BY USING THE SOFTWARE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THEM, DO NOT USE THE SOFTWARE. AS DESCRIBED BELOW, USING THE SOFTWARE ALSO OPERATES AS YOUR CONSENT TO THE TRANSMISSION OF CERTAIN COMPUTER INFORMATION DURING ACTIVATION, VALIDATION AND FOR INTERNET-BASED SERVICES.

This Agreement is intended to cover acquisitions of licenses for use of PalMate Software from time to time during the term of the Agreement. The acquisition of the licenses will be covered by the following terms:

GENERAL/DEFINITIONS

  1. Agreement Materials. This Agreement initially consists of the main
    body hereof, in addition to attached materials: Order Form.
  2. Additional Order Forms. The Customer is initially requiring one or
    more licenses for use of the PalMate Software as described in the
    attached Order Forms. When the Customer acquires additional PalMate
    Software licenses, these acquisitions may be covered by the
    addition of consecutively numbered Order Forms to this Agreement.
    Each Order Form will be signed by both parties and will operate as
    an amendment to this Agreement.
  3. Conflicting Terms. If the terms of an Order Form conflict with
    terms of the main body of this Agreement, the terms of the Order
    Form will be controlling.
  4. Definition of Designated Hardware. “Designated Hardware” means the
    specific processor configuration and system software identified
    under the corresponding heading in each corresponding Order Form.
    The Designated Hardware describes the system on which the PalMate
    Software associated with the Order Form will be used.
  5. Definition of PalMate Authorized Hardware Series. “PalMate
    Authorized Hardware Series” means computer systems for which AMS
    supports use of the PalMate Software thereon. The current PalMate
    Authorized Hardware Series are set forth at website address
    http://www.PalmateERP.com/msa (“Software Website”). AMS may modify
    the PalMate Authorized Hardware Series from time to time during the
    term of this Agreement.
  6. Definition of PalMate Software. “PalMate Software” means the
    PalMate Software packages identified in the attached Order Forms.
    Each component of the PalMate Software is defined as a “PalMate
    Software Module.” Software available from AMS is listed at the
    Software Website. The list of available software may be modified by
    AMS from time to time during the term of this Agreement. The term
    “PalMate Software” shall also include all Documentation as defined
    in Paragraph #7 and all Enhancements as defined in Paragraph #8.
  7. Definition of Documentation. “Documentation” means materials made
    available to the Customer by AMS to facilitate use of the PalMate
    Software. Advertising or similar promotional materials are not
    considered to be part of the Documentation.
  8. Definition of Enhancements. “Enhancements” mean modifications,
    corrections, new releases and updates to the PalMate Software, as
    may be developed by AMS from time to time during the term of this
    Agreement. Enhancements will be provided to the Customer as part of
    the Client Support Services. However, the term “Enhancements” will
    not include software which consists of additional features,
    functions, or customizations which are developed and licensed
    separately by AMS.
  9. Definition of Primary Facility. “Primary Facility” means, with
    respect to each PalMate Software license and Order Form, the
    Customer’s facility at which the application server hosting the
    PalMate Software and database will reside.
  10. Definition of Integrated Facility. “Integrated Facility” means any
    alternate logical Customer location requiring an additional
    application server that shares the same database with the Primary
    Facilityís application server.
  11. Definition of Client Support Services. “Client Support Services”
    are made available to the Customer for each PalMate Software
    license associated with a given Order Form. Details regarding the
    current Client Support Services being offered by AMS are set forth
    at the Software Website. AMS may modify the Client Support Services
    from time to time during the term of this Agreement.
  12. Definition of Order Form Term. “Order Form Term” means the time
    period during which the Customer has rights to use the PalMate
    Software license associated with the given Order Form.
  13. Definition of Responsibilities for Customer Communications
    Requirements. “Customer Communications Requirements” mean the
    communications equipment, protocols, and internet communications
    which will be required to be maintained by the Customer for use and
    proper function of the AMS software. The Customer Communications
    Requirements are set forth at the Software Website. The Customer
    understands that the internet connection between the Customer and
    AMS must be maintained at all times, and is required for a number
    of functions, including the following:
    a. Communications with the PalMate Software residing at the
    Customer’s Primary Facilities, so that AMS can ensure that the
    Customer’s accounts are up-to-date and are using no more than
    the authorized number of Connection Licenses.
    b. So as to provide communications between the Customer and help
    files.
    c. So as to ensure that all communications occur between the
    Primary Facilities and AMS as required, so that AMS can
    appropriately audit the Primary Facilities. The Customer
    understands that if there is no communication between any
    Primary Facility and AMS for a period exceeding thirty (30)
    days, the Customer will be considered in material breach of
    this Agreement, and AMS shall have the right to immediately
    suspend all rights of the Customer under its licenses to use
    the PalMate Software and receive services from AMS.
  14. Definition of Customer Information. “Customer Information” means
    data, information, or communications sent or entered by the
    Customer while accessing and using the AMS software.

SOFTWARE LICENSES

  1. PalMate Software Licenses. During the term of this Agreement, the
    Customer may acquire personal, nonexclusive and nontransferable
    licenses to use the PalMate Software in accordance with the terms
    identified in an attached Order Form describing details associated
    with such use. For each license, the Customer shall have the right
    to use the corresponding PalMate Software for the length of the
    Order Form Term, which will commence upon AMS providing access to
    the PalMate Software by the Customer. These licenses do not consist
    of any transfer of title or any proprietary rights to the Customer
    with respect to the PalMate Software.
  2. Delivery. For each copy of the PalMate Software license identified
    in an Order Form, AMS shall make available to the Customer one (1)
    copy of the PalMate Software in object code format. The
    Documentation will also be made available digitally by AMS through
    the Customerís internet connection.
  3. Scope of License. The rights granted herein to the Customer for use
    of each PalMate Software license identified in the attached Order
    Forms allow the Customer to execute the given PalMate Software only
    on the Designated Hardware associated with the corresponding Order
    Form, and only for the number of Connection Licenses also identified
    in the Order Form. To the extent that the Customer may wish to use
    any given PalMate Software server copy associated with a particular
    Order Form with a processor configuration or system software other
    than the Designated Hardware associated with the corresponding Order
    Form, the Customer understands that such use may require payment of
    additional license fees to those identified in the corresponding
    Order Form. The Customer will notify AMS in the event the Customer
    wishes to change or add additional Primary Facilities and/or
    Integrated Facilities. The Customer understands that a change in
    the number of Integrated Facilities will incur one-time setup fees
    per Integrated Facility.
  4. Copying. The Customer may copy the PalMate Software only for
    purposes of making backup and archival copies, as necessary for
    support and as otherwise permitted under U.S. copyright law. All
    titles, trademarks, copyright notices and other proprietary
    markings must also be reproduced.
  5. Connection Licenses. Use of the PalMate Software by the Customer is
    initially limited to the designated number of Connection Licenses
    described in the corresponding Order Forms. The Customer shall have
    the right to increase the number of Connection Licenses, with the
    understanding that such increase may require additional license fees.
  6. Limitations on Use of PalMate Software. In addition to limitations
    as may be set forth elsewhere in this Agreement, and except as
    expressly provided in this Agreement, the Customer shall not
    undertake any of the following activities:
    a. Decompile, disassemble, duplicate or reproduce, in whole or in
    part, any of the PalMate Software without the prior written
    consent of AMS.
    b. Undertake any “work around” of technical information within the
    PalMate Software;
    c. Use the PalMate Software in any manner that violates any
    federal or state statutes or regulations;
    d. Rent, lease or lend the PalMate Software to third parties, use
    the PalMate Software to provide processing services to third
    parties, use the PalMate Software on a “service bureau” basis,
    or otherwise use the PalMate Software for commercial software
    hosting services.
  7. Responsibility for Customer Information. The Customer hereby grants
    to AMS all rights to the Customer Information necessary for AMS to
    provide the PalMate Software and services associated therewith to
    the Customer. The Customer understands that AMS exercises no
    control whatsoever over the content of the Customer Information,
    and it is the sole responsibility of the Customer, at its own
    expense, to provide the Customer Information, and to ensure that it
    complies with all applicable laws and regulations now in place or
    enacted in the future. The Customer agrees that AMS shall have no
    obligations whatsoever to keep or maintain any Customer Information
    obtained in the course of performance of the PalMate Software and
    services associated therewith. AMS shall have no responsibilities
    for any deletion, loss, damage, destruction or failure to backup
    any Customer Information. In the event of termination of this
    Agreement for any reason whatsoever, the Customer shall have sole
    responsibility for extracting Customer Information and related data
    files.
  8. Escrow. AMS shall deposit a current version of the source code for
    the PalMate Software with a third party ìEscrow Agentî, with the
    Escrow Agent having instructions to release a copy of the source
    code to the Customer, as requested by the Customer, if AMS becomes
    insolvent, is adjudged bankrupt or otherwise makes an assignment
    for the benefit of creditors.
  9. Export Restrictions. The Customer will not use or otherwise
    transfer any PalMate Software outside of the country of the Primary
    Facilities in which the PalMate Software initially resides.

SUBSCRIPTION FEES

  1. Fees. In consideration for the licenses granted to the Customer as
    set forth herein, and the rights granted to the Customer for use of
    the PalMate Software identified in the attached Order Forms, the
    Customer shall pay to AMS the “Subscription Fees” described in each
    of the attached Order Forms. The Subscription Fees for each Order
    Form Initial Term (as defined in Paragraph #30 of this Agreement)
    shall be paid prior to commencement of use of the PalMate Software
    by the Customer. Subscription Fees for each Order Form Renewal
    Period (as defined in Paragraph #30 of this Agreement) shall be
    paid to AMS by the Customer no later than the commencement of the
    Order Form Renewal Period. Any unpaid amounts of the Subscription
    Fees shall be subject to late charges of one point five percent (1.5%)
    per month (from the due date), or the highest rate allowed by law,
    whichever is less. In the event the Customer adds Connection Licenses
    within a monthly billing cycle, fees for the additional Connection
    Licenses will be charged for the entirety of the month. Any
    payments which are to be made on a monthly basis will always be due
    on the first of each month via preauthorized credit card or ACH payment.
    If a preauthorized transaction is returned for any reason, the Customer
    shall have thirty (30) days to pay before all services associated
    with the PalMate Software are suspended. In the event the rights of
    the Customer to use the PalMate Software and receive services
    associated therewith are suspended under this Paragraph or
    otherwise for a material breach of this Agreement by the Customer,
    the Customer shall have ongoing obligations for payments of
    Subscription Fees during the period of suspension.
  2. Taxes. Any sales, use, excise, personal property, or other taxes
    (whether federal, state, or local) which may be imposed with
    respect to this Agreement shall be paid by the Customer. If the
    Customer considers itself exempt from any state or other taxes, the
    Customer must, prior to use of the PalMate Software, and prior to
    any billing or payments made to AMS, provide AMS with a copy of the
    Customer’s Certificate of Tax Exemption.
  3. Changes in Subscription Fees. For a PalMate Software license
    associated with any given Order Form, AMS shall have the right to
    modify the Subscription Fees for any Order Form Renewal Period. AMS
    shall be subject to providing the Customer with at least sixty (60)
    days’ written notice of the intended adjustment prior to
    commencement of the corresponding Order Form Renewal Period.

IMPLEMENTATION, TRAINING AND USER SUPPORT SERVICES

  1. Implementation and Training. If requested by the Customer, and
    subject to availability of AMS personnel, AMS may provide
    installation, implementation, and/or training of the PalMate
    Software on the Customer’s Designated Hardware for any given Order
    Form, at AMS’s then current rates for the same and in addition to
    reasonable travel and living expenses, if necessary. Unless
    otherwise agreed, fees and expenses for any such services shall be
    invoiced to the Customer once per month, and shall be due and
    payable within fifteen (15) days following the date of invoice.
    Further, any services as described in this Paragraph #27 may be
    subject, at AMS’s option, to AMS and the Customer executing a
    separate services agreement for the work to be performed by AMS.
  2. Client Support Services. For each PalMate Software license
    associated with a given Order Form, AMS shall provide to the
    Customer the Client Support Services described at the Software
    Website. The Client Support Services shall generally be provided
    for the entirety of the Order Form Term. Except in the event of a
    material breach of this Agreement by the Customer, or in the event
    of a suspension of the Customer’s rights to use the PalMate
    Software as a result of the suspension of rights under other terms
    of this Agreement, AMS shall have no right to cease providing
    Client Support Services for any given PalMate Software, except in
    the event that AMS ceases to provide support services to its
    business customers in general for the particular PalMate Software,
    or for use of the particular PalMate Software on the Designated
    Hardware. The Client Support Services are to be provided to the
    Customer without charge, except as otherwise described at the
    Software Website.

TERM/TERMINATION

  1. Term. The term of this Master Subscription Agreement (“Master
    Subscription Agreement Term”) shall commence as of the Master
    Subscription Agreement Effective Date set forth at the outset hereof,
    and shall continue until such time as the Master Subscription
    Agreement is terminated in accordance with other terms and conditions
    hereof.
  2. Order Form Term. As described in Paragraph #12, the Customer shall
    have the right to use any given PalMate Software license associated
    with and described in an Order Form for the Order Form Term. The
    Order Form Term shall first consist of the Order Form Initial Term
    (defined in the Order Form). Following the Order Form Initial Term,
    the rights of the Customer to continue use of the PalMate Software
    license and to receive Client Support Services for the same shall
    automatically be renewed and continue in effect for successive
    twelve (12) month periods, characterized as “Order Form Renewal
    Periods.” However, the Customer shall have the right to terminate
    the Order Form Term and terminate the Customer’s rights to continue
    use of any given PalMate Software license by providing AMS with at
    least thirty (30) days written notice prior to the end of the then
    current Order Form Initial Term or Order Form Renewal Period, as
    the case may be.
  3. Termination for Cause. If the Customer commits a material breach of
    this Agreement, and should such breach not be corrected within
    thirty (30) days following receipt by the Customer of written
    notice from AMS, this Agreement may be terminated by AMS without
    further notice. Notwithstanding the foregoing, in the event the
    Customer fails to make any payments when due (including any return
    of transactions), AMS shall have the right to terminate all
    services and rights of use by the Customer of the PalMate Software
    licenses at any time following thirty (30) days after the date any
    such payments were made. AMS shall make reasonable efforts to
    notify the Customer of the occurrence of a nonpayment or failure of
    a transaction within a reasonable period of time following AMS
    learning of the nonpayment or failure of transaction.
  4. Effect of Termination. Upon termination of the rights of the
    Customer to use a given PalMate Software license, the rights granted
    herein to the Customer for the given PalMate Software shall be of
    no further force or effect whatsoever, and the Customer shall,
    within ten (10) days following the end of the then current Order
    Form Initial Term or Order Form Renewal Period (as the case may
    be), either deliver to AMS or destroy or permanently purge all
    portions of the PalMate Software (including all copies) then in the
    possession or under the control of the Customer. The Customer will
    certify such action in writing to AMS.

PROTECTION OF PROPRIETARY INFORMATION & OBLIGATIONS OF NON-DISCLOSURE

  1. General. The Customer acknowledges that the information contained
    in the PalMate Software is confidential and comprises trade secrets
    and other proprietary data which are the property of AMS or others
    from which AMS holds rights for the marketing and distribution
    thereof. The Customer agrees not to provide or otherwise make
    available, nor permit or otherwise allow any of its employees to
    provide or otherwise make available the whole or any portion of the
    PalMate Software, in any form, to any person other than its
    employees requiring the same for purposes of carrying out the
    rights, duties and obligations of the Customer pursuant to this
    Agreement. The Customer shall take appropriate action by
    instruction or agreement with its employees permitted access to the
    PalMate Software to notify those employees of their obligations
    under this Agreement with respect to use, reproduction, protection
    and security of the same. The non-disclosure obligations of the
    Customer as set forth herein shall continue after the termination
    of this Agreement and until such time that neither AMS nor any of
    its licensors hold any patent, copyright, trade secret or other
    proprietary rights in the PalMate Software.
  2. For Customer Information. AMS acknowledges that the Customer
    Information is confidential and may comprise trade secrets and
    other proprietary data which are the property of the Customer. AMS
    agrees not to provide or otherwise make available, nor permit or
    otherwise allow any of its employees to provide or otherwise make
    available the whole or any portion of the Customer Information, in
    any form, to any person other than its employees requiring the same
    for purposes of carrying out the rights, duties and obligations of
    AMS pursuant to this Agreement. AMS shall take appropriate action
    by instruction or agreement with its employees permitted access to
    the Customer Information to notify those employees of their
    obligations under this Agreement with respect to use, reproduction,
    protection and security of the same. The non-disclosure obligations
    of AMS as set forth herein shall continue after the termination of
    this Agreement and until such time that the Customer holds no
    proprietary rights in the Customer Information.

WARRANTIES/INDEMNIFICATIONS

  1. PalMate Software. For each PalMate Software license acquired by the
    Customer, AMS warrants that the PalMate Software shall perform
    substantially in accordance with applicable functional
    specifications as set forth in the Documentation. If a PalMate
    Software copy fails to perform in accordance with the
    specifications, the Customer’s preferred remedy is to notify AMS in
    writing, and for AMS to undertake reasonable efforts to correct the
    nonperformance.
  2. Disclaimer. Except as expressly set forth in Paragraphs #35 through
    #41, AMS MAKES NO WARRANTY WITH RESPECT TO THE PALMATE SOFTWARE OR
    AMS’S PERFORMANCE OF SERVICES UNDER THIS AGREEMENT, EXPRESS OR
    IMPLIED, AND AMS HEREBY DISCLAIMS THE IMPLIED WARRANTIES OF
    MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In no event
    shall AMS be liable for any loss of profits, loss of use,
    interruption of business or indirect, special, incidental or
    consequential damages of any kind in connection with or arising out
    of the furnishing, performance or use of the PalMate Software or
    services acquired from AMS, whether alleged as a breach of contract
    or tortious conduct, including negligence. AMS’s liability
    hereunder for damages shall not, in any event, exceed the amounts
    paid by the Customer to AMS for software or services as to which
    the claim arose. The Customer shall indemnify and hold AMS harmless
    from claims and demands of any third parties arising from the use
    by the Customer of the PalMate Software, except for claims of
    patent and copyright infringement in accordance with Paragraph #36.
  3. Third-Party Integrations. The Customer understands that AMS
    supports certain third-party software integrations, as expressly
    described at the Software Website. To the extent commercially
    feasible, AMS shall undertake reasonable efforts to maintain such
    supported third-party integrations. However, AMS shall have no
    responsibility or liability whatsoever for any changes made by such
    third-party software that may affect in any way PalMate Software
    integrations.
  4. Disclaimer for Liability for Data Storage Backup. The Customer
    understands that as of the Master Subscription Agreement Effective
    Date, AMS is utilizing a third-party service provider (as described
    at the Software Website) for providing AMS’s business customers in
    general with an account for a data storage backup. The service
    provided by the service provider is integrated with the PalMate
    Software for purposes of facilitating file backup. However, the
    Customer understands that all services being provided by or through
    the third-party service provider are being provided to the Customer
    on an “as-is” basis, and AMS makes no representations or warranties
    whatsoever with respect to the quality or continuance of services
    provided by the third-party service provider.
  5. Causes of Action. No action arising out of any claimed breach of
    this Agreement or transactions under this Agreement may be brought
    by either party more than two (2) years after the cause of action
    has accrued.
  6. Customer Expertise. The Customer has the requisite expertise to
    select and evaluate the PalMate Software, and to determine its
    appropriateness for the intended uses of the Customer. The Customer
    is solely responsible for the evaluation of its software and
    hardware requirements, and selection of computer systems to satisfy
    these requirements.

GENERAL PROVISIONS

  1. Non-Assignment. The Customer may not assign or otherwise transfer
    this Agreement or any rights hereunder, in whole or in part,
    whether voluntary or by operation of law, including any merger or
    consolidation, without the prior written consent of AMS.
  2. AMS Competitors. The Customer agrees that during the Master
    Subscription Agreement Term, the Customer will not engage, or enter
    into any agreement with a third party to engage, in any business
    activities which are directly or indirectly competitive with any
    business activities of AMS, without the prior, express written
    consent of AMS.
  3. Causes Beyond Control of Parties. Neither party shall incur any
    liability to the other party on account of any loss or damage
    resulting from any delay or failure to perform all or any part of
    this Agreement, where such delay or failure is caused, in whole or
    in part, by events, occurrences or causes beyond the reasonable
    control of the parties.
  4. Notices. Any notice of termination or breach of this Agreement, or
    any other notices permitted or required under this Agreement, shall
    be provided to the parties as follows: To the Customer:
    1. Mailed to the Customer’s address shown at the outset of this
      Agreement (or at such other address as the Customer may
      substitute by written notice), by first class mail or pre-paid
      post.
    2. Notice by electronic mail to the e-mail address identified on
      the Customer’s account materials.
    To AMS:
    1. By letter delivered by a nationally recognized overnight service
      or Certified Mail Return Receipt Requested to:
      Automated Machine Systems, Inc.
      6651 Pine Ridge Ct. SW
      Jenison, MI 49428
      Attn: Accounts Receivable
    2. By facsimile letter addressed to Automated Machine Systems,
      Inc., Attention: Accounts Receivable, to facsimile number
      616-662-1310.
    Any notice by electronic mail or facsimile shall be deemed to be
    given one (1) day following email or facsimile transmittal, as the
    case may be. Any notice given by overnight delivery service, first
    class mail or pre-paid post shall be deemed to be given three (3)
    days following the date of posting.
  5. Entire Agreement. This Agreement contains the entire agreement of
    the parties with respect to its subject matter, and there are no
    promises, conditions, representations or warranties except as
    expressly set forth herein. This Agreement may be modified or
    amended only by written instrument executed by authorized
    representatives of the Customer and AMS. No terms, provisions or
    conditions of any purchase order which the Customer may use in
    connection with the acquisition of the PalMate Software licenses or
    support services shall have any effect on the rights, duties, or
    obligations of AMS or the Customer in accordance with this
    Agreement.
  6. Waiver. No term or provision of this Agreement shall be deemed
    waived, and no breach excused, unless such waiver or consent shall
    be in writing and signed by the party claimed to have waived or
    consented. Any consent by any party to, or waiver of, a breach by
    the other party, whether express or implied, shall not constitute a
    consent to or waiver of any different or subsequent breach.
  7. Publication. The Customer agrees that AMS shall have the right to
    publicize the existence of this Agreement, and identify the
    Customer by name (and logo), through AMSís marketing channels
    (e.g., website, press release, advertising, sales materials and the
    like). Upon request by AMS, the Customer shall provide AMS with the
    Customer’s appropriate logo.
  8. Governing Law. This Agreement shall be interpreted and construed in
    accordance with the laws of the state of Michigan. Exclusive
    jurisdiction for any disputes arising under this Agreement shall
    reside with the State Courts located in Ottawa County, Michigan and
    the Federal Courts covering the Michigan Western district.
  9. Binding Effect. This Agreement binds and inures to the benefit of
    the parties hereto and their respective successors and permitted
    assigns.