to perform the Professional Services and furnished by Customer (collectively, the "Customer Materials"); (b) allocating sufficient resources and timely perform any tasks reasonably necessary to enable Company to perform its obligations under each SOW; (c) being responsible for any errors, inaccuracies, inconsistencies or non-currentness of Customer Materials; (d) providing security passes to cover the duration of any SOW for all areas of Customer's facilities for which such access is required to perform the Professional Services, within, for any member of Company's project team, two (2) business days after such person's assigned start date; (e) providing adequate office workspace, telephone and any other facilities, copier and printer access, appropriately configured computer equipment with Internet access, access to Customer's knowledgeable employees and agents, continuous administrative access to Customer's licensed software account, and coordination of onsite, online and telephonic meetings as required; (f) timely responding to all inquiries, including requests for Change Orders, related to Professional Services and assign an internal project manager for each SOW authorized by Customer to act as a liaison between Company and Customer, to make decisions on behalf of Customer, and to serve as a primary point of contact for Company; (g) participating in testing upon request by Company, and in all scheduled project meetings, including kick-off meetings; (h) requiring Customer's third-party consultants or contractors to cooperate with Company as necessary for Company to perform the Professional Services; (i) conducting its own analysis of its network, hardware, software and other technology infrastructure, in order to ensure optimal post-completion access to the Program; (j) if Professional Services to be performed under an SOW involve electronic/network transfer or conversion of Customer data, provisioning and enabling any network components or services required in order to facilitate Customer's data transfer or conversion; and (k) being responsible for all communications to Customer's internal users, including notification of maintenance and migration windows, or training sessions, as applicable and required. Collectively, (a) – (k), along with any Customer responsibilities set forth in an applicable SOW, are "Customer Responsibilities".
9.4 Professional Services Fees; Invoicing. All fees for Professional Services are earned when paid and are nonrefundable and non-cancellable hereunder. Customer shall not cancel or terminate any SOW or any Professional Services prior to completion. Unless otherwise set forth in an SOW, all fees for Professional Services are due prior to commencement of Professional Services. Expenses will be invoiced monthly as incurred. Customer is responsible for providing Company with complete and accurate billing and contact information and for notifying Company promptly of any changes to such information.
9.5 Deliverables. Subject to the terms of this Agreement and its compliance with the use restrictions set forth herein, Customer has a limited, non-transferable, non-sublicensable, nonexclusive right to use and reproduce any deliverable furnished or developed under an SOW (each, a "Deliverable"), during the Term, solely for Customer's or its Affiliates' internal business purposes in conjunction with Customer's use of the Program. Customer shall not itself, or through any third party: (a) decompile, disassemble, reverse engineer, or otherwise attempt to (i) derive source code or underlying ideas, algorithms, structure or organization from the Deliverables or (ii) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Deliverables, including without limitation any such mechanism used to restrict or control the functionality of the Deliverables; (b) sell, lease, license, sublicense, distribute or otherwise provide to any third party or any other person the Deliverables, in whole or in part; (c) modify or create derivative works of the Deliverables; or (d) use or reproduce the Deliverables, except as permitted hereunder.
10.1 Governing Law. Any action, suit, or proceeding arising under or in connection with the Program, Maintenance & Support Services or this Agreement must be commenced within one (1) 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 Program 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 Program 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, each party's assignee must agree in writing 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 thirty (30) days fully document and certify any and all use of the Program 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 Program and the Services (if any) and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Program, the Services 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 Services) shall be in writing and shall be given by mail, postage prepaid or by overnight delivery addressed to the respective parties, if to You, at Your "Bill To" address set forth on the Software Order, or to Company at:
FOR CONCORDANCE AND LAW PREDISCOVERY CUSTOMERS:
LexisNexis, a division of RELX Inc.
Attention: Legal Department
1801 Varsity Drive
Raleigh, NC 27606
FOR CASEMAP AND SANCTION CUSTOMERS:
LexisNexis, a division of RELX Inc.
Attention: Legal Department
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.
10.11 United Kingdom Customers. For those customers that subscribe to the Program in the United Kingdom, the following shall apply:
"Company" shall be defined as RELX Inc. (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 RELX Inc. in the United States, for the purposes of (a) providing access to and use of the Program to Authorized Users, and (b) providing customer support, billing and other similar activities related to the Program.
"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 fifty percent (50%) of the votes of that entity.
"Authorized Users" means Your employees, agents, representatives, contractors or customers whom You provide access to the Program.
"Covered Programs" means any current Program that You have licensed pursuant to this Agreement that is a currently supported Software version for the numbers of Licenses set forth on the current Software Order. Supported versions include the current version and the prior two (2) major releases (Upgrades) of the Program.
"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 a Program, 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 Program 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.
"License Fee" means the one-time perpetual right-to-use fee. The License Fee does not include Maintenance & Support Services.
"Maintenance & 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 Program that does not operate in accordance with its written specifications.
"Problem" means Software that does not operate substantially in accordance with its written specifications; or Documentation that is not correct.
"Schedule A" means the terms relating to Maintenance & Support attached to this Agreement and the terms of which are incorporated herein by reference.
"Professional Services" means implementation, data conversion, training or related services performed pursuant to a Statement of Work.
"Software" means computer programs identified herein or on any associated Software Order, in machine-readable form for use on designated CPU(s) or by Authorized Users including (1) the original and all whole or partial copies, (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. 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 You accept this Agreement, which shall begin the Term.
"Software Order" means that document setting forth the number of units, Subscription Fees, License Fees, Maintenance & Support Services or other Services fees, if applicable, associated with the Program. The Software Order may be a paper form or may be comprised of an order form, proposal, quote or the online form You completed or the information You provided verbally, when ordering a Program and any confirmation of the information You provided, including but not limited to Your election with regard to Term, and is a part of this Agreement.
"Subscription" means a license to access and use the Program, subject to this Agreement, for a Term specified in a Software Order, which use is conditioned on payment of a Subscription Fee for the current period. A Subscription may be renewed by paying the Subscription Fee for the succeeding period. A Subscription includes Maintenance & Support Services at no additional charge.
"Subscription Fee" means the amount payable by You for the access and use of the Program for a period specified in a Software Order.
"System Administrator" means Your employee or agent 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 releases of a Program 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 Program. Updates are generally designated by a change in the number appearing to the right of the initial decimal point in the Program'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 Program's version number (i.e., 2.0 vs. 1.0). Upgrades that include Changes to the base code or platform or changes that include interoperability with other applications or functionality provided by third-party code ("Core Upgrades") may be provided at incremental additional cost to You.
"Workaround" means a temporary solution to a Problem.
B. TERMS THAT APPLY TO A PERPETUAL RIGHT TO USE THE SOFTWARE
1. RIGHT TO USE
Company permits You to use the Program only in accordance with the terms of this Agreement. Subject to Your payment of the License Fees set forth in the Software Order and Your compliance with the other terms of this Agreement, Company grants to You a limited, personal, perpetual, non-exclusive, nontransferable and non-assignable (except as this Agreement otherwise provides) license to use the Program and Documentation as set forth in this Agreement.
The License Fees do not include the Services set forth in Schedule A, which may be available as a single or multi-year subscription for an additional annual fee.
C. TERMS THAT APPLY TO A SOFTWARE SUBSCRIPTION
1. SOFTWARE GRANT
Company permits You to use the Program only in accordance with the terms of this Agreement. Subject to Your payment of the Subscription Fees set forth in the Software Order 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 Program and Documentation during the Term as set forth in this Agreement.
2. INVOICES AND PAYMENT
2.1 Subscription Fees and any related charges shall be payable within thirty (30) days of the date of Company's invoice. At its sole option, Company may use a third party or Matthew Bender & Company, Inc. (a RELX Inc./LexisNexis affiliate), as Company's billing, payment and invoicing agent for selected products and services offered by Company and its affiliated companies.
2.2 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.
3. TERM, TERMINATION OR EXPIRATION OF AGREEMENT
The term of this Agreement shall commence with an initial term of as outlined in a Software Order (the "Initial Term"). Thereafter, You may renew this agreement by written agreement. The amount of charges to Your subscription for any such renewal shall be at Company's then current prices in effect.
During the Term, the Agreement may not be terminated except as follows:
3.1 If You fail to pay any invoice in full within a period of thirty (30) days after the same is due, Company may terminate this Agreement upon five (5) business days' notice to You without any liability to You whatsoever.
3.2 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 thirty (30) days written notice, provided however, that the party in breach will have thirty (30) days from the receipt of notice of termination to correct the default.
3.3 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 thirty (30) days after notice unless the terminating party is satisfied with other party's solvency within that time.
3.4 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 Software Order and any prepaid fees shall not be refunded. On termination or expiration of this Agreement for any reason, You, at Your option, will either (1) destroy all copies of the Program, 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. Upon termination of the Agreement due to Company's material breach (which breach Company fails to cure within thirty (30) days after receipt of written notice thereof) or in the event any Company assignee fails to agree to abide by the material terms and conditions of this Agreement following any applicable assignment (which failure such assignee fails to cure within thirty (30) days after receipt of written notice thereof), You shall be entitled to a prorated refund for all prepaid and unused fees for the affected Program or Service during the applicable Subscription Term.
3.5 If Your Subscription expires without renewal or is terminated, You will no longer have the right to access and use the Program or the subscriber online portal.
MAINTENANCE & SUPPORT AND PROFESSIONAL SERVICES
1. MAINTENANCE & SUPPORT SERVICES
A. Delivery of Updates/Upgrades. Except for Core Upgrades, provided You have paid the Subscription Fees, whenever Company makes Updates or Upgrades generally available to its users who have subscribed to the 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 Program. 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 Program.
B. Access to Support. Provided You have paid Subscription Fees, during its normal business hours of 9:00 a.m. to 6:00 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 Program. Your System Administrator will be responsible for the daily maintenance of the Program per the Documentation, and will provide the first line technical support of the Program to Your users. Support includes assistance relating to any Fixes and Workarounds.
Company reserves the right to change or modify the Maintenance & Support Services at any time and from time to time upon sixty (60) days written notice to You.
2. USE GRANT FOR REMOTE ASSISTANCE
You may permit any device to access and use Your authorized copy of the Program 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 Support Services provided to You, if any, related to the Program. 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. Unless You otherwise agree in writing, Company will not disclose this information in a form that personally identifies You to any third parties.
3. MAINTENANCE & SUPPORT SERVICE EXCLUSIONS
Unless otherwise agreed to in writing by Company, the Maintenance & Support Services and the charges quoted by Company for such Services do not cover or include the following:
A. Support of a Program which has been modified or repaired other than by Company;
B. Making specification changes or performing Services connected with the relocation of a Program;
C. Modification or replacement of a Program, 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 Program, repair of damage, or increase in service time caused by the use of the Program 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 Program, 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
F. Modification or replacement of a Program, or increase in service time caused by the use of the Program in combination with other products or materials not furnished by Company or in combination with other products 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 Program;
J. Creation of any new non-standard, Customer-defined reports;
K. Installation of the Program;
L. Use of the Software other than in accordance with system requirements; or
M. Support of Software which is not a Covered Program.
Upon mutual agreement, 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.
4. 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 Program 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 Program 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 Maintenance & 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. Unless You otherwise agree in writing, Company will not disclose this information in a form that personally identifies You to any third parties.
5. SOFTWARE UPDATES, FIXES AND UPGRADES
You agree that all Updates, Upgrades (including Core Upgrades) and Fixes or Workarounds furnished to You shall be deemed to be part of the Program subject to the terms and conditions of this Agreement.
6. ADDITIONAL CPUs or ADDITIONAL AUTHORIZED USERS
If You become authorized under the terms of any separate Agreement to use the Software on additional CPU(s) or for additional Authorized Users to access and use the Software, and You desire to include such additional CPU(s) or Authorized Users under this Schedule A, 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.
7. PROFESSIONAL SERVICES AND TRAINING
A. Scope of Professional Services. Subject to the terms of this Agreement, including payment of all applicable Professional Services fees, Company may provide data conversion, implementation services or training in connection with the Program as specified in one or more Statements of Work or other ordering document ("SOW"). Each SOW will be governed by the terms of this Agreement. In the event of a conflict or inconsistency between the terms of this Agreement and those of an SOW, the terms of this Agreement will control, unless this Agreement expressly permits the SOW to override the applicable term of this Agreement.
B. Change Orders. Services described in each SOW are based upon Company's understanding of Your technical environment, data, needs and personnel, as of the applicable SOW effective date. Any substantive change to the technical environment or any latent or unusual conditions that impact the scope, cost, manner, method or schedule to perform, or if You fail to meet Your responsibilities or provide accurate, correct and complete information, or do not provide requested information in a timely fashion, as well as requests that alter scope tasks, deliverables, assumptions or project schedule, will be subject to the Change Order process described in this Section 7.B. Changes to the scope of the Professional Services under any SOW shall be made in writing and signed by both parties prior to implementation of the changes.
C. Cooperation. You agree to cooperate reasonably and in good faith with Company in its performance of Professional Services by obtaining all permissions and licenses from third parties necessary for Company to successfully perform the Professional Services, and make available in a timely manner complete, current and accurate data, computer facilities, programs, files, documentation, sample output, feedback and other information required to perform the Professional Services.
D. Services Fees; Invoicing. All fees for Professional Services are earned when paid and are nonrefundable. Unless otherwise set forth in an SOW, all fees for Professional Services are due prior to commencement of Professional Services. Expenses will be invoiced monthly as incurred. You are responsible for providing Company with complete and accurate billing and contact information and for notifying Company promptly of any changes to such information.
E. Deliverables. Subject to the terms of this Agreement and Your compliance with the use restrictions set forth herein, You are a limited, non-transferable, non-sublicensable, nonexclusive right to use and reproduce any deliverable furnished or developed under an SOW (each, a "Deliverable"), during the Term, solely for Your internal business purposes in connection with Your use of the Program. You may not: (a) decompile, disassemble, reverse engineer, or otherwise attempt to (i) derive source code or underlying ideas, algorithms, structure or organization from the Deliverables or (ii) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Deliverables, including without limitation any such mechanism used to restrict or control the functionality of the Deliverables; (b) sell, lease, license, sublicense, distribute or otherwise provide to any third party or any other person the Deliverables, in whole or in part; (c) modify or create derivative works of the Deliverables; or (d) use or reproduce the Deliverables, except as permitted hereunder..
8. WARRANTY FOR SERVICES
Company warrants to You that Maintenance & Support Services and the Professional Services (collectively, the "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 affected Services, 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 affected Services.
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.
In connection with providing and performing the Services, a party (the "Discloser") may disclose to the other party (the "Recipient") information that is non-public, proprietary, a trade secret or confidential in nature ("Confidential Information"). Notwithstanding anything to the contrary herein, Confidential Information shall be deemed to include, but not limited to: (a) information of or regarding Your or Company's business and customers; (b) the Program and documentation; and (c) either party's technical and business information relating to inventions or software, research and development, future product specifications, implementation methodologies, engineering processes, costs, profit or margin information, and marketing and future business plans. The parties agree, unless required by law, to refrain from disclosing any Confidential Information to any third party for any purpose other than as necessary to perform under this Agreement. The Recipient shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, dissemination or publication of the Confidential Information. Each Recipient may disclose Confidential Information to its representatives, which shall include its officers, directors, members, agents, employees, contractors, on a need-to-know basis only, and Recipient shall advise each such representative of these confidentiality obligations. The parties acknowledge that any breach of its obligations with respect to Confidential Information may cause the other irreparable injury for which there may be inadequate remedies at law and that Discloser shall be entitled to seek equitable relief in addition to all other remedies available to it. A party's Confidential Information shall not include information that: (i) is or becomes publicly available through no act or omission of Recipient; (ii) was in the Recipient's lawful possession prior to the disclosure and was not obtained by Recipient either directly or indirectly from the Discloser; (iii) is lawfully disclosed to the Recipient by a third party without restriction on Recipient's disclosure, and where the Recipient was not aware that the information was the confidential information of Discloser; or (iv) is independently developed by the Recipient without reference to or use of Discloser's Confidential Information. To the minimum extent use or disclosure is required by court order or other mandatory regulatory or governmental request or as otherwise required by law (collectively, "Order"), Recipient shall promptly notify the Discloser of such Order (to the extent permissible) prior to making any such use or disclosure in order to provide Discloser the opportunity to challenge the Order or seek confidential treatment of the affected Confidential Information. The parties agree to hold each other's Confidential Information in confidence for a period of three (3) years following the termination of this Agreement.