Verdiem Terms & Conditions

This Software License and Support Agreement (this “Agreement”) is a legal agreement between the customer entity (“Customer”) who has been granted by Aptean a license to use certain Aptean software. This Agreement shall govern the Customer’s use of all such software and Aptean’s provision of support and maintenance services for such software. By Customer’s use of such Aptean software, Customer hereby agrees to be bound by this Agreement.

Aptean Systems, LLC (“Aptean”) Software License and Support Agreement

Terms & Conditions

Section 1.Definitions.

For the purposes of this Agreement, the following capitalized words and phrases shall be ascribed the following meanings:

“Authorized Client” means a computer owned or controlled by Customer on which the client version of the Software has been installed, and with respect to which Aptean has been paid a license fee for use of the Software. The maximum number of Authorized Clients is specified in each Order.

“Confidential Information” has the meaning ascribed to it in Section 9.

“Documentation” means the Software user manuals, training manuals and other documentation, including additional, updated or revised documentation, if any, supplied to Customer by Aptean.

“Intellectual Property Rights” means all trade secrets, patents and patent applications, trade marks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.

“License” means a license to use the Software according to this Agreement to the extent and within the scope of the applicable Order.

“License Term” means the term of each License, as specified in the applicable Order.

“Order” means Aptean’s order form signed by the Parties whereby Aptean agrees to supply certain Software licenses and/or maintenance and support services pursuant to the terms and conditions of this Agreement.

“Party” means either Aptean or Customer, individually as the context so requires; and “Parties” means Aptean and Customer, collectively.

“Software” means the object code version of Aptean’s computer programs specified in the applicable Order, including any modifications or future releases of such software that Aptean may provide to Customer as part of the Support Program.

“Support Program” means the technical support and maintenance services specified in Aptean’s then current Support Program Description and, if so specified in the applicable Order, the remote installation and configuration support services described or referenced in the Order.

“Support Program Description” means Aptean’s then current technical support and maintenance program, the terms and conditions of which are available from Aptean upon request.

“User” means any individual who is an employee or contractor of Customer and who is authorized by Customer to use the Software pursuant to the applicable Order and this Agreement.

The following words shall be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) where “including” is used to refer to an example or begins a list of items, such example or items shall not be exclusive; and, (iii) “specified” requires that an express statement is contained in the relevant document.

Section 2.Rights To Use Software.

2.1 Copying, Installation and Operation. Aptean hereby grants Customer the following personal, limited, non-exclusive, non-assignable, non-transferable, worldwide license, without right to sub-license, for the License Term and subject to the provisions of this Agreement,

(a) to reproduce:

(i) that number of copies of the client, web and SMS versions of the Software that corresponds to the number of Authorized Clients, web and SMS copies specified in each Order; and

(ii) such number of copies of the server versions of the Software as are reasonably necessary for Customer to operate the Authorized Clients;

(b) to distribute such copies to and install them on personal computers and servers, as applicable, owned and controlled by Customer;

(c) to run the Software on the computers described in Section 2.1(b), solely for Customer’s internal business purposes by no more than the number of Users permitted in the applicable Order; and

(d) to reproduce copies of the Documentation to the extent reasonably necessary for Users to use the Software, and to distribute and display such copies of the Documentation internally for Customer and Users only.

2.2 Reservations. All rights to the Software, Documentation and all related and other Intellectual Property Rights of Aptean not expressly granted to Customer are reserved to Aptean, as applicable. Customer may use the Software and Documentation only for its internal business purposes. Customer may in addition reproduce the Software, but solely to the extent necessary for bona fide non-production testing, back-up or archival purposes.

2.3 Proprietary Rights; Reverse Engineering. As between Aptean and Customer, Aptean owns all Intellectual Property Rights in or to the Software and Documentation and any derivative works of or improvements to the Software or Documentation. Customer acknowledges that the Software (including its structure, organization and code), the Documentation and Aptean’s Confidential Information, and all technical data and information associated therewith constitute trade secrets and are the valuable property of Aptean and its licensors and that the Software and Documentation are protected, without limitation, by copyright and trademark rights. Customer shall not: (i) use, copy, modify, translate, merge or create derivative works of the Software, Documentation or training materialsexcept as expressly provided in this Agreement; (ii) disable or circumvent any licensing control feature in the Software; (iii) reverse-engineer, disassemble, or decompile the Software or otherwise attempt to access or determine its underlying source code, underlying ideas, underlying user interface techniques or algorithms, or permit any such actions; (iv) sell, distribute, lend, sublicense, rent or lease all or any portion of the Software; (v) use the Software on a service bureau or time-share basis or as an application service provider; (vi) host, virtualize or otherwise provide access to or enable use of the Software by any individual(s) not permitted to use the Software pursuant to this Agreement; (vii) disclose the results of any benchmarking of the Software (whether or not obtained with Aptean’s assistance) to third parties; (viii) use the Software to develop or enhance any product that competes, directly or indirectly, in Aptean’s determination, with the Software;(ix) remove the copyright, trademark, orany other proprietary rights or notices included within the Software or on and in the Documentation and training materials; (x) use the Software in any way that would infringe any intellectual property right of third parties; or (xi) use the Software in a manner that would violate any law applicable to Customer or Aptean.

Section 3. Delivery Of Software; Provision of Support Program.

3.1 Software Delivery. Aptean has made or will make the Software and Documentation available for download electronically (“Delivery”) on or before the Delivery Date (as defined below) as specified in the applicable Order, or as otherwise agreed to by the Parties and confirmed in writing. For purposes of this Agreement, the “Delivery Date” for the Software shall be the date on which Aptean notifies Customer that a license key is available for the Software that is the subject of the applicable Order. The Software will be deemed accepted by Customer immediately upon such Delivery.

3.2 Support Program. If the applicable Order specified that Customer will subscribe to the Support Program, then Aptean will provide Customer with the support services specified in the Support Program Description.

3.3 Remote Installation Support. If so specified in the applicable Order, Aptean will provide Customer with remote Software installation support services.

Section 4. Fees.

The provisions of Section 4.1 through Section 4.3 do not apply to Customers to the extent they have acquired their Software license rights or Support Program subscription rights from an Aptean authorized reseller.

4.1 Payment of Fees. Customer shall pay Aptean the fees for the License to the Software and subscription to the Support Program (collectively, “Fees”) as specified in the applicable Order. Unless specified otherwise in the applicable Order, Customer shall make all payments within thirty (30) days of receipt of Aptean’s invoice. All such payments are non-refundable. Aptean may impose a finance charge of 1.5% per month on amounts unpaid by Customer on their due date.

4.2 Sales Taxes, Etc. Customer shall be responsible for any applicable sales, use, or any value added or similar taxes (“Sales Taxes”) payable with respect to the licensing of the Software to Customer, provision of Support Program, or otherwise arising out of or in connection with this Agreement, other than taxes based upon Aptean’s personal property ownership or net income. Unless expressly specified otherwise in any Order, all Fees, rates and estimates exclude Sales Taxes. If Customer has tax-exempt status, Customer shall provide written evidence of such status with its purchase orders.

4.3 Withholding. If Customer is required to withhold taxes imposed upon Aptean for any payment under this Agreement by virtue of the statutes, laws, codes or governmental regulations of a country in which any Software or Support Program are delivered, then such payments will be made by Customer on behalf of Aptean by deducting them from the payment then due Aptean and remitting such taxes to the proper authorities on a timely basis, and the payments provided for under this Agreement will be adjusted upwards appropriately so that Aptean actually receives the full amount of the Fees set forth in the applicable Order, provided that Customer supplies Aptean with official documentation and/or tax receipts on such withholdings supporting such taxes and such payments as may be required by Aptean for its tax records on or before the date on which such payment is due Aptean under this Agreement.

4.4 Verification. Upon request by Aptean, Customer shall provide Aptean with a report generated by the Software indicating the number of computers on which Customer has installed the Software. Unless there is a material discrepancy showing that Customer has installed the Software on a greater number of computers than the number to which Customer is entitled under its License rights, Aptean may make such requests no more than once during any twelve (12) month period. In the event of any use in excess of the License rights for which Customer has paid, Customer shall promptly pay Aptean Fees for such excess use at the rates specified in the applicable Order. Upon receipt of such Fees, Aptean will extend the License to cover the excess.

Section 5. Unauthorized Use.

Customer shall promptly notify Aptean of any unauthorized use of any Software of which Customer becomes aware. In the event of any unauthorized use by any User, Customer shall use all commercially reasonable efforts to immediately terminate and prevent further occurrences of such unauthorized use. Customer shall indemnify, defend, and hold Aptean, its affiliates, and their respective members, shareholders, partners, owners, officers, directors, employees, licensers, agents and representatives (collectively, “Aptean Related Parties”) harmless from and against any damages sustained by Aptean Related Parties due to any such unauthorized access by a User. If Customer commences any legal proceeding in connection with such unauthorized use, then Aptean may, at Aptean’s option and expense, participate in or control any such proceeding. In such event, Customer and Aptean shall each provide the other with such authority, information and assistance related to such proceeding as may be reasonably necessary to safeguard Aptean’s interests and Customer’s rights under this Agreement.

Section 6. Aptean’s Warranties.

6.1 Warranties. Aptean warrants to Customer that: (i) the Software as delivered by Aptean to Customer under this Agreement will perform in all material respects in accordance with its applicable specifications specified in the Documentation for a period of sixty (60) days following the Delivery; and (ii) Aptean will perform its obligations under the Support Program in a professional and workmanlike manner, consistent with industry standards. The warranties in this Agreement are for the sole benefit of Customer, and may not be extended to any other person or entity.

6.2 Performance Remedy. If any Software fails to conform to the warranty set forth in Section 6.1(i) and Customer provides written notice of the non-conformance to Aptean within the warranty period then, as Customer’s sole and exclusive remedy, Aptean will either repair or, at its option, replace any non-conforming Software with functionally equivalent Software.

6.3 Services Remedy. If Aptean’s performance of any of its obligations under the Support Program fails to conform to the warranty set forth in Section 6.1(ii) above, then Aptean shall correct the non-conformance at no additional charge.


Section 7. Aptean’s Infringement Indemnification.

7.1 Defense and Indemnity. If any third party makes any claim against Customer that the Software, as delivered by Aptean to Customer, infringes any patent or trademark existing under the laws of the United States and Canada, or infringes any copyright, or results from any misappropriation of such third party’s trade secrets by Aptean (collectively, an “Infringement”) then, upon notification of such claim, Aptean shall, at its sole cost and expense, defend Customer against such claim and any related proceeding brought by such third party against Customer. Upon the occurrence of a “Determination Against Aptean” (defined below), Aptean shall indemnify Customer from and against any and all damages, (including taxes, fees, fines, penalties, and interest) (collectively “Damages”) required to be paid by Customer to the third party as a result of the Infringement. Aptean’s obligations under this Section 7.1 are conditioned upon Customer’s compliance with the “Indemnification Conditions” (defined below).

“Determination Against Aptean” means a final determination by the tribunal conducting the proceeding that Aptean or Customer committed an Infringement of the third party’s rights, or the issuance of an interim order by any such tribunal restricting or prohibiting Customer’s use of the Software as a result of an alleged Infringement, or consummation of a settlement between Aptean and the third party in which Aptean agrees to pay compensation to the third party for Customer’s or Aptean’s Infringement of the third party’s rights.

“Indemnification Conditions” means the following obligations of a party entitled to defense and/or indemnification under this Agreement: (i) the indemnified party notifies the indemnifying party in writing of any claim that might be the subject of indemnification promptly after any executive officer of the indemnified party or member of the indemnified party’s legal department first knows of the claim, provided, however, that no failure to so notify an indemnifying party shall relieve the indemnifying party of its obligations under this Agreement except to the extent that such failure materially prejudices defense of the claim, and except to the extent of damages incurred by the indemnifying party as a result of the delay; (ii) the indemnifying party is given primary control over the defense and settlement of the claim (subject to the foregoing, the indemnified party may nonetheless participate in the defense at its sole cost and expense); (iii) the indemnified party makes no admission of liability (except as required by applicable law) nor enters into any settlement without the indemnifying party’s prior written agreement; (iv) the indemnified party provides such assistance in defense of the proceeding as the indemnifying party may reasonably request, at the indemnifying party’s reasonable expense; and (v) the indemnified party complies with any court order or reasonable settlement made in connection with the proceeding.

7.2 Aptean’s Mitigation Rights. If use of the Software is, or in Aptean’s reasonable opinion is likely to become, the subject of a claim of infringement of any Intellectual Property Right of any third party, then Aptean shall have the right to: (i) procure the continuing right for Customer to use the Software; (ii) replace or modify the Software in a functionally equivalent manner so that it no longer infringes; or (iii) if the rights under (i) and (ii) above are not available on terms that are commercially reasonable for Aptean, terminate the applicable License and refund to Customer an amount equal to the depreciated License Fees paid by Customer for such Software (calculated on a straight line basis over a five (5) year life, beginning on the delivery date).

7.3 Exclusions. Notwithstanding the foregoing, Aptean will have no obligation under this Section 7 or otherwise with respect to any infringement or misappropriation claim to the extent based upon (a) any use of the Software not in accordance with this Agreement or the Documentation, (b) any use of the Software in combination with other products, equipment, software, services or data not supplied by Aptean to the extent the infringement would not have occurred but for such combination, (c) Aptean’s compliance with Customer’s unique hardware or software requirements, specifications or instructions, (d) any use of any release of the Software other than the most current release made available to Customer after notice from Aptean that Customer must upgrade to such release to avoid an infringement or misappropriation claim and Customer has had a reasonable time in which to implement such upgrade, or (e) any modification of the Software not made by Aptean or at its express direction.

Section 8. Term and Termination.

8.1 Term – Orders. Each Order shall become effective when accepted in writing and signed by Aptean, and shall continue in effect through the expiration date for the Licenses granted under such Order, unless sooner terminated in accordance with Section 8.2 or Section 8.3.

8.2 Termination for Cause. If either Party materially breaches any of its obligations under this Agreement and fails to cure such breach within thirty (30) days from the date it receives from the non-breaching Party a notice of the breach and a demand for cure, then the non-breaching Party may thereafter terminate all or any affected Orders or Licenses immediately on notice. Without limiting the foregoing, Customer’s failure to pay fees and expenses owed by Customer to Aptean, if any, within fifteen (15) days of receipt of a written notice of late payment shall constitute a material breach of the applicable Order and the License. If Customer has not cured a material breach within the applicable cure period then, until Customer has cured the breach in full, Aptean may, in its sole discretion, and without prejudice to its other rights following material breach and failure to cure, do any or all of the following: (i) suspend performance of some or all of Aptean’s obligations under the applicable Order, including obligations to provide Support Program; and (ii) suspend the Licenses granted pursuant to the applicable Order. Notice of termination for any Order shall not be interpreted to be notice of termination for any other Order.

8.3 Obligations on Termination. Upon any termination or expiration of a License, (i) Customer shall destroy all copies of the Software and the Documentation within its custody or control within twenty (20) days of such termination, and immediately thereafter provide Aptean with a written statement signed by an authorized representative of Customer certifying that all copies of the Software have been destroyed and all use of the Software has been discontinued; and (ii) each Party shall return or destroy all copies of any Confidential Information of the other, as certified by an authorized representative of the returning party.

8.4 Effect of Termination. No expiration or termination of this Agreement or of any Order shall relieve Customer of its obligation to pay any amounts accruing under such Order prior to such expiration or termination.

8.5 Survival. The provisions of Sections 2.3, 4.1-4.4, 5, 8.3-8.5, 9, 10, 11.3-11.4, 11.8, 11.12 and 11.13 of this Agreement, shall survive any termination or expiration of this Agreement.

Section 9. Confidential Information

9.1 Restrictions on Use and Disclosure. Aptean and Customer shall each retain in confidence all information transmitted to it by the other party pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of such Confidential Information except under the terms and during the term of this Agreement. Aptean’s Confidential Information includes information regarding products, pre-release products, software, pricing, marketing and business plans and financial information. Aptean and Customer shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its immediate legal and financial consultants as required in the ordinary course of that party’s business.

9.2 Exclusions. Confidential Information shall not include information that the receiving party can establish: (i) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party hereunder; or (iv) has been independently developed by the receiving party.

9.3 Disclosure Required By Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information (a “Disclosure Order”) then, unless otherwise required by the Disclosure Order, the receiving party shall promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party’s efforts to protect its Confidential Information.

Following such notification, the receiving party shall cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information.

9.4 Independent Development. The terms of confidentiality under this Agreement shall not limit either party’s right to independently develop or acquire products without use of the other party’s Confidential Information.

Section 10. Dispute Resolution

10.1 Governing Law. This Agreement shall be governed by and interpreted in accordance with the internal laws of the State of Georgia, and, where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each case without regard to (a) conflicts of laws principles, and (b) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods.

10.2 Venue and Jurisdiction. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the parties shall submit to the exclusive jurisdiction of and venue in courts located in Atlanta, Georgia. Each party hereby waives all defenses of lack of personal jurisdiction and forum nonconveniens. Process may be served on either party in the manner authorized by applicable law or court rule.

10.3 Legal Expenses. If any proceeding is brought by either party to enforce or interpret any term or provision of this Agreement, the substantially prevailing party in such proceeding shall be entitled to recover, in addition to all other relief arising out of this Agreement, such party’s reasonable attorneys’ and other experts’ (including without limitation accountants) fees and expenses.

Section 11. Miscellaneous Provisions.

11.1 Publicity; References. Provided that Aptean complies with any trademark usage requirements notified to it by Customer, Aptean may refer to Customer as one of Aptean’s customers and use Customer’s logo as part of such reference. With Customer’s prior written approval, not to be unreasonably withheld, Aptean may issue a press release announcing the relationship between Aptean and Customer. Customer agrees to be a reference account for Aptean, provided, however, that Aptean shall provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference calls or site visits.

11.2 Compliance With Laws; Export Control. Aptean and Customer shall comply with all applicable laws and regulations with respect to this Agreement, including U.S. export control laws. Aptean informs Customer that the U.S. export control classification number for the Software is ECCN-5D002. Neither party shall have any liability to the other for any non-performance of their obligations under this Agreement to the extent that the non-performance is mandated by applicable law.

11.3 Limitation on Liability.


(b) Notwithstanding the foregoing, Section 11.3(a) shall not apply to: (i) Aptean’s indemnification obligations under this Agreement; (ii) Customer’s infringement or misappropriation of Aptean’s Intellectual Property Rights, including breach of Section 2(Rights to Use Software) or breach of Section 5 (Unauthorized Use); (iii) a Party’s gross negligence, willful misconduct or fraud; (iv) a Party’s breach of Section 9 (Confidential Information); or (v) Customer’s obligations to pay Fees when due and payable.

11.4 Equitable Relief. Each of Customer and Aptean acknowledges that damages will be an inadequate remedy if the other violates the terms of this Agreement pertaining to protection of a Party’s Intellectual Property Rights or Confidential Information. Accordingly, each of them shall have the right, in addition to any other rights each of them may have, to obtain in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of such obligations in this Agreement.

11.5 Force Majeure. If the performance of this Agreement is adversely restricted or if either party is unable to conform to any warranty by reason of any circumstances beyond the reasonable control and without the fault or negligence of the party affected, then, except with respect to obligations to pay Fees, the party affected, upon giving prompt written notice to the other party, shall be excused from such performance on a day-to-day basis to the extent of such restriction (and the other party shall likewise be excused from performance of its obligations on a day-to-day basis to the extent such party’s obligations relate to the performance so restricted); provided, however, that the party so affected shall use all commercially reasonable efforts to avoid or remove such causes of non-performance and both parties shall proceed whenever such causes are removed or cease.

11.6 Captions and Headings. The captions and headings are inserted in this Agreement for convenience only, and shall not be deemed to limit or describe the scope or intent of any provision of this Agreement.

11.7 Severability; Invalidity. If any provision of this Agreement is held to be invalid, such invalidity shall not render invalid the remainder of this Agreement or the remainder of which such invalid provision is a part. If any provision of this Agreement is so broad as to be held unenforceable, such provision shall be interpreted to be only so broad as is enforceable.

11.8 Waiver. No waiver of or with respect to any provision of this Agreement, nor consent by a party to the breach of or departure from any provision of this Agreement, shall in any event be binding on or effective against such party unless it be in writing and signed by such party, and then such waiver shall be effective only in the specific instance and for the purpose for which given.

11.9 Third Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor shall be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party; provided, however, that Aptean’s suppliers of products and services delivered hereunder shall enjoy the same disclaimers of warranty, limitations on liability and similar exculpatory provisions with respect to such products and services as does Aptean.

11.10 Assignment. Customer may not assign or transfer (including by operation of law or a Change of Control) this Agreement, Customer’s interest herein or the license granted to Customer herein without Aptean’s prior written consent and payment to Aptean of a transfer fee based on Aptean’s then-current prevailing rates. For purposes of this Agreement, “Change of Control” means (i) a sale of all or substantially all of an entity’s assets, (ii) a merger, or (iii) a reorganization, consolidation, a sale of an entity’s equity or other transaction in which more than 50% of such entity’s voting securities, capital stock or other ownership interests are transferred. Subject to the foregoing restriction on assignment by Customer, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.Any assignment in violation hereof shall be null and void.

11.11 U.S. Government Rights In The Software. The Software is “Commercial Computer Software” for purposes of acquisition by or on behalf of the U.S. Government. If Customer is acquiring this Commercial Computer Software on behalf of the U.S. Government, the following provisions apply: (i) if this Commercial Computer Software is supplied to the Department of Defense (“DOD”) or any DOD agency or service,DOD’s rights regarding use, reproduction and disclosure are set forth in DOD FAR Supplement (DFARS 227.7202); and (ii) if this Commercial Computer Software is supplied to any other unit or agency of the U.S. Government, these Government rights are set forth in Federal Acquisition Regulation (“FAR”) 52.227-19. Use, duplication or disclosure by the Government is subject to the restrictions set forth in such sections. Manufacturer is Aptean Systems, LLC at 4325 Alexander Drive, Suite 100, Alpharetta, GA 30022-3740.

11.12 Notices. Any notice or other communication under this Agreement given by either party to the other party shall be deemed to be properly given if given in writing and delivered by (i) US Mail, certified or registered, return receipt requested, or (ii) nationally recognized air express courier (e.g., Federal Express), properly addressed and prepaid, to the recipient. Notice periods shall begin on the day following delivery. Either party may from time to time change its address by giving the other party notice of the change in accordance with this Section 11.12. Notice to Aptean shall be provided according to this Section 11.12 at the following address: Aptean Systems, LLC at 4325 Alexander Drive, Suite 100, Alpharetta, GA 30022-3740, Attention: General Counsel.

11.13 Entire Agreement; Amendments; Conflicts. This Agreement constitutes and embodies the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto.This Agreement may not be modified or amended except by a written instrument executed by both parties.All Software and Support Program subscriptions licensed or purchased, as applicable, by Customer under this Agreement shall be subject to the terms and conditions of this Agreement. With the exception of order quantities and Fees, any terms or conditions appearing on the face or reverse side of, or otherwise referenced in, any purchase order, acknowledgement, or confirmation provided by Customer, in each case other than those specified in this Agreement shall not be binding on the Parties, even if signed and returned, unless both Parties agree in a separate writing to be bound by such different or additional terms and conditions. In the event of any conflict between the terms of this Agreement and any Order, or any exhibit, the following order of precedence shall apply: (a) the Agreement, (b) the applicable Order, and (c) the exhibits.

Version Dated: January 12, 2015