This Subscription Agreement (“Agreement”) is by and between RO Innovation (“RO”) a Colorado corporation having it’s principal place of business at 1642 Market Street, Suite 202, Denver, Colorado 80202 and the person (individual or legal person) whose name appears on the signature line of the Agreement or on any document that incorporates the Agreement by reference (“Customer”) and is effective on the Effective Date.

1. Definitions.

“Customer Data” means any electronic data, information or material provided or submitted by Customer to RO through the Service. “License Term” means the term during which RO will provide the Service to Customer, as specified in an Order Form. “Order Form” means collectively the contract and order documents representing the initial purchase of the Service and any subsequent purchases agreed to between the parties in writing from time to time. “Service” means the online Reference Management and other application services as made available by RO from time to time at http://www.roinnovation.com or other designated web sites or IP addresses, including associated documentation made available to Customer in written form or online. “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identification and passwords by Customer (or by RO at Customer’s request) in accordance with the Order Form. “Professional Services” means those installation, configuration, customization, analysis, consulting, professional and other services and assistance (if any) to be provided by RO or its subcontractors to Customer as described in Exhibit A and any applicable Statement of Work.

2. Services.

2.1 Initial Service. RO shall initially make the Service available to Customer on the terms set forth in this Agreement and the Order Form. 2.2 Additional Users. User licenses cannot be shared or used by more than one User. If Customer wishes to add additional User licenses, Customer shall submit an order by way of a written Order Form. Upon RO’s written approval of the terms of any such additional Order Form, RO shall make the Service available to the additional users on the terms and conditions set forth in this Agreement and each approved additional Order Form.  2.3 Unless otherwise specified in the relevant Order Form (i) the term of the additional User licenses shall be coterminous with the expiration of the License Term; and (ii) the fee for the additional User licenses shall be the fees specified on the Order Form and thereafter, the then current list price fee unless otherwise agreed to in writing.

3. Use of the Service.

3.1 RO Responsibilities. RO shall: (i) in addition to its confidentiality obligations under Section 6, not use, edit or disclose the Customer Data; (ii) use commercially reasonable efforts to maintain the security of the Service; (iii) unless indicated to the contrary in an Order Form, provide support to each of the Customer’s Users consisting of telephone help desk or online support services via the Service during normal business hours (between the hours of 9:00 am and 5:00 pm MST on business days) up to a maximum of 5 cases per User per month (aggregated and allocable over all the customer’s Users); (iv) ensure that the Service is available to Customer and performing substantially in accordance with the online RO help documentation; and (v) use commercially reasonable efforts to make the Service generally available 24/7 (24 hours a day, 7 days a week), except for: (a) planned down time, which shall be any period outside of normal business hours for which RO gives 8 hours or more notice that the Service will be unavailable; or (b) down time caused by circumstances beyond RO’s reasonable control, including fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failure, delays involving hardware or software not within RO’s possession or reasonable control, network intrusions or denial of service attacks, but only if such unavailability results notwithstanding the exercise of reasonable care and due diligence to avoid or mitigate the same in anticipation of or in response to such causes. 3.2 Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify RO promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws using the Service. 3.3 Service Guideline. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not use the Service to (i) send spam or any other form of duplicative and unsolicited messages other than marketing and promotional messages to Customer’s clients and prospective clients as contemplated by the Service; (ii) harvest, collect, gather or assemble information or data regarding other users without their consent; (iii) knowingly transmit through or post on the Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene materials or materials harmful to minors; (iv) knowingly transmit materials containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (v) knowingly interfere with or disrupt the integrity or performance of the Service of the data contained therein; (vi) attempt to gain unauthorized access to the Service, computer systems or networks related to the Service; or (vii) harass or interfere with another user’s use and enjoyment of the Service. 3.4 Privacy & Security. RO’s privacy and security policies are set out in the RO Privacy and Security Statement. RO reserves the right to modify its privacy and security policies in its reasonable discretion from time to time by notice in writing to Customer. 3.5 RO’s Use of Customer’s Name. Customer agrees that RO may publicly disclose that RO is providing services to Customer and may include Customer’s name in promotional materials, including press releases and on RO Web site. Either party may publicly use the other party’s logo or other trade or service mark for promotional purposes for the duration of this agreement.

4. Fees & Payments.

4.1 User Fees. Customer shall pay the fees specified in any signed and approved Order Form. All fees are quoted in United States Dollars. Fees are non-refundable (i.e., the number of User licenses contracted for cannot be decreased during the License Term or in the middle of any renewal term) and are based on the number of Users specified in the relevant Order Form, not the extent of actual usage. Fees for additional Users added in the middle of a monthly billing period shall be charged for that billing period in full and going forward based on the number of months remaining in the License Term. 4.2 Storage Limits. Customer acknowledges that the maximum disk storage space provided to Customer for Customer Data at no additional charge is a cumulative amount of 30 MB per User license. RO shall use reasonable efforts to notify Customer when the average storage used per User license reaches approximately 90% of the maximum: however, any failure by RO to so notify Customer shall not affect Customer’s responsibility for such additional storage charges.  4.3 Invoicing & Payment. RO shall invoice Customer for fees for the Service in advance and otherwise in accordance with the terms of the relevant Order Form. Charges due shall be payable in thirty (30) days from the receipt of invoice. All payments made under this Agreement shall be in United States dollars. 4.4 Overdue Payments. Any payment not received from Customer by the due date may accrue, at RO’s discretion, late charges at the rate of one and one half percent (1.5%) of the outstanding balance per month, or at the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. 4.5 Suspension of Service. If Customer’s account is 30 days or more overdue, in addition to any of its other right or remedies, RO reserves the right to suspend the Service provided to Customers, without liability to Customer, until such amounts are paid in full. 4.6 Taxes. RO’s fees are exclusive of all local, state, federal and foreign taxes, levies, or duties of any nature (“Taxes”), and Customer is responsible for payment of all Taxes, excluding only United States taxes based on RO’s income. If RO has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section 4.6, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides RO with valid tax exemption certificate authored by the appropriate taxing authority.

5. Proprietary Rights.

5.1 Reservation of Rights. Customer acknowledges that in providing the Service, RO utilizes (i) the RO name, the RO logo, the boulderlogic.com domain name, the product names associated with the Service and other trademarks; (ii) certain audio and visual information, documents, storage and other works of authorship; and (iii) other technology software, hardware, products, process, algorithm, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively “RO Technology”) and that the RO Technology is covered by intellectual property rights owned or licensed by RO (“RO IP Rights”). Other than expressly set forth in this Agreement, no license or other rights in the RO IP Rights are granted to the Customer, and all such rights are hereby expressly reserved. 5.2 License Grants. RO grants Customer and its Users a non-exclusive, non-transferable, non-sublicenseable right to access and use the Service for the purpose for which it is made available to Customer and otherwise in accordance with the terms of this Agreement. Customer grants to RO a non-exclusive, non-sublicenseable license to use, copy, store, modify and display the Customer Data solely to the extent necessary to provide the Service. 5.3 Restrictions. Customer shall not (i) modify, copy or make derivative works based on the RO Technology; (ii) dissemble, reverse engineer, or decompile any of the RO Technology; or “frame” or “mirror” any of RO’s content which forms part of the Service (other than on Customer’s own internal intranets for purposes of accessing the Service). 5.4 Customer Data. As between RO and Customer, all data submitted by Customer to the Service, whether posted by Customer or by third parties, remains the sole property of Customer. Customer Data shall be considered Confidential Information, subject to the terms of this Agreement. Notwithstanding any other provision in this Agreement, RO may provide certain User registration and statistical information such as usage or User traffic patterns in aggregate form to third parties, provided that such information does not include Customer or personally identifying information. RO may access Customer’s User accounts, including without limitation Customer Data, to respond to service or technical problems. 5.5 Suggestions, Ideas and Feedback. RO shall have the unrestricted rights to use or act upon any suggestion, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Service to the extent it does not constitute Confidential Information of Customer.

6. Confidentiality.

6.1 Definitions of Confidential Information. As used herein, “Confidential Information” means all information of a party (“Disclosing Party”) which the Disclosing Party designates in writing as being confidential when it discloses such information to the other party (“Receiving Party”), including without limitation the terms and conditions of this Agreement, Customer Data, the RO Technology, the Service, business and marketing plans, technology and technical information, product designs, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). Customer Data shall be deemed Confidential Information regardless of its written designation. Confidential Information shall not include any information that: (i) was in the possession of the Receiving Party prior to the Effective Date; (ii) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party. 6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. 6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects that confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. 6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure. 6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

7. Warranties & Disclaimers.

7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. RO represents and warrants that the Service will perform substantially in accordance with the online RO help documentation under normal use and circumstances.7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, RO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. RO HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTEGRATION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8. Limitation of Liability.

8.1 Limitation of Liability. Customer’s sole and exclusive remedy shall be repair or reinstatement of the service. However, if RO is unable to repair and reinstate the service after a reasonable opportunity to do so, Customer may elect to receive a refund for the ratable portion of fees for User Licenses. THIS REFUND ONLY APPLIES TO THE FEE FOR USER LICENSES AND DOES NOT INCLUDE OR APPLY TO A REFUND FOR OTHER SERVICES OR ANY OTHER FEES, EXPENSES OR AMOUNTS OTHERWISE PAID OR INCURRED IN CONNECTION WITH THIS AGREEMENT. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED ONE (1) YEAR’S USER LICENSE FEES. 8.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  8.3 Limitation of Action. Except of actions for non-payment or breach of either party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.

9. Terms & Termination.

9.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all User licenses granted in accordance with this Agreement have expired or been terminated. 9.2 Terms of User Licenses. User licenses commence on the start date specified in the relevant Order Form and continue for the License Term specified therein. User licenses shall expire at the end of the License Term. 9.3 Termination of Cause. A party may terminate this Agreement for cause: (1) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period or (ii) if the other party becomes the subject of petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, RO shall refund Customer any prepaid fees for the period after the date of termination. 9.4 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to RO prior to the effective date of termination. 9.5 Return of Customer Data. Upon written request by Customer within thirty (30) days of the effective date of termination, RO shall make available to Customer a file of Customer data. After such thirty (30) day period, RO shall have no obligation to maintain or provide any Customer Data. 9.6 Surviving Provisions. The following provisions shall survive the termination of expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 4, 5 (excluding Sections 5.2 and 5.4), 6, 7, 8, 9, and 10.

10. General Provisions.

10.1 Relationships to the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. 10.2 No Benefit to Others. The representations, warranties, covenant, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on other persons. 10.3 Notices. All notices under this Agreement shall be in writing and shall be delivered to the address notified by the parties to each other by a means evidenced by a delivery receipt, by facsimile or by email. Notice shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending by email. Notices to RO shall be addressed to the attention of its President. Notices to Customer shall be given by electronic mail to the individual designated as the Contact on the Order Form, or by means reasonable under the circumstances, including an e-mail to a known contact. 10.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 10.5 Severability. If any provision of this Agreement is held by court or arbitrator or competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator or interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice of the other party. 10.6 Assignment. Neither party may assign any of its right or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, which does not involve a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section 10.6 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 10.7 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of Colorado without regard to its conflict of laws provisions. 10.8 Arbitration. Any dispute arising out of or relating to this Agreement other than a dispute requiring urgent relief or concerning either parties’ intellectual property rights shall be resolved solely by final and binding arbitration as follows. Unless the parties otherwise agree in writing, the arbitration shall be conducted in Colorado before a single arbitrator. The arbitrator shall have relevant knowledge and/or experience in Internet-based online services and shall be jointly selected and mutually approved by the parties or, if the parties are unable to agree, shall be appointed by the American Arbitration Association (“AAA”). The arbitration shall be conducted in accordance with the AAA’s rules of commercial arbitration. The parties initially shall share equally the fees and expenses of the arbitration. However, the arbitrator shall be authorized to award to the prevailing party all such fees and expenses (including without limitation reasonable attorney’s fees). The arbitrator shall have sole and exclusive authority to determine the arbitrability of any dispute hereunder. Any arbitration decision so rendered shall be final and binding, and judgment thereon may be entered in any court of competent jurisdiction. 10.9 Venue. The federal courts of the United States in Colorado and the state courts of the State of Colorado shall have exclusive jurisdiction to enforce this Agreement (including Section 10.8 and any arbitration award made thereunder) or to otherwise adjudicate any dispute arising out of, or relating to, this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non convenes or otherwise. 10.10 Export Control Laws. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. 10.11 Entire Agreement and Construction. This Agreement, the Order Forms, any approved additional Order Forms and any web pages incorporated herein by reference, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this agreement. Except as contemplated to the contrary herein with respect to Order Forms, no modifications, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. In the event of any conflict between the provisions in the Agreement and any Exhibit, Order Form or incorporated web pages, the terms of this Agreement shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement. 10.12 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.

Exhibit A: Professional Services

1. Definitions. Capitalized terms used but not defined in the Agreement shall have the meanings set forth in this Section 1: “RO Property” means (a) all software, documentation, tools, routines, programs, designs, technology, ideas, know-how, processes, techniques and inventions that RO makes, develops, conceives or reduces to practice, whether alone or jointly with others, either (i) prior to, contemporaneously with, or subsequent to the term of this Agreement outside of the performance of Professional Services, or (ii) in the course of performing the Professional Services, and (b) all enhancements, modifications, improvements and derivative works of the Software and of each and any of the foregoing. “Deliverable” means a deliverable delivered pursuant to a Statement of Work.

2. Customer’s Obligations. 2.1 Access. Customer shall at its own expense provide or make available to RO access to the Customer’s premises, systems, telephone, terminals and facsimile machines and all relevant information, documentation and staff reasonably required by RO to enable RO to perform the Professional Services. 2.2 Maintenance of Access Conditions. Customer is responsible for maintaining the conditions of access specified above and in a Statement of Work. RO may suspend its obligations during such period that such conditions of access are not maintained and Customer agrees to reimburse RO for any reasonable costs incurred as a result of such suspension at its then current time and materials rates, plus reimbursable expenses. 2.3 Other Obligations. Customer agrees to perform its obligations hereunder (including the Statement of Work) in a timely manner and shall co-operate and provide RO with requested information to enable RO to perform the Professional Services. 2.4 Customer Property. In the event the Professional Services require RO’s access to any information and/or materials that is not proprietary to RO and which are in Customer’s possession, custody or control (“Customer Property”), Customer warrants that it has the legal right to permit RO to have access to such Customer Property and shall indemnify, defend and hold RO, its officers, employees, personnel, agents and representatives harmless from and against any and all claims, liabilities, damages and expenses (including reasonable attorneys’ fees), arising out of the Customer’s breach of this Section 2.4.

3. Cost and Schedule Estimates; Project Change Requests. 3.1 Estimated Cost and Timeframes of Projects. Customer acknowledges that costs, time frames and dates for completion of the Professional Services as set out in a Statement of Work are estimates only and the ability to meet them is influenced by a range of factors including: (a) the developing nature of the scope of work described in the Statement of Work; (b) the performance of third party contractors involved in the process; (c) the contribution of resources by Customer; and (d) times of response by and level of co-operation of Customer. Obligations as to time are therefore on a “reasonable efforts” basis only and RO shall not be liable for failure to meet time frames or completion dates except to the extent of RO’s negligence. In addition, RO shall not be liable for failure to meet time frames or completion dates for Professional Services to the extent any such failure is due to an act or omission of Customer. 3.2 Changes. Any dates or time periods relevant to performance by RO hereunder will be appropriately and equitably extended to account for any delays resulting from changes due to Customer’s acts or omissions. If either party proposes in writing a change to the scope or timing of the Professional Services, the other party will reasonably and in good faith consider and discuss with the proposing party the proposed change and a revised estimate of the costs for such change.

4. Acceptance. Without limiting any applicable warranties set forth in this Agreement, the Professional Services will be deemed accepted upon performance and any Deliverables delivered pursuant to a Statement of Work will be deemed accepted upon delivery to Customer.

5. Fees and Expenses. Customer will pay all Professional Services Fees to RO in accordance with the payment schedule and terms set forth in the applicable Statement of Work. In the event a Statement of Work does not reference any specific pricing, such Professional Services shall be performed at RO’s then-current consulting rates on a time and materials basis; that is, Customer shall pay RO for the time spent performing the relevant Professional Services, plus materials, taxes and expenses. Customer will reimburse RO for all reasonable out-of-pocket expenses (including travel and accommodation expenses) incurred by RO in providing the Professional Services.

6 Ownership and License. RO shall retain all right, title and interest in and to RO Property and all Intellectual Property Rights therein. Without limiting the generality of the foregoing, Customer acknowledges and agrees that: (i) any configuration or deployment of the Software, Deliverables and/or Documentation shall not affect or diminish RO’s rights, title and interest in and to the Professional Services, Deliverables, Software and/or Documentation; and (ii) if Customer suggests any new features, functionality or performance for the Professional Services, Software and/or Documentation that RO subsequently incorporates into the Professional Services, Software and/or Documentation, Customer hereby grants RO a worldwide, non-exclusive, royalty-free, perpetual right and license to use and incorporate such suggestions into the Professional Services, Software and/or Documentation. Customer acknowledges that the incorporation of such new features, functionality, or performance shall be the sole and exclusive property of RO and all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon RO pursuant to the terms of this Agreement. Provided that Customer is not in breach of any material term of this Agreement or any Statement of Work, RO grants Customer a non-exclusive, non-transferable license, without rights to sublicense, to use the RO Property that is incorporated into a Deliverable, solely for Customer’s own internal business purposes in connection with the use of the Deliverable and the Software and solely for so long as any license to the Software granted pursuant to this Agreement remains in effect.

 

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