Capriza Master License And Professional Services Agreement

Terms and Conditions, effective as of May 16, 2018

Last updated May 16, 2018

This Master License and Professional Services Agreement governs the use of Our Licensed Services, Support, and Professional Services and is entered into by and between Capriza, Inc., a Delaware corporation, located at 3000 El Camino Real, Suite 5-800, Palo Alto, California, 94306 USA and the company or other entity that is stated in the applicable Order Form (“You”).  This Master License and Professional Services Agreement and its Exhibits, Schedules, and other attachments shall be hereinafter collectively referred to as the “Agreement.” By using Our services, You consent to be bound by then-current version of this Agreement located at www.capriza.com/terms. If You are agreeing to these terms on behalf of a business, government agency or other organization, You represent and warrant that You have authority to bind that entity to this Agreement. The Effective Date of this Agreement shall be the same as the Effective Date for the applicable Order Form.

1. Definitions

Affiliate” means any entity which directly or indirectly controls, 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.

Capriza”, “We,” “Us” and “Our” means Capriza, Inc. located in Palo Alto, California.

Documentation” means user guides, operating manuals, training materials, product/service specifications as set forth in applicable Order Forms, technical manuals, support materials, in printed or electronic form, which are provided to Our customers in connection with their use of the Licensed Services.

Licensed Services” means the Edition(s) of our SaaS software programs, as identified and described in the applicable Order Form, together with Updates, Upgrades or any other modifications that are made commercially available by Us to our customers.

Order Form” means the Order Form document by which You place orders for the Licensed Services.

Privacy Policy” refers to Capriza’s privacy policies posted at www.capriza.com/privacy-policy/.

Professional Services” means the services that We may provide to You under an applicable Order Form to enable You and Your Users to better optimize the Licensed Services.

Source System” is an enterprise application, which serves as the source application or domain on top of which the Template can be created, customized, derived or extended from.

“Subscription” means a license to use the Licensed Services for a specified number of Users and Templates for a specified term, all as set forth in this Agreement and the applicable Order Form.

“Template” means a mobile optimized version of Your business process created by Your use of the Licensed Services resulting in a single transaction or operation (e.g. operating expense approval, capital purchase order approval, paid time off approval, equipment requisition approval, etc.) that has been published to Users in the production environment of the Licensed Services.  Your Licensed Services may be used to create and publish up to the number of Templates as identified in the applicable Order Form.  This number excludes all Templates in the development environment of the Licensed Services.

Users” means all individuals (a) for whom You have ordered Subscriptions to the Licensed Services under an applicable Order Form and (b) whom have been assigned by You to a user group or otherwise authorized or enabled by You access rights to use the Licensed Services.  Users may include Your employees, consultants, contractors and agents, and third parties with whom You transact business.

You” and “Your” means the specific entity stated above as the signatory to this Agreement and any additional Affiliates of such entity that are specifically listed in the applicable Order Form as being authorized to use or purchase Licensed Services under such Order Form.

Your Data” means all electronic data or information that You use in conjunction with the Licensed Services.

2. Licensed Services

2.1. Subject to the terms and conditions of this Agreement and the applicable Order Form, We hereby grant You a temporary, limited, non-exclusive, non-transferable, worldwide use license to access and use the Licensed Services solely for Your own internal business purposes.  We reserve the right to make modifications and enhancements to the Licensed Services from time to time.  You may make a reasonable number of copies of the Documentation provided that all proprietary markings are retained on all copies.

2.2. The Licensed Services may only be used by You.  By executing an Order Form for Licensed Services, or when You access the Capriza web site to use the Licensed Services, You are confirming Your acceptance of this Agreement, including any applicable Order Form(s).  Your licensing of the Licensed Service is not contingent on the delivery of any future functionality or features.

2.3. User Subscriptions.  Unless otherwise specified in the applicable Order Form, (i) the Licensed Services are purchased as User Subscriptions (“User Subscriptions”)  – one for each User – and may be accessed by no more than the specified number of Users, and in addition, such Users cannot access more than the specified number Templates as set forth in the Order Form; (ii) additional User Subscriptions and Templates may be added during the applicable Subscription Term (as defined in the applicable Order Form), prorated for the remainder of the then-effective Subscription Term and (iii) the added Subscriptions shall be coterminous with the then-current Subscriptions.  User Subscriptions are for designated Users only 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 Licensed Services.

3. Use of the Licensed Services

3.1. Your Responsibilities.  The data You input and use in connection with the Licensed Services is Your sole responsibility and Your Data will not infringe the intellectual property rights of any third party.  You shall (i) be responsible for Your and all of Your Users’ compliance with the terms of this Agreement, (ii) be responsible for compliance with all applicable data related laws, and the legality of Your Data, and (iii) be responsible for compliance with the terms and conditions of Your underlying Source Systems’ licenses. You shall not (a) use the Licensed Services to store or transmit unlawful or tortious material, or material in violation of third-party privacy rights, (b) interfere with or disrupt the integrity or performance of the Licensed Services, (c) license, sell, commercially exploit, reverse engineer or make derivative works of the Licensed Services.

3.2. Remedy.  If You violate the terms of this Section 3 We shall have the right, upon ten (10) days’ written notice, to cease Your access to the Licensed Services until such violation is cured to Our satisfaction, without refunding any amounts paid by You.

3.3. Our Responsibilities.  We (i) will abide by all applicable data related laws in connection with the operation of the Licensed Services, (ii) will include reasonable and appropriate technical, organizational and security measures against the destruction, unavailability, or unauthorized access of Your Data in the possession or under Our control and (iii) Our use of Your Data shall be limited to the purpose of providing the Licensed Services and meeting Our obligations hereunder.

3.4. Free Trials. If You register on Our website for a free trial, We will make the applicable tools, components or other services (“Trial Services”) available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Trial Service(s), or (b) the start date of any purchased subscriptions ordered by You for such Trial Service(s), or (c) termination by Us of the free trial period in accordance with Section 12.3.4 below. Your use of the Trial Services during the free trial period shall be subject to the terms and conditions of this Agreement. Additional trial terms and conditions may appear on the trial registration web page, and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Any data You enter into the Trial Services, and any customizations made to the Trial Services by or for You, during Your free trial will be permanently lost unless You purchase a subscription to the same services as those covered by the trial, purchase applicable upgraded services, or export such data, before the end of the trial period. Notwithstanding any other provisions of this Agreement regarding representations, warranties and/or indemnification by Us, during the free trial the Trial Services are provided “as-is” without any warranty and We shall have no indemnification obligations or liability whatsoever to You with respect to the Trial Services for the free trial period.

3.5. Privacy Policy. The Capriza Privacy Policy as set forth at www.capriza.com/privacy-policy/ applies to Capriza’s Website and all services provided by Capriza. Capriza complies with the EU General Data Privacy Regulations (“GDPR”) and complies with the EU-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information transferred from the European Union and/or Switzerland to the United States.  Capriza has certified to the Department of Commerce that it adheres to the Privacy Shield Principles. Capriza generally operates as a “Processor” of data under the GDPR. Please see the Capriza Privacy Policy for additional information regarding Capriza’s privacy policies, the GDPR and the Privacy Shield Program.  Any questions or issues regarding Capriza’s Privacy Policy should be addressed to privacy@capriza.com.

4. Professional Services

4.1. Any training, consulting and advisory Professional Services performed under this Agreement shall be set forth in an Order Form.

4.2. Professional Services shall be performed in accordance with the professional standards which reasonably and ordinarily can be expected from skilled and experienced persons engaged in the same type of undertaking.

4.3. Personnel who are assigned to work with You and Your Data in connection with Professional Services provided under this Agreement shall have completed personal and business reference checks, verification of previous employment and criminal background checks prior to being assigned.

4.4. Unless stated otherwise, Professional Services will be performed remotely. If travel is required or requested by You, You will reimburse Us for the actual cost of any travel and living expenses that We incur in performing the services.

4.5. Subcontractors.  We shall not subcontract Professional Services without providing written notice and we warrant such Subcontractors shall be contracted by Us to at least the same standards of performance as this Agreement.

5. Support and Service Levels

We offer support programs and service levels for Licensed Services as set forth in attached Exhibit A Support and Service Levels.

6. Order Form, Fees and Payment for Purchased Services

6.1. Order Form.  You shall order Licensed Services by signing an Order Form.  In the event that Your business practices require a purchase order number be issued prior to payment then such purchase order must be provided to Capriza prior to the Effective Date of such Order Form.

6.2. Fees.  You shall pay all fees specified in all Order Forms in accordance with the terms of this Agreement.  Except as otherwise specified herein or in an Order Form, (i) fees are based on Licensed Services purchased per User Subscription and not actual or active usage, (ii) the number of User Subscriptions purchased cannot be decreased during the relevant Subscription Term (as set forth in the applicable Order Form) and (iii) all payment obligations are non-cancelable and all amounts paid are non-refundable.  We reserve the right to modify Our Fees with respect to the Subscription and to introduce increased Fees which shall become effective upon the upcoming Renewal Subscription Term.  We shall provide You written notice of the increased Fees at least forty-five (45) days prior to the end of the then current Subscription Term and the increase, assuming the same Licensed Services are renewed, shall not exceed five (5) percent of the Licensed Services Fees charged for the preceding Subscription Term for the same Licensed Services and quantities thereof.

6.3. Invoicing and Payment.  You shall make all payments, in full, under applicable invoices in accordance with the terms of this Agreement and applicable Order Form(s).  Unless provided otherwise in the applicable Order Form, We will invoice You as of the Effective Date of the applicable Order Form(s) in advance for Your then-current, aggregate total of User Subscriptions and for all Professional Services set forth in such Order Form(s) and, unless otherwise stated in the applicable Order Form, invoiced charges are due net thirty (30) days from the invoice date.  If You believe an invoice is incorrect, You must contact Us in writing within thirty (30) days of the date of the invoice setting forth the amount in question and an explanation of the reason such amount is questioned, in order to be eligible to receive an adjustment or credit.  You agree to provide Us with accurate billing and contact information and will update this information within thirty (30) days of any change.

6.4. Taxes.  Unless otherwise provided herein, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”).  You are responsible for paying all Taxes associated with Your use of the Licensed Services and purchase of Professional Services and Support hereunder.  In case any Taxes are withheld by You as per applicable tax laws the amount payable to Us shall be grossed up to cover such withholding tax and You shall pay the amounts due to Us net of such withholding taxes.

6.5. Non-payment and Suspension.  In addition to any other rights granted herein, We reserve the right to suspend or terminate this Agreement, any related Order Forms, and Your access to the Licensed Services if Your account becomes delinquent and is uncured for a period of thirty (30) days from date of delinquency notice.  Delinquent invoices are subject to interest of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date of the delinquency notice, plus all expenses of collection.  You will continue to be charged for Fees during any period of Subscription suspension due to Your delinquency.

7. Proprietary Rights

7.1. Reservation of Rights in Licensed Services.  Subject to the limited rights in the Licensed Services granted hereunder, We reserve all rights, title and interest in and to the Licensed Services, and any and all enhancements, modifications, extensions and/or derivative works thereof, including all related intellectual property rights.  No rights are granted to You hereunder other than those limited rights to use the Licensed Service as expressly set forth herein.

7.2. Reservation of Rights in Professional Services.  We shall retain full and exclusive ownership in as well as all intellectual property rights in and to any work product and deliverables developed by Us for You pursuant to Professional Services.  You shall have the right and license to access and use such work product and deliverables in conjunction with Your use of the Licensed Services during the term of any license rights granted with respect to such Licensed Services. Except as expressly set out in this Section, no other licenses or rights are granted by either party under this Agreement.  Notwithstanding the foregoing, You shall retain full and exclusive ownership in as well as all intellectual property rights in and to any and all of Your Data either contained within any Templates developed by Us for You (including any unique documentation delivered as part of such development) or that are developed by You, and We shall not use any of your intellectual property rights in, or Your Data included in, such Templates for the benefit of or to provide services to any other customer.

7.3. Your Applications and Code.  If You, a third party acting on Your behalf, or a User creates applications or program code using the Licensed Services, You authorize Us to host, copy, transmit, use, access, create derivatives works, display and adapt such applications and program code, as may be necessary for Us to provide the Licensed Services in accordance with this Agreement.

8. Confidentiality

8.1. Definition of Confidential Information.  “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party, its Affiliates or Your Users (“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, which shall include, without limitation, information concerning the Licensed Services, the Disclosing Party’s business and financial information, support and professional services, fees and charges, terms of the Order Forms, business and marketing plans, technology and technical information, product plans and designs, and business processes and the like.  Confidential Information shall not include information that (i) is or becomes generally known to the public without breach of the Receiving Party’s obligations hereunder, (ii) is received from a third party without breach of the Receiving Party’s obligation hereunder or (iii) was independently developed by the Receiving Party.

8.2. Protection of Confidential Information.  Each party shall use the same degree of care to ensure the confidentiality of the other party’s  Confidential Information that it uses to protect the confidentiality of its own confidential information (but in no event no less than industry-standard, reasonable care) (i) not to use the other party’s Confidential Information for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to the Disclosing Party’s Confidential Information to its employees, Users and Affiliates’ employees and consultants, who have a clear “need to know” such Confidential Information for purposes consistent with this Agreement and who have signed confidentiality agreements containing protections no less stringent than those herein.  Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.

8.3. Compelled Disclosure.  A party may disclose the other party’s Confidential Information only if it is compelled by law enforcement, judicial order or government subpoena to do so, provided that it gives the other party prior written notice of such compelled disclosure and an accurate copy of such written order to the extent permitted by law.

9. Warrenties and Disclaimers

9.1. Warrenties

9.1.1. Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.

9.1.2. We warrant that the Licensed Services (a) will be provided in a professional manner consistent with generally accepted industry standards, and (b) will perform substantially in accordance with any applicable specifications as set forth in the applicable Order Form.

9.1.3. In the event of a warranty deficiency in the Licensed Services, You will notify us of such deficiency within thirty (30) days following the performance of the relevant Licensed Services, and Your exclusive remedy will be the reperformance of the deficient Licensed Services. If We cannot reperform such deficient Licensed Services as warranted within a commercially reasonable period of time, You will be entitled to terminate the deficient Licensed Services and recover a pro-rata portion of the fees paid to Us for such deficient Licensed Services, and such refund will be Our entire liability with respect to such deficiency. Such pro-rata refund shall be calculated on the basis of the remaining unused days in the then-current prepay period.

9.2. Disclaimers

EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE MAKE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE HEREBY SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.  WE DO NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE LICENSED SERVICES, THE RESULTS YOU MAY OBTAIN BY USING THE LICENSED SERVICES, OR THE UNINTERRUPTED OR ERROR FREE OPERATION OF LICENSED SERVICES.

10. Indemnification

10.1. Your Indemnification. You hereby indemnify Us against any claim, demand, suit or proceeding made or brought against Us by a third party (i) alleging that Your Data, Your use, and use by Your Users or Affiliates of the Licensed Services infringes or misappropriates the intellectual property rights of any third party or violates any applicable law, (ii) arising from or related to Your Data (“Claim Against Us”), and You shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (i) promptly give You written notice of the Claim Against Us, (ii) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us that does not unconditionally release Us of all liability with respect to such Claim without Our prior written approval, and that We may also engage legal counsel to defend Us regarding such Claim Against Us) and (iii) provide to You all reasonable assistance, at Your expense.

10.2. Our Indemnification. We hereby indemnify You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the Licensed Services infringe or misappropriate the intellectual property rights, including without limitation copyright, trade secret and patent rights of any third party or violates any applicable law (“Claim Against You”), and We shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, or for any amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (i) promptly give Us written notice of the Claim Against You, (ii) give Us  sole control of the defense and settlement of the Claim Against You  (provided that We may not settle any Claim Against You that does not unconditionally release You of all liability with respect to such Claim without Your written approval, and that You may also engage legal counsel to defend You regarding such Claim Against You) and (iii) provide to Us all reasonable assistance, at Our expense.

10.3. Infringement Indemnification Remedy. With respect to Our indemnification obligations in connection with any Claim of infringement (i) if any aspect of the Subscription or the Licensed Services is found or, in Our reasonable opinion may likely be found, to infringe upon the Intellectual Property Right of a third party, or (ii) the continued use of the Subscription is enjoined, then We will promptly and at Our cost and expense at Our option, (a) obtain for Client the right to continue using the Subscription, (b) modify the item(s) in question so that they are no longer infringing, or (c) replace such item(s) with a non-infringing functional equivalent. If, after all commercially reasonable efforts, We determine in good faith that options (a) – (c) are not feasible, We will remove the infringing items from the Licensed Services and refund to You on a pro-rata basis any prepaid unused Fees paid for such infringing item. Such pro-rata refund shall be calculated on the basis of the remaining unused days in the then-current prepay period. We shall have no obligation or liability for any claim pursuant to this Section to the extent arising from (i) the combinations, operation, or use of the Subscription with any product, device, or software not supplied by Us to the extent the combination creates the infringement or (ii) the unauthorized alteration or modification by You of any aspect of Licensed Services or improper use of the Subscription.  THE FOREGOING IS OUR SOLE OBLIGATION AND CLIENT’S EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS FOR INFRINGEMENT.

11. Limitation of Liability

11.1. Limitation of Liability.  EXCEPT AS SET FORTH IN THIS SECTION, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER.  THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (ORDER FORMS, FEES AND PAYMENT FOR PURCHASED SERVICES).

11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES HEREBY CONFIRM THAT THE LIMITATION OF LIABILITY SET OUT HEREIN IS FAIR AND REASONABLE GIVEN THE PURPOSE OF THIS AGREEMENT.

11.3. Exceptions to Limitation of Liability.  The limitations on liability set forth in Section 11.1 shall not apply to liability arising from

11.3.1. A party’s indemnification obligations under this Agreement.

11.3.2. A breach of a party’s confidentiality obligations under Section 8 of this Agreement.

11.3.3. Any infringement, misuse or misappropriation of any Intellectual Property rights of the other party.

11.3.4. Any liability for fraud, willful default of gross negligence.

12. Term and Termination

12.1. Term of Agreement.  This Agreement commences on the Effective Date and, unless otherwise terminated in accordance with this Agreement, it continues until all User Subscriptions granted to You hereunder expire or terminate.

12.2. Term of Purchased User Subscriptions. User Subscriptions commence on the start date specified in the applicable Order Form and continue for the Subscription Term specified therein.  Except as otherwise specified in the applicable Order Form, all User Subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or one (1) year (whichever is shorter), unless either party gives the other written notice of non-renewal at least sixty (60) days before the end of the relevant Subscription Term.

12.3. Termination.

12.3.1. Either party may terminate this Agreement if there is a material breach by the other party and (if capable of remedy) the breaching party has failed to remedy the breach within thirty (30) days (“Remedy Period”) after receipt of such notice from the non-breaching party giving full particulars of the breach and requiring the breach to be remedied.

12.3.2. In the event of such uncured breach by Us, then You shall receive a refund of a pro-rata amount of any unused prepaid fees within thirty (30) days of the end of the Remedy Period. Such pro-rata refund shall be calculated on the basis of the remaining unused days in the period to which such prepaid amount is applicable.

12.3.3. In the event of such uncured breach by You, You will be obligated to pay within thirty (30) days following termination all remaining fees due for the remainder of the full current term as set forth in the Order Form.

12.3.4. Trial Services Termination. If You have been provided Trial Services in conjunction with a free trial period of the Licensed Services, or are otherwise engaged in any unpaid trial or evaluation of the Licensed Services, then We may terminate such trial period and Trial Services access without notice at any time following the date thirty (30) days after the commencement of such trial period unless You accept or execute a binding Master License and Professional Services Agreement and Order Form for the applicable Licensed Services. We shall incur no liability whatsoever relating to or arising from Your use of such Trial Services during such trial period or from Our termination thereof.

12.4. Surviving Provisions. All Sections of this Agreement that by their terms and content should be interpreted and/or construed as intended to survive the expiration or termination of this Agreement shall be deemed to so survive in accordance with their terms.

13. Notices, Governing Law and Jurisdiction

13.1. Address for Notice. Notices shall be addressed to:

You : As per address set forth in applicable Order Form or as otherwise notified to Us in writing

Us :  Capriza Inc. @ 3000 El Camino Real, Suite 5-800, Palo Alto, CA, 94306, USA Attn: legal@capriza.com

Notices, permissions and approvals shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim).  Billing-related notices to You shall be addressed to the relevant billing contact designated by You in the applicable Order Form or Purchase Order.  All other notices to You shall be addressed to the person designated in the Order Form or as otherwise notified to Us in writing.

13.2. Agreement to Governing Law and Jurisdiction.  This Agreement, including any Order Form, will be governed by and construed in accordance with the laws of the State of California and controlling United States federal law without regard to conflict of law rules, and to the exclusive jurisdiction of the San Francisco California courts.

13.3. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. Any disputes concerning this Agreement shall be resolved by binding arbitration to be held in San Francisco, CA. in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment on the award rendered thereby may be entered in any court having jurisdiction thereof, provided, however, that the foregoing shall not prevent either party from seeking injunctive relief in any court of competent jurisdiction.

14. General Provisions

14.1. Export Compliance. The Licensed Services may be subject to technology-related export laws and regulations of the United States and other jurisdictions, and each party shall comply with such laws and regulations. Each party hereby represents that it is not listed on any U.S. government denied-party list. You shall ensure that You, Your Users and Your Affiliates do not use the Licensed Services in violation of any U.S. export law, rule or regulation.

14.2. Force Majeure Event.   As concerns this Agreement, the following shall be considered a Force Majeure Event: acts of God; acts of government; floods, fires, earthquakes; civil unrest, acts of terror, strikes or other labor problems; Internet service provider, electricity and telecommunications failures or delays, or denial of service.  In the event of a Force Majeure Event, the Licensed Services may be suspended, delayed or otherwise hindered, and Our only obligation shall be to use commercially reasonable efforts to resume its provision of the Licensed Service within a reasonable time after the Force Majeure Event.  The occurrence of a Force Majeure Event does not relieve You of Your payment obligations hereunder.

14.3. Relationship of the Parties. The parties are independent contractors to each other. This Agreement is not intended to not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

14.4. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

14.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unlawful or unenforceable, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

14.6. Insurance.  We will, at our cost and expense, maintain in full force and effect during the term of this Agreement, policies of insurance, of the types and in the minimum amounts stated herein, with responsible insurance carrier(s) rated no less than a Best’s rating of A-VII.  Upon Your written request we provide You with certificates of insurance evidencing all such coverage.

Types of Insurance and Limits of Liability (Minimum Amounts)

Insurance: Comprehensive or Commercial General Liability

Liability: $1,000,000 per occurrence

Insurance: Umbrella/Excess Liability insurance

Liability: $2,000,000 aggregate / $5,000,000 per occurrence

Insurance:  Business Automobile Liability (covering claims arising from all owned, hired and non-owned vehicles);

Personal Injury (including bodily injury) and Third Party Property Damage (where applicable)

Liability: $1,000,000 per occurrence

Insurance: Workers’ Compensation

Liability: Statutory limits

Insurance: Employer’s Liability

Liability: $500,000 per accident / $500,000 disease – Each Employee / $500,000 disease – Policy Limit

Insurance: Professional Errors and Omissions Liability Insurance

Liability: $5,000,000 per occurrence / $5,000,000 aggregate

Insurance: Cyber Liability (Network Security/Privacy Liability)

Liability:  $3,000,000 per occurrence / $3,000,000 aggregate

Insurance: Fidelity Crime Insurance; including 3rd Party

Liability: $3,000,000 per occurrence / $3,000,000 aggregate

14.7. Aggregate/Anonymous Data.  You agree that We will have the right to generate Aggregate/Anonymous Data which We may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve the Licensed Services). We will not distribute Aggregate/Anonymous Data in a manner that personally identifies You.

14.8. Audit.  During the term and for at least one (1) year thereafter we will maintain complete and accurate records relating to Our performance of obligations under this Agreement, including but not limited to our obligations with regard to data protection and confidentiality, related to this Agreement.  You or your authorized representatives may, with reasonable written notice and no more than one (1) time per year, perform an on-site audit of such records, but only as they relate to this Agreement.  Each party shall be responsible for its own costs of such audits unless it is agreed that the administrative burden to Us is exceptional whereupon mutually agreed reasonable fees shall apply.  You accept that We utilize a third party hosting provider with its own independent on-site access policies and an on-site audit may be restricted to Our premises only.

14.9. Assignment. Unless otherwise specified herein, 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). Any attempted assignment shall be deemed null and void. Notwithstanding the foregoing, either party may assign this Agreement and its obligations hereunder without the other party’s consent in connection with a merger, acquisition, corporate reorganization, succession in interest or sale of all or substantially all of its assets.

14.10. Entire Agreement. This Agreement, including all exhibits and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning this subject matter.  No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by both parties.  However, 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 Your purchase order or other order documentation (excluding the Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

14.11. Government Restrictions.  The Licensed Services are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software is being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Unpublished-rights reserved under the copyright laws of the United States. Use of the Licensed Services by the U.S. Government is further restricted according to the terms of this Agreement and any amendment hereto.

EXHIBIT A

Support Services and Service Levels

To support the Licensed Services, the service level targets under this Exhibit A outline mutually understood expectations for the consistent delivery of the Licensed Services to the You under this Agreement.  You shall select the appropriate Support Plan for the Licensed Services in Your Order Form.

1. Support Service

1.1 Support Services Include:

1.1.1 Online Helpdesk, email and phone support for all technical issues relating to the use of the Licensed Services.

1.1.2 Access to the Capriza Help Center (which includes the Helpdesk and all then-current and standard Capriza Documentation, written and video Training and Best Practices content).

1.1.3 Provision of Updates (a release issued by Us to correct defects or deficiencies in the Licensed Services or to provide modifications that improve the Licensed Services but do not substantially change the basic character or structure of the Licensed Services) and Upgrades (a release issued by Us that provides material improvements and changes to the basic character and/or structure of the Licensed Services, including, by way of example only, the inclusion of additional features and/or functionality) as they become available for general release.

1.2 Support Services Contact Methods.  Customers with current and purchased User Subscriptions may contact Us to provide an error report and request Support Services by any of the following methods:

1.2.1 online via the Capriza Help Center at the following URL: http://support.capriza.com

1.2.2 email at support@capriza.com

1.2.3 phone at 650-720-4865

1.3 Exclusions from Support Services. We are not obligated to provide support services for errors or problems to the extent caused by the following (each, an “Excluded Cause”):

1.3.1 Any modifications or changes to or any integration with another technology platform or service offering of the Licensed Services not authorized by Us; or

1.3.2 Continued use of an older release or version of the Licensed Services where use of the current release or version of the Licensed Services would have corrected the error or problem, provided that notwithstanding the foregoing, We shall continue to provide support for errors or problems with older releases and versions of the Licensed Services for one hundred and eighty (180) days after the general release of the version or release of the Licensed Services that would have corrected such errors or problems.

1.4 Support Plan. You shall select the appropriate Support Plan for Your use of the Licensed Services in the applicable Order Form.  The Support Plan shall apply for the entire current Term and the services and benefits included shall be consumed during that Term or shall be forfeited and shall not be refunded or carried forward to a future Term.

Support Plans

System and Infrastructure

Uptime:

Standard Support: 99.5%

Premium Support: 99.5%

Signature Support: 99.5%

Licensed Services Monitoring:

Standard Support: 24/7

Premium Support: 24/7

Signature Support: 24/7

New Functionality and Service Advanced Access:

Standard Support: –

Premium Support: Included

Signature Support: Included

Support

Support Hours:

Standard Support:  6am – 6pm for both GMT and Pacific Time

Premium Support: 6am – 6pm for both GMT and Pacific Time

Signature Support: 24/7

Number of Administrators (authorized to access Capriza Support Representatives)

Standard Support: 5

Premium Support: 10

Signature Support: 25

Case Limit:

Standard Support: Unlimited

Premium Support: Unlimited

Signature Support: Unlimited

Professional Services

Hours of Professional Services assistance per Year:

Standard Support: –

Premium Support: 50

Signature Support: 200

Training Days per Year:

Standard Support: –

Premium Support: –

Signature Support: 6

Branded WorkSimple Service:

Standard Support: –

Premium Support: –

Signature Support: included

Advanced Monitoring Service:

Standard Support: –

Premium Support: –

Signature Support: included

Customer Success Services

Dedicated Customer Success Manager:

Standard Support: Project-based only

Premium Support: Dedicated CSM

Signature Support: Included

Dedicated Customer Success Engineer:

Standard Support: Project-based only

Premium Support: Dedicated CSM

Signature Support: Included

Solution Design advisory services:

Standard Support: Project-based only

Premium Support: Dedicated CSM

Signature Support: Included

1.5 Response Times.

1.5.1 If an error or issue is submitted to Us via the contact methods provided for above We shall use all commercially reasonable efforts to comply with the response times set forth below based on the severity level of the particular error or issue.

Severity Definition Level / Response Time 

Critical: A Critical Severity issue has a material to critical business impact on Your production system, resulting in Your production system being either down, or functioning at a materially reduced capacity or with materially reduced functionality.

Response time: We will confirm receipt immediately and allocate a qualified Support Manager to diagnose, define a correction plan and to correct the Critical Severity issue as soon as possible with a target resolution of up to one (1) business day.  We shall provide periodic updates to You either hourly or as mutually agreed.

Medium: A Medium Severity issue has some business impact on a production system, resulting in some non-material functionality or loss on Your production system. The Services are usable, but does not provide a non-material function in the most convenient or expeditious manner.

Response time: We will confirm receipt and provide an initial response, diagnosis and correction plan by a qualified Support Manager within one (1) business day with a target resolution of fifteen (15) business days.  We shall provide periodic updates to You no less than one (1) time per day or as mutually agreed.

Low:  A Low Severity issue is for non-production questions including general “how to” questions, issues related to a non-production environment, or feature requests.  There is no impact on the quality, performance or functionality on Your production system.

Response time: Low Severity issues are responded to and resolved in the normal course of our Support Team operations.  We do not guarantee a resolution time for Low Severity incidents.

1.5.2 In addition to the Response Times we shall utilize our internal reporting and escalation procedures to ensure issues are visible and allocated as applicable to line and executive management including upon initial issue receipt and performance measurement against the target resolution Response Time.

2. Service Levels

2.1 Uptime Guarantee:

2.1.1 The Licensed Services will be available at least 99.5% of the time, as measured on a per minute basis every month, subject to the exclusions set forth below (“Uptime Guarantee”).  We will promptly notify You of any known period of unavailability and when the service disruption has ended.

2.1.2 Exclusions: The Uptime Guarantee shall not apply in the event that (i) any equipment (not in the custody or control of Us or our third party hosting provider) malfunctions, including, without limitation, any necessary VPN access, (ii) the failure is caused by a Force Majeure Event, (iii) the failure occurs during a Scheduled Maintenance period (as defined below), (iv) the failure is due to Your failure to upgrade to Our software as new releases, patches, fixes, are introduced, (v) the failure was caused by Your unauthorized use of or a use by You that exceeds the scope of the limited rights granted in the Agreement concerning the Licensed Services, (vi) the failure is caused by interruptions or delays resulting from telecommunication or Internet service provider failures outside of Our network, system and environment and/or (vii) the failure results from Your or any Your third party’s errors or omissions or any system not provided by Us including, any part of the Licensed Services hosted and maintained by You.

2.2 Scheduled Maintenance.  Scheduled maintenance is regularly scheduled maintenance of which We provide You with information via our customer portal (“Scheduled Maintenance”).  Scheduled Maintenance may either (i) require downtime (“Major Release Scheduled Maintenance”) or (ii) not require downtime (“Minor Release Scheduled Maintenance”).  We will use commercially reasonable efforts to schedule all Major Release Scheduled Maintenance between the hours of 12:00 a.m. Pacific Time and 4:00 a.m. Pacific Time on Sunday and limit such downtime resulting to up to 30 minutes per downtime.  You will be notified via the Capriza Help Center of Major Release Scheduled Maintenance that We reasonably consider will result in downtime greater than one hour at least 72 hours in advance.

2.3 Uptime Credit.  In the event We fail to meet the required Uptime Guarantee in a particular month, You shall be entitled to a credit as set forth below (each an “Uptime Credit”) for such month and shall request the Uptime Credit in writing within thirty (30) days of the last day of the month that the Uptime Credit is applicable.  Uptime credit shall be applied against the next Renewal of the Licensed Services and shall extend the next Renewal Term beyond the standard minimum of one (1) year using a proportional basis.  Any Uptime Credit issued will be calculated as a percentage of the fees for such Subscription for such month and Uptime Credit value will be determined as follows:

Actual Uptime Percentage (%) for Month / Uptime Credit Percentage (%) of Affected Month Licensed Services Fee

99.5% or greater / 0% of Licensed Services Fee

Less than 99.5% but greater than 99% / 5% of Licensed Services Fee

Less than 99% but greater than 98% / 10% of Licensed Services Fee

Less than 98% but greater than 97% / 15% of Licensed Services Fee

Less than 97% / 20% of Licensed Services Fee

3.  Security Level Commitment

3.1 Security Standards.  During the term of the Agreement:

3.1.1 International Organization for Standardization Certification.  We shall maintain Our ISO-27001:2013 (or the then future equivalent) Certification.

3.1.2 Penetration Tests.  We shall conduct bi-annual penetration tests via a qualified third party.

3.1.3 Copies of Certification and Penetration Test Results shall be promptly provided to You upon written request.

3.2 Data Protection and Security Plan.  We shall define and adhere to a complete set of information security policies, standards and practices which shall be in conformity with legal, regulatory, and contractual requirements and industry standard best practices, including but not limited to (i) asset management, (ii) risk assessment and risk management, (iii) access control and protective technology, (iv) data security and information protection including disaster recovery, (v) continuous security monitoring and detection and (vii) incident response.

3.3 Hosting Provider Standards.  We shall utilize a third party hosting provider to, as applicable based upon your deployment method for the Licensed Services, to provide the infrastructure required to operate the Licensed Services.  We shall ensure that such hosting provider shall contractually be able to meet the requirements of this Agreement, including having security standards to at least the same level as required herein.