These Consulting Terms, together with a Work Order, and any terms which are incorporated by written reference in any of the foregoing (including written reference to information contained in a URL or policy) are collectively called, this Agreement. Capitalized terms used in this Agreement and not otherwise defined in this Agreement, are, as of the Work Order Effective Date defined at http://www.tibco.com/software/productdefinitions.jsp. Licensee may place orders under this Agreement by submitting separate Work Order(s). Each Work Order shall incorporate the provisions of this Agreement. In the event of any conflict between the terms of this Agreement and of a Work Order, the terms of the Work Order shall prevail. 1. Consulting Services 1.1 Licensee may procure installation, configuration, training or other consulting or support services ("Consulting Services") in a purchase order, or in a work order executed by both parties ( Work Order ). Licensor will use commercially reasonable efforts to perform such Consulting Services. Unless otherwise expressly agreed in a Work Order, all Consulting Services shall be: (a) performed on a time and materials basis ("T&M"), with meals, lodging, travel and other reasonably necessary out-of-pocket expenses ("Expenses") invoiced in addition to T&M fees, (b) deemed accepted upon delivery, and (c) incorporate the Work Order Terms located at http://www.tibco.com/resources/company/cu stomer-relations/work-order-terms.pdf. 1.2 Licensor hereby grants Licensee a nonexclusive license to use the Materials (and a reasonable number of copies thereof) solely for Licensee s internal operations in conjunction with Licensee s use of the Licensor Software. Materials obtained during Licensee s attendance at a Licensor training course, unless otherwise agreed in a Work Order, are limited to the one copy received by each attendee. 1.3 If Licensee is purchasing one or more training course Materials licenses pursuant to an Order Form, subject to Licensee s payment of fees due for the Materials, Licensor hereby grants to Licensee a 2. Fees limited, non-transferrable, non-exclusive, license to use, modify, translate, create derivative works, reproduce and distribute the Materials solely for Licensee s internal business use, provided that the copyright notice and other legends of ownership are reproduced on each copy of the Materials (in whole or in part). All whole or partial copies of the Materials in any form shall be subject to the same terms as the original copy. The term of each license and level of annual Maintenance for the Materials shall be as set forth in the Order Form. 2.1 Licensee shall pay the fees and related charges set forth in a Work Order or Order Form, and for any other amounts coming due hereafter, net thirty (30) days from Licensor's invoice. A service charge of one and one-half percent per month (or such lower amount as permitted by applicable law) will be applied to all invoices that are not paid on time. Licensee agrees to pay all sales, use, value-added, goods and services, consumption, withholding, excise and any other similar taxes or government charges, exclusive of Licensor s income taxes. 3. Limited Warranty 3.1 Licensor hereby warrants that during the performance of Consulting Services subject to a Work Order, such Consulting Services shall be performed in a manner consistent with generally accepted industry standards. expressly incorporated under a change order executed by the parties. 2014 TIBCO Software Inc. All Rights Reserved. Page 1 of 7
3.2 Licensor has the right to grant the licenses and other rights set forth herein. 4. Indemnity 4.1 Licensor hereby agrees at its own expense to defend or, at its option, settle, any claim or action brought against Licensee to the extent it is based on a claim that the Materials infringe any patent, copyright, or any trade secret of a third party. Furthermore, Licensor will indemnify and hold Licensee harmless from and against any damages, costs and fees reasonably incurred (including reasonable attorneys' fees) that are attributable to such claim or action and which are assessed against Licensee in a final judgment (the IP Indemnity ). Licensor s obligations to defend, settle or indemnify Licensee are subject to Licensee promptly notifying Licensor in writing of such claim; Licensor having the exclusive right to control such defense and/or settlement; and Licensee providing reasonable assistance (at Licensor's expense) in the defense thereof. In no event shall Licensee settle any claim, action or proceeding without Licensor s prior written approval. 5. Remedies 5.1 IN THE EVENT OF A BREACH OF A LIMITED WARRANTY UNDER SECTION 3 OR AN INDEMNIFICATION OBLIGATION ARISES UNDER SECTION 4, LICENSOR S LIABILITY (IN ADDITION TO THE IP INDEMNITY) AND LICENSEE S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR LICENSOR AT ITS OWN EXPENSE, TO EITHER (A) REPERFORM THE AFFECTED CONSULTING SERVICES, OR (B) ALTERNATIVELY, IN THE CASE OF INDEMNITY, PROCURE FOR LICENSEE THE RIGHT TO CONTINUE TO USE THE AFFECTED MATERIALS. IF THE FOREGOING REMEDIES ARE NOT COMMERCIALLY REASONABLE (IN THE REASONABLE OPINION OF LICENSOR), LICENSOR MAY CANCEL THIS AGREEMENT AS TO THE AFFECTED MATERIALS OR CONSULTING SERVICES, AND REFUND TO LICENSEE ALL AMOUNTS PAID TO LICENSOR BY LICENSEE UNDER THE WORK ORDER FOR THE AFFECTED MATERIALS OR CONSULTING SERVICES. 6. Disclaimers 6.1 CONSULTING SERVICES AND MATERIALS ARE PROVIDED "AS IS", AND ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF INFORMED OF SUCH PURPOSE), INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY DISCLAIMED TO THE EXTENT ALLOWED BY APPLICABLE LAW. NO WARRANTY IS MADE THAT THE CONSULTING SERVICES OR MATERIALS WILL MEET Licensee REQUIREMENTS, OR THAT THE OPERATION OF ANY OF THE FOREGOING WILL BE UNINTERRUPTED OR ERROR-FREE. 7. Exclusions 7.1 LICENSOR SHALL NOT BE LIABLE TO THE EXTENT ANY CLAIM IS BASED UPON OR ATTRIBUTABLE TO: (A) MODIFICATIONS MADE BY expressly incorporated under a change order executed by the parties. 2014 TIBCO Software Inc. All Rights Reserved. Page 2 of 7
LICENSEE OF THE MATERIALS, OR PORTIONS THEREOF; OR (B) LICENSEE S CONTINUED ALLEGEDLY INFRINGING ACTIVITY AFTER BEING PROVIDED WITH MODIFICATIONS BY LICENSOR THAT WOULD HAVE AVOIDED THE ALLEGED INFRINGEMENT. 8. Limitation of Liability 8.1 EXCEPT FOR A BREACH OF CONFIDENTIALITY OBLIGATIONS OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY ( EXCLUDED MATTERS ), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR ANY SIMILAR TYPE OF DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST DATA, LOST REVENUE, LOST PROFITS, DAMAGE TO REPUTATION, BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE PROVISION OF CONSULTING SERVICES. 8.2 EXCEPT FOR THE EXCLUDED MATTERS, IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY TO THE OTHER FOR ALL CLAIMS ARISING OUT OF OR AS A RESULT OF THIS AGREEMENT EXCEED THE GREATER OF (A) 1,000,000 USD OR (B) ONE HUNDRED PERCENT OF THE FEES PAID UNDER THE APPLICABLE WORK ORDER. 9. Proprietary Notices 9.1 Licensor Software, Documentation and Materials are proprietary to Licensor and protected by applicable U.S. and international patent, copyright, trademark and trade secret laws. Licensor and its licensors shall retain ownership in the Licensor Software, Documentation and Materials, all derivatives thereof (in whole or part), and any intellectual property or other rights embodied therein. All proprietary notices incorporated in or affixed to any Licensor Software, Documentation or Materials shall be duplicated by Licensee on all copies of the Licensor Software, Documentation, or Material, as applicable, and shall not be altered, removed or obliterated. 10. Confidentiality 10.1 Confidential Information means any information disclosed by either party, whether or not marked, including, without limitation, the terms of this Agreement, the Licensor Software, Materials, individual contact information provided by either party or related performance test results derived by Licensee and Licensee s Protected Data and Output. Each party agrees to protect Confidential Information in the same manner as it protects its own confidential information (but using no less than a reasonable degree of protection) and shall only disclose Confidential Information to those employees, contractors, or consultants with a need to know that information, who have agreed in writing to be bound by terms at least as protective as those contained in this Agreement. Information will not be deemed Confidential Information if (a) available to the public other than by a breach of a confidentiality obligation, (b) rightfully received from a third party not in breach of a confidentiality obligation, (c) independently developed by one party without use of the Confidential Information of the other; (d) known to the recipient at the time of disclosure (other than under a separate confidentiality obligation); or (e) produced expressly incorporated under a change order executed by the parties. 2014 TIBCO Software Inc. All Rights Reserved. Page 3 of 7
in compliance with applicable law or court order, provided the other party is given reasonable advance notice of the obligation to produce Confidential Information. Each party agrees to indemnify the other for any damages (including reasonable expenses) the other may sustain resulting from the unauthorized use and/or disclosure of the other's Confidential Information and that money damages would not be a sufficient remedy for a breach of confidentiality. The parties shall be entitled to seek injunctive or other equitable relief without the necessity of posting a bond even if otherwise normally required. Such injunctive or equitable relief shall not be the exclusive remedy for any breach of confidentiality, but shall be in addition to all other rights and remedies available at law or in equity. 10.2 To the extent Licensor is exposed to individual personal data during the provision of services, which is subject to applicable data protection laws and/or regulations ("Protected Data"), Licensor agrees to treat such Protected Data in accordance with the Customer Privacy and Security Statement set forth at http://www.tibco.com/customer_privacy_sec urity_statement.jsp (the "Statement"). The policies and procedures set forth in the Statement as well as those set forth in the Data Protection Policy Statement at http://www.tibco.com/resources/data_protec tion_statement.pdf are in place to ensure the protection, integrity, and confidentiality of any Protected Data in addition to Licensor s standard obligations to safeguard Confidential Information. 10.3 Confidential Information shall remain the sole property of the disclosing party, and each party acknowledges and agrees that it does not acquire any rights therein. Use by a recipient of Confidential Information for the purposes contemplated under this Agreement, including, but not limited to, any configuration or use by Licensee of the Licensor Software or Materials, shall not affect or diminish the disclosing party s rights, title and interest in and to Confidential Information. 10.4 Licensor may use any individual contact information provided to it by Licensee and its employees, contractors or consultants for support, product information and other business to business communications in connection with this Agreement. Licensee shall direct individuals who elect to optout of such notifications to Licensor s Unsubscribe page. 11. Export 11.1 Licensor Software, Documentation, Materials and related technical data, are subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations and may be subject to export or import regulations of other countries. Licensee hereby agrees that it will not export or re-export the Licensor Software, Documentation and Materials in any form in violation of any applicable export or import laws of any jurisdiction. 12. Government Use 12.1 If the Licensor Software, Materials and any Licensor services are being or have been acquired with U.S. Federal Government funds, or Licensee is an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Licensor Software, or any related documentation of any kind, including technical data, manuals or Materials, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian expressly incorporated under a change order executed by the parties. 2014 TIBCO Software Inc. All Rights Reserved. Page 4 of 7
agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. The Licensor Software, Materials and any Licensor services are COMMERCIAL ITEMS AS DEFINED BY THE FEDERAL ACQUISITION REGULATION. Use of the Licensor Software and Materials by the Government is further restricted according to the terms of this Agreement and any amendment hereto. 13. Term and Termination 13.1 Either party may terminate a Work Order upon; (a) thirty (30) days prior written notice if the other party breaches a material provision of this Agreement and fails to cure such breach within the thirty (30) days; or (b) upon fifteen (15) days prior written notice in the case of Licensee or thirty (30) days prior written notice in the case of Licensor. 13.2 This Agreement and all Work Orders and Order Forms shall automatically terminate, if either party files for bankruptcy, or otherwise goes into receivership, becomes insolvent, or makes an assignment for the benefit of creditors. 13.3 Upon termination, Licensee shall (a) cease using the applicable Materials, and related Confidential Information of Licensor, and (b) return or notify Licensor in writing within thirty (30) days after termination that Licensee has destroyed the Materials, and related Confidential Information of Licensor, and all copies thereof, whether or not modified or merged into Output or other materials. 13.4 Termination shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Licensee of its obligation to pay all fees that have accrued or are otherwise owed by Licensee. 13.5 Except as set forth in the section entitled "Remedies", all fees paid under this Agreement are non-refundable and no right of set off exists. The parties' rights and obligations under this section and sections entitled "Fees", Limited Warranties, Indemnity, Remedies, Disclaimers, Exclusions, Limitation of Liability, Proprietary Notices, "Confidentiality", and "General", shall survive the expiration or earlier termination of this Agreement. 14. Entire Agreement 14.1 This Agreement constitutes the complete and exclusive statement of the parties agreement as it relates to the subject matter and supersedes all prior and contemporaneous proposals, representations, statements, negotiations and undertakings related to same. No terms and conditions of any purchase order (other than the consulting type and description, quantity and fees due in connection therewith), shall modify the terms and conditions of this Agreement, or add any additional or inconsistent terms for any reason or purpose whatsoever, regardless of any statement in a purchase order to the contrary. 15. General 15.1 This Agreement may not be modified or altered except by written instrument duly executed by both parties, except for an Order Form, which if issued in accordance with this Agreement shall be binding when executed by the party to be bound. 15.2 No waiver by either party of any breach of any provision of this Agreement shall be construed as a waiver of that or any other provision on any other occasion. 15.3 Dates or times by which one party is required to perform under this Agreement shall be postponed automatically for so long expressly incorporated under a change order executed by the parties. 2014 TIBCO Software Inc. All Rights Reserved. Page 5 of 7
as that party is prevented from performing by any act of or failure to act by, the other party. 15.4 No delay or default in performance of any obligation by either party (except payment obligations), shall constitute a breach of this Agreement to the extent caused by force majeure or any other cause which is beyond its reasonable control, including, but not limited to, fires, strikes, accidents, acts of God or subcontractor defaults. 15.5 Except for an assignment, in whole or part, by Licensor to a wholly owned subsidiary, neither party may assign this Agreement and/or any of its rights and/or obligations without the prior written consent of the other party (which shall not to be unreasonably withheld). Any such attempted assignment shall be void. For the purposes of the foregoing, a change in control of Licensee is deemed to cause or attempt to cause an assignment of this Agreement and shall require Licensor s prior written consent. 15.6 IF ANY PROVISION OF THIS AGREEMENT IS HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE UNDER APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, ANY LIMITATION OF LIABILITY, THE VALIDITY, LEGALITY AND ENFORCEABILITY OF THE REMAINING PROVISIONS SHALL IN NO WAY BE AFFECTED OR IMPAIRED THEREBY. THE AFFECTED CLAUSE SHALL BE INTERPRETED IN SUCH A MANNER AS TO RENDER IT ENFORCEABLE WHILE ATTEMPTING TO CLOSELY APPROXIMATE THE INTENT AND THE ECONOMIC EFFECT OF THE AFFECTED CLAUSE. 15.7 All notices related to this Agreement shall be in writing. Notices will be effective if dispatched by facsimile; or electronic mail; by hand; reliable overnight delivery service or first-class, pre-paid mail if sent to the contract address for the intended recipient set forth in an Order Form. A copy of any notice of default, breach or termination shall also being sent to that party's General Counsel. 15.8 The losing party shall pay all reasonable costs, including, without limitation attorney s fees, incurred by the prevailing party in any action brought to enforce the prevailing party s rights under this Agreement. 15.9 Licensee hereby grants Licensor and its independent auditors, at Licensor's expense, the right to audit Licensee s compliance with this Agreement upon reasonable notice and at reasonable times. 15.10 The Agreement shall not be interpreted to create an agency or consignment relationship, and neither party is a partner, employee, agent or joint venture partner of, or with, the other. 15.11 During the term of this Agreement and for a period of one (1) year following expiration or termination of this Agreement or an Order Form, neither party shall actively solicit for employment any employee, contractor, or consultant, or other representative of the other party who performed services in connection with this Agreement, without the prior written consent of the other party. 16. Insurance 16.1 Licensor shall acquire and be responsible for maintaining insurance, including workers compensation where required by law, commercial automobile liability (in the minimum amount of $1,000,000.00 combined single limit) and commercial expressly incorporated under a change order executed by the parties. 2014 TIBCO Software Inc. All Rights Reserved. Page 6 of 7
general liability (in the minimum amount of $1,000,000.00 per occurrence and $2,000,000.00 in aggregate). Upon Licensee's written request, Licensor will provide proof of such insurance prior to commencement of services under a Work Order. 17. Governing Law 17.1 If Licensee is entering into this Agreement from a European Union member country, Norway, Switzerland, Japan, India or Australia, then this Agreement is governing by the laws of England and Wales, otherwise, this Agreement is governed by the law of the State of California as if performed wholly within that state and without giving effect to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Consulting Terms expressly incorporated under a change order executed by the parties. 2014 TIBCO Software Inc. All Rights Reserved. Page 7 of 7