TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS (“AGREEMENT”) GOVERN YOUR ACQUISITION AND USE OF THE COMPANY MANAGED SERVICES AND IS A BINDING CONTRACT BETWEEN YOU AND COMPANY. BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; OR BY EXECUTING AN SALES ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU" OR “YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Company Managed Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Company Managed Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement is effective between You and Us as of the date of Your accepting this Agreement.

DEFINITIONS

*Additional terms other than those defined in this section are defined within the contents of this Agreement

Available or Availability means the percentage obtained by dividing the number of minutes the  services in the Production Environment is capable of receiving, processing, and responding to requests, during the applicable month by the number of total minutes in the applicable month, excluding in all cases Planned Scheduled Maintenance, Scheduled Maintenance, Customer Error Incidents, and Force Majeure Events.

Change Advisory Board (CAB) means a panel of Company employees who must approve any changes requested by Customer, and/or the Development Partner to the managed service in the Production environment.

Company means Tikal Technologies, Inc.

“Customer”, “You” or “Your” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into a sales order. Customer and Company are at times referred to jointly as the “Parties”.

Customer Customizations means customizations made to the Platform by Customer and/or
the Development Partner in the Development and QA environments.

Customer’s Representative means a designated representative of the Customer who shall be authorized to make binding decisions for Customer regarding the obligations which are the subject of this Agreement, and shall perform or have performed other duties and requirements of Customer as set forth in this Agreement and in any applicable Sales Order.

Development Runbook means a document written by Customer and/or the Development Partner that provides Company with a list of the Customer Customizations and configurations made by the Customer and/or the Development Partner.

Hosting Provider means the business that delivers a combination of traditional IT functions such as infrastructure, applications (software as a service), security, monitoring, storage, web development, website hosting and email, over the Internet or other wide area networks (WAN).  Examples include but are not limited to Amazon, Rackspace, SoftLayer, etc.

Maintenance Window means any maintenance on the Platform performed by Company, where Company provides Customer with at least seventy-two (72) hours advance notice of such maintenance.

Managed Services Runbook means a document written by Company that provides a list of the Customer Customizations and configurations made by Company to the Platform, which shall assist Company in running and supporting the Platform in the Production Environment.  The Managed Services Runbook is further described herein.

Production Environment collectively refers to the real-time environment where programs are run and hardware setups are installed and relied on for organization or commercial daily operations.

Service Availability means the percentage obtained by dividing the number of minutes the Platform in the Production Environment is capable of receiving, processing, and responding to requests, during the applicable month by the number of total minutes in the applicable month, excluding in all cases Planned Scheduled Maintenance, Scheduled Maintenance, Customer Error Incidents, and Force Majeure Events.

Service Availability Objective means mutually agreed upon Service Availability for the Production instances as measured on a monthly basis.

Company Managed Services (the “Platform”) means the hosted platform as outlined in this Agreement.

Instance – “Instance" — when used alone — refers to an individual installation of enterprise software in a virtual or physical server. Usually there is only one installation per server, however it is possible to have multiple. “Server Instance" is used when specifically referring to a virtual server as a whole entity, irrespective of the number of installations, or any other software, reside within it.

Minor Upgrade means the installation of a minor release of a software product version (also known as a “point release” or a “maintenance release”).  Generally, although not always, a minor upgrade is not intended to introduce new functionality or features, rather it is typically intended to fix problems or known issues.  Minor releases serve as regular checkpoints that ensure clients stay on a proper upgrade path.

Major Upgrade means any upgrade that requires modification to the installed custom code base.  A major upgrade is intended to introduce significant functionality and/or features, and in extreme cases, may consist of considerable technology shifts.  Major upgrades require the review and/or modification of the existing custom code base to ensure compatibility with the release.  For the purposes of this statement of work, major upgrades are considered out of scope.  Worth noting, full version releases (e.g. 5.0 to 6.0) are always considered Major Upgrades, however in some rare cases, point releases  (e.g. 3.0 to 3.1) may by considered a Major Upgrade if significant modification to the existing code base is required.

I. SERVICE ENGAGEMENT

• Independent Contractor Status.  You understand and agree that the Company is an independent contractor and not an employee, agent, joint venturer or partner of the Customer.  Nothing in this Agreement shall be interpreted or construed to create or establish the relationship of employer and employee between the Customer and the Company or any employee or agent of the Company.  You understand and agree that neither the Company nor any personnel engaged by Company to permit use of the Products or perform the Services under this Agreement are employees of the Customer for any purpose, including, without limitation for state or federal tax purposes.

• Products and Services.  Company agrees to permit Your use of the Platform as described herein and in any other agreement entered into by You and the Company or one of its resellers.  Additionally, You agree to the terms provided in any Sales Order with Company or one of its resellers, which will lay out the pricing for the Platform.

• Company’s Personnel.  Company will use employees or independent contractors under contract with Company to permit use of the Platform.  Company shall have sole discretion over the identity of the personnel used to permit use of the Platform provided that Company shall ensure that the personnel are, in all cases, suitably qualified and experienced.

  

• Cooperation.  You shall assist Company in the performance of its obligations under this Agreement and shall undertake the responsibilities specified in this section at Your own expense.  You shall make available to Company a Customer Representative.

• Reliance.  You understand that Company shall rely upon Customer’s Representative as having the authority specified in the definition of that term, and that all official communications from Company to Customer shall be addressed to Customer’s Representative.

• Compensation.  You shall pay the Company for the Platform and Expenses at the rate(s) specified in the applicable Sales Order, including the payment of any retainer required therein prior to the commencement of the Platform.

  

• Invoices, Payment, Penalty and Fees. Company will submit invoices to You for all amounts due under this Agreement and in the applicable Sales Order.  Payment for all invoices is due within 30 days of receipt of invoice, in U.S. funds via cash, check, money order, wire transfer or ACH.  Any invoice not paid within that time shall become past-due and shall be charged daily a late fee of eighteen percent (18%) annually or at the highest interest rate allowed by law, whichever is lower, on all the then outstanding unpaid balance until paid in full (the “Late Fee”).  The Late Fee will be charged monthly for each month You fail to pay the full amount due.  Company reserves the right to discontinue use of the Platform, without further notice, until the Customer’s account is brought current.  For the purposes of this section, any check returned by a financial institution as uncollectable and/or NSF is not considered received and late fees shall apply as set forth herein.

• Term and Termination.

• This engagement shall commence upon execution of the Sales Order and Your Acceptance of this Agreement, and shall continue in full force and effect as set forth in the accompanying Sales Order.

• If at any time either party shall be in material default under this Agreement and/or the Sales Order, and shall fail to remedy such material default to the reasonable satisfaction of the other party within thirty (30) days following written notice from such other party specifying such material default, such other party may terminate this Agreement by written notice of termination to the defaulting party within ten (10) days following the said thirty (30) days.

• Either party may terminate this Agreement immediately if: (1) The other party shall make an assignment for the benefit of its creditors generally or shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent or shall file a petition or answer seeking insolvent reorganization, arrangement, liquidation or similar relief or shall file an answer admitting the material allegations of a petition against it for any such relief; or (2) the other party becomes insolvent; or (3) within sixty (60) days after the commencement thereof, any proceeding against the other party seeking insolvent reorganization, arrangement, liquidation or similar relief shall not have been dismissed; or (4) the other party terminates its existence or ceases to do business.

• The remedies provided in this section shall be in addition to any other legal or equitable rights the party not in default may have against the other party.

• In the event of early termination, all instances shall be transferred into Customer’s name, and Customer shall assume hosting contract and associated costs, including any fees or costs related to the transfer, for the remaining duration of the contract period.

II. HOSTING

This SLA shall apply solely to the configuration, defined in the Sales Order, and supported as described in this agreement. Company’s objective is to make commercially reasonable efforts to meet the Service Availability Objective. Company may perform maintenance on some or all of Customer’s Platform in order to upgrade hardware or software that operates or supports the Platform, implement security measures, or address any other issues it deems appropriate for the continued operation of the Platform. Company and hosting facilities that host the Platform, as defined below, and related software (the “Network”) shall meet the service level standards as defined by Hosting Provider.  With respect to System and Network hosting, the SLA outlined below shall be limited to the SLA provided by Hosting Provider.  High-level overviews of these services are provided below.

• Services

• Hosting Facility – The Network is equipped with access security, climate control, fire suppression, managed power supply with generator backup.

• Load Distribution Management – The Network is load balanced to distribute load and redundancy across application servers.

• Security Services – The Network provides data access security through managed firewall services, path for administration and SNMP monitoring, and hardened servers.

• Monitoring Services – The computing, operating and networking infrastructure of the Network is monitored 24/7/365 to detect abnormalities.  This includes environmental monitoring, performance monitoring, user experience monitoring, network monitoring, load balancing monitoring, web server and database monitoring, firewall services, and intrusion detection. Customer shall be provided read only access to monitoring systems, and on a monthly basis, Company shall provide monthly reports to Customer that include, but not be limited to, system up time, peak performance, capacity trends, etc.

• Backup, Archiving and Recovery Services – Company regularly backs up Customer Data, and provides routine and emergency recovery of Customer Data from its archives.  The backup schedule includes at least weekly full backups and daily incremental backups.

• Data Storage and I/O Limitations

• Production Instances – Customer is limited to the total aggregate capacity across all Production Environment
  instances of the Platform for each of the items:

• • Storage – Unless defined in the Sales Order, Customer shall be limited to a total combined storage at any one time, for all active data, of two hundred and fifty (250) gigabytes per Instance. In the event the Customer exceeds the aggregate limit, Customer shall be invoiced for any overage at the then‐current Hosting Provider list price.

• • Backup: Unless defined in the Sales Order, The Platform environment shall provide sufficient backup space capable of handling an incremental backup every 6 hours for up to 4 days per Production instance.  A full backup is taken every 24 hours, and backups are kept for 7 days.  In the event the required storage exceeds the aggregate limit, Customer shall be notified and invoiced for any overage at the then‐current list price.

• Non‐Production Instances. Customer is limited to the total aggregate capacity across all non‐Production instances for each of the items:

• • Storage: Unless defined in the Sales Order, Customer shall be limited to a total combined storage at any one time, for all active data, of one hundred (100) gigabytes per Instance. In the event the Customer exceeds the aggregate limit, Customer shall be billed for any overage at the then‐current Hosting Provider list price.

• • Backup: Unless defined in the Sales Order, Customer shall receive no backup space for non‐Production Instances.

• Environments. Customer may use the Platform in the following environments, which are listed as follows chronological order: Development, QA, Production Author, and Production Publish.

• Development – The period of time during which Customer may customize and test the components and features of the Platform for the purpose of evaluating potential configurations of the Platform.

• QA – The period of time during which a Customer may conduct quality testing of the Platform development and/or configuration created by Customer during Development. Testing conducted in the QA environment may include bug elimination, simulations, and integration with other Customer systems.

• Production Author – The period of time before Production Publish in which Customer and/or its 3^rd Party Development Partner creates the Development Runbook and obtains Company’s written approval of such Development Runbook. Prior to Customer utilizing the Platform for the Production Environment, Customer shall work in conjunction with its 3^rd Party Development Partner to: (a) create a Development Runbook and provide such Development Runbook to Company for review; and (b) obtain Company’s written approval of such Development Runbook. Customer and its Development Partner shall be jointly responsible for the completeness and accuracy of the Development Runbook, including the listing of all Customer Customizations in such Development Runbook. Company shall not be responsible for (a) any defect or failure in the Platform caused by the Customer Customizations; (b) any failure of the Platform or inability of Company to provide support for the Platform caused or related to (i) Customer’s failure to accurately list all Customer Customizations or configurations in the Development Runbook as required under this section regarding the Production Author environment, or (ii) any errors or omissions in the Development Runbook; or (c) any claims by any third party arising out of any Customer Customization, and Customer shall defend and indemnify Company against any such claims. Company is relieved of its obligation to meet the Service Availability Objective if Customer (a) does not create a Development Runbook; (b) fails to keep its Development Runbook current and updated; or (c) does not maintain an appointed Development Partner for the duration of the Term. Further, once the Platform is in the Production Environment, Company shall be responsible for providing support solely to Customer’s Technical Support Contacts pursuant to the terms of the section regarding Support in this agreement.

• Production Publish – The period of time during which a Customer uses the Platform for its regular and customary business operations. Customer may not make customizations to the Platform in the Production Environment. If Customer desires to make any customizations to the Platform once the Platform is in the Production Environment, Customer shall: (a) request that Company launch a cloned QA server; (b) implement such customizations; and (c) request that such customizations be reviewed and approved by the CAB. Customer shall then revert back to the QA Environment (and eventually move on to the Production Author Environment and Production Publish Environment) in connection with such customizations on such cloned server. Company will continue to simultaneously run the Platform in the Production Publish environment while such customizations are in the QA and Production Author environments.

III. MANAGED SERVICES

Company shall provide the following managed services in order to achieve the agreed upon SLA as defined in Section IV below.

  

• General System Administration

• • Maintain system/performance monitoring & alerting systems

• • Provide On call emergency infrastructure support

• • Maintain historical availability and performance statistics reporting

• • Provide system/infrastructure services as defined in SLA

• • Apply operating system maintenance, patches, security updates

• • Perform scheduled capacity management & planning

• Production Code Deployment

• • Migration of Customer approved development code, system configuration, etc. from the Production Author to the Production Publish instance.

• Issue Resolution. Company will provide resolutions as required to correct Platform malfunctions in order to bring the Company provided portion of the Platform services into substantial conformity with applicable documentation. If Customer encounters a problem in the usage of the Platform, Customer will provide Company with sufficient access and detail to permit Company to understand and reproduce the problem. Company will use reasonable efforts to diagnose the problem and if mutually determined by Customer and Company that the problem represents an error in the Platform that cause it to not operate in substantial conformity with applicable documentation, Company will use commercially reasonable efforts to provide a fix release to Customer. Each party acknowledges that despite a party’s reasonable efforts, not all problems may be solvable. In addition, Company may, at its sole discretion and from time to time, implement fix releases. Resolution of a technical support issue is defined as accomplishing any one of the following:

• • Providing a reasonable solution to the issue

• • Providing a reasonable work-around to the issue

• • Determination by Company that the issue is an enhancement request and forwarding the request to Adobe Product Management for future consideration

• • Escalation by Customer of the incident/product defect to Adobe Engineering for review

• • A remedy that could take the form of eliminating the defect, providing updates, or demonstrating how to avoid the effects of the defect with reasonable commercial effort

• Backup and Recovery

• • Define and manage backup & restore procedures to meet SLA requirements

• • Disaster Recovery / Business Continuance management

• Software Maintenance

• • Perform patching and upgrading of server software and hardware, including operating systems, applications, memory, storage, and server bandwidth to accommodate increase demand, as may be required. Company shall notify Customer’s users and relevant point of contact of scheduled maintenance work.

• • Perform periodic reviews to evaluate Adobe’s release of Platform hotfixes, Features Packs, and Service Packs, and minor releases.  See Section III for additional detail.

• Security Management. Company shall be responsible for the security of any websites that are developed by Company. Company shall ensure that all Websites are secured against possible hacking attacks including but not limited to: website defacement, web page redirection, brute-force attacks, downtime or denial of service. Accordingly, Company shall ensure that the security provisions include, but are not limited to:

• Website Penetration Testing – Company shall perform its own penetration testing of all newly developed or modified Websites, to ensure that vulnerabilities or “security holes” are identified and are immediately addressed. Company should provide evidence/reports of the penetration testing they carry out either as part of the regular Service Management reporting or to an agreed scheduled – i.e. once a quarter. Customer reserves the right to perform its own “black-box testing” and or “grey-box testing” of its domain URLs with or without prior notification to Company.  These tests are designed to ensure that the security of the website is sound and well protected.

• Intrusion Prevention/Detection System – Company shall employ effective Intrusion Prevention/Detection monitoring Systems (IPS/IDS), at the hosting sites to log, monitor and trigger alerts of potential attacks, so that Customer or its 3rd party Development Partner can take the necessary precautionary measures to avert such attack from taking place. Firewall service should be provided with only the necessary application ports allowed. All other application ports should be blocked.

• Exchange of Confidential Data or Information – Company shall ensure that Customer Corporate Information and user login credential that are exchanged over the Internet are transmitted via secure channel such as SSL (HTTPS) and VPN. Access to the Internal Web-site Pages must also be via VPN solution. Where this solution is not yet in place, Company shall employ IP blocking for non-Customer IP addresses, and only allow Customer IP address ranges (and Company address range, as may be required). Hence, only Customer and Company IP addresses are allowed to access the internal or administrative web pages.

• Access Privileges – Company shall establish permission levels to govern Platform access. Users shall be assigned appropriate access levels or privileges; in accordance with the approved requests from the respective Customer authorized personnel. Access level permissions shall be managed through group profiles and not on individual accounts. The list of access level permissions for each Website shall be outlined and mutually agreed upon by Company & Customer.

• Password Management – Company shall ensure that good password structure is built-in on websites and will work with Customer to ensure that passwords are created, distributed and maintained in accordance with mutually agreed upon guidelines.

• Upgrades

• Types of Upgrades – From time to time during the License Term, Adobe may release upgrades to the Platform hosted by Company. Such upgrades may include a Customer‐specific upgrade, emergency upgrade necessary for the security of the Platform  to address issues causing Company not to meet the Service Availability Objective (each an “Emergency Upgrade”) or a minor upgrade (i.e., a maintenance release or a new minor version change to the Platform for purposes including but not limited to, error correction.  Major upgrades are not included in this SLA.

• Upgrade Events Sequence – Company will make all reasonable efforts to first install all upgrades on a server in the QA Environment at a mutually agreed upon time described in the section entitled “Upgrade Timing” below. Once Company performs such installation, Customer (or its Development Partner) will work with Company to test the upgrade’s implementation in a timely fashion and will notify their Customer contacts, as listed in the Managed Services Runbook, of the success or failure of such testing. In the event of successful test results, Company will install the upgrade on server(s) in the Production environment on a schedule described in the section entitled “Upgrade Timing” below. In the event of the failure of the upgrade, Company will take corrective action if the issue is due to issues with Adobe’s software. If the issue is with Customizations, Company will take reasonable steps to support Customer (or its Development Partner) in Customer’s efforts to make adjustment to the code underlying the Customizations. Upon successful resolution of any such issues, Company shall install the upgrade on the Production server(s) as described above. A Customer may elect to defer or decline any such upgrade (excluding Emergency Upgrades) as set forth in the section entitled “Upgrade Deferrals” below.

• Upgrade Timing – Company will implement Emergency Upgrades as needed. Company will implement all other upgrades throughout the term of this agreement upon prior written notice to Customer as specified in the Managed Services Runbook. Company shall notify Customer, with as much lead time as possible, of the availability of such upgrades. After Company provides such notification, Company will work with the Customer to determine a mutually agreed upon time to provide a QA system for the Customer to start testing the upgrade. Unless Company agrees in writing to a longer test period, Customer must finish its testing within five (5) business days after Company makes the upgraded Platform services available to Customer for testing. In the event that the Customer notifies Company that the tests on the QA Environment system have failed, Company and the Customer shall work together to determine the schedule for resolving the issues detected. In the event that the Customer notifies Company that the tests on the QA system have passed, Company shall work with the Customer to determine a mutually agreed upon Maintenance Window or other time period to implement the upgrade.

• Upgrade Deferrals – A Customer may elect to defer or decline any upgrade (excluding Emergency Upgrades). In the event that Customer elects to defer or decline an upgrade that is required to maintain the platform within at least one major upgrade of the then‐current, generally commercially available version of the Platform (each a “Support Upgrade”) for any reason (including but not limited to, unwillingness to accept the Support Upgrade or unwillingness to make Customizations that enable the Platform to become compatible with a Support Upgrade), Customer agrees to pay Company an additional Extended Operations Uplift Fee calculated as an additional Fifty Percent (50%) increase to any fees incurred after the effective date of Customer’s deferral or declining of the Support Upgrade. Notwithstanding the foregoing, Customer is not obligated to pay to Company any such Extended Operations Uplift Fees if Customer is willing to install the Support Upgrade, but an action by Company causes such Support Upgrade to fail to be backward compatible with the then‐current version of the Platform; however, Customer shall work with Company to install the applicable Support Upgrade within a reasonable period of time.

• Emergency Upgrades – Notwithstanding anything to the contrary herein, Customer must accept all Emergency Upgrades.

• Managed Services Runbook. Customer’s Managed Services Runbook shall, at a minimum, include the subject matters listed below in the format provided by Company. Customer shall promptly update the Development Runbook each time it or its Development Partner creates new Customer Customizations that are accepted by Company for use in the Production environment. Company may, in its sole discretion, from time to time during the Term, change or modify the subject matters required to be included in the Managed Services Runbook, and Customer shall promptly update its Development Runbook to include such new subject matters. Customer and/or its Development Partner shall immediately update the Managed Services Runbook upon any Company request.

Priority	Definition
System Configuration	These guidelines prohibit Customer and/or the Development Partner from applying patches to the Platform Production Environment. Company will provide to Customer and/or the Development Partner information regarding the Platform, and Customer and/or Development Partner shall verify and state whether this information is correct and utilized.
Customizations	A list of all customizations made to the Platform. A list of all software customizations that have been installed in connection with the Platform, along with a description of the functionality of such software. Whether Customer would like Company to follow a backup schedule for Customer’s implementation of the Platform that is different from the backup schedule that Company generally follows.
System Monitoring	A list of any connections between the Platform Production Environments and any other systems on which the Platform is dependent. A list of parameters for such connections that should be monitored by Company to ensure functioning of the Platform. A list of parameters associated with any Customer Customizations that should be monitored by Company to ensure functioning of the service.
UAT Documentation	Describes the User Acceptance Testing scenarios conducted by the Customer or Development Partner. Describe the positive and negative outcomes of such testing that should be expected by Company in order to allow it to repeat such tests in order to assure the successful function of the system.
Post-Production CAB	Describes the changes to the Platform in the Production Phase made by Company and approved by the CAB as a result of change requests made by Customer and/or Development Partner.
Events and Responses	List all known weaknesses in the Customer Customizations to the Platform. Recommend actions to be taken by Company response team(s) when providing support for the Platform in association with Customer Customizations. Include the following information, at a minimum: All logging processes and file locations for any log files created by the Development Partner or Customer All information source or recipient repositories All databases and other info storage occurring in the Platform Any encryption models implemented in the Platform All communications with other (outside) data sources Any additional executables added to the Platform All information required for their long‐term administration The most common failure modes and recommendations for recovery from such failures
Contacts and Contracts	Specify a Customer contact that Company should notify if the system goes down. Specify a Customer (or Development Partner) resource who has technical knowledge of the customizations of the Platform and who can answer questions from Company. Specify a point of contact on the Customer side for any links between Customer’s IT systems and the Platform (e.g. SSO, etc.). Specify the Customer relationship manager for the Development Partner relationship. Specify the Development Partner contact that Company can contact in a support emergency. Specify the Development Partner contact for management escalation. Specify the Development Partner contact with which Company will work to test upgrades to the Platform. Describe the agreement between Customer and Development Partner. Include details on Development Partner’s response time requirements and other special instructions from Customer regarding such response times.

IV. SERVICE LEVEL AGREEMENT (SLA)

Company provides 24x7x365 unlimited access to the Platform ticket tracking system for a maximum of five (5) named Customer technical support contacts.

  

• Issue Tracking. Company will provide prioritized support services for the Platform to be accessed by Customer’s Technical Support Contacts 24 hours a day, 7 days a week, 365 days a year according to the chart listed below and related definitions as outlined in the section titled “Issue Priority Definitions.” In the event that Customer experiences a problem(s) with respect to the Platform, Customer shall utilize the Platform ticketing system for Priority 2-4 issues.   Such notification of the problem must include a clearly written description of the problem(s) and any steps that Customer can reasonably identify that would allow Company to replicate the problem(s).  The problem shall be promptly logged upon Company’s receipt of clear notification of the problem.  When engaging with Client Platform, Company & Customer shall mutually assign a priority, generally following the classifications found in the table below, and Company shall respond to the problem in accordance with the time frames set forth in the table below.  Company shall not re-assign a priority of a problem without the prior written consent of Customer.

• Issue Priority Definitions. Response times and the actions we take to resolve your problem are based on an assessment of the impact of the reported technical issue on your business. The more serious the business impact, the higher the assigned priority.  The following guidelines will assist you in determining the appropriate priority level.

Priority	Definition
1	A failure in infrastructure, which renders the service inoperative or causes the service to fail catastrophically, i.e. major system impact or system outage. This issue must be resolved before Customer can use the Service.  All Severity 1 Issues have no workaround, and Company and Customer shall work closely together to target bringing the Platform online within 2 hours, and will deliver a full and final diagnosis of the fault within 5 business days.
2	An error isolated to the infrastructure service which causes a serious impairment to a critical feature of the Service, but where overall functionality is not interrupted. Usually a workaround is available for this type of issue, but such is not always the case.
3	An issue that causes the failure of a non-critical aspect of the Customer infrastructure and a satisfactory work-around already exists but the presence of this issue will result in customer dissatisfaction.
4	An issue of minor significance, which results in a slight malfunctioning of a small part of the site.

• Response Times. Company shall undertake reasonable efforts to: (i) acknowledge receipt of a service request from Customer technical support contact within the Response Time. This will generally be via the same medium of communication by which the managed services request was reported and will: (i) provide a short status report to Customer within a reasonable time; and (ii) resolve the managed services Request by providing a remedy that could take the form of eliminating the defect, providing updates, or demonstrating how to avoid the effects of the defect with reasonable commercial effort.  Processing time for Company starts from the date and time when Company acknowledges receipt of a managed services Request. If the managed services request cannot be solved within a commercially reasonable timeframe, the managed services request may be escalated within the Company organization.

	Severity	Priority	Email (Opens Redmine Ticket)	Email (Opens Redmine Ticket)	Phone	Monitoring System Alerts
Business Hours	1	Blocker	Not supported / Must be a phone call	Not supported / Must be a phone call	30 Min Response <1 hour to begin work	30 Min Response <1 hour to begin work
	2	Critical	2 Hour Response <2 hours to begin work	Hour Response <2 hours to begin work	2 Hour Response <2 hours to begin work	2 Hour Response <2 hours to begin work
	3 & 4	Major, Minor, Trivial	8 Hour Response <24 hours to begin work	8 Hour Response <24 hours to begin work	8 Hour Response <24 hours to begin work	8 Hour Response <24 hours to begin work
Non-Business Hours	1	Blocker	Not supported / Must be a phone call	Not supported / Must be a phone call	30 Min Response <1 hour to begin work	30 Min Response <1 hour to begin work
	2	Critical	Respond next business day	Respond next business day	Respond next business day	Respond next business day
	3 & 4	Major, Minor, Trivial	Respond next business day	Respond next business day	Respond next business day	Respond next business day

* Business Hours are considered 8AM – 5 PM CST, Monday thru Friday.

• System Performance. Page load performance will be measured to create a baseline response time for elements of the Platform.  These tests are intended to provide a measure for the ongoing maintenance and tuning of the Production Publish environment.  They are not intended to interfere with the requirement that the Customer will need to acquire additional server resources as the site grows in usage and/or complexity.

• • Measurement Limitations:

• • These elements will be measured at pre-defined locations located as logically close to the Customer selected Cloud Regions (currently US East) as possible.

• • From time to time, events unrelated to the Platform or Hosting Provider may cause delays and increased latency across the Internet.  Both sides acknowledge that Company is technically responsible for performance to the outer edge of the peering ring at each Cloud Region, not to these measurement locations, and that it is possible, though unlikely, that the below targets cannot be met through no fault of Company for periods of time for reasons including, but not limited to, DNS failure or delay, Internet carrier failure, Internet wide attacks or unrest, etc.

• • While these tests are designed to proxy the end user’s experience, both sides acknowledge that a wide variety of other variables impact desktop performance, including local and long distance connection speed, latency, packet loss, client system performance, etc.

• • These elements will be measured automatically using scripts developed by Company on a commercially reasonable effort basis and operated from automated monitoring platforms at Company’s sole discretion.  The Customer can conduct their own independent testing, but if discrepancies are found both parties will review the results and come to a mutual decision on action.  The Customer will provide system access and login authorization as required for reasonable testing.

• • These terms shall be measured during periods of moderate (i.e. less than 50%) CPU and IO load or as otherwise agreed upon by the parties.  In the event that the servers exceed moderate CPU load during these tests, it is the responsibility of the customer to obtain additional system resources or otherwise work with Company to tune the platforms.

• • In order to ensure that adequate performance can be achieved, Company will perform an initial test on a representative sample of pages at load levels greater than the maximum expected holiday load levels and confirm that the rendering process is capable of the desired level of response. Company shall work with Customer to determine the necessity and timing of future performance tests, and if required, Company shall define and perform required testing.

• • This shall apply to all Customer market, business, foundation and sponsorship sites.

V. PROPRIETARY RIGHTS AND RESTRICTIONS

• Restrictions to Use of Company Managed Services. Customer will not allow any end user or third party under its direction and control to: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct any source code or underlying ideas or algorithms of the Customer Platform by any means whatsoever, replicate the functionality of the Customer Platform for any purpose, to the extent such restriction is allowable under applicable law, (ii) license, share, or transfer the Customer Platform to any third party, or (iii) disclose any performance information or analysis (including, without limitation, benchmarks) from any source relating to the Customer Platform without the Company’s prior consent, which shall not be unreasonably withheld, conditioned, or delayed. Except as provided under the applicable Sales Order, Customer will not authorize or permit any unaffiliated third party to use the Customer Platform without Company’s prior written consent.

• Company Proprietary Technology.   Except as expressly licensed or assigned in this Agreement, Company retains all rights, title and interest in (including but not limited to all confidentiality, copyright, trade secret, and patent rights) to the Company Proprietary Technology, and any and all upgrades, enhancements, modifications or derivative works of any of the foregoing.  “Company Proprietary Technology” means products, services or technology to the extent owned or developed by or for Company, including but not limited to software code and algorithms.

• Performance Data.  Customer understands and agrees that Company will be tracking performance data related to the Services for use in review and case study purposes.  So that Company may improve and promote its offerings, Company may aggregate Service related data so that it is non-personally identifiable with respect to Customer and end users (“Anonymous Data”).  Customer agrees that Company may use, execute, and display the Anonymous Data.   

• Publicity.  Company shall be permitted to disclose, including in public advertising and Company’s advertising/marketing portfolio, in summary form, the nature of the work performed for Customer under the applicable Statement of Work, and Company shall be permitted to disclose or display Customer’s names, brands, logos, and other likenesses, in addition to a description, name, screenshots, logos, and icons of the work performed under the applicable Statement of Work.

VI. CONFIDENTIALITY

• Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Company’s Confidential Information includes, but is not limited to, the Platform. Confidential Information of each party includes the terms and conditions of this Agreement and all Sales Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Sales Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Sales Order to a subcontractor to the extent necessary to perform Company Managed Services.

• Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

VII. NON-SOLICITATION

• Covenant Not to Solicit Personnel.  The Parties agrees that they will not, during the term hereof and for a period of two (2) years after the termination or expiration of this Agreement, directly or indirectly, solicit for employment, attempt to employ or affirmatively assist any other person or entity in employing or soliciting for employment any person employed or hired as an employee by the other Party or engaged by the other Party as an independent contractor representative.

• Covenant Not to Solicit Customers.  The Parties may contract with the other Party’s competitors provided that no Confidential Information is disclosed or compromised.  In addition, during the term hereof and for a period of two (2) years after the termination or expiration of this Agreement, the Parties shall not solicit the other Party’s customers directly or indirectly for the purposes of encouraging such customers to sell a product or service that is competitive to the other Party’s products or services.

• Covenant Not to Compete.  The Parties’ Confidential Information has been established through great expense to the Parties, and is one of the Parties’ most important assets.  The Parties hereby agree that following the termination of this Agreement, for any reason, the Parties shall not engage directly or indirectly in any business substantially similar to or in competition with the business of the other Party, its successors or assigns for a continuous period of two (2) years (“Non-Compete Period”) commencing on termination of this Agreement.  During the Non-Compete Period, the Parties shall not, individually or jointly with others, directly or indirectly, whether for the Parties’ own account or for that of any other person or entity, engage in or own or hold any ownership interest in any person or entity engaged in business substantially similar to or in competition with the business of the other Party.

• Liquidated Damages.  Because the amount of damages caused by a breach of this section will be difficult to determine, the Parties agree that if either Party breaches this section, the breaching Party shall be subject to liquidated damages in the amount of Fifty Thousand Dollars ($50,000.00) for each breach.  The Parties agree that this is a reasonable sum given that it is impractical or extremely difficult to establish the amount of damages that would actually be suffered if either Party were to breach this Agreement.

• Notification.  The Parties agree to notify any new employees, contractors, officers, directors or managers who may be affected by, or whose responsibilities may relate to, this section about the Party’s rights and obligations to the other Party hereunder and to ensure that such rights and obligations are complied with.

VIII. WARRANTIES

• Warranty of Authority; No Conflict.  Each Party warrants that it is authorized to enter into this Agreement and to perform its obligations hereunder, and that its performance hereunder shall not conflict with, limit or be contrary to any other agreement.

• Warranty of Company Managed Services.
  • Professional Manner.  Company warrants that all Services will be performed in a professional manner using qualified personnel.

• • Exclusive Warranty.

THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  EXCEPT WHEN OTHERWISE STATED IN WRITING, THE MATERIALS PRODUCED BY THE COMPANY AND PROVIDED TO CUSTOMER, AND THE CUSTOMER USER DATA PROVIDED BY CUSTOMER TO THE COMPANY, UNDER THE TERMS OF THIS AGREEMENT ARE PROVIDED “AS IS”, THAT IS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, REGARDING THE ACCURACY, COMPLETENESS, PERFORMANCE, MERCHANTABILITY, FITNESS FOR USE, NONINFRINGEMENT OR OTHER ATTRIBUTES OF SUCH MATERIALS AND CUSTOMER USER DATA.

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COMPENSATORY, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF USE OF ANY SOFTWARE OR HARDWARE, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST DATA, LOST PROFITS OR REVENUE, ARISING OUT OF OR RELATED TO THE AGREEMENT, OR OF THE PERFORMANCE OR BREACH THEREOF, EVEN IF ADVISED OF THIS POSSIBILITY.

• • Non-Infringement.  The Parties represent and warrant that their disclosure and delivery of any Products, Services, information, documents, software and other materials, and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, without limitation, any copyright, known patent or trade secret right.

IX. INJUNCTIVE RELIEF AND INDEMNIFICATION

• Injunctive Relief and Enforcement.  The restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Parties and are considered by each Party to be reasonable for such purpose.  The Parties each agree that any actual or threatened breach of sections X, XI, and XII of this Agreement will cause the other Party substantial and irrevocable harm which cannot be fully remedied by monetary damages alone.  Therefore, in the event of any such breach (or threatened breach), each Party agrees that the other, in addition to such other remedies which may be available, shall have the right to seek injunctive relief with the posting of a good and sufficient bond.  The seeking of any such injunction or order shall not affect either Party’s right to seek and obtain damages or other equitable relief.

• Indemnification.  Each Party shall defend, indemnify and hold harmless the other and its officers, shareholders, directors, management, business, employees, and independent contractors against any claim, damage, liability or action, including reasonable costs and attorney’s fees, arising out of the other Party’s breach of any term of this Agreement.

X. NOTICE

• Notice.  Any notice required or permitted under this Agreement is to be given in writing, and where applicable, to the Company at its then principal office, and as to the Customer at the address listed in this Agreement or at such other address either Party may specify by notice tendered via:

• • delivery in hand;
  • registered or certified mail, return receipt requested;
  • FedEx or other form of expedited mail that provides for delivery to the sender of a signed receipt.

Except as may otherwise be expressly provided in other sections of this Agreement, notice so sent shall be effective upon receipt.

XI. MISCELLANEOUS

• Collection of Fees and Costs.  In the event it is necessary for the Company to hire an outside company or person to collect or to institute suit for the collection of fees and costs due to the Company by the Customer, the Customer will pay, in addition to all amounts due, all expenses, attorney’s fees and court costs incurred by the Company in connection therewith.

• Assignment.  This Agreement, and the rights and obligations hereunder, shall not be assigned or transferred by either Party without the prior written consent of the other except in the event the assignee is a third party that owns a majority interest (Fifty-One Percent or more) in the assignor.

• Entire Agreement.  This Agreement and any Exhibits, attachments or amendments thereto, constitutes the entire agreement of the Parties with regard to the subject matter hereof, and supersedes all previous written or oral representations, communications, agreements and understandings between the Customer and Company.  This Agreement may be amended or extended only by a writing signed by both Parties.  Paragraph headings, if any, are for convenience only and are not intended to expand or restrict the scope or substance of the provisions of this Agreement. This Agreement may be executed in any number of counterparts, each of which when so executed shall constitute an original, but such counterparts shall together constitute one and the same agreement. Signatures submitted via facsimile and/or internet-based service where an image of the signature is delivered electronically shall be considered as having the same binding force and effect as an original.

• Binding Effect.  This Agreement is binding upon and shall inure to the benefit of the Customer and the Company and their respective heirs, executors, administrators, legal representatives, successors and assigns, including any entity, corporation or company with which or into which the Customer may be merged or which may succeed to its assets or business.

• Survival.  Sections V through IX, shall survive the termination or other expiration of the Parties’ engagement with the other, notwithstanding the reason for such termination or other expiration.

• Applicable Law.  This Agreement shall be governed by, and construed in accordance with the law of the State of Florida, without regard to any choice of law principle that would dictate the application of the law of another jurisdiction.

• Consent to Jurisdiction.  The Parties to this Agreement hereby irrevocably consent and submit to the exclusive jurisdiction of the courts of Miami-Dade County, State of Florida or United States Federal Court in the Southern District of Florida, in any action or proceeding of any type whatsoever arising out of or relating to this Agreement.

• No Waiver.  No delay or omission by a Party in exercising any right under this Agreement will operate as a waiver of that or any other right.  A waiver or consent given by either Party on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion.

• Severability.  The provisions of this Agreement are severable, and invalidity of any provision does not affect the validity of any other provision.  Except as provided elsewhere in this sub-section, any invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provision(s) held to be invalid or unenforceable.  In the event that any court of competent jurisdiction determines that any provision of this Agreement or the application thereof is unenforceable because of its duration or scope, the Parties agree that the court in making such determination will have the power to reduce the duration and scope of such provision to the extent necessary to make it enforceable, or otherwise reform such provision, consistent with the intent of the Parties, and that the Agreement so modified is valid and enforceable to the fullest extent permitted by law.

• Force Majeure.  Neither Party shall be responsible for any failure to perform, or delay in performing any of its obligations under this Agreement, where and to the extent that such failure or delay results from causes outside the control of such party.  Such causes shall include, without limitation, delays caused by the other party, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, wars, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotions, accidents, or electrical, internet, or telecommunication outage.