Version 3.4

Decisions Enterprise Self-Hosted End User License Agreement

Effective November 17, 2022

SOFTWARE AND SUBSCRIPTION AGREEMENT

This Software License and Subscription Agreement (this “Agreement”) is a binding agreement between Decisions, LLC (“Decisions”) and the entity identified on the Order Form as the licensee of the Licensed Program (“Licensee”).

 

DECISIONS PROVIDES THE LICENSED PROGRAM SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY DOWNLOADING, INSTALLING, ACCESSING OR USING THE LICENSED PROGRAM YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DECISIONS WILL NOT AND DOES NOT LICENSE THE LICENSED PROGRAM TO LICENSEE AND YOU MUST NOT DOWNLOAD OR INSTALL THE LICENSED PROGRAM OR DOCUMENTATION.

 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY LICENSED PROGRAM THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF DECISIONS’ LICENSED PROGRAM.

 

ARTICLE I

DEFINITIONS

The following terms, whenever initially capitalized, shall have the meanings set forth in this Article I or as otherwise defined in this Agreement.

  1.  “Agreement” means this Software License and Subscription Agreement, together with all schedules, appendices, attachments, and exhibits appended hereto, and all amendments of the same.
  2.  “Confidential Information” shall have the meaning set forth in Section 10.1 below.
  3.  “Designated System” shall mean the computer server(s) meeting the System Requirements on which Licensee intends to install and operate the Licensed Program, as represented by Licensee to Decisions on the relevant Order Form.
  4.  “Documentation” shall mean, in digital or printed form, the user guides and reference manuals that set out, in English, descriptions of the Licensed Program, components, functions or requirements of the Licensed Program, including instructions for installing, configuring, and operating the Licensed Program.
  5.  “Effective Date” shall mean the date set forth in the Order Form.
  6.  “License Fee” shall mean the aggregate amount payable by Licensee in consideration of the license contemplated by this Agreement and its appended instruments.
  7.  “Licensed Program” shall mean the latest distributed version, as of the Effective Date of this Agreement, of the executable form of the software applications named and described in the Product Description attached to this Agreement as Exhibit A, including all Updates made available by Decisions to Licensee pursuant to the terms of this Agreement.
  8. “Maintenance Services” shall mean the services provided by Decisions as more fully described in Article V.
  9. Order Form” shall mean a written document signed by Licensee and Decisions, that references this Agreement, and sets forth the price and quantity terms of the Licensed Product ordered by Licensee and to be granted by Decisions and such other terms as the parties may agree.
  10. 10 “Services” shall mean the Maintenance Services and Support Services.
  11. Source Code” shall mean the eye-readable embodiment of the programmatic instructions that were converted to the object code form of the Licensed Program.
  12. Support Request” shall mean any request or demand directed to Decisions by Licensee for guidance, assistance, clarification, or instruction relating to the operation, configuration, maintenance, or installation of the Licensed Program.
  13. Support Services” shall mean the services provided by Decisions as more fully described in Article IV.
  14. Subscription Fees” shall mean the annual subscription fees set forth in the Order Form.
  15. System Requirements” shall mean the minimum system requirements for use of the Licensed Program as described on Decisions Website (https://documentation.decisions.com/installation- requirements-self-hosted-environment/ and https://documentation.decisions.com/deployment- configuration-options/), as may be amended.
  16.  “Term” shall mean the Initial Term and each Renewal Term.
  17. Update” shall mean all versions of the Licensed Program, in object code form, that succeed the latest version of the Licensed Program, made generally available by Decisions to production licensees of the Licensed Program by electronic download from Decisions’ commercial website after the Effective Date of this Agreement.
  18. Privacy Policy” shall mean the policies and procedures as described in https://decisions.com/privacy- policy/.
  19. “Production” shall refer to instances or servers running the Software Program that are running operational workloads supporting ongoing business operations.
  20. “Non-Production” shall refer to instances or servers running the Software Program that Licensee is using for application development, test, quality assurance, staging prior to deployment to Production, or as backup to Production instances or servers to be operated with Production workloads only if the backed up Production instance or server fails (i.e. “disaster recovery”). Non-Production instances or servers used for disaster recovery shall not be operated with Production workloads concurrently with Production instances or servers.

 

ARTICLE II

LICENSE

2.1 License Rights Granted

 A. License Grant. Subject to and conditioned upon Licensee’s payment of the Subscription Fees and compliance with all terms of this Agreement, Decisions grants to Licensee a non- exclusive, non-transferable, terminable and limited license (the “License”) to install, access and use the Licensed Program and Documentation subject to the terms and conditions set forth herein. Licensee may use the Licensed Program solely for Licensee’s own software development operations on the Designated System or on a backup system if the Designated Systems is inoperative, consistent with applicable licensed use limitations. Licensee may not exceed the limit on the number of Designated Systems. Licensee may make one copy of the Licensed Program and the Documentation for backup or archival purposes only, so long as Decisions’ copyright notices are reproduced on each copy. Notwithstanding the preceding, any reproduction or distribution of the Licensed Program or the Documentation other than in accordance with the express terms of this Agreement is prohibited. Decisions grants to Licensee the nonexclusive, nontransferable right during the Term of this Agreement to use

(1) all copyrighted materials contained in the Documentation and Licensed Program (including but not limited to screenshots from the Documentation and Licensed Program), and (2) all trademarks associated with the Documentation and Licensed Program (i) in promoting the licensed use of the Documentation and/or Licensed Program by authorized users, and (ii) in printed publications, audiovisual materials, and websites for the purposes of training and assisting authorized users of the Documentation and/or Licensed Program. Licensee is permitted to incorporate the Licensed Program into Licensee’s products and services and deliver the Licensed Product, as incorporated into Licensee’s products and services, to Licensee’s customers solely for their internal use, provided that (a) Licensee require its customers to agree to the restrictions and confidentiality provisions at least as stringent as those contained herein; (b) Licensee is solely responsible for providing support to its customers; (c) Licensee shall not represent itself as an agent of Decisions, commit Decisions to any obligation or liability whatsoever; (d) make any representations, warranties or guarantees relating to Decisions or Licensed Product; and (d) Licensee shall be solely liable for all use of the Licensed Product by its customers and for all acts and omissions of Licensee’s customers. Except as expressly state above, Licensee is not permitted to market, distribute, license or otherwise make available the Licensed Product.

B. Acknowledgement of Contract. Licensee acknowledges that this Agreement constitute a contract between Licensee and Decisions, even though it may be electronic and not physically signed by Licensee and Decisions, and that this Agreement governs Licensee’s access to and use of the Licensed Product and supersedes any other agreements between Licensee and Decisions, including but not limited to any terms or conditions on any form or agreement provided by Licensee, which are hereby rejected.

C. Order Form. All license rights, privileges, and interests granted to Licensee by the terms of this Agreement are limited in scope to the cumulative Licensed Products per Designated Systems set forth in the Order Forms.

D. Changes. Decisions reserves the right, in its sole discretion, to make any changes to the Licensed Product that it deems necessary or useful. Any such changes or Updates added to or augmenting the Licensed Product are also subject to the terms and conditions of this Agreement.

 

2.2 Restrictions

A. Title. No title to or ownership in the Licensed Program is transferred to Licensee. All rights, title and interest in and to the Licensed Program and its components, including all related intellectual property rights, patents, copyrights, trade secrets and other proprietary rights will remain with and belong exclusively to Decisions and its third-party vendors.

B. Source Code Determination. Licensee shall not, and shall not cause or permit, any person to access or use the Licensed Program, accept as expressly permitted by this Agreement. Without limiting the generality of the foregoing, Licensee shall not the reverse engineer, disassemble, decompile, or otherwise attempt to determine or gain access to the Source Code or protocols of the Licensed Program.

C. Further Restrictions. Licensee shall not (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Licensed Program available to any third party, other than as expressly permitted by this Agreement; (b) except as otherwise expressly permitted to Section 2.1.A above, use the Licensed Program to process data on behalf of any third party, (c) modify or adapt the Licensed Program to falsely imply any sponsorship or association with Decisions, or otherwise attempt to gain unauthorized access to the Licensed Program; (d) use the Licensed Program in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property or other proprietary rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law,

(e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Licensed Program; (f) use the Licensed Program for any purpose that is to Decisions’ detriment or commercial disadvantage; or (g) use the Licensed Program or Documentation other than an expressly permitted by this Agreement.

 

2.3 Delivery and Acceptance.

A. Delivery. Decisions’ delivery obligations with respect to the Licensed Program and Documentation shall be fully performed and discharged when Decisions makes available to Licensee, by electronic download from Decisions’ commercial website, or by other reasonable means, (i) a copy of the Licensed Program and Documentation and (ii ) a license key for the Licensed Program and Documentation, allowing Licensee to activate the Licensed

Program for production use in each Designated System by the number of designated License Products ordered in the relevant Order Form and access the Documentation. Licensee is solely responsible for installation of the Licensed Program on Licensee’s Designated System.

B. Acceptance of Licensed Program. Licensee shall have thirty (30) days following the Effective Date, or thirty (30) days following the date of actual delivery if later than Effective Date, to assess whether the Licensed Program operates in conformity with the Documentation (“Acceptance Period”). If Licensee fails to deliver written notice to Decisions prior the expiration of the Acceptance Period describing the nonconformity, Licensee will be deemed to have accepted the Licensed Program.

C. System Requirements. Licensee is solely responsible for ensuring that the Designated System meets the System Requirements. Licensee is responsible for obtaining, installing and maintaining all internet connections, hardware, software, interfaces and such other system and network requirements to properly install, download, run, use and access the Licensed Program.

 

ARTICLE III

VERIFICATION AND AUDITING

3.1 Signed Verification. Upon Decisions’ written request, not more frequently than annually, Licensee shall promptly provide to Decisions, written certification, signed by an authorized representative of Licensee, verifying that the Licensed Program is being used in compliance with the provisions of this Agreement and applicable Order Forms.

3.2 Audit. During the Term of this Agreement and for a period of one (1) year after the expiration or termination of this Agreement, Decisions shall have the right to audit Licensee’s use of the Licensed Program, upon thirty (30) days written notice to Licensee. Decisions may exercise this right only once every 12 months or if Decisions has a reasonable basis to assume Licensee is not in compliance. Any such audit shall be conducted during regular business hours at Licensee’s facilities. Such audits, if any, shall be performed by Decisions’ employees or an independent public accountant or equivalent party (“CPA Firm”), and in a manner so as not to unreasonably interfere with Licensee’s operations. In no event will organizations such as the Software Publisher Association (“SPA”) and the Business Software Alliance (“BSA”) be considered CPA Firms or suitable auditors. Any CPA Firm conducting an audit shall first agree in writing with Licensee to hold all information obtained from such audit in confidence and not to disclose any such information to any third party, except that the CPA Firm may disclose information necessary to the purpose of the audit to Decisions in strict confidence. Decisions shall pay the costs of conducting such audit unless the audit discloses that Licensee’s underpayment of fees exceeds ten percent (10%) of the fees paid. If underpayment exceeds ten percent (10%) of the fees paid, Licensee will pay the reasonable costs incurred by the audit. Licensee must also pay Decisions for any unauthorized copies of the Licensed Product being used by Licensee at Decisions’ then-current list price.

 

ARTICLE IV

SUPPORT SERVICES

Subject to and conditioned upon Licensee’s payment of the Subscription Fees and compliance with the terms of this Agreement, Decisions shall provide the following Support Services to Licensee commencing on the Effective Date and ending upon the earlier of the expiration or termination:

4.1 Support Staff. Decisions shall maintain support personnel appropriately trained to respond to licensed Licensees’ issues and questions arising from the use of the Licensed Program and shall implement and periodically review a standard support process reasonably designed to achieve the support targets set forth herein.

4.2 Support Request Channels. Decisions shall establish and maintain a communication protocol reasonably calculated to make available to Licensee on a 24 x 7 basis, via at least one of the following channels for the purpose of submitting new Support Requests, modifying existing Support Requests, appending additional information to existing Support Requests, or cancelling Support Requests.

A. Email or Website-based Support Channel. Decisions shall establish and maintain an aliased support email address to which Licensee may direct its Support Requests. Alternatively, Decisions, in its sole discretion, may establish, maintain, and provide Licensee access and use instructions to a web-based program reasonably designed to store, and make available for retrieval by Decisions, Support Requests and related information, submitted by Licensee in electronic form.

The Parties expressly acknowledge the adequacy of Decisions’ establishment and maintenance of an email or web-based support channel as fulfillment of the 24 x 7 availability requirement under this Section 4.2.

B. Telephone Support Channel. Licensee may submit Support Requests to Decisions by telephone during Decisions’ regular business hours.

4.3 Availability Limitation. Any interruption to any Support Request channel caused by events, acts, or omissions not directly attributable to Decisions shall not constitute breach of the availability provisions set forth in Section 4.2. Decisions shall use all commercially reasonable means to prevent, remedy and repair any such interruption.

4.4 Support Request Content. Licensee shall include with the submission of any Support Request to Decisions, all information reasonably ascertainable by Licensee that is material and relevant to an investigation of the cause or resolution of the issue being reported. If available and ascertainable, such information shall include, without limitation, the following:

  1. Issue Description. A reasonably detailed description of the Licensed Program error or failure, including descriptions of the expected behavior and observed behavior;
  2. Licensed Program Details. The name and version number of the Licensed Program to which the Support Request pertains;
  3. Operating Environment. A description of the hardware/operating system environment in which the Licensed Program produced the reported error or failure, including version numbers where applicable and relevant;
  4. Integrated Software. Name, version number, and configuration details of any third-party technology (including software and hardware) with which the Licensed Program interacts where such third-party technology may rationally be related to the issue being reported or where Decisions support personnel expressly request such information;
  5. Diagnostics. All diagnostic information produced or recorded by the Licensed Program where such information is rationally related to the issue being reported or where Decisions support personnel expressly request such information. Diagnostic information, as referenced herein, shall include without limitation, descriptions or screen captures of any error messages displayed by the Licensed Program, and log files created or updated by the Licensed Program; and
  6. Requested Information. All information reasonably requested by Decisions support personnel for the purpose of investigating, diagnosing, or otherwise pursuing a resolution to the reported issue.

4.5 Support Request Initial Response. Decisions’ minimum initial response to each Licensee Support Request shall include:

  1. Review of the Support Request by Decisions support personnel; and
  2. Confirmation of review by Decisions, transmitted to Licensee via email; or through a designated web-based support program. The confirmation shall include one or more of the following:
    1. Instructions or guidance in the installation, configuration, operation, or use of the Licensed Program, reasonably calculated to resolve the reported issue;
    2. Instructions for electronically downloading a file or files that are reasonably calculated to resolve the reported issue upon installation by Licensee;
    3. Requests for additional information reasonably believed by Decisions support personnel to be necessary for accurate or efficient diagnosis or resolution of the reported issue;
    4. Requests by Decisions support personnel for Licensee to undertake an action or series of actions reasonably calculated to resolve the reported issue or to produce diagnostic or other information necessary or helpful in diagnosing or resolving the reported issue;
    5. An advisement that Decisions support or development personnel are engaged or will engage in diagnosing the root cause of the reported issue, or are engaged or will engage in developing a resolution to the reported issue that may include creation of new computer program code to be made available to Licensee upon completion and an estimated timeline for completion; or
    6. An advisement that the Support Request calls for enhanced functionality or new functionality not within the scope of the operational features of the Licensed Program as Licensed by Licensee. Any further action undertaken in response to such Support Requests shall be undertaken, if at all, at the sole discretion of Decisions.

4.6 Support Request Initial Response Schedule. Decisions shall make its initial response to all Support Requests according to the schedule set forth in Table 4.6.1

 

Table 4.6.1

Support Request Severity

Severity Definition

Initial Response Time (From time of report submission to Decisions)

Emergency

A critical error or failure by the Licensed Program is causing extreme, severe and unreasonable difficulty to Licensee, depriving Licensee of all or virtually all production value and use of the Licensed Program

One (1) hour

Defect/Feature Enhancement

A non-critical error or failure by the Licensed Program that does not deprive Licensee of all or virtually all production value and use of the Licensed Program; or a request for behavior that is not currently intended in the version of the Licensed Program giving rise to the reported issue

One (1) business day

Configuration/Usage Guidance

Licensee seeks brief assistance, not requiring the physical presence of Decisions staff on Licensee site, regarding Licensed Program best practices or configuration

One (1) business day

 

4.7 Support Request Resolution Schedule. As to all Support Requests not resolved by Decisions’ initial response as set forth in Sections 4.5 and 4.6 above, Decisions shall pursue final resolution according to the prescribed actions set forth in table 4.7.1.

 

Table 4.7.1

Support Request Severity

Prescribed Action

Emergency

 

1.  Upon receipt of the Support Request, Decisions support personnel shall immediately report the general nature of the reported issue to a senior developer or senior support engineer.

 

2.  Decisions shall, in light of the totality of circumstances, dedicate an appropriate number of personnel to actively pursue resolution of the reported issue by all commercially reasonable means.

 

3.  Dedicated staff shall maintain active pursuit of resolution UNTIL

 

a.   Decisions provides to Licensee, a final resolution, accepted by Licensee; or

 

b.  Decisions provides to Licensee, a temporary resolution, accepted by Licensee and accompanied by a plan to provide a permanent resolution within a reasonable time; or

 

c.  Decisions and Licensee mutually agree to a resolution plan

Defect/Feature Enhancement

1.  Decisions shall cooperate with Licensee to formulate, schedule, and execute a mutually agreeable resolution plan that is reasonable inlight of all relevant factors.

 

2.  Resolution may include, without limitation, release of modified or added Licensed Program functionality in subsequent Updates, release of modified or added Licensed Program functionality made available only to Licensee, or any other mutually agreeable and reasonable means.

Configuration/Usage Guidance

Decisions shall cooperate with Licensee to provide a mutually agreeable resolution within a reasonable amount of time.

 

 

ARTICLE V

MAINTENANCE

Subject to and conditioned upon Licensee’s payment of the Subscription Fees and compliance with all terms of this Agreement, Decisions shall provide the following Maintenance Services to Licensee commencing on the Effective Date and ending upon the earlier to occur of expiration or termination:

 

5.1 Updates. Decisions shall make available to Licensee all Updates released by Decisions on or after the Effective Date.

  1. ANY UPDATES INSTALLED BY LICENSEE SHALL BE DEEMED PART OF THE LICENSED PROGRAM AND SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
  2. Delivery. Updates shall be made available to Licensee by download from Decisions’ commercial website, or as otherwise agreed by the Parties on a case-by-case basis. Decisions shall give written notice to Licensee when any Update is made available to Licensee.

 

 

ARTICLE VI

WARRANTIES AND DISCLAIMERS

 6.1 Warranty Restrictions and Limitations

  1. External Sites. The Licensed Program may contain links to, or otherwise may allow Licensee to connect to and use certain third-party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with the Licensed Product. If Licensee chooses to access and use such Other Services, be advised that this use is governed solely by the terms and conditions of such Other Services, and Decisions does not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Licensee’s data. Decisions is not liable for any damage or loss caused or alleged to be caused by or in connection with Licensee’s access or use of any such Other Services, or reliance on the privacy practices or other policies of such Other Services.
  2. Integration. The Licensed Product may contain features that enable various Other Services (such as social media services like Facebook and Twitter) to be directly integrated into the Licensed Product. To take advantage of these features, Licensee will be required to register for or log into such Other Services on their respective websites. By enabling third-party services within the Licensed Product, Licensee is allowing Decisions to pass Licensee’s user log-in information to these Other Services for this purpose.

 

6.2 Disclaimer. THE LICENSED PROGRAM, DOCUMENTATION AND SERVICES ARE “AS IS.” DECISIONS MAKES NO WARRANTIES WITH RESPECT TO THE LICENSED PROGRAM OR SERVICES. DECISIONS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSEE MAKES NO WARRANTY OF ANY KIND THAT THE DECISIONS IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. NO INFORMATION OR ADVICE OBTAINED BY LICENSEE FROM DECISIONS OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

 

 

 

ARTICLE VII

 SUBSCRIPTION FEES AND PAYMENT PROVISIONS

7.1 Orders. In the event payment and delivery terms set forth in relevant Order Forms conflict with the payment and delivery terms and obligations set forth in this Agreement, the terms of the Order Form will prevail, provided that Order Forms containing such terms are duly executed by both Parties.

7.2 Subscription Fees. Licensee shall pay to Decisions the Subscription Fees as set forth herein. Any changes to Subscription Fees or the Subscription type which Decisions makes will not apply to Licensee with respect to any fully paid Term – any such changes will become effective as of the next Renewal Terms. All Subscription Fees are non-refundable.

7.3Payment terms. All payments shall be due and payable by Licensee to Licensor net thirty (30) days from the date of the invoice. Any undisputed amounts payable by Licensee which remain unpaid after the due date shall be subject to a late charge equal to 1.5% per month from the due date until such amount is paid or the highest amount allowed by applicable law. All invoice disputes must be submitted by Licensee to Decisions in writing within fifteen (15) days of date of invoice.

7.4 Invoice dispatch. Unless otherwise agreed in writing by the Parties, Decisions will submit invoices to Licensee via email directed to the email address of the Licensee contact set forth in the relevant Order Form.

7.5 Taxes

  1. U.S. Taxes. Licensee agrees to pay all sales, use, VAT and other consumption taxes, personal property taxes and other taxes (other than those based on Decisions’ net income and any employment taxes, payroll taxes, social security taxes, FICA, unemployment and disability taxes, FUTA, Medicare, self-employment taxes, estimated taxes, and other applicable withholdings) unless Licensee provides valid written proof of exemption.
  2. Foreign Taxes. Use or installation of the Licensed Program outside the United States may subject Licensee to tax liability by a taxing authority other than and in addition to any United States taxing authority. Licensee shall remit to Decisions the actual amounts owed to Decisions without withholding taxes or other assessments by authorities in any non-United States location, which withholding taxes or assessments Licensee agrees to pay. Licensee shall promptly furnish Decisions with certificates evidencing payment of such amounts.

 

 

ARTICLE VIII

TERM AND TERMINATION

8.1 Term. The initial term of the License granted pursuant to this Agreement shall be for one (1) year commencing on Effective Date (the “Initial Term”). Thereafter, the License will automatically renew for successive one (1) year terms (each a “Renewal Term”), subject to Licensee’s payment of the Subscription Fee, unless either party provides at least thirty (30) days written notice priorto the end of the then-current term of its intent not to renew the License.

8.2 Termination by Material Breach. Either party may terminate this Agreement in the event of a material breach of this Agreement by the other party that is not cured within thirty (30) days of written notice thereof from the other party. Without limitation, the following events shall constitute a material breach: (a) violation by Licensee of the terms of the License; (b) failure by Licensee to pay any amount owed to Decisions when due; (c) breach of any warranty set forth in Section 5 of this Agreement; or (d) violation by either party of the confidentiality duties set forth in Section 8.1 (Confidential Information) of this Agreement.

8.3 Termination by Financial Distress. Either party may terminate this Agreement immediately, without written notice if the other Party (1) becomes insolvent, (2) becomes the subject of any voluntary or involuntary proceeding under the U.S. Bankruptcy Code or state insolvency proceeding and such proceeding is not terminated within thirty (30) days of its commencement,

(3) obtains appointment by any court of competent jurisdiction of a temporary or permanent receiver, custodian, trustee or other officer having similar powers for the Party or the Party’s business who is not removed within thirty (30) days, (4) or ceases to be actively engaged in business. Upon the occurrence of any of the above-listed events, the Party in financial distress shall immediately notify the other Party in writing. Failure to do so shall constitute a material breach of this Agreement, and shall result in automatic termination of this Agreement

8.4 Effect of Expiration or Termination. Upon expiration or termination of this Agreement, the provisions of this Section 8.4 will take immediate effect:

  1. Immediate Surrender of Rights. Licensee shall immediately cease access to and use of the Licensed Program and Documentation, return all copies thereof to Decisions, and surrender all rights, licenses and privileges granted under this Agreement.
  2. Payment Obligations. Licensee shall promptly pay to Decisions all undisputed amounts due and owing. No termination of this Agreement shall release Licensee from any obligation to pay to Decisions, any amount that has accrued or will accrue or become payable prior to or on the date of expiration or termination.
  3. Tangible Property. Each Party shall immediately cease using and accessing and return all property in its possession belonging to the other Party, including without limitation all copies and tangible embodiments of Confidential Information.
  4. No Obligation to Provide Services. Decisions has no further obligation to provide the Services to Licensee. In no way limiting the foregoing, Licensee shall immediately cease submitting Support Requests, all pending Support Requests shall be automatically terminated, regardless of whether or not resolved or remedied, Decisions shall have no further obligation with respect to any Support Request, and Decisions shall have no further obligation to provide or make available Updates to Licensee.

 

8.5 Survival of Terms. The following provisions survive expiration or termination of this Agreement: Section 2.2 (Restrictions), Section 3.2 (Audit), Article VII (Subscription Fees and Payment Provisions), Section 8.4 (Effective of Expiration or Termination), Section 8.5 (Survival of Terms), Article IX (Indemnification) or Article X (General Terms).

 

ARTICLE IX

INDEMNIFICATION

9.1 Indemnification by Decisions. Decisions will indemnify and hold Licensee harmless Decisions, from and against any and all claims, actions or demands, including, without limitation, reasonable legal, expert and professional services fees by a third party against Licensee by reason of Licensee’s use of the Licensed Program or Documentation as permitted hereunder, brought by a third party alleging that the Licensed Product, Documentation or Service infringes upon a valid U.S. patent or copyright, or misappropriates a third party’s trade secret (such claims, collectively, “Claim”). Decisions shall, at its expense, defend such Claim and pay damages finally awarded against Licensee in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Decisions for such defense; provided that (i) the Licensee promptly notify Decisions of the threat or notice of such Claim, (ii) Decisions will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such Claim, and (iii) Licensee shall fully cooperate with Decisions in connection therewith. If Licensee’s use of the Licensed Product or Documentation has become, or in Decisions’ opinion is likely to become, the subject of any such Claim, Decisions may at its option and expense (a) procure for Licensee the right to continue using the Licensed Program, Documentation as set forth hereunder; (b) replace or modify the Licensed Product or Documentation to make it non-infringing; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement. Decisions will have no liability or obligation under this Section 9.1 with respect to any Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by Licensee; (ii) modification of the Licensed Program by anyone other than Decisions; or (iii) the combination, operation or use of the Licensed Program with other hardware or software where the Licensed Program would not by itself be infringing.

The provisions of this Section 9.1 state the sole, exclusive and entire liability of Decisions to Licensee and constitute Licensee’s sole remedy with respect to a Claim.

9.2 Indemnification by Licensee. Licensee agrees to defend, indemnify, and hold harmless Decisions from and against any claims, actions or demands, including, without limitation, reasonable legal, expert and professional services fees, arising or resulting from Licensee’s breach of this Agreement, or Licensees’ and Licensees’ end users’ access to, use, misuse or illegal use of the Licensed Program. Decisions will provide Licensee notice of any such claim, suit, or proceeding. Decisions reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Licensee agrees to cooperate with any reasonable requests to assist Decisions’ defense of such matter.

9.3 Limitation of Liability.

  1. NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

  2. LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DECISIONS’ (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THIS AGREEMENT CLAIMED BY LICENSEE OR ANY THIRD PARTY ARISING FROM THE LICENSED PROGRAM, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE FOR THE LICENSED PROGRAM DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9.3.B IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF DECISIONS WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

  3. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE STATES, DECISIONS’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
  4. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITED LIABILITY PROVISION SHALL OPERATE IN FULL FORCE AND EFFECT NOTWITHSTANDING ANY FINDING THAT ANY OR ALL REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT FAIL IN THEIR ESSENTIAL PURPOSE.

 

 

ARTICLE X

GENERAL TERMS

10.1 Confidential Information. The Parties understand and acknowledge that each of them (and their respective employees, agents, consultants and subcontractors) may have disclosed to it, in connection with the rendition of services and performance of their obligations of this Agreement, Confidential Information of the other party. Each party shall take all reasonably necessary and prudent precautions to safeguard the Confidential Information of the other party against disclosure to any unauthorized person or entity, including unauthorized agents and employees in the party’s own employment except to the extent required by law or for the purpose of implementation ofthis Agreement. As used herein, “Confidential Information” means: (a) any nonpublic information disclosed by either Party (the “Discloser”) to the other Party (the “Recipient”) in any form, including written, electronic, photographic or other tangible form, or information provided orally or visually, and (b) notes and other records made from or about such information. Confidential Information disclosed in a tangible or electronic form may be marked or otherwise identified by Discloser with a legend as being confidential or proprietary, but the absence of such mark or identification will not affect Recipient’s obligations to treat such information as Confidential Information. A party’s Confidential Information shall not include information that is or becomes a part of the public domain through no act or omission of the other party; was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; is lawfully disclosed to the other party by a third party without restriction on disclosure; or is independently developed by the other party.

10.2 Intellectual Property Rights. Each Party shall maintain all rights, title and interest in and to all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). Decisions shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Licensed Program or otherwise use any suggestions, enhancement requests, recommendations or other feedback Decisions receives from Licensee. Decisions, and Decisions’ other product and service names, and logos used or displayed on the Licensed Program are registered or unregistered trademarks of Decisions (collectively, “Marks”), and Licensee may only use such Marks for identification as a Decisions customer and user of the Licensed Program; provided Licensee does not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Decisions, its services or products.

10.3 Reserved.

10.4 Governing Law. This Agreement and all claims, controversies, and causes of action arising out of or relating to this Agreement, shall be governed by the laws of the Commonwealth of Virginia, United States excluding its choice of law rules. The Uniform Computer Information Transactions Act shall not apply. Licensee hereby express agrees to submit to the exclusive personal jurisdiction of the federal and state courts of the Commonwealth of Virginia, for the purpose of resolving any dispute relating to this Agreement or Licensee’s access to or use of the Licensed Program.

10.5 Jurisdiction. Any legal action or proceeding relating to this Agreement shall be instituted in the state or federal court whose jurisdiction encompasses Virginia Beach, Virginia, United States. Decisions and Licensee agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

10.6 Dispute Resolution and Attorneys’ Fees. All disputes between the parties that arise out of or in connection with this Agreement or its interpretation, operation, breach, termination or cancellation shall be settled by means of negotiation between the parties. If the parties cannot amicably settle any such dispute, then such dispute shall be resolved through the courts. Either party may exercise any legal right and remedy available to it, whether at law or in equity, to enforce any provision of the Agreement. In the event either party commences legal action to enforce any term of the Agreement, the prevailing party in such proceeding will be entitled, in addition to any other rights and remedies it may have, to recover its reasonable costs, expenses, and attorneys’ fees incurred in such proceeding from the other party.

10.7 Notices. All notices, requests, demands, waivers and other communications required or permitted hereunder must be in writing and shall be deemed to have been duly given when: (a) delivered by hand with a signed acknowledgement of receipt or confirmed facsimile transmission; (b) when delivered by electronic mail, twenty-four (24) hours after the time and date the electronic mail was sent; (c) one (1) day after delivery by overnight delivery as evidenced by a delivery receipt; or

(d) three (3) days after being mailed by commercial courier service, certified or registered mail, return receipt requested, with postage prepaid to the Party at the address and to the person designated below, as may be changed from time to time with written Notice to the other party:

If to Licensee: address listed on Purchase Order If to Decisions: Decisions, LLC

4588 Virginia Beach Blvd., Suite 104 Virginia Beach, VA 23462

10.8 Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the Parties herein set forth.

10.9 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach of the same or any other term of the Agreement.

10.10 Export Administration. Licensee agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to assure that neither the Licensed Program nor any direct product thereof are (1) exported, directly or indirectly, in violation of Export Laws; or

(2) are intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.

10.11 Interpretation. The Parties acknowledge that they have participated jointly in the negotiation and drafting of this Agreement. In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Unless the context requires otherwise, all words used in this Agreement in the singular shall extend to and include the plural, all words in the plural shall extend to and include the singular and all words in any gender shall extend to and include all genders.

10.12 Captions and Headings. The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.

10.13 Succession. The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of each party.

10.14 Entire Agreement. This Agreement, together with the agreements and forms referenced herein, constitute the complete agreement between the Parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement with respect to the subject matter hereof. This Agreement may not be modified or amended except ina writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement.

10.15 Successors and Assigns. Decisions shall have the right to subcontract, delegate or assign its rights or obligations under the Agreement to any other person without the prior written consent of Licensee, which consent may be withheld in Licensee’s sole discretion.

10.16 No Joint Venture, Partnership or Alter Ego. Nothing contained in the Agreement, any document executed in connection herewith or any other agreement with any other party shall be construed as making Decisions and Licensee partners, agents, joint ventures or alter egos of each other. Decisions shall not obligate Licensee for any debts or liabilities, except those expressly assumed by Licensee hereunder. Decisions may not represent that Decisions has authority to legally bind Licensee.

10.17 Federal Government End Use Provisions. If Licensee is a U.S. federal government end user, the Licensed Program is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R.

12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Licensed Program is licensed to Licensee with only those rights as provided under the terms and conditions of this Agreement.

10.18 Non-Solicitation. During the term of this Agreement and for a period of one (1) year after the termination of this Agreement (whether the Agreement expires or is terminated for any reason whatsoever and regardless of which party terminates the Agreement), Licensee shall not hire, employ, recruit, solicit for employment, or assist in soliciting or hiring any person employed by Decisions within the ninety (90) day period immediately preceding Licensee’s hiring, employment, recruitment or solicitation of such person and who provided any services to Licensee while employed by Decisions. Licensee acknowledges and agrees that, if it violates this provision, Decisions will suffer significant harm as a result of the loss of the employee’s services, the costs and resources expended in replacing the employee, and the loss of revenue associated with the employee’s services rendered on behalf of Decisions. Therefore, in the event that Licensee breaches this provision, Licensee shall pay to Decisions the greater of an amount equal to fifty percent (50%) of the annual salary paid by Decisions to the employee hired by Licensee or $50,005. Notwithstanding any other provision of this Agreement, nothing shall restrict the right of Licensee to hire a Decisions employee pursuant to written authorization from Decisions.

10.19 Privacy Policy. Decisions shall abide by its Privacy Policy.

 

 

Exhibit A

Product Description

The Decisions Automation Platform provides a complete set of tools for building software applications. Every element of the Platform is reusable, streamlining application development. The Platform includes a full featured graphical workflow designer and business rule engine for modeling and automating business process. An easy to use drag-and- drop forms designer allows for the collection of data from end users. All data that is collected through the process, end user interaction, and integrations with external data sources is leveraged by the Decisions Reporting and Dashboard Engine.

The main functional areas of the Decisions Platform include:

 

  • Flow Execution Engine
  • Business Rule Engine
  • Forms Designer
  • Reports and Dashboard Engine
  • Role and Scope Based Security Model
  • Integrations with Web Service and Database Providers
  • Real-time and Schedule Based Notifications

 

The Decisions High Availability product includes two Decisions Platform Servers and the ability to configure these servers in a failover or clustered model.