Software License Terms

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PROSPEROWARE PRODUCT AGREEMENT

CAUTION

CAUTION: CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE INSTALLING, COPYING, ACCESSING OR USING THE SOFTWARE, CLOUD SERVICES OR DOCUMENTATION.  IF YOU OR YOUR AGENT CLICK ON THE BUTTON INDICATING YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR INSTALL, COPY, OR USE THE SOFTWARE, ACCESS OR USE CLOUD SERVICES, SUPPORT OR PROFESSIONAL SERVICES YOU ACCEPT ALL THE TERMS AND AGREE TO BE BOUND BY THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF THE TERMS OF THIS AGREEMENT ARE NOT ACCEPTABLE TO YOU, (1) SELECT THE BUTTON INDICATING YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT; (2) YOU MAY NOT INSTALL, COPY OR USE THE SOFTWARE; OR ACCESS THE CLOUD SERVICES AND (3) CONTACT PROSPEROWARE IMMEDIATELY AT THE NUMBER LISTED BELOW. PROVIDED THAT YOU HAVE ACCEPTED AND AGREED TO THE TERMS OF THIS AGREEMENT, PROSPEROWARE, LLC (“PROSPEROWARE”) GRANTS YOU A LICENSE TO USE THE SOFTWARE, SERVICE DELIVERABLES, AND ACCESS THE CLOUD SERVICES, AND SUPPORT AS INDICATED BELOW:

TERMS AND CONDITIONS

1. Definitions

“Cloud Services” means the Prosperoware cloud service offerings as further described in the Documentation and on the Order Form. “Customer Data” means all data, text, and files processed by the Product, or that You provide to Prosperoware for Support, Customer Data is Your Confidential Information. “Order Form” means document(s) issued by Prosperoware or an Authorized Partner specifying the Product licensed, duration of the license and/or services to be provided by Prosperoware, related pricing and information about the transaction. “Product” means the Software or Cloud Services.  Software” means (a) all of the contents of the files, download packages, disk(s), CD-ROM(s) or other media (including electronic media) provided by Prosperoware, its distributors, resellers, or partners, (collectively “Authorized Partner(s)”), including user manuals, release notes and related materials made available by Prosperoware in printed, electronic, or online form (“Documentation”); and (b), modified or subsequent versions and updates (collectively “Updates”), and any enhancements of the Software, licensed to you by Prosperoware.  “Subscription Product” means the Software, Cloud Services and user licenses which may be used, and Support provided, commencing on delivery for the Subscription Term set forth in the Order Form.  “Subscription Term” means the period of use for the Subscription Product specified in the Order Form.  Customer’s license to use the Subscription Product shall automatically expire at the end of the Subscription Term.  For Subscription Product, Prosperoware will invoice You prior to the end of Subscription Term for the fees due for the upcoming Subscription Term. 

2. Product Use Right

Software may be licensed on a perpetual or term license basis as specified on the Order Form; Cloud Services are only provided for the Subscription Term. Prosperoware hereby grants You a nonexclusive, nontransferable, non-sublicensable, right to use, the Product listed in an Order Form, solely for Your internal business operation, in accordance with the Documentation, and any use restrictions in the Order Form and online at https://www.prosperoware.com/license-metrics/.  You may make one (1) copy of Software in machine readable form solely for archival purposes provided You do not remove any proprietary notices.  You may authorize Your contractors and outsourcers (“Agents”) to use or operate the Product solely on Your behalf provided: (i) You obtain such Agents binding consent to abide by the terms of this Agreement; and (ii) You shall be responsible for such Agents use and compliance.  Agents are not third-party beneficiaries under this Agreement.  For Subscription Product, your right to use the Product shall automatically expire at the end of the Subscription Term.

3. Restrictions

Except as permitted by this Agreement, You shall not, nor authorize anyone else to, directly or indirectly: (i) disseminate, sublicense, copy, modify, reverse engineer, decompile, translate; (ii)  attempt to discover the source code or structure, sequence and organization of the Product (except where the foregoing restriction is expressly prohibited by applicable local law, and then only to the extent so prohibited); or (iii) rent, lease, or use the Product for timesharing or service bureau purposes for third parties, or use the Product on behalf of any third party; (iv) publish or disclose any information or results relating to performance, or other “benchmarking” activities; or (v) make the Product externally accessible, or provide anonymous access.  You may not remove any proprietary notices or labels on the Product.  You may only use the object code version of the Software. All rights not granted under this Agreement are reserved by Prosperoware.

4. Acceptable Use

In your use of the  Cloud Services, You will not: (i) use the Cloud Services to send spam, or unsolicited messages in violation of applicable laws;  (ii) send or store infringing, obscene, threatening, libelous, unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) knowingly interfere with, disrupt the integrity or performance of the Cloud Services or the data contained therein after notice from Prosperoware and issuance of instructions to correct the issue; (iv) attempt to gain unauthorized access to the Cloud Services, related systems or networks;  (v) propagate any virus or malware by use of the Cloud Services.

5. Third Party Applications

The Cloud Services contain features designed to interoperate with Third Party Applications. “Third Party Application(s)” means either on-premise or hosted third-party software applications, excluding the Prosperoware Products.  You are responsible for obtaining and maintaining access to Third Party Applications from the applicable providers.  Prosperoware is not liable to you hereunder and shall not provide You with any refund, credit, or other compensation for any errors, delays, downtime, or non-performance of the Prosperoware Cloud Services caused by the temporary or permanent unavailability of a Third-Party Application, or if You terminate Your subscription or license to the Third-Party Application. If You establish an integration between the Third-Party Application and the Prosperoware Cloud Services, you hereby authorize Prosperoware to access and transmit Customer Data to and/or from the Third-Party Application during the Subscription Term and subject to Prosperoware’s other obligations under this Agreement incident to such transfer.  Prosperoware is not responsible for any disclosure, modification or deletion of Customer Data occurring in or caused by a Third-Party Application.

6. Uptime

Prosperoware will use commercially reasonable efforts to make the Cloud Services available 24 hours a day, 7 days a week, excluding: (1) planned downtime; and (3) unscheduled downtime caused by: (a) circumstances beyond Prosperoware’s reasonable control including, but not limited to: acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, hosting provider failure or delay, issues related to Third Party Applications, or denial of service attacks; (b) circumstances entitling Prosperoware to suspend access to the Cloud Services under Section 9 of this Agreement; and (c) a User’s failure to use the Cloud Services in accordance with the Documentation.

7. Payments; Fees; Expenses; Taxes

This section shall apply solely to the extent You are issuing payment to Prosperoware.  If You are paying an Authorized Partner, then the terms of invoicing, pricing, shipment and payment between You and the Authorized Partner shall apply.  All fees and expenses (“Fees”) are due and payable by You in U.S. Dollars thirty (30) days from the date of Prosperoware’s invoice.  Fees for purchased subscriptions to the Subscription Products are payable annually in full, in advance.  Unless otherwise indicated in the Order Form, Payment is to be made directly to Prosperoware at the address listed on the Order Form.  In the event, You have received any type of discounts on Fees and You fail to pay Prosperoware as agreed, all such discounts shall be forfeited.  Prosperoware reserves the right to charge interest on the unpaid Fees up to the maximum rate allowed by applicable law.  All amounts payable under this Agreement are exclusive of all sales taxes.  You shall indemnify, defend and hold Prosperoware harmless from any sales, use, value-added, withholding, excise, import or export, or similar tax not based on Prosperoware’s net income or other duty or fee and any penalties or interest associated with any taxes imposed by any governmental authority with respect to any payment to be made by You to Prosperoware under this Agreement.

8. Proprietary Rights

The Products are the proprietary product of Prosperoware and are protected by copyright law, international treaty provisions and other applicable laws in the country in which it is being used.  Prosperoware and its third-party suppliers or licensors, retain all right, title and interest in the Product recorded on the original media and all subsequent copies of the Product including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein.  This Agreement is not a sale of the Product or any copy thereof and You acquire only the right to use the Product and do not acquire any rights of ownership in the Product.  Nothing in this Agreement shall limit in any way Prosperoware’s right to develop, use, license, create derivative works of, or otherwise exploit the Prosperoware. To the extent you provide any comments or suggestions to Prosperoware about the Product, Prosperoware shall have the right to retain and use any such comments or suggestions in current or future Product or services, without further compensation to You and without Your approval.  You retain all right, title and interest in the Customer Data including all intellectual property rights therein.

9. Delivery

Upon Prosperoware’s acceptance of the Order Form, Prosperoware will deliver the ordered Software, by electronic means and the Software will be deemed delivered upon Your receipt of instructions for downloading the Software file package.

10. Information and Safeguards

     10.1. Customer Data. You are responsible for the accuracy, quality and legality of Customer Data.  Prosperoware is not obligated to import or export Customer Data. In the event You provide Customer Data to Prosperoware in order enable Prosperoware to provide access to Product, Support or other Services, Prosperoware may use such Customer Data solely to provide the Product, Support or Services until completion of the applicable Subscription Term, Support or Services.  Prosperoware will not retain any Customer Data after the work is complete or the Subscription term has expired.

     10.2. Prosperoware will maintain reasonable administrative, procedural and technological safeguards consistent with generally accepted industry practices to protect Customer Data and Confidential Information furnished by You to Prosperoware to provide the Product, Support and Services. Prosperoware may collect and use diagnostic, technical, and usage information, including metadata and other information about your device, system, application software, and peripherals for the provision of software updates, product support and like services to you related to the provision and improvement of Prosperoware Product, to contact you, and to verify your entitlement to support; such information will be protected in accord with this section 10.2.  Each party warrants it will collect, maintain and handle all personal data in compliance with any applicable data privacy and protection laws.

     10.3.  Security. “Security Event” means an event in which Customer Data processed by Prosperoware is accessed or received by an individual or entity not authorized to access or receive such information. Prosperoware will take prompt action to respond to any Security Incident and to prevent the further unauthorized use or disclosure of Customer Data, and/or to correct the issues within the Cloud Services giving rise to such Security Incident. Prosperoware will notify Client without undue delay after having become aware of the Security Event.

11. Confidentiality

     11.1. “Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, including pricing and other terms set forth in all Order Forms hereunder, business information, specifications, research, software, including but not limited to, the Product and Documentation, trade secrets, designs, drawings, flow charts, data, computer programs, marketing plans, budget figures, and other financial and business information, or any such information of clients, parents, affiliates, subsidiaries or agents of a Party. Prosperoware Confidential Information includes the Product, and business terms in the Prosperoware Order Form.  Your Confidential Information includes Customer Data. Confidential Information does not include statistical information or metadata regarding use of Prosperoware products and services that does not contain any personally identifiable or customer-specific information that would identify You.

     11.2. Treatment of Confidential Information. The Receiving Party shall not use or disclose any Confidential Information of the Disclosing party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s permission. The Receiving Party will not disclose the Confidential Information of the Disclosing Party except on a need-to-know basis to personnel who are subject to written confidentiality obligations comparably protective as under this Agreement. Prosperoware may use Customer Data to provide Software, Support and Services to You. The Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected loss or unauthorized use, disclosure of or access to the Disclosing Party’s Confidential Information in its possession or control and take all steps reasonably requested by the Disclosing Party to limit, stop or otherwise prevent such loss or unauthorized use, disclosure or access.

      11.3. Permitted Disclosure. The obligation of nondisclosure set forth herein shall not apply to any Confidential Information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information (except for patentable subject matter, which shall not be subject to this exception); or (v) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process.

      11.4. Injunctive Relief. Receiving Party acknowledges that any disclosure not authorized by this Agreement may cause substantial damage to the Disclosing Party for which a compensation of damages would not be a fully adequate remedy.  In the event of any such breach of Agreement, in addition to any other available remedies, Disclosing Party shall have the right to seek injunctive relief without being required to post a bond or other security.

12. Term, Termination

      12.1. This Agreement shall continue until the end of the Subscription Term set forth in the Order Form, unless earlier terminated as set forth in this section. Your subscription to use the Cloud Services will commence upon the start date listed in the Order Form and continue until the earlier of (i) expiration or non-renewal of all Cloud Services Subscription Terms, or (ii) termination of this Agreement.

      12.2. Subscription Term and Renewal. For each renewal after the initial Subscription Term, Prosperoware will make commercially reasonable efforts to send You notice of renewal 75 days prior to the upcoming Subscription Term and invoice you 60 days prior to the upcoming Subscription Term. Each Subscription Term will automatically renew for successive one (1) year periods unless either party gives the other party written notice of non-renewal at least sixty (60) days prior to the end of the then current Subscription Term.

      12.3. Termination. You may terminate this Agreement at any time on prior written notice to Prosperoware. This Agreement shall terminate if You violate or fail to comply with any provision of this Agreement or Order Form and fail to cure such breach within thirty (30) days of receipt of notice of breach from Prosperoware.  Any termination of this Agreement due to Your uncured breach shall also terminate the licenses granted hereunder.

      12.4. Effect of Termination. Upon termination of this Agreement, you shall cease use of the Software, and shall destroy and remove from all computers, hard drives, networks and other storage media all copies of the Software, Service Deliverables (as defined below) and Documentation.  In addition, each party shall remove and destroy any Confidential Information of the other and shall certify in writing that such actions have occurred.  Termination shall not relieve You of the obligation to pay any fees accrued or payable to Prosperoware under the Agreement or applicable Order Form.  Your confidentiality obligations, and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement.  In addition, the provisions of the section titled “Government Use, Restricted Rights” shall survive termination of this Agreement.  Upon the effective date of termination, Customer’s license to use the Cloud Services will cease and Prosperoware may delete all backed-up Customer Data from Prosperoware systems within thirty (30) days of termination of the applicable Order Form.

      12.5. Suspension of Cloud Services for Non-Payment. Without prejudice to Prosperoware’s other rights and remedies, if any amount owed by Customer under this Agreement is thirty (30) or more days overdue, Prosperoware may suspend Customer’s access and use of the Cloud Services until such amounts are paid in full. Prosperoware will give Customer at least ten (10) days written notice that its account is overdue, before exercising its suspension rights under this Section.

      12.6.  Customer acknowledges and agrees that Prosperoware may with notice to Customer suspend Customer’s access to use the Cloud Services if Prosperoware reasonably concludes Customer’s use is causing immediate, material or ongoing harm to Prosperoware, the Cloud Services and/or its other customers using the Cloud Services. In the extraordinary event that Prosperoware suspends Customer’s access, Prosperoware will use commercially reasonable efforts to limit the suspension to the offending portion of the Cloud Services and will reinstate such access as promptly as possible after verifying the issue giving rise to the suspension has been satisfactorily resolved.

13. Warranties/Exclusive Remedies

      13.1. Prosperoware warrants: (a) the enclosed media, if delivery is physical, is free of defects in materials and workmanship under normal use and (b) for ninety (90) days from the date of delivery to You (the “Warranty Period”) the unmodified Software will operate substantially in accordance with the Documentation (c) for 30 days after they have been provided (“Warranty Period”), the Support and Services will conform to generally accepted industry standards and practices; and (d) the Cloud Services will conform in all material respects with the Cloud Services Documentation .

      13.2.  Any claim under this Section must be submitted in writing to Prosperoware within the Warranty Period. For any breach of this warranty, Prosperoware will as applicable: (i) promptly repair or replace the defective media; (ii) use commercially reasonable efforts to make the Product operate as warranted, and the Support or Services conform.  The Product Warranty does not apply to Product modified by any party other than Prosperoware; or Product improperly installed or used in a manner other than as authorized under the Agreement to the extent such modification(s) or improper installation caused the Product to be nonconforming. This shall be Prosperoware’s sole and exclusive obligation, and Your sole and exclusive remedy for warranty claims for the applicable Products.

      13.3. You represent and warrant You have enough rights and have obtained all necessary consents and permissions to provide Prosperoware with copies of or access to any Customer Data You may disclose to Prosperoware under this Agreement.

      13.4. DISCLAIMER. EXCEPT FOR THE FOREGOING, PROSPEROWARE PROVIDES THE PRODUCT, SUPPORT AND SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, implied warranties of merchantability, fitness for purpose, PERFORMANCE, ACCURACY, RELIABILITY AND NON-INFRINGEMENT. These are YouR sole and exclusive remedies AND PROSPEROWARE’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY for any breach of warranty. This limited warranty gives You specific legal rights. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.

14. Indemnification

      14.1. Prosperoware Indemnity. Prosperoware, at its expense, will defend You against any third-party claim, suit or proceeding (a “Claim”) alleging the Product or Services Deliverable infringes a third party’s United States trademark, copyright or patent; and shall indemnify You from and against any liability, damages, costs and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction or consented to by Prosperoware to the extent based upon such a Claim. Prosperoware’s duty to indemnify is conditioned on the following: (i) You promptly notify Prosperoware in writing after Your receipt of notification of a potential claim; (ii) Prosperoware has sole control of the investigation, defense and settlement of such claim and all related settlement negotiations; and (iii) You provide Prosperoware, at its request and expense, with the assistance, information and authority necessary to perform its obligations under this Section. Prosperoware will not be responsible for any costs, expenses or compromise incurred or made by You without Prosperoware’s prior written consent.  The foregoing obligation shall not apply with respect to a claim of infringement if such Claim arises out of (i) use of the Product in combination with (or damages based on the value of) any software, hardware, network or system not supplied or authorized by Prosperoware where the alleged infringement relates to such combination, (ii) any modification or alteration of the Product (other than by Prosperoware), (iii) the use of a superseded or altered release of the Software if the infringement would have been avoided by the use of a current unaltered release of the Software, (iv) intellectual property furnished by a third party, or (v) the use of the Product other than in accordance with the Documentation and this Agreement, (vi) any Claim (such as a counterclaim) that was made in response to a suit or proceeding first filed by You alleging patent infringement; or (vii) any claim asserting You willfully infringed.  If any Claim which Prosperoware is obligated to defend has occurred, or in Prosperoware’s determination is likely to occur, Prosperoware shall at its option and expense (a) obtain for You the right to use the allegedly infringing Product, (b) substitute a functionality equivalent, non-infringing replacement for such Product, (c) modify such Product to make it non-infringing and functionally equivalent, or (d) terminate the license for the infringing Software and refund the license fees paid by You to Prosperoware for the infringing Software in an amount pro-rated over a period of five years; or (e) for Subscription Product refund Customer the prepaid fees for the remainder of the Subscription Term. This Section 14 states Prosperoware’s entire liability and Your exclusive remedy for any claim of infringement.

      14.2. Customer Indemnity. Customer shall defend Prosperoware against any third party claim, suit or proceeding and indemnify Prosperoware against any damages, settlements or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Prosperoware alleging the Customer Data infringes the intellectual property rights of, or has otherwise harmed, such third party, or that the Customer has violated applicable law, provided that Prosperoware (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without Prosperoware’s consent unless it unconditionally releases Prosperoware of all liability); and (c) provides to Customer all reasonable assistance requested by Customer, with out-of-pocket expenses for such assistance borne by Customer.

15. Support and Upgrades

      15.1. The terms of Prosperoware’s support services are at: https://www.prosperoware.com/support-terms. If You have purchased a Subscription Product You are entitled to receive technical support, upgrades, patches, enhancements, and fixes for the Product (collectively, “Support”) during the Subscription Term. Any software upgrades, patches, enhancements or fixes provided as part of Support for the Product and made available by Prosperoware shall become part of the Product and subject to this Agreement.

      15.2. Support Term and Renewal. For Software licensed on a perpetual basis, subject to Your payment of Support fees, Support is provided on an annual basis for a 12-month term (“Support Term”), commencing on the date of the applicable Order Form.  For each renewal of the Support Term, Prosperoware will send You notice of renewal 90 days prior to the upcoming Support Term and will invoice you 60 days prior to the upcoming Support Term.  The Support Term will automatically renew for successive one (1) year periods unless either party gives the other party written notice of non-renewal at least sixty (45) days prior to the end of the then current Support Term.  Provided You stay current for the next two (2) consecutive one (1) year terms and pay all Support Fees when due, the Support Fees for the Software licensed in this Order Form will not increase by more than 5% for each such year. Should You allow Support Services to lapse, reinstatement will be subject to the payment of applicable Support Fees for the lapsed period plus a reasonable reinstatement fee

16. Professional Services, Services Delivery

     16.1. “Professional Services” means the professional, consulting and implementation services provided by Prosperoware, excluding Support.  The Professional Services, any Service Deliverables, business parameters and related fees are described in a Work Order, or other document provided by Prosperoware.  “Service Deliverable(s)” means any object code, source code, flow charts, documentation, information, reports, test results, findings, ideas, and all works, and other materials developed in a Work Order under this Agreement, excluding the Product.

     16.2. Invoicing. For Professional Services provided on a time and materials basis, you will be invoiced monthly in arrears for Professional Services performed and approved expenses incurred. For Professional Services provided on a fixed fee basis, the Professional Services listed will be provided for the Fee specified in the Work Order, and You will be invoiced at the end of the month in which the milestones listed in the Work Order are completed. Retainer amounts listed in the Work Order will be invoiced by Prosperoware on signature of the applicable Work Order or Order Form. Prosperoware may vary its services rates at any time on written notice, with such new rates to apply to Work Orders signed after the new rates take effect.

     16.3. Fixed Fee Engagements. Provided You have met Your obligations and the information You provided upon which Prosperoware based its pricing is accurate and complete, and the scope of Professional Services is not modified or expanded; the fixed fee-based Professional Services should be provided for the fees listed, and / or within the estimated number of days listed in the Work Order. Customer acknowledges that if Prosperoware’s cost of providing Professional Services is increased because of Customer’s failure to provide cooperation or to meet Customer’s obligations listed in the Work Order, or because of circumstances outside of Prosperoware’s control, then Customer agrees to pay for such increased cost.

     16.4. Payment. You will pay all Professional Services fees and expenses net 30 days from Prosperoware’s invoice.

     16.5. Change Orders. Any request for a change in Professional Services must be in writing.  Changes in scope may result in an increase in the number of delivery days and thus, an increase in Fees.  If You require modifications to the Work Order during this proposed consulting engagement and these changes will affect that engagement’s schedule or scope, or if You require additional Prosperoware professional services assistance after the Work Order is executed, a “Change Order” can be issued describing the additional services and signed by both parties and You will be responsible for additional fees in the Change Order. Prosperoware shall not be obligated to perform tasks related to such change(s) until Prosperoware agrees in writing to the proposed change via a “Change Order”.

     16.6. Your Obligations.  You acknowledge Prosperoware’s ability to timely deliver Professional Services is dependent in part upon Your ongoing cooperation and assistance, including timely fulfilling Your obligations in the Work Order. Accordingly, you agree to supply to Prosperoware, on a timely basis, all information, material and assistance reasonably necessary for Prosperoware to perform the Professional Services, including, the Customer Data and such additional information, material and assistance identified in the applicable Work Order. If Prosperoware’s performance of its obligations under this Agreement is prevented or delayed by Your act or omission, Prosperoware shall not be deemed in breach of its obligations under this Agreement or the Work Order, to the extent arising from Your act or omission.

     16.7. Licence. Prosperoware hereby grants You a nonexclusive, non-transferable, royalty free license to use the Service Deliverables with the Product in a manner consistent with the Agreement.  All other rights in the Professional Services and Service Deliverables are retained by Prosperoware.  Prosperoware may perform similar services for other customers.

17. LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE INCURRED, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PROSPEROWARE’S INDEMNITY OBLIGATIONS, PROSPEROWARE’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE FEES PAID BY YOU FOR THE PRODUCT(S) SUPPORT, AND PROFESSIONAL SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK, WHICH IS SET FORTH IN THIS SECTION. The foregoing limitations will apply even if the above stated warranties fail of their essential purpose.  Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply.

18. Government Use, Restricted Rights

The Product is deemed to be “commercial computer software” and related documentation in accordance with the terms of this commercial product Agreement as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors. For acquisition on or behalf of units of the Department of Defense (“DoD”) this Product is protected as “commercial computer software” and related documentation in accordance with the terms of this commercial computer software license as specified in 48 C.F.R. 227-7202-2 of the DoD F.A.R. Supplement and its successors.  Any use, modification, performance, display or disclosure of the Product and accompanying documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

19. General

      19.1. Choice of Law.

           19.1.1. Where You are domiciled in the United States, Canada, Mexico and the Americas, this Agreement shall be governed by the laws of the State of New York, excluding its conflict of law rules, and copyright law, which is governed by U.S. federal law. The courts of New York County, New York shall have exclusive jurisdiction.

          19.1.2. Where You are domiciled anywhere else in the world, this Agreement will be governed by English law, excluding its conflict of law rules. The courts of London, England shall have exclusive jurisdiction.
          19.1.3. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  The prevailing party in any litigation hereunder shall be entitled to recover attorney’s fees.

      19.2. Assignment. You may not assign, sublicense or transfer this Agreement.  Prosperoware expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. Any prohibited assignment or sublicense shall be null and void.

      19.3. Modification. This Agreement may be modified only by Prosperoware.  Changes and their applicable date will be posted to the Prosperoware website.  Prosperoware reserves the right to audit Your use of the Software upon prior written notice, during reasonable business hours and at Prosperoware’s expense.

      19.4. Miscellaneous. Prosperoware’s third party suppliers or licensors are third party beneficiaries of this Agreement and are entitled to enforce directly against You provisions of this Agreement pertaining to Your access to or use of their licensed Software, or provisions designed to disclaim or limit their obligations and liabilities.  The parties shall not be liable for any failure to perform due to causes beyond their reasonable control (except for any payment of money hereunder).

      19.5. Compliance with Law. You will comply with all applicable laws and regulations in Your use of the Product or other technical data provided by Prosperoware under this Agreement, including all applicable export or import laws and regulations.  You shall not directly or indirectly export, import, download or transmit the Software to any country, end user or for any Use that is prohibited by applicable United States regulation or statute including but not limited to those countries embargoed by the United States government.

      19.6. Waiver, Enforceability. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future.  If any provision of this Agreement is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision, which approximates the intent and economic effect of the affected provision.

      19.7. Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes all prior and contemporaneous agreements and understandings, whether written or oral.  All terms of Your purchase order or order confirmation shall be superseded by this Agreement and shall be of no force or effect.  Invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement. You hereby agree Prosperoware may list Your name on its list of customers using the Product. In the event of a conflict between the Order Form and the Agreement, the Order Form shall control for that Order.

Version Updated: 08/2018

CONTACT INFORMATION

Prosperoware LLC

11 Bala Avenue

Bala Cynwyd, PA 19004

info@prosperoware.com

+1 484 895 1900