CCH TEAMMATETM GLOBAL LICENSE, License Agreement I Blaze

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ACCESSDATA GROUP, LLC
GLOBAL LICENSE, SUPPORT AND SERVICES AGREEMENT
(for iBlaze, WebBlaze and Enterprise Software)

IMPORTANT NOTICE: PLEASE READ THIS ACCESSDATA GROUP, LLC (“ACCESSDATA”) GLOBAL
LICENSE, SUPPORT AND SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE
INSTALLING, DOWNLOADING, COPYING OR USING ANY ACCESSDATA SOFTWARE.
THIS
AGREEMENT IS A LEGAL AGREEMENT BETWEEN THE COMPANY, ORGANIZATION OR OTHER
PERSON OR ENTITY THAT HAS LICENSED THIS SOFTWARE (“CUSTOMER”) AND LICENSOR (AS
DEFINED BELOW). IT HAS THE SAME EFFECT AS ANY NEGOTIATED WRITTEN AGREEMENT
SIGNED BY CUSTOMER AND GOVERNS PERMITTED ACCESS TO AND INSTALLATION, COPYING
AND USE OF THE SOFTWARE BY CUSTOMER AND ANY USERS. BY CLICKING TO ACKNOWLEDGE
AND AGREE TO THIS AGREEMENT, OR BY INSTALLING, DOWNLOADING, OR USING THE
SOFTWARE, OR BY EXECUTING THIS AGREEMENT, CUSTOMER ACCEPTS AND AGREES TO BE
BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE
TO BE BOUND BY, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO, THESE TERMS AND
CONDITIONS THEN DO NOT INSTALL, DOWNLOAD OR USE THE SOFTWARE.
Section 1. Selected Definitions
1.1
“Affiliate” means with respect to
Customer, any corporation, partnership, firm, joint
venture, limited liability company, association, jointstock company, trust, unincorporated organization,
governmental organization or body that, directly or
indirectly through one or more intermediaries, controls,
is controlled by or is under common control with
Customer, and the term “control” (including the terms
“controlled by” and “under common control with”)
means the possession, directly or indirectly, of the
power to direct or cause the direction of the
management and policies of such entity, organization or
body, whether through ownership of voting securities
otherwise.
1.2
“Content”
means
informational
content, such as operational risk listings or categories,
sample report templates or illustrative databases,
contained in the Software or supplied by or on behalf of
Licensor to Customer with the Software.

initial Support term, in each case as shown on the
applicable Software Order.
1.6
“Intellectual Property Rights” means
all rights, title and interests in and to the Licensed
Products, including, without limitation, all copyright,
patent, trade secret, trademark and other intellectual
property and proprietary and moral rights related
thereto, and these and any other similar rights in any
jurisdiction relating to the Licensed Product.
1.7
“Licensed Products” mean the
Software, any Content (whether included in the
Software or separately provided), the Documentation
and the Media.
1.8
“Licensor”
means
AccessData
Group, LLC, a Delaware Limited Liability Company
with its principal place of business at 384 South 400,
Suite 200, Lindon, UT 84042.
1.9
“Media” means the physical media
on which the Software and Documentation are recorded
or printed, as provided by Licensor to Customer.

1.3
“Documentation”
means
any
operating manuals, user instructions, technical
specifications or similar publications relating to the Use
and administration of the Software by Licensor
customers that are supplied with or contained in the
Software provided to Customer by or on behalf of
Licensor.

1.10 “Order” means Licensor’s then current
order form for Software or its then current Services
request forms, all of which refer to and are governed by
this Agreement, completed and signed by Customer and
Licensor.

1.4
“Effective Date” means the earlier of
(a) the date so designated in the Order Form, or (b) the
date Customer first downloads or receives delivery of
the Software.

1.11 “Services” means the services (other than
Support) provided by Licensor under this Agreement, as
requested by Customer, accepted by Licensor and
described in one or more Orders.

1.5
“Initial Fees” mean all license fees
payable for license of the Software, together with all
fees for any related Services (to the extent such fees are
to be paid up front pursuant to the Order) and for the

1.12
“Software”
means
(a)
the
AccessData software products ordered by and provided
to Customer under this Agreement, which may include
the iBlaze, WebBlaze, or Enterprise products only in
machine readable, executable (object code) format,

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including the features, functions, designs and any
Content included therein, (b) any Updates or Versions
that may be provided by or on behalf of Licensor to
Customer during the applicable Support Period, and (c)
any complete or partial copies thereof permitted to be
made by this Agreement.
1.13 “Support” means Licensor’s then current
support and maintenance services program for the
Software, if any, as further described in Section 8.
1.14 “Support Period” means the period during
which Licensor provides support services under the
terms of this Agreement and as set out in the Order
Form, for which Customer has paid the applicable
fee(s).
1.15
“Update” means any updates,
enhancements, improvements, corrections, service packs
or other modifications of or to the Software that are
released by Licensor for general distribution to
AccessData licensees as a part of Support during the
period for which Customer has purchased Support. An
Update is generally denoted by Licensor by a change to
the right of the second decimal point in the Software
version number (for example, Version 3.1.0 to 3.1.1).
1.16
“Use” or “Using” means (a) to
install, load, download, execute, access, utilize, display
or store the Software or information therein, or interact
with its functionality or processing capabilities in
accordance with the terms of this Agreement, and (b) to
read, process and utilize the Documentation and process
the Media in connection with Use of the Software in
accordance with the terms of this Agreement.
1.17 “User” means each individual employee
of Customer or its authorized agents or subcontractors
who Uses the Licensed Products as operated or made
available by or through Customer, regardless of whether
such individual is actively Using the Software at any
given time.

hereunder (i) Customer is solely responsible for meeting
the published hardware specifications necessary for use
of the software and any subsequent updates provided by
Licensor as part of Support; (2) no license is herein
granted with respect to source code of any kind; (3)
Copyright and all other rights in the software shall
remain with Licensor; and (4) Customer must reproduce
any copyright or other notice marked on the software on
all copies you make.
2.1.1 iBlaze License. In conjunction with the
purchase of a license to the iBlaze software product,
Customer may order and purchase either a Single User
License or a Network License. In conjunction with the
purchase of a Single User License, Customer is granted
a non-exclusive, perpetual and non-transferable license
to install and Use the software on a single personal
computer. Software licensed under a Single User
License may not be installed on a server or on more than
one personal computer.
In conjunction with the
purchase of a Network License, Customer is granted a
non-exclusive, perpetual and non-transferable license to
install the software on a single server and the software
may be concurrently accessed by the number of Users
corresponding to the number of nodes specified on the
Order.
2.1.2 WebBlaze License. In conjunction with
the purchase of a license to the WebBlaze software
product, Customer shall be granted a non-exclusive,
perpetual and non-transferable license to install the
WebBlaze software on a single server for concurrent
access and Use by Users of the iBlaze software, such
number of Users corresponding to the number of
WebBlaze Seat Licenses specified on one or more
Orders. In conjunction with the purchase of a license to
the WebBlaze software hereunder, Customer will be
provided with an install code that will limit Use of the
software by Customer to the number of WebBlaze Seat
Licenses purchased in one or more Orders.

Section 2. License Grant

2.1.3 Enterprise License. In conjunction with
the purchase of a license to the Enterprise software
product, Customer is granted a non-exclusive, perpetual
and non-transferable license (i) to install the software on
a single server for concurrent access and use by multiple
users and (ii) to install the software on a number of
Customer’s personal computers; where the number of
users having concurrent access under item (i) plus the
number of personal computers on which the software
resides under item (ii) does not exceed the total number
of user licenses purchased by Customer in one or more
Orders.

2.1 General.
Effective upon Customer’s
payment of the Initial Fees, Licensor hereby grants
to Customer the following license rights with respect to
the applicable Software. Licensor reserves all rights in
and to the Licensed Products not expressly granted in
this Agreement. With respect to any license granted

2.2 Internal Use Limitation. Customer may
Use and permit its Users to Use the Licensed Products
only for Customer’s own internal business purposes.
Other than Users authorized hereunder, Customer shall
not permit any third party to Use the Licensed Products
in any way whatsoever. Except as expressly authorized

1.18 “Version” means any new version or
upgrade of the Software that contains substantial and
significant enhancements, or other substantial changes
in functionality or performance as compared to the
previous version (if any) and which is designated by a
numeric change to the first position to the left or right of
the first decimal point (e.g., Version 8.1.X to 8.2.X or
8.9.X to 9.0.X).

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by Section 3 of this Agreement, Customer shall not, and
shall not permit any User to, offer or Use the Licensed
Products for the benefit of any affiliated or unaffiliated
third parties, including in any computer service
business, service bureau arrangement, outsourcing or
subscription service, time sharing or other participation
arrangement.
2.3 Number of Users. Customer shall not Use,
or permit the Use of, any Licensed Products by more
than the maximum number of concurrent Users
specified in the applicable Orders.
2.4
Copies.
Customer may make a
reasonable number of back-up copies of the Software
for Customer’s archival or disaster recovery purposes
only and not for production, development, evaluation or
testing purposes (other than to ensure that such back-up
copies are capable of replacing the Software in case of a
disaster). Such copies shall be the property of Licensor
and Customer shall not remove from, deface or
overprint on the original Software any Licensor
copyright notices, trademarks, logos, legends or other
similar proprietary designations, and shall accurately
reproduce all of the same on any permitted copies.
Customer shall keep exclusive possession of and control
over the copies of the Licensed Product in its possession
and shall effect and maintain adequate security
measures to safeguard the Licensed Product from access
or use by any unauthorized person or person who is not
an authorized User hereunder.
2.5
Evaluation License. If any Licensed
Products are provided to Customer for evaluation or trial
use, Customer may use the same only for the purposes
of evaluating the Software during the trial period
specified in an Order or, if no period is specified, for a
period of thirty (30) days from the Effective Date. All
Licensed Products are provided to Customer for
evaluation purposes during any such trial period on an
“AS IS” basis, with no warranties or indemnities
whatsoever, express or implied, orally or in writing.
The preceding will supersede and apply in lieu of
Sections 10, other than Section 10.5.
Section 3. Limited Third Party Use of Licensed
Products
3.1 Affiliate Use. Any Customer Affiliate
may Use the Licensed Products, provided that (a) such
Customer Affiliate Uses the Licensed Products only for
its own and/or Customer’s internal business purposes
strictly in accordance with all of the terms and
conditions set forth in this Agreement (including,
without limitation, Section 2.3 above), and (b) Customer
Affiliate agrees to comply with and be bound by the
terms of this Agreement. Customer hereby agrees to be
fully responsible and liable for each and every Customer
Affiliates’ (and its Users) full compliance with the terms
and conditions of this Agreement, such that any breach

of the terms of this Agreement by any such Affiliate
shall be deemed a breach by Customer.
3.2 Use by Third Party Service Providers.
Customer may permit Use of the Licensed Products by
its third party service providers, experts or consultants,
including any third parties providing Customer with
outsourcing, data center management or disaster
recovery services (“Service Providers”), provided that
such Service Providers (a) use the Licensed Products
only for Customer’s internal business purposes; (b)
agree to comply with and be bound by the terms of this
Agreement. Customer hereby agrees to be fully
responsible and liable for each and every Service
Providers’ (and its Users) full compliance with the terms
and conditions of this Agreement, such that any breach
of the terms of this Agreement by any such Services
Provider shall be deemed a breach by the Customer.
Section 4. Unauthorized Use of Licensed Products
4.1 No Modification or Reverse Engineering.
Customer shall not, and shall not allow any User,
Affiliate or Service Provider to, (a) modify, port, adapt
or translate or create any derivative works from or based
on the Licensed Products, in whole or in part, (b)
reverse engineer, decompile, disassemble or otherwise
attempt to reduce the object code to or discover the
source code of the Software, or (c) combine or merge
the Software with, or incorporate it into, any other
software. This prohibition shall not apply to the extent
that applicable law affords Customer the right to
decompile the Software if and as necessary to render it
interoperable with other software licensed or used by
Customer, provided that Customer first requests such
decompiled information from Licensor and complies
with any reasonable conditions, including payment of
any reasonable fees and expenses then generally
charged by Licensor to its customers for the same.
Customer’s Use of the Software to process Customer
information or tasks and produce activity lists, schedules
or reports which the Software enables and for which it is
intended will not be deemed to constitute a creation of
derivative works or violations of this Section 4.1.
4.2 No Transfer or Assignment. Except as
may be otherwise expressly provided in Section 3,
Customer shall not (a) sublicense, assign or transfer the
Software in whole or in part to any third party, or (b)
assign or transfer to any third party any of Customer’s
rights or interests in and to the Software, including
through any lease, rental, subscription, lending, pledge,
security interest or shared participation arrangement
with or in favor of any third party.
4.3 Additional Customer Responsibilities.
Customer shall maintain, and promptly provide to
Licensor upon its request, accurate User lists and other
reasonably detailed records regarding Use of the
Software by or for Customer. If Customer becomes

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aware of any unauthorized Use of all or any part of the
Licensed Products, Customer shall notify Licensor
promptly, providing reasonable details. Customer will
remain responsible for any unauthorized Use of the
Licensed Products by any individuals employed by,
acting as authorized agents of or performing services for
Customer or it Affiliates (including any of their
respective Service Providers).
4.4
Verification Rights. Upon reasonable
prior notice to Customer not more than once every
twelve (12) months, Licensor may conduct an audit,
using its own or third party personnel, to review that
Customer’s Use of the Licensed Products complies with
this Agreement, including the number of licensed Users
under this Agreement and the applicable Order(s).
Licensor will conduct any such audit during Customer’s
normal business hours and in accordance with
Customer’s reasonable site security requirements. If
any such review or any other Customer-provided
information reveals that Customer has underpaid any
license or Support fees, then as a non-exclusive remedy,
Licensor may invoice Customer for, and Customer will
pay, such additional fees as are thereby determined to be
payable, based on Licensor’s then effective list prices.
If such underpayment exceeds five percent (5%) of the
total fees paid or payable by Customer under this
Agreement, Customer also shall reimburse Licensor for
its reasonable costs actually incurred in conducting the
verification.
4.5 Provisions Regarding Oracle Software.
With respect to any Oracle software embedded in or
provided with the Software (“Oracle Programs”), (1)
Oracle or its licensor retains all ownership and
intellectual property rights to the Oracle Programs, (2)
Customer disclaims, to the extent permitted by
applicable law, Oracle's liability for (a) any damages,
whether direct, indirect, incidental, special, punitive or
consequential, and (b) any loss of profits, revenue, data
or data use, arising from the use of the Oracle Programs,
(3) publication by Customer of any results of benchmark
tests run on the Oracle Programs is prohibited, (4) the
Oracle Programs are subject to a restricted license and
can only be used in conjunction with the Oracle
application package and Customer is not permitted to
modify the Oracle Programs, (5) Oracle is not obligated
to perform any obligations or incur any liability on
behalf of Customer, (6) Licensor is authorized to audit
Customer’s use of the Oracle Programs, and Customer
must provide reasonable assistance and access to
information in the course of such audit and permits
Licensor to report the audit results to Oracle and
Licensor may assign such audit rights to Oracle, in
which case Oracle shall not be responsible for any of
Customer’s costs incurred in cooperating with the audit,
(7) Oracle is a third party beneficiary under this
Agreement, (8) the application of the Uniform
Computer Information Transactions Act is specifically
excluded, (9) third party technology that may be

appropriate or necessary for use with some Oracle
Programs is specified in the Oracle application package
documentation or as otherwise notified by Licensor,
such third party technology is licensed to Customer only
for use with the application package under the terms of
the third party license agreement specified in the
application package documentation or as otherwise
notified by Licensor and not under the terms of this
Agreement.
Section 5. Proprietary Rights
5.1
Ownership of Licensed Products.
Customer acknowledges that Licensor is and will
remain the sole and exclusive owner of all Intellectual
Property Rights. Customer shall have no rights, title or
interest therein or thereto, other than the limited license
expressly set forth in this Agreement.
5.2. Ownership of Customer Data. Nothing in
this Agreement shall be construed as granting Licensor
any right, title or interest in or to any Customerprovided data or other content or information input into
or processed using the Licensed Products.
5.3 Ownership of Other Materials. Licensor
shall be the exclusive owner of all rights, title and
interests, including all Intellectual Property Rights, in
and to (i) the Licensed Products, (ii) any and all
translations, adaptations, developments, enhancements,
improvements, Updates, Versions, customizations or
other modifications or derivations of or to the Licensed
Products, whether or not developed by or for the
Customer, and (iii) any suggestions, ideas, enhancement
requests, feedback, or recommendations provided by or
on behalf of Customer. In providing any customized
report template or other customized work product
deliverables in connection with its provision of Services
hereunder, Licensor does not and shall not be deemed to
transfer to Customer any Intellectual Property Rights
therein, whether as “work-for-hire” or otherwise, other
than the right to Use the same in accordance with this
Agreement as part of the Licensed Products. Customer
hereby assigns, grants and conveys to Licensor all
rights, title and interests in and to any and all such
materials, effective upon their creation
or
communication. Customer will execute and deliver to
Licensor such further assignments and take all such
further actions as Licensor may reasonably request to
effect or evidence the assignment to and vesting in
Licensor of all such rights.
5.4 No Contest. Neither Party shall pursue
any claims contesting, make any filings or registrations
inconsistent with or otherwise take any actions to
challenge the respective Intellectual Property Rights of
the other Party as set forth in this Section 5.
Section 6. Confidential Information

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6.1 Nature and Scope. All data and other
information identified as confidential by either party,
shall be considered confidential information of that
party. Customer agrees that the Licensed Products
constitute trade secrets and confidential information of
Licensor.
Customer and Licensor confidential
information, in all forms and media and including all
notes, excerpts and derivatives and all copies of any of
the foregoing, are hereafter collectively referred to as
“Confidential Information.”
6.2 Obligations. Each party will keep all
Confidential Information of the other Party strictly
confidential. Each party agrees to use the same care to
protect the Confidential Information of the other as it
employs with similar information of its own (but in no
event less than reasonable care). Neither party will
disclose any Confidential Information of the other party,
except
that
each
party
may
disclose
Confidential Information of the other to its employees,
subcontractors or agents who have a need to know such
information, provided that, prior to such disclosure, the
disclosing party requires that each such employee,
subcontractor or agent agrees to the restrictions on use
and disclosure of Confidential Information set forth
in this Agreement. The parties further agree that they
will use Confidential Information solely for the
purposes for which such information, or access to it, is
provided pursuant to the terms of this Agreement. Upon
any termination of this Agreement or otherwise
promptly after the disclosing party's reasonable request,
the receiving party shall either return to the disclosing
party or destroy and certify in writing to such party the
destruction of any and all Confidential Information of
such party in the receiving party's possession. For the
purpose of this Section 6, with respect to Customer,
“party” shall include any Affiliate of Customer who has
Users hereunder.
In addition, Customer and its
Affiliates (if applicable) shall be responsible for full
compliance of any of their Service Providers’ or Users’
full compliance with the confidentiality obligations
hereunder. This confidentiality obligation shall survive
for a period of five (5) years after Customer’s
termination of Support of the Software.
6.3 Exceptions. Confidential Information
shall not include information which is: (i) independently
developed by the party without the benefit of the other's
disclosure or is already known by the party at the time
of disclosure; (ii) approved for release by the other's
written authorization or is rightfully received by the
party from a third party without any obligation of
confidentiality; (iii) public knowledge without the
wrongful act or breach of this Agreement by either
party; or (iv) disclosed pursuant to the requirements of a
governmental agency or court order.
Section 7. Order, Delivery and Payment

7.1 Order, Delivery, Installation. Customer
may order Software licenses, Support (for certain
software products) and/or Services by submitting one or
more signed Orders to Licensor. After its acceptance of
a Software Order, Licensor will either deliver the
Software to Customer at the locations provided therein
or permit the Customer to download the Software from
an FTP site identified in such Order. Customer will be
responsible for installation of the Software, except to the
extent Licensor agrees to provide such Services in
accordance with Section 9 and pursuant to an Order.
Acceptance will be deemed to occur on Customer’s
receipt or downloading of Licensed Products,
Customer’s order or renewal of Support or Licensor’s
performance of Services, as applicable. Licensor will
bear all risk of loss for Licensed Products until their
delivery to or downloading by Customer.
7.2 Payment and Taxes. All fees and
expenses are quoted and invoiced in the currency
specified in the applicable Order. All invoiced amounts
are due and payable by Customer within thirty (30) days
after the invoice date. Fees and other charges described
in the applicable Order, do not include federal, state or
local sales, foreign withholding, use, property, excise,
service, value added or similar taxes (“Tax(es)”) now or
hereafter levied, all of which shall be for Customer’s
account. With respect to state/local sales tax, direct pay
permits or a valid tax-exempt certificate must be
provided to Licensor prior to the execution of this
Agreement. If Licensor is required to pay Taxes,
Customer shall reimburse Licensor for all such amounts.
Customer hereby agrees to indemnify Licensor for any
such Taxes and related costs, interest and penalties paid
or payable by Licensor.
Section 8. Support
8.1 Support Term and Fees. The initial term
for Support of the Software, if any, will commence on the
Effective Date and continue for such initial Support
Period as shown on the applicable Order. Support will
automatically renew for successive one (1) year renewal
terms unless and until terminated as provided in Section
8.5. Support will be provided to Customer during the
initial twelve (12)-month term following the Effective
Date at the price set forth in the Order. Support fees for
each successive Support renewal term are payable by
Customer annually in advance.
8.2
Licensor
Support
Obligations.
Throughout the applicable Support Period, provided that
Customer is not then in default of its obligations under
this Agreement (including payment obligations) and
subject to the exclusions set forth in Section 8.4,
Licensor will provide or cause to be provided the
following Support services: (a) telephone help-desk to
assist Customer in its Use of the Software and respond
to any reported failures of the Software to conform to
Section 10.2 (provided that this support shall not be in

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lieu of obtaining training with respect to the Licensed
Product, for which there is a Service charge); (b)
provision of such Updates and Versions as Licensor
from time to time produces and distributes generally to
Software licensees under Support for no additional fees;
and (c) such other support services as Licensor provides
generally to licensees as part of its then current Software
support and maintenance program.
8.3 Customer Responsibilities. Throughout the
applicable Support Period, Customer will: (a) cooperate
with Licensor in investigating and seeking to identify the
cause of any claimed failure of the Software to perform in
accordance with this Agreement; (b) allow such other
remote and/or on-site access to the Software and to
Customer's systems as may be reasonably required for
Licensor to perform Support activities and (c) install
either the most current Version of the Software or one of
the two most recent Versions of the Software. Licensor’s
obligation to provide the Support described in Section
8.2 above shall not apply to the extent Customer is not
in full compliance with this Section 8.3(c). Customer
acknowledges that the failure to timely install any
Versions as required in Section 8.3(c) shall excuse
Licensor’s warranty and indemnity obligations herein, if
any, if and to the extent any performance or
infringement issues thereby would have been avoided or
mitigated by Customer’s installation of such Versions.
8.4 Exclusions. Licensor Support will not
include: (a) resolution of problems resulting from: (i) any
modification of or damage to the Software or its
operating environment, (ii) Customer’s failure to
operate the Software in an approved hardware and
software environment or otherwise in accordance with
applicable Licensor Documentation, or (iii) Customer’s
failure to implement any Versions as required in Section
8.3(c); or (b) the provision of any Updates or Versions or
other program Support described in Section 8.2, if
Customer is in default with respect to payment of Support
fees; or (c) Services, including but not limited to any
installation, implementation and other Services.
8.5
Support Termination; Reinstatement.
Either party may terminate Support under this Agreement
as of the end of the initial Support Period, or as of the end
of any renewal term, by written notice to the other party
at least ninety (90) days prior to the end of such
applicable Support Period and/or renewal term. If
Customer's license to use any of the Software is
terminated for any reason, Support will terminate
automatically as to such Software. If Licensor terminates
Support in accordance with this Section 8.5, other than in
the circumstance of a breach of this Agreement by
Customer, Customer will be entitled to receive a pro-rata
refund of any prepaid Support fees for any period beyond
the termination effective date. If Customer does not
renew Support, and later desires to reinstate Support,
Customer will be required to pay all fees that Customer
would have paid for Support had they never terminated it.

Section 9. Services
9.1 General. Licensor offers consulting
services relating to the Licensed Products, including
installation and implementation services, configuration
or customization of templates or reports and training for
Customer personnel. Licensor will provide (a) any
required initial implementation Services, as provided in
the Order for the Licensed Products, and (b) all other
Services, at Customer’s election and following
Customer’s signature and Licensor’s acceptance of an
Order describing the nature, scope, project assumptions,
fees, duration, location(s) of the covered Services, in
each case in accordance with and subject to the terms
and conditions of this Agreement.
9.2 Services Performance; Customer Support.
In performing Services, Licensor may assign Licensor
personnel, authorized agents or qualified third-party
contractors who are proficient in the provision of
Services relating to the Licensed Products
(“Consultants”). Licensor will be responsible for the
observance by such Consultants of Licensor’
obligations hereunder, including the confidentiality
obligations in Section 6 herein. Customer agrees to
provide the information, facilities, personnel and
equipment, including if applicable suitably configured
computers, reasonably identified by Licensor as
essential to the performance of any Services. Customer
may require Licensor’s personnel in performing any
Services to observe at all times the safety and security
policies of Customer. Customer shall advise Licensor of
any hazards to the health and safety of Licensor’s
personnel on the Customer’s premises and provide
Licensor’s personnel with appropriate information
regarding applicable safety and security procedures.
9.3
Services Pricing.
Unless otherwise
provided in the applicable Order, all Services other than
Support shall be provided on a time and
expense/materials basis at Licensor’s then current rates.
Licensor reserves the right to impose a higher rate for
Services performed upon the request or with the
approval of Customer in excess of a forty (40) hour
week or during weekend or holiday periods. Estimates
are provided for Customer’s information only and are
not guaranteed. Customer shall pay or reimburse
Licensor for all reasonable travel and other out-ofpocket expenses incurred in connection with Licensor’s
performance of Services hereunder.
Section 10. Limited Warranties and Disclaimers
10.1 Authority. Each party represents to the
other that such party has the full corporate power and
authority to enter into and perform this Agreement.
10.2 Software and Media. Licensor warrants
to Customer that, for a period of ninety (90) days from

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its delivery date (the “Warranty Period”), (a) the Media
on which the Software is furnished will be free from
material defects under normal use. Licensor’s entire
liability and the Customer’s sole and exclusive remedy
for breach of this Section 10.2 will be limited to either,
at Licensor’s option, replacement of the Software and
Media at no charge to Customer or refund of the license
fee paid by Customer and termination of this
Agreement. The warranties in this Section 10.2 shall
not apply if, and during the period that, any Licensed
Products are provided to Customer for evaluation or trial
use under Section 2.4.
10.3 Services. Licensor warrants to Customer
that all Services provided under this Agreement will be
performed by competent personnel with appropriate
experience in providing such Services.
10.4 Warranty Limitations. The preceding
Licensor warranties do not apply to and, to the full
extent permitted by law, Licensor shall have no
responsibility for breaches of warranty to the extent
arising from: (i) Customer operator errors; (ii) Customer
hardware or operating system failures; (iii) the
modification of the Software by any person other than
Licensor (except as directed or authorized by Licensor);
(iv) the combination of the Software with products or
services not provided by Licensor (except as directed or
authorized by Licensor); (v) use of any portion of the
Software in a manner not permitted or contemplated by
this Agreement or the Documentation; (vi) use of an
earlier Version of some or all of the Software or use of
Software without all of the Updates installed.
10.5 DISCLAIMERS. (a) EXCEPT FOR (i)
THE WARRANTIES EXPRESSLY STATED ABOVE
IN THIS SECTION 10 AND (ii) ANY WARRANTY,
REPRESENTATION OR CONDITION TO THE
EXTENT THE SAME CANNOT BE EXCLUDED OR
LIMITED UNDER APPLICABLE LAW, LICENSOR
AND
ITS
AFFILIATES,
AGENTS,
SUBCONTRACTORS AND SUPPLIERS MAKE NO
REPRESENTATIONS OR WARRANTIES, AND
EXPRESSLY DISCLAIM AND EXCLUDE ANY
AND ALL WARRANTIES, REPRESENTATIONS
AND
CONDITIONS,
WHETHER
EXPRESS
OR IMPLIED, WHETHER ARISING BY OR UNDER
STATUTE, COMMMON LAW, CUSTOM, USAGE,
COURSE OF PERFORMANCE OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE
OR NON-INFRINGEMENT. WITHOUT LIMITING
THE
FOREGOING,
LICENSOR
AND
ITS
AFFILIATES, AGENTS, SUBCONTRACTORS AND
SUPPLIERS
DO
NOT
WARRANT,
AND
EXPRESSLY DISCLAIM ANY REPRESENTATION
OR WARRANTY, THAT THE LICENSED
PRODUCTS, CONTENT, SUPPORT, SERVICES OR
OTHER DELIVERABLES PROVIDED BY OR ON

BEHALF
OF
LICENSOR
WILL
SATISFY
CUSTOMER’S REQUIREMENTS OR THAT THEIR
USE OR OPERATION WILL BE ERROR OR
DEFECT FREE OR UNINTERRUPTED, OR THAT
ALL
SOFTWARE
DEFECTS
WILL
BE
CORRECTED.
EXCEPT FOR THE EXPRESS
WARRANTIES
IN SECTION
10,
(A)
THE
LICENSED PRODUCTS ARE PROVIDED “AS IS,”
WITH ALL FAULTS AND WITHOUT ANY
GUARANTEES
REGARDING
QUALITY,
PERFORMANCE, SUITABILITY, TIMELINESS,
SECURITY, DURABILITY, INTEGRABILITY OR
ACCURACY, AND (B) CUSTOMER ACCEPTS THE
ENTIRE RISK OF AND RESPONSIBILITY FOR
USE, QUALITY, PERFORMANCE, SUITABILITY
AND RESULTS OF USE OF THE LICENSED
PRODUCTS AND ITS OWN AUDIT APPROACH OR
METHODOLOGY.
(b)
NO
ORAL
OR
WRITTEN
INFORMATION
OR
ADVICE
GIVEN
BY
LICENSOR,
ANY
OF
ITS
AFFILIATES,
DISTRIBUTORS, AGENTS, SUBCONTRACTORS
OR SUPPLIERS OR THEIR RESPECTIVE
EMPLOYEES, OFFICERS OR DIRECTORS WILL
INCREASE THE SCOPE OR OTHERWISE ALTER
THE TERMS OF ANY WARRANTY EXPRESSLY
STATED IN THIS AGREEMENT OR CREATE ANY
NEW REPRESENTATIONS, WARRANTIES OR
CONDITIONS.
(c)
TO THE EXTENT THAT ANY
WARRANTIES,
REPRESENTATIONS
OR
CONDITIONS CANNOT BE FULLY DISCLAIMED
AND EXCLUDED UNDER APPLICABLE LAW AS
CONTEMPLATED BY SECTION 10.5(a), THEN
ANY DIFFERENT OR ADDITIONAL LEGALLY
REQUIRED WARRANTIES, REPRESENTATIONS
OR CONDITIONS, SHALL BE LIMITED IN
DURATION TO NINETY (90) DAYS FROM THE
DATE OF SOFTWARE DELIVERY OR SERVICES
PERFORMANCE, AS APPLICABLE.
Section 11. Limitations of Liability
11.1 Internet Exclusion. THE SOFTWARE
MAY BE USED TO ACCESS AND TRANSFER
INFORMATION
OVER
THE
INTERNET.
CUSTOMER ACKNOWLEDGES AND AGREES
THAT LICENSOR AND ITS AFFILIATES, AGENTS,
SUBCONTRACTORS AND SUPPLIERS DO NOT
OPERATE OR CONTROL THE INTERNET AND
THAT (I) VIRUSES, WORMS, TROJAN HORSES,
OR OTHER UNDESIRABLE DATA OR SOFTWARE,
OR (II) UNAUTHORIZED USERS (E.G. HACKERS),
MAY ATTEMPT TO OBTAIN ACCESS TO AND
DAMAGE CUSTOMER’S DATA, WEBSITES,
COMPUTERS OR NETWORKS. LICENSOR SHALL
NOT BE RESPONSIBLE FOR PREVENTION OR
EFFECTS OF SUCH ACTIVITIES.

Page 7 of 10

11.2

Customer Responsibility; Professional
Advice.
CUSTOMER
ASSUMES
ALL
RESPONSIBILITIES AND RISKS, FOR ITSELF AND
ALL USERS, REGARDING: (I) ALL DATA AND
INFORMATION
COLLECTED,
USED
OR
INCLUDED IN OR PROCESSED, ACCESSED OR
STORED WITH THE LICENSED PRODUCTS; (II)
THE PREPARATION, ACCURACY, REVIEW AND
USE OF RESULTS OBTAINED THROUGH USE OF
THE SOFTWARE OR ANY CONTENT, AND ANY
DECISIONS OR ADVICE MADE OR GIVEN TO
ANY PARTY BASED ON THE USAGE OF THE
LICENSED PRODUCT.
LICENSOR AND ITS
AFFILIATES,
DISTRIBUTORS,
AGENTS,
SUBCONTRACTORS AND SUPPLIERS ARE NOT
ENGAGED IN RENDERING LEGAL OR OTHER
PROFESSIONAL OR EXPERT ADVICE OR
SERVICES AND ARE NOT RESPONSIBLE FOR
HOW THE LICENSED PRODUCT IS USED, THE
RESULTS AND ANALYSIS DERIVED BY
CUSTOMER BY USE OF THE LICENSED
PRODUCT
AND
ANY
DECISIONS
THE
CUSTOMER
MAY
TAKE
BASED
ON
CUSTOMER’S USAGE OF THE LICENSED
PRODUCT.
11.3 Damages Exclusion. TO
THE
MAXIMUM EXTENT PERMITTED BY LAW,
NEITHER LICENSOR OR CUSTOMER, NOR THEIR
RESPECTIVE
AFFILIATES,
DISTRIBUTORS,
AGENTS, SUBCONTRACTORS OR SUPPLIERS,
WILL HAVE ANY LIABILITY WHATSOEVER FOR
ANY LOSS OF SALES, PROFITS, BUSINESS,
DATA,
OR
OTHER
INCIDENTAL,
CONSEQUENTIAL,
INDIRECT,
OR
ANY
EXEMPLARY, PUNITIVE OR SPECIAL LOSS OR
DAMAGE,
EVEN
IF
ADVISED
OF
THE POSSIBILITY OF THEIR OCCURRENCE,
RESULTING FROM OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT, THE LICENSED
PRODUCTS, CONTENT, SUPPORT OR ANY
SERVICES RENDERED HEREUNDER, OR ANY
OTHER CAUSE WHATSOEVER, REGARDLESS OF
THE FORM OF THE CLAIM OR ACTION
(WHETHER
BASED
ON
CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER
TORT, STATUTE OR OTHERWISE), PROVIDED,
HOWEVER, THERE SHALL BE NO LIMITATION
OF LIABILITY FOR CUSTOMER’S BREACH OF
ANY PROVISIONS OF THIS AGREEMENT
RELATING
TO
PROPRIETARY
RIGHTS,
CONFIDENTIALITY AND NON-DISCLOSURE
AND
NON-USE
OF
CONFIDENTIAL
INFORMATION.
11.4 Limitations of Liability. The entire and
collective liability of Licensor and its affiliates,
distributors, agents, subcontractors and suppliers, arising
out of or related to this Agreement, the Licensed

Products, Content, Support or Services, or any other
cause whatsoever, including without limitation on
account of performance or nonperformance of
obligations under this Agreement, regardless of the form
of the cause of action, whether in contract, tort
(including without limitation negligence), statute
or otherwise, shall in no event exceed the total fees paid
to Licensor in the twelve-month period preceding the
date such claim or cause of action first arose. The
limitation of liability under this Section will be applied
to the maximum extent permitted by applicable law.
11.5 Limitations Period. Any claim or cause
of action arising under or otherwise relating to this
Agreement, any Order, or the Licensed Products,
Support, Services or other subject matter hereof or
thereof, whether based on contract, tort (including
negligence) or otherwise, must be commenced within
one year from the date such claim or cause of action
first arose.
Section 12. Term and Termination
12.1 Term. This Agreement will become
effective upon the Effective Date, and will remain in
force until terminated in accordance with the terms
hereof.
12.2 Termination. (a) Either party may
terminate this Agreement in its entirety, or in part with
respect to an Order for Services, at any time upon thirty
(30) days prior written notice, if the other party
materially fails to comply with any of the terms and
conditions of this Agreement and such failure is not
cured by the end of such thirty (30)-day period. Licensor
may terminate this Agreement immediately if Customer
materially fails to comply with Sections 2, 3, 4, 5 or 6 of
this Agreement.
(b) Unless otherwise specified by the parties
in writing, either party may terminate this Agreement in
part with respect to the delivery by Licensor of any of
the Services upon thirty (30) days’ advance written
notice. Upon any such partial termination, Licensor
shall advise Customer of the extent to which
performance of a terminated Service has been
completed through such date. Licensor shall be paid for
all work performed and expenses with respect to such
Service through the date of termination.
12.3 Effects of Termination. Upon termination
of this Agreement for cause by Licensor, including due
to violation by Customer or Affiliates (or their
respective Users) of Sections 2, 3, 4, 5, 6 or 10.1 or for
failure to pay any license fee or contractually required
Support Fee due hereunder or any applicable Order
(“Licensor For-Cause Termination”), or for any other
reason, Customer shall immediately cease using the
Licensed Products, return all of the Licensed Products
(including all copies thereof, in whatever form) to

Page 8 of 10

Licensor, and return to Licensor all of its Confidential
Information in tangible form, destroy or erase any
computer entries, database entries and any other
recordation of Licensor Confidential Information.
12.4 Survival. In the circumstance of a
Licensor For-Cause Termination, all license rights
granted under Sections 2 and 3 shall be terminated,
provided Sections 4, 5, 6, 7 (to the extent payment is
still due by Customer) 10.4, 10.5, 11, 12, 13 and, 14
shall survive any such termination of the Agreement. In
the circumstance of a Customer ceasing to maintain
Support or expiration of the Agreement, Section 2, 3, 4,
5, 6, 7 (to the extent payment is still due by Customer)
10.4, 10.5, 11, 12, 13 and 14 shall survive any such
termination or expiration of the Agreement.
Section 13. Governing Law and Dispute Resolution
13.1 Governing Law and Venue. The Parties
consent to the application of the laws of the State of
New York to govern, interpret and enforce all rights,
duties and obligations arising from, or relating in any
manner to, the subject matter of this Agreement, without
regard to conflict of law principles. The exclusive
venue of any suit brought in conjunction with a dispute
arising under or relating to the subject matter of this
Agreement shall be a state or federal court in Salt Lake
City, UT and each party is hereby subject to the
jurisdiction of such courts.
The United Nations
Convention on Contracts for the International Sale of
Goods shall not apply to this Agreement.
13.2 Injunctive Relief. Notwithstanding an
agreement of the parties to submit disputes under this
Agreement for resolution by arbitration, each party
agrees that any actual or threatened breach by the other
of its obligations under this Agreement relating to
proprietary rights, confidentiality and non-disclosure of
Confidential Information may cause irreparable damage
for which legal remedies are inadequate, and each party
agrees that the other may seek immediate injunctive or
other equitable relief restraining such actual or
threatened breach in any judicial forum, without the
need to first secure a judgment or award and without the
need to seek arbitration and follow any procedures
related thereto.
13.3 Waiver of Jury Trial. EACH PARTY
KNOWINGLY,
VOLUNTARILY
AND
UNCONDITIONALLY WAIVES ITS RIGHT TO A
JURY TRIAL FOR ANY CLAIM OR CAUSE OF
ACTION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT,
ANY
RELATED
DOCUMENTS,
THEIR
RESPECTIVE SUBJECT MATTER OR RELATED
DEALINGS BETWEEN THE PARTIES TO THE
MAXIMUM EXTENT PERMITTED BY LAW.
Section 14. Miscellaneous Provisions

14.1
Export Controls.
Customer
acknowledges that the Licensed Products are subject to
export controls under United States laws and
regulations, including the Export Administration
Regulations, 15 C.F.R. Parts 730-774, and may be
subject to other applicable laws and regulations in other
jurisdictions relating to export, re-export, import,
transfer or other disposition of software and other
technology (collectively, “Export Control Laws”).
From and after Licensor’s delivery of the Licensed
Products to Customer, Customer shall comply with any
and all applicable Export Control Laws applicable to the
Licensed Products.
14.2. Government Use. In the event that
Customer is an agency of the United States Government
or that a license granted hereunder is pursuant to a
contract with either a defense or civilian agency of the
United States Government, Customer acknowledges that
the Software and Documentation, respectively, provided
to Customer hereunder constitute commercial computer
software and commercial computer software
documentation developed at private expense and are
subject to the terms and restrictions of this Agreement
pursuant to FAR 27.405-3 and DFARS 227.7202. The
contractor/manufacturer is Licensor, with an address set
forth on the applicable Order.
14.3 Entire Agreement. This Agreement,
including its Schedules and exhibits, together with all
Orders, (i) collectively constitute the entire agreement
between the parties, and (ii) supersede all prior
agreements, understandings,
proposals
and
communications, oral or written, relating to the
subject matter of this Agreement. Any purchase order,
requisition, work order, request for proposal or other
document or record prepared, issued or provided by or
on behalf of Customer relating to the subject matter of
this Agreement is for administrative convenience only
and will have no effect in supplementing, varying or
superseding any provisions of this Agreement,
regardless of any acknowledgement thereof by Licensor.
14.4
Precedence. In the event of any
inconsistency or conflict between the terms
and conditions of this Agreement and any Order,
schedule, exhibit or other attachment, the order of
precedence shall be as follows: first, the body of this
Agreement; then, any applicable schedules or exhibits to
this Agreement; then, any Order; then any exhibits or
other attachments to any Order. In the event of conflict
between this Agreement and any Order, the body of this
Agreement shall govern and control, except to the extent
such Order makes clear that this Agreement is being
amended by such Order.
14.5 Severability. If any provision of this
Agreement is held to be invalid, illegal or
unenforceable, such provision shall be construed or

Page 9 of 10

limited, and/or deemed replaced by a revised provision,
to the extent (and only to the extent) necessary to render
it valid, legal and enforceable and, as nearly as possible,
to reflect and achieve the parties’ intentions in agreeing
to the original provision. If it is not possible to so
construe, limit or reform any such provision, then the
invalid, illegal or unenforceable provision shall be
severed from this Agreement. The remaining provisions
of this Agreement shall be unaffected thereby and shall
continue in full force and effect.
14.6 Amendment; Waiver. This Agreement
may be modified or amended by a writing expressly
identified as an Amendment and signed by both parties.
Unless otherwise provided in an Amendment, Licensor
reserves the right to modify, in its discretion, the terms
in the body of this Agreement in connection with (i) the
general release of future versions, updates, or upgrades
of the Software; and/or (ii) the issuance of invoices for
Services. Customer will be provided an opportunity to
review and accept or reject any modified Agreement,
but continued use of the Software will be subject to
Customer’s acceptance of such modified Agreement.
14.7 No Third Party Beneficiary. Except as
expressly set forth in this Agreement, no third party is
intended to be or shall be a third party beneficiary of
any provision under this Agreement. Licensor and
Customer shall be the only parties entitled to enforce the
rights set out in this Agreement.
14.8 Assignment. Customer may not assign or
transfer this Agreement or any rights or
obligations hereunder, without the prior written consent
of Licensor.
14.9 Force Majeure. Except for payment
obligations, neither party will be liable to the other for
any failure or delay in performing its obligations under
this Agreement due to any cause beyond its reasonable
control, including, without limitation, fire, flood,
earthquake or other natural catastrophes, acts of war,
terrorism or civil disobedience, governmental acts, laws
or regulations, embargoes, labor strikes or difficulties,
failures of third party suppliers, acts or omissions of
carriers, transmitters, providers of telecommunications
or Internet services, vandals, hackers, transportation
stoppages or slowdowns or the inability to procure parts
or materials. Each party will use reasonable efforts to
give written notice to the other promptly after becoming
aware of any condition or event causing any such
excusable performance failure or delay.

bodily injury, death and property damage. Upon written
request, Licensor shall promptly provide confirmation
of such insurance coverage.
14.11 Independent Contractor. Each party’s
relationship to the other is that of an independent
contractor. Nothing in this Agreement, and no course of
dealing between the parties, shall be construed to create
a partnership, joint venture or employment or agency
relationship between the parties or between Customer
and any Licensor employee, agent or contractor.
Neither party has any authority to bind, incur liability
for or otherwise act on behalf of the other party, and
neither party will represent or imply that it has any such
authority.
14.12
Notices. All notices under this
Agreement shall be in writing and shall be deemed to
have been received upon personal delivery, by facsimile
(followed by delivery of a hard copy thereof within five
(5) business days of such facsimile), by commercial
overnight courier service, or five (5) business days after
mailing by certified or registered mail to the address for
such party provided in the Order.
14.13 Electronic Documents. Any document
in electronic format or any document reproduced from
an electronic format shall not be denied legal effect,
validity, or enforceability solely for that reason and shall
meet any requirement to provide an original or print
copy.
CUSTOMER
By: _________________________________________
Name: _______________________________________
Title: ________________________________________
Date: _______________________________________

14.10 Insurance. During any period in which
it is performing Services for Customer, Licensor will
maintain (a) workers’ compensation with such coverage
amounts at least equal to that legally required in
jurisdictions in which such Services are being
performed, and (b) general liability insurance in
commercially reasonable amounts covering liability for

Page 10 of 10



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