A. ORDER FORM

B. TERMS RELATING TO LICENSE

C. LIMITATIONS, EXCLUSIONS & TERMINATIONS

D. TERMS RELATING TO MAINTENANCE AND SUPPORT

E. GENERAL TERMS

F. SERVICES TERMS AND CONDITIONS


A. ORDER FORM

 

A separate document listing the software licensed and which may also contain order-specific terms.

 

B. TERMS RELATING TO LICENSE

 

B 1. GRANT OF LICENSE.  Subject to payment of all license and maintenance fees applicable to each Product licensed hereunder and compliance with the terms and conditions of this PLMA, 9Dots hereby grants to Customer a non-exclusive, non-transferable license that permits Customer to use for its internal business purposes only each licensed Product on a single computer at one time per license seat purchased (“Per Seat License”), in accordance with the Product’s intended uses as specified in the License and Maintenance Agreement Section A (“LMA”).  The term of the license shall be perpetual unless terminated hereunder; provided, however, that in the alternative proCube™ and any related applications may be licensed for a specified term of use such as on an annual or other basis pursuant to an annual or other periodic license fee as stated in the LMA or an applicable Statement of Work entered into between Customer and 9Dots (“SOW”).  If Customer requires multiple users for a Product, then Customer may either purchase multiple Per Seat Licenses or may purchase a license that allows for as many copies of the Product in use at one time as Customer purchases licenses (a “Concurrent User License”), the form of such license to be specified in the LMA.  If the anticipated number of users of the Product under a Per Seat License or a Concurrent User License, as the case may be, will exceed the number of applicable licenses purchased, Customer must license additional users or upgrade to an enterprise license.  If Customer licenses 9Dots’s proCube™ engine bundled together with one or more 9Dots applications, Customer is permitted to use proCube™ only for that specific purpose and not for any other use without purchasing a separate license to use proCube™ for other purposes. If 9Dots has reason to suspect any breach of the terms of this PLMA, 9Dots may audit and inspect Customer’s use of the Product at any time, upon reasonable notice, to ensure the Product is being used in accordance with this PLMA.  The cost of the audit shall be paid by 9Dots unless Customer has underpaid fees for any twelve (12) month period by more than five percent (5%) or has breached Sections 1 or 2 of this PLMA, in which case the actual cost of the audit shall be paid by Customer.  Customer acknowledges that no source code or technical-level documentation is licensed under this PLMA.

 

B 2.  COPYRIGHT.  Any intellectual property rights of any kind, whether registered or not, in the Product are owned by 9Dots (or its licensors) and are protected by copyright laws and international treaty provisions.  The appearance of a copyright notice on any element of the Product shall not diminish or negate the trade secrets contained therein, and in any event such Product remains subject to all the terms of this PLMA notwithstanding any such copyright notice.  Except as otherwise expressly provided herein, the license granted herein is granted solely to Customer, and not, by implication or otherwise, to any parent, subsidiary or affiliate of such person or entity.  No right is granted hereunder to rent or lease the Product, to use the Product for commercial time sharing purposes, or to use the Product to perform services for third parties (so-called “service bureau” uses), nor may Customer transfer its rights under this PLMA.  All rights not expressly granted hereunder are reserved to 9Dots.  Customer may not copy, reproduce, transmit, disclose, make available, communicate, or allow access to any third party or otherwise use any part or whole of the Product or the written documentation accompanying the Product, except in accordance with the express terms of this PLMA, or attempt to modify, adapt, translate, prepare derivative works from, decompile, disassemble, reverse engineer or otherwise attempt to derive source code from the Product for any purpose.  Customer may not remove, alter, obscure or cause to be obscured any 9Dots trademark or product name from any part of any Product or its packaging or written documentation.

 

B 3.  LIMITED WARRANTY; CUSTOMER REMEDIES.  9Dots warrants that each licensed Product will perform substantially in accordance with the accompanying written documentation (“Limited Warranty”) for a period of ninety (90) days from the date Customer receives it (the “Warranty Period”).  9Dots’s entire liability and Customer’s exclusive remedy for any breach of this Limited Warranty by 9Dots shall be, at 9Dots’s option, either (a) return of the license fee paid or (b) repair or replacement of the Product that does not meet the Limited Warranty and that is returned to 9Dots with a copy of Customer’s receipt.  The Limited Warranty is void if failure of the Product has resulted from or is caused by modifications or changes made by Customer or accident, abuse, misuse or misapplication.  Any replacement Product will be warranted for the remainder of the Warranty Period or thirty (30) days, whichever is longer.

 

B 4.  NO OTHER WARRANTIES.  TO THE FULL EXTENT PERMITTED BY LAW, Except as expressly provided in Section 3, 9DOTS LICENSES THE PRODUCT TO CUSTOMER ON AN “AS IS” BASIS.  9DOTS MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, TITLE AND NON-INFRINGEMENT. 9DOTS DOES NOT WARRANT THAT THE PRODUCT WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION. CUSTOMER ACKNOWLEDGES THAT 9DOTS HAS MADE NO REPRESENTATIONS REGARDING WARRANTY, PERFORMANCE OR CAPABILITY OTHER THAN AS STATED IN SECTION 3.

 

B 5.  INTELLECTUAL PROPERTY INDEMNITY.

(a)  Any notices received by Customer alleging any infringement of any third party’s patent, copyright, trademark or other intellectual property right by the Product, or relating to actual or pending litigation regarding the Product, shall be provided to 9Dots promptly by Customer.  Customer shall provide reasonable assistance and any available information in defense of any such claims as reasonably requested by 9Dots, at no expense to Customer. 9Dots hereby agrees to indemnify Customer and to defend or settle any claim alleging that use of the Product, as permitted herein, constitutes an infringement or misappropriation of any U.S. patent, copyright, trademark or other intellectual property right of any third party, provided that, in the event Customer fails to promptly notify 9Dots with respect to such claim or to give 9Dots reasonably requested information and assistance for the defense of such suit or proceeding at no cost to Customer, and such failure materially and adversely harms the defense of the claim, 9Dots shall have no liability under this Section 5.  9Dots will pay all damages and costs awarded, reasonable defense costs and expenses, and any agreed upon settlement amounts in such suit or proceeding against Customer, provided that 9Dots shall have the sole authority to defend, compromise and settle such claim.

 

(b)  In the event the Product is held to constitute an infringement in such claim, suit or proceeding, and the use of the Product, or any substantial part thereof, is, or 9Dots reasonably believes may be, enjoined, 9Dots will, at its option, (a) promptly procure for  Customer the right to continue using the Product or part thereof, (b) replace it with a non-infringing product, (c) modify it so it becomes non-infringing, or (d) terminate Customer’s license hereunder and refund the License Fees paid to 9Dots, pro-rated over a five year period.  In the case of (a), (b) or (c) above, 9Dots shall also refund a pro rata portion of the maintenance fees paid to 9Dots for the period of time Customer is without use of the Product, based on a five year life for the Product.  Except as provided under Section 5(a), 9Dots shall not be liable for any costs or expenses incurred by Customer without its prior written consent.

 

(c)  9Dots shall not be liable to Customer under any provision of this Section 5 to the extent that any infringement or misappropriation, or claim thereof, is caused by or results from (a) the use of a superseded or altered release of the Product, if the infringement would have been avoided by the use of a current unaltered release of the Product that was provided to Customer sufficiently prior to the claim to reasonably enable implementation, (b) the combination, operation or use of any Product furnished hereunder with programs or data not furnished by 9Dots, if such infringement or misappropriation would have been avoided by the use of the Product without such programs or data, or (c) the continued use of the Product after 9Dots has provided written notice to Customer of termination of Customer’s license pursuant to Section 5(b), and such termination has become effective.

 

(d)  Customer hereby agrees to defend or settle any claim that is excluded under Section 5(c) from 9Dots’s indemnification obligations.  Customer will pay all defense costs and expenses, all damages and costs awarded therein against 9Dots, and all settlement amounts, provided that Customer shall have the sole authority to defend, compromise and settle such claim.

C. LIMITATIONS, EXCLUSIONS & TERMINATIONS

 

C 1.  LIMITATIONS AND EXCLUSIONS OF LIABILITY FOR LICENSED PRODUCT.  Except for liability for personal injury or property damage arising from the gross negligence or willful misconduct of 9Dots OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION UNDER SECTION 5(a) ABOVE, TO THE FULL EXTENT PERMITTED BY LAW, IN NO EVENT SHALL 9DOTS BE LIABLE FOR ANY LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF 9DOTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE TOTAL LIABILITY OF 9DOTS ARISING OUT OF OR IN CONNECTION WITH THIS PLMSA SHALL IN NO EVENT EXCEED THE TOTAL LICENSE FEE ACTUALLY PAID TO 9DOTS FOR THE PRODUCT.

 

C 2.  TERMINATION.  Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach.  Upon termination of this PLMA for whatever reason, including without limitation the expiration of a specified term of use, Customer must immediately cease use of and return to 9Dots all copies of the Product and documentation relating to the Product held by it in any form or, in the alternative, certify to 9Dots destruction of all copies of the Product and documentation.

 

D. TERMS RELATING TO MAINTENANCE AND SUPPORT

 

D 1.  MAINTENANCE.  During the Term (as hereinafter defined), 9Dots will provide to Customer maintenance services (“Maintenance”) for each Product listed on the License Sheet, which consists of all updates to each such Product. Updates consist of all new releases of the Product, functional enhancements, improvements and error corrections to the Product as commercially released by 9Dots during the Term.  Updates include access to one electronic manual for each license purchased.  Maintenance also includes efforts to rectify situations in which the Product does not function substantially in accordance with the documentation provided therewith during the Warranty Period, as well as prompt notification to 9Dots of any suspected errors in the Product.  Maintenance does not include assistance with the development or operation of customer applications based upon the Product.

 

D 2.  SUPPORT. During the Term (as hereinafter defined), 9Dots will provide to Customer support services (“Support”) for each Product listed on the License Sheet.

(a) Support is provided in units defined as an incident.  An incident is a single technical question or instance of a problem that cannot be broken down into subordinate problems. For a technical issue that can be separated into subordinate problems, each problem is considered a separate incident; consequently, each must be submitted as a separate incident request.  Each incident will be assigned an incident number, and each incident will be tracked.

(b)  9Dots will provide Standard Support during normal business hours, Monday through Friday, from 8:30 a.m. to 5:30 p.m., Eastern Time, excluding holidays recognized by 9Dots.  Only Customers who are current with their annual Maintenance are entitled to receive Support.  Customer must designate the  individual who has the right to obtain Support on behalf of Customer by name and location. Located on A4 of LMA

(c)   Support regarding the use of the tools, utilities, documentation and programs included with any Products may be provided via telephone from the 9Dots telephone support center in Conshohocken, PA, USA, as well as by electronic mail.

(d)  Before Support will be provided to Customer, the designated technical representative of Customer and a designated 9Dots Support Engineer must agree upon the scope of the problem and the parameters for an acceptable resolution.  An incident may require multiple interactions and off-line research in order to resolve.

(e)   Support does not include support of third-party software or hardware products not supplied by 9Dots, connectivity-related issues (such as networking or ODBC), or user errors.

(f)  Incidents where the Product does not function in accordance with its documentation and where resolution of said incident requires that new software code be provided by 9Dots are covered under this Agreement.

 

D 3.  EXCLUSIONS.  9Dots will not be responsible to provide any Maintenance described in this PLMA which is occasioned by any or all of the following:

(a)  Modification of the Product by anyone other than 9Dots or someone expressly authorized by 9Dots.

(b)  Misuse or incorrect use of the Product, including use of the Product for any purpose other than as set forth in this Agreement.

(c)  Use of the Product in combination with any other software not pre-approved by 9Dots.

(d)  Failure of Customer to install any standard enhancement or any operating system release, provided that the uninstalled standard enhancement or operating system release resolves problems for which Product Maintenance or Support has been requested.

(e)  Any willful or negligent action or omission of Customer.

(f)  Any malfunction of Product not listed as part of or covered by this PLMA.

(g)  Any malfunction or errors of third party hardware or software that is not a 9Dots Product, whether or not obtained through 9Dots or any other component of Customer’s network or systems, except for any third party hardware or software supplied by 9Dots for which 9Dots provides maintenance and support as expressly set forth in an applicable SOW.

(h)  Failure to use the latest version or update of any Product provided by 9Dots.

 

D 4.  TERM AND TERMINATION.  Customer will receive the Maintenance and Support described in this PLMA for a one-year period or longer, if specified in a SOW or the LMA, as applicable (the “Initial Term”), beginning on the date specified in the SOW or License Sheet (the “Maintenance and Support Commencement Date”).  Unless Customer notifies 9Dots that it does not wish to extend Maintenance and Support at least forty-five (45) days prior to the expiration of the Initial Term, 9Dots will invoice Customer for Maintenance and Support for an additional twelve-month period (a “Renewal Term”), beginning on the expiration of the Initial Term (the Initial Term and any Renewal Term are collectively referred to as the “Term”).  If Customer does not desire to extend Maintenance and Support after the Initial Term or any Renewal Term, Customer must notify 9Dots of this decision in writing, at least forty-five (45) days prior to the expiration of the then current Term.  Should Customer notify 9Dots at any time during the Term that it wishes to terminate Maintenance and Support, no refund for any unused portion of the Initial Term or any Renewal Term will be provided.

 

D 5.  ELECTRONIC MAIL AND WEB SITE ACCESS.  9Dots may elect to provide resolution of Maintenance and Support inquiries to Customer via electronic mail, or Customer may be directed to information on the 9Dots website (www.ixdots.com). To access this information, Customer may be required on its own account to obtain additional software, equipment and Internet access, and to register on the 9Dots internet web site in order to access the information.

 

D 6.  DISCLAIMER OF WARRANTIES.  TO THE FULL EXTENT PERMITTED BY LAW, 9DOTS EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE MAINTENANCE AND SUPPORT SERVICES DESCRIBED HEREIN, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE.

 

D 7.  EXCLUSIONS FROM AND LIMITATIONS OF LIABILITY FOR MAINTENANCE. Except for liability for personal injury or property damage arising from the gross negligence or willful misconduct of 9Dots, 9DOTS WILL NOT BE LIABLE FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, LOST DATA OR FOR ANY OTHER DIRECT OR INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SPECIAL DAMAGES SUFFERED BY CUSTOMER, ITS CUSTOMERS OR OTHERS ARISING OUT OF OR RELATED TO MAINTENANCE AND SUPPORT SERVICES, FOR ANY CAUSE OF ACTION INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY, EVEN IF 9DOTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  in no event will the total cumulative liability of 9Dots in connection with Maintenance AND SUPPORT services from all causes of action of any kind, exceed the Product Maintenance AND SUPPORT fees ACTUALLY PAID BY CUSTOMER.

 

D 8.  CONTINUITY OF COVERAGE.  Should Customer terminate Maintenance and Support coverage for whatever reason and subsequently decide to resume it, Customer must pay of the full amount of the then current annual fee for Maintenance and Support for the Product licensed by Customer for each year of the lapse in Maintenance and Support coverage.  Customer is responsible for installing each full release of the Product within ninety (90) days after the date of its release.  9Dots shall be responsible for providing support for the then-current version of the Product, and for support of the immediate prior version of the Product for a period not to exceed six (6) months following the release of the current version.

 

D 9.  PRICE AND PAYMENT.  The price for the Maintenance t provided under this PLMA is set forth in Section A of the LMA, or if no price is set forth therein, such price will be determined by reference to the then-current 9Dots Price List, furnished separately to Customer.  9Dots will not provide Maintenance or Support under this PLMA until payment of the full amount of the annual Maintenance has been received by 9Dots.  9Dots will invoice for any disbursements, expenses and/or services not covered by this PLMA, such as consultations and related travel and other costs which have been requested by Customer, in accordance with the Price List or a fully executed SOW.

 

D 10.  INTELLECTUAL PROPERTY. Customer  acknowledges that all intellectual property of any kind, whether registered or not, in any software code, devices, products, documents, information or updates of any kind provided as part of the Maintenance (the “Maintenance Product”) or Support (the “Support Product”) is owned by 9Dots.  Where a Maintenance Product or Support Product updates, enhances, improves, corrects or cures defects in any Product which is subject to this PLMA, the Maintenance or Support Product shall be treated as part of the Product which is under license and may not be used in any manner inconsistent with the terms of this PLMA, and shall be in all respects subject to the terms of this PLMA.

 

E. GENERAL TERMS

 

E 1.  GOVERNING LAW; JURISDICTION; COMPLIANCE WITH LAWS.  This PLMA, and any and all claims that may arise in connection with the Product and any related services, will be governed by the substantive laws of the Commonwealth of Pennsylvania, excluding the Convention on Contracts for the International Sale of Goods and that body of law known as conflicts of laws.  Customer hereby consents to the exclusive jurisdiction of the United States District Court for the Eastern District of Pennsylvania or the state, and local courts of the County of Montgomery, Pennsylvania with respect to any action brought under this PLMA and waives any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court.  Customer is responsible for complying with any laws, regulations, codes or court orders relevant to the use of the Product and related documentation.  9Dots is not responsible for ensuring that any use made of the Product is lawful.

 

E 2.  U.S. GOVERNMENT RESTRICTED RIGHTS. The Product and documentation are provided with RESTRICTED RIGHTS.  Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraphs (c) (1) and (2) of the Commercial Computer Product–Restricted Rights at 48 CFR 52.227-19.  Contractor/manufacturer is 9Dots Management Corp, LLC, 1100 E Hector Street, suite 245, Conshohocken, PA 19428.  If Customer is a U.S. defense agency, this PLMA constitutes the entire agreement between the parties, in accordance with the policy stated at Defense Federal Acquisition Regulation Supplement (DFARS) at 48 CFR 227.7202-1.

 

E 3.  TAXES.  The license, maintenance and, if any, support fees charged for each Product are exclusive of all taxes, including any sales, use, excise, value added or other similar taxes or levies of any kind (together, the “Taxes”).  Customer must pay 9Dots any Taxes arising from or related to this PLMA within 14 days of receiving an invoice from 9Dots for such Taxes.

 

E 4.  OTHER TERMS.  Any terms in any sales or purchase order, proposal or other similar document that are contrary to or inconsistent with any terms of this PLMA have no force or effect.  This PLMA, together with any exhibits referred to herein, constitutes the entire understanding and agreement of the parties and supersedes all previous communications, representations, understandings or agreements with respect to the licensing of and maintenance for the Product.  If any provision of this PLMA is or becomes unlawful, invalid or unenforceable, such provision shall, if possible, be replaced by a provision which approximates its intent and effect.  If such replacement is not possible, the lawfulness, validity or enforceability of the remaining terms shall not be affected thereby. Customer may not assign its rights under this PLMA without the prior written consent of 9Dots. 9Dots and Customer are and at all times shall act as independent contractors and not as employer/employee or agent or partner of, or joint venturer with, the other party for any purpose.  Except for Customer’s obligations to pay 9Dots hereunder, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, provided that the party whose performance is delayed shall use commercially reasonable efforts to cure such delay.  The prevailing party in any legal action relating to or arising from this PLMA shall be entitled to recover from the non-prevailing party its reasonable attorneys’ fees and actual litigation expenses incurred in such action, as part of the same legal proceeding.

F. SERVICES TERMS AND CONDITIONS

F 1. Services. 9Dots shall provide Services when mutually agreed in an SOW. Unless otherwise agreed in writing by 9Dots, the terms and conditions of this Agreement will apply to any Services provided to Licensee by 9Dots after the Effective Date, whether or not this Agreement is referenced and whether or not an SOW is executed. Unless otherwise agreed in an SOW, the total cost or completion dates for any Services in an SOW are estimates. Licensee acknowledges that the ultimate responsibility for the Services rests with Licensee and that 9Dots’s role is to assist Licensee in that endeavor. Unless otherwise stated in an SOW 9Dots may use subcontractors to perform Services. Any staff or personnel provided by 9Dots to provide the Services under an SOW are referred to as “Consultants”.

F 2. Project Management. Licensee shall appoint an individual to authorize SOWs, receive progress reports and address problems that may arise in connection with the Services (the “Project Manager”) and shall provide 9Dots in writing with the name and contact information for that Project Manager.

F 3. Work on Licensee’s Premises. 9Dots shall require its Consultants to observe the reasonable security, safety and other policies of the Licensee while such Consultants are on Licensee’s premises, provided that Licensee provides 9Dots with reasonable advance notice of those policies.

F 4. Licensee’s Cooperation. 9Dots’s performance depends upon Licensee’s timely and effective cooperation in connection with the Services, including providing 9Dots with reasonable facilities, timely and sufficient access to appropriate data, information, and appropriately skilled Licensee personnel, and prompt responses to questions and requests. 9Dots will not be liable for any failure or delays in performing the Services to the extent that the failure or delay is caused by Licensee’s failure to cooperate. Unless otherwise specified in an SOW, 9Dots may rely upon the accuracy and completeness of data, material, and other information furnished by Licensee, without any independent investigation or verification. Should the data contain errors or inaccuracies, Licensee shall be responsible for the time it requires for 9Dots’s Consultants to expend to resolve the identified errors or issues.

F 5. Statement of Work. All work performed by 9Dots should be documented in an SOW. Each SOW shall establish the general nature of the work to be performed, the number of Consultants to be assigned, the estimated duration of the Services, the approximate number of hours, and the applicable hourly rate or fee. If there is a conflict between this Agreement and the SOW, the SOW shall control.

F 6. Change Orders. Either party may propose changes in the scope of the SOW, but neither party will be bound by any proposed change until both parties have agreed to that change in writing (a “Change Order”).

F 7. Scheduling. 9Dots will try to accommodate work schedule requests of Licensee to the extent commercially practicable. 9Dots reserves the right to change such schedule for any SOW if the assigned Consultants are unable to perform scheduled Services because of illness, resignation, weather, or other causes beyond 9Dots’s reasonable control. 9Dots will make commercially reasonable efforts to replace any such Consultant within a reasonable time in order to limit impact on the schedule.

F 8. Cancellation or Rescheduling of SOWs. Licensee may cancel or reschedule (if previously scheduled) all or part of any SOW upon ten (10) business days advance written notice (” Notice Period”). Upon cancellation of an SOW in progress, Licensee will pay all fees and expenses for work performed through the effective cancellation date (partially completed fixed fee engagements will be prorated) as well as reasonable costs directly related to Licensee’s cancellation (such as lodging cancellation charges or air travel change fees). An SOW may be rescheduled at no cost, other than any reasonable costs directly related to rescheduling (such as lodging cancellation charges or air travel change fees). 9Dots will make reasonable efforts to accommodate Licensee’s requested dates but the rescheduled SOW dates, although mutually agreed, shall be based on availability of Consultants. If Licensee cancels or reschedules an SOW with less than the Notice Period, Licensee will also pay a fee equal to the total daily rates for Consultants assigned to the SOW for every day that the actual notice was less than the Notice Period. However, the fee may not exceed the remaining number of days scheduled on the SOW.

F 9. Fees and Expenses. Unless otherwise provided in an SOW, Licensee shall pay 9Dots on a time and materials basis at 9Dots’s then-current rates. Hourly rates or fees for Services performed shall be set forth in the applicable SOW. Unless otherwise agreed in writing in the SOW, the minimum labor charge for any single day is eight hours. Billable amounts incurred in excess of eight hours per day will be billed at the standard, straight-time hourly rate. Estimated fees for Services under this Agreement do not include travel or other expenses. Licensee agrees to reimburse 9Dots for and will be invoiced for all travel and other expenses. Out-of-pocket expenses will be reimbursed on a pass-through basis based on the net cost paid or invoiced at the time of purchase, which includes airfare, ground transportation, lodging, meals and incidentals. Licensee acknowledges that 9Dots or its affiliates may receive frequent flyer miles, hotel “points”, commissions, rebates, fees or other consideration (“Benefits”) as a result of relationships with travel service providers, alliance companies, software, hardware, and other vendors. Licensee agrees that 9Dots is not obligated to provide a credit for or reimbursement to Licensee for Benefits.

F 10. Projection Equipment. If requested by 9Dots, Licensee will make available for use projection equipment for on-site training classes. Alternatively and upon prior written request, 9Dots will provide projection equipment for an additional charge.

F 11. Customization Services. If set forth in an SOW, Customizations may be developed for the use of Licensee and will conform to the Software program identified in the applicable SOW for the Software version to which the Customization Services apply as it exists at the time of development. Customization Services are not covered in Licensee’s maintenance plan. If future improvements or Updates to the applicable Software cause the program and/or databases to change, then any Customization provided to Licensee may require modification. The cost of such modification will be borne by Licensee. A very strong possibility exists that installing a hot fix or a service pack, or upgrading to a new version of the Software will require changes to any Customization. The potential also exists that Licensee will not be able to upgrade to a new service pack or version until the Customization has also been upgraded. Licensee may have to wait to gain access to a service pack, hot fix or new version of the Software until an update to the Customization can be scheduled and completed. Licensee will need to test any new Software or Updates, hot-fixes or service packs to determine how its specific Customization(s) may be impacted by any Update to the applicable Software program prior to any such Update.