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Home My WebLink AboutContract 34103.. � � �p � J� :i �� tia-. � � �. : 0 1 8 �➢O _ � These Numara Software Inc. ("Numara Software") Software Maintenance Terms and Conditions govern Numara Software's provision of software maintenance and technical support services (together, the "Software Maintenance Services") in the United States and Canada pursuant to any applicable software support plan (the "Plan") purchased by its customers ("Plan Members" or "you"). The current Versions of the Plans are described in the applicable version of the Numara Software Guide to Software Maintenance Services (the "Guide to Software Maintenance Services"), available on Numara Software's website, which Numara Software may change from time to time without notice. By ordering and using Software Maintenance Services, you represent that you have read, fully understand and agree to the current version of the Guide to Software Maintenance Services. By purchasing a Plan for the software from Numara Software (the "Software"), you agree to be bound by the following terms and conditions. Your agreement is a material inducement for Numara Software to agree to provide Software Maintenance Services hereunder and it would not do so absent such agreement. Numara Software reserves the right to change the terms, conditions, features and pricing of its Plans from time to time. Numara Software will provide to you the Software Maintenance Services for the Plan purchased by you during the specified period, subject to these Terms and Conditions, and your timely payment of applicable maintenance and support fees. General Support Policies Technical Support Services. Plan Members under a currently paid technical support Plan are entitled to access Numara Software Technical Support resources. In such cases, Numara Software will use commercially reasonable efforts to assist you to cause the Software to perForm in all material respects in accordance with the applicable documentation for the Software. Software Maintenance. Numara Software may also, from time to time, provide software maintenance releases for its software programs (e.g., hot fixes or service packs) and, depending on the support Plan chosen, provide new product releases (e.g., update or version releases). Members on currently paid Plans are, subject to the features of the particular Plan, entitled to receive maintenance releases and/or product releases as Numara Software makes such generally available to other customers pursuant to that Plan. Maintenance releases or product releases do not include new derivations of the Software that Numara Software designates as new software products or new similar products for which Numara Software charges a separate license fee. You agree to promptly notify Numara Software of any problems or errors with the Software (including a description of such errors) and to answer questions and reasonably assist Numara Software in its efForts to duplicate any such errors or problems. However, Numara Software is under no obligation to provide Software Maintenance Services of any kind to correct any errors that cannot be reproduced or verified by it within a reasonable period of time or for problems in the operation or performance of the Software that are caused by a Customer-Generated Error (defined below). Unless otherwise required by law, rule, regulation, or court order, or other authorized ruling, Customer will not submit any information, documents, files, programs or other data to Numara Software that is confidential or proprietary to any third party, without first obtaining the authorized right to do so. As used in these Terms and Conditions, a"Customer-Generated Error" shall mean any problem in the operation or performance of the Software caused by any of the following: (a) non-Numara Software program or hardware products, or use of the Software in conjunction therewith; (b) modifications to the Software made by any party without Numara Software's express written authorization; (c) your use of the Software other than as authorized in these Terms and Conditions or as provided in the documentation; (d) your use of other than currently supported versions of the Software or any error corrections, updates or upgrades thereto provided by Numara Software; (e) you, or a third party, installs or implements the Software without Numara Software's recommended training or does so improperly; or (fl modifications to the Software's database structure and source files including but not limited to active server pages, html/dhtml, XML, Perl script files, Java script files and VB Script files. Numara Software reserves the right to limit or terminate Software Maintenance Services to a Plan Member_.,��V` �� the service in an unreasonable, excessive, abusive or fraudulent manner, as determined by Numara Soft� `�� sole discretion. Terms, conditions, support features, procedures, pricing and support availability for Plans: ' to change at any time without notice. Plan coverage is non-transferable and is valid for the PI � ��y��}� resale or other transfer of any Plan membershi ri hts is strictl rohibited. ��x R�"I �? ?� p �� g Y p 1'i. .ti�1U. �R� ...L, , For purposes of these Terms and Conditions, an "incidenY' means an application or technical support request that a Plan Member asks a support representative to analyze or resolve relating to: (a) installation of the Software, (b) product-usage or functionality questions for the Software, (c) upgrade assistance for the Software or (d) connection issues between the Software and supported database software. The technical support representative will determine how many incidents will be handled during the course of the telephone or electronic contact. Software Maintenance Services Plans Numara Software may choose to offer a variety of Plans. The specific features and benefits of any particular Plan are specified in the Guide to Software Maintenance Services, and may include telephone support, electronic submission of issues and questions to Numara Software, support forums, maintenance releases, toll-free phone support, priority routing of issues, expedited service for electronic submissions and product releases. Software Maintenance Services are limited to the term and business hours specified in the applicable Plan. Customers of the Software are encouraged to purchase a support Plan that best suits their needs, based on their data environment, available technical resources requirements, and version in use. When ordering a Plan, you will be asked to designate which of the Plans you are electing to receive and, in the absence of such a designation, we will suggest a Plan for you which may be the highest level Plan offered. Response time tracking generally begins after a Plan Member's call has entered the telephone support queue during Numara Software's published support hours. The foregoing shall not be deemed a representation or warranty on Numara Software's behalf regarding the time within which a resolution, if any, may be available for any particular incident. Plan Members must use a published Plan phone number in order to talk to a technical support representative within the published response time. The Guide to Software Maintenance Services describes Numara Software's current policies with respect to supporting current and past versions of the Software. Term and Termination Term. The Software Maintenance Services will commence on the Effective Date and will continue in force for twelve (12) months (the "Initial Term"). As offered below by this arrangement, your Software Maintenance Services would automatically renew for additional periods of one (1) year (each a"Renewal Term") unless you notify Numara Software in writing at the notice address specified below, of your intention to terminate the Software Maintenance Services at least thirty (30) days before the conclusion of the Initial Term or the then current Renewal Term ("Termination Notice"). Automatic Renewal. For the benefit of our customers desiring continuity of their technical support coverage, by selecting "Accept Auto-Renewal", your software maintenance services will continue for a successive twelve (12) month period following expiration of your current Plan, and you will be responsible for payment of the applicable software maintenance services fees, unless Numara Software receives a termination notice during the time specified herein. Automatic Renewal Opt-Out: If you prefer to be contacted annually for renewal of your technical support coverage, by selecting "Auto-Renewal Opt-Out", your software maintenance services will expire upon completion of your current Plan, and you will be responsible for any reinstatement costs after termination, as specified herein. Reinstatement after Termination. If you desire to resume Software Maintenance Services that previously expired or terminated, you must first pay (i) all applicable fees for previously unpaid time periods at Numara Software's current rates, determined by Numara Software in its sole discretion, and (ii) any applicable Plan fees for the applicable renewal period. Termination. Under certain Plans, Plan Members receive Software Maintenance Services for an unlimited number of incidents. If a Plan Member exceeds the reasonable usage of the Plan, as determined by Numar,a Software in its sole discretion, Numara Software may choose not to renew a Member's Plan after it has expired. y , Your failure to make timely payment of any Plan fees during the Initial Term or any Renewal T�g�� I�t�� , Numara Software's obligation to provide the Software Maintenance Services for the applicable s �� r��., n ��,�� L��`��: �1 � ^n�'�'�`l�it 4j,�� Refund Policy A Plan Member may cancel a Plan membership during the first 30 days after purchase or renewal and obtain a refund for the current membership period if it has not used any technical support under the Plan during such 30-day period. Limitation of Liability and Damages NUMARA SOFTWARE'S MAXIMUM LIABILITY, AND THE PLAN MEMBER'S SOLE REMEDY, FOR ANY CLAIM ARISING UNDER THE PLAN WILL BE THE REFUND OF AN AMOUNT NOT EXCEEDING THE APPLICABLE PLAN FEE PAID BY THE PLAN MEMBER FOR THE PLAN SUPPORT PERIOD DURING WHICH THE CLAIM AROSE. IN NO EVENT SHALL NUMARA BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES AND INFORMATION PROVIDED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. Telephone or Communications Charges Without limiting the generality of the foregoing, Numara Software is not responsible for long-distance telephone charges or other communication charges incurred in connection with your use of the Plan. Plan Member acknowledges that it is solely responsible for any and all such charges. Disclaimer of Warranties Software Maintenance Services from Numara Software are provided "as is." Except as otherwise expressly provided herein, Numara Software disclaims all representations and warranties, express and implied, regarding the software maintenance services or any related materials, including fitness for a particular purpose, quality, merchantability, accuracy, and non-infringement. Some states do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. In that event, any implied warranties are limited in duration to thirty (30) days from the first date of service. However, some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you. Privacy Statement Your use of the Plan is subject to Numara Software's privacy policies, as may be amended from time to time, as set forth in the Numara Software Privacy Statement at www.numarasoftware.com/privacv asp. By registering for this Plan, you consent to the use of your personally identifiable information in accordance with such privacy statement. Severability In the event any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, void or unenforceable, the parties agree that such provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Force Majeure A party whose performance is prevented, restricted, or interFered with by reason of a Force Majeure condition shall be excused from such perFormance to the extent of such Force Majeure condition so long as such party provides the other party with prompt written notice describing the Force Majeure condition and takes all reasonable steps to avoid or remove such causes of nonperformance and immediately continues perFormance whenever and to the extent such causes are removed. Notwithstanding the occurrence of a Force Majeure condition, Customer shall remain liable for the payment of any outstanding fees or for services rendered hereunder by Numara. Customer shall not represent to any person or entity that Numara is responsible for any delay or interruption of the Services provided to Customer resulting from a Force Majeure condition. Headings Section and subsection headings are included solely for convenience, are not to be considered a part of this Agreement and are not intended to be full and accurate descriptions of the contents thereof. Survival The sections entitled "Limitation of Liability and Damages" and "Miscellaneous Provisions" shall survive the termination of this Agreement. Miscellaneous Provisions These Terms and Conditions (including the applicable Guide to Software Maintenance Services, which is incorporated herein by reference) constitute the entire agreement between you and Numara Software with reference to your Software Maintenance Services, and there are no other prior or contemporaneous understandings, promises, representations, or descriptions relating to the subject matter hereof. These Terms and Conditions shall only be modified upon written notice by an authorized officer of Numara. Except as otherwise exnressly agreed to by fVumara Software, any additional or different terms in your communications, such as in preprinted terms and conditions on purchase orders, are hereby deemed to be material alterations and notice of objection and rejection of them is hereby given. These Terms and Conditions do not limit any rights that Numara Software may have under trade secret, copyright, patent, trademark or other laws. If any provision of these Terms and Conditions is invalid or unenforceable under applicable law, then it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. No decision, action or inaction by Numara Software shall be construed to be a waiver of any rights or remedies available to it. These Terms and Conditions (and each warranty contained herein) are made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with these Terms and Conditions. These Terms and Conditions and shall be construed as to its fair meaning and not strictly for or against either party. You may not assign, sublicense, delegate or transfer all or any portion of your rights or responsibilities under these Terms and Conditions, by operation of law or otherwise, without Numara Software's prior written consent. Any attempts to do so shall be void and constitute a material breach of these Terms and Conditions. Numara Software may freely assign, sublicense, delegate or transfer all or any portion of its rights or responsibilities under these Terms and Conditions by operation of law or otherwise. All Terms and Conditions shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Any notice to be given hereunder will be in writing and given by facsimile, postpaid registered or certified mail return receipt requested. The date of receipt shall be deemed the date on which such notice is given. Notice to you will be directed to the contact information set forth in the Order. Notice to Numara Software will be directed to: Numara Software, Inc. Attention: Customer Service 2202 N. West Shore Boulevard Suite 650 Tampa, FL 33607 d �--,-{� �Np:;,1 ;r�,M�'j, CT � � � �� il_�1 � ,��,� �C kV 1.J� �,; G � �,a; n ar �ii� ��:�� , ��:��, ��. CITY OF FORT WOR - By: Marc Ott Assistant City Manager Date: �'� � _��•` � M&C: not required APPROVED AS TO FORM AND LEGALITY: «, F By��, �� , .'�� ;- ti�.� <;\ Assistant City Attorney Date: ! =' � �'_ � �; ; � -. � =. : �-� � ��i, r �� I� � �.�,.__.� _ . . _ _ �_�..��t �.._:�'�` ��iry �ecx��r.az-; i'�� `�� :�� °�� , � ,.. .,.. ��:��ti a:'��v��o, �i�� ;�i� ��,�,��1 ppQ� n�e.,..-�pp U', qp �q( 7 �� 'L'�L`�\JVGf YIII�) Y�GU� SOFTWARE LICENSE AGREEMENT IMPORTANT NOTICE: This agreement (the "Agreement") sets forth the terms and conditions for licensing and use of the Software from Numara Software, Inc. ("Numara Software") to you, and by clicking the "yes" or "I accept" button and/or installing and using the Software indicates that you have read and understand this Agreement and accept its terms and conditions. If you purchased a license to the Software in the United Kingdom, for purposes of this Agreement, "Numara Software" shall mean Numara Software Limited, a company organized under the laws of the United Kingdom with its registered address at 43-45 Devizes Road, Swindon SN1 4BG, United Kingdom. Numara Software reserves the right to change the terms, conditions and pricing relating to the future licensure of its products, software and other intellectual property rights from time to time. This Agreement applies to both the full and evaluation versions of the Software. Do not use the Software until you have carefully read all of terms and conditions of this Agreement. Technical support services or training and implementation services for the Software may be available either directly from Numara Software or through an authorized reseller for an additional fee and pursuant to a separate services agreement. Visit the Numara Software Web site at URL http://www.numarasoftware.com/support for details. DEFINITIONS: As used herein, "Software" is defined as the machine-readable, object code version of the Numara Software computer program with which this software license agreement is included and any product updates and product upgrades thereto, as well as any associated media and printed materials, which may include online or electronic documentation. Software may include active server pages, html/dmtl, XML, Java script files and VB Script files in both machine-readable object code and human-readable source code format. Software does not include any third party programs you license through Numara Software. "Server" means a computer that provides services to other computers; examples include file servers, database servers, web servers and application servers. "Node" means a computer, workstation, desktop, Server or other device connected to and accessible through a network. "Client" means a computer used to access a Server. "Concurrent Use" means access, directly or indirectly, by a licensed user of the Software executing on a Server. "Order" means the Numara Software quote or proposal form signed by you and Numara Software or, if you have purchased a license through an authorized reseller of the Software, the ordering document you executed between you and the reseller. LICENSE GRANT AND CERTAIN RESTRICTIONS: Subject to the terms of this Agreement (including, without limitation, the payment of applicable license fees), you may use the Software pursuant to the terms of the particular license(s) you have acquired as defined below. Unless otherwise expressly authorized by Numara Software, Numara Software grants to you, and you accept, the non-exclusive, non- sublicenseable, non-transferable limited right to use the Software on a single computer and only in accordance with the following terms: Named User License: If you purchased a single-user edition or a standard edition license through an authorized retailer, or if the Order designates the license type as "Named," the Software may only be used by the individual designated by the administrator as the "Named User" for that copy of the Software. Access to the Software is limited to the Named User. Node Licenses: If you purchased a single-user edition or a standard edition license through an authorized retailer, or if the Order designates the license type as "Node," you must acquire a separate Software license for each Node on which the Software is to be installed or from which the Software functionality will be accessed or utilized. Each Client that accesses the Server must also be separately licensed. .�_� ��.� �r.�,., p,p, `'� � ��U � �,�� rr�,�;%1 �� g �� G,•., �.[[[,f'1'11 U . � �'N�'C/Y� �. `:i1: � � 0�'i� Server Licenses: If the Order designates the license type as "Server," you must acquire a separate Software license for each Server on which the Software is to be installed. Each Client that accesses the Server must also be separately licensed. Concurrent Use License: If the Order designates the license type as "Concurrent Use" or "CCU," you are only authorized to permit the Concurrent Use of the Software installed on a Server by the number of Clients for which you have purchased Concurrent Use Licenses. The Software may contain codes that enforce Concurrent Use restrictions. You may only Use the Software installed on the Server if the Use of the Software on such Server is properly licensed and complies with the conditions and restrictions (including any Concurrent Use restrictions) of such Server license. Evaluation Licenses: If you have received an evaluation version of the Software you may only use the Software for your internal trial or demonstration purposes. You may print one copy of any online user documentation provided in connection with your evaluation copy. The evaluation Software may have limited functionality or may contain a time out feature that will cause the Software to be disabled and non-functional after the end of the use period, usually fifteen (15) days from installation, or as otherwise designated by Numara Software in its sole discretion. BY YOUR USE OF THE EVALUATION VERSION OF THE SOFTWARE YOU UNDERSTAND AND AGREE THAT OPERATION OF THE SOFTWARE MAY TERMINATE UPON EXPIRATION OF THE DESIGNATED TIME PERIOD. IF SO, YOU WILL NOT BE ABLE TO CONTINUE TO ACCESS AND/OR USE THE SOFTWARE OR ANY DATA YOU HAVE ENTERED INTO SUCH SOFTWARE UNLESS YOU OBTAIN AN UPDATED EVALUATION VERSION FROM NUMARA SOFTWARE OR PURCHASE A LICENSE FOR THE FULL VERSION OF THE SOFTWARE. GENERAL LICENSE RESTRICTIONS: You may make one (1) back up copy of the object code of the Software for archival purposes only. You must reproduce all copyright and other proprietary or restricted rights notices in the original Software on all authorized copies. You may not copy any of the books or printed materials provided in connection with the Software. Except as expressly provided herein, making additional copies of the Software, or enabling others to use your registration code(s) or serial number(s), if any, is strictly prohibited. It is also prohibited to install the Software on computers used by individuals who have not purchased the appropriate licenses for the Software from Numara Software; or to duplicate the Software by any other means including electronic transmission. The Software contains Numara Software trade secrets and may contain active server pages, html/dmtl, XML, Java script files and VB Script files in human-readable source code format, both of which you may not disclose, and you agree to take reasonable steps to protect the Software from unauthorized copying, use or disclosure. You may not decompile, reverse engineer, disassemble, create derivative works based on the Software, or otherwise reduce the Software to human-perceivable form or disable any licensing, anti-piracy or other control features of the Software. Except to the extent expressly permitted herein, you may not: permit other individuals to Use the Software; permit Concurrent Use of the Software; rent, resell, distribute, sublicense (including offering to or using the Software on behalf of third parties on an applications service provider, service bureau, outsourcing, subscription, time-sharing or other similar basis), lease, grant a security interest in, or otherwise transfer or assign any rights to the Software; or remove any proprietary notices or labels on the Software. Except as expressly authorized by Numara Software, you may not combine or integrate the Software with or into any other software programs or services. OWNERSHIP: You acknowledge and agree that Numara Software owns all right, title, and interest in and to the Software and related Documentation and all copyrights, patents, trademarks, service marks, trade secrets, and other intellectual property rights relating thereto. You further acknowledge and agree that, except for the limited licenses expressly granted herein, nothing in the Agreement effects any transfer of any such rights, title or interest in or to the foregoing from Numara Software to You. You shall reimburse Numara Software for any and all expenses that Numara Software may incur (including interest, attorneys' fees and other legal expenses) in connection with Numara Software's efforts to enforce its rights against you with respect to the Software or any of Numara Software's intellectual property rights in the event Numara Software prevails in such enforcement efforts. THIRD PARTY PRODUCTS, SERVICES AND CONTENT: Your use of any third party's products, services or content accessed through the Software shall be governed by any agreement entered between you and such third party, and Numara Software shall have no liability relating thereto. Additionally, unless otherwise expressly provided, any support or services for any third party programs must be separately contracted for by you with the applicable vendor and are not covered by the Agreement. Any non-Numara Software materials ("Third-Party Content") you access via the Software (on-line or otherwise) is the property of the applicable owner and may be protected by applicable copyright law. This Agreement grants you no rights to Third-Party Content. Internet access is required for use of the Software. Your license fee does not include access to the Internet and Numara Software will not be held liable for any connection failure to the Internet, nor does Numara Software warrant access to the Internet or to any other service or content or data through the Software. PAYMENT: Unless otherwise expressly provided, you shall pay Numara Software any fees and expenses for the use of the Software in U.S. currency in the amounts specified within thirty (30) days of the date of Numara Software's invoice. If you fail to timely pay any amount due under the Agreement, you, upon demand, shall pay, in addition, interest at the rate of 1 1/2s per month, but not to exceed the maximum allowed by law, on such delinquent amount from the due date thereof until the date of payment. In addition to any fees owed pursuant to the Agreement, you shall reimburse Numara Software for the following costs and expenses: (i) shipping and transportation charges for all shipments of software, documentation and supplies; and (ii) all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with the Agreement or your receipt or use of the Software, except for taxes based on Numara Software's net income. In the event that Numara Software is required to collect or pay any tax for which you are responsible, you will pay such tax directly to Numara Software. If you pay any withholding taxes that are required to be paid under applicable law, you will furnish Numara Software with written documentation of all such tax payments, including receipts. You shall reimburse Numara Software for any and all expenses that Numara Software may incur (including interest, attorneys' fees and any expenses) in connection with Numara Software's efforts to collect any amounts due Numara Software hereunder. LIMITED WARRANTY: If you reject this Agreement or are not satisfied with the Software, you may (i) obtain a refund of the purchase price of the Software or the Software upgrade (as applicable), or (ii) request replacement Software in the event you identify that the Software media is defective, provided that, in each case, you return to the point of purchase the Software, any accompanying documentation and dated proof of purchase within thirty (30) days from the date of purchase of the Software. THE FOREGOING SETS FORTH NUMARA SOFTW �-- v� ,r{a °. R �,, � �� A � ^i ��V��;1� T:�Vs��k� � �1� ��'�'�� ` 7 `�1:�i,� �,:P�� e�: an �gjf' g np i L':`rV�':U�� 6��U� LIABILITY AND YOUR EXCLUSIVE REMEDIES IN RELATION TO DEFECTS IN MEDIA OR YOUR DISSATISFACTION WITH THE SOFTWARE. WARRANTY DISCLAIMER: EXCEPT AS PROVIDED ABOVE, THIS SOFTWARE AND ANY RELATED SERVICES OR CONTENT ACCESSIBLE THROUGH THE SOFTWARE ARE PROVIDED "AS-IS," AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NUMARA SOFTWARE DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THIS SOFTWARE, THE PHYSICAL MEDIA ON WHICH IT RESIDES, THE RELATED MATERIALS AND ANY SUCH SERVICES OR CONTENT, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, THEIR QUALITY, THEIR SECURITY, THEIR MERCHANTABILITY, OR THEIR NONINFRINGEMENT. NUMARA SOFTWARE DOES NOT WARRANT THAT THE SOFTWARE OR ANY RELATED SERVICES OR CONTENT IS FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS NOR DOES NUMARA SOFTWARE WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT THROUGH THE SOFTWARE OR CONTINUED ACCESS TO THE EVALUATION VERSION OF THE SOFTWARE OR TO THE DATA ENTERED INTO THE EVALUATION VERSION OF THE SOFTWARE AFTER THE EXPIRATION OF THE TIME OUT FEATURE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, TO THE EXTENT YOUR JURISDICTION PERMITS SUCH LIMITATIONS, ANY IMPLIED REPRESENTATIONS, WARRANTIES, AND/OR TERMS OR CONDITIONS ARE LIMITED IN DURATION TO ONE HUNDRED AND TWENTY (120) DAYS FROM THE DATE YOU PURCHASED THE SOFTWARE OR TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW, IF LONGER.THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS AS WELL, WHICH VARY FROM STATE TO STATE. LIMITATION OF LIABILITY AND DAMAGES: THE ENTIRE LIABILITY OF NUMARA SOFTWARE AND ITS REPRESENTATIVES (AS DEFINED BELOW) FOR ANY REASON SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NUMARA SOFTWARE AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS OR SUPPLIERS ("REPRESENTATIVES") ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO: DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, LOSS OF DATA, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF NUMARA SOFTWARE OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME STATES MAY NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN NUMARA SOFTWARE AND YOU. NUMARA SOFTWARE WOULD NOT BE ABLE TO HAVE PROVIDED THIS SOFTWARE OR SERVICES WITHOUT SUCH LIMITATIONS. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR BACKING UP YOUR DATA AND FILES, AND YOU HEREBY RELEASE NUMARA SOFTWARE FROM ANY LIABILITY OR DAMAGES ARISING OUT OF, OR RELATED TO, THE LOSS OF ANY SUCH DATA OR FILES. NUMARA SOFTWARE HAS NO LIABILITY FOR THE PERFORMANCE OF THIRD PARTIES INCLUDING ITS INDEPENDENT AGENTS, DISTRIBTORS, RESELLERS AND SERVICE PROVIDERS THAT PROVIDE SALES, TECHNICAL SUPPORT AND OTHER SERVICES RELATING TO THE SOFTWARE. EXPORT CONTROL: You acknowledge and agree that the Software is subject to restrictions and controls imposed by the Export Administration Act of 1979, as amended, and the Export Administration Regulations thereunder (the "Acts"). You agree and certify that neither the Software nor any direct product thereof are being or will be used for any purpose prohibited by the Acts. You further agree and certify that neither the Software nor any direct product thereof will be exported to (i) the following countries which are currently subject to U.S. trade embargoes: Cuba, Iran, Libya, North Korea, Sudan and Syria, (ii) persons or entities on the U.S. "Denied Persons List", "Specially Designated Nationals List" and "Entities List," or, (iii) otherwise in breach of United States laws and regulations related to exports and to all administrative acts of the US Government pursuant to such laws and regulations. By downloading and/or installing and/or using the Software, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any country or on a list in breach of this Section. In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable. U.S. GOVERNMENT END USERS: The Software is a"commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein. Numara Software, Inc., 2202 N. Westshore Blvd., Suite 650, Tampa, FL 33607. TERM OF AGREEMENT: Your license under this Agreement is effective until terminated. You may terminate this license at any time such as by destroying the Software and all copies thereof. Numara Software may terminate this license and Agreement immediately and without notice to you if you breach any of the provisions of this Agreement. In addition to the foregoing, if you have received an evaluation version of the Software, you agree that Numara Software may modify the license terms or terminate the license at any time for any reason at its sole discretion. Upon any such termination, you must pay Numara Software for all unpaid fees and expenses, discontinue all use of the Software, and immediately destroy the Software together with all copies, and uninstall the Software from any computers on which you have installed the Software. The provisions of this Agreement (other than your license to use the Software) shall survive the termination of the license, or any termination or expiration of this Agreement. MISCELLANEOUS PROVISIONS: This Agreement constitutes the entire agreement between you and Numara Software with reference to this transaction and your licensing of the Software, and there are no other prior or contemporaneous understandings, promises, representations, or descriptions relating to the subject matter hereof. � The terms of the Agreement shall only be modified in a writing signed by an authorized officer or employee of each party. Except as otherwise expressly agreed to by Numara Software, any additional or different terms in the your communications, such as in preprinted terms and conditions on purchase orders, are hereby deemed to be material alterations and notice of objection and rejection of them is hereby given. This Agreement does not limit any rights that Numara Software may have under trade secret, copyright, patent, trademark or other laws. Notwithstanding any contrary statement herein, if you purchased your license to the Software in the United Kingdom: (i) this Agreement will be governed by the laws of the United Kingdom (without reference to choice of law principles); (ii) in the event of a dispute involving this Agreement, the parties consent to the non-exclusive jurisdiction of the English courts, and (iii) this Agreement shall be deemed to have been entered into in the United Kingdom. Regardless of where you purchased your license, the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. r-.- ,:,, -, � Y�� G;;'L �i�v;J!�1'�' �' �i.'' i � �'�i�.> a?L�;: J � �� `�"J':`.�i , �'�c;;�, If any provision of this Agreement is invalid or unenforceable under applicable law, then it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. No decision, action or inaction by Numara Software shall be construed to be a waiver of any rights or remedies available to it. The Agreement (and each warranty contained herein) is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with the Agreement. You may not assign, sublicense, delegate or transfer all or any portion of its rights or responsibilities under this Agreement, by operation of law or otherwise, without Numara Software's prior written consent. Any attempts to do so shall be void and constitute a material breach of the Agreement. Numara Software may freely assign, sublicense, delegate or transfer all or any portion of its rights or responsibilities under the Agreement by operation of law or otherwise. Any assignment of this Agreement by Numara Software in connection with a sale of its business shall relieve Numara Software from any further liability hereunder. Al1 the terms and provisions of the Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Any notice to be given hereunder will be in writing and given by facsimile, postpaid registered or certified mail return receipt requested, or electronic mail. The date of receipt shall be deemed the date on which such notice is given. Notice to you will be directed to the contact information set forth in the Order. Notice to Numara Software will be directed to Numara Software, Inc., 2202 N. Westshore Blvd., Suite 650, Tampa, FL 33607., Attn: General Council, Phone: (813) 227-4500, Fax: (813) 227-4501. If you purchased your license to the Software in the United Kingdom, please direct your questions to: Numara Software Limited, 43-45 Devizes Road, Swindon SN1 4BG, United Kingdom. �, �, ,� � � , �r��.>>i;:'l a:��J�'�D �`,� :.a�/.-�,,q,l �?'ii �c;S�� a'c' �?� � r:� Pc � �::-: P•. � ��q ^*,'r��il'i�;;?,il SfI;<`��! 1 i r.� �`?: ': 'Tt � U:: 4'+. n