Master Software and Services Agreement

THIS MASTER SOFTWARE AND SERVICES AGREEMENT (the “Agreement”) is made and entered into by and between Sage Clarity LLC (“Sage Clarity”) and the purchasing customer (“Customer”) as of the date software is purchased from Sage Clarity (“Effective Date”).

This Agreement includes the Sage Clarity Master Software and Services Agreement – General Terms (“Terms”) accompanying this document and each Addendum hereto, which Terms and Addenda will form part of the Agreement. The following terms and conditions also apply to this Agreement:

Master Software and Services Agreement – General Terms

1. Certain Definitions
   1. “Addendum” means an addendum to the Agreement that sets out additional terms and conditions applicable to a Product offering, which expressly incorporates the Agreement by reference.
   2. “Affiliate” means any entity that directly or indirectly, Controls, is Controlled by, or is under common Control with the subject entity.
   3. “Control” or “Controlled”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interest in the applicable entity.
   4. “Customer” means the entity named as the Customer on the signature page to these Terms.
   5. “Deliverables” means Sage Clarity’s proprietary (e.g., non-third party) Products and Documentation, and any tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations that are prepared by Sage Clarity or its subcontractors in the course of furnishing the Products and Documentation.
   6. “Documentation” means Sage Clarity’s standard read-me and online help materials, user documentation and training materials normally made available by Sage Clarity in connection with a specific Product.
   7. “Hardware” means equipment sold by Sage Clarity pursuant to an Order.
   8. “Malicious Code” means a virus, worm, time bomb, Trojan horse or any other similar harmful or malicious code.
   9. “Order” means Sage Clarity’s standard order form documentation for ordering certain Products.
   10. “Products” means, collectively, Software, Support, Services, Subscription Services and/or Hardware.
   11. “Services” means the professional services to be furnished by Sage Clarity to Customer as specified in a Statement of Work.
   12. “Software” means the specific application software product or modules set forth in an Order.
   13. “Software Update” means a patch, workaround, improvement, correction, modification or derivative to the Software that is made generally available by Sage Clarity as part of a Support subscription.
   14. “Statement of Work” means Sage Clarity’s standard form for ordering Services or Subscription Services Products from Sage Clarity.
   15. “Subscription Services” means software delivered on a software as a service (SaaS) basis and application management or similar services performed on subscription or recurring basis as set forth in an Order or Statement of Work.
   16. “Support” means the maintenance and support services Sage Clarity provides for the Software licensed hereunder as described in a “Support” Addendum.
   17. “Support Term” has the meaning given in the “Software Support” Addendum.
   18. “Third Party Software” means Software that is licensed by Customer directly from a third party vendor under a separate end user license agreement and/or maintenance and support agreement (as denoted on an Order), even if Sage Clarity arranges for the license of such third party software to Customer and invoices Customer for such third party software.
2. Software License
   1. Grant of Subscription. Subject to the terms and conditions outlined herein and any limitations specified in the Subscription Order, Sage Clarity hereby grants Customer a global, non-transferable, personal, and non-exclusive subscription to access and utilize the Sage Clarity Software as detailed in the Subscription Order (“Subscription”). This Subscription is subject to Sage Clarity’s right to terminate in accordance with the provisions of this Agreement. The Subscription encompasses the utilization of the Software and its accompanying Documentation in object code (run-time) form, as well as any Software Updates subsequently provided by Sage Clarity to the Customer, as long as the customer maintains an active Subscription and or Maintenance Agreement. The access and utilization for the Software licensed under this Subscription shall transfer to the Customer upon activation of the Software by Sage Clarity.
   2. Permitted Use. The Subscription obtained herein is solely granted to the Customer for the purpose of internal data processing and data management within the Customer’s organization. The Customer acknowledges that this Subscription does not authorize the Customer to: (i) grant access to the Software or Documentation to third parties without the prior written consent of Sage Clarity, which may be withheld at Sage Clarity’s sole discretion, or (ii) sublicense or encumber the Software and Documentation, unless expressly permitted otherwise in this Agreement.
   3. Third Party Software. Customer’s use of Third Party Software is subject to the terms and conditions of the license agreement that accompanies the Third Party Software. The Third Party Software may only be used in conjunction with Software supplied by Sage Clarity, except as otherwise denoted on an Order.
   4. License Fees. The Software is licensed for a license fee listed on an Order, except as otherwise set forth therein.
   5. License Type Descriptions. The Software is licensed to you subject to the associated license type(s) designated on an Order and/or the related Documentation.
3. Software Support;. Sage Clarity’s delivery of Support (where available) is subject to the additional terms and conditions contained in a separate “Support” Addendum.
4. Professional Services. The following are the terms and conditions under which Sage Clarity provides Services:
   1. Scope of Service. Any Services to be performed by Sage Clarity will be described in separately executed Statements of Work or Services Proposals.
   2. Changes in Scope. Any changes to the scope contemplated in a Statement of Work or Services Proposal must be made by a written change order or amendment to the Statement of Work signed by an authorized representative of each party.
   3. Services Fees and Expenses. Except as otherwise set forth in a Statement of Work or defined Proposal, Services are billed on a time and materials basis periodically as work is performed with payment rendered by Customer under the terms described in the applicable Statement of Work. Sage Clarity reserves the right to withhold Services while any Services fees remain overdue, to the extent such fees are not the subject of a bona fide dispute communicated to Sage Clarity in writing. Customer will reimburse Sage Clarity for reasonable out-of-pocket expenses incurred in performance of the Services, which include but are not limited to travel expenses, per diem and mileage as specified in a Statement of Work. The parties shall confer from time to time as needed before and during a Services engagement to discuss and agree upon any reasonable expense parameters for the particular engagement.
   4. Hours of Service. Services will be performed during normal local business hours, Monday through Friday, excluding holidays, or as otherwise set forth in the Statement of Work. Customer may request in writing extended hours of Services at the prevailing surcharge rates.
   5. Customer Responsibilities. During a Services engagement Customer will provide Sage Clarity with reasonable access to requested resources such as: (i) Customer’s personnel, facilities, equipment, hardware, software, network and information for Services to be performed on-site, and (ii) timely decision-making, notification of relevant issues or information and granting of approval or permissions as reasonably necessary for Sage Clarity to perform the Services.
   6. Trade Secrets: “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
5. Subscription Services. Sage Clarity’s delivery of Subscription Services, if any, is subject to the additional terms and conditions contained in a separate “Subscription Services” Addendum.
6. Hardware. The following are the terms and conditions under which Sage Clarity resells Hardware:
   1. Purchase Price. Customer shall pay all Hardware fees listed in an Order pursuant to the terms listed therein.
   2. Risk of Loss/Security Interest. Except as otherwise provided in an Order, risk of loss for Hardware purchased hereunder shall pass to Customer upon delivery by Sage Clarity to Sage Clarity’s designated carrier. For shipments within the United States, title to the Hardware will also pass to Customer upon delivery by Sage Clarity to Sage Clarity’s designated carrier; provided that Customer grants Sage Clarity a security interest in the Hardware and any replacements or proceeds thereof until full payment has been made to Sage Clarity and authorizes Sage Clarity to take reasonable steps to perfect its security interest thereunder. For shipments to destinations located outside the United States (i) title to the Hardware remains with Sage Clarity and shall not pass to Customer, and Customer may not transfer such Hardware without Sage Clarity’s prior written consent until Sage Clarity receives the purchase price in full, and (ii) Sage Clarity shall have the authority to repossess, sell or otherwise deal with and/or dispose of the Hardware and any replacements or proceeds thereof and to take any other reasonable steps to protect its interest thereunder if any part of the purchase price becomes overdue. At Customer’s request, Sage Clarity will insure the Hardware against risk of loss and damage while in transit and will add the costs of such insurance to Customer’s invoice for payment. Until full payment for the Hardware is made, Customer must, and must cause its transferees to, notify Sage Clarity in writing in advance of any transfer of the Hardware and the resulting location thereof.
   3. Preparation. Customer is responsible for all preparation of its facilities as necessary to operate the Hardware.
   4. Operating System Software License. The Hardware purchased hereunder may require certain operating system software, which is furnished to Customer subject to the license terms furnished by the third party hardware or software supplier (“Manufacturer’s Software”).
7. Payments, Term and Taxes
   1. Pricing; Payment Terms. Except as otherwise set forth in an Order or Statement of Work all payments are due within 30 days following the date invoiced without any setoff or reduction.
   2. Taxes. All prices are exclusive of all applicable country, provincial, state and local sales, use, value added, excise, privilege, franchise and similar taxes (“Taxes”). Customer shall be responsible for all Taxes however designated or levied, against the sale, licensing, delivery, or use of the Products.
8. Confidentiality
   1. Confidential Information. As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Agreement. Confidential Information includes, without limitation, the Deliverables, copies or abstracts made thereof as well as any modules, samples, prototypes or parts thereto and the details of the employees of the parties or their Affiliates and Customer’s data. Confidential Information does not include any information that (i) is already known to the Receiving Party or received by the Receiving Party from a third party, free of any obligation to keep it confidential; (ii) becomes publicly known through no wrongful act of the Receiving Party without the use of the Disclosing Party’s Confidential Information; (iii) is independently developed by the Receiving Party; or (iv) is approved for release by written authorization of the Disclosing Party.
   2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information or Trade Secrets of the Disclosing Party for any purpose outside the scope of this Agreement without the Disclosing Party’s prior written permission.
   3. Protection. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own, but no less than reasonable care.
   4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
   5. Return. Receiving Party will return all originals, copies and summaries of the Confidential Information upon termination or expiration of this Agreement or upon Disclosing Party’s request, or in the alternative, destroy the same and certify in writing to Disclosing Party that all such Confidential Information has been destroyed.
   6. Duration. The obligations with respect to Confidential Information will continue until such time it ceases to be considered confidential under Section 8.1. Any designated Trade Secret will be exempt from this clause and will continue in until extinguished by the Disclosing Party.
9. Proprietary Rights; Restriction on Use
   1. Deliverables. Sage Clarity retains exclusive ownership in all Deliverables developed, created or furnished by Sage Clarity hereunder and will own all intellectual property rights, title and interest in any ideas, concepts, know how, documentation or techniques developed by Sage Clarity under this Agreement. All rights not expressly granted in this Agreement are reserved by Sage Clarity and its suppliers.
   2. Trademark and Copyright Notices. Customer shall not remove, alter or destroy any proprietary, trademark or copyright notices placed upon or contained within any Deliverables. Customer does not and shall not acquire any rights of any kind in or to any trademark, trade name, logo or product designation under which a Deliverable was or is marketed and may not make any use of the same for any purposes.
   3. Usage Restrictions. Except to the extent permitted by law without the possibility of contractual waiver, Customer may not reverse engineer, modify, decrypt, extract, disassemble, or decompile any Deliverable, or permit anyone else to do so (a “Prohibited Action”). Before Customer exercises any legal right to conduct a Prohibited Action it must provide Sage Clarity with reasonable prior written notice and will not unreasonably refuse to accept any alternative course of action that Sage Clarity proposes to satisfy Customer’s legal rights in lieu of conducting a Prohibited Action. Customer may not disclose any Deliverable to an Sage Clarity competitor or disclose results of any benchmark test of the Deliverable to any third party without Sage Clarity’s prior written approval, which may be withheld in Sage Clarity’s sole discretion. For the avoidance of doubt, an Sage Clarity authorized partner is not deemed an Sage Clarity competitor for purposes of this clause.
10. Warranties Additional Express Warranties; Disclaimers
    1. Warranty and Indemnification Disclaimer.
    2. Third-party Sourced Hardware. Third-party sourced Hardware purchased and/or Manufacturer’s Software licensed under this Agreement is warranted, and where applicable subject to indemnification, by the suppliers and/or licensors thereof. Accordingly, and unless otherwise provided herein, Sage Clarity makes no warranties of any kind, express or implied, with respect to the third party-sourced Hardware or Manufacturer’s Software. Sage Clarity agrees to pass through to Customer and otherwise make available to Customer any and all warranties and indemnification in force and available by the manufacturers of such Hardware or Manufacturer’s Software.
    3. Services Warranties. Sage Clarity represents and warrants that (i) the Services will be provided by qualified personnel with reasonable skill and care in accordance with generally accepted industry standards, (ii) in performing the Services it will not introduce Malicious Code into Customer’s system(s)
    4. Support Warranties. Sage Clarity warrants that it will use commercially reasonable efforts to perform Support and that the Support furnished pursuant to Section 1.1 herein will be provided by qualified personnel in a professional and workmanlike manner.
    5. Third Party Software is warranted, and where applicable subject to indemnification, by the manufacturers/licensors thereof. Accordingly, Sage Clarity makes no warranties of any kind, express or implied, nor offers any indemnification with respect to Third Party Software.
    6. Additional Express Warranty. In addition to the Product-specific express warranties granted herein or in an Addendum hereto, Sage Clarity hereby warrants that it is authorized to enter into this Agreement and supply the Deliverables hereunder.
    7. General Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, INCLUDING SECTIONS, 4.6 or 10.1, NEITHER SAGE CLARITY, NOR ITS SUPPLIERS, SUBCONTRACTORS OR AGENTS MAKE ANY REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND SAGE CLARITY AND ITS SUPPLIERS, SUBCONTRACTORS AND AGENTS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF SATISFACTORY QUALITY, REASONABLE SKILL AND CARE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
11. Indemnification
    1. By Sage Clarity
       1. Subject to the terms and conditions contained herein, Sage Clarity will, at its own expense, defend Customer and its Affiliates, and their directors, officers and employees (each, an “Customer Indemnified Party”) against any claim, demand, suit, proceeding or action (each, a “Claim”), and shall indemnify Customer Indemnified Parties against any damages, costs (including but not limited to reasonable attorney fees and costs) finally awarded against them or amounts agreed to in a monetary settlement arising out of or in connection with such Claim to the extent the Claim is made or brought by or on behalf of a third party alleging that the Products furnished by Sage Clarity in and of themselves hereunder infringe any copyright or patent, or misappropriate any trade secret, of such third party issued, honored or enforceable under U.S. laws (“Customer Claim”).
       2. Limits on Indemnification: Sage Clarity has no obligation under this Section or otherwise to the extent a Customer Claim is based on any use of (i) the Products not in accordance with the Agreement or the applicable Documentation, (ii) the Products in combination with other products not contemplated hereunder or in the applicable Documentation to the extent the infringement is caused by such combination, (iii) or modification to the Products other than by or at Sage Clarity’s direction, (iv) a superseded Software version if a corrective Software Update has been made available to Customer for no additional license fee. Further Sage Clarity has no obligation under this Section with respect to Customer Claims involving third-party sourced Hardware (including Manufacturer’s Software) and Third Party Software.
       3. Remediation: If a Customer Claim occurs, or if Sage Clarity reasonably believes a Customer Claim may occur, Sage Clarity may at its sole discretion and at no cost to Customer (i) modify the Product so that it no longer infringes or misappropriates, (ii) secure for Customer the right to continue using the Products in accordance with this Agreement, or (iii) if (i) and (ii) are not commercially and reasonably feasible, terminate this Agreement with respect to the Product(s) that are or may be subject to the Customer Claim and refund to Customer, as applicable, (a) where Software n is or may be the subject of a Customer Claim, the depreciated value of the license fees paid for such Software or Services fees paid (based on a 5-year straight line depreciation schedule commencing on the date such Software was first delivered and (b) where Support, Services (other than involving a Subscription Services are the subject of the Customer Claim, the fees paid for the applicable Product during the then preceding 12-month period. This Section provides Sage Clarity’s entire liability and Customer’s sole and exclusive remedy for infringement and misappropriation Claims.
       4. Notice & Control of Defense/Settlement: Sage Clarity’s obligations under this Section 11.1 are conditioned on the Customer Indemnified Party providing the following: (i) prompt notice of any Claim for which indemnification is sought, (ii) sole control of the defense and settlement of such Claims or the appeal of any award, and (iii) reasonable assistance and cooperation at Sage Clarity’s expense; provided however that Sage Clarity may not enter into any settlement imposing any liability or obligation on the Customer Indemnified Party without the Customer Indemnified Party’s consent, not to be unreasonably withheld or delayed.
    2. By Customer
       1. Customer will, at its own expense, defend Sage Clarity and its Affiliates, and their directors, officers and employees (each, an “Sage Clarity Indemnified Party”) against any Claim, and shall indemnify Sage Clarity Indemnified Parties against any damages, costs (including but not limited to reasonable attorney fees and costs) finally awarded against them or amounts agreed to in a monetary settlement arising out of or in connection with such Claim to the extent the Claim (any of the following, an “Sage Clarity Claim”) (a) is made or brought by or on behalf of a third party in connection with (i) any Customer supplied intellectual property, materials or information, or (ii) Customer’s use of the Products not in accordance with, or as contemplated by, this Agreement or applicable Documentation or in violation of any law, rule or regulation, or (b) results from Customer’s use of the Subscription Services whereby Customer (i) uses the Subscription Services to store or transmit any Malicious Code, (ii) interferes with or disrupts the integrity of the Subscription Services, or (iii) gains unauthorized access to the Subscription Services or their related Sage Clarity systems or networks.
       2. Customer’s obligations under this Section 11.2 are conditioned on the Sage Clarity Indemnified Party providing the following: (i) prompt notice of any Claim for which indemnification is sought, (ii) sole control of the defense and settlement of such Claims, and (iii) reasonable assistance and cooperation at Customer’s expense; provided however that Customer may not enter into any settlement imposing any liability or obligation on the Sage Clarity Indemnified Party without the Sage Clarity Indemnified Party’s consent, not to be unreasonably withheld or delayed.
12. Exclusion and Limitation of Liability
    1. Exclusion of Certain Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR (i) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, OR (ii) DAMAGES FOR LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, OR LOSS OF BUSINESS INFORMATION OR OTHER DATA (IN EACH CASE WHETHER DIRECT OR INDIRECT), AND CLAIMS AGAINST A PARTY BY ANY THIRD PARTY ARISING IN CONNECTION WITH THIS AGREEMENT WHETHER ARISING IN LAW OR IN EQUITY, IN CONTRACT, IN TORT, IN STRICT OR PRODUCT LIABILITY, BREACH OF STATUTORY DUTY, OR IN ANY OTHER FORM OF ACTION, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH EXCLUSION CAUSES ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSES.
    2. Limitation of Liability. The parties hereto specifically agree that except for amounts properly payable to Sage Clarity hereunder, the total liability of a party to the other for damages under this Agreement with respect to an affected Product will be limited to direct damages and shall not exceed the sum of (i) Software license fees paid by Customer to Sage Clarity, (ii) maintenance and support fees paid by Customer to Sage Clarity for the then current Support Term, and/or (iii) Services or Subscription Services fees paid by Customer to Sage Clarity during the immediately preceding 12-month period; as the case may be for the affected Product(s) giving rise to the applicable cause(s) of action. Notwithstanding the foregoing, Sage Clarity’s total liability to Customer for damages relating to Third Party Software or Hardware will not exceed the license and/or Hardware fees, as the case may be, paid by Customer to Sage Clarity therefore.
    3. Exceptions. Paragraphs 12.1 and 12.2 do not apply to (i) claims arising out of death or personal injury or damage to tangible property, caused by a party’s negligence, or (ii) a party’s breach of its obligations under Sections 8 (Confidentiality), 9 (Proprietary Rights; Restrictions in Use), or 13 (Regulatory Provisions) or (iii) 11 (Indemnification).
    4. Reliance. Sage Clarity and Customer have not relied upon and agree they will have no remedy arising from any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement.
13. Regulatory Provisions
    1. Export. Certain of the Deliverables and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party agrees to comply with all international and national laws and regulations that apply to the Deliverables and such derivatives. These laws include U.S Export Administration Regulations, and importation, end user, end-use and destination restrictions issued by the U.S. and other governments.
    2. Anti-Corruption. Customer has not, and upon each submission of an Order or Statement of Work shall have not, received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Sage Clarity’s employees or agents in connection with this Agreement.
14. Term; Termination
    1. Termination for Cause. Either party may terminate this Agreement, a License, Order and/or Statement of Work for cause upon 30 days written notice of a material breach by the other party of its obligations under this Agreement or the affected License, Order or Statement of Work, if such breach remains uncured at the expiration of such period.
    2. Effects of Termination. Upon termination of this Agreement, a License, Order and/or Statement of Work, as the case may be, for any reason: (i) all rights and obligations of the parties under this Agreement and/or such License, Order or Statement of Work will automatically terminate except for rights of action accruing prior to termination, (ii) all amounts due thereunder shall continue to be due on their due dates (including the remainder of any annual fee paid on a periodic basis), and (iii) Sage Clarity will promptly refund to Customer any non-applied, prepaid Services fees. Upon termination of a License Customer shall immediately return or destroy the applicable Deliverables and all portions and copies thereof and, if requested by Sage Clarity, shall certify in writing as to the destruction or return of the same. Termination of one or more Licenses, Orders and/or Statements of Work will not terminate the Agreement.
    3. Surviving Provisions. Those provisions that by their nature should survive termination of the License or this Agreement, as the case may be, will survive termination. These include, without limitation: The provisions included on the signature page to the Agreement respecting Choice of Law and Alternative Dispute Resolution and Sections 1, 2.3, 2.4, 2.7.2 to 2.7.4, 4.3, 6.1, 6.2, 6.4, 6.5, 7, 8, 9, 10.2, and 11-19 of these Terms and any payment-related obligations under an Addendum.
15. Dispute Resolution. Except for debt recovery actions by Sage Clarity for amounts due to it hereunder or indemnity claims under Section 11, in the event of any dispute, claim, or controversy arising out of, relating to, or in connection with this Agreement (whether based in contract, in tort, upon a statutory provision, or otherwise), including, without limitation, the formation, performance, breach, termination, enforcement, interpretation or validity thereof (a “Dispute”):
    1. Negotiation/Mediation. Customer and Sage Clarity will first attempt to resolve the Dispute through confidential negotiation either through negotiations between designated executives with authority to resolve the Dispute, or if mutually agreed, through confidential mediation, utilizing a mutually agreeable mediator. If the parties are unable to resolve the Dispute through negotiation or mediation within 30 days following the initial notice of a Dispute (or such longer period as is agreed in writing), the Dispute shall be finally resolved through arbitration.
    2. Arbitration. If Customer and Sage Clarity are unable to resolve the Dispute in accordance with Section 17.1 the Dispute shall be fully and finally settled through arbitration administered pursuant to the rules and in the location designated below before a single arbitrator. Any award rendered in such arbitration proceedings will be executory, final, and binding on each of the parties. To the extent permitted by law (i) each party to the arbitration will pay its own costs and expenses (including attorney’s fees) in connection with the arbitration, (ii) the arbitrator’s fees and the administrative expenses of the arbitration will be paid equally by the parties thereto, and (iii) the arbitrator will not have the power to award punitive damages. The parties shall treat as confidential, and except as required by law no party may disclose the existence, contents, or results of an arbitration brought in accordance with this Agreement, or the documents presented and evidence produced by its opposing parties, or any analysis or summaries derived from such evidence.
    3. Choice of Law; Additional Dispute Resolution. Except as otherwise provided herein, the internal laws of the State of Illinois govern this Agreement (whether in contract, tort or statute). Any arbitration under the Section headed “Dispute Resolution” in the Terms will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, in a location selected by the party initiating the arbitration. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding any provisions herein with respect to applicable substantive law governing this Agreement, the agreement to arbitrate and any arbitration conducted pursuant thereto shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. Each party submits to the non-exclusive jurisdiction and venue of the state or federal courts for purposes of permitted applications of injunctive or other provisional relief, and for any litigation ancillary to arbitration, including without limitation, litigation or to compel arbitration or enforce an arbitral award. Each party waives right to jury trial in connection with any Dispute.
    4. Enforcement. The award rendered by the arbitrator may be recognized and enforced by any court having jurisdiction, and any necessary applications may be made to such courts for judicial acceptance of the award and an order of enforcement. Such court proceedings will disclose only the minimum amount of information concerning the arbitration as is required to obtain such recognition, enforcement, acceptance or order.
    5. Equitable Relief; Right to Termination. Notwithstanding the terms of this Section 17, each party shall have the right to seek immediate injunctive or other provisional relief, in any court of competent jurisdiction, against or from any ongoing or impending injury or damage, which mediation or arbitration would not in the party’s reasonable opinion avoid and each party shall at all times have the right to exercise any contractual right it may have to withhold the performance of its obligations and/or terminate this Agreement, an Order and/or Statement of Work as permitted hereunder.
    6. UN Convention on Contracts Not Applicable. This Agreement is not to be governed by the United Nations Convention on Contracts for the International Sales of Goods.
16. Assignment. Customer may not assign, license, sublicense or otherwise transfer this Agreement or any rights under this Agreement, whether voluntarily or by operation of law, without Sage Clarity’s prior written consent. Without limiting the scope of the previous sentence any sale or transfer of assets, stock or any interest in Customer, or any merger, consolidation restructuring, or other business reorganization, which, by operation of law, transfers this Agreement and such rights, is to be considered a transfer covered by the previous sentence. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Sage Clarity may assign this Agreement upon written notice to Customer if the assignee agrees to be bound in writing by Sage Clarity’s obligations hereunder.
17. General
    1. Headings. Headings contained in this Agreement are for convenience only and are not part of this Agreement and do not in any way interpret, limit or amplify the scope, extent or intent of this Agreement or any of the provisions hereof.
    2. Complete Agreement. This Agreement, including any Order, Statement of Work, Addendum or a supplement or an amendment hereto, constitutes the entire Agreement between the parties on the subject hereof and supersedes all other prior or contemporaneous agreements, negotiations, representations and proposals, written or oral. Each party acknowledges that in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. In the event of a conflict between this Agreement and any Order or Statement of Work entered into in connection herewith, this Agreement will control except as expressly provided otherwise in the applicable Order or Statement of Work. This Agreement does not operate as an acceptance of any conflicting terms and conditions and shall prevail over any conflicting provision of any purchase order or any other instrument of Customer, it being understood that any purchase order issued by Customer shall be for Customer’s convenience only.
    3. Severability. If any provision of the Agreement is deemed to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will promptly amend the Agreement to give effect to the stricken provision to the maximum extent possible.
    4. Modifications and Waiver. No modification of, or amendment or addition to this Agreement is valid or binding unless set forth in writing signed by a representative of each party; provided that an Order becomes valid and binding against Customer once signed and submitted by Customer. The waiver or failure of either party to exercise in any respect any right or remedy provided herein shall not be deemed a waiver of any future right or remedy hereunder.
    5. Electronic Signatures. The parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. In no event shall the electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
    6. Force Majeure. Neither party will be responsible for its failure to timely perform under this Agreement when its failure results from any cause beyond its reasonable control.
    7. Relationship. The parties are independent contractors. This Agreement does not create a joint venture or partnership between the parties; and no party is by virtue of this Agreement authorized as an agent, employee or representative of the other party.
    8. Business Contact Information. Customer agrees to allow Sage Clarity and its Affiliates to store and use Customer’s business contact information, including names, business phone numbers, and business e-mail addresses, anywhere they do business. Such information will be processed and used solely in connection with the parties’ business relationship.
    9. Notice. Notices hereunder shall be sent to the addresses on the face of this Agreement, or to such other address(es) as specified by a notice complying herewith, and shall be deemed delivered (i) on the date shown on the postal return receipt or on the courier or facsimile with confirmation of delivery, or (ii) within 5 days after deposit in first class mail or registered post.
    10. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and taken together will constitute a single instrument.

Master Software and Services Agreement – Support Addendum

This Software Support Addendum (“Addendum”) is incorporated by reference into and governed by the Master Software and Services Agreement (“Agreement”) between Customer and Sage Clarity. Capitalized terms not defined herein have the meanings given in the Agreement.

1. Software Support. The following are the terms and conditions under which Sage Clarity provides “standard” Software maintenance and support services (“Support”) during the Support Terms:
   1. Support Centers. Sage Clarity will provide telephone and e-mail support to Customer to answer general Software product questions and to identify and diagnose Software issues during the normal local business hours of the support center that services the Software licensed by Customer hereunder, Monday through Friday.
   2. Software Updates. Sage Clarity will make available to Customer all Software Updates to Software licensed by Customer hereunder, if and when commercially released.
   3. On-site Support. Sage Clarity’s delivery of onsite Support, if any, is subject to the additional terms and conditions contained in a separate addendum.
   4. Support Term. The Support term for Software initially licensed by the Customer shall commence on the date when such Software is electronically provided by Sage Clarity and will conclude after a period of 12 complete calendar months (“Initial Support Term”).
   5. Automatic Renewal. Following the conclusion of the Initial Support Term, the Support will automatically renew under the terms and conditions stipulated herein, on an annual basis (each period referred to as a “Support Term”), unless the Customer decides to terminate by providing written notice at least 90 days prior to the expiration of the ongoing Support Term.
   6. Co-Terminus Support. For Software licensed subsequent to the commencement of the Initial Term, the Support shall commence on the date when such Software is made electronically accessible to the Customer by Sage Clarity, and it shall conclude at the termination of the ongoing Support Term. The applicable Support fees for this shall be prorated on an annualized basis over the remaining duration of the Support Term.
   7. Maintenance and Subscription Fees. The Customer is responsible for paying all Subscription and or Support fees as specified: (i) in an Order, according to the terms stated therein, and (ii) in a renewal invoice before the commencement of the ensuing Support Term, unless terminated in accordance with Section 1.6 of this Subscription Agreement. Sage Clarity reserves the right to suspend Support if any subscription or maintenance and support fees are overdue. Sage Clarity holds the authority to increase the annual maintenance and support fees for the upcoming Subscription and Support Term (as indicated in a renewal invoice). However, such increases shall not surpass an annual percentage of 5% with respect to Sage Clarity’s standard price for its proprietary Software.
   8. Limitations. Customer acknowledges that it may need to update to a then more current Software Update release in order to obtain Software fixes (e.g., bug fixes or service pack releases (SCR) or similar releases) or other Support. Sage Clarity is not responsible for Software errors that result from alterations, additions, adjustments or repairs made by third parties other than at Sage Clarity’s direction.
   9. Third Party Software Support. Sage Clarity is not responsible to perform Support for certain Third Party Software, as denoted on an Order, in which case the maintenance and support services, if any, will be available from the third party supplier.

Master Software and Services Agreement – Subscription Addendum

1. 1. Subscriptions: Unless otherwise specified in a Sales Order,
      1. new subscriptions may be added during a Subscription Term at the same price as the underlying subscription and prorated for the portion of that Subscription Term remaining;
      2. c) any added subscriptions will terminate on the same date as the underlying subscriptions; and
      3. d) subscriptions have an auto-renewal provision.
      4. Updates. Any new or modified functionality added to the Software or Services and any updates or enhancements to the Service are subject to the terms of this Agreement. SageClarity reserves the right to deploy updates or enhancements at any time.
   2. TERM, RENEWAL AND TERMINATION
      1. Subscription Term.The Subscription Term for each subscription shall be as specified in the applicable Sales Order. Subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or for one year (whichever is shorter) unless: 1) otherwise provided on a Sales Order; or 2) either party provides written notice of non-renewal at least 90 days prior to the end of the relevant Subscription Term.

Master Software and Services Agreement – Hosting Addendum

1. 1. Hosting: Certain applications may also utilize Hosting Services:
      1. Any software application that require Hosting Services will be identified on the Sale Order form;
      2. c) any Hosting Services will terminate on the same date as the underlying subscriptions; and
      3. d) Hosting Services will have an auto-renewal provision.
      4. Hosting Services are subject to the terms of this Agreement
   2. Software Updates. Any new or modified functionality added to the Software that is being Hosted may require additional services and associated costs for updates.
   3. TERM, RENEWAL AND TERMINATION
      1. Hosting Term.The Hosting Term shall be as specified in the applicable Sales Order. Hosting will automatically renew for additional periods equal to the expiring Subscription Term or for one year (whichever is shorter) unless: 1) otherwise provided on a Sales Order; or 2) either party provides written notice of non-renewal at least 90 days prior to the end of the relevant Hosting Term.

Master Software and Services Agreement – Service Level Addendum

During the Warranty Period and during any Support Term, Sage Clarity shall provide the following Support Services:

1. SUPPORT SERVICE; RESPONSE AND RESOLUTION TIMES. Sage Clarity shall provide Customer with the Support Services described in this Addendum.

(a) Escalation Procedures. The following definitions of escalation levels are to be used as guidelines by Customer and Sage Clarity personnel to define each Party’s obligations before any problem or issue will be escalated to the next defined level. The activities identified are the minimum required and, upon the mutual agreement of both Sage Clarity and Customer, can be supplemented by further actions during the course of the investigation in order to effect a resolution for the issue or problem; however, Customer reserves the right to escalate any issue to any reasonable level at any time based on the impact to Customer’s business as determined by Customer at its sole discretion.

∙ First Level Support – First Level Support will be provided by Sage Clarity’s support center. Sage Clarity’s First Level Support may include a more detailed diagnosis service for identifying complex problems and assistance on issues that include training. Customer’s assistance in defining and documenting the issue may be required.

∙ Second Level Support – If a problem cannot be resolved with First Level Support, Sage Clarity will provide Customer with a designated Service Manager to provide detailed, in-depth product and problem analysis/solutions and use all commercially reasonable efforts to correct problems.

∙ Third Level Support – If a problem cannot be resolved with Second Level Support, Sage Clarity will provide Customer with full access to Sage Clarity’s senior technical consultants for final confirmation and resolution of problem analysis and to formally escalate any unresolved problems to Sage Clarity’s senior management and allocate additional resources, taking into account the severity of the failure.

∙ Telephone Support. Customer will receive unlimited (5) day 8 a.m. to 5 p.m. (Central Standard Time) telephone, e-mail and videoconferencing support. Response time for initial Sage Clarity return contact and resolution times shall be as set forth as described below.

(b) Severity Designations. Customer, at its sole discretion, agrees to use the following severity levels to determine the severity level of any failure of the Licensed Technology:

∙ Severity 1 – Error renders the Licensed Technology inoperable. The Licensed Technology cannot be used and no usable work-around exists. Resulting situation is critical to the operation of the business.

∙ Severity 2 – The Licensed Technology function cannot be used or impacts Customer operations, but a usable work-around exists. Resulting situation has some material and adverse impact on operation of the business, and the work-around allows business to continue with restrictions.

∙ Severity 3 – The Licensed Technology causes Customer negligible immediate impact, yet is desirable to resolve the failure because of restrictions to operations or usability issues to Customer personnel.

(c) Resolution Times. Sage Clarity and Customer agree to the following telephonic response times schedule for errors reported to Sage Clarity utilizing the above severity designations previously defined.

∙ Severity 1 – For Severity Level 1, Sage Clarity’s response time will be sixty (60) minutes from the receipt of Customer’s initial call with updates every sixty (60) (or upon a significant development). An action plan will be developed generally within one (1) hour after recreation of the error condition. Sage Clarity shall solve the problem within 8 hours.

∙ Severity 2 – For Severity Level 2, Sage Clarity’s response time will be sixty (120) minutes from the receipt of Customer’s initial call with updates as determined by Customer (or upon a significant development). An action plan will be developed within eight (8) hours after recreation of the error condition. Sage Clarity shall solve the problem within two (2) days.

∙ Severity 3 – For Severity Level 3, Sage Clarity’s response time will be three (4) hours from the receipt of Customer’s initial call with daily updates. Sage Clarity shall solve the problem within its next Release.

SUPPORT SEVERITY SUMMARY

1. 1. RELEASES. All Releases of the Licensed Technology made available by Sage Clarity to its licensees shall be supplied to Customer at no additional cost, so long as Customer is purchasing Support Services. As part of Support Services, Sage Clarity will use commercially reasonable efforts to continue to ensure that the Licensed Technology maintains compatibility with then current operating systems, databases and other third-party technologies with which the Licensed Technology is intended to interoperate (“Core Technologies”). Sage Clarity shall make those modifications necessary to the Licensed Technology to enable Customer to continue to use the Licensed Technology with Core Technologies, as the Core Technologies continue to be upgraded and updated. Sage Clarity shall maintain a development path and release schedule for the Licensed Technology that takes into consideration developments and changes to Core Technologies to ensure interoperability. All Releases shall be backward- and forward-compatible with the Software and each prior Release. Sage Clarity will notify Customer whenever any Releases are available for licensing by Customer, and will make such Releases available to Customer prior to, or at the same time as, Sage Clarity makes such Release available for use by any other customer of Sage Clarity. At the time that Sage Clarity notifies Customer of any Release, Sage Clarity also will advise Customer of any modifications to Customer’s operating platforms that are necessary in order to ensure that the Licensed Technology continues to function properly should Customer, at its sole discretion, elect to install such Release.
   2. Service Level and data backups- Server uptime is based on the service level provided by Amazon In addition, Sage Clarity’s servers are backed up by Amazon AWS backup services. In the event that a server failure, script routines are in place to automatically reboot the servers. In the event of a catastrophic outage, data can be reconstructed from prior time period data uploads. In addition, Staff are trained and tested on downtime and recovery procedures. Written policies and procedures on downtimes and recovery processes ensure continuity of operations. There is a comprehensive testing and monitoring strategy in place to prevent and manage downtime events