SaaS Services Agreement

THIS SAAS SERVICES AGREEMENT (“AGREEMENT”) IS THE LEGAL AGREEMENT THAT GOVERNS YOUR ACCESS AND USE OF THE SOFTWARE (“SERVICES”) MADE AVAILABLE BY MESSAGEONE LLC (“COMPANY”). FOR PURPOSES OF THIS AGREEMENT, THE TERM “SOFTWARE” MEANS THE SOFTWARE LISTED ON THE APPLICABLE SAAS SERVICES ORDERING PAGE OR FORM (“ORDER FORM”) BETWEEN YOU AND THE COMPANY. THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH CUSTOMER MAY (I) USE THE SOFTWARE THAT IS SPECIFICALLY LICENSED TO CUSTOMER PURSUANT TO AN ORDER FORM; AND (II) USE THE USER DOCUMENTATION THAT LICENSOR MAKES GENERALLY AVAILABLE IN HARD COPY OR ELECTRONIC FORM TO ITS GENERAL CUSTOMER BASE IN CONJUNCTION WITH THE LICENSING OF SUCH SOFTWARE (THE “DOCUMENTATION”).

LICENSOR IS ONLY WILLING TO PROVIDE THE SOFTWARE AND SERVICES TO CUSTOMER ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. CUSTOMER ACCEPTS THIS AGREEMENT BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE. BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE AND ACCEPTING THIS AGREEMENT THE PERSON DOING SO REPRESENTS AND WARRANTS THAT SUCH PERSON HAS THE AUTHORITY TO ACCEPT THIS AGREEMENT, PERSONALLY OR ON BEHALF OF THE ENTITY NAMED AS CUSTOMER, AND TO BIND EITHER SUCH PERSON OR SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.

IF CUSTOMER DID NOT ACQUIRE THE SOFTWARE FROM COMPANY OR FROM A COMPANY AFFILIATE OR AUTHORIZED RESELLER, THEN CUSTOMER MAY NOT ENTER INTO THIS AGREEMENT OR USE THE SOFTWARE. NO OTHER PARTY HAS THE RIGHT TO TRANSFER A COPY OF THE SOFTWARE TO CUSTOMER.

TERMS AND CONDITIONS

1. ACCESS AND USE

1.1. Company grants Customer a subscription-based, nonexclusive, and nontransferable right to access and operate the object code form of Software application(s) (and use its documentation) as hosted by the Service Provider as described in the Order Form and solely to perform those functions described in the documentation. The license model for the Software is set forth in the Order Form and described in the SaaS Addendum located at http://saaslicensingaddendum.trilogy.com.

1.2. Company will use reasonable efforts to achieve Service Provider’s availability goals described in the ‘Service Level Addendum for SaaS’ located at http://saasserviceleveladdendum.trilogy.com. As part of the registration process, Customer shall identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.

1.3. Upon payment of the relevant fees set forth on the applicable Order Form, Customer may receive basic/standard support services for the Services pursuant to the ‘Support Addendum for SaaS’ located at http://saassupportaddendum.trilogy.com.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1. Customer agrees to comply with all applicable laws, regulations and ordinances relating to its use of the Services, Software or anything related thereto.

2.2. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.

2.3. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. Customer hereby agrees not to provide to Company any technical data as that term is defined in the International Traffic Arms Regulations (“ITAR”) at 22 CFR 120.10.

2.4. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.5. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

3.2. Customer shall own all rights, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, including those resulting from feature request or other suggestions from the Customer, (b) any software, applications, inventions or other technology developed in connection with professional services, implementation services or support, and (c) all intellectual property rights related to any of the foregoing.

3.3. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

4. PAYMENT OF FEES

4.1. The Fees for the Service during the Subscription Term are billed Annually in advance (the “Recurring Annual Fee”). Customer will be charged the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Unless the subscription is terminated as set forth in Section 5.1 herein, Company will automatically charge the Customer using the payment method on file with the Company on the renewal date. If Customer’s use of the Services exceeds the Recipients set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Subscription Term or then current Renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email). The fees for any renewal term shall not exceed 25% of the fees charged in the term preceding the renewal. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to the Company’s customer support department.

4.2. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on the Company’s net income.

4.3. The subscription, service fees, and other amounts paid for Software and Services do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Company and hold Company harmless for all sales, use, VAT, excise, property or other taxes or levies which the Company is required to collect or remit to applicable tax authorities. This provision does not apply to Company’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Company with a valid tax exemption certificate. The Customer will pay all import duties, levies or imposts, and all goods and services sales, use, value added or property taxes of any nature, assessed upon or with respect to the Agreement. If the Customer is required by law to make any deduction or to withhold from any sum payable to the Company by the Customer hereunder, then the sum payable by the Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, the Company receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount the Company would have received and retained in the absence of such required deduction or withholding. If the Customer is required by law to make any such deduction or withholding, the Customer shall promptly effect payment thereof to the applicable tax authorities. The Customer shall also promptly provide the Company with official tax receipts or other evidence issued by the applicable tax authorities sufficient to enable the Company to support a claim (if applicable) for income tax credits in the Company’s applicable taxable country.

5. TERM AND TERMINATION

5.1. Subject to earlier termination as provided below, this Agreement is for the Initial Subscription Term as specified in the Order Form, and shall be automatically renewed at the Company’s then current pricing for additional periods of the same duration as the Initial
Subscription Term (each a “Renewal “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then- current term. The Initial Subscription Term together with the Renewal Term(s) are collectively, the “Subscription Term”.

5.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach is not cured within such thirty (30) day period. Customer hereby agrees to pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company shall make all Customer Data available to the Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6. WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SERVICES, SOFTWARE, PROFESSIONAL SERVICES, AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. INDEMNITY

Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. The indemnifying party’s obligations as set forth in this Section 7 are subject to the other party providing full cooperation in good faith in the defense of any such claim.

8. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, ATTORNEY’S FEES, OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL , PUNITIVE OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 8, COMPANY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.

9. MISCELLANEOUS

9.1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with the Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind the Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices, including notices of non-renewal, shall be sent to the applicable address specified on the Order Form or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. The parties agree that the federal and state courts located in Travis County, Texas, USA will have exclusive jurisdiction for any dispute arising under, out of, or relating to this Agreement.

9.2. At the direction and sole discretion of Company, affiliates of Company (the “Company Affiliates”) may perform certain tasks related to the Company’s obligations and rights under the Order Form and the Master Agreement, including, but not limited to, invoicing, payment, technical support, project management and/or sales support. Customer hereby consents to the Company Affiliates’ role. Customer further agrees and acknowledges that Company and Customer are the only parties to the Order Form and the Master Agreement, and that any action taken by Company Affiliates in connection with the performance of Company’s obligations under the Order Form and the Master Agreement will not give rise to any cause of action against the Company Affiliates, regardless of the theory of recovery. Company shall at all times retain full responsibility for Company Affiliates’ compliance with the applicable terms and conditions of the Order Form and the Master Agreement. Company will have the right to use third parties, including offshore entities who employ foreign nationals, as well as employees and contractors of Company Affiliates and subsidiaries, who may also be foreign nationals (collectively, “Subcontractors”) in the performance of its obligations hereunder and, for purposes of these this Agreement, all references to Company or its employees will be deemed to include such Subcontractors. Company will have the right to disclose Customer Proprietary Information to such third parties provided such third parties are subject to confidentiality obligations similar to those between Company and Customer.

9.3. Obligations with respect to personally identifiable information (if any) are set forth in the ‘Privacy Addendum’ located at http://globalprivacyaddendum.trilogy.com.

Professional Services Terms and Conditions

The following Professional Services Terms and Conditions (these “Services Terms”) are made part of the SaaS Services Agreement entered into by and between the Customer (as identified on the Order Form) and the Service Provider (as identified on the Order Form) (all such terms collectively, the “Master Agreement”). Capitalized terms used but not defined in these Services Terms have the meanings assigned to them elsewhere in the Master Agreement.

These Services Terms set forth the terms and conditions pursuant to which Service Provider will provide certain professional services to the Customer. For clarity, the parties agree that to the extent these Services Terms discusses or involves any activity related to software licensed to Customer pursuant to a separate agreement, nothing in these Services Terms modifies the terms of that license.

1. TERM

Unless terminated as provided herein, these Services Terms commence on the “Term Start Date” and continue through the “Term End Date” as set forth on each Order Form (the “Term”).

2. SERVICES TO BE DELIVERED

2.1. Service Provider will provide the services and deliverables (“Deliverables”) described in the Statement of Work attached hereto. Those services are a collection of activities which will be performed during the Term of these Services Terms (the “Services”). Any additional scope or activities that extend beyond the Services will require an additional Order Form. For the avoidance of doubt, the Statement of Work may contain terms and conditions specific to the applicable Services ordered (via a Order Form) which terms will have no effect on other Professional Services Addenda or Statements of Work.

2.2. At the direction and sole discretion of Service Provider, affiliates of Service Provider (the “Service Provider Affiliates”) may perform certain tasks related to Service Provider’s obligations and rights under the Order Form and the Master Agreement, including, but not limited to, invoicing, payment, technical support, project management and/or sales support. Customer hereby consents to the Service Provider Affiliates’ role. Customer further agrees and acknowledges that Service Provider and Customer are the only parties to the Order Form and the Master Agreement, and that any action taken by Service Provider Affiliates in connection with the performance of Service Provider’s obligations under the Order Form and the Master Agreement will not give rise to any cause of action against the Service Provider Affiliates, regardless of the theory of recovery. Service Provider shall at all times retain full responsibility for its Service Provider Affiliates’ compliance with the applicable terms and conditions of the Order Form and the Master Agreement.

3. FEES AND EXPENSES

3.1. The Services provided under these Services Terms will be billed according to the fee schedule set forth in the Order Form. Unless otherwise specifically stated in the Order Form, the fees do not include expenses; Customer shall reimburse Service Provider for all reasonable travel, food, lodging, and other out-of-pocket expenses incurred in performance of these Services Terms. Service Provider agrees to comply with Customer’s expense policies, as long as Customer provides those policies to Service Provider with reasonable advance notice and in writing. If any additional work is performed beyond the Completion Date or scope of these Services Terms, the rate will be mutually agreed upon by the parties or if no such rate is established, such work will be performed under Service Provider’s standard rate in effect at the time. All charges and fees set out in the Order Form are quoted exclusive of applicable taxes, duties, or similar charges. Customer shall pay all sales, use, withholdings, excise, or other taxes or duties arising out of these Services Terms, provided, however, that Customer will not be responsible for taxes on the net income of Service Provider. The Customer will pay all import duties, levies or imposts, and all goods and services sales, use, value added or property taxes of any nature, assessed upon or with respect to the Master Agreement. In the event that the Customer is tax exempt, it shall furnish appropriate documentation to the Service Provider to demonstrate such tax exempt status.

3.2. If the Customer is required by law to make any deduction or to withhold from any sum payable to the Service Provider by the Customer hereunder, then the sum payable by the Customer upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, the Service Provider receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount the Service Provider would have received and retained in the absence of such required deduction or withholding. If the Customer is required by law to make any such deduction or withholding, the Customer shall promptly effect payment thereof to the applicable tax authorities. The Customer shall also promptly provide the Service Provider with official tax receipts or other evidence issued by the applicable tax authorities sufficient to enable the Service Provider to support a claim (if applicable) for income tax credits in the Service Provider’s applicable taxable country. Invoices will be sent by electronic delivery unless requested otherwise by the Customer, additional fees will apply.

4. PAYMENT

4.1. Notwithstanding any provision to the contrary herein, any and all payments required to be made hereunder are to be timely made by the Customer, and no payments to Service Provider will be withheld, delayed, reduced, or refunded if Service Provider’s inability to meet any schedule requirements is caused by Customer’s failure to provide certain of its facilities, computer resources, software, personnel, or business information as are required to perform these Services Terms.

4.2. Customer agrees to provide Service Provider with a valid purchase order, if applicable, promptly upon execution of an Order Form. Notwithstanding anything to the contrary herein, any and all terms contained in invoices, purchase orders, acknowledgments, shipping instructions, or other forms exchanged between the parties in connection with the Services will be void and of no effect. Customer’s failure to issue a purchase order or provide such purchase order to Service Provider, however, will in no way relieve Customer of any obligation entered into pursuant to these Services Terms, including, but not limited to, its obligation to pay Service Provider in a timely fashion.

4.3. Any late payment will be subject to any costs of collection (including reasonable legal fees) and bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.

5. GENERAL TERMS

5.1. Third Parties. Service Provider will have the right to use third parties, including offshore entities who employ foreign nationals, as well as employees and contractors of Service Provider’s Affiliates and subsidiaries, who may also be foreign nationals, (“Subcontractors”) in performance of its obligations hereunder and, for purposes of these Services Terms, all references to Service Provider or its employees will be deemed to include such Subcontractors. Service Provider will have the right to disclose Customer Confidential Information to such third parties provided such third parties are subject to confidentiality obligations similar to those between Service Provider and Customer.

5.2. Technical Data. Customer shall not provide to Service Provider any Technical Data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10. Customer shall certify that all information provided to Service Provider has been reviewed and scrubbed so that all Technical Data and other sensitive information relevant to Customer’s ITAR regulated project has been removed.

5.3. Warranty. Service Provider warrants that it has the right to enter into these Services Terms and that all Services performed under these Services Terms shall be performed in a workmanlike and professional manner. EXCEPT AS OTHERWISE STATED IN THESE SERVICES TERMS, SERVICE PROVIDER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

5.4. LIMITATION OF LIABILITY.

5.4.1. LIABILITY CAP. SERVICE PROVIDER’S (AND SERVICE PROVIDER AFFILIATES, LICENSORS AND AGENTS) LIABILITY ARISING OUT OR RELATED TO THE SERVICES TERMS WILL NOT EXCEED, IN THE AGGREGATE, THE FEE ACTUALLY PAID TO SERVICE PROVIDER FOR THE SERVICES UNDER A ORDER FORM THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM.

5.4.2. DISCLAIMER OF DAMAGES. IN NO EVENT WILL SERVICE PROVIDER (OR SERVICE PROVIDER AFFILIATES, LICENSORS OR AGENTS) BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OR ANY LOSS OF REVENUE, GOODWILL, PROFITS, DATA OR DATA USE ARISING OUT OR RELATED TO THESE SERVICES TERMS. THE LIABILITIES LIMITED BY SECTIONS 5.4.1 AND 5.4.2 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE; (iii) EVEN IF SERVICE PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE, (iv) ATTORNEYS FEES AND COSTS, AND (v) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 5, SERVICE PROVIDER’S (AND SERVICE PROVIDER AFFILIATES, LICENSORS AND AGENTS) LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.

5.5. Ownership. All Deliverables produced by Service Provider under these Services Terms will not be considered to be works made for hire and will be exclusively owned by Service Provider and no ownership rights thereto will accrue in any manner to Customer, and Customer hereby agrees, upon written request from Service Provider, to assign any rights of Customer in such Deliverables to Service Provider. However, Service Provider hereby grants to Customer, at no additional charge, a worldwide, nonexclusive, license to (i) modify and otherwise create derivative works based on the Deliverables; and (ii) reproduce, distribute, perform, and display (publicly or otherwise), and otherwise use and exploit the Deliverables and derivative works thereof solely in connection with Service Provider licensed under a separate license agreement. Nothing in these Services Terms will preclude Service Provider from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Service Provider in the performance of Services hereunder. Except as otherwise expressly provided herein, nothing in these Services Terms will be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other intellectual property rights of Service Provider. Service Provider reserves all rights, title and interest in and to the Deliverables, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth.

5.6. Confidentiality. Each Party (“Receiving Party”) agrees to keep confidential all technical, product, business, financial, and other information regarding the business and software programs of the other Party (“Disclosing Party”), its affiliates, customers, employees, investors, contractors, vendors, and suppliers (the “Confidential Information”). For clarity, the term ‘Confidential Information’ does not include any personally identifiable information. Receiving Party shall at all times protect and safeguard the Confidential Information and agrees not to disclose, give, transmit, or otherwise convey any Confidential Information, in whole or in part, to any third party. Receiving Party shall not, by authorized or unauthorized access, review, reverse engineer, disassemble, or decompile any Confidential Information. Except as provided hereunder, Receiving Party agrees that it will not use any Confidential Information for its own purpose or for the benefit of any third party and shall honor the copyrights and other intellectual property rights of the Disclosing Party and will not copy, duplicate, or in any manner reproduce any such copyrighted materials. Upon request of Disclosing Party or upon termination of these Services Terms, the Receiving Party shall promptly deliver to the Disclosing Party any and all documents, notes, or other physical embodiments of or reflecting the Confidential Information (including copies thereof) that are in its possession or control.

5.7. Marks and Publicity. Service Provider and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), will be the sole and exclusive property of the respective owning party, which will own all rights, title and interest therein. Service Provider may: (i) use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) quote the Customer’s statements in one or more press releases; and/or (iii) make such other use of the Customer’s name and/or logo as may be agreed between the parties. Additionally, Service Provider may include Customer’s name and/or logo within its list of customers for general promotional purposes. Service Provider shall comply with Customer’s trademark use guidelines as such are communicated to the Service Provider in writing and Service Provider shall use the Customer’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section.

5.8. Third Party Rights. Customer acknowledges that in the event Service Provider provides Services pertaining to any third party products (including software, hardware, equipment or any other material), all rights in such third party products (“Third Party Rights”) are retained by the respective third party. Customer shall be required to obtain any Third Party Rights from the respective third party directly and any rights in the Service Provider Services related to such Third Party Rights will be subject to Customer’s agreement with the respective third party.

5.9. Privacy. Obligations with respect to personally identifiable information (if any) will be set forth in a separate written agreement between the parties.

5.10. Reservation of Rights. Service Provider reserves all rights not specifically granted herein.

5.11. Termination. These Services Terms may be terminated prior to the Completion Date in accordance with the following:

5.11.1. Termination for Cause. Either party may terminate these Services Terms in the event the other party has failed to perform any obligation required to be performed under these Services Terms and such failure is not corrected within thirty (30) days from receipt of written notice advising of such alleged failure from the other party.

5.11.2. Termination without Cause. The Customer may terminate these Services Terms by providing written notice to the Service Provider. In the event of termination under this paragraph, an early termination fee will apply that is equal to the fees due during the Term minus the total fees paid for Services at the time of termination.

5.12. Governing Law; Venue. The laws of the State of Texas, USA govern the interpretation of these Services Terms, regardless of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to these Services Terms. The parties agree that the federal and state courts located in Travis County, Texas, USA will have exclusive jurisdiction for any dispute arising under, out of or relating to these Services Terms. Mediation will be held in Austin, Texas, USA.

5.13. Dispute Resolution

5.13.1 Negotiations. Where there is a dispute, controversy, or claim arising under, out of, or relating to these Services Terms, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the alleged deficient performance of the other party. A representative from senior management of each of the parties shall meet in person or communicate by telephone within five (5) business days of the date of the written notification in order to reach an agreement about the nature of the alleged deficiency and the corrective action to be taken by the respective parties.

5.13.2. Mediation. Any dispute, controversy, or claim arising under, out of, or relating to these Services Terms and any subsequent amendments of these Services Terms, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, and any claims with respect to the validity of this mediation agreement (hereinafter the “Dispute”), shall be submitted to mediation in accordance with the then-current WIPO Mediation Rules. The language to be used in the mediation will be English.

5.13.3. Opportunity to Cure. Notwithstanding anything contained hereunder, Customer agrees and acknowledges that no dispute resolution or litigation will be pursued by Customer for any breach of these Services Terms until and unless Service Provider has had an opportunity to cure any alleged breach. Customer agrees to provide Service Provider with a detailed description of any alleged failure and a description of the steps that Customer understands must be taken by Service Provider to resolve the failure. Service Provider shall have sixty (60) days from Service Provider’s receipt of Customer’s notice to complete the cure.

5.13.4. Injunctive Relief. The parties agree that it will not be inconsistent with their duty to mediate to seek injunctive or other interim relief from a competent court. The parties, in addition to all other available remedies, shall each have the right to initiate an action in any court of competent jurisdiction in order to request injunctive or other interim relief with respect to a violation of intellectual property rights or confidentiality obligations. The choice of venue does not prevent a party from seeking injunctive or any interim relief in any appropriate jurisdiction.

5.14. Miscellaneous. The provisions of these Services Terms together with the documents referenced herein constitute the entire agreement between the parties with respect to the subject matter herein and supersede all prior agreements, oral or written, and all other communications relating to the subject matter of these Services Terms. These Services Terms may only be modified or supplemented by a writing manually signed by the authorized representatives of the parties. Each provision of these Services Terms is a separately enforceable provision. If any provision of these Services Terms is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of these Services Terms will remain in full force and effect and will be interpreted, to the extent possible, to achieve its purposes without the invalid, illegal, or unenforceable provision. Any waiver made by either party of any term or condition of these Services Terms will not be deemed or construed to be a waiver of such term or condition for the future, or any subsequent breach thereof. Both parties agree to abide by the export control laws/regulations of the United States and other countries, as applicable. Each party is and will remain an independent contractor with respect to all performance rendered pursuant to these Services Terms. The headings of these Services Terms are provided for reference only and will not be used as a guide to interpretation. All notices under these Services Terms will be in writing and will be considered given as of twenty-four (24) hours after sending by electronic means (such as e-mail as duly provided by the authorized representatives of either party for the said purpose) or by overnight air courier service, or as of forty- eight (48) hours after deposit in the mail (certified, return receipt requested) to the addresses specified on Order Form. In no event will either party be liable to the other for any delay or failure to perform due to causes beyond the control and without the fault or negligence of the party claiming excusable delay, but only to the extent that such delay could not have been avoided by the taking of reasonable precautionary measures. Such causes include, but are not limited to, acts of God, floods, fire, utility failure, acts of terrorism, and war. The terms of Sections 4 and 5 will survive the termination of these Services Terms. Customer may not assign these Services Terms by operation of law, change of control or otherwise without the prior written consent of the Service Provider. Service Provider may assign these Services Terms, sub-contract or otherwise transfer any right or obligation under these Services Terms to a third party without the Customer’s prior written consent.

5.15. Country-Specific Terms. The country-specific provisions described in the Country-Specific Terms Addendum located at http://countryspecifictermsaddendum.trilogy.com shall replace or supplement the equivalent provisions above as noted therein where the Customer is located in the countries identified in the Country-Specific Terms Addendum and in any case where the law of the jurisdiction listed in the Country-Specific Terms Addendum gets applied.

Statement of Work

Statement of Confidentiality 

This document contains proprietary and confidential information. All data submitted is provided in reliance upon the recipient’s agreement not to use or disclose except in connection with its business dealings with Aurea Software. The recipient of this document agrees to inform its present and future employees who receive or have access to the information contained in this document of its confidential nature, and to instruct each employee that he or she must not disclose any information concerning this document to others except to the extent that such matters are generally known to, and are available for use by, the public. The recipient of this document agrees that it will not duplicate or permit others to duplicate any material contained herein except for its own internal use.

Description of Services

Aurea Professional Services is pleased to provide the following proposal to assist and guide through the solution onboarding process. The onboarding process is broken into discrete phases the goals of which are outlined below:

Pre-Kickoff 

As soon as the agreement between Aurea Software and the customer is signed, within 3-5 business days the Aurea Professional Services team will send a welcome kit that includes the following information: 

  • Client Roles and Responsibilities: A document that describes the roles and responsibilities required on the customer side to ensure a successful onboarding. Some of these roles need to be identified before being able to kick off. This document also includes guidelines for time commitments for these resources. 
  • Description of Sessions: A document that outlines the various sessions that the project team will undergo during the implementation process. This information can be used to further inform project staffing decisions as well as to share with the project team. 
  • Technical Information and Prerequisites: A document to be shared with your IT team which describes the software, technical considerations, and technical requirements from the client side that need to be in place prior to kickoff. 
  • Pre-Kickoff Form: After reviewing the above documents, the client will be asked to fill out a pre-kickoff form with the information about the project team and technical prerequisites we need to be able to kick off the project.
    • If an initial CSV roster file with the users’ data has not been supplied with the Pre-Kick-off form according to the template provided with the welcome kit, or if the customer wants to deploy an AlertFind connector to sync users, it will be required that the customer send either the CSV file or the credentials for the selected connector to be sent to the the onboarding team.

The Aurea Professional Services PMO staff will be available to answer any questions and assist the customer with understanding the Welcome Kit is required.

Phase 1 – Kickoff 

Once the client has filled out the Pre-Kickoff Form, the Aurea PMO will assign the Aurea project team that will work with the customer within 3-5 business days of the form being submitted. The team will then work with the customer to schedule a kickoff meeting with the Project Teams from both sides. 

  • Kickoff Meeting: During the kickoff meeting the project teams will review the project methodology, schedule, as well as what will be expected of each team member. A recording of the session as well as a copy of the presentation will be provided to the customer.

As soon as the project is kicked off and the project team is aligned, the team will proceed to the deployment of the solution.

Phase 2 – Deployment

Following the kickoff, per the agreed-upon schedule, Aurea will deploy the solution and apply the standard onboarding configuration which includes several pre-configured aspects based on best practices that have historically helped clients adopt the system faster, including:

  1. Notification template: Neighborhood Alert 
  2. Notification template: Hazardous Materials Leak
  3. Notification template: IT Information
  4. Notification template: IT Alert
  5. Notification template: IT Outage
  6. Notification template: Power Outage
  7. Notification template: Response Team Activation
  8. Notification template: Response Team Alert
  9. Notification template: Earthquake
  10. Notification template: Flood
  11. Notification template: Hurricane
  12. Notification template: Lightning storm
  13. Notification template: Tornado
  14. Notification template: Wildfire
  15. Notification template: Snow Storm
  16. Notification template: Oil Spill
  17. Notification template: Pandemic
  18. Notification template: Product Recall
  19. Notification template: Water Outage
  20. Notification template: Dam Break
  21. Notification template: Conference Call
  22. Notification template: Explosion
  23. Notification template: Fire
  24. Notification template: Facility Evacuation
  25. Notification template: Active Shooter
  26. Notification template: Employee AlertFind Launch Newsletter
  27. Notification template: Employee Contact Details Update Request
  28. Notification template: Bomb Threat
  29. Notification template: Gas Leak
  30. Import item: Default CSV Mapping import process

During the deployment, Aurea’s technical consultants preconfigure all the above aspects based on best practices for each one. This will give the project team a platform to start building on during the next phases. During this phase, the customer’s technical team should be available to assist as outlined in the “Technical Information and Prerequisites” document. 

Phase 3 – Training 

Once the site is up and running, the training phase begins. During this phase, the client’s project team should be available the amount of time described in the “Customer Roles and Responsibilities” document to attend the following key training sessions: 

  • Data Validation call
  • Uploading Contacts and Sending Notifications Training
  • Use Case walkthrough

Descriptions of these sessions are available in the “Description of Sessions” document. The objective of these workshops is to prepare the client for managing their site going forward, being able to train end users, and understanding the best practices for adoption of the tool. For each session, a recording of the session as well as a copy of the presentation will be provided to the customer.

Phase 4 – Pilot 

After training is complete, the project team will begin a pilot phase where we encourage the team to begin using the system. This phase will last 3 weeks during which Aurea’s business consultants will be available once a week for 1-hour question and answer sessions. 

Ask a Consultant Workshops

The purpose of these workshops is to ensure that the pilot team is progressing in their use of the system, and that the customer has everything they need to carry forward. Recordings of these sessions will be provided to the customer for future reference. 

Transition

Once the pilot phase is complete, the customer should have a full understanding of the tool and be well on their way to adoption. At this time, consultants will introduce the client to the support organization which will be their new point of contact going forward.

Introduction to Support

From this point forward, the Aurea support team will take over assisting with any questions the customer may have and checking in to ensure the adoption of the tool is being successful. 

Sample Schedule

Below you will find a sample schedule for a standard AlertFind implementation. Please note that the final dates and durations will be agreed upon during the project’s kickoff. 

AlertFind Sample Schedule

Assumptions

In order to mitigate the risk to all parties associated with the project, Aurea submits the following list of assumptions. Aurea’s services and related pricing are contingent upon these assumptions. Modifications to these assumptions may impact the project timeline and/or result in added costs. The project assumptions are: 

  • This project plan assumes that the solution will be deployed in Aurea’s cloud.
  • During the pre-kickoff phase, the client must complete the kickoff form which asks for details needed to set up the instance as well as the required team members from the client’s side. It is assumed that the information provided will be accurate and the project team identified will have the availability to attend sessions and conduct pilot exercises.
  • This SOW assumes there are no customizations beyond standard configuration outlined above, including but not limited to custom code, custom applets, solution files, custom security settings and software, integrations with other systems, business intelligence, analytics, etc. 
  • The system will be pre-configured with a standard branding and consultants will tell the customer about the options available to adjust the tool’s look and feel. It is the customer’s responsibility to apply their branding as required.
  • The system will contain the pre-configured elements described above that use best practices from past customer experiences. Aurea’s consultants will train the customer on how to customize these elements and create new ones. The design, customization, and creation of further elements is the client’s responsibility. 
  • This statement of work assumes that the setup of the system and all sessions will be in one single language: English.
  • All work including training sessions will be conducted remotely. Training sessions will be recorded and provided to the customer for future reference. If, for any reason, the customer would prefer not to record sessions this must be expressed in writing. Each training session will only be conducted once. The customer is responsible for organizing all internal stakeholders and session attendees.
  • Additionally to the standard default CSV import process, only one additional connector deployment is included in the standard onboarding. A CSV file with a layout different from the standard one is considered as a connector.
  • Aurea shall use commercially reasonable measures to deliver the project scope as described. 

Change Control

Change control includes changes to project scope and/or deliverables from the original project plan. Other project impacts, such as lost time due to emergencies, software errors in licensed software or unplanned absences of key personnel, can also affect the time required to complete the work and/or the quality of the deliverables. 

Aurea has a formal change control process that documents and authorizes changes. Scope changes beyond the original Statement of Work will be presented first for authorization to estimate the impact (i.e., deliverables/schedule/cost) and then to authorize the agreed upon scope change along with the associated schedule and fee adjustment. Project impacts due to lost time or unavailability of key resources that may impact the project scope, schedule or deliverables will be documented for decision(s) when changes to original time/fee estimates may be warranted. A customer signature is required on all Change Order agreements/forms. If a decision is made to approve a change, a definitive time/fee estimate will be determined, and the project scope and timeline will be adjusted.

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