TERMS AND CONDITIONS FOR PEGASYSTEMS PRODUCTS AND SERVICES

Transcription

1 All references to Pegasystems, Inc ( Pegasystems ) in these Terms and Conditions should be read as Contractor (immixtechnology, Inc.), acting by and through its supplier, Pegasystems. TERMS AND CONDITIONS FOR PEGASYSTEMS PRODUCTS AND SERVICES MASTER SOFTWARE LICENSE, MAINTENANCE & PROFESSIONAL SERVICES AGREEMENT Pegasystems products include its Pega Platform for business process management, and strategic applications and technology components that provide purpose-specific or industry-specific functionality that enable customers to efficiently deploy the Pega Platform for specific solutions. These products are comprised of Pegasystems provided RuleSets that Customer may use to develop Customer Applications comprising one or more new RuleSets for processing and automation of its business, as described in a License Schedule to this Agreement. Customer may integrate these Customer Applications to its other systems through Service and Connector facilities. Customer may also obtain professional services and training under a Work Order. Licenses 1. License Grant. (a) Pegasystems grants to Customer or its applicable Affiliate a non-exclusive license to use the Software, in object code and/or RuleSet form, for the Scope of Use specified in the applicable License Schedule. This license is non-transferable, except as provided in Paragraphs 15(b) and (c). Pegasystems retains all rights not expressly granted to Customer in this Agreement. (b) Customer may use the Software on any Technology Platform that is then generally supported by Pegasystems, and may switch from one generally supported Technology Platform to another (e.g., from a Windows environment to a Linux environment) at no additional charge. (c) Unless specifically authorized by law, Customer may not reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from the Software. Customer agrees not to lease or sublicense the Software to any third party or otherwise use it except as permitted under this Agreement or the applicable Schedule. (d) In each License Schedule, Customer will commit to purchase licenses for production use of each Customer Application at the time that development of the Customer Application begins. Customer will not use shared User IDs, or aggregating technologies such as concentrators, multiplexers, gateways or edge servers, to avoid or reduce the counting of individuals that use the Software. (e) Pegasystems retains all right, title and interest to the Software and Background Materials. The Software will contain Pegasystems copyright notice, and Customer will reproduce such notice in any permitted copy made by Customer. 2. Reserved. Maintenance 3. Maintenance. In a License Schedule, Customer may purchase maintenance services as described in the applicable Maintenance Schedule. The following terms and conditions will apply to maintenance services: immixtechnology, Inc. Page 1 reformatted

2 (a) If Customer elects not to renew maintenance, the election must be for all of the Software licensed under the applicable License Schedule. In addition, if Customer cancels maintenance under any License Schedule, it agrees that it cannot use maintenance services that remain in effect under another License Schedule for the benefit of any Customer Application that is covered by the License Schedule for which maintenance was cancelled. (b) Reserved. (c) In the event that Customer elects not to renew maintenance, and then later elects to purchase maintenance, any reinstatement of maintenance services will be subject to the mutual agreement of the parties and Customer s payment of all fees that would have been payable from the time that Customer discontinued maintenance to the time of its reinstatement. Services and Training 4. Performance of Services; Deliverables. (a) Pegasystems may provide Services to Customer under a mutually agreed Work Order. (b) All Deliverables that Pegasystems creates during the course of Services for Customer under this Agreement will be a work made for hire and will become, effective upon payment by Customer in full, the exclusive property of Customer. Customer will also retain all right, title and interest in any new RuleSets that Customer develops for itself using the Software. So long as Pegasystems has not used any Customer Confidential Information, Customer agrees not to challenge or make claims against Pegasystems ability to provide its products and services to other customers. (c) Pegasystems may use its Background Materials in the course of providing Services to the Customer. Background Materials will at all times remain the property of Pegasystems, and Customer will receive a nonexclusive, fully-paid license to use the Background Materials that are provided under a Statement of Work solely in connection with the Deliverables with which they were provided under the terms of the applicable License Schedule. General Terms and Conditions 5. Reserved. 6. Reserved. 7. Reserved. 8. Representations and Warranties. (a) Each party represents and warrants that entering into and carrying out the terms and conditions of this Agreement will not violate any obligation binding upon it; that each party will comply with all applicable laws in connection with its performance under this Agreement; and that the executing persons have the authority to bind their respective parties. (b) Pegasystems warrants that for a period of 90 days from the initial delivery of the Software: (i) The Software will operate substantially in accordance with its Documentation; and (ii) No disruptive or corrupting software that would damage, disable or compromise the security of a Customer Application will be introduced into the Software by Pegasystems or its employees. Customer will conduct viruschecking procedures before allowing installation or using the Software, and for each new version, upgrade or service pack. Pegasystems will, at its election, promptly repair the Software to resolve any failure of these warranties, which can be replicated or verified, or replace the Software with alternative software that provides substantially the same immixtechnology, Inc. Page 2 reformatted

3 functionality. These remedies will be Customer s remedy for any failures of these warranties. In order for Customer to invoke these remedies, Customer must provide written notice to Pegasystems within the warranty period, expressly outlining the nature of the alleged failure or breach. (c) The foregoing warranties will be void to the extent that any failure of such warranties is caused by (i) anyone other than a Pegasystems employee modifying the Software (unless Pegasystems authorizes the specific change in writing), or (ii) non-pegasystems software or hardware. (d) Pegasystems warrants that all services provided under this Agreement will be performed in a good and workmanlike manner, consistent with industry standards. (e) EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8, PEGASYSTEMS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. 9. Reserved. 10. Reserved. 11. Inspection/Acceptance. The Contractor (immixtechnology, Inc.) can only, and shall only tender for acceptance those items that substantially conform to the software manufacturer s ( Pegasystems ) published specifications. Therefore, items delivered shall be considered accepted upon delivery. The Government reserves the right to inspect or test any supplies or services that have been delivered. The Government may require repair or replacement of nonconforming supplies or re-performance of nonconforming services at no increase in contract price. If repair/replacement or re-performance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights- (1) Within the warranty period; and (2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item Outsourcing. Customer will be permitted to allow a third party service provider to use the Software as part of a technology outsourcing arrangement or to assist Customer in the development of a Customer Application, provided that: (a) such use is solely for the benefit of Customer and subject to the terms and conditions of this Agreement; and (b) Customer informs Pegasystems in writing and provides reasonable assurances that the requirements of this Section have been satisfied. 13. Reserved. 14. Insurance. During the term of this Agreement and for so long as any Schedule has not been terminated or expired, Pegasystems will maintain insurance coverage with limits no less than those set forth below. Property/Casualty/Fire Insurance - To cover Lease Requirements & Inventory Replacement Basis Commercial General Liability $1 Million Workers Compensation Statutory Employers Liability $1 Million Automobile Liability $1 Million Professional Liability (Errors & Omissions) $1 Million immixtechnology, Inc. Page 3 reformatted

4 Umbrella/Excess Liability $5 Million Fidelity Bond $1 Million The insurance companies used must be rated at least A- by A.M. Best's Rating Service or equivalent. Upon written request by the Customer, Pegasystems will provide a Certificate of Insurance evidencing the required insurance or Customer may obtain such certificate directly from: Additional Terms and Conditions. (a) Reserved. (b) Reserved. (c) Customer Combinations. In the event that Customer should merge with, acquire, or be acquired by another entity (collectively, a Combination ), the resulting combined entity may only use the Software within the scope of the Customer s operations at the time of the Combination. (d) Anti-Corruption. Pegasystems and Customer each represent and warrant to the other: (i) that it is aware of all anti-corruption legislation that applies to this Agreement and in particular the US Foreign Corrupt Practices Act 1977; (ii) it has implemented rules and procedures that enable it to comply with this legislation and adapt to any future amendments thereto; (iii) it has implemented appropriate rules, systems, procedures and controls for preventing the commission of Corrupt Acts, either by itself or its staff, and for ensuring that any evidence or suspicion of the commission of a Corrupt Act will be thoroughly investigated and unless prohibited by confidentiality or law, reported to the other party; (iv) its records relating to its business, including accounting documents, are maintained and kept so as to ensure their accuracy and integrity; and (v) it has not made or offered or received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party s employees or agents in connection with this Agreement (reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction). If a party learns of any violation of the above restriction, it will use reasonable efforts to promptly notify the other party at the address for notices above. (e) Reserved. (f) Export Compliance. The export and re-export of the Software and any Pegasystems technology is subject to export controls under the laws and regulations of the United States, and may also be subject to export and import controls under the laws and regulations of other countries. Customer agrees, at all times, to comply fully with these controls, laws and regulations. (g) U.S. Government Contracts. This subsection applies when any Software is acquired directly or indirectly by or on behalf of the United States Government: The Software is a commercial product, licensed on the open market; developed entirely at private expense; and without the use of any U.S. Government funds. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c) of the Commercial Computer Software Restricted Rights clause at FAR Use, duplication and disclosure by DOD agencies is subject solely to the terms of this Agreement as stated in DFARS (h) Cooperation; Usage Validation. Subject to Customer s security policies and procedures, Pegasystems and Customer agree that each will execute and deliver documents, including confirmations to Pegasystems auditors, and take such other actions as may reasonably be requested to effect the transactions contemplated by this Agreement. Pegasystems reserves the right, upon reasonable prior notice, to validate Customer s usage of the Software and its compliance under this Agreement. Customer will provide usage logs generated by the Software in connection with this usage validation. (i) Reserved. (j) Reserved. immixtechnology, Inc. Page 4 reformatted

5 (k) (l) (m) (n) Reserved. Reserved. Reserved. Reserved. Exhibit A Definitions For the purposes of the Agreement and any Schedule, the following definitions will apply, unless otherwise expressly stated: Affiliates are those entities that control, are controlled by, or are under common control with a party to the Agreement. Affiliates may be entitled, subject to the terms of this Agreement and the applicable Schedule, to license Software, use Software licensed by Customer, or purchase maintenance or professional services. For the purpose of any Schedule to which an Affiliate is a party, the Affiliate will be additionally considered the Customer for purposes of the Agreement and such Schedule. Background Materials means processes, methods, software (including but not limited to the Software), related documentation, designs and know-how which Pegasystems creates independently of the services for Customer. Background Materials also include all tangible and intangible materials created by Pegasystems that apply to other Pegasystems customers and which do not include any Customer Confidential Information. Connector means an integration facility that permits the Software to call applications for data or processing. Corrupt Act shall mean any act of seeking, authorizing, offering, promising or granting a financial or other benefit (including a payment, loan, gift or transfer of anything of value) for the purpose of inducing a private person or public official to perform his or her duties dishonestly or in breach of his or her professional, legal or contractual obligations and/or to obtain or retain business for Pegasystems and or Customer in an undue or dishonest manner. Customer Application means a unique collection of rules and processes as part of one or more new RuleSets that are created using the Software and that provide specific business function for the Customer. Deliverable means RuleSets, documents and other tangible work product that are produced by Pegasystems for Customer during the course of the performance of Services under a Work Order, excluding any Background Materials. Documentation consists of user manuals for the Software, which are provided to Customer in electronic form at the time of delivery of the Software. License Schedule, Maintenance Schedule or Work Order means, respectively, a signed agreement to license products, purchase maintenance or purchase professional services from Pegasystems. License Schedules, Maintenance Schedules and Work Orders are referred to collectively as Schedules. Each Schedule will be non- immixtechnology, Inc. Page 5 reformatted

6 cancelable and non-refundable, except to the extent expressly provided in this Agreement or such Schedule or under applicable law. A RuleSet is a named collection of configuration records created using the Software. For Pegasystems provided RuleSets, the RuleSet names usually begin with Pega or the or ) symbol. Scope of Use means the licensed purpose, licensed metric and licensed volume of use for the Software specified in the applicable License Schedule. Service means an integration facility that permits applications to call the Software for data or processing. Services means professional services provided by Pegasystems pursuant to a Work Order for consulting, installation support, and access to training courses. Services do not include maintenance. Software will mean the software listed in the applicable License Schedule which is made available to Customer in machine readable, object code form, including any enhancements, updates, upgrades, modifications or other releases provided to Customer pursuant to a paid maintenance agreement. The Software includes Pegasystems provided RuleSets. Technology Platform will mean hardware, operating system, database, web browser, application server or other software on which Customer utilizes the Software. A User is a person who uses the Software in a particular month. 1. A Sporadic User is a person that uses the Software during less than 10 hourly periods in a calendar month. 2. An Occasional User is a person that uses the Software during between 10 and 50 hourly periods in a calendar month. 3. Any person other than a Sporadic User or Occasional User that uses the Software in a calendar month, or that has the privilege to modify rules or processes, is a Regular User. Regular Users, Occasional Users and Sporadic Users will be the unit of measurement for work done by customer staff. The number of Regular Users, Occasional Users and Sporadic Users will be measured each calendar month based on their actual usage of the Software in that month. The Software tracks only actual use, so a person who has a User ID but does not use the Software in a month will not be counted as a User for that month. Also, for the avoidance of doubt, merely being logged in is not counted as actual use during inactive hours. PREMIUM MAINTENANCE SCHEDULE Subject to Customer purchase of such maintenance services, Pegasystems will provide Customer maintenance services comprising Problem Resolution, Software Updates, Upgrades and access to the Pega Discovery Network (together, Support ). Pegasystems will provide Support in accordance with the procedures described in Pega, the Pegasystems customer support handbook, as updated from time to time. Pegasystems may not update the Pega document in a manner that would materially and adversely affect the rights of Customer to Support under this Maintenance Schedule. immixtechnology, Inc. Page 6 reformatted

7 Problem Resolution Pegasystems will repair errors or problems with the Software so that the Software operates in substantial accordance with its Documentation. Problem Resolution includes: Support: Issues may be reported by Customer s Designated Contacts via Pegasystems support portal or via telephone. Pegasystems will work with the Customer to provide relief and/or a permanent solution to all Support Requests (SRs). Designated Contacts: Customer will provide Pegasystems with designated people who may contract Pegasystems support. Customer may change these contacts upon written notice to Pegasystems, and it is the responsibility of Customer to update the contacts (e.g., if one of the designated contacts is no longer employed by Customer or authorized by Customer to contact Pegasystems support). Access: Access to Customer s systems shall be controlled at all times by the Customer. Access shall be provided to Pegasystems on an as needed basis, as approved by Customer. Customer agrees to allow Pegasystems to use a software tool to view Customer s desktop environment using a secure, encrypted connection in order to allow Pegasystems to provide real time response, access and resolution of issues or to promptly apply critical Software repairs. During any Support session in which Pegasystems has electronic access to Customer s systems, access to such systems must include persistent connectivity with reasonable throughput and bandwidth available to perform all necessary functions. All changes by Customer to electronic access should be communicated to Pegasystems in a timely manner. The scope of Problem Resolution is as described in Table A and Table B below: Problem Resolution Coverage Support Table A Premium Coverage For Severity 1 (Down Production Emergencies): 24 X 7 For all other Severity Levels: 9AM 5PM standard business days, if: in the US, US ET; in Europe, GMT; in Asia Pacific, Australian ET Number of Calls Unlimited Telephone support within coverage hours Included Secure access to Knowledge Base FTP site Included Severity 1 Initial Target Response Time 15 minutes ** Severity 2 Initial Target Response Time 1 hour * Severity 3 Initial Target Response Time 4 hours * Severity 4 Initial Target Response Time 8 hours * * Initial response during standard business days ** Initial response, 24x7 Severity Level 1 Severity Level Description Support Table B Severity 1 is used in instances in which the Pegasystems production system is down or the Software is otherwise unusable resulting in massive disruption of production use. Pegasystems goal for providing initial relief (such as an alternative method to restore system operations) for Severity 1 cases is within 4 hours. The timeframe for providing a permanent resolution for Severity 1 issues is dependent upon the specific situation, and is typically jointly determined by Customer and Pegasystems support manager. Severity 1 cases are eligible for continuous effort by Pegasystems support personnel, immixtechnology, Inc. Page 7 reformatted

8 2 3 4 provided that Customer s resources are made similarly available, until relief is provided. Severity 2 problems involve disruption of a major feature or function of the Software due to a defect and have a significant impact on production (but do not result in extended downtime), or severely impair development efforts. The time frame for providing a permanent resolution for Severity 2 issues is dependent on the specific situation, and is typically jointly determined by the Customer and Pegasystems support manager. Severity 3 is Pegasystems' default severity, and is always used for new cases unless otherwise requested by Customer. Severity 3 problems include those that involve the failure of a feature or function which results in the Software not working as described in the Documentation. Severity 4 problems include general questions about Software usage/functionality that do not involve errors. Non-Software issues such as requests for support network web site access, problems using the support network, or other issues that do not impact usability of the Software also fall into this category. Pegasystems is not responsible for errors caused by (a) non-pegasystems software or hardware, (b) unauthorized modifications to the Software, or (c) failure to follow the operating procedures described in the Software documentation, or those errors that Customer cannot reproduce under test conditions. Software Updates Software Updates support the evolution of the Software. They periodically consist of: Maintenance Level Updates: sets of modifications for published generally available Software releases primarily designed to address functional defects only. Documentation Updates: reflect changes to Software, documentation and help files. Upgrades Upgrades provide new functionality and enhancements to the Software within the functional domain of the licensed components. Installation of Software Updates and Upgrades by Pegasystems personnel can be provided at Pegasystems then-current hourly professional services fees, plus applicable expenses subject to Customer issuing an ordering document for such services. Pega Discovery Network The Pega Discovery Network ( PDN ) is the primary technical resource for Customer s Software developers and system administrators. The PDN contains a broad range of technical articles including troubleshooting and "How-To" information, a comprehensive and searchable knowledgebase to help developers speed their application development, and a library of shared component examples, and copies of formal product documentation and PRPC Help systems. The PDN also enables members to access Pegasystems on-line support resources in order to submit defect reports and enhancement suggestions, and to review all issues associated with the user's PDN account. Escalation Process The Customer may request escalation for a Support Request (SR) when there is a concern about progress, or about the fitness or quality of the response. The details of the escalation process are documented in Pega, the customer support handbook. immixtechnology, Inc. Page 8 reformatted

9 MASTER PEGA CLOUD SUBSCRIPTION AGREEMENT Pegasystems products include its Pega Platform for business process management, and strategic applications and technology components that provide purpose-specific or industry-specific functionality that enable customers to efficiently deploy the Pega Platform for specific solutions. These products are comprised of Pegasystems provided RuleSets that Customer may use to develop Customer Applications comprising one or more new RuleSets for processing and automation of its business. Customer may integrate these Customer Applications to its other systems through Service and Connector facilities and deploy them on the Pega Cloud. Customer may also obtain professional services and training under a Work Order. Definitions are stated on Exhibit 1 hereto. Subscription Services1. Subscription Rights and Responsibilities. (a) Pursuant to the applicable Schedule and subject to the terms and conditions of this Cloud Agreement, Pegasystems will provide Customer a non-transferable, non-exclusive subscription to the Pega Cloud, inclusive of the Software, for the number of Users, Scope of Use and during the Term specified in the Schedule (the Subscription ), to develop, test and deploy Customer Applications into production. As part of making the Pega Cloud available to the Customer, Pegasystems (i) will provide the applicable Subscription services described in Exhibit 2 at the licensed capacity; (ii) provide the Subscription Support and Service Levels described in Exhibit 3; and (iii) adhere to the security practices described in Exhibit 4. (b) During the Term of the Subscription, Customer will: (i) Be responsible for the accuracy, integrity and legality of the content and data; (ii) Be responsible for configuring a Guardrail Compliant Customer Application and for the performance of such Customer Applications. Customer may engage Pegasystems for performance-tuning services of such Customer Applications pursuant to a separate Work Order; (iii) Use the Subscription only in accordance with the Subscription Documentation, Acceptable Use Policy and applicable laws and regulations; (iv) Prevent unauthorized access to or use of the Subscription and notify Pegasystems promptly of any such unauthorized access, use, or suspected breach; (v) Only use de-identified customer data in the Standard Sandbox; (vi) Inform Pegasystems if actual customer data in the Large Sandbox or Production Environment will include personal health information (PHI); (vii) Not include any confidential or sensitive data captured in the Customer Application log files; (viii) Appropriately protect confidential or proprietary information related to Customer s use of the Subscription, including its security credentials; and immixtechnology, Inc. Page 9 reformatted

10 (ix) Appropriately protect and be responsible for the data that the Customer integrates and flows through the Subscription. (c) During the Term of the Subscription, Customer grants to Pegasystems a worldwide, limited-term license: (i) to host, copy, execute, transmit and display Customer s data and any Customer Applications (including non- Pegasystems applications), as necessary for Pegasystems to provide the Subscription; and (ii) to use any information concerning Customer s Subscription experience in an anonymized form to help upgrade and improve the Pega Cloud services and to support general marketing efforts regarding them. Subject to the limited licenses granted here, Pegasystems will not acquire any right, title or interest from Customer in or to Customer s data or any third-party applications. (d) Customer acknowledges that its access to and use of the Subscription may be temporarily suspended during scheduled times on weekends or weekdays between 11:00pm and 5:00am Customer s local time zone to permit Pegasystems to perform maintenance on or make modifications to the Subscription. Pegasystems will use reasonable efforts not to undertake scheduled maintenance for more than 40 hours during a Subscription Month. Pegasystems will provide the Customer with at least five days prior notice of scheduled maintenance; provided that Pegasystems may provide less notice to address modifications mandated by AWS or known security vulnerabilities. (e) Customer further acknowledges that its access to and use of the Subscription may be temporarily suspended at any time in the event of a denial of service attack, or other event that Pegasystems reasonably determines may create a risk to the Subscription. Pegasystems may also suspend the Subscription for legal or regulatory reasons. During such times Pegasystems will use reasonable efforts to give Customer prompt notice of the suspension and updates regarding resumption of service. Pegasystems will have no liability for any damage, liabilities, or other losses that Customer may incur as a result of any suspension of access to the Subscription. (f) Upon Customer s written request made no later than fifteen days after the termination or expiration of the Customer s Subscription, Pegasystems will make Customer s data in its possession available to Customer by means of a backup file of the database that is running in the Production Environment and that is encrypted to customary standards, unless otherwise agreed in writing. Upon providing the Customer data to Customer, or the lapse of the time period for Customer to request its data, Pegasystems will have no obligation to maintain or provide Customer s data in its possession or control and may delete such Customer data, unless legally prohibited. (g) Customer may only use the Subscription in accordance with the terms of this Cloud Agreement. Customer agrees not to sell, resell, rent, outsource, timeshare, lease or sublicense the Subscription or the Software to any third party or otherwise use it except as permitted under this Cloud Agreement and the applicable Schedule. (h) In each Schedule, Customer will commit to purchase licenses for production use of each Customer Application at the time that development of the Customer Application begins. Customer will not use shared User IDs, or aggregating technologies such as concentrators, multiplexers, gateways or edge servers, to avoid or reduce the counting of individuals that use the Software. 2. Restrictions. immixtechnology, Inc. Page 10 reformatted

11 (a) Customer may only use the Subscription in accordance with the terms of this Cloud Agreement. Customer may use the Software in object code and/or RuleSet form, for the Scope of Use specified in the applicable Schedule. (b) Unless specifically authorized by law, Customer may not reverse engineer, decompile, disassemble or otherwise attempt to determine source code or protocols from the Software. Customer agrees not to sell, resell, rent, outsource, timeshare, lease or sublicense the Subscription or the Software to any third party or otherwise use it except as permitted under this Cloud Agreement or the applicable Schedule. (c) Pegasystems retains all right, title and interest to the Subscription, Software and Background Materials. The Software will contain Pegasystems copyright notice, and Customer will reproduce such notice in any permitted copy made by Customer. 3. Reserved. Professional Services and Training 4. Performance of Services; Deliverables. (a) Pegasystems may provide Services to Customer under a mutually agreed Work Order. (b) All Deliverables that Pegasystems creates during the course of Services for Customer under this Agreement will be a work made for hire and will become, effective upon payment by Customer in full, the exclusive property of Customer. Customer will also retain all right, title and interest in any new RuleSets that Customer develops for itself using the Software. So long as Pegasystems has not used any Customer Confidential Information, Customer agrees not to challenge or make claims against Pegasystems ability to provide its products and services to other customers. (c) Pegasystems may use its Background Materials in the course of providing Services to the Customer. Background Materials will at all times remain the property of Pegasystems, and Customer will receive a nonexclusive, fully-paid license to use the Background Materials that are provided under a Statement of Work solely in connection with the Deliverables with which they were provided under the terms of the applicable Schedule. General Terms and Conditions 5. Reserved. 6. Reserved. 7. Reserved. 8. Representations and Warranties. (a) Each party represents and warrants that entering into and carrying out the terms and conditions of this Agreement will not violate any obligation binding upon it; that each party will comply with all applicable laws in connection with its performance under this Agreement; and that the executing persons have the authority to bind their respective parties. (b) Pegasystems warrants that for a period of 90 days from the initial delivery of the Software: immixtechnology, Inc. Page 11 reformatted

12 (i) (ii) The Software will operate substantially in accordance with the Software Documentation; and No disruptive or corrupting software that would damage, disable or compromise the security of a Customer Application will be introduced into the Software by Pegasystems or its employees. Customer will conduct virus-checking procedures before allowing installation or using the Software, and for each new version, upgrade or service pack. Pegasystems will, at its election, promptly repair the Software to resolve any failure of these warranties, which can be replicated or verified, or replace the Software with alternative software that provides substantially the same functionality. These remedies will be Customer s remedy for any failures of these warranties. In order for Customer to invoke these remedies, Customer must provide written notice to Pegasystems within the warranty period, expressly outlining the nature of the alleged failure or breach. (c) The foregoing warranties will be void to the extent that any failure of such warranties is caused by (i) anyone other than a Pegasystems employee modifying the Software (unless Pegasystems authorizes the specific change in writing), or (ii) non-pegasystems software or hardware. (d) Pegasystems warrants that all services provided under this Agreement will be performed in a good and workmanlike manner, consistent with industry standards. (e) EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8, PEGASYSTEMS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. 9. Reserved. 10. Reserved. 11. Reserved. 12. Reserved. 13. Insurance. During the term of this Agreement and for so long as any Schedule has not been terminated or expired, Pegasystems will maintain insurance coverage with limits no less than those set forth below. Property/Casualty/Fire Insurance - To cover Lease Requirements & Inventory Replacement Basis Commercial General Liability $1 Million Workers Compensation Statutory Employers Liability $1 Million Automobile Liability $1 Million Professional Liability (Errors & Omissions) $1 Million Umbrella/Excess Liability $5 Million Fidelity Bond $1 Million Information Technology and Internet Liability $5 Million System Security and Privacy Liability $5 Million The insurance companies used must be rated at least A- by A.M. Best's Rating Service or equivalent. Upon written request by the Customer, Pegasystems will provide a Certificate of Insurance evidencing the required insurance. Or immixtechnology, Inc. Page 12 reformatted

13 Customer may obtain such certificate directly from: Additional Terms and Conditions. (a) Reserved. (b) Reserved. (c) Customer Combinations. In the event that Customer should merge with, acquire, or be acquired by another entity (collectively, a Combination ), the resulting combined entity may only use the Software within the scope of the Customer s operations at the time of the Combination. In addition, the parties will negotiate in good faith a proportionate adjustment to the fees due under the applicable Schedule as a result of the Combination. (d) Reserved. (e) Export Compliance. The export and re-export of the Software and any Pegasystems technology is subject to export controls under the laws and regulations of the United States, and may also be subject to export and import controls under the laws and regulations of other countries. Customer agrees, at all times, to comply fully with these controls, laws and regulations. (f) Anti-Corruption. Pegasystems and Customer each represent and warrant to the other: (i) that it is aware of all anti-corruption legislation that applies to this Agreement and in particular the US Foreign Corrupt Practices Act 1977; (ii) it has implemented rules and procedures that enable it to comply with this legislation and adapt to any future amendments thereto; (iii) it has implemented appropriate rules, systems, procedures and controls for preventing the commission of Corrupt Acts, either by itself or its staff, and for ensuring that any evidence or suspicion of the commission of a Corrupt Act will be thoroughly investigated and unless prohibited by confidentiality or law, reported to the other party; (iv) its records relating to its business, including accounting documents, are maintained and kept so as to ensure their accuracy and integrity; and (v) it has not made or offered or received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the other party s employees or agents in connection with this Agreement (reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction). If a party learns of any violation of the above restriction, it will use reasonable efforts to promptly notify the other party at the address for notices above. (g) Cooperation; Usage Validation. Subject to Customer s security policies and procedures, Pegasystems and Customer agree that each will execute and deliver documents, including confirmations to Pegasystems auditors, and take such other actions as may reasonably be requested to effect the transactions contemplated by this Agreement. Pegasystems reserves the right, upon reasonable prior notice, to validate Customer s usage of the Software and its compliance under this Agreement. Customer will provide usage logs generated by the Software in connection with this usage validation. (h) Reserved. (i) Reserved. (j) Reserved. (k) Reserved. (l) Reserved. (m) Reserved. immixtechnology, Inc. Page 13 reformatted

14 EXHIBIT 1 DEFINITIONS For the purposes of the Agreement and any Schedule, the following definitions will apply, unless otherwise expressly stated: Acceptable Use Policy means the then current policy as published from time to time at for informational purposes only. Affiliates are those entities that control, are controlled by, or are under common control with a party to the Agreement. Affiliates may be entitled, subject to the terms of this Agreement and the applicable Schedule, to license Software, use Software licensed by Customer, or purchase maintenance or professional services. For the purpose of any Schedule to which an Affiliate is a party, the Affiliate will be additionally considered the Customer for purposes of the Agreement and such Schedule. Background Materials means processes, methods, software (including but not limited to the Software), related documentation, designs and know-how which Pegasystems creates independently of the services for Customer. Background Materials also include all tangible and intangible materials created by Pegasystems that apply to other Pegasystems customers and which do not include any Customer Confidential Information. Connector means an integration facility that permits the Software to call applications for data or processing. Corrupt Act shall mean any act of seeking, authorizing, offering, promising or granting a financial or other benefit (including a payment, loan, gift or transfer of anything of value) for the purpose of inducing a private person or public official to perform his or her duties dishonestly or in breach of his or her professional, legal or contractual obligations and/or to obtain or retain business for Pegasystems and or Customer in an undue or dishonest manner. Customer Application means a unique collection of rules and processes as part of one or more new RuleSets that are created using the Software and that provide specific business function for the Customer. Deliverable means RuleSets, documents and other tangible work product that are produced by Pegasystems for Customer during the course of the performance of Services under a Work Order, excluding any Background Materials. Environment means a Customer-accessible system(s) operated by Pegasystems. The following types of Environments are available: Standard Sandbox means a service that is intended to be used for research and development, functional/unit testing, UAT testing of Customer Applications and training. It is not intended to be used for load or benchmark testing nor real-time data processing. Large Sandbox means a service that is intended to support pre-production, staging and testing of the Customer Applications. It is not intended to be used for load or benchmark testing nor real-time data processing. Production Environment means an Environment that is designed, built and scaled to accommodate Customer Applications in order to process live and/or real-time data in connection with Customer s ongoing business operations and is deployed within a single geographic region. Production Mirror means an exact replica of the scaled Production Environment that can be used for staging, scaled benchmark testing and load performance testing. It is not intended to be used as an alternative immixtechnology, Inc. Page 14 reformatted

15 Production Environment to process live and/or real-time data in connection with Customer s ongoing business operations. Guardrail Compliant means a Customer Application with no severe warnings flagged by the Software and with a guardrail weighted score generated by the Software that is within the range deemed compliant as specified in the Subscription Documentation. Pega Cloud means fully managed operational services for the Customer Applications. These services are provided within a single-tenant virtual private cloud (VPC) deployment and are operated on a 24x7 basis. Production Storage is calculated based on the aggregate of work objects, history entries, attachments and any customer data or files stored by the Customer within its Production Environment, with the amount specified on the applicable Schedule. A RuleSet is a named collection of configuration records created using the Software. For Pegasystems provided RuleSets, the RuleSet names usually begin with Pega or the or ) symbol. Scope of Use means the licensed purpose, licensed metric and licensed volume of use for the Software specified in the applicable Schedule. Service means an integration facility that permits applications to call the Software for data or processing. Services means professional services provided by Pegasystems pursuant to a Work Order for consulting, installation support, and access to training courses. Schedule or Work Order means, respectively, a signed agreement to receive a Subscription or purchase professional services from Pegasystems. Schedules and Work Orders are referred to collectively as Schedules. Each Schedule will be non-cancelable and non-refundable, except to the extent expressly provided in this Agreement or such Schedule or under applicable law. Software will mean the software listed in the applicable License Schedule which is made available to Customer in machine readable, object code form, including any enhancements, updates, upgrades, modifications or other releases provided to Customer pursuant to a paid maintenance agreement. The Software includes Pegasystems provided RuleSets. Software Documentation consists of user manuals for the Software, which are provided to Customer in electronic form at the time of delivery of the Software. Subscription Documentation means the product help files, operating guides and support articles associated with the Subscription service posted on the Pega Discovery Network (PDN). Subscription Month means each applicable calendar month, or partial calendar month, in which the Subscription is contracted to be provided during the Term set forth in the applicable Schedule. Term is as defined in the applicable Schedule. A User is a person who uses the Software in a particular month. 1. A Sporadic User is a person that uses the Software during less than 10 hourly periods in a calendar month. 2. An Occasional User is a person that uses the Software during between 10 and 50 hourly periods in a calendar month. 3. Any person other than a Sporadic User or Occasional User that uses the Software in a calendar month, or that has the privilege to modify rules or processes, is a Regular User. Regular Users, Occasional Users and Sporadic Users will be the unit of measurement for work done by customer staff. The number of Regular Users, Occasional Users and Sporadic Users will be measured each calendar month based on their actual usage of the Software in that month. The Software tracks only actual use, so a person who has a User ID but does not use the Software in a month will not be counted as a User for that month. Also, for the avoidance of doubt, merely being logged in is not counted as actual use during inactive hours. immixtechnology, Inc. Page 15 reformatted

16 EXHIBIT 2 SUBSCRIPTION SERVICES Pegasystems will provide the following Subscription services according to the licensed Environment(s) and Subscription Documentation. Pega Cloud Subscription Services Service Standard Sandbox Large Sandbox Production Environment/ Production Mirror Back-up D D aily Incremental aily Incremental back Ups aily Incremental back ups back Ups W eekly Full W Backups eekly Full Backups eekly Full Backups 4 weeks retention 4 weeks retention 4 weeks retention ear-time data replication to backup database* D W N Data Refresh M ovement of data sets ovement of data sets between between systems. systems. Includes uploading Includes uploading sample data files for sample data files for population into target systems. population into target systems. Database Management Configuration Management Assist in executing DDL s to create custom tables and indices Client has read/write access to database lient owned Network Access Secure VPN IPSec tunnel between the Environment and Client endpoint HTTPS/HTTP Assist in executing DDL s to create custom tables and indices Provide database performance statistics Identify and implement performance tuning changes Moving C Customer Application configuration between systems Secure VPN IPSec tunnel between the Environment and Client endpoint HTTPS/HTTP Internet gateway access M ovement of data sets between systems. Includes uploading sample data files for population into target systems. Assist in executing DDL s to create custom tables and indices Provide database performance statistics Identify and implement performance tuning changes Moving Customer Application configuration between systems Secure VPN IPSec tunnel between the Environment and Client endpoint HTTPS/HTTP Internet gateway access M immixtechnology, Inc. Page 16 reformatted

17 Internet gateway access Environment Yes Yes Yes Monitoring Application None Yes Yes Monitoring Load Balancing None Yes Yes Host Virus No Yes Yes Protection Access Controls Yes Yes Yes Disk Encryption None Yes Yes Firewall Yes Yes Yes Management Vulnerability Yes Yes Yes Management Server Timezone GMT GMT GMT User Capacity As licensed Storage Capacity 50 GB 100 GB As licensed * not included in Production Mirror Environment 1. Subscription Support EXHIBIT 3 SUBSCRIPTION SUPPORT AND SERVICE LEVELS Pegasystems will provide Customer Subscription support comprising problem resolution, updates, and Pega Discovery Network access for the Subscription (together, Pega Cloud Support ). 2. Pega Cloud Support Subscription Support Services Coverage Service Desk Support 24x7x365 Provide a single point of contact service desk for support of the Subscription that may be contacted by contacting the Service desk at: Country Phone Number (Toll Free) immixtechnology, Inc. Page 17 reformatted

18 Pega Cloud Support US Germany India Netherlands Spain Thailand United Kingdom Updated numbers can be found at: Customer can also complete a webform at Pegasystems will repair errors or problems with the Subscription so that the Subscription operates in substantial accordance with the Subscription Documentation. Pega Cloud Support includes: Customer s Designated Contacts: Customer will provide Pegasystems with up to 10 designated people who may contract Pegasystems support ( Designated Contacts ). Customer may change these contacts upon written notice to Pegasystems, and it is the responsibility of Customer to update the contacts (e.g., if one the designated contact is no longer employed by Customer or authorized by Customer to contact Pegasystems support). Telephone or Self-service Support: Pegasystems will accept service requests via telephone or webform notice from the Designated Contacts only and will work with the Designated Contacts to provide relief and/or a permanent solution to problems as well as to provide Pega Cloud Support as described in the table below. Problem Resolution: Pegasystems will work to perform problem resolution as described in Table A and Table B below: Severity Level 1 Severity Level Description Support Table A Severity 1 is used when the Subscription is down or otherwise unusable resulting in massive disruption of use. Pegasystems goal for providing initial relief (such as an alternative method to restore system operations) for Severity 1 cases is within 4 hours. The timeframe for providing a permanent resolution for Severity 1 issues is dependent upon the specific situation, and is typically jointly determined by Customer and Pegasystems support manager. Severity 1 cases are eligible for continuous effort immixtechnology, Inc. Page 18 reformatted

19 2 3 4 by Pegasystems support personnel, provided that Customer s resources are made similarly available, until relief is provided. Severity 2 is used with a moderate business exposure that prevents users from performing work or significant portions of their work. The time frame for providing a permanent resolution for Severity 2 issues is dependent on the specific situation, and is typically jointly determined by the Customer and Pegasystems support manager. Severity 3 problems include those that involve the failure of a feature or function which results in the Subscription not working as documented, creates low business exposure and/or prevents or delays users from performing some tasks. Severity 3 is Pegasystems' default severity, and is always used for new cases unless otherwise requested by Customer. Severity 4 problems create minimal business exposure with mild impact on users performing tasks. Severity 4 also covers general questions about Subscription usage/functionality, and non-subscription issues such as requests for support network web site access, problems using the support network, or other issues that do not impact usability of the Subscription. Severity Definition Severity 1 Severity 2 Severity 3 Severity 4 Support Table B Initial Response Time Target 15 minutes 1 hour 4 hours 8 hours Pegasystems will not be responsible for resolving problems or errors caused by (a) Customer-provided software or hardware outside of the underlying architecture and supporting systems of the Subscription, (b) unauthorized modifications to the Subscription, (c) Customer Applications that are not Guardrail Compliant, or (d) Customer s failure to follow the operating procedures and development guardrails described in the Subscription Documentation. It is out of scope of this agreement for Pegasystems to provide services that resolve or remediate problems, errors or issues that cannot be reproduced under test conditions. Pegasystems may periodically notify Customer about technical or performance issues in the Customer Application. Customer shall be responsible for adjusting the configuration of the Customer Application to address such issues. Subscription Updates immixtechnology, Inc. Page 19 reformatted

20 Subscription Updates support the evolution of the Software and Environments that support the Subscription. They provide new functionality and enhancements within the functional domain of the Subscription. Updates periodically consist of: Software Updates: sets of modifications for published generally available Software releases. Subscription Updates: updates to the underlying architecture and supporting systems of the Subscription. Subscription Documentation Updates: reflect changes to the Subscription policies and documentation. Critical Subscription Updates will be implemented by Pegasystems. Pegasystems will notify Customer of the availability of non-critical Subscription Updates and Software Updates. These will be implemented upon request of Customer. Pega Discovery Network ( PDN ) The PDN is the primary technical resource for Customer s Software developers and system administrators. The PDN contains a broad range of technical articles including troubleshooting and "How-To" information, a comprehensive and searchable knowledgebase to help developers and system administrators speed their application development, and a library of shared component examples, and copies of Subscription Documentation and Help systems. The PDN also enables members to access Pegasystems on-line support resources in order to submit defect reports and enhancement suggestions, and to review all issues associated with the user's PDN account. Service Level Agreement Pegasystems will use commercially reasonable efforts to make the Subscription available with a Monthly Uptime Percentage of 99.95% (the SLA ), as calculated below. For the sake of clarification, the SLA applies to the Production Environment only and does not apply to the Sandboxes nor to the Production Mirror Environment. Scheduled Availability -- Unavailability Scheduled Availability x 100 = Monthly Uptime Percentage Where, Scheduled Availability means total number of such five-minute periods in the Subscription Month during which the Production Environment was scheduled to be available, subject to sections 1(d) and (e) of this Agreement. If the Production Environment was scheduled to be available for less than a full calendar month, then the Subscription Month is still the preceding calendar month but any days in such month prior to the commencement of available usage of the Production Environment will be deemed to have been available, and Unavailability means that the Production Environment was unresponsive during a five minute period, and Pegasystems was unable to provide Customer access to a replacement Production Environment. In the event the Monthly Uptime Percentage does not meet the SLA during a Subscription Month, Customer will be eligible to receive a credit equal to 10% of the Subscription fees for such Subscription Month. Pegasystems will apply any SLA credits against Subscription fees due under the applicable Schedule in future months. SLA credits will not entitle Customer to any refund of fees paid for the Subscription nor for any credit against fees due immixtechnology, Inc. Page 20 reformatted

21 for any other software or services provided by Pegasystems. Customer s sole and exclusive remedy for the Subscription not meeting the SLA is the receipt of a SLA credit as described in this paragraph. Any Unavailability that is the basis for a SLA credit cannot be the basis for a future claim. To receive a SLA credit, Customer must submit a written request to Pegasystems that includes the dates and times of each incident of Unavailability, within 30 days of the end of the Subscription Month in which the alleged Unavailability occurred. If the Monthly Uptime Percentage is confirmed by Pegasystems not to have met the SLA, then Pegasystems will issue the SLA credit to Customer within one billing cycle following the month in which the request is received. EXHIBIT 4 SECURITY Pegasystems will adhere to the following security practices, to the extent permitted by applicable law: a. Access Control: Maintain access control measures restricting access to applications, data, and software to only those entities that have a documented, current business need. Access to the controlled systems are locked down by subnet, port, protocol, server, role, and User to allow only the access required for the business function. b. Audit Controls: Implement audit control mechanisms to record, monitor, and examine system activity, including data access activities. c. Authorization Control: Implement a mechanism for controlling the authorization of individuals, organizations, and roles to access applications, data, and software. Assure supervision of personnel performing technical systems maintenance activities by authorized, knowledgeable persons. Work to train Users, including technical maintenance personnel, in system security. d. Data Authentication: Create audit trail providing corroboration that data has not been altered or destroyed in an unauthorized manner at the infrastructure layer. The Customer is responsible for this at the application layer. e. Entity Authentication for Instances provisioned: Implement entity authentication technologies, including automatic logout and unique User identification through a password or equivalent system. Passwords or other user tokens shall be required to follow robust, documented policy requirements including: a. Periodic reset/renewal every 90 days or less (Password ageing) b. Complexity and length requirements in the case of passwords i. No dictionary words ii. No dates iii. Mixed character types (at least three of lowercase, uppercase, numerals, and punctuation) c. Lockouts after six unsuccessful authentication attempts f. Encryption at Rest: Encrypt sensitive data whenever stored on disk using 256-bit AES encryption (except in a Development/Test Environment). immixtechnology, Inc. Page 21 reformatted

22 g. Encryption in Flight: Encrypt communications over a network containing sensitive data through TLS or a VPN IPsec tunnel to client endpoint. h. Audits and Policy Compliance: Upon written request, supply to the Customer documentation regarding the following policy components: a. Pega Cloud Services Written Information Security Program (WISP) b. Pega Cloud Services Disaster Recovery & Business Continuity Plan c. Customer s Environment logs that are currently available d. Executive summary of the security, data backup, and monitoring events for the Customer s Environment(s) that are currently available i. Assigned Security Responsibility: Assign and document the assignment of security responsibility to a specific individual or role within the service provider organization. This responsibility would include the management and supervision of the use of security measures and the conduct of personnel. Physical Security: Implement and document physical access controls (limited access) governing the service provider's location(s) that are used to access the Customer Applications, data, and software. immixtechnology, Inc. Page 22 reformatted