This USER LICENSE AND SUPPORT AGREEMENT (this “Agreement”) is made as of the date set forth on the Cover Sheet (“Effective Date”), by and between SCIENCETRAX, LLC, a research software solutions corporation (“Supplier”), and the licensee set forth on the Cover Sheet (“Client”).

 

SECTION 1 – DEFINITIONS

Section 1.1 Documentation.” The manuals or other technical information Supplier makes available for use with the Software, describing the use, installation and other features and functionality of the Software. Documentation is exclusively electronic.

Section 1.2 “Error.” Any material failure of the Software to perform in accordance with its documentation or specifications. However, any nonconformity resulting from Client’s misuse, improper use, alteration or damage of the Software, or Client’s combining or merging the Software with any hardware or software not supplied or identified as compatible by Supplier shall not be considered an Error.

Section 1.3 “Software.” The computer programming code and associated files of the application, and all Updates or Upgrades provided by Supplier to Client in accordance with this Agreement.

Section 1.4 “Updates. Minor releases of the software containing patches, error corrections, and or minor enhancements to functionality.

Section 1.5 “Upgrades.” Major releases of the Software containing new and/or enhanced functionality including additional analytic capability.

Section 1.6 User.” Employees, consultants, contractors or any other agent of Client who use the Software on behalf of Client.

SECTION 2 – SCOPE OF LICENSE

Section 2.1 Grant of License. Supplier hereby grants to Client, for the term of this Agreement, a perpetual, nontransferable, nonexclusive and non-assignable license to install, execute and use the Software and its Documentation exclusively for the management of its own data, and only by the number of Projects set forth in the order (i.e., either specifically named or total number of projects). Client agrees that each Project shall have its own license key. That is, a Project license key cannot be transferred without the written consent of Supplier.

Section 2.2 “Ownership.”Ownership of all software or other work product created by Supplier shall remain with Supplier, notwithstanding any suggestions, ideas or other contributions of Client.

SECTION 3 – MAINTENANCE AND SUPPORT

Section 3.1 Telephone Service; Reporting Procedures. Supplier shall maintain a telephone hotline to provide functional assistance related to the Software to User Contacts (as described below) during its normal business hours (8:00 a.m. – 5:00 p.m. E.S.T.). Certain critical conditions may exist which require work outside of these hours, and Supplier will make reasonable efforts to respond accordingly. Telephone support is not to be considered as a source of training, consulting, or for implementation and professional services.

Section 3.2 Upgrades and Updates. Client shall be entitled to receive and use all Updates and Upgrades to the Software made available for general use by Supplier, at no additional cost. From time to time, Supplier may develop or acquire new functional software, which is sold as separate modules or products, and may not be included as upgrades and/or updates

Section 3.3 Error Correction. Supplier shall use reasonable diligence to correct Errors when reported to Supplier. With respect to serious Errors that prevent access to or use of the Software, threaten the integrity of the Client’s data, or impact the critical path of Client’s data through the system, Supplier will use reasonable commercial efforts to respond within four (4) business hours.

Section 3.4 Implementation. Implementation and other professional services shall be provided to the Client by the Supplier subject to a separate agreement.

Section 3.5 Exclusions. Maintenance and support do not include service relating to nonconformities or other problems due to use of the Software by Client not in accordance with this Agreement or the Documentation.

Section 3.6 User Contacts. Client shall designate up to two (2) user contacts (“User Contacts”) who shall be the primary contacts with Supplier for maintenance and support. Client may designate alternate User Contacts from time to time, provided such User Contacts receive appropriate training from Supplier. Such training shall be provided at the then current training fees.

SECTION 4 – OBLIGATIONS OF CLIENT

Section 4.1 Data Backup. Client shall maintain a procedure external to the Software for backup and restoration of lost or altered files, data or programs deemed necessary by Client. Supplier shall not be held responsible for such backup procedures.

Section 4.2 Non-Solicitation. Client and its affiliates shall not knowingly solicit for employment or hire (i) any current Supplier personnel; or (ii) any former Supplier personnel, but only for a one (1) year period following the former Supplier personnel’s termination of employment with Supplier.

Section 4.3 Export Restriction. Client acknowledges that the Software and user documentation may be subject to export restrictions imposed by the United States Government. Client shall not export or access, directly or indirectly, the Software or Documentation without first obtaining approval from the United States Department of Commerce or other department or agency of the United States Government as required by law.

Section 4.4 Client Staff Support. Client shall maintain adequate computer support personnel who are knowledgeable in the use and operation of web server management. Client agrees to provide reasonable access to technical personnel to work with Supplier to resolve Errors or other problems with the Software

Section 4.5 Users. Supplier will provide Client with the ability to set-up Users and control their privileges. Client shall not allow multiple Users to use the same User ID. Client shall ensure that all third party Users shall be bound by confidentiality agreements which protect Supplier’s Confidential Information, and shall provide Supplier with a copy of such Agreement. Client shall be responsible for any breach of this Agreement by Users.

SECTION 5 – PAYMENTS

Section 5.1 Fees. Client shall pay the fees for the Software license as set forth in their contract. Annual Maintenance and Support fees are defined in the contract and payable on the anniversary date of this Agreement.

Section 5.2 Taxes. The fees and all other payments provided for under this Agreement are exclusive of all federal, state, municipal or other government excise, sales, use, occupational, intangible, property or like taxes now in force or enacted in the future. Client shall pay any such taxes that are imposed upon the sale, delivery, maintenance or support of items licensed or services provided under this Agreement.

Section 5.3 Invoices; Payments. Supplier shall invoice Client for fees pursuant to the order (i.e., either specifically named or total number of projects). All undisputed invoices shall be due and payable within 30 days of receipt of such invoice by Client. In the event that Client fails to make timely payment, and does not cure such failure within 30 days written notice of such failure, in addition to any other remedies available to Supplier, (i) all payments due during the term of this Agreement shall become immediately due and payable, and (ii) Supplier may terminate Client’s license to the Software.

SECTION 6 – LIMITED WARRANTY; LIMITATION OF REMEDIES

Section 6.1 Service Warranty. Supplier warrants that it will render its services hereunder in a professional manner and in accordance with industry standards by competent personnel. Any claim based on the foregoing warranty must be submitted in writing within 120 days of the delivery of the relevant service.

Section 6.2 Warranty of Right to License; Noninfringement. Supplier warrants that it is the owner of or otherwise has the right to license the Software, that it has the right to convey the license set forth herein and that Client’s use of the Software in accordance with the terms of this Agreement shall not infringe any third-party rights in patent, copyright or trade secret. Client’s exclusive remedy for breach of this warranty shall be as set forth under Section 8 below.

Section 6.3 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SUPPLIER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ITS SERVICES, THE SOFTWARE, THE DESIGN OR CONDITION OF ANY PROGRAMMING OR ANY OUTPUT BASED ON USE OF THE SOFTWARE. SUPPLIER SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Section 6.4 Limitation of Liability. IN NO EVENT SHALL SUPPLIER OR CLIENT BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER OR THE USE OR PERFORMANCE OF THE SOFTWARE OR ANY PORTION THEREOF, HOWEVER CAUSED, WHETHER BASED UPON BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. SUCH EXCLUDED DAMAGES INCLUDE BUT ARE NOT LIMITED TO LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF DATA, LOSS OF USE OF THE SOFTWARE, DOCUMENTATION, COMPUTER EQUIPMENT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF ANY SUBSTITUTE EQUIPMENT OR SOFTWARE, FACILITIES OR SERVICES, DOWNTIME, CLAIMS OF THIRD PARTIES OR INJURY TO PERSON OR PROPERTY. In addition, without limiting the foregoing, Supplier’s liability for any claim arising out of or relating to this Agreement shall in no event exceed the total value of all fees paid under this Agreement. This Section 6.4 shall not apply to breaches of Section 7.1 (Confidentiality).

Section 6.5 Limitation of Warranties. The warranties provided in this Agreement are solely for the benefit of Client and are not provided to any third party whether or not Supplier had knowledge of their use of the Software.

SECTION 7 – CONFIDENTIALITY

“Confidential Information” means information that is identified or marked as “Confidential,” “Proprietary’” or the like, or that a reasonable business person would consider private, sensitive or proprietary and includes, but shall not be limited to (i) the financial terms of this Agreement, either party’s business and marketing plans, and confidential information of a thirty party in possession of either party; (ii) with respect to Supplier, the Software and Documentation; and (iii) with respect to Client, its data and results. Each party (“Recipient”) shall hold in confidence and not disclose (except on a confidential basis to its employees who need to know and who are informed of their confidentiality obligations) all Confidential Information received from the other party in the same manner and to the same extent as it holds in confidence its own Confidential Information, but in no event with less than a reasonable degree of care, and shall not use any such Confidential Information except for purposes contemplated by this Agreement. In the event of a breach by either party of its obligations under this paragraph, the other party may suffer irreparable harm and its remedies at law will be inadequate and shall have, in addition to any other remedies it may have, the right to obtain injunctive relief to restrain any breach or threatened breach thereof. Confidential Information shall not include any information that is in or comes into the public domain (other than through the fault of the Recipient). Client agrees not to, itself or through its employees, agents or subcontractors, decompile or reverse engineer the Software.

SECTION 8 – INDEMNIFICATION

Supplier agrees to defend, indemnify and hold harmless Client from and against any action at law or in equity based on a claim alleging that the Software, or any component thereof, infringes a U.S. patent, copyright or trade secret of any third party, and Supplier shall indemnify Client against all costs, expenses and damages arising from any such action; provided, however, that (i) Client shall have given Supplier prompt written notice of such action, (ii) Client shall cooperate with Supplier in the defense and settlement thereof and (iii) Supplier shall have control of the defense of such action and any settlement or compromise thereof. If a temporary or a final injunction is obtained against Client’s use of the Software, or any component thereof, by reason of an infringement of a U.S. patent, copyright or trade secret, Supplier will, at its option and expense, either (i) procure for Client the right to continue using the Software; (ii) replace or modify for Client the Software or such infringing portion thereof, so that it no longer infringes, so long as the Software continues to materially perform all intended functions; or (iii) terminate this Agreement and all licenses granted hereunder and return any unused pre-paid portion of the fees paid . Supplier shall have no liability to Client for any infringement action or claim that is based upon or arises out of (i) the modification of the Software by Client or any third party; (ii) the use of the Software or any portion thereof in combination with any other equipment or software in the event that, but for such modification or use, the claim of infringement would not lie; or (iii) use of any version other than the latest version of the Software where use of the latest version would prevent the action or claim. This paragraph sets forth the exclusive remedy of Client against Supplier with respect to any action or claim for an alleged infringement by the Software or any component thereof.

SECTION 9 – TERM AND TERMINATION

Section 9.1 Term. The term of this Agreement shall commence as of the Effective Date and continue indefinitely unless otherwise terminated in accordance with the provisions of this Agreement.

Section 9.2 Maintenance and Support. Client may terminate the Maintenance and Support provisions of this Agreement (Section 3) by providing written notice to Supplier, with such termination to be effective upon the anniversary of the Effective Date following such notice. Supplier may increase its maintenance and support fees prior to anniversary the Effective Date.

Section 9.2 Early Termination for Cause. Either party may terminate this Agreement upon the giving of written notice in the event that (i) the other party fails to discharge any material obligation or remedy any material default under this Agreement for a period continuing more than 60 days after the aggrieved party shall have given the other party written notice specifying such failure or default in reasonable detail and (ii) such failure or default continues to exist as of the date upon which the aggrieved party gives notice of termination.

Section 9.3 Survival of Terms. The provisions of the Agreement that by their nature are meant to survive termination, including, without limitation Section 2.3 (Ownership), Section 5 (Payments), Section 6.4 (Limitation of Liability), and Section 7 (Confidentiality) shall survive termination of this Agreement for any reason

SECTION 10 – GENERAL

Section 10.1 Assignment. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and permitted assigns. Supplier or its successor may assign this Agreement, in whole or in part, in the sale of all or substantially all of its assets. Otherwise, neither party may assign this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.

Section 10.2 Notice. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given by delivery in person, by registered or certified mail (postage prepaid, return receipt requested) or by a nationally recognized overnight courier to the other party. Notice to Supplier shall be sent to President, ScienceTRAX, LLC., 4701 Brae Burn Lane, Macon, GA32224. Notice to Client shall be sent to the Client Address listed on the Cover Sheet. Either of the parties may designate in writing such new or other addresses to which such notice shall thereafter be mailed. Notice shall be deemed delivered upon receipt.

Section 10.3 Entire Agreement. This Agreement constitute the entire agreement between Supplier and Client with respect to the subject matter hereof and supersedes all prior representations, discussions and communications, whether oral or in writing. This Agreement may only be amended by a written agreement signed by both parties.

Section 10.4 Governing Law; Venue. This Agreement shall be interpreted according to the laws of the State of Georgia without regard to its body of law dealing with conflicts of law. Exclusive venue for any disputes arising from or related to this Agreement shall be in the state or federal courts in the Georgia, and the parties hereby consent to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or any goods delivered which are related to this Agreement.

Section 10.5 Delay. Neither party shall be responsible for delay or failure in performance, except with respect to payment obligations, resulting from acts beyond the control of such party. Such acts shall include, but not be limited to, an act of God, an act of war, riot, epidemic, fire, flood, other disasters; or an act of government.

Section 10.6 Independent Contractors. The parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture or agency relationship between the parties. Neither party shall have the right to obligate or bind the other party in any manner to any third party.

Section 10.7 Authority to Contract. Each party represents that it has the full power and authority to enter into this Agreement and to convey the rights herein conveyed. Each party further represents that it has not entered into nor will it enter into any agreements that would conflict with its obligations hereunder or would render it incapable of satisfactorily performing hereunder.

Section 10.8 Severability. Should any provision of this Agreement be held to be void or unenforceable, the remaining provisions shall remain in full force and effect to be read and construed as if the void or unenforceable provisions were originally deleted.

Section 10.9 Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

Section 10.10 No Waiver. No provision of this Agreement may be waived, amended or otherwise modified except by a written agreement signed by each party hereto. The waiver by either party of the breach of any provision hereof shall not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.

Section 10.11 Counterparts. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but both of which taken together shall constitute one and the same instrument.

END OF AGREEMENT