MASTER SUBSCRIPTION AGREEMENT - Simplus€¦ · ©2015 Simplus | All rights reserved. Proprietary and confidential 3 simplus.com | 855.256.8391 (c) create, develop, license, install,

1 ©2015 Simplus | All rights reserved. Proprietary and confidential

simplus.com | 855.256.8391

MASTER SUBSCRIPTION AGREEMENT


simplus.com | 855.256.8391

This Agreement permits Customer to purchase products and services from Simplus pursuant to Simplus order forms referencing this Agreement (“Order Form(s)”) and sets forth the basic terms and conditions under which those products and services will be delivered and paid for. This Agreement shall govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer which reference this Agreement. Simplus provides the software product listed on an Order Form on a subscription basis (each, a “Subscription”). The term of each Subscription is designated in the applicable Order Form (each, a “Subscription Term”). As part of each Subscription, Simplus provides the maintenance and support services described in Section 6 (Support & Maintenance) of the Agreement. Simplus also offers Professional Services (as defined in Section 7 (Professional Services)), such as architecture and training services related to its software products.

1. License 1.1 Grant of License. Subject to all of the terms and conditions of this Agreement, during the Subscription Term, Simplus grants to Customer a non-transferable, non-sub licensable, non-exclusive license to use the software products specified in an Order Form (“Software”) in object code form for Customer’s own internal business operations, but only in accordance with (i) the technical specification documentation generally made available by Simplus to its subscription customers with regard to the Software (“Documentation”), (ii) this Agreement, and (iii) the Subscription Term and any server, user, CPU, computer, website, field of use or other restrictions set forth in the applicable Order Form. “Software” shall also include any Documentation and any Support and Maintenance releases of the same Software product provided to Customer under this Agreement. 1.2 License Restrictions. Customer shall not (and shall not allow any third party to): (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from any encrypted or encoded portion of the Software, in whole or in part, nor will Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Software or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); provided, however, before Customer exercises any rights that Customer believes to be entitled to base on mandatory law, Customer shall provide Simplus with thirty (30) days prior written notice and provide all reasonably requested information to allow Simplus to assess Customer’s claim and, at Simplus sole discretion, to provide alternatives that reduce any adverse impact on Simplus intellectual property or other rights. (b) sell, sublicense, rent, lease, distribute, market, or commercialize for any purpose, including timesharing or service bureau purposes: (i) the Software, (ii) any modified version or derivative work of the Software created by the Customer or for the Customer, or (iii) any Simplus software, either modified or not, licensed under an open source license;


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(c) create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Software, any additional licensing terms provided by Simplus via product documentation, notification, and/or policy change posted at http://www.Simplus.com, and the terms of this Agreement; or (d) remove any product identification, proprietary, copyright or other notices contained in the Software; (e) modify or create a derivative work of any encrypted or encoded portion of the Software, or any other portion of the Software; (f) use or run on any of Customer’s computers, or have deployed for use, any copy or version of the Simplus open source version of the Software; or (g) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software. 2. Ownership 2.1 Software. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Simplus and its suppliers have and will retain all rights, title and interest in and to the Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof created by Simplus. Customer acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise.’ 2.2 Simplus shall own all right, title and interest, including all related inventions whether patented or not, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world (collectively, “Intellectual Property Rights”), in and to the Content and the Service, and in any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. “Technology” means all of Simplus proprietary technology (including any downloadable components, any other software, products, processes, algorithms, user interfaces, know-how, techniques, designs, mappings, routings, templates and other tangible or intangible technical material or information), and all related Intellectual Property Rights, made available to You by Simplus in providing the Service, and constitutes part of the Content. This Agreement does not convey to You any rights of ownership in or related to the Service or the Content. The Simplus name, the Simplus logo, and the product names associated with the


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Service are trademarks of Simplus or third parties, and no right or license is granted to You to use or remove them. 2.3 Work Product. Customer acknowledges that in the course of performing any services, Simplus may create software or other works of authorship (collectively “Work Product”). Subject to Customer’s rights in the Customer Confidential Information, Simplus shall own all right title and interest in such Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Customer pursuant to or in connection with the performance of consulting services (a “Deliverable”), Simplus hereby grants to Customer an irrevocable, perpetual, nonexclusive, worldwide, royalty-free right and license to use, execute, reproduce, display, perform, distribute (internally and externally), transfer, exploit and make derivative works of any such Deliverables. 2.4 Other Materials. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to any materials provided by Simplus to Customer in connection with the provision to Customer of services (“Materials”), other than the rights of use specifically granted in this Agreement. Customer will be entitled to keep and use all Materials provided by Simplusto Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Simplus. In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archival purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. All Simplus trademarks, trade names, logos and notices present on the Materials will be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. 3. Subscription Term, Fees, and Payment 3.1 Subscription Term and Renewals. The term of any Subscription shall be one (1) year commencing on the Effective Date of the applicable Order Form (unless otherwise designated in the Order Form). Each Subscription Term shall automatically renew for subsequent periods of the same length as the initial Subscription Term unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term. The rates for any Subscription Term renewals shall be Simplus then-current Subscription rates. If Customer elects not to renew a Subscription for successive Subscription Terms, in order to bring Customer’s Software up to date with the then-current Maintenance, Customer may re-subscribe only upon payment to Simplus of the then-applicable annual Subscription Fee plus the Subscription fees which would have been due had Customer remained subscribed during the lapse period. 3.2 Subscription Fees. Customer shall pay all fees for each Subscription as specified on the applicable Order Form. Customer may purchase additional Subscriptions by entering into additional Order Forms with Simplus. The Subscription fee for each additional Subscription


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will be Simplus then-current Subscription fee. Simplus reserves the right to modify its Subscription fees at any time, upon at least thirty (30) days prior notice to Customer, which notice may be provided by e-mail. 3.3 Payment Terms. All fees are as set forth in the applicable Order Form and shall be paid by Customer thirty (30) days from invoice unless otherwise specified in the applicable Order Form. All payments are non-refundable (except as expressly set forth in this Agreement). Customer shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Simplus). Fees are non-refundable upon payment. Payments will be made without right of set-off or chargeback. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. If payment of any fee is overdue, Simplus may also suspend provision of the services until such delinquency is corrected. Customer shall not use any Simplus trademarks without Simplus express written authorization.

4. Term of Agreement 4.1 Term. This Agreement is effective as of the Effective Date and expires on the day that the last Subscription Term for any Software licensed hereunder expires (the “Term”). Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. 4.2 Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to Simplusunder this Agreement before such termination will be immediately due and payable; (b) Customer shall cease any and all use ofthe Software and destroy all copies thereof and so certify to Simplus in writing; (c) each party will return to the other party the Confidential Information of the other party that it obtained during the course of this Agreement; and (d) Customer must certify in writing to Simplus that it has returned or destroyed all Simplus Confidential Information. 4.3 Survival. Sections 1.4 (License Restrictions), 2 (Ownership), 3.2 (Subscription Fees), 3.3 (Payment Terms), 4 (Term of Agreement), 5.3 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 10 (Confidential Information) and 12 (General) shall survive any termination or expiration of this Agreement.


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5. Limited Warranty and Disclaimer. 5.1 Limited Warranty. Simplus warrants, for Customer’s benefit only, that for a period of thirty (30) days following the date the Software is initially licensed by the Customer (the “Warranty Period”), the Software shall operate in substantial conformity withthe applicable Documentation. Simplus does not warrant that Customer’s use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. If during the Warranty Period the Software does not substantially conform to the description contained in the applicable Documentation, Simplus sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be for Simplus to correct the defects in the Software. 5.2 Services. Any professional services rendered by Simplus (“Services”) shall be deemed to be accepted by Customer upon delivery. Simplus warrants that the Services to be performed hereunder will be done in a workmanlike manner and shall conform to standards of the industry. If the Services are not performed as set forth above, Simplus will re-perform the applicable Services. 5.3 The remedies in Section 5.1 and 5.2 are Customer’s sole and exclusive remedies for breach of warranty and Simplus sole and exclusive liability for breach of warranty. The warranties in Sections 5.1 and 5.2 are made to and for the benefit of Customer only. The warranties will apply only if (a) the Software have been properly installed and used at all times and in accordance with the instructions in the applicable Documentation; (b) no modification, alteration or addition has been made to the Software by anyone other than Simplus; and (c) Simplus receives written notification of the breach, in the case of the warranty in Section 5.1, within thirty (30) days following the date the Software was initially licensed by Customer, and in the case of the warranty in Section 5.2, within three (3) days following the performance of the relevant Services. 5.4 Exclusions. The above warranties shall not apply: (i) to defects in the Software due to accident, abuse or improper use by Customer; or (ii) items provided on a no charge or evaluation basis. 5.5 Warranty Disclaimer. THIS SECTION 5 IS A LIMITED WARRANTY AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5 THE SOFTWARE, DOCUMENTATION, DELIVERABLES, WORK PRODUCT, MATERIALS AND ALL SERVICES ARE PROVIDED “AS IS”. SIMPLUS DOES NOT WARRANT THAT THE SERVICES, DELIVERABLES, WORK PRODUCT, SOFTWARE, THE DOCUMENTATION OR ANY MATERIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED OR THAT THEY WILL BE FREE FROM DEFECTS OR THAT THE SOFTWARE IS DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. NEITHER SIMPLUS NOR ITS SUPPLIERS MAKES


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ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE IS NOT INTENDED FOR USE IN CONNECTION WITH ANY HIGH RISK OR STRICT LIABILITY ACTIVITY (INCLUDING, WITHOUT LIMITATION, AIR OR SPACE TRAVEL, POWER PLANT OPERATION, OR LIFE SUPPORT OR EMERGENCY MEDICAL OPERATIONS) AND THAT SIMPLUS MAKES NO WARRANTY AND SHALL HAVE NO LIABILITY IN CONNECTION WITH ANY USE OF THE SOFTWARE IN SUCH SITUATIONS.

6. Support & Maintenance 6.1 During the time that Customer has paid the applicable Subscription fees, Simplus shall provide the support and maintenance services set forth on Exhibit A (“Support and Maintenance”) during the Subscription Term in accordance with Simplus standard support policies. 6.2 Cooperation. Customer agrees to provide Simplus with such cooperation, materials, information, access and support which Simplus deems to be reasonably required to allow Simplus to successfully provide the support and maintenance services, including, without limitation, as may be set forth in an applicable Order Form. Customer understands and agrees that Simplus obligations hereunder are expressly conditioned upon Customer providing such cooperation, materials, information, access and support. 6.3 Third Party Products. Customer acknowledges that in order for Simplus to provide the Services, Customer may be required to license and install certain third party software and provide certain third party hardware that are not provided or licensed by Simplus (“Third Party Products”). Simplus may provide Customer with links and instructions for obtaining Third Party Products, but it is Customer’s responsibility to properly license and install any required Third Party Products from the relevant third party providers. Simplus will have no liability with respect to any Third Party Products. In the event of a failure by Customer to timely provide Third Party Products as required, Simplus may treat the applicable Order Form as having been cancelled by Customer.

7. Professional Services Simplus shall provide the number of person-days of professional consulting services (“Professional Services”) purchased in the applicable Order Form. The parties acknowledge that the scope of the Professional Services provided hereunder consists solely of either or both of: (i) assistance with Software installation, deployment, and usage; or (ii) development or delivery of additional related Simplus copyrighted software or code. Customer shall have a license right to use anything delivered as part of the Professional Services subject to the terms of its license to


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use the Software, but Simplus shall retain all right, title and interest in and to any such work product, code or Software and any derivative, enhancement or modification thereof created by Simplus (or its agents). Professional Services may be ordered by Customer pursuant to a Statement of Work (“SOW”) describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Each SOW must be signed by both parties before Simplus shall commence work under such SOW. If the parties do not execute a separate Statement of Work, the Services shall be provided as stated on the Order Form. Customer will reimburse Simplus for reasonable out of pocket costs in providing the Professional Services, including, but not limited to, travel and lodging expenses as incurred.

8. Limitation of Remedies and Damages 8.1 SIMPLUS SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. 8.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SIMPLUS TOTAL AGGREGATE LIABILITY TO CUSTOMER SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY SIMPLUS SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SIMPLUS UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. 8.3 The provisions of this Section 8 allocate risks under this Agreement between Customer and Simplus. Simplus fees for the Software and Services reflect this allocation of risks and limitation of liability.

9. Indemnification 9.1 Indemnity. Subject to the remainder of Section 9, Simplus shall defend Customer against any third party claim that the Software infringes such third party’s U.S. patent or copyright (“Infringement Claim”), and indemnify Customer from the resulting costs and damages awarded against Customer to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed to in settlement; provided that Customer (i) notifies Simplus promptly in writing of such Infringement Claim, (ii) grants Simplus sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a Simplusrequest for assistance. Simplus will have the exclusive right to defend any such Infringement Claim and make settlements thereof at its own


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discretion, and Customer may not settle or compromise such Infringement Claim, except with prior written consent of Simplus. 9.2 Options. Should any Software become, or in Simplus opinion be likely to become, the subject of such an Infringement Claim, Simplus shall, at its option and expense, (a) procure for Customer the right to make continued use of the Software, (b) replace or modify such so that it becomes non-infringing, or (c) request return of the Software and, upon receipt thereof, the corresponding licenses are terminated and Simplus shall refund the prepaid but unused fees paid by Customer for the infringing Software. 9.3 Exclusions. Simplus will have no obligation for claims of infringement resulting from any combination, operation, or use of the Software with any programs or equipment not supplied by Simplus or not specified in writing for such purpose if such infringement would have been avoided by the combination, operation, or use of such Software with items supplied by Simplus or specified by Simplus in writing for such purpose. Simplus will have no obligation for claims of infringement resulting from (i) any modification of the Software by a party other than Simplus if such infringement would have been avoided in the absence of such modifications; or (ii) Customer’s failure, within a reasonable time frame, to implement any replacement or modification of Software provided by Simplus. 9.4 Limitation. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SIMPLUS ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.

10. Confidential Information Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any software, documentation or technical information provided by Simplus (or its agents) that has not been released to the Simplus community, performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of Simplus without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document and prove: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without


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breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. In connection with any application for such equitable relief, the Receiving Party expressly waives any requirement that the Disclosing Party post a bond or undertaking.

11. General 11.1 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. 11.2 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Utah and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). The jurisdiction and venue for actions related to the subject matter hereof shall be the Utah state and United States federal courts located in Utah, Utah, and both parties irrevocably consent to such personal jurisdiction of such courts and waive all objections thereto. 11.3 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. 11.4 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service. 11.5 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shallbe for administrative purposes only and shall have no legal effect. 11.6 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral


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agreements and communications relating to the subject matter of this Agreement. This Agreement also supersedes all terms of the Simplus Public License, Common Public Attribution License, and any other open source license under which Simplus software may be licensed, and all terms of any “shrinkwrap” or “clickwrap” license included in any package, media, or electronic version of Simplus-furnished software and any such Software shall be licensed under the terms of this Agreement. Customer acknowledges that Simplus products are subscription-based products and that, in order to provide improved customer experience, Simplus may make changes to Simplus products (including the Software or the Subscription offerings) or Documentation. In such event, Simplus will update the Documentation accordingly. 11.7 Audit Rights. Customer will maintain accurate records as to its use of the Software as authorized by this Agreement, for at least two (2) years from the last day on which Support and Maintenance expired for the applicable Software. Simplus, or persons designated by Simplus, will, at any time during the period when Customer is obliged to maintain such records, be entitled to audit such records and to ascertain completeness and accuracy, in order to verify that the Software are used by Customer in accordance with the terms of this Agreement and that Customer has paid the applicable license fees and Support and Maintenance fees for the Software, provided that: (a) Simplus may conduct no more than one (1) audit in any twelve (12) month period; (b) any such audit shall be subject to a mutually agreed upon non-disclosure agreement negotiated in good faith and entered into by the parties (including any third party agent Simplus may use in connection with such audit); (c) the audit will be conducted during normal business hours; and (d) Simplus shall use commercially reasonable efforts to minimize the disruption of Customer’s normal business activities in connection with any such audit. Simplus, or persons designated by Simplus, shall not have physical access to Customer’s computing devices in connection with any such audit, without Customer’s prior written consent. Customer shall promptly pay to Simplus any underpayments revealed by any such audit. Any such audit will be performed at Simplus’s expense, provided, however, that Customer shall promptly reimburse Simplus for the cost of such audit and any applicable fees if such audit reveals an underpayment by Customer of more than five percent (5%) of the license amounts payable by Customer to Simplus for 11.8 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. 11.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency


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11.10 Government End-Users. If the user or licensee of this commercial computer software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of this software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this contract in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. This product was developed fully at private expense. All other use is prohibited. 11.11 Export Compliance. Customer may not export or re-export the Software except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and Documentation by the U.S. Government shall be governed solely by the terms of this Agreement. Customer acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not and shall not allow any third-party to 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: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government. 11.12 Customer Acknowledgement. Customer agrees that Simplus may from time to time identify Customer (with Customer’s name, logo, or trademark) as an Simplus customer in or on Simplus website, sales and marketing materials, or press releases. Simplus may not use Customer’s name, logo, or trademark for any other purpose without obtaining Customer’s prior written consent. 11.13 Third-Party Code. The Software may contain or be provided with certain third-party code. Such third party code is licensed under the terms of the applicable license conditions and/or copyright notices that can be found in the licenses file, the Documentation or other materials accompanying the Software.


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11.14 No Hire. During the term of this Agreement and for a period of twelve (12) months after the expiration or termination of this Agreement, each party agrees not to, directly or indirectly, hire (whether as an employee, independent contractor or otherwise) any employee of the other party (or ex-employee within twelve (12) months after such individual’s leaves the employment of such party). 11.15 Transmission of Information by Software for Support Purposes. Customer understands and acknowledges that the Software may contain a feature that sends information about the technical operation of the Software on Customer’s computer systems to Simplus. Such information may include the operating system on which the Software is running, as well as the applicable Software and Java version numbers. This feature may be disabled by Customer by following the instructions provided by Simplus.

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MASTER SUBSCRIPTION AGREEMENT - Simplus€¦ · ©2015 Simplus | All rights reserved. Proprietary and confidential 3 simplus.com | 855.256.8391 (c) create, develop, license, install,