Appendix C.

APPENDIX C

IntelAgree Support Services

This Appendix C describes the IntelAgree Support Services to be provided during the applicable Term. These IntelAgree Support Services do not expand or change the warranty provisions set forth in the Agreement.

1. GENERAL OBLIGATIONS.

1.1 Operations. During the Term, in consideration of the fees paid by Customer under the Agreement, IntelAgree shall be responsible, at its own expense, for operating and maintaining the IntelAgree Software for Customer to access as permitted under the Agreement.

1.2 Program Errors. IntelAgree shall identify and promptly inform Customer of any Program Errors (as defined below) of which IntelAgree becomes aware and shall consult with Customer regarding necessary corrections and or modification. For the purposes of this Agreement, a "Program Error" shall mean a material and reproducible failure of the IntelAgree Systems to perform in accordance with the specifications in the Documentation; provided, however, that any such failure which is due to any of the following shall not be considered a "Program Error": (i) any problem caused by Customer Data, content, programming, or infrastructure provided or used by Customer that is defective; (ii) any problem caused by a Force Majeure Event; or (iii) any problem caused by the performance or non-performance of the Internet (as used herein, “Internet” shall not mean or include hardware, software or systems under the control (by contract or otherwise) of IntelAgree or its subcontractors). IntelAgree reserves the right to provide any and all services set forth in this Appendix by outsourcing such services to independent third Parties selected by IntelAgree in its sole and absolute discretion. IntelAgree acknowledges and agrees that performance or non-performance by subcontractors used by IntelAgree to provide or support services hereunder shall in all respects be deemed to be performance or non-performance, as the case may be, of IntelAgree hereunder.

2. TECHNICAL SUPPORT AND OBLIGATIONS. During the applicable Term, IntelAgree shall provide or cause to be provided the following maintenance and technical support to Customer:

2.1 Technical Support.

a. Customer shall have access to Technical Support provided by IntelAgree as follows. IntelAgree will provide telephone support and/or remote access support to designated Customer contacts to assist with Program Errors using the following IntelAgree contact information:

Support:

            Support Website Address:                    support.intelagree.com

            Hours of Support:                                  8-8 EST

Response Times: IntelAgree shall use commercially reasonable efforts to respond to all Support tickets no later than the response times set forth below based on the following Severity Levels:

Severity Level 1

• • Critical Business Impact - Production down with no workaround. There is a critical impact to customer if service is not quickly restored. Examples: IntelAgree Systems not accessible for any Authorized Users; no Authorized Users can login

Severity Level 2

• • Functionality inoperative – Operation of the IntelAgree Systems is restricted or significantly delayed and impacts business process. No known workaround available.
  • Examples: major feature not available; performance degradation that results in inoperability of a major feature

Severity Level 3

• • Functionality impaired – Impairment of business functions where an acceptable workaround exists. Problem that affects one or more users with no major business impact.
  • Examples: single Authorized User cannot login; report filters not working

Severity Level 4

• • Trivial defect – The defect does not affect functionality or data. Includes minor cosmetic defect, other minor failure of the software, service/functionality requests, which do not require immediate attention
  • Examples: non-critical or non-urgent 'fixes', enhancement requests, report changes, training/usage questions

IntelAgree will assist Customer in utilizing the IntelAgree Software and in identifying and providing fixes and workarounds.

b. Problem Reporting: Customer may submit to IntelAgree requests identifying potential problems in the IntelAgree Systems. Requests should be in writing and directed to IntelAgree by the electronic means specified above. IntelAgree retains the right to determine the final disposition of all requests and will inform Customer of the disposition of each request. If IntelAgree decides in its sole judgment to act upon a request, it may do so by providing an update when and if available.

2.2 Maintenance Windows. IntelAgree will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services between the hours of 6:00 p.m. and 10 p.m. EST on Saturdays. Emergency Maintenance may be performed as determined by IntelAgree.

2.3 IntelAgree shall have no support obligations with respect to any hardware or software product other than the IntelAgree Systems ("Nonqualified Products"). If IntelAgree provides Technical Support for a problem caused by a Nonqualified Product, or if IntelAgree’s service efforts are increased as a result of a Nonqualified Product, and upon notification to Customer, IntelAgree may charge time and materials for such extra services at its then current rates. If, in IntelAgree’s reasonable opinion, performance of Technical Support is or will be made more difficult or impaired because of Nonqualified Products, IntelAgree shall so notify Customer, and Customer shall immediately remove the Nonqualified Product at its own risk and expense. Customer shall remain solely responsible for the compatibility and functioning of nonqualified products with the IntelAgree Systems.

2.4 IntelAgree will use its reasonable efforts to make the IntelAgree Systems perform substantially in accordance with the specifications in the Documentation; however, Customer acknowledges that inevitably some errors may exist in the IntelAgree Systems, and the presence of such errors shall not be a breach of this Agreement.

2.5 Customer Responsibilities. In connection with providing the IntelAgree Support Services, Customer shall have the following responsibilities: (1) maintain the Nonqualified Products and associated peripheral equipment, if any, in good working order in accordance with the manufacturers’ specifications, and insure that any problems reported to IntelAgree are not due to hardware or operating system malfunction; (2) supply IntelAgree with access to and use of all information and facilities determined to be necessary by IntelAgree to render the IntelAgree Support Services; (3) perform any tests or procedures recommended by IntelAgree for the purpose of identifying and/or resolving any problems; (4) at all times follow routine operator procedures as specified in the Documentation; and (5) ensure that the IntelAgree System is isolated from any process links or anything else that could cause harm before requesting or receiving remote support assistance. Customer is solely responsible for providing all internal technical support to the Authorized Users.

3. SERVICE LEVEL AGREEMENT.

3.1 IntelAgree will use commercially reasonable efforts to maintain the online availability of the IntelAgree Systems at all times during the Term as follows:

a. The Availability target is 99.5% (the “Availability Target”). Availability will be calculated by multiplying 100 times the quotient of (i) total number of minutes in the applicable month minus Downtime (as defined below)) in the applicable month divided by (ii) the total number of minutes in the applicable month. For clarity: Availability % = 100 x ((total minutes in applicable month – Downtime)/(total minutes in applicable month)); and

b. “Critical Availability Window” shall mean the hours between 7am and 10pm Eastern Standard Time.

3.2 For purposes hereof, “Downtime” means the total minutes of any interruption in the availability of the IntelAgree Systems; provided, that, for purposes of the foregoing calculation, with respect to all minutes of Downtime not during a Critical Availability Window, such minutes shall be multiplied by 0.5. The foregoing calculation of Downtime shall not include time that is attributable to:

a. Scheduled Maintenance as defined in Section 2.2 above;

b. negligence or other conduct of Customer (other than as expressly permitted in the Agreement) that materially and adversely affects IntelAgree’s ability to provide the IntelAgree Systems at the Availability Target; and

c. circumstances beyond the reasonable control of IntelAgree, including, without limitation, general Internet problems and failure or malfunction of any equipment or services not provided by IntelAgree; provided that IntelAgree would have been able to perform but for such factor, and IntelAgree has not materially contributed to the cause of such factor or could not have reasonably foreseen and prevented the effect of such factor; and

d. In the event that Availability in a given calendar month is less than the Availability Target, IntelAgree shall provide Customer with Service Credits based on the table below, which Service Credits shall be calculated as a percentage of the total monthly recurring Subscription Fees paid by Customer (excluding one-time payments, such as upfront payments) in the applicable month. These measurements will reset each calendar month.

3.3 On a monthly basis, in the event that Availability in such month is below the Availability target (99.5%), IntelAgree shall provide Customer with a report of Downtime for that month. Upon request, Customer shall be permitted to request documentation related to such Downtime calculation. The Parties shall work in good faith to resolve any disputes regarding such Downtime calculations and Service Credits. To receive Service Credit, Customer must request such credit within seven (7) days after the receipt of the monthly report referenced above. Service Credits will be applied upon issue of the first invoice following the applicable month’s Service Credit unless it occurs in the final month of service. In such case, a refund for the dollar value of the Service Credit will be issued within thirty (30) days of the termination of this Agreement. Except for the termination option set forth below, issuance of Service Credits shall be Customer’s exclusive remedy and IntelAgree’s sole obligation with respect to this Service Level section.

3.4 In the event that Monthly Availability is less than 93.50% during any period of three (3) consecutive months (a “Degradation Period”), no later than the tenth (10th) day following said Degradation Period, IntelAgree will deliver a written plan to Customer describing the remediation measures to be implemented by IntelAgree that are intended to restore Monthly Availability to 99.5%; provided, that, in the event that Monthly Availability in any of the three months immediately following a Degradation Period is less than 93.50%, Customer may terminate the Agreement; provided, further, that, except for the foregoing termination right, the issuance of Service Credits pursuant to this Section shall be Customer’s exclusive remedy and IntelAgree’s sole obligation with respect to this Service Level Agreement section.