CommunityWFM Master Software License Agreement

CommunityWFM Software Licensing Terms and Conditions

This Master Software License and Maintenance Agreement is entered into as of September 15, 2020 (“Effective Date”) by and between the Workforce Management Software Group, Inc., a Florida S Corporation (hereinafter referred to as “CommunityWFM”), with offices located at 3400 Waterview Parkway, Suite 325, Richardson, TX 75080, agrees to provide the CommunityWFM workforce management software (the “Software”, or “Licensed Program”) to the legal entity or individual that executes an order to purchase our product (hereinafter referred to as “Customer”). CommunityWFM and Customer are referred to herein individually as a “Party” and collectively as the “Parties”.

Definitions. For purposes of this Agreement, the terms listed below have the meaning indicated beside them:

1.1
1. “Affiliate” means, when used with respect to a Party, any legal entity controlled by, controlling, or under common control with that Party. “Control” means (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, person, or other entity through the ownership of voting securities; or (b) direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of voting or equity interests in the other corporation, person, or entity.
1.2
1. “Confidential Information” means (a) with respect to either party, any information disclosed by such Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, whether disclosed prior to, on, or after the Effective Date, which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information, and (b) in the case of CommunityWFM, the CommunityWFM Software.
1.3
1. “Documentation” means any specifications or user manuals that accompany the CommunityWFM Software. It also includes any training materials or any other documentation provided by CommunityWFM.
1.4
1. “Indemnified Parties” means, when used with respect to a Party, such Party and its Affiliates, each of their officers, directors, agents, employees, legal representatives, successors and assigns.
1.5
1. “Services” means the consulting, installation, implementation, training, or other services (excluding Support Services) to be provided by CommunityWFM pursuant to this Agreement as set forth in a Statement of Work or other document as agreed to between the parties.
1.6
1. “Support Services” means the maintenance services offered by CommunityWFM or its authorized representatives on the Software during the Term identified in Exhibit B hereto.
1.7
1. “CommunityWFM Software” means the proprietary software of CommunityWFM which is provided to Customer as a permanent, non-exclusive, and non-transferable license to use the Community software as set for in this Agreement. CommunityWFM Software shall be provided by CommunityWFM or one of its distributors or resellers which are authorized to provide CommunityWFM Software.
1.8
1. “Term” means that the term identified in the Purchase Order or other Ordering Document will commence on the installation or activation date and shall continue until terminated by either party in accordance with the terms and conditions of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, CommunityWFM shall have the right to terminate the license for the CommunityWFM Software granted hereunder by giving written notice of termination to Customer if Customer fails to pay the specified license Fees for the CommunityWFM Software when due or fails in any other material respect to comply with its obligations regarding the use and protection of the CommunityWFM Software and Documentation, and such failure to pay or to comply is not remedied within ten (10) business days after Customer receives written notice thereof from CommunityWFM.

Ordering of Software and Services and Delivery/Installation.

1. By the issuance of a purchase order, a Statement of Work or other ordering document acceptable to CommunityWFM (such as Exhibit A), Customer may purchase from CommunityWFM the Software Licenses, Services and Support Services to be provided by CommunityWFM. Any terms and conditions included in a Purchase Order shall be deemed solely for the information of Customer and no such term or condition shall be binding on CommunityWFM, and no action by CommunityWFM shall be construed as binding or estopping CommunityWFM with respect to such term or condition.
2. After CommunityWFM's receipt and acceptance of a Purchase Order, CommunityWFM shall remotely install the Software to the Customer site or sites designated in such Purchase Order (“Site(s)”). If the software is not installed electronically, Customer shall be responsible for all shipping and insurance costs for the shipment of the Software and Documentation to the applicable Site. Delivery of the Products shall be F.O.B. CommunityWFM's premises (“F.O.B. Site”). CommunityWFM shall provide email notification to Customer of the date on which the CommunityWFM Software becomes available ("Availability Date"). Such Availability Date shall be deemed the shipment date of the CommunityWFM Software for all purposes under the Agreement.
3. Prior to the date agreed by the Parties for installation of Software, Customer shall provide CommunityWFM or CommunityWFM’s designated installer with reasonable access to the installation site ("Installation Site") for purposes of determining Installation Site readiness, and shall designate an individual on Customer's staff to serve as a contact person for all Installation Site preparation and installation issues. Customer shall, at its own expense, prepare and make available the Installation Site according to CommunityWFM 's instructions. As between CommunityWFM and Customer, Customer shall be responsible for obtaining, at its cost, any licenses, permits or similar permissions that may be required in connection with the installation of the Products at each Site.

Support Services. Customer may purchase Support Services (as defined in Exhibit B attached hereto and incorporated herein by this reference) for the CommunityWFM Community Software provided hereunder.
Warranty. CommunityWFM warrants that upon installation of the Software, the Software will be free from defects in material and workmanship under conditions of normal use and will operate substantially in accordance with the applicable Documentation.

1. Should the CommunityWFM Software fail to comply with the warranty, Customer’s sole and exclusive remedy and CommunityWFM’s sole obligation with respect to the Software shall be, in CommunityWFM’s sole discretion, to repair or replace the Software at no additional charge to Customer. With respect to any Software that is subject to warranty pursuant to this Warranty, CommunityWFM shall, at its cost, provide inspection and labor Services, if such Services are necessary to perform the repair or replacement of the Software.
2. The warranty does not include damage to Software resulting from a cause other than a defect or malfunction, including: (a) improper storage, misuse or unreasonable use; (b) neglect, accident, fire, lightning, power or air conditioning failure, unusual physical or electrical stress caused by forces or elements external to the Software, or other hazard; or (c) installation, testing, operation, maintenance, servicing or modification of the Software or part thereof by anyone other than CommunityWFM or a CommunityWFM -authorized technician.
3. CommunityWFM warrants that all Services and Support Services performed pursuant to this Agreement will be performed in a professional and workmanlike manner, consistent with reasonable and generally accepted professional standards and practices prevailing.
4. COMMUNITYWFM DOES NOT WARRANT THAT ANY INFORMATION, COMPUTER PROGRAM, ITS EFFORTS OR ANY PRODUCTS, OTHER SERVICES, OR SUPPORT SERVICES PROVIDED BY COMMUNITYWFM WILL FULFILL ANY OF CUSTOMER'S PARTICULAR PURPOSES OR NEEDS, NOR DOES COMMUNITYWFM WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED IN THIS WARRANTY, NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY COMMUNITYWFM TO CUSTOMER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE SPECIFICALLY EXCLUDED.

Software License

1. With respect to CommunityWFM Software for which Customer has purchased and paid in full under this Agreement, CommunityWFM grants to Customer a non-exclusive, perpetual, worldwide, non-transferable, fully-paid license to use the CommunityWFM Software, together with the Documentation, features and agents (as the Software is licensed on a scheduled agent basis) to support up to the number of total users for which Customer has paid the license Fees. Unless specified elsewhere, sites, supervisors, schedulers and administrative users shall not require a license but must abide by the terms of this License. Such use shall be on the terms and subject to the conditions set forth in this Agreement. Customer's use of any Third-Party Software shall be governed by the terms of any license agreements that may accompany such Third-Party Software.
2. No title or ownership of the CommunityWFM Software or Documentation is transferred to Customer by way of this Agreement. Customer has a license to use the CommunityWFM Software pursuant to the terms of this Agreement. Ownership of the CommunityWFM Software, Documentation, and all modifications, enhancements, improvements, adaptations, translations and derivative works thereof and any other intellectual property rights therein and thereto shall remain at all times with CommunityWFM.
3. The CommunityWFM Software and Documentation may contain material that is protected by United States and international copyright law and trade secret law, and by international treaty provisions. All rights not granted to Customer herein are reserved to CommunityWFM. Customer shall not remove any proprietary notice of CommunityWFM from any copy of the CommunityWFM Software or Documentation. Customer may make a reasonable number of copies of the Documentation, provided such reproductions shall include any copyright or proprietary labels, legends or notices placed upon or included in the Documentation by CommunityWFM. Customer may make one (1) back-up archival copy of the CommunityWFM Software for disaster recovery purposes, provided Customer reproduces all confidentiality and proprietary notices on such copy.
4. Customer shall not publish, display, disclose, rent, lease, modify, loan, distribute, alter or create derivative works based on the CommunityWFM Software or any part thereof. Customer shall not reverse engineer, decompile, translate, adapt, or disassemble the CommunityWFM Software, nor shall Customer attempt to create the source code from the object code for the CommunityWFM Software.

Confidential Information. If the Parties to this Agreement have executed a Mutual Non-Disclosure Agreement “MNDA”, such Agreement dated (not applicable) is incorporated herein by reference and shall remain in full force and effect until the cancellation or termination of this Agreement and the confidential information shall be disposed of in the manner designated therein. Cancellation of this Agreement, purchase order, statement of work or other order does not relieve the Parties of the Confidentiality requirements therein. The following paragraphs shall apply only if an MNDA has not been executed between the parties and incorporated into this Agreement.

6.1
1. The Receiving Party shall keep the Disclosing Party's Confidential Information confidential and secure and shall use at least the same standard of care to protect the Disclosing Party's Confidential Information as the Receiving Party employs for the protection of its own proprietary information, but in no event less than a reasonable standard of care. The Receiving Party will not disclose the Disclosing Party's Confidential Information to any third party and shall not use or reproduce in any form the Disclosing Party's Confidential Information, except as required to exercise its rights and discharge its responsibilities set forth in this Agreement. The Receiving Party shall promptly notify the Disclosing Party in writing of any actual or suspected loss or unauthorized use, disclosure, or access of the Disclosing Party’s Confidential Information of which it becomes aware, and take all steps necessary to limit, stop, or otherwise prevent such loss or unauthorized use, disclosure, or access.
6.2
1. The term "Confidential Information” does not include any information as to which the Receiving Party is able to demonstrate: (a) is, or after the date of disclosure under this Agreement becomes, generally available to the public other than as a result of any actions or omissions of the Receiving Party; (b) was already known by the Receiving Party prior to the time of disclosure under this Agreement; (c) was disclosed to the Receiving Party on a non-confidential basis by a third party that did not owe an obligation of confidentiality to the Disclosing Party; or (d) is developed by the Receiving Party, independently without use of or reference to the Disclosing Party's Confidential Information.
6.3
1. The Receiving Party will restrict the possession, knowledge, and use of the Disclosing Party’s Confidential Information to its officers, directors, employees, professional advisors, or subcontractors (collectively, “Representatives”) who have a need to know such Confidential Information for purposes directly related to the exercise of its rights and discharge of its responsibilities as set forth in this Agreement. Prior to such disclosure, the Receiving Party will inform such Representatives of the confidential nature of the Disclosing Party's Confidential Information and the non-disclosure requirements and limitations on use set forth herein. Without limiting the effect of the previous sentences in this Section 8.3, the Receiving Party shall take reasonable actions, legal or otherwise, necessary to cause its Representatives to comply with the provisions of this Section 8 and to prevent any unauthorized disclosure of the Disclosing Party’s Confidential Information by any of them.
6.4
1. Notwithstanding anything to the contrary contained herein, the Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to a request or order made pursuant to applicable law, regulation or legal process, provided that (a) the Receiving Party gives the Disclosing Party prompt written notice of such request or order so that the Disclosing Party has an opportunity to seek a protective order, confidential treatment, or other appropriate remedy to such request or order; (b) the Receiving Party provides the Disclosing Party with all reasonable assistance, at the Disclosing Party’s expense, in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information; and (c) the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or required by the court, tribunal, governmental agency or other authority, subject to any protective order or confidential treatment obtained by the Disclosing Party.
6.5
1. Each Party acknowledges that the unauthorized disclosure or use of the Disclosing Party’s Confidential Information by the Receiving Party would irreparably damage the Disclosing Party in such a way that adequate compensation could not be obtained from monetary damages in an action at law. Accordingly, the actual or threatened unauthorized disclosure or use of any Confidential Information shall give the Disclosing Party the right to seek injunctive relief restraining such unauthorized disclosure or use, without the necessity of proving actual damages, in addition to any other remedy otherwise available to the Disclosing Party.

Indemnification.

7.1
1. Community shall indemnify, defend, and hold harmless Customer and the Customer Indemnified Parties from and against any loss, cost, expense, or liability ("Losses") resulting from or arising out of a claim brought by a third party ("Third Party Claim") against Customer or any of the Customer Indemnified Parties to the extent that such Third-Party Claim alleges the infringement of such third party's U.S. patent or copyright by the CommunityWFM Software. The foregoing indemnity shall not apply if the infringement arises out of: (1) specifications or designs furnished by Customer and implemented by CommunityWFM at Customer's request; (2) the CommunityWFM Software being modified by, combined with, added to, interconnected with and/or used with any equipment, apparatus, device, data, or software not supplied or approved by CommunityWFM; (c) the modification to the CommunityWFM Software by any person or entity other than CommunityWFM or a CommunityWFM authorized technician; or (d) misuse of the CommunityWFM Software (each of 7.1(a) through 7.1(d), an "Exclusion").
7.2
1. If a Third Party Claim under Section 7.1 above has occurred, or in CommunityWFM's opinion is likely to occur, CommunityWFM shall, at CommunityWFM's option and expense do one of the following: (a) procure for Customer the right to continue using the affected CommunityWFM Software; (b) replace with non-infringing alternates or modify the relevant CommunityWFM Software so that it becomes non-infringing but its functionality after modification is substantially equivalent; or (c) accept the return of the affected CommunityWFM Software, and refund to Customer the fees for the affected CommunityWFM Software depreciated or amortized by an equal annual amount over a three (3) year period beginning from the date of installation of the affected CommunityWFM Software. The collective obligations of CommunityWFM pursuant to Section 7.1 and this Section 7.2 state the sole and exclusive liability of CommunityWFM, and Customer's sole and exclusive remedy, with respect to intellectual property infringement or misappropriation by the CommunityWFM Software.
7.3
1. Customer shall indemnify, defend and hold harmless CommunityWFM and the CommunityWFM Indemnified Parties from and against any Losses resulting from or arising out of a Third Party Claim brought against CommunityWFM or any of the CommunityWFM Indemnified Parties to the extent that such Third-Party Claim alleges the infringement of a third party's U.S. patent or copyright and is based upon an Exclusion.
7.4
1. Promptly after a Party seeking indemnification obtains knowledge of the existence or commencement of a Third Party Claim for which it is entitled to be indemnified under this Section 9, the Party to be indemnified (“Indemnified Party”) will notify the other Party (“Indemnifying Party”) of such Third Party Claim in writing, provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent that the rights of the Indemnifying Party are actually prejudiced thereby. The Indemnifying Party will assume the defense and settlement of such Third-Party Claim; provided, however, that the Indemnified Party may join in the defense and settlement of such Third Party Claim and employ counsel at its own expense, and will reasonably cooperate with the Indemnifying Party in the defense and settlement of such Third Party Claim. The Indemnifying Party may settle any Third-Party Claim without the Indemnified Party’s written consent unless such settlement: (a) does not include a release of all covered claims pending against the Indemnified Party; (b) contains an admission of liability or wrongdoing by the Indemnified Party; or (c) imposes any obligations upon the Indemnified Party other than an obligation to cease using any infringing items.

Limitation of Liability. SUBJECT TO SECTION 8.3 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR THE INDEMNIFIED PARTIES OF SUCH PARTY) FOR:

8.1
1. ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING LOSS OF USE, LOSS OF OR DAMAGE TO RECORDS OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, REVENUE AND/OR PROFITS, SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER SUCH PARTY HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
8.2
1. DIRECT DAMAGES IN EXCESS OF: (a) IN RESPECT OF ANY PRODUCT PURCHASED BY CUSTOMER, THE FEES ACTUALLY PAID BY CUSTOMER TO COMMUNITYWFM FOR SUCH PRODUCT ACTUALLY GIVING RISE TO SUCH LIABILITY; (b) IN RESPECT OF ANY SERVICES PURCHASED BY CUSTOMER FROM COMMUNITYWFM, THE FEES ACTUALLY PAID BY CUSTOMER TO COMMUNITYWFM FOR THE SERVICES ACTUALLY GIVING RISE TO SUCH LIABILITY; (c) IN RESPECT OF MAINTENANCE SERVICES, THE FEES FOR MAINTENANCE SERVICES ACTUALLY PAID BY CUSTOMER TO COMMUNITYWFM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT CREATING SUCH LIABILITY; AND (d) IN RESPECT OF ADDITIONAL SERVICES, ALL AMOUNTS ACTUALLY PAID BY CUSTOMER TO COMMUNITYWFM WITH RESPECT TO THE RELEVANT ADDITIONAL SERVICES GIVING RISE TO SUCH LIABILITY DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT CREATING SUCH LIABILITY.
8.3
1. The limitations in Sections 8.1 and 8.2 above shall not apply to: (a) damages occasioned by the breach by either Party of its obligations of confidentiality under Section 6 above; (b) either Party's indemnification obligations pursuant to Section 7 above; or (c) Customer's payment obligations under this Agreement.
8.4
1. No action, regardless of form, arising out of the transactions under this Agreement, may be brought by either Party more than two (2) years after the cause of action is discovered, or through the exercise of reasonable diligence, should have been discovered, by the claiming Party.

Term and Termination.

9.1
1. The initial terms of this Agreement shall be for one (1) year, or such other period of time as agreed in writing in advance by the parties, commencing upon the last of the execution dates or the effective date hereon and shall continue thereafter for one year periods as long as any Exhibit remains in effect unless such Exhibit is terminated by either party as provided for herein.
9.2
1. Either Party may terminate this Agreement or any Statement of Work for cause, upon written notice to the other Party setting forth the effective date of termination, if the other Party fails to cure a material breach thereof within thirty (30) days after receiving notice thereof.
9.3
1. Upon the termination of the license for the Software by CommunityWFM, Customer shall: (a) within thirty (30) days after the date of termination of the license, and at CommunityWFM's option, destroy or return to CommunityWFM all copies of the CommunityWFM Software and Documentation; and (b) upon the destruction or return of all copies of the CommunityWFM Software and Documentation, certify to CommunityWFM in writing that it has either destroyed or returned to CommunityWFM all copies of the CommunityWFM Software and Documentation. Additionally, in the event that either Party terminates this Agreement pursuant to Section 9.1 above, the terms and conditions of this Agreement shall survive and continue to govern Exhibit A, and any Purchase Orders or Statements of Work issued or executed, as applicable, prior to the effective date of termination of this Agreement.
9.4
1. Upon the termination of this Agreement or upon the earlier request of the Disclosing Party, the Receiving Party shall: (a) promptly return to the Disclosing Party all Confidential Information (and all copies thereof) of the disclosing Party, or upon written request from the Disclosing Party, destroy such Confidential Information and provide the Disclosing Party with written certification of such destruction; and (b) cease all further use of the Disclosing Party’s Confidential Information.
9.5
1. Either Party may terminate this Agreement, any Statement of Work, any Schedule upon providing at least sixty (60) days prior written notice at the end of the initial term or any renewal term of its intent not to renew.

Notices. All notices or other communications to be given pursuant to, or in connection with, this Agreement shall be in writing and shall be deemed received: (a) on the date of delivery, when delivered personally; (b) one (1) business day after deposit for next day delivery with a national overnight delivery service; or (c) on the earlier of the date of delivery or four (4) business days after mailing when mailed by registered or certified mail return receipt requested, postage prepaid, to the address of the other Party set forth in the first paragraph of this Agreement or such other address as a Party may by notice specify to the other Party. A copy of all notices to be provided to CommunityWFM hereunder shall be sent to the attention of its Chief Executive Officer.
Excusable Delays. CommunityWFM's obligation to perform within specific time parameters set forth in this Agreement shall be extended by the number of days of delay, if any, incurred as a result of acts or omissions of Customer, any acts of governmental authorities that directly interfere with CommunityWFM’s ability to perform under this Agreement (such as moratorium, embargo or delays in customs), acts of God, civil or military disturbances, transportation delays, inability to obtain materials or parts from suppliers, fire, windstorm or other natural disaster, theft, vandalism, power interruption or failure and other causes beyond the reasonable control of CommunityWFM.
General Provisions.

12.1
1. Neither Party shall have the right to assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding anything to the contrary contained herein, the Parties agree that CommunityWFM shall have the right to subcontract, in whole or in part, any of the Services or Support Services to be performed by CommunityWFM hereunder.
12.2
1. CommunityWFM hereby assigns to Customer all assignable warranties and indemnities that CommunityWFM receives from the manufacturers of Third-Party Software purchased by Customer hereunder.
12.3
1. It is expressly agreed that the Parties are acting hereunder as independent contractors and under no circumstances shall any of the employees of one Party be deemed the employees of the other Party for any purpose. This Agreement shall not be construed as authority for either Party to act for the other Party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other Party except to the extent and for the purposes expressly provided for and set forth herein.
12.4
1. Neither Party shall be deemed to be in default of any provision of this Agreement, or for failure in performance of its obligations hereunder (excluding payment obligations), resulting from acts or events beyond the reasonable control of such Party, including acts of God, civil or military authority, acts or threats of terrorism, civil disturbance, war, riot, strike or labor dispute (not related to either Party's workforce), fires, floods, or act of government (each a "Force Majeure Event"). Such Force Majeure Event, to the extent it prevents a Party’s performance or any other undertaking under this Agreement, will extend the time for performance for as many days beyond the applicable performance date as is required to correct the effects of such Force Majeure Event.
12.5
1. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include entities, corporate and otherwise; and (in each case) vice versa. The section headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement. Whenever the terms “including” or “include” are used in this Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of the items within such classification. For purposes of this Agreement, any in writing requirement shall not be satisfied by means of electronic correspondence, including e-mail.
12.6
1. All provisions of this Agreement are severable, and the unenforceability or invalidity of any of the provisions of this Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement.
12.7
1. CommunityWFM and Customer agree that they will individually obtain any export licenses that may be required under applicable U.S. laws prior to any export or re-export of Products or information provided under this Agreement.
12.8
1. No provision of this Agreement shall be deemed waived and no breach shall be deemed excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. No consent by either Party to, or waiver of, a breach by the other, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach.
12.9
1. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, excluding its rules of conflicts of law. Both Parties hereby consent and submit to the exclusive jurisdiction of the state and federal courts in Dallas County, Dallas, Texas in all questions and controversies arising out of this Agreement. Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”), and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement. To the extent not prohibited by applicable law that cannot be waived, the Parties hereby waive, and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with this Agreement or any of the transactions contemplated hereunder.
12.10
1. In the event of any conflict or inconsistency between the terms of this Agreement and any Exhibits hereto, the terms and condition of the Agreement shall prevail. In the event of any conflict or inconsistency between the terms of this Agreement and any Statement of Work, the terms of this Agreement shall prevail except to the extent that a Statement of Work expressly states that specified terms in the Statement of Work supersede specified terms of this Agreement with applicability only to that Statement of Work.
12.11
1. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute a single agreement. Facsimile signatures and electronically transmitted signatures in a fixed and un-modifiable format (e.g., pdf) shall have the same effect as their originals.
12.12
1. This Agreement, together with all Exhibits attached hereto, represents the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes any other agreement or understanding, written or oral, that the Parties may have had with respect thereto. No statement or inducement with respect to the subject matter by either Party or by any agent or representative of either Party, which is not contained in this Agreement, shall be valid or binding between the Parties. No provision of this Agreement or a Statement of Work may be modified or amended except by a written instrument duly executed by each of the Parties. Any such modifications or amendments shall not require additional consideration to be effective.

EXHIBIT A

Order for Product and Services

ANY PURCHASE ORDER OR SPECIAL AGREEMENT WILL BE INCLUDED AS A PART OF THIS AGREEMENT BEFORE IT IS FULLY EXECUTED.

SPECIAL CONDITIONS

The following shall apply to the CommunityWFM Software licensed under this Agreement:

This Software License includes use by unlimited supervisors, administrators, schedulers, managers and sites, and is restricted to a single native Automatic Call Distributor adapter for integration, unless otherwise ordered and agreed upon by the parties in writing. This Software License is limited to the scheduling of up to 130 agents or resources within the CommunityWFM Enterprise software.

OTHER CONDITIONS:

The Customer may order additional Software Licenses at any time however the order for additional license can only ordered in blocks of 10 in accordance with CommunityWFM then current rates in effect.
The Customer agrees to provide and maintain a server to support the CommunityWFM Community software application in accordance with CommunityWFM specifications.
The Customer agrees to provide CommunityWFM remote access into that server on request using a mutually agreed to customer provided security requirement.
CommunityWFM may develop and provide, at its sole discretion integration, into ACD’s and optional devices, such as a payroll systems or time clocks for a one-time specified charge that will be provided to the customer and will result in an increase in the annual maintenance fees as specified by CommunityWFM in the quote provided upon delivery of such integrated software.

EXHIBIT B

Support and Maintenance Terms / Maintenance and Support (non-SaaS Orders)

Definitions.
1. 1. “Error” means a software problem or documentation error that causes a failure of an unmodified version of the Software to operate materially in accordance with the written documentation provided by CommunityWFM for the Software. A non-conformity shall not be considered an Error if it results from: (a) End User’s misuse or improper use of the Software or introduction of data into any data structures or tables used by the Software by any means other than use of the Software; (b) any third party software or hardware; (c) any modifications or alterations of or additions to the Software performed by parties other than CommunityWFM; or (d) End User’s failure to implement all Workarounds, Upgrade, Updates and Releases which are issued under this Agreement.
  2. “Point Release” means a minor release targeting specific identified errors, errors in grammar, user interface and minor user enhancements and is designated as R #.##.
  3. "Release” means a new version of the Software that delivers significant enhanced features and functionality to the End User and is designated as R #.#.
  4. “Update” means any modification or addition that, in the opinion of CommunityWFM, when made or added to the Software, corrects Errors or provides minor functionality enhancements, but does not change overall utility, functional capability, or application. Updates occur within an upgrade level (e.g., within v1.0).
  5. “Upgrade” means any modification or addition that, in the opinion of CommunityWFM, when made or added to Software, changes the overall utility, functional capability, or application. Upgrades are represented by a change to the right of the decimal point in the version number of the Software (e.g., v1.0 to v1.1).
  6. “Workaround” means a modification, a change in process or “patch” for a particular version of the Software, which may be of a temporary or interim nature, to help avoid an Error.
    CommunityWFM agrees to perform and End User agrees to accept post deployment software support services for the Licensed Program at End User site (hereinafter “Software Maintenance”).
Software Maintenance. For as long as this Agreement is in effect and current or for the period specified in an accepted order:
1. 1. CommunityWFM will provide End User with unlimited access to the toll free number (877-668-6870, option 2) help desk for Software support to aid in product utilization, or “how to” questions and to assist the End Users resources with technical connectivity or IT problem identified during standard business hours (7:00 AM to 7:00 PM Central Time) Monday through Friday upon receipt of the annual renewal for those services not including nationally recognized holidays and other days that CommunityWFM may designate at its discretion as closed or “limited support” days. The End User understands that infrastructure related to the CommunityWFM Community Software platform are the sole responsibility of the End User but that CommunityWFM will assist to help isolate or help the End User identify issues to its reasonable and best ability. These services must include the ability for the CommunityWFM support team to have remote access to End User's Community software for on-line support.
    
    CommunityWFM shall supply End User with fixes at no charge that correct problems identified by the End User or that CommunityWFM shall diagnose as defects in currently supported versions of the Software, as such problems and corrections become known to CommunityWFM.
    
    CommunityWFM, in the course of providing support, may diagnose Software errors or problems that may be addressed procedurally or with a supplied work-around. The End User agrees to accept these procedural or work-around fixes as a solution to the issues.
  2. Corrections for difficulties or defects traceable to End User errors or system changes will be billed at CommunityWFM's standard time and material rates of $250/hour or at a negotiated rate for the duration of the system recovery for extended outages.
  3. CommunityWFM shall supply End User with all software upgrades to the product at no additional charge as long as the End User maintains on-going software maintenance coverage with CommunityWFM, excluding connectors, adapters and any web services applications, connectors or gateways.
  4. Items not covered under standard CommunityWFM software maintenance include:
    - ACD upgrades that require modification to an existing adapter
    - Re-installation of the Community software generated by the End User activities or hardware failure
    - Network, hardware and End User infrastructure issues
    - Additional training sessions
    - On-site services
    - After hours and weekend support services
  5. The CommunityWFM help desk will assist in isolating or trouble shooting issues that may adversely affect CommunityWFM Software’s performance.
  6. RESPONSIBILITY – End User understands and agrees CommunityWFM may develop, but is not obligated to supply upgrades or new releases of the software, except to the extent CommunityWFM supplies an upgrade or new release to its End Users generally, in which case, CommunityWFM shall supply the same to End User at no additional charge. The End User acknowledges that they are responsible for cooperating with CommunityWFM or implementing and installing updates and new releases of Software under CommunityWFM direction, and other changes to the Software that may be provided by CommunityWFM at no additional charge to End User under the terms of this Agreement. CommunityWFM shall have no obligation to maintain any Software in which a fix provided by CommunityWFM has not been installed or that has been developed or installed by any third party. End User agrees to provide remote access to the licensed program’s server to the CommunityWFM support team.
TERM for Non-SaaS Agreements - This Software Maintenance Agreement is in effect on the first day of the month following completion receipt of the Activation Notice and shall remain in effect for term specified in the order from the End User (the “Initial Support Period”) from the date of installation date of the software or the period specified and accepted by CommunityWFM in the End User’s order.
1. 1. Maintenance Renewal for accounts which are not SaaS: End User shall pay CommunityWFM in accordance with the terms on the accepted order of the initial and each renewable period. Payments received after 30 days are subject to a 2.5% late charge. Maintenance charges may not increase more than 5% annually. At the end of the Initial Support Period or any renewal period, this Maintenance Exhibit will be automatically renewed for successive additional periods (the “Renewal Period”.) .
  2. Failure to pay the renewal notice within 90 days of the anniversary date shall result in a reinstatement charge of $2,500.
  3. Failure to renew within 120 days shall result in charge equal to the cost of the product licensing required at the then published rates of the CommunityWFM. Notwithstanding anything contained herein to the contrary, in the event CommunityWFM shall offer new releases of Software and End User shall elect not to implement such new releases, then this Agreement shall terminate at the end of the Initial Support Period or Renewal Period.

Master Software License Agreement

MASTER SOFTWARE LICENSE AGREEMENT

CommunityWFM Software Licensing Terms and Conditions

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