SOFTWARE AGREEMENT

SOFTWARE AGREEMENT

THIS AGREEMENT GOVERNS YOUR USE OF OUR SOFTWARE.

BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

WHEREAS, Customer desires to use the Enservio software application identified on a Software Order Schedule (including any associated user documentation and templates and similar report infrastructure, the “Software”) for Customer’s internal business purposes (the “Purpose”); and

WHEREAS, Enservio is willing to grant Customer a limited right to use the Software solely for the Purpose;

NOW THEREFORE, in consideration of the foregoing premises and the mutual undertakings of the parties set forth herein, and intending to be legally bound hereby, the parties do hereby agree as follows:

1.  Software Order Form

In a Software Order Schedule by and between Customer and Enservio (the “Initial Software Order Schedule”) dated as of the Effective Date, Customer and Enservio have agreed on the Software that Customer is permitted to use on the terms and conditions set forth in this Agreement and financial and other terms. From time to time, Customer and Enservio may enter into additional Software Order Schedules under which additional software applications or services of Enservio are made available to Customer (each, a “Subsequent Software Order Schedule” and, collectively with the Initial Software Order Schedule, the “Software Order Schedules”). This Agreement sets forth the terms and conditions on which Enservio will make the applicable Software available to Customer. This Agreement is incorporated by reference into the applicable Software Order Schedule, so that each Software Order Schedule together with this Agreement form a separate legal agreement applicable to the Software identified in the applicable Software Order Schedule. In the event of a conflict between any term or condition of this Agreement and any term or condition of the applicable Software Order Schedule, the applicable term or condition of this Agreement shall govern unless the applicable Software Order Schedule expressly states that it is the intent of the parties to amend this Agreement.

2. Grant of Right to Use, Ownership, Fees & Support

2.1 Rights. Subject to the terms and conditions of this Agreement, Enservio hereby grants to Customer a limited, nonexclusive, non-transferable right (without the right to sub-license) to access and use the Software solely (a) as hosted by Enservio, (b) during the term identified in the applicable Software Order Schedule (the “Term”), (c) for the Purpose, and (d) on a password-protected, named-user basis by employees of Customer authorized by Customer or a third party administrator on behalf of Customer (“Authorized Users”). Customer shall be responsible for maintaining the security of Authorized User credentials for log on and access and shall promptly report to Enservio any unauthorized use or access to the Software which comes to Customer’s attention. Access to the Software is provided as a service only; no software is delivered to or downloadable by Customer.

2.2 Restrictions. Customer shall not (and shall not authorize or allow any third party to):

(a) Use the Software on behalf of any third party or for any purpose other than the Purpose;

(b) Download or attempt to modify, adapt, extract, decompile, disassemble, decrypt, otherwise reverse engineer, translate, or create derivative works of the Software; provided, however that reports, records and other output of the Software (other than Enservio’s templates and similar report infrastructure, the “Software Output”) shall not be considered derivative works of the Software;

(c) Transfer, lease, loan, sublicense, sell, resell for profit, distribute, disclose or otherwise grant any rights in or access to the Software in any form to any third party;

(d) Provide access to the Software to persons located outside of the United States into which it was delivered; or

(e) Alter, remove, or obscure any trademarks or other proprietary legends or markings on Software Output or Software user documentation.

2.3 Ownership. Customer acknowledges and agrees that (a) sole and exclusive ownership of the Software, including all trade secret, copyright, patent, trademark, trade name, and other intellectual property and proprietary rights embodied thereby or reflected therein are and at all times shall remain the exclusive property of Enservio and its licensors, or their respective successors or assigns and (b) subject to the limited rights granted under Section 2.1, nothing contained in this Agreement or in the parties’ performance or failure to perform hereunder shall be construed as granting or conferring to Customer, by implication, estoppel, or otherwise, any right, title or interest in the Software. All rights in and to the Software not expressly granted hereunder are reserved to Enservio and its licensors.

2.4 Support. Enservio may provide, in its sole discretion and at an additional charge to Customer, a limited amount of telephone and email support to facilitate the Purpose.

3. Termination

3.1 Termination. Either party may terminate this Agreement immediately upon notice in the event of (a) the bankruptcy, insolvency, or placing of the assets or the business of the other party in the hands of a receiver or trustee, (b) the filing of a petition for bankruptcy or reorganization by or against the other party, or (c) the dissolution or liquidation of the other party. Either party may terminate this Agreement upon thirty (30) days written notice in the event of a breach by the other party of any term hereof if the party receiving notice is unable to cure the breach in such thirty (30) days.

3.2 Consequences. In the event of any termination of this Agreement for any reason (including its expiration at the end of the Term), (a) Customer shall promptly discontinue all use of the Software, and (b) each party will irrevocably destroy all copies of the other party’s Confidential Information (as defined in Section 7.1 below) then in its possession or control and deliver written certification to other party of its compliance with the foregoing. Sections 2.2, 2.3, 3.2, 4, 5, 6 and 7 shall survive any expiration or termination of this Agreement.

4. Invoice and Payment

Enservio will invoice on a monthly basis. All fees (as provided in the Software Order Schedule) and reimbursement of expenses are due and payable within thirty (30) days from the date of Enservio’s applicable invoice. The fees identified on the Software Order Schedule are exclusive of taxes or duties. Customer agrees to pay (i) for reimbursement of reasonable out-of-pocket expenses incurred by Enservio in connection with providing services and (ii) any and all taxes and duties that may be imposed by any taxing authority in connection with the Agreement, excluding taxes based on Enservio’s income or franchise taxes. Past due amounts are subject to a late charge equal to the lesser of 1-1/2% per month or the maximum amount allowed by law.

5. Warranty

Enservio warrants that for a period of 30 days following the Effective Date (the “Warranty Period”), the Software will perform in accordance in all material respects in accordance with its user documentation. Enservio shall promptly remedy any material non-conformance for which Customer provides Enservio with written notice during or within fifteen (15) days following the Warranty Period. Such notice shall include a detailed description of the material non-conformance and Customer shall provide Enservio with reasonable assistance in replicating the same. The foregoing warranty shall not apply to non-conformances to the extent attributable to unauthorized use of the Software or non-conformances which are not replicable. This paragraph sets forth Customer’s sole and exclusive remedy and Enservio’s sole and exclusive liability in the event of a material non-conformance in the Software. Enservio will not be responsible or liable for and the foregoing warranty does not extend to non-conformances or Software interruptions caused by (a) acts within the control of Customer or any User, (b) interoperability of the Software with third party applications or equipment, (c) disruptions in the internet or other third party systems or disruptions caused by third parties’ misuse of Software access.

6. Limitation of Remedies and Damages

IN NO EVENT SHALL ENSERVIO OR ITS LICENSORS BE LIABLE FOR DAMAGES OF ANY KIND, WHETHER SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR OTHERWISE, CONCEIVED UNDER ANY THEORY OF LAW, EQUITY, CONTRACT, OR TORT, IN EACH CASE WHICH ARISE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF SOFTWARE, INCLUDING LOSS OF OPPORTUNITY, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, OR DAMAGES OF ANY KIND TO A THIRD PARTY, EVEN IF ENSERVIO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL ENSERVIO’S LIABILITY OF ANY KIND ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID TO ENSERVIO DURING THE 12 MONTH PRIOR TO THE CAUSE GIVING RISE TO THE CLAIM.

7. Defense and Indemnification

7.1 By Enservio. Enservio will defend Customer and its successors, assigns, officers, directors and employees (collectively, “Customer Indemnitees”) and pay all judgments actually awarded against the Customer Indemnitees or settlement amounts agreed upon with respect to any third party claim, action or proceeding (each, a “Claim”) alleging that the Software any portion thereof, or the use thereof as authorized hereunder infringes or violates or misappropriates any United States patents, copyrights, trademarks or similar intellectual property rights. The foregoing obligations are contingent upon Customer providing Enservio with prompt written notice of any threat, warning or notice of any such Claim and sole and exclusive control of the defense or settlement of such Claim; provided, however, that Enservio will obtain Customer’s prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned) for any settlement which does not include a full release of claims against Customer with respect to the matters of the Claim or which requires a payment of funds or admission of liability by Customer. In the event (a) of any injunction against Customer’s further use of the Software or any portion thereof or (b) that Enservio believes that any of the foregoing may infringe, Enservio may, at its sole option and expense, (i) procure for Customer the right to continue using the infringing material for the balance of the then-current Subscription, (ii) replace the applicable material or service with a non-infringing substitute or modify the applicable material or service so it is not infringing, in each case without losing material functionality or performance, or (iii) terminate Customer’s rights to the Software or portion thereof and refund to Customer that portion of any prepaid fees representing the unused balance of the then-current Subscription. Enservio shall have no liability or obligation under this paragraph with respect to Claims where the alleged infringement arises out of (a) compliance with designs, guidelines, plans, Customer Data or specifications provided by Customer (where no infringement would exist absent such compliance), (b) use of the Software in violation of the terms of the Agreement or in a manner not prescribed by Enservio (where no infringement would exist absent such unauthorized use), or (c) the combination, operation or use of the Software with other applications, portions or applications, product(s), data or services where the Software would not by itself be infringing. This Section 7.1 states Customer’s sole and exclusive remedy and Enservio’s entire liability for third party infringement claims relating to the Software.

7.2 By Customer. Customer will defend Enservio and its successors, assigns, officers, directors and employees (collectively, “Enservio Indemnitees”) and pay all judgments actually awarded against the Enservio Indemnitees or any amount agreed upon in settlement arising out of any Claim alleging infringement as a result of the (a) designs, guidelines, plans, Customer Data or specifications provided by Customer, (b) use of the Software in violation of the terms of the Agreement or in a manner not prescribed by Enservio or (c) the combination, operation or use of the Software with other applications, portions or applications, product(s), data or services where the Software, Deliverables or Services would not by itself be infringing. Enservio will give Customer prompt written notice of any threat, warning or notice of any such claim or action. Customer will have the right to conduct the defense of any such claim or action and, consistent with Enservio’s rights hereunder, all negotiations for its settlement; provided, however, Enservio may participate in such defense or negotiations to protect its interests, at its expense using counsel of its choice, and Customer shall not settle any claim, action, suit or proceeding without the prior written approval of Enservio, which consent shall not be unreasonably withheld or delayed where settlement would not include a complete release of claims against Enservio or would require payment of funds by Enservio, or an admission or attribution of fault to Enservio.

8. General

8.1 Confidential Information. Each party (as “Discloser”) may from time to time during the term of this Agreement disclose to the other party (as “Recipient”) information regarding the Discloser’s business, including technical, marketing, financial, employee, planning, pricing, customer, vendor and other internal business information (“Confidential Information”). Without limiting the foregoing, the Software will be considered the Confidential Information of Enservio, and (b) the Software Output generated by Customer using and based on data that Customer inputs into the Software will be considered the Confidential Information of Customer. Recipient will (i) use Confidential Information of Discloser only for the Purpose, and (ii) not disclose the Confidential Information to any third party other than the employees of Recipient or Recipient’s affiliates who have a need to know such Confidential Information in order to support the Purpose and who have agreed to comply with the restrictions on use and disclosure of this Section with respect to the disclosed information. Recipient will be responsible for unauthorized use or disclosure by any person or entity to whom it discloses Discloser’s Confidential Information. The restrictions on use and disclosure set forth in this Section 7.1 shall not apply to information received from Discloser where Recipient can reasonably demonstrate that such information: (a) is or becomes publicly available through no breach of this Agreement by Recipient (or any of its representatives or other agents); or (b) is or was provided to Recipient, without restrictions on disclosure or use, by a third party who had the right to make such disclosure (as could be reasonably ascertained by Recipient). If Recipient is required by law or legal process to disclose the Discloser’s Confidential Information, Recipient shall (a) provide Discloser with prompt written notice of such requirement (where legally permissible), (b) cooperate with Discloser at Discloser’s request and expense in taking such steps as may be reasonably requested by Discloser to maintain the confidentiality of the information subject to disclosure, (c) limit the disclosure of information to the extent lawful, and (d) continue to protect the disclosed information as Confidential Information as if such disclosure had not been made.

8.2 Product Roadmap. From time to time during the term of this Agreement, Enservio may disclose to Customer information related to future products, features or enhancements in order to support and obtain feedback for the Customer’s vision and strategy for development efforts and plans (“Product Roadmap”). Enservio’s development efforts and plans are subject to change at any time, without notice. Enservio provides no assurances that Enservio will introduce future products, features or enhancements described in a presentation containing Product Roadmap information, and Enservio assumes no responsibility to introduce such products, features or enhancements. Customer further acknowledges: (i) current purchasing decisions are not made based on the reliance on the timeframes or specifics outlined in the Product Roadmap information; and (ii) If Enservio delays or never introduces future products, features or enhancements, Customer’s current purchasing decisions would not be affected.

8.3 Notices. All notices required or permitted under this Agreement shall be in writing and shall be delivered by overnight courier, electronic facsimile or email (in each case with reasonable confirmation of receipt). Notices shall be deemed delivered on the first business day following confirmed delivery. All communications will be sent to the respective addresses first set forth above or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 8.3. If the communication is from Customer to Enservio, it shall be addressed to: “Attn: CFO.” If the communication is from Enservio to Customer, it shall be addressed to: “Attn: General Counsel.”

8.4 Assignment. Customer may not assign this Agreement or any of its rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of Enservio which may be withheld by Enservio in its sole discretion.

8.5 Waiver. The failure of either party to enforce in any one or more instances any of the terms and conditions of this Agreement shall not be construed as a waiver of future performance of any such term or condition. Waiver of any term or condition shall only be deemed enforceable if expressed in writing by the party granting such waiver.

8.6 Severability. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect.

8.7 Governing Law and Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its rules of conflict of laws. Each of the parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the Commonwealth of Massachusetts and of the United States of America located in the Commonwealth of Massachusetts (the “Massachusetts Courts”) for any litigation among the parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Massachusetts Courts and agrees not to plead or claim in any Massachusetts Court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Massachusetts Courts. The parties agree that UCITA and the United Nation’s Conventions do not apply to this Agreement.

8.8 Entire Agreement This Agreement and the applicable Software Order Schedule constitutes the entire understanding between the parties hereto, and supersedes all prior discussions, representations, understandings, or agreements (with the exception of any nondisclosure agreements which shall remain in full force and effect), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. Any modification or amendment to this Agreement must be in writing and signed by each party’s authorized representatives. No terms in any document delivered by either party, unless accepted in writing by the other party, shall be deemed to amend the terms of this Agreement and any such additional or inconsistent terms shall be deemed unacceptable to and rejected by the party receiving such document. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of this Agreement. The word “including”, and its variants, shall be construed non-exclusively to mean “including, but not limited to.”

8.9 Independent Contractors. The relationship of Enservio and Customer established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.

8.10 Third Party Sites. Periodically, links may be established from Enservio hosted Websites (or valuation report) to one or more external Websites or resources operated by unrelated third parties (the “Third Party Sites”). These links are provided for Customer’s convenience only. These links should not necessarily be deemed to imply that Enservio endorses the Third Party Sites or any content therein. Enservio does not control and is not responsible or liable for any Third Party Sites or any content, advertising, products, or other materials on or available from such Third Party Sites. Access to any Third Party Site is at Customers own risk and Enservio will have no liability arising out of or related to such Websites and/or their content or for any damages or loss caused or alleged to be caused by or in connection with any purchase, use of or reliance on any such content, goods, or services available on or through any such Third Party Site.

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