Statement of Work – Terms and Conditions

COMPANY OWNERSHIP. As between Company and Customer, all rights, title, and interest in and to all intellectual property rights in the Company Technology are owned exclusively by Company notwithstanding any other provision in this SOW or any other agreement as signed between the parties. Except as expressly provided in this SOW or the Agreement, Company reserves all rights in the Company Technology and does not grant Customer any rights, express or implied or by estoppel. “Company Technology” means: (a) the Solution and Documentation; and Company technology and methodologies (including, without limitation, products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects and documentation) existing as of the Effective Date or otherwise arising outside of work under the Services or this SOW; (b) updates, upgrades, improvements, configurations, extensions, and derivative works of the foregoing and related technical or end user documentation or manuals; and (c) intellectual property anywhere in the world relating to the foregoing.

CUSTOMER OWNERSHIP. As between Customer and Company, Customer shall retain all rights, title, and interest in and to its intellectual property rights in Customer Data and Customer Technology. “Customer Technology” means software, methodologies, templates, business processes, documentation or other material authored, invented or otherwise created or licensed (other than by or from Company) by Customer using or for use with the Solution, excluding the Company Technology.

FEEDBACK. Customer grants to Company a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Solution. For the avoidance of doubt, Company’s exposure to Customer Data or Customer Technology, without more, does not constitute feedback.

SERVICES WARRANTY. Customer shall notify Company in writing of any breach within thirty (30) days after performance of any non-conforming Services. Upon receipt of such notice, Company, at its option, shall either use commercially reasonable efforts to re-perform the Services in conformance with the SOW or shall terminate the affected Services and refund to Customer any amounts paid for the nonconforming Services. This Section 4 sets forth Customer’s exclusive rights and remedies (and Company’s sole liability) in connection with any Services provided under this SOW. Except for the warranties expressly stated in this SOW, to the maximum extent allowed by law, Company disclaims all warranties of any kind, express or implied, oral or written, including warranties arising under statute, warranties of merchantability, accuracy, title, non-infringement or fitness for a particular purpose or any warranties arising from usage of trade, course of dealing or course of performance. Without limiting the generality of the foregoing, Company specifically does not warrant that the Services will meet the requirements of CUSTOMER or others or that they will be accurate or operate without interruption or error. CUSTOMER acknowledges that in entering this Agreement it has not relied on any promise, warranty or representation not expressly set forth herein.

5. LIMITATIONS OF LIABILITY

5.1 LIMITATIONS OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS SOW OR THE SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO: (1) CUSTOMER’S OBLIGATION TO PAY FOR THE SERVICES or taxes; (2) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

5.2 EXCLUSIONS. TO THE EXTENT PERMITTED BY LAW, NEITHER COMPANY NOR CUSTOMER SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS (WHETHER DIRECT OR INDIRECT) OR LOSS OF USE OR DATA, cover, substitute goods or services, OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGE TO BUSINESS, REPUTATION OR GOODWILL), OR INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION EVEN IF SUCH PARTY HAS BEEN ADVISED OF SUCH DAMAGES IN ADVANCE OR IF SUCH DAMAGES WERE FORESEEABLE. THE FOREGOING EXCLUSIONS SHALL NOT APPLY TO INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

5.3 GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. AS PROVIDED BY LAW, NOTHING HEREIN SHALL BE INTENDED TO LIMIT A PARTY’S LIABILITY IN AN ACTION IN TORT (SEPARATE AND DISTINCT FROM A CAUSE OF ACTION FOR BREACH OF THIS AGREEMENT) FOR THE PARTY’S GROSS NEGLIGENCE OR WILlFUL MISCONDUCT.