Sitka Technology Group

Managed Services Agreement

This Managed Services Agreement (the “Agreement”), effective as of the date on which you sign a Managed Services Order Form (the “Effective Date”, and “Order Form”), is by and between Sitka Technology Group, LLC with offices located at 920 SW Sixth Avenue, Suite 111, Portland, OR 97204 (“Provider”) and the organization identified on the Managed Services Order Form (“Customer”).

Provider provides a bundle of application management and support capacity and related IT services (“Services”) as described on an Order Form. Provider will, as part of the Services, host and manage the designated application(s) (collectively the “Application”) described in an Order Form on servers and network infrastructure owned or controlled by Provider. 

By signing an Order Form, you signify that you have read, understand and agree to be bound by this Agreement.

1.     Services.

          1.1     Services.  Provider will: (i) provide all equipment, software and services necessary for hosting, operation, and maintenance of Application for the lawful benefit of Customer and the individuals authorized by Customer to use the Application or Services (“Authorized Users”); and (ii) provide application management support capacity and related IT services (the “Services”) described in an Order Form. All Order Forms signed by authorized representatives of Customer and Provider are incorporated by reference herein as if fully set forth and are subject to the terms of this Agreement. 

                    (a)     Provider shall operate and manage the Application in substantial conformity with the specifications described in any manuals, instructions or other documents or materials that Provider makes available to Customer and which describe the functionality, components, features or requirements of the Services (“Specifications”). 

                    (b)     Provider will perform and provide the Services in accordance with the performance standards described in the service level agreement attached as Schedule 1.1 (“Service Level Agreement”).  The Services shall adhere to the support levels described in the Service Level Agreement.

                    (c)     Provider shall maintain and periodically test comprehensive disaster recovery plan(s) which will provide for the recovery of Systems operations within 24 hours from a declared disaster.

          1.2     Service and System Control. Except as otherwise stated in this Agreement, as between the parties, Provider will retain sole control over the operation, maintenance and management of the Services and Provider’s Systems. As used in this Agreement, “Systems” means IT infrastructure, including electronic systems and networks, whether operated directly by the Provider or through the use of third-party service providers. 

          1.3     Changes. Provider may make any changes to the Services that it deems necessary or useful to: (i) maintain or enhance the Services, subject to the Service Level Agreement; or (ii) to comply with applicable law.  

          1.4     Subcontractors. Provider may from time to time in its discretion engage subcontractors to perform Services. 

          1.5     Suspension or Termination of Services. Provider may suspend or terminate Customer’s or any Authorized User’s access to the Platform or Services without liability, but only if: 

                    (a)     Provider receives a legal demand from a court of competent jurisdiction that requires Provider to do so; or 

                    (b)     Provider reasonably believes that: (i) Customer or any Authorized User has breached any material term of this Agreement or used the Services beyond the scope of this Agreement; (ii) Customer or any Authorized User is using (or has used) the Services in any fraudulent or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 1.5 does not limit any of Provider’s other rights or remedies.

2.     Security.

          2.1     Provider Systems and Security Obligations. Provider will implement, maintain and periodically update as necessary a written information security program, which contains reasonable administrative, technical, and physical controls to secure Customer Data (defined below), as appropriate to the nature and scope of Provider’s activities and Services. 

          2.2     Breach Notification.  Provider will report to Customer any breach of security causing an actual or potential accidental or unlawful destruction, loss, alteration, unauthorized disclosure of or access to Customer Data (“Breach”) that it becomes aware of without undue delay following determination by Provider that a Breach has occurred

          2.3     Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) Personal Information (except for contact information for Authorized Users); (b) medical or mental health care related records; (c) credit card, bank account, or other sensitive financial account information; (d) data that is classified and or used on the U.S. Munitions list, including software and technical data; (e) articles, services and related technical data designated as defense articles or defense services; and (f) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, “Prohibited Data”). Customer shall not and shall not permit any Authorized User or other person or entity to, provide any Prohibited Data via the Services. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

3.     Fees; Payment Terms.

          3.1     Fees. Customer shall pay Provider the fees described in the applicable Order Form (“Fees”). 

          3.2     Fee Increases. Provider may adjust Fees no more than once annually by providing written notice to Customer at least 60 days before becoming effective. Customer may terminate this Agreement upon 30 days’ notice to Provider if it does not agree to the fee increase. 

          3.3     Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income. 

          3.4     Payment. Customer shall pay all Fees within 30 days after the date of Provider’s invoice. If Customer fails to make any undisputed payment when due, then:

                    (a)     Provider may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law;

                    (b)     Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees; and

                    (c)     if such failure continues for 10 days following Provider’s written notice, Provider may either: (i) suspend performance of the Services until all undisputed past due amounts have been paid or (ii) terminate the Services and this Agreement, in either case, without liability to Customer.

          3.5     No Deductions or Setoffs. All amounts payable to Provider under this Agreement will be paid without any setoff or deduction (other than Service Credits which may be issued under the Service Level Agreement).

4.     Authorization and Customer Restrictions.

          4.1     Authorization. Conditioned on Customer’s payment of the Fees and compliance with this Agreement, Provider authorizes Customer and its Authorized Users to access and use the Services during the Term for Customer’s business operations. 

          4.2     Authorization Limitations and Restrictions

                    (a)     Except for Authorized Users, Customer shall not, and shall not permit any other person or entity to, access or use the Services. 

                    (b)     Unless expressly permitted by Provider or applicable law, Customer shall not:

                         (i)     bypass, breach, or disable any security device or protection used by the Application or Service, or access the Application other than by an Authorized User using his or her own valid Access Credentials;

                         (ii)    upload or transmit any Harmful Code (“Harmful Code” means information or materials that contain or activate any technology, including viruses or malware, that permits unauthorized access to or impedes the Application, Provider’s or Authorized Users’ Systems, or those of any third party, or prevents an Authorized User from accessing or using the Application);

                         (iii)   remove or alter any intellectual property notices from the Application or Provider Materials as defined in Section 6.1; or

                         (iv)   access or use the Application or Provider Materials in any manner that infringes or violates any Intellectual Property Right or other right of any third party or that violates any applicable law.

          4.3     Audit Right. Provider may access the account of Customer and any Authorized User only to determine compliance with this Agreement. Customer shall cooperate with Provider in conducting such audits and provide reasonable access requested by Provider to relevant records. Provider may only examine information directly related to the Customer’s use of the Services. 

5.     Customer Obligations. Customer is solely responsible for:

          5.1     All Customer Data (defined below), including its content and use, subject to Provider’s obligations as described in this Agreement.

          5.2     Evaluating the adequacy and results of the Services.

          5.3     Establishing and maintaining internal controls, including monitoring ongoing activities.

          5.4     All information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services. 

          5.5     The security and use of Customer’s and its Authorized Users’ Access Credentials and related permissions.

          5.6     Compliance with all applicable laws regarding the use of the Application and Services. 

          5.7     Authorized Users’ compliance with all terms in this Agreement.

6.     Data Usage and Ownership; Intellectual Property Rights.

          6.1     Definitions. For purposes of this Agreement, the following definitions apply:

                    (a)     “Customer Data” means information, data, forms, and other content that is collected from or generated or uploaded by Customer or an Authorized User. Customer Data includes the Application if and to the extent a separate agreement between the parties designates Customer as the owner of the Application; however, Customer Data excludes System Data and Feedback. 

                    (b)     “System Data” means system administrative data, statistical data, and operational information and data generated by or characterizing Customer’s or any Authorized User’s use of the Services.

                    (c)     “Feedback” means all suggestions, comments, and other feedback provided by Customer related to its use of the Services.

                    (d)     “Intellectual Property Rights” means all patent rights, copyrights, trade secret rights, rights of publicity, and other intellectual property rights. 

                    (e)     “Personal Information” means any information that identifies a specific individual.

                    (f)     “Process” means to take action with respect to data, including to collect, store, compile, copy, adapt, disseminate, transmit, and analyze. “Processing” and “Processed” have correlative meanings. 

                    (g)     “Provider Materials” means the Application (unless a separate agreement between the parties designates Customer as the owner of the Application), software and source code, information, data, documents, and materials, including any deliverables, plans or reports, that are provided or generated by Provider or any subcontractor in connection with the Services, including System Data. Provider Materials also include Feedback, but exclude Customer Data and Third Party Materials.

                    (h)     “Third Party Materials” means software, information, data, documents, and materials relating to the Services that are not owned by Provider or Customer.

          6.2     Ownership of Customer Data. As between Customer and Provider, Customer will remain the owner of all Customer Data, including related Intellectual Property Rights, subject to the permissions granted in Section 6.3.

          6.3     Consent to Use Customer Data. Customer hereby irrevocably grants to Provider: 

                    (a)     the right to Process Customer Data to the extent necessary to provide the Services to Customer and its Authorized Users; and

                    (b)     the right to Process Customer Data in such a way that renders it System Data. All System Data is owned exclusively by Provider.  

          6.4     Provider’s Intellectual Property Rights. Provider will be the exclusive owner of all Intellectual Property Rights in and to all Provider Materials. Customer hereby assigns to Provider all Intellectual Property Rights in and to the System Data and Feedback. Except as expressly provided, nothing in this Agreement grants or licenses to Customer any Intellectual Property Rights in or to the Services, Provider Materials or Third Party Materials.

7.     Confidentiality.

          7.1     Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and Personal Information, in each case whether or not marked, designated or otherwise identified as “confidential.” 

          7.2     Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not under any obligation to maintain its confidentiality; or (d) was independently developed by the Receiving Party without reference to or use of any Confidential Information. As used in this Agreement, “Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, subcontractors and legal advisors. Representatives also includes Customer’s Authorized Users.

          7.3     Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: 

                    (a)     not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; 

                    (b)     subject to Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7.3; and (iii) are bound by confidentiality obligations at least as protective as the terms in this Agreement;

                    (c)     safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own confidential information and in no event less than a reasonable degree of care; and

                    (d)     ensure its Representatives’ compliance with, and be responsible for any of its Representatives’ non-compliance with, the terms of this Section 7.

          7.4     Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable law to disclose any Confidential Information then the Receiving Party shall promptly and before such disclosure, notify the Disclosing Party so that the Disclosing Party can seek a protective order. The Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

8.     Term and Termination.

          8.1     Initial Term. Unless expressly stated otherwise on the Order Form, the initial term of this Agreement commences as of the Effective Date on the Order Form and, unless terminated as described in this Agreement, will continue for 12 months (“Initial Term”). This Agreement will automatically renew for successive 12-month terms unless either party gives written notice of non-renewal at least 60 days before the expiration of the then-current term. Collectively, these periods are referred to as the “Term.”

          8.2     Termination. In addition to any express termination right described in this Agreement:

                    (a)     Provider may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any undisputed amount within 30 days after being due. 

                    (b)     either party may terminate this Agreement, effective on written notice to the other party, if the other party: 

                         (i)     materially breaches this Agreement, and the breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the breaching party receives notice of the breach; 

                         (ii)    becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;

                         (iii)   files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject to any proceeding under any domestic or foreign bankruptcy or insolvency law; or

                         (iv)    makes a general assignment for the benefit of its creditors.

          8.3     Effect of Expiration or Termination. Upon any expiration or termination of this Agreement:

                    (a)     Except for Customer’s extraction rights described in Section 8.4, all rights, licenses, consents and authorizations granted by either party to the other will immediately terminate.

                    (b)     Provider may retain Customer Data: (i) in its backups, archives and disaster recovery systems until Customer Data is deleted in the ordinary course; and (ii) as required by applicable law. In either case, Customer Data will remain subject to all confidentiality and security requirements of this Agreement.

                    (c)     Each party shall promptly return or destroy (at the disclosing party’s request), all documents and materials containing, reflecting, incorporating or based on the disclosing party’s Confidential Information.

                    (d)     If Customer terminates this Agreement pursuant to Section 8.2(b), Customer shall pay Fees for Services until the effective date of termination. 

                    (e)     If Provider terminates this Agreement pursuant to Section 8.2(a) or Section 8.2(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will immediately be due. 

          8.4     Extraction Rights. For a 30-day period after termination or expiration of this Agreement (“Extraction Period”), Customer may access the Platform for the sole purpose of extracting Customer Data. Customer is solely responsible for extracting Customer Data during the Extraction Period. Customer’s access rights during the Extraction Period are conditioned on Customer’s payment in full of all outstanding Fees. After the Extraction Period, Customer Data will be permanently deleted (subject to incidental retention as permitted under Section 8.3(b)). 

          8.5     Surviving Terms. The following provisions will survive any expiration or termination of this Agreement: Section 4.3, Section 7, Section 8.3, Section 8.5, Section 9.4, Section 10, Section 11 and Section 13.

9.     Representations and Warranties.

          9.1     Mutual Representations and Warranties. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing; and (b) it has the full right and authority to enter into and perform its obligations under this Agreement.

          9.2     Additional Provider Warranties. Provider warrants that it will provide the Services and perform the Professional Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.

          9.3     Additional Customer Representations and Warranties. Customer represents and warrants that: 

                    (a) it owns or otherwise has (and will have) the necessary rights and consents related to the Application and Customer Data and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law, so long as the Application is used and Customer Data is Processed in accordance with this Agreement; and

                    (b) it will not provide any Prohibited Data in connection with this Agreement. 

          9.4     DISCLAIMER OF WARRANTIES. Except for the express warranties set forth in section 9, all Services and Provider Materials are provided “as is.” Provider hereby disclaims all warranties, whether express, implied, or statutory, and Provider specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage or trade practice. Provider makes no warranty that the Services or Provider Materials will meet Customer’s or any other Person’s requirements, operate without interruption (subject to the Service Level Agreement), achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code or error free. All Third Party Materials are provided “as is.”  

10.     Indemnification.

          10.1     Provider Indemnification. Provider shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Customer Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys’ fees (“Losses”) incurred by a Customer Indemnitee arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third party to the extent that such Losses arise from gross negligence, recklessness or willful misconduct by Provider in connection with this Agreement. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any Customer Data or Third Party Materials.

          10.2     Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its officers, directors, employees, agents, successors and assigns (each a “Provider Indemnitee”) from and against any and all Losses incurred by a Provider Indemnitee in connection with any Action by a third party to the extent that such Losses arise out of any: 

                    (a)     Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;

                    (b)     any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider; 

                    (c)     breach by Customer of any of its representations, warranties, or obligations under this Agreement; or

                    (d)     gross negligence, recklessness or willful misconduct by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement. 

          10.3     Indemnification Procedure. Each party shall promptly notify the other party of any Action. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of any Action. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its indemnity obligations unless Indemnitor can demonstrate that it has been materially prejudiced.  

          10.4     Mitigation. If any of the Services, or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense: 

                    (a)     obtain the right for Customer to continue to use the Services and Provider Materials; 

                    (b)     modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing equivalent features and functionality; or 

                    (c)     by written notice to Customer, terminate this Agreement, provided that Customer will be entitled to a refund of pro-rata refund of any prepaid fees.

                              THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PROVIDER MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. 

11.     Limitations of Liability.

          11.1     EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, DELAY OR INABILITY TO USE THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS UNDER THE SERVICE LEVEL AGREEMENT, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY UNLESS CAUSED BY THE OTHER PARTY’S GROSS NEGLIENCE OR INTENTIONAL MISCONDUCT, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY OF ITS ESSENTIAL PURPOSE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION RELATED TO THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE.

          11.2     CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE FEES PAID TO PROVIDER OVER THE PRIOR 12 MONTHS IMMEDIATELY PRECEDING THE EVENT CAUSING THE LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

12.     Force Majeure.

          12.1     No Breach or Default. In no event will either party be liable for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), if the failure or delay is caused by any circumstances beyond the party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, or failures of third-party telecommunications, utilities, data storage/processing, or network services providers. Either party may terminate this Agreement if a Force Majeure Event continues for a period of 30 days or more.

13.     Miscellaneous.

          13.1     Marketing. Provider may use of the Customer’s logos, trademarks and service marks (“Marks”) for the limited purpose of identifying the Customer as a customer of Provider on its website and marketing materials, provided that any such use will not imply endorsement by Customer of Provider or its products. Provider shall comply with the Customer’s usage guidelines and shall not assert any ownership interest in the Marks.

          13.2     Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

          13.3     Notices. All notices under this Agreement will be in writing and delivered to the addresses in the introductory clause of this Agreement. Each notice will be deemed to have been received by the party to which it was addressed: (i) when delivered if delivered personally, (ii) when received by the addressee if sent by overnight courier, (iii) on the fifth business day after the date of mailing if sent by certified mail, or (iv) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.

          13.4     Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

          13.5     Entire Agreement. This Agreement, together with any other documents referenced, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings and agreements, written or oral, with respect to such subject matter. If there is an inconsistency among this Agreement and any referenced document, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments and appendices; (b) second, the exhibits, schedules, attachments and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

          13.6     Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Provider’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Any purported assignment, delegation or transfer in violation of this Section 13.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

          13.7     No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties and their respective permitted successors and permitted assigns. This Agreement does not confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature.

          13.8     Amendment and Modification; Waiver. No waiver, amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver of any violation or nonperformance of this Agreement in one instance will be deemed to be a waiver of any subsequent violation or nonperformance.

          13.9     Severability. If any term or provision of this Agreement is deemed invalid or unenforceable, the remainder of this Agreement will be valid and enforced to the fullest extent permitted by law.

          13.10    Disputes. The rights and liabilities of the parties arising out of or relating to this agreement will be governed by the laws of the State of Oregon, exclusive of choice of law remedies. Any litigation between the parties will be conducted exclusively in state or federal courts in Oregon. 

SCHEDULE 1.1

SERVICE LEVEL AGREEMENT


1.     Standard Support Services. Subject to the terms and conditions of the Agreement and applicable Order Forms, during the Term, Provider will provide to Customer Provider’s standard customer support services, described below:

          1.1     Scope of Support Services.

                    (a)     Self-Service Tools. If available for the Application, Customers and Authorized Users will have access to Provider’s self-service support forum.

                    (b)     Phone Support. Customer and Authorized Users may contact Provider for telephone support Monday-Friday, 9 am – 5 pm Pacific time.

                    (c)     Email Support. Customer and Authorized Users may initiate support requests via email.

                    (d)     Response Time. Provider will make reasonable efforts to respond to inquiries and support requests within 24 hours. 

2.     Service Levels and Credits.

          2.1     Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Services Available at least 99.9% of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 2.2 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. 

          2.2     Exceptions. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement. The Services will not be considered un-Available and no Service Level Failure be deemed to occur in the event of any of the following: (a) access to or use of the Services by Customer or any Authorized User that does not strictly comply with this Agreement; (b) Customer’s or its Authorized User’s impaired Internet connectivity; (d) any Force Majeure Event; (e) any failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime (defined below); or (g) disabling, suspension or termination of the Services pursuant to Section 1.5.

          2.3     Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer of a portion of the monthly Fees for the Services due for the Service Period the Service Level Failure occurred (each a “Service Credit”), subject to the following: 

                    (a)     Provider has no obligation to issue any Service Credit unless (i) Customer reports the Service Failure to Provider within three days after becoming aware of it; and (ii) requests such Service Credit in writing within 15 days of the Service Level Failure; and

                    (b)     in no event will a Service Level Credit for any Service Period exceed 30% of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.

               Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred, unless the Service Period is the final Service Period of the Agreement, in which case the Provider will issue a refund for the Service Credit amount within 30 days. This Section 3.3 sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.

          2.4     Service Credit Calculation. The Service Credit will be calculated as a percentage of the total Services charges for affected Services during the Service Period.

          Service Availability           Credit Percentage

          99.90% - 100%                       0%

          98.00% - 99.89%                   10%

          97.00% - 97.99                      20%

          Below 97%                            30%

          2.5     Scheduled Downtime. Provider will: (a) schedule downtime for routine maintenance of the Services on Wednesdays between the hours of 8 p.m. and 10 p.m., Pacific Time; and (b) give Customer at least 24 hours prior notice of all scheduled outages of the Services (“Scheduled Downtime”).