Software License and Support Agreement

1.1 Defined terms

In this Agreement, these words have the following meanings:

• "Agreement" means these Standard Terms, each Order Form, each Statement of Work, and any data processing agreement that applies under Section 10.6, as it applies to Customer Data processed under this Agreement.
• "Standard Terms" means these software license and support terms, in the version that applies under Section 2.3.
• "Provider" means Preferred Data Corporation, a North Carolina corporation. "Customer" means the business named on the Order Form.
• "Order Form" means a Provider quote, order form, proposal or renewal, including a quote sent from Provider's quoting system, that incorporates these Standard Terms by reference and that Customer accepts under Section 17.2. It lists the Licensed Software, the Authorized Users or Sites, the Subscription Term and the fees.
• "Effective Date" of an Order Form means the date the Order Form states as its effective date or, if it states none, the date Customer signs or otherwise accepts it under Section 17.2.
• "Statement of Work" means a signed or accepted written description of custom development or project work, including a quote for that work.
• "Licensed Software" means the Provider programs, modules, compiled program files, reports, forms and Documentation listed on an Order Form or brought under this Agreement by Section 3.4, together with the Updates delivered to Customer and the Customizations delivered to Customer and paid for.
• "Customization" means any modification, enhancement, new program, report, form, interface or other work product Provider develops for Customer.
• "Update" means a correction, patch, maintenance release or new version of the Licensed Software that Provider makes generally available, without a separate fee, to customers with an active Subscription.
• "Documentation" means the user guides, help text and release notes Provider supplies for the Licensed Software.
• "Provider Data Structures" means the file layouts, record and field structures, data dictionaries, table and index definitions, definition and configuration files, program and report logic, screen designs, error messages and support knowledge base of the Licensed Software, but not the Customer Data stored in them.
• "Customer Data" means data that Customer or its users enter into, process with or store in the Licensed Software, including Customer's databases.
• "Customer Vendor" means a managed IT provider, contractor or other vendor, other than Provider, that Customer uses to maintain its systems or environment.
• "Third-Party Software" means software Provider does not own that the Licensed Software needs or works with, such as database engines, operating systems, report writers and office software.
• "Support Plan" means the software maintenance and support service described in Section 5, included in every Subscription.
• "Subscription" means Customer's paid right to use the Licensed Software and receive the Support Plan. "Subscription Term" means the term stated on the Order Form, including renewals.
• "Required Component" means the database engine service or instance, or other software component, that the Licensed Software needs in order to run, including Third-Party Software, whether Provider, Customer or a third party supplied, installed or resold it, but not an operating system, a system runtime or library that other software also uses, or office, email or security software.
• "Authorized Users" means the number of named users stated on the Order Form, or concurrent users if the Order Form says so. A named user is one individual person with their own sign-in, which may not be shared; Customer may reassign a named user to another person who replaces them. A concurrent user count is the largest number of people using the Licensed Software at the same time, as the features in Section 3.3 or the Required Component measure it. "Site" means a location listed on the Order Form.
• "Company Database" means each separate company, entity or set of books that Customer keeps in the Licensed Software as its own database.
• "Standard Programs" means the versions of the Licensed Software programs that Provider makes generally available to its customers, as distinct from Customizations and customer-specific versions or variants.
• "Business Hours" means the business hours Provider publishes on its contact page, as Provider updates them from time to time, excluding holidays Provider observes, unless the Order Form says otherwise.
• "Rate Schedule" means Provider's then-current hourly and service rates, as stated on the Order Form or quote or provided to Customer on request.

2.1 Parts of the Agreement

These Standard Terms are incorporated by reference into every Order Form and Statement of Work that refers to them by name, as if they were printed in full on it. Section 2.3 decides which version applies. Each Order Form, together with these Standard Terms, forms a separate contract for the software and services it lists.

2.2 Order of precedence

If documents conflict, they control in this order: (a) a data processing agreement the parties signed, for personal information only and subject to Section 10.6; (b) the Order Form, but only for a term it expressly changes by naming the Section of these Standard Terms it changes; (c) the Statement of Work, for the project it covers; and (d) these Standard Terms. Terms printed on a Customer purchase order, vendor portal or invoice approval form have no effect, even if Provider accepts or acknowledges that document.

2.3 Which version of these terms applies

Each Order Form and Statement of Work identifies, and links or attaches, the version of these Standard Terms that applies to it, and that version applies to it for its current term. If one does not identify a version, the version posted on the date Customer accepts it applies. Provider keeps every version of these Standard Terms and will give Customer a copy of any version on request. Provider may publish a new version. When Customer signs, as Section 17.2 describes, an Order Form or Statement of Work that identifies a newer version, that version also applies from then on to each of Customer's other Order Forms and Statements of Work. Otherwise, a new version applies to an existing Order Form only from its next renewal, and only if Provider gives Customer written notice of the change, which may be in the renewal reminder, at least 30 days before that renewal.

2.4 Other agreements with Provider

If Customer also has a managed IT services agreement or another agreement with Provider, this Agreement alone governs the Licensed Software and the Support Plan, and the other agreement governs the services it covers. Liability caps under different agreements are not added together. An amount past due under any other agreement with Provider is treated as past due under this Agreement for purposes of Section 9, unless Customer disputed it in writing, with specific facts, before Provider's notice under Section 9.1. Provider's website terms of service do not govern the Licensed Software.

3.1 License grant

Subject to this Agreement and to payment of the Subscription fees, Provider grants Customer, for the Subscription Term, a non-exclusive, non-transferable (except under Section 18.4), non-sublicensable license to install and use the Licensed Software, in object code form only, at the Sites and for no more than the Authorized Users, solely for Customer's own internal business operations.

3.2 Subscription only

The Licensed Software is licensed by Subscription only. The license lasts for the Subscription Term, unless it is suspended or ends under Section 3.3, 9 or 15, and it ends when the Subscription ends. Each Subscription includes the Support Plan. No license under this Agreement is perpetual, and Customer may not use the Licensed Software after its Subscription ends, except during a paid transition period under Section 15.5.

3.3 License enforcement

The Licensed Software may contain, or receive through an Update, features that confirm the Subscription is active and that use stays within the licensed Authorized Users and Sites. Customer will install Updates that deliver or maintain these features within the time Provider reasonably specifies. These features may send Provider only license information, such as Subscription status, program versions, the number of active users and computer and Site identifiers, and send no other Customer Data.

When Sections 9 and 15 allow Provider to suspend or end the license, Provider may stop the Licensed Software from running, first through the license features described in this Section, and, only where those features cannot stop the Licensed Software at a Site, by disabling the startup of a Required Component as it is configured to serve the Licensed Software. Any such step will be reversible and logged, and will not uninstall a Required Component or change its license. Provider will not delete, alter or encrypt Customer Data on Customer's systems, will not act on systems or software unrelated to the Licensed Software, and will act only through the features described in this Section or through access Customer has given Provider under this Agreement and has not revoked. Provider will not use access Customer has given it under another agreement with Provider to take a step under this Section 3.3. If Provider uses the same remote access tool under this Agreement and another agreement, access Customer gives for software support under Section 5.8 is access given under this Agreement, and Provider will record each step under this Section as made under this Agreement. If the Licensed Software stops running because of a problem on Provider's side, Provider will use commercially reasonable efforts to restore it within 1 business day after Customer reports it.

Provider will not enable a feature or take a step under this Section for any program that is not Licensed Software under an Order Form both parties have signed, or that the Order Form lists as excluded. If an excluded program depends on a Required Component, Provider will not disable that Required Component and will stop the Licensed Software another way, if at all.

Customer represents that, to its knowledge, it does not use any Required Component to run software other than the Licensed Software, except software listed on the Order Form, and will tell Provider in writing before it starts doing so. Before disabling a Required Component, Provider will review the information it has about Customer's systems, including any software inventory it keeps for Customer under another agreement, and will not disable a Required Component that Provider knows, or that the Order Form or Customer's written notice shows, other software depends on. In that case Provider will stop the Licensed Software another way, if at all. Otherwise, Provider is not responsible for effects on software Customer did not list or report.

BY SIGNING AN ORDER FORM, CUSTOMER, AS OWNER OF THE COMPUTERS ON WHICH THE LICENSED SOFTWARE RUNS OR WITH THE OWNER'S WRITTEN AUTHORITY, WHICH CUSTOMER REPRESENTS IT HAS, AUTHORIZES THE ACTIONS IN THIS SECTION AND AGREES THAT THE LICENSED SOFTWARE MAY STOP RUNNING AS THIS SECTION AND SECTIONS 9 AND 15 DESCRIBE. THESE ARE TERMS OF A LICENSE RELATED TO SOFTWARE WITHIN THE MEANING OF N.C. GEN. STAT. 14-453.1, AND THIS AUTHORIZATION APPLIES FOR ALL PURPOSES, INCLUDING ANY LAW ON COMPUTER ACCESS OR COMPUTER TRESPASS. THIS CONSENT IS GIVEN BY CUSTOMER'S SIGNATURE ON THE ORDER FORM UNDER SECTION 17.2.

Customer may not withdraw this authorization until it has stopped all use of the Licensed Software and removed it as Section 15.4 requires. A written withdrawal before then is a material breach, and Provider may terminate the affected Order Forms by written notice, with Section 15.4 applying. After a written withdrawal, Provider will take no new action on Customer's systems through remote access, but features already installed under this Section may keep operating. Asking a court or arbitrator to decide whether a step was permitted is not a withdrawal. A step taken under this Agreement is not a breach of this Agreement, a defect in the Licensed Software or a failure of the Support Plan. Whether or not Provider takes any technical step, the license is suspended and ends as Sections 9 and 15 describe, and Customer must stop using the Licensed Software when it is. Customer will not transfer a computer running the Licensed Software, or the business that uses it, unless the new owner agrees in writing to be bound by this Section or the Licensed Software is removed first.

Customer revokes or blocks Provider's access if it, or anyone acting for it, (a) removes or disables the remote access tool or account Provider uses under Section 5.8, or changes credentials or network rules so that Provider cannot connect, and does not restore access within 3 business days after Provider's written request, or (b) where Customer requires session approval, does not approve within 3 business days a remote session Provider requests in writing and identifies as made under this Section 3.3. Provider will never try to regain access it has lost. If Customer revokes or blocks access after the suspension date in a final notice under Section 9.2, while an undisputed amount stated in that notice remains unpaid, Provider may terminate the affected Order Forms immediately by written notice, and Section 15.4 applies. At any other time, if access is not restored within 30 days after Provider's written request, Provider may suspend the Support Plan without reducing fees until it is restored, and continued refusal is a material breach under Section 15.2. Features already installed under this Section may keep operating, and that is not an attempt to regain access.

3.4 Programs covered and earlier agreements

When both parties have signed an Order Form under these Standard Terms as Section 17.2 describes, every Provider Program that Customer uses or has installed becomes Licensed Software under this Agreement from that Order Form's Effective Date, whether or not the Order Form lists it, unless the Order Form lists it as excluded. "Provider Program" means any program, module, report, form, Customization or customer-specific version or variant developed by Provider or by a business Provider acquired, including any Customer bought, licensed or received support for under an earlier agreement, quote, invoice or support arrangement (each an "Earlier Arrangement"), but not a deliverable whose ownership Provider assigned to Customer in a signed writing. This conversion happens once, on the first Order Form under these Standard Terms that both parties sign, and references in this Section to the Effective Date are to that Order Form's Effective Date. A program listed as excluded on that Order Form, or excluded later under this Section, stays excluded under every later Order Form unless a later Order Form that both parties sign lists it as Licensed Software.

Each converted program is licensed for the Sites and number of users in use on the Effective Date, and those Sites and users are added to the Order Form. Within 90 days after the Effective Date, Provider may add to the Order Form, by written notice and at its then-current fees prorated under Section 5.6 from the Effective Date, any converted program, Site or users the Order Form's fees do not reflect. Customer may instead list that program as excluded by written notice within 30 days after Provider's notice. That program is then treated as excluded from the Effective Date, and Customer owes no fees for it under this Agreement.

In exchange for the Support Plan, Updates and any credit stated on the Order Form, including a credit for support Customer prepaid under an Earlier Arrangement for any period after the Effective Date, Customer permanently gives up any perpetual or other license it held to the converted programs. That surrender does not revive when this Agreement or an Order Form ends for any reason. This Section is a signed written amendment and termination of each Earlier Arrangement as to the converted programs. Amounts Customer owes, confidentiality duties and Provider's claims for unlicensed use or misuse of its intellectual property under an Earlier Arrangement survive. Provider's only obligation for support Customer prepaid under an Earlier Arrangement for any period after the Effective Date is the credit stated on the Order Form.

EXCEPT FOR THE SURVIVING OBLIGATIONS IN THE PRIOR PARAGRAPH, EACH PARTY RELEASES THE OTHER FROM ALL CLAIMS, KNOWN OR UNKNOWN, ARISING UNDER OR RELATED TO AN EARLIER ARRANGEMENT FOR THE CONVERTED PROGRAMS BEFORE THE EFFECTIVE DATE, UNDER ANY THEORY, INCLUDING CLAIMS UNDER N.C. GEN. STAT. CHAPTER 75.

Customer acknowledges that it could keep its rights under an Earlier Arrangement to any program by listing that program on the Order Form as excluded. Provider will list on the Order Form as excluded any program Customer asks in writing to exclude before it signs. Excluded programs receive no support, Updates or Customizations under this Agreement and are not subject to Section 3.3. Provider offers support, Updates and Customizations for its programs only under this Agreement. For each excluded program, this Section also amends each Earlier Arrangement so that Provider's duty to support, update or maintain that program ends at the end of the support period Customer has already paid for, and Provider will not renew it. Customer keeps any license it held to an excluded program.

3.5 Copies and test environments

Customer may make a reasonable number of copies of the Licensed Software for backup, archival, disaster recovery and testing, as long as those copies are not used for production work beyond the licensed Authorized Users.

3.6 Restrictions

Except as this Agreement expressly allows, Customer will not, and will not allow anyone else to:

• copy, modify, translate or create derivative works of the Licensed Software;
• decompile, disassemble or reverse engineer the Licensed Software, or analyze it or Customer Data to derive Provider Data Structures, except as Section 11.5 allows, or to the extent applicable law expressly allows despite this restriction and then only after giving Provider written notice and a reasonable chance to provide the information on reasonable terms;
• sell, rent, lease, lend, sublicense or host the Licensed Software for others, or use it to provide service bureau or outsourced processing for third parties;
• remove or alter any proprietary notice;
• share or reuse license information, or bypass, disable, block or interfere with the features described in Section 3.3 or any user count, including by changing system dates or blocking their network communication;
• restart, reinstall or replace a Required Component in order to run the Licensed Software, remove or disable anything Provider installed to manage the license, or run the Licensed Software on another computer, while the license is suspended or after it ends;
• give a competitor of Provider access to the Licensed Software, Documentation or Provider Data Structures;
• use the Licensed Software, Documentation, Provider Data Structures, or screens or reports generated by the Licensed Software to train, fine-tune or prompt an automated or artificial intelligence system for the purpose of reproducing, translating or replacing the Licensed Software or any part of it, except that Customer may use Customer Data and descriptions of its own business processes for any purpose;
• use the Licensed Software or Documentation to build a competing product; or
• use the Licensed Software in violation of law.

In this Section, a "competitor of Provider" means a business that develops or sells business management, accounting, inventory, manufacturing or distribution software, or that implements such software, or converts data into it, for others. Customer's outside accountants and auditors, and a Customer Vendor acting under Section 4.4, are not competitors of Provider while they act only for Customer and do not use what they see to develop, sell or implement software that replaces the Licensed Software.

3.7 Contractors and affiliates

Customer's employees, and contractors working on Customer's behalf, may use the Licensed Software within the Authorized User limit. Customer is responsible for their compliance with this Agreement and will ensure contractors are bound by confidentiality duties at least as protective as Section 11. Use by an affiliate requires that the affiliate be listed on the Order Form.

3.8 Reservation of rights

The Licensed Software is licensed, not sold. Provider reserves all rights not expressly granted in this Agreement.

3.9 License verification

Customer will keep accurate records of its users, Sites and installations of the Licensed Software for the Subscription Term and 2 years after it. On Provider's request, no more than once in any 12-month period, Customer will certify in writing the number of users and Sites using the Licensed Software. Provider may also verify use from the features described in Section 3.3, or, on at least 15 days' written notice and no more than once in any 12-month period, by a review of Customer's relevant records during Business Hours that does not unreasonably disrupt Customer's business. Provider may use an independent reviewer bound by confidentiality. If a certification or review under this Section shows that use exceeds what the Order Form allows, Customer will pay for the excess at Provider's then-current fees, without any discount on the Order Form, from the date the excess began, with interest under Section 8.4 from the date each amount would have been due. If the excess is 5 percent or more, Customer will also pay Provider's reasonable costs of the review, and Provider may conduct one further review within the next 12 months. Knowingly bypassing or tampering with the features described in Section 3.3 is a material breach that cannot be cured. Any other interference with them, such as a network or firewall change that blocks their communication, is a material breach if Customer does not correct it within 5 business days after Provider's written notice.

3.10 Added users, Sites and true-ups

Customer may add Authorized Users, Sites or programs by written request, including by email or support ticket from a person Customer has authorized under Section 5.2. The request is an order at the prices on the Order Form or, if it states none, at Provider's then-current fees, prorated so all items renew together. Added items become part of the Order Form for the rest of its Subscription Term and part of the commitment in Section 8.8. If the features described in Section 3.3 show that use exceeded the licensed Authorized Users or Sites in any calendar month, Provider may invoice the excess at the Order Form price, or at Provider's then-current fees if the Order Form states none, from the first month of the excess, and the excess becomes part of the Order Form for the rest of the term.

4.1 Third-Party Software

Customer is responsible for obtaining and keeping current licenses for all Third-Party Software, including licenses priced by user that cover at least the number of Authorized Users, unless Provider resells that Third-Party Software to Customer on an Order Form. Third-Party Software is governed by its publisher's license terms. Provider passes through any publisher warranty to the extent the publisher allows, and gives no warranty of its own for Third-Party Software.

4.2 Customer environment

Customer provides and maintains the servers, workstations, network, internet connection, operating systems and backups the Licensed Software runs on, and keeps them on versions their publishers still support. Provider will give Customer its minimum system requirements on request. Problems caused by an environment that does not meet those requirements are outside the Support Plan.

4.3 Managed IT services

If Customer also buys managed IT services from Provider, Provider's duties for Customer's infrastructure are set out in the Managed Service Provider Agreement, not in this Agreement.

4.4 Customer's IT providers and other vendors

Customer may use its own staff and Customer Vendors to maintain its environment. Customer is responsible for every act and omission of a Customer Vendor as if it were Customer's own. Unless Provider agrees in writing for a specific change, Customer and its Customer Vendors will not modify, move, rename, upgrade, patch or reconfigure the Licensed Software, a Required Component, or the data, definition, configuration or lock files the Licensed Software uses, other than through normal use of the Licensed Software. Customer may restore them from backup, and may apply a security update its publisher issues for a Required Component, after giving the notice below or, in an emergency, without waiting for it. Customer will give Provider at least 5 business days' notice before server moves, operating system upgrades, storage or network share changes, or backup restores that affect them, so Provider can coordinate, except in an emergency, when Customer will tell Provider as soon as practicable. Work Provider performs because Customer or a Customer Vendor did not follow this Section, including diagnosis, repair, reinstallation and data correction, is outside the Support Plan and billed at the Rate Schedule, and Sections 6.1 and 6.2 do not apply to the affected programs until Provider has restored them. A Customer Vendor may access the Licensed Software and Provider Data Structures only to perform services for Customer, under confidentiality duties at least as protective as Section 11, and may not keep copies of them after its work for Customer ends.

4.5 Required Components

Fees for Required Components Provider resells are stated separately on the Order Form and are not subject to the limit on increases during a term in Section 8.6. If a publisher increases its price, changes how it licenses a Required Component, ends support for the version Customer uses, or stops allowing Provider to resell it, Provider may, on written notice, pass through the publisher's new price or licensing cost, require Customer to move to a supported version or license, or offer a substitute component under Section 5.10. Fees for resold Required Components are non-cancellable and non-refundable once Provider has paid the publisher. Installing, upgrading or replacing a Required Component is billed at the Rate Schedule unless Provider includes it in a general Update.

5.1 What the Support Plan includes

While Customer's Subscription is active, except while services are suspended under Section 3.3 or 9.2, Provider will:

• provide Updates and new releases of the Standard Programs when Provider makes them generally available, and help install them remotely during Business Hours;
• investigate reported problems and correct defects in the Standard Programs that Provider can reproduce;
• release Updates within a reasonable time so that the Standard Programs keep working on the versions of Windows and of the Required Components that Provider lists as supported, subject to Section 5.10;
• accept reports of problems by phone, email or support ticket during Business Hours; and
• help correct Customer Data that was damaged by a defect in the Licensed Software.

All other support, including how-to help, is outside the Support Plan and is billed at the Rate Schedule under Section 5.4 or drawn from prepaid hours under Section 5.13.

5.2 How to request support

Customer requests support through the channels listed on the Order Form, including [email protected] and (336) 886-3282. Customer will name the people authorized to request support and approve billable work.

5.3 Response targets

Provider will use commercially reasonable efforts to respond within the targets stated on the Order Form. If none are stated, the targets are 4 Business Hours when the Licensed Software is unusable for all users, and 1 business day for everything else. Response targets are goals, not guarantees, and resolution time depends on the problem.

5.4 What the Support Plan does not include

The following are outside the Support Plan. Provider will quote them or bill them at the Rate Schedule, or draw them from prepaid hours under Section 5.13. Requests from Customer's authorized people for how-to help, setup, configuration or data corrections are billed as used, in the minimum increment on the Rate Schedule. For any other billable work estimated to take more than 1 hour, Provider will tell Customer before starting it, except investigation time billed as described below:

• how-to help and questions about using the Licensed Software, and user training;
• setup, configuration changes and report requests;
• corrections to Customer Data caused by user error;
• support of customer-specific versions or variants and of Customizations, except as Sections 5.10, 5.11 and 6 provide;
• hosting of the Licensed Software, unless an Order Form includes it;
• new features, new reports, Customizations and other development work;
• changes required by new laws, tax forms or government reporting rules, unless Provider includes them in a general Update;
• reinstalling programs or rebuilding data that was not damaged by a defect in the Licensed Software;
• problems caused by changes not made by Provider, by misuse, by Third-Party Software, or by hardware, operating system, network, power or backup failures;
• problems caused by malware or a security incident in Customer's environment;
• problems caused by, and work on, a program listed as excluded under Section 3.4;
• data imports, data clean-up and changes to Customer Data that Customer requests; and
• work outside Business Hours.

Provider may need to investigate a reported problem to learn its cause. If Provider finds that the cause is outside the Support Plan under this Section 5.4 or Section 4.4, Provider will tell Customer, and may bill at the Rate Schedule the investigation time after the first hour, together with any further work Customer approves. Provider will not bill for investigation of a problem caused by a defect in the Licensed Software.

5.5 After-hours work

Work Customer asks Provider to perform outside Business Hours is billed at 1.5 times the Rate Schedule. After-hours availability depends on staff availability and is not guaranteed unless the Order Form says otherwise.

5.6 Coverage of all programs

Because the Licensed Software programs share data and work together, a Subscription under an Order Form both parties have signed must cover all Provider Programs in use at a Site, other than programs listed as excluded under Section 3.4. Under any other Order Form, it must cover all Licensed Software in use at a Site. Programs Customer adds later join the Subscription, with fees prorated so that all programs renew on the same date.

5.7 Supported versions

Provider supports the version of the Licensed Software it most recently delivered to Customer, as changed under Section 5.10. Customer will install Updates Provider identifies as required within the time Provider reasonably specifies. Until Customer does, Provider may limit support to helping install them.

5.8 Remote access

Customer will allow Provider secure remote access to the systems running the Licensed Software. Provider will use named accounts, multi-factor authentication where the access tool supports it, and only the access the work requires. Customer may require that each remote session be approved by Customer.

5.9 If managed IT services end

Ending a managed IT services agreement with Provider does not end the Subscription or reduce the fees owed for its term. Customer may keep its Subscription, or choose not to renew it under Section 15.1. Either way, the Licensed Software may be used only while a Subscription is active.

5.10 Standard programs, variants and product changes

Provider maintains one body of software for all its customers and may improve, reorganize, replace or retire programs in it, as this Section describes.

Provider may replace a customer-specific version or variant of a program with Provider's standard version of that program, delivered as an Update, if the standard version performs materially the same functions that Customer uses in the variant. Provider will give Customer at least 60 days' written notice identifying the variant and the standard version, and Customer may test the standard version on a copy of its data for 30 days of that period. If Customer shows in writing during the test period that the standard version does not perform a function Customer uses, Provider will, at its option, add that function, keep supporting the variant, or quote the change as a Customization.

Instead of moving to the standard version, Customer may keep the variant by paying the variant support fee stated on the Order Form or, if none is stated there, on the Rate Schedule, from the date stated in Provider's notice. A variant Customer keeps without paying that fee remains licensed, but Provider's only support obligation for it is to help Customer move to the standard version.

Provider may retire a program on at least 180 days' written notice. If Provider does not offer a replacement that performs materially the same functions, Provider will reduce the Subscription fees by that program's share of the fees, as shown on the Order Form or, if not shown, as Provider reasonably allocates it, from the retirement date.

Provider may change the database engine, runtime, Required Components or other technology the Licensed Software uses, or offer it in a different form, by an Update on at least 180 days' written notice. Provider will tell Customer what the change requires of Customer's environment. Customer is responsible for meeting those requirements at its cost, and Provider's work to move Customer to the new technology is included in the Support Plan only to the extent the notice says so. Hosting of the Licensed Software by Provider requires a new or amended Order Form.

A change under this Section is not a breach of this Agreement, a failure of the Support Plan or a warranty claim.

5.11 Support of Customizations

The Order Form, quote or Statement of Work for a Customization may state an annual support fee for it. Any such fee is added to the Subscription fees from the first billing date after acceptance under Section 7.6, prorated to the billing period, and covers defect correction and Updates for the Customization under the Support Plan. If no support fee is stated, Provider corrects defects in the Customization at no charge during its warranty period under Section 6, and after that period support for it is billed at the Rate Schedule or drawn from prepaid hours under Section 5.13.

5.12 Support remedy

If Provider does not perform the Support Plan as Section 5 describes, Customer will notify Provider in writing, and Provider will re-perform the affected support. If Provider does not do so within 30 days after the notice, Customer may terminate the affected Order Form by written notice, without a further cure period, as a termination under Section 15.2 for Provider's uncured breach, and receive the refund in Section 15.4. Re-performance, and that termination and refund, are Customer's exclusive remedies for failure of the Support Plan.

5.13 Prepaid support hours

An Order Form may include a monthly block of prepaid support hours at the price it states. The block is part of the Subscription fees for the Subscription Term. Prepaid hours are used first for work billed at the Rate Schedule, with after-hours work counting at 1.5 hours for each hour worked. Hours not used in a month carry over to the next month only, and then expire. Work beyond the available prepaid hours is billed at the Rate Schedule. Prepaid hours have no cash value and are not refundable, except as part of a refund under Section 15.4.

6.1 New software

For 12 months after a Provider program is first delivered to Customer, Provider will correct or replace that program if it fails to operate materially as described in its Documentation and Customer reports the failure in writing during that period. After that, defects in the Standard Programs are corrected under the Support Plan while the Subscription is active, and other programs are supported as Sections 5.10 and 5.11 describe.

6.2 Customizations

For 90 days after acceptance under Section 7.6, each Customization will materially conform to its agreed written specification. Provider will correct nonconformities Customer reports in writing during that period at no charge.

6.3 Services

Provider will perform services in a professional and workmanlike manner consistent with generally accepted industry standards. Customer must report a breach of this warranty in writing within 30 days after the services were performed.

6.4 Exclusive remedy

For a breach of the warranties in this Section 6, Provider will, at its option, correct the problem, replace the affected item, or, if it cannot do either within a reasonable time, refund the fees for the nonconforming item or service, after which Customer will stop using that item. For Licensed Software, the refund is the prepaid fees for that item covering the unused part of the current period. For a Customization or a service, it is the fees Customer paid for that Customization or service. This is Customer's exclusive remedy for breach of these warranties.

6.5 Exclusions

These warranties do not apply to problems caused by modifications not made by Provider, misuse, Third-Party Software, Customer's environment, or use outside the Documentation.

6.6 Disclaimer of warranties

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE LICENSED SOFTWARE AND SERVICES ARE PROVIDED "AS IS," AND PROVIDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR-FREE OR RUN WITHOUT INTERRUPTION.

6.7 Customer's business decisions

The Licensed Software is a tool. Customer is responsible for how it configures and uses it, for the accuracy of the data it enters, and for reviewing reports, calculations, tax and payroll amounts, prices, filings and other outputs before relying on them. Provider is not responsible for Customer's compliance with tax, employment, product safety or other laws, or for decisions Customer makes using the Licensed Software, except to the extent caused by Provider's breach of an express warranty in this Section 6.

7.1 Quotes and Statements of Work

Provider performs Customizations and project work under a written quote or Statement of Work that describes the deliverables, assumptions, price and whether the work is fixed-fee or time-and-materials.

7.2 Fixed-fee work

For fixed-fee work, Provider will not bill more than the quoted amount for the quoted scope. Work outside that scope requires a change order under Section 7.4.

7.3 Time-and-materials work

Time-and-materials work is billed at the Rate Schedule, in the minimum time increments stated on the Order Form or quote. If Provider gave a written estimate, Provider will notify Customer and get Customer's approval before exceeding that estimate by more than 10 percent.

7.4 Change orders

Either party may request a change in scope. A change takes effect only when both parties agree in writing, which may be by email, on a change order that states the effect on scope, price and schedule.

7.5 Customer cooperation

Customer will provide timely information, decisions, test data and access, and will name a person with authority to approve the work. Provider is not responsible for delays caused by Customer, and may adjust the schedule, and for time-and-materials work the cost, to reflect them.

7.6 Testing and acceptance

Provider tests Customizations on a copy of Customer's data or a test system, not on Customer's live system, unless Customer approves testing there. After delivery, Customer has 10 business days to test and to report in writing any material nonconformity with the specification. A Customization is accepted at the earlier of the end of that period without a written report, or Customer's use of it in normal business operations. Provider will correct reported nonconformities and redeliver, and the acceptance period restarts for the corrected items.

7.7 Installation and rollback

Provider will schedule installation of Updates and Customizations with Customer. Before installation, Customer will confirm that a current backup of the affected systems and Customer Data exists. Provider will keep the prior version of each program it replaces so the prior version can be restored if needed.

8.1 Fees and invoicing

Unless the Order Form states a different structure, Subscription fees are a platform fee for each Company Database and a user fee for each Authorized User, at the amounts stated on the Order Form. Support outside the Support Plan is billed at the hourly rate on the Rate Schedule or drawn from prepaid hours under Section 5.13, and custom programming is quoted separately under Section 7. Customer will pay the fees on each Order Form and Statement of Work. Unless the Order Form says otherwise: Subscription fees are invoiced in advance, monthly, quarterly or annually as the Order Form states; one-time setup, installation or data conversion fees are invoiced when the Order Form is signed; time-and-materials work is invoiced monthly in arrears; and fixed-fee work is invoiced on the milestones in the quote.

8.2 Automatic subscription payments

Subscription fees are paid by automatic recurring payment through Provider's payment processor, from a bank account (ACH) or a card. Customer will keep a valid payment method on file for the Subscription Term. By accepting the Order Form, Customer authorizes Provider and its payment processor to charge that payment method for each Subscription fee and each other invoiced amount when due, until all amounts owed under the Order Form are paid. Other invoices may be paid the same way or by ACH transfer. Card payments may carry a processing fee where the law allows; any such fee is shown on the invoice or payment page before Customer pays. Revoking this authorization, removing the payment method or reversing a payment through a chargeback or ACH return is nonpayment of that amount, and Customer will also pay any returned-payment fee stated on the Order Form. Provider will refund or credit any amount found not owed under Section 8.5 within 10 business days after the dispute is resolved.

8.3 Due date

Subscription fees are due and charged on each billing date, which is the date the Order Form states or, if it states none, the first day of each billing period. Other invoices are due within 30 days after the invoice date, unless the Order Form says otherwise. If an automatic payment fails, Provider will notify Customer and may retry the charge, and Customer will promptly update its payment method. An amount is past due if it remains unpaid after its due date. A payment counts as made when Provider receives cleared funds.

8.4 Late payment

Amounts not paid when due accrue interest at 1.25 percent per month (15 percent per year), or the highest rate the law allows, whichever is lower, starting on the day after the later of the due date and 25 days after the invoice date, until paid. This rate applies both before and after any judgment or arbitration award. If any interest charged would exceed the lawful rate, the rate is reduced to the lawful rate and any excess paid is applied to principal or refunded. Interest does not accrue on an amount disputed under Section 8.5 until the end of the period in Section 9.3, but on any part of it found owed or left unpaid after that period, interest accrues from the date it would have accrued without the dispute. To the extent the law allows, Customer will also pay Provider's costs of collection, including attorneys' fees as Section 18.2 provides.

8.5 Billing disputes

Customer may dispute an invoice or charge only on the ground that it is incorrect, such as a charge for services not ordered or not performed, a wrong quantity or rate, or a duplicate charge. To dispute, Customer must notify Provider in writing under Section 18.3 within 15 days after the invoice date or, for an automatic charge, the billing date, explain the error with specific facts, and pay the undisputed part by the later of its due date and the date of the dispute notice. A support ticket, call or message to Provider staff is not a dispute notice. An invoice or charge not disputed this way is accepted. A claim that the Licensed Software or services fell short is handled under Sections 6 and 16, is not a ground to dispute a Subscription fee, and is not a reason to withhold payment. Customer will pay all amounts without setoff or deduction. The parties will work in good faith to resolve a dispute within 30 days after the dispute notice. Customer will pay any amount found owed by the later of 5 business days after the dispute is resolved and the end of the period in Section 9.3. If the dispute is not resolved by the end of that period, Customer will pay the disputed amount then, under protest if it wishes as Section 9.3 provides, and may seek a refund under Section 16.

8.6 Price changes

If an Order Form states a period during which its fees are locked, Provider will not increase the fees it lists during that period, except for the added items and pass-through costs that this Section excludes from the 7 percent limit. Provider may change Subscription fees and the Rate Schedule effective at a renewal by stating the change in the renewal reminder under Section 15.1. During a term, Provider may change them once in any 12-month period, by no more than 7 percent over the fees then in effect, with at least 30 days written notice. That limit does not apply to fees for Authorized Users, Sites, programs, Customizations or variant support added during the term, or to increases in the price of Third-Party Software or Required Components Provider resells to Customer, which Provider may pass through on written notice, including under Section 4.5. A price change does not affect fees already prepaid for the current period or fixed-fee work already quoted and accepted.

8.7 Taxes

Fees do not include taxes. Customer will pay all sales, use, excise and similar taxes on the fees, other than taxes on Provider's income. Provider will collect sales and use tax where the law requires it and will state taxes separately on each invoice. Different rates and exemptions can apply to prewritten software, custom software, maintenance and support, and other services, so invoices may tax items differently. Customer will give Provider a valid exemption certificate for any exemption Customer claims, and Provider may rely on it. If a taxing authority later assesses tax on fees that Provider did not tax because of Customer's certificate or information, Customer will pay that tax and any related interest and penalties.

8.8 Subscription commitment

Each Subscription is a commitment for its full Subscription Term, even if fees are billed monthly or quarterly. Except as this Agreement expressly provides, Subscription fees are non-cancellable and non-refundable, and Customer may not reduce the Authorized Users, Sites or Licensed Software on an Order Form until its next renewal.

9.1 Notice of past-due amounts

If an undisputed amount remains unpaid 10 days after its due date, including an automatic payment that failed, Provider will send Customer written notice of the amount and the date by which it must be paid, which will be at least 10 days after the notice.

9.2 Suspension of services and license

If Customer does not pay by that date, Provider may suspend support, Updates, project work and its remote access to Customer's systems, and will send a final written notice, by email and by courier or mail, stating the amounts past due and the date on which the license will be suspended, which will be at least 10 days after the final notice is emailed. If Customer has not paid, before that date, the amounts stated in the final notice and every other amount whose payment date in a notice under Section 9.1 has passed, Customer's license is suspended on that date without further notice, Customer must stop using the Licensed Software until the license is restored, and Provider may stop it from running as Section 3.3 describes, with any technical step taken outside Business Hours or effective at the next start. Under Section 8.8, Subscription fees continue to accrue during any suspension. A notice that misstates an amount in good faith remains effective for the amount actually past due if that amount was not paid by the stated date, and Provider will correct the amount promptly when it learns of the error. Unless the Subscription has ended, Provider will restore the license, resume services and restore the Licensed Software within 1 business day after it receives cleared funds for all past-due amounts and accrued interest. Customer will also pay for Provider's time to restore the license and the Licensed Software at the Rate Schedule, with a minimum of 1 hour, which Provider may charge to the payment method on file after restoring it. Restoration is not delayed while this charge is processed.

Provider is not liable for any loss caused by a suspension or technical step taken in good faith under Section 3.3, this Section 9 or Section 15. If such a step turns out not to have been permitted, Provider's only obligations are to restore the Licensed Software within 1 business day after learning of it and to credit the Subscription fees for the days the Licensed Software did not run.

9.3 Disputed amounts

Provider will not suspend services or the license over an amount Customer disputes in good faith under Section 8.5, as long as Customer pays on time all undisputed amounts and all recurring Subscription fees at the rate stated on the Order Form. A dispute is in good faith only if it meets Section 8.5. This protection lasts for 30 days after Customer's dispute notice, or longer if Provider agrees in writing. After that, any part of the disputed amount that remains unpaid is treated as past due, and Section 9.1 applies to it. A dispute not raised as Section 8.5 requires does not delay suspension.

After that period, Customer may avoid suspension over the disputed amount by paying it under protest, with written notice saying so. Payment under protest does not waive the dispute. If it is later agreed or decided that any part was not owed, Provider will refund that part within 10 business days after it is agreed or decided, with interest at the rate in Section 8.4 from the date it was paid. Provider will not suspend the license over an amount paid under protest.

9.4 Customer Data after suspension or termination

Customer Data belongs to Customer. Suspension and termination never delete, alter or encrypt Customer Data on Customer's systems. If Customer asks in writing while the license is suspended under Section 9.2, or within 30 days after the Subscription ends or, if Section 15.5 applies, after the last transition period ends, Provider will deliver one export of Customer Data in a standard format, such as CSV files, within 5 business days after the request, at no charge, and further exports at the Rate Schedule. Customer's right to this free export does not depend on paying any amount Provider claims is owed. Provider may restore a Required Component for the time needed to take an export. Stopping the Licensed Software or a Required Component is not withholding Customer Data while Provider meets this deadline. If Provider misses it, Customer may run the Required Component only to export its data with other tools. Damage caused by Customer's use of the Licensed Software after suspension, or by an attempt to work around a suspension, is not alteration by Provider.

9.5 Reinstatement

Reinstating an ended Subscription is a new purchase that requires Provider's written agreement. To reinstate it, Customer signs a new Order Form and pays (a) all past-due amounts and accrued interest; (b) the Subscription fees for the period between its end and reinstatement, up to 12 months, less any amount Customer already paid under Section 15.4 for the same period; (c) any reinstatement fee stated on the Order Form; and (d) Provider's time at the Rate Schedule to bring the Licensed Software and Customer's environment up to the current supported version. Provider will restore the Licensed Software within 1 business day after it receives cleared funds. Provider may waive or reduce these amounts in writing.

10.1 Ownership

Customer owns Customer Data. Customer grants Provider a non-exclusive, royalty-free license to access, copy, retain and use Customer Data to provide the software and services under this Agreement, as Customer instructs, and as Section 10.3 allows. Provider will not sell Customer Data and will never disclose it to another customer.

10.2 Who can access Customer Data

Only Provider personnel, and Provider's service providers acting for Provider, who need access to do the work may access Customer Data, and each is bound by confidentiality duties. Provider uses secure remote access tools, named accounts and logged sessions, and limits each person's access to what the work requires. Provider's current service providers that may process Customer Data are listed on its Sub-processors page.

10.3 Copies for support, development and testing

Customer agrees that Provider may make and retain copies of Customer Data, including full copies of Customer's databases, and use them for troubleshooting, reproducing and fixing problems, software development, testing, quality assurance, support, training of Provider personnel and improving the Licensed Software, including work on software Provider also provides to other customers. Provider's service providers listed on its Sub-processors page, and the tools Provider uses, may do the same on Provider's behalf, under written confidentiality and security obligations at least as protective as Section 11 and this Section 10. This is standard practice for business software and is part of what Customer receives the Support Plan for. Customer's acceptance of an Order Form is its documented instruction to Provider to process Customer Data for these purposes, including under any data processing agreement.

Provider will use reasonable administrative, technical and physical safeguards to protect these copies, including keeping them encrypted in environments that Provider controls or that its service providers operate for it under written security and breach-notice obligations, and limiting access to people who need it. Before a copy is used for development, testing or training, rather than to troubleshoot a specific problem, Provider will mask or remove tax identification numbers, bank and payment card account numbers and similar identifiers where practicable. Provider will also mask or de-identify other Customer Data where practicable, may use de-identified or aggregated data that no longer identifies Customer or any individual for any purpose, and will never sell Customer Data, disclose it to another customer or include it in software or materials delivered to anyone else.

Provider will keep these copies only as long as reasonably needed for these purposes, and no longer than 12 months after the Subscription ends or, if Section 15.5 applies, after the last transition period ends, except copies in backups that are overwritten on their normal schedule, de-identified or aggregated data, and records the law requires Provider to keep, which remain protected under Section 11 until deleted. Provider disposes of copies under written disposal procedures that make the information unreadable. Provider will not change Customer Data in Customer's live system without Customer's approval, except to apply a correction Customer requested.

Customer waives, and releases Provider from, any claim arising from Provider's use of Customer Data as this Section allows. Any other claim about Provider's handling of Customer Data is subject to Section 14.

10.4 Backups

Customer is responsible for backing up its systems and Customer Data and for confirming that backups can be restored, unless a separate managed services agreement makes Provider responsible for backups.

10.5 Security incidents

If Provider discovers, or is told by one of its service providers of, a breach of security that affects Customer Data in the possession or control of Provider or its service providers, Provider will notify Customer immediately after that discovery or report, consistent with the legitimate needs of law enforcement, and in any case as applicable law requires. Provider will cooperate with Customer's investigation and give Customer the information Provider has that Customer needs to meet its own notice duties.

10.6 Personal information

Customer represents that it has the right to provide Customer Data to Provider for the uses in this Section 10, including personal information about its employees, contractors, vendors and customers, such as tax identification numbers and bank account details. Customer is responsible for having a lawful basis to collect that information and for giving any notice and obtaining any consent its employees, vendors and others need for Provider's use under Section 10.3. If Customer needs a data processing agreement for personal information in Customer Data, Customer may ask Provider for one, and it applies under this Agreement only once both parties sign it and it names this Agreement. A data processing agreement the parties signed for another agreement with Provider, such as a managed IT services agreement, does not apply to Customer Data under this Agreement unless it names this Agreement expressly. A data processing agreement that applies under this Agreement controls for personal information as Section 2.2 provides, except that it does not limit Section 10.3 unless it says so expressly.

11.1 Confidential Information

"Confidential Information" means non-public information one party discloses to the other that is marked confidential or that a reasonable person would understand to be confidential. Customer Data is Customer's Confidential Information. The Licensed Software, its source code, the Documentation, Provider's pricing and the terms of each Order Form, including its prices and discounts, are Provider's Confidential Information. Provider Data Structures are also Provider's Confidential Information and trade secrets, whether or not marked and whether Customer learns them from Provider, from the Licensed Software installed on its systems or from inspecting Customer Data. Section 11.3 does not make them public because they are installed on Customer's systems or on the systems of Provider's other customers.

11.2 Duties

The receiving party will use the other party's Confidential Information only to perform or receive the benefits of this Agreement, will protect it with at least reasonable care, and will share it only with its personnel, contractors and advisers who need it and are bound by similar duties.

11.3 Exceptions

These duties do not apply to information that is or becomes public through no fault of the receiving party, was known to it without restriction before disclosure, is received from a third party without a duty of confidentiality, or is developed independently without use of or reference to the other party's Confidential Information, as shown by written records. A party may disclose Confidential Information when required by law or court order, after giving the other party prompt notice where the law allows.

11.4 Duration

These duties last during this Agreement and for 3 years after it ends, and for trade secrets and Customer Data, for as long as the information remains a trade secret or is held by the receiving party. Within 10 days after Customer must stop using the Licensed Software under Section 15.4, Customer will return or destroy the Documentation and any Provider Data Structures it holds, except archival copies Section 15.4 permits, and on request certify this in writing.

11.5 Provider Data Structures and moving to another system

Customer Data belongs to Customer, and nothing in this Section limits Customer's right to its Customer Data or to the export under Section 9.4. Customer may give Customer Data, and any export of it, to anyone. Customer may describe its own business processes, reports and requirements to anyone. Customer will not, and will not allow any third party to, copy, analyze, document or use Provider Data Structures, or the Licensed Software, to build, sell or offer any tool, converter, service or software for reading, converting or migrating data created by the Licensed Software, except as Section 15.7 allows. A third party that receives Provider Data Structures from or through Customer receives them subject to this Section, and Customer is responsible for its compliance. This Section and Section 3.6 do not stop Customer, or a vendor acting only for Customer, from reading, mapping and importing an export under Section 9.4, or from exporting Customer Data with other tools when Section 9.4 allows it, in order to move Customer's own data to another system, as long as any tool or mapping built that way is used only for Customer's own data.

12.1 Provider ownership

Except as Section 12.2 provides, Provider and its licensors own the Licensed Software, Customizations, Documentation, source code and all related intellectual property rights. Provider maintains one body of software used across its customers and may reuse its general skills, know-how and code in work for others, but never Customer's Confidential Information or Customer Data.

12.2 Customizations are licensed to Customer

Once paid for, each Customization is part of the Licensed Software and is licensed to Customer under Section 3 for the Subscription Term. A Statement of Work may instead assign ownership of a specific deliverable to Customer, but only if it says so expressly, and then only on payment in full. Exclusivity is available only as Section 12.6 provides.

12.3 Customer materials

Customer owns its logos, forms, business rules and other materials it provides. Customer grants Provider a non-exclusive, perpetual, irrevocable, royalty-free license to use, copy and modify them to perform the work and, to the extent they are incorporated into a Customization or other Provider program, as part of that program, but not to disclose Customer's Confidential Information or Customer Data, or Customer's name or logo, to anyone else.

12.4 Feedback

Customer grants Provider a perpetual, irrevocable, worldwide, royalty-free license to use, copy, modify and commercialize any suggestion, idea, requirement or feedback about Provider's software or services that Customer or its users give Provider, without obligation to Customer, but not in a way that discloses Customer's Confidential Information.

12.5 Source code and escrow

This Agreement does not include delivery of source code. Source code escrow is available only if an Order Form provides for it. If it does: (a) Customer pays the escrow agent's fees and Provider's time to prepare and update deposits at the Rate Schedule; (b) Provider will update the deposit no more than once a year; (c) the only release conditions are that Provider stops doing business without a successor or assignee that continues the Support Plan, or Provider rejects this Agreement in a bankruptcy proceeding, and in either case Customer is current on all fees; and (d) on release, Customer may use the deposited source code only to support and correct the Licensed Software for its own internal use at its licensed Sites for the rest of the paid Subscription Term, may not disclose it except to a contractor bound by Section 11, and remains bound by Sections 3.6, 11 and 12.

12.6 Provider owns what it builds

Except for a deliverable whose ownership a Statement of Work expressly assigns to Customer under Section 12.2, or whose ownership Provider assigned to Customer in a signed writing under an Earlier Arrangement: (a) Customer hereby assigns to Provider all rights, title and interest it has or may acquire in any Customization, customer-specific version or variant, and in any modification, translation, add-on or derivative work of the Licensed Software made by or for Customer, including by Customer's contractors or Customer Vendors, and will have its contractors and Customer Vendors sign any document Provider reasonably requests to confirm this; (b) Customer confirms that it does not own any Provider Program it uses, including one it paid to have developed under an Earlier Arrangement; and (c) a fee Customer pays for a Customization buys the work and a license under Section 3, not exclusivity, and Provider may license the same or similar work to others, without Customer Data or Customer's Confidential Information. Exclusivity requires a Statement of Work that says so and states its price and duration. This Section 12.6 applies only once both parties have signed an Order Form as Section 17.2 describes.

13.1 Provider indemnity

Provider will defend Customer against any third-party claim that the Licensed Software, as delivered by Provider and used as this Agreement allows, infringes a United States patent, copyright or trademark or misappropriates a trade secret, and will pay the damages and costs finally awarded or agreed in settlement. If such a claim is made or likely, Provider may obtain the right for Customer to keep using the item, modify or replace it so it does not infringe, or end the license for that item and refund the prepaid fees for it covering the unused part of the current period.

13.2 Exclusions

Provider has no duty under Section 13.1 for claims caused by Third-Party Software, by modifications not made by Provider, by Customer's specifications or materials, or by combining the Licensed Software with items Provider did not supply.

13.3 Customer indemnity

Customer will defend Provider against any third-party claim arising from (a) Customer Data or Customer's materials or specifications; (b) use of the Licensed Software by Customer or its users in violation of law or this Agreement; (c) Third-Party Software Customer supplies, or Customer's failure to hold valid licenses for Third-Party Software; (d) a security incident in Customer's environment that Provider did not cause; (e) suspension, termination, expiry or non-renewal of the license, or stopping the Licensed Software from running, carried out as this Agreement provides, including its effect on software that depends on a Required Component and that Customer did not list on the Order Form or report in writing as Section 3.3 requires, and including claims by Customer's affiliates, users, contractors or customers; (f) the acts or omissions of a Customer Vendor, including its access to the Licensed Software, Required Components or Provider Data Structures; or (g) Customer's lack of the right, notice or consent that Section 10.6 requires for Provider's use of Customer Data under Section 10.3, including a claim by an individual whose information is in Customer Data, even if the claim also alleges that Provider was negligent. Customer will pay the damages and costs finally awarded or agreed in settlement.

13.4 Procedure

The party seeking defense will notify the other promptly, give it control of the defense and settlement, and cooperate at the defending party's expense. A delay in notice relieves the defending party only to the extent the delay harms it. No settlement may impose an obligation or admission on the defended party without its written consent. This Section 13 states each party's entire liability, and the other party's exclusive remedy, for third-party intellectual property claims.

14.1 No indirect damages

NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION OR LOSS OF GOODWILL, ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED THAT THEY WERE POSSIBLE.

Fees and other amounts owed under this Agreement, including amounts that become due under Section 15.4, are direct damages and are not limited by this Section 14.1. The limits in this Section 14 apply to the fullest extent the law allows, including to claims under N.C. Gen. Stat. Chapter 75 and 1-539.2A.

14.2 Liability cap

EACH PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, FOR ALL CLAIMS TOGETHER AND WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), UNDER STATUTE OR OTHERWISE, WILL NOT EXCEED THE FEES CUSTOMER ACTUALLY PAID UNDER THE ORDER FORM GIVING RISE TO THE CLAIM IN THE 12 MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM.

For Customer, however, the cap is the greater of that amount and the fees payable under all of Customer's Order Forms in the 12 months before the event giving rise to the claim.

14.3 Lost or damaged data

If Customer Data is lost or damaged because of Provider's breach of this Agreement, Provider's obligation is to use reasonable efforts to restore it from Customer's most recent available backup, at no charge, and the cap in Section 14.2 applies to any other liability for that loss.

14.4 Exceptions

Sections 14.1 and 14.2 do not limit Customer's obligation to pay fees, interest, taxes, collection costs, attorneys' fees and every other amount due under this Agreement, including under Sections 3.9, 3.10, 8, 9, 15 and 18.2, Customer's liability for breaching Section 3, Customer's obligations under Section 13.3, Customer's liability for breach of Section 11 as to Provider's Confidential Information and Provider Data Structures, for breach of Section 11.5 and for amounts due under Section 18.13, either party's liability for intentional misuse of the other party's intellectual property or Confidential Information, liability for willful misconduct or fraud, or any liability that cannot be limited by law. Willful misconduct does not include a step taken in good faith under Section 3.3, 9 or 15. Provider's total liability under Section 13.1 is separate from the cap in Section 14.2 and will not exceed two times that amount.

14.5 Basis of the bargain

The fees reflect this allocation of risk. These limits apply even if a limited remedy fails of its essential purpose.

15.1 TERM AND AUTOMATIC RENEWAL

Each Order Form starts on its Effective Date and lasts for the initial term it states, or 12 months if it states none. IT THEN RENEWS AUTOMATICALLY FOR SUCCESSIVE 12-MONTH TERMS UNLESS EITHER PARTY GIVES WRITTEN NOTICE OF NON-RENEWAL AT LEAST 15 DAYS BEFORE THE END OF THE CURRENT TERM. Provider will send Customer a written reminder, stating the renewal date, any change in fees or other terms, shown in bold type of at least 12 points, and how to give notice of non-renewal, at least 30 and no more than 45 days before each renewal. If Provider sends the reminder late, Customer may give notice of non-renewal until 15 days after Provider sends it. If that notice is given after the renewal date, the Order Form ends 15 days after Provider receives it, and Customer pays the Subscription fees through that date.

15.2 Termination for breach

Either party may terminate an Order Form by written notice if the other party materially breaches it and does not cure the breach within 30 days after written notice. Provider may also terminate an Order Form by written notice if Customer does not pay the amounts Section 9.2 requires before the suspension date in a final notice under Section 9.2, immediately if Customer knowingly bypasses or tampers with the features described in Section 3.3 or works around a suspension as Section 3.6 prohibits, or if Customer breaches any other part of Section 3.6, or interferes with those features as Section 3.9 describes, and does not cure the breach within 5 business days after written notice. If the license stays suspended under Section 9.2 for 30 days, the Order Form terminates automatically unless Provider tells Customer in writing that it continues.

15.3 Insolvency

Either party may terminate any or all Order Forms by written notice if the other party becomes insolvent, makes an assignment for the benefit of creditors, or becomes the subject of a bankruptcy or similar proceeding that is not dismissed within 60 days.

15.4 Effect of termination

When an Order Form ends: Customer pays all fees owed through the end date; the license and the Support Plan end; Provider may stop the Licensed Software from running as Section 3.3 describes; and prepaid fees are not refunded, except where this Agreement says otherwise. Customer will stop all use of the Licensed Software on the end date or, if Section 15.5 applies, when the last transition period ends, and within 10 days after that will remove it from its systems except for archival copies Provider allows in writing, and on Provider's request certify this in writing. Customer keeps its Customer Data.

If an Order Form ends early under Section 3.3, 15.2 or 15.3, other than by Customer's termination under Section 15.2 for Provider's uncured breach or under Section 15.3, or if Customer repudiates it or ends it early without a right to do so, the Subscription fees for the rest of the current term become due immediately, discounted to present value at 5 percent per year, less any third-party license costs Provider will no longer incur, and less 15 percent of the remaining fees as the parties' agreed estimate of the support and delivery costs Provider will no longer incur. Customer may also end an Order Form early at any time by written notice and payment of the same amount. The parties agree that Provider's loss from an early ending is difficult to measure and that this amount is a reasonable estimate of it, not a penalty. It is not added to fees already accrued under Section 9.2 for the same period, and it is credited against reinstatement under Section 9.5. Provider may charge it to the payment method on file 10 days after written notice, unless within those 10 days Customer disputes in writing, with specific facts, that the Order Form ended as the notice states or that the amount is correct. In that case Provider will not charge the disputed amount to the payment method and may collect it by suit or arbitration under Section 16, with interest under Section 8.4 on any part found owed.

If Customer terminates an Order Form under Section 15.2 because of Provider's uncured breach, Provider will refund the prepaid Subscription fees for the unused part of the term within 30 days after the end date.

15.5 Transition after termination

Section 9.4 applies to Customer Data when a Subscription ends. If Customer has paid all amounts then due, including amounts due under Section 15.4, and asks in writing before the end date, Provider will keep the Licensed Software running after the end date for one or two 30-day periods so Customer can move to another system. Each period is paid in advance at 150 percent of the last monthly Subscription fee. Provider will delete the copies of Customer Data it holds as Section 10.3 provides.

15.6 Survival

Sections that by their nature should survive the end of an Order Form or of this Agreement survive, including Sections 1, 2, 3.2, 3.3, 3.4, 3.6, 3.7, 3.8, 3.9, 3.10, 4.4, 5.10, 5.12, 6.4, 6.5, 6.6, 6.7, 8, 9, 10, 11, 12, 13, 14, 15.4, 15.5, 15.7, 16, 17 and 18.

15.7 Migration assistance

If Customer moves to another system, Provider will on request provide, for the fees on the Rate Schedule: (a) a migration data package describing the file layouts of the Customer Data being moved, for Customer and one named replacement vendor, each of which must first sign Provider's migration confidentiality agreement limiting use of the package to moving Customer's own data; and (b) transition services, such as custom extracts, field mapping and meetings with the replacement vendor, at the Rate Schedule, prepaid in blocks of 10 hours, with unused hours refunded at the end of the transition. Provider will provide these only while all amounts then due to Provider are paid. The free export under Section 9.4 does not depend on this Section.

16.1 Negotiation

The parties will first try to resolve any dispute through good-faith negotiation between people with authority to settle it. The party raising the dispute will describe it in writing, and the parties will have 30 days to resolve it. Sections 16.1 to 16.3 do not delay or limit Provider's rights under Sections 3.3, 9 and 15, and starting a proceeding does not extend the period in Section 9.3.

16.2 Mediation

If negotiation fails, either party may request mediation with a mutually agreed mediator. The parties will share the mediator's fees equally.

16.3 Arbitration

Except as Section 16.4 provides, any dispute not resolved by negotiation or mediation will be settled by binding arbitration before a single neutral arbitrator under the Commercial Arbitration Rules of the American Arbitration Association, held in Guilford County, North Carolina. Judgment on the award may be entered in any court with jurisdiction. The Federal Arbitration Act governs this agreement to arbitrate, and where it does not apply, the North Carolina Revised Uniform Arbitration Act does. The arbitrator may award attorneys' fees as Section 18.2 provides.

16.4 Exceptions

Either party may bring a claim within the jurisdiction of small claims court in that court. Either party may bring an action in court to collect amounts owed under this Agreement without first using negotiation, mediation or arbitration. Either party may ask a court for an injunction or other equitable relief to protect its intellectual property or Confidential Information, and Provider may ask a court to stop use of the Licensed Software beyond what this Agreement allows. Bringing or defending a court action this Section allows does not waive either party's right to arbitrate any other claim, including a counterclaim. On either party's request, the court will stay any counterclaim that Section 16.3 covers, and that counterclaim will be arbitrated.

16.5 Time limit for claims

Any claim by either party arising out of or relating to this Agreement, the Licensed Software or the services, under any theory, including a claim under N.C. Gen. Stat. Chapter 75 or N.C. Gen. Stat. 1-539.2A, must be started in arbitration, or in court where Section 16.4 allows, within 1 year after the party bringing it knew or reasonably should have known of the facts giving rise to it, or it is permanently barred. This Section does not shorten the time for either party to bring a claim to collect fees, interest, taxes or collection costs, a claim for a refund this Agreement provides, or a claim for use of the Licensed Software beyond the license or misuse of a party's intellectual property or Confidential Information. A barred claim may not be used as a setoff.

17.1 Agreement to transact electronically

The parties agree to conduct this transaction by electronic means under the North Carolina Uniform Electronic Transactions Act, N.C. Gen. Stat. Chapter 66, Article 40. An electronic signature, such as a typed name, a signature drawn on a screen, or a scanned or photographed handwritten signature, has the same effect as a handwritten signature.

17.2 How the parties sign

Provider signs each Order Form before it issues it, by a Provider representative typing their name on that Order Form or applying their signature to it, as a separate act for that Order Form. Customer accepts by signing the Order Form by hand, or by an electronic signature that Customer adds itself through an affirmative act, such as typing its name or signing on a touchscreen when approving a quote online. Ticking a box on a payment page does not by itself replace that signature. The Order Form binds both parties when Customer signs it. If Customer uses or pays for Licensed Software or services listed on an Order Form without signing it, that use or payment accepts the Order Form and these Standard Terms, except that Sections 3.4, 12.6 and 18.13 apply only once both parties have signed an Order Form, Section 18.2 applies only to an Order Form both parties have signed, and Provider may enable the features described in Section 3.3, or take a technical step under it, only as Section 3.3 allows for programs licensed under an Order Form both parties have signed. For an unsigned Order Form, the license is still suspended and ends as Sections 9 and 15 describe. Continued use of a program Customer already had the right to use under an Earlier Arrangement, or payment of an amount owed under an Earlier Arrangement, does not accept an Order Form. This Section also applies to each Statement of Work. An Order Form or Statement of Work that Customer signs after its stated expiration date binds Provider only if Provider confirms it in writing.

17.3 Records and authority

Provider keeps a copy of each signed Order Form and of the version of these Standard Terms that applies to it, and will give Customer a copy on request. Each person signing represents that they have authority to bind the party for which they sign.

18.1 Governing law and venue

This Agreement is governed by the laws of the State of North Carolina, without regard to its conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods and any version of the Uniform Computer Information Transactions Act do not apply. Any court action this Agreement permits will be brought only in the state courts sitting in Guilford County, North Carolina, or the United States District Court for the Middle District of North Carolina, and each party consents to their jurisdiction and venue.

18.2 Attorneys' fees

Each party agrees that in any suit, action, proceeding or arbitration arising out of or relating to this Agreement, the prevailing party may recover from the other party its reasonable attorneys' fees and expenses. This is a reciprocal attorneys' fees provision under N.C. Gen. Stat. 6-21.6 and applies to each Order Form both parties sign as Section 17.2 describes. To collect amounts owed, Provider may instead recover reasonable attorneys' fees under N.C. Gen. Stat. 6-21.2, after notifying Customer as that statute requires, by first-class mail to Customer's notice address, with a copy by email, and giving Customer 5 days from the mailing of that notice to pay the outstanding balance without those fees. Each signed Order Form, with the invoices issued under it, is evidence of indebtedness for that purpose. Provider may recover fees only once for the same amounts.

18.3 Notices

Notices must be in writing. Provider may give any notice under this Agreement, including notices under Sections 8, 9 and 15, by email to the notice contact on the Order Form or, if none is named, to the person who signed the Order Form and the billing contact. An emailed notice is effective when sent, unless Provider receives a message that it could not be delivered, in which case Provider will resend it by email or mail and it is effective when resent. A notice by courier or mail is effective on delivery, on refusal, or 3 business days after it is sent by first-class mail, whichever is first. Where this Agreement requires two methods, periods run from the email. A notice sent to a contact Customer failed to update is effective. Customer will keep its notice contact and notice address current. Customer's notice address is the mailing address the Order Form gives for notices or, if it gives none, Customer's address on the Order Form. Notices from Provider sent by courier or mail, including the final notice under Section 9.2, go to that address. Notices to Provider, including disputes under Section 8.5 and notices of non-renewal, must be sent by email to [email protected] or by courier or mail to 1208 Eastchester Drive, Suite 131, High Point, NC 27265, and are effective when received. If an email notice to that address is returned as undeliverable, Customer may send it to [email protected], and it is then effective when sent. A notice of breach or of early termination from Customer must be sent both by email and by courier or certified mail. A notice of non-renewal under Section 15.1 needs only one of the methods above. A notice under N.C. Gen. Stat. 6-21.2 is given by first-class mail to Customer's notice address, with a copy by email.

18.4 Assignment

Customer may not assign this Agreement, by contract, merger, change of control or operation of law, without Provider's prior written consent, which Provider will not unreasonably withhold for a successor to all or substantially all of Customer's business that agrees in writing to be bound and has paid all fees then due. Any assignment by Customer without that consent is void, and Customer remains liable for amounts owed. A successor that uses the Licensed Software is bound by this Agreement. Provider may assign this Agreement, with notice to Customer, to an affiliate or to a successor to all or substantially all of the business or assets to which it relates. This Agreement binds permitted successors and assigns.

18.5 Force majeure

Neither party is liable for a delay or failure caused by events beyond its reasonable control, such as natural disasters, epidemics, utility, internet or telecommunications outages, government action, cyberattacks by third parties, failures of a publisher's or payment processor's systems, or a publisher's withdrawal or change of a Required Component, as long as it takes reasonable steps to resume performance. This does not excuse payment obligations or the duties in Sections 3.6 and 11.

18.6 Export

Customer will comply with United States export control and sanctions laws in its use of the Licensed Software.

18.7 Independent contractors

The parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency or employment relationship.

18.8 Entire agreement and amendments

This Agreement is the parties' entire agreement on its subject and replaces any prior agreement on that subject, including any earlier software support agreement for the same Licensed Software, except as Section 3.4 provides. Customer has not relied on any statement, promise or future feature that is not written in this Agreement. The summary shown with these Standard Terms is for convenience and is not part of this Agreement. Except as Sections 2.3, 7.4 and 8.6 provide, and except for changes this Agreement lets Provider make by notice or by publishing them, this Agreement may be changed only in a writing signed by both parties. No later agreement between the parties replaces or changes this Agreement unless it names this Agreement and says so expressly.

18.9 Severability and waiver

If a provision is held unenforceable, it will be enforced to the maximum extent allowed and the rest of this Agreement remains in effect. A failure to enforce a provision is not a waiver.

18.10 No third-party beneficiaries

This Agreement is for the benefit of the parties and their permitted successors and assigns only.

18.11 Counterparts and headings

Order Forms may be signed in counterparts, each of which is an original. Headings are for convenience only. "Including" means "including without limitation."

18.12 Interpretation

Each party is a business, had other options for the software and services this Agreement covers, and had the chance to review this Agreement with counsel. No provision will be construed against either party as its drafter. A business day is Monday through Friday, excluding holidays Provider observes. Periods stated in days are calendar days unless stated as business days.

18.13 Non-solicitation

During each Subscription Term and for 12 months after the last Order Form ends, neither party will, directly or through a staffing firm, Customer Vendor or other third party, solicit for employment or engage as an employee or contractor any employee or contractor of the other party who performed work on the matters covered by this Agreement in the 12 months before the solicitation or engagement, without the other party's written consent. This Section does not apply to (a) general job postings or recruiting not aimed at the other party's personnel, or a hire made in response to them, or (b) a person whose employment or engagement with the other party ended at least 6 months earlier. If a party engages a person in breach of this Section, it will pay the other party, as liquidated damages and not as a penalty, 50 percent of that person's annualized compensation from the other party at the time they left. The parties agree that the other party's loss, which includes recruiting costs and the months needed to train a replacement on proprietary programs and on the other party's business, is difficult to measure and that this amount is a reasonable estimate of it. This payment is the sole monetary remedy for the hire, but does not limit injunctive relief against further solicitation. This Section applies only once both parties have signed an Order Form as Section 17.2 describes.