UC4 LICENSE AND MAINTENANCE AGREEMENT This License & Maintenance Agreement ( Agreement ) is entered into between [UC4 Entity] ( UC4 ), and the, a [ ] company, with a place of business at [ ] ( Customer ) as of the Effective Date. The Agreement shall include (i) any initial, and (ii) may include any subsequent; duly executed License and/or Maintenance Order Forms, Accepted Offers (all hereafter referred to as Order ), and which is incorporated by reference herein. UC4 or its affiliated companies have developed and own a suite of proprietary automation and complex event processing software and related documentation ( Software ) and offer maintenance services ( Maintenance ) for these consisting of technical assistance ( Support ) and update services ( Updates ) and Customer has acquired the license to use the Software in accordance with the terms set out in this Agreement. By either indicating acceptance of the terms of this Agreement where prompted to do so, or by downloading, installing and/or using the Software, Customer agrees to be and will be bound by the terms of this Agreement. If Customer does not agree to be so bound Customer may not use the Software and should destroy or delete the Software, including all copies, from all media, storage and systems in its possession or control. NOW THEREFORE, the parties for good and valuable consideration and intending to be legally bound agree as follows as of the Effective Date. 1. Definitions The terms defined in this Agreement shall apply to this Agreement and any Order under this Agreement. 1.1. Order shall mean the various forms of license, and maintenance order forms accepted by UC4, which, among other things, names the Software and may identify the term, number of units licensed, release level, version number, type of license, the operating system on which the Software will run, as applicable; 1.2. Software means the machine-readable object code of the proprietary UC4 computer programs in all forms and related Documentation, associated materials and all related Intellectual Property as identified in this Agreement.; 1.3. Documentation shall mean the standard user documentation made available by UC4 for the Software; 1.4. Certified Licenses shall mean the licenses granted herewith for Software defined in the Order, as purchased by Customer through UC4; 1.5. Supported Platforms shall mean the hardware and software platforms that operate with Software as expressly set forth in the Documentation; 1.6. Term of this Agreement shall be as set out herein and shall mean the period during which the Certified Licenses are valid, starting from the Execution Date as set out in the Order. 1.7. Server License shall mean the right to access and use a single instance of the Software. 1.8. Subscription License shall mean that UC4 grants to Customer a non-perpetual, non-exclusive, and nontransferable right to use and access specified Certified Licenses during an agreed and specified period of time as set out in the Order, and solely for the duration of this period of time, and includes access to and the provision of Maintenance for said Certified Licenses. 1.9. Concurrent User License shall mean the right for a specified number of individuals or programs to access and use the Software concurrently. 1.10. Named User License shall mean the right to use the Software to support up to the specified number of designated users. 1.11. Effective Date means the calendar date specified as such in the initial Order or the date of final execution, whichever is earlier. 1.12. Template Libraries means the pre-existing packaged content (including, designated computer code) which facilitates the automation of specified third party applications; which UC4 retains all right, title and interest in. 2. License Terms 2.1. Provided that Customer has placed a valid Order for the Certified Licenses with UC4 and paid the license fees in accordance with the terms and conditions of such Order, Customer shall obtain a limited, non-exclusive and non-transferable/assignable license to use and operate the current executable version of the Certified Licenses in Customer s designated premises and limited to the type, models, and quantities of Server, Concurrent or Named User Licenses actually purchased. Subject to termination as set out herein, the license is granted for the Term set out in the Order. The license granted herein shall be required for, and shall be limited to, Customer s ordinary internal business use.. License fees paid for Software are non-refundable. 1 Version August 2010
2.2. Customer shall not directly or indirectly transfer, sublicense, assign or grant any rights to use the Software to any third party. Apart from the Certified License to use the Software as set forth herein, no right, title or interest, such as proprietary rights, copyrights, patents, trade secrets or any other intellectual property rights, to the Software shall transfer to Customer. Customer may not use the Software for time-sharing, rental, service bureau use or third party training purposes other than third parties temporarily employed by Customer. Customer shall not in any event cause or permit the modification, reverse engineering, disassembly, decompilation, translation, adaptation or derivation of the Software without the prior written consent of UC4. 2.3. Customer acknowledges that the Software now or in the future licensed to Customer are the proprietary information of UC4 (and/or its Affiliates) and are protected by all intellectual property laws, including, copyright law and trade secret law. Customer agrees not to remove or destroy any proprietary markings or logos and legends placed upon or contained within the Software. Subject to reasonable prior notice, Customer shall allow UC4, to periodically run certain computer programs which are incorporated as part of the Software, including diagnostic programs, for all physical and virtual environments of Customer to validate Customer s compliance with the terms of this Agreement, including any limitations on use established by any applicable Order. Additionally, upon request of UC4 from time to time, Customer shall certify that Customer has conducted a diligent and complete review of its entire information technology environment and that Customer is in full compliance with the use limitations established by any applicable Order. 2.4. License Keys. Use of the Software may be subject to a time-protected License Key, for either full production use or for evaluation purposes. Evaluation License Keys are issued free of charge for a fixed period only and the Software will become inoperable upon expiry of the evaluation period unless a full License Key is purchased. A full License Key will only be issued once full payment of the applicable license fee, in accordance with UC4's then-current scale of fees, has been received by UC4. If payment in full is not received by UC4 then, upon expiry of any initial Evaluation License Key, the Software will become inoperable. 3. Maintenance 3.1. Maintenance only applies to Software for which UC4 has received payment of the annual Maintenance fees related to said Software. The Maintenance comprises of Updates and Support and includes the right to receive any new updated version of the Software as released from time to time by UC4. UC4 shall not provide Support, or Updates, including corrective updates, to Customers who have not subscribed to the annual Maintenance. Customer is expected to train key Customer personnel on the Software and to assign such personnel to provide first line support to Customer s internal users. 3.2. The Support is an integral part of the Maintenance and includes the provision of error corrections or workarounds, and the provision of additional information which UC4 makes available through the course of the year training calendars, e-newsletters, special events (i.e. annual user group meeting or regional user forums, etc.), documentation and notices to enable Customer to better utilize Software features and Support tools. UC4 provides an on-line system to allow Customer to enter all Support requests with the necessary background and descriptive information. UC4 offers two service levels ( Maintenance Service Level ) corresponding to different fees: The Standard Maintenance Service includes off-site support coverage during business hours, ten hours a day, five working days per week and the Extended Maintenance Service, includes offsite support coverage seven days a week and twenty four hours per day. 3.3. Update are an integral part of the Maintenance and includes the provision for remote download by Customer of new releases of the Software classified by UC4 as Updates, as well as access to UC4 s on-line knowledge repository of typical questions and answers, tips, and known error corrections. The right to download Updates for the Software is provided without charge to the Customer if Customer has paid the applicable annual Maintenance fees, and provided that Customer has properly licensed the Software. As a matter of policy UC4 will support the current release version, and one version prior. UC4 issues early notices to its customers and Customer has the obligation to plan and carry out such Updates. Should Customer fail to do so, UC4 reserves the right to cease Maintenance or to charge a premium to continue support for the obsolete version. Should Customer fail to purchase Maintenance on a continuous basis, UC4 reserves the right to charge a one-time re-instatement charge should Customer wish to resume Maintenance after an interruption. Updates do not include any release not classified as such by UC4 and excludes upgrades, enhancements, major releases, or any other release with substantial improvements to existing functionality or new functionally ( Upgrades ). 3.4. The fee for the Maintenance ( Maintenance Fee ) and the fee for any Upgrade shall be set out in the Order and may be subject to annual increase. Any Maintenance Fee increase, however, may not exceed five percent (5%), based on the last invoiced Maintenance Fee. The Maintenance Fees shall be invoiced annually in advance of the anniversary of the Effective Date (subject to valid notice of termination having been served by either party). 2 Version August 2010
4. Payments 4.1. Any payments to be made to UC4 shall be due, in full, within thirty (30) days of the relevant invoice date, and if not paid when due, will be subject to interest at the lower of sixteen percent (16%) per annum, or the maximum rate permitted by applicable law, calculated from the date when payment becomes overdue, until the date when payment is made. UC4 may suspend its performance in the event of any past due payment by Customer. 6. Remedies Customer must report immediately in writing any breach of the warranties or other claims under this Agreement, and Customer s exclusive remedy for any breach of such warranty shall be the use by UC4 of commercially reasonable efforts to correct or provide a workaround for the Software errors provided that such Software errors can be reproduced - and the replacement of any defective media on which the Certified Licenses may have been delivered. 4.2. Customer shall pay or reimburse UC4, for all applicable sales, use or other taxes by virtue of this Agreement or Order under this Agreement, exclusive of taxes based on the income of UC4. Unless otherwise stated in writing by UC4, prices do not include sales, use, property (ad valorem), customs, excise, value added, federal, state, provincial, municipal and other similar taxes, duties or fees, all of which are additional and such items are the sole obligation of Customer, irrespective of the method of delivery or whether such items were included in any invoice previously sent to Customer by UC4. 7. Limitation of liability 7.1. To the maximum extent permissible by law the limitations of liability of this Agreement shall apply. Nothing in this Agreement shall limit either party s liability for personal injury or death caused by either party s act or omissions. 7.2. Neither party shall under any circumstances be liable towards the other for any indirect, incidental, consequential, exemplary, special or punitive damages. 5. Limited Warranty 5.1. Upon the first installation of the Certified Licenses on Customer computer system and for a period of one hundred and eighty (180) days thereafter, UC4 warrants that the Software will perform in all material respects in accordance with the Documentation when operated in accordance with the Documentation on a Supported Platform. UC4 does not warrant that the Software (i) will meet Customer s requirements, (ii) will operate when used with other hardware, software, systems or data not provided or expressly approved by UC4 which Customer may select for use, (iii) will operate uninterrupted or error-free, or (iv) errors of an immaterial nature will be corrected. Notwithstanding any provision to the contrary, UC4 Materials that are not a part of the Software are distributed AS IS and without any express or implied warranty. 5.2. THE SPECIFIED WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN OR ORAL, EXPRESSED OR IMPLIED APPLIES INCLUDING ANY WARRANTIES OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE, PROVIDED HOWEVER, WHERE ANY APPLICABLE LAW IMPLIES OR REQUIRES IN THIS AGREEMENT ANY CONDITION, LIMITATION OR PROHIBITION THIS AGREEMENT SHALL BE SO CONDITIONED, LIMITED OR PROHIBITED AS REQUIRED BY APPLICABLE LAW. 7.3. The total liability of UC4 for damages in respect of all claims hereunder or otherwise shall not exceed the amount paid in respect of the Software. 7.4. In no event shall UC4 have any liability for any product or service of Customer or any third party. 7.5. UC4 shall not be liable for any delay in performing, or failure to perform, any of its obligations under this Agreement if the delay or failure results from events or circumstances outside its reasonable control or any force majeure circumstance. 8. Infringement 8.1. UC4 shall indemnify and hold Customer harmless from any and all direct costs and expenses (not including costs and expenses for replacement computer programs) and damages finally awarded against Customer, arising out of UC4 s infringement of any copyright, patents or other intellectual property right of any third party, arising through Customer s normal operational use of the Certified Licenses in accordance with this Agreement and not in combination with other computer programs, provided that UC4 is given notice of any infringement claim and is given the option to defend such claim at UC4 s expense. UC4 shall not be liable for any infringement based upon the use of an altered version of the Certified Licenses unless the alteration was made by UC4 or with UC4 s prior written consent 3 Version August 2010
8.2. In the event that a claim of infringement has occurred or may occur, UC4 shall, at its option, either secure the right for Customer to continue using the Certified Licenses, or replace or modify the same, so that there is no such infringement, whilst providing substantially the same functionality. If such replacement or modification of the Certified Licenses cannot reasonably be implemented in the opinion of UC4, after due consideration to all factors including financial costs, UC4 may terminate this Agreement upon written notice to Customer and UC4 shall refund to Customer the unamortized portion of the license fee paid hereunder based on a five (5) year straight line depreciation. 8.3. This Section states the entire liability of UC4 with respect to any infringement caused by the Certified Licenses. 9. Severability The invalidity or unenforceability of any provision of this Agreement shall not affect the enforceability of the other provisions of this Agreement, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted and a commercially reasonable interpretation shall be given to the invalid or unenforceable provision so as to best reflect the commercial intent of the parties.. 10. Amendments Any amendment or modification to the contents or scope of this Agreement or any Order can be effective only if made in writing and signed by the duly authorized representatives of the parties. enemy, failure or delay in transportation, act of any government affecting the terms hereof, accident, fire, explosion, flood, severe weather or other acts of God. 14. Confidentiality Customer agrees to protect the Confidential Information (including the Software) and not to distribute, disclose, or allow access to the Confidential Information, in whole or in part, to any other entity or person, without the prior written consent of UC4. Customer agrees not to use Confidential Information (including the Software), except as expressly authorized by this Agreement. If Customer is required by law, regulation or court order to disclose Confidential Information, (including the Software) Customer shall promptly inform UC4 of such prior to any required disclosure and cooperate with UC4 in seeking any relief sought by UC4, and shall only make in any event such limited disclosure of Confidential Information (including the Software) as necessary, and not more, to be compliant therewith. Customer shall similarly ensure that its employees and other representatives are legally bound by similar limitations to those set forth herein. 15. Termination 15.1. This Agreement is effective upon the Effective Date and continues until terminated. The Certified License term for any Software will begin on the Effective Date and will expire at the end of the Term specified in the Order. Maintenance will be provided for an annual term, and will automatically renew for successive one-year renewal terms unless either party provides written notice to the other party of its desire to terminate Maintenance at least three (3) months prior to the renewal date or unless otherwise provided in the Order. 11. Assignment Customer shall not assign this Agreement or any of its rights and obligations under this Agreement without the prior written consent of UC4. Notwithstanding the foregoing, in case of an assignment without UC4 s consent, Customer (as assignor) shall remain jointly and severally responsible with the assignee for the due and punctual fulfillment of any assigned obligation. UC4 may assign this Agreement or its rights and obligations under it upon written notice to Customer. 12. Waiver Failure by either party to assert any of its rights under this Agreement shall not be construed as a waiver thereof. 13. Force Majeure Each party shall be excused from performance and shall not be liable for any delay caused by force majeure only for so long as such condition prevails. These contingencies include, but are not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, labor disturbance or shortage, act of public 15.2. This Agreement and any or all Orders may be terminated by UC4 upon thirty (30) days written notice if Customer fails to comply with any provision of this Agreement or any Order and does not cure such noncompliance in the thirty (30) day notice period. 15.3. This Agreement and any License granted hereunder shall also terminate at the election of UC4 upon: (i) a change in control of Customer in the form of a stock transfer or asset sale where the transferee does not assume this Agreement by written agreement in a form and substance acceptable to UC4, (ii) the inability of Customer to pay its debts when due, (iii) the filing of a bankruptcy petition, receivership or assignment for benefit of creditors initiated by or against Customer, or (iv) appointment of a trustee, receiver or such like person for Customer who is not in compliance with this Agreement and who does not expressly assume in writing this Agreement on behalf of the estate of Customer. 15.4. Upon termination of this Agreement for any reason, Customer shall promptly destroy or delete all copies of the Software in accordance with this Agreement, at UC4 s sole option and cease to use the Software. For the 4 Version August 2010
avoidance of doubt all Software license fees are nonrefundable in the event of any termination. 15.5. In addition to the provisions this Section, any provision that is by implication, nature or terms or its intended to continue after termination shall not be affected by the termination of this Agreement. 16. Export Controls Some countries have restrictions on the use of encryption within their borders, or the import or export of encryption even if for only temporary personal or business use. Customer acknowledges that Customer is ultimately responsible to comply with any and all government export and other applicable laws. In additions to the restrictions set out above, Customer agrees that Customer will not, directly or indirectly, export or transmit the Software or technical data to any country to which export or transmission is restricted by any applicable law or regulation. In addition, neither the Software and underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nations or the United States Commerce Department's Table of Denial Orders. By downloading or using the Software, Customer is agreeing to the foregoing and is certifying that Customer is not located in, under the control of, or a national or resident of any such country or on any such list. 17. Governing Law, Jurisdiction & Arbitration 17.1. The laws of the country and province/state in which the respective contracting UC4 entity is incorporated shall govern this Agreement. This Agreement excludes the United Nations Convention on Contracts for the International Sale of Goods. 17.2. Any action or claim brought in connection with this Agreement shall be brought only in the courts having jurisdiction for this UC4 entity, except that without limiting the application of the arbitration provision herein, 1) in the United Kingdom, all disputes relating to this Agreement will be governed by English Law and the parties will be subject to the to the jurisdiction of the English courts; and 2) in the United States of America and Canada, the laws of the State of Washington govern this Agreement and the parties will be subject to the jurisdiction of the state or federal courts having jurisdiction for Seattle, Washington. 17.3. When the Customer is incorporated outside the European Union or Switzerland the parties agree that any dispute arising out of or relating to the Agreement which cannot be resolved by the attempts made in good faith by and between the parties, shall be submitted to the International Court of Arbitration of the International Chamber of Commerce for final settlement in accordance with its Rules of Arbitration as in force when the dispute arises. The place of arbitration shall be Seattle, State of Washington when an Order is executed by UC4 Software, Inc or Vienna, Austria when an Order is executed by UC4 Software GmbH. 18. Entire Agreement & Effectiveness of the Agreement This Agreement and any documents expressly incorporated herein, constitute the entire agreement and understanding between the parties with respect to its and their subject matter. This Agreement supersedes and nullifies any proposal or exchange, oral or in writing, previously between UC4 and Customer. No amendments or modifications of this Agreement or any Order may be made except in writing, signed by both parties. Professional services may only be obtained by Customer pursuant to a separate contract between the parties. Where permitted by applicable law this Agreement or any Order may be executed in electronic form. Any conflict between the express terms of this Agreement and the express terms of any Order the express terms of the Order shall control. 5 Version August 2010
Signature Section Only Where Executed In Paper Form. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives [Customer name] [UC4] Name, Title Name, Title Signature Signature Date Date 6 Version August 2010