MicroMain+Global+Contract+Agreement+-+Signed.pdf

SOFTWARE AS A SERVICE AGREEMENT 1

SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service Agreement (this “Agreement”), dated as of J a n u a r y 1 9 , 2 0 2 4 (the “Effective Date”), is by MicroMain Corporation and between the North Dakota Office of Management and Budget (“Customer”), by and on behalf of itself and its current and future Affiliates, and MicroMain Corp., a Texas corporation (“MicroMain”) by and on behalf of itself and its current and future Affiliates.

RECITALS

Customer wishes to license from MicroMain access to and use of MicroMain’s software, as further described herein, on the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows:

AGREEMENT

1. Definitions. Capitalized terms used in this Agreement and not otherwise defined shall have the following meanings:

“Additional Services” has the meaning set forth in Section 2.3.

“Affiliate” means any other entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with MicroMain or Customer. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise, or ownership of more than twenty percent (20%) of the voting securities of the person.

“Authorized Users” means all persons determined by Customer or any of its Affiliates, and authorized by MicroMain, to access and use the Services through Customer’s account as set forth in the Quote and Proposal. Without limitation, Authorized Users may include employees, contractors, and agents of Customer.

“Customer Data” means any and all information, data, materials, works, expressions, or other content, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of Customer or any Authorized User for Processing by or through the Hosted Services, or (b) collected, downloaded, or otherwise received by MicroMain or the Hosted Services for Customer or any Authorized User pursuant to this Agreement or at the written request or instruction of Customer or such Authorized User.

“Documentation” means all generally available documentation relating to the Services, including all user manuals, operating manuals, and other instructions, specifications, documents, SOFTWARE AS A SERVICE AGREEMENT 2 and materials, in any form or media, that describe any component, feature, requirement, or other aspect of the Services, including any functionality, testing, operation, or use thereof.

“Hosted Services” has the meaning set forth in Section 2.2.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable actual attorneys’ fees.

“Maintenance and Support Services” has the meaning set forth in Section 2.1.

“MicroMain Materials” means all devices, documents, data, know-how, methods, processes, software, and other inventions, trade secrets, works, technologies and materials (including any and all MicroMain Software, Documentation, computer hardware, programs, reports and specifications, client software, and deliverables), and any such related Intellectual Property Rights, that are proprietary to MicroMain and provided or used by MicroMain in performing the Services.

“MicroMain Software” or “Software” means the MicroMain software application or applications and all new versions, updates, revisions, improvements, and modifications, as may be further described in Exhibit B, of the foregoing, whether remotely accessed or locally installed, used as part of the Services.

“Process” means to perform any operation or set of operations on any data, information, material, work, expression, or other content, including to (a) collect, receive, input, upload, download, record, reproduce, store, organize, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other improvements or derivative works,

(b) process, retrieve, output, consult, use, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or (c) block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

“Quote and Proposal” means those terms and conditions of the purchase of the license, hosting and support and maintenance obligations further described herein, attached as Exhibit A.

“Representatives” means, with respect to a party, that party’s and its Affiliates’ respective employees, officers, directors, consultants, advisors, and, with respect to MicroMain, MicroMain’s subcontractors, and, with respect to Customer, its independent contractors that are Authorized Users.

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“Services” means the Maintenance and Support Services, the Hosted Services and the Additional Services.

2. Services. Throughout the Term, MicroMain shall, in accordance with this Agreement, provide to Customer and its Authorized Users with the following:

2.1 Maintenance and Support Services. The maintenance and support services set forth in Exhibit B (the “Maintenance and Support Services”).

2.2 Hosted Services. The hosting, management, and operation of the MicroMain Software and other services for remote electronic access and use by the Customer and its Authorized Users (the “Hosted Services”).

2.3 Additional Services. Additional services not included within the Maintenance and

Support Services and the Hosted Services (“Additional Services”) will be charged by MicroMain pursuant to the terms set forth in Exhibit B.

3. License Grant and Restrictions.

3.1 MicroMain Software License Grant. MicroMain hereby grants to Customer and its

Affiliates, for the Term of this Agreement, exercisable by and through their Authorized Users, a worldwide, nonexclusive and transferable (as permitted under Section 15.7) right and license to use the MicroMain Software, subject to the restrictions set forth in Section 3.3.

3.2 Hosted Services License Grant. MicroMain hereby grants to Customer and its

Affiliates, for the Term of this Agreement, exercisable by and through their Authorized Users, a worldwide, nonexclusive and transferable (as permitted under Section 15.7) right and license, subject to the restrictions set forth in Section 3.3, to:

(a) access and use the Hosted Services for Customer’s and its Affiliates’ lawful business purposes;

(b) make copies of the Documentation in connection with use of the Services under this Agreement (subject to the confidentiality provisions set forth in Section 8);

(c) perform, display, execute, reproduce, and distribute, and otherwise make available to Authorized Users, any MicroMain Materials solely to the extent necessary to use the Services in accordance with this Agreement.

3.3 License Restrictions; Ownership. Customer shall not: (a) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make any Services or MicroMain Materials available to any third party, except as expressly permitted by this Agreement; or

(b) use or authorize the use of the Services or MicroMain Materials in any manner or for any purpose that is unlawful; or (c) directly or indirectly reverse engineer, decompile, disassemble or otherwise attempt to derive source code or MicroMain’s undisclosed trade secrets from the Services or the MicroMain Materials. The licenses granted under Sections 3.1 and 3.2 may be suspended (a “Suspension Period”) without notice during any period which Customer is in default of this Agreement (including with respect to this Section 3.3) and shall terminate upon

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expiration or termination of this Agreement. During any Suspension Period, MicroMain shall not be obligated to provide the Hosted Services or the Maintenance and Support Obligations unless and until such default is cured. During any Suspension Period, MicroMain shall be excused from performing its obligations hereunder, shall not be required to refund any portion of the fees paid by Customer hereunder and Customer’s payment obligations hereunder shall not be delayed or suspended during such periods.

4. Service Availability.

4.1 Service Availability. MicroMain shall provide the Hosted Services in accordance with the Service level obligation set forth in Exhibit C (Service Availability Agreement).

4.2 Failure to Meet Availability Levels. In the event MicroMain does not meet the Availability (as such term is defined in Exhibit B) level described in Exhibit C, MicroMain shall:

(a) use its best efforts to ensure that any unmet Availability level is subsequently met; and (b) investigate and report on the causes of the problem, including a root cause analysis and the status of remedial efforts being undertaken with respect to such problems. Notwithstanding the foregoing, MicroMain will use its best efforts to minimize the impact or duration of any outage, interruption, or degradation of Hosted Services.

5. Term and Termination.

5.1 Term. This Agreement shall be effective as of the Effective Date and shall continue for the period set forth in the Quote and Proposal (“Initial Term”) unless earlier terminated as provided in Sections 5.2 or 5.3. If no term is listed in the Quote and Proposal, the Initial Term shall be one year. Upon expiration of the Initial Term, and each successive term thereafter (jointly, the “Term”), this Agreement may be renewed by Customer for successive one (1) year terms upon written notice of renewal to MicroMain at least thirty (30) days before expiration of the Term.

5.2 Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that the other party fails to perform any material obligation or is otherwise in default with respect to any material term or condition of such party under this Agreement and such failure or default continues unremedied for a period of thirty (30) days following the delivery of a written notice by the non-breaching party to the party in breach. Any notice of breach must specify the nature of the breach in reasonable detail.

5.3 Termination for Lack of Funding or Authority.

Customer by written notice to MicroMain, may terminate the whole or any part of this Agreement under any of the following conditions:

(a) If funding from federal, state, or other sources is not obtained or continued at levels sufficient to allow for purchase of the services or goods in the indicated quantities or term.

(b) If federal or state laws or rules are modified or interpreted in a way that the services or goods are no longer allowable or appropriate for purchase under this Agreement or are no longer eligible for the funding proposed for payments authorized by this Agreement.

(c) If any license, permit, or certificate required by law or rule, or by the terms

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of this Agreement, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Agreement under this subsection is without prejudice to any obligations or liabilities of either Party already accrued prior to termination.

5.4 Immediate Termination.

(a) This Agreement may be terminated immediately by either party upon written notice to the other party as follows:

(i) If the other party engages in any act that would subject either party to criminal liability in the reasonable opinion of a party;

(ii) Upon dissolution of the other party or the other party ceases doing business;

(iii) Upon the following: (a) the insolvency of a party; (b) the filing of a voluntary or involuntary petition by or on behalf of a party under federal bankruptcy Law;

(c) a party entering into an agreement with creditors for the liquidation of its assets; or (d) the appointment of a receiver or trustee to take charge of all the assets of a party.

5.5 Effect of Termination; Transition.

(a) The licenses granted by MicroMain to Customer under Sections 3.1 and

3.2 and any other express or implied license to use the MicroMain Materials shall terminate and Customer shall no longer have access to or the right to use the MicroMain Materials.

(b) Except as otherwise provided in this Agreement, upon and after the termination or expiration of this Agreement, Customer shall pay to MicroMain all charges and amounts due and payable to MicroMain, if any, for Services actually performed; and

(c) Notwithstanding any provisions of this Agreement to the contrary, upon termination or expiration of this Agreement, Customer may request and MicroMain, at its discretion, may continue to provide the Services for a reasonable fee determined by MicroMain, pursuant to the terms and conditions of this Agreement and otherwise reasonably cooperate with Customer, for a period of up to ninety (90) days from the effective date of such termination so as to allow Customer or its Affiliates to transition to use of a new service provider or prepare to support the MicroMain Software internally (“Termination Assistance Period”). Such assistance shall include copying and transferring Customer Data from MicroMain Systems to Customer Systems in a mutually agreeable format. For clarity, any Termination Assistance Period will be an extension of the Term.

5.6 Survival. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 1, Section 3.3, Section 5.5, this Section 5.6, Section 6, Section 7, Section 8, Section 10, Section 11, and Section 15.

6. Fees.

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6.1 Payment Terms. Customer agrees to pay the fees set forth in the Quote and Proposal and on the terms and conditions set forth in this Section 6. MicroMain will invoice Customer as described in the Quote and Proposal and in accordance with its standard billing policies. Interest will apply and be paid by Customer on overdue amounts at the rate of 1.5% per month (18% per annum) for each calendar month (or portion thereof) during which it remains unpaid. If the invoice states a lower rate of interest, then the lower rate shall apply. Provided that if at any time and for any reason whatsoever the interest rate payable in respect of any overdue amount would otherwise exceed the maximum rate of interest permitted to be charged by MicroMain to Customer under applicable law, then such interest rate shall be reduced automatically to the maximum rate of interest permitted to be charged under applicable law.

6.2 Additional Services. Customer understands and agrees that any services requested by that are in addition to the Maintenance and Support Services are Additional Services, subject to charge by MicroMain on a time-and-materials basis at its then current rates therefor and mutually agreed to by Customer prior to Services being delivered, and Customer agrees to pay all charges for any such Additional Services. MicroMain will invoice Customer for all fees for Additional Services (“Additional Charges”), together with all out-of- pocket expenses incurred by MicroMain in providing any services under the Agreement, including delivery and handling charges.

6.3 Disputed Invoices. If Customer in good faith disputes the amount of an invoice, then within fifteen (15) days after receipt thereof Customer will provide written notice of such dispute, including the amount in dispute and the grounds upon which the dispute is based. Upon receipt by MicroMain of a notice of dispute under this subsection, the parties will resolve the dispute in accordance with the dispute resolution procedures set out in the Agreement.

Notwithstanding the delivery of a notice of dispute under this subsection, Customer will pay any amount of the disputed invoice not forming part of the notice of dispute within the time prescribed by this Section 6. If Customer does not deliver a notice of dispute under this subsection with respect to an invoice within the 15-day period provided therefor, then Customer will be deemed to have accepted the invoice as being correct.

6.4 No Refunds. Customer understands and agrees that, upon payment to MicroMain, all charges are not refundable nor subject to credit under any circumstances except in instances wherein this Agreement may be terminated by Customer for cause and Customer has paid fees for which Services have not been delivered. In such termination for cause, MicroMain shall issue a refund to Customer.

6.5 Expenses. Customer will reimburse MicroMain for all reasonable out-of-pocket expenses incurred in connection with the Maintenance and Support Services and any Additional Services, including: (a) travel by MicroMain personnel to a site specified by Customer to perform any such services; and (b) local transportation, meals and lodging for such personnel while performing such services. Provided these expenses must be pre-approved by Customer prior to MicroMain incurring such expenses. Expenses incurred but not approved shall not be paid by Customer.

6.6 Taxes. All sales, use or goods and services taxes, customs duties, withholding taxes or similar levies of any kind (collectively, “Taxes”) arising with respect to the Services are the sole responsibility of and will be paid by Customer without deduction from the amounts owing to MicroMain under the Agreement. Customer is tax exempt and shall provide a certificate of tax

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exemption upon request of MicroMain.

7. Ownership.

7.1 Ownership of Customer Data. Customer may provide Customer Data to MicroMain in connection with this Agreement. As between Customer and MicroMain, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject only to the limited license granted in Section 7.2.

7.2 Limited License to Use Customer Data. Subject to the terms and conditions of this

Agreement, Customer and each of its Affiliates hereby grant MicroMain a limited, royalty-free, fully paid up, perpetual, nonexclusive, transferable (solely as set forth in Section 15.7), and sublicensable license to Process the Customer Data solely as necessary to provide the Services for Customer’s and such Affiliates’ benefit as provided in this Agreement for so long as Customer or any Authorized User uploads or stores such Customer Data for Processing in conjunction with the Services. Customer agrees the forgoing license grant shall allow MicroMain to aggregate and otherwise use Customer Data to improve MicroMain’s services and for MicroMain’s internal research and development purposes, provided that MicroMain complies with the confidentiality provisions set forth in Section 8. Except for this limited license, nothing contained in this Agreement shall be construed as granting MicroMain or any third party any right, title, or interest in or to any Customer Data.

7.3 Ownership of MicroMain Materials. As between Customer and MicroMain, MicroMain is and will remain the sole and exclusive owner of all right, title, and interest in and to the MicroMain Materials, subject only to the licenses granted in this Agreement. Further, this Agreement does not transfer from MicroMain to Customer any MicroMain Materials, and Customer agrees that MicroMain Materials constitute trade secrets of MicroMain and may be subject to copyright or patent protection in favor of MicroMain.

8. Confidentiality.

8.1 Confidential Information. In connection with this Agreement, each party (as the

“Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 8.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party marks as confidential or proprietary and that is protected from mandatory public disclosure under North Dakota Century Code (N.D.C.C.) ch. 44-04, which may include information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, clients, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential.”

8.2 Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a nonconfidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

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8.3 Confidentiality and Use. Each Receiving Party recognizes and agrees that the

Confidential Information of the Disclosing Party is critical to the Disclosing Party’s business and that neither party would enter into this Agreement without assurance that such information and its value will be protected as provided in this Section 8 and elsewhere in this Agreement. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for so long as Confidential Information is in its possession:

(a) not access or use, or permit the access or use of, Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

(b) except as may be permitted by and subject to its compliance with any applicable laws, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under this Agreement;

(ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.3; and (iii) are bound by confidentiality obligations at least as protective as the terms set forth in this Section 8.3;

(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;

(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ noncompliance with, the terms of this Section 8; and

(e) notify the Disclosing Party in writing promptly of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information and cooperate with the Disclosing Party to protect the confidentiality and ownership of all Intellectual Property Rights, privacy rights and other rights therein.

8.4 Compelled Disclosures. If the Receiving Party or any of its Representatives are compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement. If such an event occurs, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

8.5 Return or Destruction of Confidential Information. Subject to any contrary obligations under applicable Law and, upon a Disclosing Party’s written request or within thirty

(30) days of termination or expiration of this Agreement or, if applicable, expiration of any additional term in which MicroMain provides the Services to Customer, the Receiving Party shall, as directed by the Disclosing Party, return or destroy all of the Disclosing Party’s Confidential Information then possessed, in any form, and provide a written statement to the Disclosing Party certifying that it has complied with the requirements of this Section 8.5. In the event any applicable Law prevents a Receiving Party from returning or destroying the Disclosing Party’s Confidential Information, the Receiving Party shall retain the minimum Confidential Information necessary, apply the confidentiality, security, and other requirements of this Agreement to such Confidential Information for as long as it is maintained; and promptly return or destroy the Confidential

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Information as soon as the applicable Law permits it to do so.

9. Data Security. Throughout the Term, MicroMain shall:

9.1 maintain and enforce an information security measures including safety and physical and technical security policies and procedures with respect to its Processing of Customer Data that meet or exceed applicable industry practices and standards; and

9.2 provide technical and organizational safeguards against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling or Processing of such information that ensure a level of security appropriate to the risks presented by the Processing of Customer Data and the nature of such Customer Data, consistent with industry practice and standards.

10. Indemnification and Insurance.

10.1 General Indemnification.

(a) MicroMain shall defend, indemnify and hold harmless Customer and each of Customer’s Affiliates, and their respective officers, directors, employees, agents, contractors, permitted successors, and assigns (each of the foregoing persons, a “Customer Indemnitee”), from and against any and all Losses incurred by the Customer Indemnitee arising out of or relating to any claim, suit, action, or proceeding (each, an “Action”) by a third party (other than an Affiliate of the Customer Indemnitee) to the extent that such Losses do or are alleged to arise out of or result from any gross negligence or more culpable act or omission (including recklessness or willful misconduct) in connection with the performance or nonperformance of any Services or other activity actually or required to be performed by or on behalf of MicroMain under this Agreement.

(b) Notwithstanding Section 10.1(a) above, to the extent that any Action or

Losses described in this Section 10.1 arises out of, results from, or alleges a claim that any of the Services does or threatens to infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any third party, MicroMain’s obligations with respect to such Action and Losses, if any, shall be subject to the terms and conditions of Section 10.2 and Section

10.3. Section 10.1, 10.2 and 10.3 set forth MicroMain’s sole obligation and liability and MicroMain’s exclusive remedies with respect to any Action or Losses described therein.

10.2 Infringement Indemnification by MicroMain. MicroMain shall indemnify, defend, and hold harmless each and all of the Customer Indemnitees from and against all Losses arising out of or resulting from any Action by a third party (other than an Affiliate of the Customer Indemnitee) to the extent that such Losses arise out of or result from a claim that any of the Services, or Customer’s or any Authorized User’s use thereof, infringes upon, misappropriates, or otherwise violates any Intellectual Property Right or other right of a third party, provided, however, that MicroMain shall have no liability or obligation for any Action or Losses to the extent that such Action or Losses arise out of or results from any:

(a) alteration or modification of the Hosted Services or MicroMain Software by or on behalf of Customer or any Authorized User without MicroMain’s authorization;

(b) use of the Services by Customer or an Authorized User pursuant to this

Agreement in combination with any software or service not provided, authorized, or approved by

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or on behalf of MicroMain, if (i) no violation of third party rights would have occurred without such combination and (ii) such software or service is not commercially available and not standard in MicroMain’s or Customer’s industry and there are no Documentation or other materials that have been provided to Customer indicating MicroMain’s specification, authorization or approval of the use of the Hosted Services in combination therewith;

(c) access to or use of the Services that is expressly prohibited by this

Agreement or otherwise outside the scope of access or manner or purpose of use described or contemplated anywhere in this Agreement or Documentation;

(d) material breach of this Agreement by Customer or material noncompliance herewith by any Authorized User; or

(e) violation of any applicable Law by Customer or any of its Authorized Users.

10.3 Mitigation.

(a) If MicroMain learns of any actual or potential infringing component of the Services, MicroMain may:

(i) procure for Customer the right to continue to access and use the

Services to the full extent contemplated by this Agreement and the Documentation; or

(ii) modify or replace all actual and potentially infringing components, of the Services without reducing functionality of the Service.

(b) If neither of the remedies set forth in Section 10.3(a) is reasonably available, then MicroMain shall make good faith efforts to secure the right for Customer to continue using the Services for a transition period of up to six (6) months to allow Customer to replace the affected Services without disruption. If in good faith MicroMain cannot or reasonably believes that it cannot secure such rights for Customer, MicroMain may terminate this Agreement upon ten (10) days’ written notice.

10.4 Indemnification By Customer. INTENTIONALLY OMITTED.

10.5 Indemnification Procedure. The party seeking indemnification shall promptly notify the Indemnifying Party in writing of any Action for which it seeks indemnification pursuant to this Section 10 and cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall immediately take control of the defense and investigation of such Action and shall employ counsel to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the other party’s prior written consent. Any Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choice. A party’s failure to perform any obligations under this Section 10.5 will not relieve the Indemnifying Party of its obligations under Section 10 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.

10.6 Insurance.

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Contractor shall secure and keep in force during the term of this agreement, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

1) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $2,000,000 per occurrence.

The insurance coverages listed above must meet the following additional requirements:

1) This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage.

Less than an “A-” rating must be approved by Customer. The policies shall be in form and terms approved by Customer.

2) MicroMain shall furnish a certificate of insurance to the undersigned Customer representative prior to commencement of this Agreement.

3) Failure to provide insurance as required in this Agreement is a material breach of contract entitling Customer to terminate this Agreement immediately.

4) MicroMain shall provide at least thirty (30) day notice of any cancellation or material change to the policies or endorsements. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

11. Limitations of Liability.

11.1 EXCLUSION OF INDIRECT DAMAGES. IN NO EVENT WILL EITHER

PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL,

INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES.

11.2 CAP ON MONETARY LIABILITY. IN NO EVENT SHALL MICROMAIN’S

LIABILITY UNDER THIS AGREEMENT EXCEED TWICE THE AGGREGATE FEES

UNDER THIS AGREEMENT (INCLUDING AMOUNTS ALREADY PAID AND AMOUNTS

THAT HAVE ACCRUED BUT NOT YET BEEN PAID) IN THE TWELVE (12) MONTHS

PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

11.3 THE FOREGOING LIMITATIONS DO NOT APPLY TO LOSS TO

CUSTOMER THAT CANNOT BE LIMITED UNDER N.D.C.C. § 32-12.2-15(4).

12. Representations and Warranties.

12.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has, SOFTWARE AS A SERVICE AGREEMENT 12 and throughout the Term, the full right, power, and authority to enter into this Agreement and perform its obligations hereunder; and (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party. Each party shall comply with all applicable Laws as they concern this Agreement or the subject matter hereof.

12.2 MicroMain Warranties. MicroMain represents, warrants, and covenants to

Customer that:

(a) the MicroMain Software and Services will conform to and perform in accordance with the Documentation and this Agreement;

(b) MicroMain will perform all Services in a timely, professional, and workmanlike manner with a level of skill consistent with best industry standards, using personnel with the requisite skill, experience, and qualifications, and will devote adequate resources to meet MicroMain’s obligations under this Agreement.

12.3 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN

THIS SECTION 12, MICROMAIN HEREBY DISCLAIMS ALL WARRANTIES, WHETHER

EXPRESS, IMPLIED, STATUTORY OR OTHER, UNDER OR IN CONNECTION WITH THIS

AGREEMENT OR ANY SUBJECT MATTER HEREOF.

13. Insurance.

14. Force Majeure. Neither party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any: acts of God, flood, fire, earthquake or explosion; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; national or regional emergency; cyber-attacks or intrusions, strikes, labor stoppages or slowdowns, or other industrial disturbances; or passage of Law or any action taken by a governmental or public authority, including imposing any export or import restriction, quota, or other restriction or prohibition (each of the foregoing, a “Force Majeure Event”), in each case, provided that (a) such event is outside the reasonable control of the affected party; (b) the affected party provides prompt notice to the other party, stating the period of time the occurrence is expected to continue; and (c) the affected party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

15. Miscellaneous.

15.1 Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

15.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary

SOFTWARE AS A SERVICE AGREEMENT 13

relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

15.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without the prior written consent of the other party. The foregoing notwithstanding, MicroMain may (i) display Customer’s name and logo on its webpage titled “MicroMain Customers” (or any subsequent, substantially similar web page) featuring or displaying MicroMain’s current customers; and (ii) publish case studies or other similar marketing materials.

15.4 Notices. Except as otherwise expressly set forth in this Agreement, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to the contact party set forth in the Quote and Proposal (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.4). Notices sent in accordance with this Section 15 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if sent by facsimile or email (in each case, with confirmation of transmission) during the addressee’s normal business hours, and (d) on the next business day, if sent by facsimile or email (in each case, with confirmation of transmission) after the addressee’s normal business hours; and (e) on the fifth (5th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid. Notice under this section does not meet the statutory notice requirements for monetary claims against Customer pursuant to N.D.C.C. § 32- 12.2-04.

15.5 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

15.6 Entire Agreement. This Agreement, including its schedules and Exhibits, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The foregoing notwithstanding, unless in conflict with the terms set forth in this Agreement, in which case the terms of this Agreement shall govern, Customer and its personnel may be subject to such other terms and conditions that such parties otherwise agree upon in conjunction with the use of the MicroMain Software and Services, including any terms of use, privacy policies or similar policies.

15.7 Assignment. Neither party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without the other party’s prior written consent, which consent shall not unreasonably be withheld or delayed, provided that either party shall have the right, without the other party’s consent, to assign or otherwise transfer this Agreement (i) to any of its Affiliates; or (ii) in connection with any merger, consolidation, or reorganization involving the transferring party (regardless of whether the transferring party is a surviving or disappearing entity), or a sale of all or substantially all of the party’s business or assets relating to this Agreement to an unaffiliated third party. Customer agrees to provide notice to MicroMain within thirty (30) days of the assignment or other transfer of any

SOFTWARE AS A SERVICE AGREEMENT 14

rights hereunder. Any purported assignment, delegation, or transfer in violation of this Section

15.7 is null and void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

15.8 Cumulative Warranties. The rights of each party hereunder are cumulative, and no exercise or enforcement by a party of any right or remedy hereunder shall preclude the exercise or enforcement by that party of any other right or remedy hereunder which that party is entitled by Law to enforce.

15.9 No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

15.10 Amendment and Modification; Waiver. No amendment to or modification of this

Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise of that or any other right, remedy, power, or privilege.

15.11 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

15.12 Governing Law. This Agreement is governed by and construed in accordance with the internal Laws of the State of North Dakota without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of North Dakota.

15.13 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at Law, in equity, or otherwise.

15.14 Attorneys’ Fees. INTENTIONALLY OMITTED.

SOFTWARE AS A SERVICE AGREEMENT 15

15.15 Exhibits. All Exhibits that are referenced herein and attached hereto, or are signed by both parties on or after the Effective Date, are hereby incorporated by reference. The following Exhibits are attached hereto and incorporated herein:

Exhibit A Quote and Proposal

Exhibit B Maintenance and Support Services

Exhibit C Service Level Agreement

15.16 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

(Signatures on next page)

SOFTWARE AS A SERVICE AGREEMENT 16

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.

CUSTOMER: MICROMAIN:

MICROMAIN CORP.

By:

Name:Shane McCallay Title: Chief Revenue Officer Date: 1/24/2024

By:

Name:

Title:

Date:

William J. Phillips

Business Application Support Specialist, NDIT

1/24/2024

SOFTWARE AS A SERVICE AGREEMENT 17

Exhibit A

Quote and Proposal

Prepared for:

State of North Dakota - Facilities Mgmt

By: Darren German darreng@micromain.com

State of North Dakota - Facilities Mgmt

MicroMain The most powerful, flexible, & easy-to-use maintenance management software

Since 1991, MicroMain has helped our customers manage their assets with a relentless focus on their overall experience. Don't believe us, just ask our customers like - Teledyne Technologies, PPG, Newell Brands, Mattel, Hilton, Cardinal Health, and Medline Industries.

Increase Productivity, Reduce Downtime & Automate Your Maintenance Operations

Implementation

The implementation process is a critical step that will set the pace for your success. That is why we take this step very seriously. We have assembled a highly responsive and communicative Implementation Team with a proactive and engaging strategy to help with your implementation process. We don't stop until you're happy!

MicroMain Implementation Team

• Project Manager

• Account Executive

• Customer Success Manager

• Software Implementation Specialist

• Database Engineer

Implementation Process https://www.youtube.com/watch?v=vxZHHozWoqk

• Customer Kick-Off Call - A scheduled call with the MicroMain Implementation Team and State of North Dakota - Facilities Mgmt’s power users. Expectations are set for the project plan, timeline, deliverables, and business requirements. Upon completion, MicroMain will provide Excel data templates and documentation to assist with implementation.

• Discovery Call - This is scheduled meeting with your SIS and Project Manager. Your SIS will conduct discovery to better understand your work process and business requirements to help map out the data migration.

• Data Consultation & Migration – This stage will require weekly meetings that will consist of module overviews, data cleanup, and migration. Your team will review and approve each module before moving onto the next.

• Final Data Review – After the data migration is completed, your team will conduct a final data review. Once your team has made the final approval, your SIS will schedule your training.

• 8-Hour Online Training – Before State of North Dakota - Facilities Mgmt’s online training, your SIS will schedule a meeting to address any special requirements or schedule that State of North Dakota - Facilities Mgmt will need for the training. After this meeting, a training agenda will be provided.

• GO-LIVE – Once the training has been completed, State of North Dakota - Facilities Mgmt will be prepared to go live.

• Go Live Support - Your assigned CSM will schedule two calls on your Go Live Day.

Your CSM and SIS will be On Call for any needed support.

Product List Price Quantity State of North

Dakota - Facilities

Mgmt's Price

Subtotal

MM Global Maintenance Annual

Administrator User Login

MM Global Maintenance - Annual

Administrator User Login Fee

$1188.00 1 $1,188.00 $1,188.00

MM Global Maintenance Annual Technician

User Login Fee

MM Global Maintenance - Annual Technician

User Login Fee

$540.00 2 $540.00 $1,080.00

Advanced Implementation Plan

" "* Project Planning w/ Project Coordinator *

Assigned Customer Success Manager * Pre-

Data Consultation * Data Conversion * Data

Import * Post- Data Consultation

$2500.00 1 $2,500.00 $2,500.00

8-Hour Online Consulting & Training

Up to 8 hours of Online Consulting & Training for Global and Classic Review training terms and conditions:

http://go.micromain.com/termsandconditionso nline

$1914.00 1 $1,914.00 $1,914.00

Work Order History - Data Import (Small)

Work Order Add-On Data Conversion for

GLOBAL

$1794.00 1 $1,794.00 $1,794.00

Total $8,476.00

Annual After the 1st year $ 2,268.00

By "accepting' this proposal, client agrees to the products and services listed in this Statement of Work (SOW)

MicroMain State of North Dakota - Facilities Mgmt

Darren German

Account Manager darreng@micromain.com

512 600 4925

MicroMain State of North Dakota - Facilities Mgmt

* All Annual &…