Software Support Terms & Conditions

          Definitions

a)            ‘Agreement’ means refers to the Software Support Agreement between Extra Resource Limited (ERL) – trading as Document Genetics - and the Customer as set forth herein.

b)            ‘Software Support’ means the consultancy services provided by ERL to the Customer under ‘Scope of Services’.

c)             ‘Prevailing Rate” shall be the rate charged for the time being by ERL for Software Support.

d)            ‘Customer’ and 'You' means the person, company or entity purchasing software support from ERL.

          1. Terms

1.1.      This Agreement shall become effective on the date upon which it is accepted by ERL. This Agreement shall remain in full force and effect for a one (1) year period at the Prevailing Rate charged by ERL and shall be automatically renewed for a further period of one year, unless either party gives written notice at least ninety (90) days prior to the renewal date that it does not wish to continue with this Agreement. Notwithstanding the above, should the Prevailing Rate exceed the rate charged for the previous year by more than ten (10) percent, then this Agreement shall not be renewed automatically without the prior written consent of the Customer.

1.2.      The Customer shall pay in advance a support fee at the Prevailing Rate for the first year, and at the Prevailing Rate at the time of renewal for subsequent years.

1.3.      In consideration of the rights and obligations contained in this Agreement, You shall pay the support fee without any right of deduction or set-off.

          2. Scope of Services

2.1     ERL’s Software Support is limited to support during ERL’s regular working hours (09.00 to 17.00, Monday to Friday, excluding Public Holidays and the Christmas Shutdown between and including 24th December and 1st January). Telephone support shall consist of advice and guidance to the customer on installation and operation of the software, common operation methods and any other matters relating to software supplied by ERL and covered by this Agreement

2.2     Additional services may be provided or the telephone support service offered out of normal office hours by ERL at a rate to be agreed between the parties.

2.3     Minor revisions and technical fixes, subject to availability from the software author(s), manufacturers or distributors.

2.4     Notwithstanding the Software Support provided by ERL under this Agreement, the Customer is reminded that no representation and/or warranty is given by ERL guaranteeing that a solution will be found to any problem brought to its attention. ERL’s obligations are limited to the provision of advice and guidance only.

2.5     ERL can also provide remote access support either using a product specified by the customer or using ERL’s preferred method.

          3.  Customer Obligations

3.1.      As a condition of receiving the support services set out in this Agreement, the Customer must:

  1. provide a signed copy of this Agreement to ERL.
  2. promptly load and test all software provided by ERL.
  3. perform all reasonable software tests requested by ERL in the event of software problems.
  4. provide on request written reports of software problems by telephone, fax, e-mail or post.
  5. provide ERL with complete co-operation in resolving any software problems;
  6. use the software in accordance with the suppliers’ operating instructions;
  7. limit access to the telephone help line to designated Customer staff who have received appropriate training;
  8. ensure that only properly trained employees operate or use the system in accordance with the operating instructions;
  9. not make any modifications or additions to the software or system, except with ERL’s prior written consent;
  10. agree to treat as proprietary to ERL and confidential all information, data, drawings, specifications, documentation, software listings, source or object code which ERL may have imparted and may from time to time impart to the Customer relating to the software support services. The Customer hereby agrees that it shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or after the expiry or termination of this Agreement disclose the same, whether directly or indirectly to any third party without ERL’s prior written consent.
  11. ensure that ,where mutually agreed, remote access to the system by ERL is available by modem. Provision of suitable hardware and software to supply this service shall be the responsibility of the Customer.

          4. Services not covered by this Agreement

4.1.      Problems and questions arising, in the reasonable opinion of ERL, from operation of the software outside its design specification.

4.2.      Support services provided outside ERL’s regular working hours, and on-site service or personal consultations provided at any time.

4.3.      Services in respect of defects or errors resulting from any modifications or enhancements to the software not made by ERL or made without the prior written consent, or resulting from incorrect use of the software.

4.4.      ERL is not obliged to support the software if the Customer is not using the current versions of the operating system software as specified by ERL from time to time or if the Customer fails to maintain the software at ERL’s specified release level (unless expressly agreed in advance by ERL).

4.5.      ERL will only undertake responsibility for software on a designated hardware system if the hardware is covered by this Agreement or is the subject of a separate hardware maintenance agreement between the manufacturer of the hardware and a reputable third party maintainer.

4.6.      Major new software versions or releases.

4.7.      ERL is not obliged to support the software if malfunctions are due to incorrect use of the software or for any reason external to the software including, but not limited to, failure or fluctuation of electrical supplies, hardware failures, accidents or natural-disasters.

4.8.      Should the authors of the software make such changes that require 3rd party modules to be updated or purchased, the customer must purchase or upgrade such software or risk losing functionality as a result. No claim can be made against ERL or the appropriate author for reimbursement.

          5.  Charges

5.1.      The annual Software Support charge shall be invoiced once each year and shall be paid by the customer on or before the first day of the Agreement or immediately upon receipt of the invoice, whichever is later.

              5.1.1     If the said invoice is not paid on or before the first day of the Agreement, ERL reserves the right to charge the Customer a £295 reconnection fee.

5.2.      ERL reserves the right to charge the Customer for the supply of media and all taxes, duty, handling and shipping costs relating to the supply of software upgrades which will be transferred at cost.

5.3.      ERL reserves the right to charge the customer the current daily rate at the time for time spent investigating problems which fall outside Software Support as defined in this Agreement.

5.4.      In consideration of the rights and obligations contained in this Agreement, You shall pay the Fee without any right of deduction or set-off.

          6.  Limitation of Liability

6.1.      ERL will indemnify You for direct physical injury or death caused by negligent Software Support provided by our employees acting within the course of their employment and the scope of their authority.

6.2.      We will indemnify You for direct damage to property caused by negligent Software Support provided by our employees acting within the course of their employment and the scope of their authority. Our total liability under this sub-clause will be limited to twice the amount payable by You for Software Support for any one event or series of connected events.

6.3.      Except as expressly stated in this clause and elsewhere in this Agreement, any liability of ERL for breach of this Agreement will not exceed in the aggregate of damages, costs, fees and expenses capable of being awarded to You twice the amount payable by You for Software Support.

6.4.      Except as expressly stated in this Agreement, ERL excludes all liability to You in connection with ERL’s performance of this Agreement and in no event will ERL be liable to You for special, indirect or consequential damages (whether caused by ERL’s negligence or otherwise) including but not limited to loss of profits and/or savings or arising from loss of data or unfitness for use or purposes.

6.5.      You will indemnify and defend ERL and its employees in respect of any third party claims which arise from any performance by ERL carried out on the instructions of You or your authorised representatives.

6.6.      You will also indemnify ERL in respect of any losses or expenses incurred by ERL as a result of your failure to maintain adequate current licences for any third party software which ERL needs to use.

          7. Miscellaneous

7.1.      If any provision of this Agreement shall be held invalid, illegal or unenforceable for any reason, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.

7.2.      Failure by the Customer to perform an obligation or covenant under this Agreement shall constitute a default. In the event of a default, ERL may at its sole discretion terminate this Agreement immediately upon written notice to the Customer.

7.3.      With regard to any dispute which give rise to your commencing legal proceedings against ERL in connection with or arising out of this Agreement, this Agreement is governed by the laws of England and Wales to the exclusive jurisdiction of whose courts the parties submit, but this shall not prevent ERL from starting proceedings in any jurisdiction where You are carrying on business.

7.4.      The Customer shall not assign or otherwise transfer all or part of this Agreement without written consent of ERL.

7.5.      Force Majeure: ERL shall not be responsible for any failure to provide software support services or perform any obligation under this Agreement because of any act of God, strike, lock-outs or other industrial disputes (whether involving the workforce of ERL (or any other party) or compliance with any law of governmental or any other order, rule, regulation or direction, accident, fire, flood, storm or default of suppliers, work stoppage, war, riot or civil commotion, equipment or facilities shortages which are being experienced by providers of telecommunication services generally, or other similar events beyond its reasonable control.