This Master Service Agreement (“MSA”) shall constitute a binding contractual agreement between Developscripts, LLC d/b/a Auction Software (“Developscripts, LLC”) located at 1221 West Campbell Road, Suite 181, Richardson, Texas 75080, and  (“Customer”) . The MSA shall include the Terms of Service (“TOS”), Acceptable Use Policy (“AUP”), Service Level Agreement (“SLA”), Service Order Agreement (“SOA”), Change Order (“CO”), License Agreement (“License”) and Privacy Agreement (“PA”). Customer hereby agrees to be bound by all terms and conditions in this MSA. 

WHEREAS, Developscripts owns all right, title and interest in and to software programs, online platforms and solutions known generally as Auction Software for the purpose of providing highly customizable forward auctions, reverse auctions, penny auctions, and silent auctions via software development in various industries (the “Software”); 

WHEREAS, Customer desires to obtain a license, software development services and support services for the Software from Developscripts in accordance with the terms and conditions of this MSA;  

NOW, THEREFORE, in consideration of the premises, and of the mutual covenants contained herein, Developscripts and Customer hereby agree as follows: 

Terms of Service (TOS) 

A.  Definitions 

1. “Affiliate(s)” means Customer and any person, firm, corporation (including, without limitation, service corporation and professional corporation), partnership (including, without limitation, general partnership, limited partnership and limited liability partnership), limited liability company, joint venture, association, business trust or other similar entity that:  (i) now or in the future, directly or indirectly, controls, is controlled with or by or under common control with Customer; (ii) is acquired, managed, operated, governed or supervised by Customer, whether by membership, stock ownership, joint operating agreement or other substantial relationship; or (iii) is designated as an Affiliate of Customer.  For purposes of the foregoing, “control” shall mean, with respect to: a corporation, the ownership, directly or indirectly, of fifty percent (50%) or more of the voting power to elect directors thereof, or, for the purposes of foreign corporations, if less than fifty percent (50%), the amount allowed by applicable law; and any other entity, the power to direct the management of such entity. 

2. “Authorized User(s)” means:  (i) Customer, Affiliates and their collective employees, authorized agents, and other personnel and agents on staff or otherwise associated with Customer and Affiliates; (ii) third party agents, consultants, auditors and other independent contractors performing services for Customer and Affiliates; (iii) any governmental, accrediting or regulatory bodies lawfully requesting or requiring access to data; (iv) a facility manager; and (v) such other parties as the parties may mutually agree. 

3. “Certified Administrator” means an “authorized user” that has been certified by Developscripts to administrate the current version of the Software in use by Customer. 

4. “Defect” means any failure of the Software to operate in accordance with the specifications or Documentation. 

5. “Documentation” means, collectively:  (i) all of the written, printed, electronic or other format materials published or otherwise made available by Developscripts to its licensees that relate to the functional, operational and/or performance capabilities of the Software, Software interfaces and/or Equipment; (ii) all user, operator, system administration, technical, support and other manuals and all other written, printed, electronic or other format materials published or otherwise made available by Developscripts to its licensees that describe the functional, operational and/or performance capabilities of the Software, Software interfaces and/or Equipment.  Documentation shall not include source code for the Software. 

6. “Enhancements” means a modification made by the Developscripts to the release of the Software licensed to the Customer under this MSA that: (i) is not designated by the Developscripts as a new release and (ii) enables the Software to perform new or different functions, or increases the capacity or capability of the Software or enables the Software to function on new or different hardware or in a new or different software environment without changing its basic design, structure or functionality.  Enhancements shall not include any new releases, options or future products that the Developscripts licenses separately.  Enhancements shall include regulatory requirements modifications and any replatformed software, whether on different operating systems or equipment; provided, however, that Enhancements shall not include new or separate product offerings. 

7. “Customer” means the entity defined in the introductory paragraph of this MSA and its successors and permitted assigns. 

8. “Software” means the software defined in the above recitals and any other software that is supplied by Developscripts to Customer under this MSA, such as Software interfaces, Developscripts software, third party software, embedded third party software, and Enhancements or Updates thereto. 

9. “Update” shall mean a change made by Developscripts to the release of the Software licensed to the Customer under this MSA that: (i) is an internal change designed to correct bugs; or (ii) otherwise provides minor improvements to performance without changing the Software’s basic design, structure or functionality. 

B.  Term  

The term of this MSA (“Term”) shall begin on the Effective Date and shall continue for two (2) years unless otherwise terminated in accordance with this MSA; provided, however, the Term shall renew automatically in annual increments unless either party provides written notice to the other party at least sixty (60) days prior to the end of the current Term. 

C.  Services 

Developscripts will provide the services listed in the Service Order Agreement (SOA) or any Change Order (CO) for the specific plan selected and subscribed to by the Customer, subject to the License granted herein. All provisions of this MSA are hereby incorporated by reference in any executed SOA and/or CO. To the extent any provisions of the SOA and/or CO conflict with the provisions of this MSA, the terms and conditions of this MSA shall control. 

D.  License 

1. License Grant.  Commencing on the Effective Date and continuing for the Term of the MSA, Developscripts grants to Customer a personal, non-exclusive, non-sublicensable and non-transferable license to use the Software and Documentation internally and with Customer’s clients in accordance with the terms and conditions of this MSA.  Once the Term has ended, Developscripts grants to Customer a fifteen (15) day personal, non-exclusive, non-sublicensable and non-transferable license to use the Software and Documentation internally in accordance with the terms and conditions of this MSA for the limited purpose of access to Customer’s data in read-only format (write will be disabled). 

2. License Scope.  Customer acknowledges and agrees that the scope of the license granted herein is limited to Developscripts’ intellectual property rights embodied in the Software and Documentation provided by Developscripts to Customer.  Except as expressly provided herein, no other license, express or implied, by estoppel or otherwise, to any other intellectual property rights is granted herein. 

3. License Restrictions.  Customer acknowledges and agrees that the following restrictions are an ongoing condition to the license granted to Customer under this MSA and violation of these restrictions is a material breach of this MSA: 

1. Customer shall not allow any person other than an Authorized User to access the Software or Documentation. 

2. Customer shall use the Software only as specifically permitted by this MSA and in accordance with the requirements of applicable federal, state and local law. 

3. Except as expressly provided in this MSA, Customer shall not sublicense or in any manner rent, loan, transfer, provide, disclose, copy, publish, display or make available the Software, Documentation or any other component of the Software to any third party. 

4. Customer shall not itself or permit its agents, employees or any third party to, modify, enhance or otherwise alter the Software without Developscripts’ express prior consent and under Developscripts’ direct supervision. 

5. Customer agrees not to alter, obscure or remove any copyright notices and other proprietary notices, regardless of form, contained in or affixed on the Software.  Customer further agrees to use the Developscripts logo, Developscripts information, and/or related services in accordance with Developscripts’ approved marketing guidelines. 

6. Customer shall use commercially reasonable efforts to avoid any action which could be detrimental to the goodwill and reputation of Developscripts and the Software in connection with its use of the Software under this MSA. 

7. Customer will use the Software only for its intended purpose. 

4. Required Hardware.  Customer and/or Authorized Users shall be responsible for acquiring and installing any computer hardware, mobile devices and operating systems necessary to use the Software, such as the specifications that may be set forth on an applicable SOA. 

E.  Excluded Services 

Developscripts only supports Customers directly, not Customers’ clients, subsidiaries, or affiliates, unless otherwise stated in the SOA and/or CO. Developscripts will not support software applications not provisioned and deployed by Developscripts, unless otherwise stated in the SOA and/or CO.  Custom or third-party software installation not contracted or wrapped by Developscripts, software maintenance and troubleshooting on software not provisioned by Developscripts, new releases and upgrades to Software not paid for by Customer as part of an SOA and/or CO, and custom scripts not supplied by Developscripts are not included in the services to be provided by Developscripts under any SOA and/or CO.   

F.  Support Services 

Except as may be set forth specifically in the SLA, technical support shall be provided as follows: 

1. Basic Support.  Developscripts shall provide the following “Basic Support Services” to Customer for the Term of this MSA: 

1. Telephone support during normal business hours Monday – Friday 8:00am US Central Time to 5:00pm US Central Time exclusive of Holidays at (972) 200-5516. 

2. Email support during normal business hours Monday – Friday 8:00am US Central Time to 5:00pm US Central Time exclusive of Holidays at support@auctionsoftware.com. 

3. Updates or patches to the Software on an as-needed basis without charge. 

4. Corrective maintenance to the Software. 

2. Additional Support.  Developscripts will provide the following “Additional Support Services” to Customer for the Term of this MSA if paid for by Customer at pricing set forth in the SLA: 

1. “Optional Desktop Support” outside of normal business hours Monday – Friday 5:00pm US Central Time to 8:00am US Central Time, Weekends, Holidays, and Total Coverage 24/7. 

2. “Optional VPDC or Server Support” outside of normal business hours Monday – Friday 5:00pm US Central Time to 8:00am US Central Time, Weekends, Holidays, and Total Coverage 24/7. 

3. “Urgent Request Resolution” includes, without limitation, responses within one (1) business hour, outside of normal business hours, on Weekends, or on Holidays, and may incur fees as set forth in the SLA but in no event less than $100/hour. 

4. Reasonably assist Customer in the task of loading the Software on the equipment provided by Customer as specified in the SOA. 

5. Reasonably make available to Customer, at Developscripts’ sole discretion, “Out of Scope Services” at Customer’s request including, but not limited to, customer specific applications at pricing as set forth in the SLA but in no event less than $60/hour, and On-Site Service for Customer devices and applications within a Customer’s own site location at pricing as set forth in the SLA but in no event less than a $75 trip charge plus $60/hour for time spent on-site.  Pricing quotes for Out of Scope Services will be provided by Developscripts in the CO or, if not listed in the CO, upon request. 

3. Performance.  With respect to the Additional Support Services and Out of Scope Services, Developscripts shall: 

1. perform such services in a professional, competent and businesslike manner and in accordance with industry practices and standards generally applicable to such services; 

2. have the right, with Customer’s input, to determine the method, details, and means of performing such services; 

3. provide such services in accordance with a mutually agreed upon implementation work plan; 

4. perform such services primarily at Developscripts’ premises except when such services require Developscripts to travel to the Customer’s site; and 

5. respond to support requests on a first-come, first-serve basis but with special consideration for criticality of issue and will make every effort to respond within 24 hours within the scope of normal business operating days. 

4. Certified Administrator.  Customer acknowledges and agrees to have at least one employee or third-party contractor that has been deemed a Certified Administrator by Developscripts on their current version of the Software.  The Certified Administrator must have completed training and/or certification classes with Developscripts’ certified instructors on the administration of the Software.  Customer also acknowledges and agrees that in order to obtain whole version product upgrades, their Certified Administrator(s) may be required to attend training and/or certification classes that explain how to upgrade and administrate the new version of the product.  These classes are offered as Out of Scope Services. 

5. Directory Maintenance.  Customer is responsible for maintaining a directory of User IDs for all Authorized Users and associating each User ID with one or more roles. Customer is responsible for ensuring that its Authorized Users use only their respective assigned User IDs and do not use another’s User ID. Customer will adopt and maintain such security precautions for User IDs and passwords to prevent their disclosure to, and use by, unauthorized persons. 

6. Disclosures.  Through the Super Administrator, Customer will implement a process to ensure that data aggregated by Developscripts for analysis is disclosed only to authorized representatives of Customer.  The Super Administrator may approve disclosures of personally identifiable information to a third party application provider only if specifically authorized by Customer or if the third party application provider is an authorized representative for evaluating and ensuring compliance with federal, state and local laws, Customer has entered a written or electronic agreement with such third party application provider to obtain services from such provider, the disclosures are needed to provide such services, and such agreement provides that the personally identifiable information will be used only for that purpose and that the personally identifiable information will be destroyed when the service is terminated or when the Customer data is no longer needed for that purpose. 

7. Scheduled Maintenance.  Developscripts reserves the right to take down applicable servers hosting the Software to make improvements or changes or to conduct routine maintenance checks (“Scheduled Maintenance”). Developscripts will use commercially reasonable efforts to give at least eight (8) hours’ notice prior to any Scheduled Maintenance and to perform Scheduled Maintenance Monday through Friday from 7pm to 5am US Central Time or weekend hours. Developscripts will not be responsible for any damages or costs incurred by Customer, if any, for Scheduled Maintenance. 

G. Payment Terms 

1. License/Subscription Fees.  Customer shall pay Developscripts the “License/Subscription Fees” specified in the SLA.  Failure to timely pay the License/Subscription Fees is a material breach of this MSA. 

2. Annual Support Fees.  Developscripts will not charge Customer a fee for any of the Support Services specified in the SLA. 

3. Other Service Fees.  Customer shall pay Developscripts all fees for Out of Scope Services, including but not limited to Hosting, Custom Extension Features, Extended Support, Implementation Services, and On-Site Service, as billed and incurred based on rates set forth in the SOA, SLA or Change Order, as may be modified by Developscripts in its sole discretion from time to time.  Any invoice relating to Out of Scope Services shall detail:  (i) the Services performed (e.g., each activity, task and/or critical path milestone); (ii) the identity of the Developscripts personnel performing the Out of Scope Services, if applicable; and (iii) the number of hours and corresponding fees attributable to each such person’s performance of the Out of Scope Services, if applicable. 

4. Hourly Service Fees.  For any services offered by Developscripts on an hourly basis (“Hourly Services”), Customer shall specify the period of time for which the Hourly Services are requested, or cancel at any time. The minimum period of time for which Hourly Services may be requested is one (1) hour and Customer will be billed in full hourly increments, such that no breakdown by minutes shall be permitted unless specifically authorized by Developscripts at the sole discretion of Developscripts.   

5. Additional Service Fees and Upgrade Fees.  Additional services and upgrades, not including Hourly Services, ordered on first (1^st) day of a new billing cycle will appear as full charges on the monthly invoice for that month, which will be billed on the first (1^st) day of the subsequent month, and will continue each month thereafter on the normal billing cycle. Additional services and upgrades ordered after the first (1^st) day of the month will be pro-rated to the end of the month and billed as a one-time pro-rata charge. 

6. One Time Fees. One time fees such as setup fees, administrative fees and late fees are due and payable at the time they are incurred, and/or agreed upon in writing or via ticket with Developscripts’ approval.  One time fees such as bandwidth overages and storage layer overages are due and payable as part of the invoice following the billing cycle in which they are incurred, and are based on standard rates, or as otherwise agreed upon in writing or via ticket with Developscripts’ approval. 

7. Time and Method of Payment.  All fees payable to Developscripts under this MSA shall be detailed, categorized and clearly stated on an invoice in accordance with the terms and conditions set forth in this Section.  Unless otherwise agreed by the parties, all amounts payable under this MSA shall be payable in U.S. Dollars.  All payments to Developscripts are non-refundable. Developscripts shall invoice Customer as set forth in this Section, and Customer shall pay all net undisputed amounts due to Developscripts under this MSA by the due date. 

8. Late Payments.  Developscripts reserves the right to charge interest at the maximum rate allowed by law on all amounts past due, and to assert appropriate liens to ensure payment. The rights and remedies set forth herein are in addition to any other rights or remedies, at law or in equity, Developscripts may have against Customer in connection with any non-payment.  Customer agrees to pay Developscripts one-and-one-half percent (1½%) per month for all invoices over 30 days old.  Access to Software and services will be suspended and/or put on hold if the Customer fails to pay by the due date, and will remain suspended until invoices become current subject to the terms included herein. It is the Customer’s responsibility to make sure that Developscripts receives payment by the payment due date and Customer’s failure to make timely payment constitutes a material breach of this MSA. Returned checks or rejected credit cards will cause an immediate disruption to your service.  Basic Support Services and Additional Support Services will be suspended in the event that any invoices are not paid by the due date, and will remain suspended until invoices become current subject to the terms included herein.  Services will be re-activated only after the Customer cures any and all such payment breaches. 

9. Renewal.  In the event the parties wish to renew this MSA, the parties acknowledge and agree that a new SOA and/or SLA must be entered into. 

10. Invoicing.  Developscripts will invoice Customer on the first (1^st) of the month for usage during the previous month. Fees for Software and service(s) ordered by the Customer shall begin accruing on the date of the initial order and will be charged pro-rata to the end of the billing cycle. Future charges will be billed as full monthly fees. On-Site Service charges will be invoiced separately for each support trip and shall be due and payable immediately upon receipt by Customer. 

11. Disputed Amounts.  For disputed invoices or the disputed portion of an invoice, Customer shall provide to Developscripts, in writing, within five (5) business days of receiving the subject invoice, a detailed statement of exceptions of the disputed amounts.  In any event, Customer shall nevertheless be responsible for the timely payment of any disputed invoice.  Customer and Developscripts shall attempt to resolve any invoice disputes in a timely, good faith manner.  If Developscripts agrees with Customer’s basis for disputing an invoice, then Developscripts shall refund any amounts already paid by Customer with regard to such invoice.  Provided the timely payment of any disputed amounts and all other invoices have been paid, all of Developscripts’ obligations shall continue unabated during the duration of the dispute resolution.   

12. Service Credits. SLA credits, if any, will be issued to your Customer account and shall be used to offset future billable services. SLA credits shall not be issued as cash back to the Customer nor shall the service credits be transferable to other account holders. SLA credits shall expire without value if Customer’s account is terminated for any reason. 

13. Additional Products.  Developscripts agrees to offer for licensing to Customer, upon development, any additional products or software brought to market by Developscripts during the term of this MSA. The parties agree to negotiate pricing for such additional products or software in good faith.  

14. Taxes and Other Charges.  All Developscripts fees are exclusive of any applicable sales, use, value-added, other federal, state or local taxes, or any import duties or tariffs imposed on the Software, services and/or transactions made the subject of this MSA, and Customer shall be responsible for paying all foreign, federal, state, and local sales, use, value added, excise duty and any other taxes assessed with respect to any Software and/or services, except that Developscripts shall be responsible for any corporate franchise taxes imposed on Developscripts by law and for any taxes based on its net income or gross receipts.  

H.  Billing Policy 

Developscripts shall provide invoices and any quotes, proposals, estimates, sales orders, and other billing-related documentation, as the case may be, to Customer by any of the following methods, each of which Customer acknowledges and agrees is independently sufficient for purposes of notice regarding the receipt of each such invoice or other subject document:   

1. By regular mail to the address of Customer (to the attention of Accounts Payable or the Customer Contact) set forth in the introductory blanks of this MSA or, if no such address has been provided, to an address provided by Customer in any SOA, SLA, CO, or License; or 

2. By electronic mail (“Email”) to the Email address set forth in the introductory blanks of this MSA or, if no such address has been provided, to __________________,_____ (Initial Here) or to an Email address provided by Customer in any SOA, SLA, CO, or License.    

Customer acknowledges and agrees that Customer is responsible for maintaining accurate and current address and/or Email address information with Developscripts pursuant to the notice provision, Section X.5 below, with the name and Email address of the user to be removed or added, as the case may be.  Developscripts will include itemization of each invoice or other subject document it generates as Developscripts deems appropriate in its’ sole discretion including, but not limited to, Customer’s name and address, an itemized list of charges and/or services rendered, the amount due and owing, and Customer’s identifying account information.   

I. Intellectual Property.  

1. Title.  Title to the Software and Documentation, including all copies thereof, shall be in and remain with Developscripts or its third-party licensors. The parties agree that all inventions, product improvements, and modifications to the Software and Documentation conceived of or made by Developscripts that are based, either in whole or in part, on Customer’s feedback, suggestions, or recommended improvements, are the exclusive property of Developscripts, and all rights, title and interest in and to any such invention, product improvement, or modification to the Software and Documentation will vest solely in Developscripts.   

2. Prohibition on Reverse Engineering.  Customer agrees that it will not (nor shall it permit anyone else to) “unlock”, decompile, reverse engineer, disassemble, or otherwise translate the binary or object code versions of the Software to human-perceivable form nor permit any person or entity under its control to do so. 

3. Reservation of Rights.  Developscripts claims and reserves all rights and benefits afforded under federal and international copyright laws.  Any right not expressly granted to Customer by this MSA is hereby expressly reserved by Developscripts.  Other than the License granted herein, nothing in this MSA shall be deemed to authorize Customer to use any copyright, name, trademark, service mark, or patent or other intellectual property right of Developscripts. 

4. Customer Data.  Title to Customer data and output data from the Software pursuant to Customer’s use of the Software, including all copies thereof, shall be in and remain with Customer.  Commencing on the Effective Date and continuing for the Term of the MSA, Customer grants to Developscripts a personal, non-exclusive, non-sublicensable, irrevocable and non-transferable license to use all materials and information provided by Customer, Customer data and output data internally in accordance with the terms and conditions of this MSA. 

5. Hardware.  Developscripts is and shall at all times remain the exclusive owner of all hardware upon which, and from which, all Developscripts services are provided hereunder, unless otherwise stated in the SOA. All hardware purchased by Customer not provided by Developscripts is and shall at all times remain the exclusive property of Customer. 

J. Records and Audit Rights 

1. Records.  Customer shall keep full, complete, clear and accurate records with respect to Customer’s use of the Software and Documentation. 

2. Audit Rights.  On Developscripts’ request, not more frequently than annually, an officer of Customer shall certify to Developscripts that the Software and Documentation are being used in accordance with this MSA.  In lieu of such certification, at Developscripts’ request (no more than once each calendar year) and within thirty (30) days after receiving written notice, Customer shall permit a Developscripts representative or an independent auditor mutually agreed to by Developscripts and Customer to have access during Customer’s regular business hours, to all equipment, records, and documents of Customer that may reasonably contain information bearing upon Customer’s use of the Software and Documentation under the terms of this MSA.  Developscripts’ audit rights shall survive any termination or expiration of this MSA. 

3. Data.  To the extent Developscripts may be maintaining output data for Customer, Developscripts shall keep such data so long as Customer pays all License/Subscription Fees and materially complies with all other terms and conditions of this MSA.  Developscripts agrees to use best efforts and commercially reasonable best practices when deploying services related to data integrity, backup, security, and retention. These services include, but are not limited to, hard drive storage, raid hard drive arrays, network attached storage, storage area networks, operating system installs, operating system reloads, customer portal information, and other situations involving customer data. Customer assumes ultimate responsibility for data content, integrity, retention, security, backup, and ownership. In the event that Developscripts handles Customer data (i.e., when replacing hard drives), Developscripts will act in accordance with PCI guidelines to ensure data is securely handled. Upon the end of the Term, the occurrence of an Event of Default, or termination of this MSA for any reason other than nonpayment, Developscripts will provide to Customer within sixty (60) days of such date a backup/copy/export of output data according to a schedule and procedure as Developscripts and Customer may reasonably agree. Upon completion of such data transfer, all such data shall be deleted/purged by Developscripts.  Notwithstanding any other provision of this MSA, if Customer fails to pay any Developscripts invoice in full by the due date or cancels their contractual relationship with Developscripts and does not pay all amounts then and subsequently due and owing, Developscripts may, in its sole discretion, remove and/or delete all or any part of the Customer’s data retained on servers owned by Developscripts after sixty (60) days written notice to Customer, unless payment is received within 60 days therefrom.  Customer acknowledges and agrees that Customer is solely responsible for compliance with all federal, state and local laws related to the retention of any and all data arising from, related to, or connected with the use of the Software. 

K.  Warranties 

1. General.  Each party represents and warrants that: 

1. It is an entity duly created and validly existing under the laws of the jurisdiction of its creation; 

2. It has full power and authority to carry on its business as now being conducted; 

3. It has full power and authority to enter into this MSA and to consummate the transactions contemplated hereby and thereby; 

4. This MSA has been duly executed and delivered by, and constitutes legal, valid and binding obligations of the party, enforceable against the party in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, preference and other laws relating to or affecting enforcement of creditors’ rights generally; and 

5. No dissolution, winding-up, bankruptcy, liquidation or similar proceedings have been commenced, threatened, or are pending in respect of the party. 

2. Warranties by Developscripts.  Developscripts represents and warrants that: 

1. Developscripts either owns all right, title and interest to the Software and Documentation, or has the right to license the Software and Documentation; 

2. the Software is be free and clear of all liens, claims, encumbrances and demands of third parties; 

3. Developscripts is unaware of any allegations that the Software or Documentation infringe the intellectual property rights of any third party; and 

4. the Software substantially conforms to the specifications set forth in its published documentation for a period of thirty (30) days after the Effective Date or for so long as Customer pays the License/Subscription Fees (the “Warranty Period”). 

3. Warranties by Customer.  Customer represents and warrants that: 

1. Customer is responsible for obtaining all authorizations, consents, releases, and permissions necessary or desirable to store data in the Software platform and its database, to use the Software platform to convert and store Customer data and to view the Software platform’s analytics; 

2. All materials and information delivered to Developscripts by Customer, and Developscripts’ use thereof in connection with transactions contemplated under this MSA, does not and shall not infringe any copyright, trademark, trade secret, patent or other intellectual property right of any third party; 

3. Customer has the right to use, disclose, publish, translate, reproduce, and deliver all materials and information to Developscripts, both directly and through the Software;   

4. Customer shall be responsible for acquiring at its own expense all equipment needed for use of the Software, unless otherwise agreed by the parties. Developscripts shall not be liable or responsible for any loss or delay of Customer data, output, or any other information that pertains to Customer or the functionality of the Software during any period of transit or electronic transmission to the Software platform unless and to the extent attributable to the gross negligence or willful misconduct of Developscripts; 

5. Customer shall purchase and maintain any and all Microsoft licenses necessary to utilize the Software platform;;  

6. Customer shall at all times comply with all applicable US federal, state and local law, and all applicable laws of other countries where Customer operates, uses the internet to communicate, or uses the Software including, but not limited to, all laws related to the retention of data; 

7. Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and Customer is not listed on any U.S. Government list of prohibited or restricted parties; and 

8. Customer may not participate in or support any illegal activities through the use of Developscripts’ Software or services. 

4. Pass Through Warranties and Indemnities; Registration.  Any Equipment purchased by Customer from Developscripts shall be certified as new equipment and shall include the manufacturer’s standard end-user warranty for new equipment.  With respect to any third-party software or equipment furnished by Developscripts to Customer, Developscripts shall secure from the applicable manufacturer(s) such warranties and indemnities as may be available with respect to such third-party software or equipment and shall assign and pass through to Customer all equipment and applicable third-party software manufacturers’ end-user warranties and indemnities to the extent legally assignable.  In the event such warranties and indemnities are not assignable to Customer, if necessary, Developscripts shall enforce such warranties and indemnities on Customer’s behalf.  In addition to the above, Developscripts shall, at Customer’s request, register Customer with any and all third party vendors such that Customer is acknowledged as a support obligation and Customer can receive and obtain notices directly from the third-party vendors.  Developscripts will produce evidence of such registration within thirty (30) calendar days from the date Customer requests that Developscripts obtain such registration. 

5. Disclaimers.  Developscripts does not warrant that the Software and Documentation will meet Customer’s requirements, or the operation of the Software shall be uninterrupted or error-free.  Developscripts’ exclusive liability and Customer’s exclusive remedy for any breach of the warranty pursuant to this section shall be correction of the errors or deficiencies that cause the breach of the warranty during the Warranty Period.  This warranty shall apply only if Developscripts’ examination discloses to Developscripts’ satisfaction that alleged defects actually exist and were not caused by misuse, unauthorized modifications, neglect, improper installation or testing, attempts to repair, or the like, or by accident, fire, power surge or failure, or other hazard. 

6. No Other Warranties.  DEVELOPSCRIPTS’ SOFTWARE, SERVICES, AND INTELLECTUAL PROPERTY IS PROVIDED “AS IS”, AND DEVELOPSCRIPTS MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE CONFIDENTIAL INFORMATION, SOFTWARE, SERVICES, AND INTELLECTUAL PROPERTY, OR ANY PORTION THEREOF, UNLESS SPECIFICALLY SET FORTH IN THIS MSA.  THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 

L.  Limitation of Liability 

1. IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, REGARDLESS OF HOW ARISING, REGARDLESS OF THE CAUSE OF ACTION, IN TORT, CONTRACT OR OTHERWISE, AND REGARDLESS OF WHETHER ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES.  THESE EXCLUDED DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, COST OF REMOVAL OR REINSTALLATION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OUTSIDE COMPUTER TIME, LABOR COSTS, LOSS OF DATA, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF USE, OR INTERRUPTION OF BUSINESS, OR OTHER ECONOMIC LOSS. 

2. DEVELOPSCRIPTS’ AGGREGATE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS MSA, FOR ANY CLAIM, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY) OR IN TORT (INCLUDING NEGLIGENCE) SHALL BE LIMITED TO 100% OF THE AMOUNT PAID BY CUSTOMER UNDER THIS MSA.  THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE OR EXTEND THESE LIMITS. 

M. Indemnification 

1. Customer is responsible for all actions taken or caused to be taken arising from, related to, or connected with Customer’s use of the Software and services.  CUSTOMER AGREES TO INDEMNIFY AND HOLD HARMLESS DEVELOPSCRIPTS, DEVELOPSCRIPTS’ AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, ATTORNEYS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, FINES, PUNITIVE DAMAGES, AMOUNTS IN INTEREST, EXPENSES AND DISBURSEMENTS OF ANY KIND AND NATURE WHATSOEVER (INCLUDING REASONABLE ATTORNEYS’ FEES) UNDER ANY THEORY OF LEGAL LIABILITY ARISING OUT OF OR RELATED TO CUSTOMER’S CONTENT, acts or omissions of Customer, SECURITY BREACHES, ILLEGAL ACTIVITY AND/OR ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF A THIRD PARTY’S COPYRIGHT, TRADE SECRET, PATENT, TRADEMARK, OR OTHER PROPRIETARY RIGHT, OR THE REVERSE ENGINEERING OR UNAUTHORIZED USE OF THE SOFTWARE.  

2. Developscripts shall indemnify and hold Customer harmless from any liability to third parties incurred by Customer for any action based on infringement of a copyright or patent as a result of Customer’s use of the Software if: (i) Customer promptly notifies Developscripts in writing of any such claim or suit, cooperates fully with Developscripts, and permits Developscripts to defend or settle such claim or suit on behalf of Customer; (ii) this MSA remains in effect without interruption from the Effective Date until the date of such claim; (iii) Customer did not use the Software with other software, or otherwise use or alter the Software, except as specifically permitted in the Documentation; (iv) Customer has complied with all of the terms of this MSA; and (v) the alleged infringement was specifically related to the use of the Software and not the product of the Software. 

3. Developscripts shall have control of the defense of any such claim, including appeals from any judgment thereon and any negotiations for the settlement or compromise thereof, with full authority to enter into a binding settlement or compromise. If a third-party’s claim substantially interferes with Customer’s use of the Software and the foregoing indemnity obligation is triggered, Developscripts may, at its sole discretion: (i) replace the Software, without additional charge, with a functionally equivalent and non-infringing product; (ii) modify the Software to avoid the infringement; (iii) obtain a license for the Customer to continue use of the Software and pay any additional fee required for such license; or (iv) terminate the license for the Software. 

4. Developscripts shall have no liability to Customer under this Section with respect to any infringement or claim thereof that is caused by (i) the use of the Software in a manner for which it was neither designed nor contemplated, or (ii) any unauthorized modification of the Software or combination of the Software with any other product that causes the Software thereof to become infringing. 

5. Where Developscripts has provided Customer with modified Software, Enhancements or Updates, Customer is only licensed to use the most current version of the Software that has been provided by Developscripts and must discontinue all use of prior versions, unless otherwise authorized by Developscripts in writing. 

6. Developscripts’ liability for indemnification under this Section shall be limited to 100% of the amount paid by Customer under this MSA.   This Section states Developscripts’ entire liability and Customer’s sole and exclusive remedy with respect to infringements of copyrights and patents by the Software or any component thereof. 

N. Termination 

1. Events of Default.  Developscripts and Customer acknowledge and agree that the following shall constitute events of default (“Events of Default”) and that the occurrence of one (1) or more of such Events of Default shall constitute a material breach of this MSA which shall allow a party, as applicable, to seek the rights and remedies set forth in this Section: 

1. A material breach of this MSA, provided that such breach, if curable, is not cured within fifteen (15) calendar days following receipt of written notice of such breach; 

2. Customer’s failure to timely pay any undisputed amount owed to Developscripts, provided that such failure is not cured within fifteen (15) calendar days following receipt of written notice of such failure; 

3. Failure of a party to perform any other material obligation under this MSA, provided that such failure is not cured within fifteen (15) calendar days following receipt of written notice of such failure; 

4. The institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against a party under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admittance by a party of any involuntary debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of a part not involving the United States Bankruptcy Code; or any corporate action taken by the Board of Directors of a party in furtherance of any of the above actions; 

5. Appointment of a receiver for all or substantially all of a party’s assets or any corporate action taken by the Board of Directors of Developscripts in furtherance of the above action; and 

6. Failure by Customer to use the Software in compliance with the terms and conditions set forth in this MSA or written usage guidelines. 

2. Rights and Remedies of the Non-Breaching Party.  Upon the occurrence of an Event of Default, the non-breaching party shall be entitled to immediately terminate this MSA by providing written notice to the breaching party. 

3. Obligations Upon Termination.  Except as otherwise provided for in this MSA, upon termination of this MSA, all rights granted to either party will terminate.  Promptly, but in no event more than fifteen (15) days after termination of this MSA for any reason, or upon discontinuance or abandonment of Customer’s possession or use of the Software or equipment, Customer shall: 

1. Cease using the Software; 

2. Return all hardware and other equipment supplied by Developscripts; 

3. Uninstall and erase all Software and Documentation (and any and all portion(s) thereof) from all Customer’s storage elements and devices; and 

4. Return all copies of the Software and Documentation or certify, by a written statement signed by an officer of Customer, the destruction of all copies of the Software and Documentation, including all copies (whole and partial) of the Software and Documentation in Customer’s possession or under Customer’s control. 

4. Termination Fee. Customer’s commitments and obligations begin on the earlier of (i) the day Developscripts activates Customer’s service and (ii) the Effective Date. Customer acknowledges and agrees Customer received certain benefits from Developscripts in exchange for services provided by a service contract greater than one (1) month. If Developscripts terminates Customer’s service for nonpayment or other default before the end of any Term, or if Customer terminates Developscripts services for any reason other than those allowed by this MSA, Customer agrees to pay Developscripts a termination fee with respect to the subscription assigned to Customer (“Early Termination Fee”), in addition to all other amount owed.  The Early Termination Fee is not a penalty, but rather a charge to compensate Developscripts for Customer’s failure to satisfy the service commitment on which Customer’s license/subscription is based. An Early Termination Fee will be applied, and paid by Customer, as follows: 

1. if Customer has not provided the proper notice of termination required by this MSA, then Customer will be required to pay twenty-five percent (25%) of the full SOA, or the remainder of the full amount owed to Developscripts under the SOA, whichever is less; 

2. if Customer’s SOA includes the purchase of certain specified equipment and third-party software license(s), Customer will be required to pay the full balance of any said equipment and software license(s); 

3. If Developscripts incurs any additional termination costs for on premise equipment, leased equipment, or equipment purchased from Developscripts in association with this MSA, Customer will be required to pay the full amount of any such termination costs and Customer may be required to return any and all such equipment at Customer’s expense. 

4. Developscripts may charge Customer a restocking fee for any returned equipment and third-party software license(s) acquired for the provision of Customer’s SOA. 

5. Survival.  The parties agree that the following sections survive any expiration or termination of this MSA: Section D (License), Section G (Payment Terms), Section I (Intellectual Property Rights), Section J (Records and Audit Rights), Section K (Warranties), Section L (Limitation of Liability), Section M (Indemnification), Section N (Termination), Section O (Confidentiality) and Section X (Miscellaneous). 

O. Confidentiality 

1. Confidential Information.  “Confidential Information” means the Software and any and all (i) technical information of a party to this MSA, including, without limitation, copyrights, patents, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, systems information, software programs, software source documents, formulae related to such party’s current, future, and proposed products and services, and information concerning research, experimental work, development, design details and specifications, and engineering; (ii) non-technical information regarding the business and affairs of a party, including, without limitation, commercial, operational, and financial information, business forecasts and development leads, marketing strategies, plans, and related information, procurement requirements, purchasing and manufacturing information, rates and pricing information, sales and merchandising information, customer lists, customer contract terms, supplier/vendor contract terms, carrier contract terms, schedules of inventory and accounts receivable, and facility blue prints; (iii) other trade secrets and proprietary information of a party; and (iv) notes, analyses, schedules, compilations, studies or other material prepared by a party, whether in written form or recorded electronically or otherwise, containing or based in whole or in part on those items described in (i), (ii), or (iii) above. 

2. Information disclosed by the party that discloses information to the other party (the “Discloser”) shall also be considered Confidential Information by the party that receives information from the Discloser (the “Recipient”): (i) if provided in written, electronic, or other tangible form, such information is conspicuously designated as “Confidential” or “Proprietary”; or (ii) if provided orally, is designated to be Confidential Information at the time of disclosure or in writing within five (5) days of the disclosure, or which under the circumstances surrounding disclosure ought to be treated as Confidential Information. Notwithstanding the foregoing, information related to the use and operation of the Software shall be considered Confidential Information whether or not it is conspicuously designated as “Confidential” or “Proprietary”. 

3. Nondisclosure Obligation.  Each party agrees that it shall not, without the other party’s prior written consent, directly or indirectly, through its employees, representatives, agents or otherwise:  (a) disclose the Confidential Information to any other person; (b) copy, photograph, photocopy, reduce to writing, record or store in any electronic format, or otherwise reproduce or duplicate the Discloser’s Confidential Information, except as reasonably necessary for Recipient to perform in accordance with this MSA; or (c) take any other actions in connection with the Discloser’s Confidential Information that would be detrimental thereto.  Each party agrees that it shall treat the Confidential Information of the other party with at least the same degree of care as it accords to its own Confidential Information, which in no case shall be less than reasonable care and in compliance with all federal, state and local law.  Each party agrees that it shall disclose Confidential Information of the other party only to those of its employees, representatives, and agents who need to receive such information in the performance of their work duties and certifies that such employees, representatives, and agents have previously agreed, either as a condition to employment or in order to receive the Confidential Information, to be bound by terms and conditions substantially similar to those of this MSA. 

4. Notice of Unauthorized Use or Disclosure.  The Recipient shall give written notice to the Discloser of any unauthorized use or disclosure by the Recipient of the Discloser’s Confidential Information immediately after discovery of such use or disclosure and further agrees to exert its best efforts to assist the Discloser in remedying any such unauthorized use or disclosure of the Discloser’s Confidential Information.  If the Recipient is requested to disclose the Discloser’s Confidential Information in violation of the terms of this MSA, whether by a third party or in response to a valid order by a court or other governmental body or otherwise required by law, the Recipient shall immediately give written notice as soon as reasonably possible to the Discloser of such request and provide the Recipient a reasonable period of time, if possible to determine a course of action prior to agreeing to such disclosure.  In addition, the Recipient shall cooperate with and provide reasonable assistance to the Discloser in the event Discloser decides to resist the request to disclose the Discloser’s Confidential Information. 

5. Exclusions from Nondisclosure Obligations.  Except to the extent disclosure would be in violation of any data privacy or security laws, the nondisclosure obligations of this MSA shall not apply to any portion of the Discloser’s Confidential Information in which the Recipient can reasonably establish in writing that:  (i) the Confidential Information is part of the public domain through no fault of the Recipient; (ii) the Confidential Information was lawfully in the Recipient’s possession free of any obligation of confidentiality at or subsequent to the time it was communicated to the Recipient by the Discloser; (iii) the Confidential Information was developed by employees, representatives, or agents of the Recipient independently of and without reference to any information communicated to the Recipient by the Discloser; (iv) the Confidential Information was communicated by the Discloser to an unaffiliated third party without any obligation of confidentiality; or (v) subject to Subsection O.4, the disclosure of the Confidential Information was in response to a valid order by a court or other governmental body or was otherwise required by law. 

6. Disclosure of Third Party Information.  Neither party shall disclose to the other any information received from a third party if such disclosure constitutes a violation of the proprietary rights of the third party. 

7. Duration.  Notwithstanding the earlier termination of this MSA, the obligations relating to confidentiality are to remain in effect for a period of five (5) years after the expiration or termination of this MSA. 

8. Injunctive Relief.  The parties agree that their obligations of confidentiality are necessary and reasonable in order to protect their respective business, and agrees that monetary damages would be inadequate to compensate for any breach of these Sections.  Accordingly, the parties agree that any such breach or threatened breach of these Sections may cause irreparable injury and that, in addition to any other remedies that may be available, in law, equity or otherwise, any of the parties shall be entitled to injunctive relief (preliminary or otherwise) in the event of an actual or threatened breach of this MSA or the continuation of any such breach, without the necessity of proving actual damages. 

P. Dispute Resolution 

1. Project Manager Level Performance Review.  The applicable Developscripts Project Manager and Customer Certified Administrator shall meet as often as shall reasonably be required to review the performance of the parties to resolve any disputes.  Written minutes of such meetings shall be kept by Developscripts for review and approval by Customer.  If these representatives are unable to resolve a dispute within ten (10) calendar days after the initial request for a meeting, then the dispute shall be submitted to an executive-level performance review as described below. 

2. Executive-Level Performance Review.  Negotiations shall be conducted by senior executive officers of Customer and Developscripts.  If these representatives are unable to resolve the dispute within ten (10) calendar days after the representatives have commenced negotiations, or twenty (20) calendar days have passed since the initial request for negotiations at this level, then the parties may agree in writing to submit the dispute to mediation. 

3. Voluntary, Non-Binding Mediation.  If executive-level performance review is not successful in resolving the dispute, the parties may, but shall not be obligated to, mutually agree in writing to submit the dispute to non-binding mediation.  Mediation must occur within ten (10) business days after the parties agree to submit the dispute to mediation, and the duration of the mediation shall be limited to one (1) business day.  The parties mutually shall select an independent mediator experienced in commercial contract software technology disputes, and each shall designate a representative(s) with full negotiation and settlement authority to meet with the mediator in good faith in an effort to resolve the dispute.  The specific format for the mediation shall be left to the discretion of the mediator and the designated party representatives and may include the preparation of agreed-upon statements of fact or written statements of position furnished to the other party. 

4. Continued Performance.  Except where clearly prevented by the area in dispute, both parties shall continue performing their obligations under this MSA while the dispute is being resolved under this Section unless and until the dispute is resolved or until this MSA is terminated as provided herein. 

Q. Anti-Spam Provisions 

Developscripts operates under a strict “No Spam” policy. The sending of any unsolicited e-mail advertising messages from, to, or through Developscripts Software may result in civil liability against the sender. “Unsolicited bulk” messages include, but are not limited to, commercial advertising, informational announcements, and political or religious tracts. Developscripts reserves the right to check all known commercial and public databases for information regarding prior history of unsolicited mail sending, and may choose to deny or terminate services based on this information. Individuals identified as “ROKSO” level abusers will be denied service immediately. 

R.  Hosting and Bandwidth Usage 

Software provided by Developscripts to Customer is intended to be hosted by third party hosting companies.  However, should the Software be hosted by Developscripts for any reason other than testing purposes, Customer agrees to pay Developscripts for such hosting services.  Each Developscripts private cloud deployment requires a minimum dedicated bandwidth. The SOA will provide Customer’s exact bandwidth commitment levels above these minimums.  Bandwidth/Throughput billing is done on 95th percentile usage. Should Customer exceed Customer’s included bandwidth or contracted commit level, Developscripts will adjust Customer’s invoices accordingly. 

S.  System and Network Security 

1. Security is an important part of your service, and it is important that Customer understands the security policies we apply to the servers at Developscripts. 

2. To the extent Developscripts has actual control over systems or facilities, Developscripts agrees to use commercially reasonable security consistent with its business practices and facilities. The parties acknowledge that the Internet is neither owned nor controlled by any one entity and that one or more third parties may gain access to Developscripts systems. Electronic mail and other transmissions passing through Developscripts systems or over the Internet are not secure, and Developscripts cannot guarantee the security or privacy of any of the information or communications passing through Developscripts systems. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, Developscripts SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A BREACH OF SECURITY THAT DOES NOT RESULT FROM Developscripts’ GROSS NEGLIGENCE OR FRAUDULENT OR INTENTIONAL MISCONDUCT. Developscripts will not intentionally monitor or disclose any private electronic communications except to the extent necessary to identify or resolve system problems or as otherwise permitted or required by law. Developscripts does, however, reserve the right to monitor transmissions, other than private electronic communications, as necessary to provide the services hereunder and otherwise to protect the rights and property of Developscripts. Notwithstanding the foregoing, Developscripts does not assume any liability for any action or inaction with respect to such communication or content posted or provided by an authorized or unauthorized third party, and Customer specifically acknowledges and agrees that Developscripts shall have no liability in this regard and, therefore, holds Developscripts harmless. Developscripts is a distributor and not a publisher of Customer data or any other content provided by Customer or others (including end users). Because communication of data and other content over the Internet occurs in real time, Developscripts cannot, and does not intend to, screen, police, edit, or monitor communications and content. IN NO EVENT WILL Developscripts BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER’S RELIANCE ON ANY THIRD PARTY DATA OR OTHER CONTENT OBTAINED THROUGH OR FROM CUSTOMER. 

3. Developscripts reserves the right to act immediately regarding security violations. This may include, without limitation, the immediate suspension of access to Software and services without notice. 

T.  Acceptable Use Policy (AUP) 

1. Developscripts Acceptable Use Policy (AUP) is intended for Developscripts products and services with the goal of protecting Developscripts Subsidiaries, Affiliates, Employees, and Customers. This policy applies to the use of all Developscripts products, websites, copyrights, and services owned or operated by Developscripts, as well as any and all data sent, transferred, received, stored, or accessed in the Developscripts network. Other products or services offered by Developscripts may have additional terms and conditions that govern over this policy in the case of inconsistencies. 

2. This AUP and the following prohibited activities noted below are an integral part of this MSA with Developscripts. Developscripts Software and services are for the lawful use of Developscripts customers and if Developscripts finds Customer and end users (also collectively referred to as “you” and “your” in this AUP) in violation of the identified prohibited activities, your services may be subject to suspension and/or removal from Developscripts network. This AUP is a non-exclusive list of actions prohibited by Developscripts. 

3. It is the sole responsibility of the Customer to properly secure their operating systems (OS), applications, Software, and third party software unless otherwise stated in the SOA. Developscripts assumes no legal liability for the actions or data created or posted by its Customers. Each Customer is responsible for all data transmitted, or received by, to, or through Developscripts Software and services.  Customer acknowledges and agrees that Developscripts does not control the content of network traffic to or from its Software, services or network and makes no representations or warranties regarding same. 

4. Developscripts will cooperate with law enforcement related to any criminal or suspected criminal acts by any means which Developscripts may deem necessary including, but not limited to, handing over personal information, data, or hardware to aid law enforcement with their investigations. Law enforcement officials may request that you not be notified about issues relating to criminal acts. Developscripts reserves the right to comply with all such requests. 

5. The purpose of the AUP is to: 

1. Ensure the security, reliability and privacy of Developscripts network and systems, and the networks and systems of others. 

2. Preserve the privacy and security of Developscripts Customers and other Internet users. 

3. Discourage irresponsible practices, which degrade the usability of network resources and thus the value of Internet services. 

4. Avoid situations that may cause Developscripts to incur legal liability. 

6. Developscripts operates under a strict “No Spam” policy per Section Q of this MSA. The sending of any unsolicited email advertising messages from, to, or through Developscripts services may result in civil liability against the sender. 

7. Use and access to Developscripts Software and services is for lawful use only. Using Developscripts Software, network, services, or systems to store or send content which is illegal according to the laws of United States of America is not permitted for any reason. 

1. You may not display, transmit, advertise, distribute, or sell harmful materials. 

2. You may not store or send any material deemed either illegal or inappropriate from Developscripts Software or networks including, but not limited to, child pornography and the following: 

1. Images depicting persons under the age of 18 engaging in unlawful sexual acts. 

2. Pornographic materials viewable by persons under the age of 18 without proof of age. 

3. E-mails, messages, phone messages, or posts with content that is, or may be, threatening or harassing any other individual. Harassment is, by definition, meant to be viewed broadly, whether through content, frequency, or size using e-mail or usenet messages. 

4. Software or hardware containing programs such as viruses, worms, trojans or other malicious programs with intent of causing harm to any individual’s computer or server. 

8. Developscripts expressly forbids the use of copyrighted materials without written permission from the owner of that material. Developscripts follows all rules and regulations set forth by the Digital Millennium Copyright Act. 

9. You may not engage in an attempt to infringe, store or send any material deemed either illegal or inappropriate for Developscripts networks, including but not limited copyrighted images, software, music, advertising, selling, distributing, or marketing material that infringes a copyright, trademark, or any other proprietary right to any intellectual property including but not limited to photographs, trade secrets, and/or property. 

10. Developscripts requires that all Customers and end users provide accurate information regarding name, address, and a working phone number to identify each such Customer and end user. 

1. You may not use Developscripts services to impersonate another individual by altering source IP address information or forging e-mail/usenet headers or other identifying information. 

2. You may not make any attempt to fraudulently conceal, forge, or otherwise falsify one’s identity in connection with use of Developscripts Software or services. 

11. Customers must not utilize Developscripts Software or services to distribute fraudulent materials to others including, but not limited to, the following: 

1. Attempting to buy or sell fraudulent goods or services, or offering fraudulent goods, services, or promotions. 

2. Forwarding or otherwise propagating chain letters or “e-mail hoaxes,” whether or not the recipient wishes to receive them, unless such propagation is both solicited and in the clear context of debunking or discrediting chain letters/hoaxes. 

3. Falsifying or modifying data to fraudulently disguise you as someone else with the intention of deceiving another user, including but not limited to forging e-mail headers or e-mail “munging” (the deliberate alteration of an e-mail address online with the intent of making the address unusable for web-based programs that build e-mail lists for spamming purposes). 

4. Transmitting any electronic communication, including e-mail, using the name or address of another person or organization, for purposes of deception. 

5. Impersonating another individual by altering source IP address information, or forging email/usenet headers or other identifying information. 

12. The use of Developscripts Software or services to gather personal information about victims of phishing is strictly forbidden. 

1. You may not perpetrate, engage in, or take part in the use of phishing scams. 

2. You may not impersonate another individual by altering source IP address information, or forging email/usenet headers or other identifying information. 

3. You may not send e-mails with links to bogus websites that look similar to actual sites, or send e-mails about you impersonating a representative of PayPal, EBay, or a bank representative, with the intention of acquiring personal information such as credit card information, social security number, personal e-mails, home addresses, etc. 

13. Use of Developscripts Software or services to perform attacks on other servers or computers, outside of or within Developscripts premises, is strictly forbidden. 

1. You may not intercept or attempt to intercept, through any method, network traffic intended for other customers. 

2. You may not use or store any type of software which is designed to, or is likely to, abuse or negatively impact internet service including, but not limited to, port scanners, hacking tools, ping flooding programs, security/root exploits, packet sniffers, and spam software. 

3. Denial of service including, but not limited to, any form of internet packet flooding, packet corruption, or abusive attack intended to impact the proper functioning of any internet servers or services are forbidden. 

1. Use of Software or service to breach or access any server, computer, or software with the intent of gaining access to or destruction of data without the owner’s permission or consent. 

2. Use of Software or services to search outside networks for open firewalls or server ports in an attempt to exploit a vulnerability or weakness in the device. 

3. Using Software or services to engage in an attack on s separate entity’s server or computer with an unlawful script or program that attempts to guess users’ credentials. 

4. An attack on a network, server, or computer that creates multiple requests repetitively in an attempt to slow down or crash network connectivity. 

5. An attack that creates multiple echo requests and sends them to its target repeatedly in an attempt to slow down or crash the target’s network connectivity. 

14. Complaints about Customer, representatives of Customer, or end-users of a Developscripts Customer will be forwarded to the Developscripts Abuse Department for action. If violations of the Developscripts Acceptable Use Policy occur, Developscripts reserves the right to terminate services or take action to stop the offending Customer from violating the Developscripts AUP. Violation of any Developscripts AUP policy may subject violator and Customer to a fine of up to $500 USD for each incidence of violation. Failure to respond to or cure an issue of violation within one (1) business day is considered a violation of this AUP. 

15. It is the responsibility of the Customer to ensure that all of their end-users abide by this AUP. 

16. Developscripts sets and uses cookies to enhance your user experience, such as retaining your personal settings. 

17. Developscripts reserves the right to modify the AUP at any time, with changes becoming effective immediately upon notification to Customer.  Developscripts will notify you of substantial changes to this AUP, either by posting a prominent announcement on our website and/or by sending a message to the email address you have provided to us that is contained within your user settings.  

U. Privacy Agreement (PA) 

Developscripts considers user Privacy Agreement (PA) paramount, and Developscripts utilizes great care in keeping the information of Customer and end users (also collectively referred to as “you” and “your” in this PA) private and secure.   Additionally, Developscripts adheres to the Safe Harbor Principles as agreed to and set forth by the United States Department of Commerce and the European Union (“EU”), http://export.gov/safeharbor/. To demonstrate our firm commitment to privacy, the following provisions have been created to explain our policies and procedures in relation to all data collected (the “Privacy Policy”).  This Privacy Policy states our standards for maintenance of data and we will make efforts to meet them. However, we do not guarantee these standards. There may be factors beyond our control that may result in disclosure of data. As a consequence, we disclaim any warranties or representations relating to maintenance or non-disclosure of data. 

1. Types of Data Collected.  Developscripts collects data related to end users through the following methods: 

1. Automated means such as communication protocols and cookies 

2. Online registration and online signup forms 

3. Sales inquiries and transactions 

4. Online Customer communications 

5. Offline communications and interactions 

6. Third party sources of information 

Depending upon the method of collection and use, the data collected may include information about the end user from forms, registrations and transactions (such as name, title, address, company, phone number and e-mail address), financial/transaction information (such as credit card, cvv, and payment information), information about use of Developscripts web sites (such as electronic communications protocols, web pages visited, and cookies) and end user preferences and privileges. 

2. Electronic Communications Protocols and Cookies. 

1. Developscripts may receive data from you as part of the communication connection itself through the standard electronic greeting between your computer and Developscripts servers. This information often consists of network routing (where you came from), equipment information (browser type), Internet protocol address, date and time. At this time, a Developscripts server will also query your computer to see if there are “cookies” previously set by Developscriptscloud.com to facilitate log in or other site navigation procedures. A “cookie” is a small piece of information sent by a web server to store in a web browser so it can later be read back from that browser. 

2. Some parts of the Developscripts site use cookies (including signup forms) to collect information about visitors’ use of the web site and to facilitate return visits. The information collected from cookies is tracked to enhance security and/or to improve the functionality of the web site by avoiding duplicate data entry, facilitating navigation, and increasing the relevance of content. 

3. Cookies on the site may collect the following information: a unique identifier, user preferences and profile information used to personalize the content that is shown, and user information to access Developscripts’ user forums. Some cookies used by Developscriptscloud.com may remain on the user’s computer after they leave the website, but the majority are set to expire within 30 – 365 days. There may be some cookies on certain tools that are of longer duration. Cookies may also be of benefit to you by creating a more streamlined login process, keeping track of shopping cart additions or preserving order information between sessions. In the future, as we enable further customization of the site, cookies will help in ensuring that information provided to you will be the most relevant to your needs. 

4. While we do not offer an opt-out on the site for cookies, browsers provide you with information and control over cookies. You can set your web browser to alert you when a cookie is being used. You can also get information on the duration of the cookie and what server your data is being returned to. You then have the opportunity to accept or reject the cookie. Additionally, you can set your browser to refuse all cookies or accept only cookies returned to the originating servers. Users can generally disable the cookie feature on their browser without affecting their ability to use the site, except in some cases where cookies are used as an essential security feature necessary for transaction completion. 

5. Please note that some email communications are not subject to general opt-out. These include communications related to downloads, communications about sales transactions, information about software updates, patches and fixes, disclosures to comply with legal requirements, and network upgrades or other related service maintenance. 

3. Disclosure or Use of Data.  If an individual’s personal information is to be (a) disclosed to a third party who is not an Agent; or (b) used for a purpose that is incompatible with the purpose(s) for which it was originally collected or subsequently authorized by the individual, then the individual will be notified prior to such disclosure and may opt out of having the information disclosed by responding to the email and/or author of the notification, where such information shall be clearly set forth.  Developscripts will never sell or disclose Customer’s contact information or Customer lists to any third party, unless required by law or specifically authorized by Customer. 

4. The Data We Collect and How We Use It 

Developscripts collects data from end users for the following purposes: 

1. To engage in transactions for service. Name, address, email, purchase details, and credit card/payment information may be collected and stored as part of the transaction history. The majority of the data collected under this category is contact information. Developscripts may need to share some of this data (address, payment) with credit card clearing houses, banking institutions, and other similarly situated Agents, who may require the information in order to complete the transaction (as used in this Privacy Policy, “Agents” are persons or companies who act on behalf of or under the direction of Developscripts). Developscripts will not transfer information to any of its Agents unless it first either ascertains that the Agent subscribes to the Safe Harbor Principles or is subject to the EU Directive on Data Protection or another adequacy finding or enters into a written agreement with such Agent requiring that the Agent provide at least the same level of privacy protection as is required by the relevant Safe Harbor Principles. 

2. To provide future service and support. Information collected for this purpose is both contact data and information related to products and service/support requested. This information is also used to provide service, product update, and similar notices. 

3. To select content. Data may be collected to help create website content and navigation that is most relevant and user friendly. This includes data collected as a result of site navigation, as well as data provided in forms. 

4. To respond to user inquiries and requests for information. This data includes registrations for online newsletters, opt-in mailing lists and specific requests for further information. 

5. To respond to law enforcement organizations, government officials, or third parties when compelled by subpoena, court order, or applicable law, or to report or prevent suspected fraudulent or illegal activity in the use of Developscripts’ Software or services. Developscripts will notify Customer of the information request or submission as, and if, allowed. 

6. To provide various Developscripts communities, such as resellers, with relevant product alerts and updates. These updates are related to product releases, prices, terms, special offers and associated campaigns. This data is sent when the program member signs up for the relevant program or online account. 

7. To better tailor marketing to end user needs. We may use information from user purchases and user-specified requirements to provide you with timely and pertinent notices of Developscripts product releases and service developments that address your needs and specified requirements and/or which are similar to products and services previously purchased by the user from Developscripts. 

8. To better respond to requests for service or quotes for product and equipment purchase. Developscripts will pass contact information to the appropriate Developscripts salesperson, or reseller for follow-up related to Developscripts products or services. 

9. From referral “tell a friend” function. If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Developscripts will automatically send the friend a one-time email inviting them to visit the site and send a copy of said e-mail to the user. The e-mail(s) sent shall clearly identify the sender of such email(s). Developscripts uses this data for the sole purpose of sending this one-time email. Such e- mail sent to a friend at user’s request will not be stored for additional processing. 

10. As a result of your participation in interactive discussions and public forums. There are parts of the website that permit you to participate in interactive discussions. Some of these are moderated. All are subject to access for technical reasons. Developscripts does not control the content that users post and some may serve as public discussion forums. As in any interactive forum open to many users, you should carefully consider whether you wish to submit data and should tailor any other content submitted accordingly. 

5. Security 

1. Developscripts is concerned with the security of the data we have collected and utilizes commercially reasonable measures to prevent unauthorized access to that information. These measures include policies, procedures, employee training, physical access and technical elements relating to data access controls. In addition, Developscripts uses standard security protocols and mechanisms to facilitate the exchange and the transmission of sensitive data, such as credit card details. Developscripts does not process personal information in a way that is incompatible with the purposes for which it has been collected or subsequently authorized by the individual. 

2. In the event that individual personal data is acquired, or is reasonably believed to have been acquired, by an unauthorized person and applicable law requires notification, Developscripts will notify the affected individual of the breach by email or fax or, if Developscripts is unable to contact the individual by email or fax, then by regular mail. Notice will be given promptly, consistent with the legitimate needs of law enforcement and any measures necessary for Developscripts or law enforcement to determine the scope of the breach and to ensure or restore the integrity of the data system. Developscripts may delay notification if Developscripts or a law enforcement agency determines that the notification will impede a criminal investigation and, in such case, notification will not be provided unless and until Developscripts or the agency determines that notification will not compromise the investigation. 

6. Enforcement 

Developscripts has established internal mechanisms to verify its ongoing adherence to its Privacy Policy, including the Safe Harbor Principles. Developscripts also encourages individuals covered by this Privacy Policy to raise any concerns about our processing of personal information by contacting Developscripts. Developscripts will seek to resolve any of your concerns. Developscripts has also agreed to participate in the dispute resolution program provided by the European Data Protection Authorities. 

7. Policy Updates 

If we are going to use your data in a manner different from that stated at the time of collection, we will notify you via email. In addition, if we make any material changes in our privacy practices that do not affect user data already stored in our database, we will notify you by email or post a prominent notice on the customer portal notifying users of the change. In some cases, when we post the notice, we will also email users who have opted to receive communications from us, notifying them of the changes in our privacy practices.  If you have any questions about this Privacy Policy or our website, please feel free to contact us. 

V.  Service Level Agreement (SLA) 

The Developscripts Service Level Agreement (SLA) covers support and an ongoing license required to use the Software unless otherwise stated in the Service Order Agreement (SOA).  The SLA includes a 99.9% uptime guarantee on all deployments each calendar year.  If Developscripts fails to meet the SLA Performance Criteria, SLA credits will be issued to your Customer account pursuant to Section G.12 of this MSA. 

W.  Network Status 

Hosting and network services are generally provided by third parties.  However, to the extent hosting and network services are provided by Developscripts, the Developscripts network may encompass several data centers. Specific information regarding your account and data may be obtained from Developscripts by contacting support@auctionsoftware.com. 

From scheduled maintenance windows that occur weeks or months in the future, to emergency windows that pop up from time-to-time; we do our best to keep up-to-the-minute information available, around-the-clock. 

X. Miscellaneous 

1. Publicity.  Customer hereby consents to Developscripts’ use of Customer’s name in Customer list to be used in connection with the marketing of Developscripts’ business and products. 

2. Assignment.  Upon reasonable written notice to Customer, Developscripts may and is entitled to transfer and/or assign, in whole or in part, its rights and obligations under this MSA and in any SOA, SLA and/or Change Order, to an affiliate or any other entity known to Developscripts (a “Permitted Assignee”). Any such assignment and/or transfer of this MSA, and any rights, obligations, and/or duties hereunder, shall have the effect of creating privity of contract by and between Customer and the Permitted Assignee, and Customer shall deal directly with the Permitted Assignee as though such Permitted Assignee were the original service provider under the MSA. Upon any such assignment, transfer, and/or assumption, Customer covenants and agrees to discharge and release Developscripts from all liabilities under this MSA arising after the date of such assignment or transfer. Upon execution of an assignment, transfer, and/or assumption instrument by and between Developscripts and a Permitted Assignee, Customer may request a copy of such executed instrument.   

Customer acknowledges that a Permitted Assignee may subcontract the Services or any portion of the Services to Developscripts, and in that event, Developscripts shall constitute nothing more than a subcontractor. 

IT IS EXPRESSLY AGREED by cUSTOMER, as a material consideration for the execution of this MSA by Developscripts, that with regard to any permitted assignment, transfer, and/or assumption, in whole or in part, of the rights and obligations hereunder, Developscripts makes no representations, warranties, understandings, stipulations, or promises pertaining to a permitted assignee or its ability to effectuate the terms and conditions of this MSA or any soa, SLA AND/OR CO, AND CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR INFORMATION RELATED TO ANY PERMITTED ASSIGNEE. 

Customer may not assign this MSA or any right or obligation hereunder without the prior written consent of Developscripts.  Any attempted assignment in violation of the preceding sentence shall be void. 

3. No Third-Party Beneficiaries.  The Software and services provided to Customer under this MSA are provided solely for the benefit of Customer.  This MSA and the services provided hereunder are not intended to create any rights for or to confer any rights upon any third party including, but not limited to, Customer’s clients. 

4. No Waiver.  No term or provision contained in this MSA shall be deemed waived unless such waiver shall be in writing and signed by Developscripts. 

5. Notices.  All notices given under this MSA shall be given to the address of the appropriate party set forth in the introductory blanks and paragraph of this MSA and shall be given by certified or registered mail. 

6. Non-Solicitation.  Both Developscripts and Customer agree that they shall not directly or indirectly solicit for employment, employ or otherwise retain employees of each other during the term of this MSA and thereafter for a period of two (2) years without the express written consent of the other party. 

7. Governing Law.  Customer acknowledges and agrees that this MSA is made under, will be governed by and construed in accordance with the laws of the State of Texas without regard to its choice of law rules.  Customer acknowledges and agrees that all actions and proceedings arising directly or indirectly from this MSA shall be exclusively litigated in courts (state or federal) serving Dallas County, Texas, and Customer expressly submits and consents to the jurisdiction and venue of such courts and waives any defense of forum non-conveniens. 

8. Equitable Relief.  Notwithstanding anything contained in this MSA to the contrary, the parties shall be entitled to seek injunctive or other equitable relief whenever the facts or circumstances would permit a party to seek such equitable relief in a court of competent jurisdiction.  The parties agree and acknowledge that any breach of Section D (License Grant), Section I (Intellectual Property Rights) or Section O (Confidentiality) may cause immediate and irreparable injury to the non-breaching party, and monetary damages shall be inadequate to compensate for such breach. 

9. Attorneys’ Fees.  If either party breaches this MSA then that party shall pay all costs (including attorneys’ fees and court costs) incurred by the other party in enforcing this MSA or seeking to recover damages for the breach. 

10. Export Regulations.  The Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries.  Customer acknowledges and agrees to comply strictly with all such regulations and acknowledge that Customer has the responsibility to obtain licenses to export, re-export, or import the Software. 

11. Force Majeure.  Neither party shall be liable to the other for any failure, delay or interruption in the performance of this MSA due to causes entirely beyond the control of that party including, without limitation, strikes, boycotts, labor disputes, embargoes, acts of God, pandemics, acts of public enemy, acts of governmental authority, floods, riots or rebellion. 

12. High Risk Activities.  The Software is not fault-tolerant and is not designed, manufactured or intended for use or resale as on-line control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the software could lead directly to death, personal injury, or severe physical or environmental damage (“High Risk Activities”). Developscripts specifically disclaims any express or implied warranty of fitness for High Risk Activities. 

13. Severability.  If any of the above provisions are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, then such provisions are herewith waived to the extent necessary for this MSA to be otherwise enforceable in such jurisdiction.  However, if in Developscripts’ opinion deletion of any provisions of this MSA by operation of this paragraph unreasonably compromises the rights or liabilities of Developscripts or its licensors, Developscripts reserves the right to terminate this MSA. 

14. Relationship of Parties.  The parties hereto are independent contractors. Neither party has any express or implied right or authority to assume or create any obligations on behalf of the other or to bind the other to any contract, agreement or undertaking with any third party. Nothing in this MSA shall be construed to create a partnership, joint venture, employment or agency relationship between Developscripts and Customer. 

15. Entire Agreement.  This MSA and any Exhibit attached hereto are the entire agreement between Customer and Developscripts relating to the Software and Documentation and: (i) supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to its subject matter; and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgment, procurement document or similar communication between the parties during the term of this MSA unless an SOA or SLA is executed by the President or CEO of Developscripts with the intent that such SOA or SLA is to control. No modification, amendment or supplement to this MSA or the Exhibits attached hereto will be binding, unless in writing and signed by a duly authorized representative of each party.  When interpreting this MSA and terms and conditions of other referenced documentation, precedence shall be given to terms and conditions in the following descending order: 

1. This Master Service Agreement; 

2. Schedules and Exhibits, if any, to this Master Service Agreement; 

3. Service Order Agreement; 

4. Change Order; 

5. Invoice; 

6. Estimate; 

7. Sales Order; 

8. Proposal; and 
9. Quote.