IGear Online Software License and Support Agreement

This License and Support Agreement (“Agreement”) is a legal agreement between Customer and IGear Online, LLC (“Company”) for the IGear Online Software (defined below). An amendment or addendum to this Agreement may accompany the Software. BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOUR ORGANIZATION DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE.

1. Definitions. The following definitions apply in this Agreement, and all attachments thereto:
1.1 “Customer” means the person or entity using the Software or designated as “Customer” in an attached Proposal or on the signature page to this Agreement, if applicable, but does not include any parent, subsidiary, or affiliate unless otherwise specified herein.
1.2 “Documentation” means the written instructions and specifications for the Software.
1.3 “Effective Date” means the date this Agreement is executed or the first date Customer uses the Software, whichever is earlier.
1.4 “Error” means a failure of the Software to perform substantially in accordance with the Documentation that negatively affects the performance of Customer’s operations, and which can be duplicated by Company.
1.5 “Error Corrections” means bug fixes, software patches, bypasses, and other alternative means of resolving Errors provided to Customer in response to Customer’s report of a particular Error.
1.6 “Proposal” means a custom IGear quote, valid thirty days from issue unless otherwise stated, outlining matters such as fees, payment terms, and scope of license and support, prepared by Company and accepted by Customer.
1.7 “Software” means the Company’s proprietary software (e.g., the IGear Online ALWAYS ON Platform) that provides services or functionality on a computer acting as a server (and, the computer running the software shall be referred to as the “Server”) and any other of Company’s proprietary software set forth in a Proposal, in object code format licensed herein, including associated media and electronic Documentation, and any images, photographs, animations, video, audio, music, text and “applets” incorporated into the licensed computer code.
1.8 “Support” means telephone support, Error Corrections, Updates and Upgrades.
1.9 “Updates” means revisions of the Software made generally available to current licensees of the Software which enable the Software to perform substantially as described in the Documentation but is not an Upgrade.
1.10 “Upgrades” means revisions of the Software made generally available to current licensees of the Software subsequent to its initial delivery which adds new functions to the Software or substantially changes its existing functions.

2. Scope of Software License. Subject to the provisions of this Agreement, Company grants Customer a perpetual, nonexclusive, nontransferable license to use the Software only as follows:
2.1 Software. Customer may only install the number of copies of the Software permitted by the Proposal. If the Proposal does not specify a number of copies, Customer may install one copy of the Software on a single Server. The Software components may not be separated on different Servers, unless otherwise provided in the Proposal. Each additional copy of the Software requires an additional license.
2.2 Back-Up Copy. Customer may make backup copies of the Software which may be used solely for archival purposes. Unless otherwise approved in writing by Company, Customer shall retain the back-up copy in its possession, or with a professional archival company, and shall not allow anyone other than Customer to use the back-up copy.
2.3 Rights Not Granted. All rights not granted to Customer are expressly reserved to and retained by Company. Customer will not use the Software for any purpose other than expressly stated in this Agreement without the prior written consent of Company, which consent may be granted or withheld in the sole discretion of Company.

3. Company’s Audit Rights. Company reserves the right to access the Software, either at Customer’s site or remotely, without notice to Customer to confirm that Customer’s use of the Software does not exceed the usage authorized by this Agreement and, upon termination, to verify Customer’s compliance with the provisions herein. Customer shall maintain such records as are reasonably necessary to document Customer’s compliance with this Agreement. During an audit, Customer shall provide Company with reasonable assistance and access to such records. Company may disclose the results of the audit to its software licensors.

4. Support. In consideration of Customer’s payment of all fees and Customer’s compliance with this Agreement, Company will provide Customer with Support. The term for Support is provided in Section 7. During the Support Term, the following will apply:
4.1 Telephone Support. Company will provide telephone support to Customer to answer questions about the normal use and operation of the Software and to receive Customer’s reports of any suspected Errors or defects in properly licensed Software. Telephone support is for Software provided by Company only. Support hours are from 8:00 AM to 5:00 PM Eastern time, Monday through Friday excluding customary business holidays, unless otherwise agreed upon per the Proposal.
4.2 Updates and Upgrades. Company, in its sole discretion, will designate Updates as either mandatory or optional. Customer may elect to accept or refuse mandatory and optional Updates. Refusal of optional Updates will not affect Customer’s right to receive future Support for no additional charge. However, if Customer refuses a mandatory Update, all future Support of the Software by Company will be performed at Customer’s expense; provided, however, Company may also decline to provide Support if Customer declines a mandatory Update. Company will deliver Updates to Customer in machine-readable form, ready for installation, together with any Documentation. Upgrades, when and as available, are typically included in Support or other license fees paid under this Agreement, unless otherwise agreed upon per the Proposal. Upon purchase and installation of an Upgrade, and upon installation of an Update, the Upgrade or Update shall be considered Software under this Agreement.
4.3 Connectivity. To enable Company to provide Support, Customer will provide Company, or its agents, remote access to Customer’s Server and at least one workstation connected to the Server, using Company’s designated connection method.
4.4 Error Correction Procedures. If Customer believes that there is an Error, Customer shall notify Company and describe the Error in detail. If Company confirms an Error, Company shall use commercially reasonable efforts to provide an Error Correction.

5. Installation/Implementation. Except as otherwise explicitly provided in a Proposal, Customer will be responsible for installing, implementing and configuring the Software in accordance with the applicable Documentation.

6. Fees, Charges and Payments.
6.1 Method and Timing of Payments. Payments shall be made in accordance with the applicable Proposal. Unless otherwise specified in a Proposal for Support, Company will invoice Customer annually in advance, due at the time of renewal. The Support fees may be changed from time-to-time by Company. Charges for services not included in Support will be invoiced as incurred and payable within (30) days thereafter. Without limiting any of Company’s rights and remedies hereunder, any late payment (including unpaid portions of amounts due) shall bear interest, compounded monthly, at the rate of 1% per month. All fees are in US Dollars.
6.2 Taxes. Prices and fees are exclusive of, and Customer will be solely responsible for paying (or providing an exemption certificate with respect to), all sales, use, excise and similar taxes relating to this Agreement. Customer will indemnify, defend and hold Company harmless from any claims or damages of whatever nature arising from Customer’s failure to pay any applicable taxes not collected from Customer by Company.
6.3 Other Software and Services. Customer agrees that future software beyond what is covered by this Agreement, enhanced maintenance, optional services and special programming are subject to additional charges, which may be agreed upon under a separate agreement at Company’s then-current rates.

7. Support Term, Renewal, and Termination.
7.1 Support Initial Term/Renewal. The initial Support term shall be one year from the Effective Date; provided, that the Support term shall automatically renew for successive one-year Support terms (including any renewal terms, the “Term”). Either party may provide notice to the other party of non-renewal of Support upon sixty (60) days’ written notice prior to the expiration of the Term. Non-renewal of Support shall not terminate the license granted in Section 2, and this Agreement shall survive such non-renewal.
7.2 Termination for Cause/Effect of Termination. This Agreement may be terminated by either party upon the other party’s failure to cure a material breach of this Agreement within fifteen (15) days of receipt of written notice describing the nature of the alleged material breach. In the event of any termination of this Agreement by Company as provided in this Section 7.2, all licenses granted by Company hereunder will immediately terminate, the Software may be rendered inoperable by Company, and all fees and charges owing to Company shall become immediately due and owing. Breach of any other agreement between Company and Customer will be a breach of this Agreement.

8. Ownership of Company Technology. Except as otherwise provided herein, all right, title, and interest in and relating to the Software and all software, applications, technology, procedures, media, and Documentation relating thereto, including without limitation report and screen designs, formats, and graphics, shall be the sole and exclusive property of Company, including, without limitation, all intellectual property rights therein and all related patents, copyrights, trade names, trademarks, and trade secrets (collectively, the “Technology”). In no event shall this Agreement or licensing of the Software to Customer vest any ownership or similar right or interest in or to the Technology to Customer. In no event shall Customer reproduce, display, revise, copy, publish, sell, license, distribute, or exploit in any manner the Technology in whole or in part, except as permitted by this Agreement.

9. Limitation of Liability. COMPANY WILL NOT BE LIABLE TO CUSTOMER OR END USER FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES, SUCH AS LOSS OF PROFITS OR LOSS OF USE, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S LIABILITY EXCEED THE AMOUNT PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE SIX MONTHS PRECEDING ACCRUAL OF THE CLAIM. CUSTOMER RELEASES COMPANY FROM ANY AND ALL LIABILITY FOR ANY DAMAGES CAUSED BY CUSTOMER’S VIOLATION OF ANY LICENSES FOR THIRD PARTY SOFTWARE USED BY CUSTOMER IN CONNECTION WITH THE SOFTWARE.

10. Limited Warranties and Exclusions.
10.1 During the Term, Company warrants that it has the right to license the Software to Customer under this Agreement and that neither the Software nor the Documentation infringe upon any duly issued United States patent or copyright or violate any known trade secret of a third party.
10.2 For one (1) year from the implementation date of the Software, Company warrants that the Software will perform substantially as described in the Documentation in effect on the Effective Date, provided Customer uses the Software within the required operational conditions and installs all mandatory Updates provided by Company. In addition, for ninety (90) days from the date an Update or Upgrade is provided to Customer, Company warrants that the Update or Upgrade will perform substantially as described in the Documentation for that Update or Upgrade, provided Customer installs the Update or Upgrade and uses the Update or Upgrade within the required operational conditions. If the Software does not so perform, Company’s sole obligation will be either (a) to repair or replace, at Company’s option, any component of the Software which does not perform substantially as set forth in the Documentation; or (b) terminate the Agreement.
10.3 COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OTHER THAN THE WARRANTIES EXPLICITLY STATED HEREIN. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE DOCUMENTATION AND/OR SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. COMPANY ASSUMES NO RESPONSIBILITY FOR SOFTWARE THAT HAS BEEN ALTERED OR MODIFIED, EXCEPT IF ALTERED OR MODIFIED BY COMPANY. ALL THIRD PARTY SOFTWARE IS SUPPLIED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES FROM COMPANY. NO PERSON IS AUTHORIZED BY COMPANY TO MAKE ANY FURTHER OR DIFFERENT WARRANTIES OR REPRESENTATIONS CONCERNING THE SOFTWARE.
10.4 Excluded Errors. Company’s warranty obligations do not cover Software Errors contributed to or caused by (a) problems related to third-party products and services, (b) abuse or misuse of the Server or workstations (c) failure by Customer to properly use and maintain the Server and workstations; (d) an act of God; (e) any unauthorized use of the Software; (f) unauthorized modification of the Software or Server; (g) failure to install and use any mandatory Update or Error Correction; or (h) Customer’s failure to perform its obligations under this Agreement.
10.5 Excluded Software. Company’s warranty obligations do not cover: (a) Software maintained or modified by anyone other than Company or a third party who has been previously authorized to do so in writing by Company; or (b) Software that has been merged into or combined with any computer program(s) not licensed by Company under this Agreement.

11. Confidentiality.
11.1 “Confidential Information” includes: (a) all proprietary business and technical information, which may include but is not limited to data, plans, specifications, flow charts, product samples, drawings related to a party’s products and business, marketing information, research, findings, trade secrets, know-how, purchase and sales records, customer lists, marketing information and other information relating to a party’s products or services; (b) client information and customer information; (c) analysis of relevant business data; (d) software, programming code, and applications; and (e) any information marked as confidential or as trade secret. Confidential Information does not include: (i) information that is already in a party’s lawful possession without obligation of confidentiality; (ii) information that becomes generally available to the public other than as a result of a violation of law, a breach of this Section 11 or any other obligation of confidentiality; or (iii) information a party is required to disclose pursuant to subpoena or other lawful process; provided, however, that such disclosing party notifies the other party in a timely manner to allow the other party to appear and protect its interests.
11.2 Each party will: (a) maintain the Confidential Information in confidence using the same degree of care it uses to safeguard its own proprietary and confidential information, but in no event less than a reasonable standard of care; (b) use the Confidential Information solely as required to fulfill this Agreement; and (c) disclose the Confidential Information only to its personnel with a “need to know” the Confidential Information to fulfill the purposes of this Agreement, provided it will advise all such personnel of the existence and terms of this Section 11. The receiving party has the burden to prove the applicability of any exception.
11.3 Upon the earlier of the expiration of the Term or a termination of this Agreement, each party shall: (a) immediately cease to use the other party’s Confidential Information; and (b) promptly return such Confidential Information and all copies thereof or certify to the other party in writing the destruction of such Confidential Information and all copies thereof.
11.4 Each party shall provide to the other party or its designees assistance and cooperation upon reasonable request in connection with any proceedings or other efforts to protect Confidential Information.

12. Indemnification.
12.1 Company agrees to indemnify, defend and hold harmless Customer and its end users, officers, directors, employees, agents, successors, and assigns (“Customer Indemnitees”) from and against any and all liabilities, demands, losses, damages, costs or expenses of whatever form or nature (including attorneys’ fees incurred in enforcing this provision and otherwise incurred in Customer’s legal defense), whether direct or indirect, resulting from: (a) Company’s gross negligence or willful misconduct; and/or (b) a claim alleging that the Software infringe a U.S. patent or copyright; provided, however, Customer gives written notice to Company within forty-five (45) days of receipt. Customer Indemnitees shall cooperate with Company in the defense thereof to whatever reasonable extent Company requires, and Company shall undertake the defense of any such suit and have the right to compromise such claim to the extent of its own interest. If Customer’s use of the Software is finally enjoined, Company will, at its option: (i) procure the continued right of use; or (ii) replace or modify the Software to restore the right of use; or (iii) terminate the Agreement for the infringing Software and refund the balance if any of license fees paid for the Software, prorated over the three-year life of the affected license.
12.2 Company shall not be obligated to provide indemnification if the infringement claim arises from: (a) Customer’s use of the Software in a manner not specified or authorized by this Agreement; (b) any modification of the Software by anyone other than Company; (c) any combination or merger of the Software with or into any computer program(s) not licensed by Company; or (d) Customer’s failure to use the corrected version of the Software. Company’s total liability to indemnify Customer hereunder for infringement will not, however, exceed the initial license fee, which was paid by Customer for the infringing software. The foregoing states the entire liability of Company with respect to claims based on and resulting from the infringement of patents, copyrights or trade secrets.
12.3 Customer agrees to indemnify, defend and hold harmless Company and its affiliates and their respective officers, directors, employees, agents, successors, and assigns (“Company Indemnitees”) from and against any and all liabilities, demands, losses, damages, costs or expenses of whatever form or nature (including attorneys’ fees incurred in enforcing this provision and otherwise incurred in Company’s legal defense), whether direct or indirect, resulting from claims alleging: (a) Customer’s negligence or willful misconduct; (b) that use of Customer’s and/or end user data, customizations, or modifications infringe the rights of or harmed a third party; (c) violations of law; (d) Customer’s or end user’s breach of the restrictions of Section 2 of this Agreement; or (e) Customer’s violation of any third party license agreement or unauthorized use of third party software in connection with the Software.

13. Compliance with All Laws. Parties agree to comply with all applicable laws, statutes, ordinances and regulations relating to the operation and use of the Software.

14. Export Administration Act. In conformity with the United States Export Administration Act and regulations promulgated thereunder, neither party will disclose, export or re-export, directly or indirectly, products or technical data to destinations in country groups for which such export or re-export of such products or technical data is prohibited.

15. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives, successors and permitted assignees. This Agreement (and, in the case of Customer, the licenses granted hereunder) may not be assigned, transferred, shared or divided in whole or in part by either party without the other party’s prior written consent.

16. Dispute Resolution. In the event of any controversy or claim arising between the parties out of or related to this Agreement (“Dispute”), and if the Dispute cannot be resolved by negotiation, the parties agree to submit all Disputes to mediation by a mediator mutually selected by the parties. If the parties are unable to agree upon a mediator, then the mediator shall be appointed by the American Arbitration Association. If the Dispute is not resolved by mediation, then the Dispute shall be resolved by arbitration pursuant to this section and the then-current rules and supervision of the American Arbitration Association. Any such arbitration shall be held in Louisville, Kentucky. The arbitrator’s decision and award shall be final and binding and may be entered in any court having jurisdiction thereof. In order to prevent irreparable harm, the arbitrator may grant temporary or permanent injunctive or other equitable relief for the protection of property rights. Issues of arbitrability shall be determined in accordance with the federal substantive and procedural laws relating to arbitration; all other aspects of the agreement shall be determined in accordance with the federal substantive and procedural laws relating to arbitration; all other aspects of the Agreement shall be interpreted in accordance with and the arbitrator shall apply and be bound to follow the substantive laws of the Commonwealth of Kentucky. Each party shall bear its own attorneys’ fees associated with negotiation, mediation, and arbitration and other costs and expenses shall be borne as provided by the rules of the American Arbitration Association.

17. Survival. All provisions of this Agreement which contemplate performance or observance following its expiration or termination, including, without limitation, Sections 3, 8, 9, 10, 11, 12 and 14 will survive its expiration or termination.

18. Force Majeure. Except for non-payment, neither Customer nor Company will be deemed in default under this Agreement, for loss or damage due to delay in or prevention of manufacture or delivery resulting from any cause beyond its control including, without limitation, acts of God, fires, strikes, embargoes, war, riot, and other catastrophes. In the event the party that is unable to perform based on a force majeure event is unable to resume performance within ten days from the beginning of such non-performance, then the other party shall have the right to terminate this Agreement and all affected Proposals upon five days’ notice.

19. Miscellaneous. No modification, termination or attempted waiver of this Agreement or any Proposal shall be valid unless in writing and signed by both parties to this Agreement. The failure by either party to enforce any term shall not be deemed a waiver of future enforcement of that or any other term. This Agreement and each Proposal sets forth the entire understanding of the parties, and supersedes and preempts all prior oral or written understandings and agreements with respect to the subject matter hereof; provided, however, the terms of this Agreement shall prevail in the event of a conflict between this Agreement and a Proposal. If any provision of this Agreement or the application of any such provision shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall continue in full force and effect. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified herein or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery or by courier, upon delivery; if sent by facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing. This Agreement is governed by the laws of the Commonwealth of Kentucky, as such laws are applied to contracts made and performed entirely within the Commonwealth of Kentucky, without regard to Kentucky’s rules relating to conflict of laws. Company will perform the Support as an independent contractor and will have the exclusive control of the manner and means of performing the Support. Personnel supplied by Company hereunder, whether or not located on Customer’s premises, are not Customer employees or agents and will not hold themselves out as such, and Company assumes full responsibility for their acts and for compliance with any applicable employment and tax laws with respect to such personnel. Nothing contained in this Agreement will be construed to create a joint venture or partnership between the parties. This Agreement may be executed by the parties hereto individually or in any combination, in one or more counterparts, each of which shall be an original and all of which shall together constitute one and the same agreement. None of the provisions of this Agreement are intended to benefit, or to be enforceable by, any third-party beneficiaries. No remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and will be in addition to every other remedy available.