M.O.M. MASTER SERVICES & LICENSE AGREEMENT

(Version FSIMMSLA_2018.04.04)

This M.O.M. Master Services & License Agreement (“Agreement”) governs Your use of Our Software and the provisioning of Our Services. The terms “Our”, “Us” or “We” refer to Freestyle Solutions, Inc. a Delaware Corporation having principal offices at 9 Campus Drive, Parsippany NJ 07054.

By accepting this Agreement, either by clicking a box indicating your acceptance or by executing a Quote that references this Agreement, You agree to the terms of this Agreement. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its affiliates.

WHEREAS, We are in the business of providing software solutions; and

NOW, THEREFORE, in consideration of the promises and covenants the following is agreed as of the Effective Date of this Agreement:

  1. Definitions.

Affiliate(s) means a legal entity in which You have a direct or indirect ownership of more than fifty percent (50%) of the voting or income interest in such legal entity or the possession otherwise, directly or indirectly, control of the majority of voting rights or the ability to direct the management or policies of such legal entity.

Authorized Contact(s) shall mean the named individual trained in the use of the Software as identified by You as having security authorization to contact Our Technical Support Department in order to report problems and seek assistance in the use of the Software.

Deliverables shall mean all items developed by Us or Our agents for or provided to You in furtherance of this Agreement as specified in the applicable Quote or Statement of Work, including but not limited to any and all software, updates, upgrades, error corrections, derivations, modifications, and enhancements.

 “Documentation shall mean the applicable installation guides, service descriptions, technical specifications, on-line help files, and user manuals for the Software provided by Us to You under this Agreement.

Hosted Software shall mean Our Software or Third-Party Software, which You may access via the Subscription Services as described in the M.O.M. Subscription Services Schedule (that can be found on our webpage at https://www.dydacomp.com/Home/SUBSCRIPTION-SERVICES-SCHEDULE.)

Maintenance Services shall mean those services provided by Us to You, for the Software and/or Subscription Service(s) You have licensed or subscribed hereunder, as further set forth in Exhibit A “Maintenance & Support Services Schedule”.

Maintenance Term” shall mean the term of the provision of Maintenance Services in accordance with Section 3 and the Quote.

 “Professional Services shall mean installation, configuration, consulting and/or training services performed by Our personnel and/or agents for Your benefit as described in an applicable Statement of Work.

Quotation and/or “Quote” shall mean the document or collection of documents, which indicates the Software licensed or subscribed, License Fees, length of the License Term, the number of Users authorized to utilize the Software, the number of Stations authorized, and the permitted Location(s) of such Stations.

Services shall mean collectively the Professional Services and Maintenance Services.

Shipment Date shall mean the earliest calendar day in which We (i) initially ship to Your Authorized Contact(s) the keys, IDs or registrations codes to the Software via electronic mail (email); (ii) allow You to access the Software and Documentation via a TCP/IP and/or FTP transfer site; or (iii) ship to You the CD-ROMS, DVD-ROMS, USB flash drive, hard drive or other media containing the Software.

Software shall mean the software products, developed by Us or third parties and licensed to You hereunder for the License Term, as further detailed in the applicable Quote, including selected modules, application program interfaces, and connectors.

Statement of Work and/or “SOW” shall mean a signed document by You and Us that incorporates by reference this Agreement, which details the terms, price and Professional Services to be provided by Us to You.

Stations shall mean one (1) instance of Software on a single computer or single virtual appliance at the location specified on the applicable Quote.

“Subscription Service(s)” shall mean Our hosted on-demand services offering, which allows You and your Users to access the Hosted Software, as further detailed in an applicable Quotation and as described in the M.O.M. Subscription Services Schedule (that can be found on our webpage at https://www.dydacomp.com/Home/SUBSCRIPTION-SERVICES-SCHEDULE.)

Third-Party Software shall mean software products or subscription services not developed by Us that we may distribute to You through Our Maintenance Services. All Third-Party Software shall be governed strictly and solely by this Agreement.

User(s) shall mean any person(s) assigned a unique user identification that can utilize Our Software under this Agreement.

  1. License Grant & Restrictions.

2.1 License Grant. In exchange for prompt payment of the applicable License Fees, as set forth in the applicable Quote, We hereby grant You a limited, non-assignable, non-exclusive license for the License Term, as set forth in the applicable Quotation, to (i) use and operate the Software for its ordinary internal business purposes; (ii) install the Software at the locations specified in the applicable Quote(s); (iii) access, store, use, display and run the Software on compatible software and hardware platforms, as expressly set forth in the applicable technical specifications; and (iv) making copies of the Documentation for Your ordinary internal business purposes.

2.2 Restrictions You specifically agree to limit Your use of the Software to those specifically granted in this Agreement. Without limiting the foregoing, You specifically agree not to (i) attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software or any portion thereof; (ii) modify, port, translate, localize or create derivative works of the Software;  (iii) remove any of Our, or Our vendor’s, trademark, logo, copyright notices and proprietary legends;  (iv) redistribute, encumber, sell, rent, lease, sublicense, use the Software in a timesharing  or service bureau arrangement, or otherwise transfer rights to the Software; (v) modify any header files or class libraries within the Software; (vi) publish any results of benchmark tests run with regards to the Software to a third party without Our prior written consent, which shall be provided at Our sole discretion; (vii) use the databases provided for use with the Software except in conjunction with the relevant Software; (viii) use the Software  in a way that  violates any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control, unfair competition, anti-discrimination and/or false advertising); (ix) use the Software for more Users or on more Stations than what You have purchased hereunder; (x) use the Software other than within the locations specified in the applicable Quotes.

  1. Maintenance Services.

 

In exchange for prompt payment of the applicable Maintenance Fees, as set forth in the applicable Quote, We shall provide you with Maintenance Services as further set forth in Exhibit A “Maintenance & Support Services Schedule”.  After the expiration of the initial paid term of Maintenance Services, Maintenance Service charges shall be those currently in effect, subject to increase upon sixty (60) days’ prior written notice.  The proposed increase shall become effective upon the date specified in the notice.  If You request Service in excess of the Maintenance Services provided for the selected Maintenance Service level, such Services, if available, will only be furnished at Our then-current per-call hourly rates.  We reserve the right to reevaluate rates for Maintenance Service in the event that any equipment or software, not authorized by Us, is attached to the Software being serviced under this Agreement. You acknowledge and agree that certain features and functionality of the Software require that you maintain current Maintenance Services. Any failure of such features and functionality as a result of your failure to maintain Maintenance Services shall be at your own risk and shall not constitute a breach by Us of any term or condition of this Agreement including, without limitation, the breach of any warranty.

 

  1. Prices and Payment.

4.1 Prices.  The License Fees, Maintenance Fees and Professional Services Fees (collectively referred to as “Fees”) are set forth in the applicable Quote and/or SOW.

4.2 Payment All invoices shall be paid by credit card, or other electronic payment method as may be available, on the date indicated on the Quote and for each recurring billing date. We may impose credit card decline charges or late charges on overdue payments at a rate equal to the lesser of one and one-half percent (1.5%) per month or the highest rate legally permitted by law, calculated from the date payment was due until the date payment is made plus all expenses incurred in collection, including reasonable attorneys’ fees.  In addition to other applicable remedies, if Your account becomes delinquent (falls into arrears), We reserve the right to suspend and/or terminate the Software and/or Services, upon five (5) calendar days’ prior written notice via email or otherwise. Upon default by You, We shall have other rights and remedies as may be provided by law.  If access to the Services is withheld in accordance with the foregoing, in order to reinstate such Services, You shall be responsible for paying all fees from the date that such Services were suspended. Except in the event of termination for material breach under Section 8.2 “Termination for Material Breach”, You acknowledge and agree that all prepaid Fees are non-refundable.

4.3 Taxes. All Fees are exclusive of sales, use, value-added or other excise tax, however designated or levied, and therefore, are subject to an increase in an amount equal to any tax. You shall be liable for payment of all local state and federal sales, use, excise, personal property or other similar taxes or duties that are levied upon and related to the performance of obligations or exercise of rights under this Agreement.  We may be required to collect and remit taxes from You, unless You provide Us with a valid tax exemption certificate.  We will invoice You for all such taxes based on Software provided hereunder.  In no event will either party be responsible for any taxes levied against the other party’s net income.

4.4 Reinstatement of Lapsed Maintenance. 

If You fail to renew Maintenance Services or fail to pay Maintenance Fees when due, in order to reinstate Maintenance Services you shall pay (i) all Maintenance Fees that would have been payable during the lapsed periods and/or past due Maintenance Fees, (ii) the Maintenance Fee for the then current Maintenance Term, and (iii) a reinstatement fee equal to 25% of the Maintenance Fee payable for the then current Maintenance Term.

 

  1. Intellectual Property & Protections.

We shall have sole and exclusive ownership of all right, title, and interest in and to the Deliverables, Documentation, Services, Software, and all copies thereof including all derivations, modifications and enhancements thereto (including but not limited to ownership of all intellectual property rights).  This Agreement does not provide You or Your Users with title or ownership of the Documentation, Services, Software, but only a right of limited use, as defined herein.

 

  1. Warranties.

6.1 Software Warranty. We warrant for a period of thirty (30) calendar days from the initial Shipment Date of the Software, (“Software Warranty Period”) for Your benefit alone, that the Software will perform substantially and materially in accordance with such Software’s technical specifications included or referred to in the applicable Documentation (“Software Warranty”).  We do not warrant that the Software will be error-free in all circumstances.  In the event of any defect or error covered by such Software Warranty, You agree to provide Us with sufficient detail to allow Us to reproduce the defect or error.  For any defect or error in the Software covered by such Software Warranty during the Software Warranty Period, We will attempt to repair or replace the Software at Our facility by issuing corrected instructions or a workaround. If We are unable to correct such defect or error after a reasonable opportunity, We will refund the License Fees paid for such allegedly defective Software. The Software Warranty is Your sole and exclusive remedy with respect to Software and shall be Our entire liability in contract, tort, or otherwise.

6.2 Professional Services Warranty. We warrant and represent that all Professional Services shall be performed in a professional and workmanlike manner, consistent with then-current industry standards (“Professional Services Warranty”).  Your exclusive remedy for a breach of the Professional Services Warranty shall be, at Our option, either to (i) re-perform such Professional Services and/or training; or (ii) to provide You with a refund of the Professional Services Fee for the allegedly defective Professional Services.  Such remedy shall only be available to if You notify Us in writing within thirty (30) calendar days of the completion of such Professional Services or Your receipt of each individual Deliverable, whichever is earlier.  The Professional Services Warranty is Your sole and exclusive remedy with respect to Professional Services and shall be Our entire liability in contract, tort, or otherwise.

6.3 Warranty Exclusions. The warranties stated herein shall not include nor extend to (i) any improper use, operation or neglect of the Deliverables, Software, and/or Services; (ii) the unauthorized modification of the Deliverables, Software, and/or Services or the merger of the Deliverables, Software (in whole or part) or Services with any other software or equipment by You not previously approved by Us; (iii) any material breach by Your or Your Users  obligations under this Agreement; and/or (iv) use of the Deliverables, Software or Services for any purpose not set herein.

 

  1. Limitation of Liability; Exclusion of Consequential Damages.

 

7.1 NO FURTHER WARRANTIES. EXCEPT AS SPECIFIED IN SECTION 6, “WARRANTIES” THE SOFTWARE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE SHALL HAVE NO LIABILITY FOR THE SOFTWARE, OR SERVICES PROVIDED IN FURTHERANCE OF THIS AGREEMENT. WE MAKE AND YOU RECEIVE NO FURTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND WE SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. WE ARE NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY YOU OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET OR ANY HARDWARE AND/OR NETWORK DEVICES OWNED OR USED BY YOU. The Services may include gateways, links or other functionality that allows You and/or Your User(s) to access Third-Party Software.  We are not responsible for any Third Party Software, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use.  WE MAKE NO WARRANTY AS TO THIRD PARTY SOFTWARE UNLESS EXPRESSLY SET FORTH IN AN APPLICABLE SCHEDULE, WHICH INCORPORATES THIS AGREEMENT BY REFERENCE.

7.2 EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE AND/OR INCIDENTAL DAMAGES, WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

7.3 LIMITATION OF LIABILITY.  WE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE UNLESS SUCH LOSS OR DAMAGE IS DUE TO OUR GROSS NEGLIGENCE AND/OR WILLFUL MISCONDUCT.  IF WE ARE FOUND LIABLE, THE AMOUNT OF OUR MAXIMUM LIABILITY FOR ANY AND ALL LOSSES AND/OR DAMAGES (IN CONTRACT, TORT, OR OTHERWISE) SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE  FEES ACTUALLY PAID TO US FOR THE RELEVANT SOFTWARE WITHIN THE PRIOR THREE (3)  MONTHS FROM WHICH SUCH CLAIM ARISES. IF THE DATA TRANSMITTED IS INSURED BY YOU, THEN YOU SHALL CAUSE YOUR INSURERS OF SUCH DATA TO WAIVE ANY RIGHT OF SUBROGATION AGAINST US.

7.4 ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN SHALL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.  BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.

 

  1. Termination.

 

8.1 Term. This Agreement shall commence upon the Effective Date, as indicated in the Quote and continue until the expiration of (i) the License Term(s), as defined in the applicable Quote(s); or (ii) until all Professional Services are delivered under any applicable Statement of Work. In no event shall this Agreement be considered terminated until such time that all Quotes and Statement of Works, hereunder have been terminated.

8.2 Termination for Material Breach. This Agreement, or any individual Quote hereunder and related licenses may be terminated by either party upon thirty (30) calendar days prior written notice for a material breach by the other party, unless such other party cures the breach within the thirty (30) calendar days’ notification period. You agree upon any termination to certifying that You shall no longer utilize the Software nor access the Services. Termination of this Agreement does not relieve You of any outstanding payments due or any liability arising prior to termination.

 

  1. Confidentiality.

9.1 Confidential Information. You acknowledge that the Software, Service, the terms of this Agreement, and any other proprietary or confidential information provided to You by US (“Our Confidential Information”) constitutes valuable proprietary information and trade secrets of Ours and/or Our licensors. We acknowledge that the data provided by You or Your Users (“Your Confidential Information”) constitutes valuable proprietary information and trade secrets of Yours or Your Users. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using such Confidential Information in confidence, solely for its use in furtherance of this Agreement, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this Section 9 “Confidentiality”. Each receiving party agrees to promptly report any breaches of this section to the disclosing party.

  1. Subpoena.

We are authorized to comply with any subpoena or similar order related to the data in its possession, provided that We notify You promptly upon receipt thereof, unless such notice is prohibited by law.  You shall pay Our applicable charges on a time and materials basis at Our then-current rates for such compliance.  We will cooperate with Your efforts to quash or limit any subpoena, at Your expense.

  1. General Provisions.

11.1 Entire Agreement; Integration.  This Agreement, Attachments, Exhibits, Schedules and the applicable Quote(s), and/or Statement of Work(s), which reference this Agreement, represent the entire understanding between the Parties on the subject matter hereof and supersede all prior discussions, agreements and understandings of every kind and nature between the Parties.  Neither party shall be deemed the drafter of this Agreement. No modification of this Agreement shall be effective unless in writing and signed by both Parties. All additional and conflicting terms and conditions presented with or in any communication, including but not limited to Your purchase order (“P.O.”) are hereby rejected and shall be deemed null and void.

11.2 Headings & Order of Precedence All headings used herein are for convenience of reference only and are not a part of this Agreement, nor shall they in any way effect the interpretation hereof. If there is any conflict between this Agreement and any Attachment hereto, the order of precedence shall be that this Agreement shall supersede and then the applicable Attachment.

11.3 Force Majeure.  Neither party shall be liable for any failure or delay in performing services or any other obligation under this Agreement, nor for any damages suffered by the other or an end user by reason of such failure or delay, which is, indirectly or directly, caused by an event beyond such party’s control including but not limited to strikes, riots, natural catastrophes, terrorist acts, governmental intervention, or other acts of God, or any other causes beyond such party’s reasonable control.

11.4 Relationship with Third Parties This Agreement governs the relationship between You and Us. No end user or other person or entity not a party to this Agreement shall be considered a third party beneficiary of this Agreement.

11.5 Severability & Survival The illegality or unenforceability of any provision of this Agreement shall not affect the validity and enforceability of any legal and enforceable provisions hereof. Should any provision of this Agreement be deemed unenforceable by a court of competent jurisdiction then such clause shall be re-construed to provide the maximum protection afford by law in accordance with the intent of the applicable provision. The following provisions shall survive any termination of this Agreement; 4, “Prices & Payment”; 5, “Intellectual Property & Protections”; 7, “Limitation of Liability; Exclusion of Consequential Damages”; 9, “Confidentiality”; and 11, “General Provisions”.

11.6 Assignment. Neither party may assign any rights or delegate any obligations hereunder, whether by operation of law or otherwise, except in the case of a sale of either parties business whether by merger, sale of assets, sale of stock or otherwise, or except with the prior written consent of the other party, which consent will not be unreasonably withheld.  Notwithstanding the foregoing, You may not assign this Agreement to a direct competitor of Us. Any attempted assignment or delegation outside these exceptions or without such written consent shall be voidable by the non-assigning party.  This Agreement may also be terminated without a notice period by a written communication to You if as the result of any transaction or a change of control occurs, directly or indirectly, such that a competitor of Us controls You or any entity, which becomes a party to this Agreement, directly or indirectly.  This Agreement binds the parties, their respective participating subsidiaries, affiliates, successors and permitted assigns.

11.7 Applicable Law.  This Agreement and all resulting claims and/or counterclaims shall be governed, construed, enforced and performed in accordance with the laws of the State of New Jersey, USA, without reference and/or regard to its conflicts of laws principles. Each party hereby submits to the exclusive jurisdiction of the courts of New Jersey and hereby waives any objections to venue with respect to actions brought in such courts. Both Parties specifically agree that the U.N. Convention on the International Sale of Goods, the Uniform Computer Information Transactions Act (“UCITA”), shall not apply to any and all actions performed by either party hereunder in furtherance of this Agreement.

11.8 Government End-User Notice.  The Software is a “Commercial Item,” as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software documentation,” as such terms are used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable.  Consistent with 48 C.F.R. §§ 12.212, 227.7202-1 through 227,7202-4, the Commercial Computer Software and Commercial Computer Software documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein.

11.9 Waiver Each party agrees that the failure of the other party at any time to require performance by such party of any of the provisions herein shall not operate as a waiver of the rights of such party to request strict performance of the same or like provisions, or any other provisions hereof, at a later time.

11.10 Notices.  All notices under this Agreement shall be in English and shall be in writing and given by registered airmail or overnight delivery.  Notices shall be deemed given when received. Our Notification Information is as follows:

Freestyle Solutions, Inc.

Attn: CFO

9 Campus Drive, Parsippany, NJ 07054

Fax: 973-237-9043

 

Attachment(s):

 

– Exhibit A “Maintenance & Support Services Schedule

Exhibit A

MAINTENANCE & SUPPORT SERVICES SCHEDULE

 

A-1 Definitions.  

Major Enhancement(s)” shall mean any modification or addition that provides utility and/or efficiency alterations to the Software. We, in Our sole discretion, shall designate Major Enhancements by indicating a change in the second digit of the software release number {e.g. the first Major Enhancement to M.O.M. 1.0.0 shall be designated 1.1.0}. Major Enhancements are provided to You, free of charge, so long as You have not lapsed in payment of the Maintenance & Support Fees due hereunder.

Minor Enhancement(s)” shall mean any modification or addition that provides error corrections to the Software. We, in Our sole discretion, shall designate Minor Enhancements by indicating a change in the third digit of the software release number {e.g. the first Minor Enhancement to M.O.M 1.0.0 shall be designated 1.0.1}. Minor Enhancements are provided to You, free of charge, so long as You have not lapsed in payment of the Maintenance & Support Fees due hereunder.

Module(s)” shall mean a dependent software program that works with the Software but provides separate and optional functionality {e.g. BizSyncXL is a module sold with the M.O.M}, which We may offer to You for an additional charge.

Release(s)” shall mean a stand-alone software program, which has new functionality and/or interoperability. We shall designate a Release by indicating a change in the first digit of the software release number {e.g. the first new Release to M.O.M. 1.0.0 shall be designated 2.0.0}.  When new Releases become available, You can move to the current Release (“Upgrade”) for an additional charge.

A-2 Software Maintenance & Support Services.

Subject to Your prompt payment of all Maintenance Fees when due hereunder, We agree to provide to You (a) all Major and Minor Enhancements to the Software (“Updates”); (b) approved Third-Party Software integrations or subscription updates, (c) Telephone, Email and Online Support Services (“Support Services”) and (d) access to features and functions that require a current maintenance contract in order to operate.

Depending on the Maintenance Service Level, described in A-4 below, chosen by You, Support Services include You having email and telephone access to Our support employees who have the necessary technical expertise and experience to understand and consider Your inquiries concerning the failure of the Software to work in accordance with the Documentation.  One-on-one web or group training and Our onsite visits are not included in the Support Services set forth in this Agreement and You will incur additional charges in accordance with Our then current rates if such services are required by You.  We maintain internal escalation/notification procedures to ensure that timely responses and feedback is provided for all open inquiries.  For those problems reported that cannot be resolved during the initial call, We will often attempt to reproduce the problem.  To help Us do this, We may need a variety of information from You.

Such Support Service shall not apply to: (a) service required due to failure caused by computer equipment that do not meet Our specifications; (b) repair of damage to Software or service time, which results from accident, transportation, neglect, misuse, lightning, failure or fluctuation of electrical power, air conditioning or humidity control, telephone equipment or communication line failure, or other causes other than ordinary use; (c) any service with respect to unauthorized alteration to the Software; and (h) set up of Your network and firewall protections.

If You assign persons other than Us to perform Support Services and as a result further repair by Us is required, such repairs will be made at rates not less than Our then-current commercially available time and materials rates and maintenance & support fees. We shall not be responsible should the Software be unable to be repaired due to services performed by third parties.

We will only provide Support Services for the most current Release and one (1) prior Release of the Software (“Supported Software”).  Any Releases prior to the Supported Software shall require the purchase of an Upgrade to the then current version of the Software so that Support Services can continue. Notwithstanding anything contained herein to the contrary, we may terminate Support Services for specific features and functionality in the Supported Software.

Any request for unscheduled, on-call remedial Maintenance Service within the continental U.S., that starts during the service site’s normal business hours (Mon – Thurs 9:00 am to 7:00 pm EST and Fri 9 am – 5:30 pm EST) and that finishes not later than 7:00 pm EST Mon – Thurs and 5:30 pm EST on Friday shall be treated as having been performed within Our normal business hours at no additional charge.

 

A-3 Remote Access to Installed Software.

In the event that We require full, unrestricted remote access to the installed Software at Your location to provide Support Service, then You shall provide such access, at a mutually agreeable time.

A-4 Maintenance Service Levels.

You may choose to purchase one of the following Maintenance Service Levels:

  • GOLD: Email, Phone and Web support via the online ticketing system. Also includes downloading utilities and program Updates from the support section of our website, access to Our knowledge base of support FAQs and phone support during business hours (between the hours of 9 AM – 7 PM EST Monday – Thursday and 9 AM – 5:30 PM EST Friday) excluding Freestyle Solutions observed holidays; or
  • PLATINUM: Includes Gold Support plus 24/7 emergency support.

You may change Your Maintenance Service Level after Your initial choice, and any upgrades in the particular Maintenance Service Level shall be billed separately.  Downgrades in Maintenance Level Service are only allowed at the time of each Maintenance Services Term’s renewal date.

Not less than one (1) month prior to expiration of the then-current Maintenance Services Term, You will be sent an invoice for the Maintenance Service Level currently being utilized at then-current rates. At such time You will have the ability to keep the existing or change the particular Maintenance Service Level.

A-5 Training.

As a condition of Support Services, You shall properly train Your personnel in the use and application of the Software and communicate with Us through such trained Authorized Contact(s).  Any training is an additional cost and shall be provided to You in accordance with separate Statement of Work, which shall be invoiced at Our then-current commercially available time and materials rates.

[Exhibit End]

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