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InformEnt/iView Software - Additional Terms

1. LICENSE AND MAINTENANCE

(a) Software Description. If purchased by Client, the following Software and Third Party Software modules are hereby licensed to Client in Client’s production and development environments.

Product Description	Third Party Software
InformEnt/iView Software – 2 (Production and Development)	��
PowerShare Administrator	��
PowerShare Steward	��
Business Analytics	X
Oracle Database Oracle Standard 2 Edition License Fee –	X

(b) Computer System. The computer system for the Software is the manufacturer-supplied equipment and software more specifically set forth in the applicable documentation. The computer system shall be provided by Client.

(c) Releases. Client must remain on a supported version of the Software licensed under these terms (“Release”) in order to continue receiving maintenance services. ���������� reserves the right to determine, in its sole discretion, whether to continue supporting any previous Release(s) of given Software program. If a Software program is superseded or replaced by a new Release(s) thereof, but Client elects not to install such new Release(s) and remain on an unsupported Release, ���������� may terminate maintenance services for that Software program upon at least 90 days prior notice to Client.

(d) Financial Services Model. The license includes the right to access and use ����������’s proprietary Financial Services Model (the “Model”) for the term of applicable maintenance services. This Model shall at all times be considered ���������� Information and shall be subject to all restrictions and protections set forth in the Agreement applicable to the Software and ���������� Information.

2. PROFESSIONAL SERVICES

���������� will provide mutually agreed upon implementation, training, consulting or other such professional services (“Professional Services”) if specified in a separate statement of work (“SOW”).

(a) Additional Projects. ���������� shall provide any mutually agreed upon Professional Services, which will be scoped and quoted upon request, subject to ����������’s resource availability. Any such agreed upon Professional Services project will be documented in an appropriate SOW.

(b) Professional Services Fees. ���������� agrees to provide the Professional Services at the rates identified in the applicable SOW (or ����������’s then-current rates if no such rates are specified), plus all applicable taxes, travel and other out-of-pocket expenses and other such charges. The rates quoted are valid for 12 months from the date the applicable SOW is executed. In no event shall ���������� be obliged to return any fees paid by Client for any unscheduled Professional Services.

(c) Project Plans; SOWs. For each Professional Services project, ���������� will develop a project plan with Client to perform and complete Professional Services projects. Each such plan shall contain tasks, some of which are to be performed by ���������� and some by Client. Modifications and changes to this plan shall be only by mutually written agreement of the parties. Upon ����������’s request, Client also agrees to execute an appropriate SOW for a given Professional Services project. Any such SOW will be governed by these terms and the Agreement and will be incorporated herein by reference accordingly. Any modifications to any SOW will be handled by ����������’s then-current formal change control process.

(d) Client Responsibilities. Client will provide all necessary cooperation, information, access and assistance in connection with the Professional Services to facilitate the applicable project, including without limitation promptly deploying or completing any tools, input forms, scripts or other such materials ���������� provides to Client as are necessary for ���������� to properly perform and provide the Professional Services (collectively, “Tools”). If Client is unable to provide access to required facilities or personnel or is unable to timely meet its tasks, ���������� will endeavor to reschedule its tasks to minimize the non-productive time arising and/or reassign its personnel to other suitable work. In this event, Client will not be charged for the time personnel were reassigned to other clients. Otherwise, all such non-productive time is chargeable to Client. Furthermore, if Client and ���������� have scheduled any meetings, services sessions or other such scheduled tasks for a given Professional Services project, Client will provide at least 21 days advance written notice if it intends to cancel or delay any such scheduled tasks. Otherwise, ���������� reserves the right to assess a rescheduling fee of $1,000 per day rescheduled if Client does not timely provide that advance written notice.

3. OPERATIONAL SUPPORT

(a) ���������� agrees to provide the services specified below to support Client's Software operation (“Operational Support Services”) in exchange for Client’s payment of the applicable fees. Operational Support Services shall only be available if Client is receiving maintenance services and is current on all payments due for maintenance fees.

(b) ���������� will provide the Operational Support Services in connection with Client’s InformEnt/iView database(s) (“Database”) operating in Client’s production and development environments (“Environments”) as identified in the Agreement. Operational Support Services will be provided for the term set forth below, and ���������� will begin invoicing Client for Operational Support Services upon the date Client is first able to use Operational Support Services in its Environment.

(c) General monitoring Services include the following systems support and maintenance services.

· Access to the InformEnt/iView client support call center during ����������’s normal business hours

· Access to the InformEnt/iView load and production support technician 24x7 support hotline

· Access to the InformEnt/iView on-line problem reporting system 24x7 via any internet connection

· Provide 24x7 monitoring of the InformEnt/iView solution deployed at the client site

· Hardware and software monitoring utilizing ����������’s approved monitoring tools

(d) ���������� Operational Support Services include the following systems support and maintenance services:

· 24x7 production environment support for all mutually agreed upon operational failures and severity level defects

o Identify and resolve all data feed and data file issues

o Identify and resolve all hardware and software issues

o Identify and resolve all InformEnt/iView Process Manager failures, warnings, or alerts

o Identify and resolve all InformEnt/iView warehouse database Issues

· Non-production environment support for all mutually agreed upon failures during ����������’s normal business hours

o Identify and resolve all data feed and data file issues

o Identify and resolve all hardware and software issues

o Identify and resolve all InformEnt/iView Process Manager failures, warnings, or alerts

o Identify and resolve all InformEnt/iView warehouse database Issues

· Perform maintenance tasks for all environments during ����������’s normal business hours

o Apply operating system security patches on a mutually agreed schedule

o Apply Oracle database patches on a mutually agreed schedule

o Management and maintenance of the InformEnt/iView warehouse database and InformEnt/iView warehouse server

o Manage all client communications related to support issues

o Manage all client incident reports related to support issues

o Perform InformEnt/iView Process Manager schedule management as requested by the client

o Perform ����������’s standard monthly file system free space assessment and management for all servers

o Perform monthly security audit of the InformEnt/iView warehouse server

o Provide annual “InformEnt/iView Solution Report Card” to the client (based on ����������’s standard reporting parameters) and distribute to Client

o Provide quarterly a list of all InformEnt/iView support personnel to Client for auditing

· Perform software support tasks for all environments during ����������’s normal business hours

o Manage all client communications regarding InformEnt/iView software support agreements

o Manage all client communications regarding InformEnt/iView third-party support agreements

(e) Additional Operational Support Services are available upon request, however, these non-standard services would be invoiced at an additional charge based on ����������’s then-current rates.

Operational Support Services Description

General Monitoring Services: ���������� will perform general monitoring tasks for the environments (production and test) using ����������’s operational support load production support (LPS), database administration (DBA) and systems administrator (SA) resources.

Operational Support Services: As necessary during each given month, ���������� will also perform standard operational tasks identified in Section 3(d) for the Environments using ����������’s LPS, DBA and SA resources.

(f) The monthly fee for Operational Support Services is based on the estimated monthly usage of 32 hours per month (20 hours of General Monitoring Services, which is measured on an allocated basis, and 12 hours of Operational Support Services). The monthly fee set forth in the Agreement will remain in effect for the first 12 months of billing for all General Monitoring Services and Operational Support Services reasonably required by Client during that period. After the first 12 months (and for each year thereafter), ���������� will increase or decrease the monthly fee for Operational Support Services annually based on Client’s combined average monthly usage of the General Monitoring Services and Operational Support Services over the preceding year.

(g) ���������� does not provide any information security and/or information security compliance monitoring, evaluation, consulting or protocol operations as part of Operational Support Services (or any other Services provided). Client maintains sole responsibility for designing, implementing and operating its information security and compliance monitoring programs and protocols. However, ���������� will provide any reasonably requested information or assistance which ���������� would have regarding Client’s environments in connection with any information security breach or investigation, and, if ���������� directly manages access to any database or environment, ���������� will promptly grant access to the requested Client representatives in connection with an information security breach of investigation upon Client’s request to the appropriate ���������� representative.

4. ADDITIONAL TERMS AND CONDITIONS

(a) Disclosure of Client PII. Client expressly acknowledges and agrees that Client personally identifiable information (“PII”) may not be, and shall not be, provided to ���������� in connection with any Services provided under these terms, unless expressly requested by ����������.

(i) Client will ensure that any information, requests and instructions Client may give to ���������� are provided clearly and accurately and in the form prescribed by ���������� to allow ���������� fulfill its obligations under the Agreement, and Client shall be solely responsible for the consequences of any failure to provide such clear and accurate information, requests and/or instructions. ���������� will not be expected or obligated to review, validate, reformat or confirm any information, requests or instructions given by Client.

(ii) System sizing configuration/hardware recommendations are not included in these terms and these terms do not include the costs of the hardware or out-of-pocket expenses for travel.

(iii) Client will provide ���������� with access to application, business, and systems experts as required assisting ���������� in understanding Client’s environment.

(iv) ���������� will require appropriate network connectivity to the InformEnt/iView servers (Warehouse Production/Development and Delivery), which would be located at Client’s data center or other agreed upon location. Costs associated with network connectivity are the responsibility of Client and are not included.

5. THIRD PARTY TERMS

The Software licensed under these terms includes certain third party Software and/or other components provided by third party providers of ���������� (collectively, “Third Party Programs”). Such Third Party Programs are being licensed solely in connection with the Software programs set forth in these terms. Furthermore, such Third Party Programs are subject to the additional third party provider terms and conditions set forth below. Such terms and conditions cannot be modified by Client. If ����������’s agreement with the applicable Third Party provider terminates, ���������� may terminate the affected license or the applicable portions thereof which rely on the applicable Third Party Program(s); provided, however, that ���������� will notify Client of any such termination as soon as commercially practicable, and ���������� will attempt to offer Client a reasonable alternative solution, on mutually agreed upon terms, if commercially practicable. Client acknowledges and agrees that the Third Party Programs licensed under these terms are required to operate and use the Software licensed hereunder, and Client has and will continue to license all such Third Party Programs accordingly.

For any SAP Third Party Programs such as IQ Manager, such Third Party Programs and the use thereof is subject to the license terms, restrictions, reservations of rights and other such limitations and protections of SAP (or its successor) (and ���������� as a reseller) set forth in the SAP Software Use Rights and EULA, each available at www.sap.com, which are incorporated herein by reference. ���������� reserves the right to increase the fees for these components upon a required increase by SAP, provided such increases will be limited to the amount of the increase passed through to ����������, and ���������� will use commercially reasonable efforts to limit any such increases within ����������’s contractual rights under the applicable ����������-SAP agreement.

6. ORACLE SOFTWARE TERMS

(a) For purposes of any Third Party Programs provided by Oracle USA, Inc. or such other applicable third party provider on behalf of Oracle or its affiliates (“Provider”) and licensed hereunder, the following terms and conditions shall apply for such Third Party Programs.

(b) The Third Party Programs (including any and all source code sent in connection therewith) are subject to a restricted license. Client may only use the Third Party Programs in unmodified form as part of and in connection with the corresponding Software program(s) and in accordance with the terms set forth herein and otherwise under the Agreement. Client will use the Third Party Programs solely for Client’s internal business operations, subject to the terms of the Agreement. Notwithstanding the foregoing, Client may allow its agents, contractors or outsourcers to use the Third Party Programs on Client’s behalf for the purposes set forth in the Agreement, provided that Client shall at all times remain responsible for such agent’s, contractor’s and outsourcer’s compliance with the terms of this Agreement. Any third party technology that may be appropriate or necessary for use with some Third Party Programs may be specified in the documentation or otherwise provided to Client by ����������. Such technology is licensed to Client only for use with the Software licensed hereunder and is subject to the terms of the Agreement as well as any applicable third party license agreement(s) specified in the documentation or otherwise provided to Client by ���������� or a Provider.�� Client may not: (a) modify the Third Party Programs; (b) use the Third Party Programs for rental, timesharing, subscription service, hosting, or outsourcing; (c) remove or modify any markings or notices of a Provider’s or its licensors’ proprietary rights; (d) reverse engineer (unless required by law for interoperability), translate, disassemble or decompile any Third Party Programs or otherwise, the source code from the object code of any Third Party Programs (including without limitation the review of data structures or similar materials produced by the Third Party Programs); (e) duplicate or otherwise copy the Third Party Programs except for a sufficient number of copies to allow for the Client’s licensed use under the Agreement and one copy of any physical media containing the Third Party Programs for disaster recovery purposes; (f) publish or otherwise share any results of any benchmark tests run on the Third Party Programs; (g) make the programs available in any manner to any third party for use in the third party’s business operations; (h) create derivative works from any Third Party Program, provided that ownership of any unauthorized derivative works shall vest in the applicable Provider; or (i) use any trademarks, service marks or other marks or logos of any Provider without ����������’s and such Provider’s express prior written authorization. Notwithstanding any limitations set forth in the Agreement, Client will defend, indemnify and hold harmless ���������� and its affiliates (and their respective employees, officers and directors) against any claims, indemnification requests or such actions brought by or on behalf of a Provider resulting from Client’s breach of any of the foregoing.

(c) Without limiting or modifying ����������’s ownership rights set forth in the Agreement, the Providers (and their licensors) retain all ownership and intellectual property rights to the Third Party Programs and any other materials or developments provided by the Provider. Nothing in these terms or the Agreement passes title in the Third Party Programs to Client or any other party.

(d) Client agrees to install the Third Party Programs only on the hardware specified in the Agreement or as otherwise approved by ���������� in writing. Client agrees that certain Third Party Programs are only appropriate for use or interoperation with certain equipment designated as “approved” by ����������’s applicable Provider. Notwithstanding anything to the contrary in the Agreement, Client shall not transfer the Software licensed from the agreed location, except for a temporary transfer in the event of a computer malfunction or other such disaster.

(e) Notwithstanding anything to the contrary in the Agreement, Client shall not assign, give, or transfer the Software or any interest therein to any other individual or entity without the prior written consent of ���������� and the Providers. If Client grants a security interest in the Software (and/or any services relating thereto), the secured party has no right to use or transfer the Software or such services.

(f) Client agrees to treat all Third Party Programs in accordance with all confidentiality obligations set forth in the Agreement and, at least: (a) take all reasonable steps and the same protective precautions to protect the Third Party Programs from disclosure to third parties as Client would with its own proprietary and confidential information; and (b) refrain from disclosing any Third Party Program or proprietary information contained therein, except to its bona fide individuals whose access is necessary to enable such party to exercise its rights hereunder. Client agrees that, prior to disclosing any Third Party Program or proprietary information relating thereto to any third party, Client will obtain from that third party a written acknowledgment that such third party will be bound by the same terms as specified herein and in the Agreement, as applicable, with respect to the Third Party Programs and such information. Notwithstanding anything to the contrary in the Agreement, except as it relates to “non-public personal information” of Client’s customers (as defined in Title V of GLB), the Provider’s obligation to maintain confidentiality of any Client information will not exceed 5 years from the date of disclosure.

(g) Client shall discontinue all use of the Third Party Programs upon termination of the applicable license and shall destroy or return to ���������� all copies of the Third Party Programs and documentation relating thereto.

(h) ���������� (on behalf of the Provider) shall have the right to audit Client’s use of the relevant Third Party Programs, at ����������’s expense, or to assign such audit right to the relevant Provider(s). Client agrees to provide reasonable assistance and access to information to ���������� or the Provider(s), as applicable, in the course of such audit. Client agrees that ���������� may share the results of such audit and a copy of the Agreement (and any relevant documents relating thereto) with the Providers.

(i) EACH PROVIDER AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. NEITHER PROVIDER NOR ANY OF ITS THIRD PARTY SUPPLIERS SHALL HAVE ANY LIABILITY (INCLUDING A DISCLAIMER OF ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE) TO CLIENT, ITS AUTHORIZED END USERS OR ANY THIRD PARTY AS A RESULT OF ANY SUCH PARTY, PERSON OR ENTITY’S USE OF THE THIRD PARTY PROGRAMS OR ANY SERVICES RELATED THERETO.

(j) ���������� may terminate any maintenance and support provided for the Third Party Programs upon written notice if Client fails to maintain and timely pay for such support. Client may have to pay reinstatement and/or other maintenance related fees if Client requests reinstatement after any cancellation or termination of maintenance or support for any Third Party Programs.

(k) In the event of a transfer of the Third Party Programs to a separate location and/or use in the event of a disaster, all such use (and the timing of such transfer) will be subject to the terms of Oracle’s then-current Software Investment Guide, a copy of which ���������� will make available to Client upon request.

(l) Notwithstanding anything to the contrary in the Agreement, Client acknowledges that the Third Party Programs may contain open source software.

(m) Notwithstanding anything to the contrary in the Agreement, the Uniform Computer Information Transactions Act shall not apply to the Schedule or the Software licensed hereunder.

(n) For purposes of the Third Party Programs, the Providers are third party beneficiaries of the Schedule and the Agreement.

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