Engineering Design Innovations, LLC

SOFTWARE MAINTENANCE/SUPPORT AGREEMENT

This Agreement is entered into as of the date of your license purchase, by and between Engineering Design Innovations, LLC, dba EDI, LLC, an Arizona limited liability company, with its principal offices at 270 East Hunt Highway, Suite 16-223, San Tan Valley, Arizona 85143 (“Service Provider”), and the company, person or entity executing this Agreement as the “Licensee” in the space provided below (“Licensee”):

RECITALS:

A. Service Provider is the manufacturer and retailer of ASE Civil Software (the “Software”).

B. Licensee has licensed the Software pursuant to the terms of Service Provider’s license agreement; and

C. Licensee desires to obtain, and Service Provider is willing to provide installation, maintenance, and technical support services for the Software, as more fully described below.

NOW, THEREFORE, the parties mutually agree as follows:

1. DEFINED TERMS. The following terms have the meanings set forth below whenever they are used in this Agreement:

(a) Documentation. “Documentation” means electronic on-line and hard-copy material, including user manuals, provided by Service Provider for the Software that relate to the functional, operational, or performance characteristics of the Software.

(b) Error. “Error” means any defect or condition inherent in the Software that causes the Software to fail to perform in accordance with the current Documentation provided by Service Provider.

(c) EULA. “EULA” means Service Provider’s Software End User License Agreement executed by Licensee to obtain a license to the Software (as defined below) and any written amendments and modifications to that Agreement that are binding on Licensee.

(d) Software. “Software” means: (1) the current release of the computer software licensed by Licensee from Service Provider under the EULA; (2) a new version of that computer software Service Provider has delivered to Licensee as an Upgrade or Enhancement; (3) the version of that computer software last released by Service Provider prior to the current released version. “Software”, however, will not include any version of software that Service Provider does not support.

(e) Support Services. “Support Services” refers to the services, other than training and services to be provided on a time-and-materials basis that Service Provider will provide to Licensee under this Agreement. Those services are: (1) providing answers to questions regarding the Software and its use via electronic mail; (2) correcting a properly reported Error by providing Licensee with a CD-ROM containing the software patches, routines, modules or other programs needed to correct that Error.

(f) Upgrades and Enhancements. “Upgrades and Enhancements” means any and all new versions, improvements, modifications, migrations, upgrades, updates, fixes, and additions to the Software that Service Provider commercially releases to its end users generally during the term of this Agreement to correct deficiencies or enhance the capabilities of the Software; provided, however, that the obligation to provide upgrades and enhancements will not include new, separate product offerings, new modules, re-platformed Software, or new functionality.

2. MAINTENANCE AND SUPPORT SERVICES. Service Provider will:

(a) Generally. Provide Support Services.

(b) Initial installation. Upon purchase of the Software license(s) from Service Provider, provide Licensee with the services of a certified software trainer at a rate of $200.00 per hour, with a minimum purchase of two hours. Licensee will be responsible for all travel costs for the trainer. If Licensee orders and pays for more than 3 licenses to be installed at a single location and as part of a single transaction, Service Provider will provide the services of a certified software trainer and installer for one and one-half days at no additional charge, but Licensee will still be responsible for travel costs. One half-day will be devoted to the installation of the software at that location of the Licensee, and one day will be devoted to training. Licensee must schedule the training services within 30 days of the effective date of the EULA.

(c) Improper Maintenance or Use. Service Provider is not responsible for providing, or obligated to provide, Maintenance and Support Services or Upgrades and Enhancements under this Agreement if: (i) the Software has been altered, revised, changed, enhanced or modified in any manner that was not authorized in writing in advance by Service Provider; (ii) the Error has been previously corrected by Service Provider; (iii) the Error or problems have been caused by errors, defects, problems, alterations, revisions, changes, enhancements or modifications in the Licensee’s operating system, third-party software (other than third-party software bundled with the Software by Service Provider), hardware or any system or networking utilized by Licensee; (iv) the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident or neglect; or (v) any party other than Service Provider has provided any services in the nature of maintenance and support services to Licensee with respect to the Software.

(d) Limitation on Services Available. Support and Maintenance Services under this Agreement do not include: (i) engineering or design skills training; (ii) setup and operation of other application software, including but not limited to spreadsheets, word processors and special utilities like PC Tools, Norton, WinZip, etc.; (iii) detailed consultation on backup procedures and disaster planning; (iv) setup and maintenance of Licensee’s operating system (e.g., Windows XP/7/8); (v) hardware and network selection, configuration, installation, and maintenance; (vi) installing and configuring Anti-Virus Software; (vii) extensive ASE Civil Software training, other than as described above; and (viii) repair of corruption in Licensee’s data or program files as a result of operator or environmental error. The time spent evaluating and correcting problems in these files is chargeable, unless it is determined by Service Provider that the corruption was caused by a program error.

3. UPGRADES AND ENHANCEMENTS.

(a) Obligation to Provide Upgrades and Enhancements. In accordance with Service Provider’s then current policies, Service Provider will timely provide to Licensee all Upgrades and Enhancements to the Software released by Service Provider during the term of this Agreement. Licensee acknowledges and agrees that Service Provider has the right, at any time, to change: (1) the specifications and operating characteristics of the Software and (2) Service Provider’s policies respecting Upgrades and Enhancements and their release to end users. Any Upgrades and Enhancements to the Software and Documentation are proprietary to Service Provider, are the sole and exclusive property of Service Provider, and are subject to all the restrictions, limitations and protections of the EULA. All rights to patents, copyrights, trademarks, other intellectual property rights, applications for those rights and trade secrets in the Software and Documentation and any Upgrades and Enhancements are the exclusive property of Service Provider.

(b) Completion of Upgrade. Service Provider’s obligation to provide the Upgrade ends after Service Provider delivers media, regardless of delivery method, to Licensee containing the Upgrade given. Service Provider’s services, including the correction of Errors occurring after its obligation to complete the Upgrade has ended, will be part of its Maintenance and Support Services described in Section 2 and its sub-sections.

4. LICENSEE’S RESPONSIBILITIES.

(a) Operation of the Software. Licensee acknowledges and agrees that it is solely responsible for the day-to-day operation, supervision, management and control of the Software, including, but not limited to, providing training for its personnel, instituting appropriate security procedures and implementing reasonable procedures to examine and verify all output before use. In addition, Licensee is solely responsible for its data, and for maintaining suitable backups of the data and database to prevent data loss if hardware or software malfunctions. Service Provider has no responsibility or liability for Licensee’s selection or use of the Software or any hardware, third-party software, or systems.

(b) Licensee’s Implementation of Error Corrections and Upgrades and Enhancements. To maintain the integrity and proper operation of the Software, Licensee agrees to implement all Error corrections and Upgrades and Enhancements, in the manner instructed by Service Provider. Licensee’s failure to properly implement any Error corrections or Upgrades and Enhancements relieves Service Provider of any responsibility or liability for any failure or malfunction of the Software, as modified by a subsequent Error correction or Upgrade and Enhancement. In no event will Licensee be relieved of the responsibility for the payment of fees and charges otherwise properly invoiced during the term hereof.

(c) Copyright and Confidentiality. Licensee agrees that any software created and provided to Licensee by Service Provider is the property of Service Provider. Service Provider retains all rights to copyright and any other intellectual property rights with respect to that software. Licensee further agrees to maintain the confidentiality and not to disclose any of the source code, object code, or documentation of that software to anyone and not to use any of that software for any purpose other than operating the Software modules provided under the EULA.

5. FEES AND PAYMENTS.

(a) Annual Maintenance Fees. Licensee will pay service provider an annual maintenance fee of $800 for each license of ASE Civil Design Software installed on a computer and utilizing an enterprise license file (“Client.vlx”) compiled specifically for use by the Licensee. LICENSEE MUST PURCHASE MAINTENANCE UNDER THIS AGREEMENT FOR EACH INDIVIDUAL LICENSE OF THE SOFTWARE that it obtains from Service Provider and those licenses must be obtained by means of the EULA. The initial fee is due at the same time the fee for the specified quantity of licenses purchased by means of the EULA is due. The fee will cover Support Service and training described previously in this Agreement for one year from the date of the EULA. The annual fee for the years following the initial year are due on, or before, the 30th day preceding the anniversary of the EULA or on or before the date specified on any invoice provided to the Licensee by the Service Provider. Service Provider reserves its right to change the cost of the annual maintenance fee at any time it deems necessary. The parties mutually concur that this Agreement covers each license purchase of ASE Civil Design Software

(b) Time and Materials Charges. In addition to the annual fee due under Section 5(a) of this Agreement, Licensee agrees to pay Service Provider’s standard time-and-materials charges payable by end users who have not purchased a Software Maintenance/Support Agreement from Service Provider for services described in this Section 5(b). Licensee will pay time-and-materials charges for services provided in response to Licensee’s request for: (i) training beyond that provided during the first year following the date of the EULA; (ii) services that Service Provider is not obligated to provide under this Agreement, but which Service Provider agrees to provide in a signed writing, notwithstanding the provisions of this Agreement and particularly Section 2(c).

(d) Taxes and Governmental Charges. Licensee will also pay all taxes and governmental charges, however designated, that are levied or imposed by reason of the transactions described in this Agreement, including, but not limited to, sales and use taxes, excise taxes, and customs duties or charges, but Licensee will not be required to pay Service Provider’s franchise taxes or any taxes on Service Provider’s income.

6. REMEDIES. All past due amounts bear interest at the rate of one and one-half percent (1.5%) per month (or, if lower, the maximum rate lawfully chargeable) from the date due through the date that the past due amounts and accrued interest are paid in full. If Licensee defaults in paying any amounts due, and that default continues for at least 30 calendar days after the due date, Service Provider has the right to cease to provide any Maintenance and Support Services and Upgrades and Enhancements to Licensee unless and until the default, and any and all other defaults by Licensee under this Agreement, are cured. This remedy is in addition to any other remedies that Service Provider has in law or in equity.

7. LIMITED WARRANTY.

(a) Limited Warranty of Services. Service Provider warrants that the Maintenance and Support Services it provides will be performed in a good and workmanlike manner and substantially according to industry standards. In order to assert any claim that any Maintenance and Support Services fail to conform to this limited warranty, Licensee must notify Service Provider in writing of its claim within 90 days after the date the alleged nonconforming Services are completed. If, after timely notice from Licensee, the Maintenance and Support Services in question are determined not to conform to this limited warranty, Service Provider’s sole obligation, and Licensee’s sole remedy, is for Service Provider to use commercially reasonable efforts to re-perform the nonconforming Services in an attempt to correct the nonconformity. If Service Provider is unable to correct the nonconformity after a reasonable period of time, Licensee’s sole and exclusive remedy is termination of this Agreement in accordance with Section 9(b)(3)(B).

(b) No Warranty of Upgrades and Enhancements. The EULA governs any limited warranty or disclaimers relating to the Software itself and Upgrades and Enhancements of the Software provided to Licensee under this Agreement; no warranty is given under this Agreement with respect to Upgrades and Enhancements. Service Provider’s warranties in this Agreement relate solely to services provided under this Agreement.

(c) DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7(a), SERVICE PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING ANY MAINTENANCE SERVICES OR SUPPORT SERVICES, ANY SOFTWARE OR ANY UPGRADES AND ENHANCEMENTS PROVIDED UNDER THIS AGREEMENT. SERVICE PROVIDER DISCLAIMS AND EXCLUDES ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SERVICE PROVIDER DOES NOT WARRANT THAT ANY MAINTENANCE SERVICES AND SUPPORT SERVICES, SOFTWARE OR UPGRADES AND ENHANCEMENTS PROVIDED WILL SATISFY LICENSEE’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE OR UPGRADES AND ENHANCEMENTS WILL BE UNINTERRUPTED. SERVICE PROVIDER DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD-PARTY HARDWARE, FIRMWARE, SOFTWARE, OR SERVICES. THE ABOVE DISCLAIMER MAY NOT APPLY TO LICENSEE BECAUSE SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES. IN THOSE JURISDICTIONS, THE DISCLAIMER WILL APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.

8. LIMITATIONS OF LIABILITY. SERVICE PROVIDER'S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY LICENSEE TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE CURRENT TERM OF THIS AGREEMENT. SERVICE PROVIDER WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION DAMAGES OR EXPENSES, THE COSTS OF SUBSTITUTE SOFTWARE OR SERVICES, LOSSES RESULTING FROM ERASURE, DAMAGE, DESTRUCtion OR OTHER LOSS OF FILES, DATA OR PROGRAMS OR THE COST OF RECOVERING THAT INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR LOSSES. the aboVE LIMITATIONS MAY NOT APPLY TO YOU BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF YOUR JURISDICTION IS ONE OF THOSE JURISDICTIONS, THE LIMITATION APPLIES TO THE FULLEST EXTENT ALLOWED BY LAW.

9. TERM, RENEWAL AND TERMINATION.

(a) Term. Subject to the early termination provisions of Section 9(b), the initial term of this Agreement (the “Initial Term”) commences on the date the Licensee executes the EULA, and expires on the first anniversary of that date; except as otherwise provided below, the term of this Agreement will be renewed: through the next anniversary of the EULA provided that Licensee pays the annual fee on, or before, the 30^th day preceding that anniversary.

(b) Early Termination.

(1) Automatic. This Agreement terminates automatically, without any other or further action by either party, immediately upon any termination of the EULA.

(2) By Service Provider For Cause. Service Provider may give written notice to Licensee of any breach by Licensee or other failure by Licensee to comply with any material term or condition of the EULA or this Agreement, specifying the nature of the breach or noncompliance and requiring Licensee to cure the breach or noncompliance. In addition to any other rights it may have under this Agreement or at law or in equity, Service Provider may terminate this Agreement if: (A) in the case of non-payment, any breach of Section 1 of the EULA or any breach of Section 4 of this Agreement, Licensee has not cured the breach or noncompliance within 15 calendar days after receipt of that written notice; or (B) in the case of any other breach or noncompliance Licensee has not cured the breach or noncompliance within 30 business days after receipt of that written notice.

(3) By Licensee. Licensee may elect not to renew this Agreement at the end of the then-current term of this Agreement by written notice to Service Provider 60 days before the end of the then-current term of this Agreement.

(1) Payments. Notwithstanding any termination of this Agreement, Licensee must pay Service Provider for: (A) all Maintenance Services and Support Services provided on a time and materials basis on or prior to the effective date of termination; (B) all Annual Maintenance Fees due with respect to any period commencing prior to the effective date of termination; and (C) all incidental costs and expenses incurred by Service Provider at any time on or prior to the effective date of termination. All those payments will be made in accordance with Section 5 of this Agreement, which survive any such termination for these purposes.

(2) Survival of Obligations. The termination of this Agreement will not discharge or otherwise affect any obligations of either party existing under the Agreement before, or at the time of termination. The provisions of this Agreement which by their nature extend beyond the termination of the Agreement will survive and remain in effect until all obligations are satisfied, including, but not limited to, Section 3 (as it relates to title and ownership), Section 4(c), Section 5(a), (b), (c), and (d), Section 7(c), Section 8, Section 9, Section 10 and Section 11. No action arising out of this Agreement regardless of the form of action, may be brought by Licensee more than one year after the date the action accrued.

10. FORCE MAJEURE. No failure, delay, or default in performance of any obligation of a party to this Agreement (except the payment of money) is a default or breach to the extent that the failure to perform, delay or default arises out of a cause, existing or future, beyond the control of the party (“Force Majeure”). (A Force Majeure includes, but is not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; viruses; acts of terrorism; or the act, negligence or default of the other party) but only to the extent the delay does not result from the negligence or willful misconduct of the party otherwise chargeable with failure, delay or default. Either party desiring to rely upon Force Majeure to excuse failure, default, or delay in performance will, when the cause arises, give other party written or electronic mail notice of the facts that constitute Force Majeure; and, when the Force Majeure ceases to exist, give prompt notice of that cessation to the other party. This Section 10 shall in no way limits the right of either party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a party under this Agreement is postponed or extended pursuant to this Section 10 for longer than 90 calendar days, the other party, by written notice given during the postponement or extension, and at least 30 days prior to the effective date of termination, may terminate this Agreement.

11. NOTICES. All notices required or permitted by this Agreement must be in writing or transmitted by electronic mail. A notice that is delivered by hand-delivery will be effective on receipt. A notice sent by electronic mail will be effective on receipt but only if the electronic-mail program by which it is sent does not generate a failed-delivery message within three hours after dispatch of the electronic mail. A notice sent by mail, to be effective must be sent by registered or certified United States mail, return-receipt requested. A notice sent by registered or certified mail is effective three days after it is deposited in the mail, properly addressed, with proper postage. Notices must be addressed to the address appearing below the parties’ signatures at the end of this Agreement or to another address identified if a notice is sent in accordance with this section after execution of this Agreement. All communications and notices are effective upon delivery in person or by courier, or five days after being deposited in the United States certified mail, return receipt requested. Any party may change his, her, or its address by giving notice in writing, stating his, her or its new address to all of the other parties in the foregoing manner.

12. GENERAL PROVISIONS.

(a) Choice of Law. The enforcement, performance, discharge, lack of performance, and formation of this Agreement is governed by, and construed and enforced in accordance with, the laws of the State of Arizona regardless of any conflict-of-law rules to the contrary.

(b) Jurisdiction. Any action, suit, or proceeding arising out of this Agreement must be brought and maintained in one of the federal or state courts of general jurisdiction located in Maricopa County, Arizona but the prevailing party may enforce any judgment rendered by one of those courts in any court that has personal jurisdiction over the judgment debtor.

(c) Interpretation. All captions, headings or titles in the paragraphs or sections of this Agreement are inserted for convenience of reference only and are not a part of this Agreement or a limitation of the scope of the particular paragraph or section to which they apply. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender, where appropriate, include all other genders and the singular shall include the plural and vice versa.

(d) Waiver. No waiver of any right or remedy on one occasion by either party is a waiver of that right or remedy on any other occasion.

(e) Integration. This Agreement including its exhibits and attachments, if any, contains the entire understanding and agreement between the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements and understandings, express or implied, oral or written, among the parties with respect to such subject matter. The express terms of this Agreement control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof. This Agreement may only be modified by a written document signed by duly authorized representatives of the parties.

(f) Binding Agreement and Assignment. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Service Provider may assign this Agreement or its rights or delegate its obligations under this Agreement, in whole or in part, to any other person or entity. Licensee may not assign this Agreement or its rights or delegate its obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of Service Provider. Any assignment made without compliance with the provisions of this Section 12(f) is null and void and of no force or effect.

(g) Severability. Each provision of this Agreement is intended to be severable. If any provision is declared by a court of competent jurisdiction to be illegal, unenforceable, or invalid for any reason whatsoever, the illegality, unenforceability, or invalidity will not affect the validity of the remainder of this Agreement.

(h) Independent Contractor. The parties acknowledge that Service Provider is an independent contractor and that it will be responsible for its obligations as employer for those individuals providing the Maintenance Service and Support Services.

(i) Export. Licensee agrees to comply fully with all relevant regulations of the U.S. Department of Commerce and all U.S. export control laws, including but not limited to the U.S. Export Administration Act, to assure that the Upgrades and Enhancements are not exported in violation of United States law.

(j) U.S. Government Restricted Rights. The Software and Upgrades and Enhancements are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in NASA FAR Supplement 1852.227-86 and the Commercial Computer Software Restricted Rights FAR 52.277-19(c)(1) and (2), as applicable. Manufacturer is EDI, 270 East Hunt Highway, Suite 16-223, San Tan Valley, Arizona 85134.

(k) Injunctive Relief. The parties to this Agreement recognize that a remedy at law for a breach of the provisions of this Agreement relating to confidential information and intellectual property rights will not be adequate for Service Provider’s protection and, accordingly, Service Provider has the right to obtain, in addition to any other relief and remedies available to it, specific performance or injunctive relief to enforce the provisions of this Agreement.

BY PURCHASING A LICENSE, BOTH PARTIES EXECUTE THE TERMS OF THIS AGREEMENT FOR ONE YEAR FROM THE PURCHASE DATE SHOWN ON THE CLIENT’S INVOICE RECEIPT.

	Licensee/Client	Software Vendor
Business Name	See Invoice	Engineering Design Innovations, LLC
Business Address (1)	See Invoice	270 East Hunt Highway
Business Address (2)	See Invoice	Suite 16-223
City	See Invoice	San Tan Valley
State	See Invoice	Arizona
ZIP	See Invoice	85143
Email	See Invoice	dev@asecivil.net
Authorized Representative Name	See Invoice	Nick Merchant
Title	See Invoice	Architect/Developer

Date of Execution

See Invoice