BP LOGIX, INC. SOFTWARE AND SERVICES LICENSE TERMS AND CONDITIONS

General Terms and Conditions

1. Orders; Subscriptions; Delivery; Renewals.

1.1 During the Term of this Agreement and subject to Licensee’s compliance with the terms and conditions hereof, including the payment of the applicable fees, Licensee may purchase Products and Support by the parties agreeing to Orders that reference this Agreement. The features of, and any additional terms and conditions applicable to, Support are as described in the Exhibits hereto.

1.2. The Product is licensed pursuant to Subscriptions. Subscriptions will be for the term agreed to in an applicable Order. Subscriptions will automatically renew for successive one-year terms at BP Logix’s then-current fees unless Licensee provides written notice of non-renewal to BP Logix at least thirty days prior to the end of the then-current term of the applicable subscription.

1.3 Unless otherwise agreed to, all Products, Updates and Documentation licensed by Licensee pursuant to this Agreement will be delivered electronically to Licensee (such as by electronic mail, file transfer or other means of electronic transmission, or in the case of Cloud Edition subscriptions, by giving Licensee access to such Products, Updates and Documentation).

1.4 In the case of a renewal of a Subscription, Licensee acknowledges and agrees that there is no delivery requirement for such renewal. Such renewals shall be deemed Delivered on the first day of the then-current renewal term of the applicable Subscription.

2. Ownership of Intellectual Property; License Grant; Restrictions; Audit.

2.1 Ownership. The Product Materials contain proprietary and confidential information of BP Logix and its licensors. Except to the extent licenses are expressly granted hereunder, each party and each party’s licensors respectively retains all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know‑how and trade secrets) in and to that party’s respective products and services. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Licensor’s website are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by Licensee of any such parts of the website, Product Materials or the Services, except as expressly authorized by this Agreement, is prohibited. Except as may otherwise be provided for in a statement of work signed by the parties, BP Logix shall own all right, title and interest, including all intellectual property rights, in and to any intellectual property created by BP Logix and delivered to Licensee pursuant to this Agreement or otherwise created by BP Logix in the course of providing the Product Materials, Service or Support under this Agreement.

2.2 License Grant. Subject to and in consideration of timely payment by the Licensee of the license fee in accordance with Section 3 below, and of Licensee’s compliance with the other terms and conditions of this Agreement, Licensor hereby grants to the Licensee, solely during the applicable term specified in an Order, a royalty-free, limited, personal, non-exclusive, non-transferable license to: (i) in the case of On-Premise Subscriptions, install on a Server, run and Use the Product; (ii) in the case of Cloud Edition Subscription, to access and use the Product via the Internet address provided to Licensee by Licensor; and (iii) Use the Product Documentation.

2.3 License Restrictions. Licensee agrees that it (and its Authorized Users) will not without express written permission of Licensor: (a) reverse compile, disassemble, decompile or engineer, copy, modify or adapt the whole or any part of the Product Materials; (b) make the Product Materials or Services available to, or use the Product Materials or Services for the benefit of, anyone other than Licensee or Licensee’s customers; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Product Materials or Services, or include any Product Materials or Services in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Product Material or Services in a way that circumvents a contractual usage limit; (e) copy the Product Materials or Services or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement; or (f) access or use any Product Materials or Services in order to build a competitive product or service.

2.4 Audit. For the term of the Agreement and for a period of two (2) years after termination or expiration of the Agreement, the Licensor will have the right, once per calendar year and with reasonable notice to Licensee, to have Licensee’s records (to the extent such records are applicable to compliance with this Agreement) inspected and audited to verify compliance with the license restrictions and payment terms of this Agreement. Any such audit will take place during normal business hours and will be conducted in accordance with applicable government requirements, if any, and in a manner which does not materially interfere with Licensee’s business operations. The Licensor will pay for the audit, unless the audit discovers an underpayment of five percent (5%) or greater, in which case Licensee will pay for the audit. Licensee agrees to pay any underpayment to the Licensor within thirty (30) days of receiving notice of the underpayment. In addition, upon request by Licensor not more than once per year during the term of this Agreement, Licensee agrees to provide a certification signed by an authorized representative certifying Licensee’s compliance with this Agreement.

3. Fees; Payments.

3.1 Accrual of Payment Rights. BP Logix’s right to payment for the Product purchased by Licensee shall accrue on the date the Product is Delivered to Licensee. Except as provided in Section 4.3, all payments accrued or made under this Agreement are non-cancelable and nonrefundable.

3.2 Invoicing and Payment. BP Logix will invoice Licensee in accordance with the relevant Order. BP Logix will invoice in advance of each term. Payment of all fees must be received by BP Logix in advance of Licensee’s Use of the Services. BP Logix will use reasonable efforts to communicate the status of the account if payment is not timely received. Fifteen (15) days following the commencement of any such Subscription (or forty-five (45) days after issuance of the relevant invoice, whichever is later), if payment has not yet been received, BP Logix may, at its sole discretion:

i.             Suspend Licensee access to the Services; and/or,

ii.            Terminate this Agreement; or,

iii.           Continue to provide the Services, for a period solely determined by the Licensor, in anticipation of full and prompt payment by Licensee.

Unless otherwise indicated, payment of the License Fee is due within thirty (30) days of Licensee’s receipt of an undisputed invoice. Any invoice which is unpaid when due shall be subject to interest equal to the lower of 1.5% per month or the highest applicable legal rate. BP Logix shall be entitled to reimbursement for any costs associated with the collection of any past-due balance.

3.3 Taxes. All stated prices are exclusive of any taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon such charges, or upon this Agreement. Any taxes related to the Product Materials, support, or training purchased or licensed pursuant to this Agreement including, but not limited to, withholding taxes, will be paid by Licensee, or Licensee will present an exemption certificate acceptable to the taxing authorities. Licensee will not be liable for taxes imposed on the Licensor based on the Licensor’s income.

4. Warranty and Disclaimer.

4.1 Subject to each of the other provisions hereof, the Licensor warrants, solely to Licensee, that for a period of ninety (90) days after the Product is initially Delivered to Licensee (the “Warranty Period”), the Product, (and in the case of an On-Premise Subscription when installed properly) will be capable of functioning substantially in accordance with the Specifications.

4.2 The warranty provided in Section 4.1 will not apply if: (i) Licensee fails to notify the Licensor during the Warranty Period of any such breach; or (ii) in the case an On-Premise Subscription Licensee fails to implement all Updates to the Product made available at no charge to Licensee during the Warranty Period.

4.3 If the Licensor breaches the warranty set forth in Section 4.1, Licensee’s sole and exclusive remedy, and the Licensor’s sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of the Licensor, the Licensor will, at its expense, either: (i) repair or replace the defective Product to enable it to perform substantially in accordance with the Specifications; or (ii) terminate this Agreement and refund to Licensee the fees paid by Licensee to the Licensor for the defective Product.

4.4 The Product Materials and Services are not designed or intended for use or resale in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, air traffic control, or direct life support machines, in which the failure of the Product Materials or Services could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Accordingly, BP Logix specifically disclaims any express or implied warranty of fitness for High Risk Activities.

4.5 EXCEPT AS SET FORTH IN SECTION 4.1, LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, DOCUMENTATION OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS AND ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE LICENSOR DOES NOT WARRANT THAT THE PRODUCT OR DOCUMENTATION PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT SUCH PRODUCT OR DOCUMENTATION WILL SUCCEED IN RESOLVING ANY PROBLEM.

5. Limitation of Liability.

5.1 EXCEPT WITH RESPECT TO CLAIMS BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SUBJECT TO SECTION 5.2, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5.2 EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, IN NO EVENT WILL EITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL OR SPECIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5.3 EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSOR’S INTELLECTUAL PROPERTY INDEMNITY UNDER THIS AGREEMENT, LICENSOR’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO THE LICENSOR UNDER THIS AGREEMENT. WITH RESPECT TO CLAIMS BASED UPON LICENSOR’S INTELLECTUAL PROPERTY INDEMNITY UNDER THIS AGREEMENT, LICENSOR’S LIABILITY FOR DAMAGES SHALL NOT EXCEED TWO TIMES THE AMOUNTS ACTUALLY PAID BY LICENSEE TO THE LICENSOR UNDER THIS AGREEMENT IN THE TWO-YEAR PERIOD IMMEDIATELY PRECEDING ANY CLAIM MADE UNDER SECTION 6 OF THIS AGREEMENT.

6. Intellectual Property Rights Indemnity.

6.1 Indemnification. Subject to each of the other provisions hereof, Licensor (at its expense) shall (i) defend or (at its option) settle, any claim brought against Licensee by a third party alleging that at the time of Delivery the Product Materials infringe the copyright, trademark, or US or EU patent of said third party (a “Claim”) and (ii) indemnify Licensee against damages and costs finally awarded against and payable by Licensee in any such Claim.

6.2 Exceptions. Licensor shall have no liability to Licensee under this Section:

(a) to the extent any Claim is based on or arises from any Product Materials, or any portion or component thereof, that is: (A) not provided directly to Licensee by the Licensor; (B) modified by a party other than the Licensor and not at the Licensor’s direction, if the alleged infringement would not have occurred in the absence of such modification; or (C) combined with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination;

(b) to the extent Licensee continues allegedly infringing activity after: (1) being notified thereof; and (2) being provided, at no additional charge, modifications that would have avoided the alleged infringement without significant loss of performance, compatibility or functionality; or

(c) from any breach of the Licensee’s obligations under this Agreement.

6.3 Despite any of the foregoing, Licensor’s obligations under Section 6.1 shall be valid only if Licensee:

(a) gives notice to the Licensor of any Claim promptly upon becoming aware of the same;

(b) gives Licensor the sole control of the defense and settlement of any Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of Licensor;

(c) acts in accordance with the reasonable instructions of Licensor and gives to Licensor such assistance as it shall reasonably require in respect of the conduct of the said defense; and

6.4. In the event of any alleged Intellectual Property infringement, the Licensor shall be entitled at its own expense and in its sole discretion to: (a) procure the right for the Licensee to continue using the Product Materials; (b) make such alterations, modifications, or adjustments to the Product Materials so that they become non-infringing without incurring a material diminution in performance or function; or (c) replace the Product Materials with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function.

7. Confidentiality.

7.1 Confidentiality Agreement. Each of the parties hereto undertakes to the other to keep confidential all Confidential Information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement. Confidential Information shall mean any information which, by its nature or circumstances of disclosure, would reasonably be presumed to be confidential. Despite the foregoing, each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such party’s Confidential Information.

7.2 Exceptions. Despite all of the foregoing, Confidential Information will not include any information which: (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is required to be disclosed by the receiving party as a matter of law (provided that the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor); (e) is disclosed by the receiving party with the disclosing party’s approval; or (f) is independently developed by the receiving party without any use of confidential information.

7.3 Injunctive Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the disclosing party’s remedies at law for a breach by the receiving party of its obligations hereunder may be inadequate and that the disclosing party shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance).

7.4 Return of Information. Upon expiration or termination of this Agreement for any reason, the receiving party will return (or at the request of the disclosing party, destroy) all copies of all Confidential Information of the disclosing party in its possession or under its control.

8. Term and Termination.

8.1 This Agreement shall continue until terminated in accordance with the provisions of this Section 8.

8.2 This Agreement, and any license granted thereby, may be terminated:

(a) Subject to any other terms agreed to in an applicable Order, by Licensee upon giving not less than sixty (60) days’ notice to the Licensor (such termination will not, however, entitle Licensee to any refund of fees paid, or credit for fees owed but unpaid, at the time of termination);

(b) immediately by either party if the other commits any material breach of any term of this Agreement and which (in the case of a breach capable of being remedied) shall not have been remedied within thirty (30) days of a written request to remedy the same;

(c) immediately by either party if: (i) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days; or (iii) the other party is adjudged bankrupt;

(d) By Licensor upon its reasonable determination that Licensee’s Use of the Product Materials or Services violates any applicable law or regulation; or

(e) by Licensor upon giving not less than sixty (60) days’ notice to the Licensee so long as no Orders are then outstanding.

8.3 Any termination of this Agreement pursuant to this Paragraph shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

8.4 Upon termination of this Agreement, Licensee shall, at the Licensee’s sole option, either return all copies of the Product Materials in its possession or control or shall destroy all copies of the Product Materials in its possession or control and a duly authorized officer of the Licensee shall certify in writing to the Licensor that the Licensee has complied with its obligation as aforesaid.

8.5 Those provisions, which by their nature survive termination, shall continue after termination or expiration of this Agreement. Those provisions include, but are not necessarily limited to: Sections 2.1, 2.3, 2.4 (for two additional years), 3-5, 7, 8.3-8.6, 9, 12, all associated definitions, all accrued rights to payment and any terms and conditions of an exhibit applicable to a Subscription type which, by their nature, reasonably should survive termination.

8.6. Termination is not an exclusive remedy for breach of this Agreement by either party. All other remedies will be available to the non-breaching party whether or not the non-breaching party terminates this Agreement for breach by the other party.

9. Import and Export Regulations. The Product is subject to U.S. export controls, specifically the Export Administration Regulations. Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee shall not transfer, export or re-export, directly or indirectly, the Product to any Prohibited Entity, and Licensee affirms that it is not a Prohibited Entity or acting on behalf of any Prohibited Entity (as defined under U.S. laws and regulations).

10. Privacy and Security. Each party agrees to abide by all applicable local, state, national, and international laws and regulations in connection with providing and using the Product Materials and Service, including, without limitation, all laws regarding the transmission of technical data exported from the United States through the Service and all privacy and data protection laws, rules and regulations.

11. Force Majeure. Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, floods, earthquakes, pandemic or epidemic illness, strikes (of its own or other employees), insurrection or riots, embargoes, requirements or regulations of any civil or military authority (a “Force Majeure condition”).

12. Miscellaneous.

12.1 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

12.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, or sent by documented overnight delivery service to the party to whom the notice is directed, at its address as may be indicated by one party to the other from time to time.

12.3. Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic legal and commercial objectives of the invalid or unenforceable provision.

12.4 Successors. This Agreement shall be binding upon and inure for the benefit of the successors in title of the parties hereto.

12.5 Assignment and Sublicensing. Licensee shall not assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of the Licensor. Despite the foregoing, Licensee may assign this Agreement without such consent to an entity that acquires all or substantially all of the shares of Licensee, or all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise. Licensor may assign this Agreement to any third party that succeeds to the Licensor’s interests in the Product and assumes the obligations of the Licensor hereunder. Licensor may assign its right to payment hereunder or grant a security interest in this Agreement or such payment right to any third party.

12.6 Headings. Headings to paragraphs or sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.

12.7 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in San Diego County, California, USA.

12.8 Third Party Rights. This Agreement does not, and is not intended to, confer any benefit on, nor create any right exercisable or enforceable by, any third party.

12.9 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.

12.10 Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.

12.11 Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.

12.12 Entire Agreement. This Agreement, including all attachments, schedules, exhibits and all applicable license agreements, constitutes the complete and exclusive understanding of the parties, and supersedes all prior and contemporaneous sales proposals, negotiations, agreements, representations or communications, whether oral or written, with respect to the subject matter hereof.

   

Exhibit A

Certain Definitions

 “Authorized User” means any individual (including Licensee’s employees, agents, contractors, suppliers of services, students and customers, in each case to the extent that Licensee’s license includes, and Licensee pays for, such individual) who is authorized to access the Product Materials or Services and exercise the rights licensed by Licensee. Each Authorized User must use a unique identity to access and use the Product unless otherwise licensed, and may access the services only to the extent licensed by Licensee.

“Cloud Edition” means the Product as further described in Exhibit C hereto (if Licensee licenses such Cloud Edition of the Product).

“Delivery” means the availability of the Product Materials by the Licensor to the Licensee via electronic or other means, without regard to when Licensee actually installs or uses such Product Materials.

“Key” shall mean any cryptographic string of electronic characters, generated by the Licensor and provided to the Licensee, necessary for the activation and/or operation of the Product.

“Licensee Data” means all data stored by Licensee or at Licensee’s direction on the Server.

“Named User” means an individual specifically identified by Licensee (and subject to other terms of this Agreement including Section 3.2) in connection with a purchase of a Named User License Subscription who shall have the right to exercise the licensed rights for a particular Subscription purchased by Licensee. Each Named User may be associated with single Product user account. Users may not share a Named User account. Once an individual is assigned a Named User License (“Original User”), such Named User License shall not be transferred or reassigned to anyone (a) for a period of 6 months from such assignment, or (b) until such Original User’s affiliation with Licensee has terminated, whichever comes first.

“Normal Business Hours” means 8AM to 6PM, Pacific Time, Monday through Friday, excluding Licensor holidays posted on the BP Logix Support Portal.

“On-Premise” means Product Subscriptions hosted by Licensee on its own premises or on the premises of a third-party with which Licensee contracts directly, and as further described in Exhibit C (if Licensee licenses such On-Premise edition of the Product).

“Order” means any document agreed to between the parties which sets forth the Product licensed by the Licensee and any relevant pricing and Usage Types, including (i) any Licensor quote which the parties agree to make a part of this Agreement, (ii) any Licensee purchase order accepted by Licensor, (iii) any invoice issued by Licensor and accepted by Licensee, and (iv) any additional terms and conditions set forth in Exhibit C to this Agreement. An Order may be amended only by a writing signed by authorized representatives of both parties. Multiple Orders may be entered agreed to under this Agreement.

“Process Director Software” means the software, documentation, data, and other intellectual property through which the Services are delivered.

“Product” means, collectively, the product(s) (including the Licensed Software) set forth in any Order (to the extent such product(s) are subsequently made available to Licensee by the Licensor), as well as any Update made available to Licensee by the Licensor.

“Product Documentation” means the instruction manuals, user guides, and other information to be made available from time to time by the Licensor in either printed or electronic form to the Licensee.

“Product Materials” means the Product(s) and the Product Documentation.

“Server” means that computer device on which the Product is installed and operated. A Server may be located on Licensee’s site or may be a “cloud” server located on Licensor’s site or at a third party’s remote hosting site contracted for by either Licensor or Licensee. Licensee agrees that as of the Effective Date, Licensor’s third-party hosting provider meets or exceeds Licensee’s standards for security and related certifications.

“Services” means Process Director Cloud Edition, hosted at Licensor’s facility (or that of its service provider) and accessed by Authorized Users via the commercial Internet, in a manner consistent with Licensor’s published Documentation and this Agreement.

“Specifications” means those technical specifications in respect of the Product(s) which are published by the Licensor and are in effect at the time of Delivery.

“Subscription” means licenses to the Product, Product Documentation, Updates and Support Services. A Subscription includes access to currently supported versions of the Product for the term of the Subscription.

“Support Services” shall have that meaning assigned to it in Exhibit B to this Agreement, which is made part of this Agreement and incorporated herein by reference.

“Update” means such enhancements, modifications, or additions to the Product Materials as may be made available from time to time by the Licensor to Licensee.

“Use” shall mean the legal use by Licensee of the Product Materials and/or Services in accordance with the terms and condition of this Agreement and in a manner consistent with the Specifications, subject to the Usage Type.

“Usage Type” will be described in the applicable Order or, if not so described, shall have the meaning (if any) set forth in Exhibit C to this Agreement.

 

Exhibit B

Certain Definitions Applicable to Support Services

 “Defect” means a problem which results from the Supported Product’s material failure to perform in accordance with its Specifications. No Update, new product feature, improvement to an existing feature, or any problem not caused primarily by a failure of the Supported Product shall constitute a Defect. Additionally, in the case of On-Premise Subscriptions, no problem shall constitute a Defect unless (i) Licensee’s Infrastructure meets or exceeds Licensor’s published minimum system requirements, and (ii) no error in configuration, installation, or operation of Licensee’s Infrastructure materially contributed to such problem.

“End of Life” means any Product designated as End of Life in Licensor’s sole discretion, upon six (6) months prior written notice to Licensee (but no sooner than twenty-four (24) months after such Product was first made available by Licensor to any of its customers.

“Extended Support Hours” (when purchased by Licensee) means those hours outside of Support Hours when Licensor will respond to Support Requests that, in the reasonable determination of Licensor, fall into the “Critical” category, as defined below (“Critical Requests”).

“Licensee Infrastructure” means Licensee’s Server, database, network, operating system software, and other technology infrastructure components.

“Major Release” means any Update (other than minor enhancements or bug fixes) made available since the Effective Date. Licensor in its sole discretion determines which Updates represent a Major Release. Licensor generally makes Major Releases available approximately once per year, though it may do so more or less often.

“Receipt” of a Support Request means (i) Licensor’s actual receipt of such Support Request, for Support Requests sent during Support Hours, or (ii) the beginning of Support Hours following such receipt, for Support Requests sent outside of Support Hours.

 “Support Hours” means Normal Business Hours.

“Support Request” means any request for technical assistance related to Supported Products submitted by a Technical Support Contact through the BP Logix Support Portal at https://support.bplogix.net (or using such other mechanism as may reasonably be made available by Licensor from time to time). Additional Support Request channels may be added by the Licensor at its sole discretion.

“Support Services” means the services described in this Exhibit.

 “Supported Products” means those Products for which Licensee holds a valid, in-effect license. Despite the foregoing, in the case of On-Premise Subscriptions Supported Products shall not include: (1) any Product other than a current Major Release (or, if such Major Release was made available within the preceding six months, the immediately prior Major Release); (2) any Product that has reached End of Life; or (3) any feature, function, script, custom code, or documentation not generally made available by Licensor to its customers as part of its normal product offering.

“Technical Support Contacts” means Licensee’s employees or contractors authorized to submit Support Requests. Licensee may designate up to three (3) Technical Support Contacts.

“Time of Receipt” means the actual time a properly submitted Support Request is received by Licensor (“Submission Time”), if such Submission Time is within Support Hours, or if Submission Time is within Extended Support Hours and the Support Request is deemed by Licensor to be of the appropriate severity. Otherwise, Time of Receipt shall mean the beginning of the Support Hours most closely following Submission Time.

“Uncovered Request” means any Support Request arising from any issue that is not a Defect, regardless of whether Licensee believed at the time of making the request that the issue was a Defect. Licensor shall designate a Support Request as an Uncovered Request at its discretion, at any point during or following resolution of the problem identified in such Support Request, based on Licensor’s reasonable determination of the underlying cause of such problem.

  

Terms and Conditions Applicable to Support Services

 I. Support Services. Subject to each of the other provisions of the Agreement, Licensor shall provide the following Support Services for the applicable term:

A. The right to submit Support Requests regarding Defects;

B. In the case of On-Premise Subscriptions, the right to obtain Updates for the licensed Products when and if such Updates are made available by Licensor; and

C. During Support Hours (and during Extended Support Hours, for Critical Requests, if purchased by Licensee) the right to have Licensor use commercially reasonable efforts to correct Defects, only to the extent that (i) such Defects are properly reported as a Support Request by the Licensee and (ii) Licensor agrees that the problem is a Defect. Despite the foregoing, Uncovered Requests are not included as part of the Support Services.

II. Severity Levels and Response Times. Licensor will respond to Support Requests concerning actual or reasonably possible Defects in the Product Materials or Services as set forth herein. Licensor may in addition, and in its sole discretion, respond to general questions, issues related to applications built using the Product Materials or Services, and any other Support Request. Severity Levels are initially recommended by the Licensee, based on the guidelines below, but may be modified by Licensor as Licensor deems appropriate. Licensor will use reasonable commercial efforts to respond within the Response Time (as measured from Time of Receipt) indicated below for the relevant severity level, and to resolve or provide a work-around for Defects, but Licensor makes no guarantee regarding the time period for resolving Defects. Licensee acknowledges that Licensor’s ability to find a suitable remedy or work-around for a given Defect will depend on the prompt response by Licensee to Licensor’s reasonable requests for additional information needed to duplicate and/or identify the underlying problem.

 

Severity	Guidelines for Determining Severity Level	Response Time
Level 4: Informational or Enhancement Request	Licensee’s production operations are not impacted; Licensee wishes to register a request for a new feature or enhancement to an existing feature; no response is required from Licensor other than acknowledgement of the request	N/A
Level 3: Important	Licensee’s production operations are minimally impacted, or a workaround exists that minimizes impact to Licensee’s production environment	1 business day
Level 2: Urgent	Licensee’s production operations are materially impacted, but most operations can continue as normal	4 hours
Level 1: Critical	Licensee’s production operations are substantially impacted; some or all operations are unable to proceed	2 hours

 

 

Exhibit C

Additional Definitions, Terms and Conditions Applicable to Cloud Edition Subscriptions

In addition to the terms and conditions of the Agreement applicable to Subscriptions, this Exhibit provides additional terms and conditions of Licensee’s purchase of Product Materials. Terms not defined herein shall have the same meaning set forth in the Agreement.

Additional Definitions Applicable to Cloud Edition Subscriptions

“Cloud Infrastructure” means the Process Director Software, and the computing, storage, networking, and other hardware and software infrastructure used in providing the Services in the Cloud Edition.

Cloud Subscriptions may be hosted on either a Cloud Edition Multi-tenant Platform or a Cloud Edition Private-Instance Platform.

“Cloud Edition Multi-tenant Platform” means the Process Director Cloud Infrastructure provided on a shared, multi-tenant platform, using up to 20 GB storage. BP Logix may take such steps as may be necessary to prevent any person or entity, including Licensee, from infringing on the ability of other customers to reasonably Use the Services.

“Cloud Edition Private-instance Platform” means the Process Director Cloud Infrastructure provided on a dedicated physical or virtual partition, with characteristics as defined in the appropriate Order.

 

Additional Terms and Conditions Applicable to Cloud Edition Subscriptions

Control of the Services. The method and means of providing the Services shall be under the exclusive control, management, and supervision of BP Logix. BP Logix will provide and operate the Services in a professional and commercially reasonable manner in accordance with applicable law.

Privacy and Security; Licensee Data.

Licensor Obligations.

Licensor will use commercially reasonable efforts to prevent the unauthorized use, dissemination, or publication of Licensee Data. Licensor will implement commercially reasonable policies and procedures to provide that: (1) unauthorized persons will not have access to the Licensee Data; (2) access to Licensee Data will be limited to a need-to-know basis; and, (3) any employees or subcontractors authorized by Licensor to access Licensee Data will be informed of its highly confidential nature, the limitations and procedures that apply to access and use of Licensee Data, and that they must maintain the confidentiality and security of Licensee Data.

Licensee Obligations; DISCLAIMER.

Licensee shall provide accurate, current and complete information required to enable its Authorized Users on the Cloud Infrastructure, and to maintain the accuracy of such information during the Use of the Services. Licensee shall require Authorized Users to maintain proper password security, and for maintaining the confidentiality of Licensee’s account. Without limiting any other responsibilities Licensee has under this Agreement, Licensee is responsible for the actions of it Authorized Users, of anybody accessing the Cloud Infrastructure using the credentials of any Authorized User, and of any other individuals to Licensee has given access to the Services.

Licensee shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use the Licensee Data. Licensee grants to Licensor a license store, record, transmit, maintain, and display the Licensee Data only to the extent necessary to carry out its obligations under this Agreement. Licensor does not promise that the Services will be uninterrupted, error-free, or entirely secure. LICENSEE acknowledgeS that the nature of Internet-based service delivery is such that confidentiality and performance cannot be completely assured. Licensor shall have no liability to Licensee for any unauthorized access, use, corruption or loss of any of Licensee Data, except to the extent that such unauthorized access, use, corruption, or loss is due solely to the licensor’s gross neglect or misconduct. Without limiting the foregoing, Licensor shall have no liability to Licensee for any unauthorized access to, or use, corruption or loss of, any personal health information (“PHI”) or personally identifiable information (“PII”) which may be contained in the Licensee Data, except to the extent that such unauthorized access, use, corruption, or loss is judicially determined to be due to Licensor’s neglect or misconduct or breach of the terms of this Agreement. Despite any other provision of the Agreement, in the case of loss or PHI or PII due to actions or inactions of Licensor, Licensee’s sole remedy shall be for Licensor to restore such PHI and /or PII from the latest available backup.

Licensee will not, and will not permit or enable others to, access or attempt to access any accounts or data on the Cloud Infrastructure, other than those explicitly belonging to Licensee or provided by Licensor for Licensee’s Use.

Licensee shall not, and shall not allow or enable any Authorized User or other person to: (1) access the Services for or upload to the Cloud Infrastructure anything unlawful, misleading, malicious or discriminatory; (2) work around any technical limitations in the Cloud Infrastructure, use any tool to enable features or functionality that are otherwise disabled in the Cloud Infrastructure, or decompile, disassemble or otherwise reverse engineer the Cloud Infrastructure; (3) perform or attempt to perform any actions that would interfere with the proper working of the Cloud Infrastructure, prevent access to or use of the Cloud Infrastructure by Licensor’s other licensees or customers; or (4) upload or transmit to the Cloud Infrastructure any device, software or routine that contains viruses, Trojan horses, worms, time bombs, or other computer programming routines that may damage, interfere or attempt to interfere with, or intercept the normal operation of the Cloud Infrastructure.

Mutual Obligations. Each party agrees to promptly notify the other if any unauthorized account access or other usage of the Services is known or reasonably suspected to have occurred, and will cooperate with that party’s reasonable investigation of any such unauthorized activity.

Storage and Backups. Licensee agrees not to exceed the allotment of data storage space paid for by Licensee, and Licensee further acknowledges that exceeding such allotment could cause Service disruption. Licensor regularly backs up the database used in conjunction with the Services. Data restoration from backups is offered at Licensor’s then-current published rates per incident. Licensor will make a commercially reasonable effort to assist in restoring lost data; however, Licensor does not guarantee that every backup will complete without error, that it will be able to restore any specific data, or that it will retain any backup for longer than seven (7) days.

Additional Intellectual Property Rights Indemnity. Licensee will defend and indemnify Licensor from and against any losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys' fees) arising out of or relating to (1) a breach of this Agreement by Licensee or any Authorized User; (2) the intellectual property rights in any of Licensee’s Data; (3) any loss, misuse, or disclosure of Licensee Data not the result of Licensor’s misconduct or gross negligence; and (4) any other claim relating to any classified or personally identifiable information within Licensee Data, where such personally identifiable information (A) identifies or can be used to identify an individual, such as first and last name, social security number or other government issued number or identifier, date of birth, home or other physical address, e-mail address or other online contact information, telephone number, biometric data, mother’s maiden name, or other personally identifiable information; or (B) includes any “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 U.S.C. Subchapter 1, §6809(4).

Termination; Rights Upon Termination. This Agreement, and any license granted thereby, may be terminated by Licensor upon its reasonable determination that Licensee’s Use of the Product Materials or Services poses a threat to the secure or reliable provision of Services to other customers, or to the Cloud Infrastructure, or to the data contained therein. Upon termination, upon Licensee’s request, and provided that Licensee has met all of its financial and other obligations under this Agreement, Licensor will furnish Licensee with an electronic copy of the Licensee Data, in a form to be determined by Licensor. Licensor will remove the Licensee Data from the Cloud Infrastructure upon Licensee’s notice to Licensor that Licensee has received such data in good condition, or sixty (60) days following termination of this Agreement, whichever comes first.

Maintenance of the Services. Licensor may schedule maintenance activities from time to time. Non-emergency maintenance activities will be scheduled outside Normal Business Hours. Licensor will provide fifteen (15) days advance notice of maintenance activities that may interrupt Services, unless it is not reasonably able to do so.