Alemba Master Services Agreement (US)

1. Application of this MSA

1.1 This terms and conditions of this Master Services Agreement including the Schedules and the Appendices (the "MSA”) are the terms by which Alemba Group Inc. at Minnesota Center, 7760 France Avenue South, Suite 110, Minneapolis, MN 55435 USA (the "Company”) provides software and services to its customers. In these Conditions the definitions in Schedule 1 shall apply.

1.2 This MSA shall:

(a) apply to and be incorporated into any agreement between the Company and its customer identified in the Order Form (the "Customer"); and

(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Customer, or implied by law, trade customer, practice or course of dealing.

2. Agreements

2.1 The Customer's acceptance of the Company’s quotation for Services (including any Deliverables) and/or Software constitutes an offer by the Customer to purchase the Services and/or license the Software (and any Deliverables comprised of Software) (as applicable) subject to this MSA. No offer placed by the Customer shall be accepted by the Company unless it has been made on the Company’s order form and acceptance by the Company of such order shall be indicated by the Company's counter-signature of such Order Form. Upon such acceptance of each Order Form by the Company, the Agreement for the supply and license of the Services and Software (and any Deliverables comprised of Software) will be established, incorporating this MSA and the relevant terms from the Specific Terms of Service in Schedule 2 and the terms in the relevant accepted Order Form (an "Agreement").

2.2 In the event of a conflict or inconsistency between the terms and conditions of this MSA and the Order Form, the special conditions in the Order Form shall prevail.

2.3 In the event of a conflict or inconsistency between the terms and conditions of the main body of this MSA and the Terms of Service in Schedule 2, the Terms of Service in Schedule 2 shall prevail.

2.4 In this Agreement, unless otherwise specified:

(a) the masculine gender shall include the feminine and the neuter and vice versa;

(b) references to a person shall include reference to any individual, company, association, partnership, charity or joint venture;

(c) references to "include" and "including" shall be treated as references to "include without limitation" or "including without limitation";

(d) unless the context requires otherwise, words in the singular shall include the plural and vice versa;

(e) the headings are for identification only and shall not affect the interpretation of this Agreement;

(f) a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;

(g) all references to "writing" shall include by email, unless otherwise stated.

3. Price and payment

3.1 Paragraphs 3.2 and 3.3 shall apply if the Services are to be provided on a time-and-materials basis. The remainder of this Section 3 shall apply to all Charges, whether payable on a fixed price, annual or time and materials basis.

3.2 Where the Services are provided on a time-and-materials basis:

(a) the Service Fees shall be calculated in accordance with the Rates;

(b) the Company’s standard hourly rates are calculated on the basis of Working Hours;

(i) 150% of the normal rate for time worked by members of the Project Team outside Working Hours; and

(ii) 200% of the normal rate for time worked by members of the Project Team on weekends or any federal U.S. holiday;

(d) the Company shall ensure that the Project Team complete time sheets to calculate the Service Fees for each invoice charged on a time and materials basis.

3.3 In the event that the number of hours spent by the Company in providing the Services on the Customer's Site is less than the Minimum Billable Hours in any given Working Day, the Service Fees for that Working Day shall be calculated by applying the applicable Rate to the number of Minimum Billable Hours.

3.4 The Company shall invoice the Charges in accordance with the payment intervals stated in the Order Form.

3.5 The Service Fees exclude the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the Project Team in providing the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Customer for the Services ("Expenses"). Expenses shall be approved by the Customer in advance of being incurred and shall be payable by the Company in accordance with Paragraph 3.6. The Customer shall maintain complete and accurate records to substantiate the Company’s Expenses.

3.6 The Customer shall pay each undisputed invoice for the Charges and Expenses in full and cleared funds (without deduction, set-off, counter-claim or withholding other than withholding of taxes required by law) within thirty (30) days of the date of such invoice unless otherwise agreed in writing by the Company. The Customer shall notify the Company within thirty (30) days of the invoice date if it disputes the invoice.

3.7 Time for payment shall be of the essence in this Agreement.

3.8 All payments by the Customer hereunder shall be in U.S. dollars and shall be paid to the Company's bank account as advised by the Company to the Customer in writing.

3.9 All amounts stated are gross amounts but exclusive of applicable state and federal taxes, which shall be paid by the Customer.

3.10 Should the Customer be required by any law or regulation to make any deduction on account of tax including but not limited to withholding tax or otherwise on any sum payable under this Agreement the Charges payable shall be increased by the amount of such tax to ensure that the Company receives a sum equal to the amount to be paid under the applicable Order Form.

3.11 Without prejudice to any other remedy that the Company may have, if payment of the Charges or any part of the Charges is overdue, then (unless the Customer has notified the Company in writing that such payment is in dispute in accordance with Paragraph 3.6) the Company may, without prejudice to any other rights or remedies, at the Customer's option:

(a) suspend the Services under all Order Forms or the relevant Order Form until such payment is made in full. If the Company does so suspend, any costs and expenses the Company incurs due to such suspension and subsequent resumption shall be added to the Charges and the timetable for the Services shall automatically be extended by the period of such suspension without liability on the Company's part; and

(b) charge the Customer interest on the overdue amount at the greater of (i) a rate of 1.5% or (ii) the maximum allowable interest rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

3.12 The Company shall not be obliged to provide any of the Services while any duly issued invoice(s) remain unpaid under any Order Forms, but should the Company choose to continue to do so, this shall not in any way be construed as a waiver of the Company’s rights or remedies.

3.13 For any on-going Services, the Company may amend the Service Fees not more than once in any twelve month period, and shall give the Customer at least 30 (thirty) days’ written notice of any such amendment. The Customer may give notice to terminate the corresponding Agreement as applicable without liability within fifteen (15) days of receipt of such written notice from the Company. If the Company does not receive written notice within such fifteen (15) day period the Customer is deemed to have agreed to the amendment to the Service Fees.

4. Duration

4.1 The Software License shall commence on the Commencement Date and shall be licensed in perpetuity, subject at all times to the applicable Software License terms set out in Part A of the Terms of Service.

4.2 This Agreement shall specify whether the Services shall be provided on an ongoing or one-off basis:

(a) on-going Services shall commence from the Commencement Date and shall continue for applicable Initial Term and shall automatically renew for successive Renewal Terms unless earlier terminated by a party in accordance with the terms of this Agreement;

(b) one-off Services shall commence on the Commencement Date and shall continue until completion of such Services by the Company.

5. Software

5.1 If required by this Agreement, the Company shall deliver one copy of the Software to the Customer electronically and shall use reasonable efforts to complete this delivery within ten (10) Working Days of the Commencement Date.

5.2 The Customer shall be deemed to have accepted the Software if the Customer commences operational use of the Software or use of the Software for any purposes other than testing, including the input of Customer Data in the Software.

6. Services

6.1 The Services set out in the Order Form shall be provided by the Company to the Customer in accordance with this MSA and the applicable terms of the Terms of Service in Schedule 2.

6.2 The Customer will ensure that information and instructions that it provides to the Company related to the scope and performance of the Services from time to time are complete and accurate. If the Company bases the Charges upon information provided by the Customer and this information is subsequently shown to be incorrect or incomplete, the Company reserves the right to charge any resulting additional fees to the Customer.

6.3 The Company may engage subcontractors to perform Consulting Services provided that the Company shall be fully and solely responsible for the supervision and payment of its subcontractors and for all work performed by such subcontractors.

6.4 Nothing in this Agreement shall prevent the Company or the Project Team from being engaged, concerned or having any financial interest in any capacity in any other business, trade, profession or occupation during the provision of the Services provided that such activity does not cause a breach of any of the Company's obligations under this Agreement.

6.5 If either party wishes to change the scope or execution of the Consulting or Development Services, it shall submit details of the requested change to the other in writing and the Company shall, within a reasonable time, provide a written estimate to the Customer of:

(a) the likely time required to implement the change;

(b) any necessary variations to Charges arising from the change;

(the "Change Request Quote")

6.6 The Customer may:

(a) accept the Change Request Quote at any time within ten (10) Working Days of the Company submitting the Change Request Quote. Any acceptance must be in writing signed by the Customer. If the Customer does not accept the Change Request Quote within that time period, the Change Request Quote will expire; or

(b) reject the Change Request Quote, in which case this Agreement will continue in force unchanged.

6.7 The Company may withdraw, refuse, defer or abandon a Change Request Quote at any time before its acceptance, in which case the existing Agreement will continue in force unchanged.

6.8 The Company has no obligation to proceed with any change unless and until the parties have agreed the necessary variations to the Charges, the Consulting Services and/or the Development Services and any other relevant terms of this Agreement to take account of the change and the relevant Agreement has been varied in accordance with Section 18.1.

6.9 The Company may charge for the time it spends assessing a request for change from the Customer on a time and materials basis in accordance with Section 3.

7. Customer's Responsibilities

7.1 Without prejudice to Section 7.2, the Customer shall provide the Project Team with full, safe and uninterrupted access (including remote access where applicable) to the Customer's premises and to all items of software, hardware or other materials as may reasonably be required for the purpose of performing the Services.

7.2 The Customer shall:

(a) ensure that appropriate environmental conditions are maintained for the supported software, hardware and other items and shall take all reasonable steps to ensure that they are operated in a proper manner by the Customer's employees and that the Customer's employees are properly trained in the use and application of the Software and the equipment on which the Software is loaded or operating;

(b) nominate a manager as the liaison to the Company's designated account manager (for example, as to the resolution of conflicting priorities between two or more Support Issues);

(d) notify the Company at least two (2) Working Days in advance if the Customer replaces the manager appointed pursuant to Section 7.2 (b) above or any of the Customer Support Representatives;

(e) provide the Company's personnel with administrative assistance to schedule meetings and workshops (as may be required);

(f) comply with any Customer Dependencies set out in this Agreement.

7.3 Where the Services are to be performed at any of the Customer's premises, the Customer shall:

(a) provide the Project Team with adequate and safe working space, the Customer's Equipment, information, services, support and other assistance as the Project Team may reasonably require to provide the Services;

(b) permit the Company and the Project Team access to the relevant areas of the Customer's Site and to the Software, Customer's Equipment and facilities to the extent necessary for the performance of the Services, provided that, whilst on such Site and using the Customer's Equipment, the Company shall comply with any of the Customer's reasonable safety and security requirements notified to the Company in advance;

(c) provide such electronic and telephonic communication facilities as are reasonably required by the Company to provide the Services (including for testing and diagnostic purposes) at the Customer’s expense;

(d) provide a suitable vehicle parking facility for use by the Company’s personnel when visiting the Customer’s premises which is free from any legal restrictions;

(e) take precautions to ensure the health and safety of the Project Team and notify the Company and the Project Team in advance of all rules, regulations and policies applicable while on the Customer's premises;

(f) participate in Acceptance Testing in relation to Development Services, if provided in the relevant Agreement.

7.4 The Customer represents and warrants to the Company that it:

(a) shall co-operate with the Company, make available Project Personnel and the Customer's Support Representatives and provide any assistance or information as may reasonably be required by the Company for the performance of the Services, including in relation to Acceptance Testing;

(b) shall ensure that all necessary consents, licenses and permissions are in place to enable the Company to perform the requested Services and provide any Deliverables (including without limitation any relevant third party licenses for software, hardware and operating environment required to provide and support the Software and the Services and other materials). The Customer grants the Company a non-exclusive license to use and modify any of its or its licensors materials to the extent necessary to enable the Company to perform the Services and provide any Deliverables in accordance with this Agreement. To the extent that the Customer has not obtained the necessary consents, licenses and permissions the Customer shall notify the Company of any such consent or approvals required from the relevant third party and the Customer acknowledges that in these circumstances the provision of the Services and the Deliverables is conditional on the Company obtaining a license of such rights from the relevant licensor or licensors (at the Customer's expense, with the Company's prior consent) on such terms as will entitle the Company to modify the third party software or materials, or otherwise carry out the Services and deliver the Deliverables;

(d) not request, permit or authorize anyone other than the Company to provide any support services related to the Software (including Deliverables comprised of Software).

7.5 The Customer agrees that if the Customer is in breach of any of its obligations under this Agreement and such breach affects the Company's ability to provide the Software and/or Services (including delivering Deliverables):

(a) the time for performance or delivery shall be extended by such period of time as shall be reasonable having regard to the nature and extent of the Customer's breach and the Company shall not be liable for any delay or failure to provide the Software or Services (as applicable);

(b) the Customer shall remain fully obligated to pay the Company the Charges in full regardless of any such delay or failure to provide the Software and/or Services; and

(c) the Customer shall reimburse the Company on receipt of written demand from the Company for any costs or losses sustained or incurred by the Company as a result of the Customer’s breach.

7.6 The Customer shall indemnify the Company and hold it harmless from and against any losses, damages, costs (including all legal fees) and expenses and any other liabilities suffered, incurred by or awarded against the Company as a result of:

(a) the possession or use of the Software or Deliverables by the Customer or any of the Customer’s Group Companies (or by the employees, agents or representatives of either the Customer or the Customer’s Group Companies) in a way which is not permitted by this Agreement;

(b) any claim or allegation made against the Company arising out of or in connection with:

(i) any breach by the Customer of the terms of any Third Party Licenses;

(ii) any breach by the Customer of the warranty and representation set out in Section 7.4(b);

(iii) any third party claim or suit alleging that the use of the Customer's Equipment or any part of it by the Company for the performance of Consulting Services or Development Services infringes any Intellectual Property Rights belonging to a third party.

8. Non-Solicitation

8.1 Except with the Company’s prior written consent, the Customer shall not, during the term of Agreement, or for a period of 12 months following expiration or termination of an Agreement, directly or indirectly induce or attempt to solicit or induce any member of the Company's Project Team who was involved in the provision of Software or Services under such Agreement to leave the Company's employment, or engage, attempt to engage, hire, employ, attempt to employ or offer employment or work to any member of the Company's Project Team, provided that this Section 8.1 shall not preclude the Customer from running general and non-specific recruitment campaigns in the normal course of its business. The Customer shall procure that the Customer's Group Companies shall comply with this Section 8.1, and (without prejudice to the foregoing) any acts or omissions of any of the Customer's Group Companies shall be deemed to have been carried out or occasioned by the Customer for the purposes of this Section 8.1.

8.2 Should the Customer or the Customer's Group Companies commit any breach of Section 8.1, unless agreed otherwise, the Customer shall, on demand, pay to the Company a sum equal to one year's basic salary and bonus or the annual fee that was payable by the Company to that member of the Company's Project Team plus the recruitment costs incurred by the Company in replacing such person. The parties agree that such sums are a genuine pre-estimate of the loss likely to be suffered by the Company. Payment of any such sums shall not prejudice the Company's rights to seek other legal remedies such as injunctive relief.

9. Intellectual Property Rights

9.1 The Company acknowledges that all Intellectual Property Rights in the Customer's Equipment and Customer Data shall belong to the Customer. The Customer shall have sole responsibility for the legality the Customer's Equipment and Customer Data.

9.2 The Customer acknowledges that all Intellectual Property Rights in the Software and Deliverables (which are created as part of any Development Services and which have been agreed in an Order Form), Company Background Technology and any Updates belong and shall belong to the Company or the Company's licensors (as the case may be), and the Customer shall have no rights in or to the Software or Deliverables other than the right to use them in accordance with the terms of this Agreement.

9.3 Notwithstanding the restrictions in the Software License detailed in Part A of the Terms of Service, the Customer acknowledges that all Intellectual Property Rights in any Alterations now in existence or created by Company, Customer, or any third party on behalf of the Company or Customer, shall become and remain the sole and exclusive property of the Company. Upon written request by the Company, the Customer will promptly execute such assignments or other documents necessary to confirm, assign or transfer in favor of the Company any Intellectual Property Rights in any Alterations.

9.4 The Company grants the Customer a license to use the relevant Software and Deliverables, if any, in accordance with the Software License set out in Part A of the Terms of Service in Schedule 2.

9.5 For clarity, the Company is not restricted from using any knowhow developed or acquired by the Company during the Company's provision of the Services which may be of general application to the Company's work for other customers. For the purposes of this Section 9.5, 'knowhow' shall mean information and experience, but shall not include the Customer's Confidential Information.

10. Confidentiality

10.1 In this Section 10, a "Disclosing Party" is a party who discloses Confidential Information to the other party, and a "Receiving Party" is a party who receives such Confidential Information.

10.2 All Confidential Information belonging to one party and disclosed to the other party remains the sole property of the Disclosing Party. Subject to Section 10.3, a Receiving Party undertakes:

(a) to hold in strict confidence any Confidential Information;

(b) to keep all Confidential Information secure and protected against theft, damage, loss or unauthorized access and take all necessary measures to prevent the unauthorized use and disclosure of Confidential Information by its Associates;

(c) to treat all Confidential Information with the same degree of care as it employs with regard to its own Confidential Information of a like nature and in any event in accordance with reasonable current commercial security practices;

(d) not to use, copy or modify the Confidential Information (or permit others to do so) for any other purpose than as contemplated by this Agreement;

(e) to disclose the Confidential Information only to its employees, officers, agents, associates, legal advisors, Affiliates ("Associates") on a strictly "need to know" basis and provided that:

(i) it informs such Associates of the confidential nature of the Confidential Information before disclosure; and

(ii) at all times, it is responsible for such Associates’ compliance with the confidentiality obligations set out in this Section 10 and shall obtain from such Associates duly binding agreements to maintain in confidence the Confidential Information to be disclosed to the same extent at least as the parties are so bound under this Agreement.

(f) not to disclose the Confidential Information to any third party whatsoever (excluding Associates under Section 10.2(e) above) except with the prior written consent of the Disclosing Party;

(g) not to make copies of (or if not in writing reduce to permanent form) the Confidential Information, whether in whole or in part, without the prior written consent of the Disclosing Party; and

(h) each party agrees to keep the existence and nature of this Agreement and its provisions confidential.

10.3 The provisions of Section 10.2 shall not apply to:

(a) any information in the public domain otherwise than by breach of this Agreement;

(b) information lawfully in the possession of the Receiving Party free of any restriction as to its use or disclosure prior to or after its being furnished by the Disclosing Party under this Agreement, provided that the source of such information has the legal right to use and disclose it and is not subject to any agreement or other duties relating to confidentiality related to it;

(c) information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the Receiving Party under such duty to disclose shall (to the extent permitted by law) use all reasonable efforts to give the Disclosing Party as much prior notice of such disclosure; take all such steps as may be reasonable and practicable in the circumstances to agree the contents of such disclosure with the Disclosing Party before making the disclosure; and consult with the Disclosing Party as to possible steps to avoid or limit disclosure and take those steps where they would not result in significant adverse consequences to the Receiving Party, all at Disclosing Party’s expense; and

(d) information which the Disclosing Party has expressly agreed in writing does not apply to the provisions of Section 10.2.

10.4 Each party acknowledges and agrees that any breach of this Agreement by it as a Receiving Party could cause injury to the other party as a Disclosing Party and damages would not be an adequate remedy. In the event of a breach or threatened breach by a Receiving Party, the Disclosing Party shall be entitled to apply for injunctive relief in any court of competent jurisdiction and the Receiving Party shall not oppose any such application. Nothing contained in this Agreement shall be construed as prohibiting the Disclosing Party from pursuing any other remedies available to it for a breach or threatened breach.

10.5 If so requested in writing by the Disclosing Party, the Receiving Party shall return at its own expense to the Disclosing Party, on demand and to a location specified by the Disclosing Party, all materials bearing Confidential Information, and shall destroy all copies made by the Receiving Party, including information stored on the Receiving Party’s computer system or other documents which have been made by the Receiving Party and which contain any part of or reference to the Confidential Information, except as authorized in writing by the Disclosing Party and except as may be reasonably necessary to exercise any rights granted to the Receiving Party under the terms of this Agreement.

10.6 The obligations in this Section 10 shall remain in full force and effect notwithstanding any termination of this Agreement by either party.

11 Data Processing

11.1 In the course of providing services under this Agreement, if the Customer transfers its employees or customer’s personally identifiable information (collectively “PII”) to the Company for the Company to process in the course of providing any Services, the Company agrees:

(a) to take appropriate physical, technical and administrative measures, having regard to the state of technological development, the cost of implementing any measures and the nature of the Customer's PII to be protected, to protect such PII from unauthorized or unlawful processing and against accidental loss or destruction of; and

(b) to only process the Customer's PII in accordance with the Customer's instructions from time to time.

11.2 Without limitation, the Company may disclose the Customer's PII to the extent required to do so by law or by the order of any competent authority.

11.3 Unless otherwise notified by Customer, Customer agrees that its PII is not protected by any additional federal or state law requiring certain compliance terms by Company. To the extent possible, Customer will limit the transferal of PII to Company through the course of the delivery of the services under this Agreement.

12 Warranties

12.1 Each of the parties warrants to the other that it has full power and authority to carry out the actions contemplated under this Agreement, and that its entry into and performance under the terms of this Agreement will not infringe the rights of any third party or cause it to be in breach of any obligations to a third party.

12.2 Subject to the exceptions set out in this Agreement and the limitations upon the Company's liability in Section 13, the Company warrants that:

(a) the Services will be carried out with reasonable skill and care; and

(b) for the Warranty Period that the Software and tangible Deliverables will conform and operate in all material respects in accordance with its functional Specification.

12.3 EXCEPT AS PROVIDED IN THIS AGREEMENT OR APPLICABLE ORDER FORM, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY COMPANY. CUSTOMER FURTHER AGREES AND ACKNOWLEDGES THAT:

(a) the Company does not guarantee any particular results when providing the Software, the Services or Deliverables, or through use of the Software, Services or Deliverables;

(b) where the Customer has asked the Company to configure or develop any software based on the Customer’s business methodology or rules, it is the Customer’s responsibility to ensure that its instructions have been implemented to its satisfaction; and

(c) the Customer assumes sole responsibility for the results obtained from the use of Software, Services and/or Deliverables and for conclusions drawn from such use.

12.4 The Company does not warrant that the use of the Software or Deliverables comprised of software will be uninterrupted or error-free.

12.5 Subject to Section 12.9, the sole remedy for any claim that any Software, Deliverable or services provided infringe upon any third party intellectual property rights, is that, at the Company’s option (as applicable), it will:

(a) repair the Software or Deliverable;

(b) replace the Software or Deliverable;

(d) refund any of the Charges paid by the Customer for such Software or Deliverable on a pro rata basis related to the Customer's use of the Software or Deliverable up to the date the Software or Deliverable is returned to the Company;

provided that the Customer provides the Company with all information that may be necessary to assist the Company in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Company to re-create the defect or fault.

12.6 Subject to Section 12.9, the sole remedy for an infringement claim under Section 12.5 is that the Company shall at its own expense, defend or, at the Company's option, settle any third party claim or suit alleging that the use by the Customer of the Software or Deliverable or any part of them infringes any intellectual property rights of a third party (a “Claim”) and the Company agrees to be responsible for the Customer's costs reasonably incurred and to pay any direct damages finally awarded against the Customer in any such Claim by a court of competent jurisdiction provided that:

(a) the Customer shall immediately notify the Company if a Claim is made against the Customer and agrees to grant the Company exclusive control of all litigation and negotiations in connection with such Claim;

(b) the Customer shall, at the Company's request and expense, afford to the Company all reasonable assistance for the purpose of contesting any Claim;

(c) the Customer does not make any admissions (save where required by court order or governmental regulations, and where the Customer is required under the terms of such order or regulations not to first consult with the Company) which may be prejudicial to the defense or settlement of any Claim without the Company's approval (not to be unreasonably withheld or delayed).

12.7 Subject to Section 12.9, if a Claim is made or in the Company's reasonable opinion is likely to be made, the Company may at the Company's own expense either:

(a) modify any or all of the Software or Deliverable without reducing the performance and functionality of the same so as to avoid the infringement or the alleged infringement, in which case the Company may issue a new Update of the Software or Deliverable which the Customer shall implement; or

(b) procure a license to use the infringing or potentially infringing part of the Software or Deliverable on terms which are acceptable to the Customer (acting reasonably); or

(c) if neither causes of action under Section 12.7(a) or (b) are reasonably practicable or economical, the Company may terminate Customer’s right to use the Software and Deliverables, in whole or in part and refund to the Customer the proportion of the Charges paid by the Customer to the Company which reflects the loss of functionality suffered by the Customer as agreed between the parties or in the absence of agreement as determined by an independent consultant nominated by agreement of the parties (such consultant to act as expert not as arbitrator) and whose decision shall be final and binding on the parties less a reasonable allowance for the period of time Customer has used the Software or Deliverable.

12.8 If the Company has modified the Software or Deliverable and issued an Update pursuant to Section 12.7(a) or procured a license under Section 12.7(b) and has therefore avoided the Claim, then the Company shall have no further liability related to that Claim.

12.9 Company’s obligations under Section 12.5, 12.6 and 12.7 shall not apply insofar as any such defect, fault or Claim is based upon:

(a) any breach of the relevant Software License or Third Party License;

(b) the Customer's use of the Software or Deliverable or any part thereof not in accordance with this Agreement or in a manner not reasonably to be anticipated by the Company when supplying them to the Customer;

(c) modifications made to the Software or Deliverable by the Customer or a third party under the Customer's direction without the Company's authorization;

(d) any Customer Modifications or (for clarity) Customer Features;

(e) use of the Software or Deliverable in association with any other equipment, programs or materials not supplied by the Company unless such combination is expressly authorized by the Company (subject at all times to Section 12.9(d) above;

(f) use of any release of the Software or Deliverable comprised of software other than a Covered Release or by use of the Software or Deliverable comprised of software without the application of any Updates released pursuant to Section 12.7(a) above; or

(g) the Customer's Equipment;

(h) designs or specifications supplied by the Customer.

12.10 No representation or warranty is given by the Company that any or all faults will be fixed or will be fixed within a specified period of time.

13 Limitation of Liability

13.1 This Section 13 is drafted in order to strike a fair and reasonable balance between the Customer and the Company and to allocate risk between the parties in a way that is fair and reasonable bearing in mind the parties’ respective knowledge of their businesses, the availability of insurance to protect against risks and the level of the Charges. The Company has carefully considered the basis on which it can provide the Software and the Services (including the Deliverables, if any) commercially bearing these things in mind and this Section 13 sets out the extent to which it considers that it is fair and reasonable for it to accept liability and where the Customer accepts risk for itself in the use of the Software and the Services (including the Deliverables, if any).

13.2 All claims by the parties against each other under this Agreement shall be brought under this Agreement. This Section 13 prevails over all other conditions in this Agreement and sets forth the entire liability of the Company and the sole and exclusive remedies of the Customer related to:

(a) the Software and the Services (including the Deliverables, if any) or any part of them;

(b) any use made by the Customer of the Software or the Services (including the Deliverables, if any) or any part of them;

(c) any breach, performance, non‑performance, purported performance or delay in performance of this Agreement (including any Order Form and any breach of the warranties in Section 12);

(d) otherwise in relation to this Agreement or the entering into of this Agreement;

(e) any representation, statement or act or omission (including negligence) arising under or in connection with this Agreement.

13.3 The Company shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence), breach of statutory duty, through indemnification or otherwise howsoever, which fall within any of the following categories:

(a) any special, indirect or consequential losses, costs, charges, expenses or damages; or

(b) punitive damages; or

(d) loss of anticipated savings; or

(e) loss of business or sales; or

(f) loss of contracts; or

(g) loss of use; or

(h) loss of opportunity; or

(i) loss arising from any Viruses in the Software and/or the Deliverables or downloaded using the Software and/or the Deliverables, or for any damage caused to any computer or other device on which the Software and/or the Deliverables is downloaded on or used upon as a result of such Viruses;

(j) loss of or corruption to programming and any and all data including, but not limited to, the Customer Data;

(k) loss or damage to reputation; or

(l) depletion to goodwill and/or similar losses; or

(m) loss arising from any delay to the Customer’s project(s) including any increased costs;

(n) claims against the Customer by any third party; or

(o) losses (regardless of their nature) for any delay or failure by the Company to perform its obligations under this Agreement as a result of a Force Majeure Event;

and such liability is excluded whether it is foreseeable, known, foreseen or otherwise. COMPANY’S LIABILITIES UNDER THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY COMPANY FROM CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE DATE OF THE ACTION GIVING RISE TO THE CLAIM.

13.4 The Company shall in no circumstances be liable or responsible for (or for the consequences of):

(a) any failure to meet its obligations under this Agreement or in any way otherwise if such failure is caused by any breach of Agreement by the Customer or by any act or omission of:

(i) the Customer or its employees, agents or representatives; or

(ii) any third party (other than a subcontractor of the Company);

(b) defects or errors in the Software (or any Deliverables, if applicable) outside the Warranty Period, though this is without prejudice to the Company’s obligations to provide Support and Maintenance Services in relation to such Software (including Deliverables, if any) if and to the extent agreed under an Agreement for such Services;

(c) defects or errors resulting from any modifications of the Software or the Software Documentation (as defined in the Terms of Service) or the Deliverables made by any person other than the Company without the Company’s prior written consent;

(d) defects or errors caused by the use of any release of the Software or Deliverables comprised of software other than the Covered Release and, if applicable, any Update issued pursuant to Section 12.7;

(e) use of the Software and/or the Deliverables other than strictly in accordance with the Software Documentation (or other applicable documentation provided by the Company) or defects or errors due to operator error;

(f) a situation where a defect or error could have been avoided by consideration of all information contained in the Software Documentation, even if such consideration depends on the interpretation of such information;

(g) any defect or error in the Hardware and Software Platform or in any other programs used in conjunction with the Software or the Deliverables;

(h) where the Customer fails to maintain the Environment or use the Hardware and Software Platform strictly in accordance with the Software Documentation;

(i) defects or errors caused by the malicious or negligent activities of the Customer or its employees or subcontractors or any other third parties;

(j) defects or errors in any way related to the Customer not affording the Company proper access to the Software to provide the Services (as applicable);

(k) any loss or damage arising out of any failure by the Customer to keep full and up to date security copies of Customer Data and any computer programs and data used in accordance with the Software or the Deliverables in accordance with best computing practice;

(l) any loss, damage, defects or errors arising from the Company's reliance on the Assumptions agreed between the parties in this Agreement.

13.5 The Company may provide the Customer with guidance related to Software, Services and Deliverables which might be suitable for the Customer, but the Customer accepts responsibility for the Software, Services and the Deliverables selected in the Order Form to achieve its intended results and the Company shall not be liable for ensuring that the Software, Services or Deliverables meet the Customer's individual requirements.

13.6 The total liability of the Company under or in connection with any Agreement and any contracts which are collateral to such Agreement, whether in contract, tort, (including negligence or breach of statutory duty), misrepresentation, through indemnification or otherwise, shall be for direct and reasonably foreseeable costs and damages only, and shall in no circumstances exceed a sum equal to one hundred and ten percent (110%) of the aggregate Charges paid by the Customer in the year preceding the date that the liability arises under the specific Agreement that is the subject of the claim.

13.7 All dates supplied by the Company for the delivery of the Software, the provision of Services or delivery of Deliverables shall be treated as estimates and approximate only. While the Company shall use reasonable efforts to meet estimated delivery dates, the Company shall not in any circumstances be liable for any loss or damage arising from any delay in delivery or failures to meet estimated timelines and time for delivery of Software, the provision of Services or delivery of Deliverables by the Company shall not be of the essence of this Agreement.

13.8 The exclusions and limitations of liability in this Agreement (including in this Section 13 and in Sections 3.11(a), 3.13, 7.5, 11.5, 12, 17.1, 18.5 of the MSA and Paragraph 6.8(f) of Part E of the Terms of Service) shall apply to the fullest extent permissible by law but nothing in this Agreement shall exclude or limit the Company's liability for:

(a) death or personal injury caused by the negligence of the Company, its Project Team, officers or other employees, contractors or agents; or

(b) fraud or fraudulent misrepresentation; or

14 Termination

14.1 This Agreement relating to each individual Order Form shall become effective on its Commencement Date and shall continue until it expires in accordance with its terms or is terminated in accordance with the provisions of Section 3.13, this Section 14, Paragraph 4.3 of Part C of the Terms of Service or Paragraph 6.8(g)(ii) of Part E of the Terms of Service. For the avoidance of doubt in the event of an Agreement being terminated any other Agreements still in existence do not automatically terminate and shall continue subject to the terms and conditions of the relevant Agreement until such Agreements expire or are themselves terminated in accordance with their terms.

14.2 Without affecting any other right or remedy available to it, either party may terminate any or all Agreements with immediate effect by giving written notice to the other party if the other party is: (a) is dissolved; (b) ceases to conduct all (or substantially all) of its business; (c) becomes unable to pay its debts as they fall due; (d) is or becomes insolvent or is declared insolvent; (e) makes or proposes to make any arrangement or composition with its creditors; an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or (f) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement).

14.3 Without affecting any other right or remedy available to it, the Company may terminate some or all Agreements or (at the Company’s option) terminate the relevant Agreement at any time if the Customer fails to pay the Charges or any amount due to the Company under this Agreement on the due date for payment and remains in default for fourteen (14) days or more after being notified in writing to make such payment.

14.4 Without affecting any other right or remedy available to it, either party may terminate an Agreement (or, at its option, some or all Agreements):

(a) at any time on giving prior written notice to the other party if the other party commits any material breach of any term of the relevant Agreement and, in the case of a breach which is reasonably capable of remedy, fails to remedy that breach within thirty (30) days of a written request to remedy the same (the Company may treat the Customer's breach of any applicable Third-Party License as a material breach of this Agreement which is incapable of remedy); or

(b) in relation to on-going Services for any reason on giving the other party at least two (2) months' prior written notice any such termination to take effect only on expiration of the Initial Term or Renewal Term related to the relevant Service;

and for the avoidance of doubt, in the event of an Agreement being terminated, any other Agreements still in existence shall continue as separate contracts until such Agreements expire or are themselves terminated and in the event that on-going Services are terminated, any Software or other Services in the same Agreement which are still in existence shall continue subject to the terms and conditions of this Agreement.

14.5 The termination of all Agreements or the expiration or termination of any Agreement for whatever reason shall be without prejudice to any other rights or remedies a party may be entitled to under law and shall not affect the respective rights and liabilities of either of the parties accrued prior to such termination or expiration nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination or expiration.

14.6 On termination of an Agreement by the Company in accordance with Section 14.3 or 14.4(a):

(a) the Software License granted under that Agreement shall cease automatically and the Customer shall immediately destroy or return to the Company (at the Company's option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Company that it has done so; and

(b) the Company may submit an invoice for all losses, costs (including the cost of all labor and materials used and overheads incurred), damages, charges and expenses arising out of or related to the termination of this Agreement which shall be payable immediately on receipt.

14.7 On expiration or termination of an Agreement for whatever reason, but subject to the continuation of existing Agreements, Software and Services in accordance with Section 14.4:

(a) the Company shall cease providing the terminated Services under that Agreement;

(b) the Customer shall immediately pay to the Company:

(i) all of the Company's outstanding unpaid invoices and any interest due under that Agreement; and

(ii) all amounts due under that Agreement until the effective date of termination, including terminated Services supplied under that Agreement but for which no invoice has been submitted (and the Company shall submit an invoice for such Services accordingly, which shall be payable by the Customer immediately on receipt);

(c) the Customer shall return to the Company all Pre-Existing Materials and Confidential Information of the Company that the Customer has in its possession or control related to the Software and/or terminated Services provided under that Agreement;

(d) the Company shall deliver to the Customer all Deliverables (in their then current state) for which invoices have been submitted and paid related to any terminated Development Services under that Agreement;

(e) the Company shall return the Customer's Equipment to the Customer that the Company has in its possession or control related to the Software and/or terminated Services provided under that Agreement;

(f) the Company may render reasonable assistance to the Customer (including migration of any Customer Data) if requested by the Customer, but this assistance shall be at the Customer’s cost and expense and subject to a separate agreement between the parties relating to such services.

14.8 On expiration or termination of the Agreements for whatever reason:

(a) the Company shall cease the provision of all Services under all Order Forms;

(b) the Customer shall immediately pay to the Company:

(i) all of the Company's outstanding unpaid invoices and any interest due; and

(ii) all amounts due under all Agreements until the effective date of termination, including Services supplied under this Agreements for which no invoices have been submitted (and the Company shall submit an invoice for such Services accordingly, which shall be payable by the Customer immediately on receipt);

(c) the Customer shall return to the Company all Pre-Existing Materials and Confidential Information of the Company that the Customer has in its possession or control;

(d) the Company shall deliver to the Customer all Deliverables (in their then current state) for which invoices have been submitted and paid;

(e) the Company shall return the Customer's Equipment to the Customer that the Company has in its possession or control;

15 Promotion by the Company

15.1 Subject to prior approval by the Customer, the Company may name the Customer as its customer in a general context and may also use the Customer’s name in publicity, marketing, advertising releases and other material prepared by or on behalf of the Company which makes reference to the Customer as a specific user of specific software products or services of the Company.

16 Announcements

16.1 Subject to any other provision in this Agreement, neither party shall make any statement or disclose to any person who is not a party, themselves or through any third party, information which relates to or is connected with or arises out of this Agreement or the matters contained in it, without the prior written approval of the other party as to its content and the manner and extent of its publication. The parties shall consult together upon the form of any such disclosure, press release, document or statement and the other party shall promptly provide such information and comment as the party issuing such press release, document or statement may from time to time reasonably require.

16.2 The provisions of Section 16.1 shall not apply to disclosure of matters required to be made by law or regulations or by any court or governmental or administrative authority competent to require the same.

17 Force majeure

17.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement (excluding payment obligations) if such delay or failure result from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the Project Team or any other party), failure or interruption of a utility service or transport or telecommunications network, act of God, war, terrorist attack, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, disasters, explosions, fire, flood, storm, embargo, changes to the law, act or omission of carriers or default of suppliers or sub-contractors ("Force Majeure Event"). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

18 General

18.1 Variation. The Company may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. Subject to this Section 18.1, Section 3.13 and Paragraph 6.8(g)(i) of Part E of the Terms of Service, no variation of this Agreement shall be valid unless it is in writing and signed by authorized representatives of each party.

18.2 Waiver. No failure or delay by a party in exercising any right or remedy under this Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. The waiver of any breach or default does not constitute the waiver of any subsequent breach or default. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18.3 Remedies by law. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

18.4 Severability. If any provision or part-provision of this Agreement is adjudged by a court of competent jurisdiction to be invalid, void, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Section shall not affect the validity and enforceability of the rest of this Agreement.

18.5 Entire Agreement. This Agreement (which includes the Order Form) constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous representations, agreements, assurances, understandings and other communications between the parties, both oral and written. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies associated with, any representation, assurance, statement or warranty (whether made innocently or negligently) of any person (whether a party to this Agreement or not) that is not expressly set out in this Agreement ("Representation"). Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement. Nothing in this Section shall limit or exclude any liability for fraud.

18.6 Assignment. The Customer shall not, without the prior written consent of an authorized executive officer of the Company, assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its interests, rights or obligations under this Agreement. The Company may at any time on written notice to the Customer assign, transfer, charge, mortgage, subcontract, declare a trust of or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent. Each party is acting on its own behalf and not for the benefit of another person.

18.7 Independent Contractors. Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

18.8 Notices. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be delivered by hand or by registered courier or other next Working Day recorded delivery service at its registered office (if a company) or its principal place of business (in any other case). Any notice shall be deemed to have been received:

(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

(ii) if sent by registered courier or other next Working Day recorded delivery service, at the time recorded by the delivery service.

This Section 18.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this Section, "writing" shall not include e-mail.

18.9 Applicability of UN Convention for International Sale of Goods Contracts. The parties agree that this Agreement is not a contract for the sale of goods; therefore, this Agreement shall not be governed by any references to the United National Convention on Contracts for the International Sale of Goods.

18.10 No Construction against Drafter. The parties agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter of the agreement in the event of any inconsistency or ambiguity in such agreement shall not apply to the terms and conditions of this Agreement.

18.11 Survival. Any provision of this MSA that expressly or by implication is intended to come into or continue in force on or after termination or expiration of this MSA shall remain in full force and effect including Sections 7.6, 8, 9, 10, 11, 12, 14.5 to 14.8 (inclusive), 15, 16, 17, 18, 19, 20 and 21 and Part A of the Terms of Service for all continuing Software Licenses.

19 Export

19.1 Each party undertakes to strictly comply with any applicable laws and regulations, national or international, relating to security trade / export control when pursuing its activities under this Agreement. Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations, to any country for which the government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.

19.2 Each party undertakes:

(a) contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and

(b) if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any export control laws.

20 Independent Contractors

20.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to bind, make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

21 Dispute Resolution, Law & Jurisdiction

21.1 If any claim, controversy or dispute arising under this Agreement or the relationship created by this Agreement arises, a party to the dispute may give written notice (a “Dispute Notice”) to the other party specifying the nature of the dispute. Each party will designate an authorized representative with the appropriate authority to negotiate the dispute. Within seven (7) Working Days after a Dispute Notice is received by a party, each party’s authorized representative will promptly meet to negotiate and resolve the dispute.

21.2 If the authorized representatives of the parties are unable to resolve the dispute within ten (10) Working Days from the Dispute Notice, the dispute will be escalated to the senior management of each party for further negotiation and resolution.

21.3 If the parties are unable to resolve the dispute within twenty (20) Working Days from the Dispute Notice, the parties will attempt to settle the dispute by non-binding mediation. To initiate the mediation, a party must serve notice in writing ("ADR notice") to the other party to the dispute, requesting the mediation. The mediation will start not later than ten (10) Working Days after the date of the ADR notice. The dispute will be mediated by the American Arbitration Association pursuant to its rules governing mediation. The mediation will be conducted in Hennepin County, Minnesota USA. The costs and expenses of mediation, including compensation of the mediator (but not the parties own costs in preparing for or attending mediation), will be borne equally by the parties.

21.4 If the parties cannot resolve the claim, controversy or dispute within ninety (90) days after conferring with the mediator, either party may submit such claim, controversy or dispute to court in accordance with Section 21.6 below. Either party may bring an action for monies owed or injunctive relief without first submitting the action to mediation.

21.5 No party may commence court proceedings related to any dispute arising out of this Agreement until it has attempted to settle the dispute by mediation in accordance with this Section 21 provided that the right to issue proceedings is not prejudiced by a delay. Notwithstanding the provisions of this Section 21.5, nothing in this Agreement shall limit either party’s right to seek injunctive relief.

21.6 Subject to Section 21.5, each party hereby irrevocably agrees that the state and federal courts of Hennepin County, Minnesota USA shall have exclusive jurisdiction to settle any disputes of whatever nature arising out of or relating to this Agreement (including non-contractual disputes or claims).

21.7 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, formation, validity, construction, interpretation and performance (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the state of Minnesota.

Schedule 1

Definitions

The definitions and rules of interpretation in this Schedule 1 apply in this Agreement:

"Acceptance"	acceptance of the Deliverable in accordance with Paragraph 6.8(e) of Part E of the Terms of Service;
"Acceptance Criteria"	the acceptance criteria set out in the Specification to be used by the Customer when carrying out the Acceptance Tests;
"Acceptance Tests"	has the meaning assigned to it in Paragraph 6.8(b) of Part E of the Terms of Service;
"Administration Services"	the remote administration of the Software provided or to be provided by the Company to the Customer under this Agreement as detailed in the Order Form and defined in Part B of the Terms of Service which is subject to terms and conditions set out in Part B of the Terms of Service;
"Affiliates"	any business entity from time to time Controlling, Controlled by, or under common Control with, either party;
"Agreement"	each separate Order Form together with the terms and conditions set out in this MSA and including the relevant terms from the Terms of Service in Schedule 2, as identified in the Order Form;
"Alterations"	all alterations, translations, upgrades, enhancements, customizations or modifications of all or any portion of the Software or Deliverables;
"Associates"	has the meaning assigned to it in Section 10.2(e);
"Assumptions"	any assumptions relating to the Services as detailed in the Order Form;
"Authorized User"	any employee, subcontractor, agent or representative of the Customer who is permitted by the Customer to use the Software in accordance with the terms of this Agreement for the Customer's own internal business purposes;
"Basic Level"	the availability of Support and Maintenance Services to the Customer during Working Hours only;
"Change Request Quote"	has the meaning assigned to it in Section 6.5;
"Charges"	together the Software License Fees and the Service Fees;
“Commencement Date”	the date set out in the Order Form as being the commencement date;
"Company"	Alemba Group Inc., Minnesota Center, 7760 France Avenue South, Suite 1100, Minneapolis, MN 55435 USA;
"Company Background Technology"	any Technology that was conceived, created or developed by or for the Company (alone or with others) either: (i) prior to the Commencement Date; or (ii) after the Commencement Date but outside the scope of the Development Services; and includes the Company's Pre-Existing Materials and Software;
"Confidential Information"	any and all information of a Disclosing Party (as defined in Section 10.1) including algorithms, source code, specifications, software, test results, business or marketing plans, pricing, network configurations, network architecture, information relating to products, software, processes, procedures, methods of working, formulae, ideas, concepts, plans, strategies, know-how, designs, photographs, drawings, specifications, inventions, technical literature, customer contact data, commercial activities, and financial, operational, technical and non-technical information including potential customers and customer lists, customer usage or requirements, business and customer usage forecasts and projections, accounting, finance or tax information, pricing information, and any information relating to the corporate and/or operational structure of the Disclosing Party and its Affiliates which is: (i) not generally known to the public; and (ii) (ii) disclosed to the Receiving Party (as defined in Section 10.1) in any form, whether in printed, photographic or electronic form, orally visually or otherwise; and (iii) (iv) (iii) either marked "Confidential" or "Proprietary”, or which the Receiving Party has been informed is confidential or which the Receiving Party might reasonably expect the Disclosing Party would regard as confidential; (v)
"Consulting Services"	the consulting or professional services provided or to be provided by the Company to the Customer under this Agreement as detailed in the Order Form (which may include configuration, training or project management services) and which are subject to terms and conditions set out in Part D of the Terms of Service;

"Control"	the possession of the power to direct or cause the direction of the management and the policies of an entity, whether through the ownership of a majority of the outstanding voting rights or by contract or otherwise;
"Covered Releases"	the current Major Release (being the Major Release that was last released by the Company to its customers generally), and the immediately previous Major Release, including all Point Releases relating to such Major Releases;
"Covered Software"	the Software identified in the Order Form as being covered by Support and Maintenance Services. Covered Software will only include Deliverables if they are identified as Supported Deliverables pursuant to an Agreement for Development Services, and not otherwise;

"Customer"	the Customer identified in the Order Form;
"Customer Data"	data owned by the Customer and inputted by the Customer into the Software or Deliverables (if such Deliverables are comprised of software);
"Customer Dependencies"	specific obligations on the Customer as detailed in the Order Form;
"Customer's Equipment"	all Documents, equipment and materials provided by the Customer to the Company including, but not limited to the Customer's computers, software, telephones, in connection with the Consulting Services and Development Services;
"Customer Feature"	has the meaning assigned to it in Paragraph 2.3 (h) (ii) of Part A of the Terms of Service;
"Customer's Group Companies"	all direct or indirect subsidiaries, parent companies or other group companies or Affiliates of the Customer;
"Customer Modifications"	has the meaning assigned to it in Paragraph 2.3 (h) (ii) of Part A of the Terms of Service;
“Customer Support Representatives”	the individual(s) listed in the Order Form who are trained and competent in all aspects of using and administering the Software and who are entitled to contact the Company for a request for Services;
"Customization Support"	the Support and Maintenance Services provided or to be provided by the Company to the Customer as identified in this Agreement for Development Services;
"Deliverable"	the items (whether tangible or intangible) identified in the relevant Order Form to be delivered to the Customer by the Company in the performance of Development Services which are a configuration, update, modification, enhancement, adaptation or translation of the Software or which are otherwise inextricably linked or connected with the Software (and includes but is not limited to a Supported Deliverable);
"Development Services"	the technical development services provided or to be provided by the Company to the Customer under this Agreement to configure, update, modify, enhance, adapt or translate the Software or other technical development services which are inextricably linked or connected with the Software and which are required to create Deliverables as detailed in the Order Form and which are subject to the terms and conditions in Part E of the Terms of Service;
“Environment”	the operating environment specified in the Software Documentation;
"Expenses"	has the meaning assigned to it in Section 3.5;
"Fault"	any re-producible error in the Covered Software which results in a failure of the Covered Software to conform with the Specification;
"Force Majeure Event"	has the meaning assigned to it in Section 17.1;
“Hardware and Software Platform”	the hardware, software, operating systems and any other computer systems or equipment recommended by the Company from time to time in the Specification, release notes or otherwise notified by the Company to the Customer in writing in order to be able to use the Software or Deliverables (comprised of software) as authorized under the terms of this Agreement;
“Initial Term”	means, related to the relevant Services, the initial duration of such Services calculated from the Commencement Date, as set out in the relevant Order Form;
"Intellectual Property Rights"	all patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill and the right to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), semiconductor topography rights, moral rights and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
"Major Release”	a version release of the Software, including any Updates issued from time to time by the Company to the Customer in relation to that version. For example, a version release is indicated by a change to the left of the first decimal point (e.g.V3.0 to V4.0) or by the addition of date designation or change in an existing date designation (e.g. V2005 to V2006) which would be a separate Major Release;
"Minimum Billable Hours"	seven and a half hours (7.5 hours) unless otherwise specified in the relevant Order Form;
"MSA"	the terms and conditions of this Master Services Agreement including the Schedules;
"Order Form"	the Company's standard order form for Software and Services which has been signed by both the Customer and the Company, which is subject to the terms of this MSA and the relevant Terms of Service identified in the Order Form;
"Party / Parties"	means the Customer and/or the Company as appropriate;
"Point Release"	a release of the Software denoted by a change to the right of the decimal point (e.g. V3.0 to V3.1);
"Pre-Existing Materials"	all documents, information and materials provided by the Company or which the Company may use in connection with or relating to the Services which existed prior to the Commencement Date, including computer programs, tools, data, reports and specifications;
"Production Level"	the availability of Support and Maintenance Services to the Customer 24 hours a day, 7 days a week;
"Project Team"	the Company's directors, officers, employees, agents, consultants, representative and staff authorized by the Company to provide the Services from time to time;
"Rates"	the Company’s standard hourly fee rates as set out in the applicable Order Form;
"Regular Maintenance and Backups"	the assumption that the Customer can revert the Covered Software to a previously working copy within a reasonable time and that the Company can subsequently use to work on and take forward as the live system;
“Renewal Term”	means a twelve-month period commencing either (i) on the anniversary of the Commencement Date which is the day after expiration of the relevant Initial Term or (ii) on any successive anniversary of the Commencement Date;
"Resilience Standards"	the applications stability and dependencies on both software and hardware, (physical or virtual). This would include but not be limited to: · fulfillment of all the application prerequisites; · application of the latest software updates where applicable; · Regular Maintenance and Backups of the operating system, database, database platform and any underlying virtualization infrastructure or structures; · correct configuration and maintenance of the system and connected platforms / connectors by trained administrators; · all alterations to the base system have been carried out or ratified by the Company;
"Services"	the Administration Services, Consulting Services, Development Services and Support and Maintenance Services as selected and described in the Order Form;
"Service Fees"	the fee for the Services provided under this Agreement as set out in the Order Form on a fixed price basis, time and materials basis or a combination of both payable by the Customer in accordance with Section 3;
"Site"	the premises from which the Customer carries out its business as stated in the Order Form;
“Software”	the Company's software specified in the Order Form licensed to the Customer by the Company on the terms of the Software License;
“Software Documentation”	the instruction manuals, user guides and other supporting material to explain and assist with the use of the Software and the Deliverables (if applicable) as provided to the Customer by the Company (together with any supplemental instructions which may from time to time be supplied by the Company or any manuals or instructions replacing the same) in either hard copy or electronic form;
"Software License"	the licensing terms for the Software (and for Deliverables comprised of software) specified in the Order Form, as set out in Part A of the Terms of Service;
"Software License Fee"	the fee for the Software License granted under this Agreement as set out in the Order Form payable by the Customer in accordance with Section 3;
“Specification”	the functional specification provided by the Company describing the facilities and functions of the Software and Deliverables (if applicable) set out in Exhibit 1 to the Order Form;

"Support and Maintenance Services"	the support and maintenance helpdesk services provided or to be provided by the Company to the Customer under this Agreement for Covered Software as detailed in the Order Form and subject to the terms and conditions in Part C of the Terms of Service;
"Supported Deliverable"	a Deliverable for which Customization Support has been agreed in an Agreement;
"Support Issue"	has the meaning assigned to it in Paragraph 4.6 of the Terms of Service;
"Support Period"	the total period during which the Company shall provide the Support and Maintenance Services as set out in the Order Form, which shall be for a minimum period of one Year;
"Technology"	technical information, designs, drawings, specifications, software programs (including source and object codes), manuals and other documentation, data, databases, templates, processes, procedures, methods of working and other related information and materials, whether tangible or intangible, together with any Intellectual Property Rights relating thereto;
"Terms of Service"	the Company's Specific Terms of Service and Software License set out in Schedule 2 which are incorporated into this Agreement to the extent applicable as identified in the Order Form;
"Third Party License"	any license relating to Third Party Software;
"Third Party Software"	any proprietary third party software including open source software which is ancillary to the Software or to any Deliverable and which is necessary to enable the Customer to use the Software or Deliverable (as applicable);
"Unit of Effort"	has the meaning assigned to it in Paragraph 3.5 of Part B, of the Terms of Service;
"Update"	any update, patch, revision or addition to or for the Software that correct faults or bugs or otherwise amends the Software and which is released by the Company from time to time, whether for the purpose of fixing an error, bug or other issue in the Software, including Point Releases and Major Releases or an upgrade of the Software that adds new features, enhancements, functionality and/or makes any other material change, amendment or alteration or upgrade to the Software;
"Virus"	anything or device (including any software code, file or program) which may prevent, impair or otherwise adversely affect the operation of any data, software, hardware, program, equipment or any other device or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices;
"Warranty Period"	the period of thirty (30) days: (i) from the relevant Commencement Date; or (ii) in relation to any Deliverable for which Acceptance Tests are required for a Deliverable in the Order Form, from Acceptance of such Deliverable;
“Working Day”	any day other than a Saturday, Sunday or federal holiday in the US;
"Working Hours"	the hours between 9:00 am and 5:30 pm CST or CDT on a Working Day;
"Year"	a 12 month period calculated from the Commencement Date or any anniversary of the Commencement Date.

Schedule 2

Specific Terms of Service and Software License

1. GENERAL

1.1 In these Specific Terms of Service and Software License (“Terms of Service”) the definitions in Schedule 1 of the MSA are used. These Terms of Service shall apply to the extent that the relevant Software License and/or Services have been selected and agreed to be provided pursuant to an Agreement. Where specifically agreed in the Order Form:

(a) the Software License shall be provided in accordance with Part A of these Terms of Service;

(b) vFire-Now Administrative Services shall be provided in accordance with Part B of these Terms of Service;

(d) Consulting Services shall be provided in accordance with Part D of these Terms of Service; and

(e) Development Services shall be provided in accordance with Part E of these Terms of Service.

1.2 The applicable terms and conditions in this Schedule 2 shall apply in addition to the terms in the main body of the MSA. For clarity, all cross-references to Sections of the MSA shall be referred to as “Sections” and all cross-references to provisions of the Terms of Services shall be referred to as “Paragraphs.”

1.3 In the event of a conflict or inconsistency between the terms and conditions of the main body of this MSA and the Terms of Service in this Schedule 2, the Terms of Service in this Schedule 2 shall prevail.

1.4 The Services shall be provided in relation to the Software selected and identified in the Order Form, such services and software being "Services" and “Software” under this Agreement.

1.5 Any items not specifically selected and identified as Software are excluded from the scope of this Agreement.

1.6 In the event of any conflict between the terms and conditions of these Terms of Service and the Order Form, the special conditions in the Order Form shall prevail.

Part a – Software LICENSE

2.1 For the purposes of this Part A, references to Software shall also include Deliverables comprised of Software upon delivery of such Deliverable or acceptance of such Deliverable pursuant to Paragraph 6.2 of Part E below.

2.2 In consideration of the Software License Fee paid by the Customer to the Company, the Company grants the Customer a perpetual, non-exclusive, limited, non-transferable, revocable license to install and use one production copy of the binary code version of the Software for the Customer's internal business purposes subject at all times to the conditions set out in Paragraphs 2.3, 2.4, 2.5 and 2.6 below for the full period of the copyright in the Software, unless this Agreement is terminated in accordance with Section 14.3 or 14.4(a) of the MSA (as detailed in Section 14.6 of the MSA). The Customer acknowledges that the Software License Fees do not include any Services (including but not limited to installation, support, maintenance, hosting or professional services), which may be provided if such Services are separately agreed in an Agreement subject to payment of the applicable Service Fees.

2.3 The license granted in Paragraph 2.2 is subject to the following conditions:

(a) the Software may only be used in executable machine readable code form to run the Software for the purpose of processing the data for its internal business use and purposes only (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer or of any company permitted under Paragraph 2.3(g)) and the Customer shall ensure that its users comply with the restrictions and requirements in this Agreement and shall be responsible for the actions of its users at all times;

(b) the Customer shall ensure that the Software is only used by the number of Authorized Users set out in the Order Form in accordance with the terms of this Agreement;

(c) the Customer shall ensure that it has in place the Hardware and Software Platform at all times in order to use the Software;

(d) the Customer may not use the Software other than as specified in this Agreement without the prior written consent of the Company, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Company;

(e) the Customer shall use reasonable efforts to prevent any unauthorized access to, or use of, the Software and notify the Company as soon as it becomes aware of any unauthorized use of the Software by any person and/or for any purpose outside the permitted scope of use;

(f) the Customer shall pay, for broadening the scope of the licenses granted under this Agreement to cover the unauthorized use, an amount equal to the fees which the Company would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorized use on the date when such use commenced together with interest at the rate provided for in Section 3.11(b) of the MSA, from such date to the date of payment;

(g) the Customer’s right to use the Software shall extend to the Customer's subsidiaries and the Customer's holding companies (only for as long as they exist as a subsidiary or holding Company of the Customer) subject to the terms of the Software License in this Part A and any acts or omissions of such subsidiaries or holding companies shall be deemed to have been carried out or occasioned by the Customer for the purposes of this Paragraph 2.3(g);

(h) except as expressly stated in this Paragraph 2.3, the Customer has no right (and shall not permit any third party) to copy, adapt, modify, update, merge, revise, improve, upgrade, enhance, translate, reverse engineer, decompile, disassemble, recompile, or make error corrections to the Software in whole or in part but the Customer is permitted to:

(i) reduce the Software to human readable form (whether by reverse engineering, decompilation or disassembly) where necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer; provided that the Customer shall not be entitled to carry out such integration where the Company is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Company to carry out such action or to provide such information (and shall meet the Company's reasonable costs in providing that information) before undertaking any such reduction; and

(ii) modify the Software strictly to the extent necessary for the purposes of connecting with or using the Software with a bespoke feature created by the Customer independently of the Software ("Customer Feature"). Any modifications of the Software created by the Customer for such purposes ("Customer Modifications") shall be owned by the Company and the Customer shall execute all documents, make all applications, give all assistance and do all acts and things as may be required by the Company for the purpose of vesting the Intellectual Property Rights in the Customer Modifications in the name of the Company, including assisting the Company in obtaining, defending and enforcing the copyright in Customer Modifications. The Company grants the Customer a perpetual, non-exclusive, license to use Customer Modifications to the extent necessary to connect to or make use of Customer Features (but for clarity the license granted related to such Customer Modifications shall not broaden the scope of the Customer's rights to use the Software itself (independently of such Customer Modifications). The Customer shall promptly notify the Company of all Customer Modifications it creates (and it any event within ten (10) Working Days of creation of each Customer Modification). All Intellectual Property Rights in Customer Features shall be owned by the Customer;

(i) the Customer may not use any such information provided by the Company or obtained by the Customer during any such reduction permitted under Paragraph 2.3(h) above to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it;

(j) the Customer shall comply with Third-Party Licenses (if there are any) and the Customer shall indemnify and hold the Company harmless against any loss or damage which it may suffer or incur as a result of the Customer's breach of such terms howsoever arising;

(k) the Company may treat the Customer's breach of any Third-Party License as a material breach of this Agreement;

(l) the Customer shall maintain and shall not remove any product identification, proprietary copyright or other notices placed on the Software;

(m) the Software must be downloaded on to the Customer's own server at the Customer's Site;

(n) the Customer may make five backup copies of the Software as may be necessary for its lawful use in accordance with the terms of the Software License;

(o) the Customer shall make as many back-up copies of the Customer’s Data as may be necessary in accordance with best computing practice and as regularly and fully as the Customer deems necessary for its business practices;

(p) the Customer shall record the number and location of all copies of the Software and shall provide such details to the Company promptly after any such copies have been made and shall take steps to prevent unauthorized copying of the Software;

(q) the Customer shall permit the Company to inspect and have access to the Site and any premises (and to the computer equipment located there) at or on which the Software is being kept or used or has at any time been installed and have access to any records kept in connection with this Agreement, for the purposes of ensuring that the Customer is complying with the terms of this Agreement, provided that such inspections shall take place at reasonable times and the Company shall ensure that any of its representatives who undertake any such inspection are bound by confidentiality undertakings which it considers appropriate;

(r) except as expressly stated in this Paragraph 2.3 the Customer shall not:

(i) access all or any part of the Software in order to build a product or service which competes with the Software;

(ii) use the Software to provide services to third parties;

(iii) use the Software to process the data of others, or as a service bureau, time share facility or otherwise;

(iv) attempt to obtain, or assist third parties in obtaining, access to the Software, or attempt to disable or circumvent any software security device;

(v) sub-license, assign, novate or otherwise deal with the benefit or burden of this license in whole or in part or use the Software to provide software-as-a-service to any party;

(vi) allow the Software to become the subject of any charge, lien or encumbrance;

(vii) deal in any other manner with the Software or any or all of its rights and obligations under this Agreement;

without the prior written consent of the Company; and

(s) the Customer shall at all times remain liable for and shall indemnify the Company and hold the Company harmless for the acts or omissions of its sub-contractors in breach or contrary to the requirements of this Paragraph 2.3.

2.4 The Customer may appoint a subcontractor to host and manage the Software on the subcontractor's servers for use by the Customer in accordance with the terms of the Customer's Software License provided that such subcontractor:

(a) enters into and complies with a duly binding written agreement containing terms no less restrictive than those contained in Part A of these Terms of Service;

(b) expressly agrees that it shall not use the Software for any other purpose; and

the Customer acknowledges that should it require any assistance from the Company with respect to the transfer of Software to new servers then this would be subject to the parties agreeing a separate contract for such services.

2.5 Where the Software identified in the Order Form is "vFire", the Company warrants that it has the necessary rights from VMware Inc to (i) grant Customer the rights in this Agreement; and (ii) perform its obligations under this Agreement related to the Software.

2.6 Other than the express license rights granted to the Customer in this Part A, no right, title or interest in all or any portion of the Software is conveyed or assigned to Customer, either expressly or by implication, by virtue of this Agreement, including any Intellectual Property Rights associated with the Software.

Part B – VFIRE-NOW ADMINISTRATIVE SERVICES

3.1 In consideration of the annual Service Fee paid by the Customer to the Company for Administration Services, the Company shall provide the Customer with Units of Effort which the Customer Support Representative shall be entitled to use to request Administration Services from the Company in writing (a "Request for Service") until such Units of Effort have expired, subject to the terms and conditions of the main body of the MSA and this Part B of Schedule 2.

3.2 The Administration Services may include one or more of the following services provided remotely by the Company for the administration of the Software (collectively, the "Administration Services")

· Administrative configuration

· Creation of pre-defined request workflows

· Creation of IPK workflow rules

· Creation of problem analyzer rules

· Creation of new screens and addition of fields

· Creation and reformatting of screens with standard fields

· Amendment and extension of existing reports

· Creation of reports based on customer design

· Configuration of user dashboards

· Configuration of monitors

· Configuration of search screens

· Configuration of timesheets

· Maintenance of IPK data values such as call types

· Maintenance of SLA configuration

· Maintenance of availability schedules

· Maintenance of working hours

· Maintenance of holiday plans

· Maintenance of time zones

· Maintenance of the active directory gateway

The following services are specifically excluded from the vFire-Now Administrative Services:

· Process and business consultancy

· Requirements definition

· Definition of change workflow requirements

· Any configuration requiring development work

· Definition of report requirements

· Definition of administrative system configuration requirements

3.3 The Company will provide the requested Administration Service within eight (8) Working Hours (in the time zone agreed in the Order Form) of a Request for Service by a Customer Support Representative.

3.4 To the extent required for the purposes of providing the Administration Services in response to a Request for Service, the Customer shall provide the Company with:

(a) a mirrored live and test environment;

(b) remote access to test and live systems;

(d) final testing authorization before migration to the live system; and

(e) details of Customer’s backup requirements.

3.5 The Service Fee for Administration Services provides the Customer with an allocation of time for the provision of vFire-Now Administrative Services by the Company. Each 30 minutes of time expended on an Administrative Service is a unit of effort (a "Unit of Effort"). The annual allocation of Units of Efforts provided to Customer is defined within the order placed with the Company. The Company recognizes that the Administration Services may not be evenly distributed throughout the Year; accordingly the monthly allocation may be exceeded provided that the annual average does not exceed 110% of the total annual allocation, and the Company retains the right to limit or halt provision of vFire-Now Administrative Services to the Customer if the monthly allocation is exceeded by more than 150%. The Customer shall not be entitled to a refund of any part of the Service Fee on expiry of any Units of Effort.

Part C – SUPPORT AND MAINTENANCE SERVICES

4.1 In consideration of the annual Service Fee paid by the Customer to the Company for Support and Maintenance Services, the Company shall provide the Customer with Support and Maintenance Services for the duration of the Initial Term and any Renewal Terms, subject to the terms and conditions of the main body of the MSA and this Part C of Schedule 2.

Support and Maintenance Services

4.2 Support and Maintenance Services will be provided to the Customer to correct Faults and provide Updates for the Covered Software and for the purposes of this Part C, all references to "Software" means Covered Software and specifically excludes all Customer Modifications.

4.3 The Company may cease to provide Support and Maintenance Services for certain Software versions on no less than one year's prior written notice to the Customer, where the Customer has an Agreement for Support and Maintenance Services for such Software version (and thereby terminate the relevant Agreement (or part of the relevant Agreement) related to such Services.

4.4 Support and Maintenance Services will be provided to the Customer via telephone, web or email, on either a Basic Level or Production Level (as agreed in this Agreement).

4.5 Unless otherwise stated in the Order Form, Support and Maintenance Services will be limited to the support of one production environment and one single cloned environment for testing purposes.

4.6 If the Customer believes that there is a Fault with the Covered Software then the Customer (by acting through the Customer’s Support Representative or any other individuals authorized by the Customer) shall notify the Company by telephone or email using the Company’s nominated support phone numbers or email address(es) of the defect, error or non-compliance ("Support Issue") in question and provide the Company with a documented example of such Support Issue.

4.7 On receipt of a Support Issue the Company shall investigate and use its reasonable efforts to correct such Support Issue (where it, in its absolution, discretion believes correction is necessary). Attempts to resolve the Support Issue shall be provided by telephone or email support, or remote access connectivity at the sole discretion of the Company.

The Company shall categorize the Support Issue as "Critical", "High", "Medium", "Low" or "Request", based on the urgency and impact on the Customer's business operations and shall use reasonable efforts to respond to each Support Issue in accordance with the target timeframes and actions detailed in the table below. In the event that the Company can only fix a Fault by issuing Updates in certain versions of the Covered Software, the Customer is bound to accept the provision of the fix in an Update to the Covered Software as remedy for the Fault (and in such circumstances, where the Customer chooses not to implement the relevant Update to that Covered Software, the Company shall not be liable in any way in relation to that Fault or any consequences of that Fault).

	Priority	Description	First Call-Back Target	Resolution Target	Action
Critical		Total System Failure The system is completely unavailable. Complete loss of system functionality.	Acknowledgement by Service Desk Analyst within 20 minutes	Resolution as soon as possible. Workaround within 4 hours (this is conditional to the system meeting resilience standards; and that a code change is not required to the core product)	This level of failure should be logged with the Service Desk by phone to get the correct level of response. Hourly progress update to Customer.
High		Severe problem preventing major business functions A major module of the system is completely unusable (IPK Logging, Workflow, CMDB or Reporting) For Example: Calls cannot be logged but a Workflow Request can.	Acknowledgement by Service Desk Analyst within 1 hour	Workaround within 5 Working Days and fix in the next release.	An emergency fix will be supplied ASAP if appropriate.
Medium		Performance of job function is limited A major module (IPK Logging, Workflow, CMDB, Reporting, etc.,) is usable in whole however an important aspect is not working. For Example: Calls can be logged and the history is saved, but not displayed.	Acknowledgement by Service Desk Analyst within 2 hours	Workaround within 30 Working Days. Fix to be scheduled in a future release.	Fix in future minor or major release. Where possible a workaround will be provided.
Low		Non-critical problem and/or product use questions Major module is unaffected however a technical function of the module is degraded. For Example: Calls can be logged the history is saved and displayed but not in correct format	Acknowledgement by Service Desk Analyst within 1 working day	Workaround within 60 Working Days or fix in a future release	Workaround provided if available or fix provided in a future release.
Request		Feature requests and other non-critical questions	Acknowledgement by Service Desk Analyst within 2 working days	Response and advice provided in an appropriate time based on the nature of the request.	Core product feature requests may be considered to be included in the vFire Roadmap.

4.8 Where the Customer wishes to notify the Company of a Support Issue in accordance with Paragraph 4.6 it shall contact the company telephone or email for the Support Center in accordance with Paragraph 4.9 and provide information in accordance with Paragraphs 4.10 and 4.12.

How to notify the Company Telephone and Email Support Center

4.9 On identifying a Fault, the Customer must notify the Company promptly of the Fault, either by raising an incident ticket through the Company's Customer Portal at www.alembagroup.com/contact or by telephoning the service desk at [INSERT US NUMBER] ("Telephone and Email Support Center").

Supplying Information

4.10 When notifying the Company Telephone and Email Support Center by phone or email, the Customer must prepare a succinct description of the problem which accurately describes the problem to the Company.

4.11 If the Company's support representative does not understand the problem the Customer Support Representative shall re‑assess the problem and having carried out a further investigation prepare a new description of it. The Company shall ensure that its support representatives are reasonably skilled and trained to provide helpdesk services.

4.12 It is the Customer’s responsibility to provide the following information when notifying the Company Telephone and Email Support Center of a Support Issue:

(a) the relevant background of the issue or problem to be reported;

(b) an exact and accurate description of the issue or problem being reported;

(c) what the particular user was doing at the time the issue or problem arose;

(d) how the issue or problem was identified;

(e) what affect the issue or problem is having on the Customer;

(f) symptoms of the issue or problem;

(g) details of any message or warnings displayed on screen;

(h) a screenshot or PDF from the Customer’s software illustrating the Fault;

(i) where the information relates to a previously logged call give the reference of such call; and

(j) enough information to locate and replicate the Fault including:

(i) specific details on which part of the system the problem occurred;

(ii) steps to recreate the issue; and

(iii) screen shots of any errors received in the system or the server event log.

4.13 The Support and Maintenance Services do not cover:

(a) Software which has been subject to any Customer Modifications;

(b) any services required for or relating to the implementation, installation and/or configuration of Updates to the Software. Any such services (if required) shall be subject to a separate Agreement between the Company and the Customer for Consulting Services;

(d) defects or errors resulting from any modifications of the Software or Software Documentation made by any person other than the Company without the Company’s prior written consent;

(e) any release of the Covered Software other than the Covered Releases of such Covered Software;

(f) use of the Software or Software Documentation other than strictly in accordance with the Software Documentation or defects or errors due to operator error;

(g) a situation where such a defect or error can be avoided by consideration of all information contained in the Software Documentation, even if such consideration depends on the interpretation of such information;

(h) any defect or error in the Hardware and Software Platform, the Environment or in any programs used in conjunction with the Software;

(i) defects or errors caused by the use of the Software on or with equipment other than the Hardware and Software Platform;

(j) defects or errors caused by the use of the Software in an environment other than the Environment;

(k) defects or errors caused by the malicious or negligent activities of the Customer, its employees, agents, or subcontractors or any other third parties;

(l) defects or errors in any way related to the Customer not affording the Company proper access to the Software via remote access or for on-site assistance or otherwise or where the defect or error is caused in any way by the Customer not being contactable or not following instructions correctly whether given by telephone, email, fax or otherwise or caused by or related to any breach by the Customer of its obligations under this Agreement (including but not limited to its obligations pursuant to Section 7 of the MSA and Paragraph 4.16 of this Part C);

(m) a situation where the Customer ceases for whatever reason to have the legal right to use the Software;

(n) defects or errors caused by a Force Majeure Event; and

(o) for clarity in relation to Software which is a Supported Deliverable, the Support and Maintenance Services do not include:

(i) any functionality which is not included in the agreed specification for such Supported Deliverable;

(ii) any support of the Supported Deliverable other than in conjunction with the Software which relates to that Deliverable (as identified in the relevant Agreement).

4.14 Nothing in this Agreement shall impose any obligation on the Company to provide Support and Maintenance Services related to any defect, error or circumstance arising due to any of the exclusions referred to in Paragraph 4.13 above.

4.15 Updates

(a) The Company shall in its sole discretion determine whether to issue an Update for any Support Issue notified to it by the Customer or as otherwise may be identified by the Company. All Updates within the expected evolution of the Software shall be included as part of the Support and Maintenance Services, subject to the payment of the Service Fee for Support and Maintenance Services.

(b) The Company may deliver to the Customer an Update of the Software which the Company shall from time to time make generally available to its licensees and the Customer shall use such new Update promptly. The Company may decide on the content and timing of all Updates. Once delivered to the Customer, where such Update is a Major Release, it shall become the current Major Release and all references to "Covered Releases" shall be construed accordingly.

(c) In reasonable time (two (2) weeks target) prior to the delivery of a new Update the Company shall make available to the Customer all amendments to the Specification and the Software Documentation which are necessary to describe the operability and the facilities and functions of the new Update.

(d) If requested by the Customer, the Company shall provide installation and training for Updates outside the scope of the Support and Maintenance Services. Any such further request shall be the subject of a separate Agreement for Consulting Services. The Customer shall use reasonable efforts to ensure that such installation and training can take place within thirty (30) days of delivery by the Company of a new Update.

(e) Within three (3) weeks of the Customer receiving the new Update the Customer shall test the new Update and shall notify the Company of any non-compliance of the new Update with the amended Specification as delivered to the Customer pursuant to Paragraph 4.15(b). On receipt of such notification, the Company shall verify the non-compliance and where the Company, in its sole discretion, determines such non-compliance exists, it shall correct the non-compliance and re-deliver the new Update for retesting by the Customer.

(f) If within three (3) weeks after any delivery or redelivery of such new Update no notification of non-compliance is received by the Company then the Customer shall be deemed to have accepted the new Update.

Customer's Obligations

4.16 During the term of this Agreement for Support and Maintenance Services the Customer shall:

(a) use only Covered Releases of the Covered Software in accordance with Paragraph 4.15 above;

(b) ensure that the Software and the Hardware and Software Platform or programs used with the Software are used only in accordance with the Software Documentation and by competent trained employees only or by persons under their supervision and provide supervision, control and management of the use of the Software;

(c) provide continuous and uninterrupted remote access to the Company or its employees or subcontractors to the Software through any firewalls or any other barriers protecting the Software as required by the Company for the purpose of providing the Services;

(d) provide the Company with all information and documents required by the Company (at all times acting reasonably) in connection with the provision of the Support and Maintenance Services;

(e) co-operate fully with the Company’s personnel in the diagnosis of any error or defect in the Software or the Software Documentation;

(f) have one or more test systems, which accurately reflects the Customer’s live environment;

(g) take all reasonable steps necessary to carry out procedures for the rectification of a Fault within a reasonable time after such procedures have been provided by the Company; and

(h) be solely responsible for maintaining a current back up of all the Customer Data and ensuring that Customer Data is recoverable in a timely and reasonable manner.

4.17 The Company may elect to suspend Support and Maintenance Services to the extent that the Customer’s failure to comply with Paragraph 4.16 above or the relevant provisions of the MSA (including but not limited to Section 7) prevents the Company from providing such Support and Maintenance Services in a cost effective and timely manner.

part D – consulting SERVICES

5.1 In consideration of the Service Fee paid by the Customer to the Company for Consulting Services, the Company shall provide the Customer with Consulting Services subject to the terms and conditions of the main body of the MSA and this Part D of Schedule 2.

5.2 The Customer acknowledges that the Company's provision of Consulting Services is subject to the Assumptions (if any) set out in this Agreement.

5.3 Each party will appoint a qualified person to act as project manager, whose duties shall be to act as liaison between the Company and the Customer in connection with Consulting Services. The Company reserves the right to determine which of its personnel shall be assigned to the Project Team to perform Consulting Services, and to replace or reassign such personnel and the Customer acknowledges that the Company's personnel may not be exclusively engaged in connection with the provision of Consulting Services, however, the Company will, subject to scheduling and staffing considerations, attempt to honor the Customer’s request for specific individuals.

5.4 This Agreement for Consulting Services constitutes a contract for the provision of services and not an agreement of employment and accordingly the Company shall be fully responsible for and related to any income tax, withholdings and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with either the performance of the Consulting Services and any payment or benefit received by its personnel related to the Consulting Services, where such recovery is not prohibited by law.

5.5 The Company or its subcontractors are solely responsible for the administration of all salary, performance appraisal, disciplinary, grievance and other employment-related matters related to its or the subcontractor's personnel (as applicable) howsoever arising.

5.6 The Customer may cancel the Consulting Services on written notice to the Company prior to the date of performance of such Consulting Services (as detailed in this Agreement) subject to payment of the cancellation charge set out below, which is calculated by reference to the date on which the Company receives written notification of cancellation for the Consulting Services and which is without prejudice to any other right or remedy available to the Company:

(a) 16 Working Days prior to the date of performance of the Services - 0% of the Service Fees set out in this Agreement for such Consulting Services;

(b) 11-15 Working Days prior to the date of performance of the Services - 25% of the Service Fees set out in this Agreement for such Consulting Services;

(c) 6-10 Working Days prior to the date of performance of the Services - 50% of the Service Fees set out in this Agreement for such Consulting Services;

(d) 1-5 Working Days prior to the date of performance of the Services - 100% of the Service Fees set out in this Agreement for such Consulting Services.

Part E – development SERVICES

6.1 In consideration of the Service Fee paid by the Customer to the Company for Development Services, the Company shall provide the Customer with Development Services and Customization Support for such Deliverables (if agreed in this Agreement) subject to the terms and conditions of the main body of the MSA and this Part E of Schedule 2, and (in relation to Customization Support, if applicable, to the terms and conditions of the relevant Agreement for Support and Maintenance Services). In particular, the Customer's attention is drawn to Section 10 (Intellectual Property Rights) of the MSA.

6.2 The Customer expressly acknowledges that the Company does not carry out development of Deliverables comprised of software which are not inextricably linked with the Company’s Software (for example, a Deliverable could be a particular configuration or customization of the Software). Since a Deliverable comprised of software is inextricably linked with the Software, it will not be possible to use such Deliverables as a standalone product without a Software License to use the Software. Upon delivery of a Deliverable comprised of software or acceptance of a Deliverable pursuant to Paragraph 6.8 below (if Acceptance Tests have been agreed in the Order Form), the Customer will have the same rights to use the Deliverable as it has to use the Software that relates to that Deliverable (and such Software is identified in this Agreement for the Development Services) in accordance with this Agreement under which the Company grants the Customer the Software License for that Software and Part A of this Schedule 2 shall apply to such Deliverable as well as to that Software. For clarity, a Supported Deliverable may not be used in conjunction with any Software other than the Software to which that Deliverable relates (as identified in this Agreement) and Supported Deliverables are not transferable from one software to another.

6.3 The Customer grants the Company a license free of charge and on a non-exclusive basis, to use the Customer's Equipment to the extent required to enable the Company to provide the Development Services. The license granted under this Paragraph 6.3 will automatically terminate on the expiration or termination of the relevant Agreement.

6.4 The Company shall use reasonable efforts to provide the Development Services and deliver any Deliverables on dates mutually agreed by the parties; however time shall not be of the essence of this Agreement. Risk in any tangible Deliverables shall pass on delivery.

6.5 If requested, the Company may provide Development Services at the Customer's Site.

6.6 The Customer acknowledges that the Company's provision of Development Services is subject to the Assumptions (if any) set out in this Agreement.

6.7 Unless otherwise specified in the Order Form, the Company may, at its sole discretion, withdraw Development Services for any reason on thirty (30) days' prior written notice to the Customer, and without limitation the Customer's payment obligations in Section 14.7 (b) of the MSA shall apply.

6.8 Acceptance Testing

(a) The provisions of this Paragraph 6.8 shall only apply to the Deliverables if Acceptance Testing has been agreed in the Order Form.

(b) The Customer shall test the Deliverables (if applicable pursuant to Paragraph 6.8(a)) and evaluate whether they comply with the Acceptance Criteria as set out in the Specification within twenty (20) Working Days of delivery (the "Acceptance Tests"). Acceptance Tests shall only be carried out against the relevant Acceptance Criteria, and no other acceptance testing criteria shall apply.

(c) If the Deliverables fail to pass the Acceptance Tests, the Customer shall be entitled, without prejudice to any other rights or remedies which it may have, to provide the Company with a written notice to this effect within twenty (20) Working Days of delivery, giving details of such failure(s) and the relevant Acceptance Criteria which has not been met and requesting the Company to remedy the relevant non-compliances with the Acceptance Criteria.

(d) The Company shall remedy such non-compliances with the Acceptance Criteria related to the applicable Deliverable, at no additional charge, and deliver it to the Customer within ten (10) Working Days (or a different period mutually agreed by the Parties in writing) from receipt of the Customer's request under Paragraph 6.8(c) and the Customer shall repeat the Acceptance Tests on the resubmitted Deliverables, again testing against the relevant Acceptance Criteria.

(e) Acceptance of the Deliverables (as applicable) shall be deemed to have occurred on whichever is the earliest of:

(i) the signing by the Customer of an acceptance certificate that the Deliverables (if applicable pursuant to Paragraph 6.8(a)) have passed the Acceptance Tests;

(ii) the expiration of twenty (20) Working Days after the completion of all the Acceptance Tests, unless the Customer has given the Company written notice of failure to pass the Acceptance Tests under Paragraph 6.8(c), such notice to identify which of the Acceptance Criteria has not been met; or

(iii) the use of the Deliverables by the Customer in the normal course of the Customer's business or for live production or any other non-test purpose.

(f) The Company shall not be in breach of this Agreement nor liable for delay in performing any of its obligations under this Agreement if such breach or delay results from the Acceptance Tests procedure set out in this Paragraph 6.8.

(g) If a Deliverable fails in some material respect to pass any repeated Acceptance Tests carried out in accordance with this Agreement within 3 months from the first date of delivery, then the Customer may, by written notice to the Company, choose at its sole discretion:

(i) to accept the Deliverable subject to such change of Acceptance Criteria and amendment of the Specification and/or reduction in the Service Fee, after taking into account all the relevant circumstances; or

(ii) to reject the Deliverable for not passing the Acceptance Tests and terminate the relevant part of the relevant Agreement under which such Deliverable was ordered and the Company shall refund the amount of the Service Fee already paid by the Customer taking into account the reasonable costs incurred by the Company for the work done to date and any third party costs.

6.9 A Deliverable will benefit from the warranty set out in Section 12.2(b) of the MSA. After the Warranty Period, a Deliverable shall not be supported unless it is a Supported Deliverable, or support is separately agreed in an Agreement.

6.10 Where a Supported Deliverable is to be supported pursuant to a Support and Maintenance Services Agreement then the Company will ensure that the Supported Deliverable works with any subsequent Update of the Software on which the Supported Deliverable is based during the twelve month period immediately following Acceptance of such Supported Deliverable, but:

(a) for a maximum of two (2) Updates; and

(b) on the condition that the Customer has an existing Support and Maintenance Services Agreement in place for that twelve month period.

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