Unanet On‐premise Term Software License Agreement

UNANET ON‐PREMISE TERM SOFTWARE LICENSE AGREEMENT (REDISTRIBUTION OR RENTAL NOT PERMITTED)

BEFORE YOU USE THE PRODUCT, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THE PRODUCT, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PLEASE RETURN THE PRODUCT IMMEDIATELY.

This is an Agreement (which includes the provisions below and all Exhibits) between Unanet, Inc., (“UNANET”) and CLIENT NAME (“Licensee”) under which UNANET is licensing software on a non‐exclusive basis for use under the terms and conditions stated below.

1) LICENSE GRANT AND TERM: The rights granted under this Agreement are effective as of the date this Agreement is distributed and expire at the end of the Term (defined below). UNANET hereby grants to Licensee a non‐ exclusive, non‐transferable license to use the Unanet Licensed Software Product (Software) for internal purpose only during the Term. The “Term” means the period beginning when this Agreement is first effective and ending on the first anniversary thereafter, unless this Agreement is otherwise terminated, suspended, or renewed as described below.

2) LIMITED WARRANTY: UNANET warrants that, for a period of thirty (30) days from the date of acquisition, the Software, if operated as directed, will substantially perform in accordance with its documentation.
UNANET does not warrant, however, that Licensee’s use of the Software will be uninterrupted or that the operation of the Software will be error‐free or secure. UNANET does not warrant the accuracy or reliability of any information or data entered by Licensee using the Software, nor does UNANET warrant any results or product generated by UNANET based upon the information or data entered by Licensee. In addition, the security mechanisms implemented by the Software have inherent limitations, and Licensee must determine that the Software sufficiently meets Licensee’s requirements. UNANET does not warrant, take responsibility or assume liability for errors or disruption caused by viruses.

Only if Licensee informs UNANET of Licensee’s problem with the Software during the applicable warranty period and provides evidence of the date Licensee purchased a license to the Software will UNANET be obligated to honor this warranty. UNANET will use reasonable commercial efforts, at its sole discretion, to repair, replace, advise or refund fees paid to UNANET pursuant to the foregoing warranty within thirty (30) days of being so notified. Provided that if Licensee purchases maintenance support pursuant to Exhibit A, UNANET shall make all reasonable efforts to correct any problems with the Software in accordance with the terms herein.

If any modifications are made to the Software (including modifications to the Unanet database schema) during the warranty period, other than by or with the prior approval of UNANET or if Licensee violates a material term of this Agreement, then this warranty shall immediately terminate. Moreover, this warranty shall not apply if the Software is used on or in conjunction with hardware or software other than hardware and software customarily used with software like the Software.

THIS IS A LIMITED WARRANTY, AND IT IS THE ONLY WARRANTY MADE BY UNANET OR ITS SUPPLIERS. UNANET MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER, AGENT, OR EMPLOYEE OF UNANET IS AUTHORIZED TO MAKE ANY MODIFICATION, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.

NEITHER LICENSEE, ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES HAS ANY RIGHT TO MAKE ANY REPRESENTATION, WARRANTY OR PROMISE ON BEHALF OF UNANET WITH RESPECT TO THE SOFTWARE.

3) SCOPE OF LICENSE GRANT:

Licensee may:
3.1) Use and execute the Software against one (1) database containing the named users.
3.2) Make a single copy of the executable version of the Software for archival purposes, provided the copy contains all of the original Software’s proprietary notices.
3.3) Make copies of the Software as reasonably required by Licensee to exercise its rights herein, including without limitation, copies for backup, archival, testing, development, internal distribution and training purposes.
3.4) Disclose Confidential Information and Software to those of Licensee’s employees who have a “need to know”, but only if Licensee take reasonable precautions to protect Confidential Information from further disclosure by such employees. Reasonable precaution shall include, at a minimum, the same precautions used by Licensee to protect Licensee’s own confidential and proprietary information and trade secrets.
3.5) Report in writing to UNANET any known illegal use or copying of the Software by a third party, and give reasonable assistance to UNANET in the investigation and prosecution of such suspected illegal use.

Licensee may not:
3.6) Permit the right to use of this Software to any person or entity that is not an authorized user or employee of Licensee (THIRD PARTY).
3.7) Distribute, transfer, disclose, display or otherwise make available to others Confidential Information.
3.8) Reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from any of the Software.
3.9) Sell, rent, lend, lease, copy, sublicense, assign, grant a security interest in, or otherwise transfer rights to the software, except to the extent provided above, or remove any proprietary notices or labels on the Software. 3.10)Take any steps whatsoever, including without limitation, compiling, reverse compiling and engineering, unassembling, or disassembling, to generate copies or versions of the Software.
3.11)Enhance or update the Software, except that UNANET, at its sole discretion, may from time to time make available to Licensee maintenance releases of the Software (Release), and if Licensee pays the fee set forth herein for maintenance support, UNANET shall provide releases of the Software in accordance with the terms of Exhibit A. Release shall mean any version of the Software or any materials to be used with the Software which are supplies by UNANET or after delivery of the Software, including any software provided for the purpose of improving the functions or ease of operation of the Software, or for the purpose of fixing errors in Software logic.
3.12)Take any steps to modify, replace or remove any Unanet provided source files or take any other action which would remove or otherwise alter the Unanet branding or logo, except where specifically allowed via a documented feature.
3.13) Use “Import – Historical Time” after becoming operational except for any users marked with the Active checkbox in their People Profile (“Active Users”).

4) TITLE: Title to and ownership of the Software, and all copies thereof, shall at all times reside with UNANET, and the Software is protected by United States copyrights laws and international treaty provisions. Licensee acknowledges that it obtains no ownership rights to the licensed Software under the terms of this Agreement. All rights to the Software, including but not limited to Confidential Information, trade secrets, trademarks, service marks, patents, and copyrights are, shall be and will remain the property of UNANET. All copies of the Software delivered to Licensee or made by Licensee remain the property of UNANET. UNANET acknowledges that it obtains no ownership rights to the Licensee Work.

5) CONFIDENTIALITY: Licensee acknowledges and agrees that UNANET represents that the Software is a valuable and unique asset of UNANET and contains Confidential Information and trade secrets of UNANET. Confidential Information shall mean the Software and related documentation (text describing the installation and use of the Software) provided by UNANET to Licensee. Confidential Information shall at all times remain the sole and exclusive property of UNANET.

6) ENCRYPTION: Licensee may choose to configure their Unanet environment such that access to the system is encrypted using SSL. This encryption requires the use of an SSL Certificate, which may be subject to additional terms and conditions as specified by the certificate provider. There are inherent limitations in the capabilities of digital certificates. Licensee, not Unanet, is solely responsible for the digital certificate(s), to include any additional costs, limitations, and/or terms. Licensee is responsible for maintaining the security of the environment in which the Software is used and the integrity of the private key file used with the Software.

7) TERM AND TERMINATION: This Agreement is effective on or retroactive to the date on which the License Key was initially furnished to Licensee and shall continue thereafter during the Term, unless earlier terminated as set forth in this section:

Either party may terminate this Agreement for the material breach of any term by the other party if such material breach remains uncured for thirty (30) days after receipt of written notice of such material breach from the non‐breaching party. Without limiting the foregoing, UNANET may also terminate this Agreement if Licensee fails to pay any amount due to UNANET by the due date (including, without limitation, any annual license, maintenance, or support fees) and such failure is not cured within five (5) days after notice. Notice shall describe in reasonable detail the nature of the breach.

Either party may terminate this Agreement immediately upon written notice to the other party in the event that such other party (a) becomes insolvent or makes an assignment for the benefit of creditors; (b) files or has filed against it any petition under any Title of the United States Code or under any applicable bankruptcy, insolvency, reorganization, or similar debtor relief law which is not discharged within sixty (60) days of filing; or (c) requests or suffers the appointment of a trustee or receiver, or the entry of an attachment or execution as to a substantial part of its business or assets (any of the foregoing, a “Termination for Insolvency”).

Upon any termination of this Agreement for Licensee’s uncured material breach, Licensee’s non‐payment of fees, or a Termination for Insolvency by UNANET, all amounts due and payable by Licensee to UNANET for the remainder of the Term, shall be accelerated and immediately due and payable by Licensee to UNANET. Upon any termination of this Agreement for UNANET’s uncured material breach, any pre‐paid fees collected prior to the date of termination by UNANET shall be refunded to Licensee on a pro‐rata basis for any period after termination. Except as expressly provided otherwise in this Agreement, UNANET shall retain all fees collected or accrued as of the date of termination and all amounts payable to UNANET are non‐refundable and non‐cancellable.

In addition, upon any expiration or termination of this Agreement, Licensee’s license to use the Software shall terminate, all amounts due and payable to UNANET shall be paid by Licensee, and Licensee shall immediately turn over to UNANET all copies of the Software and any other Confidential Information relating to the Software, and shall remove and erase completely any copies of the Software installed or recorded on any hard disk or other storage medium. Licensee shall promptly certify in writing to UNANET that it has complied with this requirement.

The termination of this Agreement shall not extinguish any rights or obligation of the parties relating to protection of Confidential Information.

8) EXPORT: Licensee acknowledges that the laws and regulations of the United States may restrict the export and re‐export of certain commodities and technical data of United States origin, including the Software in any medium. Licensee agrees that it will not export or re‐export the Software in any form, other than in compliance with any applicable laws and regulations.

9) MUTUAL INDEMNITY:LICENSEE shall indemnify and hold UNANET, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the LICENSEE Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Licensee of LICENSEE ‘s representations and warranties; or (iii) a claim arising from the breach by LICENSEE or LICENSEE ‘s Users of this Agreement, provided in any such case that Unanet (a) gives written notice of the claim promptly to LICENSEE; (b) gives LICENSEE sole control of the defense and settlement of the claim (provided that LICENSEE may not settle or defend any claim unless LICENSEE unconditionally releases UNANET of all liability and such settlement does not affect UNANET’s business or Service); (c) provides to LICENSEE all available information and assistance; and (d) has not compromised or settled such claim.

UNANET, at its own expense, shall defend and indemnify LICENSEE with respect to any action brought against LICENSEE for a claim that the Software infringes any patent, copyright, trade secret or other proprietary right, provided that LICENSEE gives prompt written notice to UNANET of any such claim, assist in the investigation, defense, and settlement thereof at UNANET’s expense, and allows UNANET to control the defense of all such claims, lawsuits or other proceedings. If the Software is, or in UNANET’s opinion may become, the subject of any infringement claim or is determined by a court to infringe an intellectual property right and its use is enjoined, UNANET shall, at its sole option and expense, either: (a) procure for LICENSEE the right to use such Software; (b) replace or modify the Software in such a way that it will not constitute an infringement; or (c) terminate this Agreement and provide a pro rata refund of the pre‐paid fees to LICENSEE for such infringing Software.

10) CONSEQUENTIAL DAMAGES WAIVER: UNDER NO CIRCUMSTANCES SHALL UNANET BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALUNCTION, COST OF COVER, LOSS OF DATA, LOSS PROFITS, LOSS REVENUE OR SAVINGS, THIRD PARTY DISCOUNTS OR INTEREST, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES UNDER THIS AGREEMENT OR ITS TERMINATION IRRESPECTIVE OF WHETHER UNANET HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.

11) LIMITATION OF LIABILITY: IN NO EVENT SHALL UNANET’S LIABILITY TO LICENSEE FOR DAMAGES FOR ANY ACTION OR CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY LICENSEE TO UNANET UNDER THIS AGREEMENT DURING THE PRIOR TWELVE MONTH PERIOD PROCEEDING THE LAST CLAIM. THIS LIMITAION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTAION, AND OTHER TORTS. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM UNANET’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

12) HIGH RISK ACTIVITIES: The Software is not fault‐tolerant and is not designed, manufactured or intended for use or resale as on‐line control equipment in hazardous environments requiring fail‐safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons system, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environment damage (“High Risk Activities”). UNANET SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.

13) FUTURE RELEASES: When Licensee receives a future release of the Software that Licensee previously acquired, Licensee has not acquired two different rights to use the Software and its earlier version. The future release and the earlier version together constitute just one copy of the Software and may be used only by Licensee as set forth in this Agreement. If not provided pursuant to maintenance services as set forth in Exhibit A, UNANET will make available, for purchase, to Licensee future releases of the software when it becomes commercially available, at the then‐current standard License Fee established by UNANET for such future versions. The terms and conditions of this Agreement shall govern Licensee’s use of any future versions provided to Licensee by UNANET.

14) U.S GOVERNMENT USERS: The Software is a “commercial item,” as that term is defined in 48 C.F.R ‐ 2.101 (1997), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 4848 C.F.R. ‐ 12.212 (1997). Consistent with 48 C.F.R. ‐ 12.212 and 48 C.F.R. ( 227.7202‐1 through 227.7202‐4), all U.S. Government users acquire the Software with only those rights set forth herein, notwithstanding any contrary provision in any prime contract or subcontract.

15) GOVERNING LAW: This Agreement shall be governed by and construed and enforced under the laws of the United States of America and the Commonwealth of Virginia, excluding conflict of law provisions (except to the extent applicable law, if any, provides otherwise). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and Unanet as a result of this agreement or use of the Service. The failure of Unanet to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Unanet in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between Licensee and Unanet and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

16) DISPUTE RESOLUTION: Any controversy, claim or dispute arising out of or relating to this Agreement, or any breach, termination or invalidity thereof, shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“Rules”), and judgment upon any award rendered may be entered into any court having proper jurisdiction. In accordance with such Rules, each party shall designate one arbitrator, and these two arbitrators shall designate a third arbitrator. The place of arbitration shall be in Northern Virginia. The arbitrator shall be entitled to award costs, fees and expenses (including reasonable attorney’s fees) to the prevailing party. Nothing in this section shall limit either party’s right to pursue injunctive or other equitable relief.

17) ASSIGNMENT: Neither party may assign this Agreement to any third party without the express written consent of the other party, except that either party may, upon written notice to the other, assign this Agreement to a company that controls, is controlled by, or under common control with such party. For the purposes of this Agreement, the following transaction relating to the parties shall not be deemed an assignment of the Agreement and shall not give rise to any requirement of approval or consent by any party to this Agreement: any merger (including, without limitation, a re‐incorporation merger), consolidation, reorganization, stock exchange, sale of stock or substantially all of the assets of the party or other similar or related transaction in which UNANET or Licensee, as applicable, is the surviving entity, or if not the surviving entity, the surviving entity continues to conduct the business conducted by such party prior to consummation of the transaction.

18) ATTONEY’S FEES: In the event any proceeding or lawsuit is brought by either party in connection with this Agreement, the prevailing party shall be entitled to receive its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal.

19) FORCE MAJEURE: Both parties’ performance under this Agreement (other than payment of fees) is subject to interruption and delay due to causes beyond its reasonable control, such as acts of God, war or other hostility, civil disorder, unusually severe weather, fire, explosion, and power failure.

20) MAINTENANCE AND TECHNICAL SUPPORT DURING THE TERM: Each year during the Term, Licensee agrees to subscribe to and pay for maintenance and technical support as described in Exhibit A. Exhibit A is hereby incorporated by reference into this Agreement. Licensee’s license and other rights may be suspended or terminated for cause by UNANET if Licensee does not timely pay for maintenance and technical support. The Software requires a new software key to be provided by UNANET each year to continue to operate. UNANET will only provide such key during the Term for so long as Licensee is current on all payments due to UNANET, including without limitation annual maintenance and technical support fees.

21) This Agreement, including the Exhibits, represents the complete and exclusive agreement of the parties concerning its subject matter. It supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, written and oral, regarding the subject matter hereof. Unanet reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. Customer is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Customer consent to such changes.

THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY LICENSEE IS EXPRESSLY MADE CONDITIONAL ON LICENSEE’S ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN LICENSEE’S PURCHASE ORDER WHICH ARE HEREBY INEFFECTIVE AND REPLACED BY THIS AGREEMENT.

Exhibit A: UNANET MAINTENANCE AND TECHNICAL SUPPORT 1 Maintenance

1.1 Purpose: The parties recognize that Software will need to evolve and change. New technologies, features and functions identified by licensed customers, software enhancements and/or technical advances in browser and server operating environments will drive these changes. In addition, licensed customers from time to time require assistance in optimizing the performance of the Software and updated license keys to continue to use the Software. Accordingly, Unanet offers maintenance and technical support during the Term (and any mutually agreed extensions thereafter).

1.2 Availability: Maintenance and technical support is offered to all Unanet licensed customers during their applicable Term. Supplemental technical support hours and advanced technical services are offered as a purchase option.

1.3 Scope: Unanet will provide periodic application releases to upgrade the Software. New release notices will be transmitted to an e‐mail address designated by the Licensee. The application upgrades will be provided in machine‐readable format via download from a designated web‐site. In addition, Unanet will provide general installation and configuration guidelines. It is the responsibility of the Licensee to properly configure and install the Software at the Licensee’s site. However, Unanet does provide supplemental assistance under a separate professional service agreement.

1.4 Software Releases: Unanet targets several software releases throughout the year. On occasions when a software update to correct a software error is needed and it is not practical to delay implementing and distributing such an update until the next regularly scheduled release, an unscheduled specific release will be provided as soon as possible.

1.5 Enhancement Requests: Licensed customers are the primary source for product enhancement ideas. Licensee hereby grants to Unanet all right, title, and interest in and to such ideas and feedback so that Unanet can improve our Software and offerings to all of our customers. Enhancement requests will be logged in the Unanet product database, and the analysis of the benefits, impact and efforts will determine the scheduled release that Unanet would implement such an enhancement. Unanet encourages each Licensee to submit enhancement requests to the following e‐mail address: marketing@unanet.com. suggestions@unanet.com. While enhancement requests are encouraged, Licensed customers should not rely on the future availability of any additional features.

1.6 Technical Support: Technical Support is available to all licensees subscribing and paying for Maintenance. Maintenance includes a defined number of minutes of technical support calls/e‐mails each year without an additional fee. Additional Technical Support is offered as a purchase option for an additional fee. Each technical support call/e‐mail is assessed a 15 minute minimum. Support for any external custom component (i.e., SLConnect, Refreshable Web Queries with Excel, PNIConnect, Validation Stores Procedures, Integration Management Utility, custom reporting, etc.) is available at an additional cost. Support inquiries related to software application defects are classified as non‐billable and do not impact the number of available support minutes.

1.7 Pricing: Maintenance fees are charged annually in advance at a rate of 20% of the prevailing annual License Fee net of any volume purchase credit. The first year’s Maintenance is payable immediately upon execution of this Agreement. Each subsequent invoice is sent to the Licensee’s designated point of contact 60 days prior to the next year and due and payable before the upcoming anniversary of the Term.

1.8 Unpaid Maintenance Fees: If Licensee fails to timely make payment of any Maintenance fees, its license rights may be terminated and the Software may cease to function. In addition, Unanet may impose a reinstatement fee and interest charges to reactive licensee’s Software in accordance with Unanet’s then current policies and procedures and applicable law.

2 Technical Support

2.1 Purpose: To provide on call access during business hours (8:30 a.m. ‐ 7:30 p.m. Eastern Time) for the resolution of technical issues related to the operation of the software.

2.2 Definitions:
(1) Support Call: A single discrete problem, issue or question requiring analysis, research and/or programming to

correct a problem.
(2) Response Time: The time between the receipt by Unanet of a customer phone call, e‐mail message or fax and

a customer service person contacts the customer to confirm the issue, problem or question which initiated the call. The priorities of call request resolution will be established at this time.

(3) Resolution Time: The time between the receipt by Unanet of a customer phone call, e‐mail message or fax and provision of a solution to the customer.

2.3 Service Level Commitments: When a technical support call is opened a senior support technician will use the following definitions to establish priority.

2.4 Response and Resolution Targets: The table below describes response and resolution targets as well as the method to resolving the technical support call. All times are stated in Eastern Standard Time Zone business hours.

2.5 Escalation Procedures: To ensure adequate response to Priority 1 and 2 support calls, Unanet will monitor and escalate technical support calls accordingly.

2.6 Technical Support Contact Information: The preferred method for reporting a technical support call is via electronic mail.
email: support@unanet.com

Tel: (703) 689‐9440 Fax: (703) 689‐9450