MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT

This Master Software License and Services Agreement (“Agreement”) is between the customer signing below (“Customer”) and SynergySuite, Inc., a Delaware corporation (“SynergySuite”). The SynergySuite proprietary software, user manuals and updates provided to Customer (“Software”) are licensed and not sold.

1.  SCOPE

The Software licenses will be hosted by SynergySuite with licensed access and use provided to Customer via the Internet.  
(a) Customer’s affiliate companies, partners, vendors, and customers may use and access the Software, with Customer being responsible for their compliance with the terms of this Agreement.

(b) This Agreement is a master agreement, and contemplates multiple orders, which orders are governed by this Agreement.

2. LICENSE

Subject to the other terms of this Agreement, SynergySuite grants Customer, under an order, a non-exclusive, non-transferable, term license up to the license capacity purchased to use and access the Software hosted by SynergySuite through the Internet.

3. RESTRICTIONS

(a) assign, sublicense, rent or lease the Software, except as permitted under Section 1(a) above, or use it in any type of environment not directly related to Customer’s business processes;

(b) cause or permit reverse engineering (except to the extent expressly permitted by applicable law despite this limitation), decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software or create derivative works from the Software; or

(c) evaluate or use, or facilitate the evaluation or use, of the Software for the purpose of competing with SynergySuite.

4. TAXES AND FEES

Customer will pay the appropriate governmental agency (or reimburse SynergySuite) any taxes or fees imposed in connection with the charges under this Agreement, including, but not limited to, sales, use, VAT, excise, customs duties and other similar taxes (other than taxes based on SynergySuite’s net income or property) to the extent that Customer is not exempt from such taxes or fees. SynergySuite will collect all such taxes and fees unless Customer provides SynergySuite with proof of exemption.

5. PROPRIETARY RIGHTS

SynergySuite or its licensors retain all right, title and interest to the Software and all related intellectual property and proprietary rights. The Software is protected by applicable copyright, trade secret, industrial and other intellectual property laws.  Customer may not remove any product identification, copyright, trademark or other notice from the Software. SynergySuite reserves any rights not expressly granted to Customer. CUSTOMER ACKNOWLEDGES THAT ANY MISUSE OF THE SOFTWARE MAY CAUSE IRREPARABLE HARM TO SYNERGYSUITE. AS A RESULT, CUSTOMER UNDERSTANDS THAT SYNERGYSUITE IS ENTITLED TO SEEK INJUNCTIVE RELIEF.

6.  MUTUAL CONFIDENTIALITY AND DATA SECURITY

Recipient will not disclose Confidential Information of Discloser to any third party or use the Confidential Information other than for purposes of performing under this Agreement.

(a) Definition. ‘Confidential Information’ means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its financial information, software, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to SynergySuite, and its licensors, the Software; (iii) as to Customer, all Customer data uploaded to or generated in the Software; and (iv) the terms of this Agreement, including without limitation, Software pricing information.  

(b) Exclusions. Confidential Information excludes information that: (a) was rightfully in Recipient's possession without any obligation of confidentiality; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; (d) is independently developed by or for Recipient without use of the Confidential Information; or (e) is required to be disclosed by applicable law or court order.

(c) Data Security.SynergySuite asserts no ownership rights over the Customer data stored in the Software, and Customer has the right to remove the data from the Software at any time or request its deletion from the Software. All Customer data hosted by SynergySuite as part of the Software will be considered Customer’s Confidential Information, except as set forth in subsection (b) above.

7. WARRANTY

(a) Software Warranty.  SynergySuite warrants that, during the term of the Agreement, the Software will perform in substantial accordance with its user guide.  This warranty will not apply to any problems caused by malfunctioning non- SynergySuite software, the Customer’s hardware, or misuse of the Software.  

i. EXCLUSIVE REMEDY. ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION 7(A) WILL BE CONSIDERED A MATERIAL BREACH OF THE AGREEMENT PURSUANT TO SECTION 9 BELOW.  IN ADDITION, DURING THE FIRST 90 DAYS OF THE TERM, SYNERGYSUITE’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WILL BE FOR SYNERGYSUITE TO REMEDY DEFECTS OR REPLACEMENT OF THE DEFECTIVE SOFTWARE, BUT IF SYNERGYSUITE CANNOT REMEDY OR REPLACE SUCH DEFECTIVE SOFTWARE WITHIN A REASONABLE PERIOD OF TIME, THEN SYNERGYSUITE WILL REFUND THE FULL AMOUNT PAID BY CUSTOMER FOR THE LICENSES.  CUSTOMER MUST PROVIDE WRITTEN NOTICE OF THE CLAIM WITHIN 60 DAYS AFTER THIS 90 DAY PERIOD AND COOPERATE IN RESOLVING ANY CLAIM.

(b) Software Availability Warranty.  SynergySuite warrants that commercially reasonable efforts will be made to maintain the online availability of the Software for a minimum of 99.9% availability in any given month (excluding published scheduled outages).

i. EXCLUSIVE REMEDY.  SYNERGYSUITE’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR A BREACH OF THIS SECTION 7(B) WILL BE FOR SYNERGYSUITE TO PROVIDE A CREDIT (OR, IN THE CASE OF A NON-RENEWAL, A REFUND) EQUAL TO THE TOTAL LICENSE FEES PAID BY CUSTOMER FOR THE MONTH IN QUESTION, BUT CUSTOMER MUST NOTIFY SYNERGYSUITE OF SUCH BREACH WITHIN 7 DAYS OF THE END OF THE MONTH IN QUESTION.

(c) Services Warranty. Customer may purchase consulting, implementation, or other professional services (“Services”) from SynergySuite in association with the Software hereunder. SynergySuite represents and warrants that it shall perform such Services in accordance with professional standards in a good, workmanlike and timely manner using qualified personnel and in conformity to the applicable order and statement of work.  Customer shall have a license to use items delivered pursuant to the Services as part of the License granted subject to the terms and conditions of this Agreement.  

i. The successful completion of the Services depends on the commitment and participation of Customer’s management and personnel.  The responsibilities listed in this section are to be provided at no charge to SynergySuite; SynergySuite's performance is predicated upon these responsibilities being fulfilled by Customer as scheduled in the associated statement of work. Delays in performance of these responsibilities may result in additional cost and/or delay of the completion of the Services.  Prior to the commencement of the Services, Customer will designate an individual as Project Manager who will be the point of contact for SynergySuite communications relative to the Services and will have the authority to act on behalf of the Customer in all matters regarding the Services.  The responsibilities of Customer’s Project Manager include the following: (a) managing Customer personnel and responsibilities for the Services; (b) serving as the interface between SynergySuite and all participating Customer departments; (c) participating in project status meetings; (d) expediently obtaining and providing any necessary information, data, and decisions pursuant to SynergySuite 's reasonable requests; (d) resolving deviations from the estimated schedule caused by Customer; (e) helping to resolve project issues and escalate issues within Customer’s organization as necessary; (f) reviewing any special invoice or billing requirements associated with the Services and approving any related effect on the price of Services.  

ii. Notwithstanding any configuration-related Services provided by SynergySuite, Customer is responsible for the accuracy of the actual content of any data file that the Customer uploads in the Software, as well as the selection and implementation of Customer’s controls on end-user access and Customer’s use of Customer data residing in the Software.

iii. A statement of work for any Services hereunder may only be modified pursuant to a formal project change request submitted by one party to the other, which must describe the changes requested and the resulting effects on the related Services.  The requesting party’s project manager will review the proposed changes prior to their submission to the other party, and, upon submission, both parties’ project managers will review the proposed changes and recommend them for further review by authorized signature or reject them; SynergySuite will specify any charges associated with such investigation.  The parties agree that no project change request will be rejected unreasonably, and, in the case of any rejection, the reasons for the rejection will be provided to the other party.  A written project change authorization must be signed by both parties after investigation prior to any final modification to a statement of work going into effect.

(d) Disabling Code. SynergySuite warrants that (i) it has used commercially reasonable efforts consistent with industry standards to scan for and remove any software viruses, and (ii) it has not inserted any Disabling Code.  “Disabling Code” means computer code inserted by SynergySuite that is not addressed in the documentation and that is designed to delete, interfere with, or disable the normal operation of the Software. This Disabling Code does not apply to SynergySuite license keys necessary for the operation of the Software, or for any use by Customer outside the scope of the license.

(e) Indemnification. SynergySuite will defend or, upon Customer’s written consent, settle any action against Customer based upon a claim that Customer’s use of the Software infringes any patent, copyright or other intellectual property right of a third party and will indemnify Customer against any amounts awarded against Customer as a result of the claim, provided SynergySuite is promptly notified of the assertion of the claim and has control of its defense or settlement.  This section contains Customer’s exclusive remedies and SynergySuite’s sole liability for infringement claims.

SYNERGYSUITE DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

8. SUPPORT

SynergySuite will provide maintenance and technical support (“Support”) for the Software based on the specific Support offering purchased under the relevant agreement. SynergySuite warrants that Support will be supplied with reasonable care and skill.  SynergySuite may change its Support terms upon written notice to Customer, but Support will not materially degrade.

9. TERM AND TERMINATION

Each license order will automatically renew on an annual basis, unless either party provides at least thirty (30) days advance notice of non-renewal. Either party may terminate this Agreement or an order, upon a material breach by the other party, which is not cured after thirty (30) days written notice of the breach. Customer may also terminate the Agreement for convenience upon thirty (30) days advance notice to SynergySuite, with the understanding that such a termination will not change Customer’s payment obligations under any executed order documents. Upon termination by SynergySuite, Customer must end their usage of the Software. Upon termination by Customer for an uncured material breach, SynergySuite will refund any pre-paid and unused fees and Customer may no longer use the Software.

10. MUTUAL DISCLAIMER OF DAMAGES

NEITHER PARTY IS LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USAGE, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND WHETHER SUCH DAMAGE RESULTS FROM A CLAIM ARISING UNDER CONTRACT OR TORT LAW.

11. LIMIT OF LIABILITY

SYNERGYSUITE’S TOTAL LIABILITY FOR ALL DAMAGES IS LIMITED TO THE AMOUNT PAID FOR THE LICENSE TO THE APPLICABLE SOFTWARE GIVING RISE TO SUCH DAMAGES.

12. MISCELLANEOUS TERMS

(a) Survival and Waivers. All terms that would naturally survive termination or expiration survive. A waiver by a party of any breach of this Agreement will not be construed as a waiver of any continuing or succeeding breach.

(b) Assignment. Customer may not assign or transfer this Agreement, or an order, to a third party, except this Agreement and all orders may be assigned as part of a sale of all, or substantially all, the assets or business of Customer.

(c) Notices. Any notices under this Agreement must be in writing and must be delivered by registered mail (or by courier with tracking number) to the attention of the receiving party’s legal department.
(d) Governing Law and Dispute Resolution. This Agreement is governed by the laws of the State of Utah, without regard to its conflicts-of-laws provisions.  Any dispute relating to an alleged material breach of this Agreement must first be addressed by the relevant executives of each party, who shall meet in a good faith attempt to resolve all outstanding issues. Then, if a resolution has not been reached within fourteen (14) days, the dispute must be determined by binding arbitration in Salt Lake City, Utah, under the then-current commercial rules of the American Arbitration Association.  Nothing in this Agreement will prevent either party from seeking injunctive relief in any court.  The prevailing party in a dispute is entitled to recover attorney’s fees from the other party.

(e) Enforceability. If any term of this Agreement is invalid or unenforceable, the remaining terms remain in effect.

(f) PO Terms. The parties agree that all additional or conflicting terms of Customer’s form purchasing document will not apply to this Agreement and the business transactions conducted hereunder.

(g) Entire Agreement and Changes. This Agreement, and the orders, are the complete and exclusive agreement and supersede any prior or contemporaneous negotiations or agreements, between the parties relating to this subject matter. This Agreement may not be modified except in writing executed by both parties.

(h) U.S. Government Restricted Rights. The SynergySuite software is provided with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the U.S. government or any agency thereof is subject to restrictions as set forth in subparagraph "C" of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19 (or its successor provision) or the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202 (or its successor provision), as applicable. Contractor/manufacturer is SynergySuite, Inc., 2000 W. Ashton Blvd, Ste. 300, Lehi, UT 84043.

(i) Force Majeure. Neither party is liable for any delays caused by force majeure.