Transform Enterprise Performance in the Cloud

SOFTWARE AS A SERVICE LICENSE AGREEMENT

TERMS AND CONDITIONS

This Agreement governs Client’s acquisition and use of Host Analytics’ Application Services as well as Host Analytics’ provision of the Application Services.  Client acknowledges that it may not access the Application Services if Client is a direct competitor of Host Analytics or if Client is accessing the Application Services for the purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

1. Definitions. 

1.1. “Affiliate(s)” means any entity which directly or indirectly, is controlled by, or is under common control with the subject entity.  “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.   For clarification purposes, the use of the word “Client” in this Agreement is inclusive of Client company and its Affiliates, provided Client has the authority to bind such Affiliate to the terms and conditions of this Agreement.

1.2. “Application Services” means the generally available Web-based, on-line, hosted software listed on an Order Form including, without limitation, all corrections, updates, modifications, releases, versions, and enhancements to such software that may hereafter be generally released by Host Analytics, but excluding Data.

1. “Client Content” means all electronic data or information submitted by Client to the Application Service.

1. “Start Date” means the date on which the Application Service specified in an Order Form is first made available to Client.

1. “Data” shall mean the third party data made available to Client with the Application Service as specified in one or more Order Forms or the Documentation.

1. “Documentation” means Host Analytics’ then current guides and manuals published by Host Analytics and made generally available by Host Analytics for the Application Service.

1. “Evaluation Service” means the evaluation version of the Application Service that may be provided to Client through registration on Host Analytics’ website.  Such Evaluation Services shall be used by Client only for the limited purpose of establishing the specifications for future purchases of the Application Services from Host Analytics and Client agrees to use the Evaluation Service for no other purpose.  Any and all test results or performance data relating to the Evaluation Service shall be the Confidential Information of Host Analytics. 

1. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

1. “Order Form” means the ordering documents for Client’s purchases from Host Analytics that are executed hereunder by the parties from time to time.  The initial Order Form memorializing Client’s first purchase is set forth in the first section of this Agreement. All Order Forms shall be deemed incorporated herein.

1. “Subscription Term” means the period of time that Client may use and access the Application Service beginning on the Start Date and as set forth in the applicable Order Form.  The initial Subscription Term for the Evaluation Service shall be set forth on the registration page of Host Analytics’ website subject to Host Analytics right to terminate such Subscription Term at any time at Host Analytics sole discretion.  The Application Service may automatically deactivate and become non-operational at the end of the Subscription Term, and Client shall not be entitled to access the Application Services unless the Subscription Term is renewed. 

1.11 “Users” means individuals who are authorized by Client to use the Application Services, for whom subscriptions to the Application Service have been purchased, and who have been supplied user identifications and passwords by Client (or by Host Analytics at Client’s request).  Users may include but are not limited to employees, consultants, contractors and agents of Client, Affiliates, or third parties with whom Client transacts business. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Application Services.

2. Grant of License.

1. Grant.  Subject to the terms and conditions of this Agreement, Host Analytics hereby grants to Client a non-exclusive and nontransferable license to, during any Subscription Term, (a) access and use the Application Services and Data via the internet, and (b) use the Documentation provided by Host Analytics.  Client agrees that its purchase of User subscription(s) for the Application Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Host Analytics with respect to future functionality or features.

1. Restrictions.  The license granted in Section 2.1 above is conditioned upon Client’s compliance with the terms and conditions of this Agreement.  Client may use the Application Services and Data solely for its own internal business purposes, in compliance with applicable law, and shall not:  (a) permit any third party to access the Application Services or Data except as permitted herein or in an Order Form, (b) license, sublicense, sell, resell, rent, lease, transfer, distribute, use the Application Services or Data for commercial time sharing, outsourcing or otherwise commercially exploit the Application Services or Data;  (c) create derivative works based on the Application Services or Data; (d) modify, reverse engineer, translate, disassemble, or decompile the Application Services or Data, or cause or permit others to do so; (e) copy, frame or mirror any content forming part of the Application Services or Data, other than on Client's own intranets or otherwise for its own internal business purposes; (f) access the Application Services or Data in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Application Services or Data; and (g) remove any title, trademark, copyright and/or restricted rights notices or labels from the Application Services, Data or Documentation.

1. Reserved Rights.  Host Analytics hereby reserves all rights in and to the Application Services not expressly granted in this Agreement.  Nothing in this Agreement shall limit in any way Host Analytics' right to develop, use, license, create derivative works of, or otherwise exploit the Application Service or to permit third parties to do so.

1. Free Trial.  If Client registers on the Host Analytics website for a free trial, Host Analytics will make one or more Evaluation Services available to Client on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Client registered or are registering to use the applicable Evaluation Service, (b) the start date of any Application Services ordered by Client, or Host Analytics’ termination of such Evaluation Service. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.  NOTWITHSTANDING SECTION 7 (WARRANTIES AND DISCLAIMERS) AND SECTION 9.1 (INDEMNIFICATION BY HOST ANALYTICS) DURING THE FREE TRIAL THE EVALUATION SERVICES ARE PROVIDED (A) “AS-IS” WITHOUT ANY WARRANTY AND (B) WITHOUT THE INDEMNITY DESCRIBED IN SECTION 9.1.

3. Use of Services.

1. Host Analytics Responsibilities. The services provided to the Client herein are subject to the Host Analytics’ then current Service Level Addendum set forth at www.hostanalytics.com/support/sla.pdf.  Additionally, Host Analytics will routinely backup (not less frequently than once-per-day) all Client Content and use industry standard security measures to maintain Client’s Users’ login information (e.g., User IDs and passwords) for the Application Services in confidence. All storage, backup and archival media, containing Client Content shall be (a) physically stored in a secured area (b) logically separated from any other customer’s data and (c) protected by industry standard encryption methods.   

1. Client Responsibilities.  Client shall be responsible for Users’ compliance with this Agreement and be responsible for the Client Content.  Client shall not (i) use the Application Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the Application Services to store or transmit Malicious Code, (iii) interfere with or disrupt the integrity or performance of the Application Services, Data or third party data contained therein, or (iv) attempt to gain unauthorized access to the Application Service or its related systems or networks. Any conduct by Client that in Host Analytics’ discretion restricts or inhibits any other Host Analytics customer from using or enjoying the Application Services is expressly prohibited.  Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Application Services or Data, and notify Host Analytics promptly of any such unauthorized access or use. Client shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Application Services and all charges related thereto.

4. Fees.

1. Payment.   Client agrees to pay Host Analytics fees in accordance with the amounts and dates specified on the applicable Order Form.  Except as otherwise provided: (i) the subscription fees set forth in each Order Form hereunder shall be fixed during the Subscription Term of such Order Form, including for purchases of additional Users; (ii) the Subscription Term and services fees set forth in each Order Form hereunder will be invoiced upon execution of such Order Form.  Except as otherwise specified herein, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, payment terms are quoted from the date of invoice and fees paid are non-refundable. Any payment not received from Client by the due date may accrue, at Host Analytics’ discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower; from the date such payment was due until the date paid.

1. Taxes.  If Host Analytics has the legal obligation to pay or collect taxes for which Client is responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of performance of Host Analytics under this Agreement, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Host Analytics with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.3. Suspension of Services.  If any amount owed by Client is 30 days or more overdue, Host Analytics may, with 7 days’ prior notice to Client, without limiting its other rights and remedies, suspend Application Services and access to Data until such amounts are paid in full. Host Analytics shall not exercise its rights under this Section 4.3 if the applicable charges are under reasonable and good-faith dispute and Client is cooperating diligently to resolve the dispute.

5. Intellectual Property Rights.

1. General.  All right, title, and interest in and to the Application Services, Host Analytics’ Confidential Information, Data and Documentation, including, without limitation, all modifications, enhancements and intellectual property rights thereto shall belong solely to Host Analytics and/or its applicable suppliers.

1. Ownership of Client Content.  Client exclusively owns all right, title and interest in and to the Client Content and Client Confidential Information.  In the event of termination or expiration of this Agreement or any applicable Order Form, and if legally permissible and requested by Client within thirty (30)  days of such termination or expiration, Host Analytics agrees to: (a) return to the Client the Client Content; or (b) destroy or permanently erase the Client Content.   After such 30-day period, Host Analytics will have no other further obligation to maintain or provide access to Client Content.

1. Suggestions.  Host Analytics shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Application Services any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the Application Services.

6. Confidentiality.

6.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Client Content, the Application Services, business and marketing plans, technology, financial and technical information, product designs, and business processes.  Confidential Information (except for Client Content) shall 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

6.2. Confidentiality.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.

6.3. Protection.  Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

6.4. Compelled Disclosure.  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

6.5. Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

7. Representations and Warranties.

1. Mutual Warranties.  Each party represents and warrants that (a) it has the legal power to enter into this Agreement, and (b) it will not transmit to the other party any Malicious Code.

1. Host Analytics Warranty.  Host Analytics warrants during the Subscription Term that the Application Services will be free of material defects and will function in substantial conformance to its Documentation. Host Analytics does not make any representations or warranties that the functions performed by the Application Services will meet Client’s requirements, that the operation of the Application Services will be uninterrupted or error free, or that all defects in the Application Services will be corrected.  To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND HOST ANALYTICS DISCLAIMS ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT HOST ANALYTICS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE).  TO THE EXTENT PERMITTED BY APPLICABLE LAW, HOST ANALYTICS FURTHER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. THE DATA IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.  No action for breach of the limited warranty set forth in this Section 7.2 may be commenced more than one (1) year following the expiration of the applicable Subscription Term.

8. Damages and Limitation of Liability.

8.1. Consequential Damages.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE APPLICATION SERVICES OR THE DATA, EVEN IF EITHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2. Limitation of Liability.  IN ALL EVENTS, HOST ANALYTICS’ AGGREGATE LIABILITY TO CLIENT FOR CLAIMS RELATING TO THIS AGREEMENT OR THE APPLICATION SERVICES, WHETHER FOR BREACH OF CONTRACT OR IN TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE GREATER OF A) THE AMOUNT ACTUALLY PAID BY CLIENT TO HOST ANALYTICS HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY BEFORE THE CLAIM WHICH GAVE RISE TO THE LIABILITY OR B) THE ANNUALIZED SUBSCRIPTION VALUE AT THE TIME OF SUCH CLAIM.  THE LIMITATIONS SET FORTH IN THIS SECTION 8 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9. Mutual Indemnification. 

9.1. Indemnification by Host Analytics.  Subject to this Agreement, Host Analytics shall defend, indemnify and hold Client harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Client by a third party alleging that the use of the Application Services as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Client (a) promptly gives written notice of the Claim to Host Analytics; (b) gives Host Analytics sole control of the defense and settlement of the Claim (provided that Host Analytics may not settle or defend any Claim unless it unconditionally releases Client of all liability); and (c) provides to Host Analytics, at Host Analytics' cost, all reasonable assistance.

9.2. Indemnification by Client.  Subject to this Agreement, Client shall defend, indemnify and hold Host Analytics harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Host Analytics by a third party alleging that the Client Content, or Client's use of the Application Services in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; provided, that Host Analytics (a) promptly gives written notice of the Claim to Client; (b) gives Client sole control of the defense and settlement of the Claim (provided that Client may not settle or defend any Claim unless it unconditionally releases Host Analytics of all liability); and (c) provides to Client, at Client's cost, all reasonable assistance.

9.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this section.

10. Access and Monitoring.  Host Analytics may access Client’s account and Client Content as necessary to identify or resolve technical problems or respond to complaints about the Application Services.  Host Analytics shall also have the right, but not the obligation, to monitor the Application Services to determine Client’s compliance with this Agreement.  Without limiting the foregoing and with two (2) days prior notice, Host Analytics shall have the right to remove any material submitted to the Application Services that Host Analytics finds to be in violation of the provisions hereof. 

11. Term and Termination.

1. Term of Agreement.  The term of this Agreement commences on the Effective Date and continues until all Subscription Terms expire or are otherwise terminated.

1. Subscription Term and Renewal.  Client may use and access the Application Services and Data during the Subscription Term.  Subscription Terms shall automatically renew for additional periods of one (1) year at the list price in effect at the time of renewal unless either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the relevant Subscription Term. 

1. Termination.  A party may terminate this Agreement for cause (i) upon thirty (30) days prior written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein.

1. Effects of Termination.  Upon any expiration or termination of this Agreement, and upon expiration of the Subscription Term if Client does not renew in accordance with Section 11.2, the rights and licenses granted hereunder will automatically terminate, and Client may not continue to use the Application Services.  If the Agreement is terminated based upon Host Analytics’ uncured material breach, Host Analytics shall refund to Client any prepaid fees covering the remainder of its Subscription Term after the date of such termination.  If the Agreement is terminated based on Client’s uncured material breach, Client shall pay any unpaid fees covering the remainder of the Subscription Term(s) of all Order Forms after the effective date of such termination.  Termination of this Agreement shall not limit the parties from pursuing any other remedies available to it, including injunctive relief.

12. Provision of Services.  Host Analytics will provide Client with professional services, in accordance with the Professional Services for Application Services Implementation Exhibit attached hereto as Exhibit A, if such professional services are to be provided hereunder.

13. Miscellaneous.

1. General.  This Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement may enforce it. The parties are independent contractors, and no branch or agency, partnership, association, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.  Headings in this Agreement are for the convenience of the parties only.  Accordingly, they shall not constitute a part of this Agreement when interpreting or enforcing this Agreement.

1. Severability.  If any portion hereof is found to be void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

1. Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or subsequently all of its assets not involving a direct competitor of the other party.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

1. Entire Agreement; Breach and Waiver; Amendment.  This Agreement, including all exhibits and addenda hereto and Order Forms constitute the complete and exclusive understanding and agreement between the parties regarding their subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, relating to their subject matter.  Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the party against whom the waiver, modification or amendment is to be asserted.  To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail.  Notwithstanding any language to the contrary therein, no terms or conditions stated in a Client purchase order or in any other Client order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms shall be null and void. No waiver of any breach of this Agreement shall constitute a waiver of a subsequent breach, whether or not of the same nature.  All waivers shall be strictly construed.  No delay in enforcing any right or remedy as a result of a breach of this Agreement shall constitute a waiver thereof.  Accordingly, no course of conduct shall constitute an amendment or modification of this Agreement.

1. Force Majeure.  Subject to the further provisions of this Section, any delays or failures by either party hereto in the performance of the obligations hereunder shall be excused if and to the extent such delays or failures are caused by occurrences beyond such party’s reasonable control, including, without limitation, acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, and/or any other cause or causes, whether similar or dissimilar to those herein specified, which cannot reasonably be controlled by such party.  The period of excused performance pursuant to the foregoing shall be (and only shall be) the actual period during which such an occurrence continues.  Accordingly, neither party hereto shall have the right to terminate this Agreement for cause on account of a failure of the other party timely to perform its obligations hereunder during the period of such excused performance pursuant to the foregoing.

1. Federal Government End Use Provisions.  Host Analytics provides the Application Services, including related software and technology, for ultimate federal government end use solely in accordance with the following:  Government technical data and software rights related to the Application Services include only those rights customarily provided to the public as defined in this Agreement.  This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).  In the event that a government agency may need rights not conveyed under these terms, it must negotiate with Host Analytics to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

1. Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law.  Any legal actions or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Mateo County and the parties hereby consent to personal jurisdiction and venue therein.

1. Client Reference and Case Study. Either party may include the other's name and logo in customer or vendor lists including those customer or vendor lists used in press releases.  Client also agrees to consider the following upon reasonable request and with the help of the Host Analytics team: (i) serving as a reference and/or for hosting onsite reference visits; (ii) collaborating on press releases announcing or promoting the relationship and (iii) collaborating on case studies, business impact white papers or other marketing collateral.

1. Survival.  The parties’ rights and obligations under Sections 4 (Fees), 5 (Intellectual Property Rights), 6 (Confidentiality), 8 (Damages and Limitation of Liability), 9 (Mutual Indemnification), 11 (Term and Termination) and 13 (Other) shall survive the termination of this Agreement for any reason.

1. Notices.  All notices required or contemplated by this Agreement shall be in writing.  Notices from Client to Host Analytics shall be delivered or mailed to Host Analytics, Inc., 900 Island Drive, Suite 203, Redwood City, CA  94065, Attention: Client Contracts Administration, or emailed to Accounting@hostanalytics.com and notices from Host Analytics to Client shall be delivered or mailed to Client at the address given above.  Any notice to be given or served hereunder by either party shall be deemed given and received hereunder when delivered personally, emailed, sent by nationally recognized overnight delivery service, or three (3) days after being mailed certified mail, postage prepaid, to Client or Host Analytics in accordance with this Section.

1. Counterparts and Exchange by Email or Fax.  This Agreement may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.  The exchange of a fully executed Agreement (in counterparts or otherwise) by email or fax shall be sufficient to bind the parties to the terms and conditions of this Agreement.

EXHIBIT A

PROFESSIONAL SERVICES FOR APPLICATION SERVICES IMPLEMENTATION

A. Professional Services Provisions

1. Description of Professional Services. Overtime, Host Analytics may provide the services (“Professional Services”) and deliverables (“Deliverables") to Client as described in mutually agreed upon Statement(s) of Work.

2. Client’s Obligations.  Client agrees to provide assistance, cooperation, information, equipment, data, a suitable work environment and resources reasonably necessary to enable Host Analytics to perform the Professional Services.  Client acknowledges that Host Analytics’ ability to provide Professional Services as set forth herein may be affected if Client does not provide reasonable assistance as set forth above.

3. Project Management.  Each party shall designate a Project Manager who shall work together with the other party’s Project Manager to facilitate an efficient delivery of Professional Services.

4. Change Order.  In order to change the Description of Professional Services set forth above, Client will submit a written request to Host Analytics specifying the proposed changes in detail and Host Analytics will provide an estimate of the charges and anticipated changes in the delivery schedule that will result from the proposed change in Professional Services.  Host Analytics will continue performing the Professional Services in accordance with this Professional Services Attachment until the parties agree in writing on the change in scope of work, scheduling, and fees.

5. License.  Host Analytics grants Client a perpetual, non-exclusive, non-transferable, royalty-free license to use all developments created solely for Client under this Professional Services Attachment (“Service Developments”).

6. Proprietary Rights.  Host Analytics shall retain all title, copyrights, patents, patent rights, trade secrets, trademarks and other proprietary or intellectual property rights in the Service Developments.

7. Warranty.  Host Analytics warrants for ninety (90) calendar days from the performance of any Professional Services by Host Analytics pursuant to this Professional Services Attachment, that such Professional Services shall be performed in a manner consistent with generally accepted industry standards. Client must report in writing any breach of the warranty contained in this Section to Host Analytics during the relevant warranty period, and Client’s exclusive remedy and Host Analytics’ entire liability for any breach of such warranty shall be the re-performance of the Professional Services, or if Host Analytics is unable to perform the Professional Services as warranted, Client shall be entitled to recover the fees paid to Host Analytics for the nonconforming Professional Services.

8. Acceptance.  Upon completion of any Deliverable, Host Analytics shall submit the Deliverable to Client.  At Client’s request, Host Analytics will demonstrate to Client the functionality of the Deliverable.  Client shall be responsible for any additional review and testing of such Deliverable in accordance with any applicable acceptance criteria and test suites.  If Client, in its reasonable discretion, determines that any submitted Deliverable does not perform the functional requirements specified for such Deliverable in this Professional Services Attachment, Client shall have five (5) calendar days after Host Analytics’ submission of the Deliverable (“Acceptance Period”) to give written notice thereof to Host Analytics specifying the deficiencies in detail.  Host Analytics shall use reasonable efforts to promptly cure any such deficiencies.  After completing any such cure, Host Analytics shall resubmit the Deliverable for review and testing as set forth above.  Upon accepting any Deliverable submitted by Host Analytics, Client shall provide to Host Analytics a written acceptance of such Deliverable.  Notwithstanding the foregoing, if Client fails to reject any Deliverable within the Acceptance Period in the manner described above, such Deliverable shall be deemed accepted at the end of the Acceptance Period. In the event any Deliverable is not accepted by Client as specified above after the third submission and Acceptance Period, Client or Host Analytics may terminate this Professional Services Attachment without further liability to either party, provided however, that Client shall not be relieved of its payment obligations with respect to the accepted Professional Services delivered prior to any such termination. 

B. Payment Provisions

1. Fees.  Professional Services shall be provided under this Professional Services Attachment at the rates set forth in the applicable Order Form.

2. Payment Type.  The Professional Services specified above are provided either on a fixed fee or on a time and materials ("T&M") basis as described in the applicable Order Form and SOW.  For fixed fee engagements, Client shall pay Host Analytics the fees stated in the applicable Order Form plus all customary travel and living expenses (“Expenses”). For T&M engagements, Client shall pay Host Analytics for time spent performing such Professional Services at Host Analytics standard consulting rates, materials, and all Expenses associated with Host Analytics personnel traveling to Client’s site.  All Expenses will be pre-authorized in writing by Client.

C. Miscellaneous

1. Product Mix.  Client acknowledges that the Professional Services acquired hereunder were ordered separately from the Application Services described on the Host Analytics Order Form and Client may acquire either Application Services or Professional Services without acquiring the other.

2. Independent Contractor.  Both parties agree that Host Analytics is an independent contractor and, as such, neither Host Analytics nor its personnel shall be considered employee(s) of Client.  As a consequence, Client is neither liable nor responsible for withholding or deducting any sums for federal or state income taxes, social security, health, workers compensation, and disability insurance coverage, pension or retirement plan, or the like.

3. Non-Solicitation.  During the term of this Agreement and for a period of one year thereafter, Client agrees that it will not solicit for hire, on behalf of Client or any other organization, any employee or sub-contractor of Host Analytics, unless Client has first obtained Host Analytics' written consent.