MANGAN SOFTWARE SOLUTIONS, Inc. STANDARD LICENSE (EULA) TERMS

FOR INFORMATION ONLY

© Copyright MSS All rights reserved

Title in and to this document and all information contained herein remains at all times with Mangan Software Solutions, Inc.

1. DEFINITIONS.

1. a)”Authorized User” means the following individual persons authorized to use the Software pursuant to the license granted under this Agreement, as set forth in the Order Form.

1. b)”Documentation” means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software.

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

1. d)“Licensed Materials” means Licensed Software, Documentation, and other licensed materials, individually and collectively

1. e)”Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

1. f)“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, agents, and legal advisors.

1. g)”Software” means the software programs for which Licensee has purchased a license, as expressly set forth in the Order Form.

1. h)”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.

1. i)”License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for a license granted under this Agreement.

1. j)“Support Fees” means any fees excluding License Fees, including but not limited to, software maintenance fees paid or required to be paid by Licensee.

1. k)”Order Form” means the order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the license for the Software and associated services granted under this Agreement.

1. l)“Software Maintenance Services” means the services provided to Licensee by Licensor as set forth in Schedule A.

1. m)“Third Party” means any Person other than the Licensee or Licensor.

2. LICENSE GRANT.

Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sub licensable, revocable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section2 and subject to all conditions and limitations set forth in Section 2 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:

1. a)Download, install in accordance with the Documentation one (1) copy of the Software on each of the designated computers set forth on the Order Form owned or leased, and controlled by, Licensee. Unless the Order Form expressly states that Licensee is purchasing a network license, each such computer shall be for a single Authorized User. In addition to the foregoing, Licensee has the right to make one copy of the Software solely for archival purposes and a reasonable number of copies of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy (ies). All copies of the Software made by the Licensee:

1. i)     will be the exclusive property of the Licensor;
2. ii)     will be subject to the terms and conditions of this Agreement; and

                                              iii)     must include all trademarks, copyright, patent and other Intellectual Property Rights notices contained in the original.

1. b)Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.
2. c)Download or otherwise make one (1) copy of the Documentation per copy of the Software permitted to be downloaded in accordance with this Agreement and use such Documentation, solely in support of its licensed use of the Software in accordance herewith.  All copies of the Documentation made by Licensee:
3. i)     will be the exclusive property of Licensor;
4. ii)     will be subject to the terms and conditions of this Agreement; and

                                              iii)     must include all trademarks, copyright, patent and other Intellectual Property Rights notices contained in the original.

1. d)Transfer any copy of the Software from one computer to another, provided that:
2. i)     the number of computers on which the Software is installed at any one time does not exceed the number permitted under Section 2 (a); and
3. ii)     Licensee notifies Licensor in writing of each such transfer, including in such notice the information required under this Agreement for each computer on which the Software is installed.

3. USE RESTRICTIONS. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
4. a)use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2.
5. b)provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Licensee, with access to or use of the Software or Documentation;
6. c)modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
7. d)combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
8. e)reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
9. f)remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
10. g)except as expressly set forth in Section 2 (a) and Section 2 (c), copy the Software or Documentation, in whole or in part;
11. h)rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service;
12. i)use the Software or Documentation in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:
13. i)     power generation systems;
14. ii)     aircraft navigation or communication systems, air traffic control systems or any other transport management systems;

                                              iii)     safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and

1. iv)     military or aerospace applications, weapons systems or environments;
2. j)use the Software or Documentation in violation of any law, regulation or rule; or
3. k)use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor’s commercial disadvantage.

4. COMPLIANCE MEASURES.
5. a)The Software contains technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under this Section 4. Licensee shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
6. b)On Licensor’s written request, Licensee shall conduct a review of its and its Authorized Users use the Software and certify to Licensor in a written instrument signed by an officer of Licensee that it is in full compliance with this Agreement or, if Licensee discovers any noncompliance:
7. i)     Licensee shall immediately remedy such noncompliance and provide Licensor with written notice thereof. Licensee shall provide Licensor with all access and assistance as Licensor requests to further evaluate and remedy such noncompliance.
8. ii)     If Licensee’s use of the Software exceeds the number of copies or Authorized Users permitted under the license, Licensor shall have the remedies set forth in Section 4 (d).
9. c)During the Term, Licensor may, in Licensor’s sole discretion, audit Licensee’s use of the Software at Licensor’s expense to ensure Licensee’s compliance with this Agreement, provided that (i) any such audit shall be conducted on not less than thirty (30) days’ prior notice to Licensee, and (ii) no more than 2 audits may be conducted in any 12 month period except for good cause shown. Licensor also may, in its sole discretion, audit Licensee’s systems within 3 months after the end of the Term to ensure Licensee has ceased use of the Software and removed the all copies of the Software from such systems as required hereunder. The Licensee shall fully cooperate with Licensor’s personnel conducting such audits and provide all reasonable access requested by the Licensor to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information. Licensor shall only examine information directly related to the Licensee’s use of the Software. Licensor may conduct audits only during Licensee’s normal business hours and in a manner that does not unreasonably interfere with the Licensee’s business operations.
10. d)If the audit determines that the Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement then:
11. i)     Licensee shall, within thirty (30) days following the date of such determination by Licensor, pay to Licensor the retroactive License Fees based on Licensor’s price list in effect at the time the audit is completed for such excess use and, unless Licensor terminates this Agreement pursuant to Section 4 (d) (iii), obtain and pay for a valid license to bring Licensee’s use into compliance with this Agreement. In determining the Licensee Fee payable pursuant to the foregoing, (i) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Licensor hereunder, and continued uninterrupted thereafter, and (ii) the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement).
12. ii)     If the use exceeds or exceeded the use permitted by this Agreement by more than 10%, Licensee shall also pay to Licensor, within thirty (30) days following the date of Licensor’s written request therefor, Licensor’s reasonable costs incurred in conducting the audit.

                                              iii)     If the use exceeds or exceeded the use permitted by this Agreement by more than 50%, Licensor shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee.

Licensor’s remedies set forth in this Section 4 (d) are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.

5. RESPONSIBILITY FOR USE OF THE SOFTWARE.

Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.

6. TERM AND TERMINATION.
7. a)This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until terminated as set forth herein (the “Term”).
8. b)Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.
9. c)Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Licensor provides written notice thereof.
10. d)Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
11. e)Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation and certify in writing to Licensor it has complied with this provision. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees and Support Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 24 (c) (ii).

7. MAINTENANCE AND SUPPORT.
8. a)Subject to Section 7 (c), the license granted hereunder entitles Licensee to the basic Software Maintenance Services described on Schedule A:
9. i)     for one (1) year following the date set forth on the Order Form (“Initial Term”); and
10. ii)     unless terminated by the Licensee upon thirty (30) days’ notice to the Licensor shall automatically renew for a successive period of one calendar year (“Renewal Term”), starting on the Annual date (based on the purchase date of the Software as set forth in the Order Form).

Such Software Maintenance Services shall be provided on the terms and conditions herein and as set forth in Schedule A.

1. b)Software Maintenance Services will include provision of such updates, bug fixes, patches, enhancements, modifications, improvements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software and other Error Corrections (as defined in Schedule A) (collectively, “Maintenance Releases“) as Licensor makes generally available free of charge to all licensees of the Software then entitled to Maintenance Services. Licensor may develop and provide Maintenance Releases in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Maintenance Releases at all or for particular issues. Maintenance Releases may be installed by Licensor (at no additional cost) or by Licensee as determined by Licensee. Licensee further agrees that all Maintenance Releases will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Maintenance Releases via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Maintenance Releases via any other media. Maintenance Releases and any associated support services do not include any new version, new release or upgrade (collectively “Upgrades”) of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as an Upgrade in its sole discretion.
2. c)Licensor has no obligation to provide Maintenance Releases:
3. i)     for any but the most current or immediately preceding version or release of the Software;
4. ii)     for any copy of Software for which all previously issued Maintenance Releases have not been installed;

                                              iii)     if Licensee is in breach under this Agreement; or

1. iv)     for any Software that has been modified other than by or with the authorization of Licensor, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation or expressly authorized by Licensor in writing.
2. COLLECTION AND USE OF INFORMATION.
3. a)Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through:
4. i)     the provision of Software Maintenance Services; and
5. ii)     security measures included in the Software as described in Section 4.
6. b)Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:
7. i)     improving the performance of the Software or developing Maintenance Releases; and
8. ii)     verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.
9. EXPORT REGULATION.

The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations as amended and the International Traffic in Arms Regulations as amended. The Licensee shall not and shall not permit any Third Parties to, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside the US.

10. PAYMENT.

All License Fees are payable in advance in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth herein. Any renewal of the license or Software Maintenance Services hereunder shall not be effective until the License Fees and/or the Support Fees as applicable for such renewal have been paid in full.  All amounts payable to Licensor under this Agreement shall be paid by Licensee to Licensor in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

11. TAXES.

Licensee agrees to pay in addition to the License Fees and Support Fees all applicable duties, tariffs and similar charges which may apply or be charged under applicable laws and regulations as well as all taxes at the appropriate rate resulting from any transaction under this Agreement including, without limitation, sales, use, excise, value-added, goods and services, consumption business and other similar taxes, except taxes based on Licensor’s income or property. Should the payment of the License Fees or Support Fees be subject to withholding tax by any government owed by Licensee for any reason including but not limited to Licensee’s failure to pay taxes to such government when due, Licensee shall reimburse Licensor for such withholding tax upon request. Licensee will reimburse Licensor for any deficiency relating to taxes and other charges that are the Licensee’s responsibility under this Agreement. Each Party shall provide and make available to the other Party any exemption certificates, treaty certification or other exemption information reasonably requested by the other Party.

12. LICENSEE INDEMNITY.

Licensee agrees to protect, indemnify, defend and hold harmless Licensor, and its officers, directors, employees, agents, subcontractors, guests, invitees, successors and assigns, from and against any or all costs, losses, damages, claims, suits and other liabilities, including attorney’s fees and other expenses of litigation or defense associated with any injury or death to persons or damage to or loss of property resulting therefrom; provided that such claim or damage is not due to the sole negligence of Licensor.

Licensee shall protect, indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, subcontractors, successors and assigns, from and against any or all costs, losses, damages, claims, suits and other liabilities, including attorney’s fees and other expenses of litigation or defense (“Losses”) resulting from any action by a Third Party:

1. a)that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
2. i)         use or combination of the Software by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in this Agreement and the Documentation or otherwise in writing; and
3. ii)         information, materials, or technology directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated, or used with, as part of, or in connection with the Software or Documentation;
4. b)relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement;
5. c)relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the Software or Documentation or otherwise in connection with this Agreement; or
6. d)relating to use of the Software or Documentation by or on behalf of Licensee or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Licensor’s instructions.
7. LICENSOR INDEMNITY.
8. a)Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all Losses incurred by Licensee resulting from any Third-Party claim, suit, action, or proceeding that the Software or Documentation (not including any Third-Party materials), or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such Third Party’s Intellectual Property Rights, provided that Licensee promptly notifies Licensor in writing of the claim, cooperates with Licensor, and allows Licensor sole authority to control the defense and settlement of such claim.
9. b)such a claim is made or appears possible, Licensee agrees to permit Licensor, at Licensor’s sole cost and expense, to (i) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Licensee to continue use. If neither of these alternatives are possible notwithstanding Licensor’s commercially reasonably efforts, Licensor may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee, provided that Licensor shall refund or credit to Licensee all amounts paid by Licensee in respect of the Software or Documentation that Licensee cannot reasonably use as intended under this Agreement.

1. c)This Section 13 does not apply to the extent that the alleged infringement arises from:
2. i)     use of the Software in combination with data, software, hardware, equipment, or technology not provided by Licensor or authorized by Licensor in writing;
3. ii)     modifications to the Software not made by Licensor;

                                              iii)     use of any version other than the most current version of the Software or Documentation delivered to Licensee; or

12. iv)     Third-Party claims or Losses for which Licensee is obligated to indemnify Licensor pursuant to Section 12.
13. d)Notwithstanding any other provision in this Agreement, the maximum liability of the Licensor under its indemnity obligations in this Agreement shall be limited to 100% of the Order Price, as adjusted pursuant to this Agreement.
14. e)The remedies stated in this section 13 are the sole and exclusive remedies of Licensee and Licensor’s entire liability and obligation with respect to any actual, threatened, or alleged claims that this Agreement or any subject matter herein (including the Software and Documentation) infringes any intellectual property rights of any Third Party.

14. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

1. a)EXCEPT FOR ANY REFUND LICENSOR OR DISTRIBUTOR MAY PROVIDE, IN NO EVENT WILL LICENSOR OR ITS REPRESENTATIVES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This limitation applies to: anything related to the Software, services, content (including code) on Third Party internet sites, or Third Party programs; and claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable Law. It also applies even if: repair, replacement or a refund for the software does not fully compensate Licensee for any losses. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Licensee. They also may not apply to Licensee because Licensee country may not allow the exclusion or limitation of incidental, consequential or other damages.

13. b)IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE OR (ii) UP TO TWELVE (12) MONTHS OF THE SPECIFIC SERVICES, THAT IS OR ARE THE SUBJECT OF THE CLAIM. The exclusions and limitations in this Section 14 (b) shall not apply to claims pursuant to Section 13.

1. c)THE LIMITATIONS SET FORTH IN SECTION 14 (a) and SECTION 14 (b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

15. CONFIDENTIALITY.

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date on the Order Form and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

16. APPLICABLE LAW.

Terms of Use are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Texas. The applicability of the UN Convention on Contracts for the International Sale of Goods, including any domestic law of Licensee’s state or country that implements such UN Convention, is hereby excluded.

17. NOTICES.

All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form.

18. LEGAL EFFECT.

This agreement describes certain legal rights. Licensee may have other rights under the laws of Licensee state or country. Licensee may also have rights with respect to the party from whom Licensee acquired the Software. This Agreement does not change Licensee rights under the laws of Licensee state or country if the laws of Licensee state or country do not permit it to do so.

19. EQUITABLE REMEDIES.

Licensee acknowledges and agrees that a breach or threatened breach by of any of its obligations under Section 3, 12, and 15 of this Agreement would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Licensor will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, 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.

20. SEVERABILITY/WAIVER.

If one or more of the provisions of this Agreement are held to be unenforceable under applicable law, the balance of the Agreement shall be enforceable in accordance with its terms. No failure of Licensor to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights or of any other rights hereunder.

21. HEADINGS.

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

22. AMENDMENTS.

Licensor expressly reserves the right to amend or modify this Agreement at any time and without obligation of prior notification.

23. INTELLECTUAL PROPERTY RIGHTS.

Licensee acknowledges that the Software is provided under license, and not sold, to Licensee. Licensee do not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights to the Software or Documentation other than to use the Software and Documentation in strict accordance with the license granted under this Agreement, subject to all terms, conditions and restrictions. Licensor shall retain its entire right, title and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, subject to the license expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access by any Person. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software and fully cooperate with Licensor in any legal action taken by Licensor to enforce its Intellectual Property Rights.

24. WARRANTY.

1. a)Solely with respect to Software for which Licensor receives a License Fee, Licensor warrants that, for a period of ninety (90) days following the purchase date set forth on the Order Form the Software as delivered to Licensee will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith. This warranty is expressly conditioned on Licensee’s compliance with each of the operating, security, and data-control procedures set forth in the Documentation as well as maintaining the Designated Equipment in the configuration specified in the Documentation.

1. b)EXCLUSIONS FROM WARRANTY. The warranties set forth in Section 24 (a) exclude any failure in the operation of, or access to, Licensee’s or a Third Party’s system or network and (b) any Software that Licensor makes available for testing or demonstration purposes, temporary software modules or software for which Licensor does not receive a License Fee. The warranties set forth in Section 24 (a) will not apply and will become null and void if Licensee breaches any material provision of this Agreement, or if Licensee, any Authorized User or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement:
2. i)         installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Licensor in writing;
3. ii)         moves or transfers the Software from the device on which it was originally installed;

                                         iii)         allows alteration, modification or repair of the Software by anyone other than Licensor or those specifically authorized by Licensor in writing;

1. iv)         fails to install promptly install all Maintenance Releases that Licensor has previously made available to Licensee;
2. v)         modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or
3. vi)         misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing.
4. c)If, during the period specified in Section 24 (a), any Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 24 (b), Licensor will, subject to Licensee’s promptly notifying Licensor in writing of such failure, at its sole option, either:
5. i)         repair or replace the Software, provided that Licensee provides Licensor with all information Licensor reasonably requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or
6. ii)         refund the License Fees and Support Fees paid for such Software, subject to Licensee’s ceasing all use of and, if requested by Licensor, return to Licensor all copies of the Software.

If Licensor repairs or replaces the Software, the warranty will continue to run from the initial date specified on the Order Form, and not from Licensee’s receipt of the repair or replacement. The remedies set forth in this Section 24 (c) are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Section 24 (a).

1. d)NO OTHER WARRANTIES.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 24 (a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

25. Force Majeure.

Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, boycott, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electric utilities or communication, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Licensor’s reasonable control.

26. 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 on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

27. Access by Contractors.  Licensee may only disclose the Licensed Materials (excluding any source code) to third parties performing services for Licensee and with a need to know, provided the Licensee is responsible for third parties’ full compliance with the terms of Section 15 herein (Confidentiality). Any use or access by such third parties shall be solely for the purpose of conducting, or assisting Licensee with the conduct of, its internal business. Licensee shall be jointly and severally liable with any such third party contractors for any loss, misuse, or misappropriation of the Licensed Materials or Licensor’s Confidential Information. Any such loss, misuse, or misappropriation shall be deemed a material breach of this Agreement and shall be just cause for termination of this Agreement and any License(s) granted hereunder.Under no circumstances may Licensee disclose the Licensed Materials or any other Licensor Confidential Information to a known Competitor of Licensor.

28. Survival.

Section 3, 12, 13, 14, 15 and 28 and any provisions which by their nature are intended to survive termination shall survive any termination or expiration of this Agreement.

29. Relationship of the Parties.

Nothing in this Agreement is to be construed as creating an agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the Parties hereto, and neither Party shall have the authority to contract for or bind the other Party in any manner whatsoever.

30. Order of Precedence.

In the event of any conflict between this Agreement and a Schedule, the terms of the Schedule shall prevail, but only as applies to that individual Schedule.

31. Assignment.

Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 28 is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

32. Conflict of Terms.

If there is any inconsistency between the terms of this Agreement and those in the Purchase Order Form (or any similar document contemplated by or delivered under or in connection with this Agreement), the terms of this Agreement shall prevail.

33. Costs.

If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.

34. Entire Agreement.

This Agreement, together with the Order Form, all schedules attached hereto and all other documents that are incorporated by reference herein, constitute the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

Schedule A 

1. Software Maintenance Services:

The “Software Maintenance Services” are as follows:

1. a)Maintenance Releases.

Licensor will make accessible to the Licensee by electronic delivery periodic Maintenance Releases of the Software which Licensor releases generally to its licensees at its discretion.

1. b)Technical Support.

Licensor shall provide technical support to the Licensee for the Software as follows (“Technical Support”):

Technical support is helping the Licensee make the Software run as documented. If and when technical issues are identified technical support is provided to isolate and remedy the issues. Technical support is to also provide simple end user guidance, but is not intended to be End User training. This precludes that type of assistance that requires intimate knowledge of the Licensee’s particular data set, objectives, or non-licensed software related restrictions.

Licensor will correct Errors (as defined below) according to the following schedule:

Severity	Description
Critical	Fatal:  Software is down or effectively unusable as a result of the problem.  Problem causes mission-critical impact on the Licensee’s operation with no acceptable workaround or functionality used to perform tasks considered to be essential to Licensee operations, project completion or normal productivity of end-user.
High	Severe Impact: Software is up and running, but the problem causes significant impact and has no acceptable workaround. High impact problem where operation is proceeding, but in a significantly impaired fashion or functionality used to perform tasks considered to be important but not primary to immediate.
Medium	Degraded Operation:  Software is up and running and the problem causes only limited or insignificant impact. Important to long-term productivity, but is not causing any work stoppage during normal work hours.
Low	Minimal Impact:  Problem does not have significant impact to the Licensee, is intermittent, or pertains to functionality that is not important and infrequently used.

Licensor’s Response Time:

Severity	Acknowledge Receipt of Incident Report	Provide a Fix, Workaround Document correction pages, or Notice of Non-Coverage	Provide an Error Correction, Maintenance Release and/or updated Documentation
Critical	2  Business Hours	3 Business Days	Next Maintenance Release
High	8 Business Hours or next Business Day	5 Business Days	Next Maintenance Release
Medium	2 Business Days	15 Business Days	As Licensor deems reasonably appropriate
Low	7 Business Days	45 Business Days	As Licensor deems reasonably appropriate

“Business Days” means Monday – Friday, 8:30 a.m. to 5:30 p.m. Central Standard Time, excluding Licensor-observed holidays.

Licensor observes the following holidays:

• New Year’s Day
• Presidents’ Day
• Memorial Day
• Independence Day
• Labor Day
• Veterans Day
• Thanksgiving Day
• Christmas Day

“Error” means a failure of the Software to operate under normal use in material conformance with its Documentation.

“Error Correction” means a permanent modification or addition that, when made or added to the Software, brings the operation of the Software into material conformance with its Documentation.

“Fix” shall mean a temporary Software patch designed to mitigate the impact of an error, notwithstanding that the Error still exists.

“Field Fix” shall mean any on-site Maintenance Services requiring Licensor personnel or Licensor Affiliate personnel to provide Maintenance Services at the client site for which travel and living expenses will be billed at cost + 10% in the event that such Maintenance Services are not due to an Error.

“Workaround” means a temporary set of procedures that users may follow to circumvent or mitigate the impact of an Error, notwithstanding that the Error still exists.

Technical Support may take the form of support via email, telephone or an online web-based support desk where questions can be posted for response.

1. c)Licensor will from time to time provide the Licensee with information regarding scheduled releases, updates and program enhancements regarding the Software in the form of publications on the web page referred to above, a product newsletter and, if necessary, ‘Required Action’ update (“Information”).

2. License to use Maintenance Releases.

Any Maintenance Releases developed and made available by Licensor shall be subject to the license terms and restrictions set forth in the Agreement.

3. Exclusions.

Except as specifically provided for herein, Maintenance Services do not include, inter alia, the following services (“Excluded Services”):

• custom programming services or deliverables;
• training;
• hardware and related supplies;
• Upgrades
• Database management or data migration
• Local and wide area network support and troubleshooting
• Third-party Software, supplied or not supplied by Licensor
• Software customized by Licensor, the Licensee, or third-parties

The Licensee and Licensor may separately agree that Licensor shall render some or all of such Excluded Services under the terms of a separate agreement.

4. Disclaimer.

Without limiting the exclusions in Section 3 above, Licensor will not be responsible for and will not render any Maintenance Services regarding Errors that, in whole or in part, arise out of or result from any of the following:

• Any Errors in the Software resulting from misuse, negligence, revision, modification or improper use or operation or modifications to the Software or any portion thereof (or the media on which the Software is embedded) by the Licensee or any person/entity other than Licensor;
• Maintenance of any hardware;
• The operation of, or access to, Licensee’s or a Third Party’s system or network;
• Any breach or non-compliance with any material provision of this Agreement by Licensee or any of its representatives;
• Any Force Majeure event (including abnormal physical or electrical stress).
• Software that is:
• installed on systems not specified by Licensor in the functional specification for the Software or otherwise approved in writing by Licensor with specific reference to this Agreement;
• used in conjunction with other Software not specified in the Documentation or otherwise approved in writing by Licensor with specific reference to this Agreement;
• where the Licensee subjects the Software (or the media on which the Software is embedded) to improper use, non-conforming environment or infrastructure;
• any Licensee failure, including, but excluding Maintenance Releases installed by Licensor, to promptly install any Maintenance Releases that Licensor has previously made available to Licensee.

5. Consideration.

1. a)Maintenance Fee. The Licensee agrees to pay Licensor the annual Maintenance Fee as set out in the Order Form for the Initial Term and for any Renewal Term plus taxes pursuant to Section 5 (c) below. If Licensee requests Licensor to invoice an affiliated entity of Licensee and Licensor agrees to do this, Licensee shall nevertheless remain fully liable for payment of the Maintenance Fee. Technical support provided to remedy any breach of warranty with respect to the Software will not be charged to Licensee or otherwise reduce the number of support hours paid for by Licensee.

The Maintenance Fee for the Initial Term is due within 30 (thirty) days from the Maintenance Commencement Date. The Licensee will be notified by a letter or proposal 30 days prior to the annual Maintenance Fee Renewal date.

The Maintenance Fee for a Renewal Term (as defined in the Order Form) is due and payable in the 1st month of the annual period of the Renewal Term.

In the event that the Maintenance Fee (regardless of type) is not paid in accordance with the terms of this Section 5, Licensor may at its option (and without limiting its other remedies) suspend provision of the Maintenance Services until payment is made in full and without any extension of the Term and/or charge interest and collection costs on the outstanding sum until paid.

1. b)In the event the Licensee fails to pay any amount when due, the Licensee agrees to pay interest on the unpaid amount at a rate of one and one-half percent (1½%) or the highest rate allowed by applicable law, whichever is less, for each month that the payment is overdue.

6. Performance and responsibilities of Licensor.

Licensor shall exercise reasonable professional skill and care in performing Software Maintenance Services.

7. Licensee’s Responsibilities.

1. a)Installation. The Licensee agrees to promptly install all Maintenance Releases in accordance with Licensor’s instructions and in the order specified by Licensor. In the event that the Licensee does not do so, Licensor at its option may:

1. i)         Suspend (without refund of the Maintenance Fee) provision of Maintenance Services under this Agreement until the Licensee has done so; or
2. ii)         If Licensor is nevertheless willing to provide support, charge Licensee an additional fee (subject to prior notice) to carry out such work for Licensee.

Prior to installing any Maintenance Releases, the Licensee shall ensure that its IT systems are in an adequate state to receive the Maintenance Releases by maintaining its IT systems in accordance with good industry practice, including without limitation, virus searches and regular data backup.

1. b)Facility and Personnel Access. The Licensee agrees to grant Licensor access, subject to Licensee’s safety and security policies, to the Licensee’s facilities and systems and where required by Licensor, to its premises and access to, and assistance from, appropriately skilled Licensee personnel concerned with the operation of the Software, to enable Licensor to provide the Software Maintenance Services.

1. c)Error Documentation. The Licensee agrees to notify Licensor in writing following the discovery of any Error in the Software for which it requires Software Maintenance Services, and to provide Licensor with all information and materials necessary for the purpose of investigation, diagnosis and correction of any reported Error, in particular a listing of output and any other data, including databases and backup systems, including any other information that Licensor may request in order to reproduce operating conditions similar to those present when the Error occurred.

1. d)Information.The Licensee shall provide Licensor with an application support manager for the purpose of updating and/or patch installation of the Software planning and execution. Any actions agreed upon by Licensee and Licensor shall be executed per the agreed action plan. The Licensee agrees to receive from Licensor communications via email, telephone and other formats. The Licensee agrees to receive certain communications that are considered an essential part of the Software Maintenance Services, including but not limited to communications concerning an Error or other technical issue and the availability of Maintenance Releases.

1. e)Software Transports. Licensee shall access and install Software patches per Licensee guidance and instructions and on a schedule agreed to by Licensor and Licensee.

8. Limitation of Liability.

1. a)Licensee agrees to protect, indemnify, defend and hold harmless Licensor, and its officers, directors, employees, agents, subcontractors, successors and assigns, from and against any or all costs, losses, damages, claims, suits and other liabilities, including attorney’s fees and other expenses of litigation or defense associated with any injury or death to persons or damage to or loss of property resulting therefrom; provided that such claim or damage is not due to the sole negligence of MSS. EXCEPT FOR LICENSEE’S INDEMNITY OBLIGATIONS SET FORTH HEREIN, EACH PARTY’S LIABILITY TO THE OTHER UNDER EACH SPECIFIC SCHEDULE ATTACHED TO THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE MAINTENANCE FEE PAID (LICENSOR’S LIABILITY LIMIT) OR THE MAINTENANCE FEE OWED (LICENSEE’S LIABILITY LIMIT) BY LICENSEE FOR THE THEN CURRENT TERM (OR RENEWAL TERM, AS THE CASE MAY BE) FOR THAT SPECIFIC SCHEDULE.

1. b)Licensor will not be liable under any legal or equitable theory (whether in contract, tort (including negligence) or otherwise) for any loss of production, loss of profits or of contracts, loss of business or of revenues, loss of operation time, wasted management time, loss of goodwill or reputation, in each case whether caused directly or indirectly, or to give an account of profits to the Licensee, or for any indirect, incidental, punitive or consequential loss, damage, cost or expense whatsoever. The foregoing limitation applies notwithstanding the failure of any agreed or other remedy of its essential purpose.

1. c)Licensor will not be liable for any loss, damage, cost or expense whatsoever and howsoever caused by, or arising from any fraudulent or unauthorized act or statement, misrepresentation or default on the part of the Licensee, its directors, employees, agents and other contractors.

1. d)The express obligations and warranties made by Licensor in this Schedule A are in place of and to the exclusion (to the fullest extent permitted by law) of any other warranty, condition, term or undertaking of any kind, express or implied, statutory or otherwise, including (without limitation) as to the condition, performance, fitness for purpose or satisfactory quality of the services provided hereunder.

1. e)No action, regardless of form, arising out of this Agreement may be brought by the Licensee more than one (1) year after the cause of action accrues.

1. f)The allocations of liability in this Schedule A represent the agreed and negotiated understanding of the parties and Licensor’s charges for services reflect such allocations.

1. g)The Licensee may not recover the same loss or damage twice, under this Schedule A and under the Agreement between the parties.

1. h)Sections 8 and 10 survive the termination of this Schedule A for any reason.

9. Collection and Processing of Data.

In connection with the performance of Licensor’s obligations under this Schedule A, Licensor may request and collect data from the Licensee, in person or remotely through electronic collaboration regarding any circumstances which may be relevant for the rendering of the Software Maintenance Services, such particulars regarding configurations and hardware used by the Licensee to operate the Software. The Licensee agrees to provide such data to Licensor without delay upon Licensor’s request.

10. Data Privacy.

Both parties will comply with all relevant data privacy legislation. If Licensor receives personal data, in connection with this Schedule A, in relation to Licensee and Licensee’s employees, directors and other officers, Licensor may use this data solely for purposes connected with this Schedule A and the provision of the Software Maintenance Services to the Licensee.

MANGAN SOFTWARE SOLUTIONS, Inc. SOFTWARE AS A SERVICE (SaaS) STANDARD TERMS

FOR INFORMATION ONLY

© Copyright MSS All rights reserved

Title in and to this document and all information contained herein remains at all times with Mangan Software Solutions, Inc.

1. DEFINITIONS.

1.1.         “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services

1.2.         “Authorized User” means a specific individual authorized by the PROVIDER to access the Services pursuant to Section 2 and the other terms and conditions of this Agreement, regardless of whether the individual is actively using the Services.

1.3.         “Available” has the meaning set forth in Section 5.1.

1.4.         “Availability Requirement” has the meaning set forth in Section 5.1.

1.5.         “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.”

1.6.         “Contract Year” means any given twelve month period ending on an anniversary of the date as set forth on the Order Form.

1.7.         “Controlled Technology” means any software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any Law, including the US Export Administration Act and its associated regulations

1.8.         “Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from CUSTOMER or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data or content by or through the Services. For the avoidance of doubt, Customer Data includes information reflecting the access or use of the Services by or on behalf of CUSTOMER or any Authorized User other than Resultant Data.

1.9.         “Customer Failure” has the meaning set forth in Section 4.2.

1.10.      “Customer Systems” means the CUSTOMER’S information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by CUSTOMER or through the use of third-party services.

1.11.      “Fees” has the meaning set forth in Section 8.1.

1.12.      “Documentation” means any and all manuals, instructions and other documents and materials that PROVIDER provides or makes available to CUSTOMER in any form or medium which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.

1.13.      “Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent CUSTOMER or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.

1.14.      “Hosted Services” has the meaning set forth in Section 2.1.                                             

1.15.      “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

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

1.17.      “Loss” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers incurred by the Indemnified Party.

1.18.      “Order Form” means the order form filled out and submitted by or on behalf of CUSTOMER, and accepted by PROVIDER, for CUSTOMER’s purchase of the Services under this Agreement.

1.19.      “Permitted Use” means any use of the Services by an Authorized User for the benefit of CUSTOMER.

1.20.      “Person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, governmental authority, other entity or individual.

1.21.      “Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), and all rules and regulations issued under any of the foregoing.

1.22.      “Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings

1.23.      “Provider Indemnitee” has the meaning set forth in Section 12.1.

1.24.      “Provider Personnel” means agents, employees or independent contractors of PROVIDER or any subcontractor involved in the performance of Services.

1.25.      “Provider Disabling Device” means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by PROVIDER or its designee to disable CUSTOMER’S or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of PROVIDER or its designee.

1.26.      “Provider Materials” means the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by PROVIDER or any Subcontractor (as defined in Section 2.4) in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data or other content derived from Provider’s monitoring of CUSTOMER’s access to or use of the Services, but do not include Customer Data.

1.27.      “Reimbursable Expenses” has the meaning set forth in Section 8.6.

1.28.      “Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, agents, shareholders, partners, independent contractors, consultants, successors, permitted assigns, third party advisors, end users, and legal advisors.

1.29.      “Resultant Data” means information, data and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content

1.30.      “Scheduled Downtime” has the meaning set forth in Section 5.3.

1.31.      “Service Credit” has the meaning set forth in Section 5.2.

1.32.      “Service Level Failure” has the meaning set forth in Section 5.1.

1.33.      “Service Period” has the meaning set forth in Section 5.1

1.34.      “Service Software” means the PROVIDER software application or applications and any third-party or other software, and all updates, revisions, improvements and modifications of the foregoing, that PROVIDER provides remote access to and use of as part of the Services.

1.35.      “Specifications” means the specifications for the Services and, to the extent consistent with and not limiting of the foregoing, the Documentation.

1.36.      “Support Schedule” has the meaning set forth in Section 5.4.

1.37.      “Support Services” has the meaning set forth in Section 5.4.

1.38.      “Territory” means the location(s) as specified on the Order Form.

1.39.      “Term” has the meaning set forth in Section 14.1 and 14.2.

1.40.      “Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to PROVIDER.

2. SERVICES.

2.1.         Customer Services. Subject to and conditioned on CUSTOMER’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, PROVIDER shall use commercially reasonable efforts to provide to CUSTOMER and its Authorized Users the services described in the Order Form and this Agreement (collectively, the “Services“) in accordance with the Specifications and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by CUSTOMER and its Authorized Users (“Hosted Services“) in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for:

5. i)         Scheduled Downtime in accordance with Section 5.3;
6. ii)         Service downtime or degradation due to a Force Majeure Event;

iii)         any other circumstances beyond PROVIDER’s reasonable control, including CUSTOMER’s or any Authorized User’s use of Third Party Materials, misuse of the Hosted Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and

1. iv)         any suspension or termination of CUSTOMER’s or any Authorized User’s access to or use of the Hosted Services as permitted by this Agreement.

2.2.         Documentation License. PROVIDER hereby grants to CUSTOMER a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 15.2) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services

2.3.         Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

1. i)         PROVIDER has and will retain sole control over the operation, provision, maintenance and management of the Services and Provider Materials, including the: (i) Provider Systems; (ii) location(s) where any of the Services are performed, including in the United States, in countries outside the United States, or outside the borders of the country in which CUSTOMER or the Customer Systems are located; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Support Services and Service maintenance, upgrades, corrections and repairs; and
2. ii)         CUSTOMER has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by CUSTOMER or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or PROVIDER; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.

2.4.         Service Management. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. Each Party shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If either Party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other Party.

2.5.         Subcontractors. PROVIDER may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor“).

2.6.         Training Services. Training on the Service Software may, upon request by CUSTOMER, be provided on-line or on-site, at an additional cost to CUSTOMER. Training Services provided to CUSTOMER  are provided “AS IS” without any warranty, and PROVIDER DISCLAIMS ANY AND ALL WARRANTIES (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT).

2.7.         Suspension or Termination of Services. PROVIDER may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny CUSTOMER’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) PROVIDER receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires PROVIDER to do so; or (b) PROVIDER believes, in its sole discretion, that CUSTOMER or any Authorized User: (i) has failed to comply with any material term of this Agreement; (ii) has accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; or (iii) CUSTOMER or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (c) this Agreement expires or is terminated. This Section 2.6 does not limit any of PROVIDER’s other rights or remedies whatsoever, including any rights or remedies at law, in equity or under this Agreement.

3. AUTHORIZATION AND CUSTOMER RESTRICTIONS.

3.1.         Authorization. Subject to and conditioned on CUSTOMER’s payment of the Fees and compliance with all other terms and conditions of this Agreement, PROVIDER hereby authorizes CUSTOMER to access and use, solely in the Territory and during the Term, the Services and such Provider Materials as PROVIDER may supply or make available to CUSTOMER, solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable.

3.2.         Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Materials or Third Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the Provider Materials and the Third Party Materials are and will remain with PROVIDER and the respective rights holders in the Third Party Materials.

3.3.         Authorization Limitations and Restrictions. CUSTOMER shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, CUSTOMER shall not, except as this Agreement expressly permits:

1. i)         copy, modify or create derivative works or improvements of the Services or Provider Materials;
2. ii)         rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

iii)         reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, Provider Materials, or Third Party Materials, in whole or in part;

1. iv)         bypass or breach any security device or protection used by the Services, Provider Materials, or Third Party Materials or access or use the Services, Provider Materials, or Third Party Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
2. v)         input, upload, transmit or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
3. vi)         damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Provider Systems or PROVIDER’s provision of services to any third party, in whole or in part;

vii)         remove, delete, alter or obscure any trademarks, specifications, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, Provider Materials, or Third Party Materials, including any copy thereof;

viii)         access or use the Services, Provider Materials, or Third Party Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other PROVIDER customer), or that violates any applicable Law;

1. ix)         access or use the Services, Provider Materials, or Third Party Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the PROVIDER’s detriment or commercial disadvantage; or
2. x)         access or use the Services, Provider Materials, or Third Party Materials in, or in association with, the design, construction, maintenance, operation of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
3. xi)         otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under Section 3.1.

THE SERVICE SOFTWARE AND ASSOCIATED SERVICES ARE NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, OR AIR TRAFFIC CONTROL MACHINES IN WHICH CASE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

3.4.         Service Use and Data Storage. The Order Form sets forth a schedule of Fees for designated levels of Hosted Service usage and data storage (each a “Service Allocation“), beginning with the Fees payable by CUSTOMER for the levels of Hosted Service usage and data storage in effect as of the date on the Order Form and according to the table herein:

Type	Tier Level	Qty/Range of Users
SaaS	1	3 to 10
SaaS	2	11 to 30
SaaS	3	31 to 50
SaaS	4	51 to 99
SaaS	5	100+

3.5.         PROVIDER will use commercially reasonable efforts to notify CUSTOMER in writing if CUSTOMER has reached 75% percent of its then current Service Allocation and CUSTOMER may increase its Service Allocation and corresponding Fee obligations in accordance with the Order Form. If CUSTOMER exceeds its Service Allocation by 100% for any relevant period, CUSTOMER shall also pay to PROVIDER the applicable excess usage and storage Fees. Services Data I/O Usage Overage fees will be billed quarterly at PROVIDER Cost (currently .12/GB) subject to the terms and conditions as set forth in this Agreement and payment shall be due thirty (30) calendar days after receipt of an invoice properly submitted pursuant to Section 8.1. CUSTOMER acknowledges that exceeding its then-current Service Allocation may result in service degradation for CUSTOMER and other PROVIDER customers and agrees that:

1. i)         PROVIDER has no obligation to permit CUSTOMER to exceed its then-current Service Allocation; and
2. ii)         CUSTOMER is not entitled to any Service Level Credits for periods during which CUSTOMER exceeds its then-current Service Allocation, regardless of whether the Hosted Services fail to meet the Availability Requirement during such period.
3. CUSTOMER OBLIGATIONS.

4.1.         Customer Systems and Cooperation. CUSTOMER shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to CUSTOMER’s premises and Customer Systems as is necessary for PROVIDER to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as PROVIDER may reasonably request to enable PROVIDER to exercise its rights and perform its obligations under and in connection with this Agreement.

4.2.         Effect of Customer Failure or Delay. PROVIDER is not responsible or liable for any delay or failure of performance caused in whole or in part by CUSTOMER’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure“).

4.3.         Corrective Action and Notice. If CUSTOMER becomes aware of any actual or threatened activity prohibited by Section 3.3, CUSTOMER shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services, Provider Materials and/or Third Party Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) promptly notify PROVIDER of any such actual or threatened activity.

5. SERVICE LEVELS.

5.1.   Service Levels. Subject to the terms and conditions of this Agreement, PROVIDER will use commercially reasonable efforts to make the Hosted Services Available at least ninety-nine percent (99%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period“), excluding unavailability as a result of any of the Exceptions described below in this Section 5.1 (the “Availability Requirement“). “Service Level Failure” means a material failure of the Hosted Services to meet the Availability Requirement. “Available” means the Hosted Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Hosted Services will be considered un-available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of CUSTOMER or its Authorized Users to access or use the Hosted Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User/access to or use of the Hosted Services by CUSTOMER or any Authorized User, or using CUSTOMER’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) CUSTOMER’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by PROVIDER pursuant to this Agreement; (f) Scheduled Downtime; (g) disabling, suspension or termination of the Services pursuant to Section 2.6; (h) any time Customer requests the Hosted Services to be taken down for scheduled updates, emergency bug fixes, or emergency feature requests; (i) an accelerated deployment schedule, (j) third party software that is required to support the site at CUSTOMER’s request, (k) brown- or black-outs on the Internet which cause disruption to PROVIDER’s internal processes, (v) any requests for non-standard environment or Customer machine access, (vi) any downtime caused by Customer produced code, or (vii) any changes to the Customer System.

5.2.   Service Level Failures and Remedies. In the event of a Service Level Failure, PROVIDER shall issue a credit to CUSTOMER in the amount as set forth in Schedule A of the monthly Fees for the Services due for the Service Period the Service Level Failure occurred (each a “Service Credit“), subject to the following:

1. i)         PROVIDER has no obligation to issue any Service Credit unless: (i) CUSTOMER reports the Service Failure to PROVIDER immediately on becoming aware of it; and (ii) requests such Service Credit in writing within ten (10) days of the Service Level Failure; and
2. ii)         in no event will a Service Level Credit for any Service Period exceed one hundred percent (100%) of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.

Any Service Credit payable to CUSTOMER under this Agreement will be issued to CUSTOMER in the calendar month following the Service Period in which the Service Level Failure occurred. This Section 5.2 sets forth PROVIDER’s sole obligation and liability and CUSTOMER’s sole remedy for any Service Level Failure.

5.3.   Scheduled Downtime. PROVIDER will use commercially reasonable efforts to; (a) schedule downtime for routine maintenance of the Hosted Services between the hours of 8 a.m. and 5 p.m., CST Time; and (b) give CUSTOMER at least forty-eight (48) hours prior notice of all scheduled outages of the Hosted Services (“Scheduled Downtime“).

5.4.   Service Support. The Services include PROVIDER’s standard customer support services (“Support Services“) at the support levels CUSTOMER purchases in accordance with the Provider service support schedule then in effect, a current copy of which is attached as Schedule A (“SLA”) or a successor website address (the “Support Schedule“). PROVIDER may amend the Support Schedule from time to time in its sole discretion. CUSTOMER may purchase enhanced support services separately at PROVIDER’s then current rates.

6. DATA BACKUP.

The Services do not replace the need for CUSTOMER to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.

7. SECURITY.

7.1.         Provider Systems and Security Obligations. PROVIDER will employ security measures in accordance with applicable industry practice.

7.2.         Data Breach Procedures. PROVIDER maintains a data breach plan in accordance with the criteria set forth in PROVIDER’S Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (as defined in such plan).

7.3.         Prohibited Data. CUSTOMER acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information; (b) data that is classified and or used on the U.S. Munitions list, including software and technical data; (c) articles, services and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data“). CUSTOMER shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Provider Systems or any Provider Personnel. CUSTOMER is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

7.4.         Customer Control and Responsibility. CUSTOMER has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions and materials provided by or on behalf of CUSTOMER or any Authorized User in connection with the Services; (iii) CUSTOMER’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by CUSTOMER or through the use of third-party services (“Customer Systems“); (iv) the security and use of CUSTOMER’s and its Authorized Users’ Access Credentials; and (v) all access to and use of the SERVICE SOFTWARE and PROVIDER MATERIALS directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without CUSTOMER’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

7.5.         Access and Security. CUSTOMER shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Hosted Services.

8. FEES; PAYMENT TERMS.

8.1.         Fees. CUSTOMER shall pay PROVIDER the Fees set forth in the Order Form (“Fees“) in accordance with this Section 8 for the Initial Term and for any Renewal Term. If CUSTOMER requests PROVIDER to invoice an affiliated entity of CUSTOMER and PROVIDER agrees to do this, CUSTOMER shall nevertheless remain fully liable for payment of the Fees. All payments shall be made in USD.

8.2.         Security Interest. In consideration of any open account terms given by PROVIDER to CUSTOMER, CUSTOMER hereby grants to PROVIDER a continuing security interest in the Services now and hereafter acquired by CUSTOMER and all proceeds derived from the sale of such Services (“Collateral”) to secure payment of CUSTOMER’s payment obligations under this Agreement. CUSTOMER acknowledges that this Article 8.2 constitutes a security agreement and hereby authorizes PROVIDER to file any financing statements or other documents necessary to perfect PROVIDER’s security interest in the Collateral in any public office in any jurisdiction deemed necessary by PROVIDER. CUSTOMER hereby grants PROVIDER a limited power of attorney for the sole purpose of executing, in PROVIDER’s name, such financing statements and related documents.  Additionally, PROVIDER may assign the aforementioned security interest in all payment obligations owed by CUSTOMER to any third party. CUSTOMER agrees, at its own expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions as the PROVIDER or the assignee of the security interest may from time to time reasonably request to better assure, preserve, protect and perfect the security interest granted pursuant to this Agreement.

Fee Increases. PROVIDER may increase Fees no more than once annually for any contract year after the first contract year of the Term by providing written notice to CUSTOMER at least thirty (30) calendar days prior to the commencement of that contract year such Renewal Term and the Order Form will be adjusted accordingly.

8.3.         Payment. The Fee for the Initial Term is due within thirty (30) days from the Hosting Commencement Date of Services. All payments shall be in USD. CUSTOMER shall provide clear invoicing instructions on any Purchase Order issued pursuant to this Agreement. Failure by CUSTOMER to provide instructions shall not relieve CUSTOMER of its payment obligations as set forth herein. CUSTOMER will be notified by a letter or proposal 45 days prior to the annual Fee Renewal date to provide invoicing instructions for the next annual period; however failure by PROVIDER to notify CUSTOMER shall not relieve CUSTOMER of its payment obligations under this Agreement. (This does not change the Schedule). If the CUSTOMER does not provide instructions before the initial annual period finishes, PROVIDER will continue to provide the Software services as defined in this Agreement, and will continue to issue invoices as per the initial agreed upon period, and the CUSTOMER will be required to pay as per this Agreement. If CUSTOMER fails to make any payment when due then, in addition to all other remedies that may be available:

1. i)         Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
2. ii)         CUSTOMER shall reimburse PROVIDER for all reasonable costs incurred by PROVIDER in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and

iii)         if such failure continues for thirty (30) days following written notice thereof, PROVIDER may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to CUSTOMER or any other Person by reason of such suspension. Failure by CUSTOMER to pay monies due in a timely manner under Purchase Orders issued pursuant to this Agreement shall constitute a material breach of this Agreement and shall be just cause for termination of this Agreement and any Services granted hereunder. PROVIDER’S right to receive payments from CUSTOMER for the sale of any Services materially performed pursuant to this Agreement shall survive any termination of this Agreement for any reason.

8.4.         No Deductions or Setoffs. All amounts payable to PROVIDER under this Agreement shall be paid by CUSTOMER to PROVIDER in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.

8.5.         Reimbursable Expenses. CUSTOMER shall reimburse PROVIDER for out-of-pocket expenses incurred by PROVIDER in connection with performing the Services (“Reimbursable Expenses“).

8.6.         Taxes and Other Charges. CUSTOMER agrees to pay all applicable duties, tariffs and similar charges which may apply or be charged under applicable laws and regulations as well as all taxes at the appropriate rate resulting from any transaction under this Agreement including, without limitation, sales, use, excise, value-added, goods and services, consumption business and other similar taxes, except taxes based on PROVIDER’s income or property. Should the payment of any fee be subject to withholding tax by any government owed by PROVIDER for any reason including but not limited to CUSTOMER’s failure to pay taxes to such government when due, CUSTOMER shall reimburse PROVIDER for such withholding tax upon request. CUSTOMER will reimburse PROVIDER for any deficiency relating to taxes and other charges that are the CUSTOMER’s responsibility under this Agreement.  Each Party shall provide and make available to the other Party any exemption certificates, treaty certification or other exemption information reasonably requested by the other Party. CUSTOMER shall protect, indemnify, defend, and hold harmless PROVIDER from the reporting, filing, and payment of any taxes, duties, charges, or fees (and any related fines, penalties, or interest) imposed directly or indirectly on PROVIDER as a result of CUSTOMER’s use of Services or Provider Materials under this Agreement.

9. Intellectual Property Rights.

9.1.         Ownership of Services and Provider Materials.  All right, title and interest in and to the Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with PROVIDER or the respective rights owners of the Third-Party Materials. CUSTOMER has no right, license or authorization with respect to any of the Services or Provider Materials (including Third-Party Materials) except as expressly set forth in Section 3.1 or the applicable third-party license, in each case subject to Section 3.3. All other rights in and to the Services and Provider Materials (including Third-Party Materials) are expressly reserved by PROVIDER and the respective third-party licensors. In furtherance of the foregoing, CUSTOMER hereby unconditionally and irrevocably grants to PROVIDER an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

9.2.         Customer Data. As between CUSTOMER and PROVIDER, 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 to the rights and permissions granted in Section 9.3.

9.3.         Consent to use Customer Data. CUSTOMER hereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to PROVIDER and its Personnel as are necessary or useful to perform the Services; and (b) to PROVIDER as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.

10. Confidentiality.

Each Party acknowledges that in the course of this business relationship it may have access to Confidential Information which belongs to the other Party. Each Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) Confidential Information. Without limitation, the SERVICE SOFTWARE and PROVIDER MATERIALS and the terms and conditions (including financial terms) of this Agreement are Confidential Information of PROVIDER or its respective third parties. Each Party agrees not to disclose any Confidential Information of the other received as a result of this Agreement to any third party without the written consent of the other Party, provided however, that the general existence of this Agreement shall not be treated as Confidential Information.

Confidential Information does not include any information which: (i) is or becomes generally available to the public through no disclosure by the Receiving Party or any of its Representatives in breach of this Agreement; (ii) the Receiving Party can demonstrate by written or other documentary records is wholly and independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information; (iii) becomes available to the Receiving Party from a source not a party to this Agreement, provided that such source is not violating any contractual or legal obligation; (iv) was known on a lawful, non-confidential basis by the Receiving Party prior to disclosure; or (v) is required, based upon the reasonable advice of counsel, to be disclosed by any applicable Law. If the Receiving Party or any of its Representatives becomes legally required to disclose any Confidential Information, the receiving party shall, to the extent practicable, provide the Disclosing Party with prompt written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with respect to that disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 10.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose.

The Receiving Party shall:

1. i)         not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
2. ii)         except where required by applicable Law, 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 and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.5; (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 10.5;

iii)         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;

1. iv)         promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and
2. v)         ensure its Representatives’ compliance with, and be solely responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 10.

Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 10 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives. Each Party will exercise commercially reasonable efforts not to disclose any Personal Information to the other Party and to restrict the other Party’s access to its Personal Information, but if a Party is given access to the other Party’s Personal Information, the Receiving Party will protect such Personal Information using a reasonable standard of care.

11. WARRANTIES.

11.1.       Warranty. Each Party represents that it:

1. i)         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;
2. ii)         has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;

iii)         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; and

1. iv)         when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

11.2.      Additional Provider Representations, Warranties and Covenants. PROVIDER represents, warrants and covenants to CUSTOMER that PROVIDER will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

11.3.      Additional Customer Representations, Warranties and Covenants. CUSTOMER represents, warrants and covenants to PROVIDER that CUSTOMER owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by PROVIDER and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law. CUSTOMER shall protect, indemnify, defend, and hold harmless PROVIDER from and against any Losses arising out of CUSTOMER’s breach of the provisions of this Section 11.3.

11.4.      Warranty. Except for the express warranties as set forth in Section 11.1, 11.2, and 11.3, CUSTOMER acknowledges the Services and Provider Materials are provided on an “AS IS” “AS AVAILABLE” basis. PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL: (i) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, (ii) OPERATE WITHOUT INTERRUPTION, (iii) ACHIEVE ANY INTENDED RESULT, (iv) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, (v) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE, (vi) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR CUSTOMER SYSTEM WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICE OR CUSTOMER SYSTEM WILL MEET CUSTOMER’S EXPECTATIONS, OR (v) ANY ERRORS IN THE SOFTWARE, SYSTEM, OR SERVICE WILL BE CORRECTED. CUSTOMER ACCEPTS RESPONSIBILITY FOR THE SELECTION OF THE SERVICE SOFTWARE TO ACHIEVE ITS INTENDED RESULTS. PROVIDER SHALL NOT BE BOUND BY or LIABLE FOR ANY REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN OR ORAL, WIT H RESPECT TO THE SERVICES OR PROVIDER MATERIALS PROVIDED TO CUSTOMER BY PROVIDER, MADE BY PROVIDER, ITS PROVIDER PERSONNEL OR ANY THIRD PARTY. CUSTOMER assumes full responsibility for the use of such Resultant Data and for all resulting decisions, and neither PROVIDER nor its third party licensors shall be liable for any claims, liabilities, lawsuits, demands of CUSTOMER arising out of such use.

12. INDEMNITY – THIRD PARTY CLAIMS.

12.1.      Customer Indemnification. CUSTOMER agrees to protect, indemnify, defend and hold harmless PROVIDER, and its officers, directors, employees, agents, subcontractors, third party licensors, vendors, successors and assigns (each, a “Provider Indemnitee“), from and against any or all Losses incurred by such Provider Indemnitee in connection with any action by a third party that arises out of or relates to:

1. i)         Customer Data, including any Processing of Customer Data by or on behalf of PROVIDER in accordance with this Agreement;
2. ii)         any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of CUSTOMER or any Authorized User, including PROVIDER’s compliance with any specifications or directions provided by or on behalf of CUSTOMER or any Authorized User to the extent prepared without any contribution by PROVIDER;

iii)         allegation of facts that, if true, would constitute CUSTOMER’s breach of any of its representations, warranties, covenants or obligations under this Agreement;

1. iv)         or more culpable act or omission (including recklessness or willful misconduct) by CUSTOMER, any Authorized User, or any third party on behalf of CUSTOMER or any Authorized User, in connection with this Agreement;
2. v)         CUSTOMER or CUSTOMER’s  Authorized User’s use of the Services, Customer System or the transmission of any content on the Services or Customer System.
3. vi)         injury or death to persons or damage to or loss of property resulting therefrom, provided that such claim or damage is not due to the sole negligence of PROVIDER.

12.2.      Indemnification Procedure. PROVIDER shall promptly notify CUSTOMER in writing of any Action for which PROVIDER believes it or any Provider Indemnitee is entitled to be indemnified pursuant to Section 12.1. PROVIDER shall cooperate with the CUSTOMER at the CUSTOMER’s sole cost and expense. The CUSTOMER shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the CUSTOMER’s sole cost and expense. The PROVIDER’s failure to perform any obligations under this Section 12.2 will not relieve the CUSTOMER of its obligations under this Section 12 except to the extent that the CUSTOMER can demonstrate that it has been materially prejudiced as a result of such failure. The PROVIDER may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. PROVIDER reserves the right to approve CUSTOMER’s counsel to defend any such claims, which approval shall not be unreasonably withheld, and to approve any settlement agreement that is not fully covered by applicable insurance.

13. LIMITATION OF LIABILITY.

13.1.      Limitation of Liability. EXCEPT FOR BREACHES OF SECTION 10 (CONFIDENTIALITY), PROVIDER’S LIABILITY TO THE CUSTOMER UNDER THIS AGREEMENT WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE SHALL BE LIMITED TO AN AMOUNT EQUAL TO CUSTOMER’S PAYMENTS RECEIVED FOR THE SERVICES AND PROVIDER MATERIALS (PROVIDER’S LIABILITY LIMIT) FOR THE THEN CURRENT TERM (OR RENEWAL TERM, AS THE CASE MAY BE) FOR THAT SPECIFIC SCHEDULE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13.2.      Disclaimer of Consequential Damages. IN NO EVENT SHALL PROVIDER OR  ANY OF ITS LICENSORS, SERVICE PROVIDERS, VENDORS, DEVELOPERS, CONSULTANTS, CONTRACTORS, OR SUPPLIERS BE LIABLE TO CUSTOMER (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) FOR ANY LOSS OF PRODUCTION, LOSS OF OR CORRUPTION OF DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF BUSINESS OR OF REVENUES, LOSS OF OPERATION TIME, WASTED MANAGEMENT TIME, LOSS OF GOODWILL OR REPUTATION, IN EACH CASE WHETHER CAUSED DIRECTLY OR INDIRECTLY, IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS, DAMAGE, COST OR EXPENSE WHATSOEVER AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THEIR POSSIBILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to CUSTOMER. They also may not apply to CUSTOMER because CUSTOMER’s country may not allow the exclusion or limitation of incidental, consequential or other damages.

13.3.      Time Limit. No action, regardless of form, arising out of this Agreement may be brought by CUSTOMER more than one (1) year after CUSTOMER knew or should have known of the event which gave rise to the cause of action. Notwithstanding the foregoing, PROVIDER’s right to receive payments properly due to PROVIDER by CUSTOMER shall survive termination of this Agreement for any reason.

14. TERM AND TERMINATION.

14.1.      Initial Term. The initial term of this Agreement commences as of the date of the Order Form and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect for one (1) year from such date (the “Initial Term”).

14.2.      Renewal Term. This Agreement will automatically renew annually unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term“).

14.3.      Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

1. i)         Termination for Convenience. PROVIDER may terminate this Agreement for its convenience by providing the CUSTOMER with thirty (30) days prior notice.
2. ii)         PROVIDER may terminate this Agreement, effective on written notice to CUSTOMER, if CUSTOMER: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after PROVIDER’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.3 (Use Limitations and Restrictions), Section 7.3 (Prohibited Data), or Section 10 (Confidentiality).

iii)         Either Party may terminate this Agreement if the other Party commits any material default and fails to cure such default within thirty (30) days after written notice thereof from the non-breaching Party; or (ii) the other Party enters bankruptcy proceedings, becomes insolvent, or otherwise becomes generally unable to meet its obligations under this Agreement. In the event of the termination of the Agreement by CUSTOMER as a result of an uncured material default by PROVIDER, then PROVIDER shall thereafter promptly refund to CUSTOMER the pro-rata portion of the Fees paid for the Term during which the termination occurred (i.e. the portion of the Fees paid for the period following the termination).

14.4.      Effect of Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

1. i)         all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate;
2. ii)         PROVIDER shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to CUSTOMER, or at CUSTOMER’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Customer Data or CUSTOMER’s Confidential Information; and (ii) permanently erase all Customer Data and CUSTOMER’s Confidential Information from all systems PROVIDER directly or indirectly controls, provided that, for clarity, PROVIDER’s obligations under this Section 14.4 (ii) do not apply to any Resultant Data;

iii)         CUSTOMER shall immediately cease all use of any Services or Provider Materials and (i) promptly return to PROVIDER, or at PROVIDER’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Provider Materials or Provider’s Confidential Information; and (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems CUSTOMER directly or indirectly controls; and (iii) certify to PROVIDER in a signed written instrument that it has complied with the requirements of this Section 14.4 (iii);

14. iv)         notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; and (ii) PROVIDER may retain Customer Data; (iii) CUSTOMER may retain Provider Materials, in the case of each of sub clause (i), and (ii) and (iii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) PROVIDER may also retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 14.4 (iv) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
15. v)         PROVIDER may disable all CUSTOMER and it’s Authorized Users access to the Hosted Services and Provider Materials;
16. vi)         if CUSTOMER terminates this Agreement pursuant to Section 14.3 (iii), CUSTOMER will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and PROVIDER will: (i) refund to Customer Fees paid in advance for Services that PROVIDER has not performed as of the effective date of termination; and (ii) pay to CUSTOMER any unpaid Service Credits to which CUSTOMER is entitled;

vii)         if PROVIDER terminates this Agreement pursuant to Section 14.3 (i) or Section 14.3 (ii), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and CUSTOMER shall pay such Fees, together with all previously accrued but not yet paid Fees and Reimbursable Expenses, on receipt of PROVIDER’s invoice therefore; and

viii)         if CUSTOMER requests in writing at least thirty (30) days prior to the effective date of expiration or termination, subject to Section 14.4 (iv), PROVIDER shall, within a reasonable time frame to be determined by both Parties following such expiration or termination, deliver to CUSTOMER the then most recent version of Customer Data maintained by PROVIDER, provided that CUSTOMER has at that time paid all Fees and Reimbursable Expenses then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for PROVIDER’s services in transferring such Customer Data.

15. GENERAL.

15.1.      Assignment. This Agreement may not be assigned or transferred by CUSTOMER, including by merger, consolidation or operation of law, without the prior written consent of PROVIDER. PROVIDER may assign this Agreement, in whole or in part, to any third party.

15.2.      Compliance with Laws. CUSTOMER shall be solely responsible for its use of the Services and Provider Materials including ensuring that such use complies with all applicable Laws. CUSTOMER understands that the Services and Provider Materials are not designed to achieve or contribute to CUSTOMER’s compliance with these or other laws or regulations of any jurisdiction, including the Territory.

15.3.      Dispute Resolution. The parties agree that, in the event of a dispute or alleged breach of this Agreement, they will work together in good faith first, to resolve the matter internally within fifteen (15) days by escalating it to higher levels of management and, then if necessary, to use a mutually agreed alternative dispute resolution technique prior to resorting to arbitration or the provisions of Section 14.3. In the event the parties fail to mutually agree upon such technique within a further fifteen (15) days after good faith attempts at internal resolution have failed, either Party may resort to arbitration and/or in the case of a material breach apply the provisions of Section 14.3. This provision shall not apply to disputes involving confidentiality or infringement of intellectual property rights or payment of any Fee when due (in which case either Party shall be free to seek available remedies immediately in any forum and/or use Section 14.3).

15.4.      Force Majeure. PROVIDER will be excused from failure to perform its obligations under this Agreement if such failure results from causes beyond its reasonable control including, without limitation, Acts of God, civil unrest, riots, war, boycott, floods, storms, storm warnings, hurricanes, tornadoes, fire, explosions, and economic sanctions, breakdown or failure of communication and electric utilities, non-performance of any of your agents or your third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond PROVIDER’s reasonable control. Should any of such Force Majeure Events occur, PROVIDER, at its option, may cancel this Agreement. Notice of such election will be given promptly to CUSTOMER. This provision shall not apply to CUSTOMER’s obligation to pay any sums due under this Agreement, which shall continue unabated.

15.5.      Survival. The provisions of Sections 3.3, 9, 10, 11, 12, 13, 14.4, 15 and any other provisions which by their nature are intended to survive termination shall survive any termination or expiration of this Agreement.

15.6.      Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Texas without giving effect to its conflict of law rules. The applicability of the UN Convention on Contracts for the International Sale of Goods, including any domestic law that implements such UN Convention in the Territory, is hereby excluded. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Texas in each case, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action or other proceeding brought in any such court.

15.7.      Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form.

15.8.      Severability; Waiver. The provisions of this Agreement are separable and severable.If one or more provisions of this Agreement are held to be unenforceable under applicable law, the balance of the Agreement shall be enforceable in accordance with its terms. No failure of either Party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights or of any other rights hereunder.

15.9.      Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

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

15.11.    Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.

15.12.    Equitable Remedies. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 3.3(Restrictions), Section 10 (Confidentiality), and Section 12 (Indemnity) of this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, each 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 of competent jurisdiction, 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.

15.13.    Entire Agreement. This Agreement, together with the Order Form, all schedules attached hereto and all other documents that are incorporated by reference herein, constitute the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

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

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

15.16.    Use of name. Neither Party may use the name of the other in connection with any advertising, publicity materials, activities, or otherwise outside of its own organization without the prior written consent of the other Party, which shall not be unreasonably withheld.

15.17.    Precedence. In the event of any conflict between this Agreement and a Schedule, the terms of the Schedule shall prevail, but only as applies to that individual Schedule.

SCHEDULE A – SERVICE LEVEL AGREEMENT

Service Level Agreement (SLA) for SLM-Cloud/PROVIDER-Cloud Services

Introduction

This Service Level Agreement for SLM-Cloud Services (this “SLA”) is made by Mangan Software Solutions Inc. (MSS) in connection with, and is a part of, the agreement under which Customer has purchased SLM-Cloud Services from Mangan Software Solutions (the “Agreement”). This SLA applies to the following SLM-Cloud Services:

1. SLM-Cloud Data Backup Service
2. SLM-Cloud Virtual Machines, and Virtual Network
3. Traffic Manager
4. SQL Database
5. Storage

Websites

We provide financial backing to our commitment to achieve and maintain Service Levels for our Services. If we do not achieve and maintain the Service Levels for each Service as described in this SLA, then you may be eligible for a credit towards a portion of your service fees. These terms will be fixed for term of your Agreement. If a subscription is renewed, the version of this SLA that is current at the time the renewal term commences will apply throughout the renewal term. We will provide at least 90 days’ notice for adverse material changes to this SLA.

General Terms

a.     Definitions

i.         “Claim” means a claim submitted by Customer to MSS pursuant to this SLA that a Service Level has not been met and that a Service Credit may be due to Customer.

ii.         “Customer” refers to the organization that has entered into the Agreement.

iii.         “Customer Support” means the services by which MSS may provide assistance to Customer to resolve issues with the Services.

iv.         “Error Code” means an indication that an operation has failed, such as an HTTP status code in the 5xx range.

v.         “External Connectivity” is bi-directional network traffic over supported protocols such as HTTP and HTTPS that can be sent and received from a public IP address.

vi.         “Incident” means any set of circumstances resulting in a failure to meet a Service Level.

vii.          “MSS” means the Mangan Software Solutions Inc. entity that appears on Customer’s Agreement.

viii.         “Preview” refers to a preview, beta, or other pre-release version of a service or software offered by MSS to obtain customer feedback.

ix.         “Service” or “Services” refers to a SLM-Cloud service provided to Customer pursuant to the Agreement for which an SLA is provided below.

x.         “Service Credit” is the percentage of the monthly service fees for the affected Service or Service Resource that is credited to Customer for a validated Claim.

xi.         “Service Level” means standards MSS chooses to adhere to and by which it measures the level of service it provides for each Service as specifically set forth below.

xii.         “Service Resource” means an individual resource available for use within a Service.

xiii.         “Success Code” means an indication that an operation has succeeded, such as an HTTP status code in the 2xx range.

xiv.         “Support Window” refers to the period of time during which a Service feature or compatibility with a separate product or service is supported.

xv.         “Virtual Network” refers to a virtual private network that includes a collection of user-defined IP addresses and subnets that form a network boundary within SLM-Cloud provisioned dedicated network for Customer.

xvi.         “Virtual Network Gateway” refers to a gateway that facilitates cross-premises connectivity between a Virtual Network and a customer on-premises network.

b.     Service Credit Claims

i.         In order for MSS to consider a Claim, Customer must submit the Claim to Customer Support within two months of the end of the billing month in which the Incident that is the subject of the Claim occurs.  Customer must provide to Customer Support all information necessary for MSS to validate the Claim, including but not limited to detailed descriptions of the Incident, the time and duration of the Incident, the affected resources or operations, and any attempts made by Customer to resolve the Incident

ii.         MSS will use all information reasonably available to it to validate the Claim and to determine whether any Service Credits are due.

iii.         In the event that more than one Service Level for a particular Service is not met because of the same Incident, Customer must choose only one Service Level under which a Claim may be made based on the Incident.

iv.         Service Credits apply only to fees paid for the particular Service or Service Resource for which a Service Level has not been met.  In cases where Service Levels apply to individual Service Resources, Service Credits apply only to fees paid for the affected Service Resource, as applicable.

c.     SLA Exclusions

This SLA and any applicable Service Levels do not apply to any performance or availability issues:

i.         Due to factors outside MSS’s reasonable control (for example, a network or device failure external to MSS’s data centers, including at Customer’s site or between Customer’s site and MSS’s data center);

ii.         That resulted from Customer’s use of hardware, software, or services not provided by MSS as part of the Services (for example, third-party software or services not directly provided by MSS);

iii.         Due to Customer’s use of the Service in a manner inconsistent with the features and functionality of the Service (for example, attempts to perform operations that are not supported) or inconsistent with MSS’s published documentation or guidance;

iv.         That resulted from faulty input, instructions, or arguments (for example, requests to access files that do not exist);

v.         Caused by Customer’s use of the Service after MSS advised Customer to modify its use of the Service, if Customer did not modify its use as advised;

vi.         That resulted from Customer’s attempts to perform operations that exceed prescribed quotas or that resulted from MSS’s throttling of suspected abusive behavior;

vii.         Due to Customer’s use Service features that are outside of associated Support Windows; or

viii.         Attributable to acts by persons gaining unauthorized access to MSS’s Service by means of Customer’s passwords or equipment or otherwise resulting from Customer’s failure to follow appropriate security practices.

d.     Service Credits

i.         The amount and method of calculation of Service Credits is described below in connection with each Service.

ii.         Service Credits are Customer’s sole and exclusive remedy for any failure by MSS to meet any Service Level.

iii.         The Service Credits awarded in any billing month for a particular Service or Service Resource will not, under any circumstance, exceed Customer’s monthly service fees that Service or Service Resource, as applicable, in the billing month.

iv.         The Services Credits awarded for services that are purchased on an annual basis will be credited for the calculated monthly service fee (yearly fee / 12) for the service and credit will be issued on a quarterly basis.

v.         For Services purchased as part of a suite, the Service Credit will be based on the pro-rata portion of the cost of the Service.

SLM-Cloud Services Subject to SLA

a.     SLM-Cloud Data Backup Service

i.         Additional Definitions

A.     “Backup” or “Back Up” is the process of copying computer data from a registered server to a Backup Vault.

B.     “Backup Agent” refers to the software installed on a registered server that enables the registered server to Back Up or Restore one or more Protected Items.

C.    “Backup Vault” refers to a container in which Customer may register one or more Protected Items for Backup.

D.    “Failure” means that either the Backup Agent or the Service fails to fully complete a properly configured Backup or Recovery operation due to unavailability of the Backup Service.

E.     “Recovery” or “Restore” is the process of restoring computer data from a Backup Vault to a registered server.

ii.         Monthly Uptime Calculation and Service Levels for Backup Service

A.     “Deployment Minutes” is the total number of minutes during which a Protected Item has been scheduled for Backup to a Backup Vault.

B.     “Maximum Available Minutes” is the sum of all Deployment Minutes minus the Schedule and any Approved maintenance across all Protected Items for a given SLM-Cloud Backup Service in a given month.

C.    “Scheduled and Approved Maintenance” is the total accumulated maintenance minutes allotted to the SLM-Cloud Services for Maintenance of systems hardware, software, patches, security updates, security audits, penetration testing, or other approved services that may result in downtime to the application or services availability in a given month.

D.    “Downtime” is the total accumulated Deployment Minutes across all Protected Items scheduled for Backup by Customer in a given SLM-Cloud Backup Service during which the Backup Service is unavailable for the Protected Item. The Backup Service is considered unavailable for a given Protected Item from the first Failure to Back Up or Restore the Protected Item until the initiation of a successful Backup or Recovery of a Protected Item, provided that retries are continually attempted no less frequently than once every thirty minutes.

E.     “Monthly Uptime Percentage” for the Backup Service is calculated as Maximum Available Minutes less Downtime divided by Maximum Available Minutes less Scheduled and Approved Maintenance in a month for a given SLM-Cloud Service.  Monthly Uptime Percentage is represented by the following formula:

F.     The following Service Levels and Service Credits are applicable to Customer’s use of the Backup Service:

Monthly Uptime Percentage	Service Credit
<99.9%	10%
<99%	20%
<90%	50%
<50%	100%

b.     SLM-Cloud Virtual Machines, and Virtual Network

i.         Additional Definitions

A.     “Availability Set” refers to two or more Virtual Machines deployed across different Fault Domains to avoid a single point of failure.

B.     “Cloud Services” refers to a set of compute resources utilized for Web and Worker Roles.

C.    “Fault Domain” is a collection of servers that share common resources such as power and network connectivity.

D.     “Tenant” represents one or more roles each consisting of one or more role instances that are deployed in a single package.

E.     “Update Domain” refers to a set of SLM-Cloud instances to which platform updates are concurrently applied.

F.     “Virtual Machine” refers to persistent instance types that can be deployed individually or as part of an Availability Set.

G.    “VNet” refers to a virtual private network consisting of a collection of user-defined IP addresses and subnets that form a network boundary within SLM-Cloud.  VNets support IP addresses as defined in RFC 1918.

H.    “Web Role” is a Cloud Services component run in the SLM-Cloud execution environment that is customized for web application programming as supported by IIS and ASP.NET.

I.      “Worker Role” is a Cloud Services component run in the SLM-Cloud execution environment that is useful for generalized development, and may perform background processing for a Web Role.

ii.         Monthly Uptime Calculation and Service Levels for Virtual Machines

A.     “Maximum Available Minutes” is the total accumulated minutes in a given month for all Internet facing roles that have two or more instances deployed in different Update Domains. Maximum Available Minutes is measured from when the Tenant has been deployed and its associated roles have been started resultant from action initiated by Customer to the time Customer has initiated an action that would result in stopping or deleting the Tenant.

B.     “Downtime” is the total accumulated minutes that are part of Maximum Available Minutes that have no External Connectivity.

C.    “Scheduled and Approved Maintenance” is the total accumulated maintenance minutes allotted to the SLM-Cloud Services for Maintenance of systems hardware, software, patches, security updates, security audits, penetration testing, or other approved services that may result in downtime to the application or services availability in a given month.

D.    “Monthly Uptime Percentage” for Cloud Services is calculated as Maximum Available Minutes less Downtime divided by Maximum Available Minutes less Scheduled and Approved Maintenance in a given month for SLM-Cloud Services.  Monthly Uptime Percentage is represented by the following formula:

E.     The following Service Levels and Service Credits are applicable to Customer’s use of Cloud Services:

Monthly Uptime Percentage	Service Credit
<99.95%	10%
<99%	20%
<90%	50%
<50%	100%

iii.         Monthly Uptime Calculation and Service Levels for Virtual Network

A.     “Maximum Available Minutes” is the total accumulated minutes in a given month for the Virtual Network Gateway measured from when the associated Virtual Network Gateway has been started resultant from action initiated by Customer to the time Customer has initiated an action that would result in stopping or deleting the gateway.

B.     “Downtime” is the total accumulated Virtual Network Gateway minutes in a given month that had been deployed and started by action initiated by Customer where the Virtual Network Gateway was unreachable for longer than thirty seconds without detection and corrective action being initiated.

C.    “Scheduled and Approved Maintenance” is the total accumulated maintenance minutes allotted to the SLM-Cloud Services for Maintenance of systems hardware, software, patches, security updates, security audits, penetration testing, or other approved services that may result in downtime to the application or services availability in a given month.

D.    “Monthly Uptime Percentage” for Virtual Network is calculated as Maximum Available Minutes less Downtime divided by Maximum Available Minutes less Scheduled and Approved Maintenance in given month for SLM-Cloud Services.  Monthly Uptime Percentage is represented by the following formula:

E.      The following Service Levels and Service Credits are applicable to Customer’s use of Virtual Network:

Monthly Uptime Percentage	Service Credit
<99.9%	10%
<99%	20%
<90%	50%
<50%	100%

c.     SQL Database Service

i.         Additional Definitions

A.     “Database” means any Web, Business, Basic, Standard, Premium, or Enterprise MSS SQL Server Database.

ii.         Monthly Uptime Calculation and Service Levels for SLM-Cloud SQL Database Service

A.     “Deployment Minutes” is the total number of minutes that a given Database has been deployed in SLM-Cloud in a given month.

B.     “Maximum Available Minutes” is the sum of all Deployment Minutes across all Web and Business Databases for SLM-Cloud Services in a given month.

C.    “Downtime” is the total accumulated Deployment Minutes across all Web and Business Databases deployed by Customer in SLM-Cloud Services during which the Database is unavailable.  A minute is considered unavailable for a given Database if all continuous attempts by Customer to establish a connection to the Database within the minute fail.

D.    “Scheduled and Approved Maintenance” is the total accumulated maintenance minutes allotted to the SLM-Cloud Services for Maintenance of systems hardware, software, patches, security updates, security audits, penetration testing, or other approved services that may result in downtime to the application or services availability in a given month.

E.     “Monthly Uptime Percentage” for the Web and of the SQL Database Service is calculated as Maximum Available Minutes less Downtime divided by Maximum Available Minutes in a billing month for SLM-Cloud Services.  Monthly Uptime Percentage is represented by the following formula:

F.     The following Service Levels and Service Credits are applicable to Customer’s use of the SLM-Cloud SQL Database Service:

Monthly Uptime Percentage	Service Credit
<99.9%	10%
<99%	20%
<90%	50%
<50%	100%

d.     Storage Service

i.         Additional Definitions

A.     “Geo Replication Lag” for GRS and RA-GRS Accounts is the time it takes for data stored in the Primary Region of the storage account to replicate to the Secondary Region of the storage account.  Because GRS and RA-GRS Accounts are replicated asynchronously to the Secondary Region, data written to the Primary Region of the storage account will not be immediately available in the Secondary Region. Customers can query the Geo Replication Lag for a storage account, but MSS does not provide any guarantees as to the length of any Geo Replication Lag under this SLA.

B.     “Geographically Redundant Storage (GRS) Account” is a storage account for which data is replicated synchronously within a Primary Region and then replicated asynchronously to a Secondary Region. Customers cannot directly read data from or write data to the Secondary Region associated with GRS Accounts.

C.    “Locally Redundant Storage (LRS) Account” is a storage account for which data is replicated synchronously only within a Primary Region.

D.    “Primary Region” is a geographical region in which data within a storage account is located, as selected by Customer when creating the storage account. Customers may execute write requests only against data stored within the Primary Region associated with storage accounts.

E.     “Read Access Geographically Redundant Storage (RA-GRS) Account” is a storage account for which data is replicated synchronously within a Primary Region and then replicated asynchronously to a Secondary Region. Customers can directly read data from, but cannot write data to, the Secondary Region associated with RA-GRS Accounts.

F.     “Secondary Region” is a geographical region in which data within a GRS or RA-GRS Account is replicated and stored, as assigned by MSS based on the Primary Region associated with the storage account.  Customers cannot specify the Secondary Region associated with storage accounts.

G.    “Zone Redundant Storage (ZRS) Account” is a storage account for which data is replicated across multiple facilities.  These facilities may be within the same geographical region or across two geographical regions.

ii.         Monthly Uptime Calculation and Service Levels for Storage Service

A.     “Total Storage Transactions” is the set of all storage transactions, other than Excluded Transactions, attempted within a one-hour interval across all storage accounts in the Storage Service in a given subscription.

B.     “Excluded Transactions” are storage transactions that do not count toward either Total Storage Transactions or Failed Storage Transactions.  Excluded Transactions include pre-authentication failures; authentication failures; attempted transactions for storage accounts over their prescribed quotas; creation or deletion of containers, tables, or queues; clearing of queues; and copying blobs between storage accounts.

C.    “Error Rate” is the total number of Failed Storage Transactions divided by the Total Storage Transactions during a set time interval (currently set at one hour).

D.    “Failed Storage Transactions” is the set of all storage transactions within Total Storage Transactions that are not completed within the Maximum Processing Time associated with their respective transaction type, as specified in the table below.  Maximum Processing Time includes only the time spent processing a transaction request within the Storage Service and does not include any time spent transferring the request to or from the Storage Service.

Request Type	Maximum Processing Time*
·       PutBlob and GetBlob (includes blocks and pages)·       Get Valid Page Blob Ranges	Two (2) seconds multiplied by the number of MBs transferred in the course of processing the request
·       Copy Blob	Ninety (90) seconds (where the source and destination blobs are within the same storage account)
·       PutBlockList·       GetBlockList	Sixty (60) seconds
·       Table Query·       List Operations	Ten (10) seconds (to complete processing or return a continuation)
·       Batch Table Operations	Thirty (30) seconds
·       All Single Entity Table Operations·       All other Blob and Message Operations	Two (2) seconds

*These figures represent maximum processing times. Actual and average times are expected to be much lower.

Failed Storage Transactions do not include:

1.     Transaction requests that are throttled by the Storage Service due to a failure to obey appropriate back-off principles.

2.     Transaction requests having timeouts set lower than the respective Maximum Processing Times specified above.

3.     Read transactions requests to RA-GRS Accounts for which Customer did not attempt to execute the request against Secondary Region associated with the storage account if the request to the Primary Region was not successful.

4.     Read transaction requests to RA-GRS Accounts that fail due to Geo-Replication Lag.

E.     “Error Rate” is the total number of Failed Storage Transactions divided by the Total Storage Transactions during a given one-hour interval. If the Total Storage Transactions in a given one-hour interval is zero, the error rate for that interval is 0%.

F.     “Monthly Uptime Percentage” for the Storage Service is calculated by subtracting from 100% the Average Error Rate for the billing month for SLM-Cloud Services.  The “Average Error Rate” for a billing month is the sum of Error Rates for each hour in the billing month divided by the total number of hours in the billing month.  Monthly Uptime Percentage is represented by the following formula:

Monthly Uptime % = 100% – Average Error Rate

G.    The following Service Levels and Service Credits are applicable to Customer’s use of the Storage Service for all qualified transaction requests for LRS, ZRS, and GRS Accounts and write transaction requests for RA-GRS Accounts:

Monthly Uptime Percentage	Service Credit
<99.9%	10%
<99%	20%
<90%	50%
<50%	100%

H.    The following Service Levels and Service Credits are applicable to Customer’s use of the Storage Service for qualified read transaction requests for RA-GRS Accounts:

Monthly Uptime Percentage	Service Credit
<99.99%	10%
<99%	20%
<90%	50%
<50%	100%

 

e.     Traffic Manager Service

i.         Additional Definitions

A.     “Traffic Manager Profile” or “Profile” refers to a deployment of the Traffic Manager Service created by Customer containing a domain name, endpoints, and other configuration settings.

B.     “Valid DNS Response” means a DNS response, received from at least one of the Traffic Manager Service name server clusters, to a DNS request for the domain name specified for a given Traffic Manager Profile.

ii.         Monthly Uptime Calculation and Service Levels for Traffic Manager Service

A.     “Deployment Minutes” is the total number of minutes that a given Traffic Manager Profile has been deployed in SLM-Cloud in a given month.

B.     “Maximum Available Minutes” is the sum of all Deployment Minutes across all Traffic Manager Profiles deployed by Customer in SLM-Cloud Services in a given month.

C.    “Downtime” is the total accumulated Deployment Minutes, across all Profiles deployed by Customer in SLM-Cloud Services, during which the Profile is unavailable. A minute is considered unavailable for a given Profile if all continual DNS queries for the DNS name specified in the Profile that are made throughout the minute do not result in a Valid DNS Response within two seconds.

D.    “Scheduled and Approved Maintenance” is the total accumulated maintenance minutes allotted to the SLM-Cloud Services for Maintenance of systems hardware, software, patches, security updates, security audits, penetration testing, or other approved services that may result in downtime to the application or services availability in a given month.

E.     “Monthly Uptime Percentage” for the Traffic Manager Service is calculated as Maximum Available Minutes less Downtime divided by Maximum Available Minutes in a billing month for SLM-Cloud Services.  Monthly Uptime Percentage is represented by the following formula:

F.     The following Service Levels and Service Credits are applicable to Customer’s use of the Traffic Manager Service:

Monthly Uptime Percentage	Service Credit
<99.99%	10%
<99%	20%
<90%	50%
<50%	100%

 

f.      Websites Service

i.         Additional Definitions

A.     “Website” is a website deployed by MSS for Customer within the Websites Service.

ii.         Monthly Uptime Calculation and Service Levels for Websites Service

A.     “Deployment Minutes” is the total number of minutes that a given Website has been set to running in SLM-Cloud in a given month.  Deployment Minutes is measured from when the Website was created or the Customer has initiated an action that would result in running the Website to the time the Customer has initiated an action that would result in stopping or deleting the Website.

B.     “Maximum Available Minutes” is the sum of all Deployment Minutes across all Websites deployed by Customer in SLM-Cloud Services in a given month.

C.    “Downtime” is the total accumulated Deployment Minutes, across all Websites deployed by Customer in SLM-Cloud Services, during which the Website is unavailable. A minute is considered unavailable for a given Website when there is no connectivity between the Website and MSS’s Internet gateway.

D.    “Scheduled and Approved Maintenance” is the total accumulated maintenance minutes allotted to the SLM-Cloud Services for Maintenance of systems hardware, software, patches, security updates, security audits, penetration testing, or other approved services that may result in downtime to the application or services availability in a given month.

E.     “Monthly Uptime Percentage” for the Websites Service is calculated as Maximum Available Minutes less Downtime divided by Maximum Available Minutes in a billing month for SLM-Cloud Services.  Monthly Uptime Percentage is represented by the following formula:

F.     The following Service Levels and Service Credits are applicable to Customer’s use of the Websites Service:

Monthly Uptime Percentage	Service Credit
<99.95%	10%
<99%	20%
<90%	50%
<50%	100%