MASTER SERVICES AGREEMENT

Effective as of 15-March-2009

PRECISE SOFTWARE SOLUTIONS, INC. AND/OR ITS AFFILIATES (“PRECISE”) IS WILLING TO PROVIDE SERVICES TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE LICENSED SOFTWARE (REFERENCED BELOW AS “CUSTOMER”) ONLY ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS OF THIS MASTER SERVICES AGREEMENT (“AGREEMENT”).

READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND PRECISE. BY CLICKING THE “I AGREE” OR “YES” BUTTON, OR OTHERWISE INDICATING ASSENT, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF CUSTOMER DOES NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE “I DO NOT AGREE” OR “NO” BUTTON OR OTHERWISE INDICATE REFUSAL. UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS WILL HAVE THE MEANING GIVEN IN THE “DEFINITIONS” SECTION OF THIS AGREEMENT AND SUCH CAPITALIZED TERMS MAY BE USED IN THE SINGULAR OR IN THE PLURAL, AS THE CONTEXT REQUIRES.

1. Definitions.  Capitalized terms shall be defined as set forth below or elsewhere in this Agreement.

(a) “Customer Materials” means any data or materials, provided by Customer, that are used in connection with the Work Product.

(b) “Work Product” means the items to be delivered to Customer in connection with Services Precise performs pursuant to Exhibit A, such as consulting reports, on-site training, Software integration work or Software modifications.

(c) “Software” means those components of Precise proprietary software provided pursuant to this Agreement or separately licensed by Customer.

(d) “Services” means Precise’s commercially available professional services offerings.

2. Performance of Services.

(a) Statements of Work.  Each professional services project Precise undertakes shall be described in statements of work (each a “Statement of Work” or “SOW”) setting forth the agreed upon scope of the Statement of Work,  and estimated pricing and payment terms and, if applicable, project schedule, Work Product, and estimated delivery dates.  Both parties shall execute each Statement of Work and each is incorporated into this Agreement.  If there is a conflict between the terms set forth in this Agreement and a Statement of Work, the terms set forth in the applicable Statement of Work will control.

(b) Delivery and Cooperation.  Customer acknowledges that Customer’s cooperation is essential to the timely performance of Precise Services.  Customer will, to the extent required in connection with the performance of Precise Services: (i) provide Precise with any necessary Customer Materials; (ii) provide Precise with any necessary access to Customer’s personnel, facilities or data; (iii) cause the appropriate personnel to cooperate with Precise as required for Precise to provide Precise Services, including responding promptly to questions or issues; and (iv) make all payments when due.  Customer’s delay or failure to do so may delay the estimated delivery schedules set forth in the Statement of Work.  If Customer fails to do any of the foregoing, both parties will cooperate in good faith to develop a revised written delivery schedule and written Statement of Work or change order signed by both parties with new pricing.

(c) Place of Performance.  If Precise personnel, agents or representatives are required to travel to a location other than one of Precise facilities, Customer will pay or reimburse Precise upon invoice for all reasonable travel expenses including airfare, ground transportation, lodging and meals for personnel required to travel.  Precise will adhere to Precise’ corporate travel policies and provide a copy, if requested by Customer, unless other agreements are made prior to undertaking a project.  Services to be provided on-site at Customer’s facilities will be scheduled in advance by agreement of each party. Both parties will use reasonable efforts to accommodate any requested change in the scheduled dates for on-site Services, subject to the availability of appropriate personnel. Customer will also reimburse Precise upon invoice for Precise’ out-of-pocket expenses in connection with the performance of Services as set forth in the applicable Statement of Work.  At Customer’s request, Precise will provide receipts or other reasonably satisfactory evidence of such expenses.

(d) Qualified Personnel.  Precise will provide all Services in accordance with current industry standards and practices using qualified personnel with the necessary skills, qualifications and experience to provide the Work Product in accordance with the applicable Statement of Work.  All personnel providing Services will be Precise employees acting within the scope of their employment and under obligation to assign all rights in the Work Product to Precise, or will be independent contractors under written obligation to assign all such rights to Precise.

3. Payment Terms. 

(a) Unless otherwise stated in the Statement of Work, Customer will pay Precise at the then-current prevailing hourly rate.  Rates are subject to change.  Precise will invoice Customer on a time and materials basis at the end of each month at the billing rates set forth in the Statements of Work for work performed on each Statement of Work during the previous month.  Payment is due thirty (30) days from the date of invoice. Invoices will include a summary of all time expended for each personnel classification providing Services during the month.

(b) Customer agrees to pay a finance charge equal to the lesser of one-and-a half percent (1.5%) per month or the maximum amount permitted by law on all past due amounts.  All prices and payments in this Agreement are exclusive of all taxes, and Customer agrees to pay all national, state and local sales, use, value‑added, withholding and other taxes, customs duties and similar tariffs and fees based on the Services provided hereunder, other than taxes imposed on Precise net income. 

4. Termination of Projects.

Customer may terminate any Statement of Work for any reason upon thirty (30) days prior written notice to Precise.  If any particular Statement of Work is terminated for any reason other than an uncured breach by Precise, after receiving thirty (30) days prior written notice from Customer, then Precise shall deliver the work completed on the Work Product then in process and be paid for all Services performed through effective date of termination based on the actual time expended for time and materials projects.  Customer will not be entitled to any refund of amounts previously paid under a Statement of Work if Customer elected such early termination.

5. Changes to Work Product. 

Customer may request changes to the scope of a Statement of Work.  Any changes to the scope of a Statement of Work shall result in a change order to such Statement of Work or a new Statement of Work.  Notwithstanding the foregoing, if there are any changes to the scope of a Statement of Work and the changes result in an increase in the fees up to ten thousand dollars ($10,000.00) or ten (10) percent of the estimated total cost, whichever is less, then Precise will continue to provide the professional Services, including the additional work, under such Statement of Work without the need to execute a change order or a new Statement of Work.  Customer will pay Precise for all Services provided under a Statement of Work.  All change orders and new Statements of Work will also be billed on a time and materials basis. Any scope changes shall be made pursuant to the terms set forth in a Statement of Work, to be mutually agreed upon by the parties.

6. Ownership and Copyright.

(a) Ownership Rights. Subject to Precise’s rights in Precise Information and Precise Derivative Work as each are defined below, all deliverables created specifically for and provided to Customer by Precise under an SOW will, upon final payment, become the property of Customer for Customer’s internal business purposes. Any inventions, designs, intellectual property or other derivative works of Precise Information, will vest in and be the exclusive property of Precise (“Precise Derivative Work”). Any inventions, designs, intellectual property or other derivative works of Customer Information, as defined below, will vest in and be the exclusive property of Customer (“Customer Derivative Work”).

(b) Pre-Existing Work. Any pre-existing proprietary or Confidential Information of Precise or it’s licensors used to perform the Services, or included in any deliverable, including but not limited to software, appliances, methodologies, code, templates, tools, policies, records, working papers, know-how, data or other intellectual property, written or otherwise, including derivative works will remain the exclusive property of Precise and its licensors (collectively, “Precise Information”). To the extent that Precise incorporates any Precise Information into the deliverable(s), Precise hereby grants to Customer a non-exclusive, non-transferable license to use such PreciseInformation at no additional charge solely for Customer’s internal business purposes, in accordance with the limitations set forth in this Agreement and any applicable SOW. Any Customer’s pre-existing information, including but not limited to any Customer’s proprietary and Confidential Information of a similar nature to Precise Information provided to Precise by Customer will remain the exclusive property of Customer or its licensors (“Customer Information”). 

(c) Retention. Customer acknowledges that Precise provides similar services to other customers and that nothing in this Agreement will be construed to prevent Precise from carrying on such business. Precise has the right to retain and use internally copies of the deliverables, provided, however, that nothing in this Agreement will allow either party to distribute, disclose or create derivative works of the other party’s Information.

7. Intellectual Property Indemnity

(a) Indemnity.  Subject to the limitations of Section 7(b), Precise will defend, at its own expense, any claim, suit or proceeding brought by a third party against Customer to the extent it is based upon a claim that any Service (“Indemnified Product”) obtained and used pursuant to this Agreement infringes upon any copyright or United States patent, or misappropriates a trade secret of any third party (“Claim”) provided that Customer: (i) promptly notifies Precise in writing of any Claim, (ii) gives Precise full information and assistance in connection therewith, and (iii) gives Precise the sole right to control the defense of and settle or compromise any Claim. Precise will pay all damages, costs, and expenses finally awarded to third parties against Customer in such action or agreed to in settlement by Precise. If an Indemnified Product is, or in Precise's opinion might be, held to infringe or misappropriate as set forth above, Precise may, at its option and expense replace or modify such Indemnified Product with a Precise program or Service substantially similar in functionality so as to avoid infringement or misappropriation, or procure the right for Customer to continue the use of such Indemnified Product. If neither of such alternatives is, in Precise's opinion, commercially reasonable, such Indemnified Product shall be returned to Precise, or Precise shall cease providing such Service to Customer, and Precise shall refund the fees paid by Customer to Precise for such Service. The refund for Services shall be the pro-rated unused portion of prepaid fees for such Services. 

(b) TO THE FULLEST EXTENT PERMITTED BY LAW,  THE FOREGOING STATES PRECISE’S ENTIRE LIABILITY TO CUSTOMER FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, INCLUDING BUT NOT LIMITED TO PATENT, COPYRIGHT, TRADEMARK, AND TRADE SECRET RIGHTS, AND IS IN LIEU OF AND REPLACES ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS REGARDING INFRINGEMENT OR MISAPPROPRIATION. 

(c) Limitations.  Precise will have no liability for, and no obligation to defend Customer against any claim of infringement to the extent such claim is based on: (i) use of an Indemnified Product outside the scope of this Agreement, (ii) use of a superseded or altered release of an Indemnified Product, (iii) the combination, operation, or use of an Indemnified Product with software, hardware or other materials not specified in the Documentation, (iv) any modification of the Indemnified Product not made or authorized in writing by Precise, or (v) Customer’s use of the Indemnified Product after Precise’s notice to Customer that it shall cease use of the Indemnified Product due to such claim.  The above exclusions apply to the extent that the infringement would have been avoided but for such improper use.

8. Limitation of Liability.

(a) IN NO EVENT WILL PRECISE OR PRECISE SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES OR LOST PROFITS ARISING FROM, CONNECTED WITH, OR RELATED TO THIS AGREEMENT, WHETHER SUCH LIABILITY IS FORESEEABLE, EVEN IF PRECISE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE. Some jurisdictions do not allow limitation or exclusion of incidental or consequential damages, so the above limitation or exclusion may not apply to Customer.  THE LIMITATIONS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL PRECISE’S AGGREGATE CUMULATIVE LIABILITY FOR ANY DAMAGES, DIRECT OR INDIRECT, ARISING FROM, IN CONNECTION WITH, OR RELATED TO THE WORK PRODUCT EXCEED THE AMOUNT PAID HEREUNDER WITH RESPECT TO SUCH WORK PRODUCT WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE.  NOTWITHSTANDING THE FOREGOING, PRECISE’S TOTAL LIABILITY ARISING FROM, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY PRECISE FROM CUSTOMER UNDER THIS AGREEMENT.  THE LIMITATIONS OF THIS SECTION 8(b) DO NOT APPLY TO PRECISE OBLIGATION OF INDEMNITY PURSUANT TO SECTION 7.

9. Term and Termination.

(a) Term and Termination.  The term for the Work Product is subject to termination for breach as set forth herein.  Precise may terminate this Agreement if Customer fails to materially comply with any of the terms and conditions hereof and Customer fails to correct such non-compliance within thirty (30) days following written notice. Failure to make timely payments is a material breach of this Agreement.  Subject to applicable law, Precise also may terminate this Agreement or any active Statements of Work without prior notice or Customer’s consent if: (i) a receiver is appointed for Customer or Customer’s property; (ii) Customer makes an assignment for the benefit of Customer’s creditors; (iii) any proceedings are commenced by, for or against Customer under any bankruptcy, insolvency or debtor's relief law; or (iv) Customer commences steps to liquidate or dissolve. 

(b) Effect Upon Termination.  Upon termination of this Agreement, any licenses granted herein shall cease and Customer shall discontinue all use of the Work Product and destroy any copies thereof in Customer’s possession or control.  Any obligation of either party which accrued prior to termination, including without limitation any payment due and owing, and Sections 1 (Definitions), 6 (Ownership and Copyright), 7 (Intellectual Property Indemnity), 8 (Limitation of Liability), 10 (Confidential Information), and 11 (Miscellaneous) shall survive the termination of this Agreement.  Termination of this Agreement shall also terminate all then current Statements of Work.   

(c) Effect of Bankruptcy.  In the event that Customer becomes the subject of any voluntary or involuntary proceeding bankruptcy, liquidation, dissolution, receivership or attachment or make a general assignment for the benefit of creditors, amounts that have been paid to Precise are hereby deemed earned  upon receipt and are Precise sole property, irrespective of whether Services,  have been delivered and may be applied, in whole or in part, in satisfaction of any obligations owed by Customer to Precise under this Agreement or any other agreement between Customer and Precise.

10. Confidential Information.

(a) “Confidential Information" means (i) a party’s proprietary technology or computer software in all versions and forms of expression, whether or not the same has been patented or the copyright thereto registered, is the subject of a pending patent or registration application, or forms the basis for a patentable invention (collectively the "Proprietary Technology"); (ii) manuals, notes, documentation, technical information, drawings, diagrams, specifications, formulas or know-how related to any of the Proprietary Technology; (iii) information regarding current or proposed products, customers, contracts, business methods, financial data or marketing data, financial results and projections, company and market strategy, product roadmaps, product and competitive sales analysis and plans, product or marketing plans, pricing plans or structures, personnel and recruiting matters, and future releases; and (iv) offers or proposals which are provided by a Discloser, including, but not limited to, the fees charged by Discloser and such Confidential Information is either (1) in tangible or other form and labeled “confidential” or the like, or (2) in a non-tangible form, including, but not limited to, oral information and is followed up within two (2) weeks in a tangible form that is appropriately labeled.

(b) A party receiving Confidential Information (“Recipient”) of the other party (“Discloser”) shall: (i) not disclose the Confidential Information to any third party at any time and Recipient shall limit disclosure of Confidential Information within its own organization to its employees or its legal, financial and accounting advisors having a need to know and who have agreed to be bound by the terms of this Agreement; and (ii) protect the confidentiality of the Confidential Information with at least the same degree of care as Recipient uses to protect its own Confidential Information of a like nature, but no less than a reasonable degree of care.  Recipient shall be entitled to disclose Confidential Information solely to the extent necessary to comply with a court order or as otherwise required by law or by a regulatory agency or government body, provided that Recipient shall first give notice to Discloser and make a reasonable effort to obtain a protective order to protect the confidentiality of the information.  If such protective order is not obtained, Recipient agrees to disclose only that portion of the Confidential Information which it is legally required to disclose.  Recipient shall immediately notify Discloser of any actual or suspected unauthorized disclosure of Confidential Information. Recipient shall not modify, reverse-engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information without Discloser’s prior written consent.

(c) The obligations described in Section 10(b) imposes no obligation upon Recipient with respect to any Confidential Information which (i) is or becomes a matter of public knowledge through no fault of Recipient; ii) is rightfully received by Recipient from a third party without a duty of confidentiality to a third party by, or with the authorization of, Discloser; (iii) is disclosed without a duty of confidentiality; or (iv) is independently developed by Recipient.  The burden of proving any of the above exemptions is on Recipient.

(d) Upon the written request of Discloser, Recipient shall immediately destroy or return to Discloser, as requested by Discloser, all Confidential Information of Discloser in its possession, together with all records in any manner pertaining to any of Discloser's Confidential Information.  Recipient shall also, upon the written request of Discloser, furnish Discloser with a certificate of an officer verifying that all of the foregoing have been destroyed or returned to Discloser.

(e) The terms set forth in this section replace any prior non-disclosure agreement executed between the parties. 

11. Miscellaneous.

(a) Entire Agreement, Modifications, and Waivers.  This Agreement, including all Exhibits hereto, contains the Parties entire agreement with respect to the subject matter hereof, superseding and replacing any and all prior and contemporaneous agreements, understandings, offers and communications, both written and oral, between the Parties.  All Exhibits are incorporated into this Agreement by reference, and all references to “this Agreement” in any Exhibit include all other Exhibits hereto.  This Agreement may not be modified except by written instrument signed by both parties and referring to the particular provisions to be modified.  All terms, conditions, or provisions which may appear as pre‑printed language or otherwise be inserted within any purchase order shall be of no force and effect notwithstanding the acceptance of such purchase order after the date of this Agreement.  If any provision of this Agreement is declared invalid or unenforceable, then the court shall replace the invalid or unenforceable provision with a valid and enforceable provision that most accurately reflects the parties’ intentions and the remaining provisions of this Agreement shall remain in full force and effect.   Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.  Wherever the term “including” is used, it shall mean “including, but not limited to”.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original for all purposes, and together shall constitute one and the same agreement.

(b)Headings, Advice of Counsel, and Drafting.  Headings used in this Agreement are provided for convenience only and will not in any way affect the meaning or interpretation of each section.  The parties acknowledge that they have been advised by counsel of their own choosing, played equal parts in negotiating this Agreement and that its terms will be interpreted without any bias against one party as drafter. 

(c)Governing Law.  This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and shall be governed by the internal laws of the State of California, excluding its conflict of law rules, and applicable federal law.  The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act are expressly disclaimed. 

(d)Attorney's Fees.  The prevailing party in disputes concerning this Agreement shall be entitled to the costs of collections and enforcement, including but not limited to reasonable attorney's fees, court costs and all necessary expenses.  Notwithstanding anything in this Agreement to the contrary, in the event of Customer’s bankruptcy or insolvency, Precise will be entitled to recover from Customer Precise’s costs and expenses, including, without limitation, reasonable attorneys’ fees and costs, that Precise incurs in enforcing and/or otherwise protecting Precise rights and remedies under this Agreement or amendments and modifications thereto.

(e) Notices.  All notices, requests, demands or other communications which are required or may be given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been duly given if sent by a nationally recognized overnight express courier. 

Notices shall be delivered to the following: 
Precise Software Solutions, Inc.
3 Twin Dolphin Drive
Suite 350
Redwood Shores, CA 94065

Attn:  General Counsel

(f) Force Majeure.  Neither party shall be in default if its failure to perform any obligation under this Agreement (other than obligations to make payments when due) is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, war, terrorism, civil commotion, strikes, labor disputes, Internet Service interruptions or slowdowns, vandalism or “hacker” attacks, or governmental demands or requirements.

(g) Publicity.  Customer authorizes Precise to publicly disclose that Customer is a customer and to use Customer’s name and logo to identify Customer as a customer.  Customer agrees that Precise may issue a press release upon execution of this Agreement announcing this Agreement and describing the general nature of the Services Precise provides to Customer.  Precise will obtain Customer’s prior approval if Precise discusses information outside the scope of the press release in Precise web site, case studies, brochures, advertising and other marketing materials.  Except as set forth in this subsection, there shall be no public announcement of this Agreement or the relationship between the parties without mutual review and approval by both parties, except as part of required governmental filings, SEC filings (forms 10-K, 10-Q, etc.), quarterly earnings announcements and financial presentations, or listings of other similar relationships.

(h) Injunctive Relief.  Customer acknowledges that the breach or threatened breach of this Agreement could give rise to irreparable injury to Precise which would be inadequately compensated in money damages.  Accordingly, Precise may seek a restraining order and/or an injunction prohibiting such breach in addition to any other legal remedies which may be available.  Customer agrees that Precise will not be required to post a bond in seeking injunctive relief under this Agreement.

(i) Export Controls.  Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.  Specifically, Customer covenants that Customer shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Precise under this Agreement to any destination, entity, or person prohibited by the laws or regulations of any jurisdiction, including without limitation, the United States, without obtaining prior authorization from the relevant government authorities as required by those laws and regulations.  Customer hereby indemnifies and holds harmless, to the fullest extent permitted by law, Precise and Precise’s assigns from and against any fines, penalties, judgments, settlements, and reasonable documented costs, including attorneys fees, that may arise as a result of Customer’s and Customer’s agents, officers, directors or employees breach of this provision. 

(j) Assignment.  This Agreement (and any amendments or modifications thereto) and any rights or licenses granted to Customer hereunder, are non-transferable, non-exclusive, non-assignable, limited and personal to Customer.  Neither party may assign its interest in this Agreement, including by operation of law or change of control, without the other party’s prior written consent, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, Precise may transfer and/or assign some or all of this Agreement by operation of law due to a merger or change of control, without prior notice to Customer or Customer’s consent.  For the purposes of this Agreement, “change of control” means consolidation, or any sale of all or substantially all of its assets or any other transaction in which more than 50% of its voting securities are transferred.  This Agreement will inure to the benefit of and be binding upon the party’s successors and permitted assigns.  Unless otherwise specifically agreed to by the non‑assigning party, no assignment by either party shall relieve the assignor from its obligations pursuant to this Agreement.  Any assignment in violation hereof shall be null and void.

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