Master Service Agreement

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF CALIBER SOFTWARE SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

IF CUSTOMER REGISTERS FOR A FREE TRIAL OF CALIBER SOFTWARE OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.

BY ACCEPTING THIS AGREEMENT BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITYTO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

Caliber Software’s direct competitors are prohibited from accessing the Services, except with Caliber Software’s prior written consent.

This Agreement was last updated on February 14, 2020. It is effective between Customer and Caliber Software as of the date of the Customer’s accepting this Agreement.

1. DEFINITIONS

1.1. “Software” means computer software products distributed by Caliber in object code form.

1.2. “License” shall have the meaning set forth in Paragraph 2.1.

1.3. “User” means a person established within Software for the purpose of using Software. Specifically, each person that is created in the User Administration section of Software is considered a User by this definition.

1.4. “Door” means a single dwelling or unit within Software.

1.5. “Client” means an individual client record designated in the Software. This can also be described as an HOA, PUD, Community or Association.

1.6. “Plat Map” means a pictorial display of a grouping of dwellings.

1.7. “Documentation” means manuals and guides, in printed or electronic form, embedded within, or separate from Software, for the purpose of assisting Users with the operation of Software.

1.8. “Services” means offerings provided by Caliber, its assigns, designated third parties, or contractors in support of or related to Software. A complete listing of available services can be found on Caliber’s website (www.calibersoftware.com).

1.9. “Upgrade” means a subsequent release of a significant modification to Software resulting in an increase in the major and minor components of the version number. For example, a change in version number from 3.1 to 3.2 is defined as an Upgrade. Upgrade does not include derivative or related software products that Caliber may in the future create and license separately.

1.10. “Update” means a subsequent release of a modification to Software that does not result in an increase in the major and minor components of the version number. For example, a change in version number from 3.1.1 to 3.1.2 is defined as an Update.

2. Software License

2.1 Caliber grants to Licensee a non-exclusive license in perpetuity to use the Software specified in the Order Form, provided such use is:

(A) solely for the operations of Licensee,

(B) within a single instance of the Software database,

(D) in accordance with Caliber’s End User License Agreement (EULA), herein as Appendix A, and

(E) in accordance with the other provisions of this section.

2.2 License fee and limitations are defined in the Order Form.

2.3 Licensee shall not resell, sublicense, lease, or rent Software to any person or entity. Third parties, including contractors hired by Licensee, desiring to integrate with Software shall be referred to Caliber for appropriate licensing and software access.

2.4 Licensee shall not assign Agreement or transfer Software without the prior expressed written consent of Caliber which consent shall not be unreasonably withheld.

2.5 Caliber grants Licensee the right to use Documentation for internal purposes only. Documentation is considered to be confidential and reveals inner workings of Software, which is proprietary to Caliber, and therefore shall be regarded and maintained by Licensee in a manner consistent with the regard and maintenance of its own confidential information.

2.6 Software contains licensing and authentication coding that help to ensure compliance of use within license limitations and payment of license fees. Caliber maintains the right, and Licensee hereby grants to Caliber, to periodically verify such compliance through electronic means, which includes the transmission of Licensee usage data to Caliber, and to temporarily or permanently disable Software for non-compliance of the terms and conditions of this Agreement and/or non-payment of license fees.

(A) In such cases where Caliber disables Software for non-payment of license fees, Licensee remains obligated to pay remaining balance owed, and once paid, Caliber shall re-enable Software.

(B) In such cases where Caliber disables Software for exceeding authorized User and/or Door limitations, Caliber shall re-enable Software once Licensee has either reduced Users and/or Door counts to within the authorized limits, or Licensee has paid for additional licenses necessary to increase their authorized limits appropriately.

2.7 Caliber retains all rights, copyright, patents, and other proprietary rights and ownership of Software, Documentation, and any and all Upgrades and Updates. Licensee has no rights, expressed or implied, to Software except the right to use software as specified in this Agreement.

3. SERVICES

3.1 The services to be provided to Licensee in conjunction with this Agreement are defined in the Order Form.

3.2 The Caliber Support and Maintenance Agreement is defined as Appendix B to this Agreement and shall be executed by Caliber and Licensee as a separate agreement governing the terms and conditions of the Support and Maintenance service.

3.3 Caliber shall be compensated for services at a negotiated fixed price, or at the current hourly, daily or a negotiated rate for such services defined at the time such services are requested by Licensee. Payment for services is due upon Licensee’s receipt of Caliber invoice after completion of such services.

3.4 As a general practice, Caliber does not customize its Software for any one Licensee. Caliber does offer certain services which enable Licensees to integrate Software with specific Licensee systems, or for the development of custom reports. In the performance of such services, Caliber may from time to time create custom software utilities or other coding to enable such integration or reporting. The rendering of such services is not considered to be work for hire and Caliber reserves and retains all rights, including all proprietary rights, and ownership of such software code. Caliber also retains the right, without royalties or other consideration, to reuse such customizations for other Licensees. Unless specified in a separate, written agreement, Licensee shall have no rights, other than usage rights, to any such customizations.

3.5 When services are requested by Licensee, Caliber shall be reimbursed by Licensee for any actual travel and other out-of-pocket expenses incurred in the performance of such services.

3.6 “Caliber Portal” is a separate Caliber software module that integrates with Caliber. It is used to provide a service to board members, homeowners, etc. with access to certain information contained in Caliber, such as account balances, compliance, maintenance and delinquency issues, as well as to provide a means for owners to update their account information and make payments online. Caliber Portal is entirely optional. Caliber charges separately for the use of Caliber Portal at the current rate of $25.00 per “Client” (as defined in the Caliber software) per month. The pricing specified in the Order Form does not include fees associated with Caliber Portal. You will be billed separately on a periodic basis at the then current rate for use of Caliber Portal.

4. Term and Termination

4.1 This Agreement and the Software licenses granted herein shall continue perpetually unless otherwise terminated in accordance with this Section IV. The initial term of this agreement is 3 months and is auto renewable.

4.2 Licensee may terminate this Agreement at any time. Termination by Licensee does not relieve Licensee of its obligation to pay for Software licenses and services rendered as part of this Agreement as further defined in Paragraph 4.4.

4.3 Caliber may terminate this Agreement and any and all Software licenses after thirty (30) days from written notice of termination due to one or more material breaches of this Agreement by Licensee and fails to correct such breach or breaches within the allotted notification period. The foregoing notwithstanding, Caliber may terminate immediately upon Licensee breach of the provisions of Section II.

4.4 Termination of this Agreement or Software licenses shall not limit Caliber from pursuing other remedies available to it, including injunctive relief. Termination for any reason does not relieve Licensee of its obligation to pay for Software licenses, services rendered as part of this Agreement, or other fees which may have accrued or are otherwise owed by Licensee. Caliber’s rights defined in this Agreement shall survive termination of this Agreement.

4.5 Upon termination of this Agreement, for any reason, Licensee shall cease using Software and shall return or destroy all copies of Software and Documentation, and shall certify to Caliber, in writing, upon Caliber’s request that all copies have been returned or destroyed.

5. Indemnification

5.1 Caliber will defend and indemnify Licensee against any third-party claims that Software infringes any copyright, patent or other intellectual property right, provided that:

(A) Licensee notifies Caliber in writing within fifteen (15) days of such claim,

(B) Caliber retains sole control of the defense and any and all related settlement negotiations,

(C) Licensee provides Caliber with assistance, information and authority necessary for Caliber to perform its obligations under this Section V, and

(D) Claim of infringement is not based on the use of a superseded or altered release of Software, if infringement would have been avoided by Licensee’s use of a current, unaltered release of Software.

5.2 In the event Software is held or believed by Caliber to infringe upon third party rights, Caliber shall have the option, at its own discretion and expense, to:

(A) Obtain a third-party license to continue using Software, or

(B) Modify the Software so that it no longer infringes.

5.3 In the event of infringement and Caliber’s determination, at its own discretion, that remedies proffered in Paragraphs 5.2 (A) and 5.2 (B) are not commercially reasonable, Caliber may terminate the licenses for the infringing Software and refund to Licensee the license fees, maintenance and support service fees paid, prorated over a three (3) year useful life.

5.4 In the event the modification contemplated by Section 5.2(B) substantially alters the Software’s usefulness, as determined by Licensee in its sole discretion, Licensee shall have the right to terminate this Agreement and Caliber shall refund to Licensee any license, maintenance and support service prorated on a three (3) year proration.

5.5 This Section V states Caliber’s entire liability and Licensee’s entire remedy for infringement.

6. Warranties

6.1 Caliber warrants for a period of ninety (90) days from the Effective Date that the Software will materially perform the functions described in the Documentation.

6.2 Caliber warrants for a period of ninety (90) days from date of service that Services provided in conjunction with this agreement will be performed within generally accepted industry standards.

6.3 THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The above warranties are conditioned upon Licensee notifying Caliber of any defect within the warranty period.

6.4 Caliber does not warrant that the Software will operate without interruption or errors.

6.5 In the event of a breach of the warranty specified in Paragraph 6.1, and upon written notice by Licensee to Caliber of such breach, Caliber shall be liable to correct the Software errors that cause the breach within thirty (30) days from receipt of such notice, provided notice is received within the specified warranty period. If Caliber is unable to correct the breach, the Licensee shall be entitled to terminate the Software license and recover the fees paid to Caliber for the Software and maintenance and support services.

6.6 In the event of a breach of the warranty specified in Paragraph 6.2, and upon written notice by Licensee to Caliber of such breach, Caliber shall be liable to perform the additional services necessary, or to re-perform the services in order to correct the breach within thirty (30) days from receipt of such notice, provided notice is received within the specified warranty period.

6.7 In connection with this Agreement, and from time to time, Caliber may make certain recommendations to Licensee regarding hardware, third party products, and other services, and is based on the general use of the Software. The decision by Licensee to acquire and use hardware and products or services recommended by Caliber is done so at Licensee’s sole risk, even if Caliber assists in any manner with their acquisition or use. CALIBER IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS LIABILITY FOR, PERFORMANCE OR QUALITY OF THIRD-PARTY PRODUCTS OR THEIR SUPPLIERS, AND THEIR FAILURE WILL NOT AFFECT LICENSEE’S OBLIGATIONS TO CALIBER. Caliber shall not be a party to, and shall not be liable for any remedies, for claims made by Licensee in connection with hardware, third party products and other services.

7. Payments

7.1 All payments to Caliber are to be made in U.S. dollars. Payment can be accepted by check, credit card or echeck. There may be fees for using any online payment option which are the responsibility of the Licensee to pay at the time of payment.

7.2 All fees for Software licenses and Services shall be due upon the Effective Date of this Agreement however a grace period of twenty-one (21) days from the invoice date will be given without incurring late charges. Any amounts payable hereunder which remain unpaid after this grace period shall be subject to a late charge equal to 1.5% or $15.00, whichever is greater, per month from the Effective Date until such amount is paid.

7.3 The fees shown on the Order Form do not include taxes. If Caliber is required to pay sales, use, property, value-added, or other taxes, based on Software licenses and/or Services provided under this Agreement, or upon Licensee’s use of Software or Services, then such taxes shall be billed to and paid by Licensee. This provision for taxes does not apply to taxes based on Caliber’s income.

8. Confidentiality

8.1 By virtue of this Agreement, and in connection with meetings, conversations, correspondence or other disclosures that are in the form of verbal, written, graphic, digital, or electronic information, coding or objects, and which are clearly designated, labeled or marked as confidential, that will occur between employees and other representatives of Caliber and the employees and other representatives of the Licensee, Caliber and the Licensee understand that each will or may be receiving material, proprietary, confidential and/or non-public information about the other party, which will or may include, among other things, all or part of its current business, its future business plans, and its products and other technology, which will include, among other things, its operating procedures, products, services and operating techniques, “know how”, secret processes, development plans, software designs and descriptions, trade secrets, pricing, revenue, profits, sales and Licensee information, plans for present and future development, and other proprietary information which has not been made available to the public.

8.2 With regards to such confidential information, Caliber and Licensee agree as follows:

(A) This information is being provided and received by the parties and their representatives solely for the purpose of assisting them in their evaluation of the provided material, and/or in order to allow them to effectively interact and work in a cooperative way with the other party and its employees and representatives;

(B) That Caliber and Licensee assume full responsibility to see that this information is only used for these specific purposes by itself and by all of its employees and representatives;

(C) That neither Caliber nor Licensee, or any of their respective employees or representatives, will directly or indirectly communicate or discuss any part of this information with any other entities or individuals that are not parties or signatories to this Agreement, without first obtaining the express written permission of the other party;

(D) That neither party will use any part of this information that is covered by this Agreement, either directly or indirectly, for any purpose, whether commercial or non-commercial, other than that which is stated above, nor will that party assist, facilitate or permit others to use this information for any purposes whatsoever;

8.3 Nothing received by either party shall be construed as being confidential or proprietary information which is now available or becomes available to the public without breach of this Agreement, is released in writing by the disclosing party, is lawfully obtained from a third party or parties without confidential obligation, is known to the receiving party prior to such disclosure or is at any time developed by the receiving party independently of any such disclosure or disclosures from the disclosing party.

8.4 Notwithstanding the provisions of 8.3 above, this Agreement and Documentation are both considered to be confidential information and shall not be shared with a third party or parties, unless agreed to in writing first by Caliber and Licensee.

8.5 Neither party shall export, directly or indirectly, any confidential or proprietary information that is covered by this Agreement in the form of technical data acquired from the disclosing party under this Agreement to any country for which the U.S. Government or any agency thereof at the date of export requires an export license or other Governmental approval, without first obtaining such license or approval.

8.6 Both Caliber and Licensee understand that its willingness to have this Agreement executed on its behalf, and to agree for itself and for its employees and representatives, to be bound by its provisions is a prior requirement of the willingness of the other party to communicate with respect to these matters, and to provide access to the confidential and proprietary information that is covered by this Agreement.

9. General Terms

9.1 Governing Law. This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Arizona.

9.2 Jurisdiction. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Maricopa County, State of Arizona. Caliber and Licensee agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

9.3 Notice. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given when personally delivered, within twenty four (24) hours of deposit with a recognized overnight courier or on the third day after being mailed by first class mail to the address delineated on the signature page of this Agreement. To expedite order processing, Licensee agrees that Caliber may treat documents faxed by Licensee to Caliber as original documents, nevertheless, either party may require the other to exchange original signed documents.

9.4 Limitation of Liability. IN NO EVENT SHALL CALIBER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF CALIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CALIBER’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM LICENSEE’S USE OF THE SOFTWARE OR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE RELEVANT SOFTWARE OR SERVICES GIVING RISE TO THE LIABILITY. LICENSEE HEREBY INDEMNIFIES, HOLDS HARMLESS AND AGREES TO DEFEND CALIBER FOR ANY SUCH THIRD-PARTY CLAIMS. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN CALIBER AND LICENSEE. CALIBER’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

9.5 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.

9.6 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for non-payment, breach of Caliber’s proprietary rights in the Software or breach of confidentiality, no action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of action has accrued.

9.7 Export Administration. Licensee agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to assure that neither the Software nor any direct product thereof are:

(A) Exported directly or indirectly, in violation of Export Laws, or

(B) Are intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.

9.8 Software Escrow. So long as Licensee is not in default under the terms and conditions of this Agreement, and after Licensee has met all obligations related to the establishment of an escrow account with the Escrow Agent, Caliber will provide a copy of source code and Documentation necessary to support the Software in an escrow account for the term of this Agreement. In the event Caliber ceases to be in the business of supporting the Software, unless a newer version of Software is offered and supported, and no successor or alternative entity is capable of providing requisite support, then Licensee may seek release of the escrowed materials relating to the unsupported software from the Escrow Agent. Licensee shall be responsible for and pay all fees relating to the maintenance of the source code escrow as well as such fees as may be required to cover costs of reproduction and distribution of the escrowed materials being released and administrative fees. All escrowed materials furnished to Licensee pursuant to this provision shall be considered licensed subject to the terms and conditions of this Agreement and shall be used solely to maintain the Software and for no other purpose. In the event Caliber renews its support capability, Licensee shall promptly return to Caliber all released materials, including all copies thereof and all materials relating to the released materials, in whatever form or media, and shall certify to Caliber that is has none of the released materials in its possession or control. This option is not available to customers using the ASP subscription service.

9.9 Force Majeure. Caliber shall have no liability for delays, failure in performance or damages due to fire, explosion, lightning, power surges or failures, strikes or labor disputes, water, acts of God, the elements, war, civil disturbances, acts of civil or military authorities, inability to secure materials, transportation facilities, fuel or energy shortages, acts or omissions of communications carriers, unauthorized use of the Software, or other causes beyond Caliber’s control whether or not similar to the foregoing.

9.10 Entire Agreement. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements for representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. No other act, document, or usage shall be deemed to amend or modify this Agreement.

APPENDIX A

Caliber Software

End User License Agreement

IMPORTANT - READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between licensee (“you”) and Caliber Software (“Caliber”) for the Caliber or Caliber Express software (the “Program”), which includes computer software and associated media and printed materials (the printed materials are hereafter referred to as the “Documentation”). The Program and Documentation are collectively referred to as “Software.” By accessing, installing, copying or otherwise using the Software, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA Caliber is unwilling to license the Software to you. In such event, you may not access, use or copy the Software and you should promptly contact Caliber for instructions on returning the Software.

1. Grant of License.Caliber hereby grants to you and your affiliates, provided that such affiliate agrees to be bound by the terms and conditions of this EULA and that you agree to be liable for any breach by said affiliate, a limited, non-exclusive, non-transferable (except as set forth herein) license to use the Software subject to the terms and conditions described in this EULA and payment of all applicable license fees. Affiliate means any entity that controls you, or you control or is under common control with you where “control” means the ownership, directly or indirectly, of equity securities or other ownership interests which represent more than 50% of the voting power of such affiliate.

2. Software Use and Restrictions. A description of the various Program components, including the related licenses, is set forth in the Caliber or Caliber CM Planning Guide. Your rights and obligations with respect to the use of the Software are as follows:

2.1 You may (a) install and use one copy of the server Software to access a single host database server; (b) install one copy of the Software license keys on a single host database; (c) make one copy of the Software solely for back up, one copy for disaster recovery and one additional copy of the Software solely for testing and development purposes; (d) install and use unlimited client Software as applicable for the user licenses purchased.

2.2 You may not(a) sublicense, transfer, assign, sell, rent or lease any portion of the Software or host the Software on your computer for others to use; (b) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software or create derivative works from the Software; (c) disclose the license numbers received from Caliber or share the media with third parties or attempt to make any use of the licenses to expand the number of users who may access the Software in excess of the licenses granted; (d) install licenses on another host database except as set forth in Section 2.1 above; or (e) access the server Software by more than the number of users permitted by the Software license or more than the number of doors permitted by the Software license purchased.

3. Ownership of Software. You acknowledge that the Software is proprietary to and a valuable trade secret of Caliber protected by United States patent, copyright laws and other intellectual property laws and international treaty provisions. Caliber and its third party licensors, if any, retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (a) the Software; (b) the Caliber trademarks, service marks, trade names and logos; and (c) any and all copyrights, patent rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing.

4. Limited Warranty. Caliber warrants (a) that it has the right to grant the license set forth herein; (b) that the media, if any, on which the Software is furnished is free from defects in material and workmanship under normal use for a period of six months from the date of shipment of the Software by Caliber; (c) that any replacement media will be warranted for the remainder of the original warranty period or 90 days, whichever is longer; and (d) that for a period of six months from the date of shipment of the Software the Software will perform substantially as described in the Documentation (“Limited Warranty”). EXCEPT FOR THE LIMITED WARRANTY DESCRIBED ABOVE, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTIES OR IMPLIED TERMS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, THE CONDITION OF THE SOFTWARE OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND ANY WARRANTY ARISING OUT OF ANY PROPOSAL, SPECIFICATION OR SAMPLE.. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU. Caliber’s entire liability and your exclusive remedy shall be replacement of any media not meeting the Limited Warranty described herein if the media is promptly returned to Caliber. Caliber does not warrant the functions contained in the Software will meet your requirements or that operation of the Software will be uninterrupted or error free.

5. Indemnification. If you receive notice of any claim that your use of any part of the Software infringes the rights of a third party in or to any patent, copyright, trademark or trade secret, or violates any other intellectual property right, Caliber shall defend or settle any such claim, and shall indemnify and hold you harmless by paying any resulting costs and damages finally awarded to the third party by a court with respect to any such claim provided that you: (a) notify Caliber in writing within fifteen (15) days upon becoming aware of the claim; (b) at Caliber’s request and expense, give Caliber such information and assistance as is reasonable under the circumstances; and (c) give Caliber the right, at Caliber’s sole discretion, to settle the claim at Caliber’s expense. This indemnification does not extend to any claim based upon any alleged infringement arising from the combination of the Software with other elements not under Caliber’s sole control such as any part of the Software that you or a third-party modify, or that incorporates specifications, designs or formulas that you provide. If you are prevented from using the Software because of an actual or claimed infringement, then at Caliber’s option, Caliber shall promptly either obtain for you the right to continue using the affected part of the Software, replace or modify the affected part of the Software so that it becomes non-infringing, or if none of the foregoing alternatives are possible after Caliber’s commercially reasonable efforts, you may return to Caliber all copies of the Software that you have in your possession or under your control and Caliber shall remit to you a pro rata portion of the license fee, maintenance and support service fee you paid (up to the suggested list price) for the Software based on the commercially reasonable life of the Software, which shall not be less than three (3) years, calculated from the date that Caliber provided the activation coding to enable you to begin to exercise usage rights. THIS SECTION SETS OUT THE ENTIRE EXPOSURE OF CALIBERAND YOUR SOLE REMEDY FOR INDEMNIFICATION HEREUNDER.

6. Limitation of Liability.Because software is inherently complex and may not be free from errors, you are advised to verify the work produced by the Program. Neither Caliber nor its suppliers shall be liable for any special, indirect, incidental or consequential damages resulting from any defect in the Software or media, even if Caliber has been advised of the possibility of such damages. This means Caliber is not responsible or liable for damages or costs incurred as a result of loss of time, loss of data, loss of anticipated profits or benefits resulting from use of the Software or loss of use of the Software, nor for damages or costs incurred in connection with obtaining substitute software, claims by others or similar costs. EXCEPT TO INDEMNIFY YOU UNDER PARAGRAPH 5, IN NO EVENT SHALL CALIBER’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THIS EULA, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED CALIBER’S SUGGESTED LIST PRICE OF THE LICENSE FOR THE SOFTWARE.

7. Other Limitations.

7.1 Caliber will have no responsibility under the Limited Warranty for any Software or media that has been modified, lost, stolen or damaged by accident, abuse or misapplication. No employee, agent or representative of Caliber, nor any reseller (including a channel partner) or any other third party, is authorized to make any warranty with respect to the Software, except those expressly stated in this EULA, and you may not rely on any such unauthorized warranty. You acknowledge and agree that you have chosen your channel partner to act on your behalf in connection with the subject matter of this EULA, and that such channel partner is not an agent or partner of Caliber.

7.2 Certain Caliber software is designed to be used on mobile devices. The express purpose of these mobile devices is to enable Users to perform their work while away from their office computers. Caliber will have no responsibility under the Limited Warranty and shall not otherwise be liable for improper use of mobile devices, such as while operating a vehicle, walking, running and any and all other such improper uses. Use of mobile devices in such manners shall be done so at your sole risk.

7.3 Certain Caliber software is designed to automate accounting and tax related functions. The use of such Software, and/or any advice given to you by Caliber personnel regarding the implementation and use of Software is for the benefit of automating routine tasks and in no way shall be construed as a replacement for your seeking sound, professional advice from subject matter professionals, such as a certified public accountant (CPA), tax attorney, or other such professional. Caliber will have no responsibility under the Limited Warranty and shall not otherwise be liable for your use of Software or application of advice received from Caliber personnel that is counter to the advice of such subject matter professionals. You hereby indemnify and hold Caliber harmless for any claims made by third parties resulting from your use of Software and/or the application of advice received by Caliber from Caliber personnel.

8. Allocation of Risk. This EULA allocates risk between you and Caliber as authorized by applicable law, and that the pricing of Caliber’s products reflects this allocation of risk and the limitations of liability contained in this EULA. If any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth in this EULA shall remain in full force and effect.

9. State Law Rights. This EULA gives you specific legal rights, and you may also have other rights, which vary from state to state. Some states do not allow the exclusion or limitation of implied warranties or of liability for incidental or consequential damages, so some of the above may not apply to you.

10. Term/Termination. This EULA continues in effect until terminated, whether as a result of your acceptance of a superseding EULA or otherwise as set forth below. At any time that you choose, you may terminate this EULA and all usage rights that had been granted to you hereunder and under any prior EULA. This EULA and the license granted herein will terminate automatically and without notice if you fail to comply with any term or condition of this EULA. Upon termination, you will return to Caliber all media by which you received the Software and any prior version thereof and destroy all other copies of the Software and any prior version thereof under your control. Any provision in this EULA that when reasonably read is intended to survive the termination of this EULA shall survive, including without limitation, the disclaimer of warranties and limitations on liability.

11. Maintenance and Technical Support. Upon purchasing a license to the Software, you may agree to pay an additional software maintenance and technical support fee for an initial twelve-month period and subject to the attached Standard Support for Products. Following the initial twelve-month period, Caliber may offer you maintenance and technical support on an annual or negotiated basis for a fee.

12. General. This EULA sets forth the complete agreement between you and Caliber regarding your license and the Software, and supersedes any prior EULA, purchase order, confirmation, advertising, representation, or other communication. Caliber has your permission to send you information regarding Caliber’s products and services, including via facsimile and e-mail. This EULA may not be modified except by a written agreement signed by an authorized Caliber representative. If any provision of this EULA is found to be void, invalid, or unenforceable, it shall be severed from and shall not affect the remainder of this EULA, which shall remain valid and enforceable. Any such severed provision shall be replaced with a similar provision, which conforms to applicable law and embodies as closely as possible the original intent of the parties. The exclusive judicial forum for any action that you bring to enforce this EULA shall be an appropriate federal or state court located in Arizona. The judicial forum for any action that Caliber brings to enforce this EULA shall be an appropriate federal or state court located in the state in which you have your principal place of business. This EULA will be governed by the internal laws of the forum state, without regard to the conflict of law’s provisions thereof.

Contact Information. info@calibersoftware.com Telephone: 480-699-3621. Address: Caliber Software, 1314 N. Recker Road, Suite 101, Mesa, Arizona 85205, U.S.A.

APPENDIX B

Caliber Support and Maintenance Agreement

The terms and conditions set forth below relate to the Standard Support Plan offered by Caliber Software (“Caliber”) for Caliber software (“Software”). As a licensee (“Licensee”) of Software this support, and maintenance service is offered at no additional cost and for an initial twelve-month period. By purchasing Software, you agree to the terms and conditions of this standard Caliber Support and Maintenance Agreement (“Agreement”).

Recitals.

A. You have licensed the Software from Caliber under a separate End User License Agreement (“EULA”) and desire to obtain a Standard Support Plan from Caliber for such Software.

B. Caliber desires to provide you with a Standard Support Plan for such Software upon the terms and conditions set forth in this Agreement.

Therefore, for good and valuable consideration, the receipt and sufficiency of which the parties acknowledge Caliber and Licensee agree as follows:

1. DEFINITIONS.

1.1.“Designated Contact”means Licensee employee or consultant who may contact Caliber for Support under this Agreement and has received the most recent training required by Caliber.

1.2.“Documentation”means the standard user documentation, manuals and other materials provided by Caliber that relate to the Software, whether in printed form, electronic form, posted on Caliber’s website, available on-line or in any other format.

1.3.“Error” means any failure of the Software to conform in material respects to its functional specifications. However, any nonconformity resulting from your misuse, improper use, alteration or damage of the Software or if Licensee combines or merges the Software with any hardware or software not supplied by or identified as compatible by Caliber, shall not be considered an Error.

1.4.“Incident”means a single support issue logged with Caliber. If one issue requires multiple contacts to resolve, itcounts as only one Incident; however, a phone call containing questions on five separate issues will count as five Incidents.

1.5.“Maintenance”means any enhancement to the Software that becomes a regular part of the Software and is offered to Caliber’s other Licensees.

1.6.“Software”means the proprietary computer software product identified as Caliber or Caliber CM and licensed to Licensee by Caliber and any updates or upgraded versions of such computer software provided by Caliber.

1.7.“Support” means the telephone or remote electronic support services set forth in Section 2 below.

1.8.“Term”means the initial term and any renewal term of your Standard Support Plan. The “Initial Term” shall be for a period of twelve months commencing on the date the Software is shipped to you or your channel partner (as indicated on the packing list for the Software - the “Effective Date”).

1.9.“Renewal Terms”shall be any renewal of this Agreement (or such other agreement which provides similar benefits to you and was in effect prior to this Agreement). The Initial Term and each Renewal Term shall be individually referred to herein as a “Term Period”. In no event shall the Term extend beyond the prescribed term of the EULA.

2. Scope of Services.

2.1 During each Term Period, Caliber shall provide Licensee with the benefits listed above for the type of Standard Support Plan Licensee has purchased for such Term Period. Licensee shall pay the Standard Support Plan fee at Caliber’s rate in effect at the commencement of the applicable Term Period. Fees are payable in advance for the entire Term Period. Caliber will invoice Licensee approximately 60 days prior to the expiration of the current Term Period. If Licensee fails to pay such invoice by the commencement of the applicable Term Period, Caliber may, and without further notice to Licensee, terminate provision of Standard Support Plan to Licensee.

2.2 For the purposes of receiving support from and communicating with Caliber with respect to support issues, Licensee shall designate no more than one Designated Contact and one alternate Designated Contact for the account. Unless otherwise stated by Licensee, any listed contact on the support site for Licensee may make requests for telephone or other assistance. Such support requests may be subject to verification by Designated Contact. Licensee may designate a replacement Designated Contact at any time by contacting Caliber in advance.

2.3 Caliber will provide accurate and timely technical support for all Licensees to ensure maximum up time. Caliber will assist the Designated Contact(s) in utilizing the Software and shall use all commercially reasonable efforts in identifying and providing workarounds, if possible, for standard component product problems.

2.4 Telephone Support. The Designated Contact(s) will be given the telephone number for Caliber’s support line and will be entitled to contact the support line during normal operating hours, excluding holidays. Licensee may obtain information regarding Caliber’s operating hours and scheduled holidays through Caliber’s support page on its web site. The Designated Contact(s) may consult with Caliber technical analysts concerning problem resolution, diagnosing error message, providing workarounds, if possible for standard component product problems, resolving system-down or other critical and complex situations.

2.5 Remote Electronic Support. If remote, electronic Support is appropriate (per Caliber’s determination and with Licensee permission) Caliber may be able to connect directly to Licensee computers to assist in problem identification and resolution using Caliber’s then available remote access tool.

2.6 Software Problem Reporting. Licensee may submit to Caliber requests identifying potential problems in the Software. Requests should be in writing and directed to Caliber Licensee Support, by mail, courier, or via online support or email (support@CaliberSoftware.com). Caliber retains the right to determine the final disposition of all such reports, and will inform Licensee of the disposition of each report. If Caliber decides in its sole judgment to act upon a report, it will do so by providing a “Bug Fix” within a Service Pack.

2.7 Licensee Information. Information received by Caliber from Licensee will be treated in a manner that is consistent with the then-current policy relating to Licensee information.

3. Support Exclusions.

3.1 Caliber shall not provide any Support relating to problems that are caused by (a) Licensee failure to implement all currently available permanent fixes or solutions to known problems or bugs in the Software (“Updates”); (b) Licensee failure to implement all currently available major revisions to the Software which adds new and different functions or capabilities to the Software (“Upgrades”); (c) changes to Licensee operating system or environment that adversely affects the Software; (d) any alteration of, or addition to, the Software performed by any party other than Caliber; (e) negligence or misuse of the Software; (f) integration of the Software with other software products not supplied by Caliber; or (g) use of the Software on a CPU or peripherals other than the CPU and peripherals for which the Software was designed and licensed.

3.2 Standard Support Plans do not include Support for any hardware components of Licensee computer system or for any Software not supplied by Caliber including, but not limited to, computers, mobile devices (PDAs, Windows Mobile Phones), hard disks, operating systems, databases, third-party software, network servers, printers, bar code readers, cash drawers or any software associated with such hardware devices.

3.3 Portions of the Software that have been modified, portions of the Software which have data tables that have been modified (including the manual addition and deletion of data) by any method other than directly through the Software’s user interface, and program objects that have been modified are not eligible for Support or Maintenance. Additionally, modified portions of programs that post data to other modules or database tables may limit the extent of the Support that Caliber will be able to provide on the unmodified modules and programs. Caliber’s support team cannot assist in the direct manipulation of database contents. If an issue is reported to Caliber’s support team that is the result of modifications to the source code, the data tables or program objects, Support activities for that particular issue will cease, and the Caliber support team will notify you that the issue is beyond the scope of Support and this Agreement. Time expended to discover that the issue is related to such modifications will be billed back to Licensee at the then prevailing Caliber Professional Services hourly rates.

4. Warranty and Limitations on Liability.

4.1 Caliber does not warrant or represent Licensee use of any Update or Upgrade of the Software (collectively “Maintenance Programs”) will be uninterrupted or error-free. If Licensee reports to Caliber in writing within ninety (90) days from the date a Maintenance Program is licensed to Licensee of any non-conformity between the Maintenance Program and the Documentation therefore (as defined in the EULA), and if Caliber is able to replicate and verify that such non-conformity exists, Caliber shall make commercially reasonable efforts to correct such non-conformity and, if successful, shall supply Licensee with such correction or, if unsuccessful and such non-conformity is material, Licensee may return such Maintenance Program to Caliber and terminate this Agreement, and Caliber shall remit to you a pro-rated portion of the fees actually paid to Caliber under this Agreement for the then-current Term Period. The foregoing states your SOLE AND EXCLUSIVE REMEDY for any breach of this warranty.

4.2 Caliber support analysts are trained in the operation of our software products and they will make every commercially reasonable attempt to find answers to Licensee questions. Caliber cannot guarantee that all defects will be fixed or that all of Licensee questions will be resolved. OUR STANDARD SUPPORT PLANS ARE PROVIDED “AS IS,” AND ALL WARRANTIES REGARDING SUCH SERVICES, WHETHER EXPRESSED OR IMPLIED, ARE HEREBY EXCLUDED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. No employee, agent or representative of Caliber, or any other party, is authorized to make any representation or warranty with respect to any Standard Support Plan, other than those representations and warranties set forth in this Agreement.

4.3 Because software is inherently complex and may not be free from errors, Caliber advises Licensee to verify the results of any service provided and the work product of the Software. CALIBER (including Caliber’s subcontractors, agents, employees and suppliers) SHALL NOT BE LIABLE FOR ANY DAMAGE, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE, RESULTING FROM THE USE OF OR INABILITY TO USE ANY STANDARD SUPPORT PLAN, OR FROM THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF CALIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This means Caliber is not and will not be responsible or liable to Licensee or anyone for damages or costs incurred as a result of time, loss of data, loss of anticipated profits or benefits resulting from the use of the Software or loss of use of the Software, or for damages or costs incurred in connection with obtaining substitute support services or claims by others or similar costs. In no event shall the total liability of Caliber for all claims, whether in contract (including, but not limited to, breach of warranty), tort (including, but not limited to, negligence and product liability), or otherwise, arising out of, connected with, or resulting from any performance or nonperformance relating to this Agreement exceed the amount received by Caliber from Licensee for the Standard Support Plan for such Term Period.

4.4 Licensee acknowledges and agrees that this Agreement allocates risk between Licensee and Caliber as authorized by the Uniform Commercial Code and other law, and the pricing of Caliber’s products and services reflects this allocation of risk and the limitations of liability contained in this Agreement. If any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusions of damages set forth herein shall remain in full force and effect.

4.5 This Agreement gives Licensee specific legal rights, and Licensee may also have other rights, which vary from state to state. Some states do not allow the exclusion or limitation of implied warranties or of liability for incidental or consequential damages, so some of the above may not apply to Licensee.

5. Miscellaneous.

5.1 Caliber reserves the right to modify the scope of either Support and/or Maintenance during any Term Period, provided that if a modification materially diminishes the Support and/or Maintenance Licensee receives under this Agreement, Caliber will give Licensee advance notice of such modification and Licensee shall be entitled within thirty (30) days of such notice to terminate this Agreement and receive a pro-rated refund of the fees paid for such Term Period, based on the number of months left in such Term Period.

5.2 This Agreement contains the complete and exclusive statement of the agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior proposals, understandings and agreements, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a written instrument duly executed by an authorized officer of each of the parties hereto.

5.3 Licensee may not assign this Agreement without the prior written consent of Caliber, except to a successor of all or substantially all of its business and properties and in connection with an authorized assignment of the Software.

5.4 Please direct all inquiries regarding this Agreement to:

info@calibersoftware.com

Telephone: (480) 699-3621