TERMS AND CONDITIONS

Transcription

1 TERMS AND CONDITIONS PARTIES: (I) (II) Storm Analytics Corporation ( Storm Analytics ), a company incorporated in Canada, having its registered office at 143 Hearthstone NW, Edmonton, Alberta, Canada T6H 5E5; and The Subscriber, an Agency which has paid a subscription fee for the minimum term as specified on Schedule A. BACKGROUND: Storm Analytics and the Subscriber (collectively the Parties and each a Party ) wish to enter into an arrangement pursuant to which Storm Analytics will grant to the Subscriber the use of the Storm Analytics Platform and its related documentation and will provide certain related services to the Subscriber upon the terms and conditions set forth in this Agreement as specified in Schedules A and B. AGREEMENT: For valuable consideration, the receipt and sufficiency of which each of the Parties hereby acknowledges, the Parties covenant and agree with each other as follows: 1. Definitions and interpretation 1.1 In this Agreement, the following terms have the following meanings, and all other capitalized terms have the meaning ascribed elsewhere in this Agreement: (a) Approved Equipment means computer hardware, accessories and attachments and software (including operating systems) meeting or exceeding the specifications set forth in Schedule A. (b) Authorized Users means users as set out in Schedule A. (c) Authorized Subcontractors mean any and all subcontractors engaged by Storm Analytics. (d) Defect means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of: (i) (ii) an act or omission of the Subscriber, or an act or omission of one of the Subscriber's employees, officers, agents, suppliers or sub-contractors; or any Authorized User. an incompatibility between the Platform and any other system, application, program or software not specified as compatible in Schedule A; (e) Delivery Date shall be the date the subscriber first receives full login access. W CCSC Page 1 of 16

2 (f) Law means Canadian law, jurisdiction and language according to which all disputes shall be judged. (g) Minimum Term means the period specified as such in Schedule A; (h) (i) (j) "Permitted Purpose" means the Platform and User Documentation may be used by the Subscriber and its Authorized Users: (a) solely for the internal business purposes of the Subscriber and its Authorized Users; (b) solely for the analysis and interpretation of the Subscriber s Data and (c) in conjunction with Approved Equipment only. Platform means the particular web and desktop applications through which the Subscriber will be granted specific access to use the analytical tool(s) described in Schedule A. "Subscriber Materials" means all works and materials: (i) (ii) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Subscriber or by any person or application or automated system using the Subscriber's account; and otherwise provided by the Subscriber to Storm Analytics in connection with this Agreement; (k) (l) (m) (n) (o) Subscriber s Data means all data legally available for analysis to, and supplied by the subscriber and subject to the confidentiality inclusions and exclusions as described in section 8. "Support Services" means support and maintenance services provided or to be provided by Storm Analytics to the Subscriber in accordance with Schedule B; Term has the meaning set forth in paragraph 2 of this agreement. Upgrades means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform. User Documentation" means the documentation produced by Storm Analytics and supplied to the Subscriber specifying how the Platform should be used; 1.2 Interpretation: In this Agreement (including the Schedules): (a) a reference to this Agreement includes the referenced Schedules, which are incorporated into and form part of this Agreement; (b) a reference to this Agreement or herein, hereof, hereunder and other similar terms refers to this Agreement as a whole, including referenced Schedules, and not just to the particular provision in which those words appear; (c) headings are for reference only and do not define, limit or enlarge the scope or meaning of this W CCSC Page 2 of 16

3 Agreement or any of its provisions; (d) words importing persons include individuals, partnerships, associations, trusts, unincorporated organizations, societies, and corporations; (e) words importing the singular number only shall include the plural and vice versa; (f) words importing a gender include both genders; (g) reference to a day, week, month, quarter or year, means a calendar day, week, month, quarter or year, unless expressly stated otherwise; and (h) references to currency are to the lawful money of Canada. 2. Term The term of this agreement shall commence on the Delivery Date and shall continue unless and until terminated in accordance with the provisions of this Agreement and subject to continuous payment of the periodic subscription fee as set out in Schedule A. 3. Use of the Platform: 3.1 Storm Analytics will make available the Platform to the Subscriber on the Delivery Date by setting up an account for the Subscriber on the Platform, and providing to the Subscriber full login details for that account within three business days following the receipt of signed agreement. 3.2 Subject to the limitations and prohibitions set out in Clause 3.3, Storm Analytics hereby grants to the Subscriber the use the Platform for the Permitted Purpose in accordance with the User Documentation during the Term. 3.3 The use of the Platform granted by Storm Analytics to the Subscriber under Clause 3.2 is subject to the following limitations: (a) (b) The Platform may only be used by Authorized Users identified in Schedule A. Proprietary Rights: As between the Parties and notwithstanding any other provision of this Agreement: (i) Storm Analytics owns and will retain all right, title and interest (including without limitation intellectual property rights) in, to and associated with the Platform (including but not limited to its underlying software, algorithms and analytical methodologies but not including Open Source software components) and User Documentation and all improvements to or modifications or alterations of the Platform made by or on behalf of Storm Analytics or the Subscriber, including improvements, modifications and alterations of the Platform made by or on behalf of Subscriber using Source Code Materials; and (ii) Subscriber will retain all right, title and interest (including without limitation intellectual property rights) in, to and associated with the Subscriber s Data in connection with the Subscription, other than information otherwise available subject to W CCSC Page 3 of 16

4 Section 8.2. All rights not expressly granted under this Agreement are reserved to the Parties. (c) (d) (e) (f) (g) Responsibility for Authorized Users: Subscriber is solely responsible for the use of the Platform and User Documentation by Authorized Users. Security: Subscriber will use reasonable commercial efforts to protect the Platform against misuse or any form of unauthorized use. Disclosure to Third Parties: Except for Use of the Platform contemplated by this Agreement (including to and by Authorized Users), the Subscriber will not disclose, disseminate, transmit via any medium or make available the access code to any third party without Storm Analytics prior written consent. Source Code and Modifications: Except as otherwise agreed in writing by the Parties: (i) the Subscriber will not derive, discover or disclose, or attempt to derive, discover or disclose, by reverse compiling, reverse engineering, reverse assembling or otherwise, the source code for the Platform; or (ii) modify or alter the Platform except as required for the ordinary and intended use of the Platform as set forth in the User Documentation. The Subscriber must not use the Platform: (i) in any way that is unlawful, illegal, fraudulent or harmful; or (ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity. 4. Subscription Deliverables and Services 4.1 Platform Access and User Documentation: Upon execution of this Agreement, Storm Analytics will deliver to the Subscriber: (a) access to the Platform as specified in Schedule A; and (b) a full and complete electronic copy of the User Documentation. 4.2 Training: Electronic User Documentation provides the necessary training to effectively use the Platform. Onsite or supplementary training is available at the request of the Subscriber during the Term, as set forth in Schedule A. 4.3 Maintenance and Support: At the request of the Subscriber during the Term, Storm Analytics will make available and provide Maintenance and Support to the Authorized Users to the extent of which is described in Schedule B at no extra cost over and above the subscription fee. Fees for extraordinary support may apply according to Schedule B. 4.4 Additional Services: Upon request by the Subscriber, Storm Analytics may at its discretion provide additional services to or for the benefit of the Subscriber (collectively, Additional Services ). Additional Services may be W CCSC Page 4 of 16

5 provided subject to this Agreement and such additional terms and conditions (including payment of additional fees and expenses) as the Parties may agree in writing. 5. Upgrades 5.1 Upgrades shall be provided subject to the specifications listed in the Service Level Agreement in Schedule B. 5.2 Storm Analytics may sub-contract the provision of any of the Support Services without obtaining the consent of the Subscriber provided that support levels and confidentiality obligations specified in this agreement are maintained. 6. Fees and Payments: 6.1 Subscription Payments: The subscription fee is due and payable upon execution of this agreement. Subsequent subscription fees are due on or before the beginning of the applicable term. 6.2 Additional Service Payments: Fees for Additional Subscriptions, Implementation Services, Training, Consulting and Additional Services are due and payable within thirty (30) days after receipt by the Subscriber of the applicable invoice from Storm Analytics. Overdue payments of fees and other charges and applicable Taxes will be subject to a finance charge of one percent (1%) for each month (being an effective annual rate of approximately 12.58% per annum) or fraction thereof that the payment is overdue, or the highest rate permitted by applicable law, whichever is lower. 6.3 Changes in Fees: Subscription Fees, Training, and Consulting Fees may be subject to increase by Storm Analytics with not less than ninety (90) days prior notice. 6.4 Minimum Term Obligation: Fees for early cancellation, prior to the completion of the one (1) year minimum term, are due and payable on the date that cancellation notice (as described in Section 12.2) is given. These fees are in addition to subscription fees that apply up to the termination date. Confidentiality and Publicity 7. With regard to Storm Analytics Software and Trade Secrets: 7.1 Confidentiality Obligation: Subscriber will: (i) provide the Platform Login Access Code and User Documentation only to its Authorized Users and only to the extent that such disclosure is necessary to Use the Platform and User Documentation in accordance with this Agreement or perform its obligations or enforce its rights under this Agreement; and (ii) both during the Term and for a period of ten (10) years after the termination of this Agreement, maintain the strict confidentiality of Storm Analytics trade secrets embodied in the W CCSC Page 5 of 16

6 Platform or User Documentation (the Trade Secrets ) using the same degree of care as it affords to its own confidential information of a similar nature which it desires not to be published or disseminated, and in no event less than reasonable care, to prevent the unauthorized use or disclosure of the Trade Secrets. 8. With regard to the Subscriber s Confidential Information 8.1 Confidentiality Obligation: By virtue of this Agreement, Storm Analytics may have access to information that is confidential to the Subscriber or is subject to privacy or confidentiality obligations by which the Subscriber is bound, including but not limited to information in any form (whether written, electronic or oral) about the Subscriber s business or finances, business, marketing or otherwise strategic plans, trade secrets, clients or in the case of a government agency; citizens, and other proprietary and confidential information that derives actual or potential value from not being generally known or readily ascertainable or is clearly identified as private or confidential (collectively, Confidential Information ). Storm Analytics will: (i) use Confidential Information only as necessary to perform its obligations or enforce its rights under this Agreement; (ii) disclose Confidential Information only to its personnel and only to the extent that such disclosure is necessary to perform its obligations or enforce its rights under this Agreement; (iii) both during and indefinitely after the Term, maintain the strict confidentiality of Confidential Information using the same degree of care as it affords to its own confidential information of a similar nature which it desires not to be published or disseminated, and in no event less than reasonable care, to prevent the unauthorized use or disclosure of Confidential Information; and (iv) ensure that each person to whom it discloses Confidential Information maintains the strict confidentiality of Confidential Information and fully complies with all restrictions, requirements and other provisions in this Agreement regarding the use, disclosure, return and destruction of Confidential Information. 8.2 Exceptions: Information will not be considered to be Confidential Information to the extent, but only to the extent, that such information is: (i) already known to Storm Analytics free of any restriction at the time it is obtained; (ii) subsequently learned by Storm Analytics from an independent third party free of any restriction and without breach of this Agreement or any agreement with such third party or any other confidentiality obligation; (iii) or becomes publicly available through no wrongful act of Storm Analytics; or (iv) independently developed by Storm Analytics without reference to any Confidential Information. 8.3 Confidential Data protection: Storm Analytics will protect the Subscriber s Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care. 8.4 Return/Destruction of Confidential Records: At any time upon request by Subscriber and immediately upon termination of this Agreement, Storm Analytics will promptly: (i) destroy all Subscriber s data, documents, records W CCSC Page 6 of 16

7 and materials containing Confidential Information in Storm Analytics possession, power or control; and (ii) delete all Confidential Information from any and all of Storm Analytics computer systems, retrieval systems and databases. 8.5 Publicity of Arrangement: Except as set forth above, Storm Analytics will not publicize or otherwise disclose the existence of this Agreement, the arrangement set forth in this Agreement or its business dealings with the Subscriber or its Affiliates without the Subscriber s prior written consent, which consent may be withheld at the Subscriber s discretion. During the Maintenance and Support Term, Storm Analytics may publish statements relating to the Subscriber s experience with the Platform, provided that such statements are subject to the Subscriber s approval, such approval not to be unreasonably withheld. 9. Warranties 9.1 The Subscriber warrants and represents to Storm Analytics that it has the legal right and authority to enter into and perform its obligations under this Agreement. 9.2 Storm Analytics warrants and represents to the Subscriber: (a) (b) (c) (d) that it has the legal right and authority to enter into and perform its obligations under this Agreement; that it will perform its obligations under this Agreement with reasonable care and skill; that the Platform will be available to the Subscriber in accordance with the uptime commitments given in Schedule B; that the Platform (excluding for the avoidance of doubt the Subscriber Materials) will not: (i) (ii) (iii) breach any laws, statutes, regulations or legally-binding codes; infringe any person's Intellectual Property Rights or other legal rights; or give rise to any cause of action against Storm Analytics or the Subscriber or any third party, in each case in Canada and under Canadian law; and (e) The Platform is and will remain reasonably free from defects, errors and bugs. 9.3 The Subscriber acknowledges that: W CCSC Page 7 of 16

8 (a) (b) (c) Complex software is never wholly free from defects, errors and bugs, and Storm Analytics gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs; Storm Analytics does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible in Schedule A.; and Storm Analytics will not and does not purport to provide any legal advice under this Agreement or in relation to the Platform and (except to the extent expressly provided otherwise) Storm Analytics does not warrant or represent that the Platform will not give rise to any civil or criminal legal liability on the part of the Subscriber or any other person. 10. Indemnities Storm Analytics will defend, indemnify and save and hold harmless the Subscriber and each of its Authorized Users from and against any and all Claims and Proceedings directly or indirectly arising from, connected with or relating to: (a) any breach of this Agreement by Storm Analytics; (b) any negligence or misconduct by Storm Analytics or any other person (including Authorized Subcontractors) for whom Storm Analytics is under this Agreement or in law responsible; or (c) any proven or unproven allegation or claim that the Platform, User Documentation, Services or Storm Analytics performance of its obligations under this Agreement infringes or violates any applicable laws or the rights (including intellectual property, industrial property, moral, privacy, and publicity rights) of any other person, provided that the foregoing item (c) does not apply to the extent, but only to the extent, that the infringement or violation is caused by: (i) any modification of the Platform by the Subscriber; (ii) the Subscriber s failure to use the latest version of Platform made available to it by Storm Analytics as part of Maintenance Services, to the extent the claim would have been avoided had Subscriber been using the latest version; or (iii) the Use of Platform in breach of this Agreement, if the infringement would have been avoided absent of such breach. The Subscriber and each of its Authorized Users retain the right to participate in the defense of and settlement negotiations relating to any and all Claims and Proceedings as a result of this subscription with counsel of their own selection at their sole cost and expense. Storm Analytics will not settle a Claim or Proceeding in relation to this subscription without the prior written consent of the Subscriber, which consent will not be unreasonably withheld or delayed. Storm Analytics will assist and co-operate as fully as reasonably required by the Subscriber in the defence of any and all Claims and Proceedings resulting from this subscription. 11. Limitations and exclusions of liability 11.1 Liability Exclusions: Under no circumstances will either Party or its Representatives be liable to the other Party or its Representatives for any W CCSC Page 8 of 16

9 economic loss of whatever nature (including loss of data or loss of business, income, profits or anticipated savings) or for any in indirect or consequential loss or damage, arising from, connected with, or relating to this Agreement and/or the use of the Platform, however caused and under any theory of liability Disclaimer: Except as expressly set forth in this Agreement, the Parties disclaim any and all representations, warranties, conditions and guarantees of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or performance, including without limitation implied warranties of merchantability and fitness for any particular purpose. 12. Termination 12.1 Either party may terminate this Agreement immediately by giving written notice to the other party if the other party: (a) commits any material breach of any term of this Agreement, and: (i) (ii) the breach is not remediable; or the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or (b) persistently breaches the terms of this Agreement (irrespective of whether such breaches collectively constitute a material breach) Termination for Convenience by Either Party: Notwithstanding any other provision of this Agreement, either Party may in its discretion terminate this Agreement upon ninety (90) days written notice to the other party. Termination by the Subscriber in the first year may be subject to a cancellation fee as set forth in Section 6.4. Termination by Storm Analytics will result in a refund of prepaid subscription fees. 13. Effects of termination 13.1 Survival: Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7, 8, 10, 11, 12, 13, and General Matters 14.1 Force Majeure Event: No Party will be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such Party or for which such Party could not have reasonably prepared to avoid the resulting delay or failure of performance (a Force Majeure Event ). Any delay or failure of this kind will not be deemed to be a breach of this Agreement and the time for performance of the affected obligation will be extended by a period that is reasonable in the circumstances. A Party W CCSC Page 9 of 16

10 claiming the benefit of this clause will use reasonable efforts to mitigate the effect of any Force Majeure Event, and will promptly advise the other Parties of the occurrence of the Force Majeure Event and the date by which its performance may reasonably be expected to resume Notices: All notices to be given under this Agreement will be in writing and will be delivered by personal delivery, by overnight or express courier, or by facsimile transmission or by read receipt verified to a Party at the address, facsimile number and/or address set forth below or at such other addresses and facsimile numbers as may from time to time be notified in writing by that Party pursuant to this paragraph A notice delivered personally or by courier will be deemed to have been received on the next business day following the date of delivery. A notice delivered by facsimile will be deemed to have been received on the next business day following the date of transmittal and acknowledgement of receipt by the recipient s fax machine. A notice delivered by read verified will be deemed to have been received on the date following the date the read receipt is transmitted Assignment: This Agreement and each Party s rights, duties and obligations under this Agreement are personal to that Party, and neither Party may, by operation of law or otherwise, assign, transfer, delegate, license, sub-license or grant this Agreement or its rights, duties and obligations under this Agreement without the other Party s prior written consent, such consent not to unreasonably withheld or delayed, provided that each Party may assign this Agreement (including the Subscription) in any merger, consolidation, or reorganization or any acquisition or sale of all or substantially all of the Party s assets if the surviving or acquiring person agrees in writing to be bound by this Agreement Further Assurances: Each of the Parties will execute any further documents and do any further acts or things that may be necessary to implement and carry out the intent of this Agreement Severability: If any provision of this Agreement is held to be invalid or unenforceable for any reason, then the provision will be deemed to be severed from this Agreement and the remaining provisions will continue in full force and effect without being impaired or invalidated in any way, unless as a result of any such severance this Agreement would fail in its essential purpose Governing Law: This Agreement and the subject matter of this Agreement and all related matters will be governed by, and construed in accordance with, the laws of Alberta, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws that would lead to the application of any other laws Dates and Times: This Agreement and the subject matter of this Agreement and all related matters will be in reference to Edmonton, Alberta, Canada s date and time zone Counterparts and Execution by Fax or Receipt Verified This Agreement may be executed and delivered in one or more counterparts, which may be executed and delivered by facsimile transmission or W CCSC Page 10 of 16

11 delivered pdf document, and each counterpart when so executed and delivered will be deemed an original, and all such counterparts will together constitute one and the same document Complete Agreement: This Agreement (including Schedules A and B) sets forth the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes any and all previous communications, representations, negotiations, discussions, agreements, or understandings, whether oral or written, between them with respect to the subject matter of this Agreement. This Agreement may be modified only by a written instrument signed by both Parties or their successors or permitted assigns. W CCSC Page 11 of 16

12 Schedule A Subscription Details Delivery Date: The Delivery date shall be within 3 business days of receipt of a signed agreement. Authorized Users: All employees, officers, agents or sub-contractors of the Subscribing Agency where the total aggregate count of these do not surpass the Number of Officers limit as set forth in the Plan Prices of this schedule. Minimum Term: The Minimum Term without incurring a cancellation fee shall be the period of 1 year following the Delivery Date. Platform: Daily Crime Forecast Approved Equipment: The Platform will be designed to interface with the following systems, applications, programs and software: Computer and processor Memory Hard disk Display 500 MHz or faster processor 256 MB RAM or more 2.0 GB available disk space 1024x576 or higher resolution monitor Operating system Windows XP (must have SP3) (32-bit), Windows 7, Windows Vista with Service Pack (SP) 1, Windows Server 2003 with SP2 and MSXML 6.0 (32-bit Office only), Windows Server 2008, or later 32- or 64-bit OS. Supported web browsers Internet Chrome 28.0 or above (preferred), or FireFox 17.0 and above, or Internet Explorer 9 and above Internet connection required User Documentation User Documentation Desktop and Web Portal electronic user documentation Subscription: Term Period: Authorized Users 1 Year Agency Personnel W CCSC Page 12 of 16

13 Plan Prices: Small Agency Medium Agency Large Agency X-Large Agency Annual Subscription $4,992 $9,996 $14,988 Call Us Number of Officers Data Integration Hours Included 4 hours 8 hours 12 hours Included in quote Forecast Inclusions Unlimited Unlimited Unlimited Unlimited 2 year subscription 15 % Discount 15 % Discount 15 % Discount 15 % Discount Other Fees: Pre-term Cancellation (first year only) Maintenance / Support Data Integration Subscriber requested consulting or on-site training or supplementary training 20% of annual term fee Included with Subscription Fee Plan Specified Limits: No Charge Complex Installations: CAD $150/hour Labour: CAD $150/hour Plus (+) expense reimbursement Taxes: All fees are exclusive of and subject to applicable taxes. W CCSC Page 13 of 16

14 Schedule B Service Level Agreement Platform specification: Daily Crime Forecast 1. Introduction This document contains the Service Level Agreement for the Platform as specified above. Please read it carefully as this is the official agreement in force at the present time. The agreement listed below supersedes any other written document you may have prior to today's date. If you have questions or comments about this agreement, please do not hesitate to contact us. 1. Definitions: 1.1 In this Schedule: (a) (b) "New Functionality" means new functionality that is introduced to the Platform by an Upgrade; and "Protected Functionality" means the forecasting of crime in a web application interface. 1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated. 2. Support 2.1 During the maintenance term, Storm Analytics shall provide maintenance services in support of the Platform. Maintenance Services shall include both technical support services and Platform releases. 2.2 Support Services: Subject to the terms and conditions of this Agreement, Storm Analytics shall provide Customer with support services as described in this section. (a) (b) (c) Support: Storm Analytics shall provide initial response support within 24 hours, Monday to Friday, excluding all public holidays. Address: info@stormanalytics.com. Support requests outside standard service hours: All s will receive a response during the next normal business day. Remote Support: Initial support will be provided in part by directing Subscriber to applicable help documentation available for the Platform. If this proves insufficient to resolve the support request, if Subscriber grants explicit permission, and if Customer establishes and maintains the appropriate network configuration, Storm Analytics personnel will W CCSC Page 14 of 16

15 access the Platform remotely and provide remote support via a secure connection. 2.3 Platform Releases: As part of its maintenance services, Storm Analytics may provide periodic Platform Releases. 3. Limitations on Scope of Maintenance Services. 3.1 Storm Analytics shall have no obligation to provide Releases or Support for the Platform except as set forth in this Services Agreement. Storm Analytics shall not have any responsibility to develop subsequent components for the Platform or additional processes for Customer, except as explicitly set forth herein. 3.2 Customer rights and obligations concerning the use of any Releases (Error Corrections, Enhancements, or any other programming provided by Storm Analytics relating to the Platform) shall be as provided under the Subscription and Service Agreement between Subscriber and Storm Analytics. Storm Analytics shall have sole and exclusive ownership of all right, title, and interest in and to such works (including ownership of all copyrights and other intellectual property rights pertaining thereto), subject only to the subscription expressly granted to Subscriber therein. 3.3 Maintenance Services do not include: (a) development of custom computer code or programs, (b) repairs or service relating to any third party Platform or hardware, or (c) hardware modifications or changes to existing hardware configurations, or (d) additional integration work beyond initial installation. 3.4 Extraordinary Support Services: Support will be provided at no extra cost over and above the subscription fee, providing the support requests are reasonable. Extraordinary support requests may be subject to Storm Analytics consulting fees. Extraordinary support will be that which a reasonable person would consider excess in the situation to which it applies. Should the subscriber wish to terminate the agreement as opposed to paying the additional support fees, a refund of unused access fees will be available for the unsatisfied period of the term. 4. Upgrades 4.1 The Subscriber acknowledges that from time to time during the Term, Storm Analytics may apply Upgrades to the Platform, and that such Upgrades may, subject to Paragraph 4.2, result in changes to the appearance and/or functionality of the Platform. 4.2 No Upgrade shall disable, delete or significantly impair the Protected Functionality. 4.3 The Provider will give to the Subscriber reasonable prior written notice of the application of any significant Upgrade to the Platform. Such notice shall W CCSC Page 15 of 16

16 include details of the specific changes to the functionality of the Platform resulting from the application of the Upgrade. 4.4 The Subscriber shall not be subject to any additional Charges arising out of the application of the Upgrade, save where: (a) (b) (c) (d) the Upgrade introduces New Functionality to the Platform; that New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade; access to or use of the New Functionality is chargeable to the Subscribers of Storm Analytics using the Platform generally; and any decision by the Subscriber not to pay the Charges for the New Functionality will not prejudice the Subscriber's access to and use of the rest of the Platform. 5. Uptime commitment: Storm Analytics will guarantee 98% uptime for its Platform. 6. Back-up and restoration All data on the Storm Analytics Platform is backed-up daily and can be restored as required to maintain service levels. 7. Scheduled maintenance Scheduled maintenance for the Platform will occur on Sundays between hours as required. W CCSC Page 16 of 16