Services Agreement

This Services Agreement, including all exhibits ("Agreement"), is between Pentaho Corporation ("Pentaho") and the purchaser or user of Pentaho 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. All Services are governed by the terms of this Agreement.

1. SERVICES. Customer may purchase the Subscription Services, Consulting Services, Training Services, Credits and other items offered by Pentaho by entering into an Order Form that is governed by the terms and conditions of this Agreement. Services are only for Customer's internal use and Customer may not use the Services to supply any consulting, support or training services related to the Products to any third party.

2. PAYMENT. Customer agrees to pay Pentaho the fees stated on an Order Form. Unless otherwise specified on an Order Form, Customer will reimburse Pentaho for all travel and living expenses incurred by Pentaho personnel in providing the Services. Fees do not include any taxes applicable to the items purchased under an Order Form. Customer will be responsible for any sales, use, excise, withholding, import or export, value added or other tax or duty, and all government permit or license fees, and customs or similar fees, levied upon the delivery or sale of the Services and other items purchased under this Agreement (except taxes on Pentaho income). Unless otherwise specified on an Order Form, all invoices are due upon receipt and will be paid within forty five (45) days. Payments will be made without right of set-off or charge back. If Customer does not pay the invoices when due, Pentaho may charge interest at one percent (1%) per month.

3. CONFIDENTIALITY. Confidential Information may only be used by Recipient in the course of its business relationship with Pentaho. Recipient may share the Confidential Information only with those employees and contractors with a specific need to review the Confidential Information in the course of its business relationship with Pentaho. Recipient agrees (a) to hold the Confidential Information in confidence; (b) to protect and store it consistently with its own most highly confidential information, but in no event to use less than a reasonable standard of care; (c) not to copy, duplicate, disclose or deliver all or any portion of Confidential Information to any other third party without the prior written consent of Pentaho; and (d) to return Confidential Information to Pentaho upon request. Nothing in this Agreement will, or is intended to, limit Pentaho's ability to develop or enhance its products and services in any manner whatsoever or contravene any Open Source License Agreement.

4. WARRANTIES AND LIMITATIONS OF LIABILITY.

4.1 Pentaho warrants that all Services provided under this Agreement will be performed in a professional manner in accordance with the terms and conditions in this Agreement and the applicable Order Form. Pentaho's sole obligation and Customer's sole remedy for any failure to conform to such warranty is for Pentaho to repair or replace the nonconforming Subscription Services, provided that Customer notifies Pentaho in writing of the non-conformance within thirty (30) days of delivery.

4.2 THERE ARE NO ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, MADE BY EITHER PARTY INCLUDING, BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MERCHANTABILITY.

4.3 Pentaho will not be liable for any incidental, special, punitive or consequential damages arising out of or in connection with this Agreement or otherwise, including liability for lost profits, business interruption or loss of business. Under no circumstance will Pentaho's liability for any cause of action arising under or in connection with this Agreement or otherwise (whether arising in tort, contract, or otherwise) exceed the cumulative amount of fees Pentaho received from Customer under this Agreement.

4.4 The foregoing limitations, exclusions and disclaimers are an allocation of the risk between the parties and will apply to the maximum extent permitted by applicable law, even if any remedy fails in its essential purpose.

5. PENTAHO TRADEMARKS. The use of the Pentaho Trademarks are governed by the Pentaho Trademark Standards for Use at www.pentaho.com/endusertrademarks.

6. Intellectual Property Claims.

6.1 Pentaho will defend, indemnify and hold Customer harmless if a claim is brought against Customer by a third party during the time Customer is purchasing Subscription Services from Pentaho alleging that the Product for which Customer is purchasing Subscription Services under this Agreement infringes a patent, copyright, trademark or other intellectual property right of a third party ("Claim").

6.2 If the Product is found to infringe any valid patent, copyright, trademark or other intellectual property right of a third party during the time that Customer is purchasing Subscription Services from Pentaho for such Product, Pentaho will, at its expense and option: (a) obtain the right for Customer to continue to use the Product; (b) modify the Product so that it become non-infringing; or (c) replace the infringing components with non-infringing components.

6.3 Exclusions. Pentaho will have no obligation with respect to any Claim arising out of: (a) use of any version of a product not made available directly by Pentaho; (b) the failure to use an updated version of the Product provided by Pentaho to avoid such infringement if liability for the Claim would have been avoided by using the updated version; (c) a modification of a Product that is not performed by Pentaho if liability for the Claim would have been avoided in the absence of such modification; or (d) the combination, operation, or use of a Product with any other products or equipment, if liability for the Claim would have been avoided in the absence of such combination, operation, or use.

6.4 If Customer becomes aware of a Claim that may require indemnification, Customer will promptly notify Pentaho in writing of the claim and will allow Pentaho to assume sole and full control of the defense and settlement of the Claim.  Customer will provide Pentaho with reasonable assistance and information necessary to defend and settle the Claim.  Customer's counsel will have the right to participate in the defense and settlement of the Claim, at Customer' own expense. This Section 6 states Customer's sole remedy and Pentaho's exclusive liability in the event that a Product infringes on any intellectual property right of a third party.

7. TERM. This Agreement will become effective as of the Effective Date and will remain in effect until terminated as set forth in this Section. Either party may terminate this Agreement immediately upon giving notice in writing to the other party if the non-terminating party commits a 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 termination of this Agreement, Sections 2, 3, 4, 5, 7, 8 and 9 will survive.

8. GENERAL. Neither party is an agent or representative of the other party. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. Purchase orders will be for the sole purpose of defining quantities, prices and describing the Services to be provided under this Agreement, and to this extent only are incorporated as a part of this Agreement and all preprinted terms in purchase orders are rejected. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable provided, however, that if Section 4 cannot be modified to be valid and enforceable, this Agreement will be deemed invalid in its entirety. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement. All Pentaho Materials are owned solely by Pentaho and its licensors. During the term of this Agreement, Customer agrees that Pentaho may include Customer's name on the Pentaho customer list and on the Pentaho website. Neither party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control, provided that this Section will not apply to the timely payment of monies due. Performance times (other than with respect to payment obligations) will be considered extended for a period of time equivalent to the time lost because of any such delay. Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of Pentaho and the Customer and do not create any right in favor of any third party. This Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to its conflict of laws principles. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of New York, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue. All notices must be in writing and will be effective three (3) days after the date sent.

9. DEFINITIONS. Capitalized terms in this Agreement have the following meanings:

Services means the Consulting Services, Subscription Services and/or Training Services described in this Agreement and on an Order Form.

Subscription Services mean the subscription services for the Products described in this Agreement and on an Order Form.

Consulting Services mean the services described in this Agreement and on an Order Form. Some examples of Consulting Services include tuning, optimization, software development, integration of Pentaho products into customer applications, SQL generation, overall review of customer architecture and schema design.

Training Services mean the classes and other instructional programs provided by Pentaho to assist Customer in the use of the Products as described in this Agreement and on an Order Form.

Confidential Information means all Pentaho Materials, subscription keys, support portal access codes and all other information that has value because it is not generally known and that Pentaho uses reasonable means to protect; provided, however, that "Confidential Information" will not include information that: (i) is or becomes generally known or available to the public by publication, commercial use or otherwise through no fault of Recipient; (ii) is known and has been reduced to tangible form by the Recipient prior to the time of disclosure and is not subject to restriction; or (iii) is independently developed by Recipient without use of Pentaho's Confidential Information.

CPU means a central processing unit or other integrated circuit that executes the instructions provided by the Product through a single processor core. The term CPU includes reduced instruction processors, embedded processors, or dedicated coprocessors. Where an integrated circuit has multiple cores, every two cores shall be counted as a single CPU. A development server and production server are considered two separate CPU(s). Subscriptions include the support of Products running on a specific number of CPU(s).

Developer Assistance means the support that provides Customer the ability to ask specific questions about the use and features of the Products. Some examples include specific questions associated with installation and configuration, specific questions about the Product APIs, specific questions about features and functions of the Products, and best practices approaches (in the form of documentation / knowledge base).

Discloser means the party disclosing the Confidential Information.

Documentation means the Pentaho user manuals distributed by Pentaho in connection with, and relating to, the Products.

Error means a failure of a Product to conform in all material respects with the applicable Documentation.

Named Contacts mean the individuals authorized to contact Pentaho for Subscription Services. Such individuals must be trained and knowledgeable about the Products and the Pentaho problem resolution procedures to be used with the Products. The initial Named Contacts may be changed by providing Pentaho with at least ten (10) days prior written notice.

Open Source License Agreement is any software license agreement recognized by the Open Source Initiative' (OSI) organization ([http://www.opensource.org/licenses/]). CPL, LGPL and the Apache licenses are examples of such licenses.

Pentaho Credit means a unit of credit that can be exchanged for Consulting Services and Training Services under this Agreement. Pentaho Credits will expire on the latter of a) one year from purchase or b) the date that the Subscription Services expire.

Pentaho Materials mean the proprietary materials made available by Pentaho related to the Products, including but not limited to instructional manuals, other explanatory material, as well as Pentaho training Materials.

Pentaho Trademarks mean the trademarks for the Products.

Product means the product that is listed on an Order Form and for which Pentaho provides certain Services.

Recipient means the party receiving the Confidential Information from the Discloser.

Release means a new version of a Product designated by a change to the digit to the right of the first decimal point, represented by "Y" in this example (x.Y.z).

Training Materials mean all training materials, software and methodologies provided in connection with the Training Services or developed during the performance of the Training Services.

EXHIBIT 1

This Exhibit describes Subscription Services offered by Pentaho. Pentaho will provide only those Subscription Services purchased by Customer for any other purpose. The Subscription 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 3rd-party.

Pentaho offers Production Support to Customer's Named Support Contact(s) to fix Errors in the 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.

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 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, 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 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 Subscription 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 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 and the affected End User will promptly provide, reasonable access to the computing environment in which the Error occurs.

Customer may escalate a Support 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 issue. In the event that Customer is escalating a Support issue, Customer may contact using the following methods:

Pentaho may amend the list in the table above by providing notice to Customer.

Pentaho will not be responsible to provide any Subscription 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 1 for any issues arising out of the following events:

Support 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 Product versions obtained via the Pentaho Customer Support Portal.
• Use in a production environment of any release of the 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 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 Product;
• Any 3rd-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 if Customer has not paid all applicable support fees and other amounts payable pursuant to this Agreement, or is otherwise not in compliance with the terms of this Agreement.

EXHIBIT 2

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 3

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 Purchase Summary, 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 and Refund Policy for Public Courses. Customer must pay for training on or before the start date of the Public Course. Pentaho will refund or credit 100% of the enrollment fee if notice of attendee cancellation is received more than two weeks in advance. If notice of attendee cancellation is less than two weeks in advance Pentaho will refund or credit 50% of the enrollment fee.

EXHIBIT 4

The following terms are applicable to any credits that Customer purchases and redeems for Services:

1. Redemption of Credits.

The onsite setup fee includes travel expenses and all classroom materials. The fee permits up to a maximum of 12 students to attend the onsite class. Pentaho charges a minimum of 32 credits for any onsite class taught outside of North America.

2. Expiration. Credits are valid upon receipt of payment and expire upon termination of this Agreement.

Revision: 2.0
Last revised: 08/05/2008