Avolve Software/DCS/Software License and Support Agreement a fare' SOFTWARE LICENSE AND SUPPORT AGREEMENT
software General Terms and Conditions(GTCs)
IN WITNESS WHEREOF,the parties hereto have made and executed this Agreement as follows:
CITY OF CARMEL,INDIANA Avolve Software Corporation
by and through its Board of Public
Works and Safety
BY: BY:
/ 4 .‘..,,.,t ' ei?e,u
%esBrainard,Presiding Officer Authorize gnature
Date: 3- — . of 6
' Printed Name: Ronald Loback
Title: President and CEO
Mary Ann urke,Ibe /G
Date: FID/TIN: 26-4081788
Last Four of SSN if Sole Proprietor:
II
Lori S.W..tson, '' mbbeg I/ Date: 03/09/2016
Date: 31 Ho
AT
C_s� 61,--&-g-
,..., ...f,,,
Christine Paule,Cl -Treasurer
Date: A
Avolve Software,Inc April,2013 Page 8 of 11
an/O
, SOFTWARE LICENSE AND SUPPORT AGREEMENT
software General Terms and Conditions(GTCs)
Exhibit A
Avolve Support Terms
These Avolve Support Terms ("SLA") defines the maintenance and support services ("Avolve.Support") which Avolve Software
Corporation ("Avolve") shall provide to any customer ("Customer") who is entitled pursuant to a separate written order form(the
"Order Form") with Avolve to Avolve Support. This SLA defines Avolve Support for both traditional licensees ("Licensees") of
Avolve software(the"Software") and users ("Cloud Users") of the Avolve hosted, software-as-aservice solution("Avolve Cloud").
For the avoidance of any doubt, customers who have not purchased Avolve Support and customers who are not current on their fees
are not entitled to Avolve Support. This SLA, together with the Software Order Form the Avolve General Terms and Conditions,
represents Customer's Agreement(as such term is defined in the Avolve General Terms and Conditions).
1. Portal. Avolve will provide reasonable portal support for problem determination and resolution for problems arising during
normal operation of the Software(for Licensees)or normal operation of Avolve Cloud(for Cloud Users). Avolve may require the
Customer to provide a written assistance request describing the problem. All issues MUST be reported via the portal.
Support Portal: http://support.avolvesoftware.com
Upon first entering the portal,the Customer may request a login and Avolve limits logins to one agent per Customer. After a login is
received,the Customer may enter,track,update, and report on trouble ticket as well as communicate with Avolve helpdesk staff via
phone, email,web meeting,and/or ticket notes. Also,Help,FAQs,Documentation,and a Knowledgebase are available at the above
portal as well.
2. Support Hours. •
2.1. Licensees with a standard support contract and Cloud Users will receive assistance during Avolve's normal working
hours of 7:00 a.m.through 5:00 p.m.,Monday through Friday(excluding standard holidays),Arizona Standard Time.
2.2. Avolve in its sole discretion, may offer premium support contracts, which would entitle the purchasing customer to
additional support hours and/or other benefits beyond those set forth in this SLA("Premium Support"). If purchased by
a customer,Premium Support terms will be set forth in the applicable Order Form.
3. On-Site Emergency Support. Customer may request Avolve to provide on-site emergency operational support services as a
separate and distinct billable service.
4. Releases Included. Avolve Support for Licensees of the Software includes all minor and maintenance releases. Avolve reserves
the right to charge upgrade fees for major releases or major ancillary program components. Additionally, some features may or
may not be activated based on license terms.
4.1. For the purposes of this SLA, (i) "maintenance releases" shall mean such bug fixes and/or platform updates that are
designated by an increment in the last decimal of the release i.e. n.n.1 by Avolve;(ii) "minor releases"shall mean such
bug fixes, platform updates, and/or minor product enhancements that are designated by an increment in the second
decimal of the release i.e. n.l.n by Avolve; and(iii)"major releases" shall mean such bug fixes, platform updates, and
major product enhancements and/or new features that are designated by an increment in the whole number of the release
i.e. 1.n.n by Avolve.
4.2. To the extent applicable, all Avolve Support provided to Customer(including all maintenance releases,minor releases,
and major releases)shall be subject to the applicable license agreement between Avolve and Customer.
5. Problem Determination and Resolution. Avolve resources will be allocated to resolve reported problems based on the severity
level set forth in the table below and Avolve will use commercially reasonable efforts to provide.a prompt acknowledgement,
acceptable resolution,workaround,or a plan for the provision of a resolution or acceptable workaround in the timeframe set forth
in the table below:
Severity Level Definition Acknowledgement Resolution Commitment
Avolve Software,Inc April,2013 Page 9 of 11
a ,e, SOFTWARE LICENSE AND SUPPORT AGREEMENT
software General Terms and Conditions(GTCs)
An error that causes a Avolve and Customer will commit
catastrophic failure resources for problem resolution,to
Priority 1 High substantially impacting 1 Hour obtain workaround,or reduce the
Customer's business. severity of the error.
An error that causes Avolve Avolve and Customer will commit
product to fail without full-time resources during normal
Priority 2 significant business impact. business hours for problem
24 Hours
Medium
Causes a substantial resolution,to obtain a workaround,or
reduction in performance. reduce the severity of the error.
An error that causes only Avolve and Customer will commit
Priority 3 Low minor impact on use of the 72 Hours resources during normal business
product. hours for problem resolution.
Avolve and Customer will provide
resources during normal business
A service request for a new hours to address request.
Questions/ feature,additional Within 5 Business Enhancement requests will be logged
Enhancement documentation,or an Da s and sent to Avolve
Requests explanation of product y Development for review and possible
functionality. incorporation into ProjectDox.
(a) Acknowledgement. Once a problem has been reported, Customer will receive an acknowledgement via email, phone
or the support portal, as to the receipt of the problem as reported and a confirmation of the problem severity. Avolve
will begin the process of problem determination and resolution at this point.
(b) Status Updates. During the problem determination and resolution process, Customer may receive regular
communications,via email,phone or the support portal,as to the status of the problem determination and resolution.
(c) Resolution. In response to the problem reported,Customer will receive,as appropriate,one of the following resolutions:
an existing correction,a new correction,a viable workaround,or a plan on how the problem will be addressed.
(d) Severity Re-classification. If Customer determines that a previously reported and in-progress issue's severity needs to
be re-classified or escalated,Customer should issue a new call or email to the Technical Support Team.
6. Exclusions. Avolve will have no obligation to support the following,pursuant to the terms of this Agreement:
6.1. Software or Avolve Cloud use not covered by an active support contract and/or not in compliance with a valid agreement
with Avolve. A support contract must cover all Software licenses purchased. Avolve Cloud Users are entitled to Avolve
Support as part of their use fee.
6.2. Software or Avolve Cloud that is altered or modified other than as approved in writing by Avolve.
6.3. Any Software that is not the current major release or immediately previous major release with most current minor update.
6.4. Problems caused by misuse or misapplication of the Software or Avolve Cloud.
6.5. Software installed on any computer hardware/software configurations not supported by Avolve.
6.6. Problems caused by Licensee custom application code authorized to be developed using Avolve APIs as set forth in the
documentation accompanying such API and Licensee's Agreement.
6.7. Problems caused by updates or upgrades of 3rd party applications that are integrated with ProjectDox.
Avolve Software,Inc April,2013 Page 10 of 11
a rOvo e, SOFTWARE LICENSE AND SUPPORT AGREEMENT
software - General Terms and Conditions(GTCs)
6.8. Problems caused by the lack of updates/upgrades of 3rd party applications integrated with ProjectDox.
6.9. Any other reasons set forth in the Customer's Agreement.
Avolve, in its sole discretion,shall determine whether any of the foregoing exclusions are applicable to Customer.
7. Customer's Obligations for Operational Support.
7.1. Contact Person(s). Customer will designate up to two (2) contact person(s) (or such other replacement individuals as
Customer may designate in writing) (each a"Contact Person"), who shall be the sole contacts for the coordination and
receipt of the Support Services set forth in this SLA. Each Contact Person shall be knowledgeable about, as applicable,
the Software and/or Avolve Cloud. If Avolve is unable to contact any designated Contact Person through the specified
means for a period of time and such contact would be helpful for performing the Support Services,Avolve may refuse to
perform the Support Services until Avolve is able to contact a designated Contact Person, in which case the times for
resolution set forth in Section 5 will be suspended for such period of time.
7.2. Remote Access. For the purpose of problem determination and analysis, Customer will provide, as necessary and at
Customer's discretion,the Technical Support Team with remote access capabilities into Customer's system's running the
Software.
7.3. Supporting Data. Customer will provide reasonable supporting data to aid in the identification and resolution ofthe issue.
7.4. Installation. Unless otherwise instructed by Avolve, Customer will be responsible for installing any error correction,
update or upgrade.
8. Term. The term of this agreement shall be as set forth on the Order Form and shall continue unless terminated pursuant to the
terms of the Agreement.
9. Fees/Termination/Renewal. Customer shall pay the applicable fee as listed on the Order Form for all Software or Avolve
Cloud use rights for which Customer purchased(the"Fees"). Fees will be billed and due as provided for in the Order Form. If
Licensee fails to pay all Fees by the due date, this SLA, and all Avolve Support provided for under it, may be immediately
terminated, without notice, by Avolve. Alternatively, Avolve, in its sole discretion, may elect to continue to provide Avolve
Support and assess interest at a rate of up to 18%per annum,not to exceed the minimum amount allowed by law. To reinstate or
renew Avolve Support(if reinstatement is allowed by Avolve at its sole discretion),Customer must pay in advance and in full all
Fees that were considered in arrears at that time.
•
Avolve Software,Inc April,2013 Page 11 of 11 •
APPENDIX D
• AFFIDAVIT
Ronald Loback,being first duly sworn,deposes and says that he/she is familiar with and has personal
knowledge of the facts herein and, if called as a witness in this matter, could testify as follows:
1. I am over eighteen(18)years of age and am competent to testify to the facts contained
herein.
2. I am now and at all times relevant herein have been employed by Avolve Software Corp.
(the"Employer") in the position of President&CEO.
3. I am familiar with the employment policies,practices, and procedures of the Employer and
have the authority to act on behalf of the Employer.
4. The Employer is enrolled and participates in the federal E-Verify program and has provided
documentation of such enrollment and participation to the City of Carmel, Indiana.
•
5. The Company does not knowingly employ any unauthorized aliens.
FURTHER AFFIANT SAYETH NOT.
EXECUTED on the 7th day of March,2016. •
Printed: Ronald Loback
I certify under the penalties for perjury under the laws of the United States of America and the State-of
Indiana that the foregoing factual statements and representations arer true and correct.
Digitally signed by Ronald Loback
Ronald Loback Auve Softwarre CNN--Ronald backom,'
} ! Date:2016.03.0716:24:37-07'00'
• Printed: Ronald Loback
SOFTWARE LICENSE AND SUPPORT AGREEMENT•
®a � �- General Terms and Conditions(GTCs) JAO
software
This Software License and Support Agreement General Terms and Conditions defines the terms and conditions under which Avolve
Software Corporation("Avolve")shall provide to the customer identified in the signature block below("Customer")the software and
services identified in the Order Form. By signing this Agreement,Avolve and Customer each acknowledge and agree to be bound by
all the terms and conditions set forth herein.
1. DEFINITIONS. -
1.1. "Add-on"means any custom application code authorized to be developed using Avolve APIs as set forth in the documentation
accompanying such API and these GTCs.
1.2. "Agreement" means these GTCs,the Software Order Form,the SOW or other agreement referencing these GTCs.All such
components are integral to the agreement,and collectively are referred to herein as the"Agreement".
1.3. "API" means Avolve's application programming interfaces,as well as other Avolve code and database elements that allow
other software products to communicate with or call on Avolve Software provided under this Agreement.
1.4. "Avolve Materials" means any software, programs, tools, systems, data, or other materials made available by Avolve to
Licensee in the course of the performance under this Agreement including, but not limited to, the API, Software and
Documentation, as well as any information, materials or feedback provided by Licensee to Avolve relating to the Software
and Documentation.
1.5. "Avolve Support" means the support set forth in Exhibit A to these GTCs, and may be purchased for an additional fee.
Avolve has no obligation to provide any Avolve Support and, in particular, no Avolve Support(including no bug fixes or
updates)will be available after the end of life of the applicable Software version. Avolve reserves the right to provide some
or all Avolve Support from locations, and/or through use of third party providers, located worldwide.
1.6. "User" means authorized Licensee employees and third parties that require access to the Software in connection with
Licensee's internal business operations,such as Licensee's administrators,contractors,reviewers,and applicants.
1.7. "Business Unit" means a logical element,or segment,of the Licensee representing a specific business function, as existing
on the effective date of the license grant. Business Units may be referred to as a department,group, division or functional
area.
1.8. "Confidential Information" means, with respect to Avolve, all information which Avolve protects against unrestricted
disclosure to others, including but not limited to:(a)the Software and Documentation and other Avolve Materials,including
without limitation the following information regarding the Software: (i) computer software (object and source codes),
programming techniques and programming concepts,methods of processing, system designs embodied in the Software;(ii)
benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications, file
formats;and(iii)discoveries, inventions,concepts, designs, flow charts, documentation,product specifications, application
program interface specifications, techniques and processes relating to the Software; (b) the research and development or
investigations of Avolve; (c) product offerings, content partners, product pricing, product availability, technical drawings,
algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, marketing
plans,forecasts and strategies;and(d)any information about or concerning any third party(which information was provided
to Avolve subject to an applicable confidentiality obligation to such third party). With respect to Licensee, "Confidential
Information" means all information which Licensee protects against unrestricted disclosure to others and which (i) if in
tangible form,Licensee clearly identifies as confidential or proprietary at the time of disclosure;and(ii)if in intangible form
(including disclosure made orally or visually),Licensee identifies as confidential at the time of disclosure, summarizes the
Confidential Information in writing,and delivers such summary within thirty(30)calendar days of any such disclosure.
1.9. "Documentation" means Avolve's standard end user documentation which is delivered or made available to Licensee with
the Software under this Agreement.
1.10."Intellectual Property Rights" means patents of any type, design rights, utility models or other similar invention rights,
copyrights,mask work rights,trade secret or confidentiality rights,trademarks,trade names and service marks and any other
intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under
statutory or common law or by contract and whether or not perfected,now existing or hereafter filed,issued,or acquired.
•
Avolve Software,Inc April,2013 Page 1 of 11
e,a VAI
SOFTWARE LICENSE AND SUPPORT AGREEMENT
software General Terms and Conditions(GTCs)
1.11."Software Order Form" means the Appendix A of the Application Solutions Provider Agreement between Customer and
Avolve's reseller, SunGard and any other similar documents for Avolve products or services being resold by SunGard that
Customer and SunGard may agree to in the future.
1.12."Licensee"means the specific legal entity set forth on the Order Form.
1.13."License Term" means the time period that the Software is licensed to Licensee,as specified on the Software Order Form.
1.14."ProjectDox® Instance" means Avolve's proprietary core application and software framework for enhanced ePlan
submission, and review and collaboration built upon a multi-tier cluster hardware architecture consisting of web server(s),
application server(s),and job processor(s)that supports the processing of the API.
1.15."Software" means (i) the API, ProjectDox®Instances and/or other software licensed to Licensee under this Agreement as
specified on the applicable Software Order Forms, as developed by or for Avolve and delivered to Licensee hereunder; (ii)
any new releases thereof made available to Licensee as part of Avolve Support and(iii)any complete or partial copies of any
of the foregoing.
1.16."SOW" means_those statements-of-work which the parties may enter into from time-to-time for professional services on
terms mutually agreed to in writing between the parties in the SOW,including,without limitation,scope of services,expected
deliverables, milestone dates, acceptance procedures and criteria, fees and other such matters. No SOW shall be binding
until executed by both parties. Unless expressly stated otherwise in a SOW,all fees are in United States dollars.
1.17."Territory"means the world except for those countries prohibited by United States'export laws,and further subject to Section
12.4 of the GTC.
1.18."Use" means to activate the processing capabilities of the Software, load, execute, access, employ the Software,or display
information resulting from such capabilities.
2. LICENSE GRANT.
2.1. License.
2.1.1. Software. Subject to Licensee's compliance with all the terms and conditions of this Agreement, Avolve grants to
Licensee a non-exclusive, non-transferable, non-sublicensable (except for the limited right to allow Users to Use set
forth in this Section 2.1.1) license during the License Term to Use the Software, Documentation, and other Avolve
Materials to run Licensee's internal business operations and to provide internal training and testing for such internal
business operations, solely for the specific Business Unit(s) as further set forth in the Software Order Form. Should
Licensee desire to reorganize any such Business Unit, it shall provide Avolve written notice as soon as possible
following the determination of reorganization,so that Avolve may review the planned reorganization to determine if it
is consistent with the Business Unit limitation in this license grant and,if not,what additional fees will be required due
to Licensee's reorganization to include additional Business Units.
2.1.2.Restrictions. Licensee will,and will ensure that its Users,only use the Software in accordance with the Documentation.
Licensee will not,and will ensure that its Users do not: (i) copy or duplicate the Software in excess of the number of
licenses purchased(for production use)or otherwise authorized under this Agreement(for non-production use);(ii)use
the Avolve Materials to provide services to third parties(e.g.,business process outsourcing,service bureau applications
or third party training); (ii) assign, sublicense, sell, lease, loan,resell, sublicense or otherwise distribute or transfer or
convey the Avolve Materials,or pledge as security or otherwise encumber Licensee's rights under this Agreement;(iii)
make any Use of or perform any acts with respect to the Avolve Materials other than as expressly permitted in
accordance with the terms of this Agreement;or(iv)use Software components other than those specifically identified
in the Software Order Form and then only as part of the Software as a whole,even if it is also technically possible for
Licensee to access other Software components; or (v) modify, further develop or create any derivative works of,
disassemble, decompile, reverse engineer or otherwise attempt to obtain or perceive the source code from which any
part of the Software is compiled or interpreted,or access or use the Software in order to build a similar or competitive
product or service; (vi) distribute the Software in any form other than the form delivered by Avolve to License or
otherwise permitted under this Agreement;or(vii)publish any results of benchmark tests run on the Software. License
Avolve Software,Inc April,2013 Page 2 of 11
a_ o . SOFTWARE LICENSE AND SUPPORT AGREEMENT
software General Terms and Conditions(GTCs)
acknowledges that nothing herein will be construed to grant Licensee any right to obtain or use the source code.
Licensee acknowledges that the Software may contain self-reporting technology by which Avolve may receive
information deemed relevant by Avolve to providing Avolve Support, improving the Avolve Materials, monitoring
compliance, and any other purposes as determined by Avolve in its reasonable discretion. Licensee shall not tamper
with or attempt to disable such self-reporting technology.Licensee agrees to take all commercially reasonable steps to
ensure that Users abide by the terms of this Agreement and expressly agrees to indemnify Avolve, its officers,
employees, agents and subcontractors from and against all claims, liabilities, losses, damages and costs (including
reasonable attorney fees)suffered by Avolve arising from a breach by the User of the conditions of this Agreement.
2.1.3.High-Risk Activities.The Software is not fault-tolerant and is not designed,manufactured,or intended for use or resale
as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of
nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines or
weapons systems, in which the failure of the Software or derived binaries could lead directly to death,personal injury,
or severe physical or environmental damage(collectively, "High Risk Activities").Licensee shall not use the Software
for any High Risk Activities.
2.1.4.Third Party Components. The Software and its component parts are protected by copyright and other propriety rights
of Avolve and one or more third party software vendors(including Informative Graphics Corporation("IGC")(all such
third party vendors,including without limitation Oracle and IGC,shall be referred to herein as"third party vendors"or
"third party software vendors"). Licensee may be held directly responsible by such third party vendors for acts relating
to the Software component parts that are not authorized by this Agreement. Licensee's use of such third party software
is limited to only in conjunction with the Software and Licensee acknowledges that it is not allowed to modify such
third party software or use it independent from the Software.
2.1.5.Copies. Licensee may make one copy of the Software for archival purposes only,if the copy contains all of the original
Software's proprietary notices. For the avoidance of any doubt, unless expressly set forth otherwise in the applicable
Order Form, such additional copy may not be run concurrently, either in production mode to increase performance or
in a non-production mode as a Hot Site. Should Licensee desire to run additional copies of the Software concurrently
(including as a Hot Site),additional license rights must be purchased by Licensee.
2.1.6.Ownership. Licensee acknowledges and agrees that Licensor owns all right,title, and interest in and to all intellectual
property rights(including all derivatives or improvements thereof)in the Software and any suggestions,enhancements
requests, feedback, recommendations or other information provided by Licensee or any of its Users related to the
Software. Licensee's rights in the Software,updates(provided Licensee has purchased Avolve Support),and the related
materials supplied by the Licensor pursuant to this Agreement are strictly limited to the right to use the proprietary
rights in accordance with the terms of this Agreement. No right of ownership,expressed or implied, is granted under
this Agreement.
2.1.7.API Use.Provided that Licensee has been authorizing Licensee in writing to build Add-Ons(which authorization may
be withdrawn by Avolve at any time upon written notice to Licensee),Licensee may use the API to create custom Add-
Ons solely as set forth in Section 6 below.
2.1.8.Approved Hardware. Licensee agrees to install the Software only on information technology devices(e.g.servers,hard
disks, central processing units or other hardware) identified by Licensee pursuant to this Agreement and that has been
previously approved by Avolve in writing or otherwise officially made known to the public by Avolve as appropriate
for Use or interoperation with the Software(the"Designated Unit").
2.2. Outsourcing Services. With Avolve's prior written consent,Licensee may permit services providers to access the Software
solely for the purpose of providing facility, implementation,systems,application management or disaster recovery services
to Licensee in connection with the business of Licensee for which the Software is herein licensed. Licensee agrees to be
responsible to Avolve for the conduct of Licensee's services providers to the same extent that Licensee is responsible to
Avolve hereunder for the conduct of Licensee's employees.
3. VERIFICATION.Avolve shall be permitted to audit(at least once annually and in accordance with Avolve standard procedures,
which may include on-site and/or remote audit)the usage of the Avolve Materials.Licensee shall cooperate reasonably in the
conduct of such audits.In the event an audit reveals that(i)Licensee underpaid license fees and/or Avolve Support fees to Avolve
Avolve Software,Inc April,2013 Page 3 of 11
SOFTWARE LICENSE AND SUPPORT AGREEMENT
a ®� �' General Terms and Conditions(GTCs)
software
and/or(ii)that Licensee has Used the Software in excess of the license quantities or levels stated in the Software Order Form,
Licensee shall pay such underpaid fees and/or for such excess usage based on Avolve List of Prices and.Conditions Software and
Support governing use in effect at the time of the audit,and shall execute an additional Software Order Form in accordance with
the terms of this Agreement to affect the required licensing of any additional quantities or levels.Reasonable costs of Avolve's
audit shall be paid by Licensee if the audit results indicate usage in excess of the licensed quantities or levels.Avolve reserves all
rights at law and equity with respect to both Licensee's underpayment of License fees or Avolve Support fees and usage in excess
of the license quantities or levels.
4. DELIVERY.
4.1. Delivery of the Software:Installation.Avolve will deliver the Software either by making it available for electronic download
or by physical delivery of media to Licensee.Risk of loss passes at the time of such electronic or physical delivery.Licensee
agrees and understands that the calculation of Taxes may be affected by the delivery method and delivery location of the
Software and corresponding Avolve Support. Licensee agrees to promptly, following initial delivery of the Software,but in
all cases within ninety(90) days,to provide Avolve with reasonable access to Licensee's facilities and systems in order for
Avolve to initially install the Software (the "Initial Installation"). Unless agreed to in writing by Avolve, Licensee
understands that it is not authorized to conduct the initial installation of the Software. For the avoidance of any doubt, all
installation services are professional services provided by Avolve under a SOW.
5. TERM.
5.1. Term. Except as set forth otherwise in Section 5.3 below or if terminated earlier in accordance with this Section 5, this
Agreement shall commence on the Effective Date and shall continue for the longer of either(a)the expiration of the License
Terms set forth on all the Software Order Form or(b)the completion of all professional services under all SOWs.
5.2. Termination. In addition to any termination rights that may be set forth in a specific Software Order Form or SOW, either
party may terminate this Agreement immediately upon written notice in the event that the other party materially breaches
this Agreement and thereafter has failed to cure such material breach(or commenced diligent efforts to cure such breach that
are reasonably acceptable to the terminating party) within thirty (30) days after receiving written notice thereof.
Notwithstanding anything to the contrary contained in this Agreement, Customer may,upon notice to Avolve, immediately
terminate this Agreement if sufficient funds are not appropriated or encumbered to pay for the Software and Services to be
provided hereunder. Customer may terminate this Agreement at any time upon one (1)year prior notice to Avolve. In the
event of such termination,Avolve shall be entitled to receive only payment for the undisputed invoice amount of conforming
goods and services delivered as of the date of termination, except that such payment amount shall not exceed the contract
amount in effect at the time of termination,unless the parties have previously agreed to a greater amount.
5.3. End of Term Duties.Upon any termination of the Agreement hereunder(which would terminate all existing License Terms
and SOWs), (a)Licensee and its Users shall immediately cease Use of all Avolve Materials and Confidential Information
and(b)Avolve shall immediately cease all professional services.Within thirty(30)days after any termination,Licensee shall
irretrievably destroy or upon Avolve's request deliver to Avolve all copies of the Avolve Materials and Confidential
Information in every form,except to the extent it is legally required to keep it for a longer period in which case such return
or destruction shall occur at the end of such period. Licensee must certify to Avolve in writing that it has satisfied its
obligations under this Section 5.3. Sections 3, 4, 5, 6,7, 8,9, 10, 12,and 12 shall survive such termination.In the event of
any termination hereunder,Licensee shall not be entitled to any refund of any payments made by Licensee.Termination shall
not relieve Licensee from its obligation to pay fees that remain unpaid.
6. Add-Ons.
6.1. Conditioned on Licensee's compliance with the terms and conditions of this Agreement,Licensee may make Add-ons to the
Software in furtherance of its permitted Use under this Agreement,and shall be permitted to use Add-ons with the Software
in accordance with the License grant to the Software set forth in Section 2.1.1 herein. All Add-ons developed by Avolve
(either independently or jointly with Licensee or other third parties)and all rights associated therewith shall be the exclusive
property of Avolve. Licensee agrees to execute those documents reasonably necessary to secure Avolve's rights in the
foregoing.All Add-ons developed by or on behalf of Licensee without Avolve's participation("Licensee Add-on"),and all
rights associated therewith, shall be the exclusive property of Licensee subject to Avolve's rights in and to the Software;
provided,Licensee shall not commercialize,market,distribute,license,sublicense,transfer,assign or otherwise alienate any
such Licensee Add-ons. Avolve retains the right to independently develop its own Add-ons to the Software, and Licensee
Avolve Software,Inc April,2013 Page 4 of 11
SOFTWARE LICENSE AND SUPPORT AGREEMENT
a VA/e General Terms and Conditions(GTCs)
software
agrees not to take any action that would limit Avolve's sale, assignment, licensing or use of its own Software or Add-ons
thereto.
6.2. Any Licensee Add-on must not(and subject to other limitations set forth herein):enable the bypassing or circumventing any
of the restrictions set forth in this Agreement and/or provide Licensee with access to the Software to which Licensee is not
directly licensed; nor permit mass data extraction from Software to any non-Avolve software, including use, modification
saving or other processing of data in the non-Avolve software;nor unreasonably impair,degrade or reduce the performance
or security of the Software; nor render or provide any information concerning Avolve software license terms, Software, or
any other information related to Avolve products.
6.3. Add-ons are excluded from Avolve Support. Licensee may purchase support from Avolve for Add-ons as professional
services under an SOW •
7. PERFORMANCE WARRANTY.
7.1. Warranty.Avolve warrants that the Software will substantially conform to the specifications contained in the Documentation
for thirty(30)days following Initial Installation. The warranty shall not apply: (i)if the Software is not used in accordance
with the Documentation; (ii) not initially installed within the time period set forth in Section 4.3 above,unless such failure
to timely install is due solely to the fault of Avolve;or(iii) if the defect is caused by an Add-on(other than an Add-on made
solely by Avolve and which is provided through Avolve Support or under warranty),Licensee or third-party software.Avolve
does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors that do not
materially affect such performance,or that the applications contained in the Software are designed to meet all of Licensee's
business requirements. Provided Licensee notifies Avolve in writing with:a specific description of the Software's
nonconformance within the warranty period and Avolve validates the existence of such nonconformance,Avolve will, at its
option:a)repair or replace the nonconforming Software,or b)refund the license fees paid for the applicable nonconforming
Software in exchange for a return of such nonconforming Software. THIS IS LICENSEE'S SOLE AND EXCLUSIVE
REMEDY UNDER THIS WARRANTY.
7.2. Express Disclaimer. AVOLVE AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES STATUTORY,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-
INFRINGEMENT,MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. INDEMNIFICATION.
8.1. General. When Avolve Support or other service are provided on Licensee's premises or at another location designated by
•
Licensee,each party will indemnify,defend and hold harmless the other party, its officers,directors,employees,agents and
affiliates from and against any claims,demands,loss;damage or expense,including reasonable attorney's fees,(collectively,
"Claims")relating to bodily injury or death of any person or damage to tangible personal property occurring at such location
in connection with the performance of the Avolve Support or other services to the extent proximately caused by the gross
negligence or willful acts or omissions of the indemnifying party,its officers,directors,employees,agents and affiliates.
8.2. Infringement. If a third party makes a claim against the Licensee that any Use of the Software in accordance with the terms
of this Agreement infringes such third party's intellectual property rights,Avolve, at its sole cost and expense, will defend
Licensee against the claim and indemnify Licensee from the damages, losses,liabilities,costs and expenses awarded by the
court to the third party claiming infringement or the settlement agreed to by Avolve, provided that Licensee: (i) notifies
Avolve promptly in writing of the claim;,(ii)gives Avolve sole control of the defense and any settlement negotiations;and
(iii)gives Avolve reasonable assistance in the defense of such claim. If Avolve believes or it is determined that the Software
has violated a third party's intellectual property rights,Avolve may choose to either modify the Software to be non-infringing
or obtain a license to allow for continued use,or if these alternatives are not commercially reasonable,Avolve may terminate
Licensee's use rights and refund any unused,prepaid fees Licensee may have paid to Avolve. Avolve will not indemnify the
Licensee to the extent that the alleged infringement arises from(1)the combination, operation,or use of the Software with
products, services, information, materials, technologies,business methods or processes not furnished by Avolve(including
without limitation use on other than a Designated Unit);(2)modifications to the Software,which modifications are not made
by Avolve;(3)failure to use updates to the Software provided by Avolve;or(4)use of Software except in accordance with
any applicable user documentation or specifications.
8.3. THE PROVISIONS OF THIS SECTION 8 STATE THE SOLE,EXCLUSIVE,AND ENTIRE LIABILITY OF AVOLVE
AND ITS LICENSORS TO LICENSEE, AND IS LICENSEE'S SOLE REMEDY, WITH RESPECT TO THE
INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
Avolve Software,Inc April,2013 Page 5 of 11
SOFTWARE LICENSE AND SUPPORT AGREEMENT
a,s/of2tw[are/ General Terms and Conditions(GTCs)
9. LIMITATIONS OF LIABILITY.
In no event will Avolve be liable for special, indirect, incidental, 'consequential, or exemplary damages, including, without
limitation, any damages resulting from loss of use, loss of data, interruption of business activities, or failure to realize savings
arising out of or in connection with this Agreement, including without limitation use of the Software and the provision of the
Avolve Support and other services. Except for direct damages and expenses associated with Avolve's obligation to indemnify
Licensee pursuant to Section 8.2,Avolve's aggregate,cumulative liability for damages and expenses arising out of this Agreement,
whether based on a theory of contract or tort,including negligence and strict liability,will be limited to the amount of fees receive
by Avolve under this Agreement. Such fees reflect and are set in reliance upon this limitation of liability. The limited remedies
set forth in this Agreement shall apply notwithstanding the failure of their essential purpose.
10. CONFIDENTIALITY.
10.1.Use of Confidential Information. Confidential Information shall not be reproduced in any form except as required to
accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other shall remain the
property of the disclosing party and shall contain any and all confidential or proprietary notices or legends which appear on
the original. With respect to the Confidential Information of the other, each party: (a) shall take commercially reasonable
steps to keep all Confidential Information strictly confidential;and(b)shall not disclose any Confidential Information of the
other to any person other than its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder.
Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections
afforded hereunder.
10.2.Exceptions.The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential
Information that: (a) is independently developed by the receiving party without reference to the disclosing party's
Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such
Confidential Information;(b)has become generally available to the public without breach ofthis Agreement by the receiving
party;(c) at the time of disclosure,was known to the receiving party free of restriction;or(d)the disclosing party agrees in
writing is free of such restrictions.
10.3.Confidential Terms and Conditions;Publicity.Licensee shall not disclose the terms and conditions ofthis Agreement related
to pricing contained to any third party unless restricted from conforming to non-disclosure by governmental statute and/or
ordinance. Licensor may identify Licensee on its customer lists and list Licensee as a customer in its marketing and
advertising materials, and reproduce Licensee's company name, logo, trademark, trade name, service mark, or other
commercial designations, solely in connection therewith. If requested by Licensor during the first two years of this
Agreement, Licensee agrees to timely execute the following activities: Press Release, Case Study Testimonial, ROI
Benchmarking Study,and Client Referrals.
11. ASSIGNMENT.Licensee may not,without Avolve's prior written consent,assign,delegate,pledge,or otherwise transfer this
Agreement,or any of its rights or obligations under this Agreement,or the Avolve Materials or Avolve Confidential Information,
to any party,whether voluntarily or by operation of law, including by way of sale of assets,merger or consolidation.
12. GENERAL PROVISIONS.
12.1.Severability.It is the intent of the parties that in case any one or more of the provisions contained in this Agreement shall be
held to be invalid or unenforceable in any respect,such invalidity or unenforceability shall not affect the other provisions of
this Agreement,and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained
herein.
12.2.No Waiver. If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to
have waived any preceding or succeeding breach of the same or any other provision hereof.
12.3.Counterparts.This Agreement may be signed in two counterparts,each of which shall be deemed an original and which shall
together constitute one Agreement.
12.4.Regulatory Matters. The Software, Documentation and Avolve Materials are subject to the export control laws of various
countries, including without limit the laws of the United States. Licensee agrees that it will not submit the Software,
Documentation or other Avolve Materials to any government agency for licensing consideration or other regulatory approval
without the prior written consent of Avolve, and will not export the Software, Documentation.and Avolve Materials to
Avolve Software,Inc April,2013 Page 6 of 11
a 4 1 _ e, SOFTWARE LICENSE AND SUPPORT AGREEMENT
software General Terms and Conditions(GTCs)
countries,persons or entities prohibited by such laws.Licensee shall also be responsible for complying with all applicable
governmental regulations of the country where Licensee is registered, and any foreign countries with respect to the use of
the Software,Documentation or other Avolve Materials by Licensee and/or its Affiliates.
12.5.Governing Law: Limitations Period. This Agreement and any claims arising out of or relating to this Agreement and its
subject matter shall be governed by and construed under the laws of State of Indiana without reference to its conflicts of law
principles. In the event of any conflicts between foreign law, rules, and regulations, and United States law, rules, and
regulations,United States law,rules,and regulations shall prevail and govern.The United Nations Convention on Contracts
for the International Sale of Goods shall not apply to this Agreement.The Uniform Computer Information Transactions Act
as enacted shall not apply.Licensee must initiate a cause of action for any claim(s)arising out of or relating to this Agreement
and its subject matter within one (1) year from the date when Licensee knew, or should have known after reasonable
investigation,of the facts giving rise to the claim(s).
12.6.Notices..All notices or reports which are required or may be given pursuant to this Agreement shall be in writing and shall
be deemed duly given when delivered to the respective executive offices of Avolve and Licensee at the addresses first set
forth in any Software Order Form or Sales agreement. Where in this section 12.6 or elsewhere in this Agreement written •
form is required,that requirement can be met by facsimile transmission,exchange of letters or other written form.
12.7.Force Majeure. Any delay or nonperformance of any provision of this Agreement(other than for the payment of amounts
due hereunder) caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of
this Agreement,and the time for performance of such.provision, if any,shall be deemed to be extended for a period equal to
the duration of the conditions preventing performance.
12.8.Entire Agreement.This Agreement constitutes the complete and exclusive statement of the agreement between
Avolve and Licensee, and all previous representations, discussions, and writings are merged in, and superseded by this
Agreement and the parties disclaim any reliance on any such representations, discussions and writings. This Agreement
may be modified only by a writing signed by both parties.This Agreement shall prevail over any additional,conflicting,or
inconsistent terms and conditions which may appear on any purchase order or other document furnished by Licensee to
Avolve. This Agreement shall prevail over any additional, conflicting or inconsistent terms and conditions which may
appear in any click wrap end user agreement included in the Software. Signatures sent by electronic means(facsimile or
scanned/sent via e-mail)shall be deemed original signatures.This Agreement does not create any partnership,joint venture
or principal and agent relationship.
12.9.Independent Contractor.Avolve is an independent contractor and not an employee ofthe Licensee.Any personnel performing
services under this Agreement on behalf of Avolve shall at all times be under Avolve's exclusive direction and control.
Avolve shall pay all wages,salaries,and other amounts due such personnel in connection with their performance of services
under this Agreement and as required by law. Avolve shall be responsible for all reports and obligations respecting such
additional personnel, including,but not limited to:social security taxes, income tax withholding, unemployment insurance,
and worker's compensation insurance.
12.10.Hierarchy.The following order of precedence shall be applied in the event of conflict or inconsistency between provisions of
the components of this Agreement: (i) GTCs and(ii) the applicable Software Order Form, Avolve Support Terms or SOW.
Notwithstanding the foregoing, if any part of an Order Form, Avolve Support Terms or SOW expressly states that it shall
control over the GTCs,it shall so control.
Avolve Software,Inc April,2013 Page 7 of 11