This Agreement, made on the date of the executed Order Summary Agreement, is between Beckware LLC, a North Carolina limited liability company (“Beckware”), and the party named in the executed Order Summary Agreement (“Licensee”).

Recitals

A. Beckware licenses certain software products and related documentation, and also provides certain maintenance and technical support for the software products.

B. Licensee has purchased, or will be purchasing, certain software products from Beckware.

C. Licensee desires the opportunity to use, and Beckware is willing to provide to Licensee, certain maintenance and technical support from Beckware as provided by this Agreement for certain software products licensed to Licensee by Beckware.

Beckware and Licensee agree as follows:

1. Definitions and Specifications.

1.a. “Applicable Customer Care Support Program” means the program of maintenance and technical services on the attached Exhibit 1, which is listed as the option chosen by the Licensee and Beckware to apply to this Agreement.

1.b. “Documentation” means any of the standard electronic user instructions, manuals or other user-written materials provided with the Software (as defined below).

1.c. “Initial Support Term” means the consecutive twelve (12) month period for the Applicable Customer Care Support Program which starts on the “Beginning Date” and ends on the “Ending Date”, as listed on the attached Exhibit 1.

1.d. “License Agreement” means the Beckware LLC License Agreement for the Software executed between the parties on the date of the executed Order Summary Agreement.

1.e. “Renewal Term” means the one (1) month period subsequent to either the Initial Support Term during which the Licensee has incurred the fees required by the Applicable Customer Care Support Program or a prior Renewal Term during which the Licensee has incurred the fees required by the Applicable Customer Care Support Program.

1.f. “Software,” means AcctVantage software.

2. Not Applicable to Custom Products or Services; nor On-Site Support.

This Agreement shall not apply (i) in any way to support, maintenance or technical or otherwise, for any custom software, custom products, or other custom materials or services, of any nature, provided by Beckware to Licensee, nor (ii) in any way to on-site support of any nature by Beckware to Licensee. Any custom or on-site support shall be billed at the then current rates of Beckware.

3. Affirmation of License Terms.

Licensee hereby certifies that it has read, agrees with and hereby reaffirms each of the terms and conditions contained in the License Agreement.

4. Maintenance and Technical Support

During the Initial Support Term and any applicable Renewal Term, Beckware shall provide to Licensee the Applicable Customer Care Support Program as set forth on Exhibit 1. Beckware’s obligations under this Agreement with respect to the Initial Support Term and any applicable Renewal Term are contingent upon (i) Licensee complying with all terms of this Agreement, including timely making the payments required by this Agreement, and complying with the License Agreement, and (ii) termination of this Agreement as provided herein.

5. Applicable Fees; Renewal.

5.a. Applicable Customer Care Support Fees and Renewal.

5.a.i. Initial Support Term Fees. At the time of signing this Agreement, Licensee shall pay the Initial Support Term fees listed on the attached Exhibit 1, which apply to the Applicable Customer Care Support Program. Unless and until such fee is paid in full by Licensee, Beckware is not obligated in any way under this Agreement.

5.a.ii. Renewal Term Fees. Approximately 30 days prior to the expiration of the Initial Support Term and any applicable Renewal Term, Beckware will invoice Licensee for the Applicable Customer Care Support Program for the entire upcoming proposed Renewal Term at the then applicable Renewal Term fee according to the Renewal Term fees listed on Exhibit 1. Licensee may accept the Applicable Customer Care Support Program for the upcoming proposed Renewal Term by paying Beckware’s invoice in full in U.S. Dollars.

5.a.iii. Taxes. Applicable Customer Care Support Program fees and other charges set forth in this Agreement do not include applicable taxes. In addition to the fees and charges due Beckware under this Agreement, Licensee shall remain liable for and shall pay all applicable local, state, and federal sales, use, excise, personal property or other similar taxes or duties, and all other applicable taxes, which may now or hereafter be imposed upon this Agreement or possession or use of the Software or Documentation, excluding taxes based on Beckware’s income.

6. Negation of Warranties /Limitations of Liability

6.a. Negation of Warranty. Other than those obligations of Beckware under this Agreement, Beckware makes no warranties whatsoever to Licensee under this Agreement, including without limitation, that the Documentation or Applicable Customer Care Support Program will be error free or that the Documentation or the Applicable Customer Care Support Program can or will correct any problems. All Documentation and any services under the Applicable Customer Care Support Program are provided on an “as is” basis.

6.b. Disclaimer of Other Warranties. REPRESENTATIONS, INDEMNITIES AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, TRADE USAGE OR COURSE OF DEALING OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, TITLE, THE CONDITION OF ANY SOFTWARE, MEDIA, PRODUCT OR SERVICES, OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED. BECKWARE MAKES NO REPRESENTATION OR WARRANTY THAT ANY OF THE PRODUCTS, SOFTWARE, MEDIA, LICENSES, DOCUMENTATION OR OTHER MATERIALS OF ANY NATURE SUPPLIED HEREUNDER WILL NOT INFRINGE UPON PATENT, COPYRIGHT, TRADEMARK OR SIMILAR INTELLECTUAL PROPERTY RIGHTS OF OTHERS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BECKWARE, ITS EMPLOYEES, DISTRIBUTORS, SUPPLIERS, LICENSORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.

6.c. No Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BECKWARE OR ITS SUPPLIERS BE LIABLE TO LICENSEE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF BECKWARE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.d. Additional Limitation of Liability. IN NO EVENT SHALL BECKWARE’S TOTAL CUMULATIVE LIABILITY HEREUNDER, FROM ALL CAUSES OF ACTION OF ANY KIND, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE FOR THE APPLICABLE CUSTOMER CARE SUPPORT PROGRAM DURING THE THEN APPLICABLE YEAR.

7. Termination

7.a. Subject to the terms and conditions of this Agreement and the License Agreement, and unless earlier terminated as provided below, or later renewed for an applicable Renewal Term, this Agreement shall begin on the Beginning Date and end on the Ending Date of the Initial Support Term as provided on Exhibit 1.

7.b. This Agreement and all services under the Applicable Customer Care Support Program herein may be terminated upon the earlier of:

7.b.i. automatically, in the event that Licensee breaches any provision of this Agreement, including the License Agreement, or any other agreement with Beckware or its subsidiaries;

7.b.ii. automatically, in the event that Licensee is the subject of a proceeding in bankruptcy, is placed in receivership, or enters into an arrangement for the benefit of its creditors;

7.b.iii. upon thirty (30) days’ written notice by one party to the other party. Provided however, in the event Beckware terminates this Agreement pursuant to this subsection, Beckware shall refund to Licensee the Applicable Customer Care Support Program fees paid by Licensee for the then applicable term on a prorated basis determined by a formula which shall be the sum equal to (i) the fee paid for the then Applicable Customer Care Support Program term divided by twelve (12), and then (ii) multiplied by whole number of months of such applicable term then remaining.

7.c. In the event of any termination of this Agreement, Beckware may (i) declare all Applicable Customer Care Support Program fees owed to Beckware hereunder to be immediately due and payable; and (ii) cease performance of all Applicable Customer Care Support Program services hereunder without liability to Licensee.

7.d. The foregoing rights and remedies of Beckware shall be cumulative and in addition to all other rights and remedies available to either party in law and in equity.

8. No Solicitation/Non-Hire; Liquidated Damages

8.a. For a period of one (1) year following the date of termination of this Agreement, either party shall not, directly or indirectly, separately or in association with others: (i) solicit, induce, recruit, or (ii) attempt to solicit, induce, recruit, or (iii) hire, any employee, shareholder, director, or officer of the other party, its parent or subsidiary companies, for employment or affiliation of any nature with the other party or any business or entity affiliated in any way with the other party.

8.b. Licensee and Beckware agree that it is impossible to determine with any reasonable accuracy the amount of prospective damages to either party should the other party breach in any way the provisions of Section 8.a. Thus, Licensee and Beckware agree that in the event either party breaches in any way the provisions of Section 8.a., the breaching party shall pay the non-breaching party money damages as follows:

8.c. The sum of Ten Thousand and 00/100 Dollars ($10,000.00) for each act in violation of Section 8.a(i) and 8.a(ii), plus all attorney fees and costs incurred in collecting such damages, including without limitation, all attorneys fees and costs incurred, from the time of commencement of any attorney involvement through the date breaching party pays such amount in full, and whether such fees and costs are incurred before or after Judgment, or other applicable Court order; and

8.d. The sum of Fifty Thousand and 00/100 Dollars ($50,000.00) for each act in violation of 8.a(iii), plus all attorney fees and costs incurred in collecting such damages, including without limitation, all attorneys fees and costs incurred, from the time of commencement of any attorney involvement through the date Licensee pays such amounts in full, and whether such fees and costs are incurred before or after Judgment, or other applicable Court order.

8.e. Licensee and Beckware agree that the damages set forth above are reasonable, and not a penalty, based on the facts and circumstances of the parties at the time of entering into this Agreement, and with due regard to future expectations.

9. Independent Contractor.

It is the intent of the parties to create the business relationship of a client/independent contractor, and not an employer/employee relationship. Beckware is an independent contractor and shall pay its own income tax as required by Federal, State and local statutes. This agreement does not create any partnership or any other type of entity between the parties.

10. Dispute Resolution.

10.a. Arbitration. The Parties agree that any dispute arising from this Agreement, other than application to a court for injunctive relief, shall be resolved according to the Commercial Rules of the American Arbitration Association through the services of an arbitrator credentialed by the American Arbitration Association and/or the Association For Conflict Resolution.

10.b. Mediation. Duty to First Seek Mediation. The parties agree to first seek mediation of any dispute subject to this Section through the services of a Mediator credentialed by the Association For Conflict Resolution and/or the International Academy of Mediators. No dispute between the parties shall be considered arbitrable pursuant to this Section 16 (Dispute Resolution) unless all parties to the dispute have each met on not less than two separate dates with a Mediator to discuss the dispute. If a party refuses to participate in mediation, the other party may proceed to arbitration. A party shall be deemed to have refused arbitration if he or she does not respond to the efforts of the Mediator to contact him or her over fifteen consecutive days.

11. General

11.a. Entire Agreement. This Agreement and the License Agreement constitute the entire agreement between the parties with respect to the subject matter hereof, and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby. This Agreement may not be altered, modified, amended, changed, rescinded or discharged in whole or in part, except by written agreement executed by both Licensee and Beckware.

11.b. Assignment. This Agreement may not be assigned by Licensee without the prior written consent of Beckware, which consent will not be unreasonably withheld, and any attempt to do so without permission shall be void. This Agreement shall inure to the successors and assigns of Beckware and the permitted successors and assigns of Licensee.

11.c. Force Majeure. Notwithstanding anything to the contrary in this Agreement, no default, delay or failure to perform on the part of Beckware shall be considered a breach of this Agreement, if such default, delay or failure to perform is shown to be due entirely to causes beyond reasonable control of Beckware including, but not limited to, causes such as strikes, lock-outs or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the public enemy or nuclear disasters.

11.d. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina.

11.e. Amendment. This Agreement may be amended only by a writing signed by the parties.

11.f. Attorney Fees. Licensee shall pay all costs incurred by Beckware in collecting any sums due Beckware or sums incurred by Beckware as a result of any breach of this Agreement by Licensee (“sums”), including without limitation, all attorneys fees and costs incurred by Beckware, from the time of commencement of any attorney involvement through the date Licensee pays such sums in full, and whether such fees and costs are incurred before or after Judgment, or other applicable Court order.

11.g. Severability. Notwithstanding that any part of this Agreement may prove to be illegal or unenforceable, the other provisions of this Agreement and any remaining portions of the provisions in question, shall remain in full force and effect.

Exhibit 1
Applicable Customer Care Program

The following describes the Applicable Customer Care Program that Beckware will provide to Licensee during the Initial Support Term and any Renewal Term. The Applicable Customer Care Program described in this Exhibit does not expand on or change the Software warranty provisions set forth in the License Agreement.

1. The Applicable Customer Care Program chosen by Beckware and Licensee to apply to this Agreement is the Basic Program.

2. The term of the Basic Program, and the fees, are as follows:

2.a. Support Terms.

2.a.i. The Initial Support Term is set forth under Terms & Conditions on the executed Order Summary Agreement.

2.a.ii. Any applicable Renewal Term shall begin subsequent to the Initial Support Term as provided in the Agreement.

2.b. Fees.

During the Initial Support Term and each Renewal Term, Licensee shall pay Beckware the Customer Care Program fees determined by Beckware’s then-current service rates, based on the total Software licenses owned by Licensee as of the date each invoice is issued. Any applicable taxes shall be additional.

3. The Basic Program includes only the following benefits:

3.a. Maintenance Support.

3.a.i. Product Maintenance Releases: From time to time Beckware may release to its end user licensees its development of permanent fixes or solutions, with few if any new features or functions, to known problems or bugs in the Software (“Maintenance Release”). If Licensee has paid its fees in full to receive services under the Basic Program from Beckware on the general release date for the Maintenance Release, Beckware will provide the Licensee with the Maintenance Release and any related Documentation, both at no additional charge to the Licensee.

3.a.ii. Product Upgrades: From time to time Beckware may release to its end user licensees a major revision to the Software which adds new and different functions or capabilities to the Software (“Upgrade”). If Licensee has paid it fees in full to receive services under the Basic Program from Beckware on the general release date for the Upgrade, Beckware will provide the Licensee with the Upgrade at no additional charge to the Licensee.

3.b. Technical Support.

3.b.i. Beckware shall provide the following technical support services (“Technical Support Services”) under the Basic Program:

3.b.i.(1) Telephone and Electronic Mail Assistance: Licensee will be given the telephone number for Beckware’s support line (currently 828-692-3301) and will be entitled to contact the support line during normal Beckware operating hours on regular Beckware business days, excluding Beckware holidays, to consult with Beckware technical analysts concerning problem resolution, bug reporting, documentation clarification, and general technical guidance. Licensee may also contact Beckware through electronic mail at support@acctvantage.com.

3.b.i.(2) Software Problem Reporting. Licensee may submit to Beckware requests identifying potential problems in the Software. Requests should be in writing and directed to Beckware through electronic mail at support@acctvantage.com. Beckware retains the right to determine the final disposition of all requests, and will inform Licensee of the disposition of each request.

3.b.ii. Designated Licensee Contacts. To receive Technical Support Services under the Basic Program from, and communicating with, Beckware with respect to support issues during the Initial Support Term and any applicable Renewal Term, Licensee shall designate no more than two “Designated Licensee Contacts”. Requests for telephone or other assistance from Beckware shall come only from a Designated Licensee Contact. In the event that a specific Designated Licensee Contact leaves Licensee’s employ, Licensee may designate a replacement Designated Licensee Contact.

4. Exclusions From Basic Program Maintenance and Technical Support Services.

In addition to having no custom service or on-site obligations of any nature under this Agreement, Beckware shall have no support obligations of any nature with respect to any hardware or software product other than the Software, including without limitation, any custom software, custom products, or custom materials of any nature (“Nonqualified Product(s)”). If Beckware provides support services for a problem caused by a Nonqualified Product, or if Beckware’s service efforts are increased as a result of a Nonqualified Product, Beckware will charge time and materials for such service at its then current rates for professional services. If, in Beckware’s opinion, performance of any maintenance or technical support is made more difficult or impaired because of a Nonqualified Product(s), Beckware shall so notify Licensee, and if requested by Beckware, Licensee will immediately remove the Nonqualified Product at its own risk and expense during any efforts to render any maintenance or technical Support under this Agreement. Licensee shall be solely responsible for the compatibility and functioning of Nonqualified Products with the Software.

5. Licensee Responsibilities.

In connection with Beckware’s provision of maintenance and technical support as described in this Exhibit, Licensee acknowledges that Licensee has the responsibility to do each of the following: (1) maintain the designated computer system and associated peripheral equipment in good working order in accordance with the manufacturers’ specifications, and insure that any problems reported to Beckware are not due to hardware malfunction; (2) maintain the designated computer system at the latest code revision level deemed necessary by Beckware for proper operation of the Software; (3) supply Beckware with access to and use of all information and facilities determined to be necessary by Beckware to render the maintenance and technical support described in this Exhibit; (4) perform any tests or procedures recommended by Beckware for the purpose of identifying and/or resolving any problems; (5) maintain a backup procedure external to the Software for reconstruction of lost or altered files, data, or programs; (6) at all times follow routine operator procedures as specified in the Documentation; (7) remain solely responsible at all times for the safeguarding of Licensee’s proprietary, confidential, and classified information; (8) ensure that the designated computer system is isolated from any process links or anything else that could cause harm before requesting or receiving remote support assistance; (9) license the required version of 4D Server® database software, and (10) take such other action as requested by Beckware so that Beckware may render the maintenance and technical support under this Agreement.