Terms of Service

CDC SOFTWARE LLC
TERMS AND CONDITIONS
FOR LICENSED SOFTWARE AND SERVICES
These Terms and Conditions (“Agreement”) are effective as of April 15, 2024.
THIS AGREEMENT IS A BINDING CONTRACT AND GOVERNS THE USE OF AND ACCESS TO THE
SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID
SUBSCRIPTION, LICENSING, AND/OR OTHER SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or
End-User to access or use a License and/or Service, Customer agrees to be bound by this Agreement as of the
date of Service Order execution. If You are entering into this Agreement on behalf of a company, organization
or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to
CDC Software that You have the authority to bind such Entity and its Affiliates to this Agreement, in which
case the terms “Customer,” “You,” or “Your” herein refers to such Entity and its Affiliates. If You do not have
such authority, or if You do not agree with this Agreement, You must not use or authorize any use of the
Services. Customer and CDC Software shall each be referred to as a “Party” and collectively referred to as the
“Parties” for purposes of this Agreement.
The purpose of this Agreement is to establish the terms and conditions under which Customer may purchase
CDC Software’s Services and Related Services as described in a Service Order, Statement of Work or other
document signed or agreed to by the Customer.
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SECTION 1 DEFINITIONS
Each of the following definitions shall be equally applicable to the singular and plural forms of the terms
defined.
As used in this Agreement:
“Affiliate” means, with respect to the applicable party, any corporation, company, partnership, trust, sole
proprietorship or other entity or individual which: (a) is owned or controlled by such party, in whole or in part;
(b) owns or controls such party, in whole or in part; or (c) is under common ownership or control with such
party, in whole or in part.
“Confidential Information” shall have the meaning set forth in Section 8.
“Customer” is defined as the entity contracting with CDC Software to purchase licenses for software and/or
related services.
“Documentation” means user guides, operating manuals, release notes, specifications, system operation
materials and other similar documents, whether in print or machine-readable media, provided by Licensor to
Customer.
“Effective Date” means the last date set forth on the signature page.
“Intellectual Property Rights” means domain names, company names, patents, trademarks, trade names, trade
dress, trade secrets, know-how, concepts, ideas, discoveries, inventions (whether or not patentable), processes,
developments, suggestions, materials, improvements, works of authorship, artwork, software, documentation,
intellectual property, rights in other tangible and intangible assets of a proprietary nature, and the like.
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“License” shall have the meaning set forth in Section 2.1.
“Licensor” is defined as CDC Software LLC.
“Maintenance and Support Services” shall have the meaning set forth in the Service Order.
“Named User License” means a license permitting one individual (as identified by a specific user identification
number) to access the Software. Customer may replace one named user with another if the original named user
no longer has access to the Software.
“Object Code” means the binary machine-readable form of computer programming code of the Software.
“Ongoing Support” means the provision of Upgrades on a regular and ongoing basis.
“Platform” means software and related service(s) provided by Licensor as specified on the Service Order.
“Project Plan” means a written document that contains a brief description of the tasks to be performed by each
party, the deliverables for each task and the commencement and completion dates for each task.
“Requirements of Law” means any law, ordinance, statute, treaty, rule, judgment, regulation, or other
determination or finding of any arbitrator or governmental authority applicable to or binding upon a party or to
which that party is subject or to which the Software must comply, whether federal, state, county, local, or
otherwise.
“Server” means a single server owned, leased or controlled by Licensor, Customer or one of its Affiliates or a
Licensor provided server.
“Server License” means a license to (a) create a single instance of a Server database on a production Server;
(b) use and access the Server database and Software using only the type and authorized Named User Licenses;
and (b) install the Software on nonproduction Server(s) for backup and test purposes.
“Services” means the Maintenance and Support Services, installing, implementing, training, consulting and
other custom services performed by Licensor under the terms of this Agreement.
“Software” means the Licensor provided software program(s) identified on the applicable Service Order and
includes all Upgrades of such program(s) provided under this Agreement as part of Maintenance and Support
Services.
“Specifications” means the Documentation and any additional technical or performance criteria set forth in the
SO or subsequently agreed to in writing by the parties.
“Service Order” or “SO” shall have the meaning set forth in Section 2.1.
“Upgrade” means a successor version of the Software. Upgrades shall include successor versions of the
Software that incorporate error corrections, upgrades, and/or Software enhancements; new releases containing
increased functionality.
“User Acceptance” shall have the meaning set forth in Section 4.2.
“Third-Party Software” means the third-party software program(s) leased by or owned by Customer and/or
provided to the customer under this Agreement as listed on the applicable SO.
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“Warranty Period” means the warranty period specified in the applicable SO. Unless otherwise provided in
the SO, the Warranty Period shall commence upon User Acceptance.
SECTION 2 PROCEDURE
2.1 Service Order. Each purchase of services shall be documented in a ” Service Order ” or ” SO “. Each
SO shall constitute a separate license (the “License“) and shall specify the type of license (i.e. Named User
License). Custom professional services and other similar services purchased as part of the initial Software
license purchase may be included on the applicable SO.
2.2 Contracting Entities. An SO may be executed by an authorized representative of (a) Customer; (b) any
division of Customer; or (c) any Affiliate of Customer.
2.3 Conflicting Terms. Each SO shall be a part of and be governed by the terms and conditions of this
Agreement. If there is a conflict between this Agreement and any SO, the terms of the SO shall control.
2.4 No Commitment to Purchase. Customer is under no obligation or commitment to make any purchases
from Licensor. Customer shall be obligated to make purchases in accordance with this Agreement if and when
the parties enter into an SO.
2.5 Additional Software Purchases. Once an SO is executed, Customer may from time to time purchase
additional licenses for the Software in question upon Licensor issuance of a price quote. The fee for the
additional licenses shall be as set forth in the price quote or, if no fee is specified, Licensor’s then-current fee.
SECTION 3 GRANT OF LICENSES
The following terms and conditions shall apply to each License:
3.1 Grant. Licensor grants to Customer a nonexclusive, worldwide, nontransferable license to use the
Software and Documentation subject to the restrictions set forth in this Agreement. This license may be
perpetual or term based as set forth in the SO. The rights and licenses granted under this Agreement to Customer
may be used by or on behalf of any Affiliate of Customer.
3.2 Other Use Rights. Unless the SO expressly provides otherwise:
3.2.1 No Restrictions on Use. Use of the Software shall not be limited to use by a particular Customer
entity or at a designated site. Without limiting the generality of the foregoing, Customer may reallocate licenses
for a particular type of Software amongst itself and its Affiliates provided that the total number in use does not
exceed the total licensed number for that Software.
3.2.2 Equipment. Customer shall have the right to substitute or add equipment (which may be based
upon the same or different Platforms or operating systems) without incurring additional license fees provided
that the substitute or additional equipment is supported by Licensor. In that regard, Customer shall have the
right to swap versions of Software, or obtain additional versions of the Software, to the extent otherwise
available from Licensor, without incurring any additional license fees, however additional installation fees or
other charges may be applicable.
3.3 Prohibited Activities.
3.3.1 No Service Bureau. Unless otherwise provided in the applicable SO, Customer agrees not to
use the Software for the benefit of unaffiliated third parties in a commercial, retail, for-profit service bureau
enterprise.
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3.3.2 No Reverse Engineering. Customer shall not decompile, dis-assemble or otherwise reverse
engineer any portion of the Software.
3.4 Copies. Customer shall have the right to make, retain, and use such copies of the Software and
Documentation as are reasonably necessary to exercise its rights under this Agreement, subject to the
restrictions set forth herein. Customer shall not remove or destroy any proprietary notices of Licensor from the
Software or Documentation and shall reproduce all copyright, trademark or other proprietary markings of
Licensor on all copies.
3.5 Acknowledgment of Ownership. Customer understands and agrees that Licensor retains the sole and
exclusive ownership of all right, title and interest in and to the Software and Documentation, including all
Intellectual Property Rights therein and all copies thereof.
3.6 Object Code. Unless otherwise provided in the applicable SO, the Software shall be provided in Object
Code only.
3.7 Third-Party Software. Customer acknowledges and agrees that each Third-Party Software product is
the property of the respective third-party owner or licensor and that Customer has no right or title, nor will it
assert any right or title, in the same except as expressly granted in writing by the terms and conditions of such
third-party license or purchase agreement. All Third-Party Software provided to Customer under this
Agreement shall be used only in accordance with the applicable license agreement from the third-party owner
or licensor and only in conjunction with the Software.
SECTION 4 DELIVERY AND ACCEPTANCE
4.1 Delivery. Licensor shall deliver, install and implement the Software in accordance with the schedule and
other requirements set forth in the SO.
4.2 User Acceptance Testing. Following installation of the Software, Customer shall have the period of
time specified in the SO (the “Test Period“) in which to test the Software to verify that it meets the requirements
Specifications. If the Software does not perform in accordance with the Specifications, Customer shall so notify
Licensor and Licensor shall provide Customer with a work plan that specifies when each deficiency shall be
corrected. The Software shall be deemed accepted (“User Acceptance“) upon expiration of the Test Period if
Customer fails to notify Licensor of any deficiency during that period.
SECTION 5 OTHER SERVICES
5.1 Description. Licensor shall provide Services as set forth in the applicable SO.
5.2 Approval of Personnel. All personnel assigned by Licensor to perform Services under this Agreement
shall be reasonably acceptable to Customer. Upon request by Customer, Licensor shall remove any employee,
agent or subcontractor reasonably determined by Customer to be unacceptable.
5.3 Skills. All personnel assigned by Licensor to perform Services under this Agreement shall have suitable
experience and qualifications with respect to the nature of the Services required, perform such Services in
accordance with the standards established in this Agreement and any applicable SO, and shall be properly
qualified to provide the Services contemplated in a manner that complies with all Requirements of Law.
5.4 Project Plan. Unless the SO expressly states otherwise, the Services shall be provided pursuant to an
agile iterative framework.
5.5 Performance Dates. Each party understands that any variation from the performance dates set forth in
the Project Plan may adversely impact project milestones and completion dates, including, without limitation,
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the date of completion of the project. Each party agrees to use best efforts to fulfill its obligations under the
Project Plan and to meet the performance dates set forth in the Project Plan.
5.6 Licensor Project Manager. Licensor shall, as soon as practicable following the execution of the
applicable SO, assign a project manager (“Licensor Project Manager“) who shall have the principal
responsibility for overseeing and managing the performance of obligations of Licensor under the SO and who
shall be the primary point of contact for Licensor.
5.7 Customer Cooperation. Customer shall cooperate with Licensor by providing Licensor with all
information required and making available to Licensor at least one employee, contractor, or consultant who
shall have relevant knowledge and experience to act as a project manager. Customer is responsible to ensure
the timely cooperation of customer’s third-party vendors, including but not limited to telephony and CRM
providers, outsourced technical support, resellers of any and all related components, to support the contracted
work.
SECTION 6 MAINTENANCE AND SUPPORT SERVICES
6.1 Scope. Licensor agrees to provide to Customer maintenance and support services as specified in the SO.
These services shall include corrections of errors, and all Upgrades (the “Maintenance and Support
Services“). The hours of support, response times, and other terms and conditions governing the provision of
Maintenance and Support Services are set forth in the SO. Licensor shall have no liability or responsibility for
problems with the Software caused by misuse, improper installation, alteration or modification by Customer,
or for problems arising from the malfunction of Customers equipment, other systems, or software not supplied
by Licensor.
6.2 Term. Unless otherwise provided in the SO, the initial term for maintenance shall commence upon
delivery of the Software and continue for a period one (1) year consistent with the License subscription.
6.3 Supported Platform. Licensor shall support the Platform for the minimum period specified on the SO.
6.4 Minimum Support Commitment. Notwithstanding anything in this Agreement to the contrary,
Licensor shall provide Ongoing Support of the Software for a minimum period specified on the SO.
6.5 Fee. The fee for the initial term shall be as specified in the SO. For subscription services, standard
support and maintenance is included. In the case of a perpetual License the Maintenance & Support Plan fee
shall be invoiced annually prior to the commencement of the maintenance plan term.
SECTION 7 PRICE AND PAYMENT TERMS
7.1 License Fee. Customer shall pay Licensor the total license fee set forth in the SO as complete and final
consideration for all rights extended under this Agreement. The fee shall be due and payable in accordance
with the payment schedule set forth in the SO.
7.2 Service Fees. Customer shall pay Licensor the fee(s) set forth in the SO for any Services performed
under this Agreement.
7.2.1 Fixed Fee. If an SO lists a price for a particular Service and such price is specified without
qualification, the amount quoted shall be deemed a fixed fee. Licensor shall provide the Service for the fixed
fee, and Customer shall not be liable for any additional charges in the event Licensor’s actual costs exceed the
fixed fee.
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7.2.2 Time and Material. If an SO provides that a particular Service shall be paid for on a time-andmaterials basis, the appropriate hourly rates for such Services and deliverables shall be set forth in the applicable
SO.
7.3 Reimbursable Expenses. Customer shall reimburse Licensor for all reasonable out-of-pocket expenses,
including, without limitation, travel and living expenses, incurred by Licensor in connection with the
performance of Services and approved by Customer in writing, subject to any limitations specified in the SO.
Reimbursable expenses shall be invoiced on a monthly basis.
7.4 Preparation and Submission of Invoices. Licensor shall submit a single consolidated invoice for
charges and expenses relating to undertakings pursuant to SO’s under this Agreement. Such invoices shall be
submitted to Customer. Each such invoice shall provide for payment in U.S. Dollars and shall specifically
identify each SO for which charges and expenses are sought. Expenses will separately itemize the charges and
expenses relating to each such SO and include the description of services and specifically identify and itemize
any charges or expenses sought in the invoice that are either not provided for in the statements or represent a
deviation from the recommendations contained in the statements.
7.5 Review and Payment of Invoices. Each invoice prepared in accordance with the terms in the executed
contract or signed quote/change order shall be due and payable as specified in the SO or the quote/change order.
Unless otherwise agreed between the parties, all payments shall be made via electronic banking transfer or
credit card payment. In no event shall payment to Licensor by customer be contingent upon payment to
customer by any third party or end-user.
7.5.1 Late Payment & Collections. A late charge of one and one-half percent (1½%) per
month, or the legal maximum if less, shall accrue on past due billings unless Customer notifies
CDC of a billing dispute in writing prior to the payment due date. Customer shall be responsible
for any costs incurred by CDC in the collection of unpaid invoices including, but not limited to,
collection and filing costs and reasonable attorney’s fees of not less than fifteen percent (15%) of
the outstanding balance due.
7.6 Refunds. Refunds will be considered only in the event that licensor is unable to provide and/or complete
paid services through the fault of the licensor.
7.7 Taxes. Customer will be responsible for all applicable taxes, including, without limitation, sales, use and
excise taxes. Customer shall be responsible for paying the appropriate tax authorities all such amounts.
SECTION 8 CONFIDENTIALITY
8.1 Nondisclosure. Licensor and Customer each recognize that in connection with the terms of this Agreement,
the other party and its Affiliates will each receive access to, or develop, Confidential Information from or for the
other party or its Affiliates. Each party acknowledges that all Confidential Information of the other party or its
Affiliate is proprietary to and a valuable trade secret of the other party or its Affiliate, and that any unauthorized
disclosure or use of such Confidential Information will cause such other party or its Affiliate irreparable harm and
loss. Therefore, the parties agree that (subject to the other provisions of this Section 8) neither party, nor any others
associated with or used by such party, shall use the Confidential Information for itself or others or disclose any
Confidential Information to others without first obtaining the prior written consent of the other party and without
obtaining a confidentiality agreement from such third party in the form and substance acceptable to Customer or
Licensor, as appropriate. Each party agrees to exercise the same degree of care to protect the confidentiality of the
Confidential Information of the other party as such party would exercise in protecting the confidentiality of its own
Confidential Information, but in no case less than a reasonable degree of care.
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8.2 Dissemination of Confidential Information. Each party shall limit dissemination of Confidential
Information of the other party within the party’s and its Affiliates’ organizations involved in the performance of this
Agreement to those of their respective employees, agents, partners, members, officers, directors, representatives,
servants, subcontractors, auditors or legal representatives who may reasonably require the same for purposes of
assisting in the party’s performance of its obligations under this Agreement.
8.3 Use of Confidential Information. Each party shall (a) use Confidential Information of the other party
for the sole and limited purpose of performing the requirements of this Agreement; and (b) return or destroy all
Confidential Information of the other party, including copies or other written or physical embodiments of, or
containing, such Confidential Information (including any studies, analyses, compilations or other materials
prepared in whole or in part based on said Confidential Information), immediately upon the written request of
the other party or a decision by the party to terminate this Agreement in its entirety.
8.4 Exceptions. This Agreement shall not affect the rights of either party to use or disclose information (a) which
such party can demonstrate to have been in the public domain through no wrongful act of such party prior to the
date of its disclosure to such party by the other party; (b) which such party can demonstrate by written records
predating disclosure to the other party by such party to have been in the possession of such party on a nonconfidential basis prior to the date of its disclosure; (c) which becomes part of the public domain by publication or
otherwise not due to any unauthorized act or omission on the part of such party; (d) which such party can show by
written records to have been disclosed to the other party on a non-confidential basis by a third party having a lawful
right to do so; or (e) which is required to be disclosed by law, or governmental, judicial or legal process, provided,
in each case that to the extent not contrary to law or any provision of any regulatory authority, such party timely
informs the other party and, at the expense of the other party, cooperates with the other party to limit such disclosure.
8.5 Ideas and Concepts. Notwithstanding anything to the contrary herein, each party and its personnel shall
be free to use and employ its and their general skills, know-how, and expertise, and to use, disclose, and employ
any generalized ideas, concepts, know-how, methods, techniques, or skills gained or learned during the course
of any License, so long as it or they acquire and apply such information without disclosure of any Confidential
Information of the other party.
SECTION 9 REPRESENTATIONS AND WARRANTIES
9.1 Right to Grant License. Licensor represents and warrants that it has the right to grant a license to the
Software free and clear of any liens and encumbrances.
9.2 Specifications. Licensor represents and warrants that the Software will operate in conformance with the
Specifications during the Warranty Period and, thereafter, for so long as Customer is purchasing Licenses from
Licensor.
9.3 Code Integrity. Licensor represents and warrants that it has used its best efforts to ensure that the
Software contains no “computer viruses” or “time bombs” as those terms are commonly understood in the
information process industry. Specifically, Licensor warrants that the Software contains no codes or
instructions (including any codes or instructions provided by third parties) that is designed to delete, disable,
deactivate, interfere with, or otherwise harm the deliverables or Customer’s hardware, data, or other programs,
or that is intended to provide access or product modifications not authorized by Customer. Licensor expressly
waives and disclaims any right or remedy that it may have at law or in equity to de-install, disable, or repossess
any Software, in the event Customer fails to perform any of its obligations under this Agreement.
9.4 Integration. Licensor represents and warrants that the Software may and shall be fully integrated with
the system components included as part of any integration services to be performed by Licensor.
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9.5 Compliance with Standards and Laws. Licensor represents and warrants that the Software will at all
times during the term of this Agreement comply with any applicable industry standards and applicable
Requirements of Law.
9.6 Workmanlike Fashion. Licensor represents and warrants that all Services shall be performed by
qualified personnel in good and workmanlike fashion.
9.7 Documentation. Licensor represents and warrants that the Documentation is and shall at all times during
the term of this Agreement remain complete and current with the version of the Software then in use by
Customer and in substance at least as equal to comparable material in use in the industry.
9.8 Platform. Licensor represents and warrants that the Software shall operate on or with the Platform.
SECTION 10 INTELLECTUAL PROPERTY INDEMNIFICATION
10.1 Warranty. Licensor represents and warrants to Customer that Licensor owns the Software, including all
associated Intellectual Property Rights, or otherwise has the right to grant Customer the right and license
provided in this Agreement, and that neither the Software nor the Documentation infringe any valid patents,
copyrights, trademarks, or other proprietary rights of any third parties.
10.2 Indemnification. Licensor shall defend, indemnify, and hold harmless Customer, its Affiliates and their
officers, directors, agents, employees, and other authorized users from and against any liability, claim, action,
loss, damage, or expense (including court costs and attorneys’ fees) arising out of, or relating to, any breach of
the warranty. Customer agrees to notify Licensor at such time as it is apprised of any third-party claim and
agrees to cooperate in a reasonable manner with Licensor with respect to the defense and disposition of such
claim.
10.3 Remedies. Licensor may, at its option, obtain for Customer the right to continue using the Software or
may replace or modify the Software with functionally equivalent, compatible software so the Software becomes
non-infringing.
SECTION 11 TERM AND TERMINATION
11.1 Effective Date; Expiration. The Agreement shall be effective from the Effective Date. This Agreement
shall remain in effect until terminated by either party in accordance with this Section 11.
11.2 Termination. Either party shall have the right to terminate this Agreement upon written notice of the
occurrence of either of the following events:
11.2.1 Convenience. Either party may terminate this Agreement for any reason by providing at least
sixty (60) days advance written notice to the other party.
11.2.2 Breach. Either party may terminate this Agreement or SO in accordance with subsection
11.2.2.1 (in certain circumstances where an opportunity to cure must be provided) or 11.2.2.2 (in certain
circumstances where an opportunity to cure is not available), below:
11.2.2.1 Cure. In the event the other party breaches any material provision of this Agreement or any
SO and fails to cure such breach within thirty (30) days of receipt of notice of such breach from the nonbreaching party (“Cure Period“). The notice from the non-breaching party shall specify the basis on which the
Agreement or SO is being terminated, including a description of the breach and how the breach can be cured
within the Cure Period. In the event that the breaching party fails to cure such breach within the Cure Period,
termination shall be effective on the thirty-first (31st) day following receipt of such notice by the breaching
party.
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11.2.2.2 No Opportunity to Cure. In the event that: (a) the other party breaches any representation or
warranty, whether in this Agreement or SO; or (b) any representation or warranty being inaccurate, incomplete,
false or misleading in any material aspect; or (c) if the breach is of a type or nature that is not capable of being
cured within such time period (such as, by way of example and not limitation, an obligation relating to
Confidential Information in accordance with Section 8). The notice from the non-breaching party shall specify
the basis on which the Agreement or SO is being terminated, including a description of any breach. Termination
shall be effective immediately upon receipt of such notice by the breaching party.
11.2.2.3 Insolvency, Etc. If either party ceases conducting business in the normal course, admits its
insolvency, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or
administrative proceedings in bankruptcy, receivership or reorganization, this Agreement and any or all Order
Forms and SOs shall, at the election of the other party and without notice, terminate with immediate effect.
11.3 Effect of Termination. Upon expiration or termination of this Agreement as provided in Sections 11.1-
11.2, and satisfaction of all outstanding obligations of the parties as of such date, respectively:
11.3.1 Except as otherwise provided, any SOs that were entered into prior to termination of this
Agreement such agreements and SO’s shall continue in accordance with their terms unless separately terminated
for breach or otherwise in accordance with their terms.
11.3.2 Except for the continuing obligations of the parties with respect to those provisions that survive
termination or expiration of this Agreement in accordance with Section 14.13 and any continuing SO’s that
survive termination or expiration of this Agreement, all of the obligations of the parties under the Agreement
shall cease.
11.4 Obligations of Customer Upon Termination. Upon termination of a License, the parties shall negotiate
in good faith a reasonable period of time in which Customer shall discontinue use of the applicable Software
and return or destroy the original and all copies of the applicable Software to Licensor.
SECTION 12 INDEMNIFICATION; LIMITATION OF LIABILITY AND DEFENSE
12.1 Indemnification. Each party shall indemnify and hold harmless the other party and its Affiliates, and
such party’s and Affiliates’ officers, directors, employees, subcontractors and agents against all liability, loss,
damage, claims, actions, and expenses (including attorneys’ fees) based upon or arising out of: (a) property
damage or personal injury, including death, directly caused by or sustained in connection with the indemnifying
party’s performance under this Agreement; (b) any material breach of any warranty or representation made by
the indemnifying party under this Agreement; (c) the alleged or actual infringement by the indemnifying party
of the Intellectual Property Rights or other proprietary rights of third parties; and (d) any claim, suit or
proceeding (threatened or otherwise) made or brought against the indemnified party based upon: (i) information
or materials provided by the indemnifying party to the indemnified party; or (ii) the nature or use of the
indemnifying party’s products or services, provided, however, that neither party shall be required to indemnify
the other party to the extent that such liability, loss, damage, claims, actions or expenses are caused by the
indemnified party’s negligence or breach of this Agreement. Licensor’s indemnification obligations relating to
third-party intellectual property infringement claims shall be governed by Section 10.
12.2 Limitation of Liability. Licensor’s liability for any damages hereunder shall in no event exceed the
amount of fees paid by Customer as of the date the alleged damages were incurred.
12.3 Defense. A party having a right to indemnification under this Agreement (“Indemnified Party“) may, at
its election, require the party having an obligation to indemnify under this Agreement (“Indemnifying Party“),
to defend any claim, suit or proceeding that is subject to indemnification under Section 12.1, provided that the
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Indemnifying Party is notified promptly in writing of such claim and is given authority, information and
assistance to handle such claim and to defend any suit or proceeding. In such a case, the Indemnifying Party
will pay all damages and costs awarded against the Indemnified Party, including the amount that the
Indemnified Party would consent to pay under any settlement involving such claims. The Indemnified Party,
at its own expense, shall have the right to employ its own counsel and to participate in any manner in the defense
against any claim for which indemnification is available under Section 12.1. The Indemnified Party shall
cooperate in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and
defense of any such claim, suit or proceeding.
SECTION 13 MODIFICATIONS
13.1 Ownership by Licensor. Licensor shall own all right, title, and interest (including all associated
Intellectual Property Rights) in and to the Software, including all customizations, enhancements, modifications,
improvements, derivations, extension, links or other changes thereto made solely by Licensor.
13.2 Ownership by Customer. Unless otherwise agreed to in writing on a case-by-case basis, Customer shall
own all right, title, and interest (including all associated Intellectual Property Rights) in and to (a) any
customizations, enhancements, modifications, improvements, derivations, extensions, links or other changes to
any Software resulting solely by Customer.
SECTION 14 GENERAL TERMS AND CONDITIONS
14.1 Independent Contractor. The parties are independent contracting parties and nothing in this Agreement
shall be deemed to make either party an agent, employee or joint venturer of the other party. Neither party shall
be entitled to any benefits that the other party provides for its own employees, including, without limitation,
workers’ compensation and unemployment insurance. Each party shall be solely and entirely responsible for
its own acts and the acts of its employees, agents and subcontractors.
14.2 Force Majeure. Neither party shall be liable to the other party for failure to perform its obligations if
such delay or failure arises from any cause beyond the reasonable control of that party, including: strikes,
lockouts, other industrial or civil disturbances; fires; acts of God; acts of a public enemy; pandemics;
compliance with any regulations, order, or requirement of any governmental agency; or inability to obtain
transportation or necessary materials in the open market.
14.3 Notices. Except as otherwise provided herein, any notice or other communication between the parties
hereto regarding the matters contemplated by this Agreement may be sent by U.S. mail (first-class, airmail, or
express mail), commercial courier, facsimile or electronic mail, in each case delivered to the address set forth
above for the recipient or at such other addresses as the parties may designate in writing.
14.4 Insurance. For the term of this Agreement Licensor shall take out and maintain one or more insurance
policies with the following coverage and limits:

14.5 Use of Customer’s Name. Licensor can use the names, trademarks or logos of Customer or any of its
Affiliates in any written materials, including press releases, advertisements and other promotional materials,
without Customer’s prior written consent.
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14.6 Amendment. No provision of this Agreement may be modified except by a written document signed by
a duly authorized representative of the parties.
14.7 Waiver. No provision of this Agreement shall be deemed waived and no breach excused, unless such
waiver or consent is in writing and signed by the party claimed to have waived or consented. Any consent by
any party to, or waiver of, a breach of the other party, whether express or implied, shall not constitute a consent
to, waiver of, or excuse for any different or subsequent breach.
14.8 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Licensor and Customer
and their respective legal representatives, successors and authorized assigns.
14.9 Counterparts. This Agreement may be executed simultaneously in one or more counterparts each of
which shall be deemed an original, but all of which together shall constitute one and the same agreement.
14.10 Severability. If any provisions of this Agreement shall be prohibited or unenforceable by any applicable
law, the provision shall be ineffective only to the extent and for the duration of the prohibition of
unenforceability, without invalidating any of the remaining provisions.
14.11 Governing Law. This Agreement shall be governed by and interpreted according to the laws of the
State of Pennsylvania (without regard to its conflict of law principles).
14.12 Survival of Certain Obligations. After expiration or termination of this Agreement, those provisions
which specifically provide for survival beyond expiration or termination, and all provisions, if any, regarding
indemnification, warranties, limitations of liability, confidentiality, non-competition, protection of Intellectual
Property Rights, and the like (including, without limiting the generality of the foregoing, all of Sections 8 and
12) shall survive indefinitely or until the expiration of the time period specified elsewhere in this Agreement
with respect to the provision in question.
14.13 Entire Agreement. This Agreement embodies the entire agreement and understanding between Licensor
and Customer with respect to the subject matter of this Agreement and supersedes all prior oral or written
agreements and understandings relating to the subject matter of this Agreement. No statement, representation,
warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect or be used
to interpret, change or restrict the express terms and provisions of this Agreement.