Epicor Site Subscriber-agreement

MASTER CUSTOMER AGREEMENT
(United States Region)

THIS MASTER CUSTOMER AGREEMENT (“Agreement”) is made and entered into by and between Epicor Software Corporation or its Affiliate identified below (“Epicor”) and the undersigned customer (“Customer”) as of the date signed by Epicor (“Effective Date”).

This Agreement includes the Epicor Master Customer Agreement – General Terms (“Terms”) accompanying this document and each Addendum hereto, which Terms and Addenda will form part of the Agreement. The following terms and conditions also apply to this Agreement:

Choice of Law; Additional Dispute Resolution. Except as otherwise provided herein, the internal laws of the State of Texas govern this Agreement. Any arbitration under the Section headed “Dispute Resolution” in the Terms will be administered by AAA pursuant to its Commercial Arbitration Rules and Mediation Procedures, in a location selected by the party initiating the arbitration. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding any provisions herein with respect to applicable substantive law governing this Agreement, the agreement to arbitrate and any arbitration conducted pursuant thereto shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. Each party submits to the non-exclusive jurisdiction and venue of the state or federal courts located in Travis County, Texas, for purposes of permitted applications of injunctive or other provisional relief, and for any litigation ancillary to arbitration, including without limitation, litigation or to compel arbitration or enforce an arbitral award. Each party waives right to jury trial in connection with any Dispute.

MASTER CUSTOMER AGREEMENT - GENERAL TERMS

Certain Definitions

“Addendum” means a supplement, service specification or other addendum to the Agreement that sets out additional terms and conditions applicable to a Product offering, which expressly incorporates the Agreement by reference.
“Affiliate” means any entity that directly or indirectly, Controls, is Controlled by, or is under common Control with the subject entity.
“Control” or “Controlled”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interest in the applicable entity.
“Customer” means the entity named as the Customer on the signature page to this Agreement.
“Customer Data” means all electronic information provided by Customer to Epicor or its representatives for use in connection with this Agreement.
“Customization” means custom software code created by Epicor in connection with this Agreement and/or as specified in a Services Statement of Work to enhance or otherwise alter the base Software.
“Customization Support” means the maintenance and support services Epicor provides for a Customization, when available, as described in a “Software Support” Addendum.
“Deliverables” means the Products and Documentation, and any tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations that are prepared by Epicor or its subcontractors in the course of furnishing the Products and Documentation.
“Documentation” means Epicor’s standard read-me and online help materials, user documentation and training materials normally made available by Epicor in connection with a specific Product.
“Hardware” means equipment sold by Epicor pursuant to an Order.
“Malicious Code” means a virus, worm, time bomb, Trojan horse or any other similar harmful or malicious code.
“Modification” means a modification, alteration, addition, derivative work, derivation, enhancement and/or improvement of any kind to or of or from or based on or related to the Deliverable, and/or any part thereof, in any form or format. For the avoidance of doubt, configuration of the base Software is not a Modification.
“Order” means Epicor’s standard order form documentation for ordering certain Products.
“Product(s)” means, collectively, Software, Support, Services, Customizations, Customization Support, Subscription Services and/or Hardware.
“Services” means the professional services to be furnished by Epicor to Customer in connection with this Agreement and/or as specified in a Statement of Work, but excludes Subscription Services.
“Software” means the specific application software products or modules licensed by Epicor to Customer hereunder and/or furnished as part of Subscription Services, all as set forth in an Order.
“Software Update” means a patch, workaround, improvement, correction, modification or derivative to the Software that is made generally available by Epicor as part of a Support subscription or Subscription Services.
“Statement of Work” means Epicor’s standard form for ordering certain Products.
“Subscription Services” means software delivered on a software as a service (SaaS) basis and application management or similar services performed on subscription or recurring basis as set forth in an Order or Statement of Work.
“Support” means the maintenance and support services Epicor provides for the Software licensed hereunder and/or furnished as part of the Subscription Services as described in a “Software Support” Addendum.
“Support Term” has the meaning given in the “Software Support” Addendum.
“Third Party Software” means Software (licensed on a subscription or non-subscription basis) that is licensed by Customer directly from a third party vendor under a separate license or similar agreement and/or maintenance and support agreement (as denoted on an Order), even if Epicor arranges for the license of such third party software to Customer and invoices Customer for such third party software.

Software License (applicable to Software licensed to Customer on a non-Subscription basis)

Grant of License. Subject to the terms and conditions herein and any limitations set forth in an Order, Epicor grants Customer a worldwide, personal and non-exclusive license for the use of the Software described in an Order (“License”). The License is also perpetual, subject to Epicor’s right to terminate in accordance with this Agreement. The License is for the object code (run-time) version of the Software and Documentation together with such Software Updates as may hereafter be provided by Epicor to Customer.
Internal Use. The License purchased herein is granted solely to Customer for its internal data processing and data management needs. Customer shall not: (i) use the Software for a timesharing or service bureau application, (ii) provide access to the Software or Documentation to third parties without Epicor’s prior written consent, which may be withheld in its sole discretion, or (iii) lease, license, sublicense, sell, distribute, encumber or otherwise transfer the Software and Documentation except as otherwise expressly permitted herein.
License Fees. The Software is licensed for a onetime license fee listed on an Order, except as otherwise set forth therein.
Copies. Customer may make a reasonable number of copies of the Software and Documentation solely for its own data archival or disaster recovery purposes. Customer shall not permit any third party to copy the Software or Documentation.
License Type Descriptions. The Software is licensed to Customer subject to the associated license type(s) designated on an Order and/or the related Documentation.
Software Warranties and Disclaimers

Epicor warrants for a period of 180 days following the date the Software is initially shipped or made electronically available to Customer that: (i) the Software, when used in the manner and in an operating environment specified in its Documentation, will substantially conform to its Documentation under normal use, (ii) any media upon which the Software is supplied will be free from defects in design, material or workmanship, and (iii) the Software as originally delivered does not contain any Malicious Code.
Except as provided in Section 11.2.2, Epicor’s entire liability for the breach of any warranty made in Section 2.6.1 is to use commercially reasonable efforts to resolve any error or Malicious Code in the Software in a timely manner; provided, however, that Epicor is not responsible to correct, cure or otherwise remedy any error in the Software resulting from (a) an alteration, addition, adjustment or repair that is not performed by Epicor or its Affiliates or (b) misuse, damage or unlicensed use of the Software by Customer or a third party.

Escrow. The source code for Epicor’s proprietary Software is deposited in escrow. Customer may subscribe to the Epicor’s master escrow arrangement at any time upon agreeing to its terms and paying the applicable fees therefor.

Subscription Services. The following are the terms and conditions under which Epicor performs Subscription Services:

Grant. Subject to the terms and conditions herein and any limitations set forth in an Order or Statement of Work, Epicor grants Customer a worldwide, personal, non-transferable, non-perpetual, terminable and non-exclusive right to access and use the Subscription Services and the applicable Documentation as described in the Order or Statement of Work.
Fees. The fees for the Subscription Services are delineated in an Order or Statement of Work and are due and payable periodically in advance as set forth therein. Epicor reserves the right to withhold Subscription Services while any Subscription Services fees remain overdue.
Internal Use. The rights granted in Section 3.1 are granted solely to Customer for its internal data processing and data management needs. Customer shall not (a) make the Subscription Services available to anyone other than its authorized users, or (b) sell, resell, rent or lease the Subscription Services. Customer shall use all reasonable efforts to prevent unauthorized access to or use of the Subscription Services, and notify Epicor promptly of any such unauthorized access or use.
Exclusions. Customer acknowledges and agrees that Epicor exercises no control over, and accepts no responsibility for, the content of the information passing through the Internet or for Internet connectivity outside of Epicor’s control. Customer assumes responsibility for its use of the Subscription Services and the Internet.
Subscription Services Warranties

Epicor’s entire liability for the breach of any warranty made in Section 3.5.1 is to use commercially reasonable efforts to resolve any error or Malicious Code in the Subscription Services in a timely manner; provided, however, that Epicor is not responsible to correct, cure or otherwise remedy any error in the Subscription Services resulting from (a) an alteration, addition, adjustment or repair to the Subscription Services that is not performed by Epicor or its Affiliates or (b) misuse, damage or unlicensed use of the Subscription Services by Customer or a third party.
Epicor’s delivery of Subscription Services may be subject to an infrastructure service level agreement (“SLA”) and remedy as set forth in the applicable Order or Statement of Work, in such case Epicor’s entire liability in respect to such SLA is set forth in such Order or Statement of Work, as the case may be.

Subscription Services Term; Renewal Fees

The Subscription Services will be performed for the term listed in the Subscription Services Order or Statement of Work applicable thereto (“Initial Subscription Services Term” and a “Subscription Services Term”). After the Initial Subscription Services Term, the Subscription Services will automatically renew on the terms and conditions set forth herein from year to year (each, also a “Subscription Services Term”) unless terminated by a party upon written notice given at least 90 days prior to the expiration of the then expiring Subscription Services Term. Epicor may increase the recurring fees applicable to each annual renewal Subscription Services Term (as denoted in a renewal invoice); provided that in no event may Epicor increase its standard rate by more than 7% per annum for purposes of calculating the renewal rate hereunder.
Epicor may terminate the Subscription Services Order or Statement of Work: (i) on written notice upon Customer’s failure to pay amounts when due, after 30 days’ written notice and failure to cure; (ii) for breach of a material provision of this Agreement, after 30 days’ written notice and failure to cure; (iii) upon written notice if Epicor is unable to perform the Subscription Services hereunder due to Customer’s acts or omissions; (iv) upon written notice upon any regulatory decision or governmental order requiring Epicor to suspend Subscription Service(s), upon reasonable notice; or (v) upon written notice if Customer files for bankruptcy or reorganization or fails to discharge an involuntary petition therefore within 60 days after filing.
Upon expiration of the Subscription Services Term or termination of the Subscription Services for any other reason Customer may, within 30 days following such expiration or termination, request in writing that Epicor make available a file of all Customer Data within Epicor’s control in machine-readable format. If no such request is made within such 30-day period, Epicor will have no obligation to maintain the data, and will have no liability to Customer in respect of the same. In any event, Epicor may destroy all Customer Data as soon as is reasonably practicable after this 30-day period has ended.
Except as otherwise set forth in a Subscription Services Order or Statement of Work, if the Subscription Services are terminated before the end of the Subscription Services Term, which can only be done on 30 days’ prior written notice, Customer will pay all amounts then due plus an early termination charge equal to 100% of the recurring Subscription Services fees applicable for the remainder of the Subscription Services Term, except: (i) Customer terminates as a result of Epicor’s material uncured breach (pending determination of whether such breach occurred or was uncured), or (ii) Epicor terminates this Agreement pursuant to Sections 3.6.2(iv) or 11.1.2(iii). The parties specifically agree that the damages that Epicor would incur arising from any breach or early termination of this Agreement by Customer are based upon future facts and conditions which are difficult for the parties to presently predict, anticipate, ascertain or calculate. The parties further agree that such liquidated damages, as determined herein, are based upon the best efforts of the parties to estimate the nature and amount of Epicor’s actual damages, are not penal in nature, and are intended to place Epicor in the same position it would have achieved, had this Agreement been fully performed by the parties according to the original terms. Upon the effective date of expiration or termination of the Order or SOW, (a) Epicor will immediately cease providing the Subscription Services, and (b) any and all payment obligations of Customer under this Agreement will become due immediately.

Software Support; Customization Support. Epicor’s delivery of Support and Customization Support (where available) shall be furnished in a commercially reasonable manner, in accordance with our then current support practices and subject to the terms of this Agreement. When applicable, Support may also be subject to the additional terms and conditions contained in a separate “Software Support” Addendum.
Professional Services. The following are the terms and conditions under which Epicor provides Services:

Scope of Service; Change. Any Services to be performed by Epicor will be described in separately agreed Statements of Work. Any changes to the scope contemplated in a Statement of Work must be made by a written change order or amendment to the Statement of Work signed by an authorized representative of each party.
Services Fees and Expenses. Except as otherwise set forth in a Statement of Work, Services are billed on a time and materials basis periodically as work is performed with payment rendered by Customer under the terms described in the applicable Statement of Work. Epicor reserves the right to withhold Services while any Services fees remain overdue if such fees are not the subject of a bona fide dispute communicated to Epicor in writing. Customer will reimburse Epicor for reasonable out-of-pocket expenses incurred in performance of the Services, which include but are not limited to travel expenses, per diem and mileage as may be further described in a Statement of Work.
Hours of Service. Services will be performed during normal local business hours, Monday through Friday, excluding holidays, or as otherwise set forth in the Statement of Work. Customer may request in writing extended hours of Services at the prevailing surcharge rates.
Customizations. Epicor will perform Customizations as set out in a Statement of Work in which case Customer will have the same license usage rights to the Customizations as it has to the Software licensed hereunder. Customizations are not covered by Support. Customization Support is separately available pursuant to the terms of a separate “Software Support” Addendum.
Services Warranties. Epicor represents and warrants that (i) the Services will be provided by qualified personnel with reasonable skill and care in accordance with generally accepted industry standards, (ii) in performing the Services it will not introduce Malicious Code into Customer’s system(s), and (iii) each Customization will substantially conform to the agreed specification for a period of 90 days (180 days if the Customization is subject to Customization Support) following delivery of the Customization to Customer. Epicor’s obligation respecting its material breach of the foregoing warranties is for Epicor to re-perform the affected Services and/or repair the affected Customization, as the case may be, at no additional cost to Customer.
Customer Responsibilities. During a Services engagement Customer will provide Epicor with reasonable access to requested resources such as: (i) Customer’s personnel, facilities, equipment, hardware, software, network and information for Services to be performed on-site, and (ii) timely decision-making, notification of relevant issues or information and granting of approval or permissions as reasonably necessary for Epicor to perform the Services.

Hardware. The following are the terms and conditions under which Epicor resells Hardware:

Purchase Price. Customer shall pay all Hardware fees listed in an Order pursuant to the terms listed therein.
Risk of Loss/Security Interest

General. Except as otherwise provided in an Order, risk of loss for Hardware purchased hereunder shall pass to Customer upon delivery by Epicor to Epicor’s designated carrier. At Customer’s request, Epicor will insure the Hardware against risk of loss and damage while in transit and will add the costs of such insurance to Customer’s invoice for payment. Customer must, and must cause its transferees to, notify Epicor in writing in advance of any transfer of the Hardware and the resulting location thereof until full payment for the Hardware is made.
Shipments within the United States and Canada. For shipments within the United States and Canada, title to the Hardware will also pass to Customer upon delivery by Epicor to the designated carrier; provided, however, that to secure the performance of Customer’s obligations including the payment of any amounts due to Epicor under this Agreement, Epicor retains, and Customer hereby grants to Epicor, a purchase money security interest in all Hardware and licenses of the Software and Documentation installed on such Hardware. Customer agrees to promptly execute any documents required to perfect Epicor’s security interest as a first lien. Customer also authorizes Epicor to act as Customer’s agent and/or attorney-in-fact for purposes of (i) executing and/or filing any documents or registrations which Epicor deems necessary to perfect its security interest and (ii) exercising Epicor’s rights as a secured party under this Agreement.
Shipments outside the United States and Canada. For shipments to destinations located outside the United States and Canada (i) title to the Hardware remains with Epicor and shall not pass to Customer, and (ii) Epicor shall have the authority to repossess, sell or otherwise deal with and/or dispose of the Hardware and any replacements or proceeds thereof and to take any other reasonable steps to protect its interest thereunder if any part of the purchase price becomes overdue.

Preparation. Customer is responsible for all preparation of its facilities as necessary to operate the Hardware.
Operating System Software License. The Hardware purchased hereunder may require certain operating system software, which is furnished to Customer subject to the license terms furnished by the third party hardware or software supplier (“Manufacturer’s Software”).
Warranty and Indemnification Disclaimer

Epicor Proprietary Hardware. Epicor warrants that its (or its Affiliates’) proprietary Hardware purchased under this Agreement will be free of defects in materials and workmanship for a period of 1 year from the date shipped. If any such Hardware is discovered to contain a defect in material or workmanship and Customer reports the defect to Epicor in writing during the warranty period, Epicor will, at its option, repair or replace the defective Hardware within a reasonable period of time. If Epicor is unable to repair or replace the defective Hardware, Epicor will refund to Customer the purchase price paid by Customer for such Hardware. The foregoing is Epicor’s entire liability for breach of the warranty set forth in this Section.
Third-party Sourced Hardware. Third-party sourced Hardware purchased and/or Manufacturer’s Software licensed under this Agreement is warranted, and where applicable subject to indemnification, by the suppliers and/or licensors thereof. Accordingly, and unless otherwise provided herein, Epicor makes no warranties of any kind, express or implied, with respect to the third party-sourced Hardware or Manufacturer’s Software. Epicor agrees to pass through to Customer (to the extent permitted by the third party supplier) and otherwise make available to Customer any and all warranties and indemnification in force and available by the manufacturers of such Hardware or Manufacturer’s Software.

Payments

Pricing; Payment Terms. Except as otherwise set forth in an Order or Statement of Work all payments are due within 30 days following the date invoiced.
Taxes. All prices are exclusive of all applicable country, provincial, state and local sales, use, value added, excise, privilege, franchise and similar taxes (“Taxes”). Customer shall be responsible for all Taxes however designated or levied, against the sale, licensing, delivery, or use of the Products (other than Taxes based upon Epicor’s net income). Taxes shall not be deducted from the payments to Epicor, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, Epicor receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.

Confidentiality

Confidential Information. As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Agreement. Confidential Information includes, without limitation, the Deliverables, copies or abstracts made thereof as well as any modules, samples, prototypes or parts thereto and the details of the employees of the parties or their Affiliates and Customer’s data. Confidential Information does not include any information that (i) is already known to the Receiving Party or received by the Receiving Party from a third party, free of any obligation to keep it confidential; (ii) becomes publicly known through no wrongful act of the Receiving Party; (iii) is independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information; or (iv) is approved for release by written authorization of the Disclosing Party.
Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement without the Disclosing Party’s prior written permission.
Protection. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own, but no less than reasonable care.
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Any such disclosure will be to the minimum extent legally required.
Return. Receiving Party will return all originals, copies and summaries of the Confidential Information upon termination or expiration of this Agreement or upon Disclosing Party’s request, or in the alternative, destroy the same and certify in writing to Disclosing Party that all such Confidential Information has been destroyed. Notwithstanding the foregoing, the Receiving Party may retain electronic copies of the Confidential Information solely for its archival records (including backup systems) that it keeps in the ordinary course of its business to the extent not readily accessible.
Duration. The obligations with respect to Confidential Information will continue until such time it ceases to be considered confidential under Section 8.1.

Proprietary Rights; Customer Data; Usage Restrictions; Third Party Software

Deliverables. Epicor retains sole and exclusive ownership in and to all Deliverables (except for the Third Party Software and related Documentation) developed, created or furnished by Epicor hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how, trade secrets, documentation or techniques developed by Epicor under this Agreement. All rights not expressly granted in this Agreement are reserved by Epicor and its suppliers.
Trademark and Copyright Notices. Customer shall not remove, alter or destroy any proprietary, trademark or copyright notices placed upon or contained within any Deliverables. Customer does not and shall not acquire any rights of any kind in or to any trademark, trade name, logo or product designation under which a Deliverable was or is marketed and may not make any use of the same for any purposes.
Customer Data. Customer agrees that Epicor and its Affiliates and subcontractors may use Customer Data anywhere in the world for the sole purpose of administering and performing Epicor’s obligations and services under this Agreement and Epicor and its Affiliates and subcontractors will do so in accordance with all applicable laws. Customer is and shall be (i) responsible for its users’ compliance with this Agreement, and (ii) solely responsible for the accuracy, quality, integrity and legality of the Customer Data and of the means by which Customer acquires the Customer Data.
Usage Restrictions. Customer shall use the Deliverables only in accordance with the Documentation and in the case of Subscription Services, any reasonable policies and procedures and/or acceptable use policies communicated by Epicor in writing (including by website link) as may be in effect from time to time, and shall not use the Deliverables for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Epicor under this Agreement, Epicor reserves the right to remove or disable access to any material that violates the foregoing restrictions. Epicor shall have no liability to Customer in the event that Epicor takes such action.
Prohibited Actions. Except to the extent permitted by law without the possibility of contractual waiver, Customer may not reverse engineer, decrypt, extract, disassemble, or decompile any Deliverables, or permit anyone else to do so (a “Prohibited Action”). Before Customer exercises any legal right to conduct a Prohibited Action it must provide Epicor with reasonable prior written notice and will not unreasonably refuse to accept any alternative course of action that Epicor proposes to satisfy Customer’s legal rights in lieu of conducting a Prohibited Action. Customer may not disclose any Product pricing, or Deliverables to an Epicor competitor or disclose results of any benchmark or uptime test of the Deliverables to any third party without Epicor’s prior written approval, which may be withheld in Epicor’s sole discretion. For the avoidance of doubt, an Epicor authorized partner is not deemed an Epicor competitor for purposes of this clause. Customer also may not create, make, design, develop or generate any Modification, or reproduce or make any copies of the Deliverables or any part thereof, except solely as expressly permitted in Section 2.5.
High Risk Use. The Deliverables are not fault-tolerant and are not designed or intended for use in hazardous environments, including without limitation, in the operation of aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles or weaponry systems, or any other application in which failure of the Deliverables could lead to death or serious bodily injury of a person, or to severe physical or environmental damage (each, a “High Risk Use”). Epicor and its suppliers expressly disclaim any express or implied warranty or representation of fitness for High Risk Use.
Third Party Software. Notwithstanding anything to the contrary contained herein, Customer’s use of Third Party Software is subject to the terms and conditions of the license agreement that accompanies it. The Third Party Software may only be used in conjunction with Software or Subscription Services supplied by Epicor, except as otherwise denoted on an Order. Third Party Software is warranted, and where applicable subject to indemnification, by the manufacturers/licensors thereof. Accordingly, Epicor makes no warranties of any kind, express or implied, nor offers any indemnification with respect to Third Party Software.

Additional Express Warranties; Disclaimers

Additional Express Warranty. In addition to the Product-specific express warranties granted herein or in an Addendum hereto, Epicor hereby warrants that it is authorized to enter into this Agreement and supply the Deliverables hereunder.
General Disclaimer. EPICOR DOES NOT WARRANT THAT THE SOFTWARE OR SUBSCRIPTION SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR NEEDS, OR THAT THE OPERATION OF THE SOFTWARE OR SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ACKNOWLEDGES THAT EPICOR DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, THAT SUBSCRIPTION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS OR OTHER PROBLEMS INHERENT IN THE USE OF COMMUNICATIONS FACILITIES, AND THAT EPICOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, INCLUDING SECTIONS 2.6, 3.5, 5.5, 6.5.1 AND 10.1, NEITHER EPICOR, NOR ITS SUPPLIERS, SUBCONTRACTORS OR AGENTS MAKE ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EPICOR AND ITS SUPPLIERS, SUBCONTRACTORS AND AGENTS SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ANY WARRANTIES OF SATISFACTORY QUALITY, REASONABLE SKILL AND CARE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Indemnity

By Epicor

Subject to the terms and conditions contained herein, Epicor will, at its own expense, defend Customer and its Affiliates, and their directors, officers and employees (each, an “Customer Indemnified Party”) against any claim, demand, suit, proceeding or action (each, a “Claim”), and shall indemnify Customer Indemnified Parties against any damages, costs (including but not limited to reasonable attorney fees and costs) finally awarded against them or amounts agreed to in a monetary settlement arising out of or in connection with such Claim to the extent the Claim is made or brought by or on behalf of a third party alleging that the Products furnished by Epicor hereunder infringe any copyright or patent, or misappropriate any trade secret, of such third party (“Customer Claim”). Epicor has no obligation under this Section or otherwise to the extent a Customer Claim is based on any use of (i) the Products not in accordance with the Agreement or the applicable Documentation, (ii) the Products in combination with other products not contemplated in the applicable Documentation to the extent the infringement is caused by such combination, (iii) modification to the Products other than by or at Epicor’s direction, (iv) a superseded Software version if a corrective Software Update has been made available to Customer for no additional license fee, or (v) a Customization to the extent based on Customer supplied intellectual property, materials, specifications or information. Further Epicor has no liability or obligation under this Section with respect to Customer Claims involving third-party sourced Hardware (including Manufacturer’s Software) or Third Party Software.
If a Customer Claim occurs, or if Epicor reasonably believes a Customer Claim may occur, Epicor may at its sole discretion and at no cost to Customer (i) modify the Products so that they no longer infringe or misappropriate, (ii) secure for Customer the right to continue using the Products in accordance with this Agreement, or (iii) if (i) or (ii) are not commercially and reasonably feasible, terminate this Agreement with respect to the Product(s) that are or may be subject to the Customer Claim and refund to Customer, as applicable, (a) where Software or a Customization is or may be the subject of a Customer Claim, the depreciated value of the license fees paid for such Software or Services fees paid for such Customization (in either case based on a 5-year straight line depreciation schedule commencing on the date such Software or Customization was first delivered), and (b) where Support, Services (other than involving a Customization) or Subscription Services are the subject of the Customer Claim, the fees paid for the applicable Product during the then preceding 12-month period. This Section provides Epicor’s entire liability for infringement and misappropriation Claims.
Epicor’s obligations under this Section 11.1 are conditioned on the Customer Indemnified Party providing Epicor the following: (i) prompt notice of any Claim for which indemnification is sought, (ii) sole control of the defense and settlement of such Claims or the appeal of any award, and (iii) reasonable assistance and cooperation at Epicor’s expense; provided however that Epicor may not enter into any settlement imposing any liability on the Customer Indemnified Party without the Customer Indemnified Party’s consent, not to be unreasonably withheld or delayed.

By Customer

Subject to the terms and conditions contained herein, Customer will, at its own expense, defend Epicor and its Affiliates, and their directors, officers and employees (each, an “Epicor Indemnified Party”) against any Claim, and shall indemnify Epicor Indemnified Parties against any damages, costs (including but not limited to reasonable attorney fees and costs) finally awarded against them or amounts agreed to in a monetary settlement arising out of or in connection with such Claim to the extent the Claim (any of the following, an “Epicor Claim”) (a) is made or brought by or on behalf of a third party in connection with: (i) any Customer supplied intellectual property, technology, materials or information, (ii) any Customer Data, (iii) Customer’s use of the Deliverables not in accordance with, or as contemplated by, this Agreement or applicable Documentation, including without limitation pursuant to Sections 9.3 and 9.4 herein or in violation of any law, rule or regulation, or (iv) any Modification to a Deliverable not made by or at the direction of Epicor; or (b) results from Customer’s use of the Subscription Services whereby Customer (i) uses the Subscription Services to store or transmit any Malicious Code, (ii) interferes with or disrupts the integrity of the Subscription Services, or (iii) gains unauthorized access to the Subscription Services or their related Epicor systems or networks.
Customer’s obligations under this Section 11.2 are conditioned on the Epicor Indemnified Party providing Customer the following: (i) prompt notice of any Claim for which indemnification is sought, (ii) sole control of the defense and settlement of such Claims or the appeal of any award, and (iii) reasonable assistance and cooperation at Customer’s expense; provided however that Customer may not enter into any settlement imposing any liability or obligation on the Epicor Indemnified Party without the Epicor Indemnified Party’s consent, not to be unreasonably withheld or delayed.

Exclusion and Limitation of Liability

Exclusion of Certain Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR (i) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, OR (ii) DAMAGES FOR LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, OR LOSS OF BUSINESS INFORMATION OR OTHER DATA (IN EACH CASE WHETHER DIRECT OR INDIRECT), AND CLAIMS AGAINST A PARTY BY ANY THIRD PARTY ARISING IN CONNECTION WITH THIS AGREEMENT WHETHER ARISING IN LAW OR IN EQUITY, IN CONTRACT, IN TORT, IN STRICT OR PRODUCT LIABILITY, BREACH OF STATUTORY DUTY, OR IN ANY OTHER FORM OF ACTION, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH EXCLUSION CAUSES ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSES.
Limitation of Liability. The parties hereto specifically agree that except for amounts properly payable to Epicor hereunder, the total liability of a party to the other for damages under this Agreement with respect to an affected Product will be limited to direct damages and shall not exceed the sum of (i) Software license fees paid by Customer to Epicor, (ii) maintenance and support fees paid by Customer to Epicor for the then current Support Term, and/or (iii) Services or Subscription Services fees invoiced to and paid by Customer to Epicor during the immediately preceding 12-month period; as the case may be for the affected Product(s) giving rise to the applicable cause(s) of action. Notwithstanding the foregoing, Epicor’s total liability to Customer for damages relating to Third Party Software or third party sourced Hardware will not exceed the license and/or Hardware fees, as the case may be, paid by Customer to Epicor therefore.
Exceptions. Paragraphs 12.1 and 12.2 do not apply to (i) claims arising out of death or personal injury or damage to tangible property, caused by a party’s negligence, (ii) a party’s breach of its obligations under Sections 8 (Confidentiality), 9 (Proprietary Rights; Customer Data; Usage Restrictions), or 13 (Regulatory Provisions), or (iii) a party’s indemnification obligations hereunder.
Reliance. Epicor and Customer have not relied upon and agree they will have no remedy arising from any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement.

Regulatory Provisions

Export. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Deliverables. Customer agrees that such export control laws govern Customer’s use of the Deliverables (including technical data) provided under this Agreement and Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, software programs and/or materials resulting from any services provided hereunder (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws and regulations including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
U.S. Government Restricted Rights. The Software is deemed to be commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 "Commercial Computer Licensed Software - Restricted Rights" and DFARS 227.7202, “Rights in Commercial Computer Licensed Software or Commercial Computer Licensed Software Documentation”, as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Software by the U.S. Government shall be solely in accordance with the terms of this Agreement.
Anti-Corruption. Customer has not, and upon each submission of an Order or Statement of Work shall have not, received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Epicor’s employees or agents in connection with this Agreement.

Non-Solicitation. Subject to applicable law, so long as Epicor is performing Support, Services or Subscription Services hereunder and for 12 months thereafter, each party agrees that it and its Affiliates will not, without the other party’s consent, directly or indirectly solicit for employment (or as an independent contractor) or hire as a result of such solicitation any employee or independent contractor of the other party or its Affiliates for a period of 6 months after the date such person’s employment or services contract was terminated. This Section will not restrict the right of a party or its Affiliates to: (i) solicit or recruit generally in the media or online, or (ii) hire or engage the other party’s or its Affiliates’ employees or independent contractors who answer any general advertisement or who otherwise voluntarily apply for hire or engagement without having been initially personally solicited or recruited by or on behalf of the other party. If a party or its Affiliate hires an employee or engages an independent contractor of the other party or its Affiliates in contravention of this Section, then such party shall pay to the other party an amount equal to the salary or fees paid to that person over the last 12 months of their engagement with the other party or its Affiliate, such amount being a genuine pre-estimate by the parties of liquidated damages and not a penalty.
Audit. On Epicor’s written request, no more frequently than annually, Customer shall provide Epicor with a signed written certification (i) verifying that the Deliverables have been used in complete compliance with the terms of this Agreement, including any user limitations and (ii) listing the locations at which the Deliverables are being used. Customer agrees to grant Epicor reasonable access to all relevant locations and provide reasonable co-operation, upon prior notice during normal business hours, to allow Epicor to audit Deliverable usage, and confirm the information provided by Customer in its signed written certification.
Term; Termination

Term; Termination for Cause. This Agreement commences on the Effective Date and continues until terminated as set forth herein. Either party may terminate this Agreement, a License, Order and/or Statement of Work for cause upon 30 days written notice of a material breach by the other party of its obligations under this Agreement or the affected License, Order or Statement of Work, if such breach remains uncured at the expiration of such period.
Effects of Termination. Upon termination of this Agreement, a License, Order and/or Statement of Work, as the case may be, for any reason: (i) all rights and obligations of the parties under this Agreement and/or such License, Order or Statement of Work will automatically terminate except for rights of action accruing prior to termination, (ii) all amounts due thereunder shall be due within 30 days after the date of termination, and (iii) Epicor will promptly refund to Customer any non-applied, prepaid Services fees. Upon termination of a License Customer shall immediately return or destroy the applicable Deliverables and all portions and copies thereof and, if requested by Epicor, shall certify in writing as to the destruction or return of the same. Termination of one or more Licenses, Orders and/or Statements of Work will not terminate the Agreement.
Surviving Provisions. Those provisions that by their nature should survive termination of the License or this Agreement, as the case may be, will survive termination.

Dispute Resolution. Except for debt recovery or collection actions for amounts due hereunder, or actions for infringement or violation of a party’s intellectual property rights, in the event of any dispute, claim, or controversy arising out of, relating to, or in connection with this Agreement (whether based in contract, in tort, upon a statutory provision, or otherwise), including, without limitation, the formation, performance, breach, termination, enforcement, interpretation or validity thereof (a “Dispute”):

Negotiation/Mediation. Customer and Epicor will first attempt to resolve the Dispute through confidential negotiation either through negotiations between designated executives with authority to resolve the Dispute, or if mutually agreed, through confidential mediation, utilizing a mutually agreeable mediator.
Arbitration. If Customer and Epicor are unable to resolve the Dispute in accordance with Section 17.1 the Dispute shall be fully and finally settled through arbitration administered pursuant to the rules and in the location designated in the Additional Dispute Resolution provision set forth on the signature page to these Terms before a single arbitrator. Any award rendered in such arbitration proceedings will be executory, final, and binding on each of the parties. To the extent permitted by law (i) each party to the arbitration will pay its own costs and expenses (including attorney’s fees) in connection with the arbitration, (ii) the arbitrator’s fees and the administrative expenses of the arbitration will be paid equally by the parties thereto, and (iii) the arbitrator will not have the power to award punitive damages. The parties shall treat as confidential, and except as required by law or with respect to representatives of a party having a need to know and who are bound by obligations of confidentiality, no party may disclose the existence, contents, or results of an arbitration brought in accordance with this Agreement, or the documents presented and evidence produced by its opposing parties, or any analysis or summaries derived from such evidence.
Enforcement. The award rendered by the arbitrator may be recognized and enforced by any court having jurisdiction, and any necessary applications may be made to such courts for judicial acceptance of the award and an order of enforcement. Such court proceedings will disclose only the minimum amount of information concerning the arbitration as is required to obtain such recognition, enforcement, acceptance or order.
Equitable Relief; Right to Termination. Notwithstanding the terms of this Section 17, each party shall have the right to seek immediate injunctive or other provisional relief, in any court of competent jurisdiction, against or from any ongoing or impending injury or damage, which mediation or arbitration would not in the party’s reasonable opinion avoid and each party shall at all times have the right to exercise any contractual right it may have to withhold the performance of its obligations and/or terminate this Agreement, an Order and/or Statement of Work as permitted hereunder.
Conflict. To the extent the terms of this Section 17 are modified by or conflict with Additional Dispute Resolution provision on the signature page to this Agreement, the terms of the Additional Dispute Resolution provision shall modify this Section 17 to the extent of the modification or conflict.
UN Convention on Contracts Not Applicable. This Agreement is not to be governed by the United Nations Convention on Contracts for the International Sales of Goods.

Assignment. Customer may not assign, license, sublicense or otherwise transfer this Agreement or any rights under this Agreement, whether voluntarily or by operation of law, without Epicor’s prior written consent. Without limiting the scope of the previous sentence any sale or transfer of assets, stock or any interest in Customer, or any merger, consolidation restructuring, or other business reorganization, which, by operation of law, transfers this Agreement and such rights, is to be considered a transfer covered by the previous sentence and prohibited hereby. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Epicor may assign this Agreement upon written notice to Customer if the assignee agrees to be bound in writing by Epicor’s obligations hereunder.
General

Headings. Headings contained in this Agreement are for convenience only and are not part of this Agreement and do not in any way interpret, limit or amplify the scope, extent or intent of this Agreement or any of the provisions hereof.
Complete Agreement. This Agreement, including any Order, Statement of Work, Addendum or a supplement or an amendment hereto, constitutes the entire Agreement between the parties on the subject hereof and supersedes all other prior or contemporaneous agreements, negotiations, representations and proposals, written or oral. Each party acknowledges that in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. In the event of a conflict between this Agreement and any Order or Statement of Work entered into in connection herewith, this Agreement will control except as expressly provided otherwise in the applicable Order or Statement of Work. This Agreement does not operate as an acceptance of any conflicting terms and conditions and shall prevail over any conflicting provision of any purchase order or any other instrument of Customer, it being understood that any purchase order issued by Customer shall be for Customer’s convenience only and any terms and conditions therein are of no force or effect hereunder. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Epicor regarding future functionality or features.
Severability. If any provision of the Agreement is deemed to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will promptly amend the Agreement or the Agreement will be deemed to be amended to give effect to the stricken provision to the maximum extent possible.
Modifications and Waiver. No modification of, or amendment or addition to this Agreement is valid or binding unless set forth in writing signed by a representative of each party; provided that an Order becomes valid and binding against Customer once signed and submitted by Customer. The waiver or failure of either party to exercise in any respect any right or remedy provided herein shall not be deemed a waiver of any future right or remedy hereunder.
Electronic Signatures. The parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. In no event shall the electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
Force Majeure. Neither party will be responsible or liable for its failure to timely perform under this Agreement when its failure results from any cause beyond its reasonable control.
Relationship. The parties are independent contractors. This Agreement does not create a joint venture or partnership between the parties; and no party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.
Business Contact Information. Customer agrees to allow, and is authorized to allow, Epicor and its Affiliates and service providers to store and use Customer’s business contact information, including names, business phone numbers, and business e-mail addresses of Customer employees and contractors, anywhere they do business. Such information will be processed and used solely in connection with the parties’ business relationship.
Notice. Notices hereunder shall be sent to the addresses on the face of this Agreement, or to such other address(es) as specified by a notice complying herewith, and shall be deemed delivered (i) on the date shown on the postal return receipt or on the courier or facsimile with confirmation of delivery, or (ii) within 5 days after deposit in first class mail or registered post.
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and taken together will constitute a single instrument.