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<br />THOMSON
<br />*
<br />ELITE
<br />
<br />Annual Maintenance Charge for Maintenance Services in respect of
<br />the Licensed Software for the first year is set forth in Exhibit A and
<br />shall be payable as set forth in Exhibit A. Maintenance Services for
<br />the Licensed Software shall automatically renew for successive one
<br />year terms, unless terminated by either party by giving the other
<br />party thirty (30) days written notice prior to the end of the existing
<br />term. For subsequent terms the Annual Maintenance Charge shall
<br />be payable annually in advance. Thomson Elite reserves the right to
<br />increase the Annual Maintenance Charge for subsequent terms and
<br />shall give Customer advance notice of such increases.
<br />
<br />4.5 Taxes, Thomson Elite fees are exclusive of sales, use, ad
<br />valorem, personal property and other taxes, which are the sole
<br />responsibility of Customer.
<br />
<br />4.6 Expenses. All reimbursable costs consisting of but not
<br />limited to reasonable travel, accommodation and related incidental
<br />expenses incurred in providing the Services are the responsibility of
<br />Customer and shall be payable upon receipt of invoice from
<br />Thomson Elite.
<br />
<br />4.7 Invoices and Payment. Customer will pay all invoices in
<br />full within 30 days from the date of invoice, subject to City accounting
<br />procedures. If full payment is not made, Customer may be charged
<br />up to the maximum legal interest on any unpaid balance. Thomson
<br />Elite may withhold and/or delay delivery of software or services,
<br />including without limitation Maintenance Services, if Customer fails to
<br />comply with this Section 4.
<br />
<br />Invoices are to be addressed to:
<br />
<br />Indhira Gagnon
<br />City Attorney Office
<br />City of Santa Ana
<br />20 Civic Center Plaza (M-29)
<br />P,O. Box 1988
<br />Santa Ana, CA 92702
<br />
<br />5. Confidential Information.
<br />
<br />5.1 Thomson Elite acknowledges in the course of providing
<br />services at Customer's site(s) that Thomson Elite may have access
<br />to Customer's client list, information belonging to or pertaining to
<br />Customer's clients, Customer's billing information and practices and
<br />financial records that constitute Customer's confidential information
<br />("Customer Confidential Information'). Thomson Elite will take
<br />reasonable steps to ensure that the Customer Confidential
<br />Information is not used or disclosed except as expressly permitted by
<br />this Agreement. Thomson Elite will not permit any third party access
<br />to, in any manner, the Customer Confidential Information, except as
<br />provided in this Agreement. Customer Confidential Information shall
<br />not include information that consists of ideas, concepts, know-how or
<br />techniques relating to the enhancement, customization, Installation or
<br />implementation of the Software.
<br />
<br />5.2 Customer acknowledges and agrees that the Software
<br />constitutes a valuable proprietary product of Thomson Elite and that
<br />the Software, together with the terms of this Agreement, shall be
<br />referred to as the "Thomson Elite Confidential Information."
<br />
<br />Ver. 7 Feb 2008
<br />
<br />...
<br />
<br />"
<br />
<br />Customer will take reasonable steps to ensure that the Thomson
<br />Elite Confidential Information is not used or disclosed except as
<br />expressly permitted by this Agreement. Customer will not permit any
<br />third party access to, in any manner, the Thomson Elite Confidential
<br />Information, except as provided in this Agreement.
<br />
<br />6. WARRANTIES, REMEDIES AND LIMITATION OF
<br />LIABILITY.
<br />
<br />6.1 Warranty, Thomson Elite warrants that for the period
<br />ending ninety (90) days after Live Operation (the "Warranty Period")
<br />the Licensed Software will substantially conform to the Software User
<br />Manual. "Live Operation' shall mean the first date when Customer
<br />commences production use of any of the licensed Software in
<br />accordance with the Statement of Work. Thomson Elite does not
<br />warrant the results produced by Westlaw legal Calendaring Rules. It
<br />is Customer's responsibility to check the results of the Westlaw legal
<br />Calendaring Rules date calculations against the actual court rules.
<br />
<br />6.2 Thomson Elite will not be responsible to the extent that the
<br />Licensed Software fails to perform as warranted due to one or more
<br />of the following (collectively the "Excluded Items"): (1) the
<br />malfunction of software not provided by Thomson Elite, (2) the
<br />malfunction of hardware, (3) Customer's negligence or fault, (4)
<br />Customer's failure to follow the instructions set forth in the Software
<br />User Manual, (4) material changes in the operating environment not
<br />authorized by Thomson Elite, (6) modifications to or changes in the
<br />Software not made or suggested by Thomson Elite or (7) Customer's
<br />failure to implement and maintain a proper and adequate backup and
<br />recovery system for the Thomson Elite database or user files. If
<br />Thomson Elite discovers that a failure is caused by one or more
<br />Excluded Items, Thomson Elite reserves the right to charge
<br />Customer for its work in investigating such failure. At Customer's
<br />request and at a fee to be agreed upon, Thomson Elite will thereafter
<br />assist Customer in resolving such failure. It is Customer's
<br />responsibility to develop and implement a proper and adequate
<br />backup and recovery system.
<br />
<br />THE LIMITED WARRANTIES IN SECTIONS 6.1 AND 7.1, AND
<br />IN SECTION 3 OF THE SERVICES ADDENDUM, ARE EXCLUSIVE
<br />AND IN LIEU OF All OTHER WARRANTIES. THOMSON ELITE
<br />MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED. ANY
<br />IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO,
<br />IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
<br />FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
<br />Thomson Elite does not warrant the level of performance of the
<br />Software or that earlier versions superseded by new versions
<br />(whether or not distributed to Customer) will continue to be capable
<br />of access to and use with West Publishing Corporation services.
<br />
<br />6.3 Remedies. Customer shall have the following remedies:
<br />
<br />6.3,1 Termination for Breach. In the event that Thomson
<br />Elite materially breaches any of its obligations under this Agreement
<br />prior to or during the Warranty Period, including breach of a warranty
<br />or warranties provided herein, Customer may terminate this
<br />Agreement as provided in this Section 6.3.1. No termination shall
<br />occur unless Thomson Elite has been given written notice of the
<br />breach and fails to cure the breach, or to submit, to Customer's
<br />reasonable satisfaction, a plan for cure, within thirty days of receipt of
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