(August 9, 2014 – 2.0.0)

ASPDATABASE.NET LLC Subscription Agreement

This subscription agreement (Hereinafter, “Agreement”) will govern your ACQUISITION and ongoing use of the Services and Software of ASPDATABASE.NET LLC as provided for in this Agreement.  By accepting this Agreement, indicated by clicking “accept” or by executing an order form referencing this Agreement, you agree to all of the terms set forth in this Agreement.  If you are entering into this Agreement on behalf of a company or other legal entity, you are representing that you have the authority to bind such entity and its affiliates to the terms and conditions of this Agreement.  If you are in fact entering this Agreement with the aforementioned authority, the terms “you” and “your” used hereinafter in this Agreement refer to legal entity and its affiliates you are representing.  If you do not have such authority to enter into this Agreement, you must not accept this Agreement and must not use the services.

BACKGROUND

Licensor, ASPdatabase.NET LLC, developed and owns the proprietary Software protected by this Agreement.  The Software is intended for use in business purposes.  Licensee desires to obtain a license to use this Software.  In some instances, Licensee may request Licensor to develop certain modifications and enhancements for this Software.  Licensor desires to license such Software to Licensee and perform the Services on the terms and conditions set forth herein.  Absent a separate agreement between Licensor and Licensee, there is no statement of work and no agreement for Licensor to provide any custom software to Licensee.

IN CONSIDERATION of the foregoing and the mutual covenants set forth herein, and intending to be legally bound, the parties agree as follows:

1. DEFINITIONS

The following words will have the following meanings when used in this Agreement:

1.1 “Acceptance” for the System will occur only when Licensor has provided to Licensee all Deliverables required to be provided to Licensee.

1.2 “Affiliate” will mean, as to a Party, any other Person that directly or indirectly controls or is controlled by such Party. 

                        1.2.1   For the purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as applied to any Person will mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other ownership interest.

                        1.2.2   For the purposes of this definition, “Person” will mean any individual, partnership, corporation, limited liability company, unincorporated organization or association, any trust, or any other business entity.

1.3 “Deliverables” will mean the Software and Documentation to be delivered hereunder.

1.4 “Direct Damages” will mean the damages incurred by the claiming Party to this Agreement directly resulting from a breach of this Agreement by another party to this Agreement.

1.4.1 “Direct Damages” include but are in no way limited to:

(i) The costs incurred by Licensee to obtain other software or services that are the same as or substantially similar to (but not broader in scope than) the Software or Services being replaced, that is, the charges to be paid to another services provider(s) to the extent such costs are commercially reasonable and exceed the Fixed Charges hereunder for such Software or Services;

(ii) The costs to correct any deficiencies in the Software or Services rendered that result in a failure of the Deliverables to meet Service Levels or the specifications set forth in the applicable Statement of Work, after Licensor has failed or refused to correct such deficiencies;

(iii) The costs incurred to transition the Software or Services to another provider(s) of services;

(iv) Any payments, fines, penalties, or interest imposed by a governmental body or regulatory agency for failure to comply with requirements or deadlines; and

(v) The reasonable out–of–pocket costs and fees incurred by Licensor to collect from Licensee any fees payable to Licensor under this Agreement.

1.4.2   “Direct Damages” specifically excludes: loss of interest, loss of profit or revenue, failure to achieve cost savings, any business interruption, and any incidental, consequential, punitive, multiple, or indirect damages of any kind or nature.

1.5 “Documentation” will mean, collectively:

(i)        All of the written, printed, electronic, or materials in any other format that is published or otherwise made available by Licensor that relate to or describe the functional, operational, and/or performance capabilities of the Software;

(ii)       All user, operator, system administration, technical, support, and other manuals.

(iii)      Any other Deliverable that is not Hardware or Software.

1.5.1   “Documentation” will not include Source Code.

1.6      “Error(s)” will mean a failure of the Software to substantially conform to the Documentation, where such failure materially impacts the Software’s operational performance or functional performance.

1.7      “Licensee” will mean the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

1.8      “License(s)” will mean any personal, non–exclusive, non–transferable, non–assignable license or licenses for Licensee’s internal use only granted by Licensor to Licensee to use the Software under this Agreement.

1.9      “Licensor” will mean ASPDatabase.NET LLC, a limited liability company organized under the laws of the State of Georgia, United States of America.

            1.10    “Object Code” will mean the binary machine-readable version of the Software.

            1.11    “Order Form” will mean the ordering documents for purchases hereunder, including addenda thereto, that are entered into between Licensee and Licensor from time to time. Order Forms will be deemed incorporated herein by reference.

1.12    “Performance Standards” will mean, collectively, the warranties and performance standards set forth in Section 13 (“Warranty and Warranty Disclaimer”) and all associated Exhibits, Appendixes, Attachments, and Addenda referenced therein.

            1.13    “Services” will mean work done by Licensor in support of the Software, including, but not limited to, development services, installation services, training, consulting, support, telephone support, and other such services.

1.14    “Software” will mean the aggregate of the Standard Software and any Custom Software (if agreed to by Licensor) including all physical components that are provided by Licensor, including but not limited to, magnetic media, job aids, templates, and other similar devices and will also include the online, web–based applications and platform provided by Licensor via designated websites including associated offline components but excluding any third-party applications.  From time to time, Licensor may (but is under no obligation to) update the Standard Software.  Such updated software will be considered the Software under this Agreement.

            1.15    “Source Code” will mean those statements in a computer language which when processed by a compiler, assembler, or interpreter become executable by a computer.

1.16    “Standard Software” means those Deliverables that are classified as Standard Software, as well as the documentation furnished therewith by Licensor or its subcontractors in the normal course of business.

1.17    “Subscription Fee” will mean the fees paid by Licensee to Licensor as described in Section 8 (“Price and Payments”) of this Agreement.

2. SCOPE OF THIS AGREEMENT

2.1      Scope.  This Agreement defines the terms and the conditions under which Licensor will design, develop, integrate, deliver, install and support the Software and the Deliverables.

2.2      Turn-key Basis .  The Parties hereto acknowledge that the performance by Licensor of its obligations hereunder is to be done on a “turn-key” basis.”  This expression is understood to mean that Licensor is fully responsible, pursuant to the terms and conditions set forth in this Agreement, for the delivery of the Deliverables in full conformity with the terms and conditions contained in this Agreement, and that the said Deliverables will function in conformity with the performance criteria stipulated in this Agreement upon delivery.

3. SOFTWARE AND SERVICES

            3.1      License Grant.   Subject to both the provisions of this Agreement and the payment of all applicable Subscription Fees for the term of such license, Licensor grants Licensee and Licensee accepts a limited, personal, non–exclusive, non–transferable, non–assignable Object Code license to use the Software for Licensee’s use. The Licensee may be granted additional licenses up to the number of users specified in the applicable Order Form.  If the Licensee fails to pay the Subscription Fee, then the number of licenses will be reduced to one (1) license limited to one (1) connection.

            3.2      Source Code.   Licensee will not receive any license for the Source Code of the Software.

            3.3      Software Related Materials. All Software used in, for, or in connection with the software, parts, subsystems, or derivatives thereof (the “System”), in whatever form, including, without limitation, source code, object code, microcode, and mask works, including any computer programs and any documentation relating to or describing such Software such as, but not limited to logic manuals and flow charts provided by Licensor, including instructions for use of the Software and formulation of theory upon which the Software is based, are furnished to Licensee only under a personal, non–exclusive, non–transferable, non–assignable Object Code license solely for Licensee's own use.

            3.4      No Licenses . Except as explicitly provided in Section 3.1 (“License Grant”) of this Agreement, no license under any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights, express or implied, are granted by Licensor to Licensee under this Agreement.

            3.5 Reverse Engineering.  Licensee will not and will not permit its Affiliates or any third–party to translate, reverse engineer, decompile, recompile, update, or modify all or any part of the Software or merge the Software into any other software.

            3.6      Ownership of Materials. All patents, copyrights, circuit layouts, mask works, trade secrets, and other proprietary rights in or related to the Software are and will remain the exclusive property of Licensor, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Software is used or licensed.  Licensee will not take any action that jeopardizes Licensor’s proprietary rights or acquire any right in the Software or the Confidential Information, as defined in Section 9 (“Proprietary Rights, Confidentiality, and Security”) herein below.  Unless otherwise agreed on a case–by–case basis, Licensor will own all rights in any copy, translation, modification, adaptation, or derivation of the Software or other items of Confidential Information, including any improvement or development thereof.  Licensee will obtain, at Licensor’s request, the execution of any instrument that may be appropriate to assign these rights to Licensor or perfect these rights in Licensor’s name.

4. TERM OF AGREEMENT AND LICENSE AND TERMINATION

            4.1      Term of Agreement. The term of this Agreement will commence upon the execution of this Agreement, and will continue until the termination of this Agreement effected upon the earliest of the voluntary termination by either party pursuant to the terms and conditions provided in Section 4.2 (“Voluntary Termination”), the breach of this Agreement by either party, or by a manner otherwise provided in this Agreement.

4.2      Voluntary Termination.  Either party may terminate this Agreement by giving the other party thirty (30) days’ written notice of such termination.

5. EVENTS OF DEFAULT AND REMEDIES

5.1. Events of Default .  Licensor and Licensee acknowledge and agree that the following will constitute events of default (“Events of Default”) and that the occurrence of one (1) or more of such Events of Default will constitute a material breach of this Agreement which will allow a party, as applicable, to seek the rights and remedies set forth in this Section:

(i) Licensor’s material breach of any license obligation as provided in Section 3 (“Software and Services”), provided that such breach is not cured within thirty (30) calendar days following written notice of such breach;

(ii) Licensee’s breach of Section 3 (“Software and Services”), Section 9 (“Proprietary Rights, Confidentiality, and Security”), or Section 10 (“Reproduction of Documentation, Object Code, and Source Code”) or if Licensee otherwise misuses the Software in contravention of this Agreement or Licensee’s failure to make timely payment of the Subscription Fee, as set forth in Section 8 (“Price and Payments”) of this Agreement;

(iii) The failure of either party to cure a curable material breach of any representation or warranty set forth in this Agreement within the time frames specified in Section 13 (“Warranty and Warranty Disclaimer), if applicable, or if not applicable, then within thirty (30) calendar days following receipt of written notice of such breach; and

(iv) Failure of a party to perform any other material obligation under this Agreement, provided that such failure is not cured within thirty (30) calendar days following receipt of written notice of such failure.

            5.2 Rights and Remedies of Licensor upon Default of Licensee .  Upon the occurrence of an Event of Default by or with respect to Licensee, subject to Licensee’s rights set forth in Section 5.3, Licensor will be entitled to any of the following remedies:

(i) Immediately terminate, in whole or in part, this Agreement; and/or

(ii) Subject to the terms of Section 14 (“Limitation of Liability”), seek to recover damages from Licensee; and/or

(iii) Exercise the right of self-help.

5.3 Rights and Remedies of Licensee upon Default of Licensor. Upon the occurrence of an Event of Default by or with respect to Licensor, Licensee will be entitled to any of the following remedies:

(i) Immediately terminate, in whole or in part, this Agreement; and/or

(ii) Subject to the terms of Section 14 (“Limitation of Liability”), seek to recover damages from Licensor.

5.4 Attorneys’ Fees . In the event of an alleged breach of this Agreement, the prevailing party will be entitled to reimbursement of all of its costs and expenses, including reasonable attorneys’ fees, incurred in connection with such dispute, claim, or litigation, including any appeal therefrom.  For purposes of this Section, the determination of which party is to be considered the prevailing party will be decided by the court of competent jurisdiction or independent party (i.e., mediator or arbitrator) that resolves such dispute, claim, or litigation.

6. DELIVERY OF DELIVERABLES—RISK OF LOSS—TITLE

6.1      Delivery by Licensor of Deliverables .  Licensor will deliver the Deliverables to Licensee at Licensee’s address via download from Licensor’s website (“Delivery Place”) on the date the Software is downloaded by Licensee (“Delivery Dates”).

6.2      Risk of Loss of Deliverables .  The risk of loss appurtenant to all Deliverables will be transferred to Licensee upon the installation of the Software at the Delivery Place.

6.3      Title to Standard Software .  It is hereby acknowledged and agreed that Licensee will not obtain title to any Standard Software.  In lieu thereof, Licensee will obtain the license rights relating thereto stipulated in Section 3 (“Software and Services”) hereof.

6.4      Title to Documentation, Contractual Documents, and Deliverables Other Than Those Prescribed by Sections 6.1 - 6.3 Hereof .  It is hereby acknowledged and agreed that Licensee is, and will remain, the owner of (i) all Documentation, and (ii) any and all information contained therein. Licensor will retain all rights stipulated in Section 9.1 (“Ownership of Intellectual Property”) and rights related thereto.

7. ACCEPTANCE OF SOFTWARE AND SERVICES

7.1 Acceptance.  Acceptance for the Software will occur once the Licensee downloads the Software onto the Licensee’s computers and/or severs.

            7.2      Deemed Acceptance. Notwithstanding anything contained herein, Licensee will be deemed to have accepted the Software or Services if Licensee uses the Software or Services in the operation of Licensee’s business.

8. PRICE AND PAYMENTS

8.1      Price.  In consideration of the development and delivery by Licensor of the Deliverables and the license granted in Section 3.1 (“License Grant”) of this Agreement, Licensee will pay Licensor the monthly, per user license fee charged by Licensor as the same may be altered from time to time (the “Subscription Fee”)

.

8.2      Order Forms .  Prior to each month during the term of this Agreement, Licensee will deliver to Licensor an Order Form indicating the number of users Licensee wishes to authorize under this Agreement for the following month.  If Licensee does not deliver an Order Form to Licensor, then the number of users currently authorized under this Agreement will continue unchanged.

8.3      Payment.  On or before the first day of each month during the term of this Agreement, Licensee will pay to Licensor the then-applicable monthly license fee for each user authorized under this Agreement.  If payment is not received by the fifteenth (15^th) day of the month, then this will constitute a breach of this Agreement and Licensor may seek the remedies provided in Section 5.2 (“Rights and Remedies of Licensor Upon Default of Licensee”) of this Agreement.  Licensee acknowledges that the Software may contact Licensor’s servers or third-party servers utilized by Licensor in order to confirm the number of users accessing the Software and Licensee hereby grants Licensor permission for such communications.

9. PROPRIETARY RIGHTS, CONFIDENTIALITY, AND SECURITY

9.1 Ownership of Intellectual Property .  Preexisting intellectual property and all improvements thereto that Licensor uses in connection with performing the Services, providing any Deliverables, and performing any other Services hereunder will remain the sole and exclusive property of Licensor, and Licensor will not be required to mark any such written materials as “confidential” and/or “proprietary.”  Any Custom Programming, including all source code and materials developed by Licensor, all intermediate and partial versions thereof, as well as all specifications, program materials, flow charts, notes, outlines, and the like created in connection therewith (collectively, “Custom Programming Materials”) will be the sole and exclusive property of Licensor.  All written reports, requirements documents (including newly created technical and non-technical data embodied therein), specifications, program materials, flow charts, notes, outlines, and the like that are developed, conceived, originated, prepared, or generated by Licensor in connection with Licensor’s performance under this Agreement including, without limitation, all copyright, trademark, trade secret, and all other proprietary rights therein and derivative works created therefrom (collectively, “Written Deliverables”), will be the sole and exclusive property of Licensor.  Such ownership of Custom Programming Materials and Written Deliverables will inure to the benefit of Licensor from the date of the conception, creation, or fixation of the Custom Programming Materials and Written Deliverables in a tangible medium of expression, as applicable.  All newly created copyright aspects of the Custom Programming Materials and Written Deliverables will not be considered a “work–made–for–hire” within the meaning of the Copyright Act of 1976, as amended.  Licensee agrees that all exclusive right, title and interest in and to those newly created copyrightable aspects of the Custom Programming Materials and Written Deliverables, including all copies thereof, are hereby expressly assigned automatically to Licensor without further consideration.  Any Agreement entered into by Licensor and a third–party in connection with Services related to Custom Programming Materials and Written Deliverables under this Agreement will not require the prior consent of Licensee. Licensee agrees to assist Licensor in obtaining and enforcing all rights and other legal protections for the Custom Programming Materials and Written Deliverables and to execute any and all documents that Licensor may reasonably request in connection therewith, including any copyright assignment document(s).  Licensee will ensure that all Custom Programming Materials and Written Deliverables created hereunder (including each page of any document produced) will be marked as follows:

Confidential and Proprietary

© Copyright [Year Developed] ASPdatabase.NET LLC

All Rights Reserved

9.2 Confidential Information .  “Confidential Information” means any material, data, or information, in whatever form or media, of a party to this Agreement that is provided or disclosed to the other, except for any information that is:

(i) Publicly available or later becomes available other than through a breach of this Agreement;

(iii) Known to the Receiving Party (as defined in Section 9.2.2 of this Agreement) or its employees, agents, or representatives prior to such disclosure or is independently developed by the Receiving Party (as defined in Section 9.2.2 of this Agreement) or its employees, agents or representatives subsequent to such disclosure; or

(iv) Subsequently lawfully obtained by the Receiving Party (as defined in Section 9.2.2 of this Agreement) or its employees, agents or representatives from a third–party without obligations of confidentiality.

9.2.1 Confidential Information includes the following categories of information whether disclosed orally or not marked as confidential: Written Deliverables, network configurations, network architecture, Services rendered by Licensor to Licensee, financial and operational information, and other matters relating to the operation of the parties’ businesses, including information relating to actual or potential licensees and licensee lists, licensee usage or requirements, business and licensee usage forecasts and projections, accounting, finance or tax information, pricing information, and any information relating to the corporate and/or operational structure of Licensee and its affiliates, Software, Equipment, Deliverables, or Services, any information exchanged between the parties, and all information and materials relating to third–party vendors, systems integrators, or consultants of Licensee that have provided or that may provide in the future any part of Licensee’s information or communications infrastructure to Licensee.

9.2.2 Degree of Care Required.  The party that has received Confidential Information (the “Receiving Party”) will exercise the same degree of care and protection with respect to the Confidential Information of the party that has disclosed Confidential Information to the Receiving Party (the “Disclosing Party”) that it exercises with respect to its own Confidential Information and will not directly or indirectly disclose, copy, distribute, republish, or allow any third–party to have access to any Confidential Information of the Disclosing Party. 

9.2.3 Permitted Disclosure.  Notwithstanding the above, the following may be disclosed:

(i) Licensee may disclose Licensor's Confidential Information to its employees who have a need to know;

(ii) Licensor may disclose Licensee’s Confidential Information to its employees and agents who have a need to know, provided that for Licensor’s agents, such an agent is acceptable to Licensee in its sole discretion and the agent has previously executed a confidentiality agreement; and

(iii) either party may disclose Confidential Information if so required by law (including court order or subpoena), provided that such disclosure is made in accordance with the terms of Section 9.5 (“Notification Obligation”).

9.3 Ownership of Licensee’s Data.   As between Licensee and Licensor, Licensee will own exclusively all rights, title, and interest in and to all electronic data submitted by Licensee to the Software.  Licensor shall have no access to Licensee’s data unless Licensee specifically authorizes such access. 

9.4 Return of Confidential Information .  Unless otherwise authorized, upon the earlier of termination of this Agreement or request of the Disclosing Party, with respect to the Disclosing Party’s Confidential Information (except for any Software licenses and related Documentation paid for by Licensee, which Licensee will have the right to retain) the Receiving Party will promptly either:

(i) Return such Confidential Information and provide certification to the Disclosing Party that all such Confidential Information has been returned; or

(ii) Destroy such Confidential Information and provide certification to the Disclosing Party that all such Confidential Information has been destroyed.

9.5 Notification Obligation .  If the Receiving Party becomes aware of any unauthorized use or disclosure of the Confidential Information of the Disclosing Party, the Receiving Party will promptly and fully notify the Disclosing Party of all facts known to it concerning such unauthorized use or disclosure.  In addition, if the Receiving Party or any of its employees or agents are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of the Confidential Information of the Disclosing Party, the Receiving Party will not disclose the Confidential Information without providing the Disclosing Party at least twenty-four (24) hours prior written notice of any such request or requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement.  Notwithstanding the foregoing, the Receiving Party will exercise its best efforts to preserve the confidentiality of the Confidential Information including, without limitation, by cooperating with the Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such tribunal.

9.6 Employee/Agent Acknowledgment .  Licensor and Licensee will not disclose Confidential Information to any of their employees, agents, or representatives unless and until such employee, agent, or representative has been made aware that his or her obligations under this Agreement are subject to confidentiality restrictions and unless such employee, agent or representative is the subject of a written confidentiality or nondisclosure agreement and has executed a confidentiality agreement.

9.7 Survival; No Limitation of Liability .  The terms of this Article will survive the expiration or termination of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the terms of any limitation of liability set forth in this Agreement will not apply to any breach by a party of its confidentiality obligations under this Article.

10. REPRODUCTION OF DOCUMENTATION, OBJECT CODE, AND SOURCE CODE

            10.1    Documentation.  Licensee will have the right, at no additional charge, to reproduce solely for its own internal use, all Documentation furnished by Licensor pursuant to this Agreement regardless of whether such Documentation is copyrighted by Licensor.  All copies of Documentation made by Licensee will include any proprietary notice or stamp that has been affixed by Licensor. Licensor will make available on its website a copy of the Documentation sufficient to enable Licensee to operate the Software. All Documentation will be in the English language.

11. INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS: INDEMNIFICATION

11.1.   Third–party Infringement Claims.   Licensor will defend at its own expense any action against Licensee brought by a third–party to the extent that the action is based upon a claim that the Software directly infringes any United States copyright or misappropriates any trade secret recognized as such under the Uniform Trade Secret Law, and Licensor will pay those costs and damages finally awarded against Licensee in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.

11.2. Conditions.  Licensor’s obligations under Section 11.1 (“Third–party Infringement Claims”) are conditioned on:

(i) Licensee notifying Licensor promptly in writing of such action;

(ii) Licensee giving Licensor sole control of the defense thereof and any related settlement negotiations, and

(iii) Licensee cooperating with Licensor in such defense (including, without limitation, by making available to Licensor all documents and information in Licensee’s possession or control that are relevant to the infringement or misappropriation claims, and by making Licensee’s personnel available to testify or consult with Licensor or its attorneys in connection with such defense).

11.3.  Licensor’s Options.  If the Software becomes, or in Licensor’s opinion is likely to become, the subject of an infringement or misappropriation claim, Licensor may, at its option and expense, do any of the following:

(i) Procure for Licensee the right to continue using the Software;

(ii) Replace or modify the Software so that it becomes non-infringing, or

(iii) Terminate Licensee’s right to use the Software and give Licensee a refund or credit for the license fees actually paid by Licensee or Licensor for the infringing components of the Software less a reasonable allowance for the period of time Licensee has used the Software.

11.4.  Exclusions.  Notwithstanding the foregoing, Licensor will have no obligation or otherwise with respect to any infringement or misappropriation claim based upon the following:

(i) Any use of the Software not in accordance with this Agreement or for purposes not intended by Licensor;

(ii) Any use of the Software in combination with other products, equipment, software or data not supplied by Licensor;

(iii) Any use of any release of the Software other than the most current release made available to Licensee, or

(iv) Any modification of the Software made by any person other than Licensor.

11.5.   Entire Liability.   THIS SECTION, SECTION 11(“INTELLECTUAL PROPERTY AND OTHER PROPRIETARY RIGHTS INDEMNIFICATION”), STATES LICENSOR’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS.

12. GENERAL INDEMNITY

            12.1    Indemnity.  Subject to the limitations contained in this Agreement, Licensor agrees to indemnify and hold harmless Licensee, and Licensee agrees to indemnify and hold harmless Licensor respectively, from any liabilities, penalties, demands, or claims finally awarded (including the costs, expenses, and reasonable attorney's fees on account thereof) that may be made by any third–party for personal bodily injuries, including death, resulting from the indemnifying party’s gross negligence or willful acts or omissions or those of persons furnished by the indemnifying party, its agents, or subcontractors or resulting from use of the Software, Software Products, and/or Services furnished hereunder.  Licensor agrees to defend Licensee, at Licensee's request, and Licensee agrees to defend Licensor, at Licensor’s request, against any such liability, claim or demand.  Licensee and Licensor respectively agree to notify the other party promptly of any written claims or demands against the indemnified party for which the indemnifying party is responsible hereunder. The foregoing indemnity will be in addition to any other indemnity obligations of Licensor or Licensee set forth in this Agreement.

            12.2    Assumption of Defense .  If the indemnifying party fails to assume the defense of any actual or threatened action covered by this Section 12 (“General Indemnity”) within the earlier of (i) any deadline established by a third–party in a written demand or by a court, and (ii) thirty (30) days of notice of the claim, the indemnified party may follow such course of action as it reasonably deems necessary to protect its interest, and will be indemnified for all costs reasonably incurred in such course of action; provided, however, that the indemnified party will not settle a claim without the consent of the indemnifying party.

13. WARRANTY AND WARRANTY DISCLAIMER

13.1   LicensorWarranties

13.1.1 General Warranties.  Licensor warrants that it owns all rights, title, and interest in and to the Software, or that in the case of any third–party software that it has the right to grant a sub–license to use such third–party software, that all Software will substantially conform to the Licensee’s specifications, and that the Software and Services will be free from material defects in workmanship and materials that prevent them from substantially meeting the aforementioned criteria.

13.1.2 Operation of Software.  Licensor does not warrant that the operation of the Software or the operation of the Software Products will be uninterrupted or error free.

13.1.3 Remedy.  In the event of any breach of the warranties set forth in this Agreement, Licensor’s sole and exclusive responsibility, and Licensee’s sole and exclusive remedy, will be for Licensor to correct or replace, at no additional charge to Licensee, any portion of the Software or Services found to be defective; provided, however, that if within a commercially reasonable period Licensor neither corrects such defects nor replaces the defective Software or Services, then Licensee's sole and exclusive remedy will be to receive direct damages not to exceed the Subscription Fees paid to Licensor for use of the defective Software or Services for the twelve months preceding the breach by Licensor. In the event of any breach of any provision of this Agreement other than the warranties set forth in this Agreement, Licensee’s sole and exclusive remedy will be to receive direct damages not to exceed the amounts received by Licensor pursuant to this Agreement. For the avoidance of doubt, Licensee’s monetary remedies for any breaches of any provision of this Agreement (including, without limitation, the warranty provisions) will not, in the aggregate, exceed an amount equal to the amounts actually received by Licensor from Licensee.

13.1.4 Warranty Disclaimer.  EXCEPT AS SET FORTH IN THIS SECTION 13 (“LICENSOR WARRANTIES”), LICENSOR MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE, OR SERVICES OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY LICENSEE.  LICENSOR FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

13.1.5 Intellectual Property .  Licensor represents and warrants to Licensee that Licensee’s use of the Software does not and will not infringe upon any U.S. patent, trademark, copyright, trade secret or other intellectual property, or proprietary right of any third–party, and there is currently no actual or threatened suit against Licensor by any third–party based on an alleged violation of such right. This warranty will survive the expiration or termination of this Agreement.

13.1.6 Authority.  Licensor warrants that it has the right to enter into this Agreement. Licensor further warrants that there are no outstanding assignments, grants, licenses, encumbrances, obligations or agreements (whether written oral or implied) that are inconsistent with this Agreement and the rights granted or transferred herein.  This warranty will survive the expiration or termination of this Agreement.

13.1.7 Pending Litigation.  Licensor represents and warrants to Licensee that there is no action, suit, claim, investigation or proceeding pending, or to the best of Licensor’s knowledge, threatened against, by or affecting Licensor or the System which, if adversely decided, might adversely affect Licensor's ability to enter into this Agreement, Licensor's performance of its obligations herein, or Licensee's use of the Software. As of the date hereof, Licensor further represents and warrants that it does not know of any basis for any such action.

14. LIMITATION OF LIABILITY

            14.1 DISCLAIMER OF LIABILITY LICENSOR WILL NOT BE LIABLE FOR:

(i) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT OR ANY ORDER OR THE OPERATION OR USE OF THE SOFTWARE AND SERVICES INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, DAMAGE TO EQUIPMENT, AND CLAIMS AGAINST LICENSEE BY ANY THIRD PERSON, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;

            (ii)       ANY DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY LICENSOR TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND LICENSOR'S REASONABLE CONTROL; OR

(iv) ANY CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST LICENSOR MORE THAN TWO YEARS AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.

14.2 LIMITATION OF LIABILITY.   NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, BUT EXCLUDING ANY CLAIMS FOR INDEMNIFICATION UNDER SECTION 11.1 (“THIRD–PARTY INFRINGEMENT CLAIMS”) LICENSOR’S LIABILITIES UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY LICENSOR FROM LICENSEE UNDER THIS AGREEMENT DURING THE PRECEDING TWELVE MONTHS.

15. USE OF THIRD–PARTY SERVERS AND APPLICATIONS

15.1    Third–Party Servers.  Licensee acknowledges that Licensor may use servers owned by third–parties to store data provided by Licensee.  Licensee agrees and acknowledges that Licensor has no control over such severs and it is Licensee’s duty to back up all data stored on these servers.  LICENSOR WILL HAVE NO LIABILITY TO LICENSEE FOR ANY DOWN TIME EXPERIENCED BY SERVERS OWNED BY A THIRD–PARTY AND WILL HAVE NO LIABILITY WHATSOEVER FOR ANY DATA LOSS EXPERIENCED BY LICENSEE.

15.2    Third–Party Applications.   Furthermore, if Licensee installs or enables any third–party applications for use with the Software, Licensee acknowledges that Licensor may allow providers of said third–party applications to access data owned by Licensee as required for the interoperation of said third–party applications with the Software.  Licensor will not be responsible for any disclosure, modification, or deletion of said data resulting from any such access by providers of third–party applications.

15.3    Open Source Application.   The Software may utilize one or more open source applications.  Licensor shall acknowledge the open source applications utilized in the Software.

16. OBLIGATIONS THAT SURVIVE TERMINATION

            16.1    Obligations that Survive.   The parties recognize and agree that their obligations under Section 8 (“Price and Payments”), Section 9 (“Proprietary Rights, Confidentiality, and Security”), Section 11 (“Intellectual Property and Other Proprietary Rights Indemnification”), Section 12 (“General Indemnity”), Section 14 (“Limitation of Liability”), Section 15 (“Use of Third–Party Servers and Applications”), and Section 20 (“Waiver of Breach”) of this Agreement survive the cancellation, termination, or expiration of this Agreement or the License granted under Section 3.1.

17. ASSIGNMENT AND TRANSFER

Licensee may not assign or transfer its interests, rights or obligations under this Agreement by written Agreement, merger, consolidation, operation of law, or otherwise, without the prior written consent of an authorized executive officer of Licensor. Any attempt to assign this Agreement by Licensee will be null and void. Furthermore, for the purposes of this Agreement the acquisition of an equity interest in Licensee of greater than 25 percent by any third–party will be considered an “assignment.”

18. COMPLIANCE WITH LAWS

Licensor and Licensee each will comply with the provision of all applicable federal, state, county and local laws, ordinances, regulations, and codes including, but not limited to, Licensor’s and Licensee's obligations as employers with regard to the health, safety and payment of its employees, and identification and procurement of required permits, certificates, approvals, and inspections in Licensor’s and Licensee's performance of this Agreement. 

19. GOVERNING LAW AND VENUE

            19.1    Governing Law.   This Agreement will be governed by and interpreted in accordance with the laws of the State of Georgia, U.S.A., without regard to principles of conflicts of law. 

            19.2    Venue.  Licensor and Licensee hereby irrevocably submit to the jurisdiction of the Superior Court of Hall County, Georgia or in the United States District Court for the Northern District of Georgia, Gainesville Division in any action or proceeding arising out of or related to any order, and each party hereby irrevocably agrees that all claims in respect to such action or proceeding will be heard and determined in such Superior Court or District Court. 

20. WAIVER OF BREACH

No waiver of breach or failure to exercise any option, right, or privilege under the terms of this Agreement or any order on any occasion or occasions will be construed to be a waiver of the same or any other option, right or privilege on any other occasion.

21. FORCE MAJEURE

Neither party will be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, act of terrorism, government requirement, civil, or military authority, act of God, act or omission of carriers, or other similar causes beyond its control.  If any such event of force majeure occurs and such event continues for ninety (90) days or more, the party delayed or unable to perform will give immediate notice to the other party, and the party affected by the other's delay or inability to perform may elect at its sole discretion to:

(i) Terminate this Agreement upon mutual Agreement of the parties;

(ii) Suspend such order for the duration of the condition and obtain or sell elsewhere Software or Services comparable to the Software or Services to have been obtained under this Agreement;

(iii) Resume performance of such order once the condition ceases with the option of the affected party to extend the period of this Agreement up to the length of time the condition endured. Unless written notice is given within thirty (30) days after the affected party is notified of the condition, option 21 (iii) will be deemed selected.

22. SEVERABILITY

If any of the provisions of this Agreement will be invalid or unenforceable under the laws of the jurisdiction where enforcement is sought whether on the basis of a court decision or of arbitral award applicable to the entire Agreement, such invalidity or unenforceability will not invalidate or render unenforceable the entire Agreement but rather the entire Agreement will be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of Licensor and Licensee will be construed and enforced accordingly.

23. NOTICES

All notices, demands, or other communications herein provided to be given or that may be given by any party to the other will be deemed to have been duly given when made to the electronic mail addresses the parties may provide to each other in writing from time to time.

24. BACKGROUND, ENUMERATIONS, AND HEADINGS

The “Background,” enumerations, and headings contained in this Agreement are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement.

25. TIME IS OF THE ESSENCE

The Parties hereto acknowledge that the performance by Licensor and Licensee of their obligations hereunder is to be done on a “time is of the essence” basis.

26. NO THIRD–PARTY BENEFICIARIES

There are no third–party beneficiaries to this Agreement.

27. ENTIRE AGREEMENT

This Agreement, the appendices, and subordinate documents referenced in this Agreement constitute the entire Agreement between the parties with respect to the subject matter contained herein, superseding all previous Agreements pertaining to such subject matter, and may be modified only by an amendment executed in writing by the authorized officers of both parties hereto. All prior agreements, representations, warranties, statements, negotiations, understandings, and undertakings are superseded hereby and Licensee hereby represents and acknowledges that in entering into this Agreement it did not rely on any representations or warranties other than those explicitly set forth in Section 13 (“Warranty and Warranty Disclaimer”) of this Agreement. Both parties hereto represent that they have read this Agreement, understand it, agree to be bound by all terms and conditions stated herein, and acknowledge receipt of a true, and exact copy of this Agreement.