License - Dashboard Gear

MASTER SOFTWARE SUBSCRIPTION LICENSE AND SUPPORT AGREEMENT

THIS MASTER SOFTWARE SUBSCRIPTION LICENSE AND SUPPORT AGREEMENT (“Agreement”) is made xxxxxxxxxx (“Effective Date”) between ERP Accessories, LLC (d/b/a Dashboard Gear), a Florida limited liability corporation, with its principal place of business at 8427 Palacio Terrace S, Naples, FL 34114(“Dashboard Gear”) and xxxxxxxxx a xxxxxxxx corporation with its principal place of business at xxxxxxxxxxxxxxxxx (“Customer”).

Dashboard Gear has developed and owns certain proprietary software for use in data warehousing reporting systems. Customer wishes to utilize subscription license such software from Dashboard Gear, for its own internal purposes. Nothing in this Agreement shall prevent Customer from using the software to provide Customer’s own services to third parties. Customer wishes to have Dashboard Gear provide certain installation services relating to such software. Dashboard Gear wishes to provide such subscription licenses and services to Customer.

Therefore, the parties hereby agree as follows:

1. DEFINITIONS

The following definitions apply when used in this Agreement:

(a) “COMMENCEMENT DATE” of each Program Subscription License shall mean the date on which a Subscribed Licensed Product is first delivered to Customer.

(b) “DASHBOARD GEAR SOFTWARE” shall mean the object code of the software specified as “Dashboard Gear Software” on an Order Form that operates with a Designated Platform.

(d) “DOCUMENTATION” shall mean guides, manuals and on-line help for the Subscribed Licensed Products published or otherwise made available by Dashboard Gear that relate to the functional, operational, and/or performance capabilities of the Programs.

(e) “SUBSCRIBED LICENSED PRODUCTS” shall mean Dashboard Gear Software as delivered by Dashboard Gear as listed in one or more Order Forms.

(f) “ORDER FORM” shall mean the document, attached as EXHIBIT A, by which Customer orders Program Subscription Licenses and related services and which is executed by the parties. Each Order Form shall reference the Effective Date of this Agreement and shall upon signature by both parties, be incorporated into this Agreement. The terms and conditions of any Order Form shall control over any conflicting terms and conditions contained in this Agreement.

(g) “PRE-PRODUCTION PROGRAM” shall mean a software program which is (i) not generally subscribed licensed for commercial use by Dashboard Gear, (ii) not listed as generally available in Dashboard Gear’s marketing literature, or (iii) designated by Dashboard Gear as an “Alpha,” “Beta,” or “Pre Production” program or release.

(h) “PROGRAMS” shall mean (i) the Dashboard Gear Software, and (ii) Updates.

(i) “PROGRAM SUBSCRIPTION LICENSE” shall mean each subscription license granted to Customer for use on a single server within a Designated Platform.

(j) “SUPPORT SERVICES” shall mean the services provided under Dashboard Gear’s standard Technical Support terms and conditions in effect on the date such services are ordered. A copy of Dashboard Gear’s current Support Services terms and conditions is attached as EXHIBIT B.

(k) “SUPPORTED PLATFORM” shall mean the hardware and software platforms (e.g. database server systems, application server systems, and client systems) that are supported by Dashboard Gear as expressly set forth in the Documentation. The requirements for the Supported Platform are subject to change as specified by Dashboard Gear in its discretion with thirty (30) days prior written notice to Customer.

(l) “UPDATE” shall mean a subsequent release of a Program that Dashboard Gear makes generally available at no additional charge for Programs receiving Support Services. Updates shall not include any release, option, future product, or any upgrade in features, functionality or performance of the Programs which Dashboard Gear subscription licenses separately or offers only for an additional fee; provided, however, that Updates may include all (i) bug fixes, patches, and maintenance releases, (ii) new point releases denoted by a change to the right of the first decimal point (e.g., v30 to 31), and (iii) new major version releases denoted by a change to the left of the first decimal point (e.g., v3.0 to 4.0) so long as Customer is current on maintenance fee obligations.

2. SUBSCRIPTION LICENSE

(a) SUBSCRIPTION LICENSE GRANT. Subject to the provisions of this Agreement as well as the payment of all applicable subscription license fees for the term of such subscription license, Dashboard Gear hereby grants Customer and Customer accepts a limited, nonexclusive, nontransferable, nonassignable, for its own internal business operations:

(1) TO USE. (i) to install, configure, and use the Programs solely on the Designated Platform for up to the number of Lawson Data Areas subscribed licenses on the attached Order Form, or on a backup system if the Designated Platform is inoperative, and (ii) to use the Documentation solely for purposes of supporting Customer’s use of the Programs;

(2) TO COPY. (i) to make two (2) additional copies of the Programs solely for archival, emergency back-up, or disaster recovery purposes; and (ii) to copy the on-line help Documentation as reasonably necessary to support the Subscribed Licensed Products.

(b) SUBSCRIPTION LICENSE RESTRICTIONS. The rights granted in Section 2(a) are subject to the following restrictions: (i) Customer may not reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code of the Programs, provided that, if required under applicable law, upon Customer’s request, Dashboard Gear shall provide information necessary for Customer to achieve interoperability between the Programs and other software for an administrative charge; (ii) Customer may not sublicense or use the Programs for commercial financial data warehousing reporting use, unless previously agreed to in writing by Dashboard Gear; and (iii) with regard to any and all copies of the Programs and Documentation, Customer shall only make exact copies of the versions as originally delivered by Dashboard Gear. Customer shall ensure that each copy contains all titles, trademarks, and copyright and restricted rights notices as in the original, and all such copies shall be subject to the terms and conditions of this Agreement.

(c) RETENTION OF RIGHTS. Dashboard Gear reserves all rights not expressly granted to Customer in this Agreement. Without limiting the generality of the foregoing, Customer acknowledges and agrees that: (i) except as specifically set forth in this Agreement, Dashboard Gear retain all rights, title and interest in and to the Programs, Customizations, Modifications and Documentation and Customer acknowledges and agrees that it does not acquire any rights, express or implied, thereon; and (ii) if Customer suggests any new features, functionality, or performance for the Programs that Dashboard Gear subsequently incorporates into the Programs, such new features, functionality, or performance shall be the sole and exclusive property of Dashboard Gear and shall be free from any confidentiality restrictions that might otherwise be imposed upon Dashboard Gear pursuant to Section 11.

(d) CHANGE OR ADDITION OF DESIGNATED PLATFORM. If, at any time, Customer desires to change the Designated Platform to another Supported Platform, Customer may do so by providing Dashboard Gear fifteen (15) days prior written notice and paying any applicable fees.

3. SERVICES

(a) INSTALLATION SERVICES. The Subscribed Licensed Products shall be installed by Dashboard Gear and Customer agrees to pay Dashboard Gear’s installation services fees and charges as set forth in any Order Form(s), or if not set forth in the Order Form will be subject to Dashboard Gear’s then-standard fees for the performance of such services. Dashboard Gear will invoice Customer for the service fees on the schedule specifically set forth in the Order Form, or otherwise as reasonably established from time to time by Dashboard Gear.

(b) ACCEPTANCE. Unless a Subscribed Licensed Product has previously been accepted by Customer, Customer shall have twenty (20) days from the date of installation of the Subscribed Licensed Product (the “Acceptance Period”) to evaluate such Subscribed Licensed Product. In the event the Customer determines in its reasonable discretion that the Subscribed Licensed Product conforms to the Documentation, Customer shall make written acceptance of the Subscribed Licensed Product. If, during the Acceptance Period, Customer determines in its reasonable discretion that any Subscribed Licensed Product fails to conform in all material respects to the functions described in the Documentation when operated on a Supported Platform, then the Customer shall promptly provide written notice to Dashboard Gear containing a description of the failure to conform (the “Defect Notice”). Within five (5) days after its receipt of the Defect Notice, Dashboard Gear shall make such corrections or modifications as may be necessary for the Subscribed Licensed Product to substantially conform to the Documentation. Within three (3) days after the date the corrections or modifications are made, the Customer shall in its reasonable discretion make a determination about whether such corrected or modified Subscribed Licensed Product substantially conforms to the Documentation. In the event Customer determines such corrected or modified Subscribed Licensed Product substantially conforms to the Documentation, Customer shall provide written notice of acceptance of the Subscribed Licensed Product. In the event such corrected or modified Subscribed Licensed Product does not substantially conform to the Specifications within the Acceptance Period, Customer may, in its sole discretion, either repeat the aforementioned procedures until such time as the Subscribed Licensed Product substantially conforms to the Documentation, specify some other means of accomplishing conformity to the applicable Documentation, or (i) for “Subscribed Licensed Products” listed on the Order Form executed under this Agreement, Customer has the right to terminate this Agreement by providing Dashboard Gear written notice of such during the Acceptance Period and receive a full refund of all Program Subscription License fees paid to Dashboard Gear. This Section states Customer’s sole and exclusive remedy with regard to nonconformance of any Subscribed Licensed Product to the Documentation. The Subscribed Licensed Product shall be accepted when either (i) the Customer has made written acceptance of the Subscribed Licensed Product, or (ii) the Customer fails to provide the Defect Notice prior to the end of the Acceptance Period. Notwithstanding the foregoing, the warranties and remedies set forth in Sections 7 and 8 shall have full force and effect both during and after the Acceptance Period.

(c) EXPENSES. Unless otherwise stated in the Order Form, Customer shall reimburse Dashboard Gear for travel, boarding, and meal expenses incurred by Dashboard Gear in the course of providing installation services of the Licensed Products to Customer. Expense claims, including reasonable backup documentation, shall be included in Dashboard Gear’s invoices.

(d) SUPPORT SERVICES. Subject to the provisions of this Agreement, its Exhibits, as well as the payment of all applicable fees, Customer shall be required to purchase Support Services for one (1) year following the date of installation of the Licensed Products. After the first year, Customer may purchase Support Services for subsequent periods, as set forth in the applicable Order Form. Dashboard Gear reserves the right to alter its standard Support Services terms and condition from time to time but in no event shall such alterations result in diminished support from the level of support set forth in Exhibit B. Dashboard Gear shall provide Customer with thirty (30) days prior written notice of any material changes to the level of Support Services set forth in Exhibit B.

4. TERM AND TERMINATION

(a) TERM. Each Program Subscription granted under this Agreement shall commence on the applicable Commencement Date and shall remain in effect assuming annual subscription fee is paid in full, for three years, unless such Program License or this Agreement is terminated as provided in Section 4(b) or 4(c) or in accordance with Section 3(b).

(b) TERMINATION BY EITHER PARTY FOR MATERIAL BREACH. Either party may terminate this Agreement or any Program Subscription upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice specifying the breach in detail; provided, however, the Customer may terminate Support Services only if Dashboard Gear materially breaches the provisions of Exhibit B and fails to cure, or to begin in good faith to cure, the breach within sixty (60) days following written notice from Customer specifying the breach in detail. In the event of termination of Support Services, Customer shall be liable only for payment for Support Services through the termination date and shall receive a pro-rata refund of any unused prepaid fees.

(c) EFFECT OF TERMINATION. Subject to the provisions of Section 3(b), termination of this Agreement or any Program Subscription (i) shall not limit either party from pursuing other remedies available to it, including injunctive relief; (ii) shall not relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer under any Order Form; and Customer’s subscription to use any of the Subscribed Licensed Programs, to the extent they arise under this Agreement, are immediately terminated.

(d) HANDLING OF PROGRAMS UPON TERMINATION. Upon termination of a Program Subscription License granted under this Agreement, Customer shall:

(1) cease using the applicable Programs, Documentation, and related Confidential Information of Dashboard Gear;

(2) certify to Dashboard Gear within thirty (30) days after termination that Customer has destroyed, uninstalled, and/or has returned to Dashboard Gear, the Programs, Documentation, related Confidential Information of Dashboard Gear, and all copies thereof, whether or not modified or merged into other materials.

5. PAYMENT PROVISIONS

(a) SUBSCRIPTION LICENSE FEES. In consideration of the subscription license granted herein, Customer agrees to make the subscription license fee payments set forth in Order Forms which payments shall be nonrefundable and irrevocable except as otherwise provided in Sections 3(b), 5, and 8(a)(1) of this Agreement. Customer will be invoiced annually for the subscription. Annual subscription fee will be due on the anniversary date of this Agreement. Concurrently with the execution of this Agreement, Customer shall place a binding initial order for Programs using the Order Form attached hereto as EXHIBIT A.

(b) OTHER FEES; PAYMENT. Unless otherwise stated in the Order Form, all other applicable fees, including installation service fees and expenses, shall be payable within fifteen (15) days from the receipt of Dashboard Gear’s invoice. All fees and expenses in this Agreement and its Exhibits are in U.S. Dollars. All payments must be made in U.S. dollars. In addition, Customer shall pay a late payment charge of two percent of the balance due for each month any Dashboard Gear invoice is owed but unpaid, or the highest rate allowed by law, whichever is lower. If any amount owed to Dashboard Gear is not paid when due, then in addition to any other rights Dashboard Gear may have, Dashboard Gear may suspend the rendering of additional services.

(c) INTEREST. Dashboard Gear may charge Customer a one and one-half percent (1½ %) monthly finance charge to be calculated monthly with respect to all outstanding amounts not paid within thirty (30) days following the date of Dashboard Gear’s invoice(s), but in no event shall any finance charge exceed the maximum allowed by law.

(d) TAXES. The fees listed in this Agreement do not include taxes, duties or fees; if Dashboard Gear is required to pay (i) sales, use, property, value-added, withholding or other taxes, (ii) any customs or other duties or (iii) any import, warehouse or other fees, associated with the importation or delivery based on the Program Subscription License granted or services provided in this Agreement or on Customer’s use of Programs or services, then such taxes, duties or fees shall be billed to and paid by Customer. If Customer is permitted to declare any such taxes, Customer shall declare and pay such taxes and Dashboard Gear shall not be required to invoice Customer. This Section shall not apply to taxes based on Dashboard Gear’s income or payroll taxes.

6. DASHBOARD GEAR’S INFRINGEMENT INDEMNITY

(a) INDEMNIFICATION. Dashboard Gear will defend and indemnify Customer against any and all costs, damages and expenses (including reasonable legal fees) finally awarded against Customer by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Dashboard Gear arising out of any claim that the Programs directly infringe any U.S. patent issued as of the Effective Date or any copyright, trade secret or trademark (“IP Claim”), provided that: (i) Customer promptly notifies Dashboard Gear in writing no later than thirty (30) days after Customer’s receipt of notification of a potential claim, (ii) Dashboard Gear may assume sole control of the defense of such claim and all related settlement negotiations; and (iii) Customer provides Dashboard Gear, at Dashboard Gear’s request and expenses, with the assistance, information and authority necessary to perform Dashboard Gear’s obligations under this Section.

(b) EXCLUSIONS. Notwithstanding the foregoing, Dashboard Gear shall have no liability for any claim of infringement based on (a) the use of Programs in breach of this Agreement, if such infringement would not have occurred but for such breach; (b) the use of a superseded or altered release of Programs if the infringement would have been avoided by the use of a current unaltered release of the Programs, which Dashboard Gear provided to Customer, (c) the modification by Customer of a Program, or (d) the use of the Programs other than in accordance with the Documentation.

(c) REMEDY. If, due to an IP Claim, (i) the Programs are held by a court of competent jurisdiction or are believed by Dashboard Gear to infringe, or (ii) Customer receives a valid court order enjoining Customer from using the Programs, Dashboard Gear shall in its reasonable judgment, and at its expense, (a) replace or modify the Programs to be non infringing; (b) obtain for Customer a license to continue using the Programs; or (c) if Dashboard Gear cannot reasonably obtain the remedies in (a) or (b), terminate the Program License for the infringing Programs and refund the license fees paid for those Programs upon return by Customer. This Section 6 states Dashboard Gear’s entire liability and Customer’s exclusive remedy for any claim of infringement.

7. LIMITED WARRANTIES AND DISCLAIMERS

(a) LIMITED PROGRAM WARRANTY. Dashboard Gear warrants for ninety (90) days from the Commencement Date that each Subscribed Licensed Product for which Customer has a Program Subscription License will perform in all material respects the functions described in the Documentation when operated on a Supported Platform.

(b) LIMITED MEDIA WARRANTY. Dashboard Gear warrants for ninety (90) days from the Commencement Date that the media upon which Dashboard Gear delivers Programs to Customer will be free of defects in materials and workmanship under normal use.

(c) LIMITED SERVICES WARRANTY. Dashboard Gear warrants for ninety (90) days from the performance of any services by Dashboard Gear pursuant to this Agreement, including Support Services, that such services shall be performed in a manner consistent with generally accepted industry standards.

(d) ANTI-VIRUS WARRANTY. Dashboard Gear warrants that to the best of its knowledge after employing reasonable technical means to detect computer viruses, the Programs do not contain any virus or computer software code, routines or devices (other than as set forth in the Documentation) designed to disable, damage, impair, or erase the Programs or other software or data. For failure to comply with this warranty, Dashboard Gear shall, of Dashboard Gear’s expenses, immediately replace all copies of the affected Programs in the possession of Customer. This Section states Customer’s sole and exclusive remedies and Dashboard Gear’s entire liability for a breach of this warranty.

(e) DISCLAIMERS. DASHBOARD GEAR DOES NOT WARRANT THAT: (i) THE PROGRAMS WILL MEET CUSTOMER’S REQUIREMENTS; (ii) THE PROGRAMS WILL OPERATE IN COMBINATIONS WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY DASHBOARD GEAR (EXCEPT AS EXPRESSLY SPECIFIED IN WRITING BY DASHBOARD GEAR IN THE DOCUMENTATION) WHICH CUSTOMER MAY SELECT FOR USE; (iii) THE OPERATION OF THE PROGRAMS WILL BE UNINTERRUPTED OR ERROR FREE; OR (iv) ALL PROGRAM ERRORS WILL BE CORRECTED. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, PRE-PRODUCTION PROGRAMS, AND DOCUMENTATION ARE DISTRIBUTED “AS IS” AND CUSTOMER ACKNOWLEDGES THAT PRE-PRODUCTION PROGRAMS ARE NOT SUITABLE FOR GENERAL USE. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8. EXCLUSIVE REMEDIES

(a) EXCLUSIVE REMEDIES. Customer must report in writing any breach of the warranties contained in Sections 7(a), 7(b), and 7(c) to Dashboard Gear during the relevant warranty period, and Customer’s exclusive remedy and Dashboard Gear’s entire liability for such breach shall be:

(1) FOR PROGRAMS. To use its commercially reasonable efforts to correct or provide a workaround for reproducible Program errors that cause a breach of this warranty or if Dashboard Gear is unable to make the Program operate as warranted within a reasonable time considering the severity of the error and its impact on the Customer. Customer shall be entitled to return the Program to Dashboard Gear and recover the fees paid to Dashboard Gear for the Program License.

(2) FOR MEDIA. The replacement of the defective media.

(3) FOR SERVICES. The reperformance of the services, or if Dashboard Gear is unable to perform the services as warranted, Customer shall be entitled to recover the fees paid to Dashboard Gear for the nonconforming services.

9. GENERAL INDEMNITY

Each party shall defend and indemnify the other party and its employees, officers, directors and agents against all damages for bodily injury, death, or damage to real or tangible personal property proximately caused by the indemnifying party in the course of performing this Agreement; provided that (i) the indemnifying party receives prompt written notice of the claim from the indemnified party under this Section, (ii) the indemnifying party has the right to control the defense of such claim and any related settlement negotiations, and (iii) the indemnified party provides to the indemnifying party, at the indemnifying party’s request and expense, any assistance, information and authority necessary to perform the indemnifying party’s obligations under this Section.

10. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except for Dashboard Gear’s liability for infringement claims under Section 5 or for any breach of its obligations under Section 11, Dashboard Gear’s aggregate and cumulative liability for damages hereunder shall in no event exceed the amount of current subscription fees paid by Customer under this Agreement.

11. CONFIDENTIAL INFORMATION.

(a) Each party may have access to information that is confidential to the other party (“Confidential Information“). Dashboard Gear’s Confidential Information shall include, but not be limited to, the Programs, Documentation, formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, the terms and pricing under this Agreement, and all information clearly identified in writing at the time of disclosure as confidential. Customer’s Confidential Information shall include but not be limited to, its software programs, formulas, methods, know-how, processes, designs, new products, developmental work, marketing requirements, marketing plans, customer names, prospective customer names, and all information clearly identified in writing at the time of disclosure as confidential. Confidential Information includes all information received from third parties that either party is obligated to treat as confidential and oral information that is identified by either party as confidential.

(b) A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party’s Confidential Information, or (v) is required to be disclosed by law or valid order of a court or other governmental authority; provided, however, that the responding party shall first have given notice to the other party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.

(c) The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than in the performance of this Agreement. Customer shall not disclose the results of any performance tests of the Programs to any third party without Dashboard Gear’s prior written approval. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in breach of this Agreement. The parties agree to hold each other’s Confidential Information in confidence for so long as none of the exceptions set forth in Section 11(b) are true with respect to such information. Each party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Section 11 and that such breach would cause irreparable harm to the non-breaching party; therefore, the non-breaching party shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it might have at law or under this Agreement.

This Section 11 constitutes the entire understanding of the parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to confidential information.

12. OBLIGATIONS THAT SURVIVE TERMINATION

Any terms of this Agreement which by their explicit or implicit terms are meant to survive the term of this Agreement, including all terms regarding indemnity and confidential information, shall survive the cancellation, termination, or expiration of this Agreement.

13. ASSIGNMENT

Neither this Agreement nor any rights granted hereunder may be sold, issued, assigned, or otherwise transferred, in whole or in part, by either party, and any such attempted assignment shall be void and of no effect without the advance written consent of the other party. Such consent not to be unreasonably withheld or delayed, provided, however that such consent shall not be required if (i) either party assigns this Agreement to a wholly owned subsidiary or in connection with a merger, acquisition, or sale of all or substantially all of its assets, unless the surviving entity is a direct competitor of the other party, or (ii) Dashboard Gear assigns its right to receive and collect payments hereunder.

14. AMENDMENTS, MODIFICATIONS, OR SUPPLEMENTS

Amendments, modifications or supplements to this Agreement shall be permitted, provided all such changes shall be in writing signed by the authorized representatives of both parties, and all such changes shall reference this Agreement and identify the specific articles or sections of this Agreement or the particular order that is amended, modified or supplemented.

15. GOVERNING LAW AND VENUE

The validity, construction, interpretation, and performance of this Agreement shall be governed by and construed in accordance with the domestic laws of the State of Florida, excluding its conflict of law provisions, and the parties hereto irrevocably submit to the exclusive jurisdiction and venue of the Federal District Court for the District of Florida or the court of the State of Florida to resolve any disputes arising hereunder or related hereto.

16. NOTICES

All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatory of this Agreement or to such other address or individual as the parties may specify from time to time by written notice to the other party.

17. SEVERABILITY

In the event any provision of this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of Dashboard Gear and Customer shall be construed and enforced accordingly.

18. WAIVER

The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of Dashboard Gear’s proprietary rights in the Programs or Documentation, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued.

19. EXPORT CONTROLS

Customer agrees to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations and other export control laws applicable to the Programs, Documentation or any direct product thereof (collectively, “Export Controls”). Without limiting the generality of the foregoing, Customer expressly agrees that it shall not, and shall cause its representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the Programs, Documentation or any direct product thereof to any destination, company or person restricted or prohibited by Export Controls.

20. OFFICIAL LANGUAGE

The interpretation and enforcement of this English language version of the Agreement shall prevail over any foreign translation or interpretation of the Agreement.

21. INDEPENDENT CONTRACTOR

Dashboard Gear is an independent contractor, nothing in this Agreement shall be construed to create a partnership, joint venture, employee or agency relationship between the parties.

22. COUNTERPARTS

This Agreement and any Exhibit hereto, may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.

23. FACSIMILE EXECUTION

The exchange of a fully executed Agreement (in counterparts or otherwise) by email shall be sufficient to bind the parties to the terms and conditions of this Agreement.

24. FORCE MAJEURE

Neither party shall be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, civil, or military authority, act of God, act or omission of carriers, or other similar causes beyond its control. If any such an event of force majeure occurs and such event continues for ninety (90) days or more, the party delayed or unable to perform shall give immediate notice to the other party, and the party affected by the other’s delay or inability to perform may elect at its sole discretion to: (a) terminate this Agreement upon mutual agreement of the parties; (b) suspend such Order Form for the duration of the condition; or (c) resume performance of such Order Form once the condition ceases with the option of the affected party to extend the period of this Agreement up to the length of time the condition endured. Unless written notice is given within thirty (30) days after the affected party is notified of the condition, option (c) shall be deemed selected.

25. THIRD PARTY BENEFICIARIES

This Agreement is entered into solely for the benefit of Dashboard Gear and Customer. No third party shall have the right to make any claim or assert any right under it, and no third party shall be deemed a beneficiary of this Agreement.

26. NO CONSTRUCTION AGAINST DRAFTER

The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.

27. ENTIRE AGREEMENT

This Agreement, together with the attached Exhibits which are incorporated by reference, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement and such Exhibits. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement. All prior agreements, representations, warranties, statements, negotiations, understandings, and undertakings are superseded hereby and Customer hereby represents and acknowledges that in entering into this Agreement it did not rely on any representations or warranties other than those explicitly set forth in Section 7 of this Agreement.

28. ATTACHED EXHIBITS

The following Exhibits are deemed attached to this Agreement and made part of it:

Exhibit A: Order Form

Exhibit B: Terms and Conditions of Dashboard Gear Maintenance and Technical Support

The undersigned represent and warrant that they are authorized as representatives of the Party on whose behalf they are signing this Agreement and to bind their respective Party thereto as of the Effective Date.

EXHIBIT A

ORDER FORM

This Order Form made as of xxxxxxxxxx, 20XX, is entered into between ERP Accessories, LLC (d/b/a Dashboard Gear) (“Dashboard Gear”) and xxxxxxxxx (“Customer”). This Order Form is subject to and is made part of the Master Software Subscription License and Support Agreement between the parties dated xxxxxxxxx, 20XX. Capitalized terms used in this Order Form shall have the meanings defined in the Master Software Subscription License and Support Agreement.

1. Licensed Products:

Designated Platform: MS SQL Server

Dashboard Gear Software	Number of Subscription Licenses	Fee

2. Installation Services and Compensation

Additional Consulting/Customization at a rate of $175 per Hour
Reports Development Consulting at a rate of $125 per Hour
Should Customer require a WebEx connection to connect instead of a VPN for installation there will be a $5,000 surcharge
Travel-related expenses: as incurred and invoiced

Standard Implementation definition:

Remote implementation by Dashboard Gear with VPN connection
Requires adequately sized server – Dashboard Gear will consult with Client to determine server requirements before implementation
Required Platform: MS SQL Server 2008 R2, 2012, 2014, 2016 or 2017
Knowledgeable customer resource available for configuration decisions
Does include a brief Web based IT orientation when install is complete
Does include one hour of Web based user orientation per suite

3. Maintenance and Technical Support

Governed by the Terms and Conditions set forth in Exhibit B.

4. Payment Terms.

Subscribed Licensed Product Subscription Fees: Due upon execution of this Agreement and then annually thereafter.
Services Fees: Dashboard Gear will invoice for services performed and expenses incurred on a monthly basis in accordance with the invoicing terms of the Agreement. Invoices under this Order Form will be paid in accordance with the payment terms in the Agreement.

The parties hereby enter into this Order Form, effective as of the date stated above, by placing their signatures below.

EXHIBIT B

TERMS AND CONDITIONS OF DASHBOARD GEAR MAINTENANCE AND TECHNICAL SUPPORT

Capitalized terms used in these terms and conditions shall have the meanings defined in the Master Software Subscription License and Support Agreement.

1. TERMS

Updates. Dashboard Gear Technical Support (“Support Services”) covers all Updates for Subscribed Licensed Products and reasonable technical support assistance for one year. Updates may include updated Documentation. The frequency of Updates depends on customer feedback and technological advancements in the support of the Programs and is in Dashboard Gear’s sole discretion. Updates shall be distributed to Customer as and when they are distributed to Dashboard Gear’s customers generally.

It is the Customer’s responsibility to copy or back up program and data files before executing any instruction given by Dashboard Gear technical support staff. Dashboard Gear will not be responsible nor have any liability for lost data.

Hours. Dashboard Gear offers Support Services from 8:00 AM to 5:00 PM Central Time Monday through Fridays, excluding holidays.

Official Language. Dashboard Gear provides Support Services in the English language only. Any Programs and Documentation are written in the English language.

Exclusions. The Support Services do not include maintenance and/or technical support in any of the following instances: (1) Customer is not using the Subscribed Licensed Products in accordance with the terms of this Agreement; (2) Customer is using the Subscribed Licensed Products with hardware, software (including operating system software), or database platform other than those specifically designated by Dashboard Gear for use with the Subscribed Licensed Products; (3) Customer has not paid the Annual Subscription fee; (4) Dashboard Gear technical support staff determines that the cause of the error or other problem reported is the malfunctioning or failure of any hardware or Subscribed Licensed Products not furnished by Dashboard Gear; (5) Customer is not operating a version of the Subscribed Licensed Products that has been updated with at least the second to last full release of Dashboard Gear Programs. A “full release” is defined by the whole integer that denotes the Program’s revision level.

Method of Support. To facilitate Dashboard Gear support personnel in understanding and diagnosing issues, in certain instances, Customer may be required to demonstrate issues on Customer’s system via web conferencing or an on-line meeting system such as WebEx. Customer agrees to use its best efforts to demonstrate issues on its system via web conferencing or an on-line meeting system.

Assignment. Customer may not assign its right to receive Support Services without Dashboard Gear’s prior written consent. Dashboard Gear reserves the right to change its policies, procedures, practices, fee schedules, and marketing programs at any time upon prior notice. Dashboard Gear reserves the right to change its Support Services deliverables upon ninety (90) days prior written notice.

Suspension. Dashboard Gear reserves the right to suspend Support Services if Customer has failed to pay any sums due under Exhibit A or this Agreement or is otherwise in default or breach of this Exhibit B or this Agreement. During such suspension of Support Services, Dashboard Gear shall be relieved of its performance obligations contained herein during the continuation of such default or breach. Further, notwithstanding anything to the contrary herein or in any other agreement between the parties, in the event of a material breach by Customer of the confidentiality, license or other terms protecting the Subscribed Licensed Products and/or a violation or misappropriation of Dashboard Gear’s intellectual property or rights therein, Dashboard Gear may immediately, upon notice, terminate this Exhibit B and/or this Agreement.

2. SUPPORT

As part of Support Services, Dashboard Gear shall provide to Customer the service levels set forth below (“Standard Support”). Standard Support shall consist of services consistent with the following support obligations:

Dashboard Gear shall establish and maintain the organization and processes to provide support for Customer. Standard support shall include but not be limited to (i) a diagnosis of problems or performance deficiencies of the delivered products and (ii) a resolution of problems or performance deficiencies of the Subscribed Licensed Products. Dashboard Gear shall provide reasonable support on a prompt and timely basis via both phone support and email.

Customer may notify Dashboard Gear of anomalies and bugs that it discovers or of which it becomes aware. Dashboard Gear will use commercially reasonable efforts to cure, reported and reproducible errors in the Subscribed Licensed Products so that the Subscribed Licensed Products operate as specified in the Agreement.