1. DEFINITIONS
"Additional Charges" means additional sums which may be charged under these Support Terms in accordance with Neuxpower’s rates from time to time for work undertaken on a time and materials basis;
"Effective Date" means the date on which the Customer indicate its acceptance of these Support Terms by clicking "'I agree to the terms of the maintenance agreement' and then clicking Continue".;
"Fault" means either (a) a failure of the Software to perform in accordance with the Documentation; or (b) a cessation, interruption or degradation of the usual functionality of the Software;
"Licence" means the licence agreement pursuant to which the Customer is authorised by Neuxpower to use the Software;
"Maintenance Release" means (i) any corrected version of the Software from time to time issued by Neuxpower; (ii) any maintenance and/or new release of the Software from time to time issued by Neuxpower;
"Documentation" means the user manual, as amended from time to time, which is available to download from the internet using the url: http://www.nxpowerlite.com/Using%20NXPowerLite.pdf
"New Release" means any improved or modified version of any of the Software from time to time issued by Neuxpower;
"Permitted Number" shall be interpreted in accordance with the Licence;
"Per User Licence Fee" means the licence fee in respect of each of the Permitted Number, which is payable by the Customer to Neuxpower pursuant to the Licence (and which, if not expressly set out in the Licence, may be calculated as the fee payable pursuant to the Licence divided by the Permitted Number);
"Services" means the provision of support in respect of the Software by Neuxpower pursuant to these Support Terms;
"Software" means NXPowerLite Desktop Editions (Standard and/or Integrated Edition);
"Support Fee" shall mean the periodic charge for the relevant service as specified on our website at http://www.nxpowerlite.com/purchase-form1.php and as increased from time to time pursuant to clause 3.3;
"Support Terms" means these terms and conditions of maintenance and support;
"Authorised Representative" means a member of the Customer’s staff notified to Neuxpower as being an authorised Customer contact for reporting Faults to Neuxpower and receiving Fault rectifications, limited to the number of 5 Authorised Representatives;
"Working Day" means (i) in respect of Services provided in English all days excluding weekends and United Kingdom bank and public holidays; and (ii) in respect of Services provided in French, shall mean all days excluding weekends and French national holidays; and (iii) in respect of Services provided in German shall mean all days excluding weekends and German national holidays.
2. PROVISION OF SERVICES
On payment of the Support Fee in accordance with clause 3 below Neuxpower shall provide the Services to the Customer upon these Support Terms for the period to which that payment relates.
3. FEES
3.1 The Support Fee shall be payable by the Customer annually in advance and on the CustomerEffective Date and on each anniversary thereof. The Support Fee is exclusive and net of value added tax and any other sales tax that the Customer will be additionally liable to pay.
3.2 Neuxpower reserves the right to charge the Customer interest in respect of the late payment of any sum due under these Support Terms at the rate of 4 per cent per annum above the base rate from time to time of Barclays Bank PLC from the due date therefor until payment.
3.3 Neuxpower shall be entitled to increase the Support Fee by giving to the Customer not less than 90 days prior written notice such notice to expire on an anniversary of Effective Date. Notwithstanding the foregoing, no increase in Support Fees shall take effect in respect of any period for which the Customer has paid in advance.
3.4 Throughout the term of these Support Terms, in the event that the Customer wishes to increase the Permitted Number under the Licence (or to execute a new Licence for additional users), the fee payable in respect of such increase shall be the Per User Licence Fee multiplied by the increase in the Permitted Number.
4. TECHNICAL SUPPORT
4.1 The Services provided by Neuxpower comprise the following:-
4.1.1 the provision of advice by email on a priority basis on the use of the Software;
4.1.2 the diagnosis of Faults in the Software and instructions as to the rectification of such Faults by email on a priority basis;
4.1.3 the creation and dispatch to the Customer of Maintenance Releases.
4.2 The Customer shall supply by email to Neuxpower a detailed description of any Fault requiring the Support Services and the circumstances in which it arose forthwith upon becoming aware of the same.
4.3 Neuxpower shall use its reasonable endeavours to respond to the Customer within 2 Working Days of a request for Services. This response shall include an initial analysis of the reported Fault. Thereafter, Neuxpower shall use its reasonable endeavours to provide a rectification to the Fault as soon as reasonably possible thereafter.
4.4 The Services shall not include the diagnosis and rectification of any Fault resulting from:
4.4.1 the improper use operation or neglect of the Software or the equipment upon which it is run:
4.4.2 the modification of the Software or its merger (in whole or in part) with any other software except as permitted by the Licence;
4.4.3 the failure by the Customer to implement Maintenance Releases or recommendations in respect of or solutions to Faults previously advised by Neuxpower;
4.4.4 any repair adjustment alteration or modification of the Software by any person other than Neuxpower or an agent of Neuxpower without Neuxpower’s prior consent;
4.4.5 the use of the Software for a purpose for which it was not designed;
4.4.6 rectification of lost or corrupted data arising for any reason other than Neuxpower’s own negligence;
4.4.7 loss or damage caused directly or indirectly by operator error or omission;
4.4.8 a fault in Customer or third party software or applications or any upgrade or new release in respect thereof;
4.4.9 a fault in the equipment or in any other software operating in conjunction with or closely with the Software.
4.5 Neuxpower shall upon request by the Customer provide Support notwithstanding that the Fault results from any of the circumstances described in clause 4.4 above or shall provide Support to the Customer in circumstances which are not covered by these Support Terms. Neuxpower shall in such circumstances be entitled to levy Additional Charges monthly in arrears and shall be paid by the Customer (together with value added tax thereon) within 14 days of receipt of an invoice in respect of such Additional Charges.
4.6 All email contact with Neuxpower should be to the following email address unless the Customer is notified to the contrary by Neuxpower: prioritysupport@nxpowerlite.com.
5. WARRANTY
5.1 Subject to the exceptions set out in clause 4.4 and the limitations upon the liability of Neuxpower detailed in clause 6 below Neuxpower warrants that it will perform the Services with reasonable care and skill.
5.2 Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the provision of the Services are hereby excluded to the fullest extent permitted by law.
6. LIABILITY
6.1 Subject to clause 6.4 below the total liability of Neuxpower under these Support Terms shall not exceed the Support Fees paid in the twelve months preceding the date of the claim.
6.2 Neuxpower shall not be liable to the Customer for loss of profits, business or business benefits or other indirect or consequential loss whether arising from negligence breach of warranty, contract or otherwise.
6.3 Neuxpower does not seek to limit or exclude liability for death or for personal injury arising from Neuxpower’s negligence.
6.4 Neuxpower shall not be liable to the Customer for any loss arising out of a failure by the Customer to keep full and up to date security copies of the Software and data it uses in accordance with best computing practice.
7. TERM AND TERMINATION
7.1 This Agreement shall continue until terminated in accordance with the provisions of clause 7.2 below.
7.2 This Agreement may be terminated:
7.2.1 by either party giving not less than 60 days' written notice to the other such notice to terminate on an anniversary of the Effective Date;
7.2.2 forthwith by Neuxpower if the Customer fails to pay any sum due hereunder within 30 days of the due date therefor;
7.2.3 forthwith by Neuxpower or the Customer if the other commits any material breach of any term of any of these Support Terms and which (in the case of a breach capable of being remedied) shall not have been remedied within 90 days of a written request to remedy the same;
7.2.4 forthwith by Neuxpower or the Customer if the other shall convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part 1 of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction);
7.2.5 forthwith by Neuxpower or the Customer upon termination of the Licence for whatever reason.
7.3 Any termination of this Agreement pursuant to this clause 7 shall be without prejudice to any other rights or remedies to which Neuxpower and the Customer may be entitled hereunder or at law and shall not affect any accrued rights or liabilities of either of them nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
8. MISCELLANEOUS
8.1 Neither Neuxpower or the Customer hereto shall be liable for any breach of the Support Terms resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees) insurrection or riots, wrecks or delays in transportation, inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an "Event of Force Majeure"). Each of Neuxpower and the Customer agree to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure shall continue for more than 13 weeks then the party not in default shall be entitled to terminate the Support Contract. Neither Neuxpower nor the Customer shall have any liability to the other in respect of such termination as a result of an Event of Force Majeure.
8.2 The waiver by either Neuxpower or the Customer of a breach or default of any of the Support Terms by the other shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either Neuxpower or the Customer to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other.
8.3 Any notice request instruction or other document to be given hereunder shall be delivered or sent by first class post or by email or facsimile (in all cases to be confirmed by letter posted within 12 hours) to the address of the other set out or referred to in the Support Terms (or such other address as may have been notified) and any such notice or other document shall be deemed to have been served and deemed to have been received (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by email or facsimile) upon the expiration of 12 hours after dispatch.
8.4 If any provision of the Support Terms shall be found by any court to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the Support Terms and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.
8.5 Neuxpower shall not be liable to the Customer for loss arising from or in connection with any representations agreements statements or undertakings made prior to the Effective Date.
8.6 This agreement shall bind and inure for the benefit of the successors in title of Neuxpower or the Customer hereto.
8.7 The Support Terms shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the exclusive jurisdiction of the English courts.
8.8 Each Party agrees it shall not solicit the employment, directly, or indirectly, of any of the other Party's employees or contractors during the period of this Agreement and for a period of six months thereafter, without the express written approval of the other.
8.9 This Agreement does not create, and shall not be construed as creating, any right under the Contracts (Rights of Third Parties) Act 1999 which is enforceable by any person who is not party to it.