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Software License and Support Services

Table of Contents

Introduction

Thank you for choosing Red River Software! Please read these terms and conditions of use carefully before accessing, using or obtaining any materials, information, products or services.

Software License Terms and Conditions

Customer’s License to Use Software

License Grant

Subject to the terms and conditions of this Agreement and upon payment of the fees required by this Agreement, RRS grants to Customer a non-exclusive, non-transferable limited license to use the Licensed Software and related Documentation only in the United States and Canada and only for Customer’s internal operations.

Restrictions

Customer shall not engage in, cause or permit others to engage in, the reverse engineering, disassembly, decompilation or similar manipulation of the Licensed Software to obtain the source code thereto, nor the modification, alteration, translation or other change of the Licensed Software. Customer shall not remove from the Licensed Software or Documentation, or their packaging, or alter, any of RRS’s trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Licensed Software or the Documentation, or their packaging, without the prior express written consent of RRS. Customer shall duplicate all such proprietary rights notices on all copies permitted to be made hereunder.

Ownership

Software and Documentation

Customer acknowledges that the Licensed Software and the Documentation are proprietary products of RRS and that ownership of the Licensed Software, the Documentation, all patents, copyrights, trademarks, trade names, trade secrets, mask work rights and other proprietary rights relating to or residing therein shall remain with RRS. Customer understands and agrees that this Agreement does not constitute a sale of any such proprietary rights. Customer shall promptly notify RRS of any actual or threatened misappropriation or infringement of RRS’s proprietary rights, which comes to Customer’s attention.

Confidential Information

Definition

All proprietary non-public documentation, drawings, samples, designs, specifications, engineering details and related information pertaining to the Licensed Software and the Documentation, whether in oral, written, graphic or electronic form, are and shall remain the confidential information of RRS (collectively, the “Confidential Information”).

Non-Disclosure Obligations

Customer shall treat all Confidential Information as strictly confidential.  In any event, Customer shall (a) Use Confidential Information only in the United States and Canada for Customer’s internal operations; (b) Not use the Confidential Information for any purpose detrimental to RRS; (c) Not copy any Confidential Information without the express prior written consent of RRS; (d) Disclose Confidential Information to only those customers whose duties justify their need to know such information and who have been clearly informed of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information; and (e) Use the same care to prevent disclosure of the Confidential Information to any third party as Customer uses with respect to its own confidential and/or proprietary information, which shall not be less than the care a reasonable person would use under similar circumstances. All Confidential Information shall be returned promptly to RRS upon request.

Non-Disclosure Of Fees

Customer acknowledges that the fees set forth in Exhibit C, as well as those listed in RRS generated invoices, constitute Confidential Information. Accordingly, except as required by law or legal process, Customer agrees not to disclose to any third party such fees set forth in Exhibit C and/or RRS invoices without the prior written consent of RRS.

Disclaimer of Warranties: Limitation of Liability

Disclaimer of Warranties

the licensed software and documentation are being licensed and provided to customer “as is,” “with all faults,” without any warranty of any kind, express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party rights.

Modifications

Customer acknowledges that RRS shall have no obligation to ensure that the Licensed Software operates in conjunction with Customer’s products, except as otherwise expressly agreed in writing by RRS. Customer shall be responsible for all costs it incurs in connection with any modifications it elects to make to its own products.

Limitation of Liabilities

Notwithstanding anything to the contrary contained in this agreement: (a) RRS’s aggregate liability in connection with this agreement, the licensed software, the documentation, the rendering of support services, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), shall not exceed the aggregate fees paid by customer to RRS under this agreement; (b) RRS shall not be liable for any indirect, exemplary, special, consequential or incidental damages of any kind (including without limitation lost profits), even if RRS has been advised of the possibility of such damages; and RRS shall not be liable for any claims of third parties relating to the licensed software, the documentation, the support services and customer shall defend RRS from, and indemnify and hold RRS harmless against, all such claims. The parties expressly agree that the licensed software is not considered to be good for use primarily for personal, family or household purposes or a consumer good for purposes of the uniform commercial code or otherwise. The foregoing states the entire liability of RRS with regard to this agreement.

General

Audit Rights and Further Assurances

RRS and its agents shall have the right to audit the relevant books and records of Customer, during normal business hours upon its prior request, as well as to make reasonable inquiries of Customer and its customers to verify Customer’s compliance with the provisions of Section 4 above. At any time upon the request of RRS, Customer shall promptly and duly execute and deliver any such further instruments and documents and take such further action as RRS may reasonably deem desirable to obtain the full benefits of this Agreement.

Governing Law

This agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of North Dakota as those laws are applied to contracts entered into and to be performed entirely in North Dakota. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be venued in Cass County or the courthouse located in Fargo, ND.

No Export

Customer shall use the Licensed Software and Documentation only in the United States and Canada and shall not permit any person to use the Licensed Software or Documentation in violation of the export control laws of the United States. Customer shall defend, indemnify and hold harmless RRS and its successors, agents, officers, directors and employees from and against any violation of such export control laws by Customer or any of its agents, officers, directors, employees or customers.

Modifications

Any modification, amendment, supplement, or other change to this Agreement must be in writing and signed by duly authorized representatives of RRS and Customer. As used herein, the term “Agreement” shall include any such future modifications, amendments, supplements or other changes hereto.

Assignments

No right or obligation of Customer under this Agreement shall be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without the prior express written consent of RRS and any attempt to assign, delegate or otherwise transfer any of Customer’s rights or obligations hereunder, without such consent, shall be void. Subject to the preceding sentence, this Agreement shall bind Customer and its permitted successors and assigns. Notwithstanding anything to the contrary herein, RRS may engage subcontractors to perform any of its obligations under this Agreement.

Waivers

All waivers must be in writing. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, shall not be deemed to be a waiver for the future of such provision or right, and no waiver of any provision or right shall affect the right of the waiving party to enforce any other provision or right herein.

Equitable Remedies

The parties agree that any breach of this Agreement or above may cause irreparable injury to RRS for which no adequate remedy at law exists; therefore, the parties agree that equitable remedies, including without limitation injunctive relief and specific performance, are appropriate remedies to redress any breach or threatened breach of above in addition to all other remedies available to the Parties.

Rights and Remedies

All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently in court or arbitration, and shall not be deemed exclusive. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys’ fees, court costs and all other collection expenses, in addition to any other relief it may receive. If Customer fails to make timely payment of amounts owed under this Agreement, in addition to all other damages legally allowed, RRS shall be entitled to collect interest at the rate of 18% per annum compounded monthly. This Agreement is not intended to provide any rights or remedies to any person or entity other than RRS and Customer and their respective permitted successors and assigns (if any).

Force Majeure

RRS shall not be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, fires, floods, labor disturbances, riots or wars.

Construction

The headings and subheadings contained herein shall not be considered a part of this Agreement. This Agreement may be executed in several counterparts, all of which shall constitute one agreement.

Notices

Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by electronic facsimile (fax), or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed as set forth after the signatures on the cover page of this Agreement or to such other address as shall be given in accordance with this Section. If notice is given in person, by courier or by fax, it shall be effective upon receipt; and if notice is given by mail, it shall be effective three (3) business days after deposit in the mail.

Relationship Between Parties

Nothing contained in this Agreement shall be construed to constitute either party hereto as the partner, joint venturer, employee, agent or other representative of the party hereto.

Arbitration

In the event of a dispute relating to the interpretation of this Agreement, the parties agree to submit the dispute to binding arbitration according to the standards established by the American Arbitration Association. Appeal to a court of law may only be made in accordance with the provisions of those standards.

Termination

Termination by RRS Because of Customer Breach

If any of the following circumstances occur, customer shall immediately pay to RRS all amounts owing to RRS under this agreement, and RRS shall have the right to terminate this Agreement by giving notice to Customer:

  1. Customer fails to perform any of its obligations under this Agreement and fails to cure such breach upon 10 days notice;
  2. Customer fails to pay when due any sum owing hereunder, and such failure continues for ten (10) days after the date when due. (10 day grace period does not apply to ASP accounts)

Other Termination of Support Services

In addition to any other rights of termination hereunder, RRS shall have the right to terminate the support services at any time in the event that RRS ceases to maintain in general and for all customers any or all of the Licensed Software. Either party shall have the right to terminate the support services at any time with sixty (60) day advanced written notice to the other party.

Support Services Terms and Conditions

Support Services Provided

RRS shall provide to the Customer the following support services for the Licensed Software. The Customer acknowledges that such support services are available to the Customer only, and not to the Customer’s clients or any other third parties.

Technical Support of Software

Red River Software is committed to providing the best possible response times relative to the level of service purchased. To do so, the support team must identify and resolve issues quickly and efficiently. RRS has the right to acquire Customer data for trouble-shooting, testing and other reasonable purposes. RRS may require that a written explanation be faxed to RRS for their review prior to providing any support. RRS may require that the Customer perform a complete program and/or data backup prior to providing support and that the backup be sent to RRS for examination before the problem can be resolved.

Requesting Support Services

Customer may access the RRS technical support staff based upon the level of support purchased (see Exhibit C). Customer may send requests for support either by telephone, email, facsimile, or by U.S. Mail. Click here for additional contact options.

Support Via Email

Support questions can be emailed to call@redriversoftware.com. “First come, first serve” call response will begin during regular business hours when RRS receives and verifies your email. Emails must include the Company name and customer account number in the subject line of the e-mail. The body of the email must contain the remainder of the information detailed in section Requirement for Customer Questions Or Requests For Support.

Support Via Facsimile

Support questions can be emailed to call@RedRiverSoftware.com. “First come, first serve” call response will begin during regular business hours when RRS receives and verifies your email. Emails must include the Company name and customer account number in the subject line of the e-mail. The body of the email must contain the remainder of the information detailed in section Requirement For Customer Questions Or Requests For Support.

Requirement for Customer Questions or Requists for Support

When requesting software support, the Customer must provide the following information:

  1. The Customer’s account number, company name, contact name.
  2. The software package that is the cause for requesting support and the program’s version number.
  3. A detailed explanation of the function in progress when the error/issue occurred–this includes the menu options and how each question that appeared on the screen was answered.

Included in the Support contract

Examples of issues covered by a support contract are: procedural questions, report functionality, software related errors. For additional details on the specific terms of the various contract levels, refer to Exhibit C relative to the level of service being purchased.

Excluded from the Support Contract

Services including but not limited to those listed below are not handled by RRS, but by a third party:

  • Hardware related utilities and problems.
  • Novell/Citrix setup and maintenance – adding and deleting users, etc.
  • Any LAN or WAN systems setup.
  • Instructions for backing up data or restoring data. RRS is not responsible for data that cannot be restored because of incorrect or insufficient back up information. (Not applicable to ASP accounts)
  • Installation of software other than RRS (ex. PC Anywhere)
  • Printer Setup
  • Continuous connection to customer during the performance of daily work, except at the discretion of the RRS technician.

Call Response

Calls received during normal hours of operation (back office – 8:00 am to 5:00 pm CT Monday through Friday, point of sale – 8:00 am to 7:00 pm CT) will be responded to on a “first come, first serve” basis based on the level of service purchased. Call responses are not guaranteed during holidays, company events, weekly departmental meetings and storm closures. RRS does not guarantee resolutions to questions within the initial call back. RRS’s response shall include reasonable, acceptable answers or suggested approaches to solving the Customer’s problems. If an immediate solution is not arrived at, then RRS shall continue to investigate the potential cause of the problem and shall respond as soon as practical. RRS reserves the right to request from Customer sufficient documentation of any problem to enable RRS to respond to Customer’s questions. Failure to contact a customer because the customer is unavailable (i.e. phone is busy, no answer, in a meeting, or out of the office), the customer has requested a specific support employee to call back, or the customer sends emails to a support employee’s personal email address does not constitute noncompliance on the part of RRS.

Reasonable Restraint

Customer agrees to attempt to resolve any questions through the use of software manuals, by investigating to ensure that all equipment is functioning properly (i.e., that all equipment is connected to electrical power and that all cables are securely attached) and to otherwise use reasonable restraint before calling software support. RRS reserves the right to require Customer to designate a limited number of person(s) (i.e., those who have the greatest level of computer sophistication and knowledge) as contact persons and to require that all calls for Software Support come from the designated person(s). In the event that RRS determines, in its reasonable but sole discretion, that Customer has failed to follow these procedures, RRS reserves the right to restrict Customer’s access to support services or to charge Customer for the support services accordingly.

Emergency Calls

Emergency Support Calls are available to our customers holding current support contracts. The rates for which are dependent upon the level of service purchased and are noted in Exhibit C. Response time for an Emergency Call is approximately 30 minutes or, if all technicians are engaged in a case, the next available RRS technician.  Time spent to solve the problem by support is applied to the available contract minutes or billed according to the terms outlined in your chosen support contract.

To initiate an Emergency Call, dial the support line (800-568-5998) during RRS business hours and inform the receptionist that you would like an Emergency Call Back.  If applicable, a Credit Card number must be supplied to the receptionist at the time the Emergency Call is initiated.

Software Support Contract Terms

A new support contract is valid for TWELVE months from either the date listed on the invoice or in the contract documentation (at RRS’s discretion). Expiration dates are rounded to the 14th day or last day of the month the contract is to expire. Renewals are for one year periods starting with the 1st or the 15th, starting the day after the expiration date of the previous contract.

Support Contract Renewal for RRS-New Contracts

The customer understands that upon accepting the RRS-New level Support Contract (refer to Exhibit C for more information on the specific contract levels) during their first year with Red River Software, they are agreeing to maintain support with Red River Software during their second and third year with the consecutive purchases of a Support Contract no less than level RRS-Renewal (refer to Exhibit C for more information on the specific contract levels).

Support Contract Renewal for ASP Accounts

Contract renewals are handled automatically for ASP accounts as the cost is included in the monthly payment amount.

Support Contract Requirements for Multiple Locations (not applicable to ASP accounts)

In the event that MULTIPLE (meaning more than ONE) locations will be calling to request support from Red River Software, multiple support contracts must be purchased for those additional locations.  Additional contracts of equal or lesser value than that of the main location purchased for a single customer with multiple locations will be offered at a reduced rate (minimums still apply).

Maintenance Update Installation Policy

In order to continue receiving support, Maintenance Updates must be installed within 6 months (180 days) of the release date.  Failure to install Maintenance Updates within the 6-month (180 day) time period will result in the termination of support services regardless of contract status.  Maintenance Updates are installed automatically for ASP accounts.

New Version Installation Policy

In order to continue receiving support, New Versions of Red River Software must be installed within 12 months of the release date.  Failure to install a New Version release within the 12-month time period will result in the termination of support services regardless of contract status.  New Versions are installed automatically for ASP accounts.

Fees and Payments

The fees for software support are set forth in Exhibit C of this Agreement.  If Customer’s total use of support services exceeds the limits for the level of service purchased, Customer will be billed/charged in accordance with the terms detailed in Exhibit C, for the level of service purchased.

Sales Tax

The fees noted in Exhibit C do not include any applicable sales, excise or use taxes on products or services provided. Any taxes required by current or future law will be added to Customer invoice.

Additional Fee-based services Available

The services including but not limited to those listed below can be provided by RRS for a fee:

  • Setup/Licensing fee to establish new/additional companies in Red River Software (including company name changes due to ownership change).
  • Reinstall/Setup of Red River Software on new/additional hardware.
  • Deletion of any files to make room on system hard drive.
  • Manipulation of customer’s data, per the request of the customer but at the discretion of RRS.
  • Magnetic media reporting.
  • Retrieval of past years data and reports.
  • Drive Mapping.
  • Training on any Red River Software program(s) including but not limited to New Version enhancements, functionality, periodic procedures, etc.

Payment Terms and late payments

All annual contract fees are due upon purchase/renewal of the contract and must be paid prior to RRS’s obligation to begin providing support. Contract renewals are handled automatically for ASP accounts as the cost is included in their monthly payment. Any other payments due from Customer (including, but not limited to fees for additional support or renewal fees) shall be invoiced to the customer and are due and payable upon receipt of the invoice.  Failure of non-ASP accounts to remit payment within 10 days of receiving the invoice will result in the termination of this agreement, providing RRS the right to terminate all further support services. (10 day grace period does not apply to ASP accounts)

Outstanding Charges

Any non-ASP customer with charges 30 days or more past-due will have their support contract suspended and will be unable to receive support until such time as the outstanding balance has been paid in full or the terms of a payment plan have been agreed upon by both RRS and the customer.

ASP accounts will have their access blocked and their support services suspended in the event their payment due date passes without payment being received.

Dispute of Charges

It is the responsibility of Customer to make RRS aware of any dispute regarding the validity of charges incurred.  Customer has 90 days from either the date on the disputed invoice or the date the services were rendered, whichever is later, to make RRS aware of the dispute and the resultant causes.  RRS is not obligated to give audience to disputes presented in excess of 90 days from the later of the two dates specified.

Discontinuation of support Contract (not applicable to ASP accounts)

RRS discourages the discontinuation of the Software Support Contract. Failure to renew the support contract by the expiration date will result in the following:

  • Billing Rates: The customer will be billed in accordance with the terms outlined in Exhibit C of Software Support Contract. A valid credit card will be required at the time the request for support services is made and will be billed accordingly at the end of the call.  If a valid credit card cannot be provided, RRS will be unable to provide assistance.
  • Re-instatement Charges: In the event that the support contract is allowed to lapse, re-instatement charges will be incurred above the price of the new contract for resuming a support contract.  Re-instatement charges are calculated by multiplying the sum of the current selling price of each package installed on the customer’s system by 15%.  The total, as derived by the previous calculation, is then multiplied by the number of years the contract has been expired to arrive at the applicable re-instatement charge.  These charges will be applied, in addition to the price of a contract, in order for support services to be reinstated.
  • Restriction of Purchases: If a current/valid support contract is not in effect, customer will be unable to purchase add-on packages for their system.  Product will only be sold once a valid support contract is put in place and the customer is brought up-to-date with the newest version of Red River Software.
  • Restriction of Services: In the event that the support contract becomes delinquent, any obligation Red River Software has to provide software related services becomes null and void.  Services will resume once a valid support contract is put in place.

Standard Terminology / Definitions

For the purposes of this Agreement, the following definitions shall apply:

Customer

As used herein, “Customer” shall include all owners, directors, officers, and employees of the Customer and shall also include all successors and assigns of the Customer.

Maintenance Update

A Maintenance Update may include tested fixed for problems found since the release of the “as-is” product or possibly a limited number of customer-requested design changes or features.  The contents of a Maintenance Update are the sole discretion of RRS.  Maintenance Updates, when provided via the internet, are FREE to current contract holders.  When available via the internet, a fee will be incurred by those contract holders requiring a CD be shipped to them with the Update contents.

Government required reporting or calculation changes including, but are not limited to:  Payroll Tax calculations, government form changes, or any state required format changes to Bill of Lading Schedules, may be considered Custom Programming and as such, the time needed to program the necessary changes would be billable to the contract holder.

New Version

A New Version shall refer to the upgrade of an existing software package that replaces an installed version of a product with a newer version of the same product.  A New Version may contain a cumulative set of tested fixes, customer requested design changes and/or entirely new features.  The contents of a New Version are the sole discretion of RRS.  The release of a New Version does not entitle Customer to new packages/modules developed by RRS.  RRS may elect to charge a fee for New Version releases.  In the event a New Version is made available over the internet, a fee will be incurred by those contract holders requiring a CD be shipped to them with the New Version contents.

New Package / Module

A new package or module refers to any program developed by RRS that runs with a program file or dll that is not present on Customer’s existing system. New packages or modules can be obtained from RRS for a fee.

Licensed Software

As used herein, “Licensed Software” shall include all program versions, packages and modules including Maintenance Updates and New Versions provided to Customer by RRS and all discs, documentation and accompanying materials.

Training on Software

Training is not covered by a support contract and cannot be charged against support contract minutes. The Red River training department has the ability to address training needs that require an extended time commitment in a variety of ways: in-house, on-site, via the phone.  Billing is dependent upon the method of training selected and is billed separately from support time.

Examples of issues considered to be training services, not support services, are: setup procedures, installation issues, enhancement of customer abilities, consulting on best practices, explanation of design changes and/or new features made available in New Version releases, educating new employees, providing a solid working knowledge of the software packages.

Exhibit C

For all service rates and other pricing information, please refer to your Red River Contract, Exhibit C.