TERMS AND CONDITIONS

SOFTWARE LICENSE AND SERVICES AGREEMENT

THIS  SOFTWARE LICENSE AND SERVICES AGREEMENT (this “Agreement“) is made by and between Linfa System Solutions LLC (“Linfa”) a New York limited liability company with and the entity which executes an Order Form which incorporates the terms and conditions of this Agreement (“Client”). Each hereinafter may be referred to as a “Party” and collectively as the “Parties.”

This Agreement sets forth the terms and conditions upon which Linfa provides the Client a limited license of the Licensed Product (as defined below), and certain Services (as defined below), including the initial setup and  installation, standard support and maintenance services and may include other support services and professional services related to the Licensed Product for an agreed upon fee.

This Agreement is effective as of the date the Client entered into the Order Form with Linfa which incorporates this Agreement (the “Effective Date”)

Now therefore, in consideration of the promises and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS. Whenever used in this Agreement, the following capitalized words, and phrases, unless the context otherwise requires, shall have the following meanings:

1. “Acceptance” means the date Client accepts the Licensed Product as more specifically provided in Section ‎2.4. 
2. “Confidential Information” has the meaning set forth in Section ‎6.1.
3. “Client” has the meaning set forth in the preamble.
4. “Delivery Date” has the meaning set forth in Section ‎2.3
5. “Deliverables” means the Maintenance Releases, Licensed Documentation, and any other work product that Linfa provides or makes available to Client in connection with the Services.
6. “Disclosing Party” has the meaning set forth in Section  ‎6.1.
7. “Effective Date” has the meaning set forth in the preamble.
8. “Error” means a reproducible failure of the Licensed Software to substantially confirm with the specifications set forth in the Licensed Documentation, whose origin can be isolated to a single cause, provided, however, that any Service Exception shall not be considered an Error.
9. “Fees” has the meaning set forth in Section ‎4.1
10. “Implementation and Setup Services” has the meaning set forth in Section ‎3.1.1.
11. “Implementation and Setup Fee” has the meaning set forth in Section ‎4.1
12. “Incident” means a support request that begins when Client contacts Linfa, via its ticketing system, to report one specific Error and ends (ticket closes) when Linfa (or its licensor) either: (a) Resolves the Error; or (b) determines in its sole discretion that the Error cannot be Resolved.
13. “Initial License Term” means the initial license term specified in the Order Form, as of the Delivery Date. 
14. “Initial Term” has the meaning set forth in Section ‎7.1.
15. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
16. “License” means the license granted to Client under Section ‎2 below.
17. “Licensed Documentation” means user manuals, support notes, handbooks, and installation guides relating to the Licensed Software provided by Linfa to Client either electronically or in hard copy form. Documentation shall include, if applicable, documentation provided to Linfa by its suppliers or licensor to the extent Linfa is authorized by them to provide such material and has provided such material to Client. Documentation may be electronically created and may exist in electronic form.
18. “Licensed Product” means collectively the Licensed Software and Licensed Documentation.
19.  “Licensed Software” means the executable, object code version of the computer software known as TBO4 from the RIC Group, as further detailed in the Order Form, and any Maintenance Releases provided by Linfa to the Client pursuant to this Agreement, and all permitted copies of the foregoing.  
20. “License Fee” has the meaning set forth in Section ‎4.1
21. “License Renewal Term” or “Renewal Term” has the meaning set forth in Section ‎7.1.
22. “License Term” means the Initial License Term specified in the Order Form, as of the Delivery Date, together with any License Renewal Terms.
23. “Linfa” has the meaning set forth in the preamble.
24. “Maintenance Release” or “Maintenance Releases” means any update, upgrade, release, or other adaptation or modification of the Licensed Software (all subsequent to the Original Licensed Software), including any updated Licensed Documentation, that Linfa may provide to Client from time to time during the Licensed Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Licensed Software, but does not include any New Version.
25. “New Version” means any new version of the software that Linfa (or its licensor) may from time to time introduce and market generally as a distinct software product (as may be indicated by designation of a new version number), and which Linfa may make available to Client at an additional cost under a separate written agreement.
26. “Nominal Users” means the employees or contractors of Client who are bound by the confidentiality provisions similar to those contained in Section ‎6 and who are permitted access to or use of the Licensed Product pursuant to the License provided hereunder.
27. “Optional Support Services” has the meaning defined in Section 
28. “Order Form” means an ordering document specifying the Licensed Software, License Term and limitations and the Services to be provided hereunder that is entered into between Client and Linfa and signed by both parties, including Supplemental Order Forms.  
29. “Original” means the first edition of the Licensed Product delivered by Linfa to Client pursuant to this Agreement.
30. “Optional Support Services” means any additional support services set out in a Supplement Order Form or any other services to Client that Client and Provider may from time to time agree on in writing. Optional Support Services may include, by way of example, support at specific sites, support not during normal business hours or otherwise outside of the scope of standard Support Services, training of Client’s stuff for use of the Licensed Software. 
31. “Professional Services” has the meaning set forth in Section ‎‎3.1.5
32. “Receiving Party” has the meaning set forth in Section ‎6.1.
33. “Resolve” means the provision of (i) Services that, in Linfa’s (or its licensor) sole discretion corrects the Error; (ii) information to Client that corrects the Error; (ii) information to Client on how to obtain a software solution that corrects the Error (iv) notice to Client that the Error is caused by a known, unresolved issue or an incompatibility issue with the Licensed Software; (vi) information to Client that identifies the Error as being corrected by upgrading to a new Maintenance Release of the Licensed Software or New Version; or (vii) notice to Client that the suspected Error has been identified as arising out of or resulting from a Service Exception and is not considered an Error..
34. “Service Exception” means any nonconformity arising out of or resulting from Client’s improper use of the Licensed Software, combining or merging the Licensed Software with any technology (including software, hardware, firmware, system, or network) or service not specified for use in Linfa’s Licensed Documentation and not approved by Linfa for use with the Licensed Software, or modification of the Licensed Software which has not been performed by Linfa.
35. “Services” means Implementation and Setup Services, Support Services and Software Maintenance Services, Optional Support Services and Professional Services, if any, and to the extent provided under the Order Form.
36. “Software Maintenance Services” has the meaning set forth in Section ‎3.1.4
37. “Support Services” has the meaning set forth in Section ‎3.1.2.
38. “Supplemental Order Form” means addenda and supplements to the Order Form executed in writing by both Parties.
39. “Term” has the meaning set forth in Section ‎7.1.
40. “Warranty Period” means the period set forth in Section ‎9.1.

2. SOFTWARE LICENSE AND DELIVERY 

1. Grant of License. Subject to Client’s payment of all applicable fees and execution of an Order Form, Linfa hereby grants to Client and Client accepts a nonexclusive, nonsublicenable and nontransferable limited license to use the Licensed Product solely for Client’s internal business purposes, during the License Term, in the manner described below.

Client must use the Licensed Product solely in accordance with the license limitations identified on the Order Form (limited to the number of Nominal Users and any other limitations specified therein). Client must use the Licensed Product only in a manner and for the purposes for which the Licensed Product was designed for. Client may make copies of the Licensed Software only for backup and archival purposes. Such copies of the Licensed Software shall remain Linfa’s (or its licensor) exclusive property, is subject to the terms and conditions of this Agreement and must include all copyright and other proprietary rights notices contained in the original. Client may make a reasonable number of copies of the Licensed Documentation solely for Client’s business purposes in connection with Client’s use of the Licensed Software. Upon Linfa’s reasonable request and no more frequently than once per year during the Licensed Term, Client shall provide Linfa a written description of the procedures under which it makes backup copies involving the Licensed Software. 

2. License Restrictions. All uses of the Licensed Product not permitted under this Section 2 are prohibited. By way of example and without limitation, Client may not: (i) disassemble, decompile, debug or reverse engineer the Licensed Software; (ii) rent, lease, lend, sell, public, distribute, sublicense or otherwise make available the Licensed Product; (iii) permit use of the License Product by a person who is not a Nominal User; (iv) copy, modify or create derivative works of the Licensed Product, in whole or in part (v) transmit an electronic copy of the Licensed Software by any means (except permitted copies); or (vi) use the Licensed Software in the operation of a service bureau or time sharing arrangement or to provide outsourcing services. 

3. Delivery of Software. Linfa shall deliver the Licensed Product to Client by uploading to Client’s server or cloud account (including, without limitation, to any testing, staging or other environments) and the date of such first provision of the Original Licensed Product to the Client shall be deemed “Delivery Date”. 

4. Acceptance. The Licensed Software shall be deemed to have been accepted by Client upon delivery. 

5. License Term. Upon expiration of the Initial License Term, unless otherwise specified in the Order Form, the License shall automatically renew for additional Renewal License Terms (as further detailed in Section ‎7.1) .

6. Client’s Representations. Client hereby represents and warrants (i) Client shall ensure that the Licensed Product is used only in compliance with the terms of this Agreement. Client shall be responsible and liable for any and all non-compliance with this Agreement by Client or by any person or entity who obtains access to the Licensed Product through Client; (ii) Client represents and warrants that as of the time of Acceptance, Client will have evaluated, tested, and examined the Licensed Product and will have determined independently that the Licensed Product is suitable for the use intended by this Agreement. Client assumes all responsibility and risk of selection, use, efficiency and suitability of the Licensed Product and Linfa shall have no liability therefore; 

7. Client’s Third party Material. With respect to any technology (including without limitation software, hardware, firmware, system, network), service and data not provided by Linfa and to be used or reproduced during Client’s use of the Licensed Software, Client represents that it has all necessary rights to use or reproduce such  material and that no use of the Licensed Software in connection therewith shall be made that causes an infringement of the right of any third party.

8. Client’s Responsibility: Client shall be exclusively responsible for the supervision, management, and control of its use of the Licensed Software, including, but not limited to (i) setup, maintain and operate in good repair all environment conditions and components, including all network, systems, and hardware and proper configuration of equipment or devices and connectivity in or through which the Licensed Software operations or the is necessary for the provision of any of the Services detailed below; (ii) establishing adequate operating methods; (iii) implementing procedures sufficient to satisfy its obligations for security based on industry standards, including appropriate action between it and its employees and consultant to prevent misuse, unauthorized copying, modification, or disclosure of the Licensed Software; and (iv)  not remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Licensed Product and any copies thereof in any form.

3. SERVICES 

1. Subject to the terms and conditions of this Agreement and conditioned on Client’s and its representatives’ compliance therewith (including payment of all Fees due and owning under the Agreement), Linfa will provide Client with the following Services, to the extent such Services are specified in the Order Form:

1. Initial Implementation and Setup Services. Upon the Execution Date, Linfa shall provide requirements specifying the technical infrastructure Client is obligated to provide (if applicable) for the installation of the Licensed Software. The Client and Linfa shall meet and confer in good faith on the development of an implementation plan for installation in Client’s production environment (the “Go-Live”). The implementation plan (and agreement on the Go-live date) shall be prepared promptly and in no event later than thirty (30) days following the Effective Date, unless a special exception is authorized by Linfa in writing. Linfa will perform the initial installation, implementation, deployment, configuration and related services detailed in the Order Form and in such implementation plan (“Implementation and Setup Services”). Initial Implementation and Setup Services will be considered completed on “Go-Live” date of the Original Licensed Software (installation in production).  

2. Support Services. During the License Term, Linfa’s systems specialists shall provide Client with support services using commercially reasonable efforts to attempt to Resolve any Incidents reported by Client regarding the Licensed Software as further described in Schedule A, at such service levels set forth therein (the “Support Exhibit”). Linfa may amend the Support Exhibit from time to time in its sole discretion. Such support services shall be provided via ticketing services during Linfa’s regular hours of operation and via remote access or, at Client’s request and subject to the availability of Linfa’s systems specialists and Linfa’s sole discretion, at Client’s premises.  Client is obligated to provide Linfa with (i) notification of any material Error it believes exists in the Licensed Product, and reasonable detail of the nature and circumstances of the Error; and (ii) provide Linfa with such cooperation and assistance as may reasonable requested or reasonably required, to enable Lifa to perform its obligations, and exercise rights under and in accordance with this Agreement, including reasonable access, both physical and virtual, as applicable, to the Licensed Software and Client’s premises, systems, network and facilities, and reasonable access to appropriate Client’s personal and all necessary authorizations and consents in connection with the forgoing.

3. Optional Support Services.  Linfa, at its sole discretion, may provide Optional Support Services to Client on Client’s request, at Linfa’s standard rates then in effect, as shall be set out in a Supplemental Order Form. The terms and conditions of this Agreement govern the provision of any Optional Support Services delivered by Linfa to Client. 

4. Software Maintenance Services. Linfa will provide all Maintenance Releases, if any, during the Licensed Term, under the terms and conditions set forth in this Agreement and subject to the following:
   1. Exclusion of New Versions. Client does not have any right under or in connection with this Agreement to receive any New Versions that Linfa (or its licensor) may, in its sole discretion, release from time to time. 
   2. License Clarification. For the avoidance of doubt, Maintenance Releases are the property of Linfa (or its licensor) and are licensed to Client subject to the terms and conditions of this Agreement and, upon release, become a part of the Licensed Software and the Licensed Product, as the case may be. Each Maintenance Release shall consist of one or more Licensed Software programs and/or files in object code. Each Maintenance Release shall also provide updated documentation informing Client any significant operational differences known to Linfa. The documentation in any Maintenance Releases shall be a part of the Licensed Documentation.
   3. Client’s Installation Obligation. Client shall be responsible for the installation of all Maintenance Releases. Implementation and setup services for Maintenance Release are not included in the initial Order Form (unless explicitly specified otherwise therein as a separate line item) and shall be separately defined in a Supplemental Order Form and separately billed to and paid by Client, if Client requests such services. 

5. Additional Professional Services.  During the Term of this Agreement, upon written request by Client, Linfa may provide Client with certain professional services such as, specific development of features, customization, or other professional services as may be agreed upon by the parties in a Supplement Order Form (“Professional Services”), subject to the payment by Client to Linfa of the due professional services fees as shall be set out in the Supplemental Order Form. Professional Services will be provided in accordance with a Supplemental Order Form, and a statement of work entered into by the parties and made part of this Agreement. Professional Services shall be provided by Linfa based on Linfa’s determination of availability. The terms and conditions of this Agreement govern the provision of any Professional Services delivered by Linfa to Client. 

4. COMPENSATION

1. Fees. Client shall pay Linfa all fees set forth in the Order Form (including without limitation any Supplement Order Form) (collectively – “Fees”) without offset or deduction. Unless otherwise specified in the Order Form, Fees will include fees for initial Implementation and Setup Services (“Implementation and Setup Fees”) and license fees for the Initial License Term and/or any applicable Renewal License Term (“License Fees”). Support Services and Software Maintenance Service detailed in this Agreement will not be billed separately and are included in the License Fees. Addition Support Services or Professional Services are optional, if provided, applicable fees will be specified under the Order Form or a Supplemental Order Form.

2. Payment Terms. Client will make all payments hereunder in US dollars on (or before) the due dates specified in the Order Form (or Supplemental Order Form), and if no such terms are define
   1. 50% of the Setup Fees and License Fees for the Initial License Term must be paid thirty (30) days following the Effective Date and the remaining 50% should be made thirty (30) days following the Delivery Date. 
   2. The License Fees for any License Renewal Term shall be paid in full at least thirty (30) days before the start of a License Renewal Term. 
   3. Any other fees must be paid within 30 days of the date specified in the invoice.

3. Reimbursable Expenses. Client shall reimburse Linfa for out of pocket costs and expenses incurred by Linfa in performing the Services under this Agreement, subject to written prior approval from Client. 

4. Auditing Rights. Client agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of one year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Linfa may, at its own expense, on reasonable prior notice, periodically inspect and audit Client’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Client has underpaid Linfa with respect to any amounts due and payable during the Term, Client shall promptly pay the amounts necessary to rectify such underpayment. Client shall pay for the costs of the audit if the audit determines that Client’s underpayment equals or exceeds 10% for any year. Such inspection and auditing rights will extend throughout the Term of this Agreement and continue for a period of one year after the termination or expiration of this Agreement.

5. Taxes. Client shall be solely responsible for payment of any taxes that may become due as a result of entering into this Agreement, including, but not limited to, any applicable sales or use taxes, value added taxes, goods and services taxes, intangible taxes, and property taxes, but excluding taxes based on income to Linfa.

5. INTELLECTUAL PROPERTY RIGHTS  

1. Linfa Intellectual Property. LINFA DOES NOT SELL OR TRANSFER TITLE IN LICENSED PROJECT AND DELIVERABLES OR ANY PART THEREOF.  Client acknowledges that, (i) as between Client and Linfa, Linfa (or its licensor) is and will remain the owner of all right, title, and interest, including all Intellectual Property Rights, in and to the Licensed Product and/or any part thereof, and/or any copies thereof, including without limitation as it may be modified or created in the course of Linfa provision of Services, or any other derivative works, Maintenance Releases, adaptation or enhancement, and in any Deliverables made, including without limitation in the provisioning of Professional Services, regardless of whether such items were made pursuant to the request or specifications of the Client or Nominal User, and irrespective of any feedback, support or assistance Linfa may receive, will receive or has received from Client or any third party on its behalf, with respect thereto, all if and when such items shall be provided to Client pursuant to this Agreement. (iii) The Licensed Product (including any Deliverables, to the extent applicable) is licensed, not sold to Client by Linfa and Client does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Licensed Software and any Deliverables and in any related Intellectual Property Rights; (iii).Client hereby unconditionally and irrevocably assigns to Linfa (or Linfa’s designee), its entire right, title, and interest in and to any Intellectual Property Rights that Client may now or hereafter have in or relating to the Licensed Product and any Deliverables provided to Client pursuant to the Services (including any rights in derivative works or patent improvements relating to either of them) and in any feedback provided by Client (or its employees or contractors) to Linfa, whether held or acquired by operation of law, contract, assignment, or otherwise. 

2. Client Cooperation and Notice of Infringement. Client shall, during the Term: (i) take all reasonable measures to safeguard the Licensed Software and Deliverables (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access; (ii) at Linfa’s expense, take all such steps as Linfa may reasonably require to assist Linfa in maintaining the validity, enforceability, and Linfa (or its licensor) ownership of the Intellectual Property Rights in the Licensed Software and Deliverables; (iii) promptly notify Linfa in writing if Client becomes aware of: any actual or suspected infringement, misappropriation, or other violation of Linfa’s (or its licensor) Intellectual Property Rights in or relating to the Licensed Product or Deliverables; or any claim that the Licensed Product or Deliverables, including any production, use, marketing, sale, or other disposition of the Licensed Product or Deliverables, in whole or in part, infringes, misappropriates, or otherwise violates the Intellectual Property Rights or other rights of any person; 
3. No Implied Rights. Except for the limited rights and licenses expressly granted to Client under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Licensed Products or Deliverables.

4. No Publicity. Client shall not use either the name of Linfa or the name of the Licensed Product licensed hereunder for any commercial purpose or in any advertising, promotional or public statement without the prior, written consent of Linfa, such consent to be in the sole discretion of the Linfa. 

6. CONFIDENTIAL INFORMATION 

1. Confidential Information. From time to time during the Term, either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”) information about its business affairs, products, technology, know-how, confidential intellectual property, trade secrets, pricing, information with respect of which the Disclosing Party has contractual or other confidentiality obligations, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media or by inspection of tangible objects or by the viewing of product demonstrations, which is designated or described as “Confidential,” “Proprietary” or some similar designation, and/or which should reasonably be understood because of the circumstances of disclosure or the nature of the information itself to be confidential or proprietary, regardless of whether obtained before, on or after the date of this agreement (collectively, “Confidential Information”). Without limiting the forgoing, the Licensed Product and Deliverable are the Confidential Information of Linfa. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to the Receiving Party on behalf of the Disclosing Party pursuant or otherwise relating to this Agreement. 

2. Non-disclosure and Non-use. Receiving party agrees to use the Confidential Information for the sole purpose contemplated by this Agreement. Receiving Party agrees it will not use for Receiving Party’s own benefit or in any way disclose any Confidential Information to any person, firm or business, except for the sole purpose set forth in this Agreement or for any other purpose the Disclosing Party may hereafter authorize in writing. Receiving Party shall treat all Confidential Information with the same degree of care as Receiving Party accords to its own Confidential Information, but in no case less than reasonable care. Receiving Party agrees to disclose Confidential Information only to those of such Receiving Party’s employees and consultants who need to know such information, and are bound by confidentiality obligations substantially similar to the obligations detailed this Agreement.  Receiving Party shall remain liable for any breach by its employees and consultants. Receiving Party shall not make any copies of the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent. Receiving Party shall not reverse engineer, disassemble or decompile any materials or objects which embody the Disclosing Party’s Confidential Information. Receiving Party shall immediately give notice to the Disclosing Party of any unauthorized use or disclosure of Confidential Information. Receiving Party agrees to assist the Disclosing Party in remedying any such unauthorized use or disclosure of Confidential Information.

3. Exceptions. The obligations of Receiving Party with respect to any portion of the Confidential Information shall not apply to such portion that Receiving Party can document: (a) was in the public domain at or subsequent to the time such portion was communicated to Receiving Party through no fault of Receiving Party, (b) was rightfully in Receiving Party’s possession free of any obligation of confidence at or subsequent to the time such portion was communicated to Receiving Party, or (c) was developed by employees or consultants of Receiving Party independently of and without reference to any information communicated to Receiving Party by Disclosing Party. Notwithstanding Section ‎6.2 above, Receiving Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that Receiving Party will notify Disclosing Party promptly so that Disclosing Party may seek a protective order or other appropriate remedy. In the event that no such protective order is obtained before such Confidential Information or other information is required to be disclosed, the Receiving Party or its applicable representative, as the case may be, will furnish only that portion of such Confidential Information or other information which it is advised by its legal advisers is required to be disclosed. In addition, to the extent legally permissible, Receiving Party will provide Disclosing Party, in advance of any such disclosure, with copies of any such Confidential Information or other information that Receiving Party intends to disclose and will reasonably cooperate with Disclosing Party to the extent Disclosing Party may seek to limit such disclosure.

4. Return of Confidential Information and Other Materials. Promptly upon written request from the Disclosing Party, the Receiving Party shall, at Disclosing Party’s option, redeliver to the Disclosing Party or destroy all Confidential Information and any other materials containing, prepared on the basis of, or reflecting any information in, the Confidential Information, including without limitation, all reports, analyses, compilations, studies and other materials containing or based on the Confidential Information, and Receiving Party will not retain any copies or other reproductions of such Confidential Information. Upon the request of the Disclosing Party, any such destruction shall be certified in writing by the Receiving Party. Notwithstanding the foregoing, the Receiving Party may retain such of its documents as required to comply with mandatory law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation. 

5. Term of Confidentiality. The obligations of Receiving Party hereunder as to any Confidential Information shall be effective during the Term of this Agreement and in perpetuity thereafter or until such information is no longer a trade secret of the Disclosing Party, whichever occurs earlier in time.

7. TERM AND TERMINATION

1. Term. Unless earlier terminated pursuant to this Section, this Agreement shall begin on the Effective Date and continue until the end of the Initial License Term  (the “Initial Term”). Unless otherwise specified in the Order Form, the Initial Term (and Initial License Term) will be auto-renewed for additional (1) year periods following the end of the Initial License Term (each, a “Renewal Term” or a “Renewal License Term”, and collectively with the Initial Term, the “Term”), unless a party provides the other party with written notice of non-renewal of the Agreement and License not less than thirty (30) days before the expiration of the then-current term. In the event of termination for any reason, Client shall discontinue use of the Licensed Product and Services upon termination.

2. Termination for Convenience. Either party may terminate this Agreement by providing the non-terminating party no less than ninety (90) calendar days’ prior written notice, subject to payment obligations under Section ‎7.5 and consequences of termination obligations under Sections ‎7.6. 

3. Termination for Non-Payment. If payment of any Fees, or any other amounts due to Linfa under this Agreement, are not paid in accordance with Section ‎4, in addition to any other rights as stated in this Agreement, Linfa may terminate this Agreement at the end of the Cure Period (defined below in Section ‎7.4) with no further obligations to Client except as to terms that survive the expiration or early termination of this Agreement.

4. Termination for Cause. This Agreement (and license granted hereunder) may be terminated by a Party on thirty (30) calendar days’ written notice (the “Cure Period”) to the non-terminating party if the non-terminating party commits a material breach of this Agreement, with such notice specifying the breach in reasonably sufficient detail, unless the defaulting party cures its alleged breach (if curable) during the Cure Period. This Agreement (and the license granted hereunder) will terminate automatically without necessity of written notice (i) upon a party’s filing for protection under bankruptcy laws, makes an assignment for the benefit of creditors, appoints or suffers appointment of a receiver or trustee over its property, files a petition under any bankruptcy or insolvency act or has any such petition filed against it which is not discharged within sixty (60) calendar days of the filing thereof; or (ii) if Client transfers title to or possession of the Licensed Product without Linfa’s prior written consent, unless such transfer is through a permitted assignment under Section ‎12.6.

5. Outstanding Fees. Early termination of this Agreement by Client for any reason shall not relieve Client of the obligation to pay any fees accrued or payable to Linfa up to the end of the Initial Term (including, without limitation, payment in full of the License Fee for the entire Initial License Term) or any applicable Renewal Term. 

6. Consequences of Termination. Upon termination of this Agreement, (i) Client shall cease all further use of the Licensed Product or any portion thereof, in all forms and on all media and computer memory, and Client shall within seven (7) business days: (A) surrender and deliver the Licensed Product and all copies thereof to Linfa; or (B) at the option of the Linfa, destroy all copies of Licensed Product, including backup and archival copies, and provide satisfactory evidence of such destruction to Linfa within one (1) month following termination; (ii) Client shall pay all outstanding fees and amounts owed to Linfa within fourteen (14) days of the date of termination; (iii) Linfa may cease performance of Linfa’s obligations under this Agreement, without liability to Client; (iv) where such termination is the result of a breach or threatened breach of this Agreement by Client, Linfa may apply for and obtain injunctive relief against the breach or threatened breach; and (v) Each party shall return as promptly as is practicable to the other party all of its Confidential Information as detailed in Section ‎6.4. 

8. REPRESENTATIONS, WARRANTS AND COVENANTS

1. Client’s Representations. Client represents, warrants and covenants for Linfa’s benefit alone that at all times during the Term: (i) Client has the right, power and authority to enter into and perform its obligations under this Agreement, (ii) Client represents and warrants that it is a corporation duly incorporated, duly organized, validly existing, and in good standing under the laws of the state of its domicile and is authorized to do business in each jurisdiction in which it conducts its business, (iii) the making and performance of this Agreement by Client does and will not violate any agreement between it and any other person or entity; and (iv) Client owns or shall obtain all right, title and interest in and to, or a full and sufficient right and authority to use any data, materials, information and other items or works that Client provides to Linfa in connection with this Agreement; 

2. Linfa’s Representations. Linfa represents, warrants and covenants for Client’s benefit alone that at all times during the Term: (i) Linfa has the right, power and authority to enter into and perform its obligations under this Agreement, (ii) Linfa represents and warrants that it is a limited liability company duly organized, validly existing, and in good standing under the laws of the state of its domicile and is authorized to do business in each jurisdiction in which it conducts its business, (iii) the making and performance of this Agreement by Linfa does and will not violate any agreement between it and any other person or entity; and (iv) Linfa owns or shall obtain all right, title and interest in and to, or obtain a full and sufficient right and authority to use any data, materials, information and other items or works that Linfa provides to Client in connection with this Agreement;  (v) neither Linfa’s grant of rights or licenses under this Agreement nor its performance of any obligations under this Agreement does or will violate the terms of any agreement existing between Linfa and any other person or entity. 

9. LIMITED SOFTWARE WARRANTY AND DISCLAIMERS 

1. Software Warranty. Linfa warrants to Client that the Licensed Software, in unmodified form and when used as authorized by this Agreement, will perform materially as described in specifications set forth in the Licensed Documentation for a period of thirty (30) days from the date of Client’s Acceptance of the Licensed Product under Section ‎2.4 (the “Warranty Period“). 

2. Limitations of Software Warranty. The limited software Warranty provided in ‎9.1 do not apply to problems resulting from: (i) improper installation of the Licensed Software by Client, or any other party other than Linfa, or the installation of the Licensed Software on improper hardware, software or other inappropriate infrastructure; (ii) modification of the Licensed Software not undertaken or performed by Linfa; (iii) malfunctions in any computer hardware or software or systems files not provided by Linfa; (iv) accident of Client or at the Client’s premises; (v) neglect of Client; (vi) improper use or misuse of the Licensed Software by Client, including any use of the Licensed Software other than as specified in the Licensed Documentation (or expressly authorized by Linfa in writing); (vii) use of the Licensed Software with data of any entity other than Client; or (viii) a power surge or failure at the Client location. 
3. Software Warranty Obligations. If during the Warranty Period, Client demonstrates to Linfa that the Licensed Software fails to materially comply with the warranty in Section ‎9.1 and such failure is not excluded from warranty pursuant to Section ‎9.2, Linfa will  either, at Linfa’s sole option: (i) repair or replace the Licensed Software, provided Client provides Linfa all information Linfa requests to resolve the reported failure, including sufficient information to enable Linfa to recreate such failure; or (ii) refund to Client License Fees paid for the Licensed Product in question for the applicable term (less any credits previously received by Client), subject to Client’s ceasing all use of and return to Linfa all copies of the Licensed Product.. If Linfa repairs or replaces the Licensed Software, the warranty will continue to run from the Acceptance of the Original Licensed Product and not from Client’s receipt of the repair or replacement. THE REMEDIES SET FORTH IN THIS SECTION ARE CLIENT’S SOLE REMEDIES AND LINFA’S SOLE LIABILITY UNDER THE LIMITED WARRANTY SET FORTH IN SECTION  ‎9.1 AND ANY CLAIM REGARDING THE PERFORMANCE OR NONPERFORMANCE OF THE LICENSED PRODUCT AND RELATED SERVICES.

4. WARRANTY DISCLAIMER. EXCEPT AS STATED IN SECTION ‎8.2 AND THE LIMITED WARRANTY SET FORTH IN SECTION ‎9.1 HEREIN, THE LICENSED PRODUCT AND SERVICES ARE PROVIDED “AS IS” AND MAY BE USED AT CLIENT’S SOLE RISK. LINFA MAKES NO REPRESENTATIONS AND GRANTS, WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, UNDER THIS AGREEMENT, AND LINFA SPECIFICALLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, ANY WARRANTY OF TITLE, OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR ANY WARRANTY OF NON-INFRINGEMENT OR OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES UNDER THIS AGREEMENT. 

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION ‎9.1, LINFA MAKES NO WARRANTY OF ANY KIND (I) THAT THE LICENSED PRODUCT OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, OR THE SERVICE, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS; OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBEL OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICE, OR BE SECURE, ACCURATE, COMPELTE, FREE OF HARMFUL CODE, OR ERROR GREE, OR THAT ALL DEFECTS IN THE LICENSED PRODUCT WILL BE CORRECTED; OR (II) WITH REGARDS TO ANY CHANGE OR MODIFICATION OF THE LICENSED SOFTWARE MADE BY CLIENT; PROVIDED, HOWEVER, ANY CHANGE OR MODIFICATION PROPERLY MADE BY CLIENT IN ACCORDANCE WITH INSTRUCTIONS CONTAINED IN THE LICENSED DOCUMENTATION FOR THE LICENSED SOFTWARE SHALL NOT VOID THE SOFTWARE WARRANTY PROVIDED BY LINFA HEREIN. 

10. LIMITATION OF LIABILITY

1. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL LINFA BE LIABLE TO CLIENT OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTIONS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES ARISING FROM THE USE OR INABILITY TO USE THE SERVICES OR LICENSED SOFTWARE (WHETHER OR NOT DUE TO ANY DEFECTS THEREIN), USE, INABILITY TO USE, LOSS, INTERUCPPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA T SYSTEM SECURITY, OR COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LINFA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSES OR DAMAGES OR SUCH LOSSES OR DAMANGES WERE REASONABLY FORESEEABLE. IN NO EVENT SHALL LINFA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORITY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE FEES PAYABLE TO LINFA UNDER THIS AGREEMENT IN THE 12 MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM 

2. Fundamental Element of the Bargain. Sections ‎9-‎11 of this Agreement allocates the risks under this Agreement between Linfa and Client. Linfa’s Fees reflect this allocation of risk and the warranties, limitation of warranties, and limitation of liability and indemnification in this Agreement. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMNTS OF THE BARGAIN BETWEEN LINFA AND CLIENT. THE LICENSED PRODUCTS AND SERVICES OFFERED WOULD NOT BE PROVIDED TO CLIENT WITHOUT SUCH LIMITATIONS. AS SOME JURISDICTIONS DO NOT ALLOW SOME OF THE EXCLUSIONS OR LIMITATIONS AS SET FORTH ABOVE, SOME OF THESE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO A PARTY IN SUCH EVENT SUCH PARTY’S LIABILITY WILL BE LIMITED AS FAR AS LEGALLY POSSIBLE UNDER APPLICABLE LAW.

11. INDEMNIFICATION

1. Linfa Indemnification. Linfa hereby agrees to defend, indemnify, and hold harmless Client against any and all losses, damages, liabilities and costs (including reasonable attorney’s fees) (“Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third Party Claim”) that the Licensed Product or its use in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Client promptly notifies Linfa in writing of the claim, cooperates with Linfa, and allows Linfa sole authority to control the defense and settlement of such claim.

2. If such a Claim is made, or Linfa reasonably believes that such a Claim is likely to occur, Linfa shall: (i) procure for Client the right to continue using the Licensed Software and the right to continued enjoyment of the license granted pursuant to this Agreement; (ii) modify the Licensed Software to eliminate the alleged infringement (including disabling the challenged functionality) or replace it with a non-infringing product of equivalent functionality (and, if Linfa does so, Client will stop using the allegedly infringing functionality immediately) provided that such modification or replacement does not adversely affect Client’s use as contemplated hereunder; or (iii) only if the foregoing cannot be reasonably accomplished, terminate the license for the Licensed Software and refund any prepaid License Fees for the applicable term.  Linfa has no obligation to indemnify or defend with respect to any actions, claims, proceedings, costs or damages based on any modification of the Licensed Software by Client, or that is based on Client’s combination, operation or use of the Licensed Software with any product, data or apparatus not expressly contemplated by this Agreement, or use of any version other than the most current version of the Licensed Product delivered to Client. 

3. Sole Remedy. THIS SECTION ‎11 SETS FORTH CLIENT’S SOLE REMEDIES AND LINFA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE LICENSED PRODUCT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

12. GENERAL PROVISIONS 

1. Order Form. The parties acknowledge and agree that until an Order Form is executed by the parties, Linfa is not required to provide any services or any software licenses hereunder by virtue of the Agreement alone.

2. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York, without giving effect to any choice or conflict of law provisions. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding, except that either party may file for injunction relief in any competent jurisdiction. 

3. Force Majeure. Neither party shall be liable to the other by reason of any failure of performance hereunder (except failure to pay) if such failure arises out of strikes, lock-outs or other labor disputes, riots, civil disturbance, actions or inaction of governmental authorities, wars, embargoes, storms, floods, fires, earthquakes, acts of God or the public enemy, widespread power outage, nuclear disasters or default of a common carrier (each a “Force Majeure Event”). Lack of finances or a mere failure to have adequate and suitable equipment, material, labor forces, or other facilities available to perform shall not constitute a Force Majeure Event. Any party experiencing a Force Majeure Event shall give as prompt notice as is possible under the circumstances. In the case of such Force Majeure Event, the time for performance required by a party under this Agreement will be extended by the length of any period during which performance is prevented by the Force Majeure Event. Furthermore, if such extension interferes with the other party’s ability to perform its obligations, then the time for other party’s performance will also be extended. Notwithstanding the above, if a delay or failure by a party to perform its obligations under this Agreement due to a Force Majeure Event exceeds thirty (30) calendar days, any party may terminate this Agreement effective upon ten (10) calendar days’ written notice to the other party.

4. Relationship of the Parties The relationship of the parties established by this Agreement is solely that of independent contractors, and nothing contained in this Agreement shall be construed to (a) give any party the power to direct and control the day-to-day activities of the other; or (b) constitute such parties as clients, co-owners or otherwise as participants in a joint or common undertaking; or (c) make either party an agent of the other for any purpose whatsoever.  Neither party, nor their agents or employees, shall be deemed representatives of the other for any purpose, nor shall either party have the power or authority to function as agent or employee to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other. 

5. Entire Agreement. The Agreement, the Order Form, and any Exhibits thereto, constitutes the entire agreement between the parties and contains all of the agreements between the parties with respect to the subject matter hereof; this Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof. Except as otherwise permitted in this Agreement, no change or modification of this Agreement shall be valid unless the same be in writing and signed by an authorized representative of Client and Linfa, respectively.  In the event of any inconsistency between the statements made in the body of this Agreement, the Order Form, Supplemental Order Form (if any), the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, Supplemental Order Form, if any; (b) second, the Order Form; (c) third, this Agreement, excluding its Exhibits; (d) forth, the Exhibits to this Agreement; and (e) fifth, any other documents incorporated herein by reference.

6. Notices. All notices required under this Agreement shall be made in writing and addressed to a party at their address listed in the Order Form unless either party notifies the other party in writing of a change of address in accordance with the provisions of this Section. All notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-pagd). Notices are deemed to be effective only (i) upon receipt by the receiving party, or when sent by email (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours and (ii) if the party giving the notice has complied with the requirements of this Section

7. Assignment. Neither party will have the right to assign, pledge, delegate or transfer all or any part of this Agreement, in each case whether voluntary, involuntarily, by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed, except that either party may assign this Agreement to an affiliate or in connection with any merger consolidation, or any other transaction in which substantially all of the equity or assets of such party are transferred. Any purported assignment, transfer or delegation in violation of this Section is null and void. No assignment, transfer or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

8. Equitable Relief. Each Party acknowledges and agrees that the failure to perform its duties under this Agreement may cause the other Party to suffer irreparable injury for which the injured Party may not have an adequate remedy available at law. Accordingly, the injured Party may seek to obtain injunctive or other equitable relief to prevent or curtail any breach of this Agreement, whether such breach is threatened or actual, without posting a bond or security, in addition to and without prejudice to such other rights and remedies, which may be available under this Agreement or under any applicable law. Notwithstanding any other term or provision in this Agreement, either Party may seek injunctive relief in any court of competent jurisdiction.

9. Remedies Cumulative.  Except as otherwise provided in this Agreement, if either Party breaches this Agreement, the non-breaching Party shall have the right to assert all legal and equitable remedies available.

10. Severability. If any provision of this Agreement is held by a competent court to be invalid or unenforceable under applicable law, then such provision shall be severed from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so severed and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the severed provision as determined by the Parties or as determined by court of competent jurisdiction.

11. Waiver. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by either party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant. All waivers must be in writing and signed by the party waiving its rights.

12. Survival of Provisions. Section ‎4.4 (Audit Rights), Section ‎5 (Intellectual Property Rights), Section ‎6 (Confidential Information), Section ‎7.5 (Outstanding Fees, Section ‎7.6 (Consequences of Termination), Section 8 (Representations, Warrants And Covenants), Section ‎9.4 (Warranty Disclaimers), Section ‎10 (Limitation of Liability), Section ‎11 (Indemnification), and Section ‎12 (General Provisions) along with any other provisions of this Agreement, which by their nature survive termination and all accrued and unpaid obligations arising hereunder shall survive the expiration or termination of this Agreement for any reason.

13. Approvals and Similar Actions. Where agreement, approval, acceptance, consent, or similar action by either party is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld, unless specifically permitted by this Agreement.

14. Interpretation. The headings in this Agreement are inserted for convenience only and shall not constitute a part of this Agreement for the purposes of construing or interpreting any provision hereof. Whenever the context requires, words used in the singular shall be construed to include the plural and vice versa, and pronouns of any gender shall be deemed to include and designate the masculine, feminine or neutral gender. 

15. Counterparts. The Order Form (incorporating this Agreement by reference) may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the parties.

16. Reasonable Efforts. Each Party shall use all reasonable efforts to take all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this Agreement.

Last Updated: October, 2022

SCHEDULE A

Support Services 

Client acknowledges and agrees that during the Term, Linfa shall only be responsible for Level 1 Support as stated below. RIC Group shall be responsible for Level 2 and Level 3 Support detailed below.

1.0 Service Levels

2.0 Service Commitment

The RIC Group will use reasonable endeavors to provide solutions in the shortest time frame possible to every support request. In general, the stages of the support procedure are as follows:

3.0 Exclusions

Services that are NOT included in this agreement:

1. Hardware-related issues.
2. Network issues in the Customer’s local area network (including but not limited to internet service Linfa issues, router or modem issues, slow network speed, etc…)
3. Routine backups of the Customer’s environment unless there is a separate written agreement between The RIC Group and the Customer.
4. Antivirus software and other security measures.
5. Other issues outside the influence area or reasonable control of The RIC Group

Last Updated: October, 2022