On Premise Subscription Agreement

THE FOLLOWING TRANZTEC SOLUTIONS, INC (“TRANZTEC”) SUBSCRIPTION AGREEMENT WILL BE LEGALLY BINDING ON THE CUSTOMER UPON EXECUTION OF AN APPLICABLE SUBCRIPTION ORDER FORM (“ORDER FORM”).

 

CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TRANZTEC SUBSCRIPTION AGREEMENT BEFORE EXECUTING THE APPLICABLE ORDER FORM.

 

  1. License

During the Subscription Term and in accordance with the terms herein, Customer has a temporary, nonexclusive, non-assignable, royalty free, worldwide right to use the current version of the object code of Tranztec’s software and documentation (the “Software”), described in Statement of Work or Schedule A  The Subscription Term shall mean that period specified in the Statement of Work or Schedule A.  The Subscription Term shall renew for successive one-year periods unless and until either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term.

 

Customer may use the Software on any servers owned or controlled by Customer, for Customer’s own direct benefit only. Customer may not use the Software in connection with the development of any interactive product for any third parties, and, except with respect to the Run-time as stated herein, may not allow any third parties to have access to or use of the Software except on Customer’s behalf. Customer shall not allow access to the Software through a local or wide area network and shall not allow any remote access through modem or other remote access device. Customer shall not transmit, communicate, broadcast or otherwise disseminate the Software, except as provided herein.

 

  1. Copies

The subscription granted herein includes the right to copy the Software in non-printed, machine-readable form in whole or in part as necessary for Customer’s own business use. In order to protect Tranztec’s trade secret and copyrights in the Software, Customer agrees to reproduce and incorporate Tranztec’s trade secret or copyright notice in any such copies. Customer shall maintain no more than three copies of object code for the Software at any time.

 

  1. Price and Payment

(i) Customer shall make payment to Tranztec for the Software subscription pursuant to the fees and payment terms set forth on the Order Form.

(ii) All fees are stated and are due and payable, in U.S. dollars, within thirty (30) days from receipt of Tranztec Solutions applicable invoice. Such invoices shall be issued after the acceptance of a Statement of Work (SOW) or Schedule A, and Customer agrees to be liable for fees applicable to the Software set forth in the SOW or Schedule A. The fees identified on the SOW or Schedule A are exclusive of shipping and handling charges, customs duties, and value-added, sales, use, excise and property taxes and other similar taxes (except for taxes based on Tranztec Solutions’ income). Customer will pay such charges, duties and taxes. In addition, past-due amounts are subject to a late charge equal to one and one-half percent (1 ½%) per month or the maximum amount allowed by law, whichever is less. Customer represents and warrants that it will claim a reseller or any other tax exemption in connection with any transactions hereunder only if and to the extent it is qualified for such exemption and will pay all applicable taxes as a result of such transactions. Customer represents and warrants that it will claim such exemption only by providing evidence of such exemption to Tranztec Solutions prior to the acceptance of the applicable Order Form.  Customer will indemnify and hold harmless Tranztec Solutions from and against any loss, cost, damage, liability, or expense (including reasonable attorneys’ fees) arising from or relating to Customer’s breach of any of the foregoing representations and warranties or failure to pay such taxes.

 

  1. Maintenance and Support Costs

(i)  Maintenance and Support is included in the subscription at no additional cost.

(ii)   Subject to the terms and conditions of this Agreement, Tranztec Solutions will provide, or arrange for third parties to provide, maintenance and technical support services (“Maintenance”) for the Software to Customer During the Subscription Term

(iii) Tranztec Solutions will provide Maintenance during the then-current hours established by the local office of the Tranztec Solutions Customer Support Organization (“Customer Support”), excluding national holidays. Customer may submit questions, issues, or problems to Customer Support via the Customer Support website or via email at [email protected]  Tranztec’s Customer Support will respond to such questions, issues, and problems during the hours established by the local office of Customer Support but will only provide support via telephone and fax during normal business hours, Monday through Friday, 8:00am-5:00pm EST.

(v) Customer acknowledges and agrees that Tranztec Solutions will only provide Maintenance with respect to the most current version of the Software and the immediately preceding version (as defined by Tranztec Solutions). Tranztec Solutions will have no obligation to provide support for Software that has been publicly designated “End of Support” or “Withdrawal from the Market” or similarly designated, provided that support will continue for at least ninety (90) days after the announcement of such designation.

(vi) Maintenance consists of: (a) correcting errors that cause the Software not to be in material conformance with the functionality requirements for the Software in the applicable user documentation; and (b) providing corrections, updates, enhancements, new releases, and other modifications that Tranztec Solutions provides, at no additional charge, to its general customer base.

Maintenance does NOT include any other maintenance or technical support services, including, but not limited to, (a) assembly, set-up, installation/re-installation, archiving, tuning, or configuration of any hardware or software, including the Software; (b) training or education; (c) professional consulting or on-site support; or (d) consultation, error correction or other support with respect to third-party software (except if such software is part of the Software), customized code, hardware, or documents, templates or processes (including but not limited to maps, trading partner profiles, and communication scripts) other than documents, templates and processes included in the Software. Tranztec Solutions may provide certain of these services to Customer, as billable professional services or support services, if Customer agrees to pay for such services in accordance with Tranztec Solutions’ then-current rates and other terms and conditions.

(vii) Tranztec Solutions’ obligation to provide Maintenance is contingent upon proper use of the Software. Moreover, Tranztec Solutions is under no obligation to provide Maintenance (a) if there has been a modification or attempted modification of the Software (other than modifications made by Tranztec Solutions and delivered as part of the Software) or the Software has been improperly installed or operated or used other than in accordance with this Agreement and the applicable user documentation; (b) to the extent the problems or issues with respect to the Software are external to the Software (including problems or issues that result from or relate to use of the Software with hardware, software, data or other materials not provided by Tranztec Solutions) or are beyond Tranztec Solutions’ reasonable control; or (c) if Customer has refused or otherwise failed to implement corrections, updates, enhancements, new releases, or other modifications that Tranztec Solutions has provided or recommended.

 

 

 

  1. Software Ownership

Tranztec represents that it is the owner of the Software and all portions thereof and that it has the right to modify same and to grant Customer a license for its use.

 

  1. Intent to Cooperate

Both Tranztec and Customer acknowledge that successful implementation of the Software pursuant to this Subscription Agreement shall require their full and mutual good faith cooperation, and Customer acknowledges that it shall timely fulfill its responsibilities, including but not limited to those set forth below.

 

  1. Title to Software Systems and Confidentiality

The Software and all programs developed hereunder, and all copies thereof are proprietary to Tranztec and title thereto remains in Tranztec. All applicable rights to patents, copyrights, trademarks and trade secrets in the Software or any modifications made at Customer’s request are and shall remain in Tranztec. Except as otherwise stated herein, Customer shall not sell, transfer, publish, disclose, display or otherwise make available the Software or copies thereof to others. Customer agrees to secure and protect each module, software product, documentation and copies thereof in a manner consistent with the maintenance of Tranztec’s rights therein and to take appropriate action by instruction or agreement with its employees or consultants who are permitted access to each program or software product to satisfy its obligations hereunder. Except as stated herein, all copies made by the Customer of the Software and other pro-grams developed hereunder, including translations, compilations, partial copies with modifications and updated works, are the property of Tranztec. Violation of any provision of this paragraph shall be the basis for immediate termination of this License Agreement.

 

  1. Use and Training

Customer shall limit the use of the Software to its employees who have been appropriately trained. Tranztec shall make training for the Software available to Customer pursuant to its standard training procedures and fees. Training shall be provided at a location to be determined by Tranztec.

 

  1. Warranty

(i)  Tranztec warrants that Software will conform, as to all substantial operational features, to Tranztec’s current published specifications when installed and will be free of defects, which substantially affect system performance.

(ii) The Customer must notify Tranztec in writing, within ninety (90) days of delivery of the Software to the Customer (not including delivery of any subsequent modifications to the Software), of its claim of any such defect. If the Software is found defective by Tranztec, Tranztec’s sole obligation under this warranty is to remedy such defect in a manner consistent with Tranztec’s regular business practices.

(iii) THE ABOVE IS A LIMITED WARRANTY AND IT IS THE ONLY WARRANTY MADE BY TRANZTEC. TRANZTEC MAKES AND CUSTOMER RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TRANZTEC SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF TRANZTEC FOR DAM-AGES ARISING OUT OF OR IN CONNECTION WITH THE DELIV-ERY, USE, OR PERFORMANCE OF THE SOFTWARE SYSTEMS.

(iv) If any modifications are made to the Software by Customer during the warranty period, this warranty shall immediately be terminated. Correction for difficulties or defects traceable to Customer’s errors or systems changes shall be billed at Tranztec’s standard time and material charges.

(v) Customer agrees that Tranztec’s liability arising out of contract, negligence, strict liability in tort or warranty shall not exceed any amounts payable by Customer for the Software identified above.

 

  1. Indemnity

Tranztec at its own expense will defend any action brought against Customer to the extent that it is based on a claim that any software system used within the scope of this License Agreement infringes any patents, copyrights, license or other property right, provided that Tranztec is immediately notified in writing of such claim. Tranztec shall have the right to control the defense of all such claims, lawsuits and other proceedings. In no event shall Customer settle any such claim, lawsuit or proceeding without Tranztec’s prior written approval.

 

If, as a result of any claim of infringement against any patent, copyright, license or other property right, Customer is enjoined from using the Software, or if Tranztec believes that the Software is likely to become the subject of a claim of infringement, Tranztec at its option and expense may procure the right for Customer to continue to use the Software, or replace or modify the Software so as to make it non-infringing. The foregoing states the entire liability of Tranztec with respect to infringement of any copyrights, patents or other proprietary right in the Software or any parts thereof.

 

  1. Termination

Tranztec shall have the right to terminate this agreement and licenses granted herein:

(i) Upon ten days’ written notice in the event that Customer, its officers or employees violates any provision of this Subscription Agreement including, but not limited to, confidentiality and payment.

(ii) In the event Customer:

(a) Terminates or suspends its business.

(b) Becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute.

(c) Becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority.

 

In the event of termination by reason of the Customer’s failure to comply with any part of this agreement, or upon any act which shall give rise to Tranztec’s right to terminate, Tranztec shall have the right, at any time, to terminate the license(s) and take immediate possession of the Software and documentation and all copies wherever located, without demand or notice. Within five (5) days after termination of the license(s), Customer will return to Tranztec the Software in the form provided by Tranztec or as modified by the Customer or upon request by Tranztec destroy the Software and all copies (including, without limitation, all documentation) and certify in writing that they have been destroyed. Termination under this paragraph shall not relieve Customer of its obligations regarding confidentiality of the Software.

 

Without limiting any of the above provisions, in the event of termination because of the Customer’s failure to comply with any of its obligations under this Subscription Agreement, the Customer shall continue to be obligated for any payments due. Termination of the license(s) shall be in addition to and not in lieu of any equitable remedies available to Tranztec.

 

  1. Taxes

Customer shall, in addition to the other amounts payable under this Subscription Agreement, pay all sales and other taxes, federal, state, or otherwise, however designated which are levied or imposed by reason of the transactions contemplated by this Subscription Agreement. Without limiting the foregoing, Customer shall promptly pay to Tranztec an amount equal to any such items actually paid or required to be collected or paid by Tranztec.

 

  1. Hardware Requirements

Customer shall make available for the Software implementation computer equipment and software configurations approved by Tranztec as adequate for such implementation at such location.

 

 

  1. General

(i) Each party acknowledges that it has read this Subscription Agreement, understands it, and agrees to be bound by its terms, and further agrees that this is the complete and exclusive statement of the Subscription Agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this Subscription Agreement. This Subscription Agreement may not be modified or altered except by written instrument duly executed by both parties.

(ii) Dates or times by which Tranztec is required to make performance under this license shall be postponed automatically to the extent that Tranztec is prevented from meeting them by causes beyond its reasonable control.

(iii) This Subscription Agreement and performance hereunder shall be governed by the laws of the State of Ohio.

(iv) No action, regardless of form, arising out of this Agreement may be brought by Customer more than two years after the cause of action has arisen.

(v) If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.

(vi) The Customer may not assign without the prior written consent of Tranztec, its rights, duties or obligations under this Agreement to any per-son or entity, in whole or in part.

(vii) Tranztec shall have the right to collect from Customer its reasonable expenses incurred in enforcing this agreement including attorneys’ fees.

(vii) The waiver or failure of Tranztec to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder.