Platform Subscription Agreement

THE FOLLOWING TRANZTEC SOLUTIONS, INC (“TRANZTEC”) PLATFORM SUBSCRIPTION AGREEMENT WILL BE LEGALLY BINDING ON THE CUSTOMER UPON EXECUTION OF AN APPLICABLE SUBCRIPTION ORDER FORM (“ORDER FORM”).

CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TRANZTEC SUBSCRIPTION AGREEMENT BEFORE EXECUTING THE APPLICABLE ORDER FORM.

1. DEFINITIONS

“Administrator User” means each Customer employee designated by Customer to serve as technical administrator of the SaaS Services on Customer’s behalf.  Each Administrator User must complete training as reasonably required by Tranztec.

“Customer Content” means all data and materials provided by Customer to Tranztec for use in connection with

the SaaS Services, including, without limitation, customer applications, data files, and graphics.

“Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by Tranztec to Customer regarding the use or operation of the SaaS Services.

“Host” means the computer equipment on which the Software is installed, which is owned and operated by Tranztec or its subcontractors.

“Maintenance Services” means the support and maintenance services provided by Tranztec to Customer pursuant to this Subscription Agreement and Exhibit B.

“Order Form” means the Order Form to which this Subscription Agreement is attached, as well as any additional or subsequent Order Form by and between the parties and Customer (or any affiliate of Customer).

“Other Services” means all technical and non-technical services performed or delivered by Tranztec under this Subscription Agreement, including, without limitation, implementation services and other professional services, training and education services but excluding the SaaS Services and the Maintenance Services.  Other Services will be under a separate Order Form and mutually agreed to by the parties.  No Other Services will be considered work-for-hire basis.

“Software” means the object code version of any software (including any application programming interface) to which Customer is provided access as part of the Service, including any updates or new versions thereof.

“SaaS Services” refer to the specific Tranztec’s internet-accessible service identified in a Schedule that provides use of Tranztec’s Platform Software that is hosted by Tranztec or its services provider and made available to Customer over a network on a term-use basis.

“Subscription Term” shall mean that period specified in a Schedule during which Customer will have on-line access and use of the Software through Tranztec’s SaaS Services.  The Subscription Term shall renew for successive periods as defined in the sales order unless either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term.

2. SAAS SERVICES

2.1 During the Subscription Term, Customer has a nonexclusive, non-assignable, royalty free, worldwide right to access and use the SaaS Services solely for Customer’s internal business operations subject to the terms of this Subscription Agreement.

2.2 Customer acknowledges that this Subscription Agreement is a services agreement and Customer has not right to copies of the Software to Customer as part of the SaaS Services.

3. RESTRICTIONS

3.1           Use Restrictions.  Customer shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than authorized users, (iii) use or access the SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the SaaS Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Customer and its users may not use the Services to post, transmit, convey, submit, distribute, store or destroy any content, data, personal information, photographs, descriptions, drawings, content, audio materials, text, messages or other information (collectively, “Posted Information”): (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; (f) that is inappropriate or pornographic in any way; or (g) in violation of any acceptable use policy or other policy posted at the Website from time to time. Customer and its users may not violate or attempt to violate the security of any portion of the Services. For purposes of clarity, Customer and its users may not, under any set of circumstances, provide any false information or otherwise seek to obtain any user name or password to access any portion of the VIA® Platform (i) for purposes of competing with the Company, or (ii) for any purpose other than to use the Services for their intended purposes. Subject to the limited licenses granted herein, Tranztec owns all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this Subscription Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein.  Customer assigns all right, title and interest it may have in the foregoing to Tranztec.

3.2           Monitoring.  Tranztec may monitor use of the Software to ensure quality, improve its products and services, and verify compliance with this Subscription Agreement.  Customer may not interfere with this monitoring. Tranztec may use any technical means to monitor use of the Software and to overcome such interference, and without limiting Tranztec’s other remedies, Tranztec may suspend use of the Software without notice if Tranztec reasonably believes Customer or any of its users is breaching this Subscription Agreement.

4. CUSTOMER RESPONSIBILITIES

4.1  Assistance.  Customer shall provide commercially reasonable information and assistance to Tranztec to enable Tranztec to deliver the SaaS Services.  Upon request from Tranztec, Customer shall promptly deliver Customer Content to Tranztec in an electronic file format specified and accessible by Tranztec.  Customer acknowledges that Tranztec’s ability to deliver the SaaS Services in the manner provided in this Subscription Agreement may depend upon the accuracy and timeliness of such information and assistance.

4.2   Compliance with Laws.  Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.  Customer acknowledges that Tranztec exercises no control over the content of the information transmitted by Customer its users through the SaaS Services.  Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

4.3   Unauthorized Use; False Information.  Customer shall: (a) notify Tranztec immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Tranztec immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any user, and (c) not provide false identity information to gain access to or use the SaaS Services.

4.4   Administrator Access.  Customer is responsible for the acts and omissions of its users.  Tranztec shall not be liable for any loss of data or functionality caused directly or indirectly by Customer’s users.

4.5   Customer Input.  Customer is solely responsible for collecting, inputting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious.

4.6   License from Customer.  Subject to the terms and conditions of this Subscription Agreement, Customer grants to Tranztec, throughout the term of this Subscription Agreement, a non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer.

4.7 Ownership and Restrictions.  Customer retains ownership and intellectual property rights in and to its Customer Content. Tranztec or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under this Subscription Agreement.  Third party technology that may be appropriate or necessary for use with some Tranztec programs is specified in the program Documentation or ordering document as applicable. Customer’s right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by Tranztec and not under this Subscription Agreement.

4.8   Suggestions.  Customer grants Tranztec a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Customer’s users, relating to the operation of the SaaS Services.

5. ORDERS AND PAYMENT

5.1 Orders.  All services acquired by Customer shall be governed exclusively by this Subscription Agreement and the applicable Order Form.  In the event of a conflict between the terms of an Order Form and this Subscription Agreement, the terms of the Order Form shall take precedence.

5.2 Invoicing and Payment.  Unless otherwise provided in the Schedule, Tranztec shall invoice Customer for all fees on the Order Form effective date.  Customer shall pay all undisputed invoices within the payment terms on the Order Form after Customer receives the invoice.  Except as expressly provided otherwise, fees are non-refundable.  All fees are stated in United States Dollars and must be paid by Customer to Tranztec in United States Dollars. All amounts overdue to Tranztec, except amounts disputed in good faith, will bear interest at 1.5% per month or, if less, the highest lawful rate.

5.3 Expenses.  Customer will reimburse Tranztec for Tranztec’s reasonable, out-of-pocket travel and related expenses incurred in performing the Other Services.  Tranztec shall notify Customer prior to incurring any such expense.  Tranztec shall comply with Customer’s reasonable travel and expense policy if made available to Tranztec prior to the required travel.

5.4 Taxes.  Tranztec shall bill Customer for applicable taxes as a separate line item on each invoice.  Customer shall be solely responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the services.  Customer shall not be liable for taxes based on Tranztec’s net income, capital or corporate franchise.

6. TERM AND TERMINATION

6.1 Term of Subscription Agreement.  The term of this Subscription Agreement shall begin on the Effective Date of the Order Form and shall continue for the term specified in each relevant Order Form or until terminated by either party as outlined in this Section.   The term specified will automatically renew at its end unless either party provides notification of termination thirty (30) days prior to the end of the term.

6.2 Termination.  Either party may terminate this Subscription Agreement immediately upon a material breach by the other party that has not been cured within thirty (30) days after receipt of notice of such breach.

6.3 Suspension for Non-Payment.  Tranztec reserves the right to suspend delivery of the SaaS Services if Customer fails to timely pay any amounts due to Tranztec under this Subscription Agreement (excluding amounts disputed in good faith), but only after Tranztec notifies Customer of such failure and such failure continues for fifteen (15) days.  Suspension of the SaaS Services shall not release Customer of its payment obligations under this Subscription Agreement.  Tranztec is not liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from Customer’s nonpayment.

6.4 Suspension for Ongoing Harm.  Tranztec reserves the right to suspend delivery of the SaaS Services if Tranztec reasonably concludes that Customer or a user’s use of the SaaS Services is causing immediate and ongoing harm to Tranztec or others.  In the unusual event that Tranztec suspends delivery of the SaaS Services for this reason, Tranztec shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue.  Tranztec shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this Section 6.4.  Nothing in this Section 6.4 will limit Tranztec’s rights under Section 6.5 below.

6.5 Effect of Termination.

• Upon termination of this Subscription Agreement or expiration of the Subscription Term, Tranztec shall immediately cease providing the SaaS Services and all usage rights granted under this Subscription Agreement shall terminate.
• If Tranztec terminates this Subscription Agreement due to a breach by Customer, then Customer shall immediately pay to Tranztec all amounts then due under this Subscription Agreement and to become due during the remaining term of this Subscription Agreement, but for such termination. If Customer terminates this Subscription Agreement due to a breach by Tranztec, then Tranztec shall immediately repay to Customer all pre-paid amounts for any unperformed SaaS Services scheduled to be delivered after the termination date, and if not pre-paid, Tranztec is entitled to payment for all services rendered through the effective date of termination.
• Upon termination of this Subscription Agreement and upon subsequent written request by the disclosing party, the receiving party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the receiving party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the parties.

7. SERVICE LEVEL AGREEMENT

The Service Level Subscription Agreement (“SLA”) for the SaaS Services is set forth in Exhibit B hereto.  The SLA sets forth Customer’s sole remedies for availability or quality of the SaaS Services including any failure to meet any guarantee set forth in the SLA.  

8. LIMITED WARRANTY

8.1 Warranty.  Tranztec represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation.  For any breach of a warranty, Customer’s exclusive remedy shall be as provided in Section 6, Term and Termination.

8.2 TRANZTEC WARRANTS THAT THE SAAS SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION.  TRANZTEC DOES NOT GUARANTEE THAT THE SAAS SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT TRANZTEC WILL CORRECT ALL SAAS SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT TRANZTEC DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, INTERCEPTION, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY TRANZTEC (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS SUBSCRIPTION AGREEMENT. NEITHER TRANZTEC NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL TRANZTEC OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY USER’S DATA, FILES, OR PROGRAMS.

9. LIMITATIONS OF LIABILITY

NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF TRANZTEC) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SUBSCRIPTION AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES ACTUALLY PAID BY CUSTOMER UNDER THIS SUBSCRIPTION AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE.  The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restriction”, “Indemnification”, or “Confidentiality”.

10. INDEMNIFICATION

10.1 Indemnification by Tranztec.  If a third party makes a claim against Customer that the SaaS Services infringe any patent, copyright or trademark, or misappropriate any trade secret, then Tranztec shall defend Customer and its directors, officers and employees against the claim at Tranztec’s expense and Tranztec shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Tranztec, to the extent arising from the claim.  Tranztec shall have no liability for any claim based on (a) the Customer Content, (b) modification of the SaaS Services not authorized by Tranztec, or (c) use of the SaaS Services other than in accordance with the Documentation and this Subscription Agreement.  Tranztec may, at its sole option and expense, in order to mitigate any damages:  (a) procure for Customer the right to continue use of the SaaS Services, (b) modify the SaaS Services in a manner that does not materially impair the functionality, or (c) terminate the Subscription Term and repay to Customer any amount paid by Customer with respect to the Subscription Term following the termination date.

10.2 Indemnification by Customer.  If a third party makes a claim against Tranztec that the Customer Content infringes any patent, copyright or trademark, or misappropriates any trade secret, then Customer shall defend Tranztec and its directors, officers and employees against the claim at Customer’s expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.

10.3 Conditions for Indemnification.  A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information and authority reasonably requested by the other party in the defense and settlement of the claim.

11. CONFIDENTIALITY

11.1 Definition.  “Confidential Information” means any information disclosed by a party to the other party, directly or indirectly, which, (a) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (b) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the receiving party to be “confidential” or “proprietary” within 30 days of such disclosure, (c) is specifically deemed to be confidential by the terms of this Subscription Agreement, or (d) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself.  Confidential Information will also include information disclosed by third parties to a disclosing party under an obligation of confidentiality.  Subject to the display of Customer Content as contemplated by this Subscription Agreement, Customer Content is deemed Confidential Information of Customer.  Tranztec software and Documentation are deemed Confidential Information of Tranztec.

11.2 Confidentiality.  During the term of this Subscription Agreement and for 5 years thereafter (perpetually in the case of software), each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except to exercise its rights and perform its obligations under this Subscription Agreement, and shall not disclose such Confidential Information to any third party.  Without limiting the foregoing, each party shall use at least the same degree of care, but not less than a reasonable degree of care, it uses to prevent the disclosure of its own confidential information to prevent the disclosure of Confidential Information of the other party.  Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of the other party’s Confidential Information.  Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.  Each party may disclose Confidential Information of the other party on a need-to-know basis to its contractors who are subject to confidentiality agreements requiring them to maintain such information in confidence and use it only to facilitate the performance of their services on behalf of the receiving party in compliance with this Subscription Agreement.

11.3 Exceptions.  Confidential Information excludes information that: (a) is known publicly at the time of the disclosure or becomes known publicly after disclosure through no fault of the receiving party, (b) is known to the receiving party, without restriction, at the time of disclosure or becomes known to the receiving party, without restriction, from a source other than the disclosing party not bound by confidentiality obligations to the disclosing party, or (c) is independently developed by the receiving party without use of the Confidential Information as demonstrated by the written records of the receiving party.  The receiving party may disclose Confidential Information of the other party to the extent such disclosure is required by law or order of a court or other governmental authority, provided that the receiving party shall use reasonable efforts to promptly notify the other party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.  Each party may disclose the existence of this Subscription Agreement and the relationship of the parties, but agrees that the specific terms of this Subscription Agreement will be treated as Confidential Information; provided, however, that each party may disclose the terms of this Subscription Agreement to those with a need to know and under a duty of confidentiality such as accountants, lawyers, bankers and investors.

12. GENERAL PROVISIONS

12.1 Non-Exclusive Service.  Customer acknowledges that SaaS Services is provided on a non-exclusive basis.  Nothing shall be deemed to prevent or restrict Tranztec’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.

12.2 Tranztec Personal Data Obligations. In performing the SaaS Services, Tranztec will comply with the Privacy Policy, which is available at http://www.tranztec.com/terms and incorporated herein by reference. The Privacy Policy is subject to change at Tranztec’s discretion; however, Tranztec policy changes will not result in a material reduction in the level of protection provided for Customer data during the period for which fees for the services have been paid. The services policies referenced in this Subscription Agreement specify our respective responsibilities for maintaining the security of Customer data in connection with the SaaS Services. Tranztec reserves the right to provide the SaaS Services from Host locations, and/or through use of subcontractors, worldwide.  Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and retains ownership of all of Customer data.

12.3 Assignment.  Neither party may assign this Subscription Agreement or any right under this Subscription Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this Subscription Agreement to an acquirer of all or substantially all of the business of such party to which this Subscription Agreement relates, whether by merger, asset sale or otherwise.  This Subscription Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns.  Either party may employ subcontractors in performing its duties under this Subscription Agreement, provided, however, that such party shall not be relieved of any obligation under this Subscription Agreement.

12.4 Notices.  Except as otherwise permitted in this Subscription Agreement, notices under this Subscription Agreement shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail; (b) when transmitted if sent by facsimile, provided that a copy of the notice is promptly sent by another means specified in this section; or (c) when delivered if delivered personally or sent by express courier service; or (d) when transmitted by email, unless rejected by the recipient’s server.   All notices shall be sent to the other party at the address or email address set forth on the Order Form; provided, however, either party may send notice to the other party changing its notice addresses.

12.5 Force Majeure.  Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor 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 terrorism or war, epidemics, communication line failures, and power failures.

12.6 Waiver.  No waiver shall be effective unless it is in writing and signed by the waiving party.  The waiver by either party of any breach of this Subscription Agreement shall not constitute a waiver of any other or subsequent breach.

12.7 Severability.  If any term of this Subscription Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Subscription Agreement shall remain in full force.

12.8 Entire Subscription Agreement.  This Subscription Agreement (including all Order Forms and exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Subscription Agreement.  This Subscription Agreement may be amended solely in a writing signed by both parties.  Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.

12.9 Survival.  Sections 3, 6, and 9 through 12 of this Subscription Agreement shall survive the expiration or termination of this Subscription Agreement for any reason.

12.10 Publicity.  Tranztec may include Customer’s name and logo in its customer lists and on its website.  Upon signing, Tranztec may issue a high-level press release announcing the relationship and the manner in which Customer will use the Tranztec solution.  Tranztec shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary.

12.11 Export Regulations.  Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the SaaS Services.  Customer agrees that such export control laws govern its use of the SaaS Services (including technical data) and any services deliverables provided under this Subscription Agreement, and Customer agrees to comply with all such export laws and regulations. Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.

12.12 No Third Party Beneficiaries.  This Subscription Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.

12.13 Independent Contractor. The parties have the status of independent contractors, and nothing in this Subscription Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship.  Except as provided in this Subscription Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.

12.14 Statistical Information.   Tranztec may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS service, provided that such information does not identify Customer’s data or include Customer’s name.

12.15 Governing Law; Exclusive Jurisdiction.  This Subscription Agreement shall be governed by the laws of the State of Ohio, excluding its conflict of law principles.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply.   The parties agree to the exclusive jurisdiction of the federal and state courts of the State of Ohio for all matters relating to this Subscription Agreement.

12.16 Compliance with Laws.  Tranztec shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data

12.17 Dispute Resolution.  Customer’s satisfaction is an important objective to Tranztec in performing its obligations under this Subscription Agreement.  Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this Subscription Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies.  If, within 15 days after such meeting, the parties have not succeeded in resolving the dispute, either party may protect its interests by any lawful means available to it.

EXHIBIT A

Support and Maintenance Services

1. Support and Maintenance Services

Support and Maintenance Services are included in the SaaS Service subscription in Exhibit A and entitles Customer to the following:

• Telephone or electronic support in order to help Customer locate and correct problems with the Software.
• Bug fixes and code corrections to correct Software malfunctions in order to bring such Software into substantial conformity with the operating specifications.
• All extensions, enhancements and other changes that Tranztec, at its sole discretion, makes or adds to the Software and which Tranztec furnishes, without charge, to all other Subscribers of the SaaS Service.
• Up to five (5) dedicated contacts designated by Customer in writing that will have access to support services.

2. Response and Resolution Goals

• “business hours” 8am-5pm EST, Monday thru Friday, except holidays.
• “Fix” means the repair or replacement of Software component to remedy Problem.
• “Problem” means a defect in Software as defined in Tranztec’s standard Software specification that significantly degrades such Software.
• “Respond” means acknowledgement of Problem received containing assigned support engineer name, date and time assigned, and severity assignment.
• “Workaround” means a change in the procedures followed or data supplied by Customer to avoid a Problem without

substantially impairing Customer’s use of the Software.

3. Accessing Support

Customer Support offers several ways to resolve any technical difficulties.  In addition to online help in the Software, which can be accessed by clicking the “Help” tab when logged into the Software, function-specific help information can also be accessed throughout the Software using the ‘?’ option.

The online support center (www.viaboards.com) is available 24×7 for self-service technical assistance including:

• Downloading software updates and patches
• Logging tickets and viewing status of previously submitted tickets
• Viewing updates to supported platforms and hardware
• Accessing product documentation, technical articles, and FAQs

The support email address is [email protected] or other customer specific support e-mail as may be provided. The support phone number is 419-931-0070 or 1-888-854-0099.

EXHIBIT B

SERVICE LEVEL AGREEMENT

The VIA® Platform will achieve System Availability (as defined below) of at least 99.5% during each calendar year of the Subscription Term.  All other SaaS Services will achieve System Availability (as defined below) of at least 99% during each calendar year of the Subscription Term.  “System Availability” means the number of minutes in a year that the key components of the SaaS Services are operational as a percentage of the total number of minutes in such year, excluding downtime resulting from (a) scheduled maintenance, (b) events of Force Majeure in the Subscription Agreement),

(c) malicious attacks on the system, (d) issues associated with the Customer’s computing devices, local area networks or internet service provider connections, or (e) inability to deliver services because of acts or omissions of Customer or any user.  Tranztec reserves the right to take the Service offline for scheduled maintenance for which Customer has been provided reasonable notice and Tranztec reserves the right to change its maintenance window upon prior notice to Customer.

If Tranztec fails to meet System Availability in the year, upon written request by Customer within 30 days after the end of the year, Tranztec will issue a credit in Customer’s next invoice in an amount equal to 1% of the yearly fee for the affected SaaS Services for each 1% loss of System Availability below stated SLA per SaaS Service, up to a maximum of the Customer’s fee for the affected SaaS Services.  If the yearly fee has been paid in advance, then at Customer’s election Tranztec shall provide a credit to Customer to be used for term extension.  The remedy stated in this paragraph is Customer’s sole and exclusive remedy for interruption of SaaS Services and Tranztec’s failure to meet System Availability.