Terms and Conditions

Version 12/15/2016

SERVICE & SUPPORT // TERMS & CONDITIONS //

Version 12/15/2016

SERVICE & SUPPORT // TERMS & CONDITIONS //

Licensor
Compliance Umbrella LLC
162 Rosa L Parks Blvd, Nashville, TN 37203
Telephone: 615-257-1491

www.ComplianceUmbrella.com

Licensor and the person(s) specified as the “Subscriber” in the enrollment page that references these Terms and Conditions (the “Parties “) agree that the following terms and conditions are incorporated in and made a part of the enrollment agreed to by the Parties, which together are the agreement of the Parties with respect to the Compliance Umbrella Compliance Management System and services purchased by the Subscriber from the Licensor under the Enrollment. The Enrollment and these terms and conditions are collectively the “Agreement.”

 

1. Definitions

The following words shall have the following meanings when used in this Agreement:
1.1 “Business Day” shall mean Monday through Sunday, excluding holidays.

1.2 “Critical Error(s)” shall mean a failure of the System or Hosted Services reported by Subscriber to Licensor for analysis and correction as provided in this Agreement that severely impacts Subscriber’s ability to use the System or Hosted Services in substantial conformity with the specifications of the System or Hosted Services and that cannot be temporarily eliminated through the use of a “bypass” or “work around.” “Bypass” or “work around” means a procedure by which a Subscriber can avoid or substantially mitigate a problem with the Software or a Hosted Service.

1.3 “Data” shall mean all records, documents, and other information located in the Compliance Management System (hereinafter referred to as “CMS” and identified as the software system that is the subject of this Agreement) or stored in a cloud system provided by Licensor, including but not limited to, all of Subscriber’s information, any information relating to Subscriber’s clients, consumer information located in the CMS Complaint Module or elsewhere in the CMS system and billing information, in any form provided to Licensor by Subscriber or required for Licensor’s performance of the services to be provided under this Agreement.

(a) As further delineated in the Licensor’s website Privacy Policy, all data identified above is and will remain solely the legal property of the Subscriber. The rights of both parties to treatment of their data as confidential is further outlined in Section 21 (below) of this Agreement.

1.4 “Enhancement(s)” shall mean any improvement to or change in the CMS software system licensed by Subscriber that alters the original functional characteristics provided to Subscriber. Unless otherwise agreed in writing by Licensor, all title, ownership, and intellectual property rights to the Enhancement(s) shall vest solely and exclusively with Licensor. Subscriber’s sole interest in the Enhancement(s) is a limited license to use the Enhancement(s) subject to the terms and conditions of this Agreement.

1.5 “Error(s)” shall mean a failure of the CMS software system or Hosted Service application software to function substantially in accordance with Licensor’s specifications or the third party provider’s specifications, as the case may be.

1.6 “Fix(es)” shall mean a correction of an Error(s).

1.7 “Hosted Service” shall mean one or more software applications in object code or binary form only that are provided over the Internet on an application service provider basis by or through Licensor, which includes future Enhancements; provided, however, future Enhancements on Hosted Services obtained from third party application providers are included only to the extent and subject to the terms that such Enhancements are available to Subscriber through the agreement or arrangement between Licensor and the third party provider.

1.8 “Installation of Software” shall mean when the software is installed or available through the Internet and demonstrated to be operational.

1.9 “License(s)” shall mean any personal, nonexclusive, nontransferable, nonassignable license or licenses granted by Licensor to Subscriber to use the Software or Hosted Services under this Agreement.

1.10 "Number of Users" shall be equal to the number of employees of Subscriber at the business location where the system is used. Each employee using the system shall establish a user ID and password for his/her entry and use of the system. The Parties understand and agree that regulatory compliance as required by the federal Consumer Financial Protection Bureau (CFPB) is conditioned on every employee with regulation responsibility having access to and using the Compliance Management System licensed under this Agreement by Compliance Umbrella. 

1.11 “Object Code” shall mean the binary machine readable version of the Software.

1.12 “Severely Impacts” shall mean having a material negative impact on the Licensor’s ability to provide services to Subscribers or having a material negative impact on Subscriber’s ability to manage or process information which is critical to the well-being of the Subscriber’s operations.

1.13 “Site” shall mean the Subscriber’s office location listed on the Sales Order. Each license subscribed to and used by the Subscriber shall be limited to use at one business location (address) only. A Subscriber business having locations in four different cities will need to purchase a different License for each location (each city where used).

1.14 “Software” shall mean the Object Code version of all programs, data, routines, and future Enhancements.

1.15 “Maintenance” shall mean the work done by Licensor to provide Fixes and Enhancements to the Software.

1.16 “Products” shall mean all physical components, other than Software, which are offered by Licensor, including but not limited to, documentation, magnetic media, job aids, templates, and other similar devices or content.

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

2. Sales Order

The Agreement is made only upon execution of a Sales Order by both Parties. Any Sales Order not paid and agreed to by both Parties within three weeks following the Sales Order date is deemed terminated and no longer represents an offer to purchase or sell any product or service.

3. License

3.1 Licensor grants Subscriber a limited, personal, nonexclusive, nontransferable, nonassignable Object Code license to use the Software and Products at the Site stated in the Sales Order, subject to the provisions of this Agreement as well as the payment of all applicable License fees for the term of such License. Licensor agrees to provide Subscriber with associated Products, and Maintenance subject to the provisions of this Agreement.

3.2 Licensor grants Subscriber a limited, personal, nonexclusive, nontransferable, nonassignable license to use the Hosted Services stated in the Sales Order, subject to the provisions of this Agreement as well as the payment of all applicable License fees for the term of such License. Licensor agrees to provide Subscriber with associated Products, and Maintenance subject to the provisions of this Agreement.

3.3 All Software and Hosted Service applications and Products in whatever form, including, without limitation, Source Code, Object Code, including any computer programs and any documentation relating to or describing such Software or Hosted Service applications or Products, such as, but not limited to logic manuals and flow charts provided by Licensor, including instructions for use of the Software or Hosted Service applications or Products, and formulation of theory upon which the Software or Hosted Service applications or Products, are based, are furnished to Subscriber only under a personal, nonexclusive, nontransferable, nonassignable license solely for Subscriber’s own use. All of the Software and Hosted Service applications, and all computer program specifications, documentation, procedure manuals, disks, and tapes utilized, processed, provided, or developed by Licensor in connection with this Agreement or the services rendered to Subscriber hereunder shall be and remain the exclusive and confidential property of Licensor or third parties from whom Licensor has secured the right to use the same. The Data, records, statements, or other documents generated by Subscriber in connection with the use of any of the Software or Hosted Services shall be retained by Subscriber, subject only to those lawful uses reasonably required or permitted under the agreements and arrangements pursuant to which Hosted Services are provided to Subscriber by or through Licensor under this Agreement.

3.4 Except as provided in 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 Subscriber under this Agreement.

4. Term of Licenses

The term of each individual License granted under this Agreement begins on the date of installation of the Software or Hosted Service. Any License to use a Hosted Service from a third party provider continues so long as Licensor has a continuing right under its agreement or arrangement with the third party provider to license others to use the Hosted Service, subject to Subscriber’s timely payment of License fees and the other terms of this Agreement.

4.1 Hosted Services Term

4.1.1 Initial term – The initial term of this Agreement is for a period as defined on the 1st page of this Sales Order Agreement. In the event that there is no initial term referenced on the cover page, the initial term of this Agreement is for a period of one (1) year, subject to earlier termination as provided in this Agreement.

4.1.2 Beyond Initial Term – After the initial term, the term shall automatically renew annually for additional one (1) year periods at then current prices unless either party gives not less than thirty (30) days written notice prior to the end of the then-current term of its intention to terminate the Agreement.

5. License Fees

The pricing for the License fees for Software, Hosted Services, Products, and Maintenance ordered hereunder, including any applicable discount and payment schedules, is detailed on the Sales Order.

6. Duties of the Parties to Each Other

Licensor has duty to provide a Compliance Management System for use by Subscriber that shall contain procedures, training, quizes, a complaint database and related documents and reports covering certain federal laws as listed by the CFPB to be required to be followed by the Subscriber relevant to consumer protection generally. In fulfilling this duty, Licensor shall, on a best efforts basis, maintain and review the system and its contents, enabling updates and regulatory changes as such are published to the public and ensuring the technical operation of the system is maintained at the highest possible level of consistent 24 x7 operation.

Subscriber has the legal duty to follow the directives and recommendations presented by the system in order to maintain a status of being compliant with the federal regulations and laws detailed in Licensor’s CMS system. Further, Subscriber shall, on a best efforts basis, review its procedures and operations to ensure that, when changes occur in its technology or business function that Licensor is informed of this. These changes could include:

6.1 Changes –

  1. Technology changes;

  2. Threats or occurrences of any known cyberattack;

  3. Upcoming changes to the company’s business arrangements (new products, mergers, joint ventures, outsourcing);

  4. Upcoming changes to customer information systems.

7. Reproduction of Manuals, Documentation, and Object Code

7.1 Manuals and Documentation. Subscriber shall have the right to reproduce solely for its own use, all manuals and documentation, including user documentation and all training manuals, furnished by Licensor pursuant to this Agreement, regardless of whether such manual or documentation is copyrighted or otherwise restricted as proprietary information. All copies of manuals or documentation made by Subscriber shall include any proprietary notice or stamp that has been affixed by Licensor or any third party provider. If documentation is published by Licensor, such will be furnished for each License of the Licensor’s Software or Hosted Service, at no charge to Subscriber.

8. Right to Operate Software on Additional Computers

8.1 The License granted by Licensor does not extend to any computers other than computers located at the License business address and used by the Subscriber and its employees, except for ant addition useage rights granted in this Section 8. Users nay logon at other computers as such use is dekegated by the Subscriber. This may occur due to, but not limited to, the following; equipment problems, transfer of company activities due to moving, transfer to a hot site during business recover operations. Subscriber shall inform Licensor if location will change for any extended period of time (meaning 30 days or more). Such operation will require no additional fees.

9. Acceptance of Software and Hosted Services

9.1 Hosted Service application software shall function substantially in accordance with the with Licensor’s specifications. If Subscriber determines that the Hosted Service does not function substantially in accordance with the applicable specifications, Subscriber shall so notify Licensor, in writing, specifying the area of noncompliance. Failure to notify Licensor of any such deficiency within five (5) Business Days following the date of completion of beginning use will constitute acceptance of the Hosted Service.

9.2 In the event that Subscriber gives notice of deficiency with respect to a Licensor Hosted Service application, Licensor shall use its reasonable best efforts to address all such conditions within thirty (30) days from the date of receipt of Subscriber’s notification. If the Subscriber reported conditions that prevent the Licensor Hosted Service application from functioning substantially in accordance with Licensor’s specifications are not satisfied within this thirty (30) day period, the Subscriber will notify Licensor, in writing, within five (5) Business Days following the end of the thirty (30) day period, and state either Subscriber’s acceptance of the Hosted Service application, Subscriber’s desire to extend the period for resolving the condition, or Subscriber’s intent to terminate the Hosted Service License without penalty or further financial obligation. Failure to notify Licensor in writing within five (5) Business Days following the end of the thirty (30) day period or use of the Licensor Hosted Service by the Subscriber in its normal business operations following the end of the thirty (30) day period will constitute acceptance of the Licensor Hosted Service Application.

10. Support and Maintenance Implementation

10.1 Licensor shall be responsible for performing and Subscriber desires Licensor to perform Software support and Maintenance during the term of this Agreement and subsequent renewal periods at no charge to the Subscriber. The Parties understand and agree that future versions and services may create separate support and maintenance duties between the parties. Additional services and products will be governed by additional Agreements that will include support and maintenance responsibilities and fees and charges as applicabe and as agreed to between the Parties.

11. Data Storage

11.1 Licensor provides Subscriber space on the cloud-hosted application server for storage of data created through use of the Software. Storage is made in graduated amounts as follows: (Averages from NexisLexis)

Storage Tier

Space in Gigabytes

Type / Avg pg per doc

PAGES per 1 GB // 50 GB Tier I only

FILES per 1 GB// 50 GB Tier I only

I

1-50

Microsoft Word // 9

65,000 // 325,000

7,200 // 36,000

II

51-100

Email // 1.5

100,000 // 5 million

70,000 // 3.3 million

III

101-200

Excel File // 50

166,000 // 8.3 million

3,300 // 166,700

IV

201-500

Lotus 1-2-3 // 55

300,000 // 15 million

5,400 // 272,000

V

500-1,000

PowerPoint // 14

17,500 // 875,000

1,250 // 62,500

 

 

Text File // 20

678,000 // 33.9 million

33,900 // 1.7 million

 

 

Image Files // 1.4

15,500 // 775,000

11,100 // 55,350

(NOTE: For example, in the first tier of data storage, provided with all subscriptions, you can store 166,700 average size excel files, if that’s the only type of file you store. Licensor monitors data storage, so it is safe to accept Tier I, Licensor will inform Subscriber of data storage use and needs.)

11.2 The amount of storage space needed by Subscriber (i.e., the applicable storage tier) is based on Subscriber’s raw data as well as all document and image files, and is calculated by Licensor each month through an audit of the application server.

11.3 Each License includes an average amount of cloud space for the size of the License, provided by Compliance Umbrella at no additional cost. Should extraordinary amounts of cloud data storage be requested or used by a subscriber, we will inform the subscriber of any additional charges exclusive of all other fees for the extra cloud space requested, and computed at the prevailing rate. Compliance Umbrella reserves the right to terminate an account for excessive use of cloud space and failure to pay charges associated with such use.  

12. Fixes and Enhancements

12.1 During any period when Licensor has a Maintenance obligation under this Agreement, Subscriber will promptly notify Licensor verbally of Errors, with phone notification to Licensor by Subscriber of Subscriber’s discovery of the Error(s). Licensor shall provide Subscriber with a toll-free telephone number, which is answered from 8:00 A.M. to 5:00 P.M., Nashville, TN (CDT), Monday through Friday, except for holidays. During any period when Licensor has a Maintenance obligation to Subscriber, Subscriber shall have access via this telephone number to individuals who shall accept Error reports or Licensor may provide voicemail capability for Subscriber to leave a message. Licensor will receive a response to a voicemail message within 12 hours on weekdays and within one business day for messages left on Saturday and Sunday.

12.2 During any period when Licensor has a Maintenance obligation under this Agreement, Licensor shall use its reasonable best efforts to immediately address any Critical Errors affecting Subscriber’s continued business use of the Software after Licensor’s notification of the Error. Licensor will use its good faith efforts to address all other Errors within thirty (30) calendar days after Licensor’s receipt of notification of the Error(s).

13. Training and Support

13.1 Training, operating, and support instructions, are provided within the system under Other Communications.

13.2 Licensor shall provide Subscriber with unlimited telephone support with respect to the use and operation of the Software or Hosted Services from 8:00 A.M. to 5:00 P.M Nashville, TN (Central time zone), Monday through Friday, except for Licensor holidays, through a toll-free telephone number provided by Licensor.

13.3 Licensor may, at its discretion, offer to Subscriber from time to time access to web-based virtual instruction resources.

13.4 Licensor may, at its discretion, offer to Subscriber from time to time remote training sessions. This service is provided to Subscriber only if it has a current Maintenance agreement.

14. Risk of Loss

14.1 Risk of loss or damage to Software and/or Products licensed by Subscriber under this Agreement shall vest in Subscriber when the Software and/or Products have been accepted by Subscriber, or its representative, pursuant to Section 9, provided that such loss or damage is not caused by Licensor or its employees or its agents.

15. Pricing and Payment

15.1 The monthly licensing fee is detailed on the Sales Order, including any credits for any prepayment or discounts. In all purchases, payment is due upon signing the Sales Order and prior to scheduling the order for installation. A purchase order or line of credit from a finance institution may secure the order, but implementation cannot begin until the full payment is received. A final invoice for the balance of the Sales Order purchase price, and any subsequent invoices where Subscriber elects to pay monthly, will be issued promptly following the date of acceptance, and is due and payable within five (5) Business Days from the date of invoice. Any applicable and necessary taxes will also be added to payments as required. Any invoice not paid by the due date will bear interest either at the rate of 18% per annum based on a 365 day year, or at the highest rate allowed under applicable law, whichever is less, and is payable on demand of Licensor.

15.2 Hosted Services are sold at an initial purchase price (including setup and implementation fees if applicable and noted on the Sales Order) plus monthly service fee, if any. The initial purchase price and monthly fee are detailed on the Sales Order. Payment for the first twelve months or the first payment period is due at the time the Sales Order is signed by both Parties. A final invoice for the balance of the initial purchase price of Hosted Services, including any applicable shipping charges and sales tax, will be issued promptly following the date of signing the Agreement, and is due and payable within five (5) Business Days from the date of invoice. Monthly fees will be paid by ACH electronic bank direct transfer on the first Business Day of each calendar month (prorated for any partial calendar month of Hosted Service). Subscriber will issue and keep in force all instructions and instruments required by Licensor and Subscriber’s bank that will enable Licensor to draw the monthly fee from Subscriber’s bank account. The unpaid balance of all monthly fees not timely made because Subscriber does not have sufficient funds on deposit or for any other cause that is the fault of Subscriber will bear interest either at the rate of 18% per annum based on a 365 day year, or at the highest rate allowed under applicable law, whichever is less, and is payable on demand of Licensor.

15.2.1 Hosted Services purchased as a bundle will be billed separately upon database activation for each respective product. Monthly billing for each product will begin on applicable date(s).

15.3 The renewal price for all subsequent periods shall be the renewal price established by Licensor and stated in an invoice delivered by Licensor to Subscriber not less than thirty (30) Business Days prior to the end of the then current renewal period. The Subscribers renewal, payment of the renewal price stated in the invoice must be received by Licensor not less than three (3) Business Days prior to the end of the current renewal period.

15.4 Any other fees, charges, or costs payable by Subscriber to Licensor under this Agreement shall be detailed in an invoice sent by Licensor to Subscriber. All such invoices are due and payable within thirty (30) Business Days following date of invoice, unless the invoice is for a product or service for which Licensor requires payment in advance of providing the product or service, in which case the payment must be received by Licensor in advance or prior to the lapse date of the maintenance agreement or penalties will be incurred. No product or service will be provided under an invoice requiring advance payment until the payment is received by Licensor. For invoices on fees, charges, or costs that have accrued, any payment not timely made will bear interest either at the rate of 18% per annum based on a 365 day year, or at the highest rate allowed under applicable law, whichever is less, and is payable on demand of Licensor.

15.5 In the event Subscriber claims any amount is due from Licensor, as a credit or otherwise, and whether or not related to the License provided or services performed by Licensor hereunder, Subscriber shall in all events pay all invoices and monthly fees under this Agreement properly when due and may not set off against such invoices any amounts claimed due without a separate signed Agreement between the parties.

16. Termination of Agreement and/or License

16.1 Licensor shall have the right to terminate this Agreement and, at its option, take possession of the Software and Products and terminate any Hosted Services, if: (a) Subscriber makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or any part of Subscriber’s property or business; (b) Subscriber is adjudicated bankrupt; or (c) Subscriber fails to perform or observe any of its obligations hereunder and such condition (other than a payment default for which no cure period is allowed) is not remedied within thirty (30) calendar days after written notice to Subscriber.

16.1.1 If Licensor elects not to terminate the Agreement after a default by Subscriber, it may by written notice to Subscriber thereafter require that Subscriber pay cash, cashier’s check, or certified funds for the performance of services by Licensor.

16.1.2 Subscriber shall have the right to terminate this Agreement if: (a) Licensor makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy, or similar officer is appointed to take charge of all or any part of Licensor’s property or business; (b) Licensor is adjudicated bankrupt; (c) Licensor fails to perform or observe any of its obligations hereunder and such condition is not remedied within thirty (30) calendar days, except as otherwise provided herein, after written notice is received by Licensor; or (d) Licensor shall cease to conduct business as a going concern.

16.2 In the event either Party shall be in breach or default of any of the terms, conditions, or covenants of this Agreement, and such breach or default shall continue for a period of thirty (30) calendar days after the giving of written notice to the Party in default, then in addition to all other rights and remedies of law or equity or otherwise, the injured Party shall have the right to cancel this Agreement effective within five (5) Business Days of such notification without any charge, obligation, or liability whatsoever, except as to the payment for Software, Products, Hosted Services, and/or Maintenance already received and accepted by Subscriber. NEITHER SUBSCRIBER NOR LICENSOR SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES ARISING FROM A BREACH UNDER THIS SECTION 15, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM LOSS OF DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, AND DAMAGE TO EQUIPMENT, EVEN IF THE BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16.3 Upon the effective date of termination, cancellation or expiration of this Agreement, each Party shall, without request by the other Party, immediately return all papers, materials, and property of the other Party, and without regard for whether or not such property is “Confidential Information” as defined herein. In lieu of the returning Party physically returning the property to the receiving Party and at the receiving Party’s option, the receiving Party may instruct that any of its property that is “Confidential Information” be immediately shredded (including computer system “shredding” of such property) by the returning Party. In addition, each Party will assist the other in the orderly termination of this Agreement and in the transfer of all property, tangible and intangible, as may be necessary for the orderly, non-disrupted business continuation of each Party.

16.4 Within ten (10) calendar days after the effective date of termination, cancellation, or expiration of this Agreement, Subscriber shall, upon Licensor’s request, certify in writing that to the best of its knowledge all copies of the Software and Hosted Service application software, in whole or in part, have been removed, deleted, or “shredded” from its computer equipment and systems. Concurrent with this certification, Subscriber will return to Licensor all of Licensor’s “Confidential Information” relating to the Software License, including Products, and Hosted Service Licenses required by Licensor to be returned and Subscriber will certify to Licensor that such Software has been destroyed or deleted and that all “Confidential Information” of Licensor relating to the Software License, including Products, and Hosted Service Licenses have been returned to Licensor.

16.5 Upon termination of this Agreement as a result of a default by Licensor, Licensor agrees to convert Subscriber’s Data into a machine readable, non-proprietary format within a reasonable time period at no cost to Subscriber upon Subscriber’s request. Upon the expiration of the term of this Agreement or upon termination of this Agreement as a result of a default by Subscriber, Licensor shall convert Subscriber’s Data as described above, and Subscriber shall reimburse Licensor for all time and expense involved.

17. Indemnity

17.1 The Parties understand and agree that nothing in the relationship, interaction or content of the Website and operation of the software creates a client-attorney relationship between Licensor and Subscriber. The Parties also understand that the content of the website and the software contains only general information applicable to the entire business community and is not legal advice nor specific to any single company or business.

17.2 Licensor agrees to indemnify and save harmless Subscriber, and Subscriber agrees to indemnify and save harmless Licensor respectively, from any liabilities, lawsuits, penalties, claims, or demands finally awarded or settled (including the costs, expenses, and reasonable attorney’s fees on account thereof) that may be made: (a) by any third party for injuries, including death to persons, resulting from the indemnifying Party’s negligent or willful acts or omissions or those of persons employed by the indemnifying Party, its agents or subcontractors; or (b) by any employee or former employee of the indemnifying Party or any of its subcontractors for which the indemnifying Party or subcontractor’s liability to such employee or former employee would otherwise be subject to payments under state worker’s compensation or similar laws. Licensor agrees to defend Subscriber, at Subscriber’s request, and Subscriber agrees to defend Licensor, at Licensor’s request, against any such liability, claim, or demand. Subscriber 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 shall be in addition to any other indemnity obligations of Licensor or Subscriber set forth in this Agreement.

18. Limitation of Liability

18.1 LICENSOR SHALL NOT BE LIABLE FOR ANY: (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR RELATED TO THE OPERATION OR USE OF THE SOFTWARE, SOFTWARE PRODUCTS, AND HOSTED 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 SUBSCRIBER BY ANY THIRD PERSON, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY LICENSOR TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND ITS REASONABLE CONTROL; OR (C) CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST LICENSOR MORE THAN TWENTY-FOUR (24) MONTHS AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, LICENSOR’S LIABILITIES UNDER THIS AGREEMENT SHALL NOT EXCEED THE LESSER OF: (A) THE AMOUNT RECEIVED BY LICENSOR FROM SUBSCRIBER FOR THE SOFTWARE OR SOFTWARE ENHANCEMENTS, OR (B) THE ACTUAL AMOUNT OF MONEY DAMAGES INCURRED BY SUBSCRIBER.

18.2 Subscriber shall

not be liable for any: (a) special, indirect, incidental, or consequential damages, including loss of profits, arising from or related to operation or use of the Software, Products, Maintenance, or Hosted Services, including such damage, 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 Licensor by any third person, even if Subscriber has been advised of the possibility of such damages; (b) damages (regardless of their nature) for any delay or failure by Subscriber to perform its obligations under the Agreement due to any cause beyond its reasonable control; or (c) claims made a subject of a legal proceeding against Subscriber more than twenty-four (24) months after such cause of action first arose.

19. Warranty

19.1 Except as provided below, Licensor warrants that it owns all rights, title, and interest in and to the Software, Products, and Hosted Services, except for any third party software and service applications, that it has the right to grant the licenses granted hereunder, that all Software will function substantially in accordance with Licensor’s specifications. This warranty coverage shall include all Maintenance performed and any Enhancements or Fixes to the Software by Licensor. Such warranty shall extend for one (1) year from the date of acceptance except for the warranty of title, which shall extend for the duration of this Agreement. Licensor does not warrant that Subscriber’s use of the Software will be uninterrupted or error free.

19.2 Licensor’s responsibility under this warranty shall be to correct or replace, at no additional charge to Subscriber, any part of the Software or Products found to be defective. Licensor further warrants that any services provided by Licensor under this Agreement shall be performed in a fully workmanlike manner and in accordance with the prevailing professional standards of the software industry. This warranty shall survive inspection, test, acceptance, use, and payment.

19.3 LICENSOR FURNISHES THE ABOVE WARRANTIES IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

19.4 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, LICENSOR MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE, SOFTWARE PRODUCTS, OR HOSTED SERVICES OR THEIR CONDITION, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE BY SUBSCRIBER.

19.5 Any and all warranties shall be void as to Software, Products or Hosted Service application software damaged or rendered unserviceable by: (a) the acts or omissions of non-Licensor personnel except when Licensor instructs or requires Subscriber to perform any modifications with respect thereto; (b) misuse by Subscriber, its employees or agents, theft, vandalism, fire, water, or other peril; (c) moving, relocation, alterations, or additions not performed in accordance with this Agreement.

20. Confidential Information

20.1 Each Party acknowledges and agrees that any and all information emanating from the other’s business in any form, including the terms of this Agreement, is “Confidential Information,” and each Party agrees that it will not, during or after the term of this Agreement, permit the duplication, use, or disclosure of any such Confidential Information to any person (other than an employee, agent, or representative of the other Party who must have such information for the performance of its obligation hereunder), unless such duplication, use, or disclosure is specifically authorized by the other Party in writing. Each Party shall: (a) not disclose any Confidential Information to any third person without the express written consent of the disclosing Party; (b) not use, directly, indirectly, or in concert with any other person, any Confidential Information for any purpose other than the performance of their obligations under this Agreement; (c) use reasonable diligence, and in no event less than that degree of care that such Party uses in respect to its own confidential information of like nature, to prevent the unauthorized disclosure or reproduction of such information. Without limiting the generality of the foregoing, to the extent that this Agreement permits the copying of Confidential Information, all such copies shall bear the same confidentiality notices, legends, and intellectual property rights designations that appear in the original versions.

20.2 For the purposes of this Section, the term “Confidential Information” shall not include: information that is in the public domain; information known to the recipient Party as of the date of this Agreement as indicated by the recipient’s written records, unless the recipient Party agreed to keep such information in confidence at the time of its receipt; and information properly obtained hereafter from a source who is not under an obligation of confidentiality with respect to such information; is independently developed by the receiving Party through persons who have not had, either directly or indirectly, access or knowledge of such Confidential Information which can be verified by independent evidence; or is obligated to be produced under a court order of competent jurisdiction or a valid administrative or congressional subpoena. The provisions of this Section 21 shall survive termination of this Agreement for any reason.

20.3 Any logo, program names, trademarks, service marks, programs, manuals, documentation, and other support materials that are covered under this Agreement or otherwise provided by one Party to the other are either copyrighted, trademarked, or are held as proprietary by the providing Party. The receiving Party agrees not to remove any such notices and product identification and additionally agrees to take all action necessary to protect the providing Party’s rights thereto.

21. Fee Increases & Refunds

21.1 License fees may be changed or increased at any time during the active term of a subscription license. Such changes or increases shall be effective beginning the first day of the following month. The parties also understand and agree that no refunds shall be paid for any part of any past month when system access was provided to a Subscriber by Licensor. Annual subscriptions will be terminated upon request at the conclusion of the current paid subscription term.

22. Notices

22.1 With the exception of invoices, insurance papers, shipping papers, reports, and correspondence in the normal course of business, all notices, demands, or other communications herein provided to be given or that may be given by any Party to the other shall be deemed to have been duly given when made in writing and delivered in person, or upon delivery, if deposited in the United States mail, postage prepaid, certified mail, return receipt requested, or via overnight courier, to the address of the other Party set forth on the first page of this Agreement.

23. Assignment

23.1 Subscriber 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 the Licensor, which consent may not be unreasonably withheld. All assignments in contravention of this Section 24 shall be null and void.

24. Force Majeure

24.1 Neither Party shall 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, 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, the Party delayed or unable to perform shall 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: (a) terminate this Agreement; (b) suspend its performance under this Agreement for the duration of the condition; or (c) resume performance of under this Agreement once the condition ceases.

25. Waiver of Breach

25.1 No waiver of breach or failure to exercise any option, right, or privilege under the terms of this Agreement by either Party on any occasion or occasions shall be construed to be a waiver of the same or any other option, right, or privilege on any other occasion.

26. Governing Law/Jurisdiction

26.1 The validity, construction, interpretation, and performance of this Agreement shall be governed by and construed in accordance with the domestic laws of the state of Tennessee, except as to its principals of conflicts of laws. Both Parties, for their mutual convenience, and recognizing that this provision is a condition precedent to Licensor entering into this Agreement, hereby consent and agree to institute any legal action that may arise as a result of this Agreement only in a state or Federal court sitting in Williamson or Rutherford County, Tennessee. Subscriber further agrees that if its staff or employees are necessary witnesses to any legal proceeding hereunder, Subscriber will be responsible for ensuring that such persons are present and available for any legal proceeding in Williamson or Rutherford County, Tennessee Salt for a reasonable time to the extent it is within Subscriber’s control. Subscriber further agrees that it will bear all costs and expenses of ensuring such witnesses are present and available in Williamson or Rutherford County, Tennessee, and agrees that it will not object to the choice of venue as result of those costs and expenses. The Parties to this Agreement, in both their individual and representative capacities, do hereby consent to personal jurisdiction within the state of Tennessee and waive any and all rights to dispute personal jurisdiction in the event any dispute or disagreement arises as a result of this Agreement.

27. Severability

27.1 If any of the provisions of this Agreement shall be invalid or unenforceable under the laws of the state of Tennessee applicable to the entire Agreement, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement, but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions, and the rights and obligations of Licensor and Subscriber shall be construed and enforced accordingly.

28. Headings

28.1 The headings contained in this Agreement are inserted for convenience only and are not intended to have any substantive significance in interpreting this Agreement.

29. Amendments, Modifications, or Supplements

29.1 Amendments, modifications, or supplements to this Agreement shall be permitted, provided: (a) changes shall be in writing signed by the authorized representatives of both Parties; (b) changes shall reference this Agreement and identify the specific articles or sections contained herein that are amended, modified, or supplemented; (c) changes shall not adversely affect vested rights or causes of action that have accrued prior to the effective date of such change.

30. Authority and No Conflicting Agreement

The officers or agents signing on behalf of the Parties to this Agreement acknowledge that they have read and understand this Agreement and hereby warrant that each has full power and authority to execute this Agreement and bind the respective Parties hereto. Each Party further represents that it is not bound by any other contract or agreement that would prevent full performance of this Agreement.

31. Entire Agreement

31.1 This Agreement, the Sales Order, appendices, and subordinate documents referenced herein and therein 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 authorized representatives of both parties hereto. All prior agreements, representations, statements, negotiations, understandings, and undertakings are superseded hereby. 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 signed, true and exact copy of this Agreement.

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