MSA

Last Updated: May 9, 2023

MASTER TERMS AND CONDITIONS

PLEASE READ CAREFULLY: THESE MASTER TERMS AND CONDITIONS APPLY TO THE SERVICES OFFERED BY iBase-t, INC. (“iBase-t” OR “COMPANY”) PURSUANT TO AN ORDER FORM (THE “ORDER FORM”) ENTERED INTO BY iBase-t AND THE CUSTOMER SPECIFIED ON THE ORDER FORM (THE “CUSTOMER”). THESE TERMS AND CONDITIONS ALONG WITH THE EXHIBITS ATTACHED HERETO AND THE ORDER FORM (COLLECTIVELY, THE “AGREEMENT”) EXCLUSIVELY GOVERN THE LEGAL RELATIONSHIP BETWEEN THE CUSTOMER AND iBase-t IN RELATION TO THE SOFTWARE, SUPPORT AND SERVICES OFFERING SET FORTH IN THE ORDER FORM (THE “SERVICES”). COMPANY MAY UPDATE THESE TERMS FROM TIME TO TIME AND THE CUSTOMER AGREES THAT ANY OF THE FOLLOWING ACTIONS BY CUSTOMER’S REPRESENTATIVES REPRESENT THE CUSTOMER’S AUTHORIZED CONSENT TO BE BOUND BY THIS AGREEMENT: (I) EXECUTING THE ORDER FORM WITH iBase-t, (II) RECEIVING, REGISTERING OR OTHERWISE USING THE SERVICES, OR (III) BY CLICKING ON THE “ACCEPT” BUTTON UPON REGISTRATION. IF THE CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE CUSTOMER SHOULD NOT USE THE SERVICES IN ANY MANNER.

1. SERVICES AND SUPPORT

1.1 Company agrees that other Customer affiliates (business entities of which Customer owns or controls more than (fifty percent) 50% of the voting rights or the controlling body of the business entity) may use the Services; provided that prior to any affiliate’s use of the Services each affiliate shall sign and deliver to iBase-t a mutually-agreeable appendix to the Order Form certifying its consent to be bound by, and liable to Company under, the terms of this Agreement.

1.2 Subject to the terms and conditions of the Agreement, iBase-t will provide Customer with the right to access and use the Services during the term of the Agreement, solely for Customer’s own business purposes. Customer’s rights are non-exclusive, non-transferable and non-sublicensable. Customer may access and use the Services only as permitted by the Agreement. Customer acknowledges that Customer is not receiving any ownership interest with respect to, the Services and Software (as defined below) or any intellectual property rights related to the Services and Software. Customer agrees to take commercially reasonable steps to ensure, through proper instructions, that all access to and use of the Services by Customer and Customer’s authorized users (the “Users”), or otherwise through Customer’s facilities, equipment, identifiers or passwords, will be in accordance with the terms of the Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, or the rights of any third party.

1.3 The Services include software products offered by Company, including any documentation relating to or describing such software, as well as improvements or updates provided by Company as part of its Support Policy, (collectively, the “Software”). Such Software is furnished to Customer under an individual, non-exclusive, nontransferable license solely for Customer’s own internal use in compliance with this license and all applicable laws and regulations. The Order Form shall dictate whether the license is granted on a perpetual basis or a subscription basis and whether the Software is installed on the premises of the Customer (and therefore hosted by Customer) or is hosted by iBase-t using a hosting service provider partner of iBase-t. Customer acknowledges that use and access restrictions for some or all Software’s programs, modules or components may be enabled, tracked and/or enforced by automated license monitoring and control software functions, built in to the Software or provided as separate packages, and that Software may automatically, without intervention or notice, partially or fully restrict use beyond the license limitations if such license limitations are exceeded or if these license monitoring and control functions are disabled, bypassed or otherwise circumvented. If any of the above instances occur, Software may fully cease to operate. Further, Customer acknowledges that compliance with license terms and restrictions is the contractual responsibility of the Customer, without reliance or dependence on the presence or correct operation of such automated license control mechanisms, and that the contractual limitations and responsibilities prevail. Except as may otherwise be permitted in writing by Company, Customer may not utilize license keys for production use, singly or in combination with multiple instances of the software programs, which would permit aggregate usage in excess of the contractually-authorized total licensed usage basis. Company may request Customer’s electronic audit records of user and other activity records collected and stored by the software.

1.4 Third party technology that may be incorporated in or appropriate or necessary for use with the Software as specified in the program documentation. Such third party technology may be licensed to Customer under the terms of the third party technology license agreement specified in the program documentation and/or referenced in the Order Form. If Customer wishes to obtain additional third party software, then Customer acknowledges it is Customer’s responsibility to make provisions for obtaining and properly licensing, as required, the additional software, and that Company is not obligated to provide such additional software, except as may be required by separate written agreement. Upon request, Company will provide identification of any such required additional software.

1.5 Customer will issue a unique User identification and password to enable each User to access and use the Services on behalf of the Customer. Customer is solely responsible for tracking the User IDs to specific Users and for ensuring the security and confidentiality of all User IDs. Customer acknowledges that it is fully responsible for all liabilities incurred through the use of any User ID and that any transaction under a User ID will be deemed to have been performed by Customer. Customer will immediately notify iBase-t of any unauthorized use of a User ID or any other breach of security known to it.

1.6 When making the Services available to Customer from a third party hosted location, iBase-t will use commercially reasonable efforts to provide the Services in accordance with the Service Level Agreement (SLA – iBase-t). For the avoidance of doubt, the Service Level Agreement is not applicable when the Software is installed on Customer’s premises.

1.7 iBase-t will use commercially reasonable efforts to provide the Services in accordance with the Support Policy (SUPPORT POLICY – iBase-t). If Customer licenses the Software via a perpetual license grant, the parties acknowledge that: (i) Customer must separately pay for Support (which Support fee shall be indicated in the Order Form) on an annual basis in order to receive Support; (b) payment for the first year of Support is not optional; (c) after the first year Support shall be optional, but the Support term shall automatically renew for additional annual Support periods, unless either party requests termination at least thirty (30) days prior to the end of the then-current Support term; (d) if Customer terminates Support but subsequently wishes to reinstate Support, it must pay all Support back-fees related to the period of time in which it did not receive Support (in addition to the applicable Support fees related to the foregoing Support period).

1.8 iBase-t will use commercially reasonable efforts to comply with its Data Privacy Policy (DPA – iBase-t).

1.9 If Company provides consulting and software development services or any integration, education, training or other services that, including without limitation any services (“Professional Services”) provided pursuant to a Statement of Work signed by the parties (“Statement of Work”), then Customer shall pay for such additional Professional Services at Company’s then current time and materials rates, unless otherwise agreed by the parties in writing or on an applicable Statement of Work. Technical implementation will be invoiced monthly based on time incurred. If at any point in the implementation process, Company determines that implementation hours incurred will exceed estimate by more than 10%, Company will notify Customer and obtain an amended Order before proceeding with implementation. Education sessions are invoiced the month following completion of each session. Travel time is billed at 8 hours per day of travel at the resource’s hourly rate for distances over 200 miles and are invoiced monthly at cost. Any travel under 200 miles will be billed at the actual time. Travel time is not included in the estimate in the Statement of Work and will not be included when reviewing the project budget. Travel expenses to be invoiced include, but are not limited to, airfare, lodging, meals, and ground transportation. Company shall determine, and shall be solely responsible for, the method and means of performing the Professional Services. Company may use subcontractors or independent contractors to perform any portion of the work to be performed under this Agreement. Company will supervise and be responsible for any work performed by a subcontractor or independent contractor. Any subcontractor and independent contractor engaged by Company will have a written agreement with Company that contains terms consistent with the confidentiality and intellectual property ownership provisions of this Agreement.

1.10 Customer will: (i) provide qualified personnel who are capable of performing Customer’s duties and tasks under the Statement of Work; (ii) provide Company with access to Customer’s sites and facilities during Customer’s normal business hours and as otherwise reasonably required by Company to perform the Professional Services; (iii) provide Company with such working space and office support (including access to telephones, photocopying equipment, and the like) as Company may reasonably request; and (iv) perform Customer’s duties and tasks under the Statement of Work, and such other duties and tasks as may be reasonably required to permit Company to perform the Professional Services. Customer will also make available to Company any software, data, information and any other materials required by Company to perform the Professional Services, including, but not limited to, any software, data, information or materials specifically identified in the Order Form (collectively, “Customer Materials”). Customer will be responsible for ensuring that all such Customer Materials are accurate, complete and timely delivered. Customer agrees that Company’s performance is dependent on Customer’s timely and effective satisfaction of Customer’s responsibilities described in this Agreement and the applicable Statement of Work and Customer’s decisions and approvals of Company’s work, as required. Each party will designate in the Statement of Work an individual who will be the primary point of contact (the “Primary Contact”) between the parties for all matters relating to the Professional Services to be performed thereunder. A party may designate a new Primary Contact by written notice to the other party.

1.11 If Customer is installing the Software at Customer’s premises, the Software shall be deemed delivered upon the earliest of (a) the date that iBase-t places the Software with a shipping agent, F.O.B. Shipping Point, for shipment to the delivery address indicated by Customer, (b) the date iBase-t provides Customer electronic access to the Software by, for example, providing Customer a URL, where the Software is available for immediate electronic download along with access codes permitting download and access to the Software, or (c) the date that Customer actually receives the Software.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 As a condition of Customer’s use of the Services, Customer agrees not to: (a) access, tamper with, or use any non-public areas of iBase-t’s systems or said system’s providers; (b) attempt to probe, scan, or test the vulnerability of iBase-t’s systems or any related system or network or breach any privacy, security or authentication measures; (c) copy, reverse engineer or attempt to discover the underlying source code or algorithms of the Software (as defined herein) ; (d) provide access to or utilize the Services under a time-share or service bureau arrangement or in any other manner, which would permit any third party, other than the Users, to, directly or indirectly, utilize or otherwise benefit from the Services, whether or not for monetary or other consideration, or access the Service in order to build any commercially available or competing product or service; (e) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing iBase-t’s systems or providers; or (f) impersonate or misrepresent affiliation with any person or entity. iBase-t will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and security-related issues, to the fullest extent of the law. iBase-t may involve and cooperate with law enforcement authorities in prosecuting Users who violate these terms. Customer acknowledges that iBase-t has no obligation to monitor Users’ access to or use of the Services, but has the right to do so for the purpose of operating the Services, to ensure their compliance with these terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.
2.2 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.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with the Agreement and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless iBase-t 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.
2.4 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.
2.5 Customer shall (i) be responsible for the accuracy, quality and legality of Customer Data (as defined below) and for the means by which Customer acquired Customer Data, and (ii) warrant that Customer Data does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of publicity and privacy. iBase-t is not responsible for any public display or misuse of Customer Data. Customer hereby grants iBase-t a worldwide, non-exclusive, royalty-free license during to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and index Customer Data to provide the Services to Customer.

3. SOFTWARE DEVELOPMENT KIT (SDK)

3.1 In the event iBase-t provides Customer with access to a software development kit (“SDK”) API, then iBase-t grants Customer a non-exclusive, worldwide, non-transferable, limited license to access our such SDK API and documentation only as necessary to develop, test and support an integration of Customer’s applications with iBase-t’s Services. The duration of such license shall correlate to the duration of the license to use iBase-t’s Services in the Agreement.
3.2 Customer may not sell, rent, lease, sublicense, redistribute, or syndicate access to the SDK API. Further, Customer will not: (A) access our the SDK API or documentation in violation of any law or regulation; (B) access the SDK API in any manner that (i) compromises, breaks or circumvents any of iBase-t’s technical processes or security measures associated with its proprietary services or products, (ii) poses a security vulnerability to customers or users of iBase-t’s services or products, or (iii) tests the vulnerability of iBase-t’s systems or networks; (C) access the SDK API or documentation in order to replicate or compete with iBase-t’s proprietary services or products; (D) attempt to reverse engineer or otherwise derive source code, trade secrets, or know-how of the SDK API or proprietary services or products; or (E) attempt to use the SDK API in a manner that exceeds rate limits or other limitations imposed on iBase-t’s proprietary services or products. The SDK API, in whole or in part, in all forms, including any modifications thereto, is the sole and exclusive property of iBase-t as well as any code developed through use of the SDK API.
3.3 Customer agrees and acknowledges that iBase-t has no support or maintenance obligations for any code developed using the SDK API and iBase-t disclaims any outputs or results created by any such code. The parties may contract separately for iBase-t to provide custom-support services as professional services deliverable.
3.4 IBASET PROVIDES THE SDK API “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE.” CUSTOMER EXPRESSLY AGREE THAT ACCESS TO THE SDK API IS AT ITS SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IBASET MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SDK API AND DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, (3) WARRANTIES OR CONDITIONS THAT ACCESS TO THE SDK API WILL BE UNINTERRUPTED OR ERROR-FREE, OR (4) THAT THE SDK WILL INTEGRATE OR OPERATE WITH ANY CUSTOMER-DEVELOPED SOFTWARE. IBASET DOES NOT WARRANT THAT THE SDK API, ITS SERVERS OR E-MAILS SENT ARE ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME, OR ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 

4. CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1 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.
4.2 Customer shall own and retain all right, title and interest in and to Customer Data and Customer Materials. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all modifications, derivative works, improvements, enhancements or modifications thereto and (b) all intellectual property rights related to any of the foregoing. Customer agrees not to take any actions, which adversely affect Company’s intellectual property rights in the Software.
4.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze anonymized 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.

5- PAYMENT OF FEES

5.1 Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Fees are non-refundable and non-cancellable. If Customer’s use of the Services exceeds the authorized limit set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Unless specified otherwise in the applicable Order Form, subscription fees (and, if Support is being provided separately under a perpetual license, Support fees) are subject to annual increases during the Term which on average may not exceed the greater of 5% per year. Company will notify Customer of any increase at least 30 days prior to the annual billing cycle. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term (as defined below) or thencurrent renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) 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 Company’s customer support department.
5.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company fifteen (15) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

6. TERM AND TERMINATION

6.1 Subject to termination as provided in Section 5.2, this Agreement is for the initial period specified in the Order Form (the “Initial Term”), and shall be automatically renewed for additional annual periods (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2 After the Initial Term, and 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. Upon any termination, Company will make all Customer Data available to 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. Termination of this Agreement or the relevant Order Form shall terminate Customer’s right to use or access the Software, regardless of whether it is licensed on a perpetual basis or is installed at Customer’s premises.

7- WARRANTY AND DISCLAIMER

Company shall perform the Services in a professional and workmanlike manner, in accordance with its SLA and Support Policy and the Software shall materially conform to its documentation. In the event that the Service or Software fails to conform to the warranties set forth herein in any material respect, Company shall correct such failure to perform as warranted in a reasonable period of time without delay, provided that Customer reports deficiencies in writing to Company within thirty (30) days of the first date the deficiency is identified by Customer. Customer agrees that this is the sole and exclusive remedy provided by Company in connection with the Service. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, THE SERVICE AND SOFTWARE ARE PROVIDED AS-IS AND COMPANY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AS TO ANY MATTER WHATSOEVER OR ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR ANY APPLICABLE ORDER FORM, COMPANY AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY THAT ALL ERRORS HAVE BEEN OR CAN BE ELIMINATED FROM THE SERVICE OR SOFTWARE, THAT THE SERVICE OR SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR LATENCY, OR THAT THE SERVICE OR SOFTWARE WILL OPERATE WITH ANY NETWORK, HARDWARE OR THIRD PARTY SOFTWARE. THE WARRANTY HEREIN IS LIMITED ONLY TO CUSTOMER AND ITS AFFILIATES AND EXCLUDES ANY THIRD PARTY.

8- INDEMNITY

Company shall hold Customer harmless from liability to third parties resulting from infringement by the Services 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 sole control over defense and settlement. 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 Services 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 Services, 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 Services. THE FOREGOING IS THE SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT.

9- LIMITATION OF LIABILITY

EXCEPT FOR A PARTY’S INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY OBLIGATIONS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR MISAPPROPRIATION OF INELLECTUAL PROPERTY: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR ANY DELIVERABLES (INCLUDING CUSTOMER SPECIFIC DELIVERABLES) PROVIDED BY COMPANY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) A PARTY’S TOTAL LIABILITY HEREUNDER FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED FEES PAID OR PARYABLE TO COMPANY BY CUSTOMER IN THE PRECEDING TWLEVE MONTHS UNDER THE ORDER FORM GIVING RISE TO ANY LIABILITY HEREUNDER. THE LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING SECTIONS ON INDEMNIFICATION, WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES, WHICH IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO CUSTOMER IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

10- GOVERNING LAW; DISPUTES

This Agreement will be governed and construed in accordance with the laws of the State of California, without regard to its conflict of law provisions. The parties will first attempt to resolve disputes by good faith discussions. Any dispute arising under or in connection with the Agreement or related to any matter which is the subject of the Agreement shall be subject to the exclusive jurisdiction of the state and/or federal courts located in Orange County, California.

11- MISCELLANEOUS

During the term of this Agreement and for a period of twelve (12) months thereafter, Customer will not recruit or otherwise solicit for employment any Company employees or subcontractors who participated in the performance of Services without Company’s express prior written approval. 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 Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. The 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 Company in any respect whatsoever. 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. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the effective date of the Order Form, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.

EXHIBIT A

SPECIFICATIONS AND SCOPE OF SERVICES:

1- Responsibility Matrix:

RACI Legend  
RESPONSIBLE (R) People or stakeholders who do the work. They must complete the task or objective or make the decision on what needs to be done.
ACCOUNTABLE
(A)
Person or stakeholder who is the “owner” of the decision or outcome. He or she must sign-off or approve when the task, objective or decision is complete.
CONSULTED (C) People or stakeholders who need to give input before the work can be done and signed-off on.
INFORMED (I) People or stakeholders who need to be kept “in the picture.” They need updates on progress or decisions, but they do not need to be formally consulted, nor do they contribute directly to the task or decision.
Task Description iBase-t Customer
AWS weekly monitoring, and Account Management A/R I
Solumina environment supervision A/R I
Solumina Help Desk/Zendesk A/R R
Installing Solumina Hot Fixes A/R C
Monthly Solumina performance and status reporting A/R I
Adding / Deleting users I A/R
Solumina Applications 24/7 Service Outage Hotline A/R I
Modify Local Users (Password Reset) I A/R
OS Update/Patch Installation A/R I
Application Testing C A/R
Installation and patching of Unsupported Software R A
Solumina Application License Management C A/R
Access to Cloud Management Platform R A
Anti-virus software maintenance A/R C
Queueing System Monitoring R A
Database License Management R A
Failover management and testing R A
Active Directory User Account setup and Management C A/R
Connectivity between ERP, PLM or other non Solumina products C A/R

2- Exceptions:

• Service fees DO NOT cover:

(i) the purchase or installation of any additional software other than the iBase-t Solumina software; and
(ii) maintenance or administration of the network or any other hardware owned by the Customer.
(iii) Solumina Packaged and Custom training
(iv) Database Tuning
(v) Promoting new or modified solution components to Production
(vi) Consulting support with custom configurations
(vii) DB Data Management (add/remove/edit)