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TRIFECTIX MASTER LICENSE AGREEMENT

TERMS AND CONDITIONS

These Terms and Conditions, together with any Orders, and any other materials attached or incorporated by reference, constitute the entire agreement (the “Agreement”) between Trifectix, Inc., having its principal place of business at 715 Discovery Blvd., Suite 411, Cedar Park, TX 78613 (“Trifectix”) and the customer specified in the Order (“Customer”), and apply to the Trifectix software product set forth in the Order, including code, object code, scripts, files, and any software-related files or code as made available by Trifectix, and any subsequent update Customer receives of the foregoing, together with any included documentation (collectively, the “Software”).

This Agreement is divided into three parts:  Part I:  Terms and Conditions Applicable to Trial Licenses; Part II:  Terms and Conditions Applicable to Software Licenses; and Part III: General Terms and Conditions.  ALL RIGHTS GRANTED TO CUSTOMER UNDER PART II WILL BE SUBJECT TO PAYMENT OF APPLICABLE FEES.

PART I:  TERMS AND CONDITIONS APPLICABLE TO TRIAL LICENSES

1. Trial License. Customer may enter into a Trial License (as defined below) for the Software subject to the terms and conditions of this Agreement by placing an order (“Trial Order”). Pursuant to the Trial Order, Trifectix hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive, royalty-free license to use the Software for the number of Servers (defined below) set forth in a Trial Order in accordance with the accompanying documentation solely for Customer’s internal evaluation purposes (“Trial License”) for a period defined in the Trial Order and commencing on the effective date of the Trial Order (“Trial Period”).  Once the Trial Period has expired, Customer will have the option to continue use of the Software through a purchased Subscription License or Perpetual License (both as defined below), otherwise the Trial License will expire and this Agreement will terminate and the terms of Part III, Section 9 (Term and Termination) below will apply with respect to such termination.
2. Warranty Disclaimer. DURING THE TRIAL PERIOD, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
3. Limitation of Remedies and Damages. DURING THE TRIAL PERIOD, NEITHER TRIFECTIX NOR ITS THIRD PARTY LICENSORS WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER RELATING TO THE SOFTWARE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (a) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (b) FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. NOTHING IN THIS PART I WILL LIMIT TRIFECTIX’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY TRIFECTIX’S NEGLIGENCE OR TRIFECTIX’S LIABILITY FOR FRAUD. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY.  NOTHING IN THIS AGREEMENT WILL LIMIT TRIFECTIX’S LIABILITY FOR (i) FRAUD OR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY TRIFECTIX’S NEGLIGENCE OR (ii) WITH RESPECT TO TRIFECTIX’S OBLIGATIONS UNDER PART III, SECTION 5 (INDEMNIFICATION) BELOW.  The provisions of this Agreement allocate the risks between Customer and Trifectix.  Trifectix’s pricing reflects this allocation of risk and the limitations of liability specified herein

PART II:  TERMS AND CONDITIONS APPLICABLE TO
SOFTWARE LICENSES

1. Applicability. The terms and conditions of this Part II will supersede the terms and conditions of Part I for Customer’s Orders of Subscription Licenses and/or Perpetual Licenses, and the terms and conditions of Part II will continue to apply.
2. Orders. Customer will place orders for Subscription Licenses and/or Perpetual Licenses pursuant to a mutually executed order form between the parties (each, an “Order”).
3. License Grant.

(a)        If Customer has elected to license the Software for a limited subscription term, then subject to the terms and conditions of this Agreement, Trifectix grants Customer a non-sublicensable, non-transferable, non-exclusive license (“Subscription License”) for a limited term as set forth on the Order (“Subscription Term”) to use the Software provided hereunder for internal use only in accordance with the documentation provided with the Software for the number of Servers set forth in an Order.  Other license rights, terms and restrictions specified in the applicable Order are incorporated by reference into this Section 3. In the case of multiple Orders for Subscription Licenses with potentially overlapping Subscription Terms, Trifectix may adjust subsequent Orders to be coterminous with the initial Subscription License Order and pro-rate Subscription License Fees accordingly.

(b)        If Customer has elected to license the Software for a perpetual term, then subject to the terms and conditions of this Agreement, Trifectix grants Customer a non-sublicensable, non-transferable, non-exclusive license (“Perpetual License”) for a perpetual term as set forth on the Order (“Perpetual Term”) to use the Software provided hereunder for internal use only in accordance with the documentation provided with the Software for the number of Servers set forth in an Order.  Other license rights, terms and restrictions specified in the applicable Order are incorporated by reference into this Section 3.

4. Payment.

(a)        All rights granted to Customer and obligations of Trifectix under this Part II will be subject to payment of applicable fees due upon the effective date of the Order (“Fees”).  If an executed Order contains different payment terms, then those terms will apply. Except as set forth in Section 5 (Limited Warranty) of this Part II and Section 5 (Indemnification) of Part III below, all Fees due hereunder are nonrefundable.  All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties.  Customer will pay all such taxes and duties, except for taxes payable on Trifectix’s net income.  Except for invoices disputed in good faith, all past due amounts will incur interest at a rate equal to the lower of 1.5% per month or the highest rate permitted by law, beginning as of 15 days after the applicable due date.

(b)        If at any time Customer is delinquent (including during any grace periods) in the payment of Fees or if Trifectix or any third party payment processor working on behalf of Trifectix cannot charge Customer’s credit card or other payment method for any reason, Trifectix may, in its sole discretion, terminate any Software licenses and other services related to such unpaid Fees.  Customer expressly agrees that Trifectix and/or Trifectix’s third party payment processor is permitted to bill Customer for the applicable Fees, any applicable tax and any other charges Customer may incur in connection with the Software and services under this Agreement, and the Fees will be charged to Customer’s credit card or other payment method designated on Customer’s initial registration (as updated by Customer from time to time) with Trifectix. If Customer has a balance due on any account, Customer agrees that Trifectix and/or its third party payment processor may charge such unpaid fees to Customer’s credit card or other payment method or otherwise bill Customer for such unpaid Fees. Customer will pay all costs (including attorneys’ fees) incurred by Trifectix in collecting any unpaid Fees from Customer.

(c)        Customer’s information collected by Trifectix or any third party payment processor working on behalf of Trifectix may include, without limitation, Customer’s credit card billing information. Trifectix or any third party payment processor working on behalf of Trifectix will use this financial information, including Customer’s name, address, and other information to bill Customer for use of the Software and services licensed and purchased under this Agreement. By making a purchase, or engaging in any other kind of activity or transaction that uses financial information on Trifectix’s website, Customer consents to Trifectix’s provision of Customer’s financial information to Trifectix’s service providers and to such third parties as Trifectix determines necessary to support and process Customer’s activities and transactions, as well as to Customer’s credit card issuer for its purposes. These third parties may include the credit card companies, data processing companies and banking institutions used to process and support Customer’s transactions or activities.

5. Limited Warranty. Trifectix warrants for a period of 90 days from the earlier of (a) Customer’s download of the Software from Trifectix’s website or (b) the delivery to Customer of a download link for the Software and accompanying password or ID, if any (“Warranty Period”) that the Software will materially conform to Trifectix’s then-current user documentation for such Software. This warranty covers only problems reported to Trifectix during the Warranty Period. Any liability of Trifectix for a breach of the foregoing warranty will be limited exclusively to Software repair or replacement or, if repair or replacement is commercially impractical, refund of the Subscription License Fees or Perpetual License Fees, as applicable, paid for the Software. EXCEPT FOR THE FOREGOING, ALL SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, TRIFECTIX DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE IS BUG FREE OR THAT ITS USE WILL BE UNINTERRUPTED.
6. Limitation of Remedies and Damages. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OR OTHERWISE, NEITHER TRIFECTIX NOR ITS THIRD PARTY SUPPLIERS WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (a) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO TRIFECTIX BY CUSTOMER WITH RESPECT TO THE SOFTWARE DURING THE SIX MONTH PERIOD BEFORE THE CAUSE OF ACTION AROSE, (b) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (c) FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES; (d) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (e) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY. NOTHING IN THIS AGREEMENT WILL LIMIT TRIFECTIX’S LIABILITY FOR (i) FRAUD OR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY TRIFECTIX’S NEGLIGENCE OR (ii) WITH RESPECT TO TRIFECTIX’S OBLIGATIONS UNDER SECTION 5 (INDEMNIFICATION) Part III BELOW.  The provisions of this Agreement allocate the risks between Customer and Trifectix.  Trifectix’s pricing reflects this allocation of risk and the limitations of liability specified herein.
7. Support and Maintenance. Trifectix will provide Software maintenance and support services to Customer in accordance with Trifectix’s then-current standard Software Maintenance Program, set forth in Attachment A during Trifectix’s business hours (a) at no additional charge for Subscription Licenses during the applicable Subscription Term, and (b) at Trifectix’s then-current rates for Perpetual Licenses.

PART III:  GENERAL TERMS AND CONDITIONS

1. Server. The term “Server” means a single computing system, including but not limited to a primary network server, a fail over server, or a virtual (or otherwise emulated) server, on which the Software is installed.
2. Confidentiality.

(a)        Each party acknowledges on its own behalf and on behalf of its officers, directors, employees, agents and consultants, and those of its affiliates (“Personnel”), that, during the term of this Agreement, it (“Receiving Party”) may receive from or on behalf of the other party (“Disclosing Party”) confidential and proprietary information relating to the Disclosing Party (“Proprietary Information”). The Software and the documentation and other business, technical and financial information disclosed by Trifectix to Customer will be considered Trifectix’s Proprietary Information.  Business, technical and financial information disclosed by Customer to Trifectix will be considered Customer’s Proprietary Information.  Proprietary Information will not include information that: (i) becomes public without breach of this Agreement by the Receiving Party or its Personnel, (ii) was previously and rightfully in the Receiving Party’s possession (in written or other recorded form) with no obligation to maintain confidentiality, (iii) becomes known to the Receiving Party from a third party without restriction on use or disclosure and without a breach of a confidentiality obligation by such third party, and otherwise not in violation of the Disclosing Party’s rights, or (iv) was developed by the Receiving Party independently of, and without use or reference to, the Disclosing Party’s Proprietary Information.  The Receiving Party will only permit access to Proprietary Information to those of its Personnel (A) who require access thereto for a purpose authorized by the Agreement and (B) who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.

(b)          During and after the term of this Agreement, the Receiving Party will (i) hold the Disclosing Party’s Proprietary Information in confidence and use the same degree of care to protect the Disclosing Party’s Proprietary Information as it uses for its own Proprietary Information of like importance but in no event using less than a reasonable standard of care, (ii) not divulge any such Proprietary Information or any information derived therefrom to any third person except as authorized hereunder, (iii) not make any use of such Proprietary Information except to carry out its rights and obligations under this Agreement, and (iv) not copy (except as necessary to carry out its rights and obligations under this Agreement).  During the term of this Agreement and for three years after its termination, neither party will disclose to any third party the specific terms of this Agreement (including any Orders) without first obtaining the written consent of the other party.

(c)        The Receiving Party may disclose Proprietary Information pursuant to the order or requirement of a court, administrative agency, or other governmental body; to the extent allowed by law, the Receiving Party will give reasonable notice to the Disclosing Party to allow the Disclosing Party the opportunity to contest such order or requirement or seek confidentiality treatment. Each party may disclose the terms and conditions of this Agreement (i) on a confidential basis to legal or financial advisors, (ii) pursuant to a registration report or exhibits thereto required to be filed with the Securities and Exchange Commission, listing agency or any state securities commission, or any other associated filings, or (iii) on a confidential basis in connection with any financing transaction or due diligence inquiry.

3. Restrictions. Except for one copy made solely for back-up purposes, Customer may not copy the Software. Customer must reproduce and include the copyright notice and any other notices that appear on the original Software on any copies and any media therefore. Customer will not (and will not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the Software by any means whatsoever; (b) remove any Software identification, copyright or other notices; (c) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software to or for the benefit of third parties; (d) modify, incorporate into or with other software or create a derivative work of any part of the Software; (e) disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; or (e) remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If Customer is an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, and any related documentation of any kind, including technical data, licensed under this Agreement, is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies. The Software and documentation licensed in this Agreement are commercial computer software and commercial computer software documentation.  The use of the Software licensed under this Agreement is further restricted in accordance with the terms of this Agreement, or any modification thereto. The Software is licensed on the open market at market prices, and was developed entirely at private expense and without the use of any U.S. Government funds.  Contractor/Manufacturer is Trifectix, Inc., 715 Discovery Blvd., Suite 411, Cedar Park, Texas 78613.
4. Ownership. Customer’s rights in the Software will be limited to those expressly granted in this Agreement.  Trifectix reserves all rights and licenses in and to the Software not expressly granted to Customer under this Agreement. The Software is licensed, not sold.
5. Indemnification.

(a)        Trifectix will defend, at its expense, any action brought against Customer to the extent that it is based upon a claim that the Software, as provided by Trifectix to Customer under this Agreement and used within the scope of this Agreement, infringes any third party copyright or trade secret or any U.S. patent, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer or agreed upon by Trifectix in settlement, provided that Customer:  (i) promptly notifies Trifectix in writing of the claim, (ii) grants Trifectix control of the defense and settlement of the claim, and (iii) provides Trifectix with assistance, information and authority reasonably requested by Trifectix for the defense and settlement of the claim.  Customer may engage counsel of its choice at its own expense.   Trifectix will not be liable for any settlement of an action effected without its written consent (which consent will not be unreasonably withheld), nor will Customer settle any such action without the written consent of Trifectix (which consent will not be unreasonably withheld).

(b)        If Customer’s use of any of the Software hereunder is, or in Trifectix’s opinion is likely to be, enjoined due to the type of infringement specified in Section 5(a) above, or if a claim is brought against Customer due to the type of infringement specified in Section 5(a) above, then Trifectix may, at its sole option and expense:  (i) procure for Customer the right to continue using such Software under the terms of this Agreement, or (ii) replace or modify such Software so that it is non-infringing and substantially equivalent or better in function to the enjoined Software, or (iii) if options (i) and (ii) above cannot be accomplished despite Trifectix’s commercially reasonable efforts, then Trifectix may terminate the Subscription License or the Perpetual License at issue and (A) if a Subscription License is at issue, then Trifectix will refund to Customer a pro-rata amount of the pre-paid Subscription License Fees for such Software corresponding to the portion of the then-current Subscription Term for such Software after the date of such termination; or (B) if a Perpetual License is at issue, then Trifectix will refund to Customer the unamortized portion of the Perpetual License Fees paid hereunder for such Software, based upon a straight-line three year depreciation commencing as of the date such Perpetual License was granted to Customer.

(c)        Notwithstanding the terms of Section 5(a) above, Trifectix will have no liability for any infringement claim of any kind to the extent it results from: (i) software, equipment, devices, processes or materials not supplied by Trifectix,  (ii) modification or alteration of the Software by Customer or any third party, without Trifectix’s express written authorization and direct supervision, (iii) the combination, operation or use of any Software supplied hereunder with equipment, devices or software not supplied by Trifectix to the extent such a claim would have been avoided if the Software were not used in such combination, (iv) Customer’s continuing such allegedly infringing activity after being informed by Trifectix and provided, at no additional charge, with modifications that would have avoided the alleged infringement, (v) Customer’s use of such Software in breach of this Agreement, or (vi) Customer’s use of the Software after the termination of the applicable Subscription Term or this Agreement.

(d)        THE FOREGOING PROVISIONS OF THIS SECTION 5 SET FORTH TRIFECTIX’S SOLE LIABILITY AND OBLIGATIONS, AND CUSTOMER’S SOLE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE.

6. High Risk Activities. The Software provided hereunder is not designed, manufactured or intended for use or resale in, or for incorporation into products or services used in, on-line control equipment in hazardous environments or high risk applications regarding fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, mass transit, patient care activities, or weapons systems, or in any other inherently dangerous applications in which the failure of the Software could lead directly to death, personal injury, or severe physical, property or environmental damage (“High Risk Activities”).  Trifectix and its licensors specifically disclaim any express or implied warranty of fitness for High Risk Activities.
7. Assignment. Except in connection with a change of control, change in majority ownership or the sale of all or substantially all of the assets of Customer, Customer will not assign or transfer any of Customer’s rights or obligations under this Agreement without the prior written consent of Trifectix.  Any attempted assignment in violation of this section will be void.  Trifectix may at any time and without Customer’s consent assign all or a portion of its rights and duties under this Agreement.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
8. Open Source Licenses. Any open source software provided hereunder will be provided pursuant to such open source software license terms and conditions.  The license terms associated with open source software require that Trifectix provide copyright and license information to Customer.  A list of the open source software included in the Software or otherwise provided to Customer and applicable license terms is available at http://www.orcaconfig.com/open-source.  Any provisions in this Agreement which differ from any open source software license are offered by Trifectix alone and not by any other party.  In no event will the third party open source providers be liable for any special, direct, indirect, or consequential damages or any damages resulting from loss of use, data, or profits, whether in an action of contract, negligence, or other tortious action, arising out of or in connection with the use or performance of the open source software even if Trifectix or these providers have been advised of the possibility of such damages and whether or not such losses or damages are foreseeable.
9. Term and Termination. This Agreement is effective from the date Customer signed the Trial Order or the Order and will remain in force until terminated. The term of this Agreement with respect to a Trial License is the Trial Period specified in the Trial Order.  With respect to a Subscription License under Part II above, the term of the Agreement will be for the agreed upon Subscription Term as set forth in the applicable Order.  With respect to a Perpetual License under Part II above, the term of the Agreement will be a Perpetual Term.  Unless otherwise set forth in an Order, or unless Customer provides at least 30 days advance written notice to Trifectix that Customer does not want to renew the Subscription Term, the Subscription Term will automatically renew at then-current Fees for the period of time equal to the original Subscription Term and Trifectix will charge Customer’s credit card for such renewal. If Trifectix is not able to charge Customer’s credit card for such renewal for any reason, then, Trifectix may terminate this Agreement without notice.  Either party may terminate this Agreement immediately upon delivery of written notice for cause if the other party commits a breach of this Agreement including, but not limited to, non-payment and has not remedied such breach within 30 days of receipt of notice of such breach from the non-breaching party. Upon termination of this Agreement: (a) each party will promptly (within 15 days after termination) return to the other party or, at the other party’s request, destroy, such other party’s Proprietary Information in its possession or control and all copies and portions thereof, in all forms and types of media, and provide such other party with an officer’s written certification, certifying to its compliance with the foregoing, and (b) Customer will destroy all copies of the Software and documentation, and upon request, Customer will provide Trifectix with an officer’s written certification, certifying to its compliance with the foregoing.  Except as otherwise expressly stated herein (i) termination of this Agreement by either party will be a nonexclusive remedy and will be without prejudice to any other right or remedy of such party, and (ii) the rights and remedies of the parties to this Agreement are cumulative and not alternative. Part I Sections 2 and 3, Part II Sections 4, 5 and 6, and Part III Sections 1 – 11 of this Agreement will survive any termination hereof.
10. Records and Inspection. Customer will conduct such internal audits as are reasonably required to verify continuing full compliance with this Agreement and maintain records with respect to any use restrictions (numbers of Servers, etc.) under the applicable Order. Upon Trifectix’s request from time to time, as specified by Trifectix, Customer will either certify compliance with any use restrictions (numbers of Servers, etc.) under the applicable Order, or allow Trifectix or its third party auditors to audit the number of Software copies made, used and/or deployed by Customer including, without limitation, compliance with any use restrictions (numbers of Servers, etc.) under applicable Orders. If Trifectix notifies Customer that Trifectix will audit Customer’s use of the Software, then (a) the audit will take place during Customer’s regular business hours, (b) the auditors will not unreasonably interfere with the normal course of business, (c) the auditors will preserve the confidentiality of confidential information in accordance with applicable professional standards, and (d) the audit will be conducted at a mutually agreeable time only after reasonable prior notice of not less than 10 business days.  Any such audit will not be conducted more than once per year unless Trifectix has reason to believe that Customer has made, used and/or deployed copies of the Software for which Customer has not paid applicable Fees. If a Customer self-certification or an audit discloses an underpayment of Fees, then Customer will promptly remit the amount of the underpayment of Fees and interest for past due amounts. Any such audit will be conducted at Trifectix’s expense unless an audit reveals an underpayment by Customer which exceeds 10% of the amount due by Customer in the period that is audited (which will not be less than a six month period), in which event Customer will also reimburse Trifectix for the reasonable cost of the audit. This Section will survive for two years after termination of this Agreement.
11. Miscellaneous. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without regard to conflicts of law provisions thereof and the parties hereby submit to exclusive jurisdiction and venue in the United States Federal District Courts located in Texas or any of the state courts located in Texas. Each party hereby agrees and consents to the personal and exclusive jurisdiction of said courts over it as to all such actions and further waives any claim that such action is brought in an improper or inconvenient forum.  This Agreement expressly excludes the United Nations Convention on Contracts for the International Sale of Goods. This Agreement sets forth the entire understanding and agreement between Customer and Trifectix with respect to the subject matter hereof. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THIS AGREEMENT ABOUT THE SOFTWARE. No waiver of any right under this Agreement will be effective unless in writing, signed by a duly authorized representative of the party granting such waiver. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. The express waiver by either party of any provision of this Agreement will not constitute a waiver of any future obligation to comply with such provision. Any modifications of this Agreement must be in writing and signed by both parties hereto.  For all purposes of this Agreement, each party will be and act as an independent contractor and not as partner, joint venturer, or agent of the other and will not bind nor attempt to bind the other to any contract.  Any notice required or permitted hereunder will be in writing and will be deemed to have been effectively given:  (a) immediately upon personal delivery or facsimile transmission to the parties to be notified, (b) one business day after deposit with a commercial overnight courier with tracking capabilities, or (c) three days after deposit with the United States Postal Service, by registered or certified mail, postage prepaid to the respective addresses of the parties as set forth in the related electronic order. If any provision in this Agreement is held invalid or unenforceable, then that provision will be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain unaffected.  Neither party will be liable for any breach, or delay in performance, of its obligations under the Agreement if, and to the extent that the breach or delay is caused by an act of God, act of government, war, riot, civil disorder or act of terrorism, labor disputes, or other cause beyond its reasonable control. Any pre-printed, additional or conflicting terms stated on purchase orders or acknowledgements of Customer will be void and of no effect.  English is the controlling language of this Agreement.

ATTACHMENT A
TRIFECTIX Software Maintenance and Support Services Terms
(Subject to TRIFECTIX Master License Agreement)

These TRIFECTIX Software Maintenance and Support Services Terms (the “Terms”) describe the terms and conditions governing TRIFECTIX’s provision of maintenance and support services for the Software. These Terms are subject to the terms of the TRIFECTIX Master License Agreement (“Agreement”) between TRIFECTIX and Customer. Capitalized terms used in these Terms and not otherwise defined will have the meanings set forth in the Agreement.

Subject to Customer’s payment of applicable fees, TRIFECTIX will use commercially reasonable efforts to provide Software maintenance and support services as described in these Terms (“Support Services”). TRIFECTIX may also offer consulting services to help resolve issues that fall outside the scope of the Support Services. Any consulting services will be provided under TRIFECTIX’s Professional Services terms at TRIFECTIX’s then-current consulting fees.

1. DEFINITIONS.

“Error” means any material error or defect in the Software that causes the Software not to conform in material respects with the Documentation.
“Error Corrections” are modifications that correct Errors.
“Updates” means enhancements, extensions, modifications, and new releases to the Software (other than Error Corrections) that TRIFECTIX elects to incorporate into and make a part of the Software, and for which TRIFECTIX does not charge an additional fee.

2. GENERAL. Prepayment for one year of annual Support Services is required for each Software license purchased by Customer. The first annual Support Services period will begin on the date on which TRIFECTIX makes the Software available for download by Customer (“Support Services Commencement Date”), and the applicable fee for the Support Services will be added to the invoice for the Software license fees. Thereafter, Customer may renew Support Services as described in the Product Schedule and the version of these Terms in effect on the date of renewal. If after the initial year of Support Services Customer elects to continue purchasing Support Services for the Software licenses, then Support Services must be purchased with respect to all of the Software licenses previously purchased by Customer and all licenses must be enrolled at the same level of Support Services. Licenses to Software purchased subsequent to Customer’s initial purchase will be co-terminated to the Support Services type applicable to the Software licenses initially purchased by Customer.

3. SUPPORT SERVICES. TRIFECTIX provides the following Support Services with respect to the Software:

(a) TRIFECTIX’s Technical Assistance Center is available to assist Customer’s Designated Contacts (defined below) regarding the use and functioning of the Software, and to provide the information needed to access TRIFECTIX’s customer support web site and to submit support requests on-line. The Technical Assistance Center is open during TRIFECTIX standard business hours (8:00 a.m. to 6:00 p.m. Central Time, Monday through Friday, TRIFECTIX holidays excepted):

• via telephone at (512) 986-7808
• via email at [email protected]
• non-business hours support via email [email protected] or by calling (512) 986-7808 with response next business day

TRIFECTIX will respond to Customer’s request for Support Services within two hours during TRIFECTIX standard business hours. During non-standard business hours, TRIFECTIX will respond to Customer’s request for Support Services next business day.

(b) TRIFECTIX will investigate each suspected Error reported by Customer’s Designated Contacts within a reasonable time and determine whether in TRIFECTIX’s judgment the reported problem is, in fact, an Error, and whether such Error is in the Software or in the Documentation. If TRIFECTIX determines that there is an Error in the Software or in the Documentation, TRIFECTIX will use reasonable efforts to provide an avoidance procedure, a workaround, or other Error Correction in accordance with the response guidelines outlined in the following table. Note that TRIFECTIX’s initial response is either telephone or e-mail acknowledgement by TRIFECTIX’s Technical Assistance Center of a problem reported by Customer’s Designated Contacts:

Priority	Description	Initial Response Goal	Resolution Goal
Priority 1 (P1) Critical Impact	Problems that seriously interrupt or prevent the customer from performing regular business operations	4 business hours	One business day after TRIFECTIX’s Technical Assistance Center reproduces the problem
Priority 2 (P2) Serious Impact	Major product issues which do not severely impede customer operations	1 business day	Problem fixes will be developed and made available, an acceptable workaround, a mutually agreed upon action plan or an answer to a question to be provided in two business days
Priority 3 (P3) Moderate Impact	Relatively low impact –product problems or issues	1 business week	Problem fixes are candidates for a future product release, an acceptable workaround, a mutually agreed upon action plan or an answer to a question to be provided in seven business days
Priority 4 (P4) Low Impact	Minor product problems or issues having no operational impact on the customer (i.e., customer requests for information, cosmetic documentation, etc.)	1 business week	Problem fixes are candidates for a future product release, an acceptable workaround, an action plan or an answer to a question to be provided in a timely fashion considering the problem

(c) As permanent solutions are developed for known Errors in the Software, they will be incorporated from time to time in planned Updates. TRIFECTIX will provide such Updates to Customer’s authorized Support contacts as they are released. TRIFECTIX will also provide instructions and/or documentation that TRIFECTIX considers reasonably necessary to assist in a smooth transition to use the Update. In the event TRIFECTIX, in its discretion, modifies the corresponding Documentation, TRIFECTIX will also provide one copy of the Documentation to Customer’s Designated Contacts at no additional charge as it becomes available.

(d) All maintenance and support solutions, including Error Corrections and Updates, constitute Software and are subject to these Terms. TRIFECTIX’s preferred method of delivery for Error Corrections and Updates is via a download from TRIFECTIX’s web site. However, TRIFECTIX may select other methods for their delivery such as, but not limited to, via CD-ROM or magnetic media.

4. ADDITIONAL OBLIGATIONS.

(a) Customer will appoint up to two authorized contact persons (“Designated Contacts”) who may contact TRIFECTIX to request Support Services. These individuals may be changed upon reasonable written notice. Customer will train its personnel and establish adequate technical resources necessary to promptly and properly support the Software. TRIFECTIX will provide Customer with the information needed by the authorized contacts to access TRIFECTIX’s customer support web site and to submit support requests on-line. Customer will notify TRIFECTIX promptly with any changes to the authorized support contacts.

(b) Customer will first troubleshoot any Software issue to determine if it may be the result of software or hardware under Customer’s control or other variables outside the control and domain of TRIFECTIX. In addition, Customer will provide a clear description of the problem or question, including whether the issue is production inhibiting, and any error codes or messages.

(c) Customer will maintain at its expense both an Internet e-mail address, and a method and means to download Error Corrections and Updates from TRIFECTIX’s web site. TRIFECTIX will use Customer’s e-mail address for notification of the Error Corrections and Updates, and for correspondence regarding requests for support.
(d) Customer may need to supply TRIFECTIX with access to and use of all information and facilities reasonably necessary for TRIFECTIX to render Support Services, subject to any security requirements or other company procedures of Customer. Resolving some product issues may require TRIFECTIX to otherwise remotely access the Software. If TRIFECTIX is not permitted or is unable to do so, Customer may experience slower resolution times or higher costs, and TRIFECTIX’s ability to resolve a problem may be inhibited.

5. TERM AND TERMINATION.

(a) The first annual Support Services period begins on the Support Services Commencement Date. Thereafter, annual Support Services will be made available by TRIFECTIX for purchase by Customer as a separate service. TRIFECTIX will use commercially reasonable efforts to provide Customer with 45 days’ prior written notice that the then-current annual Support Services period will expire and provide Customer with an invoice outlining for the next annual Support Services renewal prices (or other order form).

(b) TRIFECTIX will provide Support Services to Customer, subject to Customer (i) paying the applicable annual Support Services fees, and (ii) installing all Error Corrections and Updates provided by TRIFECTIX (with respect to Support Services purchased by Customer). The applicable annual Support Services fees are due annually in advance. If Customer does not pay the invoice for the next annual Support Services period, then the Support Services will not be renewed. TRIFECTIX may suspend or terminate Support Services if Customer fails to pay for Support Services when due. All Support Services fees are nonrefundable except as expressly provided in these Terms.

(c) If Support Services are cancelled, Customer may reinstate them at a later time by paying the charges for the Services then in effect and an additional reinstatement fee, as determined by TRIFECTIX, which reinstatement fee will not exceed the amount Customer would have paid during such period had Support Services not been cancelled. Additionally, Customer will pay the Support Services fees in advance for the upcoming annual Support Services period. If Customer desires TRIFECTIX’s assistance in implementing any Error Corrections or Updates provided as part of the reinstatement of Support Services, then such assistance will be deemed Professional Services and will be performed on a time and materials basis at TRIFECTIX’s then-current published rates, plus travel expenses. Any such Professional Services fees must be paid in advance of the performance of the Services.

6. EXCLUSIONS.

(a) Situations caused by improper use or configuration, untrained Customer personnel, failure to conform to applicable environmental or site specifications or which are determined to not have been caused by the Software are not included in Support Services and are billable at TRIFECTIX’s then current Professional Services published rates.

(b) TRIFECTIX has no obligation to provide Support Services for any of the following:

i. third party products not purchased or licensed through TRIFECTIX;
ii. Customer’s failure to properly maintain Customer’s environment and equipment where the Software is installed;
iii. alterations to Customer’s environment or equipment made by Customer or a third party;
iv. correcting any reported Software errors not verified by TRIFECTIX;
v. operating the Software contrary to the Documentation including, without limitation, operating the Software on platforms not supported by TRIFECTIX; or errors caused by:

• Customer’s failure to implement all Error Corrections and Updates so that the Software is a version supported by TRIFECTIX;
• any alterations, additions or damage to the Software made or caused by parties other than TRIFECTIX or under the direct supervision of TRIFECTIX;
• use of the Software in a manner for which it was not designed or licensed;
• interconnection of the Software with other products not designated by TRIFECTIX; or
• Customer’s negligence or other causes beyond the reasonable control of TRIFECTIX.

(c) TRIFECTIX only will be obligated to support: (i) the then-current production version of the Software, and (ii) with respect to the immediately prior version of the Software, TRIFECTIX will support such prior version for a period of twelve months after the most current version of the Software is made generally available.

(d) Unless expressly agreed by TRIFECTIX in writing, TRIFECTIX has no obligation to ensure that Error Corrections or Updates operate correctly with any software extensions, interfaces or enhancements or any solution developed specifically for Customer either by Customer or any other party (except TRIFECTIX).

(e) Customer is responsible for maintaining procedures external to the Software for reconstruction of lost or altered files, data, or programs to the extent it deems necessary, and for actually reconstructing any lost or altered files, data, or programs.