The parties agree as follows:

1. Services

Service Provider agrees to provide Customer the services described in “Appendix A”. Service Provider may from time to time change the Services provided to Customer under this Agreement. In the event such change materially alters or decreases the Services, Customer may terminate this Agreement by giving Service Provider ninety (90) days written notice of termination.

2. Term and Termination.

(a) Term. The Initial Term of this Agreement is 36 months commencing on the Effective Date. Thereafter, unless terminated in accordance with the terms of this Agreement, this Agreement will automatically renew, on each anniversary date, for an additional twelve-month term. (b) Termination. This Agreement may be terminated as follows: (i) Either party may terminate this Agreement at the end of a contract term with ninety (90) days' written notice to the other party prior the end of the initial or additional term; (ii) Upon Service Provider's failure to perform or observe any material term or condition of this Agreement and failure to correct within thirty (30) days after receipt of written notice from Customer of such failure, Customer may terminate the Services affected by such breach; or (iii) Upon Customer's failure to pay any outstanding charges within ten (10) days of receipt of written notice from Service Provider of delinquency, Service Provider may terminate this Agreement immediately.

3. Prorietary Rights.

(a) Ownership. Service Provider shall retain and own all right, title and interest and all Intellectual Property in and to the Services and nothing herein transfers or conveys to the Customer any ownership right, title or interest in or to the Service or any license right with respect to same not expressly granted herein. As used herein, “Intellectual Property” shall include, without limitation, copyrights, trade-secrets, service names, trademarks(including the Service Provider Marks), trade-names, domain names, patents, know-how, formulation, data, technology, designs, inventions, improvements, discoveries, processes, models or sales, financial, contractual and marketing information and all other intellectual or industrial property and like rights whether or not registered and the applications thereof.
(b) License Grant. Subject to the terms and conditions of this Agreement, including the payment of applicable fees, Service Provider grants Customer a non-exclusive, non-transferable, non-sub-licensable right to access and use the Services for the purpose for which it is made available to Customer.
(c) Reservation of Rights. Customer acknowledges that in providing the Services, Service Provider may utilize (i) the customer name, the customer logo, the customer domain name, the product names associated with the Services and other trademarks; (ii) certain methodology, information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, 2 processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions, look and feel of the Services and other tangible or intangible technical material or information (collectively " Service Provider Technology") and that the Service Provider Technology is the exclusive property of the Service Provider, contains valuable trade secrets and Confidential Information of Service Provider, and is covered by Intellectual Property rights owned or licensed by the Service Provider. Other than as expressly set forth in this Agreement, no license or other rights in the Service Provider Technology or the Services are granted to Customer, and all such rights are hereby expressly reserved. Nothing contained in this Agreement shall be deemed to convey to Customer any right, title or interest in or to the Services or data therein or the Service Provider Technology, except to the extent of the limited license granted in this Agreement.
(d) Restrictions. Customer shall not (i) modify, copy or make derivative works based on the Service Provider Technology or the Services; (ii) disassemble, reverse engineer, or decompile any of the Service Provider Technology; or (iii) sell, sublicense, transfer or make available the Service Provider Technology or the Services to any third parties.

4. Payment

(a) Fees. Schedule Fees, described in “Appendix A”, will be invoiced to Customer on a Monthly basis, and will become due and payable on the first day of each month. Services will be suspended if payment is not received within 5 days following date due.
(b) Taxes. It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services or materials rendered under this Agreement. The Customer shall pay any such taxes unless a valid exemption certificate is furnished to Service Provider for the state of use.
(c) Individual Services. It is understood that any and all Services requested by the Customer that fall outside of the terms of this Agreement will be considered Individual Services and will be quoted and billed separately.

5. Modifications of Services and Pricing.

In order to ensure that Service Provider's level of Service keeps pace with Customer's needs, the Service Provider and the Customer may agree from time to time to modify the Services and prices described in this Agreement. The Service Provider and the Customer shall negotiate any such modifications and any corresponding adjustments in prices in good faith and such modifications shall be agreed to in writing.

6. Warranty.

(a) Warranty. Service Provider shall perform the Service in a workmanlike manner and in accordance with generally accepted industry standards. Customer must notify the Service Provider of any failure to so perform within ten (10) days after the date on which such failure first occurs. If the Service Provider is unable to correct and/or re-perform the Service within a reasonable time, then Service Provider’s entire liability and Customer’s exclusive remedy for failure to so perform shall be at Customer’s sole option and upon written notice to Service Provider, termination of the affected Services forthwith and Service Provider shall refund the remainder of any unused fees paid in advance by Customer for the affected Service and which remain undelivered as of the termination date.
(b) Disclaimer and Exclusions. Except as expressly stated in Section 6(a) above, the Service Provider (including its suppliers, subcontractors, employees and agents) provides Services “AS IS” and makes no other express or implied warranties, written or oral, and ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, 3 FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. NOTHING HEREIN IS INTENDED TO CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY THE SERVICE PROVIDER TO ANY THIRD PARTY, (INCLUDING END USERS), DIRECTLY OR AS A THIRD PARTY BENEFICIARY, WITH RESPECT TO ANY OF THE SERVICES PROVIDED HEREUNDER.

7. Limitation of Liability.

In no event shall Service Provider be held liable for indirect, special, incidental or consequential damages arising out of service provided hereunder, including but not limited to loss of profits or revenue, loss of use of equipment, lost data, costs of substitute equipment, or other costs.

8. Indemnity.

Service Provider shall (i) defend Customer against any third party claim that the Services and the related materials provided by the Service Provider to Customer infringe a patent, or a copyright enforceable in a country that is a signatory to the Berne Convention, and (ii) pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction or the amounts stated in a written settlement signed by the Service Provider. Customer shall (i) defend the Service Provider against any third party claim that the materials provided by Customer or its agents for use by the Service Provider infringe a patent, or a copyright enforceable in a country that is a signatory to the Berne Convention, and (ii) pay the resulting costs and damages finally awarded against the Service Provider by a court of competent jurisdiction or the amountsstated in a written settlementsigned by Customer. The foregoing obligations are subject to the following: the indemnitee (a) notifies the indemnitor promptly in writing of such claim,
(b) grants the indemnitor sole control over the defense and settlement thereof,
(c) reasonably cooperates in response to an indemnitor request for assistance, and (d) is not in material breach of this Agreement. Should such a claim be made, or in the indemnitor’s opinion be likely to be made, the indemnitor may, at its option and expense, (1) procure for the indemnitee the right to make continued use thereof, (2) replace or modify such so that it becomes non-infringing, (3) request return of the subject material, or (4) discontinue the Service and refund the portion of any pre-paid Service fee that corresponds to the period of Service discontinuation. The indemnitor shall have no liability under this Section 8 to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of the subject Services and/or materials with third party products or services, (B) use for a purpose or in a manner for which the subject Services and/or materials were not designed, (C) any modification to the subject Services and/or materials made by anyone other than the indemnitor or its authorized representatives,
(D) any modifications to the subject Services and/or materials made by the indemnitor pursuant to the indemnitee’s specific instructions, or (E) any technology owned or licensed by the indemnitee from third parties. THIS SECTION STATES THE INDEMNITEE’S SOLE AND EXCLUSIVE REMEDY AND THE INDEMNITOR’S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS.

9. Confidentiality.

(a) Confidential Information. “Confidential Information” means the terms of this Agreement and all confidential and proprietary information of Service Provider or Customer, including without limitation all business plans, product plans, financial information, software, designs, formulas, methods, know how, processes, materials provided to Customer in the course of performing Services under this Agreement, and technical, business and financial data of any nature whatsoever (including, without limitation, 4 any marketing, pricing and other information regarding the Services), provided that such information is marked or designated in writing as “confidential,” “proprietary,” or any other similar term or designation. Confidential Information does not include information that is (i) rightfully in the receiving party’s possession without obligation of confidentiality prior to receipt from the disclosing party; (ii) a matter of public knowledge through no fault of the receiving party; (iii) rightfully furnished to the receiving party by a third party without restriction on disclosure or use; or (iv) independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information. Each party shall (i) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this Agreement and (ii) use at least reasonable care to protect from disclosure to any third parties any Confidential Information disclosed by the other party for a period from the date hereof until three (3) years following the later of the termination date of this Agreement. However, that Confidential Information that constitutes, contains or reveals, in whole or in part, Service Provider proprietary rights shall not be disclosed by the receiving party at any time. Notwithstanding the foregoing, a receiving party may disclose Confidential Information pursuant to a valid order of a court or authorized government agency provided that the receiving party has given the disclosing party prompt notice, to the extent legally permissible, so that the disclosing party will have an opportunity to defend, limit or protect againstsuch disclosure.
(b) References. Service Provider may identify Customer for reference purposes unless and until Customer expressly objects in writing.
(c) Performance Tests. Customer may not disclose the results of any performance tests of a Service to any third party without Service Provider’s prior written approval. Notwithstanding the foregoing, (i) Service Provider may disclose Customer Confidential Information to an Affiliate or contractor (who is under an obligation of confidentiality) for the purpose of fulfilling Service Provider’s obligations or exercising Service Provider’s rights hereunder so long as Service Provider and its Affiliates comply with the confidentiality obligations above.

10. Notices.

Any notices permitted or required under this Agreement shall be in writing and shall be deemed given when delivered (i) in person; (ii) by overnight courier, upon written confirmation of receipt; (iii) by certified or registered mail, with proof of delivery; (iv) by facsimile transmission with confirmation of receipt; or (v) by email, with confirmation of receipt. Notices shall be sent to the address, facsimile number or email address set forth above, or at such other address, facsimile number or email address as provided to the other party in writing.

10. Notices.

This Agreement shall be governed by the laws of the State of California. It constitutes the entire Agreement between the parties with regard to the subject matter hereof and may be modified only by a writing signed by authorized representatives of both parties. Service Provider is not responsible for failure to render services due to circumstances beyond its control including, but not limited to, acts of God.

12. Force Majeure.

Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, labor strike, or an act that is beyond the reasonable control 5 of either party, provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) days of discovery and uses its best efforts to continue to so perform or cure. In the event of such a force majeure, the time for performance or cure shall be extended for a period equal to the duration of the force majeure. 13. Acceptance of Service Agreement. This Agreement covers only those services listed in “Appendix A.” Service Provider must deem services Customer may want to add to this Agreement after the effective date acceptable. The addition of Services not listed in “Appendix A” at the signing of this Agreement, if acceptable to Service Provider, shall result in an adjustment to the Customer’s monthly charges. IN WITNESS WHEREOF, the parties hereto have caused this Service Agreement to be signed by their duly authorized representatives as of the date set forth below.

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