MASTER LICENSING AGREEMENT and

TERMS OF USE

FOR PRODUCTS AND SERVICES PROVIDED

BY Bertram Communications, LLC DBA Powercode

THIS MASTER LICENSING AGREEMENT AND TERMS OF USE MUST BE AGREED TO BY AN AUTHORIZED SIGNATORY OF CUSTOMER

  1. Definitions. The following terms shall be defined as set forth below:
    1. Authorized Users means Customer’s employees and individuals authorized by the Customer, if any, who are clients or licensees of Customer. Unless expressly provided for in a writing from Powercode, Authorized Users do not include Customer’s vendors, contractors, or any other third parties, including without limitation technology service providers.
    2. Source Code means computer programs written in higher-level programming languages, sometimes accompanied by English language comments. Source Code is intelligible to trained programmers and may be translated to Object Code for operation on computer equipment through the process of compiling.
    3. Agreement means this Agreement and any Exhibits attached hereto.
    4. Days means calendar days, unless specified otherwise.
    5. Documentation means the then current documentation made generally available by Powercode to its licensees for use of the Products, as updated from time-to-time by Powercode in its discretion.
    6. Hardware means any hardware or other equipment, such as the Powercode BMU that is made available to Customer by Powercode.
    7. Licensed Software means the Object Code version of the computer programs to be licensed by Powercode to Customer, including any bug fixes, updates, and new releases thereof that may be provided by Powercode as part of Support Services. The term Products also includes any and all Documentation applicable to such computer programs.
    8. Object Code means computer programs assembled or compiled, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse compiling, or reverse-engineering.
    9. Order means a request to purchase Services under this Agreement. Each Order will be sequentially numbered and specifically reference this Agreement.
    10. Powercode BMU means the Bandwidth Management Unit, which is hardware device placed into the Customer network to monitor network infrastructure, and controls and monitors Customer’s end user traffic giving Customer the ability to automatically disable and enable the end user network access, dynamically control their rate limit based on a variety of different factors and monitor their bandwidth consumption simply and efficiently.
    11. Products means any Licensed Software or Hardware that Powercode licenses or sells to Customer, excluding Third Party Products.
    12. Services means, collectively, any Support Services or Professional Services, both as defined below.
  2. Orders. This is a master agreement under which Customer may order Professional Services and/or supplemental support from Powercode. Each Order shall be subject to all applicable provisions of this Agreement as well as any additional provisions that may be set forth in the Order.
    1. Service Orders. Customer may order supplemental support for any Product (such supplemental support, the Supplemental Support Services) or installation, training, customization, and other services (other than Support Services and Supplemental Support Services) (collectively, the Professional Services) by signing and delivering to Powercode an order in a form approved by Powercode containing substantially the information set forth in Exhibit A (Service Order). Powercode shall be responsible for performing only those Services expressly identified in the Service Order. Customer is solely responsible for all telecommunication or internet connections and associated fees required to access the Services, as well as all software on the Customer site.
    2. Software and Hardware and Licensed Software. To the extent Customer purchases or licenses any Software or Hardware from Powercode, such Software and Hardware shall be specifically identified in a purchase order executed by an authorized representative of Customer, including all applicable fees and costs. Title to each item of purchased Hardware shall pass to Customer on delivery to the facility designated by Customer in the applicable purchase order and Customer’s payment in full of the fees associated with that particular item. Powercode shall be responsible for customary and appropriate product packaging, freight charges, insurance, and delivery of the Hardware to the Customer FOB point of origin.
  3. Products.
    1. Grant of License. Subject to the terms and conditions of this Agreement, Powercode grants Customer a limited, nonexclusive, nontransferable, nonsublicensable license to use the Products solely for Customer’s internal purposes during the Term. Authorized Users may use the Products on Customer’s behalf, solely for Customer’s internal business purposes. Customer shall ensure Authorized Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Customer. The Licensed Software provides Customer and its Authorized Users with a web accessible, online portal for Customer’s and its Authorized Users’ customer / end user access for bill pay and other online account access (Portal). Subject to Section 3.2, the license grant set forth in this Section includes the right for Customer and its Authorized Users to provide the end users access to the Portal.
    2. Standard End User Agreements. End users shall only be granted access to the Portal subject to and under their agreement between Customer and such end user, provided that Customer shall include in its agreement or as an addendum thereto the license restrictions set forth in this Agreement (collectively, the EULA), a limitation of liability that excludes Powercode from all damages, and disclaimers and protections of Powercode’s intellectual property and Confidential Information at least as restrictive as those set forth in this Agreement. In addition, Customer shall provide for Powercode to be a third party beneficiary solely with respect to Powercode’s ability protect and enforce its rights against the end users. Customer shall not include any provisions in such EULA or any other agreement between Customer and the applicable end user that impose obligations, liabilities or restrictions on Powercode that are not expressly set forth herein or as otherwise agreed to by Powercode, in writing. To the extent Customer agrees to different, additional or expanded obligations, liabilities or restrictions with respect to the Portal, Customer shall be solely responsible for such additional obligations and liabilities, and Powercode shall have no obligations or liabilities with respect thereto. Customer shall only make the Portal available to end users pursuant to such EULA. Customer acknowledges that the provisions of such EULA, with respect to the Portal are also for the benefit of Powercode, and therefore Customer shall reasonably assist Powercode in enforcing these provisions and agrees that Powercode may bring legal action in its own name or on Customer’s behalf as may be necessary to protect Powercode’s rights in the Portal. Under no circumstances shall Customer make any warranties, representations or other obligations on behalf of Powercode in any agreements with end users.
    3. Restrictions on Use. Customer’s and its Authorized Users’ use of the Products and the Portal are limited to the scope of the licenses granted in this Section 3. Customer is not permitted to otherwise use the Products or the Portal in any way. Customer may not (i) use or permit the Products to be used for anyone’s benefit other than Customer or the Authorized Users, , (ii) distribute, lease, loan, rent, sell, assign, lease, sublicense, or otherwise transfer the Products or use them in any manner not expressly authorized by this Agreement, (iii) derive or attempt to derive the Source Code, source files, or structure of all or any portion of the Products by reverse engineering, disassembling, decompiling, or any other means, except to the extent permitted by applicable law, (iv) copy, translate, port, modify, adapt, alter, or make derivative works based on the Products, (v) use the Products except as set forth in the Documentation, (vi) use the Products or Powercode Confidential Information to contest the validity of any Powercode intellectual property, including the Products; and any such use of the Products or Powercode’s Confidential Information will constitute a material, non-curable breach of this Agreement; (vii) modify, remove, or destroy any proprietary markings or confidentiality legends placed upon or contained within the Products, the Documentation, or any related materials; (viii) use the Products in a manner to compete with Powercode or to assist a third party in competing with Powercode; or (ix) operate a service bureau or other similar service for the benefit of third parties using the Products.
    4. License Limitations. Customer shall not, and shall not permit any of its Authorized Users or end users to use the Portal to store, upload, distribute or transmit: (i) any software viruses or any computer code, files, or programs designed to disrupt, destroy, invade, gain unauthorized access to, corrupt, observe or modify without authorization any data, software, computing or network devices, or telecommunications services; or (ii) any material that is unlawful, harmful, threatening, defamatory, obscene, harassing, or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or prompts unlawful violence, discrimination based on race, gender, color, religious belief, sexual orientation, disability or any other illegal activities.
    5. No Other Rights. Powercode grants, and Customer obtains, only the rights granted under this Agreement. Any rights not expressly granted to Customer hereunder are expressly reserved to Powercode.
    6. Delivery and Title. All shipments by Powercode are F.O.B. point of origin and all transportation charges shall be paid by Customer in addition to the price of the Products. Subject to Powercode’s right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Customer and title for purchased Products and risk of loss shall thereupon pass to Customer. Selection of the carrier and delivery route shall be made by Powercode, unless specified by Customer. Powercode shall use commercially reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer’s requested delivery dates. Customer acknowledges that delivery dates provided by Powercode are estimates only and that Powercode is not liable for failure to deliver on such dates, provided that Powercode will use commercially reasonable efforts to inform Customer of delivery status. Powercode reserves the right to make deliveries in installments. Delivery of a quantity which varies from the quantity specified shall not relieve Customer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Customer to cancel other installments.
    7. Acceptance and Returns. All Product sales are final, non-refundable, and non-returnable, except may return and receive a replacement of Products that do not meet applicable specifications in the relevant Documentation, subject to the limitations set forth in this Section 3.7. Inspection and acceptance of the Products shall be Customer’s responsibility. Customer is deemed to have accepted the Products unless written notice of rejection is received by Powercode within ten (10) days after delivery of the Products. Customer irrevocably waives any right to revoke acceptance thereafter. Customer must report any discrepancy in shipment quantity or Product defects within ten (10) days after delivery. No return of Products will be accepted by Powercode without a Return Material Authorization (RMA) and associated number, which may be issued by Powercode in its sole discretion. Returned Products must be in their original, unaltered, undamaged condition, and must be returned in the original shipping cartons complete with all packing materials. All Product returns must be returned freight prepaid in the manner specified in the RMA. If returned Products are claimed to be defective, a complete description of the nature of the defect must be included with the returned Products. Products not eligible for return shall be returned to Customer, freight collect.
    8. Use of Products in Certain Applications. Products provided by Powercode are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Customer uses the Products for use in any such applications: (i) Customer acknowledges that such use is at Customer’s sole risk; (ii) Customer agrees that Powercode and the manufacturer(s) of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (iii) Customer will indemnify, defend and hold Powercode and the manufacturer(s) of the Products harmless from and against any and all claims, damages, fines, sanctions, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
    9. Third Party Products. To the extent any software or hardware licensed or otherwise acquired from third parties, including open source software, (collectively, Third Party Products) is provided with the Products, Customer agrees to comply with the terms and conditions of the applicable third party licenses associated with the Third Party Products, in addition to the terms and restrictions contained in this Agreement. All relevant licenses, if any, for the Third Party Products are provided with the Products. Customer’s use of the Products shall be deemed acceptance of the third party licenses. POWERCODE MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS. ALL THIRD PARTY PRODUCTS ARE PROVIDED AS-IS, WITHOUT WARRANTIES OF ANY KIND BY POWERCODE. IN NO EVENT WILL POWERCODE BE LIABLE TO CUSTOMER OR ANY AUTHORIZED USER, END USER, OR OTHER THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE THIRD PARTY PRODUCTS, EVEN IF POWERCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
    10. Beta Services and Products. Powercode may designate certain new functionality or services made available to Customer under this Agreement as Beta Services and Products. Customer is under no obligation to use any Beta Services and Products. Doing so is in Customer’s sole discretion. The Beta Services and Products will not be ready for use in a production environment. Because they will be at an early stage of development, operation and use of the Beta Services and Products may be unpredictable and lead to erroneous results. Customer acknowledges and agrees that: (i) the Beta Services and Products will be experimental and will not have been fully tested; (ii) the Beta Services and Products may not meet Customer’s requirements; (iii) the use or operation of the Beta Services and Products may not be uninterrupted or error free and should not be used in a production environment; (iv) Customer’s use of the Beta Services and Products will be for purposes of evaluating and testing the new functionality and services and providing feedback to Powercode; and (v) Customer will inform its personnel regarding the nature of the Beta Services and Products. Customer’s use of the Beta Services and Products will be subject to all of the restrictions and conditions set forth herein relating to the Products. Customer will promptly report any errors, defects, or other deficiencies in the Beta Services and Products to Powercode. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, ALL BETA SERVICES AND PRODUCTS ARE PROVIDED AS-IS AND AS-AVAILABLE, WITHOUT WARRANTIES OF ANY KIND. Customer waives any and all claims and damages, now known or later discovered, that Customer may have against Powercode and its suppliers and licensors arising out of Customer’s use of the Beta Services and Products.
    11. Minimum System Configuration. The required minimum hardware and software requirements for proper installation and use of the Licensed Software are set forth in the relevant Documentation. Customer shall be solely responsible for purchasing, providing, and installing all required equipment, networks, peripherals, and hardware.
    12. Intellectual Property Ownership. All copyrights, patents, trade secrets, trademarks, service marks, tradenames, moral rights, and other intellectual property and proprietary rights in the Products and Services will remain the sole and exclusive property of Powercode or its licensors, as applicable. Customer agrees and acknowledges that (i) Powercode will be the exclusive owner of all right, title, and interest in and to all software, programming, tools, documentation, materials, and other intellectual property of any kind used, developed, or delivered by Powercode to Customer in connection with this Agreement; and (ii) this is not a work-made-for-hire agreement under Section 101 of Title 17 of the United States Code. Customer will preserve all Products, Support Services, and Services from any liens, encumbrances, and claims of any individual or entity.
    13. Feedback. Customer may provide suggestions, comments, or other feedback (collectively, Feedback) to Powercode with respect to the Products and Services. Feedback is voluntary and Powercode is not required to hold it in confidence and may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer hereby grants Powercode an irrevocable, worldwide, transferable, sublicenseable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Powercode’s business, including enhancement of the Products.
    14. Aggregated Data. Customer grants Powercode an irrevocable, worldwide, transferable, sublicenseable, non-exclusive, perpetual, fully-paid-up, royalty free license to use data derived from use of the Products and Services by Customer, Customer’s Authorized Users, and (with respect to the Portal) end users (the Aggregated Data) for Powercode’s business purposes, including without limitation the provision of products and services to Powercode’s other customers; provided the Aggregated Data is not identifiable to Customer. The Aggregated Data will not be considered Customer Confidential Information.
  4. Term.
    1. Agreement Term. This Agreement shall be effective as of the Effective Date and continue in effect until termination in accordance with the provisions set forth in Section 12 hereof (the Term).
  5. Fees, Expenses, and Taxes.
    1. Fees, Expenses, and Taxes.
      1. Purchased Products Fees. Amounts due for Products sold to Customer may be invoiced by Powercode upon delivery of the Product to the carrier at the point of origin; as such, an order for multiple Products may result in multiple invoices. Customer shall pay fees for purchased Products within ten (10) Days following the date of the applicable invoice.
      2. Licensed Software Fees. Customer will pay fees for Licensed Software monthly in advance. Such fees shall be calculated by multiplying the applicable Monthly Cost Per Subscriber (as set forth in accordance with Powercode’s then-current pricing table) by the highest daily total of Customer’s subscriber accounts (each, a Billable Account) during the preceding month. Powercode determines the daily total of Customer’s Billable Accounts via a once-daily Internet protocol connection between the Licensed Software and Powercode’s servers. If the Licensed Software is unable to connect to Powercode’s servers for license verification, access to the Licensed Software will be suspended. Powercode generates and emails invoices on the 1st of each month and payment, in-full, is due no later than 10 am CST on the 10th of the same month. In the event payment in-full is not received by 10 am CST on the 10th of the applicable month, Customer’s account will automatically become delinquent and Customer’s access to the Licensed Software shall be suspended until Customer’s account is paid in full.
      3. Service Fees. Service fees, including all supplemental Support Services and Professional Services, will be billed on an as incurred basis. Customer shall pay fees for Services within ten (10) Days following the date of the applicable invoice.
      4. Expenses. Customer will reimburse Powercode for all expenses reasonably incurred in connection with this Agreement (Expenses). Expenses include, without limitation, reasonable travel expenses (including transportation, lodging, and meals) and the cost of any courier services, photocopying, facsimile, long distance telephone calls, and other expenses. Expenses are normally invoiced on an as incurred basis. Customer will also reimburse Powercode for special or unusual expenses incurred at Customer’s specific request.
      5. Taxes. Customer will pay all sales, use and excise taxes relating to, or under, this Agreement, exclusive of taxes based on or measured by Powercode’s net income, unless Customer is exempt from the payment of such taxes and provides Powercode with evidence of the exemption. Customer shall promptly notify Powercode if its tax status changes. All orders are subject to credit approval by Powercode. Customer agrees to submit such financial information from time to time as may be reasonably requested by Powercode for the establishment and/or continuation of credit terms.
      6. Late Payments and Right to Set-Off. Fees that are not received when due will be subject to interest charges at a rate equal to the lesser of one and one-half percent (1.5%) per month, or the maximum rate allowable by law. Customer shall pay all court costs, fees, expenses and reasonable attorneys’ fees incurred by Powercode in collecting delinquent fees. Any payment received from Customer may be applied by Powercode against any obligation owing from Customer to Powercode.
    2. Refunds. Powercode will not refund payments for any reason. Payments in excess of amounts due pursuant to an applicable invoice will be applied to Customer’s account as a credit toward the following month.
  6. Support.
    1. Support Definitions
      1. Error means a failure of the Products to perform in substantial accordance with the Documentation caused by facts and circumstances within Powercode’s reasonable control.
      2. Error Correction means the use of reasonable commercial efforts to correct Errors, which may include, at Powercode’s sole discretion, requiring Customer to upgrade to the then-current release of the applicable Licensed Software..
      3. Previous Sequential Release means at any time the release of Licensed Software that has been replaced by the then-current release of the same Licensed Software. Notwithstanding anything else, a Previous Sequential Release will be supported by Powercode for a period of six (6) months after the release immediately following the Previous Sequential Release is made generally available to Powercode’s customer.
      4. Support Services means Powercode support services as described in this Section 5.
      5. Telephone Support means technical support telephone assistance provided by Powercode to the Technical Support Contact concerning the installation and use of the Products, including then-current release of Licensed Software and the Previous Sequential Release.
      6. Technical Support Contact means the person designated by Customer that may contact Powercode for support.
    2. Fees.
      1. Powercode provides Customer with up to eight (8) hours per month of Support Services, so long as Customer’s account is not delinquent. If Customer desires additional Support Services beyond the included hours, Customer may elect to purchase Supplemental Support Services in accordance with Section 5.3.iii, below.
    3. Support Services.
      1. In General. During the Term, and so long as Customer’s account is not delinquent, Powercode shall provide Customer with up to eight (8) hours of (i) reasonable Telephone Support for Customer’s Technical Support Contact, (ii) Error Correction, and (iii) Product updates that Powercode, in its sole discretion, makes generally available to its other similarly situated customers at no charge with respect to the Products (collectively, the Support Services). Powercode’s assistance in installing and/or implementing any updates or new versions or releases are not included in the Support Services and will be billed in quarter-hour increments at Powercode’s then-current rates, with a one-hour minimum charge, plus travel and expenses, as applicable. Powercode shall use commercially reasonable efforts to cause Telephone Support to be available Monday through Friday, 9 a.m. to 5 p.m. C.S.T, excluding Powercode holidays (Support Hours), provided, that, Powercode may temporarily suspend availability of Telephone Support at any time in its sole discretion, acting reasonably.
      2. After-Hours Support. In the event Customer requests that Powercode provide Support Services outside of the Support Hours (After-Hours Support), Powercode may elect to do so in its sole discretion. The fees for such After-Hours Support shall be subject to Powercode’s then current rate for After-Hours Support, billed in quarter-hour increments with a one-hour minimum charge, plus travel and expenses, as applicable.
      3. Supplemental Support. Customer may elect to purchase Supplemental Support (i.e., Support Services in excess of eight (8) hours a month) by executing an applicable Service Order with Powercode. The fees for such Supplemental Support shall be calculated in accordance with the agreed-upon rates set forth in the Service Order. .
      4. Unsupported Failures. If Powercode believes that an Error reported by Customer may be due to factors outside the reasonable control of Powercode, Powercode will so notify Customer. At that time, Customer may (1) request Powercode to proceed with determination of the cause of the Error at Customer’s possible expense as set forth below or (2) instruct Powercode that Customer does not wish Powercode to pursue determination of the cause of the Error at Customer’s possible expense. If Customer requests that Powercode proceed with determination of the cause of the Error and Powercode determines that the Error was not due to a factor within the reasonable control of Powercode, (a) Customer may request that Powercode proceed with Error Correction, which Powercode deny in its sole discretion, and (b) Customer shall pay Powercode, at Powercode’s then-current and standard consulting rates, billed in quarter-hour increments, with a one-hour minimum charge, for all work performed in connection with such determination and any Error Correction Powercode elects to perform, plus reasonable related travel and other expenses incurred therewith. If Customer informs Powercode that it does not wish Powercode to pursue determination of the cause of the Error at Customer’s possible expense, or if such determination requires effort in excess of Customer’s instructions, Powercode may, at its sole discretion, elect not to investigate the cause of the Error without liability therefor.
      5. Exclusions. Notwithstanding the foregoing, Powercode shall have no obligation to support: (i) altered, damaged or modified Products or any portion of the Products incorporated with or into other software or hardware; (ii) Licensed Software that is not the then-current release or immediately Previous Sequential Release; (iii) Errors caused by Customer’s acts or omissions or, Customer’s use of Products other than as specified in the Documentation, or by other factors beyond the control of Powercode; or (iv) with respect to the Powercode BMU, OSPF, DHCP Relay, and / or routing configuration.
      6. Non-Included Support Services. Support services requested by Customer that are outside of the scope of the Support Services, After-Hours Support, Supplemental Support and other services as set forth in this Section 5 and any Support Order shall by quoted on a case-by-case basis, subject to availability and the then-current rates.
  7. Customer’s Obligations. Customer shall have the following maintenance and support obligations:
    1. All support requests shall be submitted by Customer to Powercode through Customer’s Technical Support Contact by calling (920) 351-1010 or emailing support at support@powercode.com.
    2. Customer shall provide Powercode with free and full access to the Products for purposes of rendering Support Services, including, where appropriate, dedicated modem access. Any time expended because of delays caused by Customer in providing Powercode with such access to the Products will be billed to Customer at Powercode’s then current time and material rates.
    3. Customer is responsible for (1) preparing and maintaining the facilities, including the communications facilities, in accordance with the specifications of the appropriate suppliers, (2) securing all required permits, inspections, and licenses, (3) providing adequate personnel to assist Powercode in carrying out its duties under this Agreement, (4) installing any updates and improvements to the Products, and (5) complying with all applicable state and federal laws.
    4. Customer shall ensure the appropriate Customer personnel have been trained in the operation, support, and management of the Products.
    5. Customer shall be solely responsible for maintaining all necessary backup and recovery procedures to prevent loss of its data.
    6. Customer shall install and implement updates and improvements to the Products within sixty (60) days of their general availability, unless a delay is mutually agreed upon in writing by the parties.
  8. Warranty Disclaimers.
    1. THE PRODUCTS, THIRD PARTY PRODUCTS, AND ANY SERVICES ARE PROVIDED TO CUSTOMER AS IS, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. POWERCODE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OF INFORMATION, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE/NON-INFRINGEMENT. POWERCODE DOES NOT WARRANT THAT THE PRODUCTS, THIRD PARTY PRODUCTS OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCTS OR THIRD PARTY PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS, THIRD PARTY PRODUCTS, OR SERVICES WILL BE CORRECTED. POWERCODE DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, THIRD PARTY PRODUCTS OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY POWERCODE OR POWERCODE’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. If applicable law affords Customer implied warranties, guarantees or conditions despite these exclusions, those warranties will be limited to one year and Customer’s remedies will be limited to the maximum extent allowed by Section 9 . THE PRODUCTS MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT POWERCODE AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY OBTAIN ACCESS TO AND DAMAGE CUSTOMER DATA, WEB-SITES, COMPUTERS, OR NETWORKS. POWERCODE WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES.
  9. Audit.
    1. During the term of this Agreement and for one year thereafter, no more than once in any twelve (12) month period unless a prior Audit determined Customer was non-compliant with the terms hereof, Powercode may audit Customer’s use of the Products (Audit). An Audit may include, without limitation, the inspection and review of computers or servers on which the Products have been installed, and records, procedures or business practices that relate to Customer’s performance under and compliance with the terms of this Agreement. Powercode (or an auditor retained by Powercode) shall provide Customer at least five (5) Days advance notice of an Audit. Customer will reasonably cooperate with Powercode and any auditor retained by Powercode in the conduct of the Audit. Audits will be conducted during Customer’s normal business hours. The cost of the Audit shall be borne by Powercode, unless the Audit reveals a material breach of this Agreement by Customer, in which case the reasonable cost of the Audit shall be paid by Customer.
  10. Limitations of Liability and Actions.
    1. POWERCODE SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action, regardless of form, arising out of any of the transactions under this Agreement may be brought by Customer more than one (1) year after such action accrued.
  11. Confidentiality.
    1. Definition of Confidential Information. Confidential Information means, with respect to a party hereto, all information or material which (i) gives the disclosing party (the Disclosing Party) some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of the Disclosing Party; or (ii) which is either (a) marked Confidential, Restricted, or Proprietary Information or other similar marking, (b) known by the receiving party (the Receiving Party) to be considered by the Disclosing Party as confidential or (c) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. Without limiting the generality of the foregoing, Powercode’s Confidential Information includes, but is not limited to, the terms of this Agreement, and the Products (including, without limitation, the Source Code for the Licensed Software) and Services and any trade secrets related thereto.
    2. Exclusions. Confidential Information will not include any information or material, or any element thereof, to the extent any such information or material, or any element thereof: (i) has previously become or is generally known, unless it has become generally known through a breach by the Receiving Party of this Agreement or a similar confidentiality or non-disclosure agreement; (ii) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party, free of any obligation of confidentiality, and as evidenced by written records of the Receiving Party; (iii) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction and without breach of a duty of confidentiality to the Disclosing Party; or (iv) has been independently developed by the Receiving Party wholly independently of and without access or reference to Confidential Information of the Disclosing Party. It will be presumed that any Confidential Information in a Receiving Party’s possession is not within exceptions set forth in subsections (i), (ii), (iii) or (iv) above, and the burden will be upon the Receiving Party to prove otherwise by records and documentation.
    3. Treatment of Confidential Information. Each party recognizes the importance of the other’s Confidential Information. In particular, each party recognizes and agrees that the Confidential Information of the other is critical to the other party’s business and that neither party would enter into this Agreement without assurance that its Confidential Information and the value thereof will be protected as provided in this Section and elsewhere in this Agreement. Accordingly, each party agrees as follows: (i) the Receiving Party will hold any and all of the Disclosing Party’s Confidential Information in strictest confidence and will use of the Confidential Information of the Disclosing Party solely for the purposes of this Agreement; and (ii) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance.
    4. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
    5. Non-Exclusive Equitable Remedy. The Receiving Party acknowledges and agrees that due to the unique nature of the Disclosing Party’s Confidential Information, there can be no adequate remedy at law for any breach of the Receiving Party’s obligations under this Section 11, that any such breach or threatened breach may allow the Receiving Party or third parties to unfairly compete with the Disclosing Party, resulting in irreparable harm to the Disclosing Party, and therefore, that upon any such breach or any threat thereof, the Disclosing Party will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of posting a bond or proving actual loss, in addition to whatever remedies the Disclosing Party might have at law or equity.
  12. Suspension; Termination.
    1. Suspension. Powercode may suspend Customer’s account and access to the Products and/or Services without liability if: (i) Powercode has reason to believe that the Products or Services have been, are being, or will be used in violation of this Agreement; (ii) Customer fails to make a payment when due; (iii) Powercode reasonably believes that the Products or Services are being accessed or used by third parties without authorization; (iv) such suspension is required by law; or (v) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. If an account or access remains suspended for period of thirty (30) Days or more, Powercode may terminate the applicable purchase order or Service Order without notice as set forth in this Section 12 . If Customer’s account or access is suspended for any reason, Customer remains responsible for all fees accrued through the date of suspension. In addition, if the account or access is suspended due to clause (ii) herein, Customer shall remain responsible for all contracted fees, notwithstanding such suspension.
    2. Breach. If either party fails to observe or perform any material obligation under this Agreement, the non-defaulting party may give written notice to the defaulting party specifying the material failure. If the material failure is not corrected or a mutually agreed plan to correct the failure has not been established within thirty (30) Days after the date of such notice, the non-defaulting party may terminate this Agreement upon written notice to the defaulting party. The right of the non-defaulting party to terminate this Agreement under this Section is in addition to all other rights that are available to it under this Agreement, at law or in equity.
    3. Termination. Either party may terminate this Agreement by providing not less than thirty (30) Days’ written notice. In the event of termination by Customer pursuant to this Section 12.3, Powercode will not prorate or return any payments made regardless of termination date.
    4. Bankruptcy and Insolvency. Either party may terminate this Agreement on written notice to the other party, if the other party becomes insolvent or bankrupt, admits its inability to pay its debts as they mature or takes action for the purpose of entering into winding-up, dissolution, bankruptcy, reorganization or similar proceedings that are analogous in purpose or effect, or an action has been instituted against the other party.
    5. Disposition of Products on Termination. Upon the expiration or termination of this Agreement for any reason, the license and all other rights granted to Customer hereunder shall immediately cease, and Customer shall: (i) destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Licensed Software together with all reproductions and modifications of the Licensed Software, all copies of any Documentation, notes and other materials respecting the Licensed Software, and Powercode’s Confidential Information; (iii) purge all copies of the Licensed Software or any portion thereof from any computer storage device or medium on which Customer has placed or has permitted others to place the Licensed Software, including copies of the Licensed Software made for archival and backup purposes; and (iii) provide Powercode a written certification that Customer has complied with all of its obligations under this Section. Customer acknowledges and agrees that while it may retain any purchased Hardware after the expiration or termination of this Agreement, any embedded software thereon will cease functioning and to the extent possible shall be purged or destroyed in accordance with the terms of this Section 11.4 (Disposition of Products on Termination).
    6. Restrictive Code. Customer acknowledges and agrees that the Products and Services may contain certain technical protection measures (including, without limitation, passwords, license keys, product activation technology, timer, clock, counter or other limiting routine) that are designed to prevent the unauthorized use of the Products and Services outside the scope of this Agreement.
  13. General.
    1. Export or Import. Customer may not export, directly or indirectly, the Products to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval. In addition, Customer shall not disclose the Products to any non-U.S. national in the United States in violation of any United States export or other similar law (by way of example, only, unauthorized deemed exports). Nor shall Customer import the Products into any country where doing so would violate local applicable laws and regulations. While Powercode will respond to reasonable requests for information to assist Customer in complying with relevant export and import laws and regulations, Customer is solely responsible for such compliance. Customer will defend, indemnify, and hold harmless Powercode from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of any claim the Products was exported, imported, or otherwise shipped or transported in violation of applicable laws, rules and regulations.
    2. Government Restricted Rights. The Products are commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.
    3. Waiver, Amendment or Modification. The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder shall not be effective unless made in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought. The terms of this Agreement shall not be amended or changed by the terms of any Service Order or purchase order or acknowledgement even though Powercode may have accepted or signed such documents. Notwithstanding the foregoing or anything to the contrary contained in this Agreement, Powercode may update the terms of this Agreement in its sole discretion, acting reasonably. Such updates shall be made available to Customer at powercode.com/mla. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver thereof.
    4. Notice. All notices, demands or consents given under this Agreement will be in writing and will be deemed given when delivered personally, or three (3) Days after deposit in the mail (certified or registered mail), or one (1) day after being sent by overnight courier, to the receiving party. If to Powercode: Bertram Communications LLC DBA Powercode, 300 Industrial Drive, Random Lake, Wisconsin 53075. If to Customer, at the address set forth in the table on the initial page of this Agreement. Either party may, upon proper notice in accordance herewith, provide such other address for notice.
    5. Orders. POWERCODE SPECIFICALLY OBJECTS TO ANY ADDITIONAL TERMS BEING ADDED THROUGH A SERVICE ORDER, PURCHASE ORDER OR SIMILAR DOCUMENT. IF A PURCHASE ORDER IS REQUIRED BY CUSTOMER, THE PARTIES AGREE THAT ANY ADDITIONAL TERMS CONTAINED THEREIN SHALL NOT BECOME PART OF THE AGREEMENT BETWEEN THE PARTIES AND SPECIFICALLY THAT THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE ANY AND ALL TERMS IN ANY PURCHASE ORDER.
    6. Entire Agreement. This Agreement, together with the Exhibits attached hereto, constitutes the entire agreement between the parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations and/or agreements between the parties in connection with the subject matter hereof except as specifically set forth or referred to herein. In the event of any conflict between the body of this Agreement and any Exhibits or Orders, including any purchase orders, the body of this Agreement shall control.
    7. Assignment. Customer may not assign this Agreement without the express written consent of Powercode. Notwithstanding the foregoing, Customer may assign this Agreement to any entity acquiring or merging with Customer, or to whom Customer transfers all or substantially all of its assets, provided, however, that (a) any such assignment may not be made to a competitor of Powercode, and (b) the resulting use of the Products and Services remains consistent with the terms of this Agreement and the scope of use made by Customer immediately before the assignment. All the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and assigns and legal representatives.
    8. Governing Law; Severability. The validity, construction and performance of this Agreement and the legal relations among the parties to this Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, excluding that body of law applicable to choice of law. Any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in Wisconsin and the parties submit to the in personam jurisdiction of such courts for purposes of any action or proceeding. If any provision of this Agreement or the application of any such provision shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall continue in full force and effect.
    9. Relationship of The Parties. Customer is an independent contractor under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the parties hereto. Customer shall have no authority to enter into agreements of any kind on behalf of Powercode and shall have no power or authority to bind or obligate Powercode in any manner to any other third party.
    10. Survival. The following Sections shall survive expiration or termination of this Agreement: 1, 3.10, 3.11, 3.12, 5 (to the extent of fees accrued prior to the date of termination), 6.6, 7, 8, 9, 10, 11.4, and 12 .
    11. Force Majeure. Except for Customer’s payment obligations, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
    12. No Third Party Beneficiaries. There are no intended or implied third party beneficiaries of this Agreement. In particular, no Authorized User shall be deemed a third party beneficiary. Any action to enforce this Agreement must be brought by a signatory hereto.
    13. Dispute Resolution.
      1. Informal Dispute Resolution. The parties will attempt to resolve all disputes, claims, or controversies arising under or related to this Agreement or its subject matter or any right or obligation created by this Agreement (Dispute) through good faith negotiations conducted by the representatives of the parties. The party asserting the Dispute will give notice to the other party describing the Dispute in reasonable detail. If the parties are unable to resolve the Dispute within 30 days following the initiation of such negotiations, then the Dispute will be resolved in accordance with Section 13.13.2.
      2. Mediation. Notwithstanding anything contained in this Agreement to the contrary, all disputes arising under this Agreement which cannot be resolved under Section 13.13.1, will, before the institution of legal proceedings (except legal proceedings which seek equitable relief), be submitted to non-binding mediation among the parties and a mediator to be jointly selected by the parties. A party seeking to resolve a dispute hereunder shall notify the other party, in writing, that it wishes to begin the mediation process. Upon receipt of such written notice, the parties shall attempt to mutually select a mediator. If the parties are unable to agree on a mediator within ten days, each party shall, within two days, submit a proposed mediator, and the proposed mediators designated by the parties shall, within seven days, select a mediator. The mediation process shall be deemed initiated upon the receipt of the aforementioned written notice by the receiving party. The parties agree to forebear from instituting legal proceedings (except legal proceedings which seek injunctive or other equitable relief) for a period of 60 days following the initiation of mediation. If a dispute is not resolved by mediation within such 60-day period, then the parties may exercise their rights to pursue any and all legal remedies which may be available to them under this Agreement and applicable law.
      3. Reservation of Rights with Respect to Intellectual Property and Confidentiality Disputes. Notwithstanding anything to the contrary contained in this Agreement, each party reserves the right to seek injunctive or other equitable relief in a court of competent jurisdiction with respect to any Dispute for which injunctive or equitable relief may be sought including, without limitation, any Dispute related to the actual or threatened infringement, misappropriation or violation of a party’s intellectual property rights or any breach of Section 11 (Confidentiality) hereof.

The parties have executed this Agreement to become effective (1) with respect to Hardware, as of the delivery of Hardware to Customer, and (2) with respect to Licensed Software, as of the installation of the Licensed Software. By accepting delivery of the Hardware or by installing the Licensed Software, as applicable, Customer agrees to the terms of this Master License Agreement.