This SOFTWARE LICENSE AGREEMENT shall constitute the terms under which The Rothwell Group, L.P. (Rothwell) shall license, maintain, and support our software.

 1. LICENSE OF SOFTWARE

The term “Rothwell’s Software” shall mean any and all of Rothwell’s software product(s), including any related documentation. Rothwell does hereby license to Customer, on a non-exclusive, non-transferable basis, Rothwell’s Software for Customer’s internal data processing operations (the “License”).

This license shall be limited by the number of installations, users, and user types (“Named”, “Concurrent”, “Enterprise”, etc.). The term “Named” shall mean a type of license right wherein Customer must have a separate license for each and every user of Rothwell’s Software. The term “Concurrent” means a type of license right wherein Customer need not have a separate license for each and every user of Rothwell’s Software, but the number of users using Rothwell’s Software at any given time, may not exceed the specified number of licensed users. The term “Enterprise” means a type of license right wherein there is no limitation on the number of Customer’s installations or users.  Use of a license requires Customer to enable connection via the Internet between Rothwell’s software running on their desktop and the Rothwell license server. 

It is understood and agreed by Customer that the license rights are granted only for those licenses purchased, and may only be used internally for Customer’s use and/or the use of Customer’s employees and affiliates.  Customer further agrees that it shall not use the license to generate any outputs or work product for any of Customer’s clients or other third party recipients, unless such clients or recipients of such work product also have a valid license agreement with Rothwell.  Such unauthorized use shall be considered a breach of this Agreement, and Customer shall be liable for all costs related to additional license fees for all third parties who have received work product through the use of Rothwell’s software and the license granted under this Agreement.     

2. TERM

The Term of this Agreement will begin upon payment of Subscription Fees. By mutual consent, this License may be renewed for additional terms subject to such license fees and other revised conditions as the parties may agree. 

3. TITLE

All right, title, and interest in and to Rothwell’s Software (including, but not limited to, (a) any images, photographs, animations, video, audio, music, and text incorporated into Rothwell’s Software, and (b) any related documentation), and any copies of Rothwell’s Software, shall remain the property of Rothwell and shall survive termination of this Agreement.  Rothwell has and shall retain all ownership rights in Rothwell’s Software, including, but not limited to, all patent rights, copyrights, trade secrets, trademarks, service marks, related goodwill, and confidential and proprietary information.  Customer shall treat Rothwell’s Software like any other copyrighted material, except that Customer may install Rothwell’s Software on its computer or other storage device in accordance with the provisions of Section 6. 

4. COPYING / USE

Customer agrees not to make or use copies of Rothwell’s Software, nor permit or assist others to do so, except as authorized by this Agreement or otherwise authorized in writing by Rothwell and except to the extent that Customer shall be permitted to make archival copies of the Rothwell’s Software for back-up purposes.  Without limiting the generality of the foregoing, Customer agrees not to: (a) provide, rent, lease, or lend Rothwell’s Software to any third party, or (b) attempt to decompile, disassemble, or otherwise reverse engineer Rothwell’s Software, or permit others to do so.  In addition, any work product created by Customer through the use of Rothwell’s software may not be provided to any of Customer’s clients or any non-affiliated third party that does not have a valid license agreement with Rothwell.  Notwithstanding the foregoing, Customer may make copies of the printed documentation and other written materials accompanying Rothwell’s Software, but only for Customer’s internal use.

5. DELIVERABLES

Unless otherwise stated in the attached Exhibit A, Rothwell shall deliver to Customer one (1) complete copy of Rothwell’s Software and one (1) complete copy of a full set of documentation for Rothwell’s Software.

6. SOFTWARE INSTALLATION

Upon Customer’s request, Rothwell shall assist Customer in the installation of the Rothwell’s Software on Customer’s computer or network.  Such installation services shall be provided by Rothwell at consulting rates in effect at the time services are performed.  Except as authorized by this license and as set forth on the Exhibit(s) attached hereto, Customer shall not make any additional installations of the Rothwell’s Software without the prior written consent of Rothwell.  However, Customer shall have the right at any time, to install the Rothwell’s Software on any catastrophic protection or backup system, regardless of location of such system.

7. SOFTWARE ACCEPTANCE 

Customer shall have up to thirty (30) calendar days, commencing upon installation of Rothwell’s Software, to accept or reject the Rothwell’s Software (“Acceptance Period”).  Customer agrees that Rothwell’s Software may only be rejected if such software is defective and cannot be corrected by Rothwell within a reasonable period of time.  If Customer rejects Rothwell’s Software, Customer agrees: (a) to provide Rothwell with written notice setting forth in detail the software defect(s), and (b) to allow Rothwell a reasonable period of time to correct such defect. The Acceptance Period shall start again upon the date the corrected version of Rothwell’s Software is delivered to Customer. Customer agrees that unless Customer provides written notice to Rothwell rejecting Rothwell’s Software in the manner set forth above, Rothwell’s Software shall be deemed accepted upon termination of the Acceptance Period.

8. MAINTENANCE SERVICE

Subject to the terms of this Agreement, Rothwell agrees to provide maintenance service for Rothwell’s Software (“Maintenance Service”), including: (a) making commercially reasonable efforts to correct the whole or any part of Rothwell’s Software containing a programming error attributable to Rothwell which significantly affects Customer’s use of Rothwell’s Software and/or making commercially reasonable efforts to provide services necessary to remedy any such error promptly, upon written notice from Customer to Rothwell specifying the error concerned; (b) providing any enhancements to Rothwell’s Software that are made to generally improve performance and/or function, while maintaining the original functionality, and that are not offered by Rothwell as separate licensed options; and (c) supplying email and dial-up telephone support to Customer Monday through Friday from 9 A.M. to 5 P.M. Mountain time (except holidays) to help Customer locate and, on its own, correct problems with Rothwell’s Software.

If Customer is current on payment of Subscription and Maintenance Service Fees, Rothwell shall provide to Customer, cop­ies of Main­t­en­ance Re­lease(s) of Rothwell’s Software at no charge.  “Maintenance Release”, as used in this Agreement, shall mean a copy of all or portions of Rothwell’s Software and/or related documentation sufficient to correct known deficiencies in functionality or performance and may include a moderate amount of enhanced or new functionality. 

Rothwell may, from time to time, offer to Customer Upgrade Ver­sions of Rothwell’s Soft­ware. Any such offer shall be on the same basis as offered to other licensees of the Rothwell’s Software.  Such of­fers may be conditioned on Customer paying a fee to Rothwell for the Upgrade Versions in an amount de­ter­mined by Rothwell.  “Upgrade Version”, as used in this Agreement, shall mean a release of Rothwell’s Software that: (a) represents one or more major enhancements to the previous version of Rothwell’s Software to the extent that the Upgrade Version includes a significant amount of new functionality, and for which a significant development effort and investment of Rothwell’s resources was required, or; (b) is based on new technology which is reasonably deemed to be a technological advancement for the industry in which Rothwell’s Software is used, and for which a significant development effort and investment of Rothwell’s resources was required.

As long as Customer is eligible to receive Maintenance Service, Customer may make unlimited email and/or telephone-support calls.  Notwithstanding anything contained in this Agreement to the contrary, Rothwell reserves the right in the future, at its discretion, to impose a reasonable limit on free telephone support calls from Customer (including, but not limited to, a calendar-day limit or a cap on the total number of calls), and, after notifying Customer of such limit, to charge for any telephone support calls exceeding the same. 

Rothwell also reserves the right in the future, at its discretion, to request that Customer designate a primary contact and an alternate contact in each of Customer’s offices where Rothwell’s Software is installed.  If Rothwell so requests, Customer agrees to provide Rothwell with Customer’s designated contacts within fifteen (15) calendar days.  Thereafter, Customer agrees that Rothwell shall have the right to direct its written and verbal correspondence concerning support and maintenance of Rothwell’s Software to the contacts identified by Customer.

9. CONFIDENTIALITY

Both parties agree to hold strictly confidential all data, information, and intelligence gained from the other party in connection with this Agreement, including, but not limited to, the design, appearance, performance, and functionality of Rothwell’s Software (“Confidential Information”). Both parties agree to take all reasonable precautions to prevent the disclosure of such Confidential Information to third parties.  Notwithstanding the foregoing, Customer may disclose Rothwell’s Software to contractors engaged by Customer to provide technical support services in connection with the same, provided such contractors agree in writing prior to Customer’s release of such information that (a) Contractor shall keep Rothwell’s information confidential, (b) Contractor shall not disclose any information which is deemed confidential hereunder to any third party, and (c) Contractor shall not use or allow the use of Rothwell’s Software in any manner except as specifically permitted by this Agreement.. Customer agrees to instruct all other persons who use or have access to Rothwell’s Software: (a) not to disclose any information which is deemed confidential hereunder to any third party, and (b) not to use or allow the use of Rothwell’s Software in any manner except as specifically permitted by this Agreement. 

Confidential Information shall not include: (a) information generally available to the public or generally known in the trade at the time of disclosure, or (b) information which, subsequent to disclosure, becomes generally available to the public or generally known in the trade through no fault of the receiving party.

Notwithstanding anything contained in this Agreement to the contrary, this Section 9 shall survive any termination of this Agreement.

10. ROTHWELL’S WARRANTIES

Rothwell represents and warrants that (a) Rothwell has full and unencumbered right, title, and ownership in and to Rothwell’s Software; and (b) Customer shall have the non-exclusive right to use Rothwell’s 

Software subject only to the terms and provisions of this Agreement. Rothwell also warrants that Rothwell’s Software shall perform substantially in accordance with the accompanying documentation provided to Customer at the time of delivery of Rothwell’s Software.  Rothwell’s sole obligation under this section shall be to make commercially reasonable efforts to correct Rothwell’s Software so that it performs as documented, or, in the case of a documentation error, to correct such error so that the documentation correctly represents Rothwell’s Software performance.

Rothwell represents, BUT DOES NOT WARRANT, that to the best of its knowledge the software delivered to Customer under this Agreement will not infringe any valid and existing intellectual property right of any third party. Customer agrees to notify Rothwell within ten (10) business days of the assertion of any such suit, claim, demand, or action and to cooperate with Rothwell in defense of the same.

Rothwell shall have no liability or responsibility for correcting any defects in Rothwell’s Software attributable in whole or in substantial part to: (a) modifications of, or enhancements to Rothwell’s Software not supplied by Rothwell; (b) Customer’s negligence or misuse of Rothwell’s Software; (c) computer equipment malfunction not attributed to the use of the Rothwell’s Software; (d) Customer’s failure to follow installation and operating instructions provided by Rothwell; (e) the failure of any required third party software to perform according to the third party vendor’s specifications; or (f) any other causes external to Rothwell’s Software which do not arise by reason of the fault or negligence of Rothwell.

Rothwell shall endeavor to provide error-free software, but bears no liability for any loss or damage caused directly or indirectly by Rothwell’s Software.  Rothwell hereby acknowledges and permits Customer to make as many back-up copies of the Rothwell’s Software as needed.  Customer is responsible for implementing appropriate procedures to make back-up copies of Rothwell’s Software to minimize any damage that might arise from an error or defect in Rothwell’s Software, including errors or defects attributable to Rothwell.

EXCEPT FOR THE FOREGOING WARRANTIES OF THIS SECTION 13, NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE, ARE MADE BY OR ON BEHALF OF ROTHWELL WITH RESPECT TO ROTHWELL’S SOFTWARE OR ANY SERVICES TO BE RENDERED BY ROTHWELL IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER ROTHWELL KNOWS OR HAS REASON TO KNOW OF CUSTOMER’S PARTICULAR NEEDS.  

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ROTHWELL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE ROTHWELL’S SOFTWARE OR FAILURE TO PROVIDE SUPPORT SERVICES, REGARDLESS OF WHETHER ROTHWELL KNOWS OR HAS REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. 

CUSTOMER’S DAMAGES FOR ANY BREACH OF THE FOREGOING WARRANTIES SHALL BE LIMITED TO RECOVERY OF AMOUNTS EQUAL TO THE SOFTWARE LICENSE FEES (EXCLUDING MAINTENANCE FEES) ACTUALLY PAID BY CUSTOMER TO ROTHWELL IN CONNECTION WITH THIS AGREEMENT; PROVIDED, HOWEVER, THAT IF CUSTOMER HAS ENTERED INTO A SEPARATE SUPPORT SERVICES AGREEMENT WITH ROTHWELL, THEN ROTHWELL’S LIABILITY WITH RESPECT TO SUCH SERVICES SHALL BE GOVERNED ENTIRELY BY THE TERMS OF THAT AGREEMENT. 

CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES ARE SET FORTH IN THIS AGREEMENT. ROTHWELL AND CUSTOMER AGREE THAT ALL LIMITATIONS ON REMEDIES AND LIABILITY CONTAINED IN THIS AGREEMENT REPRESENT A REASONABLE ALLOCATION OF RISKS WHICH IS PART OF THE FUNDAMENTAL BARGAINING BETWEEN THE PARTIES.  CUSTOMER FURTHER AGREES THAT THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY IN THIS AGREEMENT TO FULFILL ITS ESSENTIAL PURPOSE SHALL NOT BE GROUNDS TO SET ASIDE THE FOREGOING LIMITATIONS OF ROTHWELL’S LIABILITY. 

11. INDEMNIFICATION

Customer agrees to defend, indemnify, and hold harmless Rothwell, its employees, officers, agents, and affiliates against any and all suits, claims, demands, actions, losses, and expenses of any kind arising from or connected with the operation of Customer’s business.

Rothwell agrees to defend, indemnify, and hold harmless Customer’s, its employees, officers, agents, and affiliates against any and all suits, claims, demands, actions, losses, and expenses of any kind arising from or connected with the operation of Rothwell’s business.

12. THIRD PARTY SOFTWARE WARRANTIES

The Rothwell’s Software licensed hereunder is designed to work in conjunction with one or more third party software products.  Rothwell does not warrant nor assume any responsibility for the quality or performance of any Third Party Software.  Rothwell does not represent or warrant that such Third Party Software will be error-free or will operate without interruption.  Should any Third Party Software prove defective following use, Customer assumes the entire cost of any necessary service, repair and/or correction.

13. LIMITATION ON USE OF ROTHWELL’S SOFTWARE

Customer acknowledges that Rothwell’s Software is subject to U.S. export laws and regulations and that any use or transfer of that software and/or technical information outside the U.S. or to non-U.S. citizens must be authorized under those regulations. Customer agrees that it will not use, distribute, transfer, or transmit Rothwell Software, in whole or in part, except in compliance with U.S. export regulations and other applicable law. Each party shall comply with all applicable laws and regulations, whether federal or state and domestic or international related to this Agreement.

Customer also agrees to use Rothwell’s Software only in connection with projects in which Customer operates or has a direct ownership interest. Customer shall not use Rothwell’s Software for compensation or under conditions where such use would be for the benefit of persons or entities other than Customer without Rothwell’s express written consent.  Pursuant to Sections 1 and 4 of this Agreement, Customer agrees that it shall not use Rothwell’s software of the license granted under this Agreement to provide any work product to any of Customer’s clients or any non-affiliated third party that does not have a valid license agreement with Rothwell. 

Rothwell’s Software may be deployed or used on the Internet or on Customer’s intranet only if Customer has a license for the Rothwell Software to be so deployed. The license types held by Customer are set forth on Exhibit(s) A attached hereto.

14. AUDIT RIGHTS

To determine compliance with the terms of this Agreement, Rothwell shall have the right during the term of this Agreement, to conduct one or more audits of Customer’s use of Rothwell’s Software upon reasonable request; provided, however, that Customer has the right to exclude any trade secrets, formulas, processes or any other confidential or proprietary information from such audit. Any such audit shall be performed at Rothwell sole expense, during Customer’s normal business hours. 

15. TERMINATION

Customer may terminate this Agreement upon thirty (30) calendar days’ written notice to Rothwell at any time.

Notwithstanding anything contained in this Agreement to the contrary, Rothwell may terminate this Agreement if Customer fails to perform any of its material obligations under this Agreement; provided that prior to such termination, Rothwell notifies Customer in writing at least sixty (60) calendar days in advance, of the reasons or cause for such termination and gives Customer an opportunity to cure any default.

Upon termination of this Agreement, either by Customer or by Rothwell, Customer agrees to relinquish all rights to use Rothwell’s Software and to return to Rothwell all copies of Rothwell’s Software, including all related materials, in Customer’s possession and to cease using Rothwell Software.  

16. NOTICES

All notices, requests, and demands given to or made upon the parties to this Agreement shall, except as otherwise specified herein, be in writing and be delivered by certified or registered mail.

Any party may, by notice hereunder to the other party, designate a change of address.  Any notice, if sent via registered or certified mail, properly addressed to the other party with postage prepaid, shall be deemed “dispatched” on the registered date stamped on the certified mail receipt, and shall be deemed “received” either upon actual receipt by the addressee or upon the third business day after dispatch, whichever is sooner. 

17. ASSIGNMENT

The terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of Customer and Rothwell and their respective agents, successors, and assigns. Customer agrees that it shall not sublicense or otherwise distribute Rothwell’s Software, or assign its interest under this Agreement, except by operation of law, without the prior written consent of Rothwell. Nothing contained in this Agreement, however, shall prevent Rothwell from selling, licensing, or otherwise distributing Rothwell’s Software or from assigning Rothwell’s right to receive payment under this Agreement. 

18. CHOICE OF LAW 

This Agreement shall be governed by the laws of the State of Texas, and Customer hereby expressly consents to the personal jurisdiction of the state and federal courts located therein for any proceeding or lawsuit arising from or relating to this Agreement.

19. HEADINGS 

The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, omit, construe, describe, or affect the scope or extent of the provisions of this Agreement. 

20. SEVERABILITY

In the event that any provision of this Agreement shall be rendered unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law and/or applicable court decisions.

21. EQUITABLE RELIEF 

Customer acknowledges that a breach of the provisions set forth in Sections 4, 9, 13, and 17 of this Agreement would cause irreparable harm to Rothwell and potentially to Rothwell’s customers, which would be difficult to quantify and for which money damages would be inadequate.  Customer therefore agrees that in the event Rothwell perceives such a breach, or the attempt or threat of such a breach, Rothwell shall, in addition to any other rights or remedies available at law or in equity (which Rothwell may individually or cumulatively enforce), have the right to obtain injunctive relief from a court of competent jurisdiction, without necessity of posting a bond or other security.  Upon the determination of a court of competent jurisdiction that Customer has breached or has attempted or threatened to breach this Agreement, Customer agrees to the granting of an injunction: (i) restraining Customer from further breaches, or attempted or threatened breaches, of this Agreement; and/or (ii) compelling Customer to comply, by specific performance, with this Agreement. 

22. DISPUTES SETTLED BY BINDING ARBITRATION          

Customer agrees that, except as provided in Section 21 above, all claims, disputes, controversies or other differences, including, without limitation, the validity, scope and enforceability of this Section 22, arising out of or related to this Agreement shall be finally settled by arbitration.  The rules of arbitration shall be the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in existence, as such rules may be modified herein.  The forum for arbitration under this Section 22 shall be Houston, Texas.  Either Customer or Rothwell shall have the right to commence an arbitration by sending a notice to the other party stating, inter alia: (i) the amount of the controversy; (ii) the nature of the controversy, and (iii) that party’s nominee, if any, for arbitrator.

Arbitration under this Section 22 shall be conducted by a single arbitrator selected by negotiations between an authorized attorney for each arbitrating party.  If, after a period of thirty (30) calendar days from the demand for arbitration, no single arbitrator is selected, then such single arbitrator shall be selected in accordance with Rule 13 of the AAA Commercial Arbitration Rules then in effect, to the extent those rules are not inconsistent with the provisions contained in this Agreement.  In connection with the selection of such single arbitrator, consideration shall be given to each potential candidate’s familiarity with the software business and experience in dispute resolution between parties, as a judge or otherwise.  If the arbitrator cannot continue to serve, a successor shall be selected by the procedures set forth above.

The arbitrator shall be guided, but not bound, by the Federal Rules of Evidence and by the procedural rules, including discovery provisions, of the Federal Rules of Civil Procedure. Any discovery shall be limited to information directly relevant to the controversy or claim in arbitration. The arbitrator’s ruling on discovery and procedural matters shall be binding.  An award rendered in connection with an arbitration pursuant to this Section 22 shall be final and binding, and judgment upon such an award may be entered in any court having jurisdiction to do so.  Each arbitrating party consents to personal jurisdiction in the state and federal courts of Houston, Texas for such purpose. 

Customer agrees to be responsible for Customer’s own costs and expenses of any arbitration, except for the fees and expenses of the arbitrator, which shall be shared equally by Customer and Rothwell. 

23. FORCE MAJEURE

Any delay or nonperformance of any provision of this Agreement caused by conditions beyond the reasonable control of the performing party shall not constitute a breach of this Agreement, provided that the delayed party has taken reasonable measures to notify the other of the delay in writing. The delayed party’s time for performance shall be deemed to be extended for a period equal to the duration of the conditions beyond its control. Conditions beyond a party’s reasonable control include, but are not limited to, natural disasters, acts of government after the date of the Agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war or terrorism, and epidemics. Failure of subcontractors and inability to obtain materials shall not be considered a condition beyond a party’s reasonable control. 

24. ENTIRE AGREEMENT

This Agreement sets forth the entire agreement and understanding between Customer and Rothwell relating to the subject matter herein and merges and supersedes all prior discussions, agreements, negotiations, and understandings between the parties, whether written or oral.  No modification of or amendment to this Agreement, nor any waiver of any rights, shall be effective unless in writing signed by an authorized representative of the party to be charged.  Any subsequent change(s) in Subscription and Maintenance fees shall not affect the validity or scope of this Agreement.