Wallingford Software - Support Agreement

Software Maintenance and Technical Support Agreement

1. GENERAL TERMS

1.1. Definitions

The following expressions shall have the following meanings: -

"WSL" - Wallingford Software Limited, whose registered office is at Howbery Park, Wallingford, Oxfordshire, OX10 8BA, UK.
"Licensee" - the person, firm or company that has placed an Order.
"Number of Users" - the number of users specified in the Quotation who are authorised to use the Software.
"Order" - any purchase order issued by the Licensee for software and/or services from WSL.
"Quotation" - any quotation for the supply of Software or Services issued by WSL.
"Services" - the Services set out in this Software Maintenance and Technical Support Agreement.
"Site" - the location for which the Software may be used identified in the Quotation/Order.
"Software" - each WSL software program provided by WSL, including software in which WSL has sub-licensing rights, in executable, machine readable, object, printed or interpreted form, including any Software Protection Device and any documentation, modifications, improvements or updates supplied to the Licensee under any Quotation/Order.
"Software Protection Device" - the hardware or software protection key supplied by WSL.
"Software Licence" - the Software Licence supplied separately by WSL.

1.2. Incorporation Of Terms

These Terms shall apply to all Software and Services supplied by WSL under any Order placed by the Licensee. In the event of any ambiguity between these terms and the provisions of the Terms and Conditions of Sale and the Software Licence Agreement, the terms of the relevant Agreement shall apply.

2 TERM

The Licensee is required to enter into this Software Maintenance and Technical Support Agreement by placing an Order for it at the same time as placing an Order for the first year of use of the Software Licence at the costs provided in the Quotation. On the anniversary of the delivery of the Software the Licensee may enter into an additional years Software Licence and Technical Support Agreement by placing a purchase order upon WSL. The Licensee will be invoiced for the Services annually in advance.

3. FEES

3.1. The Service Fee will be a sum in accordance with the then current rates charged by WSL.

3.2. Travel and any accommodation expenses for additional services which are not covered by the terms of this Agreement will be charged at WSL's then current rates.

4. PAYMENT

4.1. Without prejudice to the Terms if the Licensee is more than 30 days late in the payment of any sum due to WSL pursuant to this Agreement or any other Agreement between WSL and the Licensee WSL may at its discretion suspend performance under this Agreement or any other related agreements after 10 days from the date of written notice of suspension.

4.2. Fees paid in advance, net of any amounts due to WSL from the Licensee (under any agreements then in force) will be refunded to the Licensee on a pro rata basis in the event that Services provided hereunder are terminated for any reason other than non-payment of the fee.

5. DESCRIPTION OF SUPPORT AND MAINTENANCE SERVICES

5.1. Customer Support Services

5.1.1. WSL will provide advice by telephone, letter, fax or e-mail on the use of the Software.

5.1.2. WSL will use all reasonable endeavours to respond to requests for Software application advice within 3 working days.

5.2. Software Maintenance Services

5.2.1. WSL will provide Software maintenance, which will be limited to the correction of errors in the Software, procedural documents and other basic information, supplied with the Software. The said Software maintenance will be carried out as set out in 5.2.2 and 5.2.4 below.

5.2.2. WSL will periodically provide the Licensee with a report of all significant errors and corrections for the Software covered by this Agreement.

5.2.3. Errors discovered by the Licensee must be reported by a designated representative of the Licensee through the reporting mechanisms by WSL and must include all required supplemental documentation.

5.2.4. WSL will use all reasonable endeavours to respond to the Licensee with an action plan to resolve the problem within 5 working days of an adequately completed Report and production of all required supplemental documentation.

5.3. For the avoidance of all doubt Software Maintenance Services shall not include the diagnosis and rectification of any fault arising from:-

5.3.1. the improper use, operation or neglect of either the Software or the Licensed Equipment;

5.3.2. The modification of the Software or its merger (in whole or in part) with any other software;

5.3.3. unless otherwise agreed by WSL in writing the use of the Software on equipment other than the Licensed Equipment;

5.3.4. The failure by the Licensee to implement recommendations in respect of the solutions and faults previously advised by WSL;

5.3.5. any repair, adjustment, alteration or modification of the Software by any person other than WSL without WSL's prior written consent;

5.3.6. Any breach by the Licensee of its obligations under this Agreement or the Licence;

5.3.7. The Licensee's failure to install and use on the Licensed Equipment in substitution for the previous release any new release of the Software within 90 days of receipt of the same;

5.3.8. The use of the Software for a purpose for which it was not designed; or

5.3.9. specialist advice on the application of the Software or specific engineering applications.

5.4. WSL may on the request of the Licensee provide support notwithstanding that the fault results from any circumstances described in clause 5.3 above or that the support requested is not covered by the terms of this Agreement. WSL shall in such circumstances be entitled to charge for such service at WSL's rates from time to time for work undertaken on a time and materials basis or fixed quote at the discretion of WSL.

5.5. Without prejudice to clauses 5.3 and 5.4 above WSL shall be entitled to levy reasonable charges if support is provided in circumstances where any reasonably skilled and competent data processing operator would have judged the Licensee's request to have been unnecessary.

5.6. Software Support Services

WSL agrees to provide the Licensee with the following Software support services with respect to the Software:-

5.6.1. WSL will provide the Licensee with all Software and related documentation for all enhancements (defined as new features, capabilities and operational characteristics) completed and implemented during the term of this Agreement;

5.6.2. WSL reserves the right to terminate software support for specified Software products on 60 days notice. In the event that Software support is terminated for one or more of WSL's Software products covered by this Agreement, this Agreement will automatically terminate as to such Software products and a pro rata proportion of any prepaid charges will be refunded in accordance with the terms of clause 4.2 above.

6. WARRANTY

6.1. WSL warrants to the Licensee that it will perform the Services provided for in this Agreement with reasonable skill and care.

6.2. The Licensee shall give notice to WSL as soon as it is reasonably able and in any event within 7 days on becoming aware of a breach of warranty.

6.3. Subject to clause 6.4 below WSL shall remedy any breach of the warranty set out in clause 6.1 above by the provision of Services free of charge.

6.4. WSL shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the circumstances described in clauses 5.3 and 5.4 above.

7. TERMINATION

7.1. This Agreement may be terminated on any anniversary of the date of this Agreement by WSL or the Licensee giving at least 30 days written notice to the other party such notice to take effect no sooner than the first anniversary or any subsequent anniversary of this Agreement.

7.2. WSL may terminate this Agreement if the Licensee fails to comply with the Terms or any related agreement between WSL and the Licensee.

7.3. The Licensee may terminate this Agreement if WSL fails to comply with the Terms or any related agreement between WSL and the Licensee provided that WSL has been given 30 days prior written notice during which WSL has failed to correct the breach where such breach is capable of remedy.

7.4. This Agreement shall be terminated with respect to any particular item of Software on the date any such Software Licence expires or the Licence is terminated for any reason.

8. SOFTWARE LICENCE

The Licensee has been granted a licence by WSL in the terms of a separate Software Licence to use Software being supported under this Agreement and acknowledges that any replacements, improvements or additions to that Software provided under this Agreement will be subject to the terms and conditions of the Licence.