Aislelabs Master Service Agreement

AISLELABS INC. AND ITS AFFILIATES (“AISLELABS”) IS WILLING TO PROVIDE THE USE AND ACCESS RIGHTS TO AISLELABS’ SOFTWARE AS A SERVICE (“SaaS” or “SERVICES”) IN ACCORDANCE WITH AND SUBJECT TO CUSTOMER ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AISLELABS MASTER SERVICE AGREEMENT (“AGREEMENT”). ALL REFERENCES TO “CUSTOMER,” “YOU,” OR “YOUR” IN THIS AGREEMENT SHALL MEAN THE USER OR END USER OF THE SERVICES AND, IF THIS AGREEMENT IS BEING ENTERED INTO ON BEHALF OF AN ORGANIZATION OR THROUGH A RESELLER, COLLECTIVELY, THE ORGANIZATION OR THE RESELLER. SUBJECT TO YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE SERVICES SPECIFIED IN THE SERVICE ORDER SUBMITTED BY YOU AND ACCEPTED BY AISLELABS (“ORDER”), TO WHICH THIS AGREEMENT IS INCORPORATED, SHALL BE PROVIDED DURING THE APPLICABLE ACCESS TERM. BY ACCEPTING THIS AGREEMENT, INCLUDING BY CLICKING A BOX INDICATING ACCEPTANCE, BY SIGNING THE SERVICE ORDER, OR BY ACCESSING THE SERVICES, THE CUSTOMER AGREES TO THE TERMS SET FORTH HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE AISLELAB’S SERVICES. 

IF THE CUSTOMER REGISTERS FOR A TRIAL OF AISLELAB’S SERVICES, THIS AGREEMENT WILL ALSO GOVERN SUCH TRIAL SERVICES. 

SECTION 1 – DEFINITIONS

As used throughout the Agreement, the following shall have the meanings set forth below unless otherwise indicated:

“Aislelabs” means Aislelabs Inc.

“Confidential Information” means this Agreement and all its exhibits, any amendment hereto signed by both parties, all software listings, Documentation, as defined herein below, information, data, drawings, benchmark tests, specifications, trade secrets, object code and machine-readable copies of the Aislelabs Software, source code relating to the Aislelabs Software, and any other proprietary information supplied to Customer by Aislelabs, including all items defined as “confidential information” in any other agreement between Customer and Aislelabs whether executed prior to or after the date of this Agreement. 

“Content” means all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) created, submitted, transmitted or received in the performance of the Services. 

“Customer” means the company or other legal entity that is accepting this Agreement, Affiliates of that company or entity, and it and its Affiliates’ directors, officers, employees, agents, and contractors who access the Services. If the Customer is an agency purchasing the Services on behalf of external clients, the terms “Customer” or “Customers” shall include such external clients, provided that the Customer accepts responsibility for such external clients’ compliance with the terms of this Agreement. 

“Customer Data” means all electronic data or information submitted by Customer to Aislelabs in connection with the Service, including but not limited to report parameters. 

“Documentation” means any instructions manuals or other materials, and on-line support files regarding the Use of the Aislelabs Software that is provided by Aislelabs. 

“Effective Date” means the Effective Date as defined in the Service Order. 

“Feedback” means any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users to Aislelabs relating to the operation of the Service. 

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. 

“Processed Analytic Data” means statistics produced using Raw Data from client meshes and other data sources and converting it through a multi-stage process to statistics (for example, visit counts, dwell times, and cross visits). 

“Raw Data” means the Customer Data used as inputs to create Processed Analytic Data. Raw data may be irretrievably deleted as soon as Processed Analytic Data has been produced from it. 

“Renewal Date” means the Renewal Date, if any, set forth in the Service Order. 

“Service(s)” means access to and use of the Aislelabs Software by the Customer, via an Internet connection from any computer and/or mobile device and any Implementation Services or Professional Services provided by Aislelabs. 

“Software” means Aislelabs Software and any Third Party Software provided by Aislelabs.This includes any custom software code provided by Aislelabs including but not limited to Software Development Kits (SDKs) and API integrations. 

“Service Order” means the Aislelabs Service Order signed by both parties and referencing this Agreement, together with any agreed Statement of Work attached thereto. 

“Users” means individuals (including employees, contractors) who are directly employed or under contract with the Customer and authorized by Customer to use the Service, for whom a subscription to the Service has been purchased. Users require supplied user accounts and passwords by the Customer. 

SECTION 2 – SOFTWARE & SERVICE PROVISIONS

The Term of the Agreement shall commence as of the Effective Date, and shall have an initial term of twelve (12) months unless otherwise specified in the Service Order (“Initial Term”). At the end of the Initial Term, the Agreement shall automatically renew for successive one-year subsequent terms unless otherwise specified in the Service Order or unless and until either party provides the other party with written notice of non-renewal at least ninety (90) days prior to the end of the then-current term. 

2.1

During the Term, Aislelabs grants, and Customer acknowledges that it receives, access to and use of the Service, and no other rights or licenses to the Service or any Intellectual Property Rights related thereto, whether by implication, estoppel or otherwise, except those rights expressly granted in this Section 2. Customer agrees that access to and use of the Service is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Aislelabs with respect to future functionality or features. Customer is solely responsible for its own Internet connection which is necessary to access and use the Service and Aislelabs shall have no liability to the Customer due to any inability to access or use the Service due to Internet connection latency or failure or related internal communications hardware and/or other connectivity issues, including but not limited to WiFi network hardware and access failures. 

2.2

Customer and Customer Users shall have the right to export, utilize, and otherwise produce, develop or create graphs and reports of data generated by use of the Services, and may distribute those reports and other data and information to Customer clients. Except as is specifically permitted in the preceding sentence, Customer agrees that they will not reproduce, duplicate, copy, sell, trade or resell any Content accessed via the Services for any other purpose. 

2.3

To operate the supported software, Aislelabs will identify for Customer the minimum requirements needed to operate the Software on-premise when agreed to in the Service Order. The minimum requirements will define the infrastructure and related applications, which include, but are not limited to, Customer’s operating system, database tools, and other support tools. Aislelabs will provide Customer with at least ninety (90) days written notice of changes to those minimum requirements to comply with the Aislelabs software offering. Customer must meet all minimum requirements or Aislelabs may decline to provide ongoing Service support. Aislelabs has no obligations to upgrade the supported software because of changes made to the Customer environment, infrastructure and related applications. Aislelabs has no obligation to provide technical expertise or development work in the event of a Customer, third party vendor API or communication failure. 

2.4

Customer agrees that they are solely responsible for (and that Aislelabs has no responsibility to Customer or to any third party for) any Content that Customer creates, transmits or displays while using the Services and for the consequences of Customer actions by doing so (including, without limitation, any intellectual property claims of any third parties relating to such Content). 

2.5

Customer may increase the number of authorized Users by modification of this Agreement and paying in full any applicable fees. Upon signing the modification and paying in full the applicable fees, Aislelabs shall have the right to monitor the revised number of Users as set forth in that modification. 

SECTION 3 – PROPRIETARY RIGHTS

3.1

Customer shall not obtain any ownership rights, title or interest in the software, hardware or systems developed or employed by Aislelabs in providing Services under the Agreement. Aislelabs shall not obtain any ownership rights, title or interest to Customer’s data files. 

Upon expiration or termination of the Agreement for any reason, Aislelabs agrees to provide Customer with a copy of Customer’s data files, as they exist at the date of expiration or termination at Customer’s expense. Upon delivery of the Customer’s data files, Aislelabs will make commercially reasonable efforts to destroy any and all Customer data under Aislelabs control, including Customer data stored at any off site back-up facility. 

3.2

All right, title and interest in and to the foregoing Aislelabs Software and Service (including any and all related Intellectual Property Rights, modifications and additions) thereto shall at all times remain with Aislelabs (or any third party from whom Aislelabs has licensed software or technology). “Intellectual Property Rights” means: any and all proprietary rights provided under: (i) patent law; (ii) copyright law; (iii) trade-mark law; (iv) design patent or industrial design law; (v) semi-conductor chip or mask work law; or (vi) any other statutory provision or common law principle applicable to this Agreement, including trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, systems, methods, improvements, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, systems, methods, improvements, inventions or know-how; and any and all applications, registrations, licenses, sublicenses, agreements or any other evidence of a right in any of the foregoing. 

3.3

Customer (including Customer employees, contractors and anyone authorized by Customer to have access to Aislelabs Software) shall not (i) create by de-compilation or reverse engineer the Aislelabs Software and/or Service, or related documentation; or (ii) access the Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Service. 

3.4

Aislelabs shall retain all ownership and proprietary rights, including Intellectual Property Rights, to all Customer Feedback related to the Services provided under this Agreement. If required and upon request by Aislelabs, Customer irrevocably agrees to assign the ownership of any and all Feedback, including all Intellectual Property Rights therein, absolutely and without the necessity of any additional consideration. 

SECTION 4 – USE OF THE SERVICE

4.1

Aislelabs shall: (i) not use, modify or disclose Customer Data other than to Authorized Users; (ii) maintain the reasonable security and integrity of the Service and Customer Data; (iii) provide basic user support to Customer Users, at no additional charge, as set out in Section 5 herein; and (iv) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Aislelabs shall give at least 8 hours’ prior online notice via the Service and which Aislelabs shall schedule to the extent reasonably practicable during the weekend hours from 8:00 p.m. EST Friday to 8:00 a.m. EST Monday. 

4.2

Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Aislelabs promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, federal and foreign laws in using the Service, including, without limitation, all applicable privacy laws. Customer agrees to use the Services only for purposes that are permitted by (a) this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States, Canada, the United Kingdom or other relevant countries). 

4.3

Customer agrees not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by Aislelabs, unless Customer has been granted rights to do so in a separate agreement with Aislelabs. Customer agrees not to access (or attempt to access) any of the Services through any automated means (including use of scripts or web crawlers) unless Customer is granted access to the API service by Aislelabs. Customer agrees that it will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Customer (or Customer Users) shall use the Services solely for Customer /its/their internal business purposes as contemplated by this Agreement and shall not: (i) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (ii) attempt to gain unauthorized access to the Services or its related systems or networks. To the extent Customer obtains any confidential information from Aislelabs relating, directly or indirectly, to the Services, Customer agrees to hold such confidential information at all times in strict confidence and shall not disclose such confidential information to any person at any time without the prior written consent of Aislelabs, which may be arbitrarily withheld. 

4.4

All data uploaded, stored, transmitted, or otherwise managed within the Aislelabs’ production systems (“Customer Data”) remains the sole property of the customer. 

Aislelabs does not claim ownership of any Customer Data and acts only as a custodian and processor of that data for the purposes of providing contracted services. 

Aislelabs will retain Processed Analytic Data stored in production environments for a maximum of thirteen (13) monthsfrom the date the data is generated, received, or last updated, unless otherwise required by law or agreed to in a separate written agreement approved by both parties. Aislelabs reserves the right to permanently delete any Customer Data that exceeds the 13-month retention period. Raw Data may be deleted immediately upon the production of Processed Analytic Data from it. Deletion may occur on a rolling basis and without additional notice once data surpasses the retention threshold. 

Customers are responsible for: 

• Exporting, backing up, or archiving their data as needed before it reaches the two-year limit.
• Notifying Aislelabs in writing in advance if contractual exceptions or legal holds are required. 

4.5

Aislelabs may, in its own marketing and sales materials, including but not limited to the Aislelabs website, use and display Customer name(s) and logo(s). 

4.6

Aislelabs may make the Services available to Customer on a trial basis (collectively “Trial Services”) until the earlier of (a) the end of the trial period for which Customer has registered or are registering to use the applicable Trial Service or (b) the start date of any purchased Services ordered by Customer. Customer obligations with regards to Customer Data shall apply to data submitted to or collected through the Trial Services. Additional trial terms and conditions may appear on the trial registration web page or other trial registration document entered into by the Customer. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. IF CUSTOMER ELECTS TO USE THE SERVICES FOR THE TRIAL PERIOD AND DOES NOT PURCHASE THE SERVICES BEFORE THE END OF THE TRIAL PERIOD, ACESS TO THE SERVICES WILL EXPIRE AT THE END OF THE TRIAL PERIOD AND SHALL NOT AUTO-RENEW. ANY DATA ENTERED INTO THE TRIAL SERVICES BY CUSTOMER OR RECEIVED BY CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE TRIAL SERVICES, AND ANY CUSTOMIZATIONS THAT MAY BE MADE TO THE TRIAL SERVICES BY CUSTOMER DURING THE TRIAL PERIOD, WILL BE PERMANENTLY LOST UNLESS PURCHASE OF A SUBSCRIPTION TO THE SAME SERVICES IS COMPLETE PRIOR TO THE END OF THE TRIAL PERIOD. NOTWITHSTANDING ANTYHING TO THE CONTRARY SET OUT IN THIS AGREEMENT, DURING THE TRIAL PERIOD, THE TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OR SUPPORT SERVICES PROVIDED BY AISLELABS. 

SECTION 5 – FEES AND PAYMENT

5.1

Payment for Services for initial and subsequent terms is due and payable within thirty (30) days of the date of each applicable invoice. Upon thirty (30) days written notice to the Customer of the intent to suspend Services, Aislelabs may, at its sole election and without prejudice to other remedies herein, suspend Services under this agreement if Customer fails to pay invoices within sixty (60) days after the invoice date. Restatement of Services under this agreement requires all overdue payments to be paid in full. Additional setup requests may be performed upon a mutually agreed upon scope of work. 

Aislelabs reserves the right to apply a late payment charge of 1.5% per month to amounts outstanding more than thirty (30) days after the payment due date. 

5.2

Customer shall pay all fees for the Services or other services hereunder in the manner as specified either via online, credit card or other payment method acceptable by Aislelabs. Fees are based on Services purchased and not actual usage. 

5.3

If any amount owing by Customer under this or any other agreement for the Services is overdue Aislelabs may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend and/or cancel the Services to Customer until such amounts are paid in full. 

5.4

Unless otherwise stated, Aislelabs’ fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the Services or other services hereunder, excluding taxes based on Aislelabs’ net income or property. 

SECTION 6- WARRANTIES AND DISCLAIMERS

6.1

Each party represents and warrants that it has the legal power to enter into this Agreement. Aislelabs represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the functionality of the Service will not be materially decreased during the Term; (iii) the Service will not contain or transmit to Customer any Malicious Code (iv) it owns or otherwise has sufficient rights in the Aislelabs Software and the Service to grant to Customer the rights to use the Service granted herein; and (v) to the best of Aislelabs’ knowledge, the Aislelabs Software and the Service does not infringe any Intellectual Property Rights of any third party. 

6.2

Aislelabs shall have no responsibility for, and does not warrant against, any problems that occur as a result of improper use of the Services; use of the Services with incompatible equipment, hardware, interfaces, requirements or specifications; use of the Services with other products (hardware, 

software, firmware, etc.) that do not properly exchange data with the Services or use of the Services other than in accordance with Aislelabs’ written instructions, specifications and documentation, if any. You are responsible for ensuring the quality and stability of its systems and its connection to the Services. AISLELABS SPECIFICALLY DISCLAIMS AND EXCLUDES ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, COMPLETENESS OF FITNESS FOR A PARTICULAR PURPOSE THEREOF. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE SOFTWARE, UPDATES, DOCUMENTATION OR SERVICES TO BE SUPPLIED BY AISLELABS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF NONINFRINGEMENT OF COPYRIGHTS, TRADEMARK RIGHTS, TRADE SECRETS OR PATENT RIGHTS, OR ANY OTHER INTELLECTUAL PROPERTY RIGHT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 

6.3

THE WARRANTIES CONTAINED IN THIS SECTION 6 ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE. SPECIFICALLY, AISLELABS DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR WILL PERFORM IN AN UNINTERRUPTED MANNER. 

SECTION 7 – LIMITATION OF LIABILITY

7.1

NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT, IN NO EVENT WILL AISLELABS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITUIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE AISLELABS SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF AISLELABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, AISLELABS WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SOFTWARE OR SAID SERVICES. AISLELABS’ LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY CUSTOMER TO AISLELABS DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE SUCH LIABILITY AROSE . 

NO ACTION ARISING OUT OF ANY BREACH OR CLAIMED BREACH OF THIS AGREEMENT OR TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN SIX (6) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED. FOR PURPOSES OF THIS AGREEMENT, A CAUSE OF ACTION WILL BE DEEMED TO HAVE ACCRUED WHEN A PARTY KNEW OR REASONABLY SHOULD HAVE KNOWN OF THE BREACH OR CLAIMED BREACH. 

THE PROVISIONS OF THIS SECTION 7 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND AISLELABS. AISLELABS’ PRICING AND OTHER TERMS REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY. 

NO EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF AISLELABS HAS AUTHORITY TO BIND AISLELABS TO ANY ORAL REPRESENTATIONS OR WARRANTY CONCERNING THE AISLELABS SOFTWARE. ANY WRITTEN REPRESENTATION OR WARRANTY NOT EXPRESSLY CONTAINED IN THIS AGREEMENT WILL NOT BE ENFORCEABLE. 

SECTION 8– TERM AND TERMINATION

8.1

This Agreement commences on the Effective Date and ends on the date that is the number of months or years from the Agreement Start Date as specified as the initial term (the “Initial Term”) on the Service Order. Following the Initial Term, this Agreement shall automatically renew for successive terms, each equal in duration to the Initial Term (each a “Renewal Term”) or as set forth as Renewal Term in the Service Order, unless either party delivers at least 90 calendar days’ written notice, prior to the expiration of the Initial Term or any respective Renewal Term, to the other party of its intent to not renew this Agreement. The Initial Term and each of the Renewal Term(s) may be collectively referred to as the “Term”. Aislelabs reserves the right to modify its fees and charges at any time, effective upon the next Renewal Term. 

8.2

Customer may not cancel any Services during the Term and shall not be entitled to a refund of any portion of fees paid for such Services. 

Aislelabs may, by written notice to the Customer, terminate this Agreement and the Software use granted, under Section 2 of the Agreement, if any of the following events (“Termination Events”) occur: 

• Customerfails topay any amount due to Aislelabs within thirty (30) days after Aislelabs gives Customer written notice of such nonpayment, or 
• Customer is in material breach of any nonmonetary term,conditionor provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Aislelabs gives Customer written notice of such breach, or 
• Customer (i) terminates or suspendsitsbusiness, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or (iii) becomes subject to any bankruptcy or insolvency proceeding. 
• If any Termination Event occurs, termination will become effectiveimmediatelyor on the date set forth in the written notice of termination. Termination of this Agreement will not affect the provisions regarding Custsomer’s or Aislelabs’ treatment of Confidential Information, provisions relating to the payment of amounts due, or provisions limiting or disclaiming Aislelabs’ liability, which provisions will survive termination of this Agreement. 

8.3

Within thirty (30) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, Customer shall return the Aislelabs Software and all copies, in whole or in part, all Documentation relating thereto, and any other Confidential Information in its possession that is in tangible form. Customer shall furnish Aislelabs with a certificate signed by an executive officer of Customer verifying that the same has been done. 

SECTION 9 – IMPLEMENTATION SERVICES

9.1

Aislelabs will perform implementation services (“Implementation Services”) and deliver the deliverables (“Deliverables”) as described in the Scope of Work defined in the Service Order. Aislelabs will perform any other professional services (“Professional Services”) as described in the Scope of Work defined in a Service Order. 

Unless otherwise provided in this Agreement, Aislelabs may perform the Implementation Services and any Professional Services in whole or in part at Aislelabs’ designated place of business, Customer’s place of business, and/or such other locations as Aislelabs selects. 

9.2

Customer will pay Aislelabs on a “Time and Materials” basis (or as otherwise agreed between the parties on the Service Order) for all labor expended and costs and expenses incurred for Implementation Services and any Professional Services, as defined in the Service Order. 

Implementation Services quoted are at a Time and Materials price, but the extent of Implementation Services is limited, as specified in the Service Order. For those items that are limited, actual effort, costs and expenses may be less than or greater than those estimated. Customer shall have no obligation to pay Aislelabs more than the price agreed upon for Implementation Services. Aislelabs shall have no obligation to provide labor or incur costs or expenses having a combined value more than the quoted price, even if the Services have not been completed or the Deliverables delivered, or the results expected by the customer have not been achieved. The parties may by mutual, written agreement, increase the quoted price for Implementation Services. Changes in scope of any Services will require a mutually agreed upon Change Order Form to increase the Time and Materials price based upon the additional level of effort required. 

In addition to paying for labor expended, Customer shall reimburse Aislelabs for the cost of all reasonable and approved travel expenses and miscellaneous out-of-pocket expenses incurred in performing the Services. 

Customer shall make payment to Aislelabs according to the schedule and provisions of the Service Order. Aislelabs shall have a lien upon and may retain or repossess any and all Deliverables if Customer does not make full payment to Aislelabs at the agreed upon milestones. 

9.3

Notwithstanding anything to the contrary in this Agreement, if Customer’s action or inaction results in non-receipt of payment by Aislelabs for the total amount of an invoice for Implementation Services or any Professional Services within fifteen (15) days of the due date of such invoice, then interest compounded at the rate of one and one half percent (1.5%) per month, or the maximum rate permitted by law if lower, shall thereafter be added to all amounts unpaid and outstanding, and Aislelabs shall have the right exercisable in Aislelabs’ sole discretion, in addition to its other rights and remedies, to cease further performance of the Services hereunder. 

9.4

Customer will designate qualified Customer personnel or representatives to consult with Aislelabs on a regular basis in connection with the Services. Customer will furnish to Aislelabs such documentation and other information as is reasonably necessary to perform the Services. 

Customer shall furnish access to Customer’s premises, and appropriate workspace for any Aislelabs personnel working at Customer’s premises, as necessary for performance of those portions of the Services to be performed at Customer’s premises. 

9.5

Aislelabs grants to Customer a royalty-free, paid up, worldwide, perpetual, non-exclusive, non-transferable license to use any Aislelabs Intellectual Property incorporated into any Deliverable, solely for Customer’s use of that Deliverable for its internal business purposes during the Term. Aislelabs shall retain ownership of and unrestricted right to use any Intellectual Property derived in any fashion or manner hereunder, including from its pre-existing Intellectual Property. The Services performed and any Deliverables produced pursuant to this Agreement are not “works for hire.” 

SECTION 10 – SUPPORT SERVICES

10.1

Customer will authorize and identify a reasonable number of contacts who may initiate support with Aislelabs. These named users must be technically capable and familiar with the products covered under this agreement. Customer will perform basic troubleshooting before contacting Aislelabs to eliminate issues caused by other variables such as applications, power, hardware, security, infrastructure, and environment. Aislelabs reserves the right to decline support to Customer end users not authorized to initiate support. 

Aislelabs will provide support after confirming that Customer has been unable to resolve the issue through its own troubleshooting. Once the reported problem can be reproduced and documented, and resolution identified such as assistance provided over the phone, application working as documented, configuration change, or programming change, the ticket will be closed. If a programming change is required, the ticket will remain open until the updated fix is delivered in a future release. 

Support Services includes bug fixes and telephone support and may include, if they are made available by Aislelabs in its sole discretion, software updates as per the Aislelabs software release schedule. 

10.2

In the event the Customer encounters an error and/or malfunction in the Aislelabs Software because it is not conforming to documentation provided by Aislelabs (“Defect”), the Customer shall communicate the circumstances and any supporting information to Aislelabs. Upon receipt, Aislelabs will respond as follows: 

• In the event that, in the sole opinion ofAislelabs, there exists a Defect that does not constitute a serious impediment to the normal intended use of the Aislelabs Software, Aislelabs will correct the Defect and distribute the correction to the Customer in accordance with Aislelabs normal software revision schedule. 
• In the event that, in the sole opinion ofAislelabs, there exists a Defect that does constitute a serious impediment to the normal intended use of the Aislelabs Software, Aislelabs will take such steps as are reasonably required to correct the Defect promptly. 

10.3

Services may be revised by Aislelabs as a result of (i) emergency correction of Defect, (ii) periodic correction of Defects and/or (iii) the release of upgrades or improvements or modifications designed to improve the performance of the Services and/or to increase the capabilities of the Services (hereafter “Revisions”). 

• Revisions will be provided at noadditionalcharge during the active term of the Master Services Agreement. 
• New Versions (“New Versions”) of the Services may be issued byAislelabsfrom time to time (excluding 3rd party software) and are not considered Revisions. A New Version is any new release of the Services that does not merely address Defects and is not identified in the documentation as a Revision. Aislelabs will, from time to time, release new products (including New Versions) and/or modules, which Aislelabs will make available to Customer at the then-current price(s). 
• All Revisions and New Versions will be transmitted to the Customer electronically. The Customer shall be solely responsible for executing theappropriate instructionsin order to transfer the Revisions or New Versions onto its system unless otherwise mutually agreed in writing. 
• If Customer reports a Defect toAislelabsthat can be resolved through upgrading to a New Revision, Customer must upgrade to New Revision and Aislelabs is not obligated to correct the Defect through remediation of the older version unless otherwise mutually agreed in writing; additional fees for support work beyond the standard Support Services offered by Aislelabs may be applicable in this instance. 
• AislelabsSoftware is designed as standard products and not as customized systems. Aislelabs recognizes the need for some Customer configuration; however, Aislelabs reserves the right to control the design, performance, and integration of all Aislelabs products and, as a result, may reject Customer requests for modifications or enhancements that are inconsistent with Aislelabs’ product strategy. 

10.4

Aislelabs shall make available to the Customer technical literature that Aislelabs considers relevant to the Aislelabs Software and its use within the scope of Customer’s operations. 

10.5

The Customer may be required to provide appropriate remote access capabilities by which Aislelabs may remotely access the Customer environment for the purpose of remote diagnostics and support. Under no circumstance will Aislelabs engage in support related to a Customer’s network or infrastructure, including but not limited to hardware diagnostics, broadband capabilities, or network latency. 

10.6

The Customer may desire to have additional modifications or minor enhancements performed; the fees for these services shall be in accordance with Aislelabs’ then current time and materials rates. Specific services outside the scope of support may include requirements analysis, preparation of functional or programming specifications, software development, testing, documentation, installation, data conversion, training, and help desk support. Aislelabs shall provide an estimate of cost prior to performing any of the above services. Aislelabs is available to perform these modifications within the scope of this Agreement pursuant to a mutually agreed upon Service Order. 

Additional support outside the scope of the support services described in this Agreement may be available to the Customer upon request. These services shall be performed on a time and materials basis and will be charged to the Customer pursuant to a mutually agreed upon Service Order. 

10.7

The Parties agree that the Aislelabs Customer Success Division shall be the primary means of communication between the Customer and Aislelabs regarding all Aislelabs software issues running in a Production Environment. 

Support services do not extend to Customer-owned environments, user computers or hardware, or third-party APIs owned by other vendors. Such tasks related to network configuration, network testing, hardware testing, bandwidth measurement and testing remain the sole responsibility of the Customer. 

Aislelabs shall be available for Support Services Monday through Friday, 8 A.M. to 5 P.M. Eastern Time, except for Aislelabs -observed holidays, which may be revised from time to time. 

The following table provides information on Aislelabs’ categorization of support issues: