LICENSE AND SERVICES AGREEMENT

V202310

THIS ROCKY MOUNTAIN SOFTWARE DEVELOPMENT CORP. (“ROCKY”) LICENSE AND SERVICES AGREEMENT TERMS APPLIES TO ALL SOFTWARE AND SERVICES PROVIDED BY ROCKY. LICENSEES AGREE TO COMPLY WITH DELTEK LICENSES AND SERVICES AGREEMENT AND MUST HAVE AN ACTIVE LICENSE FOR THE DELTEK SOFTWARE TO USE ROCKY’S PRODUCT

• SECTION A: ORDER FORM
• SECTION B: GENERAL TERMS AND CONDITIONS
• SECTION C: LICENSE TERMS AND CONDITIONS
• SECTION D: MAINTENANCE TERMS AND CONDITIONS
• SECTION E: SERVICES TERMS AND CONDITIONS
• SECTION F: TERM LICENSE AND PRODUCT-SPECIFIC TERMS

SECTION A: ORDER FORM

A separate document listing the software licensed and which may also contain order-specific terms.

SECTION B: GENERAL TERMS AND CONDITIONS

B1. General Definitions. Some of the following definitions may not be applicable, depending on the Software licensed.

“Active User” License type is a License type where Licensee agrees to obtain and maintain a sufficient number of Licenses to represent an agreed upon adoption rate by all employees of Licensee and its named Affiliate(s) that are authorized to use the Software (“Licensed Affiliates”). The agreed upon adoption rate and active employee count of Licensee and the Licensed Affiliates shall be set forth in the applicable Order Form. An “Active Employee” is not a “Named User”, meaning that only specific employees of Licensee and its Licensed Affiliates can access and use the Software up to the ”Named User” License count. Within thirty (30) days of a request from ROCKY, Licensee will report the employee count of Licensee and Licensed Affiliates and the actual employee count over the specified reporting period to determine how many Active Users there were (“Active Employee Count”). The Active Employee Count is equal to the number of employee records with a status other than inactive. Should the Active Employee Count exceed the agreed upon adoption rate, Licensee will be required to expand the Active Employee Licenses by increasing the Active Employee Count and adoption rate. Even if the Active Employee Count falls within the Active Employee License grant, if the License grant of Licensee and the Licensed Affiliate(s) exceeds the agreed upon employee count, including increases due to merger or acquisition, Licensee will be required to increase the employee count at the agreed upon adoption rate. The initial Active Employee License establishes a baseline below which Licensee may not fall, so decreases in employee count and/or actual Active Employee Count will not reduce Licensee’s Active Employee Licenses.

1. “Affiliate” means any entity that is controlled by Licensee, or is under common control with Licensee, through at least a fifty-one percent (51%) ownership (or through board of directors’ control if a not-for-profit entity). For Government Licensees, the “Affiliate” definition and provisions related to Affiliates shall not apply.
2. “Concurrent Users” (or “Simultaneous Users”) means the maximum number of users who may be logged on to the Software at the same time.
3. “CER” means Deltek Costpoint Enterprise Reporting.
4. “Correction” means, without limitation, workarounds, support releases, component replacements, patches and/or documentation changes made available by ROCKY.
5. “Custom” or “Customization” means creation of instructions using a programming language that enhances, adds to, or modifies software functionality or behavior. This includes but is not limited to (1) any modification to the core source code of Software or reports that are not configurable, or (2) a change to or the development of (i) Interfaces (as defined below), (ii) Integrations (as defined below), (iii) enhancements, and/or (iv) extensions.
6. “Defect” means (1) a failure of the Software to operate substantially in accordance with the Documentation as it exists at the time the Software is delivered, or (2) defective media upon which the Software is delivered (if tangible delivery).
7. “Dispute” means any dispute or claim arising out of or related to this Agreement.
8. “Documentation” means the user instructions, training guides, or manuals for the Software licensed to Licensee by ROCKY. All Documentation is copyrighted by ROCKY.
9. “Dongle Key” means a hardware device that ROCKY may require as a user authentication mechanism to permit access to the Software.
10. “Effective Date” of this Agreement means the signature date specified in the initial Order Form.
11. “Employee” means any full-time, part-time, or seasonal employee who is accounted for in the employee master file contained in the Software.
12. “Government Licensee” means the U.S. or other country, state, or local government, an agency, or entity of the U.S. or other country, state, or local government, or an authorized non-governmental organization acting on behalf of the U.S. or other country, state, or local government that has licensed Software. Unless otherwise specified, Americas Licensee provisions shall apply to Government Licensees.
13. “Instance” means a running copy of the Software. Once installed or copied, an Instance exists (whether or not it is actually executing) until it is completely removed from memory and uninstalled from disk storage.
14. “Intellectual Property Rights” means all copyrights, moral rights, database rights, derivative works, patents, patentable ideas, inventions, patent applications, patent registrations, patent renewals, trade secrets, know-how, trademarks, service marks, trade names, service names, logos and other proprietary markings, all rights in the nature of unfair competition rights, and rights to sue in passing off, and confidentiality or any other similar proprietary right arising or enforceable under applicable law.
15. “Interface” means any standard functionality for providing input and output to and from outside applications.
16. “Integration” means the translation of data from the format of one application directly into the format of another: a data and command conversion on an ongoing basis between two or more systems.
17. “ISV Supported Software” means Third Party Software which an independent software vendor partner (“ISV Partner”) supplies that may integrate with the ROCKY or Deltek Software, and for which the ISV Partner solely and directly provides the license or software as a service subscription, maintenance, and services terms (including warranty and liability limits) for ISV Supported Software to the Licensee or subscriber.
18. “License” means for Software, a non-exclusive, non-transferable right to use the Software in a machine-readable form, together with the Documentation, solely for Licensee’s internal business purposes. Some Software may require equal numbers of Licenses for proper functionality and issuance of a License Key.
19. “License Fees” means the fees paid for Software Licenses. License Fees do not include maintenance or Services fees.

B2. Invoicing; Payment; Taxes. 

License. ROCKY will invoice Licensee for the full License Fee specified in an Order Form, plus applicable taxes, payable within thirty (30) days after execution of this Agreement or subsequent Order Form. Software license sales are final and deemed accepted upon delivery. ROCKY reserves the right to suspend the License if Licensee fails to pay License Fees due in accordance with this Agreement. See Section F for Term License payment terms.

1. Delivery. ROCKY will deliver Software, Documentation, and Updates via electronic transmission from a server in the United States, FOB shipping point (UCC) for Licensees in the United States, including Government Licensees
2. Maintenance. ROCKY will invoice Licensee for the first maintenance payment as specified in an Order Form, payable within thirty (30) days after execution of the Order Form. ROCKY will invoice Licensee for subsequent annual maintenance payments prior to the start of each next maintenance period, payable within fifteen (15) days of invoice date. Except for adjustments related to increases in the applicable number of Licenses or the license of additional Software or a different maintenance level, maintenance fees will be increased no more than once in any twelve-month period.
3. Services. Unless otherwise agreed, during a Services engagement ROCKY will submit semi-monthly invoices to Licensee for Services furnished, except that ROCKY will submit an invoice for Services upon completion of all Services expected to be performed in a given month. All Services invoices are payable within fifteen (15) days after invoice date. Each invoice will provide a breakdown and distribution of charges by name of the Consultant(s) (as defined below) who provided the Services, the hours charged (for Services performed on a time and materials basis) and the type and amount of expenses incurred. Upon request, ROCKY will provide additional back-up documentation for expenses (such as itemized receipts) but will charge Licensee an administrative fee of six percent (6%) of the invoiced expenses. Additional details required by Licensee concerning the invoice or backup information will be specified in the SOW or other writing by the Licensee before Services commence.
4. Disputed Invoices. Licensee will notify ROCKY within fifteen (15) days after date of an invoice if there is a dispute about that invoice. ROCKY will work in good faith with Licensee to promptly correct errors or resolve disputes. Licensee shall pay the undisputed portion of the invoice in full when due and notify ROCKY in writing as to the nature and substance of any disputed portion.
5. Taxes. Fees, costs, and expenses described in this Agreement do not include any sales, use, personal property, duty, levy or similar government charge, value added or goods/services taxes. ROCKY may list applicable taxes as separate items on Licensee’s invoice, and Licensee shall be responsible to pay and/or reimburse ROCKY for all taxes (other than taxes based on ROCKY’s income). If withholding taxes are imposed by any foreign government, Licensee shall remit such withholding taxes in accordance with applicable law, gross up the applicable payment amounts to ensure that ROCKY receives the full amount of fees invoiced, and provide ROCKY with evidence of withholding, if applicable. ROCKY may invoice taxes unless Licensee has provided adequate evidence of exemption upon execution of this Agreement. (Note: Licensee is not permitted to resell the Software, so a resale certificate does not qualify as a tax exemption certificate unless specifically agreed in this Agreement or unless Licensee has a separate reseller agreement with ROCKY.) ROCKY shall not issue credits for taxes billed before Licensee provides evidence of a valid exemption. Licensee shall be liable to ROCKY for any costs, fees and taxes that ROCKY incurs due to any invalid tax exemption claimed by Licensee.
6. Payments. All fees and other charges referred to in the Agreement will be paid in the currency specified in the Order Form, or SOW. Unless otherwise specified, the currency is US Dollars. All payments made under this Agreement are non-refundable, except as specifically provided in this Agreement.
7. Late Payments. ROCKY may charge interest at the rate of one and one-half percent (1½%) per month, eighteen percent (18%) per annum, or at the highest rate allowed by law, whichever is less, from the date due until paid. ROCKY may suspend Licenses, maintenance, Services or other performance if Licensee fails to make full payment of any undisputed amount owed under this Agreement within ten (10) days after written notice from ROCKY.
8. Third Party Payments. Licensee may separately arrange with a third party to make some or all payments to ROCKY required by this Agreement. Licensee must notify ROCKY and provide reasonable documentation to ROCKY of the arrangement requested before ROCKY will invoice a third party directly. If ROCKY has not received notice and documentation of a third-party payment arrangement prior to invoicing, ROCKY will not re-issue invoices. If a third party fails to make any undisputed payment when due, Licensee shall promptly pay ROCKY and ROCKY may invoice Licensee directly for all amounts due.

B3. Confidential Information.

1. “Confidential Information” means any information which one party (“Disclosing Party”) provides, either directly or indirectly, to the other (“Receiving Party”) in connection with this Agreement, including the Software and Personal Information, the terms of this Agreement, or information related to the business of the Disclosing Party that (1) if in tangible form, is clearly marked at the time of disclosure as being confidential, or (2) if disclosed orally or visually, is designated at the time of disclosure as confidential, or (3) is reasonably understood to be confidential or proprietary information, whether or not marked.
2. Confidential Information will be protected and held in confidence by the Receiving Party and will be used only for the purposes of this Agreement and related internal administrative purposes. Disclosure of the Confidential Information will be restricted to the Receiving Party’s affiliates, employees, contractors, and business partners on a “need to know” basis, provided that they are bound by written confidentiality obligations no less stringent than those in this Agreement prior to any disclosure. Confidential Information does not include information that (1) is already known to Receiving Party at the time of disclosure, (2) is or becomes publicly known through no wrongful act or failure of the Receiving Party, (3) is independently developed by Receiving Party without benefit of Disclosing Party’s Confidential Information, or (4) is received from a third party which is not under and does not thereby breach an obligation of confidentiality.
3. Each party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the confidentiality of its own proprietary and confidential materials of similar kind, but in no event with less than a reasonable standard of care. A Receiving Party may disclose Confidential Information to the extent required by law, provided that the party required to disclose the Confidential Information provides the original Disclosing Party with notice as soon as reasonably practicable to allow the Disclosing Party an opportunity to respond to such requirement, and provided further that such disclosure does not relieve Receiving Party of its confidentiality obligations with respect to any other party. These confidentiality restrictions and obligations will remain in effect until the information ceases to be Confidential Information. If Licensee participates in a ROCKY-sponsored group event, this Confidential Information Section shall apply to Confidential Information disclosed by any group participant, and ROCKY may provide a copy of this Confidential Information Section to any Disclosing Party seeking to enforce its provisions.
4. Upon the request of Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party all copies of the Confidential Information, and any documents derived from the Confidential Information, or at the Disclosing Party’s option, shall certify in writing that all copies of the Confidential Information and derivative documents have been destroyed. The Receiving Party may return any Confidential Information to the Disclosing Party at any time. This obligation to return or destroy materials or copies thereof does not extend to automatically generated computer back-up or archival copies generated in the ordinary course of Receiving Party’s information systems procedures, provided that Receiving Party shall make no further use of Confidential Information contained in those copies.
5. Licensee may provide Confidential Information to ROCKY in connection with a support request or a Services engagement. Prior to disclosing or delivering any Confidential Information that is subject to restrictions under federal, state, or international data privacy/security or export control laws and regulations, including without limitation any restrictions, laws or regulations that will apply to the transfer by ROCKY of the Confidential Information to any of its affiliates, employees, contractors and alliance partners located anywhere in the world (“Restricted Data”), Licensee shall identify to ROCKY in writing (including email) such Restricted Data. ROCKY may add a surcharge to cover additional costs of handling Restricted Data. If Licensee fails to identify Restricted Data, Licensee shall be responsible for any liability or claims related to ROCKY’s handling or export of any such Restricted Data in the normal course of ROCKY’s business. ROCKY may use Confidential Information for testing or development purposes, provided that ROCKY remains bound by the confidentiality obligations of any applicable license or nondisclosure agreement and applicable Restricted Data obligations.

B4. Compliance With Law.

1. Licensee warrants to ROCKY that it will comply with all applicable laws and will collect, use, transfer and otherwise Process any Personal Information collected by or through the Software or that Licensee discloses to ROCKY under this Agreement in compliance with all applicable laws, enactments, regulations, orders, standards, and other similar instruments, including Privacy Laws.
2. Licensee will remain the controller of Personal Information it provides to ROCKY and that it will not instruct ROCKY to Process any such Personal Information in any way that will violate any applicable laws including Privacy Laws.
3. Licensee will use the Software and Services in compliance with any laws, enactments, regulations, collective labor agreements, orders, standards, and other similar instruments that might be applicable to Licensee.
4. Licensee will obtain all necessary approvals, authorizations, or other consents, and will maintain any registrations, requirements, mandatory procedures, or similar obligations that may be applicable to Licensee.
5. Licensee shall be responsible to ROCKY for any costs, loss, or damage ROCKY incurs as a direct or indirect result of a breach of this Compliance with Law Section by Licensee.

B5. Excusable Delays. In no event shall either party be liable to the other for any delay or failure to perform hereunder due to causes beyond the reasonable control of that party, including acts of a government and severe weather conditions. Failure to make payment under this Agreement shall not be considered an excusable delay.

B6. Publicity. Neither party will issue any press release, advertising or other public materials that refer to the other party, the existence of this Agreement, or the Software licensed without the other party’s prior written consent. However, ROCKY may identify Licensee on its client list and may use a mutually agreed general description of the nature of the relationship in promotional materials, presentations, and proposals to current and prospective clients. Notwithstanding anything to the contrary herein, either party may identify the other party or disclose the existence of this Agreement to its attorneys, auditors and in connection with regulatory filings.

B7. Limitation of Liability.

1. EXCEPT FOR LICENSEE’S VIOLATION OF THE TERMS OF ITS LICENSE OR INFRINGEMENT OF ROCKY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR ROCKY’S LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, BUSINESS INTERRUPTIONS, LOSS OF REVENUE OR PROFITS, LOST MANAGEMENT TIME, SAVINGS, DATA OR GOODWILL, OR ANY PENALTIES, FINES OR EXPENSES.
2. EXCEPT FOR ROCKY’S OBLIGATIONS UNDER THE INFRINGEMENT SECTION, ROCKY’S, AND ITS LICENSORS’ TOTAL LIABILITY ON ANY CLAIM FOR ANY LOSS OR DAMAGE ARISING OUT OF, RESULTING FROM OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SOFTWARE OR THE SERVICES PROVIDED HEREUNDER SHALL NOT EXCEED THE AMOUNT OF THE LICENSE OR SERVICES FEE PAID FOR THE SOFTWARE OR SERVICES, RESPECTIVELY, GIVING RISE TO THE LIABILITY.
3. THE LIMITATIONS OF LIABILITY APPLY TO DAMAGES ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING WITHOUT LIMITATION CONTRACT, WARRANTY, STRICT LIABILITY, TORT, OR NEGLIGENCE, EVEN IF SUCH LOSS OR DAMAGE WAS FORESEEABLE OR CONTEMPLATED BY THE PARTIES.
4. EXCEPT FOR ROCKY’S LICENSORS, WHO ARE THIRD PARTY BENEFICIARIES ONLY WITH RESPECT TO THEIR PORTION(S) OF THE SOFTWARE, ANY PERSON WHO IS NOT A PARTY TO THIS AGREEMENT SHALL HAVE NO RIGHT TO ENFORCE ANY TERM OF THIS AGREEMENT.
5. NOTHING IN THIS LIMITATION OF LIABILITY SECTION OR OTHERWISE IN THE AGREEMENT SHALL EXCLUDE OR IN ANY WAY LIMIT EITHER PARTY’S LIABILITY TO THE OTHER FOR (1) FRAUD, (2) DEATH OR PERSONAL INJURY CAUSED BY THAT PARTY’S NEGLIGENCE, OR (3) ANY LIABILITY TO THE EXTENT THAT IT MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.
6. FOR EMEA LICENSEES, NOTHING IN THIS LIMITATION OF LIABILITY SECTION OR OTHERWISE IN THE AGREEMENT SHALL EXCLUDE OR IN ANY WAY LIMIT ROCKY’S LIABILITY TO LICENSEE FOR (1) FRAUD, (2) DEATH OR PERSONAL INJURY CAUSED BY ROCKY’S NEGLIGENCE (INCLUDING NEGLIGENCE AS DEFINED IN S. 1 UNFAIR CONTRACT TERMS ACT 1977), (3) BREACH OF TERMS REGARDING TITLE IMPLIED BY S. 12 SALE OF GOODS ACT 1979 AND/OR S. 2 SUPPLY OF GOODS AND SERVICES ACT 1982, OR (4) ANY LIABILITY TO THE EXTENT THE SAME MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.

B8. Binding Effect. This Agreement shall be binding upon the parties and their respective legal successors and permitted assigns.

B9. Assignment. Licensee may not in whole or part, assign, transfer, novate, subcontract, or sublicense this Agreement or any right or obligation under it, and any assignment made in violation of this provision shall be invalid. However, Licensee may assign this Agreement in its entirety, without ROCKY’s written consent, to any successor in interest by way of merger or consolidation or the acquisition of substantially all of Licensee’s assets; provided that (1) assignor’s account with ROCKY is current at the time of assignment, (2) assignee is not a direct competitor of ROCKY, and (3) assignee shall be bound by the terms and conditions of this Agreement, as written. The assignee shall provide evidence of the transaction and, if applicable, shall convert, true up, expand, transfer, or relocate the assigned Licenses subject to ROCKY’s then-current fees. For example, where assignee is an existing ROCKY customer, consolidation of the assigned Licenses with assignee’s current Licenses may require a true-up to provide identical product configurations in order for ROCKY to issue a consolidated license key (depending on the Software), as well as a single consolidated or restated assignee License and Services Agreement covering all assigned and existing Licenses under a single agreement.

B10. Severability. If any provision of this Agreement is illegal or unenforceable in any jurisdiction, that provision shall remain effective with respect to any jurisdiction in which it is legal and enforceable, and the remainder of this Agreement will remain valid and enforceable anywhere. The exclusion of damages in Section B7a shall survive a finding that an exclusive remedy failed of its essential purpose.

B11. Notices. All notices required under this Agreement will be deemed to have been delivered upon delivery in person or by overnight carrier, and five days after being mailed by registered pre-paid first class (return receipt requested) or the local equivalent. Notices will be sent to Rocky Mountain Software Development Corp at Rocky Mountain Software Development Corp, 1650 Wewatta Street, Suite 1123, Denver, CO 80202, Attention: General Counsel, or by email to rocky@rmsdc.us and to Licensee at the notice address set out in the initial Order Form or SOW, unless a party provides written notice of a change of address.

B12. Governing Law.

1. For Americas Licensees (except for U.S. Government Licensees): This Agreement shall be governed by the laws of the State of Delaware, U.S.A., without regard to any conflicts of laws provisions. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement.
2. For U.S. Government Licensees: The Agreement shall be governed by the applicable U.S. federal law of government contracts, without regard to any conflicts of laws provisions.
3. For Asia-Pacific Licensees: This Agreement shall be governed by the laws of Australia and particularly the laws of South Australia, without regard to any conflicts of laws provisions.
4. For EMEA Licensees: This Agreement shall be governed by the laws of England, without regard to any conflicts of laws provisions.
5. For all Licensees: The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

B13. Dispute Resolution.

1. Informal Dispute Resolution. In the event of any Dispute arising from or relating to this Agreement or the breach thereof, the parties hereto shall endeavor to use their best efforts to settle the Dispute. To this effect, the management-level representative from each party shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the management-level representatives are unable to reach such solution within thirty (30) days of the commencement of such negotiations, then the Dispute will be referred to executive-level representatives of each party for an additional thirty (30) day period of negotiation.
2. For Americas Licensees (except for U.S. Government Licensees): If a Dispute is not resolved at the end of the sixty (60) day period described in Subsection (a) above, then upon notice by either party to the other, the Dispute shall be settled by final and binding arbitration in accordance with the American Arbitration Association (“AAA”) Commercial Arbitration Rules. A single arbitrator appointed as provided in the AAA Commercial Arbitration Rules will be an attorney experienced in computer software, licensing, and information technology disputes. The arbitrator will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions concerning the arbitration, including choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this agreement to arbitrate. The arbitration proceeding shall be conducted in the English language and shall occur in the Washington, DC metropolitan area, or, with the consent of the arbitrator and parties, another mutually agreeable metropolitan area. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1-16, and judgment upon the award rendered by the arbitrator may be entered by any court of competent jurisdiction.
3. For U.S. Government Licensees: Any Dispute that cannot be resolved by the parties will be subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this Agreement to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this Agreement shall be a dispute to be resolved in accordance with the FAR Disputes clause at 48 C.F.R. 52.233-1, which is incorporated by reference.
4. For Asia-Pacific and EMEA Licensees: If a Dispute is not resolved at the end of the sixty (60) day period described in Subsection (a) above, then upon notice by either party to the other, the Dispute shall be finally resolved by binding arbitration before a single arbitrator pursuant to the Rules of Arbitration (“Rules”) and under the auspices of the International Chamber of Commerce (ICC). In the arbitration, including choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this agreement to arbitrate. The arbitration proceeding shall be conducted in the English language and shall occur in Adelaide, Australia (for Asia-Pacific Licensees) or London, UK (for EMEA Licensees), or, with consent by the arbitrator and parties, another mutually agreeable metropolitan area.
5. Arbitration. The arbitrator shall award appropriate fees and costs to the prevailing party. If it becomes necessary for either party to compel arbitration or to enforce an arbitration award, that party may bring an action in any court of competent jurisdiction and the prevailing party will be entitled to recover from the other party its costs and expenses, including court costs and reasonable attorneys’ fees (including allocable costs of in-house counsel). The arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrator that protects the confidential nature of the parties’ proprietary and confidential information. No arbitration award may provide a remedy beyond those permitted under this Agreement, and any award providing a remedy not permitted under this Agreement will not be valid and will be vacated. No Dispute may be brought as a class action, and neither party may act as a class representative or participate as a member of a class of claimants with respect to any Dispute. BOTH PARTIES HEREBY WAIVE ALL RIGHT OR ENTITLEMENT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE THAT ARISES OUT OF OR RELATES IN ANY WAY TO THIS AGREEMENT.
6. Litigation Rights. Either party may, without waiving any remedy under this Agreement, seek temporary or permanent injunctive relief including without limitation equitable relief from any court of competent jurisdiction to protect its Confidential Information, non-solicitation rights, License rights and Intellectual Property Rights, regardless of the arbitration requirements. ROCKY reserves the right to pursue collections activity or legal action in a court of competent jurisdiction to compel payment due hereunder and, in such a case, ROCKY shall be entitled to recover its costs and reasonable attorneys’ fees (including the allocable costs of in-house counsel), regardless of the arbitration requirements.

B14. Entire Agreement. This Agreement, which consists of Sections B-F with a separate Section A: Order Form for each Software order, and a separate SOW for each Services engagement plus any attachments identified as incorporated into this Agreement, is the entire agreement between Licensee and ROCKY relating to the specific Software order or Services engagement and supersedes all prior or contemporaneous oral or written communications, proposals and representations relating to that transaction. Any purchase order or other document issued by the Licensee (including any online terms as part of a required procurement process) will be for administrative purposes only and any such terms will not alter or supplement this Agreement. This Agreement will not be modified by any other act, document, usage, custom, or course of dealing unless it is signed by both parties. However, only Licensee’s signature or affirmation is required to agree to an unmodified Order Form, or other transaction document or language provided by ROCKY. Specified terms in an Order Form or SOW will prevail over conflicting terms in the remainder of the Agreement, including the Product-Specific Terms in Section F, for that transaction or engagement. ROCKY reserves the right to periodically update maintenance terms. Unless otherwise agreed in writing, this Agreement (1) does not terminate the Licensee’s license rights and maintenance (support) obligations of any prior ROCKY license agreement for other ROCKY software, and (2) supersedes any previous “clickwrap” license incorporated in the Software.

B15. Waiver. A failure or delay of either party to this Agreement to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of any provision of this Agreement. No waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.

B16. Survival. Provisions anywhere in the Agreement regarding payment, termination, ownership, Intellectual Property Rights, disclaimer of warranties, limitations of liability, governing law, dispute resolution, confidentiality, severability, export regulations, waivers, audit, and U.S. Government Rights will survive the expiration or termination of this Agreement.

B17. E-mail Communications. Licensee consents to receiving email messages from ROCKY that may constitute “commercial e-mails” under the U.S. CAN-SPAM Act of 2003, 15 U.S.C. §§ 7701-7713. Licensee may at any time “opt out” of receiving future e-mails from ROCKY.

B18. Limited Warranties.

1. Software Warranty. ROCKY warrants that the Software will be free from Defects for a period of one year from the date of initial delivery of the Software specified in an Order Form, for the initial term only for Term Licenses (“Software Warranty Period”), when the Software is used in accordance with the Documentation. The Software Warranty Period may differ for specific Software in the Product-Specific Terms or in an Order Form. ROCKY further warrants that it has not introduced into the Software any feature designed to damage or erase the Software or data. The Software may contain license protection features that limit access to the Software to the use permitted under this Agreement. Licensee shall not circumvent or render inoperative any such protection features. To be valid, a warranty claim must be in writing and submitted to ROCKY within the Software Warranty Period. If, during the Software Warranty Period, Licensee believes that the Software has Defects, Licensee shall promptly notify ROCKY in writing, describe with specificity any such Defect, and provide a listing of output and such other data as may be required by ROCKY to reproduce the Defect. Licensee’s exclusive remedy and ROCKY’s sole liability for Software performance under this software warranty will be (1) to use reasonable efforts to correct any such Defects and supply Licensee with a Correction as soon as reasonably practicable, or (2) if Correction or replacement is not reasonably achievable by ROCKY, to terminate Licensee’s License(s) for the affected Software and refund the License Fee paid upon Licensee’s certification that all copies of the Software have been returned or destroyed.
2. Services Warranty. Any Services warranty will be mutually agreed in an SOW depending on the Services provided. If the SOW does not contain a warranty, the Services therein are provided “AS IS”. For any Services warranty, the sole and exclusive remedy will be the re-performance of the Services.
3. Warranty Exceptions and Exclusions. The express warranties set forth in this Limited Warranties Section do not apply to errors or malfunctions caused by (1) Licensee’s equipment, (2) software not licensed from or approved in writing by ROCKY, (3) Misuse, (4) Licensee’s failure to use or implement Corrections or Updates, (5) use of the Software in combination with materials not provided, specified or approved in writing by ROCKY, (6) improper installation by Licensee, Support Contractor, or a third party not authorized in writing by ROCKY, or (7) any other cause not directly attributable to ROCKY. ROCKY does not warrant that the functions contained in the Software will meet Licensee’s requirements or that the operation of the Software will be uninterrupted or error-free. (8) These limited warranties shall be void if Licensee or any third party modifies or changes the Software in any way beyond the scope of the configuration options contained in the Software. In order to receive and maintain these warranties, Licensee must (A) use the Software in accordance with the Documentation, (B) use the Software on the hardware and with the operating system for which it was designed, and (C) use only qualified personnel to operate the Software. ROCKY will not be required to maintain compatibility between the ROCKY Software and any other software (other than ROCKY-supported Third-Party Software) except as otherwise agreed in writing.
4. Personal Warranties. All warranties described above are personal to and intended solely for the benefit of the Licensee and do not extend to any third party, including Affiliates.
5. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS LIMITED WARRANTIES SECTION AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER ROCKY NOR ITS LICENSORS MAKE ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES, TERMS, CONDITIONS, OR REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.

B19. Ownership.

1. Software and Documentation. ROCKY, its licensors and ISV Partners retain ownership, title and all rights and interest, including, without limitation, Intellectual Property Rights in and to the Software and Documentation. To the extent permitted by applicable law, any copy, modification, revision, Correction, Update, enhancement, adaptation, translation, or derivative work of or created from the Software or Documentation (“Derivative”) shall be owned solely and exclusively by ROCKY or its licensors or ISV Partners, as applicable. To the extent permitted by applicable law, Licensee assigns title, ownership, and all rights to ROCKY in any Derivative. To the extent an assignment is not effective under applicable law, Licensee grants ROCKY an exclusive, perpetual, fully paid, transferable, irrevocable license to use, reproduce, distribute, and commercialize the Derivative to the fullest extent permissible and effective under applicable law.
2. Services/Developments. ROCKY reserves ownership, title and all rights and interest in any software and documentation, including Customizations, developed, and delivered in the course of providing Services under this Agreement, including, without limitation, the Software and Documentation, subject to each party’s confidentiality rights and obligations under this Agreement.
3. Feedback. Licensee’s comments, suggestions, or other feedback regarding ROCKY’s products, services, or business are provided voluntarily, and ROCKY may use any feedback as it sees fit without obligation or restriction of any kind, other than its Confidential Information obligations.
4. Extensions. ROCKY may provide tools with certain products to assist Licensee in creating code to extend the functionality of the Software, including custom reports or independently developed code extensions (“Extensions”). Whether developed by Licensee, ROCKY, or a third party on behalf of Licensee, Extensions may not function properly after the underlying Software is updated. Licensee is responsible for testing Extensions following updates to the Software and for all necessary corrections to the Extension to function with updated versions of the Software. Unless otherwise agreed in writing, (1) ROCKY has no obligation to fix, repair or otherwise make functional any Extensions that do not function properly after a Software update; and (2) ROCKY shall retain ownership of Extensions created by ROCKY for Licensee, subject to ROCKY’s confidentiality obligations to Licensee. In addition, ROCKY may develop and incorporate into the core product functionality similar to or the same as Extensions created by or for a Licensee, and Licensee has no right or remedy against ROCKY for ROCKY’s development of such functionality. Software Extensions are excluded from the maintenance and support, Software warranty, and infringement terms in the Agreement, unless otherwise expressly provided.

B20. Termination.

1. The non-breaching party may terminate this Agreement, SOW, Order Form, or License to use Software on thirty (30) days written notice of a material breach, which remains uncured at the end of that thirty (30) day period, unless the breach is a failure to make an undisputed payment due, in which case the cure period is ten (10) days.
2. Licensee may terminate any Software License at any time by (1) notifying ROCKY in writing and (2) destroying or returning to ROCKY, at ROCKY’s option, all copies of the Software and Documentation. Early termination of a Term License will not release Licensee from any obligation to pay for the full term of such Term License, and no refunds will be provided for a mid-term cancellation or termination.

1. Upon termination of a License for any reason, or non-renewal of a Term License, Licensee shall cease all use of and shall return or destroy, as directed by ROCKY, all copies of the applicable Software and Documentation. Within thirty (30) days after the termination of a License (five business days for non-renewal of a Term License), a corporate officer of Licensee shall execute a statement certifying that Licensee has fully complied with the terms of this Termination Section and acknowledging that all rights to use the Software and Documentation have been terminated and that any further use of the Software or Documentation is unauthorized and would be in violation of ROCKY’s rights. Licensee acknowledges that following the expiration or termination of a Term License, any data that is retained in formats only readable by the Software will not be accessible.
2. Termination of any License shall not relieve Licensee of its obligations to pay any amounts then due ROCKY and shall not entitle Licensee to a refund of any amounts paid under this Agreement, except as otherwise specified herein.

B21. Non-solicitation of Employees. For one year after delivery of an order, or after termination of an SOW, neither party shall solicit for hire as an employee, consultant or otherwise any of the other party’s personnel who have had direct involvement with the Licenses or Services or proposal for the Licenses or Services specified in the Order Form or SOW, without the other party’s express written consent. However, neither party will be precluded from hiring any employee of the other party who responds to any public notice or advertisement of an employment opportunity or who terminated his/her employment with the other party at least six months previously, provided that the hiring party did not solicit the termination. A party shall not be in breach of this Non-solicitation of Employees Section if those responsible for the solicitation, hiring or retention of the other party’s personnel were not aware of these restrictions. However, personnel of either party working on a proposal or order for any Licenses or Services under this Agreement shall be presumed to know of the restriction.

B22. Independent Contractor. Each party is at all times acting as an independent contractor under this Agreement and not as an agent, employee, joint venturer or partner of the other.

B23. Partner Transactions. Where Licensee acquires ROCKY Software or receives maintenance, support or services from a Partner, any specific term regarding warranty, maintenance and/or services, as applicable, may be contracted directly between Licensee and that Partner and conflicting terms of this Agreement shall not apply to such Software, maintenance, support, or services.

SECTION C: LICENSE TERMS AND CONDITIONS

C1. License.

1. ROCKY grants to Licensee a License to use the Software and Documentation, specified in an Order Form, subject to the terms and conditions of this Agreement.
2. Licenses must be used in accordance with the parameters set forth in this Agreement, including limitations (describing the scope of the permissions ROCKY grants, excess of which by Licensee or others constitutes infringement of Intellectual Property Rights), conditions (breaches of which shall automatically terminate the Licenses granted herein), and contractual covenants and obligations of Licensee. Licensee may not use or permit use of the Software or Documentation for more than the Licensee’s current number of Licensed users as specified in the applicable Order Form, as may be amended from time to time, and may not permit use of the Software by anyone other than Licensee’s employees or users and (1) a Support Contractor, (2) Licensee’s disaster recovery vendor, (3) an Affiliate, or (4) a Web Portal Authorized User. Licensee may not copy or incorporate portions of the Documentation or “screen shots” of the Software except in training materials for Licensee’s internal use only, provided that the incorporated materials shall bear a notice of ROCKY’s copyright.

1. Licensee shall not, and shall not permit any third party to (1) use the Software or Documentation to provide services for any third party that is not an Affiliate, (2) make copies of the Software or Documentation except as permitted in this Agreement, (3) reverse engineer, disassemble or reverse compile the Software, except as expressly permitted by applicable law and then only to the extent that ROCKY is required to permit such activity, (4) sell, let for hire, sublicense, distribute, give away or otherwise supply to a third party any of the Software or Documentation, (5) use the Software or Documentation to create any computer software program, training materials or user documentation that is substantially similar to the Software or Documentation, (6) make Derivatives of the Software or Documentation, except as permitted by this Agreement, (7) if applicable, use the Software without having the Dongle Key (if delivered with the Software) connected to the desktop personal computer or network on which the Software is installed, (8) use or make the Software available on a service bureau or time sharing basis, or (9) publish any results of benchmark tests run on the Software.
2. If Licensee accesses the Software, or inputs data managed by or calculated with the Software, via web-based or other electronic means (regardless of the interface or application used to access the Software), Licensee must have or must obtain an appropriate number of “Named Employee” licenses from ROCKY for each user who accesses the database services and functionality of the Software. Each Named Employee must have a unique username and password to access the Software, and user login information may not be shared, transferred, or disclosed to or be used by any other party. Neither Licensee nor any user may modify, adapt, or customize the database or ROCKY’s associated database tools unless such modification, adaptation, or customization is provided as a feature of the Software.
3. References to “Affiliate” in this License Section shall apply only to Software that has the functionality to support an Affiliate and to Licensees other than Government Licensees.
4. For any Read-Only Licenses, Licensee end users are licensed to access data only and are prohibited from modifying or adding any data in the applicable Software.
5. Except as otherwise provided in the Non-production Instances Section or unless specifically licensed for multiple servers, Licensee shall install one Instance of the server portion of the Software only at the Licensed Location.
6. Licensee shall be liable to ROCKY for any damages resulting from any violation of the terms of this Agreement by any party that Licensee permits to use the Software or Documentation.
7. Licensee may not modify the Documentation, except to the extent necessary to reflect more closely Licensee’s operations, provided, however, that ROCKY shall retain all rights in any modified Documentation. Modified Documentation shall be considered Documentation with respect to Licensee’s License rights and each party shall retain its confidentiality obligations with respect to any Confidential Information in the modified Documentation.
8. Licensee may not copy the Software, except as set forth in the Non-Production Instances Section or as otherwise agreed in an Order Form.
9. The License restrictions contained in this License Section shall not apply to the extent such restrictions violate laws that cannot be pre-empted in a license agreement or contract (“Mandatory Laws”). If Licensee believes that it has rights to act against or outside this Agreement based on Mandatory Laws, Licensee shall not exercise such rights unless and until it has provided thirty (30) days prior notice to ROCKY, and ROCKY, at its full discretion, has not provided an alternative remedy.
10. Upon Licensee’s installation of Updates of Software in a production environment, subject to the terms and conditions of this Agreement, the Software and Documentation Licenses granted under this Agreement will apply to the Update, and the Software and Documentation Licenses related to the earlier version or release shall terminate.
11. ROCKY Software may incorporate or be provided to Licensee with Third Party Software. Unless otherwise indicated in writing (including the Documentation), any Third-Party Software is licensed solely for use with the ROCKY Software with which it is delivered and is governed by these ROCKY license terms and conditions.
12. Licensee shall have or obtain the ROCKY and Third-Party Software Licenses needed to be consistent with any Services provided to Licensee.
13. Use of Cookies. Most Software contains cookies. ROCKY uses cookies for usage tracking purposes and statistical analysis, which helps ROCKY to improve the Software by giving ROCKY some insight into how the Software is being used. Please email rocky@rmsdc.us for any further information on ROCKY’s use of cookies. Licensee consents to such use of cookies and represents and warrants that it has provided adequate notice to all users of the Software of, and obtained their informed consent to, the use of cookies by the Software in accordance with applicable Privacy Laws. Licensee is responsible for providing appropriate information and obtaining any required consent from its users of the Software in accordance with applicable Privacy Laws prior to any Processing of Personal Information by and through the Software.
14. Mobile Applications.
    1. All Mobile Applications. ROCKY may make certain Mobile Applications available to Licensee. The use of Mobile Applications either alone or in connection with the Software is governed by this Agreement. In addition, Licensee must comply with all applicable third-party terms of agreement when using the Mobile Applications (for example, any agreement with a wireless service or wireless data provider).
    2. Additional Terms for iOS Mobile Applications. The Mobile Applications may be used on an iOS product that Licensee owns or controls and as permitted by the Usage Rules set forth in the App Store Terms of Service. Licensee agrees that this Agreement is between Licensee and ROCKY, and that even if it receives access to the Mobile Applications through Apple, Inc.’s AppStore or any other source (collectively, the “Distributor”), the Distributor has no liability or responsibility whatsoever to Licensee related to the Mobile Applications, whether by contract, warranty or otherwise, and Licensee will look only to ROCKY for any support for the Mobile Applications. The Distributor is not responsible for addressing any claims of any sort related to the Mobile Applications, and Licensee must address any claims directly with ROCKY. Questions related to the Mobile Applications should be addressed to ROCKY and not to the Distributor. In the event of a failure of a Mobile Application to comply with any limited warranty stated in this Agreement, Licensee may notify Apple and Apple will refund the purchase price paid by Licensee to Apple for that Mobile Application and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Mobile Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to the limited warranty will be ROCKY’s sole responsibility. Notwithstanding anything to the contrary in this Agreement, the Distributor and its subsidiaries are third party beneficiaries of this Agreement, and the Distributor has the right (and will be deemed to have accepted the right) to enforce this Agreement against the Licensee as a third-party beneficiary hereof. Licensee represents and warrants that Licensee is not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Licensee is not listed on any U.S. Government list of prohibited or restricted parties.

C2. Relocation. Licensee may change the Licensed Location with ROCKY’s prior written consent and subject to applicable relocation fees. ROCKY’s consent shall entitle Licensee to move its installed Instance of the server portion of the Software or the computers or server(s) on which the Software is installed from the existing Licensed Location specified in this Agreement to a new Licensed Location and may operate the Software concurrently at the old and new Licensed Locations for a period of not more than ninety (90) days without having to obtain an additional License.

C3. Non-Production Instances.

1. Test, Development, and Training Instance. Unless otherwise provided in the Product-Specific Terms or in an Order Form, Licensee may use one Instance of the Software in a non-production environment solely for Licensee’s internal testing, development, and training purposes. Licensee’s installation and use of the Software for these purposes is limited to the same number of licensed users as permitted under the applicable Order Form and this Agreement.
2. Disaster Recovery and Archival Instance. Licensee may make back-up copies of the Software as necessary for use in disaster recovery and archival purposes, provided that the copies are kept in a secure location (such other location to be owned or controlled by Licensee or Licensee’s disaster recovery vendor) and that the disaster recovery and archival copies of the Software are not used for production purposes unless the primary copy of the Software is not being used for production purposes.
3. Additional Non-Production Instances. Additional Licenses for non-production Instances other than what is described in this Non-Production Instances Section may be purchased by Licensee and such additional Non-Production Instances shall be subject to the additional terms and conditions, including additional license and/or maintenance fees contained in the applicable Order Form at the time of purchase. Any copies made of the Software or Documentation pursuant to this Section shall contain ROCKY’s proprietary and/or copyright notice(s).
4. Support on Non-Production Instances. Support for non-production Instances of Software under a current maintenance plan will be limited to set up.

C4. License Term. This License commences on the Effective Date of the Agreement and shall remain in effect for the term reflected in the applicable Order Form for a Term License, or, if no fixed term is provided, for the maximum statutory term permitted or until terminated as provided in this Agreement. Each Term License will automatically renew for subsequent twelve-month terms after the initial term, unless otherwise agreed in the applicable Order Form or unless Licensee gives ROCKY written notice that it does not intend to renew that Term License at least thirty (30) days prior to the start of the renewal term.

C5. Infringement.

1. ROCKY agrees to defend Licensee from and against any action based on a third party claim alleging that the Software or Documentation, when used in accordance with this Agreement, infringes a patent or copyright in the applicable jurisdiction or misappropriates a trade secret (as defined under applicable law) of any third party, and ROCKY shall pay all reasonable costs, expenses and damages finally awarded against Licensee, arising from any such action; provided, however, that (1) Licensee gives ROCKY prompt written notice of such action, (2) Licensee fully cooperates with ROCKY in the defense and settlement thereof, (3) ROCKY is given full control of the defense of such action and any settlement or compromise thereof, and (4) Licensee complies with ROCKY’s direction to cease using any Software that in ROCKY’s reasonable judgment may be ruled to cause an infringement of a third party’s Intellectual Property Rights.
2. If a temporary or a final injunction is obtained against Licensee’s use of the Software or Documentation by reason of an infringement or misappropriation or if ROCKY believes such an injunction is likely, then ROCKY will, at its option and expense, either (1) procure for Licensee the right to continue using the Software or Documentation, or (2) replace or modify the Software or Documentation so that it no longer infringes a patent or copyright in the applicable jurisdiction or misappropriates a trade secret, so long as the utility or performance is not materially adversely affected by such replacement or modification. If ROCKY deems (1) or (2) not feasible, ROCKY will terminate all Licenses rendered unusable to Licensee and return the unused portion of the License Fees paid (determined by depreciating those License Fees paid on a straight-line basis over thirty-six (36) months) by Licensee for the Software or Documentation.
3. ROCKY shall have no liability to Licensee to the extent that any infringement action or claim is based upon or arises out of (1) use of ISV Supported Software, (2) modification of the Software or Documentation by ROCKY according to Licensee’s specifications, (3) modification of the Software or Documentation by Licensee or any third party or the use of the Software or Documentation or any portion thereof in combination with any other equipment or software, (4) Licensee’s failure to use the most recent version of the Software supplied by ROCKY, (5) Licensee’s failure to comply with ROCKY’s direction to cease any activity that in ROCKY’s reasonable judgment may be ruled to cause an infringement of a third party’s Intellectual Property Rights, or (6) Licensee’s use of the Software or Documentation that is not strictly in accordance with the terms of this Agreement.
4. THIS INFRINGEMENT SECTION STATES LICENSEE’S SOLE REMEDY AND ROCKY’S SOLE LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

C6. Export Regulations. The Software, including technical data relating thereto, is subject to applicable export control laws and regulations, including the U.S. International Traffic in Arms Regulations (ITAR) and the U.S. Export Administration Regulations (EAR). Licensee shall strictly comply with all applicable export laws and regulations and, in addition to other restrictions in this Agreement, Licensee agrees that it will not export, re-export or import the Software, except in accordance with all applicable export laws and regulations and only if permitted under the License terms. Licensee warrants and represents that Licensee, including its Affiliates and Support Contractors, is not (1) affiliated with or a resident of any embargoed or terrorist-supporting country or (2) affiliated with anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals.

C7. U.S. Government Rights. The Software is a “Commercial Item”, as that term is defined in 48 C.F.R. 2.101 (OCT 2010) and is comprised of the accompanying Documentation that are deemed to be “commercial computer software” and “commercial computer software documentation”. If acquired by or on behalf of a civilian agency, the U.S. Government Licensee’s or agency Licensee’s rights to use, modify, reproduce, release, perform, display or disclose this ROCKY commercial restricted computer software and/or commercial computer software documentation is subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Commercial Computer Software) and 12.211 (Technical Data), as well as Part 27.405-3 of the FAR and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors, consistent with 48 C.F.R. 227.7202-1 through 227.7202-4. This U.S. Government Rights clause is in lieu of, and supersedes any other FAR, DFARS, or other clause or provision that addresses Government rights in the ROCKY Software, Documentation, or other technical data. A non-Government Licensee may not acquire Software on behalf of a U.S. Government entity without ROCKY’s prior written consent. The Software (1) is an unpublished work with all rights reserved under the copyright laws of the United States, and (2) was developed fully at private expense. All other use is prohibited.

C8. Copyright Notice and Commercial Computer Software Notice. The Software and Documentation are protected, with all rights reserved, under applicable copyright laws. Rights to use, modify, reproduce, release, perform, display, or disclose this Software are as set forth in, and are subject to this Agreement.

C9. Reporting. No later than thirty (30) days after each anniversary of the Effective Date, Licensee will provide ROCKY with a report certified by an officer of Licensee of the numbers of Employees, Simultaneous/Concurrent Users, User IDs, and Named Users, as applicable, for each item of Software licensed to Licensee during the prior twelve-month period. Any Licensee with a commitment to have licenses for all employees will also report the total number of employees for Licensee and Affiliates covered by that commitment.

C10. Audit Rights. Licensee will keep accurate records of the number and location of copies of the Software made and distributed, and the number, license types and locations of users of the Software. ROCKY may enter Licensee’s premises during business hours on reasonable advance notice for the purpose of examining, or having examined, Licensee’s relevant books, records, disaster recovery plan and computers to verify Licensee’s compliance with this Agreement. ROCKY will be subject to reasonable rules and regulations regarding access to the Licensee’s facilities that are provided to ROCKY in advance of the audit. Audits will be at ROCKY’s expense, unless the audit reveals that Licensee has materially breached the Agreement, in which case the audit will be at Licensee’s expense. ROCKY may provide the audit results to its licensors when required by the licensors.

SECTION D: MAINTENANCE TERMS AND CONDITIONS

D1. Maintenance. During any period for which Licensee has made the required maintenance payment, Licensee shall be entitled to receive the following from ROCKY:

1. Updates;
2. Defect Correction (as described below);
3. Support (as determined by your specific support plan located on the Order Form or maintenance invoice); and
4. a subscription to ROCKY’s online support network.

The Maintenance Fee is based on Licensee’s specific product mix at the time of purchase as well as future product add-ons (bundled maintenance). Licensee cannot reduce or cancel maintenance on any portion of product (unbundling maintenance).

D2. Defect Correction.

1. Licensee shall report suspected Defects in the Software to ROCKY using the ROCKY hotline or the Internet and shall document the suspected Defect. If the Defect is confirmed, ROCKY shall use commercially reasonable efforts to provide a Correction to Licensee.
2. ROCKY shall not be responsible for Defect Correction in any version of the Software other than the most recent release of the Software, provided that ROCKY shall continue to support prior Software releases for a period of not more than six months after the most recent release.
3. ROCKY reserves the right to decline Licensee maintenance/support requests that could be resolved by reference to the Documentation or implementation of Corrections, or that arise from Licensee’s negligence, Misuse of the Software, or issues relating to third party equipment and software unless subject to a mutually agreed SOW to provide such Services for additional fees.
4. Licensee will take all reasonable steps to carry out procedures for the Correction of Defects or implementation of Corrections and Updates provided by ROCKY within a reasonable time after such procedures have been received.

D3. Support. ROCKY offers multiple levels of support. Licensee’s Order Form, support invoice, or online support profile will show to which support offering Licensee is subscribed. The following terms apply to all support offerings: ROCKY shall provide support assistance to allow Licensee’s authorized maintenance contact(s) to report problems and seek assistance in the use of the Software during ROCKY’s standard support hours as established from time to time and applicable to Licensee’s specific support plan. ROCKY may require direct system access in order to provide support. Licensee acknowledges that if it declines to provide required access ROCKY may not be able to fully resolve an issue.

D4. Excluded Items.

1. ROCKY’s maintenance/support obligations shall not include:
   1. providing assistance (beyond an initial communication) or consulting time relating to problems, caused by (i) malfunction or failure of the computer system and communications network on which Licensee has installed and is using the Software, (ii) software not licensed pursuant to this Agreement, (iii) Misuse, (iv) improper installation or configuration by Customer, third party consultants, or Support Contractors, (v) failure to incorporate Updates or Corrections, or (vi) any other cause not attributable to ROCKY;
   2. providing training covered in formal training classes;
   3. performing Services that would normally be provided at Licensee’s business location;
   4. development or support for any Software customizations or custom reports;
   5. database schema changes, or supporting application program interfaces (“APIs”) not provided or approved by ROCKY;
   6. supporting hosting providers not certified by ROCKY;
   7. providing services or support for installation and testing of Updates or Corrections; or
   8. ROCKY’s training guides e-learning modules, training kits, “train the trainer” programs or other learning resources provided by ROCKY.
2. If ROCKY notifies Licensee that a problem, error, or malfunction for which Licensee has requested maintenance is not covered, ROCKY will work with Licensee to develop a mutually agreed SOW under which ROCKY will perform such services at ROCKY’s then-current rates.

D5. Maintenance Term and Termination.

1. Maintenance specified on an Order Form will commence on the effective date of that Order Form. Unless otherwise agreed, or where prohibited by applicable law or regulation, maintenance will automatically renew at the fees stated on an Order Form, subject to any annual price adjustments, for additional periods unless Licensee gives ROCKY written notice of its intent to terminate maintenance at least thirty (30) days prior to the start of a maintenance period.
2. For U.S. Government Licensees, maintenance will not automatically renew in compliance with applicable acquisition regulations. However, if a U.S. Government Licensee wishes to continue maintenance after a twelve-month maintenance period, it shall pay the then-current maintenance fee for an additional twelve-month period.
3. Licensee may reinstate terminated maintenance by paying for the maintenance periods from termination up to and including the period for which maintenance is reinstated, provided, however, that any maintenance reinstatement shall be at ROCKY’s discretion and subject to then-current maintenance terms and fees.

SECTION E: SERVICES TERMS AND CONDITIONS

E1. Services. ROCKY shall provide Services when mutually agreed in an SOW. Unless otherwise agreed in writing by ROCKY, the terms and conditions of this Agreement will apply to any Services provided to Licensee by ROCKY after the Effective Date, whether or not this Agreement is referenced and whether or not an SOW is executed. Unless otherwise agreed in an SOW, the total cost or completion dates for any Services in an SOW are estimates. Licensee acknowledges that the ultimate responsibility for the Services rests with Licensee and that ROCKY’s role is to assist Licensee in that endeavor. Any advice provided by ROCKY is limited to the set up and appropriate use of the ROCKY software. Decisions regarding business practices, accounting treatment, and account set up are the sole responsibility of Licensee; ROCKY is not rendering legal, accounting, or tax advice and is not responsible for the results of any such decisions made by Licensee. Unless otherwise stated in an SOW ROCKY may use subcontractors to perform Services. Any staff or personnel provided by ROCKY to provide the Services under an SOW are referred to as “Consultants”.

E2. Project Management. Licensee shall appoint an individual to authorize SOWs, receive progress reports and address problems that may arise in connection with the Services (the “Project Manager”) and shall provide ROCKY in writing with the name and contact information for that Project Manager.

E3. Work on Licensee’s Premises. ROCKY shall require its Consultants to observe the reasonable security, safety and other policies of the Licensee while such Consultants are on Licensee’s premises, provided that Licensee provides ROCKY with reasonable advance notice of those policies.

E4. Licensee’s Cooperation. ROCKY’s performance depends upon Licensee’s timely and effective cooperation in connection with the Services, including providing ROCKY with reasonable facilities, timely and sufficient access to appropriate data, information, and appropriately skilled Licensee personnel, and prompt responses to questions and requests. ROCKY will not be liable for any failure or delays in performing the Services to the extent that the failure or delay is caused by Licensee’s failure to cooperate. Unless otherwise specified in an SOW, ROCKY may rely upon the accuracy and completeness of data, material, and other information furnished by Licensee, without any independent investigation or verification. Should the data contain errors or inaccuracies, Licensee shall be responsible for the time it requires for ROCKY’s Consultants to expend to resolve the identified errors or issues.

E5. Statement of Work. All work performed by ROCKY should be documented in an SOW. Each SOW shall establish the general nature of the work to be performed, the number of Consultants to be assigned, the estimated duration of the Services, the approximate number of hours, and the applicable hourly rate or fee. If there is a conflict between this Agreement and the SOW, the SOW shall control.

E6. Change Orders. Either party may propose changes in the scope of the SOW, but neither party will be bound by any proposed change until both parties have agreed to that change in writing (a “Change Order”).

E7. Scheduling. ROCKY will try to accommodate work schedule requests of Licensee to the extent commercially practicable. ROCKY reserves the right to change such schedule for any SOW if the assigned Consultants are unable to perform scheduled Services because of illness, resignation, weather, or other causes beyond ROCKY’s reasonable control. ROCKY will make commercially reasonable efforts to replace any such Consultant within a reasonable time in order to limit impact on the schedule.

E8. Cancellation or Rescheduling of SOWs. Licensee may cancel or reschedule (if previously scheduled) all or part of any SOW upon ten (10) business days advance written notice (” Notice Period”). Upon cancellation of an SOW in progress, Licensee will pay all fees and expenses for work performed through the effective cancellation date (partially completed fixed fee engagements will be prorated) as well as reasonable costs directly related to Licensee’s cancellation (such as lodging cancellation charges or air travel change fees). An SOW may be rescheduled at no cost, other than any reasonable costs directly related to rescheduling (such as lodging cancellation charges or air travel change fees). ROCKY will make reasonable efforts to accommodate Licensee’s requested dates but the rescheduled SOW dates, although mutually agreed, shall be based on availability of Consultants. If Licensee cancels or reschedules an SOW with less than the Notice Period, Licensee will also pay a fee equal to the total daily rates for Consultants assigned to the SOW for every day that the actual notice was less than the Notice Period. However, the fee may not exceed the remaining number of days scheduled on the SOW.

E9. Fees and Expenses. Unless otherwise provided in an SOW, Licensee shall pay ROCKY on a time and materials basis at ROCKY’s then-current rates. Hourly rates or fees for Services performed shall be set forth in the applicable SOW. Unless otherwise agreed in writing in the SOW, the minimum labor charge for any single day is eight hours. Billable amounts incurred in excess of eight hours per day will be billed at the standard, straight-time hourly rate. Estimated fees for Services under this Agreement do not include travel or other expenses. Licensee agrees to reimburse ROCKY for and will be invoiced for all travel and other expenses. Out-of-pocket expenses will be reimbursed on a pass-through basis based on the net cost paid or invoiced at the time of purchase, which includes airfare, ground transportation, lodging, meals and incidentals. Licensee acknowledges that ROCKY or its affiliates may receive frequent flyer miles, hotel “points”, commissions, rebates, fees, or other consideration (“Benefits”) as a result of relationships with travel service providers, alliance companies, software, hardware, and other vendors. Licensee agrees that ROCKY is not obligated to provide a credit for or reimbursement to Licensee for Benefits.

E10. Projection Equipment. If requested by ROCKY, Licensee will make available for use projection equipment for on-site training classes. Alternatively, and upon prior written request, ROCKY will provide projection equipment for an additional charge.

E11. Customization Services. If set forth in an SOW, Customizations may be developed for the use of Licensee and will conform to the Software program identified in the applicable SOW for the Software version to which the Customization Services apply as it exists at the time of development. Customization Services are not covered in Licensee’s maintenance plan. If future improvements or Updates to the applicable Software cause the program and/or databases to change, then any Customization provided to Licensee may require modification. The cost of such modification will be borne by Licensee. A very strong possibility exists that installing a hot fix or a service pack, or upgrading to a new version of the Software will require changes to any Customization. The potential also exists that Licensee will not be able to upgrade to a new service pack or version until the Customization has also been upgraded. Licensee may have to wait to gain access to a service pack, hot fix or new version of the Software until an update to the Customization can be scheduled and completed. Licensee will need to test any new Software or Updates, hot-fixes or service packs to determine how its specific Customization(s) may be impacted by any Update to the applicable Software program prior to any such Update.

E12. Services Warranty. Services will be performed in a professional and workmanlike manner, and in accordance with applicable industry standards and practices. ROCKY’s sole obligation and Customer’s sole warranty remedy is the re-performance of any Services not in compliance with this warranty.

SECTION F: TERM LICENSES AND PRODUCT-SPECIFIC TERMS.

The following definitions and terms apply only to the indicated Software when licensed. Applicable Term License and/or Product-Specific Terms take precedence over any conflicting terms in the rest of this Agreement.

F15. Term Licenses. Except where otherwise stated (product specific terms), the following terms apply where Software is licensed hereunder for a particular period identified in the Order Form (a term):

1. The Software is licensed for the term indicated in the Order Form which shall commence upon delivery of the Software. Early termination will not release Licensee from any obligation to pay for the full term in the Order Form and no refunds will be provided for a mid-term cancellation.
2. ROCKY warrants that for a period of one year from the date of delivery of Term Licensed Software, for the initial term period only, the Software will operate in substantial accordance with the applicable Documentation as it exists at the date of delivery when the Software is used in accordance with that Documentation.
3. Maintenance for Term Licensed Software commences as of delivery and is included in the Annual Term License Fee. Maintenance ceases if the License Term expires and is not renewed.
4. Unless otherwise stated in an Order Form, the Term License Software will automatically renew for additional twelve (12) month periods unless Licensee gives ROCKY written notice that it does not intend to renew the Term License at least thirty (30) days prior to the start of renewal term.
5. For multi-year Term Licenses, the first invoice will be for either the first twelve (12) months of the Term or the portion thereof to correspond with the term for other term products, at ROCKY’s option. For Term License renewals, ROCKY will invoice approximately thirty (30) days in advance of the expiration of the current term or the end of the current billing period. Except for adjustments related to increases in the applicable number of Named Users, the Term License Fee will not be increased during any twelve-month term. Term License Fees after the first year and for any renewals will be due and payable fifteen (15) days from the invoice date.
6. If Licensee does not renew its Term License, within five (5) business days following the end of the term, Licensee must present a certification signed by a corporate officer of Licensee stating that the Software has been uninstalled from all devices, Licensee has retained no copies, and that Licensee acknowledges that it has no right to continue using the Software. Licensee acknowledges that following the expiration of the License Term, any data that is retained in formats only readable by the Software will not be accessible.