Policies: Software License, Support and Maintenance Agreement

This Software License, Support and Maintenance Agreement is made and entered into this _____day of ____ 2011 (“Effective Date”), by and between Dolphin Software Inc, a US company having a place of business at 4539 Metropolitan Court, Frederick, MD 217042, USA ("Dolphin") and _______________, an organization incorporated in ____________, having a place of business at __________________________ ("Licensee"). This Software License, Support and Maintenance Agreement, any and all Schedules attached hereto and the relevant Order Form, collectively, make up the agreement between Dolphin and Licensee and are collectively referred to as “Agreement”. This Agreement shall apply to additional Order Forms that may be entered into by and between Dolphin and Licensee from time to time. In consideration of the rights and Licenses granted herein and for other good and valuable consideration, the parties hereto agree as follows:

1 DEFINITIONS

1.1 “Authorized User” means an individual who is authorized by Licensee to use the Software, in respect of whom Licensee has paid the applicable License fee.

1.2 “Confidential Information” means (i) the Software and related Documentation; (ii) either party’s business or financial information and plans, documents, works in progress, work processes, trade secrets, or other secret or confidential matter related to either party’s business or projects and/or their affiliated, related or subsidiary companies, including, without limitation, customer information; and (iii) any other information that either party designates as confidential, or which, under the circumstances of disclosure, should be treated as confidential.

1.3 “Designated Equipment” means the hardware and software complying with the minimum specification set out in the Documentation.

1.4 “Documentation” means user guides, manuals and other instructional materials provided by Dolphin relating to the operation and functions of the Software, as may be updated from time to time by Dolphin.

1.5 “Intellectual Property Rights” means any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask work registrations, and applications therefore in the U.S. or any foreign country, and all other rights corresponding thereto throughout the world; and (iv) any other proprietary rights anywhere in the world.

1.6 “Licensed Server” means the server(s) in respect of which Licensee has purchased a License to install and run the Software.

1.7 “New Release” means an updated release of the Licensed Software released by Dolphin from time to time. A New Release may be a Major, Minor or point Release.

1.8 “Order Form” means the order form for Software and related Technical Support and Maintenance Services entered into by the parties and referencing this Agreement.

1.9 “Software” means the Dolphin software in object code form set forth in the applicable Order Form(s) incorporated herein by reference, plus any New Releases provided by Dolphin as part of the Technical Support and Maintenance Services.

1.10 “Technical Support and Maintenance Services” shall mean the services outlined in Schedule A.

2 LICENSE GRANT

2.1 Subject to the terms and conditions of this Agreement and subject to Licensee’s timely payment of the appropriate License fees, Dolphin hereby grants Licensee a perpetual (unless otherwise set out in this Agreement), non-exclusive, non-transferable, non-sublicensable, restricted License to use the Software for Licensee’s internal business purposes (i) for the maximum number and applicable type of Authorized Users and (ii) on the Licensed Server(s), each as identified in the applicable Order Form.

2.2 Licensee may make one backup copy of the Product for archival and disaster recovery purposes only. Licensee may make copies of the Documentation relating to the Software for each then-current Authorized User.

2.3 Licensee may allow its agents and contractors (including, without limitation, outsourcers and hosting partners) to use the Software solely for the benefit of Licensee’s internal business purposes and subject to the restrictions and limitations as set out in this Agreement. Licensee will remain liable and responsible for compliance by such agents and subcontractors with this Agreement in such use.

2.4 Authorized Users are categorized by user type as outlined in the applicable Order Form. The Licensed Servers required and related pricing depends on the Software Licenses ordered and are outlined in the Order Form. Authorized User logins are issued by the Licensee and must be issued per unique Authorized User and in respect of their level of access only. Licensee is responsible for creating or disabling access for the relevant users, including where Authorized Users leave the employment of the Licensee or where passwords are re-issued. Additional users may be Licensed on payment of the appropriate user fees.

2.5 If ordered, Technical Support and Maintenance Services are provided according to the terms and conditions of Schedule A, will commence on the effective date of the applicable Order Form and are payable from the effective date of such Order Form.  

3 PROPRIETARY RIGHTS; LICENSE RESTRICTIONS

3.1 Dolphin and/or its licensors retain all right, title and interest to the Software and related Documentation and all Intellectual Property Rights embodied therein. Dolphin reserves all rights not expressly granted herein.

3.2 In addition to those prohibitions contained elsewhere in this Agreement or the applicable Order Form, Licensee shall not: (a) rent, lease, loan, sell, copy (except as permitted in Section 2.2 above), or distribute the Software in whole or in part; (b) use the Software or any portion thereof for commercial sale, sublicense, lease, access or distribution, including without limitation to provide processing services to third parties; (c) remove or modify any Dolphin trademarks or notices on the Software; (d) allow any third party to access or use the Software; (e) modify, decompile, disassemble, reverse engineer the Software and/or create derivative works of the Software; or (f) exceed the licensed use of the Software as specified in the relevant Order Form. The Agreement and Licenses hereunder are specific to Licensee and may not be shared with, used by, provided to or otherwise made available to any third party. Except as expressly provided by the Agreement, no other Licenses or rights are granted to Licensee.

3.3 Licensee must ensure that each and every copy of the Software (including the Documentation) that it makes in accordance with this Agreement bears the copyright and other proprietary notices on the original copy of the Software and the Documentation supplied.

4 ORDER FORMS; PRICING

4.1 Licensee may order Software and Technical Support and Maintenance Services from Dolphin by signing the appropriate Order Form issued by Dolphin. Licensee shall pay all fees within thirty (30) days from the effective date of the relevant Order Form. Dolphin’s pricing reflects the allocation of risks and limitation of liability. All fees are non-refundable, unless otherwise explicitly stated in this Agreement. All fees are exclusive of sales, use or other taxes imposed by applicable law, except for taxes based on Dolphin’s income, and Licensee shall reimburse Dolphin for all such taxes. If the government of any country requires Dolphin to levy or Licensee to withhold or deduct any taxes, charges or other duties from any payments hereunder, Licensee shall pay any additional amounts as may be necessary in order that the net amounts received by Dolphin after any such withholding or deduction equals the amounts specified herein.

4.2 If Licensee has any query in respect of any invoice, Licensee must notify Dolphin in writing within fourteen (14) calendar days after the date of that invoice; otherwise the invoice will be deemed to be correct and Licensee will be liable to pay it.

4.3 Any amounts which are not paid within the due date as set out in section 4.1 above will be subject to interest of one percent (1%) per month, which will be immediately due and payable. Licensee may not offset an obligation to pay any charges or fees provided for in this Agreement against any claim on Dolphin or suspend payment on any ground. Furthermore, If Licensee fails to pay any amounts when due, Dolphin has the right to end Licensee’s Technical Support and Maintenance Services or this Agreement.

5 RIGHT TO AUDIT

5.1 Licensee agrees to give Dolphin access to information and reasonable assistance as may be necessary for Dolphin to audit Licensee’s use of the Software. Dolphin shall give at least thirty (30) days written notice of its intention to perform such an audit and shall not audit more than once annually. The audit shall be conducted at Dolphin’s expense unless the results of such an audit establish that Licensee’s use of the Software exceeds the authorized use as set out in the relevant Order Form by more than five percent (5%). Any fees applicable to Licensee’s use of the Software in excess of its Licensed use, calculated retroactively, will be due within thirty (30) days of written notification by Dolphin. 6

PUBLICITY

6.1 Licensee agrees to reasonably cooperate with Dolphin in the preparation of a press release and agrees that Dolphin may use its name in press releases, sales presentations, product brochures and other marketing vehicles and financial reports, indicating that Licensee is a customer of Dolphin. Any quote of Licensee by Dolphin will be subject to Licensee’s prior consent.

7 CONFIDENTIALITY

7.1 Each Party (the “Receiving Party”) acknowledges that, in the course of this Agreement, it may obtain Confidential Information of the other Party (the “Disclosing Party”) The Receiving Party shall keep in confidence all Confidential Information and shall not use Confidential Information except in furtherance of this Agreement. The Receiving Party shall not disclose any Confidential Information to any person without the Disclosing Party’s prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees and agents on a “need-to-know” basis, provided that such employees and agents execute a written agreement with materially the same terms and conditions as this Section 7 and the Receiving Party remains ultimately liable for any breaches thereof.

7.2 The obligations of confidentiality shall continue during the term of this Agreement and for a period of five (5) years thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in Section 7.3.

7.3 This Section 7 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain through no act or omission of the Receiving Party or its employees or agents; (b) is received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party; (c) was independently developed by the Receiving Party without reliance on the Confidential Information; or (d) is required to be disclosed by operation of law or by order of a court or administrative body of competent jurisdiction, provided that, prior to such disclosure, the Receiving Party shall first give notice to the Disclosing Party such that the Disclosing Party has the opportunity to contest such order or requirement of disclosure or seek appropriate protective order.

7.4 Neither party shall disclose the terms of this Agreement to any third party (other than such party’s attorneys, accountants or other agents bound by a written agreement to keep such terms confidential) without the prior written consent of the other party. Notwithstanding the above, Dolphin has the right to disclose the terms of this Agreement to potential investors where such investor has executed an appropriate non-disclosure agreement.

8 WARRANTY

8.1 For a period of ninety (90) days from the date of delivery thereof (“Warranty Period”), Dolphin warrants that the Software, when used as permitted under this Agreement, will perform substantially in accordance with the Documentation accompanying such Software. If the Software fails to perform substantially in accordance with the Documentation, Licensee must notify Dolphin in writing within the Warranty Period. If Dolphin receives such notice within the Warranty Period, Dolphin shall use commercially reasonable efforts to repair or replace the Software to make it perform in accordance with the Documentation. If, after using commercially reasonable efforts, Dolphin is not able to replace or repair the Software, Licensee may terminate this Agreement upon written notice to Dolphin and Dolphin shall refund to Licensee the fees paid by Licensee for such non-conforming Software. The foregoing are Licensee's sole and exclusive remedies for breach of this warranty.

8.2 The warranty set forth in this Section 10 shall not apply if: (i) the Software has not been properly installed and has not been used at all times in accordance with the Documentation and on the Designated Equipment; (ii) Licensee (either itself or via a third party on its behalf) has modified the Software; or (iii) Licensee has combined the Software with other software or hardware not provided or authorized by Dolphin. 8.3 EXCEPT AS PROVIDED IN THIS SECTION 8 (WARRANTY), THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY BY DOLPHIN AND/OR ANY OF ITS LICENSORS OF ANY KIND. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, DOLPHIN DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES RELATING TO THE PRODUCTS, SERVICES AND DOCUMENTATION, INCLUDING BUT NOT LIMITED TO, WARRANTIES REGARDING THE USE OR THE RESULTS OF THE SOFTWARE WITH RESPECT TO ITS PERFORMANCE, ACCURACY, RELIABILITY OR OTHERWISE, OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. DOLPHIN DOES NOT WARRANT THAT THE PRODUCTS, DOCUMENTATION OR SERVICES WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO DOLPHIN AND/OR ANY OF ITS LICENSORS.

9 INDEMNIFICATION

9.1 Subject to the provisions of this Section 11, Dolphin shall, at its expense, defend or settle any claim or action brought against Licensee to the extent such claim or action is based on an allegation that the Software infringes any patent or copyright enforceable under applicable law of a third party and Dolphin shall pay damages and costs finally awarded against Licensee in such claim or action which are specifically attributable to such allegation. Dolphin will, at its expense, defend or settle any such claim or action and indemnify Licensee from damages awarded by the court to the third party claiming infringement or the settlement agreed to by Dolphin, provided that (i) Licensee has notified Dolphin promptly in writing of such claim or action, (ii) Licensee gives Dolphin sole and exclusive control of the defense thereof (and any negotiations for settlement or compromise thereof), and (iii) Licensee gives Dolphin relevant information and assistance to defend against or settle the claim.

9.2 If the Software becomes, or, in Dolphin’s opinion, is likely to become, the subject of an allegation of infringement, Dolphin may, at its option and expense: (a) procure the right to continue using the Software; (b) replace or modify the Software with Software of equivalent functionality; or (c) accept return of the Software, terminate this Agreement and the Licenses granted hereunder and refund the monies paid by Licensee therefore, less depreciation for use (calculated on a 5-year straight-line basis). THE FOREGOING STATES THE ENTIRE LIABILITY OF DOLPHIN AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

9.3 Dolphin will not indemnify Licensee under Section 9.1 or otherwise for any claim or action alleging infringement based upon: (a) any use of the Software outside the scope of use as set out in the relevant Documentation; (b) any use of the Software in combination with other products, software or material not supplied or authorized by Dolphin to the extent such claim relates to such combination; (c) use of other than a current release of the Software if such infringement would have been avoided by use of a current release, or (d) any alteration, modification or customization of the Software by any entity other than Dolphin.

10 LIMITATION OF LIABILITY

10.1 IN NO EVENT WILL DOLPHIN, ITS DIRECTORS, EMPLOYEES, LICENSORS OR AGENTS BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT, EVEN IF DOLPHIN AND/OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT AS APPLIED IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS WHOLLY PROHIBITED BY APPLICABLE LAW, THEN DOLPHIN SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE. IN NO EVENT SHALL DOLPHIN’S LIABILITY TO LICENSEE OR ANY PERSON EXCEED THE TOTAL FEES PAID BY LICENSEE FOR THE SOFTWARE GIVING RISE TO THE CLAIM OR, IN THE CASE OF SUPPORT SERVICES, THE TOTAL FEES PAID BY LICENSEE FOR THE SERVICES GIVING RISE TO THE CLAIM.

11 TERM AND TERMINATION

11.1 This Agreement shall have an initial term of two (2) years from the Effective Date. Thereafter, this Agreement shall renew for further one (1) year periods unless terminated by either party in accordance with the terms herein. Upon termination, except as stated in Section 11.3 below, all Software Licenses granted prior to termination shall continue in perpetuity in accordance with the terms of this Agreement and for the number and type of Authorized Users and Licensed Servers Licensed prior to termination.

11.2 Either party may forthwith terminate this Agreement if (a) the other party materially breaches this Agreement and such breach is not cured within thirty (30) days of written notice describing the breach; or if the other party becomes unable to pay its debts when due or enters into liquidation (except voluntary liquidation not involving insolvency for the purposes of a reconstruction or amalgamation) or has a receiver or examiner or a person in the nature of a receiver or examiner appointed to its undertaking or assets or enters into any arrangement with its creditors. No termination on the basis of this provision will entitle Licensee to a refund of any portion of the fees paid to Dolphin.

11.3 If Dolphin terminates the Agreement due to a material breach by Licensee of its obligations under the Agreement, or otherwise as specified in Section 11 (Indemnification) of this Agreement, Licensee agrees to forthwith discontinue any use of the Software, related Documentation, Confidential Information and derivative works or copies thereof. Licensee agrees to supply Dolphin with a certificate signed by an executive officer of Licensee verifying that this provision has been complied with and shall immediately return the Software and Documentation and copies thereof to Dolphin. Termination will not affect either party’s obligations regarding Confidential Information, payments, limitation of liability, license rights and restrictions and/or applicable law, and other clauses that, by their content or nature, are intended to survive. These provisions will survive termination of this Agreement.

12 GENERAL PROVISIONS

12.1 Licensee agrees to comply with all applicable export statutes and regulations and to not permit any third party to use the Software in violation of such export statutes and regulations. The Software is "commercial computer software" or "commercial computer software documentation." The United States Government's rights with respect to the Software are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. Because the Software is subject to United States export controls, Licensee shall not export or "re-export" (transfer) the Software unless Licensee has complied with all applicable U.S. export controls

12.2 If any provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties will in good faith agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, the invalid provision will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by applicable law.

12.3 This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions. The Vienna Convention on the International Sale of Goods of 11 April 1980 shall not be applicable to this Agreement.

12.4 This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding unless made by a written instrument signed by a duly authorized representative of each party. The headings and clauses of this Agreement appear for ease of reference only and shall not affect the interpretation or effect of this Agreement. It is expressly agreed that the terms of this Agreement and any Order Form shall supersede the terms in any purchase order of Licensee and no terms in such purchase order shall apply to the Software and related Technical Support and Maintenance Services ordered, regardless of any failure of Dolphin to object to such terms.

12.5 Nothing in this Agreement shall be deemed to create a partnership or the relationship of principal and agent or employer and employee between the parties.

12.6 This Agreement may not be assigned by either party without the written consent of the other party, except that Dolphin may assign its rights and obligations under this Agreement to the successor in interest or title to all or substantially all of that part of the business to which this Agreement relates.

12.7 All notices shall be sent to the respective address first noted above. Any notice, request, instruction, royalty report or other document to be given under this Agreement shall be in writing and shall be deemed given when mailed by certified or registered mail or public courier service, return receipt, postage prepaid. Any waiver of the provisions of this Agreement or of any of the rights of either party must be in made in writing by the waiving party to be effective. Failure or delay to enforce any such provisions of rights will not be construed as a waiver and will not affect the validity (in whole or in part) of this Agreement or prejudice such party's right to take subsequent action.

12.8 Dolphin will not be in breach of this Agreement if its performance is prevented or delayed for circumstances beyond its control, including but not limited to acts of God, inclement weather, flood, lightning or fire, strikes or other labor disputes or industrial action, act or omission of government or other competent authority, terrorism, war, riot, or civil commotion, unavailability of supply or power outage, hackers, viruses, disruption in transmission, or disruption in telecommunications services.  

SCHEDULE A TECHNICAL SUPPORT AND MAINTENANCE

1 DEFINITIONS

1.1 “Change Request" means a request by Licensee for a modification to the functionality of the Software to meet Licensee’s particular needs, but which is not related to an error or defect in the Software.

1.2 “Issue” means a reproducible defect or combination of defects in the Software that results in a failure of the Software to function substantially in accordance with the applicable Documentation, when used on the Designated Equipment and in accordance with Dolphin’s instructions provided in the supporting Documentation. A reproducible defect shall mean a defect that Licensee can reproduce and confirm using that version of the Software delivered by Dolphin to Licensee hereunder and using that input data which generated the defect as delivered by Dolphin to Licensee hereunder. Program errors exclude those defects caused by (a) the hardware, software or operating system on which Licensee operates the Software or by any other software (e.g. database software); (b) use of the Software other than on the Designated Equipment; (c) use of the Software not in accordance with Dolphin’s instructions; (e) failure to provide a suitable installation environment; (f) modification or alteration of the Software by persons other than Dolphin; (g) negligence of Licensee, accident, misuse or operator error; (i) any other cause which is not inherent in the Software.

1.3 “Minor Release” means the release of Software where, if the product version number is designated as x.y.z, the digit represented by “y” is changed to one or more digits higher. A Minor Release normally includes minor feature and functionality changes and enhancements.

1.4 “Major Release” means the release of Software where, if the product version number is designated as x.y.z, the digit represented by “x” is changed to one or more digits higher. A Major Release normally includes significant feature and functionality changes and enhancements.

1.5 “Point Release” means the release of Software where, if the product version number is designated as x.y.z, the digit represented by “z” is changed to one or more digits higher. A Point Release normally consists of bug fixes, error corrections and/or minor changes or enhancements.

1.6 “Response” consists of providing an acknowledgement of the issue or a request to aid in Verification.

1.7 “Support Term” means a twelve (12) month period contracted for by Licensee for the Technical Support and Maintenance Services.

1.8 “Verification” consists of providing an acknowledgement that the Issue requirements are clearly outlined and agreed and all problem-specific hardware and software requirements have been met e.g. the provision of a suitable test case.

1.9 “Working Day” means any day other than a Saturday, Sunday, or public holiday.

1.10 “Working Hours” means 9:00 am to 5:00 pm on Working Days in the licensee location time zone.

2 FEATURES

2.1 Dolphin (itself or through a Dolphin support partner as applicable) shall provide the following support and maintenance services to Licensee in relation to the Products. References to Dolphin in this Schedule shall apply to Dolphin’s support partner, where applicable.

2.2 Licensee shall have access to Dolphin’s Helpdesk for e-mail and telephone assistance with Issues during Working Hours on Working Days.

2.3 A Dolphin customer services representative may draft an operational guide together with Licensee as support commences. This document shall serve to establish mutually agreed processes and contact points in order to facilitate effective support and maintenance services and co-operation between the Licensee and Dolphin. In addition, meetings (phone conference) will be held regularly, in accordance with a mutually agreed timetable, to discuss the fulfillment of the Licensee’s and Dolphin’s responsibilities as outlined in this Schedule.

2.4 Dolphin shall provide Licensee with reasonable notice of all Software New Releases. Dolphin shall provide all New Releases free of charge in respect of Licensees who are current with support payments.

2.5 Version Support: Dolphin will support the then-current release of the Software and up to two prior releases as part of standard support and maintenance.

2.6 Support Services: Dolphin shall provide the support services outlined in Section 3 directly or via qualified remote support.

3 SUPPORT PRIORITISATION

3.1 Severity Classifications. Dolphin shall assign a mutually agreed priority to all Issues reported by Licensee. Based on the priority of a problem, Dolphin shall use all commercially reasonable efforts to respond to Issues in accordance with the terms set forth herein. The following Severity Classifications are distinguished: • Critical – a proven failure of the Software in a live Licensee environment. The Software is unusable, resulting in a critical impact on its operation. No immediate workaround is available; • High – the Software will operate but its operation is severely restricted. No immediate workaround is available; • Medium – Software or module failures that have been substantiated as an inconvenience to Authorized Users but which the Authorized User can avoid or detour The Software or Documentation contains incorrect logic, incorrect descriptions, or functional problems which Licensee is able to work around or where a temporary correction has been implemented; • Low – all other problems, which the Authorized User can avoid or detour, for which there is no urgency for a resolution.

3.2 Dolphin Response: Critical • Response: Within 4 business hours High • Response: Within 4 business hours Medium • Response: Next Working Day Low • Response: Next Working Day

3.3 Should licensee require extended coverage, shorter response times or onsite support, Dolphin shall provide this as Premium Support Service at fees that are negotiated on a case-by-case basis.

4 LICENSEE OBLIGATIONS

4.1 Dolphin’s provision of support and maintenance services to Licensee is conditional upon the proper fulfillment of the following responsibilities of Licensee: License will document and promptly report to Dolphin any Issues or malfunctions detected in the Software; Licensee shall provide Dolphin support personnel with appropriate level of access to the software. Licensee agrees to carry out all instructions for the rectification of such Issues or malfunctions within a reasonable time after these instructions have been received from Dolphin; Licensee will maintain a current backup copy of all Software and the data generated by it; Licensee agrees to test the Software, working in a test environment, prior to general roll-out; Where necessary, Licensee shall also provide Dolphin with dial-in access to an environment that allows them to observe the Issue; Licensee agrees to keep Dolphin informed as to any problems encountered with the Software and any resolutions arrived at for those problems (collectively, “Resolutions”). Licensee agrees that Dolphin shall have any and all right, title and interest in and to any Resolutions or suggested improvements relating to the Software, without the payment of any additional consideration therefore either to Licensee, its employees, or agents.

4.2 Licensee Contact Nominees: Licensee must register a primary technical contact and a support renewal billing contact on the Order Form. All technical enquiries and problem reports must be submitted to Dolphin by the named technical contact or a nominated alternative contact that has been previously identified to Dolphin. Licensee may change nominees by giving Dolphin written notice.


5 EXCLUSIONS

5.1 The support services provided herein are not available in respect of: • Change Requests (may be addressed by Professional Services, as agreed) • Use of the Software other than in accordance with the relevant Documentation and release notes; or • Any modification to the Software not performed by or on behalf of Dolphin, including any unapproved changes to configuration and/or scalability. Where Licensee performs (or has performed) significant configuration changes, a custom support contract may be required.

6 FEES AND PAYMENT

6.1 The fee for the support and maintenance services for the initial Support Term is set out on the applicable Order Form. Support and maintenance services fees for a contracted Support Term are non-cancellable and non-refundable. For any subsequent Support Term the fees therefore are due and payable thirty (30) days before the commencement of that specific Support Term.

6.2 Dolphin may modify the fee for support and maintenance Services for any Support Term. However, the annual increase of the fee for support and maintenance services for any subsequent Support Term will not be more than three (3) percent.

6.3 In case of late or incomplete payment of the support and maintenance fee, Dolphin has the right to postpone its obligations as specified under this Schedule until Licensee has properly fulfilled its payment obligations.

7 TERM, TERMINATION AND NON RENEWAL

7.1 Dolphin’s provision of support and maintenance Services to Licensee will commence on the effective date of the applicable Order Form and will continue for the first Support Term. Support and maintenance services will automatically renew for all available offerings at the end of the first Support Term and any subsequent Support Term unless Licensee has provided Dolphin with a written termination notice of its intention not to renew support and maintenance services at least thirty (30) days prior to the expiration of the then current Support Term. Dolphin may terminate support and maintenance services upon written notice if Licensee materially breaches the terms and conditions of this Schedule or the Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach.

7.2 Termination of support and maintenance services, or a failure to renew, will not affect the Software Licenses purchased by Licensee, unless otherwise set out in the Agreement.

7.3 If Licensee sends a written termination notice or does not renew support and maintenance services, and as a result does not receive support and maintenance services for a period of time (“Lapse Period”), Dolphin may thereafter renew support and maintenance services at Licensee’s request. In the event of such renewal, Licensee will pay maintenance fees in respect of the Lapse Period at the then current fees for support and maintenance services, plus a reinstatement fee (“Reinstatement Fee”) equal to twenty-five percent (25%) of the Reinstatement Fee.