MASTER LICENSE AGREEMENT

Please read this Master License Agreement (the “Master Agreement”) carefully before activating and using the Program (defined in Section 1 below).   The Agreement (defined in Section 1 below) forms a legally binding agreement between you and, as applicable, the company on whose behalf you work (“Customer”) and ModelSolv, Inc., a Delaware corporation having a place of business at 42 Donald Drive, Hastings-On-Hudson, NY 10706 (“ModelSolv”).  By clicking on “I agree,” “I accept” or an equivalent message, or by activating or using the Program, you accept the Agreement without modification and agree to be bound by all its terms.  By accepting this Master Agreement, you represent and warrant that you have all requisite power and authority to enter into this Master Agreement on behalf of Customer and to bind Customer to its terms.  If you do not accept the terms of the Agreement, you may not activate or use the Program, but you may uninstall the Program. The parties may also enter into one or more addenda, exhibits, or Order Forms that reference this Master Agreement and upon each of their executions will be incorporated by reference in the Agreement.

1. Definitions.

“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement.  For purposes of the foregoing, “control” means the ownership or power to control at least fifty (50%) of the equity voting interests in the company.

“Agreement” means this Master License Agreement and all related addenda, amendments, Order Form(s), attachment(s), exhibit(s) or schedule(s), if any.

“API Documentation” means any documentation describing how software can interact or integrate with any software or source code derived from Generated Code, including (without limitation) documentation and diagrams (and derivatives thereof) automatically generated by the Program.

“Customer” means the entity listed above as “Customer.”

“Customer Software” means any software that Customer develops, or is developed on Customer’s behalf by a third party, with the assistance of the Programs, which may include or be based upon Generated Code.

“Desktop” means an individual computer that can only be used by one Individual User at a time.

“Documentation” means the user manuals and other technical documentation for the Programs normally made available electronically to Customer with the Programs or on websites operated by ModelSolv.

“Educational Institution” means a primary, secondary, or post-secondary school, college, or university accredited by a state government of the United States of America, the U.S. Department of Education, or an equivalent foreign governmental body.

“Effective Date” means the date on that Customer electronically consents to the Master Agreement.

“Generated Code” means source code, machine readable files, human readable files, and any other artifacts generated by the Programs pursuant to instructions specified by Customer, including (without limitation) stub code, API documentation, diagrams, executable code, declarative code (such as schemas or API description formats), and any other output of the Programs.

“Individual User" means any employee or individual independent contractor of Customer who is performing programming or related services for Customer on Customer’s software.  Individual User does not mean a corporation, company, partnership, association, entity or organization.  The maximum number of Individual Users may be specified in the Order Form.

“License Fees” means the one-time or periodic fees owed by Customer to ModelSolv for the license to the Programs, as specified in one or more Order Forms.

“License Restrictions” means the restrictions described in Section 2.1(b) and (c) of this Master Agreement and in the Order Form.

“License Term” means the period of time that Customer is permitted to use and possess the Programs, as specified in the Orders, which may be for a limited period of time or perpetually (as applicable).

“Order(s)” or “Order Form(s)” means the ModelSolv order document (which may be an electronic document, web page, or invoice) agreed to by both parties evidencing the purchase of a specific number of Individual User licenses to use a Program.

“Price List” means the publication issued from time to time by ModelSolv describing the Programs then available for license by ModelSolv, and related License Fees, maintenance fees and fees for professional services (if offered, which will be subject to an exhibit or addendum).

“Program(s)” or “Licensed Program(s)” means the machine-readable, binary code version of the ModelSolv computer software products listed in Order Form(s), downloaded or installed by Customer and described in more detail in ModelSolv’s then current Price List, and any and all modifications, updates, corrections, enhancements and derivative works thereof, as licensed by ModelSolv in accordance with the terms of this Agreement.

2. License Grant; Restrictions; Maintenance and Upgrades.

2.1 Paid Licenses.

(a) License.  Subject to the terms and limitations set forth in this Agreement and sub-section (b) below, ModelSolv grants to Customer a limited, revocable (as specifically set forth in this Agreement), worldwide, non-exclusive, non-sublicensable, non-transferable (except as specifically set forth in this Agreement), license to use the Program listed on an Order Form for the License Term in accordance with this Master Agreement and the relevant Order Form(s) (the “License”).

(b) Licensing Restrictions.  The Order Form shall specify the number of Individual Users for which Customer is licensing the Program (and if not specified therein, then the License is for one Individual User) and only such number of individuals may use the Program. The Order Form may also specify a License Type, which if specified, shall restrict Customer’s use of the Programs and trigger additional obligations and warranties as follows:

i.   If the Order Form specifies that the License is an “Educational License” or for “Educational Purposes,” then Customer represents and warrants that Customer is an Educational Institution or a full-time student, staff or faculty member of an Educational Institution and that Customer shall only use the Program and Generated Code (and derivatives thereof) for academic purposes and not for any commercial or profit purposes.

ii.   If the Order Form specifies that the License is a “Non-Profit License,” then Customer represents and warrants that it is organized as a non-profit entity and it has and will maintain 501(c)(3) status from the U.S. Internal Revenue Service (or an equivalent charitable non-profit status with its appropriate foreign taxation authority).

iii.  If the Order Form specifies that the License is a “Startup License,” then Customer represents and warrants that among itself and all of its Affiliates it has fewer than the equivalent of 10 full-time employees (calculated based on a 40 hour work week) throughout the world or has been organized or incorporated within the four years preceding the Effective Date (based on its predecessor’s organization or incorporation date, if Customer is a successor in interest to a corporate or asset transaction).

iv.  If the Order Form specifies that the License is a “Small Business License” or “SMB License,” then Customer represents and warrants that among itself and all of its Affiliates it has fewer than the equivalent of 1,000 full-time employees (calculated based on a 40-hour work week) throughout the world.

v.  If the Order Form specifies that the License is a subscription-based license, then ModelSolv may, with not less than 30 days’ prior written notice (email sufficing), change the Price List (a “Price Change Notice”) and Customer shall pay (in accordance with Section 5 (“Payment”) below) the applicable new prices as of its next payment due date following such notice period; provided, however, that Customer may terminate this Agreement by providing fifteen (15) days’ prior written notice (email sufficing) within fifteen (15) days of receipt of a Price Change Notice. 

Customer’s compliance with the License Restrictions is a material condition of the License and ModelSolv’s consent to this Agreement. The Program may be installed on up to three Desktops per Individual User, provided that the Individual User is the exclusive user of all Desktops on which the Program is installed.

(c) Additional Restrictions.

i.   No Service Bureau or External Use. Customer may use the Programs only for its own business purposes, and may not loan, distribute, rent, or lease the Programs, and may not make the Programs available as a service or on a service bureau basis. Furthermore, Customer may not sell, or otherwise receive compensation for, granting an ownership or exclusive license interest (or equivalent rights) in Customer Software to any third party.

ii.   Transferring Copies. Customer may transfer a copy of the Program from one Desktop to another or permit a different Individual User to utilize the Program, provided that Customer does not breach any License Restriction.

(d) Reservation of Rights. All rights not expressly granted to Customer are reserved by ModelSolv. Customer shall have no rights to use, modify, distribute copy or reproduce the Programs or Documentation except as expressly set forth in this Agreement.

(e) Distribution of Generated Code and API Documentation.

Customer may publicly distribute API Documentation and Generated Code (and derivative works thereof or works based thereon), provided that Customer maintains the branding, logos, attribution language, intellectual property legends, and ModelSolv corporate descriptors automatically generated by the Program in the creation of the Generated Code and API Documentation (the “ModelSolv Disclosure”). If Customer substantially changes the display or formatting of the API Documentation or Generated Code (or derivative works thereof or works based thereon), then it shall duplicate, as closely as possible, the ModelSolv Disclosure in such new display or format.

(f) Upgrades. During the License Term specified in the Order Form (or if not expressly specified therein, then for three years beginning on the Effective Date), Customer may download, install and use any updates to the Program that ModelSolv makes generally available to its customers of the.  All such updates, and Customer’s use of them, will be governed by the terms of this Master Agreement.  ModelSolv reserves the right to offer different software programs, new or different editions of software programs, and for add-on or enhanced features or functionalities that are not part of such updates and any of which ModelSolv may offer for an additional charge independent of the License Fee.

(g) Effect of Termination.

i.   Subsection 2.1(g)(ii) below shall apply (1) upon any expiration of the License Term or termination of this Agreement, if Customer's License is a subscription-based license, and (2) notwithstanding anything in this Agreement to the contrary, upon termination of this Agreement by ModelSolv pursuant to Section 7.1(a), if Customer's License is a non-subscription-based license (each, an "Applicable Termination").

ii.   Upon the occurrence of an Applicable Termination, (1) Customer shall perform its obligations under Section 7.2 (“Obligations upon Termination“) below, (2) all licenses granted herein shall automatically terminate, (3) any technical support or warranties made available to Customer pursuant to this Agreement or otherwise relating to its use of the Programs shall terminate, (4) Customer shall cease all use of the Program and Program Materials, and (5) Section 7.3 (“Survival”) below shall apply.

2.2 Free Trial License.

Notwithstanding the terms of Section 2.1 above, the following terms shall apply if Customer is receiving a free trial license.

(a) License.  Subject to the terms and limitations set forth in this Agreement and subsections (b)-(e) below, ModelSolv grants Customer a limited, revocable, non-transferable license to install and use one (1) copy of the installed Program in object-code form only on a computer owned and controlled by Customer, as well as any accompanying user documentation made available by ModelSolv, solely for internal evaluation purposes during the term of this Agreement and solely in accordance with the terms of this Agreement.

(b) Licensing Restrictions.  Customer’s license is non-sublicensable and non-assignable, and Customer shall not grant third parties access to the Program or any accompanying user documentation or resell the Program.   Customer also may not use the Program for benchmarking purposes or any other purposes than those expressly permitted by this Agreement.  Customer may print a reasonable number of copies of the user documentation for the Program for its own internal use in connection with the trial described in this Agreement.  Access and use of the Program and accompanying documentation is strictly limited to Customer’s employees who are legally bound to observe the restrictions in this Agreement.   Customer shall provide information and feedback regarding the performance of the Program in the trial and Customer’s experience in connection with the trial as reasonably requested by ModelSolv.  Customer shall not use any Generated Code or any software it develops based on Generated Code (i) in any production environment, (ii) for any purpose other than evaluation and testing, or (iii) in connection with computer systems or server programs that process data for profit-making purposes or are used in any production environment.  Additionally, Section 2.1(c)(i) (“No Service Bureau or External Use”) and Section 2.1(d) (“Reservation of Rights”) shall apply to all free trial licenses.

(c) Automatic Termination of Trial.  If Customer is receiving a free trial then this Agreement shall terminate automatically forty-five (45) days after the Effective Date (the “Trial Period”), unless terminated earlier in accordance with Section 2.2(d) below or unless Customer purchases a paid license. If Customer purchases a paid license, then any terms of this Agreement relating to paid licenses shall become effective and this Section 2.2 shall become void and ineffective with respect to the relevant Program(s).  If Customer does not purchase a paid license enter a license key then, in addition to termination of this Agreement, the Program will be disabled upon expiration of the Trial Period.

(d) Additional Termination. If Customer is receiving a free trial then this Agreement shall terminate automatically upon breach of any term by Customer. Additionally, either party may terminate this Agreement immediately upon written (including electronic) notice to the other party. 

(e) Effect of Termination. If Customer is receiving a free trial then upon any expiration or termination of this Agreement, in addition to Customer’s obligations under Section 7.2 (“Obligations upon Termination“) below, all licenses granted herein shall automatically terminate and Customer shall cease all use of the Program and Program Materials.  Additionally, Section 7.3 (“Survival”) below shall apply to all free trial licenses.

3. Title.

3.1 The Programs furnished under this Agreement are licensed, not sold, to Customer.  ModelSolv and its suppliers possess all right, title and interest in and to the Programs, the Documentation and all copies thereof, and any copyrights, patent rights, trademarks, service marks, trade names, trade dress, trade secrets and other proprietary rights that are associated with the Programs or Documentation, and Customer acknowledges that it receives no right, title or interest to the Programs or Documentation except for the limited right of use provided within this Agreement.

3.2 Customer agrees to not contest or question ModelSolv’s title to the Programs or Documentation, and shall not reproduce (except as specifically permitted by this Agreement), decompile, disassemble, or reverse engineer any portion of the Programs or otherwise derive their source code, except to the extent that applicable local law expressly permits such activity.

3.3 Customer Feedback. From time to time Customer may provide suggestions, enhancement or modification requests, recommendations or other feedback relating to the Programs (the “Suggestions”). ModelSolv owns all right, title and interest in any Suggestions, and Customer hereby assigns and transfers to ModelSolv all its right, title and interest (including all intellectual property rights) in and to the Suggestions.

3.4 Attribution. Customer hereby grants to ModelSolv a royalty free, non-exclusive license during the term of this Agreement to use its trademarks, service marks and other proprietary indicia of the other party to establish a client or vendor (as applicable) list on ModelSolv’s website, in ModelSolv’s marketing materials, and in ModelSolv’s press releases. ModelSolv will comply with Customer’s reasonable written requests as to the usage, display and presentation of such trademarks, service marks or other proprietary indicia. Furthermore, Customer consents to ModelSolv releasing a press release announcing Customer is a customer and the name of the Programs licensed, but may not release the pricing, Licensing Restrictions, terms of this Agreement or other details of their business relationship. Except as expressly provided in this Section 3.4 or otherwise in this Agreement, neither party may otherwise use the other party’s trade or service marks or other proprietary indicia.

4. Ordering Programs.

An Order will be binding on both parties when agreed to by both parties.  Each Order shall include the following information for each Licensed Program: the Program ordered, the version, the type of License, and the number of Individual Users licensed.  No additional or different terms in any Customer purchase order or similar document shall modify the terms of this Agreement unless such terms are specifically accepted in writing by ModelSolv. ModelSolv, in its sole and absolute discretion, may extend a limited-duration License Term upon e-mail notice to Customer for any Program licensed only for Testing Purposes.

5. Payment.

5.1 Fees for Software Licenses. Except when Customer is receiving a free trial, Customer shall pay ModelSolv the License Fees by credit card or as otherwise specified by ModelSolv.

5.2 Taxes.  Customer shall be responsible for any applicable sales, use, value added or similar taxes payable with respect to the licensing of Programs to Customer, or arising out of or in connection with this Agreement, unless such taxes levied or imposed are based upon ModelSolv’s net income.  If Customer has tax-exempt status, Customer shall provide written evidence of such status to ModelSolv.

5.3 Billing Disputes.  If ModelSolv agrees to invoice Customer for the License Fees, Customer must provide ModelSolv with written notice of any disputed charges within fifteen (15) days after the invoice date or shall be deemed to have waived its right to dispute charges.  If such dispute is properly submitted for the applicable invoice, Customer agrees to pay the invoiced amount minus the disputed amount on or before the due date.  The dispute notice shall set forth in reasonable detail the information concerning the disputed charges and reasons for the dispute.

5.4 General. If ModelSolv agrees to invoice Customer for License Fees, Customer shall pay all amounts due under this Agreement to ModelSolv in U.S. dollars within thirty (30) days from the date of invoice, unless specified otherwise in an Order.   ModelSolv may charge interest on overdue amounts at the rate of one and one-half percent (1.5%) per month or the highest lawful rate, whichever is less. In the event that ModelSolv must institute legal proceedings to collect any fees or enforce its rights under this Agreement, Customer shall be liable for all reasonable attorneys’ and professionals’ fees and other legal and collection costs associated therewith, including any fees owed to collections agencies. 

6. Term of Agreement.

This Agreement will begin on the Effective Date and will continue unless terminated as described herein.

7. Termination.

7.1 Termination. Either party (the “Terminating Party”) may immediately terminate this Agreement or suspend any rights granted hereunder upon notice to the other in the event that: (a) the other party breaches any material term of this Agreement including, without limitation, the obligation to pay amounts due under this Agreement and such breach is not cured within thirty (30) days after written notice from the Terminating Party; or (b) upon the other party's dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, assignment for the benefit of creditors, or the appointment of a receiver, trustee, custodian, or similar agent for the party's business or property. Additionally, in the case of a subscription-based License, this Agreement shall terminate upon expiration of the License Term, unless renewed or extended by mutual written consent of the parties. In the event that ModelSolv terminates this Agreement for a material or willful breach, all amounts due under this Agreement shall immediately become due and payable.  The terms of Section 2.2(c) above shall control over the general language of this Section 7.1 with respect to trial licenses.

7.2 Obligations upon Termination. On expiration or termination under section 7.1, Customer shall promptly remit to ModelSolv all unpaid monies due, or to become due, under this Agreement.  Upon expiration or termination for any reason, Customer agrees to return to ModelSolv or destroy all copies of the Programs in its possession.

7.3 Survival. In addition to those provisions which by their nature are intended to survive any termination or expiration of this Agreement or any license granted hereunder, including this Survival provision (7.3 Survival), Sections 2 (License Grant and Restrictions) (except as provided in Section 2.1(g) above), 3 (Title), 5 (Payment), 8 (Confidentiality), 9 (Right to Audit), 10 (Warranty, Remedy and Restrictions), 11 (Indemnification and Infringement) and 12 (Limitation of Warranty and Liability) of this Agreement shall specifically survive such termination or expiration.

8. Confidentiality; Usage Data.

(a) Each party agrees not to permit access to or to disclose the other party’s Confidential Information, except to its authorized employees and contractors who are bound by confidentiality agreements with terms no less restrictive than those of this Section 8 and who need to use or have access to the other party’s Confidential Information for the purposes permitted by this Agreement.  A receiving party shall use at least the same degree of care in protecting the other party’s Confidential Information as such party generally exercises in protecting its own most valuable proprietary information and shall inform its employees and contractors having access to the Confidential Information of its confidential nature. In no event shall a party use less than a professionally reasonable degree of care in protecting Confidential Information.  “Confidential Information” includes documents, data, software and information which, when provided by one party to the other: a) are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; b) are disclosed orally or visually, and identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within 10 business days; or c) a reasonable person would understand to be confidential or proprietary at the time of disclosure.  Results of benchmark, evaluation, and other tests run by Customer and resulting from use of the Programs shall be deemed ModelSolv’s Confidential Information and treated in accordance with the terms of this Section 8, along with all copies of the Program and Documentation and all associated know-how, embodiments, features, interfaces, and processes.  Notwithstanding the foregoing, the receiving party shall have no obligation of confidentiality with respect to any information it can demonstrate: (a) is already known to the receiving party at the time of disclosure; (b) is or subsequently becomes publicly available through no wrongful act of the receiving party; (c) is disclosed or provided to the receiving party by a third party without restriction and without having violated any confidentiality obligation of such party; or (d) is developed independently by the receiving party without use of or access to the disclosing party’s Confidential Information.

(b) ModelSolv may collect usage data from the Program (collectively, “Usage Data”), for analytics and research, to help provide and improve the Program, and to communicate with Customer about ModelSolv’s products and services.  Any Usage Data will be treated in accordance with ModelSolv’s Privacy Policy, published at http://RepreZen.com/privacy, which is hereby incorporated into this Agreement by reference.

9. Right to Audit.

Customer agrees to keep complete and accurate records (including, but not limited to, a complete copy of the log files for the Programs, where applicable) to permit an accurate assessment of Customer’s compliance with its permitted Program usage and other License Restrictions.  At any time upon thirty days’ notice, but not more than once per year unless ModelSolv has reason to believe that a violation has occurred, ModelSolv may require Customer to perform a self-audit of Customer’s usage of the Programs.  Following Customer’s self-audit, ModelSolv may also perform an audit of Customer’s use of the Programs by either reviewing Program use on-site or by telephone.  ModelSolv agrees to fully comply with all reasonable security requirements of Customer and will furnish Customer with a copy of its audit report upon written request.  If an audit reveals that Customer has used any Program beyond the scope of its license, Customer shall cure such breach within 30 days of written notice by ModelSolv by paying all applicable License Fees in accordance with ModelSolv’s then current Price List, together with reasonable ModelSolv costs associated with the performance of the audit (if any).  ModelSolv’s acceptance of any payment shall be without prejudice to any other rights or remedies of ModelSolv under this Agreement or applicable law.

10. Warranty, Remedy and Restrictions.

10.1 ModelSolv Warranties. ModelSolv represents and warrants to Customer that ModelSolv has the legal power and authority to enter into this Agreement. 

10.2 Customer Warranty. Customer warrants to ModelSolv that: (i) it has the legal power and authority to enter into this Agreement; and (ii) Customer shall at all times comply with any laws, rules and regulations applicable to its activities, industry and geographic territory. 

10.3 Intended Uses. Customer acknowledges that the Programs and any Generated Code produced therefrom are not fault tolerant or fail-safe and not intended to be in any application requiring such features.  ModelSolv shall have no liability whatsoever for any injuries, losses or damages arising from the use of the Programs, or any components or modifications thereof, for any such purposes, including any use in aircraft, weapons or missile systems, systems used in providing medical care, or systems used in connection with the operation or maintenance of nuclear plants or any type of hazardous materials.  

11. Indemnification.

Customer shall indemnify, defend and hold harmless ModelSolv and its Affiliates from any and all claims, demands, suits, proceedings, losses, costs, damages, liabilities and expenses (including reasonable attorneys’ fees) arising out of Customer’s (i) breach of this Agreement, (ii) use of the Software, or (iii) actual or alleged infringement by Customer Software or part thereof, including any Generated Code contained therein, of any patent, copyright, or other proprietary right of a third party.  

12. Limitation of Warranty and Liability.

12.1 Warranty Limitations. MODELSOLV MAKES AND CUSTOMER RECEIVES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND AND MODELSOLV SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, (A) ANY WARRANTY OF MERCHANTABILITY, FREEDOM FROM VIRUSES, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE (B) ANY WARRANTY THAT THE PROGRAMS WILL OPERATE IN A TIMELY, UNINTERRUPTED, OR ERROR-FREE MANNER; (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR (D) ANY STATUTORY REMEDY.  NO STATEMENT WHETHER MADE BY MODELSOLV’S EMPLOYEES, AGENTS OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY MODELSOLV FOR ANY PURPOSE OR TO GIVE RISE TO ANY LIABILITY ON THE PART OF MODELSOLV UNLESS SPECIFICALLY CONTAINED IN THIS AGREEMENT.  THE PROGRAM WILL CONTAIN BETA OR PRE-PRODUCTION RELEASE SOFTWARE THAT WILL CONTAIN

12.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL MODELSOLV BE LIABLE TO CUSTOMER UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF DATA OR USE OF DATA OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. 

12.3 Limitation of Liability. IN NO EVENT WILL MODELSOLV’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO MODELSOLV UNDER THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE LATEST CLAIM.

13. General.

13.1 Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed in all respects by the laws of the State of New York, USA, without giving effect to principles of conflicts of laws. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. Subject to the following sentence, both parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in or embracing Westchester County, New York, United States of America. Either party may seek emergency or injunctive relief from any court of competent jurisdiction to protect its rights in its Confidential Information or intellectual property.

13.2 Notices. All notices or reports shall be in writing and shall be delivered by personal delivery, facsimile transmission, e-mail, overnight mail or certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission.  Notices shall be sent to the respective addresses set forth on the first page of this Agreement, and shall be addressed to the Chief Executive Officer.

13.3 No Agency. The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties.

13.4 Injunctive Relief. Each party acknowledges that its breach of this Agreement may cause the other party immediate and irreparable damage for which recovery of money damages would be inadequate.  Therefore, each party agrees that the other party may be entitled to seek injunctive relief to protect its rights under this Agreement in addition to any other remedies available to said party, without the necessity of posting bond.

13.5 Force Majeure.  Neither party shall be liable to the other, for any failure or delay in the performance of its obligations (except for required payments pursuant to Section 5 and confidentiality obligations pursuant to Section 8) due to any cause that is beyond the reasonable control of such party.

13.6 Waiver. If one party fails to enforce a provision of this Agreement, it shall not be precluded from enforcing the same provision at another time.

13.7 Severability. If any provision of this Agreement is deemed unenforceable or invalid by law or by a court decision, the provision shall be changed and interpreted if possible to accomplish the intent of the provision within the constraints of the law.  Only that provision that is deemed unenforceable or invalid, and not the entire agreement, shall be invalidated.

13.8 Assignment. Customer may not assign this Agreement, in whole or in part to any third party without the prior written consent of ModelSolv; provided, however, Customer may assign this Agreement to an Affiliate or entity that acquires all or substantially all of Customer’s assets (by merger, asset acquisition, or otherwise) upon written notice to ModelSolv.  However, ModelSolv retains the right to prohibit any assignment to a direct competitor of ModelSolv.  With respect to any Enterprise-Wide License granted to Customer, the following provisions shall apply:

(a)  In the event of a change of control of Customer, or where Customer’s assets are acquired by a third party, the surviving entity, acquirer or assignee shall not be entitled to expand or download any additional licenses under any Enterprise-Wide License beyond the current number of licenses of Programs in actual use and production at the time of such transaction and the scope of the Customer’s business preceding the transaction.

(b) In the event that Customer acquires a third party’s business or assets and Customer is the surviving entity in such transaction (by asset sale, stock sale, merger or otherwise), Customer shall have the option to include the acquired businesses or assets in any existing Enterprise-Wide License for the duration of the applicable ELA Term.  The additional License Fee to be paid to ModelSolv upon written exercise of such option shall be an amount equal to the original License Fee for the Enterprise-Wide License multiplied by the percentage factor derived by dividing (a) the total revenue from the prior fiscal year of the acquired business or assets by (b) the total revenue of the prior fiscal year of Customer.  Such revenue calculations shall be based upon audited financial statements provided to ModelSolv. However, no additional License Fee shall be charged to Customer under this sub-section if the total revenue of the acquired businesses or assets for the prior fiscal year constitutes less than five percent (5%) of Customer’s total revenue for the prior fiscal year.

13.9 No Conflicting Terms. ModelSolv shall not accept, and this Agreement does not operate as an acceptance of, any different or additional terms and conditions, and this Agreement shall prevail over any such different or additional provisions, of any Customer order or any other Customer originated instruments.

13.10 Entire Agreement. This Agreement supersedes all previous agreements, whether oral or written, with respect to its subject matter.  This Agreement may only be changed in a writing signed by authorized representatives of each party.

13.11 Order of Precedence. In the event of any inconsistencies between the Agreement and an Order Form, the conflict shall be resolved in the following order of priority:  (1) Order Form and (2) Agreement.

13.12 Export Compliance. Regardless of whether Customer is a US-based entity, Customer shall not export or re-export any of the Programs or Documentation (in whole or in part) to any country without ensuring that such export complies with the Export Administration Regulations of the U.S. Department of Commerce, or any other agency of the U.S. Government, or similar laws governing the export of software or products of any other government having jurisdiction over such export, re-export, or use, pursuant to any applicable statute, regulation, or governmental order.  Customer agrees to remain at all times in full compliance with U.S. Government export policy and regulations and failure of such compliance shall constitute a material breach of this Agreement.

13.13 Restricted Rights. The Programs and any related information are commercial computer software and commercial computer software documentation, and, as specified in FAR 12.212 or DFARS 227.7202, and their successors, as applicable, the U.S. federal government’s rights to use, reproduce or disclose such software, documentation and other information are restricted in accordance with the terms and conditions of this Agreement. Use, duplication or disclosure by the U.S. federal government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.