Software Subscription Agreement

This Software Subscription Agreement (the “Agreement”), is made by and between GenRocket Inc. (“GenRocket”), with its principal place of business located at 2930 East Ojai Ave, Ojai, CA 93023 and (“Company”), and is effective as of the last date signed below or are otherwise accepted (the “Effective Date”).

Whereas, GenRocket is the owner of certain software resources that generates synthetic data that allows developers to test their software development by generating and assisting in the manipulation of data that mimics but is not real client data; and

Whereas, Company desires to acquire subscriptions for its developers and testers to use the GenRocket software functionality; and

Whereas, GenRocket sells the use of its software functionality on a subscription basis;

Now, therefore, the parties agree as follows:

1. Subscription and License Grant.

1.1 For and in consideration of the Subscription fees, GenRocket grants Company the following license rights during the Term, (all defined terms are set forth in Section 14 below):

1.1.1 Company Administrators and Users may log in to the GenRocket Site and use the Software on the GenRocket Site, in accordance with the on-line Documentation, in order to perform the tasks and functions for which the Software is intended;

1.1.2 Company may store Project setup information that is used to model, design, deploy and manage its test data, as an adjunct to its use of the Software on the GenRocket Site, in accordance with the scope of Project information storage provided as part of Company’s Subscription; and

1.1.3 Company may download the GenRocket Client-Side Software components, and GenRocket grants Company a license to install and use the Client-Side Software on Company desktop computers and servers, solely in conjunction with its use of the GenRocket Software and the Project information stored at the GenRocket Site.

1.2 Company’s use of the Software is limited to the scope (“Tier”) of license use that Company has purchased in Company’s Subscription. Tier includes both the number and identity of Users who may log in and use the Software, the number of Projects and the number of “Domains” that Company may use on the GenRocket site. The license Tier shall be defined in a quotation from GenRocket or in GenRocket’s standard license Tier policy available on the pricing page at the GenRocket website.

1.3 Company may use the Software for its own internal business operations. Unless Company and GenRocket have executed a Service Provider Addendum, Company may not use the Software to perform services for third parties, nor shall it allow third parties to access the Software, except as part of providing services exclusively for Company.

1.4 Except as expressly permitted by law without the possibility of waiver, Company shall not attempt to reverse engineer, decompile or reverse assemble the Software or otherwise seek to gain access to source code or underlying algorithms for the Software. Company may not modify or create derivative works from the Software, nor shall it delete, modify or obscure any trademark, copyright notice or other proprietary notice on the Software.

2.0 Orders and Acceptance

During the Term of this Agreement Company may order and purchase Subscriptions to use the GenRocket Software by issuing purchase orders that specify the Tier of Subscription(s) that it desires to order. GenRocket shall deliver the Subscriptions by providing Company Users with access to the GenRocket Site which will enable the User to utilize the functionality of the GenRocket Software and the Service.

Acceptance. If Company has had access to the GenRocket Software prior to placing its Order via a free trial or proof of concept, then Company will be deemed to have accepted the Software upon placing its order. If Company has not had prior access to the GenRocket Software then it shall have thirty calendar days after GenRocket has provided access to accept or reject the Software. If Company has not notified GenRocket that it rejects the Software within such thirty days, Company will be deemed to have accepted the Software. Company agrees that it shall reject the Software only if the Software does not perform in accordance with its specifications.

3.0 Security.

3.1 No Personal Data. GenRocket and Company acknowledge that the data generated by the GenRocket Software as part of its functionality is “synthetic” data and does not represent, correspond to or comprise actual data from clients, suppliers or customers. GenRocket represents that in providing the Software and Service, it stores Customer meta data as part of its modeling of test data Projects but it does not, at any time, collect or store (i) data or information from or about the Company’s clients, suppliers or customers or (ii) any data considered highly sensitive personal data from Company.

3.2 Data Protection Obligations. GenRocket further represents that it has implemented and will maintain during the Term, data security features in accordance with industry standards for the type of data processed by the Software. GenRocket will comply with all applicable data privacy laws and regulations. GenRocket will provide regular training to staff and subcontractors on the security requirements involved in the provision of the Software and Services to Company.

3.3 Application Security Testing. GenRocket will annually provide to Company an executive summary of that year’s third-party vulnerability assessment/penetration test of GenRocket’s systems and networks. GenRocket will annually conduct, and provide third party attestation of, static or dynamic application security testing or penetration testing on all Software, remediate any identified high vulnerabilities and provide written remediation plans for medium and low vulnerabilities.

3.4 Confidential Information. During the course of this Agreement each party may provide to the other information that it considers to be proprietary or confidential (“Confidential Information”). Each party agrees to use reasonable commercial efforts to mark its Confidential Information with a “Confidential” or “Proprietary” legend. Each party shall hold the other’s Confidential Information in confidence, use it only to further the purposes of this Agreement and not reveal it to any third party. Each party shall disseminate the other’s Confidential Information only to those of its employees, contractors or consultants who have a need to know such information for the furtherance of this Agreement, and who have executed appropriate agreements requiring them to maintain the confidentiality of such Confidential Information. Each party’s obligations shall not extend to information generally available to or known to the public, known prior to its disclosure by the other party, independently developed, or lawfully disclosed to it by a third party. The foregoing shall not restrict any disclosure by either party required by law or government authority, provided that it gives the other party reasonable notice and opportunity to seek a protective order or other method of limiting the scope of such disclosure.

4.0 Term and Termination

4.1 Company’s subscription and license to use the Software shall extend for the Term that it initially purchased from GenRocket. The Commencement Date is the date that licenses are provisioned for Company and the Company Organization Admin is notified that licenses are available for use. The Term will renew, on an annual basis, unless Company gives GenRocket written notice, thirty or more days before the renewal date, that it does not wish to renew the Subscription.

4.2 Either party may terminate this Agreement if the other party (i) commits a material breach of its obligations hereunder and does not cure such breach within ten days of notice by the other party, or (ii) files for bankruptcy protection, has an involuntary petition of bankruptcy filed against it, which is not dismissed within thirty days or ceases to do business as a going concern. GenRocket may terminate this Agreement if Company attempts to assign this Agreement without GenRocket’s written permission.

4.3 Upon expiration or termination of this Agreement Company shall have ten working days to download any Project-related usage data from the GenRocket Site, at which point Company’s right and license to use the Software, either on the GenRocket servers or as downloaded to the Company environment, shall cease.

5. Payment. Company is responsible for paying the initial subscription fee, as quoted by GenRocket, within thirty days from the date of invoice, which GenRocket will issue upon Company’s Subscription order. For renewal Terms, GenRocket will issue Company an invoice forty-five days prior to the renewal date, and Company is responsible to pay the invoice prior to the renewal date. If Company does not pay the invoice when due, GenRocket may, in addition to any other available remedies, provide notice and may terminate Company’s Subscription if Company does not pay within an additional ten days. GenRocket may suspend Company’s access to the GenRocket Site or use of GenRocket Client-Side Software components during any period that Company’s payment is overdue.

6. Warranty, Maintenance and Limitation of Liability

6.1 GenRocket represents and warrants that it has all necessary rights, approvals and licenses to perform its obligation under this Agreement. GenRocket further warrants that during the Term, the Software will conform in all material respects to the Documentation. If Company notifies GenRocket that the Software is not performing in accordance with the Documentation, GenRocket will use commercially reasonable efforts to remedy or fix such defect. GenRocket will also install any new versions and releases of the Software and make available any new versions and releases of the Client-Side Software. In addition, GenRocket represents and warrants that the GenRocket Software will not contain any computer instructions, circuitry or other technological means such as viruses, Trojan horses, worms or like destructive code, whose purpose or effect is to disrupt, damage, provide covert access to, or interfere with use of the Software or Company’s computer and communications facilities and GenRocket will use commercially reasonable efforts to prevent the introduction of such harmful code to the GenRocket Software during the Term.

6.2 EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, GENROCKET DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT. GENROCKET DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.

6.3 EXCEPT FOR GENROCKET’S INDEMNITY OBLIGATIONS BELOW (1) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, PROFIT OR BUSINESS, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN AN ACTION OF CONTRACT, TORT OR OTHER LEGAL THEORY(S) AND (2) EACH PARTY’S LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR TORT), SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID OR PAYABLE BY COMPANY DURING THE TWELVE MONTHS PERIOD PRIOR TO WHICH THE CAUSE OF ACTION ACCRUED.

7. Support

During any Subscription Term GenRocket shall provide to Company the Support described in Appendix 1 to this Agreement, in accordance with the Service Levels provided therein.

8. Training
During any Subscription Term GenRocket shall provide Company with access to the GenRocket “Flight School” on-line training programs. Company shall have unlimited rights to view Flight School training videos by an unlimited number of people.

9. Indemnity

9.1 GenRocket agrees to defend, indemnify and hold Company harmless from and
against any and all claims, charges or legal actions, (collectively “Claims”), alleging that the Software infringes or violates any third party’s copyright, patent, trade secret, trademark, or other intellectual property right and will pay all liabilities, judgments, costs, and expenses (including reasonable attorneys’ fees) awarded pursuant to such Claim. If seeking indemnification, Company will give prompt written notice to GenRocket, allow GenRocket the exclusive right to direct the defense and settlement of any such claim and provide GenRocket, at GenRocket’s expense, with information and assistance reasonably necessary for such defense.

9.2 In the event that the Software, or any portion thereof, is held, or in GenRocket’s reasonable opinion is likely to be held, to be infringing, GenRocket may, at its option and sole expense, either: (i) secure for Company the right to continue the use of such infringing item; or (ii) modify or replace such item with a functionally equivalent non-infringing item or, if neither of the foregoing is reasonable available, (iii) GenRocket may discontinue Company’s subscription and refund the fees paid by Company for the Software for the remaining balance of the Term.

9.3 GenRocket shall have no obligation hereunder to indemnify Company to the extent that a Claim is based on (i) Company’s combination or use of the Software with items not supplied by GenRocket; (ii) the modification of the Software by anyone other than GenRocket.

10. Business Continuity

GenRocket will maintain and annually test a comprehensive business continuation plan (“BCP”) in accordance with best industry practice for restoring any of its critical business functions that could reasonably have an impact on Company’s ability to provide the Subscription Service. Company will provide a summary of its BCP as it relates to providing the Subscription Service to Company.

11. Insurance. GenRocket shall maintain insurance with financially sound and reputable insurance companies in such amounts and against such risks as is customarily carried by responsible companies/firms in GenRocket’s industry engaged in similar businesses and in similar geographic areas. At a minimum, during the term of this Agreement, GenRocket agrees to maintain the following insurance levels per occurrence: Workers Compensation at statutory limits, Employers Liability at US$500,000, Comprehensive General Liability at US$2,000,000, Professional (Errors & Omissions) Liability at US$1,000,000. If Company reasonably requests, GenRocket shall provide a copy of a certificate of insurance as it relates to providing the Software and Services. Neither the existence of nor the assent by Company to the types or limits of insurance carried by GenRocket will be deemed a waiver or release of GenRocket’s liability or responsibilities under this Agreement.

12. U.S. Government Restricted Rights. The GenRocket Software is a commercial product, developed at private expense, and provided with Restricted Rights. Use, reproduction, release, modification or disclosure of the GenRocket Software, or any part thereof, including technical data, by the Government is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies.

13. Miscellaneous

13.1 Company agrees to work in good faith to permit GenRocket to identify Company as a GenRocket customer on the GenRocket website. GenRocket agrees to follow all guidelines Company may provide with regard to trademark and trade name usage and to obtain final approval for its proposed use.

13.2 Neither party may assign this Agreement, or its rights or obligations hereunder without the prior written consent of the other party, except that either party may assign all of its rights and obligations hereunder to a successor party in the event that such party merges or sells its relevant assets to such successor party, or engages in a similar type transaction, and provided that such successor party agrees to be bound by all of the terms and conditions of this Agreement.

13.3 Each party shall comply with all applicable laws and regulations in its performance under this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of California (excluding its choice of law rules.) The exclusive jurisdiction for any implementation of arbitral award regarding this Agreement shall be in the state or federal courts located in the California and each party hereto expressly submits to the jurisdiction of said courts and hereby waives any objection to the venue in such courts. Any dispute arising under or related to this Agreement shall be solely and finally resolved by arbitration, to be conducted in Ventura County California, by a single arbitrator appointed by the American Arbitration Association. The arbitration shall be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Nothing herein shall preclude either party from applying for emergency or interim relief, in any court of competent jurisdiction in California, to prevent irreparable harm to such party, or to preserve the status quo pending arbitration.

13.4 Neither party shall, by lapse of time or inaction, be deemed to waive any breach by the other party of this Agreement. No waiver shall be effective unless in writing and signed by the party against which enforcement of such waiver is sought. The waiver by either party of a particular breach of this Agreement shall not be a continuing waiver of such breach, or of other breaches of this Agreement. Neither party shall be in default if failure to perform any obligation hereunder is caused by conditions beyond that party’s control, including acts of God, civil commotion, strikes, labor disputes, and governmental demands or requirements.

13.5 If any provision of this Agreement shall be held unenforceable or illegal, the validity of the remaining portions or provisions hereof shall not be affected thereby. The parties agree that this Agreement is the complete and exclusive statement of their agreement and supersedes all proposals (oral or written), understandings, representations, conditions, warranties, covenants and all other communications between the parties relating thereto. The Parties may amend this Agreement only by a written instrument that refers to this Agreement and is duly signed by both parties.

14. Definitions

“Commencement Date” shall have the meaning ascribed in Section 4.1

“Documentation” shall mean the standard software manuals and descriptions for the Software that are published on and available at the GenRocket Site.

“Domains” shall mean a GenRocket component that represents a person, place or thing. For databases, a Domain is equivalent to a database table.

“GenRocket Site” shall mean the website provided by GenRocket for access by the Company that contains and provides the functionality of the GenRocket Software and Service offering.

“Organization Admin” means the person assigned by the Company to conduct administrative tasks regarding Company’s Subscriptions, such as assigning accounts to Users, monitoring levels of use, passwords, etc.

“Projects” shall mean each discrete software or product development effort conducted by Company for which Company desires to generate and use GenRocket synthetic data. Each Project often relates to one application or database.

“Project Data” means the setup data, utilized and stored by Users on the GenRocket Site, as part of their use of the Software Offering.

“Software” shall mean the GenRocket proprietary software offering which is comprised of two components, the “Site Software,” that operates on the GenRocket Site and is used remotely by Company and the “Client-Side Software” that is downloaded by Company, installed and used on Company’s local computer system.

“Service” shall mean the functionality provided by GenRocket for Users to utilize the Software and store and manipulate Project Data.

“Subscription” shall mean the right of Company Users to utilize the GenRocket Software and Service.

“Subscription Term” shall mean the duration of any Subscription as ordered and paid for by Company.

“User” or “Company User” means each individual person who are authorized by Company to use the Software Offering, in accordance with this Agreement.

GENROCKET INC COMPANY
By: ________________________________________ By: ________________________________________
Name: ________________________________________ Name: ________________________________________
Title: ________________________________________ Title: ________________________________________
Date: ________________________________________ Date: ________________________________________


Appendix 1 — Support

1. Definitions

“Defect” means any error, omission, or deviation within the Subscription Service that prevents its full successful operation in accordance with the Documentation.

“Critical Error” means a Defect that causes the Subscription Service to be unusable.

“Significant Error” means a Defect that has a material impact on Company’s ability to use the Subscription Service.

“Other Error” means a Defect that is not a Critical Error or a Significant Error.

2. Online Support.

GenRocket will provide 5 X 24 email and phone/video conference availability support as needed. GenRocket will also provide a Customer Success Manager for the purpose of providing assistance to Company in its use of the Software and Service, to resolve problems, and to communicate information.

3. Support Services

GenRocket will provide the following Support Services during a Subscription Term as part of the Subscription Fees:

  • A Customer Success Manager who will be a central point of contact from Service Provider
  • An online Knowledge Base with over 1,000 support articles, which will be available 24 hours a day at no charge
  • GenRocket Flight School online training courses which will be available to guide Company users on how to use the Service and Software
  • A 90 day customer onboarding program will be provided where the Company has access to weekly or bi-weekly 30 minute advisory calls with a Service Provider Solutions Engineer or Data Architect
  • A global support team who will be available 24 hours a day from Sunday 11:00PM Pacific to Friday 2:00PM Pacific. The support team works on a three tier escalation system. Tier 1 technical support handles all initial support inquiries. Tier 2 engineering handles escalated support issues. Tier 3 engineering handles advanced escalated support issues. While most support tickets are handled electronically the support team will schedule video support calls when needed.

4. Preventive Support.

4.1 Operational Support. GenRocket will seek to prevent any failure of the Software and Service to function in conformance with the Documentation. These efforts include, as appropriate and without limitation: (i) advising Company of all pertinent problems encountered by other Software and Service users; (ii) performing the remedial work required to prevent problems encountered by other Software and Service users from affecting Company’s use of the Software and Service; (iii) proactively remedying any security flaws; and (iv) reviewing data provided by Company on the Software and Service operation to ascertain potential problems.

4.2 Backup Support. Unless otherwise provided in an Order, GenRocket will set-up, configure, maintain, backup, and replicate Company Data across multiple locations. Replication will include a complete, unabridged copy of Company Data.

4.2.1 Transactional Backups. Every hour, all changes that have taken place in Company GenRocket Configuration and Content at Company’s primary Data Center will be transmitted to a redundant server located at Company’s alternate location at Portland (“Alternate Location”).

4.2.2 Activating Backup Server. If the Subscription Service is impaired at GenRocket’s primary Data Center, GenRocket will seamlessly transition the Subscription Service to the Alternate Location. Once the impairment is removed at GenRocket’s primary Data Center, GenRocket will be seamlessly transitioned back to the primary Data Center and all Company GenRocket Configuration will be restored at the primary Data Center.

4.2.3 Hourly Backups. GenRocket will execute a full backup of the Company GenRocket Configuration hourly.

5. Incident Response Service Level.

GenRocket shall respond to Company and provide Initial Responses, Temporary Resolutions and Final Resolutions in accordance with the time goals set forth in the table below. GenRocket will promptly correct Critical and Significant Defects. Company may report a Defect via Web site or other means made available by GenRocket. GenRocket will make every effort to correct the Defect or provide an acceptable work-around within the time frames set forth below, depending on classification of the Defect

Error Level: GenRocket’s Initial Response will be provided within: GenRocket’s Temporary Resolution will be provided within: GenRocket’s Final Resolution will be provided within:
Critical 4 hours from receipt of initial notice from Company, or other discovery, of the Error 24 hours from receipt of initial notice from Company, or other discovery, of the Error 7 days from receipt of initial notice from Company, or other discovery, of the Error
Significant 8 hours from receipt of initial notice from Company, or other discovery, of the Error 4 days from receipt of initial notice from Company, or other discovery, of the Error 14 days from receipt of initial notice from Company, or other discovery, of the Error
Other 48 hours from receipt of initial notice from Company, or other discovery, of the Error Temporary Resolution Not Required 60 days from receipt of initial notice from Company, or other discovery, of the Error

6. Subscription Updates, Subscription Enhancements, and Documentation updates. GenRocket will implement all Software Updates and Software Enhancements into the Software and Service as used by Company on a daily / weekly basis.


SUBSCRIPTION SERVICE LEVEL AGREEMENT EXHIBIT

SUBSCRIPTION SERVICE LEVEL AGREEMENT (“SSLA”) Exhibit

SUBSCRIPTION SERVICE LEVEL AGREEMENT (“SSLA”) Exhibit

1. General Subscription Service Performance Criteria.

Availability. GenRocket undertakes that the Subscription Service, including but not limited to Company’s access through the designated websites, will be available to Company a minimum of ninety-nine and seventy-five one hundredth percent (99.75%) of the time within any thirty (30) day period excluding up to 120 minutes within the maintenance window. “Availability” is defined as the ability to successfully log into the Service and receive Service data from Company. “Unavailability” consists of the number of minutes that the Service was not Available to Company, but will not include Unavailability: (a) to the extent that Company does not promptly notify GenRocket of such Unavailability and Company also fails to identify such Unavailability through its best efforts, utilizing standardized system monitoring technologies and processes; (b) resulting from (i) scheduled maintenance by GenRocket, where Company has received at least a 24 hour advance notice of such scheduled maintenance; or (ii) reasons of excusable delay, such as unavailability of communication services.

2. Notification.

Company will use commercially reasonable efforts to inform GenRocket, via e-mail, within four hours after any Unavailability. GenRocket will provide subsequent notice to Company when the Unavailability has been resolved, including the cumulative time of Unavailability.

3. Performance Remedies.

3.1 If GenRocket fails to meet the Availability criteria within any month, GenRocket will credit Company’s invoice or, in the case of prepayment, refund to Company, 10% of the Company Subscription Service monthly Subscription Fee for Service Availability of 95%-99.75% and 100% of the Company Subscription Service monthly Subscription Fee for Service Availability below 95% for that month.

3.2 If GenRocket fails to achieve 99.75% or better Availability for (i) two consecutive months; or (ii) any four month period in any rolling twelve month period, Company will have the right, at its sole option, to terminate the Agreement (in whole or in part) upon written notice to GenRocket. If Company elects to terminate the Agreement (in whole or in part) due to GenRocket’s performance, GenRocket will refund all prepaid and unearned amounts based on the remaining months of the Agreement term.

3.3 Performance Reports. GenRocket will make available to Company a monthly ‘Service Performance’ report that describes GenRocket’s compliance with each Service Performance criterion. The reports will provide sufficient detail for Company to determine whether each Service Performance criterion has been achieved.


Appendix 2 — Open Source Software

NOTE THAT THE GENROCKET SOFTWARE PRODUCT UTILIZES CERTAIN SO-CALLED “OPEN SOURCE SOFTWARE.” THIS SOFTWARE, EACH OF WHICH OPERATES AS AN INDEPENDENT SOFTWARE MODULE, IS PROVIDED TO YOU FREE OF CHARGE. IN ADDITION, THE SOURCE CODE FOR THIS SOFTWARE IS AVAILABLE TO YOU UPON REQUEST. PLEASE SEE YOUR USER DOCUMENTATION FOR DETAILS, UNDER “OPEN SOURCE SOFTWARE.”

Any such open software is free software; you can redistribute it and/or modify it under the terms of the Open Source License as is applicable to that particular software.

This “Open Source Software” is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; GENROCKET SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUPOSE. See the applicable license agreement for more details.

You should have received a copy of the GNU General Public License along with this program; (see user documentation); if not, write to the Free Software foundation, inc. 59 Temple Place – Suite 330, Boston MA 02111-1307, USA.

GenRocket makes use of the following open source software:

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