Services Agreement

PLEASE READ THIS MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT BEFORE PURCHASING OR USING THE SERVICES. BY USING OR PURCHASING THE PRODUCTS OR SERVICES, CUSTOMER SIGNIFIES ITS ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN IT MUST NOT PURCHASE OR USE THE PRODUCTS OR SERVICES.

This Master Software License and Services Agreement, including all exhibits ('Agreement'), is between Pentaho Corporation ('Pentaho') and the purchaser or user of Pentaho product and/or services that accepts the terms of this Agreement ('Customer'). The effective date of this Agreement ('Effective Date') is the earlier of the date that Customer signs or accepts this Agreement by entering into an Order Form or the date that Customer uses Pentaho services.

1. LICENSE.

   1.1 License Grant. Subject to the terms and conditions of this Agreement, Pentaho agrees to grant, and does hereby grant to Customer, during the time Customer has a valid Subscription in place for the Software Products, a limited, non-exclusive, non-transferable right and license, solely to the object code version of the Software Products and without the right to grant or authorize sublicenses or to further distribute the Software Products, to install the Software Products on the number of CPUs specified in the Order Form and to use the Software solely for Customer’s internal business operations. Customer may make up to two copies of the Software Products for backup and/or archival purposes.
   
   1.2 License Restrictions. Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party:
   
   1.2.1 sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any Software Products or the Documenta¬tion to a third party; or
   
   1.2.2 decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Software Products, in whole or in part, nor will Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Software Products or encourage others to do so, except to the limited extent, if any, that applicable law permits such acts notwithstanding any contractual prohibitions, provided, however, before Customer exercises any rights that Customer believes to be entitled to based on mandatory law, Customer shall provide Pentaho with thirty (30) days prior written notice and provide all reasonably requested information to allow Pentaho to assess Customer’s claim and, at Pentaho’s sole discretion, to provide alternatives that reduce any adverse impact on Pentaho’s intellectual property or other rights; or
   
   1.2.3 allow access or permit use of the Software Products by any users other than Customer’s employees, or authorized third-party contractors who are providing services to Customer and agree in writing to abide by the terms of this Agreement, provided further that Customer shall be liable for any failure by such employees and third-party contractors to comply with the terms of this Agreement; or
   
   1.2.4 create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Software Products, any additional licensing terms provided by Pentaho via product documentation, notification, and/or policy change posted at, and the terms of this Agreement; or
   
   1.2.5 modify or create derivative works based upon the Software Products; or
   
   1.2.6 use the Software Products in connection with any business operation for which Customer provides services to third parties; or
   
   1.2.7 disclose the results of any benchmark test of the Software Products to any third party without Pentaho’s prior written approval, unless otherwise expressly permitted herein, provided, however, that the foregoing restriction shall apply to Customer only if Customer is a software or hardware vendor, or Customer is performing testing or benchmarking on the Software Products at the direction of, or on behalf of, a software or hardware vendor.
   
   1.3 Audit Rights. Customer will maintain accurate records as to its use of the Software Products as authorized by this Agreement, for at least two (2) years from the last day on which Support Services expired for the applicable Software Products. Pentaho, or persons designated by Pentaho, will, at any time during the period when Customer is obliged to maintain such records, be entitled to audit such records and to ascertain completeness and accuracy, in order to verify that the Software Products are used by Customer in accordance with the terms of this Agreement and that Customer has paid the applicable license fees and Support Services fees for the Software Products, provided that: (a) Pentaho may conduct no more than one (1) audit in any twelve (12) month period; (b) any such audit shall be subject to a mutually agreed upon non-disclosure agreement negotiated in good faith and entered into by the parties (including any third party agent Pentaho may use in connection with such audit); (c) the audit will be conducted during normal business hours; and (d) Pentaho shall use commercially reasonable efforts to minimize the disruption of Customer’s normal business activities in connection with any such audit. Pentaho, or persons designated by Pentaho, shall not have physical access to Customer’s computing devices in connection with any such audit, without Customer’s prior written consent. Customer shall promptly pay to Pentaho any underpayments revealed by any such audit. Any such audit will be performed at Pentaho’s expense, provided, however, that Customer shall promptly reimburse Pentaho for the cost of such audit and any applicable fees if such audit reveals an underpayment by Customer of more than five percent (5%) of the license amounts payable by Customer to Pentaho for the period audited.
   
   1.4 Open Source Software. The Open Source Software is licensed to Customer under the terms of the applicable open source license conditions and/or copyright notices that can be found in the open_source_licenses file, the documentation or other materials accompanying the Software Products. Copyrights to the Open Source Software are held by copyright holders indicated in the copyright notices in the corresponding source files or in the open_source_licenses file or other materials accompanying the Software Products.

2. SUPPORT SERVICES.

   During the time that Customer has paid the applicable annual fees for Support Services, Pentaho will provide Customer with the Support Services for the Software Products and for the Open Source Software made available through the Pentaho Support Portal as listed on an Order Form. Services are provided to Customer solely for Customer’s internal use, and Customer may not use the Software Products or Support Services to supply any consulting, support or training services to any third party.

3. SERVICES

   3.1 Services. Pentaho will provide Customer with the Services specified in an applicable Order Form. Services are provided to Customer solely for Customer’s internal use, and Customer may not use the Services to supply any consulting, support or training services to any third party. In the event that in the future Customer desires to obtain from Pentaho additional Services, the parties may execute one or more additional Order Forms, setting forth the additional Services to be provided by Pentaho to Customer, along with the applicable additional fees to be paid by Customer to Pentaho.
   
   3.2 Customer Obligations.
   
   3.2.1 Cooperation. Customer agrees to provide Pentaho with such cooperation, materials, information, access and support which Pentaho deems to be reasonably required to allow Pentaho to successfully provide the Services, including, without limitation, as may be set forth in an applicable Order Form. Customer understands and agrees that Pentaho’s obligations hereunder are expressly conditioned upon Customer providing such cooperation, materials, information, access and support.
   
   3.2.2 Third Party Products. Customer acknowledges that in order for Pentaho to provide the Services, Customer may be required to license and install certain third party software and provide certain third party hardware that are not provided or licensed by Pentaho (“Third Party Products”). Pentaho may provide Customer with links and instructions for obtaining Third Party Products, but it is Customer’s responsibility to properly license and install any required Third Party Products from the relevant third party providers. Pentaho will have no liability with respect to any Third Party Products. In the event of a failure by Customer to timely provide Third Party Products as required, Pentaho may treat the applicable Order Form as having been cancelled by Customer.
   
   3.2.3 Customer Policies. While on premises owned, controlled or hired by Customer, all Pentaho personnel will conduct themselves in accordance with the standard health, safety and security policies of Customer applicable to its staff generally that have been provided to Pentaho in writing.

4. OWNERSHIP.

   4.1 Software Products. The Software Products are, and shall remain the sole property of Pentaho and its licensors, and, except as expressly provided herein, Pentaho and its licensors retain all right, title and interest in and to the Software Products, including all intellectual property rights therein and thereto. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to the Services or any Pentaho materials other than the rights of use specifically granted in this Agreement.
   
   4.2 Work Product and Other Materials.
   
   4.2.1 Work Product. Customer acknowledges that in the course of performing any Services, Pentaho may create software or other works of authorship (collectively “Work Product”). Subject to Customer’s rights in the Customer Confidential Information, Pentaho shall own all right title and interest in such Work Product, including all intellectual property rights therein and thereto. If any Work Product is delivered to Customer pursuant to or in connection with the performance of Consulting Services (a “Deliverable”), Pentaho hereby grants to Customer a license to such Deliverable under the same terms and conditions Customer’s license to Software Product set forth in Section 1.1 above.
   
   4.2.2 Other Materials. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to any materials provided by Pentaho to Customer in connection with the provision to Customer of Support Services or Training Services (“Materials”), other than the rights of use specifically granted in this Agreement. Customer will be entitled to keep and use all Materials provided by Pentaho to Customer, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to Pentaho. In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archival purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. The use of any Materials made available by Pentaho as part of the Training Services will be limited to use by the specific persons to whom the applicable Training Services are provided. All Pentaho trademarks, trade names, logos and notices present on the Materials will be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any Pentaho trademarks without Pentaho’s express written authorization. The use of the Pentaho Trademarks are governed by the Pentaho Trademark Standards for Use at www.pentaho.com/endusertrademarks. Any use by Customer of Pentaho trademarks will inure to the benefit of Pentaho.

5. PAYMENT.

   Customer agrees to pay Pentaho the fees stated on the Order Form. Customer will pay Pentaho all sales, use, and excise taxes levied upon the delivery or use of the taxable Software Products and Support Services described in this Agreement; unless Customer provides Pentaho a valid state sales/use/excise tax exemption certificate or Direct Pay Permit. Customer will pay all import or export, value added or other tax or duty, and all government permit, withholding or license fees, and custom or similar fees, levied upon the delivery or use of Software Products and Support Services described in this Agreement. If Customer is required to pay any withholding tax, charge or levy in respect of any payments due to Pentaho hereunder, Customer agrees to gross up payments actually made such that Pentaho shall receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy. All Pentaho supplied Software Products and Services will only be delivered to Customer electronically through the Internet. Unless otherwise specified on an Order Form, all invoices will be paid within thirty (30) days from the date of the invoice. Fees for Services are non-refundable upon payment. Payments will be made without right of set-off or chargeback. If Customer does not pay the invoices when due, Pentaho may charge interest at one percent (1%) per month on the unpaid balance. If payment of any fee is overdue, Pentaho may also suspend provision of the Support Services until such delinquency is corrected.

6. LIMITED WARRANTY AND LIMITATION OF LIABILITY.

   6.1 Software Products. Pentaho warrants to Customer only that, for a period of thirty (30) days following the date the Software Products are initially licensed by Customer, the Software Products will substantially conform to the description contained in the applicable Documentation (“Warranty Period”). If during the Warranty Period the Software Products do not substantially conform to the description contained in the applicable Documentation, Pentaho shall, at its option, correct the defects in the Software Products.
   
   6.2 Services. The Services shall be deemed to be accepted by Customer upon delivery. Pentaho warrants that the Services to be performed hereunder will be done in a workmanlike manner and shall conform to standards of the industry. If the Services are not performed as set forth above, Pentaho will re-perform the applicable Services.
   
   6.3 The remedies in Section 6.1 and 6.2 are Customer’s sole and exclusive remedies for breach of warranty and Pentaho’s sole and exclusive liability for breach of warranty.
   
   6.4 The warranties in Sections 6.1 and 6.2 are made to and for the benefit of Customer only. The warranties will apply only if:
   
   6.4.1 the Software Products have been properly installed and used at all times and in accor¬dance with the instruc¬tions in the applicable Documentation;
   
   6.4.2 no modification, alteration or addition has been made to the Software Products by persons other than Pentaho or Pentaho’s authorized representative; and
   
   6.4.3 Pentaho receives written notification of the breach, in the case of the warranty in Section 6.1, within thirty (30) days following the date the Software Products were initially licensed by Customer, and in the case of the warranty in Section 6.2, within three (3) days following the performance of the relevant Services or Support Service.
   
   6.5 Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1 AND 6.2 ABOVE, THE SOFTWARE PRODUCT AND SERVICES ARE PROVIDED “AS IS” AND PENTAHO AND ITS LICENSORS MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SERVICES, DELIVERABLES, WORK PRODUCT, SOFTWARE PRODUCTS, THE DOCU¬MEN¬TATION OR ANY MATE¬RIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. PENTAHO AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES, DELIVERABLES, WORK PRODUCT, SOFTWARE PRODUCTS, THE DOCU¬MEN¬TATION OR ANY MATE¬RIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED OR THAT THEY WILL BE FREE FROM DEFECTS OR THAT THE SOFTWARE PRODUCTS ARE DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. PENTAHO AND ITS LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FIT¬NESS FOR A PARTICULAR PURPOSE AND NONINFRINGMENT WITH RESPECT TO THE SERVICES, DELIVERABLES, WORK PRODUCT, SOFTWARE PRODUCTS, THE DOCU¬MEN¬TATION OR ANY MATE¬RIALS FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT.
   
   6.6 Limitation of Liability.
   
   6.6.1 WITHOUT LIMITING THE CONFIDENTIALITY OBLIGATIONS OF SECTION 8.14, PENTAHO’S AND ITS LICENSORS’ TOTAL LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY PENTAHO’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED US $1,000,000, FOR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; AND (ii) THE PRICE PAID BY CUSTOMER TO PENTAHO FOR THE SPECIFIC SUPPORT SERVICE (CALCULATED ON AN ANNUAL BASIS, WHEN APPLICABLE), SOFTWARE PRODUCTS OR SERVICES FROM WHICH SUCH CLAIM ARISES, FOR DAMAGE OF ANY TYPE NOT IDENTIFIED IN (i) ABOVE OR OTHERWISE EXCLUDED HEREUNDER.
   
   6.6.2 EXCEPT FOR BREACHES OF SECTION 8.14 (CONFIDENTIALITY), PENTAHO’S (INCLUDING PENTAHO’S LICENSORS) SHALL NOT HAVE LIABILITY TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
   
   6.6.3 NEITHER PARTY SHALL BRING ANY CLAIM BASED ON THE SOFTWARE PRODUCTS NOR THE SERVICE PROVIDED HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
   
   6.6.4 The provisions of this Section 6.6 allocate risks under this Agreement between Customer and Pentaho. Pentaho’s fees for the Software Products and Support Services reflect this allocation of risks and limitation of liability.

7. INDEMNIFICATION.

   7.1 Indemnity by Pentaho.
   
   7.1.1 Indemnity. Subject to the remainder of Section 7.1, Pentaho shall defend Customer against any third party claim that the Software Products infringe such third party’s U.S. patent or copyright (“Infringement Claim”), and indemnify Customer from the resulting costs and damages awarded against Customer to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed to in settlement ; provided that Customer (i) notifies Pentaho promptly in writing of such Infringement Claim, (ii) grants Pentaho sole control over the defense and settlement thereof, and (iii) reasonably cooperates in response to a Pentaho request for assistance. Pentaho will have the exclusive right to defend any such Infringement Claim and make settlements thereof at its own discretion, and Customer may not settle or compromise such Infringement Claim, except with prior written consent of Pentaho.
   
   7.1.2 Options. Should any Software Products become, or in Pentaho’s opinion be likely to become, the subject of such an Infringement Claim, Pentaho shall, at its option and expense, (a) procure for Customer the right to make continued use thereof, (b) replace or modify such so that it becomes non-infringing, or (c) request return of the Software Products and, upon receipt thereof, the corresponding licenses are terminated and Pentaho shall refund the price paid by Customer, less straight-line depreciation based on a three (3) year useful life.
   
   7.1.3 Exclusions. Pentaho shall have no liability if the alleged infringement is based on (1) combination with non-Pentaho products, provided, however, that Third Party Products delivered by Pentaho with the Software Products and unmodified by Customer shall not be deemed to be non-Pentaho Products, for purposes of the foregoing exclusion, (2) use for a purpose or in a manner for which the Software Products were not designed, (3) use of any older version of the Software Products when use of a newer Pentaho revision would have avoided the infringement, (4) any modification of the Software Product, or (5) any intellectual property right owned or licensed by Customer, excluding the Software Products.
   
   7.1.4 Limitation. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND PENTAHO’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.

8. TERM AND TERMINATION.

   Unless otherwise stated in the applicable Order Form, the initial term of this Agreement shall commence on the date Pentaho executes the applicable Order Form, and shall continue for a period of one (1) year. Thereafter, the term of this Agreement shall automatically renew for additional one (1) year periods unless either party gives written notice to the other of its intention not to renew the Agreement at least thirty (30) days prior to the expiration of the then-current term. The initial term of this Agreement, plus any subsequent renewal term shall be the “Term” of this Agreement. If the Term of the Agreement expires without written notice, the Agreement will automatically terminate only if the Customer has no current Services remaining on their Order Form. Each party may terminate this Agreement upon giving notice in writing to the other party if the non-terminating party commits a material breach of this Agreement and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so. Upon the expiration or termination of this Agreement, (i) Customer will immediately return to Pentaho all Confidential Information in its possession, custody or control in whichever form held (including all copies or embodiments of the Confidential Information) and will cease using any trademarks, service marks and other designations of Pentaho, (ii) all licenses granted hereunder shall terminate, (iii) Customer shall have no further rights to receive Support Services; and (iv) Sections 3, 4, 5, 6, 7, 8, 9 and 10 will survive.

9. MISCELLANEOUS.

   9.1 No Assignment. This Agreement and any rights or obligations of Customer under it may not be assigned, subcontracted or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Pentaho, and any attempt to assign this Agreement by Customer without such consent shall be null and void and of no force and effect. For purposes of this paragraph: (a) the acquisition by any person, entity or group directly or indirectly, of beneficial ownership of more than fifty (50%) of the total voting power of the capital stock or other securities of the Customer; or (b) any merger, consolidation, change of control or similar transaction by the Customer with or into any person or entity (even if the Customer is the surviving entity) other than in a transaction in which the holders of a majority of the outstanding voting stock prior to such transaction continue to hold majority of the outstanding voting stock of the surviving or continuing entity following such transaction, shall each constitute an assignment for which the prior written consent of Pentaho is required. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
   
   9.2 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writ¬ing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth below. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be consi¬dered to have been given at the time of actual delivery in person, five (5) business days after deposit in the mail as set forth above, or two (2) days after delivery to an overnight air courier service. Notices shall be sent to:
   
   If to Pentaho:
   Pentaho Corporation
   5950 Hazeltine National Drive, Suite 340, Orlando, FL 32822
   Attn:
   Fax: 1 407 358-5020
   With a copy sent to the same location to the attention of General Counsel.
   
   If to Customer:
   To the address as set forth in the applicable Order Form
   Attn: Contracts Manager
   
   9.3 No Warranties. No employee, agent, representative or affiliate of Pentaho has authority to bind Pentaho to any oral representa¬tions or warranty concerning the Software Products. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
   
   9.4 Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occur¬rences, or causes beyond the control and without negligence of the parties. Such events, occur¬ren¬¬ces, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.
   
   9.5 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action.
   
   9.6 Severability. If any provision in this Agreement (including, without limitation, the prohibition on de-compiling or reverse engineering) is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent possible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
   
   9.7 Integration. This Agreement (including the Appendices) con¬tain the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written. Without limiting the foregoing, this Agreement will supersede any conflicting terms in any “click-to-accept” end user license agreement that may be embedded within the Software Products, except for terms regarding Open Source Software which are incorporated herein by reference under Section 1.5 (“Open Source Software”). This Agreement may not be amended, except by a writing signed by both parties.
   
   9.8 Order Forms. No terms, provisions or conditions of any Order Form, acknowledgement or other busi¬ness form that Customer may use in connection with the acquisition or licensing of the Software Products will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any fail¬ure of Pentaho to object to such terms, provisions or conditions. Any such additional or conflicting terms and conditions on any Customer Order Form, acknowledgement or other business form are hereby rejected by Pentaho.
   
   9.9 Government Regulations. Customer may not export or re-export the Software Products except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The Software Products and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software Products and Documentation by the U.S. Government shall be governed solely by the terms of this Agreement.
   
   9.10 Currency. All license and Support Services fees shall be remitted in the currency specified in the applicable invoice.
   
   9.11 Language. This Agreement is in the English language only, which shall be controlling in all respects. Any versions of this Agreement in any other language shall be for accommodation only and shall not be binding upon either party. All communications, notices, and documentation to be furnished hereunder shall be in the English language only.
   
   9.12 Independent Contractors. The relationship of Pentaho and Customer established by this Agreement is that of independent contractors. Nothing contained herein shall constitute either party the agent of the other party, or otherwise grant either party the authority to bind the other party to any obligation, or constitute the parties as partners or joint venturers and neither party shall hold itself out as being an agent having such authority. Customer shall make no representations or warranties on behalf of Pentaho with respect to the Software Products.
   
   9.13 Publicity. Customer agrees that Pentaho may reference Customer as a customer of Pentaho, subject to Customer’s trademark and logo usage guidelines provided by Customer.
   
   9.14 Confidential Information. The receiving party shall not: (i) disclose any Confidential Information to any third party, except as otherwise expressly permitted herein; (ii) make any use of Confidential Information except: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship; or (iii) make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The receiving party shall be held to the same standard of care as it applies to its own information and materials of a similar nature, and no less than reasonable care. The receiving party may disclose the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, but only if the receiving party provides prompt written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. The receiving party shall protect Confidential Information in the manner provided herein for five (5) years after receipt thereof, unless such obligation ceases earlier pursuant to this Section. Notwithstanding anything to the contrary herein, neither party shall disclose the terms and conditions of this Agreement to any third party, without the prior written consent of the other party. Notwithstanding the foregoing each party may disclose the terms and conditions of this Agreement without the prior written consent of the other party: (a) as required by any court or other governmental body; (b) as otherwise required by law; (c) to legal counsel of the parties; (d) in confidence, to accountants, banks, and financing sources and their advisors; (e) in connection with the enforcement of this Agreement or rights under this Agreement; or (f) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.
   
   9.15 Counterparts. This Agreement may be executed in counter¬parts, each of which so executed will be deemed to be an original and such counter-parts together will constitute one and the same agree¬ment. Neither party is bound until both parties have signed the agreement and have delivered a signed copy of the agreement to the other party. This Agreement may be executed and delivered by facsimile and the parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each party may use such facsimile signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used.
   
   9.16 Governing Law. This Agreement will governed by the laws of the State of New York and the United States of America, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in New York, New York for resolution of any disputes arising out of this Agreement. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act (UCITA) will apply in any respect to this Agreement.
   
   9.17 Headings. The headings in this Agreement are for purposes of reference only and will not in any way limit or affect the meaning or interpretation of any of the terms hereof.
   
   9.18 Complete Agreement. This Agreement (including any amendments hereto) and Order Forms placed hereunder contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties on the subject matter hereof. Except for an Order Form which is executed by the parties, or as otherwise provided herein, this Agreement shall supersede any conflicting or additional terms and conditions of any Order Form, acknowledgement or confirmation or other document issued by the Customer and supersedes conflicting terms and conditions in any “click-to-accept” end user license agreement that may be embedded within or accompany the Software Products. The headings in this Agreement are for reference purposes only, and shall not affect the meaning or construction of the terms and conditions of this Agreement. This Agreement shall not be amended, except by a writing signed by authorized representatives of both parties.
   
   9.19 Non-Solicitation. During the term of this Agreement and for a period of one (1) year thereafter, Customer will not, directly or indirectly, either alone or in association with others, (a) solicit, or permit any of its Affiliates to solicit, any employee of Pentaho to leave the employ of Pentaho, or (b) solicit for employment, hire, or engage as an independent contractor, or permit any of its Affiliates to solicit for employment, hire, or engage as an independent contractor, any person who was employed by Pentaho; provided, that this clause (b) will not apply to any individual whose employment with the other party or any of its Affiliates has been terminated for a period of one (1) year or longer.

10. DEFINITIONS.

    “Affiliate” means an entity that a party, directly or indirectly, controls, an entity that controls a party or an entity that is under common control with a party. For purposes of this provision, control means ownership of at least fifty percent (50%) of the outstanding voting shares of the entity.
    
    “Confidential Information” means information or materials provided by one party to the other which are in tangible form and labeled “confidential” or the like, or, if disclosed orally, are identified as being confidential at the time of disclosure and, within two (2) weeks thereafter, are summarized, appropriately labeled and provided in tangible form. The following information shall be considered Confidential Information whether or not marked or identified as such: information regarding Pentaho pricing, product roadmaps and strategic marketing plans. Confidential Information excludes information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving party; (ii) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing party; (iv) was independently developed by the receiving party without any use of Confidential Information of the disclosing party; or (v) becomes known to the receiving party, without restriction, from a source other than the disclosing party.
    
    “Consulting Services” means the consulting services, if any, set forth on an applicable Order Form and on an applicable Statement of Work.
    
    “Consultative Support” if applicable is as described in the attached Exhibit(s) and applicable Order Form.
    
    “Core” means an individual processor and associated cache memory that is capable of executing a single Software Product code thread at a time. Subscriptions include the support of Software Products running on a specific number of Core(s).
    
    “CPU” means a central processing unit or other integrated circuit that executes the instructions provided by the Software Product through one or more processor cores. The term CPU includes reduced instruction processors, embedded processors, or dedicated coprocessors.
    
    “Documentation” means any end user manuals or documentation related to the Software Products that Pentaho delivers to Customer or is made available on Pentaho’s website.
    
    “Error” means a failure of a Software Product to conform in all material respects with the applicable Documentation.
    
    “Maintenance Fix” means a later version of the Software Product, designated by Pentaho by means of a change in the digit to the right of the Version number (e.g. x.x.1, x.x.2.“Named Contacts” mean means an employee of Customer who is proficient on the Software Products.
    
    “Order Form” is the document executed by Pentaho and Customer defining the Software Products, Open Source Software and Support Services.
    
    “Open Source Software” means various open source software components licensed under the terms of applicable open source license agreements included in the materials relating to such software. Open Source Software is composed of individual software components, each of which has its own copyright and its own applicable license conditions.
    
    “Release” means a change in the first digit of the Software Product version (e.g. 2.x, 3.x, 4.x).
    
    “Remote Assistance” refers to services provided to Pentaho subscription customers that specifically address customer systems, data and/or applications. These service sessions are usually fulfilled over the phone and through interactive web discussions, have a pre-defined outcome and a fixed scope.
    
    “Services” means collectively, Consulting Services, Training Services and Support Services.
    
    “Software Products” means the Pentaho Software Products listed in the Order Form and Open Source Software.
    
    “Subscription Services” mean the subscription services for the Software Products described in this Agreement and on an Order Form.
    
    “Pentaho Support Portal” means the portion of the Pentaho website through which Pentaho offers Support Services.
    
    “Subscription” means a license for the Software Products and Support Services.
    
    “Support Services” means the Support Services described in Appendix A.
    
    “Term” shall have the meaning set forth in Section 8.
    
    “Training Services” means the training services, if any, set forth on an applicable Order From.
    
    “Update” means a Release, Version, or Maintenance Fix of the Software Product.
    
    “Version” means generally commercially released code corrections, patches, and minor version releases of the same Software Product as designated by a change in the number to the right of the decimal in the version number (e.g. x.4, x.5, x.6).

EXHIBIT A

SUPPORT SERVICES ADDENDUM

Support Services.

This Exhibit describes Support Services offered by Pentaho. Pentaho will provide only those Support Services purchased by Customer for any other purpose. The Support Services are intended only for the internal use of Customer (including through its contractors and agents) and for the benefit of the Customer and may not be used in support of any third-party.

Table 1: Support Services Benefit Summary

Production Support

Pentaho offers Production Support to Customer's Named Support Contact(s) to fix Errors in the Software Products. The target response time listed above is the time in which Pentaho will attempt to respond to a Customer service request delivered by a Customer's Named Contact to Pentaho, but does not mean the time by which an Error is fixed or the assistance is completed. This initial response may include questions seeking to clarify the problem or gather information on why the problem occurred and Pentaho may be unable to start resolving the problem without the additional requested information.

Support Services Prerequisites

Customer agrees to appoint a specific individual for each Named Support Contact and will notify Pentaho in the event of any change. Named Support Contacts will be enabled to use the Pentaho support portal through a specific login which may not be shared with other individuals in the Customer's organization. Named Support Contacts may not automatically forward requests from other individuals who are not also Named Support Contacts. Each contact must have full administrative access to all files, file systems and databases required for troubleshooting and proper operation of the Software Product(s). Named Support Contacts must communicate with Pentaho in English.

Customer will cooperate with and provide assistance to Pentaho as Pentaho may reasonably request in order to assist Pentaho in the performance of Support Services, including, without limitation, providing all necessary assistance and information (according to the formats and templates specified by Pentaho) to Pentaho' support personnel reasonably required to enable such personnel to determine if a problem is related to an Error or is due to some other issue.

Customer will use its best efforts to provide Pentaho functioning test code which reproduces and isolates the Error. The test code will have extraneous comments and code removed and to the extent possible, will be fully self-contained and automated, and will demonstrate the precise Error reported rather than other possible problems. The test code must be reproducible on Pentaho's test systems. If Customer finds it necessary or expedient to include third party code or libraries in the test code submitted to Pentaho, Customer is responsible for obtaining permission from the applicable third party for such submission. Pentaho undertakes no support obligations whatsoever with respect to any products other than the Software Product. If Customer cannot provide test code which reproduces the problem, Pentaho may be unable to resolve the Error, but will be available to work with Customer to assist in the development of a test case. Customer will use its best efforts to provide Pentaho with access (via remote telecommunications and, if applicable, on-site access at Customer's premises) to the extent reasonably necessary to allow Pentaho to provide the Support Services. If Customer cannot provide remote access, Pentaho may be unable to fix the Error.

In the event that an Error is discovered in the Software Products, Customer may notify Pentaho via email, phone or support portal of the Error, providing the standard problem description information as defined by Pentaho's support group. Response delivery is as set forth below. Customer must provide Pentaho with a continually-available engineer who will promptly assist the support and development organizations with data gathering, testing, and applying all fixes to the applicable environment for Severity Level 1 (Critical) or Severity Level 2 (Serious) Errors. If Pentaho cannot duplicate the Error in-house, then Pentaho may request, and Customer will promptly provide, reasonable access to the computing environment in which the Error occurs.

Table 2: Production Support Plans

*All Target Response Times are based on Customer's Local Time, Monday through Friday, 9:00 am to 5:00 pm, excluding Pentaho holidays

For Customers on Production Support Plan A, the following service levels apply:

Table 2a: 24 x 7 x 365 Target Response Times

Table 2b: Severity Definitions

Support Services Escalation

Customer may escalate a Support Services issue if Pentaho does not respond to any of Customer's support request(s) in a manner required under this Agreement or if Customer is concerned with the progress or resolution of a reported Support Services issue. In the event that Customer needs to escalate a Support Services issue, the Customer should contact the Pentaho Director of Support Services directly at 407-812-OPEN (6736), email Pentaho Support Services at escalation@pentaho.com or contact Pentaho via our toll-free hotline. Pentaho representatives are available 9:00 AM - 5:00 PM Monday through Friday excluding Pentaho holidays.

Exclusions

Pentaho will not be responsible to provide any Support Services arising out of any of the following events and in no event will Pentaho be liable for any failure to meet the Target Services Level set forth in Table 2 for any issues arising out of the following events:

Support Services that becomes necessary due to:

• A failure of hardware, equipment or programs not covered by this Agreement;
• Use of software not obtained from Pentaho under this Agreement;
• Pentaho only provides support for Software Product versions obtained via the Pentaho Customer Support Portal.
• Use in a production environment of any release of the Software Products not marked as 'Generally Available';
• Any cause or causes beyond the reasonable control of Pentaho (e.g. floods, fires, loss of electricity or other utilities), errors arising from anything other than Software, such as databases, web-servers or hardware;
• Customer's failure to comply with operating instructions contained in the Documentation;
• Any modification, enhancement or customization of the Software Products by anyone other than Pentaho;
• Installation, configuration, management and operation of the Customer's applications; or APIs, interfaces, web services or data formats other than those included with the Software Product;
• Any third-party products except to that the extent that they are provided by Pentaho, and then only in support of the specific interface or functionality that is intended by Pentaho

Pentaho will have no obligation to provide Support Services if Customer has not paid all applicable Support Services fees and other amounts payable pursuant to this Agreement, or is otherwise not in compliance with the terms of this Agreement.

Miscellaneous

• During the term of this Agreement, Pentaho will: (i) provide Customer with Updates for the Software Product and, (ii) provide Support for the current Updates, and the prior Release of the Software Product.
• Customer’s Named Contacts will be notified of Updates through official release notification e-mails.
• Pentaho supports the current release and one (1) prior Release.
• Pentaho reserves the right, at any time, to withdraw the availability of Support for a Software Product with twelve (12) months prior written notice.

EXHIBIT B

Consulting Services

1. Notice of Issues. If Pentaho has responsibility for particular deliverables, Company will notify Pentaho in writing within five (5) business days from receipt of the deliverable if the deliverable is not acceptable. This notice will explain in detail the reason for the deliverable failing to meet the applicable specification. Acceptance of the deliverable will not be unreasonably withheld. Each deliverable will be deemed accepted five (5) business days after delivery if no notice is given or when Customer uses the deliverable.

EXHIBIT C

Training Services

The following terms are applicable to any Training Services that Customer purchases:

1. "Training Services" means Pentaho's training courses purchased under this Agreement, including Pentaho's publicly available courses (classroom or web-based) ('Public Courses') and courses provided at a site designated by Customer ('On-site Courses').
2. Expenses. Unless otherwise specified in the Order Form, instructor travel and expenses are not included in the Fees for On-site Courses and will be paid by Customer.
3. Equipment and Facilities. For Public Courses, Pentaho agrees to provide appropriate training facilities and hardware, and Customer will be liable for any loss or destruction of equipment caused by Customer personnel. For On-site Courses, Customer will supply facility and equipment for on-site training with one workstation per student and instructor and one workstation for testing.
4. Customer Responsibilities. Customer is responsible for assessing the participants' suitability for the Training Services and enrollment in the appropriate courses. Customer is responsible for its participants' attendance at scheduled courses.
5. Pentaho Training Materials. Pentaho Training Materials are owned solely by Pentaho and provided solely for the use of the participants during the provision of the Training Services and may not be copied or transferred without the prior written consent of Pentaho.
6. Delivery Date and Cancellation. Unless otherwise agreed in writing by Pentaho, On-Site Courses are restricted to a maximum of 12 students per class. If Customer or Pentaho cancels or reschedules an On-site Course or a Public Course, the parties will work together to reschedule the Training Services. Pentaho reserves the right to cancel a Public Course for any reason no later than 10 business days prior to the start date of the course. Pentaho assumes no liability for lost time, wages or travel costs associated with a cancelled Public Course.
7. Payment Policy for Public Courses. Customer must pay for training on or before the start date of the Public Course

Revision: 2.2
Last revised: 10/15/10