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All references to 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 SERVICESLicenses1. License Grant.(a) Pegasystems grants to Ordering Activity a license to use the Software, in object code and/or rules form, as specified ineach applicable License Schedule. This license is non-exclusive and non-transferable, except as provided in Paragraphs15(b) and (c), and Pegasystems retains all rights not expressly granted to Ordering Activity in this Agreement.(b) Customer may use the Software on any Technology Platform that is then generally supported by Pegasystems, andmay switch from one generally supported Technology Platform to another (e.g., from a Windows environment to a Linuxenvironment) at no additional charge.(c) Unless specifically authorized by law, Ordering Activity may not reverse engineer, decompile, disassemble orotherwise attempt to determine source code or protocols from the Software. Ordering Activity agrees not to lease orsublicense the Software to any third party or otherwise use it except as permitted under this Agreement or the applicableSchedule. All copies of the Software will contain Pegasystems’ copyright notice.(d) In each License Schedule, Ordering Activity will commit to purchase licenses for production use of each Applicationat the time that development of the Application begins. Ordering Activity will not use shared User IDs, or aggregatingtechnologies such as concentrators, multiplexers, gateways or edge servers, to avoid or reduce the counting of individualsthat use the Software.(e) Pegasystems retains all right, title and interest to the Software and any derivatives, modifications and enhancements.2. Escrow of Source Code.At Ordering Activity’s written election, Pegasystems will escrow the source code to the Software with Iron MountainIntellectual Property Management, Inc., or Pegasystems’ then-current escrow agent, on the condition that OrderingActivity pay for all fees and expenses associated with its escrow account, including the costs for any verification of thedeposit materials.Maintenance3. Maintenance. In a License Schedule, Ordering Activity may purchase maintenance services as described in theapplicable Maintenance Schedule.The following terms and conditions will apply to maintenance services:(a) The maintenance term under each License Schedule will automatically renew for successive annual terms, at the thencurrent fees under such License Schedule, subject to annual inflation adjustments in accordance with Section 6, unlesseither party provides prior written notice of its intent not to renew maintenance at least 60 days prior to the expiration ofthe then-current term. If Ordering Activity elects not to renew maintenance, the election must be for all of the Softwarelicensed under the applicable License Schedule, and for any additional usage of that Software licensed under otherLicense Schedules. The maintenance fees for each term will be due and payable thirty days in advance.immixTechnology, Inc.Page 12/16/2012
(b) If the Ordering Activity licenses the Software for additional use, the corresponding maintenance fee will be assessed atthe applicable percentage of the license fee, as adjusted for annual inflation increases in accordance with Section 6. Anysuch additional maintenance fee will be prorated to reflect the period of time remaining in the then-current term and willbe payable from the date the additional usage is licensed.(c) In the event that Ordering Activity elects not to renew maintenance, and then later elects to renew maintenance, anyreinstatement of maintenance services will be subject to the mutual agreement of the parties and Ordering Activity’spayment to Pegasystems of 120% of all fees that would have been payable from the time that Ordering Activitydiscontinued maintenance to the time of its reinstatement.Professional Services and Training4. Performance of Professional Services; Deliverables.(a) Pegasystems may provide services under a mutually–agreed Work Order, including consulting, installation support,and access to training courses.(b) All deliverables that Pegasystems creates during the course of services for Ordering Activity under this Agreementwill be a “work made for hire” and will become, effective upon payment by Ordering Activity in full, the exclusiveproperty of Ordering Activity. Ordering Activity will also retain all right, title and interest in any RuleSets that OrderingActivity develops for itself using the Software. Ordering Activity grants Pegasystems a non-exclusive, transferable, fullypaid license to use any portion of deliverables that perform generic functions which do not embody Ordering Activity’sConfidential Information. So long as Pegasystems has not used any Ordering Activity Confidential Information, OrderingActivity r agrees not to challenge or make claims against any Pegasystems products or services.(c) Pegasystems may use its Pre-Existing Materials in the course of providing services to the Customer. Pre-existingMaterials (and all derivatives, modifications and enhancements to such Pre-Existing Materials) will at all times remain theproperty of Pegasystems, and Ordering Activity will receive a non-exclusive, fully-paid license to use the Pre-ExistingMaterials in connection with the deliverables to which they relate.General Terms and Conditions5. Term.(a) Reserved.(b) Reserved.(c) Reserved.(d) If the contract to which these terms apply is terminated or expires, each party will return to the other, or certify inwriting the destruction of, any Confidential Information (as defined below) or property of the other. Termination will besubject to payment for all Software or services that Customer had received and accepted prior to the effective date oftermination. If a License Schedule is terminated or expires, all licenses granted under that Schedule will terminate.(e) Sections 1(e), 4(b), 4(c), 5, 6, 9 through 11, and 15 will survive the termination of the contract to which these termsapply.immixTechnology, Inc.Page 22/16/2012
6. Inspection/Acceptance.The Contractor (immixTechnology, Inc.) can only, and shall only tender for acceptance those items that substantiallyconform to the software manufacturer’s (“PEGASYSTEMS”) published specifications. Therefore, items delivered shallbe considered accepted upon delivery. The Government reserves the right to inspect or test any supplies or services thathave been delivered. The Government may require repair or replacement of nonconforming supplies or re-performance ofnonconforming services at no increase in contract price. If repair/replacement or re-performance will not correct thedefects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptanceof 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.7. Reserved.8. Representations and Warranties.(a) Each party represents and warrants that entering into and carrying out the terms and conditions herein will not violateany obligation binding upon it; that each party will comply with all applicable laws in connection with its performancehereunder; 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 will be introduced into the Software by Pegasystems or its employees.Ordering Activity will conduct virus-checking procedures before allowing installation or using the Software, and foreach new version, upgrade or service pack.Pegasystems will, at its election, promptly repair the Software to resolve any failure of these warranties, which can bereplicated or verified, or replace the Software with a corrected version. These remedies will be Ordering Activity’sremedy for any failures of these warranties. In order for Ordering Activity to invoke these remedies, Ordering Activitymust provide written notice to Pegasystems within the warranty period, expressly outlining the nature of the allegedfailure or breach.(c) The foregoing warranties will be void to the extent that any failure of such warranties is caused by (i) anyone otherthan a Pegasystems employee modifying the Software (unless Pegasystems authorizes the change in writing), or (ii) nonPegasystems’ software or hardware.(d) Pegasystems warrants that all services provided under this hereunder will be performed in a professional manner,consistent with industry standards.(e) EXCEPT AS EXPRESSLY STATED IN THIS SECTION, PEGASYSTEMS MAKES NO WARRANTIES,EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.9. Confidentiality.(a) “Confidential Information” means all non-public information provided by or on behalf of a party to the other partyrelated to the disclosing party’s business, including but not limited to Pegasystems’ Software and Documentation. For theavoidance of doubt, Ordering Activity’s Confidential Information also includes any information that is protected byapplicable law, statute or regulation, including the Health Insurance Portability and Accountability Act and the GrammLeach Bliley Act.immixTechnology, Inc.Page 32/16/2012
(b) Each party agrees that any Confidential Information it receives from the other is the exclusive proprietary property ofthe disclosing party and may include trade secrets and other highly confidential information.(c) Each party agrees to receive and hold any Confidential Information in confidence and agrees:(i) not to disclose or publish any Confidential Information to third parties;(ii) not to use any Confidential Information except for those purposes specifically authorized by the disclosing party;(iii) not to use any Confidential Information to unfairly compete with the disclosing party;(iv) to restrict access to Confidential Information to those of its officers, directors, agents and employees who have aneed to know, have been advised of the confidential nature of the Confidential Information, and who are underobligations of confidentiality to the receiving party; and(v) to follow the other party’s reasonable on-site security procedures.(d) The above confidentiality provisions will not apply to information that:(i) is in the public domain at the time of its disclosure;(ii) is disclosed with the prior written consent of the disclosing party;(iii) becomes known to the receiving party from a source other than the disclosing party, provided such source islegally entitled to have and disclose the information;(iv) is independently developed by a receiving party without use of the Confidential Information of the disclosingparty, as demonstrated by written records of such receiving party; or(v) is required to be disclosed by a court or regulatory authority or because of laws, rules or regulations.(e) Pegasystems will own and be free to use any ideas or suggestions that directly relate to Pegasystems' products orbusiness and do not contain Ordering Activty Confidential Information. For example, Pegasystems will be free toincorporate any suggested repairs, fixes, changes or modifications to the Software into its products.10. Indemnification.(a) Pegasystems will indemnify Ordering Activity from, and defend Ordering Activity against, any third party claim thatthe Software infringes upon a United States, Australian, Canadian or European Union trademark, copyright, trade secretor patent (“IPR”), except to the extent that the alleged infringement results from modifications to the Software byCustomer or a third party or RuleSets created by Ordering Activity or a third party. In the event that the Software is foundto be infringing or if Pegasystems deems it advisable as a result of a claim or threatened claim, Pegasystems will, in itsreasonable discretion:(i) procure for Ordering Activity the right to continue using the Software;(ii) replace or modify the Software so that it becomes non-infringing; or(iii) in the event that Pegasystems cannot reasonably do the foregoing in its discretion, terminate the particularSchedule to which the IPR infringement claim relates and refund the Software license fees associated with suchSchedule, depreciated on a straight-line five year basis.These remedies will be Ordering Activity’s remedy for any IPR infringement claims.(b) Reserved.(c) In asserting any claim for indemnification, the relevant party must provide reasonably prompt written notice describingthe claim, and cooperate in all reasonable ways with the indemnifying party.11. Limitation of Liability. Ordering Activitywill have unlimited recourse for the following types of actual, directdamages arising under, or related to, these provisions:immixTechnology, Inc.Page 42/16/2012
(a) damages resulting from personal injury, death or tangible property damage caused by the other party or its personnel;(b) damages, and related legal costs and reasonable attorneys’ fees, for which the other party has agreed to provideindemnification hereunder; or(c) damages resulting from a breach of a party’s confidentiality obligations under this Agreement.All other damages arising under, or related to, these provisions (regardless of the type of damages, and whether for breachof contract, breach of warranty, tort or otherwise) will be limited to the amount of fees received by Pegasystems fromOrdering Activity in connection with the Schedule(s) under which such damages arose, or to which such damages relate(except any claim by Pegasystems for payments owed by Customer will be limited to the amount owed).12. Outsourcing. Ordering Activity will be permitted to allow a third party service provider to operate the Software as partof a technology outsourcing arrangement or to assist Customer in the development of an application, provided that: (a)such use is solely for the benefit of Ordering Activity and subject to the terms and conditions herein; and (b) OrderingActivity informs Pegasystems in writing and provides reasonable assurances that the requirements of this Section havebeen satisfied.13. Notices. Any notices under these provisions will be in writing and sent by certified mail, return receipt requested, orby a nationally or internationally recognized overnight delivery service, to:Pegasystems: Pegasystems Inc.101 Main StreetCambridge, MA 02142-1590 USAAttention: General CounselCustomer:Attention:14. Insurance. During the term of this contract 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 & InventoryReplacement Basis Commercial General Liability 1 Million Workers CompensationStatutory Employers Liability 1 Million Automobile Liability 1 Million Professional Liability (Errors & Omissions) 1 Million Umbrella/Excess Liability 5 Million Fidelity Bond 1 MillionThe insurance companies used must be rated at least A- by A.M. Best's Rating Service or equivalent. Upon written requestby the Customer, Pegasystems will provide a Certificate of Insurance evidencing the required insurance or Customer mayobtain such certificate directly from: http://www.marsh.com/MarshPortal/PortalMain?PID AppMoiFAQTerms&CLIENT 90011458015. Additional Terms and Conditions.(a) Cooperation. The parties agree that they will cooperate at all times in good faith. In the event of any dispute, whichcannot be readily resolved within 30 days, the parties will each escalate the matter to senior management who will meet inperson or by telephone within 15 days of receipt of notice of the dispute, to attempt to resolve the open issues.immixTechnology, Inc.Page 52/16/2012
(b) Assignment or Delegation. Neither party may assign or delegate any rights or obligations under these provisions orany Schedule without the other party’s prior written consent, except that either party may assign the entirety of its rightsand obligations under these provisions (i) to its parent company or an Affiliate, or (ii) in connection with a merger or saleof a business unit or majority stock ownership, subject to Section 15(c) and provided that the successor party assumes therights and obligations in writing and has adequate resources to meet its obligations and Customer notifies Pegasystems inwriting prior to the assignment. Customer will not assign these provisions or any Schedule to a Pegasystems competitor,which will be defined as any entity that licenses software that has a primary function of business rules and/or businessprocess management. Any assignment is subject to the terms and conditions herein.(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 theCustomer’s operations at the time of the Combination. In addition, the parties will negotiate in good faith a proportionateadjustment to the fees due under the applicable Schedule as a result of the Combination.(d) Non-Solicitation. Neither party will hire or contract with, either as an employee or an independent contractor (eitherdirectly or through a third party), any Covered Personnel of the other party. The term “Covered Personnel” of a partywill mean that party’s employees or any contractors retained by that party who are professional services personnel or whowere involved in the performance of these provisions within the preceding six-month period, or any person who wouldhave been considered Covered Personnel but for having terminated employment or contractual relationship within the pastsix months. Breach of this Paragraph will constitute a material breach of the contract to which these provisions apply.(e) Export Compliance. The export and re-export of the Software and any Pegasystems technology is subject to exportcontrols under the laws and regulations of the United States, and may also be subject to export and import controls underthe laws and regulations of other countries. Customer agrees, at all times, to comply fully with these controls, laws andregulations. Furthermore, Customer represents and warrants that it is not subject to the restrictions of the export controllaws and regulations of the United States.(f) U.S. Government Contracts. This subsection applies when any Software is acquired directly or indirectly by or onbehalf of the United States Government: The Software is a commercial product, licensed on the open market; developedentirely 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 RestrictedRights clause at FAR 52.227-19. Use, duplication and disclosure by DOD agencies is subject solely to these terms asstated in DFARS 227.7202.(g) Cooperation; Usage Validation. 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 thetransactions contemplated by these provisions. Pegasystems reserves the right, upon reasonable prior notice, to validateCustomer’s usage of the Software and its compliance under these provisions.(h) Force Majeure. Neither party will be responsible for performance delays caused by circumstances outside itsreasonable control.(i) No Waiver. Neither a failure of a party to exercise any power or right under these provisions, nor a custom or practiceof the parties with regard to the terms or performance hereunder, will constitute a waiver of the rights of such party todemand full compliance with the terms of these provisions.(j) Reserved.immixTechnology, Inc.Page 62/16/2012
(k) Reserved.(l) Enforceability. If any portion of this Agreement is declared by a court of competent jurisdiction to be overbroad orunenforceable, the remainder of this Agreement will be valid and enforceable to the fullest extent permitted.(m) Reserved.ADDITIONAL PEGASYSTEMS MAINTENANCE TERMSThe following definitions will apply, unless otherwise expressly stated:“Affiliates” are those entities that control, are controlled by, or are under common control with the Customer. Affiliatesmay be entitled, subject to the terms of this Agreement and the applicable Schedule, to license Software, use Softwarelicensed by Customer, or purchase maintenance or professional services. For the purpose of any Schedule to which anAffiliate is a party, the Affiliate will be considered the Customer for purposes of the Agreement and such Schedule.“Application” means a collection of rules and processes that provides specific business functionality and is released toproduction as a unit. Each Application is documented in the Software by an Application Rule.A “Case” means use of the Software for the creation, routing, updating, processing, tracking and/or resolution of a singleunit of work in a production environment. Work on Cases initiated by Customer’s licensed Users is completely coveredby User pricing. Customer will only be required to purchase licenses on a per Case basis for Cases initiated over the webfor self-service or initiated through automated processes, based on the three Case types listed below.1. Simple: Managing the creation, routing, status tracking and closure of an individual Case with up to 3 manual orautomated steps.2. Intermediate: Managing the creation, routing, status tracking and closure of an individual Case with 4 to 6 manualor automated steps.3. Complex: Managing the creation, routing, status tracking and closure of an individual Case with more than 6manual or automated steps, or for a Case involving intent-driven process automation, automated order fulfillment orcorrespondence following work resolution, or financial transaction processing.Only the Simple Case fee will be charged if a Case that is initiated over the web for self-service or initiated throughautomated processes is later routed to a licensed User for processing.The per-Case fee is only charged once, no matter how many times the Case is worked upon over time. In addition, unusedCases of one type can be converted to Cases of another type in a ratio of 1 Complex Case 3 Intermediate Cases 5Simple Cases.“Connector” means an integration facility that permits the Software to call applications for data or processing.“Documentation” consists of user manuals for the Software, which are provided to Customer in electronic form at thetime of delivery of the Software.immixTechnology, Inc.Page 72/16/2012
An “Invocation” is a call for execution of the Software as a business rules engine to perform an automated decision orcalculation. For the avoidance of doubt, multiple processes or queries performed by the Software in completing the callfor execution do not result in additional Invocations.“License Schedule”, “Maintenance Schedule” or “Work Order” means a signed agreement to license products,purchase maintenance or purchase professional services from Pegasystems. License Schedules, Maintenance Schedulesand Work Orders are referred to collectively as “Schedules”. Each Schedule, once signed, will be non-cancelable andnon-refundable, except to the extent expressly provided in this Agreement or such Schedule or under applicable law.“Pre-Existing Materials” means processes, methods, software (including but not limited to the Software), relateddocumentation, designs and know-how, which Pegasystems conceived independently of the services for Customer andwithout the use of any Customer Confidential Information.A “RuleSet” is a named collection of configuration records. For Pegasystems’ provided RuleSets, the RuleSet namesbegin with “Pega” or the “&,” “@” or “)” symbol.“Service” means an integration facility that permits applications to call the Software for data or processing.“Software” will mean the licensed software listed in the applicable License Schedule, including any service packs,upgrades or other releases provided to Customer pursuant to a paid maintenance agreement. The Software includesPegasystems’ provided RuleSets and source code generated by the Software, if any.“Technology Platform” will mean hardware, operating system, database, web browser, application server or othersoftware with which the Software is intended for use.A “User” is a person who uses the Software in a particular month.“A “Sporadic User” is a person that uses the Software during less than 10 hourly periods in a calendar month.An “Occasional User” is a person that uses the Software during between 10 and 50 hourly periods in a calendar month.Any other person 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 workdone by customer staff. The number of Regular Users, Occasional Users and Sporadic Users will be measuredeach calendar month based on their actual usage of the Software in that month. The Software tracks only actualuse, so a person who has a User ID but does not use the Software in a month will not be counted as a User forthat month. Also, for the avoidance of doubt, merely being “logged in” is not counted as actual use duringinactive hours.PREMIUM MAINTENANCE SCHEDULEPegasystems will provide Ordering Activity maintenance services comprising Problem Resolution, Software Updates,Upgrades and access to the Pega Developer Network (together, “Support”). Pegasystems will provide Support inaccordance with the procedures described in the Pegasystems Customer Support Handbook, as updated from time to time.Pegasystems may not update the Customer Support Handbook in a manner that would materially and adversely affect therights of Customer to Support under this Maintenance Schedule.immixTechnology, Inc.Page 82/16/2012
Pegasystems will support Ordering Activity’s use of the Software irrespective of its version as long as the parties renewthis Maintenance Schedule for additional terms, but reserves the right to negotiate an additional Support fee if OrderingActivity is using a release older than three versions from the then-most current version.Problem ResolutionPegasystems will repair errors or problems with the Software so that the Software operates in substantial accordance withits Documentation. Problem Resolution includes: Telephone Support: Pegasystems will accept calls from Ordering Activity’s designated contacts and work withthe Ordering Activity to provide relief and/or a permanent solution.Ordering Activity designated contacts: Ordering Activity may change these contacts upon written notice toPegasystems. Additional contacts may be added for an additional fee.Access: Access to Ordering Activity’s systems shall be controlled at all times by the Ordering Activity. Accessshall be provided to Pegasystems on an as needed basis, as approved by Ordering Activity. Ordering Activityagrees to allow Pegasystems to use a software tool to view Ordering Activity’s desktop environment using asecure, encrypted connection in order to allow Pegasystems to provide real time response, access and resolutionof issues or to promptly apply critical Software repairs. During any Support session in which Pegasystems haselectronic access to Ordering Activity’s systems, access to such systems must include persistent connectivity withreasonable throughput and bandwidth available to perform all necessary functions. All changes by OrderingActivity 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:Support Table AProblem Resolution CoveragePremiumFor Severity 1 (Down ProductionEmergencies): 24x7 For all other Severity Levels: 9am – 5pmstandard business days, if: in the US, US ET, inEurope, GMT; in Asia Pacific, Australian ETUp to 5 contact names CoverageUp to specified number of “Defined Names” authorizedto contact Pegasystems for Technical SupportNumber of CallsTelephone support within coverage hoursSecure access to Knowledge Base FTP siteSeverity 1 Target Response TimeSeverity 2 Target Response TimeSeverity 3 Target Response TimeSeverity 4 Target Response Time* Initial response during standard business days** Initial response, 24x7UnlimitedIncludedIncluded15 minutes **1 hour *4 hours *8 hours *Support Table BSeverity Level1Severity Level DescriptionSeverity 1 is used in instances in which the Pegasystems production system is down or theSoftware is otherwise unusable resulting in massive disruption of production use.immixTechnology, Inc.Page 92/16/2012
234Pegasystems’ goal for providing initial relief (such as an alternative method to restore systemoperations) for Severity 1 cases is within 4 hours. The timeframe for providing a permanentresolution for Severity 1 issues is dependent upon the specific situation, and is typically jointlydetermined by Ordering Activity and Pegasystems’ support manager. Severity 1 cases areeligible for continuous effort by Pegasystems support personnel, provided that OrderingActivity’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 adefect 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 permanen
2. Escrow of Source Code. At Ordering Activity’s written election, Pegasystems will escrow the source code to the Software with Iron Mountain Intellectual Property Management, Inc., or Pegasystems’ then-current
