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Lisp Support and Maintenance Terms

1 DEFINITIONS

1.1 "Documentation" means the operating manuals, user instructions, technical literature and all other related materials supplied to the Licensee by the Vendor for aiding the use of the Licensed Program.

1.2 "Equipment" means such computer equipment as the Licensed Program is installed on in accordance with the Documentation

1.3 "Error" means any failure of the Licensed Program to substantially conform to the specification in the Documentation.

1.4 "Licence" means the licence granted by the Vendor to the Licensee to use the Licensed Programs.

1.5 "Licensed Program" means the software licensed by the Vendor to the Licensee and in respect of which the Licensee has entered a support and/or maintenance contract.

1.6 "Licensee" means the person, company or organisation granted a Licence.

2 SUPPORT AND MAINTENANCE

2.1 The Vendor shall provide the support and/or maintenance described in the Lisp Support and Maintenance page.

2.2 The Vendor warrants to the Licensee that all services supplied under this Agreement will be carried out with reasonable care and skill by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.

2.3 Except as expressly provided in this Agreement, no warranty, condition, undertaking or term, express or implied, statutory or otherwise, is given or assumed by the Vendor, and all such warranties, conditions, undertakings and terms are hereby excluded.

2.4 The Licensee hereby agrees that its sole remedy in respect of any non-conformance with any warranty in this Agreement is that the Vendor will remedy such non-conformance (either by itself or through a third party) and if, in the Vendor's reasonable opinion, it is unable to remedy such non-conformance, the Vendor will refund the Support Fee or Maintenance Charge for the year in which the services, the subject of such claim, were supplied, if paid, whereupon this Agreement shall immediately terminate.

2.5 The Vendor does not warrant that all Errors can and will be corrected. The Vendor shall use its reasonable endeavours to correct Errors, so long as the Errors are repeatable by the Vendor, or to provide a software patch; or to bypass around such Error.

3 EXCLUDED SUPPORT AND MAINTENANCE

3.1 The Vendor shall be under no obligation to provide support and maintenance in respect of:

3.1.1 problems resulting from any modifications or customisation of the Licensed Program Materials or the Equipment not authorised by the Licence;

3.1.2 any software other than the Licensed Program;

3.1.3 incorrect or unauthorised use of the Licensed Program or operator error where these are defined as use or operation not in accordance with the Documentation;

3.1.4 any fault in the Equipment;

3.1.5 any programs used in conjunction with the Licensed Program;

3.1.6 use of the Licensed Program other than as specified in the Documentation;

3.1.7 use of the Licensed Program with computer hardware, operating systems or other supporting software other those specified in the Documentation; and

3.1.8 where applicable, the Licensee's failure to install and use upon the Equipment in substitution for the previous release any new release or version of the Licensed Programs within [7] days of receipt of the same.

3.2 The Vendor may at its discretion upon request by the Licensee provide support notwithstanding that the fault results from any of the circumstances described in clause 3.1 above. Any time spent by the Vendor investigating such faults will be chargeable at the Vendor's then current rates. The Vendor shall invoice such charges at its discretion and such shall be paid within 30 days of the date of said invoice.

3.3 The Vendor reserves the right to discontinue the support for any prior version of the Licensed Program if a superseding version has been available to the Licensee.

3.4 The Vendor shall not be obliged to make modifications or provide support in relation to the Licensee's computer hardware, operating system software, or third party application software or any data feeds or external data.

3.5 Support does not include extensive advice or explanations which the Vendor deems to be within the scope of any formal training, education or courses.

3.6 Support does not include telephone or on-site support services.

4 LIABILITY

4.1 Save in respect of claims for death or personal injury arising from the Vendor's negligence, in no event will the Vendor be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Vendor, whether such damages were reasonably foreseeable or actually foreseen.

4.2 Except as provided above in the case of personal injury, death and damage to tangible property, the Vendor's maximum liability to the Licensee under this Agreement or otherwise for any cause whatsoever (whether in the form of the additional cost of remedial services or otherwise) will be for direct costs and damages only and will be limited to a sum equivalent to the price paid to the Vendor for the services that are the subject of the Licensee's claim.

4.2.1 The parties hereby acknowledge and agree that the limitations contained in this clause 4 are reasonable in light of all the circumstances.

4.3 The Licensee's statutory rights as a consumer (if any) are not affected. All liability that is not expressly assumed in this Agreement is hereby excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort, including negligence, or any other form of action.

5 LICENSEE'S WARRANTY

5.1 The Licensee warrants that it shall comply in all material respects with all applicable laws, regulations and codes of conduct (whether statutory or otherwise), and that all licences, permissions and consents required for carrying on its business have been obtained and are in full force and effect.

6 LICENSEE'S OBLIGATIONS

6.1 The Licensee shall:

6.1.1 operate the software and maintain any related data in accordance with the Documentation;

6.1.2 by arrangement, grant access to premises and/or systems at all times for support and maintenance;

6.1.3 make hardware accessible to the Vendor's support staff, and when required enable logons/passwords required for such support staff (who will have their own logons);

6.1.4 install the Licensed Program, including any current version or release of the Licensed Program and any patches or bug fixes, that has been made available to the Licensee from time-to-time;

6.1.5 when upgrades or fixes occur, to provide a reasonable level of assistance in implementation and testing;

6.1.6 provide the Vendor with the name, telephone number and email address of an individual designated as the primary contact person who will be the person through which all communication with the Vendor is effected. The Licensee may change this contact upon notice to the Vendor.

6.2 The Licensee may report Licensed Program problems to the Vendor by email, telephone, facsimile, or post, but the Licensee must use email wherever practicable. When reporting problems, the Licensee must provide sufficient detail so as to enable the Vendor to fully understand, reproduce and/or diagnose the problem or difficulty, as appropriate. The problem should be reported in accordance with the bug reporting guidelines supplied with the Licensed Program and published at www.lispworks.com/support/bug-report.html.

7 CONFIDENTIAL INFORMATION

7.1 The Licensee undertakes to treat as confidential and keep secret all documentation and/ or information conveyed to the Licensee in respect of the software (hereinafter collectively referred to as 'the Information').

7.2 The Licensee shall not, without the prior written consent of the Vendor divulge, any part of the Information to any person except:

7.2.1 the Licensee's own employees and then only to those employees who need to know the same;

7.2.2 the Licensee's auditors, any tax authorities and any other persons or bodies having a right, duty or obligation to know the business of the Licensee, and then only in pursuance of such right, duty or obligation;

7.2.3 any person who is for the time being appointed by the Licensee to maintain any equipment on which the Licensed Programs are for the time being used (in accordance with the terms of the Licence) and then only to the extent necessary to enable such person to properly maintain such equipment.

7.3 The Licensee undertakes to ensure that persons and bodies mentioned in clause 7.2 are made aware, prior to the disclosure of any part of the Information, that the same is confidential, and that they owe a duty of confidence to the Vendor. The Licensee shall indemnify the Vendor against any loss or damage which the Vendor may sustain or incur as a result of the Licensee failing to comply with such undertaking.

7.4 The Licensee shall promptly notify the Vendor if it becomes aware of any breach of confidence by any person to whom the Licensee divulges all or any part of the Information and shall give the Vendor all reasonable assistance in connection with any proceedings which the Vendor may institute against such person for breach of confidence.

7.5 The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or this Agreement.

8 TERMINATION

8.1 The Licensee may terminate this Agreement at any time by giving at least 90 days' prior written notice to the Vendor.

8.2 The Vendor may terminate this Agreement forthwith on giving notice in writing to the Licensee if:

8.2.1 the Licensee commits any serious breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the Vendor so to do, to remedy the breach (such request to contain a warning of the Vendor's intention to terminate); or

8.2.2 the Licensee does not have a valid fully paid up Licence or permanently discontinues the use of the Licensed Program Materials.

8.3 Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it effect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come onto or continue in force on or after such termination.

8.4 If the Vendor terminates this Agreement pursuant to clause 8.2, then the Licensee shall not be entitled to any refund of the fees or any part thereof that has been paid under this Agreement.

9 THIRD PARTIES

9.1 A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from such Act.

10 PROPER LAW AND JURISDICTION

10.1 This Agreement shall be governed by and construed in accordance with English Law and the parties irrevocably submit to the exclusive jurisdiction of the Courts of England save that:

10.1.1 The Vendor shall have the right to sue to recover its fees in any jurisdiction in which the Licensee is operating or has assets, and

10.1.2 The Vendor shall have the right to sue for breach of its intellectual property rights and other proprietary information and trade secrets ('IPR') (whether in connection with this Agreement or otherwise) in any country where it believes that infringement or a breach of this Agreement relating to its IPR might be taking place. For the avoidance of doubt, the place of performance of this Agreement is agreed by the parties to be England.


Last updated: 3rd May 2005

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