Rocket Software License and Services Agreement

This Rocket Software License and Services Agreement (this “Agreement”), dated and effective as of the date of the last signature above, between Rocket Software, Inc. or its Affiliate as designated on an Order Form (“Rocket”), and the customer identified above (“Customer”) sets forth the terms and conditions under which Rocket will license the Product(s) specified on Order Forms and provide maintenance and support services and, if applicable, professional services. Capitalized terms in this Agreement that are not defined herein shall have the meaning set forth in Section 16.

1. ORDERS

All Products and Services that Rocket provides to Customer will be subject to this Agreement. For new orders, Rocket will provide an Order Form to Customer that includes the Products, Support Services and Professional or other Services and associated Fees. Customer will place a binding order, subject to Rocket’s acceptance, by sending Rocket a signed Order Form. If there are no Special Terms on a Support Renewal Order, Customer may renew Support Services by issuing a Purchase Order in lieu of a signed Order form, which references this Agreement, to Rocket at least 60 days prior to the expiration of the current Support Term. More than one (1) Order Form may be incorporated into this Agreement and each Order Form together with the terms and conditions of this Agreement shall constitute a separate Software License and Services Agreement, independent from other Order Forms incorporated into this Agreement, unless otherwise specified on an Order Form. Each Order Form may include Special Terms applicable to that order only. Except as described herein acceptance of a Purchase Order without a signed Order Form is at Rocket’s sole discretion.

2. LICENSE

2.1 Rocket grants to Customer a personal, non-exclusive Measured License for each Product listed on an Order Form, in object code form, and related Documentation. Customer may make one copy of the Product for archival purposes, which does not include use for failover or disaster recovery. Customer may purchase failover, disaster recovery and non-production Licenses from Rocket and the specific use right for such Licenses will be set forth on the Order Form. Customer may duplicate Documentation for internal use only provided all proprietary markings and legends are retained.

2.2 Only Customer designated on an Order Form shall have the right to use the Product(s) (i) solely for its own internal use and benefit and (ii) for the benefit of Customer’s Affiliates.

2.3 Customer shall not:
(i) Copy, transfer, sublease, assign or deliver Product(s) to another company or provide or otherwise make Product(s) available to anyone other than Customer’s employees or do processing for the benefit of any entity other than as stated above (each, an “Expanded Usage Right”) unless Customer shall have obtained Rocket’s prior written consent and paid the applicable fees for each Expanded Usage Right. For clarity, any merger, acquisition, or divestiture of Customer shall be deemed a transfer or assignment for which Rocket’s written consent, and payment by Customer of applicable fees, shall be required. Contractors, consultants, customers, outsourcing firms, and all such similar third parties are specifically excluded from the scope of Customer’s authorized users; temporary employees that are individually hired and paid directly by Customer, however, shall be included in the scope of Customer’s authorized users.

(ii) Transfer or use a Product or Documentation to or in a country other than that to which Rocket first provides it;
(iii) Use a Product except as specified in the Documentation;
(iv) Translate, modify or make derivative works of a Product or Documentation;
(v) Reverse engineer, decompile, disassemble or interpret a Product;
(vi) Exceed the time period for the License or use a Product in excess of the Measured License which Customer purchased;
(vii) Use a Product in production if provided under a testing, evaluation, development or other non-production License;
(viii) Alter a Product’s copyright or other intellectual property rights notices; (ix) Infringe or misappropriate Rocket’s or its licensors’ Intellectual Property.

2.5 Additional licensing definitions, explanations and clarifications may be included in the “Special Terms” section of an Order Form or on a Product Schedule, and at this link: https://www.rocketsoftware.com/additional-licensing-terms. All such terms are binding on Customer as if contained in this Agreement.

2.6 Customer shall provide Rocket with prior written notice of any actual or intended increase in the number of licenses or usage increase beyond Customer’s current license entitlement. If there are additional fees required for Customer to remain in compliance with its license grant, Customer will pay such fee upon receipt of invoice from Rocket. If Customer has a maintenance subscription for its licenses, Customer will be charged a pro-rated maintenance fee equal to 20% of the license fee.

2.7 Rocket may terminate a License by written notice (i) immediately, if Customer infringes or misappropriates Rocket’s or its licensors’ Intellectual Property or fails to comply with the License Terms; (ii) as specified in the Warranty Terms; and (iii) if Customer materially breaches the Agreement, subject to any specified cure period. Upon termination Customer will immediately return or destroy all Product(s) and, upon Rocket’s request, provide written certification of such destruction.

3. SUPPORT SERVICES

3.1 Rocket will provide Support Services purchased by Customer according to Rocket’s current standard policies and procedures as revised from time to time and located at this link: https://www3.rocketsoftware.com/support-manual/pdf/Rocket_Software_Technical_Support_Users_Guide_current.pdf. Rocket’s standard Support Services generally include (i) commercially reasonable efforts to resolve problems or bugs in the Product which substantially impair the functionality described in Rocket’s published technical specifications; (ii) revisions and updates for Products containing code fixes, improvements or enhancements to existing functionality as available; (iii) access to online problem reporting, tracking, and self-help tools; and (iv) telephone support for trained Customer personnel during support hours. Support Services do not include onsite support which may be purchased if available.

3.2 Customer acknowledges that Support Services are not available for an error or malfunction which, after investigation by Rocket and Customer, is determined to have been caused by Customer’s equipment, an enhancement not made by Rocket, incorrect data or procedures used by Customer, and any other problem that is not directly caused by Rocket or the Product. In that event, Rocket may submit to Customer a quote for work on such error or malfunction at Rocket’s rates then in effect, for all services rendered and costs incurred by Rocket in investigating or remedying such nonconformity.

3.3 All requests for Maintenance shall provide details sufficient to diagnose or reproduce said failure. With respect to the foregoing, any modification or attempted modification of the Products by Customer not in accordance with the Documentation supplied by Rocket, or any failure by Customer to implement the current release of the Products or the release immediately preceding the current release within six (6) months of the current release’s availability shall void the obligations of Rocket under this section unless Customer has obtained prior written authorization from Rocket permitting such modification, attempted modifications or failure to implement.

3.4 The initial Support Period begins on the Product Delivery date, unless a different Support Period is specified on an Order Form. The Support Period will renew automatically for subsequent Support Periods unless either party provides written notice of termination at least 60 days prior to the end of the current Support Period. Rocket may suspend or terminate Support Service upon written notice if Customer breaches its obligations under this Agreement. Upon termination of Support Service, Customer will, at Rocket's direction, return or destroy any Rocket Confidential Information, Documentation, and other Rocket materials. Customer will immediately pay Rocket all fees accrued as of the termination date.

3.5. If Customer elects to renew Support Services for less than its originally-licensed quantity(ies) of the Product(s), then the annual cost of the associated Support Services shall be recalculated to be twenty percent (20%), or as otherwise stated in the applicable Order Form, of the then-current list price for the Product(s) covered under the Support Services post-renewal. Should Customer initially contract with Rocket for Support Services as part of an offering for the Product(s) that enabled Customer to take advantage of reduced Support Services rates/costs, Customer must renew Support Services on at least all licenses on the original Order Form in order to retain the discounted price levels.

4. FEES AND PAYMENT

4.1 Customer will pay to Rocket the Product Fees set forth on an Order Form, along with shipping, handling, taxes and any similar fees. Customer is responsible for customs clearance and paying any customs duties and import fees.

4.2 Support Service Fees for the initial Support Period shall be included on the Order Form. Rocket will provide an Order Form or invoice for each renewal Support Period with the Fees to be charged therefor. If Customer’s Support Services lapse at any time, renewal will be subject to Rocket’s re-instatement policies and fees.

4.3 Unless specified otherwise by Rocket in writing, Customer’s payment is due within 30 days from date of invoice. Late payment is a material breach of Customer’s obligation, upon which Rocket may suspend Product Delivery and Service performance. Customer will pay to Rocket all reasonable costs and expenses for collection of overdue amounts, including legal fees. Customer must notify Rocket in writing of any disputed invoice within 15 days of invoice receipt or its right to dispute the invoice will be deemed waived.

4.4 Product and Service Fees do not include taxes. Customer will pay all sales, use, value added, good and services, property, customs, excise and other taxes (not including taxes on Rocket’s net income) (“Tax”) imposed upon the purchase, sale, license, or use of Products and/or Services, regardless of whether the Tax is included in Customer’s invoice. In the event of cross-border payments to Rocket under this Agreement, the payments do not constitute royalties and are not subject to withholding taxes based on the Organization for Economic Cooperation and Development Commentary on Article 12 of the Model Tax Convention. All payments by Customer will be made free and clear of, and without reduction for, any withholding taxes.  In the event Customer believes local country statutes require withholding taxes on payments to Rocket, Client shall contact Rocket to jointly determine if withholding taxes are in fact required.  Should the parties agree withholding taxes are legally required to be deducted, Customer will provide Rocket with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Rocket to establish that such taxes have been paid.

5. WARRANTIES

5.1 Rocket warrants that at the time of initial delivery and for a period of 90 days thereafter (“Warranty Period”) Product will perform substantially according to Rocket’s current published technical specifications on the Product Delivery date, when used according to the Documentation. Customer must provide a written Product Warranty claim to Rocket within 90 days of the Delivery date. Customer must provide remote or local access to the Product if required by Rocket to perform Product Warranty service. Rocket will repair or replace a Product not conforming to the Product Warranty or, at its option, refund the part of the Product Fees paid for the Product that does not conform, and terminate the Product License. Upon License termination, Customer will cease using the Product and will remove the Product from its computer systems.

5.2 Rocket warrants that Support Services will be performed in a commercially reasonable manner consistent with general industry standards that apply to similar services. Customer must provide a written Service Warranty claim to Rocket within 15 days after the date Rocket provided the Service.

5.3 Product Warranty or Support Service Warranty does not cover problems caused by (i) misuse, alteration, neglect, unauthorized repair or installation, or acts or omissions of any party other than Rocket; (ii) an error or defect in Customer’s hardware, software, networks, or systems; or (iii) Customer not using Product according to Rocket’s current published technical specifications. EXCEPT AS SET FORTH IN SECTIONS 5.1 AND 5.2 ABOVE, ROCKET, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTEES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, FOR PRODUCTS OR SERVICES, THEIR USE, SUFFICIENCY, ACCURACY, RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, OR COMPLETENESS, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, (i) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR (ii) THAT SUPPORT SERVICES OR OPERATION OF PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA. (iii) ALL ERRORS OR DEFECTS WILL BE CORRECTED. THIS SECTION 5 DESCRIBES ROCKET’S SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR A PRODUCT OR SUPPORT SERVICE WARRANTY CLAIM.

6. INTELLECTUAL PROPERTY OWNERSHIP

6.1 Rocket, its Affiliates or licensors own and retain all right, title and interest in all Intellectual Property in Products, Services, Documentation, (except as otherwise specified herein), developments, research data, designs, layout, methodologies, processes and procedures, models, formulae, documents, drawings, plans, specifications and other Rocket information, proprietary materials and all derivative works. To the extent that any right, title or interest in or to any Rocket’s Intellectual Property may not automatically vest in Rocket by operation of law, Customer irrevocably transfers, assigns and conveys all right, title, and interest therein to Rocket and will execute any documents necessary to that effect.

7. CONFIDENTIALITY

7.1 For the duration of this Agreement, each party may supply to the other Confidential Information. Whether or not disclosed orally or marked as confidential, Confidential Information includes the Agreement, Order Forms, Products, Deliverables, and Services; either party’s non-public data, Intellectual Property, and Rocket’s proposals, specifications, manuals, product roadmaps, financial data, pricing, and results of benchmark tests. The Confidential Information will, until it is no longer confidential, be kept confidential by the Receiving Party using the same standard of care that the Receiving Party uses to protect its own information of a similar nature, but not less than reasonable care, and will not be used by the Receiving Party outside the scope of this Agreement. Confidential Information shall not include any information which: (i) was in the public domain when received, or thereafter enters the public domain through no fault of the Receiving Party; (ii) is in the Receiving Party’s possession prior to receipt from the Disclosing Party, without any breach of confidentiality; (iii) is independently developed by the Receiving Party without reference to any confidential information of the Disclosing Party. Receiving Party will, if legally permitted, promptly notify Disclosing Party if it is compelled by a court or legal process to disclose Confidential Information and will take any reasonable action requested by Disclosing Party to maintain the confidentiality of the Confidential Information. Products are not deemed to be placed in the public domain by Rocket. The parties agree Confidential Information shall remain the property of the original owner. Receiving Party must only disclose Disclosing Party's Confidential Information to its employees or contractors who are bound by written confidentiality obligations no less restrictive than these terms.

7.2 Each party will use best efforts to prevent disclosure to the other party of any personally identifiable information (PII) regarding its employees or customer(s).

7.3 Upon notice from the Disclosing Party or upon termination of this Agreement for any reason, the Receiving Party will return to the Disclosing Party all Confidential Information of Disclosing Party which is in tangible form (or, where a delivery is not possible, will destroy such Confidential Information and certify to the Disclosing Party that the Receiving Party has done so). Such return or destruction shall take place within 30 days of request or Agreement termination. If any information is not returned due to Receiving Party’s document retention policy, law or regulation, that information shall remain subject to this Confidentiality provision.

8. INTELLECTUAL PROPERTY INDEMNIFICATION

8.1 By Rocket

a. Rocket will defend, at its expense, a third-party legal action, suit or proceeding against Customer (“Claim”) to the extent that a Product, or a Deliverable that is a Product proprietary derivative work, as delivered by Rocket to Customer (“Indemnified Product”) directly infringes a valid patent or copyright of the country where the Customer is using the Product. Rocket will indemnify Customer for any judgment finally awarded against Customer or settlement agreed by Rocket for such Claim to the extent of the Indemnified Product’s infringement, provided (1) Customer notifies Rocket promptly in writing of the Claim although failure of prompt notification shall not invalidate the indemnification obligation unless Rocket is materially prejudiced thereby, (2) Rocket has sole control over the defense or settlement, and (3) Customer fully cooperates with Rocket, providing all documents and information in Customer’s possession relevant to the Claim, and Customer makes personnel available to testify or consult with Rocket.

b. If an Indemnified Product becomes, or in Rocket’s opinion is likely to become subject to a Claim, Rocket may, at its option and expense, (1) acquire the right for Customer to continue using the Indemnified Product, (2) replace or modify the Indemnified Product or create a workaround so that the Indemnified Product is functionally equivalent and non-infringing, or (3) terminate the License for the Indemnified Product and give Customer a credit for the Product Fee paid by Customer for the infringing part of the Indemnified Product, less a reasonable allowance for the time Customer used the Indemnified Product.

c. Rocket is not obligated or liable for a Claim due to: (1) use of an Indemnified Product not according to the Agreement and Documentation, (2) modification of an Indemnified Product by anyone other than Rocket, or modification made by Rocket for non-standard features or functionality for Customer or according to Customer’s directions, (3) any products, equipment, software, or data not supplied by Rocket, (4) use of an Indemnified Product combined with any other products, equipment, software, or data not supplied by Rocket if infringement would not occur without  the combination, (5) a release of Indemnified Product other than the most current release available or Customer’s failure to install a revision, update or release that would have eliminated the infringement, (6) Customer’s designs, instructions, plans or specifications, or (7) use of an Indemnified Product combined with a Customer or third party use, process or method if infringement would not occur without the combination.

8.2 By Customer

a. Customer will defend, at its expense, a third-party claim against Rocket (1) that any product, information, data or material provided by Customer infringes another party’s intellectual property rights, other than a Claim for which Rocket is responsible according to Section 8.1 above, or (2) arising from Customer’s or its Affiliates’ failure to comply with the terms of the Agreement.

b. Customer will indemnify Rocket for any damages, or amounts of a judgment finally awarded against Rocket or agreed as settlement, for the claim, provided (1) Rocket notifies Customer promptly in writing of the claim, although failure of prompt notification shall not invalidate the indemnification obligation unless Customer is materially prejudiced thereby, (2) Customer has sole control over the defense or settlement, and (3) Rocket cooperates with Customer, providing all documents and information in Rocket’s possession relevant to the claim, and Rocket makes personnel available to testify or consult with Customer as reasonably needed.

8.3 If a party fails to defend or settle a claim according to this Section 8 in a timely manner, the other party may assume defense of the claim at the indemnifying party’s expense, and the indemnifying party will reasonably cooperate. Neither party may, without written consent of the other party, make an admission of fault on behalf of the other party, or agree to the settlement of a claim binding the other party that does not contain a full release of liability for the other party.

8.4 THIS SECTION 8 DESCRIBES EACH PARTY’S SOLE LIABILITY AND THE OTHER PARTY’S SOLE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION.

9. LIMITATION OF LIABILITY

9.1 ROCKET, ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR (i) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, (ii) ANY INTERRUPTION OF BUSINESS OR OPERATIONS, COST OF COVER, GOODWILL, TOLL FRAUD, OR LOSS OF DATA, PROFITS, OR REVENUE, OR FAILURE OF A REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE.

9.2 EXCEPT FOR A CLAIM FOR INFRINGEMENT UNDER SECTION 8, DEATH OR BODILY INJURY CLAIMS, TANGIBLE PROPERTY DAMAGE, WILLFUL MISCONDUCT, OR FRAUD, ROCKET, ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY DAMAGES THAT EXCEED THE AMOUNT CUSTOMER PAID IN THE PRECEDING 12 MONTHS FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM.

9.3 THE LIMITATIONS IN THIS SECTION 9 WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABLITY, WHETHER FOR BREACH OF CONTRACT, TORT, THE USE OR PERFORMANCE OF A PRODUCT OR SERVICE, OR OTHERWISE, AND REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE OR UNFORSEEABLE. ROCKET WILL NOT BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN 12 MONTHS AFTER CUSTOMER BECAME AWARE OF THE ISSUE GIVING RISE TO THE CLAIM. ROCKET’S FAILURE TO EXERCISE A RIGHT OR REMEDY IS NOT A WAIVER.

10. VERIFICATION AND AUDIT

10.1 Upon Rocket’s request, but not more frequently than annually for the same Product(s) without reasonable cause, Customer shall furnish Rocket with a signed statement (the “Verification Statement”) verifying that the Product(s) are being used pursuant to the provisions of this Agreement. Customer agrees to provide the Verification Statement within fifteen (15) days of Rocket’s written request. Customer’s Verification Statement shall include all relevant details of Customer’s installation and/or usage of the Product(s) including but not limited to (i) the location, model, and serial number of any and all equipment on which the Product(s) are currently or previously installed and/or used, (ii) the total number of users, and where applicable the total number of concurrent users, who had access to the Product(s) in the prior year—inclusive of the name of, geographical location of, and period of available access for each user, and (iii) for any Products that are subject to capacity, sub-capacity, or session restrictions, the peak and average usage of MIPS/ MSUs/CPCs (sometimes referred to as “CPUs”)/ sessions or other applicable licensing metric in the prior year, as appropriate to the Product(s) in scope of the review. Should Rocket have questions about the information provided in, or missing from, the Verification Statement, Customer agrees to cooperate with Rocket, including by providing additional information to Rocket, to complete Rocket’s full understanding of the Product(s) installation and/or use. For software licensed for mainframe systems, Customer shall provide copies of the Sub Capacity Reporting Tool (“SCRT”), Resource Management Facility (“RMF”) Partition Data Report, and/or other such system reports as Rocket requests covering the previous year of mainframe usage. For Products licensed by sessions, if requested by Rocket, Customer shall provide copies of applicable log files.

10.2 In addition to or in place of the Verification Statement, at Rocket’s option, Rocket may audit Customer’s installation and/or use of the Product(s) upon ten (10) days written notice but not more frequently than annually for the same Product(s) without reasonable cause (the “Audit”). Audit procedures shall be determined by Rocket based on the Product(s) in scope of such a review. Audits may be conducted remotely with Customer’s cooperation, on site at Customer’s office(s), or a combination of both. Customer shall provide reasonable and timely access to the historical records, computer systems, and Customer employees needed to assess Customer’s compliance with this Agreement. Unless agreed otherwise between Rocket and Customer, Audit procedures shall be conducted during normal business hours and in a manner to not unduly disrupt Customer’s business. At Rocket’s option, Rocket or a third-party auditing firm operating under a non-disclosure agreement with both Rocket and the Customer, may conduct the Audit. Rocket shall bear its costs to conduct an Audit, inclusive of fees payable to a third-party, provided, however, that Customer shall reimburse Rocket for all expenses related to the Audit should the Audit reveal underpayment of Licenses and/or Maintenance fees in excess of five percent (5%) of the total fees previously paid to Rocket over the course of this Agreement.

10.3 Should the Verification Statement or Audit reveal an underpayment and/or non-payment of fees by Customer to Rocket, Customer shall pay the following fees to Rocket within fifteen (15) days of written notification from Rocket (the “Resolution Date”): (i) new license fees for the difference between the Customer’s licensed deployment and the Customer’s actual deployment, which shall be calculated based on Rocket’s then-current list price (with no discounts applied) for the Product(s) (the “New License Fees”), (ii) incremental Maintenance fees calculated at twenty percent (20%), or as otherwise stated in the applicable Order Form or Product Schedule, of the New License Fees for the period from the first date of installation of the license(s) in question through one year subsequent to the Resolution Date (the “Incremental Maintenance Fees”), (iii) interest on both the New License Fees and Incremental Maintenance Fees at the rate of one and one half percent (1.5%) per month for the period since first installation of the Product(s) in question through the Resolution Date, and (iv) any applicable tax(es) on the foregoing fees.

11. RELIEF

11.1 The parties will attempt in good faith to resolve any controversy or claim promptly through business discussions and will, upon written request, escalate a dispute to executive management for resolution.  If the parties fail to resolve the dispute within 30 days of written request, or any longer period agreed in writing, the parties may pursue the remedies to which they are entitled. This clause shall not restrict either party’s right to seek equitable relief at any time.

11.2 Customer’s failure to comply with the License or Confidentiality terms of the Agreement may result in irreparable harm to Rocket that may be intangible but real and is incapable of complete remedy by award of damages. Customer agrees (a) Rocket has the right to seek an injunction or other court order and may proceed directly to court to specifically enforce Customer’s obligations, (b) no finding of irreparable harm or other condition to injunctive relief is required, (c) if equitable relief is granted, Customer will pay Rocket’s reasonable expenses and attorney fees, in addition to any other relief granted. Rocket shall have the right to pursue all remedies at law and in equity for such a breach.

12. INFORMATION SECURITY AND PRIVACY

12.1 For purposes of this Agreement, Rocket will process business contact information of Customer’s employees. Business contact information consists of the first and last name, the title or job function, and business contact phone numbers and an email address where Customer’s employees can be reached. Rocket will treat all Customer business contact personal information in accordance with its privacy policy found on its website.

12.2 Rocket has designed and implemented an information security program consistent with generally-accepted industry standards which has been and will continue to be reviewed annually by its executive management. Rocket will continue to oversee its further development for the duration of this Agreement so that it (i) ensures the confidentiality, integrity, and availability of its network and systems; (ii) protects against unauthorized access, anticipated threats or hazards; (iii) ensures the proper disposal of information and hardware; and (iv) has in place, and ensures its third party supplier(s) also have in place, similarly protective network infrastructure, physical and electronic security procedures and controls.

13. U.S. GOVERNMENT USERS

13.1 Products, Documentation, Deliverables, and Services include “Commercial Computer Software” and “Commercial Computer Software Documentation.”  In accordance with Section 12.212 of the Federal Acquisition Regulations (FAR) and Sections 227.7202-1 through 227.7202-4 of the Defense Federal Acquisition Regulation Supplement (DFARS), any use, duplication or disclosure of Rocket Products, Documentation, Deliverables, and Services by the U.S. Government or any of its agencies will be governed by and subject to all of the terms, conditions, restrictions, and limitations of the Agreement. Use of Products, Documentation, Deliverables, and Services is agreement by the U.S. Government that Products, Documentation, Deliverables, and Services include “commercial computer software” and “commercial computer software documentation” and is acceptance of the rights and restrictions in the Agreement. If for any reason a Product, Documentation, Deliverables, or Service is not considered commercial or the Agreement terms are otherwise deemed not to apply, the Product, Documentation, Deliverables, or Service will be deemed to be provided with “Restricted Rights” as defined in FAR 52.227-14(a) and FAR 52.227-14(g)(4) (Alt III), or DFARS 252.227-7014(a)(15) and DFARS 252.227-7014(b)(3), as applicable.

14. MISCELLANEOUS

14.1 The Agreement supersedes all other oral or written terms, proposals or representations in effect between the parties regarding Rocket Products and Services. Any terms in a subsequent or contemporaneous Order Form that are inconsistent with this Agreement will control for that Order Form only. This Agreement may only be modified by a written amendment signed by both parties. Inconsistent terms on Customer’s Purchase Order are excluded regardless of whether Rocket accepts the Purchase Order for payment purposes. If any term of this Agreement is held to be illegal, invalid, or unenforceable, the other terms remain in full force and effect. Any term that is intended to survive the termination of the Agreement will survive.

14.2 Customer may not assign the Agreement, an Order Form, or any of its obligations, rights or remedies, in whole or in part, without Rocket’s prior written approval in its sole discretion.

14.3 Neither party is liable for delay or failing to perform its obligations due to a cause beyond its reasonable control and without fault or negligence, except Customer’s failure to perform its payment obligations.

14.4 Rocket and Customer will comply with applicable U.S., foreign, and international laws and regulations.  Customer agrees: (i) that the export, re-export, transfer, re-transfer, sale, supply, access to, or use of the Products, Deliverables or Services to or in a country other than the country in which the Product , Deliverables or  Services were first provided to Customer, or to, by, or for a different end user or end use may require a U.S. or other government license or other authorization; and (ii) not to, directly or indirectly, export, re-export, transfer, re-transfer, sell, supply, or allow access to or use of the Products, Deliverables or Services to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end uses under U.S. or other applicable law (collectively, “Prohibited Uses“). Customer is responsible for screening for Prohibited Uses and obtaining any required licenses or other authorizations and shall indemnify Rocket for any violation by Customer of any applicable export controls and/or economic sanctions laws and regulations. Rocket may terminate the Agreement and Licenses immediately if Customer breaches any of the provisions in this clause.

14.5 The parties agree that the Agreement and all related documents are in English. If Rocket provides a dual language version of a document for convenience, in the event of any conflicts the English language version shall prevail.

14.6 Each party is an independent contractor and may not commit the other party without written authorization. The Agreement does not create an employment, joint venture, partner, or agency relationship.

14.7 For the Agreement term and 1 year after the termination date, without Rocket’s written consent, Customer will not, directly or indirectly, hire or solicit any Rocket employee, former employee, or contractor (except as a result of a generally advertised recruiting solicitation).

14.8 Notice or approval must be in writing signed by a party’s authorized representative, sent to the address on the Order Form or otherwise specified in writing by a party. Notice must be sent by mail or overnight courier with return receipt and is effective 1 business day after being sent by overnight courier or 3 business days after being sent by mail.

14.9 For the term of this Agreement, Rocket may use Customer’s name in press releases, product brochures, and other marketing materials to indicate they are Rocket’s customer. Rocket will use Customer’s trademarks, service marks, logos or branding, according to any branding guidelines which Customer makes available to Rocket. Licensee hereby agrees to serve as a reference for the Product(s) at times to be mutually agreed upon. Such references may, as mutually agreed upon, include activities such as (i) reference calls with or hosting of a site visit with mutually acceptable prospects; (ii) a published “News Release” announcing the successful partnership with Rocket no later than sixty (60) days from the date of this Agreement; (iii) mention of Licensee or Licensee logo on Rocket’s website; (iv) the completion of a “Case Study;” or (v) sharing Licensee’s “Success Story” which may include speaking at Rocket events. Both parties will agree to the content and timing of any announcement focused on their relationship prior to distribution.

14.10 Choice of Law; Jurisdiction; Venue:

North and South America. For customers located in North or South America, the following terms apply:
Governing Law; Jurisdiction and Venue. Massachusetts laws govern the Agreement excluding conflict of law principles that would apply the law of any other jurisdiction. Each party waives the right to jury trial for a claim in law or equity. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act, as adopted, do not apply. The parties submit to the exclusive jurisdiction of the federal and state courts located in Boston, Massachusetts.

UK, IE, Middle East, Africa, Russia, and India. For customers located in the Republic of Ireland, the United Kingdom, British Crown Dependencies, British Overseas Territories, Middle East, Africa, Russia, and India the following terms apply:
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction and venue of courts located in England.

Germany, Austria, and Switzerland (“DACH”). For customers located in DACH, the following terms apply:
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of Germany and the parties submit to the exclusive jurisdiction and venue of courts located in Germany. Clarification on Liability Cap under Section 9 (Limitation of Liability). THE PARTIES AGREE THAT THE LIABILITY CAP IN SECTION 9 APPLIES FOR SLIGHTLY NEGLIGENT INFRINGEMENT OF A MATERIAL CONTRACTUAL OBLIGATION, WHOSE FULFILLMENT IS ESSENTIAL IN ACCOMPLISHING THE CONTRACT AND ON WHOSE FULFILLMENT THE OTHER PARTY CAN REGULARLY DEPEND (“CARDINAL DUTY”/ “KARDINALPFLICHT”). THE PARTIES SPECIFICALLY AGREE THAT THE TYPICAL FORESEEABLE DAMAGE AND BREACHES OF A CARDINAL DUTY WILL NOT EXCEED IN AGGREGATE THE LIABILITY CAP SET OUT IN SECTION 9.
Additional Exceptions on Liability under Section 9. NONE OF THE LIMITATIONS IN SECTION 9 EXCLUDES EITHER PARTY’S LIABILITY FOR DAMAGES DIRECTLY RESULTING FROM: (I) INTENT; (II) GROSS NEGLIGENCE; (III) CULPABLE INJURY TO LIFE, BODY AND HEALTH; (IV) IN CASE OF A BREACH OF GUARANTEE, WHICH MUST BE EXPLICITLY NAMED A “GUARANTEE”; OR (V) MANDATORY LIABILITIES UNDER THE PRODUCT LIABILITY ACT.

Netherlands and Rest of Europe. For customers located in the Netherlands and European countries not covered by other region-specific terms above, the following terms apply: Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the Netherlands and the parties submit to the exclusive jurisdiction and venue of court located in Rotterdam. Any court proceedings will be conducted in English, to the extent available.

Additional Exceptions on Liability under Section 10(Limitation on Liability). NONE OF THE LIMITATIONS IN SECTION 10 EXCLUDES EITHER PARTY’S LIABILITY FOR INTENT OR GROSS NEGLIGENCE (OPZET OF BEWUSTE ROEKELOOSHEID) OF THAT PARTY OR ITS MANAGERIAL STAFF.

Australia, New Zealand and Asia Pacific. For customers located in Australia and New Zealand and Asia Pacific the following terms apply:
Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of Australia and New South Wales and the parties submit to the exclusive jurisdiction and venue of courts located in Sydney.

15. PROFESSIONAL SERVICES

15.1 Orders: Customer will order the Professional Services it requires as specified in Section 1 above, which Rocket may perform remotely or on site as appropriate. The Order Form will describe the Professional Services and any of the following that apply: project plan, resources and actions provided by each party, Deliverables, Fees, expenses, and payment schedule.

15.2 Fees and Payment: Customer will pay to Rocket, according to each Order Form: (a) Fees for a project or for time and Deliverables; (b) Rocket’s expenses incurred with the Professional Services; and (c) any additional fees and expenses incurred by Rocket due to changes in the scope of Services to be provided, Customer’s failure to fulfill its obligations in a timely manner, or reassignment of personnel or rescheduling without Rocket’s fault. Professional Services Fees are due and invoiced as set forth on an Order Form. Customer will pay Fees and expenses for all Professional Services and Deliverables provided until the end of each Service engagement. Rocket will itemize invoices for expenses and provide receipts if Customer requests. All Professional Services Rocket provides are billable, regardless of whether the Professional Services are requested by Customer to assist with a warranty or maintenance issue, which will be addressed by Rocket’s Support Services organization. Support for third party products is provided by the third-party supplier.

15.3 Deliverables; Licenses: Rocket may designate in writing Deliverables as “Type I Deliverables,” “Type II Deliverables,” or otherwise as agreed. If not specified in writing, Deliverables are Type II Deliverables. Customer’s data and Confidential Information are Customer’s exclusive property in which Customer retains all right, title and interest, and are not Deliverables even if included with Deliverables provided by Rocket, such as in a report or dashboard. Rocket Products are governed by separate license terms.

a. Type I Deliverables are Deliverables created solely for Customer during the Professional Service performance period in which Customer will have all right, title, and interest, including copyright. Rocket will retain a copy of Type I Deliverables. Rocket’s Intellectual Property and Confidential Information, in which Rocket retains all right, title and interest, are excluded from Type I Deliverables.

b. Type II Deliverables are Deliverables provided or created during the Professional Services performance period, including without limitation all preexisting materials, in which Rocket or its affiliates have all right, title, and interest, including copyright. Rocket will provide one copy of Type II Deliverables to Customer.

c. Rocket grants Customer a License to use and reproduce a reasonable number of copies, and distribute internally, Type II Deliverables’ object code for its own internal business operations only, according to the Order Form. Customer will not reverse engineer, sell, rent, sublicense or permit a third party to use or access Type II Deliverables. Customer’s ownership of Type I Deliverables and License for Type II Deliverables are contingent upon full payment of all fees and expenses for Professional Services.

d. Customer grants Rocket (1) a nonexclusive, worldwide, royalty-free right to use and copy Confidential Information and data, and use any Customer proprietary and third party products, services and materials under Customer’s license, as necessary to provide the Professional Services, and (2) an irrevocable, nonexclusive, royalty-free right to use, reproduce, create derivative works, sublicense and distribute, internally and to other parties, Type I Deliverables, excluding Customer Confidential Information and Customer data, which is Customer’s exclusive property. Customer represents and warrants that Customer information, data and third-party products, services and materials provided to Rocket will not violate any law or third-party rights.

e. Each party will reproduce the copyright notice or other legend on any copies made under the license and use rights granted.

f. Rocket does not provide Support Services for Deliverables unless Rocket, at its option, has incorporated the Deliverables in a generally available Product, or Rocket agrees to provide Support Services for the Deliverable in the SOW, and Customer pays fees for the Support Services.

g. Rocket may terminate a License by written notice (i) immediately, if Customer infringes Rocket’s or its licensors’ Intellectual Property or fails to comply with the License Terms; or (ii) if Customer materially breaches the Agreement, subject to any specified cure period. Upon License termination Customer must immediately destroy licensed Deliverables and, upon Rocket’s request, and so certify in writing.

15.4 Personnel: On Customer premises, Rocket personnel will comply with Customer's reasonable rules and policies provided to Rocket in writing for such matters as working hours, holidays and Customer security measures. Rocket will determine its personnel to perform Professional Services in its sole discretion. The parties will resolve any Professional Services issues in good faith.  If the resolution involves reassigning personnel, Rocket will do so as soon as practical and commercially reasonable, according to local law.  Customer agrees that reassignment may delay Professional Services or allow Rocket to terminate Professional Services without Rocket liability.

15.5 Professional Services Warranty: Rocket warrants that Professional Services will be performed in a commercially reasonable manner consistent with industry standards. Customer must provide a written Professional Services Warranty claim to Rocket within 15 days after the date Rocket performs Professional Services. Rocket, at its option, will re-perform Professional Services that do not comply with the Professional Services Warranty at no additional charge, or if not practical and solely at Rocket’s option, credit the part of the Professional Services Fee, if paid, for the Professional Services that do not comply with the Professional Services Warranty.

a. This Professional Services Warranty does not cover problems caused by (i) misuse, alteration, enhancements, neglect, accident, unauthorized repair or installation, or acts or omissions of, or delay by, any party other than Rocket; or (ii) electrical systems, fire or water damage, Customer’s hardware, software, networks, or systems. DELIVERABLES ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTY OF ANY KIND. ROCKET, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTEES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, FOR PROFESSIONAL SERVICES AND DELIVERABLES, THEIR USE, SUFFICIENCY, OR ACCURACY, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR THAT PROFESSIONAL SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED OR ERROR FREE.

b. THE WARRANTY DESCRIBED IN THIS SECTION 15.5 IS ROCKET’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR A PROFESSIONAL SERVICES OR DELIVERABLES CLAIM.

15.6 Professional Services Indemnity: Each party will defend, at their expense, any action brought against the other party for bodily injury, death, or tangible property damage to the extent caused by the gross negligence or willful misconduct of the defending party relating to a Professional Services engagement. The defending party will indemnify the other party for and pay damages finally awarded in such action, or agreed as a settlement by the indemnifying party, if (a) the other party promptly notifies the indemnifying party in writing of the claim, (b) the indemnifying party has sole control over the defense or settlement, and (c) the other party cooperates in the indemnifying party’s defense or settlement. If a party with an indemnification obligation fails to defend or settle a claim in a timely manner, the other party may assume the defense at the obligated party’s expense, and the obligated party will reasonably cooperate. Neither party may, without the other party’s written consent, agree to a settlement that: (a) binds the other party, (b) does not contain a full release of the other party, or (c) admits fault on behalf of the other party. THIS SECTION 15.6 DESCRIBES EACH PARTY’S SOLE LIABILITY AND THE OTHER PARTY’S SOLE REMEDY FOR PROFESSIONAL SERVICES INDEMNIFICATION.

15.7 Professional Services Termination: Either party may terminate a Professional Services engagement, in whole or in part, with 30 days prior written notice, effective on the date specified in the notice, however, this Agreement apply for all Services and Deliverables provided regardless of the termination date, including any Services provided for transition or termination assistance.  Rocket is not responsible for the resulting condition of Services or Deliverables upon early termination. This Agreement govern all Order Forms until Professional Services are terminated or completed.

16. DEFINITIONS

Agreement means these terms and conditions and each Order Form as a separate Software License Agreement and shall refer to one (1) or more, or all, of such Software License Agreements

Affiliate means a legal entity that is controlled by a party through ownership of 51% or more of its outstanding equity.

Concurrent User means a User authorized to use a Product or Service concurrently with other Concurrent Users, limited by a maximum number of Concurrent Users at any one time.

Confidential Information means any material, data, or information, in any form or media, that is proprietary or confidential to a party and is marked as confidential, or not marked but by its nature or treatment by its owner should reasonably be considered to be confidential.

Customer means the legal entity executing an Order Form.

Day means calendar day unless specified as business day.

Deliverable means materials or work product specified as a “deliverable” in an Order Form that Rocket provides or creates with Professional Services, including without limitation software programming, application program interfaces, information, documents, reports, technical and non-technical data, specifications and other material, including derivative works. Deliverables do not include Products.

Deliver(y) means Rocket has provided, and Customer is deemed to have accepted, a Product through electronic access.

Disclosing Party means a party whose Confidential Information is disclosed to the other party.

Documentation means Rocket’s user manuals and training materials containing Rocket’s current specifications and requirements and which are provided to Customer electronically or physically.

Enterprise License means a Measured License limited to the use required within a certain business unit or corporate entity specified in the Order Form measured as of the Order Form date.

Fee means Rocket’s price for a Product or Service specified in an Order Form.

Intellectual Property means all intellectual property, including without limitation, inventions, patents, copyrights, trademarks, service marks, trade names, trade secrets, know-how, moral rights, licenses, and any other intangible proprietary or property rights, registered or not, under statute and/or common law.

License means Customer’s non-exclusive, non-transferable right to use the licensed Products, Services, Deliverables or materials for its own internal business operations, according to the Documentation, and subject to the Agreement’s restrictions.

Measured License means a License for the time period, number and type of Users, transactions, copies, seats, millions of instructions per second (MIPS) or other quantity or measure specified for each Product listed on an Order Form.

Named User means an individual identified User authorized to use a Product or Service. A new Named User may replace a prior Named User.

Order Form means a quote, SOW or Product Schedule provided by Rocket to Customer that includes the Products, Services, and Fees.

Products means Rocket proprietary software products.

Product Schedule means an ordering document containing, as applicable, Product purchase information, maintenance information and any special terms for that transaction.

Product Warranty means Rocket’s limited warranty for Products.

Professional Services means the professional consulting services, standard installation, integration and configuration services, and time and materials services Rocket provides as an independent contractor.

Purchase Order means Customer’s document provided to Rocket to confirm purchase of Licenses or Services.

Receiving Party means a party receiving the other party’s Confidential Information.

Service(s) means Support Services and/or Professional Services.

Service Warranty means Rocket’s limited warranty specified for Support Services or Professional Services.

SOW means a statement of work that documents materials and services for a project that Rocket provides, generally for Professional Services engagements, including a project plan, resources and actions provided by each party, the fees charged therefor and a payment schedule.

Special Terms mean terms on an Order Form that apply to that order only.

Support Period means a time period defined in an Order Form during which Rocket will provide Support Services.

Support Service(s) means Rocket’s current standard maintenance and support services, policies and procedures for Products.

Use of a Product shall include but not be limited to i) downloading, installing, or copying any portion of the Product—including updates, patches, fixes, etc.—onto any computer, storage media, or electronic device ii) creating, processing, or modifying any form of code, data, information, and/or workload with the Product, iii) accessing the Product in any way even if indirectly or remotely through another application, interface, portal, or any other technology, iv) obtaining from Rocket or applying license keys for the Product, v) accessing any of Rocket’s Support Services related to the Product, or vi) managing or maintaining the Product on the certain designated equipment.

User means a Named User or Concurrent User employed by and authorized by Customer to use a Product or Service for Customer’s internal business purposes.