DataBlend Software-as-a-Service Agreement

This Software-as-a-Service Agreement (“Agreement”) is made as of ________ (“Effective Date”) by and between CARLSON MANAGEMENT CONSULTING, INC., a Massachusetts corporation whose principal place of business is located at 444 Washington Street, Suite 401, Woburn, Massachusetts, 01801 (hereinafter, “CMC”) and ____________, whose principal place of business is located at _________________ (hereinafter, “Customer”).  CMC and Customer may hereinafter be referred to as the “Parties”, or, individually, as a “Party”.

TERMS AND CONDITIONS

1. DEFINITIONS

1.1 “Agreement” has the meaning set forth in the first paragraph of this agreement.

1.2 “Authorized User(s)” means any natural person that Customer permits to use, access and/or benefit from the SaaS Services, including without limitation, (i) Customer employees; and (ii) third parties (including without limitation contractors, subcontractors, consultants, agents, vendors and partners), provided, such third parties have a need to use the SaaS Services based upon their relationship with Customer and no such third party is a competitor of CMC.

1.3 “Confidential Information” shall have the meaning set forth in Section 12.1.

1.4 “Consulting Services” means consulting, advisory, development and customization services related to the SaaS Services as may be requested by Customer and agreed by CMC.

1.5 “Customer” has the meaning set forth in the opening paragraph of this Agreement.

1.6 “Documentation” means the technical publications relating to the Software, such as installation and user guides and troubleshooting tips that CMC makes available to all licensees of the Software.  The Documentation shall be delivered in electronic media form.

1.7 “Effective Date” shall have the meaning set forth in first paragraph of this Agreement.

1.8 “Initial Term” has the meaning set forth in Section 4.1.

1.9 “Intellectual Property” means any and all patents, copyrights, trademarks, service marks and trade names (registered and unregistered), trade secrets, know-how, inventions, licenses and all other intellectual property or proprietary rights throughout the world.

1.10           “Local Software” means software (if any) for installation at Customer’s site which is required for Customer and Authorized Users to be able to use the SaaS Services.

1.11           “Party” and “Parties” has the meaning set forth in the first paragraph of this Agreement.

1.12           “SaaS Application” means all software, platforms and applications used by CMC to display and perform the SaaS Services.

1.13           “SaaS Service” means the software-supported service described in greater detail in Exhibit A which is attached hereto and made a part hereof and includes the SaaS Application and the Website.

1.14           “Service Fees” means the fees payable by Customer for the SaaS Services.

1.15           “SOW” has the meaning set forth in Section 7.

1.16           “Support Services” means, email support CMC generally provides to other subscribers of the SaaS Service for installation assistance, usage assistance, problem diagnosis and resolution and technical guidance for the SaaS Service and clarification of the Documentation.  The Support Services shall be provided only during CMC’s normal business hours.  Investigation and research for Customer-identified conditions determined by CMC not to be covered by Support Services shall be billable to Customer as additional Support Services at CMC’s then-current rates for such services.  Such additional Support Services include Customer-identified conditions attributable to:  (A) Customer’s misuse, improper use, alteration or damage of the SaaS Service; (B) modifications of the SaaS Service not made by CMC; (C) the combination of the SaaS Service with software other than the Local Software to the extent such combination has not been approved by CMC; and (D) support provided with respect to any version of the Documentation other than the then-most current version which has been made available to Customer by CMC.

1.17           “Term” is defined in Section 4.1.

1.18           “Website” means the CMC collection of interlinked web pages through which the SaaS Service is made available to Customer and Authorized Users.

1.19           “Work Product” means (i) any and all reports, summaries, calculations, and other data generated through use of the SaaS Service; and (ii) all work product resulting from performance of the Consulting Services, whether or not specifically identified as a deliverable.

2.     CMC Responsibilities

2.1       SaaS Service.  CMC shall provide and make available the SaaS Service to Customer and the Authorized Users during the Term.  CMC hereby grants to Customer and Authorized Users a non-exclusive right and license during the Term to access, use, display and execute the SaaS Application in connection with the SaaS Service.

2.2       Hosting.  CMC shall provide all hardware, software and other equipment and resources (and any applicable disaster recovery site) as necessary to host the SaaS Application and deliver the SaaS Service.

2.3       Documentation.  In consideration of Customer’s payment of the Service Fees, CMC hereby grants to Customer and Authorized Users a non-exclusive right and license during the Term to use the Documentation solely in connection with Customer’s and Authorized Users’ use of the SaaS Service and to facilitate Customer’s and Authorized Users’ use of the SaaS Service.  CMC hereby shall provide Customer, at no additional cost, access to an electronic version of all Documentation.  At no additional cost, Customer may print and reproduce the Documentation provided that: (i) the number of such copies is limited to those reasonably required for use by Customer, including, without limitation, training and archival purposes; and (ii) proprietary notices contained in the original copies of the Documentation are reproduced and included in all copies, whether such copies are made in whole or in part.

2.4       Training Services.  CMC shall provide training regarding the SaaS Service to Authorized Users to enable such personnel to access and use the SaaS Service, as well as any other training services expressly included in Exhibit B hereto.

2.5       Support Services.  In consideration of Customer’s payment of the Service Fees CMC shall provide the Support Services during the Term.  Support will be available during normal business hours defined as 9 AM Eastern Standard Time until 5 PM Eastern Standard Time.  Information on contacting support will be provided during initial set up.

3.     Customer Responsibilities

Customer accepts sole responsibility for: (A)  securing, implementing and maintaining the Local Software (if any); (B) Customer’s system configuration, design and requirements; (C) the selection of the SaaS Services to achieve Customer’s intended results; and (C) modifications, changes or alterations to the SaaS Services by anyone other than CMC or CMC’s agents or contractors.  Customer acknowledges that it has made its own evaluation in deciding to subscribe to the SaaS Services.  The SaaS Services are not intended to contain or process any protected health information or any patient information as described in the Health Information Portability and Accountability Act of 1996 (HIPAA) Privacy and Security Rules and the inclusion and/or processing of any such information and any non-compliance with the HIPAA Privacy and Security Rules is at Customer’s own risk.

4.     Term and Termination

4.1       Term of Agreement.  This Agreement will become effective as of the Effective Date and shall remain in effect for an initial term of One Year (1) year(s) (“Initial Term”).  This Agreement shall be extended after the Initial Term on a year-to-year basis unless and until either Party shall give written notice of termination to the other Party no less than sixty (60) days prior to the end of: (i) the Initial Term; or (ii) any annual term thereafter.  The Initial Term and all additional annual extensions shall constitute the “Term”.

4.2       Termination.  Either Party may terminate this Agreement in the event of: (a) the other’s failure to comply with any material term of this Agreement and such noncompliance remains uncured for more than thirty (30) days after notice thereof; or (b) the other Party becomes insolvent, commences dissolution proceedings or ceases to operate in the ordinary course of business.

4.3       Effect of Termination.  Upon termination, Customer shall immediately cease using the SaaS Service.

5.     Fees and Payment Terms

5.1       Service Fees.  In consideration of the SaaS Service to be provided by CMC hereunder Customer shall pay CMC the Services Fees set out in Exhibit A hereto within thirty (30) days from the receipt of CMC’s invoice.  This payment obligation is non-cancelable, nonrefundable and non-contingent, unless otherwise explicitly stated otherwise in this Agreement.  Undisputed payments which are not received on the due date shall bear interest at the lesser of eighteen percent (18%) per annum or the maximum rate allowed under then applicable law.

5.2       Fee Increases.  The Service Fees shall remain fixed for the duration of the Initial Term.  Thereafter, the Service Fees are subject to increase upon no less than thirty (30) days’ prior written notice from CMC.

5.3       Taxes.  Excluding taxes based on CMC’s income, Customer is liable for all taxes, duties and customs fees relating to all fees payable hereunder whether or not CMC invoices Customer for such taxes, duties or customs fees, unless Customer has provided CMC with a valid tax exemption.

5.4       Expenses.  Customer agrees to reimburse CMC for its reasonable direct, out-of-pocket expenses incurred and invoiced hereunder; provided, that Customer has previously approved such expenses in writing.

5.5       Purchase Orders.  Customer represents and warrants that if its internal procedures require that a purchase order be issued as a prerequisite to payment of any amounts due to CMC, it will timely issue such purchase order and inform CMC of the number and amount thereof.  Customer agrees that the absence of a purchase order, other ordering document or administrative procedure may not be raised as a defense to avoid or impair the performance of any of Customer’s obligations hereunder, including payment of amounts owed to CMC.

6.     Implementation

CMC will provide the Implementation Services set out in the Statement of Work (“SOW”) included as Exhibit B which is attached hereto and made a part hereof for the fees set out in such SOW.

7.     Consulting Services

CMC will provide the consulting services set out in the Statement of Work (“SOW”) included as Exhibit B which is attached hereto and made a part hereof for the fees set out in such SOW.

8.     Limited Warranties

8.1       CMC represents and warrants that:

8.1.1    the SaaS Service, as delivered to Customer by CMC, will perform substantially in accordance with the Documentation during the Term, provided that: (A) Customer is using the SaaS Service in accordance with the Documentation; and (B) any error or defect detected is reproducible;
8.1.2    CMC has sufficient rights in the SaaS Service, the SaaS Application and the Documentation to perform fully and completely its obligations under this Agreement and to grant the rights and licenses contained herein.  As of the Effective Date, CMC further represents and warrants that the license to use the SaaS Application and Documentation are granted free of all claims, liens, encumbrances and other restrictions that would materially interfere with the use of such SaaS Application and the Documentation as provided in this Agreement;
8.1.3    CMC has obtained any and all necessary consents, licenses, approvals and permits required for the provision of the SaaS Service;
8.1.4    the SaaS Service and use thereof by Customer and/or Authorized Users shall not infringe or violate the Intellectual Property right of any third party;
8.1.5    Support Services shall be: (a) performed by qualified personnel in a workmanlike, professional manner, consistent with generally accepted industry standards; and (b) compliant with all applicable federal, state, local and foreign laws;
8.1.6    the SaaS Application does and shall not contain any virus, Trojan horse, or worm, software lock, drop dead device or any other limiting routine that would intentionally erase data or render the SaaS Application to become incapable of being used in accordance with the Documentation, or corrupt Customer’s systems or database(s), provided, however, that Customer follows standard industry practices for maintenance of Customer’s information systems;
8.2       CMC DOES NOT WARRANT THAT THE SAAS SERVICE IS ERROR-FREE OR THAT THE SAAS SERVICE WILL RUN UNINTERRUPTED, OR THAT ALL SERVICES ERRORS CAN OR WILL BE CORRECTED.  PRE-GENERALLY COMMERCIALLY AVAILABLE VERSIONS OF THE SAAS SERVICE, AND ALL ASSOCIATED MATERIALS, ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WHATSOEVER.
8.3       EXCEPT FOR THE WARRANTIES SET OUT IN THIS AGREEMENT, CMC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
8.4       Exclusive Warranty Remedies.  For any breach of the warranties contained in this Agreement, Customer’s exclusive remedy and CMC’s sole obligation and entire liability shall be limited to:

8.4.1    for the Support Services, the re-performance of the Support Services at no additional charge; and

8.4.2    for the SaaS Service, CMC will, at its sole option, and provided Customer otherwise complies with the terms of this Agreement: (A) repair or replace the nonconforming SaaS Service; or (B) terminate this Agreement and refund the unamortized Service Fees paid by Customer, such amortization to be based on a five (5)-life from the Effective Date.

9.         Intellectual Property Indemnity

CMC shall indemnify Customer for all judgments, costs, damages, and fees (including attorneys’ fees) and defend Customer against any third party claims that the SaaS Service, the SaaS Application or the Documentation infringes any United States copyright, patent, trade secret or other intellectual property right provided that CMC is given prompt notice of such claim and is given information, reasonable assistance, and sole authority to defend or settle the claim.  In the event of any threatened claim, CMC may, in its reasonable judgment and at its sole option and expense:  (A) obtain for Customer the right to continue using the allegedly infringing product(s); (B) replace or modify the allegedly infringing product(s) so that it/they become non-infringing without diminishing functionality in any material respect; or if (A) and (B) are not reasonably available (C) terminate the portion of this Agreement for the allegedly infringing product(s), and return the unamortized portion of the Service Fees paid by Customer for such allegedly infringing product(s), based on a five (5)-year life beginning on the Effective Date.  CMC shall have no obligation to indemnify or defend Customer for any liability arising out of or relating to any allegations or claims of infringement, to the extent the infringement is caused by: (i) a modification of the product by anyone other than CMC or its contractors; (ii) Customer’s use of the product other than in accordance with the Documentation or the terms of this Agreement; (iii) use of a version of the Documentation no longer supported by CMC; or (iv) use of the SaaS Service in combination with any other hardware, software or other materials not identified in the Documentation where, absent such combination, the SaaS Service would not be infringing.  This Section entitled “Intellectual Property Indemnity” states CMC’s entire liability for actual or alleged infringements and Customer’s sole and exclusive remedy in relation thereto.

10.       Work Product

Unless the Parties agree otherwise in writing, Work Products belong to Customer.   CMC hereby agrees that the Work Product is being developed as a “work made for hire” and Customer shall own all rights, title and interest, including but not limited to copyright, patent, trademarks, trade secrets, and all other Intellectual Property rights in any and all Work Product created pursuant to the terms of this Agreement.  In the event that CMC is ever determined to own copyrights or other Intellectual Property rights in the Work Product, CMC hereby irrevocably assigns to Customer all rights, title and interest that it might have in Work Product.  “Work Product” shall not include Documentation, other information or material generally provided by CMC to its customers, third party works, products, or materials, and CMC Materials, as defined below, that may be included in Work Products.  Customer acknowledges that CMC is in the business of providing information technology consulting services and has accumulated expertise in this field and agrees that CMC will retain all right, title, and interest in and to all CMC Materials.  “CMC Materials” means all inventions, discoveries, concepts, and ideas, including, without limitation, patents, copyrights, trademarks, trade secrets, processes, methods, formulae, techniques, tools, solutions, programs, data, and documentation, and related modifications, improvements, and know‑how, that CMC, alone, or jointly with others, its agents or employees, conceives, makes, develops, acquires, or obtains knowledge of at any time before, after, or during the Term without breach of CMC’s duty of confidentiality to Customer.  To the extent CMC Materials are included in any Work Products, CMC hereby grants Customer a personal, perpetual, irrevocable, nonexclusive, worldwide, royalty‑free license to use, execute, reproduce, and modify such CMC Materials, but only for Customer’s internal use in conjunction with the Work Products.  CMC’s grant to Customer of any interest in the Work Products is effective only upon Customer’s payment of all Service Fees and charges payable under this Agreement.

11.       Limitation of Liability

CMC HAS NO LIABILITY TO CUSTOMER FOR ANY LOST DATA, LOST PROFITS, OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR OTHER INDIRECT DAMAGES OF ANY KIND FOR ANY REASON WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES BASED UPON, CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY EVEN IF CMC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  Customer agrees that CMC’s liability hereunder for damages, regardless of the form of action, will not exceed the total amount of Service Fees actually paid CMC under this Agreement during the then-previous twelve (12) months.

12.    Nondisclosure Obligations

12.1     Confidential Information.  During the Term, the Parties may have access to confidential information of the other (“Confidential Information”).  CMC’s Confidential Information includes, without limitation, the SaaS Service, the SaaS Application and the Documentation, and any/all other information proprietary to CMC.  Confidential Information also includes this Agreement and the terms and conditions and pricing contained herein.  Confidential Information shall not be disclosed, orally or in writing, to any third party without the prior written consent of the owner of such information, or, in the case of Confidential Information that is not owned by either Party, without the prior written consent of the non-disclosing Party, except as provided below.

 

12.2     Degree of Care.  The Parties shall protect each other’s Confidential Information with at least the same degree of care and confidentiality which the receiving party utilizes for its own information that it does not wish disclosed to the public, but not less than a reasonable standard of care.

12.3     No Obligation.  This Agreement imposes no obligation upon either party (“Recipient”) with respect to the other Party’s (“Discloser’s”) Confidential Information which Recipient can establish by legally sufficient evidence:  (A) was, prior to receipt from Discloser, in the possession of, or rightfully known by Recipient, without an obligation to maintain its confidentiality; (B) is or becomes generally known to the public without a violation of an obligation of confidentiality owed to the Discloser; or (C) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality.

12.4     Provision of Access.  Recipient may provide access to and use of the Discloser’s Confidential Information only to those third parties that: (A) rightfully provide services to Recipient concerning Recipient’s use of the Discloser’s Confidential Information; (B) have a legitimate need to use and access the Confidential Information; and (C) have agreed to substantially similar non-disclosure obligations as those contained herein.  However, in no case whatsoever shall either Party hereto have the right to disclose any Confidential Information of the other to a competitor of the other Party.  The Parties intend for the foregoing to permit disclosure to accountants, attorneys, tax advisors and other similar persons or entities providing services to the Recipient under obligations of confidentiality.  Disclosure of Discloser’s Confidential Information by any such third party will be deemed a breach by Recipient hereunder.  To the extent Recipient may be required to disclose Confidential Information in a legal proceeding, Recipient may make such disclosure, provided that Recipient notifies Discloser of such requirement prior to disclosure, and provided further that Recipient makes diligent efforts to avoid and/or limit disclosure.

13.       General Provisions

13.1     Notices.  All notices required by this Agreement shall be in writing and sent by regular mail, certified mail, overnight courier, personal delivery, or facsimile (if confirmed by regular mail, certified mail, overnight courier, or personal delivery) to the addresses indicated on the first page of this Agreement, or such other address as either party may indicate by at least ten (10) days prior written notice to the other party.  Notices to CMC shall be sent to the attention of CMC’s President.  All notices to Customer shall be sent to the attention of any person who may be designated in writing by Customer.  Notice will be effective on the date shown on the delivery receipt or facsimile confirmation or, if sent by regular mail or where there is no written evidence of delivery, on actual receipt or refusal of receipt.

13.2     Assignment.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.  Customer may not assign this Agreement (by operation of law or otherwise), grant a security interest in the Software or the Documentation, or sublicense the Software without the prior written consent of CMC, and any assignment, grant or sublicense without such consent shall be null and void.  Notwithstanding the foregoing, in the event of a merger, consolidation or sale of all or substantially all of the assets of Customer, Customer may assign, without the consent of CMC, its rights under this Agreement to the merged, consolidated or acquiring entity (“Assignee”), provided: (A) Assignee is not a competitor of CMC; (B) Assignee possesses sufficient resources (financial or otherwise) to perform Customer’s obligations under this Agreement; and (C) within a reasonable period after demand therefore by CMC, Assignee executes an amendment to this Agreement assuming all of Customer’s obligations under this Agreement.  In the event the scope of use is expanded: (i) Customer shall be obligated, within fifteen (15) days of such assignment, to notify CMC; and (ii) Assignee shall pay such additional license fees as negotiated by the parties at that time.

13.3     Bankruptcy.  All rights and licenses granted under this Agreement by CMC to Customer are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code, licenses to rights to “intellectual property” as defined in Section 101 (35A) of the United States Bankruptcy Code.  As Customer of such rights under this Agreement, Customer shall retain and may fully exercise all of its rights and elections under, and following compliance with, the United States Bankruptcy Code.  In the event of a commencement of a bankruptcy proceeding by or against CMC under the United States Bankruptcy Code, Customer shall be entitled to retain all of its rights under this license, subject to the United States Bankruptcy Code.

13.4     Survivability.  The terms of Sections 1. (“Definitions”), 9. (“Intellectual Property Indemnification”), 11. (“Limitation of Liability”), 12. (“Nondisclosure Obligations”) and any other terms that by their nature should survive, shall survive termination of this Agreement.

13.5     Governing Law.  This Agreement shall be governed by, subject to, and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to its laws governing conflicts of law, and except as to matters affecting the validity of corporate action taken by an organizational party, which shall be governed by the laws of such party’s State of organization.  The parties hereto intend that the transactions contemplated under this Agreement shall be deemed to be a sale of goods within the meaning of Article 2 of the Uniform Commercial Code as is in effect in Massachusetts as of the Effective Date.  The exclusive jurisdiction and venue of any actions arising out of, or relating to or in any way connected with this Agreement, its negotiation or termination, or services provided or to be provided by CMC, shall be in Boston, Massachusetts.

13.6     Enumeration and Headings.  Enumeration and headings are for convenience of reference only and are not intended to have any substantive significance in interpreting this Agreement.

13.7     Gender and Number.  Unless the context otherwise requires, whenever used in this Agreement the singular shall include the plural, the plural shall include the singular, and the masculine gender shall include the neuter or feminine gender and vice versa.  Definitions of defined terms shall apply to derivatives of such terms.

13.8     Counterparts.  This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original document, but all of which counterparts shall together constitute one and the same instrument.

13.9     No Third Party Beneficiaries.  This Agreement is not intended, nor shall it be interpreted, to confer any benefit, right or privilege in any person or entity not a party hereto.

13.10   Independent Contractor.  The parties hereto are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an agency, partnership, or joint venture between the parties hereto.

13.11   Conflicting Terms.  The provisions of this Agreement shall prevail and govern in the event of any conflict or inconsistency between the provisions of this Agreement and those in any Exhibit, supplement or attachment, unless specified otherwise.  If any provision of this Agreement is deemed invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed severed from this Agreement and replaced by a valid provision which approximates as closely as possible the intent of the parties hereto.  All remaining provisions shall be given full force and effect.

13.12   Without Favor to Either Party.  The parties hereto have negotiated at arm’s length and jointly participated in the construction of the terms of this Agreement.  This Agreement therefore shall be interpreted in accordance with its terms without favor to either party hereto.

13.13   Limitation of Action.  Any cause of action against either party hereto arising under or in connection with this Agreement shall be instituted and served upon such party not later than two (2) years following the earlier of the date on which the party instituting such action has actual knowledge of the event giving rise to such cause of action and the latest date such cause or action may be brought under applicable law.  The foregoing limitation does not apply to counterclaims available to a party against whom suit has been instituted within the applicable time period.  Neither shall the foregoing apply to claims of CMC for payments scheduled under this Agreement.

13.14   Mutual Representations.  Each party hereto represents that it is a validly existing organization or corporation and in good standing under the laws of its State of organization.  Each party further represents that it has the power and authority to execute, deliver and perform the obligations set forth in this Agreement.

13.15   Force Majeure.  In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection, inability to obtain materials, labor, equipment, transportation or energy sufficient to meet needs, or any other cause beyond the reasonable control of the party invoking this provision, and if such party shall have used reasonable efforts to avoid such occurrence and minimize its duration and has given prompt written notice to the other party, then the affected party’s failure to perform shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.

13.16   Waiver.  No failure or delay of any party hereto to exercise any right or remedy pursuant to this Agreement shall affect such right or remedy or constitute a waiver by such party of any right or remedy pursuant thereto.

13.17  Remedies.  Except as expressly provided otherwise in this Agreement: (A) all remedies available to either party hereto are cumulative and not exclusive; and (B) termination of this Agreement or any license granted hereunder shall not limit either party from pursuing other remedies available to it, including injunctive relief.  Upon termination, all amounts, if any, then owed under this Agreement shall immediately become due and payable, unless otherwise agreed to in writing by the parties or otherwise ordered by a court of competent jurisdiction.

13.18   Entire Agreement.  This Agreement constitutes the entire agreement between CMC and Customer with respect to the subject matter hereof and supersedes all prior agreements, statements, promises, understandings and negotiations, whether written or oral, regarding the subject matter hereof.  No waiver, consent, modification, amendment or change of the terms of this Agreement shall bind either party hereto unless in writing and signed by duly authorized representatives of CMC and Customer.

13.19 Transfer of License and Code: Should CMC: (i) cease to carry on its business substantially as such business was conducted on the date of this Agreement; or (ii) institute or suffer a bankruptcy, reorganization, liquidation, receivership, insolvency or similar proceeding, or becomes generally unable to pay its debts as they become due; or (iii) CMC is acquired by another entity and this entity choose not to support this product, and such event(s) set forth in (i) or (ii) or (iii) causes CMC to be unable to continue to meet its obligations to make the SaaS Service available to Customer under the terms of this Agreement, CMC shall use all its commercially reasonable efforts to cause any bankruptcy custodian appointed for CMC to, deliver a copy of the source code for the SaaS Application to Customer and shall issue a license to Customer which will allow Customer to use such source code only in the way that Customer is allowed to use the SaaS Application under the Agreement, for the time during which CMC is not able to meet its obligations to provide the SaaS Service to Customer under this Agreement.  During the time Customer shall be in possession of such source code, Customer shall not, and shall not attempt to, reverse engineer or de-compile such source code, or utilize such source code for any reason, whatsoever, other than as Customer is allowed to utilize the SaaS Application under this Agreement, and Customer shall safeguard such source code in a safe and secure environment, preventing access to such source code from anyone not employed by Customer, and only accessible to those Customer employees who have a need to have such access to continue to make the SaaS Service available to Customer under such license.  At any time when CMC is able to continue to provide the SaaS Service under the terms of this Agreement to Customer, such source code license shall terminate, and Customer shall return such source code to CMC, or destroy such at CMC’s option, and certify such destruction.