Thunderhead Terms and Conditions
Contents
1. Thunderhead remedies within a reasonable time or ii any indirect special incidental or consequential loss or loss of business profits revenue interest goodwill or anticipated savings or loss or corruption of data or for any damages or sums paid by Customer to a Third Party even if Thunderhead has been advised of the possibility of such damages or iii loss which could have been avoided by the Customer following Thunderhead s reasonable advice and instructions 6 4 Reserved 6 5 Reserved 7 Termination 7 1 Reserved 7 2 Reserved 7 3 Upon expiration or earlier termination of this Agreement the Customer shall notwithstanding perpetuity cease to be entitled to use the Software and shall immediately de install the Software and at Thunderhead s option either return the Software and User Manual to Thunderhead or destroy the Software and User Manual and certify in writing to Thunderhead that all copies of the Software and User Manual have been destroyed 7 4 Reserved 7 5 Having terminated Support under Section 7 4 should the Customer wish to re instate Support the Customer acknowledges that such re instatement is conditional upon payment of all Support Fees which Thunderhead would have received had the Customer not terminated Support Thunderhead acknowledges that should the Customer terminate Support under this Section it shall not affect the right of the Customer to use the Software granted hereunder which shall continue in p2. S3 means a moderate problem with the Software which causes the Software not to operate as designed having only a moderate impact on Customer s use of Software but can be temporarily solved by a Workaround Severity 4 or S4 means a minor problem or general query with the output generated by the Software which can be temporarily solved by a Workaround and Severity 5 or S5 means a minor problem with the Software which is logged and closed as a request for enhancement to be considered for incorporation in a future Upgrade Service Levels means the Response Times and Resolution Times to each Error Severity Level Supported Version s means the Current Version and any previous version of the Software for up to 12 months from the date that it ceased to be the Current Version Fixes means a Temporary Fix or Permanent Fix as the case may be Operating Environment means the operating environment s of the Hardware Platform specified in the relevant Schedule including database server operating system and or application server Patch means a consolidation of one or more Fixes in object or executable code form which are made commercially available by Thunderhead Permanent Fix means the repair or replacement of object or executable code version of the Software to remedy an Error Resolution Time means the elapsed clock time during Office Hours between i Thunderhead s logging
3. COM a subsidiary of n immixGroup issued on the Effective Date and subsequent invoices issued on each anniversary of the Effective Date during the Support Term 111 the Consultancy Fees in advance on the Effective Date 3 2 Thunderhead reserves the right after prior consultation with the Customer to apportion on a pro rata time basis Support Fees to a single date for all items of Software licensed hereunder 3 3 Reserved 3 4 Reserved 3 5 Reserved 3 6 The Customer further agrees that Thunderhead may with effect from the first and each subsequent anniversary of the Effective Date increase the Support Fees 3 7 The Customer agrees that Thunderhead s daily rates for provision of the Consulting Services are exclusive of any expenses incurred by Thunderhead while performing the Consulting Services including but not limited to reasonable travel and living expenses of Thunderhead personnel airfare mileage parking tolls lodging auto rental and per diem meal expense 3 8 The Customer agrees that its right to draw down or otherwise request performance of the Consulting Services shall be for the amounts and within the timeframe as specified in the relevant Schedule The Customer further agrees that if it does not fully utilize any Consulting Services within ninety 90 days of being ordered or the parameters specified in a Schedule it shall not have the right to obtain a refund in respect of any pre paid Consulting Fees which shall be ret
4. and trade secrets and all copyright patents trade marks service marks database right and other intellectual property rights therein are and shall remain the exclusive property of Thunderhead and or its suppliers the owners of the Software All right title and interest in and to any modifications to the Software undertaken by Thunderhead whether or not at the immixTechnology Inc Page 6 reformatted 1 17 2013 THUN DER HEAD COM immixTechnology Inc 8 3 8 4 8 5 8 6 9 2 9 3 9 4 9 5 9 6 9 7 Customer s request shall belong to Thunderhead and or its suppliers as determined by Thunderhead and shall be included in the definition of Software as the case may be for all purposes of this Agreement The Customer shall i keep confidential the Software and limit access to the same to those of its employees agents and contractors who either have a need to know or who are engaged in the use of the same pursuant to the License granted under this Agreement to the Customer ii not remove or otherwise obscure from any copy of the Software Thunderhead s or its suppliers copyright and trademarks or servicemark notice and without prejudice to the foregoing take all other reasonable steps to protect the confidential information and intellectual property rights of Thunderhead and its suppliers in the Software The Customer shall inform all relevant employees agents and contractors that the Software constitutes confiden
5. of Thunderhead under this Agreement are subject to and conditioned upon the timely performance of the Customer s obligations under this Agreement 2 7 Inspection Acceptance The Contractor immixTechnology Inc can only and shall only tender for acceptance those items that substantially conform to the software manufacturer s THUNDERHEAD published specifications Therefore items delivered shall be considered accepted upon delivery The Government reserves the right to inspect or test any supplies or services that have been delivered The Government may require repair or replacement of nonconforming supplies or re performance of nonconforming services at no increase in contract price If repair replacement or re performance will not correct the defects or is not possible the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services The Government must exercise its post acceptance rights 1 Within the warranty period and 2 Before any substantial change occurs in the condition of the item unless the change is due to the defect in the item 3 Charges 3 1 The Customer agrees that Thunderhead will raise the following invoices for the Charges in respect of 1 the License Fees on the Effective Date i1 the Support Fees annually in advance the first invoice being immixTechnology Inc Page 3 reformatted 1 17 2013 THUN DER HEAD immixTechnology Inc
6. of a problem reported by Customer and ii implementation of a Temporary Fix Workaround except for the creation of a Temporary Fix or Workaround of a Severity Level 1 Error where time is unwindowed i e work carries on outside of Office Hours and counts towards calculation of the overall Response Time Response Time means the elapsed clock time during Office Hours between i Thunderhead s logging of a problem reported by the Customer and ii a Thunderhead technical support analyst capable of understanding the problem speaking to Customer s support contact about the problem except in relation to a Severity Level 1 Error where time is unwindowed i e the response may be outside of Office Hours Thunderhead s Website means www Thunderhead com or any successor web site designated by Thunderhead Upgrade means a modification or enhancement software release in object code form containing new enhancements features or functionalities and may be a consolidation of one or more Patches Upgrades are provided to the Customer by Thunderhead as part of Support without payment of additional fees The Customer is solely responsible for implementing Upgrades Workaround or Temporary Fix means a change advised by Thunderhead in the procedures to be followed by Customer to avoid an Error without significantly impairing performance of the Software ERROR SEVERITY LEVELS The table below shows the response time
7. the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the Software and the performance by Thunderhead of its obligations hereunder are hereby excluded to the fullest extent permitted by law 5 2 In the event of a breach of the express warranties contained in Section 5 1 above the Customer s remedy shall be the prompt correction of the breach by the provision of Support 6 Limitation of Liabilities and Disclaimer 6 1 If Thunderhead by its negligence causes injury to or the death of any person then Thunderhead s liability for such injury or death will be limited to 1 000 000 00 One Million Dollars 6 2 If Thunderhead by its negligence or otherwise is responsible for damage to or loss of any physical property of the Customer then Thunderhead s aggregate liability hereunder will not exceed 1 000 000 One Million Dollars 6 3 In all other cases Thunderhead s liability for all losses costs expenses and damages whether arising in contract by reason of negligence or otherwise will not in the aggregate exceed a sum equal to 125 of the License Fees received by Thunderhead at the time of accrual of liability In no event to the extent not prohibited by law will Thunderhead be liable for i loss resulting from any defect or deficiency which immixTechnology Inc Page 5 reformatted 1 17 2013 THUN DER ag immixTechnology Inc a subsidiary of n immixGroup
8. THUN DER HEAD LOM immixTechnology Inc a subsidiary of O immixGroup All references to Thunderhead in these Terms and Conditions should be read as Contractor immixTechnology Inc acting by and through its supplier Thunderhead TERMS AND CONDITIONS FOR THUNDERHEAD PRODUCTS AND SERVICES WHEREBY IT IS AGREED 1 Definitions The expressions listed in this Section 1 and in the Schedules shall have the meanings ascribed to them in this Agreement Agreement means the operative part of this amounts of which required by agreement the Schedule s Customer and any timeframe for and or any other document delivery all being as specified in incorporated by reference which the relevant Schedule s is signed by the authorized CPU the processing element s within representatives of the parties Core s the Hardware Platform Annual those of Thunderhead s products Effective the date of this Agreement Subscription which are marketed and priced Date Based by Thunderhead on an annual Group any company or entity including Module license basis joint venture in which the Business the business operations and Customer holds 50 or more of Use scope of use as specified or the shares or voting power otherwise referred to in Schedule Hardware the various configurations of 1 Platform application server s CPU Cores Charges License Fees Support Fees and operating systems databa
9. ability without rendering invalid or unenforceable or otherwise prejudicing or affecting the remainder of such provision or any other provision of this Agreement immixTechnology Inc Page 10 reformatted 1 17 2013 Support Terms Contact Information There are four ways to contact Support Email support thunderhead com Telephone UK 44 0 8451 309 342 Telephone US Toll Free 877 382 8943 Telephone AUS 61 1300 781579 The preferred method of communication is email except that all Severity 1 and Severity 2 Errors must be reported to Thunderhead by telephone All communications with Thunderhead customer support will be in English Hours of Support Support will be provided on a 9am 5pm or 24x7 Definitions In addition to the terms defined in Section 1 of this Agreement the following terms shall have the following meanings Current Version means the version of Software containing the latest commercially available Upgrade Error means any material and reproducible failure of the Software to operate in accordance with the User Manual Error Severity Levels mean Severity 1 or S1 means a catastrophic problem with the Software which renders Customer s production system at a halt and unable to process data through the Software Severity 2 or S2 means a severe problem with the Software which causes serious disruption to Customer s use of Software in a production system Severity 3 or
10. ained by Thunderhead as additional consideration for performance of any Consulting Services prior to that date 3 9 Reserved 4 Customer s Obligations 4 1 At Thunderhead s reasonable request Customer will verify that the Software is being used in accordance with this Agreement including the locations platforms number of CPU Cores models and serial numbers of the Hardware Platform on which the Software is installed So long as the request does not conflict with reasonable agency regulations Customer shall give Thunderhead reasonable access to Customer s records and systems to verify that the Software is being used in accordance with the terms of this Agreement 4 2 The Customer shall not i copy the whole or any part of the Software except to create a reasonable number of back up archival copies of the Software or ii translate adapt decompile disassemble reverse engineer or modify the Software except to the extent permitted by applicable law or iii at any time transfer publish sell lease rent charge lend sub license distribute or otherwise deal in or encumber the Software in whole or in part for any purpose 4 3 The Customer acknowledges that the Software has been designed for document management generally and not specifically for the Customers particular requirements 4 4 The Customer shall ensure its personnel are trained in the operation of the Software and that the Software is used for its intended purpose and in ac
11. automatically cease should that member cease to be a member of the Group 2 3 Thunderhead reserves all rights not expressly granted herein and except as stated in this Agreement Customer shall make no other use of the Software either for itself or for the benefit of any other person or entity or permit any Third Party to make such utilization whether or not as part of an outsourcing arrangement or as an application service provider The Customer shall have no other rights or licenses with respect to the Software or intellectual property rights of Thunderhead 2 4 Upon execution of this Agreement Thunderhead will i deliver the Software by the date s specified in the relevant Schedule s ii perform the Consulting Services which are hereby requested by the Customer in the manner and at the times specified in the Schedule s and iii perform Support 2 5 The User Manual also specifies whether manufacturers updates to elements of the Hardware Platform continue to be validated to operate with the Software The Customer understands that Thunderhead is not responsible for supplying maintaining supporting or configuring any of the components of the Hardware Platform and it is Customer s sole responsibility to ensure that it uses a Hardware Platform configuration which is stipulated as validated in the User Manual and that all the elements of the Hardware Platform are properly installed configured supported and maintained 2 6 The obligations
12. cordance with the User Manual 4 5 The Customer is responsible for the input and maintenance of Customer data onto the Hardware Platform and for maintaining effective back up procedures such as may be necessary to replace any Customer data in the event of loss or damage regardless of cause These procedures shall include but not be limited to all recommendations made by Thunderhead as well as any measures that a reasonably prudent information technology professional would take to protect its own data including but not limited to the immixTechnology Inc Page 4 reformatted 1 17 2013 THUN DER HEAD immixTechnology Inc COM a subsidiary of n immixGroup regular backup and off site storage of all Customer data required to restore its computer system to full operational capability following any event which caused such loss or corruption of data Thunderhead shall not be responsible or liable for any loss cost expense or damage suffered by Customer or the Group arising from or in connection with Customer s input or maintenance of its data or its failure to maintain effective back up procedures in accordance with this Section 4 5 4 6 Customer agrees to observe all applicable laws and regulations in respect of the Software 4 7 The Customer shall make available to Thunderhead such facilities as Thunderhead shall reasonably require for the provision of the Consulting Services and or Support 4 8 Should the Customer wish to use more User am
13. deral either 24X7 or standard Office Office holidays Hours which may be updated by Hours Thunderhead from time to time Support the initial period of 12 months or Term such other period as may be stated in Schedule 1 from the Effective Date which shall unless specified in Schedule 1 renew automatically for fixed periods of 12 months unless otherwise terminated pursuant to Section 7 4 Third Party means a person or entity other than Thunderhead and Customer immixTechnology Inc Page 2 reformatted 1 17 2013 THUN DER HEAD COM immixTechnology Inc 2 Grant of License Consulting Services and Delivery 2 1 Upon execution of this Agreement by the Parties and in consideration of Customer agreeing to pay the Charges Thunderhead grants to the Customer a non exclusive non transferable perpetual license to use the Software on the Hardware Platform s at the Location s for the benefit of the Group i in respect of Server Based Module upon the number of CPU Core s specified in the Schedule s ii in respect of User Based Module by not more than the number of Users specified in the Schedule s in all cases for Business Use Save as expressly authorized in respect of use by the Group this license is not by implication or otherwise granted to any parent subsidiary or affiliate of the Customer 2 2 The right of a member of the Group to benefit from the Customer s use of the Software hereby authorized shall
14. ead vii changes to the Operating Environment operating software or other hardware or software not authorized by Thunderhead or use of a Hardware Platform configuration which is inconsistent with the User Manual or vili the creation or correction of Java JavaScript XSL XSL FO templates or API integration issues immixTechnology Inc Page 8 reformatted 1 17 2013 THUN DER HEAD immixTechnology Inc COM a subsidiary of n immixGroup 9 9 Thunderhead may at its option offer to perform troubleshooting error correction diagnostic or other services relating to the matters described in Section 9 8 at its then current professional services rates Customer shall reimburse Thunderhead at Thunderhead s then current professional services rates for all time spent troubleshooting an Error that Thunderhead determines was caused by one of the conditions set forth in Section 9 8 but was not identified as such until after Thunderhead began troubleshooting the Error 9 10 Provision of Support as described in this Section 9 is Thunderhead s sole obligation and Customer s sole remedy with respect to the support of the Software Thunderhead shall have no other liability or obligation to Customer with respect to any Errors or other real or perceived problems with the Software 10 Intellectual Property Indemnity 10 1 To the extent permitted by federal law Thunderhead shall indemnify the Customer against any claim that the normal use or p
15. erpetuity 7 6 Upon reinstatement of Support pursuant to Section 7 5 Thunderhead shall provide Customer with all Patches and Upgrades which are supported at the time of reinstatement and are generally released to customers between the termination of Support and their reinstatement and Customer shall promptly install such Patches and Upgrades If the said Patches and Upgrades are not sufficient to bring the Software up to the Supported Version Customer s only option will be to acquire a new license for the Supported Version 8 Title Proprietary Rights and Confidentiality 8 1 Each party hereto agrees that it will keep secret and will not without the prior written consent of the other or disclose to any third party any confidential information relating to the business or affairs of the other including this Agreement or the other s customers learned by such party or disclosed to such party by the other pursuant to or otherwise in connection with this Agreement except insofar as information as aforesaid shall otherwise than by breach of this Agreement or any other agreement or confidentiality obligations be trivial or obvious in the public domain already known by such party or is required to be disclosed by law or any securities exchange or regulatory or governmental body 8 2 The Software and the User Manual contain confidential information of Thunderhead and or its suppliers and represents and embodies certain valuable proprietary information
16. ll provide Thunderhead with sufficient documentation data details and assistance with respect to any reported Errors so as to enable Thunderhead to reproduce and verify the same as an Error Gii Customer shall install all Fixes Patches and Upgrades within thirty 30 days of being made generally available to Customers in accordance with any reasonable instructions issued by Thunderhead iv Customer shall assist Thunderhead to diagnose and correct reported Errors by providing a reasonable access on site or remote as requested by Thunderhead to the applicable Software the Hardware Platform on which such Software is installed and operating b all relevant documentation and records including sample output and other diagnostic information and c personnel trained in the operation of the Software who have authority to implement remedial actions as instructed by Thunderhead Customer acknowledges that failure to provide such assistance will affect Thunderhead s ability to achieve the relevant Resolution Time v Customer shall maintain a current backup copy of all of its programs and data In addition Customer shall implement procedures for the protection of information and the implementation of backup facilities in the event of Errors or a malfunction of the Software vi Customer acknowledges and agrees that the Support Fees are based on the application of the limitations described in this Agreement Customer further acknowledges that Customer
17. ossession of the Software infringes the U S intellectual property rights of any Third Party provided that i Thunderhead is given immediate and complete control of such claim ii the Customer does not prejudice Thunderhead s defense of such claim iii the Customer at Thunderhead s expense gives Thunderhead all reasonable assistance with such claim iv such claim does not arise from an intentional tortious act or the negligence of Customer v such claim is not based upon the use of the Software by Customer in an application or environment for which the Software was not designed or contemplated vi such claim does not arise as a result of modifications and or improvements of the Software introduced or made by Customer vii such claim does not arise as a result of the use of other than the Current Version if such infringement would have been avoided by use of the Current Version and viii such claim does not arise as a result of the use of the Software in combination with any equipment or computer programs not supplied or approved by Thunderhead 10 2 Thunderhead shall at its option have the right to replace or change all or any part of the Software in order to avoid any infringement 10 3 This Section 10 states the entire liability of Thunderhead to the Customer in respect of the infringement of the intellectual property rights of any Third Party 11 Non Solicitation Each of the Parties hereby undertakes to the other that during the fi
18. otice except notice of termination issued pursuant to Section 7 1 which shall either be delivered personally or by recorded delivery first class pre paid mail only may be delivered personally by electronic mail sent to the e mail address supplied on request or by first class pre paid mail or facsimile transmission to the facsimile number of the recipient set out in this Agreement then confirmed by post within 24 hours and shall be deemed to have been served if personally when delivered if by first class mail three Working Days after mailing if by recorded delivery first class pre paid mail when signed for by the recipient and if by facsimile transmission or electronic mail the first Working Day after transmission 14 2 The Customer may assign the whole of this Agreement within the Group without Thunderhead s consent provided the Customer notifies Thunderhead within thirty 30 days of such assignment taking place Thunderhead shall be entitled to assign or otherwise sub contract its rights and obligations hereunder 14 3 No relaxation forbearance delay or indulgence by either party in enforcing any of the terms and conditions of this Agreement or the granting of time by either party to the other shall prejudice affect or restrict the rights and powers of that said party hereunder nor shall any waiver by either party of any breach hereof operate as a waiver of any subsequent or any continuing breach hereof 14 4 No amendment or other variation
19. p Web Based Modules Server Based Modules Annual Subscription Based Modules or Consulting Services than is authorized specified in the relevant Schedule s upon written agreement and payment of all fees in respect of the same the Parties shall document the additional Users CPU Cores Annual Subscription Based Modules and or Consulting Services by issuing a revised Schedule 4 9 The Customer is only licensed to use the Server Based Modules up to the total number of CPU Cores specified in the relevant Schedule Should the Customer use virtualization products such as VMWare those products must be configured so that the Customer s use of the Software shall not exceed the number of CPU Cores specified in the relevant Schedule 4 10 At the request and expense of the Customer Thunderhead will add the Customer to the list of beneficiaries under its multi licensee escrow deposit facility with NCC Escrow International Limited 5 Warranty 5 1 Thunderhead warrants and represents that i it has full right title and power to enter into this Agreement ii it has the necessary authority to grant the License and perform all its obligations pursuant to this Agreement iii the Software will for as long as the Support Fees are received by Thunderhead operate substantially in accordance with the specifications set forth in the User Manual and iv Support and Consulting Services will be performed by suitably skilled and experienced personnel subject to each of
20. rst 5 years of this Agreement and for the period of 12 months following upon its termination howsoever and by whomsoever occasioned it will not directly or by its agent or otherwise and whether for itself or for the benefit of any other person solicit or induce or endeavour to solicit or induce any officer employee or independent contractor of the other to leave that other s engagement nor will it engage any such individual 12 Force Majeure Neither party shall be liable for delay in performing obligations or for failure to perform obligations other than the payment of Charges if the delay or failure results from any of the following Act of God governmental act act of terrorism fire war explosion accident industrial dispute impossibility of obtaining materials computer breakdown or any other such circumstances beyond the party s reasonable control 13 Reference Site immixTechnology Inc Page 9 reformatted 1 17 2013 THUN DER HEAD immixTechnology Inc COM a subsidiary of n immixGroup Customer agrees to be a reference site for Thunderhead and carry out the Reference Site Activities listed in Schedule 1 14 General 14 1 Any notice or other document given by either party to the other under this Agreement shall be in writing and sent to the address of the recipient set out in this Agreement or such other address as that party may advise by notice and marked for the attention of the Company Secretary Any such n
21. s in respect of the Error Severity Levels Error Service Levels Severity Level Response Time Resolution Time Temporary Fix or Permanent Fix Workaround Estimated S1 within 2 Hours 24 Hours 12 Days S2 within 3 Hours 48 Hours 24 Working Days 3 within 4 Hours 10 Working Days 36 Working Days S4 within 5 Working Days Not Applicable Considered for next Upgrade 5 within 5 Working Days Not Applicable Considered for next Upgrade
22. ses Consulting Fees plus taxes as per network applications print Section 3 5 format renderers and other Third Consulting the charges and expenses for Party products as listed in the Fees provision of the Consulting User Manual upon which the Services calculated on a time and Software is validated to operate materials basis at Thunderhead s the Customers configuration daily rates as published from being specified in the relevant time to time Schedule s Consulting the provision during Office Hours License the charge specified in the Services of general Consulting services Fees Schedule s for the right to use including project management the Software delivery installation Location s the Customer s premises implementation creation and or specified in the Schedule s or implementation of a Statement of such alternative address es as Work training the initial notified to Thunderhead by the a immixTechnology Inc Page 1 reformatted 1 17 2013 THUN DER HEAD LOM immixTechnology Inc a subsidiary of n immixGroup Customer Thunderhead means i Thunderhead and any Parties Thunderhead and Customer Entities company or entity including joint perpetual the period of 70 years from the venture in which Thunderhead s or Effective Date subject to prior parent company Thunderhead perpetuity termination pursuant to Section Limited holds 50 or more of the 7 1 shares or
23. tial information of Thunderhead and or its suppliers and that all intellectual property rights therein are the property of Thunderhead and or its suppliers and the Customer shall take all reasonable steps to require compliance by its employees agents and contractors with the provisions of this Section 8 Customer acknowledges that the owners of the Software will suffer irreparable harm should Customer fail to abide by the terms and conditions listed herein or otherwise referred to and that such owner shall in addition to recovering damages be entitled to obtain injunctive relief from a court of competent jurisdiction to enjoin Customer from infringing the owners proprietary rights in the Software This Section 8 shall survive termination of this Agreement howsoever arising Support The Customer requests and Thunderhead agrees to provide Support for the Support Term Thunderhead s obligations under this Section 9 only apply during the Support Term Support is only available in the English language in respect of Supported Versions and is provided solely at Thunderhead s Website via email or telephone or in any combination thereof Thunderhead will log all problems with the Software reported by the Customer in accordance with the procedure set out in the relevant Schedule Upon identification of any Error Customer shall provide Thunderhead with enough information to reproduce the Error If Thunderhead is unable to replicate the problem Thunderhead
24. to this Agreement shall be effective unless it is in writing is dated and is signed by or on behalf of each of the Parties 14 5 The provisions of this Agreement and the Schedules hereto as in effect from time to time by its terms constitute the entire agreement between the Parties in relation to the Software and supersedes all communications negotiations representations and agreements whether written or oral of the Parties with respect thereto made prior to the date of this Agreement Any terms contained in Customer s purchase orders invoices acknowledgements or other forms that are inconsistent with or different from the terms of this Agreement shall be void and of no effect In the event of any conflict or inconsistency between any Section of this Agreement and the terms of any Schedule the Section shall prevail unless the relevant Section specifically states that the term in the Schedule will prevail 14 6 Reserved 14 7 The text of this Agreement is written in the English Language and any difficulties or uncertainties in interpretation arising shall be solved by reference to the English text and each party shall be responsible for its own costs incurred in making any translations of this Agreement 14 8 Reserved 14 9 If any provision of this Agreement or any part of any such provision is held to be invalid or unenforceable such provision or part as the case may be shall be ineffective only to the extent of such invalidity or unenforce
25. voting power and ii Server those of Thunderhead s products the officers employees Based which are marketed and priced contractors and agents of the Module by Thunderhead on a per CPU entities referred to in i above Core basis User Based those of Thunderhead s products Software the object code or executable Module which are marketed and priced by versions of the Server Based Thunderhead based on the Modules and or the User amp Web number of Users Based Modules of the computer User information supplied by software listed in Schedule 1 Manual Thunderhead concerning Statement a description of how the Software functionality and or performance of Work is to be deployed as may be of the Software at its discretion in jointly agreed and implemented either written or electronic form as part of the Consulting Services which may be updated by and once agreed attached as a Thunderhead from time to time Schedule to this Agreement User s named individuals who are Support the aggregate annual charge permitted to use those of Fees specified in the Schedule s for Thunderhead s products which the right to receive Support as are marketed and priced by may be increased from time to Thunderhead on a per named time pursuant to Section 3 6 User basis Support technical support of the Software Working 9 AM to 5 PM EST Monday to as specified in Schedule 2 being Day or Friday excluding U S Fe
26. will be solely responsible for all maintenance and support of its own software data and equipment as well as the Hardware Platform configuration it may be using in conjunction with the Software Thunderhead shall have no liability for any loss or corruption of any such software data equipment and or the Hardware Platform configuration however caused Thunderhead shall have no obligation to provide Support in connection with any Error questions or problems that arise from i any modification customization alteration or addition to Software or attempt thereof made by Customer excluding configuration changes to Customer s database permitted by the User Manual or at Thunderhead s direction ii use of the Software a in a manner other than described in the User Manual b in conjunction with software equipment or an operating environment that was not the Operating Environment or c in any way not permitted under the Agreement ii1 the negligence or intentional misconduct of any user of the Software iv any patch or upgrade to the Operating Environment or other hardware or software unless Thunderhead has notified Customer of its support for such patched or upgraded Operating Environments v the malfunction of any element of the Operating Environment or any equipment not provided by Thunderhead vi failure by the Customer to implement reasonable recommendations in respect of or solutions to Errors previously advised by Thunderh
27. will request a second sample If Thunderhead is still unable to replicate the problem from this second sample then Thunderhead will close the reported problem Thunderhead will notify Customer as soon as possible if it determines that no Error exists or if Thunderhead is unable to reproduce the reported problem Thunderhead shall use all reasonable endeavours to correct any Error in the Software with a level of effort commensurate with the Error Severity Levels as determined by Thunderhead within the Resolution Time Thunderhead will make Patches and Upgrades available to Customer within a reasonable time after their publication Thunderhead usually provides an Upgrade every 12 months with Patches as required Support does not include any training services and the offering of any such services shall be at the sole option of Thunderhead and subject to additional fees and charges to be agreed separately for each such situation Thunderhead s provision of Support is contingent on Customer s compliance with the following additional obligations immixTechnology Inc Page 7 reformatted 1 17 2013 THUN DER HEAD immixTechnology Inc COM a subsidiary of n immixGroup 9 8 i Customer s personnel shall be trained in the operation of the Software have professional knowledge and experience of software products sufficient for proper interaction with Thunderhead technical staff in matters of support of the Software ii Customer sha
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