DEFINED TERMS.

Any terms not defined in this Agreement, but defined in the Order Form or a Statement of Work shall have those definitions.

“Application”

is a database and software web services application offered to the Client over the Internet that includes certain management functions that have been designed specifically for project-oriented organizations. The Application is located at <client name>.innotas.com and/or service.projectplace.com and/or <client domain name>.leankit.com (the “Site”), and includes all modifications, customizations, enhancements, revisions, updates, upgrades and documentation that Planview may make available periodically. Applications do not include interfaces to other non-Planview software programs.

“Order Form”

means the document signed by both parties setting forth prices and quantity of User fees for software licenses.

“Statement of Work,”

if applicable, means the document signed by both parties setting forth prices and descriptions of any consulting services to be provided by Planview.

“User”

refers to each employee, consultant, client or other agent of Client who accesses the Application on Client’s behalf.

TERM.

The term of this Agreement shall commence on the commencement date and shall continue until terminated pursuant to an Order Form, Statement of Work, or the provisions of Section 11 of this Agreement. If Planview commenced work for Client prior to the commencement date of this Agreement, all provisions of this Agreement shall apply to such activities, including but not limited to Section 3 (Intellectual Property), Section 4 (Confidential Information), and Section 9 (Payments).

INTELLECTUAL PROPERTY

License.

Subject to this Agreement, Planview hereby grants to Client a nonexclusive, revocable, non-sublicensable, non-transferable, license to access and use the Application and work product resulting from consulting services provided during the Term solely for its internal business operations by the number of Users for which Client has paid. Client is solely responsible for providing all telecommunications, computer and other equipment necessary for accessing the Application. Planview retains the right, in its sole discretion and upon three (3) day’s prior written notice to Client, to restrict or terminate access to the Application by Client and/or particular Users if Client and/or its Users materially breach Section 3 of this Agreement, or through use of the Application that violates any applicable federal, state, local or international laws or regulations, or the rights of any third party or if Planview reasonably believes it necessary to preserve the security, integrity or accessibility of the Application or Planview’s network.

Ownership.

Planview retains all rights not expressly granted to Client in this Agreement. Client acknowledges and agrees that, except as specifically set forth in this Agreement, Planview retains all rights, title and interest in and to the Application, including without limitation copyrights, patent rights, trademarks and trade names, and trade secrets.

Restrictions on Use.

Except as otherwise specifically permitted under this Agreement, Client shall not, nor will Client permit any third party to (i) copy, modify, distribute, sell, assign, pledge, sublicense, lease, loan, time-share, rent, outsource, deliver or otherwise transfer the Application or any of its components to any third party in whole or in part, provided that Client may copy Planview’s documentation as needed for use by its Users; (ii) derive or attempt to derive or discover the source code of any portion of the Application by any means; (iii) reverse engineer, decompile, disassemble, or translate the Application or any part thereof; (iv) upload, post, mail, publish, transmit or distribute in any way the Application or its components. As a Client, you may not access or use the Application if you are a direct competitor of Planview. In addition, you may not access the Application for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose.

No Trademark License.

No license, right or interest in the trademarks, trade names or service mark of either party or its licensor is granted hereunder, except as either party may agree in writing.

CONFIDENTIAL INFORMATION

Confidential Information.

By virtue of this Agreement, either party may come into contact with the other party’s non-public or proprietary information (“Confidential Information”). Confidential Information shall include, without limitation, any information or materials supplied to, obtained by or observed by either party or its employees, agents, consultants or subcontractors including proprietary software, source code documents, financial information, documentation, data, benchmark tests, specifications, customers, marketing strategies, business practices and any other proprietary information supplied to one party by the other and identified as proprietary or confidential, user identification and passwords, and account information. Client data created by or stored in the Application (“Client Data”), the terms of any Order Form, and this Agreement are all considered Confidential Information. Each party shall hold the Confidential Information of the other party in strict confidence and not disclose the Confidential Information to third parties nor use for any purpose not authorized herein, nor permit access to Confidential Information, except to those of its employees or authorized representatives having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein. Upon learning of any unauthorized use or disclosure of a disclosing party’s Confidential Information, the other party shall immediately notify the disclosing party and reasonably assist the other party in remediating or mitigating any potential damage. If a party believes that there has been unauthorized use of Confidential Information, it shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other remedies are inadequate.

Exceptions.

The above restrictions of Section 4.1 shall not apply to: (i) information that becomes, through no act or fault of the party receiving the Confidential Information (“Receiving Party”), publicly known or generally known in the relevant industry; (ii) information received from a third party not obligated under a confidentiality agreement with the party disclosing the Confidential Information (“Disclosing Party”); (iii) information independently developed by either party without use of or reference to the Confidential Information; (iv) information required to be disclosed by law or court or governmental agency order, provided the party gives prompt notice of such requirement to the other party, or; (v) disclosures to a professional advisor under a duty of confidentiality.

Ownership and Return of Confidential Information.

All Confidential Information shall remain the property of the Disclosing Party; including Client Data. Upon written request of the Disclosing Party, the other party shall promptly return to the Disclosing Party all documents and other tangible materials representing the disclosing party’s Confidential Information, together with all copies, in whole or in part, thereof; at Disclosing Party’s expense. After termination, Planview shall have no obligation to maintain or provide any Client Data and shall thereafter, unless legally prohibited, delete all Client Data in Planview’s systems or otherwise in Planview’s possession or control within a reasonable timeframe.

ADDITIONAL TERMS

User Overages.

If at any point during the Term, Client activates additional User(s) totaling more than the number specified in the Order Form, the additional User(s) will be treated as new Users and subject to the prices set forth in the applicable Order Form. The new User(s) will be billed to Client upon its activation on a prorated basis for the time remaining in the Term. Such additional Users shall also be added to a Renewal Term, if applicable (as defined in Section 11.2 hereof).

Users Ordered Under Prior Agreements.

It is expressly agreed that any Users ordered pursuant to any other agreement with Planview or its subsidiaries and affiliates shall now be subject to the terms of this Agreement.

Support; Service Level Agreement; Privacy and Security; No Sensitive Data.

Planview shall use commercially reasonable efforts to correct errors (a material failure of the Application to function in accordance with its documentation) or provide a reasonable workaround. Client shall provide access, information and support to assist Planview in the process of resolving any error. This is Client’s sole and exclusive remedy for errors. The Service Level Agreement is Exhibit A to this Agreement. Planview shall adopt commercially reasonable measures to ensure that the security of the Application meets relevant industry standards. Planview’s privacy and security measures are described at www.innotas.com/company-cloud (the Planview PPM Pro cloud-based project management software page), and/or www.projectplace.com/about-us/security-trust-and-assurance/ (the ProjectPlace security, trust and assurance page) and/or mktgcdn.leankit.com/media/leankit-security.pdf (the AgilePlace “Safeguarding Your Data” PDF document). Client is responsible for the security of all user names and passwords granted to it, for the security of the systems used to access the Application and for its Users’ compliance with this Agreement. Client acknowledges that the Application is not intended for use with protected health information under HIPAA, credit card numbers, financial account numbers, or other similarly-sensitive personal information, and Client assumes all risk arising from use of any such sensitive information with the Application, including the risk of any inadvertent disclosure or unauthorized access thereto.

DISCLAIMER OF WARRANTY.

THE PLANVIEW APPLICATION, ACCESS THERETO, AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND PLANVIEW AND ITS AFFILIATES AND AGENTS: (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO THE PLANVIEW APPLICATION WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE THROUGH THE PLANVIEW APPLICATION IS FREE OF VIRUSES (ALTHOUGH PLANVIEW REPRESENTS THAT IT WILL USE COMMERCIALLY REASONABLE EFFORTS TO AVOID VIRUSES) OR OTHER HARMFUL CONTENTS OR COMPONENTS; (C) SHALL IN NO EVENT BE LIABLE TO CLIENT OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS OR INTERRUPTIONS OF THE PLANVIEW APPLICATION. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES. IN SUCH JURISDICTIONS, PLANVIEW’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

LIMITATION OF LIABILITY.

Exclusion of Consequential Damages.

Except for breaches of Sections 3 or 4, in no event shall Client, Planview, or Planview’s suppliers be liable for any indirect, incidental, special or consequential damages, including without limitation damages for loss of profits, data or use, incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages, provided however, the foregoing shall not be construed to limit either party’s obligations as set forth in Section 8; provided further however, that in the event Client gives access to the Application to non-authorized Users, Planview shall be entitled to recover the full amount of any license fees that would relate to such Users.

Limitation of Direct Damages.

Except for its obligations to indemnify Client under Section 8, or for any breach of its nondisclosure obligations (Section 4), the aggregate and cumulative liability of Planview and its suppliers for damages hereunder shall in no event exceed the amount of fees paid by Client for the previous twelve (12) months under this Agreement. Except for its obligations to indemnify Planview under Section 8, or any breach of its obligations to comply with the License grant (Section 3.1), the Restrictions on Use (Section 3.4), its payment obligations (Section 9), and its non-disclosure obligations (Section 4), Client’s aggregate and cumulative liability for damages hereunder shall in no event exceed the amount of fees paid by Client under this Agreement. Except for actions for non-payment or breach of confidentiality or intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the cause of action has accrued.

INDEMNIFICATION

General Indemnity.

Each party (“Indemnitor”) shall defend and indemnify the other party, its employees, officers, directors and agents (“Indemnitee”) against all damages for bodily injury, death, or damage to real or tangible personal property, proximately caused by the Indemnitor in the course of performing this Agreement, provided that: (i) the Indemnitor receives prompt written notice of the claim from the Indemnitee under this Section; (ii) the Indemnitor has the right to control the defense of such claim and any related settlement negotiations, and; (iii) the Indemnitee provides to the Indemnitor, at the Indemnitor’s request and expense, with the assistance, information and authority necessary to perform the Indemnitor’s obligations under this Section.

Intellectual Property Indemnity.

If a third party makes a claim against Client that the Application directly infringes any patent, copyright, or trademark or misappropriates any trade secret (“IP Claim”); Planview will: (i) defend Client against the IP Claim at Planview’s cost and expense, and (ii) pay all costs, damages and expenses (including reasonable legal fees) finally awarded against Client by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Planview arising out of such IP Claim; provided that: (i) Client promptly notifies Planview in writing no later than thirty (30) days after Client’s receipt of notification of a potential claim; (ii) Planview may assume sole control of the defense of such claim and all related settlement negotiations; (iii) Client provides Planview, at Planview’s request and expense, with the assistance, information and authority necessary to perform Planview’s obligations under this Section; and (iv) Client has not compromised or settled the IP Claim without Planview’s prior written consent.

Intellectual Property Indemnity. (continued)

Notwithstanding the foregoing, Planview shall have no liability for any claim of infringement based on: (i) the use of a superseded or altered release of the Application if the infringement would have been avoided by the use of a current unaltered release of the Application; (ii) the modification of the Application; (iii) the use of the Application with third party software or hardware not provided by Planview; (iv) use of the Application other than in accordance with the documentation and this Agreement; or, (v) any materials or information provided to Planview by Client and Client Data, for which Client shall be solely responsible. If the Application is held to infringe or is believed by Planview to infringe, Planview shall have the option, at its expense, to either replace or modify the Application to be non-infringing, or to obtain for Client a license to continue using the Application. If it is not commercially reasonable to perform either of the foregoing options, then Planview may terminate the Application license and refund the prepaid, unused User Fees paid for the Application. This Section states Planview’s entire liability and Client’s exclusive remedy for any claim of infringement.

FEES AND PAYMENTS.

All fees and amounts due to Planview, including travel expenses, shall be set forth in one or more Order Forms or Statements of Work. All fees are payable in the currency set forth in the applicable Order Form. If no currency is set forth, then fees are payable in U.S. dollars. All fees and amounts are non-refundable, and do not include any applicable taxes, which are the sole responsibility of the Client (except for taxes based on Planview’s net income). All payments are due within thirty (30) days from the date of invoice. All payments not made within such thirty (30) day period shall be delinquent. Late fees shall accrue on all delinquent payments at the lesser of (i) 1.5% per month, or (ii) the maximum rate allowed under law. If delinquent payments are not made within fifteen (15) days of written notice to Client by Planview, Planview may, in its sole discretion, immediately terminate the applicable Order Forms, and Client’s access to the Application with no further liability to Client.

PERSONNEL.

Planview personnel physically located at Client’s facilities, (“On-Site”), shall comply with all reasonable work place standards and policies of which Client notifies Planview in writing. While On-Site, Planview will have reasonable access to use Client’s facilities that are necessary to perform the services and Client will provide reasonable working space to Planview.

TERMINATION; RENEWAL.

This Agreement shall continue to be in force until terminated by either party in accordance with this Section 11.

Termination for Breach.

If either party materially breaches this Agreement or an Order Form and such breach is not cured within thirty (30) days after written notice is given to the breaching party, then the other party may, by giving written notice to the breaching party, terminate the applicable Order Form as of the end of such thirty (30) day period or such later date as is specified in such notice of termination. Planview may terminate this Agreement for cause if Client becomes the subject of a petition of bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

Automatic Renewal.

Following the end of the Term set forth in an Order Form, unless Client has given Planview notice of its desire not to renew sixty (60) days prior to the end of the then-current Term, a new Term will automatically renew for the same length of time as the original Term (“Renewal Term”). Any such Renewal Term will be billed in advance at Planview’s then-current list prices for all licensed Users at the beginning of the Renewal Term.

Effect of Termination.

Upon termination of this Agreement or any Statement of Work or Order Form due to Client’s breach, Client shall pay all amounts due to Planview under all Order Forms and Work Orders and shall not be entitled to a refund for any amounts already paid.

MISCELLANEOUS.

The laws of the State of Delaware shall govern this Agreement without reference to its conflict of law principles. All claims under, or otherwise with respect to, this Agreement shall be brought and maintained in the state and federal courts located in Delaware, USA, and the parties hereby expressly consent (and waive any right to otherwise object) to the exclusive venue and jurisdiction of such courts. The United Nations Convention on the International Sale of Goods shall have no application to this Agreement. Client shall comply with all United States and foreign export control laws, executive orders or regulations applicable to its performance under this Agreement. Without limiting the foregoing, (i) Client represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Client shall not permit Users to access or use the Application in violation of any U.S. export embargo, prohibition or restriction, (iii) and that the Application may not be exported or re-exported into (or to a national or resident of) any U.S. embargoed countries (currently Cuba, Iran, North Korea, Sudan, the Crimea Region of Ukraine and Syria).

MISCELLANEOUS. (contninued)

Planview may unilaterally amend this Agreement by posting a new version online. Any new version will only be binding upon Client when Client has executed a new Order Form after the new version is posted. It is Client’s obligation to read this online Agreement prior to executing a new Order Form.

MISCELLANEOUS. (contninued)

For Clients whose country of incorporation is outside of the United States of America, Client Data shall not be stored in the United States of America.

MISCELLANEOUS. (contninued)

Neither party may assign this Agreement, or its rights or duties hereunder, to any third party, in whole or in part, except that it is agreed that a change in control is not an assignment subject to this section; provided, however, that Planview may terminate this Agreement if a Client change in control results in Client ownership by an entity that Planview reasonably deems to be its competitor. The foregoing notwithstanding, Planview, without Client’s prior consent, may assign, in whole or in part, this Agreement and any of its rights, duties and obligations hereunder to any subsidiary or affiliate.

MISCELLANEOUS. (contninued)

All notices must be in writing and delivered personally or sent by overnight courier service to the address indicated in the Order Form, or such other address as either party may indicate by written notice, and will be deemed effective upon the earlier of actual or two business days after deposit with an overnight courier.

MISCELLANEOUS. (contninued)

The provisions of this Agreement are severable. If any one provision is held to be invalid, the invalid provision will be replaced by a valid clause coming closest to the invalid clause’s intention. No failure or delay by a party in enforcing any right under this Agreement shall constitute a waiver of that right.

MISCELLANEOUS. (contninued)

In the event of any litigation arising out of or in connection with this Agreement or its interpretation or performance, the prevailing party shall be awarded reasonable attorneys’ fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute.

MISCELLANEOUS. (contninued)

This Agreement has been prepared in the English language and the same shall be controlling in all respects. Any non-English versions of this Agreement are provided solely for accommodation purposes. This Agreement constitutes the entire, exclusive and final statement of the agreement of the parties with respect to this subject matter, and supersedes all prior and contemporaneous representations, proposals, negotiations, discussions, and agreements between the parties, whether oral or in writing, including but not limited to any agreement related to confidentiality and nondisclosure. There are no intended third-party beneficiaries under this Agreement.

MISCELLANEOUS. (contninued)

This Agreement may be executed electronically, by facsimile and in counterparts, which taken together shall be considered one binding original Agreement.

MISCELLANEOUS. (contninued)

Those provisions of Sections 4, 7, 8, 9, 11 and 12 shall survive termination or expiration of this Agreement.

MISCELLANEOUS. (contninued)

Except for Client’s obligations to make payments as set forth in this Agreement and each party’s obligations related to confidentiality, each party shall be excused from performance for any period during which, and to the extent that, it or its subcontractor(s) is prevented from performing any obligation or service, in whole or in part, as a result of causes beyond its reasonable control and without its fault or negligence. Such acts shall include without limitation acts of God, strikes, lockouts, riots, acts of war, epidemics, governmental laws and regulations imposed after the fact, fire, communication line failures, power failures, earthquakes, floods or other natural disasters (a “Force Majeure Event”). Delays in delivery or in meeting completion dates due to Force Majeure Events shall automatically extend such dates for a period equal to the duration of such events. In the event of any conflict between the provisions in this Agreement and any Order Form, Exhibit or addendum hereto, or Statement of Work executed hereunder, the terms of such Order Form, Exhibit, addendum or Statement of Work shall prevail to the extent of any inconsistency.

APPLICATION AVAILABILITY.

Provided that Client remains current in its payment obligations to Planview as set forth in the Agreement, Client shall have the right to the availability provisions set forth herein.

Definition of Availability.

“Availability” or “Available” means Client is able to log in to the Application. “Unavailable” or “Unavailability” means Client is unable to log in to the Application, subject to the following subsections.

Scheduled Downtime.

The Application may be inaccessible to Client during Scheduled Downtime. Scheduled Downtime may occur for less than one (1) hour between 10 pm and 6 am US Central Time and on Saturdays between 12:00 am and 3:00 am US Central Time. Planview reserves the right to change the Scheduled Downtime to other non-business hours upon notice to Client. Scheduled Downtime shall not be considered times when the Application is Unavailable.

Exceptions to “Unavailability.”

In addition to Scheduled Downtime, any period in which Client is unable to use the Application due to the conduct of Client or any circumstances outside of the control of Planview or its third party providers, including but not limited to the following, shall not be considered times when the Application is Unavailable:

1. A failure or malfunction resulting from scripts, data, applications, equipment, or services provided and/or performed by Client.
2. Outages initiated by Planview or its third party providers at the request or direction of Client for maintenance, back up, or other purposes.
3. Outages occurring as a result of any actions or omissions taken by Planview or its third party providers at the request or direction of Client.
4. Outages resulting from Client’s equipment and/or third party equipment not within the sole control of Planview.
5. Events resulting from an interruption or shut down of the Application due to circumstances reasonably believed by Planview to be a significant threat to the normal operation of the Application, the facility from which the Application is provided, or access to or integrity of Client data (e.g., a hacker or a virus attack).
6. Outages due to system administration, commands, file transfers performed by Client representatives.
7. Other activities Client directs, denial of service attacks, natural disasters, changes resulting from government, political, or other regulatory actions or court orders, strikes or labor disputes, acts of civil disobedience, acts of war, and other force majeure items.
8. Client’s negligence or breach of its material obligations under this Agreement.
9. Lack of availability or untimely response time of Client to respond to incidents that require its participation for source identification and/or resolution.

Target System Availability.

The “Target System Availability Level” is the Application Availability Level that Planview plans to meet or exceed during each quarter. The “Application Availability Level” is the number of hours during a particular period that the Application was Available to Client, excluding Scheduled Downtime (as defined above), divided by the total number of hours during such period (as measured at the end of such period). The Target Application Availability Level is 99.5% in any calendar quarter.

REMEDIES

Service Credits and Termination.

In the event that in a given quarter the Application Availability Level falls below 99.5%, Planview will provide Service Credits as described in the table below.

Sole and Exclusive Remedies.

The Service Credits described in this Section 2 shall be Client’s sole and exclusive remedy and Planview’s sole and exclusive liability for any breach of the obligations set forth in this Exhibit A.