PERSISTENT TELECOM SOLUTIONS INC. END USER LICENSE AND SERVICES AGREEMENT

Transcription

1 PERSISTENT TELECOM SOLUTIONS INC. END USER LICENSE AND SERVICES AGREEMENT THIS PERSISTENT TELECOM SOLUTIONS INC. END USER LICENSE AND SERVICES AGREEMENT (this Agreement ) is made by and between Persistent Telecom Solutions Inc., doing business as Accelerite, with its principal place of business at ), located at th St. SE, Suite 200, Bellevue, WA ( PTSI ), and, with its principal place of business at ( you or your or Customer ), and is effective as of (the Effective Date ). For purposes of this Agreement, the term you or your shall include the Affiliates of the licensee designated above. 1. DEFINITIONS. 1.1 Authorized Sockets means the number of physical CPU s or processors for which Customer has paid the applicable license fee to PTSI. 1.2 Documentation means the user s manuals and supporting documentation related to the Licensed Software provided by PTSI under this Agreement. 1.3 Intellectual Property means any and all patent rights (including all applications, renewals, extensions and restorations thereof), copyrights, trade secrets, trademarks and all other proprietary rights now or hereafter in force and effect worldwide. 1.4 Licensed Software means the object code term of the software application, PTSI provides to Customer under the terms of this Agreement. 1.5 Professional Services means the specific professional services that Customer may request PTSI to provide from time to time in accordance with the terms of this Agreement. 1.6 Professional Services Exhibit means the specific terms governing PTSI s performance of any Professional Services for Customer, which are hereby incorporated by reference into this Agreement. The Professional Services Exhibit is attached as Exhibit A to this Agreement. 1.7 Services mean, collectively, the Professional Services and Support Services. 1.8 Support Services means the specific support services that PTSI shall provide to Customer in accordance with the Persistent s Foundation Support 24x7 offering, located at 2. LICENSES. 2.1 License Grant. Subject to Customer s compliance with the terms and conditions of this Agreement, PTSI grants Customer a non-transferable, non-exclusive license to use the Licensed Software for internal business purposes only and to use the Documentation in connection with Customer s authorized use of the Licensed Software, which use is limited to the number of Authorized Sockets specified in the written quotation provided by PTSI to Customer (the Quote ) and accepted by Customer pursuant to the written purchase order Customer submits to PTSI referencing that Quote. 2.2 Restrictions. The rights granted herein are subject to the following restrictions: (i) you may not copy (except for back-up purposes), modify, port, adapt, translate, localize, reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Licensed Software; (ii) you may not create derivative works based on the Licensed Software; (iii) you may not remove any patent, trademark, copyright, trade secret or other proprietary notices or labels on the Licensed Software or Documentation; (iv) you may not transfer, lease, assign, sublicense, pledge, rent, share or distribute the Licensed Software or make it available for timesharing, service bureau or on-line use, unless previously agreed to in writing by PTSI; (v) you may not disclose the results of any performance, functional or other evaluation or benchmarking of the Licensed Software to any third party without the prior written permission of PTSI. 2.3 Special Provisions Regarding Open Source and Third Party Software. The Licensed Software may contain or be distributed with third party software covered by an open source software license ("Open Source Software") or other third party software ("Third Party Software") covered by a different license. If Open Source Software is included the terms and conditions of this license do not apply to the Open Source Software. If Third Party Software is included the terms and conditions of this license may not apply to Third Party Software. Information concerning the inclusion of the Open Source Software and Third Party Software, if any, and the notices, license terms and disclaimers applicable to such software is contained in the About Box and/or Administrator Guide. 2.4 U.S. Government License Rights. The Software and Documentation covered by this Agreement are Commercial Item(s), as that term is defined at 48 C.F.R , consisting of Commercial Computer Software and Commercial Computer Software Documentation, as such terms are used in 48 C.F.R or 48 C.F.R , as applicable. Consistent with 48 C.F.R or 48 C.F.R through , as applicable. If the Software and Documentation is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein. Any unpublished rights are reserved under the copyright laws of the United States.

2 3. DELIVERY, INSTALLATION AND ACCEPTANCE. PTSI will give access to Customer to download the Licensed Software from PTSI s website located at the URL: as directed by PTSI. Customer will be responsible for installing the Licensed Software on its computers as permitted under this Agreement. The Licensed Software will be deemed accepted upon delivery. 4. TERM AND TERMINATION. 4.1 Term. This Agreement will commence as of the Effective Date and, unless terminated in accordance with the terms of this Agreement, shall continue for the period specified in the Quote (the License Term ). If the License Term is anything other than a perpetual term (a Subscription ), this Agreement shall automatically renew for an additional period equivalent to the License Term (each, a Renewal Term together with the License Term referred to as the Term ) unless either party provides the other party at least sixty (60) days prior written notice of its intent not to renew before the end of the Initial Term or then-current Renewal Term. 4.2 Termination. PTSI may terminate this Agreement, effective immediately upon written notice to Customer, if: (i) Customer fails to pay any portion of the Support Fees or Professional Fees when due; (ii) Customer breaches any other provision of this Agreement or Work Order (as defined in the Professional Services Exhibit) and does not cure the breach within thirty (30) days after receiving written notice thereof from PTSI; or (iii) Customer ceases to do business in the ordinary course, becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against Customer, and not dismissed within sixty (60) days. Customer may terminate this Agreement or any Work Order by delivering written notice to PTSI in the event that PTSI materially breaches the terms of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the breach from Customer. 4.3 Effect of Termination. Upon the effective date of termination or expiration of this Agreement: (i) the rights and licenses granted pursuant to this Agreement shall automatically and immediately terminate; (ii) Customer shall promptly cease all use of the Licensed Software and Documentation, (iii) Customer shall delete all copies of the Licensed Software and Documentation in Customer s possession, including, without limitation, from Customer s desktops and servers, (iv) each party shall return or destroy all Confidential Information, and any copies thereof, provided by the other party and (v) each party shall certify in writing that it has fully complied with the foregoing requirements, as applicable. 4.4 Survival. Upon expiration or termination of this Agreement, the rights and obligations of the parties shall cease except the terms of Sections 1 (Definitions), 4.2 (Termination), 4.3 (Effect of Termination), 4.4 (Survival), 5 (Fees), 7 (Ownership), 8 (Confidentiality), 9 (Warranty; Disclaimer), 10 (Waiver of Consequential Damages), 11 (Limitation of Liability) and 12 (General) shall survive in full force and effect. 5. FEES. 5.1 License Fee. Customer will pay PTSI the license fee specified in the Quote for each License Term (the License Fee ). The number of Authorized Sockets that are initially licensed under this Agreement are set forth in the Quote. Customer may request an additional quote from PTSI at any time during the Term for the purchase of licenses for additional Authorized Sockets. If Customer would like to accept the additional quote provided by PTSI, Customer may submit a written purchase order referencing that quote. For purposes of this Agreement, all references to Quote shall refer to all written quotes issued by PTSI to Customer that are accepted by Customer pursuant to a written purchase order referencing the applicable quote. No terms on any purchase order submitted by Customer or any quote issued by PTSI shall be binding on either party other than the number of additional Authorized Sockets, the applicable license fee and authorized payment method specified in the quote; all additional or inconsistent terms or any purchase order, quote, order acknowledgement or invoice are hereby rejected by each party. 5.2 Support Fee. If Customer is licensing the Licensed Software on a perpetual term basis, in addition to the License Fee Customer will pay PTSI the applicable support fee set forth in the Quote ( Support Fee ). If Customer is licensing the Licensed Software on a Subscription basis, Customer acknowledges and agrees that the Support Fee is included in the License Fee. PTSI will automatically charge Customer s credit card on record with PTSI for the License Fee and if applicable, the then-current Support Fee upon the commencement of each Renewal Term, or if Customer paid through a non-credit card payment method, invoice Customer for the then-current Support Fee prior to the commencement of each Renewal Term. PTSI reserves the right to increase the Support Fee upon thirty (30) days prior written notice to Customer. 5.3 Professional Services Fee and Expenses. Customer will pay PTSI the applicable professional services fee set forth in the Work Order (as defined in the Professional Services Exhibit) ( Professional Services Fee ). Except as otherwise specified in the Work Order, Customer shall reimburse PTSI for reasonable out-of-pocket expenses of travel, lodging, and meals in connection with the performance of the Professional Services under this Agreement. PTSI will provide documentation of any reimbursable expenses to Customer upon request. 5.4 Payment Terms. Customer shall pay the applicable fees to PTSI via the payment method authorized by PTSI during the ordering process. Customer agrees to provide PTSI with complete and accurate billing and contact information. If invoiced by PTSI, payments for such invoices are due net 30 days from the date of invoice. If the parties agree that Customer will pay by credit card, by entering into this Agreement, Customer is expressly agreeing that PTSI will automatically bill Customer s credit card for the applicable Support Fee, Professional Services Fees, expenses and any other amounts owed by Customer under this Agreement. Upon receipt of payment in full for any

3 license fee due for additional Authorized Sockets, PTSI shall authorize the use of the Licensed Software for those additional Authorized Sockets, which use shall be subject to the terms of this Agreement. The effective commencement date of the license for the additional Authorized Sockets shall be the date that payment in full is received and the term of the license for those additional Authorized Sockets shall run co-terminous with the originally licensed Authorized Sockets. PTSI may terminate this Agreement and/or cease providing the Services if the billing or contact information is false, fraudulent or invalid. All fees under this Agreement are payable in U.S. dollars and shall be non-refundable. Any fees not paid when due will accrue interest at a rate of eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Customer will also pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-us government entity on the transactions contemplated by this Agreement, excluding taxes based upon PTSI s net income. 5.5 Audit Right. At any time during the Term, PTSI shall have the right to audit Customer s use of the Licensed Software to ensure that Customer s use is in compliance with all the terms of this Agreement, including but not limited to restricting use to the number of Authorized Sockets. PTSI shall conduct any such audit upon reasonable prior notice, at its own expense (except as provided below), during regular business hours and in a manner that does not unreasonably interfere with Customer s normal conduct of business. If PTSI s audit reveals that Customer s use of the Licensed Software has not been in compliance with the terms of this Agreement, PTSI may, at its option, immediately terminate this Agreement for Customer s material breach and/or require Customer s payment of the applicable license fees for any use of the Licensed Software for which the applicable license fees had not been previously paid, plus interest from the first date of any such unauthorized use. 6. SERVICES. 6.1 Support Services. Subject to payment by Customer of the Support Fee, and provided that Customer is in compliance with the terms and conditions of this Agreement, PTSI shall provide Support Services to Customer, as mentioned in this Agreement. 6.2 Professional Services. Subject to payment by Customer of the Professional Services Fee, and provided that Customer is in compliance with the terms and conditions of this Agreement, PTSI shall provide Professional Services to Customer in accordance with the terms of the Professional Services Exhibit. 7. OWNERSHIP. PTSI and its suppliers retain all right, title and interest in and to the Licensed Software, Documentation, PTSI s pre-existing Intellectual Property incorporated in or used in the performance of the Services or development of any Deliverables (as defined in the Professional Services Exhibit), including, but not limited to, any ideas, know-how, tools, programs, processes, designs, inventions, works, trade secrets, and other information and any Intellectual Property that may be developed by PTSI in the course of providing the Services or developing the Deliverables, including any enhancements or modifications made to the Licensed Software, or any component thereof. PTSI and its suppliers reserve all rights not expressly granted to Customer in this Agreement. There are no implied rights. Customer will not remove, alter or destroy any form of copyright notice, proprietary markings or confidential legends placed upon or contained within the Licensed Software or Documentation, or any component thereof. Further, Customer will reproduce PTSI s copyright and other proprietary rights notices on any copies of the Licensed Software or Documentation Customer uses. 8. CONFIDENTIALITY. 8.1 Definition of Confidential Information. Each party agrees that pursuant to this Agreement one party (the Disclosing Party ) may disclose to the other party (the Receiving Party ) information relating to the Disclosing Party s business or proprietary technology which the Receiving Party knows or should know is considered confidential or proprietary by the Disclosing Party ( Confidential Information ). The Licensed Software and Documentation shall be deemed PTSI s Confidential Information. The terms of this Agreement are deemed the Confidential Information of both parties. The parties agree that the Licensed Software contains valuable Confidential Information of PTSI. 8.2 Protection of Confidential Information. The Receiving Party will protect the Disclosing Party s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature, and in no event with less than reasonable care. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than performing its obligations or exercising its rights under this Agreement. Furthermore, the Receiving Party will not disclose the Confidential Information of the Disclosing Party to any third party except for the Receiving Party s employees, agents and contractors who have a need to know such Confidential Information and who have entered into written non-disclosure agreements with Recipient that are no less protective than the terms set forth in this Agreement. 8.3 Exceptions. The foregoing confidentiality obligations set forth in subsection 8.2 shall not apply to any information that the Receiving Party can demonstrate through clear and convincing written evidence: (i) was in the Receiving Party s possession free of any obligation of confidence prior to the time of disclosure by the Disclosing Party; (ii) was in or entered into the public domain through no wrongful act of the Receiving Party before or after such information was disclosed by the Disclosing Party to the Receiving Party; (iii) was approved for release by written authorization of the Disclosing Party; (iv) was disclosed to the Receiving Party by a third party not in violation of any

4 obligation of confidentiality; or (v) was independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party. A disclosure of Confidential Information by the Receiving Party as required by law or by order of a court of competent jurisdiction shall not be a considered a breach of this Agreement or a waiver of confidentiality; provided, however, that the Receiving Party: (x) provide the Disclosing Party with prompt notice of such order, (y) use best efforts to minimize the amount and degree of disclosure and (z) assist the Disclosing Party in obtaining a protective or other confidential treatment prior to such disclosure. 8.4 Injunctive Relief. The Receiving Party acknowledges and agrees that the unauthorized disclosure or use of the Disclosing Party s Confidential Information may cause irreparable harm to the Disclosing Party for which recovery of money damages would be inadequate; consequently, the Disclosing Party shall be entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages to protect its rights under this Section 8, in addition to any and all other remedies available at law or in equity. 8.5 Return of Confidential Information. The Receiving Party will return to the Disclosing Party, or destroy, at the Disclosing Party s option, all Confidential Information of the Disclosing Party in the Receiving Party s possession promptly upon the written request of the Disclosing Party. At the Disclosing Party s request, the Receiving Party will certify in writing that it has fully complied with its obligations under this Section WARRANTY; DISCLAIMER. 9.1 Limited Professional Services Warranty Customer acknowledges that PTSI assumes no responsibility for errors in specifications furnished by Customer and that all such errors may necessitate corrective work by PTSI at its then-current rate for such Professional Services. If Customer reports in writing that a specific Deliverable does not substantially confirm to the applicable specifications ( Non-conformation ) within five (5) days of delivery of that Deliverable, PTSI will, at its expense, re-perform the Professional Services and provide substitute Deliverables, as necessary. At PTSI s option, and in its sole discretion, PTSI may elect not to re-perform the Professional Services or provide substitute Deliverables and instead refund amounts paid by Customer for the non-conforming Professional Services and/or Deliverables and terminate the applicable Work Order. In the event that Customer does not notify PTSI of any nonconformities during the Acceptance Period, such Deliverable shall be deemed accepted. THE ABOVE IS CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, AND PTSI S EXCLUSIVE OBLIGATIONS, FOR BREACH OF THE LIMITED PROFESSIONAL SERVICES WARRANTY SET FORTH IN THIS SECTION. 9.2 Warranty Disclaimer. PTSI AND ITS SUPPLIERS MAKE NO WARRANTIES, AND EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE, DOCUMENTATION AND SERVICES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. 10. WAIVER OF CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PTSI OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF PTSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES 11. LIMITATION OF LIABILITY. IN NO EVENT SHALL PTSI S (OR ITS SUPPLIERS ) TOTAL, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF SUPPORT FEES PAID TO PTSI BY CUSTOMER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. The parties acknowledge that this Section reflects the agreed upon allocation of risk between the parties. This limitation of liability will apply notwithstanding the failure of essential purpose of this Agreement or any limited remedy hereunder. 12. GENERAL. The parties are independent contractors, and nothing herein is intended or will be construed as creating a partnership, employment, joint venture or agency relationship between the parties. Customer may not assign or transfer any of its rights under this Agreement (including its licenses with respect to the Licensed Software and Documentation) to any third party, by operation of law or otherwise, without PTSI s prior written consent, except that Customer may assign all of its rights and obligations under this Agreement to a third party pursuant to a sale or transfer of all or substantially all of such party s business and assets. Any attempted assignment or transfer in violation of the foregoing will be void. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their successors and permitted assigns. This Agreement shall be governed by and construed under the laws of the State of California. The state and federal courts located in Santa Clara County, California shall have exclusive jurisdiction and venue over any dispute arising out of or relating to this Agreement, and each party hereby consents to the exclusive jurisdiction and venue of such courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Customer will use the Licensed Software and Documentation in a lawful manner and in accordance with all applicable laws, including, without limitation, export control laws. Regardless of any disclosure made to PTSI of an ultimate destination of the Licensed Software, Documentation, and other PTSI Confidential Information, Customer acknowledges that all such materials are being released or transferred to Customer in or from the United States and are subject to the U.S.

5 export control laws and regulations. Customer acknowledges its exclusive obligation to ensure that any further export of such materials is in compliance with the U.S. export control laws and all applicable governmental regulations of any foreign countries. Customer will defend, indemnify, and hold PTSI and its suppliers harmless from and against any and all violations of such laws or regulations by Customer or any of its agents, officers, directors, employees or consultants. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Except for actions for nonpayment or breach of PTSI s proprietary rights in the Licensed Software or Documentation, no action, regardless of form, arising out of this Agreement may be brought by either party more than one (1) year after the cause of action has accrued. Each party will be excused from performance, other than the payment of amounts due hereunder, for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including, without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. All notices hereunder shall be in writing and shall be effective upon receipt if delivered in person or by commercial overnight courier, the date sent by confirmed facsimile, or three (3) business days after deposit in the U.S. Mail as certified or registered mail, postage prepaid, return receipt requested. All notices shall be made in accordance with the foregoing methods and shall be delivered to the appropriate representative of each party at the addresses first set forth above (or such replacement address as a party may hereafter request via the foregoing methods). If any provision of this Agreement or the application of any such provision shall by held by a court of competent jurisdiction to be invalid or unenforceable under applicable law, that provision shall be changed and interpreted so as to best accomplish the economic objectives of such invalid or unenforceable provision within the limits of applicable law or court decisions and the remaining provisions of this Agreement shall continue in full force and effect. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument. This Agreement, together with all Exhibits and documents referred to herein, constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings and communications, whether written or oral. This Agreement may only be modified by a writing signed by both parties. The terms of this Agreement shall apply to all orders and supersede any different or additional terms on any purchase orders from Customer.

6 IN WITNESS WHEREOF, each party has executed this Agreement by and through its duly authorized representative. EXECUTED BY: (LICENSEE) Signature: Name: Title: EXECUTED BY: Persistent Telecom Solutions Inc. Signature: Name: Title:

7 EXHIBIT A Professional Services Exhibit This Professional Services Exhibit is subject to the PTSI End User License and Services Agreement (the Agreement ) between Persistent Telecom Solutions Inc. ( PTSI ) and you ( You or Customer ) and sets forth additional terms and conditions particular to the Professional Services described below. All capitalized terms used in this Professional Services Exhibit that are not otherwise defined herein shall have the same meaning as defined in the Agreement and such definitions are incorporated herein by reference. 1. Definitions. 1.1 Acceptance Period means the five (5) day period from Customer s receipt of any Deliverable during which Customer shall test such Deliverable in accordance with the Acceptance Tests. 1.2 Acceptance Tests means the mutually agreed upon acceptance criteria and procedure(s) established prior to the commencement of the Acceptance Period and set forth in the applicable Work Order. 1.3 Change Proposal means the written proposal either party may submit to the other party to request a change in a Work Order. 1.4 Deliverables means the work product designated as deliverables in an applicable Work Order executed by the parties. 1.5 Work Order means the mutually agreed upon work order that sets forth the specific Professional Services to be performed by PTSI for Customer in accordance with the terms of this Exhibit A. 2. Professional Services. 2.1 PTSI Obligations. Subject to the terms of this Exhibit A, PTSI agrees to perform the Professional Services as set forth in any Work Order(s). Notwithstanding the foregoing, PTSI shall have no obligation to perform any Professional Services under any Work Order, unless and until a Work Order describing the Professional Services has been signed by an authorized representative of PTSI and Customer. The undertaking by PTSI to perform Professional Services under any particular Work Order does not obligate PTSI to (i) furnish any further or different Professional Service(s) to Customer, (ii) to diagnose and remedy or attempt to remedy any reported problem that originated in any products not provided by PTSI or (iii) to provide maintenance and support for any Deliverable(s). The terms of this Agreement will govern any Work Order(s) undertaken by PTSI for Customer. 2.2 Estimates. Subject to Section 2.3 (Change Requests) of this Exhibit A, PTSI will use commercially reasonable efforts to honor any limitations on labor, cost or time set forth in each applicable Work Order, but completion of all work within such limitations is not guaranteed. Any estimates of labor, cost or time furnished to Customer by PTSI before or after execution of this Agreement or any Work Order shall be considered estimates only and shall not obligate PTSI to complete any Professional Service(s) within the parameters estimated. 2.3 Change Requests. If PTSI or Customer desires to make any changes to a Work Order, the party requesting the change must propose the change by submitting to the other party a Change Proposal. Neither party shall be obligated to accept any Change Proposal submitted by the other party. Customer acknowledges that any Change Proposals requested by Customer shall be subject to PTSI s prior written approval and may incur additional charges at PTSI s then-current standard rates and/or necessitate an extension of the time period(s) for completion of the work specified under the applicable Work Order. If the Change Proposal is acceptable to both parties, the Change Proposal will be made an addendum to the Work Order or a new Work Order shall be prepared and added to this Agreement, as appropriate. 2.3 Facilities. To perform the Professional Services, PTSI personnel may need to visit Customer s place of business one or more times. Customer agrees to provide adequate facilities so that the PTSI personnel and any assigned PTSI subcontractors can effectively perform the Professional Services. PTSI personnel and any assigned PTSI subcontractors will: (i) comply with all sign-in procedures for PTSI and other service personnel, (ii) observe all general and safety rules and regulations in effect at Customer s facility, provided that Customer provides notice and copies of such rules and regulations to PTSI, and (iii) observe Customer s rules regarding restricted areas. 2.4 Customer s Commitment of Resources. Customer shall provide PTSI with access to Customer s materials, information, facilities and employees that are necessary for PTSI to perform the Professional Services as specified in an applicable Work Order. Customer acknowledges that PTSI s ability to perform the Professional Services as contemplated in a Work Order will depend upon the foregoing and Customer s obligations under the applicable Work Order. 3. Delivery, Testing and Acceptance. 3.1 Delivery. If the Work Order requires the provision by PTSI of Deliverables in connection with the Professional Services, PTSI shall perform its standard tests to verify that the Deliverables satisfy the requirements set forth in the Work Order applicable to such Deliverables. Upon completion of such tests, PTSI shall deliver such Deliverable to Customer for testing and acceptance.

8 3.2 Testing. Customer shall test any Deliverable during the Acceptance Period in accordance with the Acceptance Tests. If a Deliverable does not meet the requirements of the Acceptance Tests, Customer shall notify in writing PTSI of the nature and specifics of the nonconformity in reasonable detail. 3.3 Acceptance. Unless a different procedure for acceptance is set forth in the Work Order, PTSI shall work to correct nonconformities discovered during Customer s performance of the Acceptance Tests and resubmit the Deliverable to Customer for re-testing within a reasonable period of time. Customer shall follow proper backup procedures for any other programming and all data to protect against loss or error resulting from use of any or all parts of the Deliverables. In the event that Customer does not notify PTSI of any nonconformities during the Acceptance Period, such Deliverable shall be deemed accepted. This procedure shall repeat itself until Customer accepts or is deemed to have accepted. 4. License to Customer. PTSI hereby grants to Customer the right to use the Deliverables as though they are part of the Licensed Software or Documentation to which the Deliverables relate, subject to the same license terms and restrictions provided with respect to the Licensed Software or related Documentation. Customer s license rights granted herein are contingent upon Customer s full and final payment of compensation due to PTSI hereunder and no right or license is granted or conveyed by PTSI to Customer until such obligation has been performed. 5. Work Order Termination. Each Work Order shall terminate upon the earliest to occur of the following: (i) the completion of all Professional Services specified in the Work Order; (ii) the date upon which any stated limitation on the scope or duration of Professional Services has been reached, whether expressed in labor-hours, scope of project, or otherwise; (iii) the date of expiration, if any, set forth in the Work Order; or (iv) the termination of the Agreement in accordance with Section 4.2 of the Agreement. Except as otherwise provided in this Agreement, neither party shall have any further rights or duties under any Work Order upon its expiration or termination. In the event of any termination of the Agreement by Customer for PTSI s breach, Customer shall promptly pay PTSI for Professional Services performed prior to the effective date of termination, as well as all expenses properly incurred and documented in accordance with Section 5.2 of the Agreement. If PTSI terminates for Customer s breach, Customer shall pay all fees for Professional Services under all then-pending Work Order(s) as if such Professional Services had been performed and accepted. 6. Order of Precedence. This Exhibit A and each Work Order is governed by the terms of the Agreement. Any item in this Exhibit A or any Work Order that is inconsistent with the terms of the Agreement shall take precedence over the Agreement only to the extent of the conflict with this Exhibit A or any Work Order.