TERMS AND CONDITIONS FOR MARKLOGIC PRODUCTS AND … · training rates for the course(s) selected by Customer and, notwithstanding any to the contrary, shall be payable in advance

immixTechnology, Inc. Page 1 reformatted 5.29.2012

All references to MarkLogic in these Terms and Conditions should be read as “Contractor (immixTechnology, Inc.), acting by and through its supplier, MarkLogic.”

TERMS AND CONDITIONS FOR MARKLOGIC PRODUCTS AND SERVICES

1. Definitions

1.1 “Agreement” means this Master Software License and Services Agreement, Order Documents, Statements of Work, information contained in a MarkLogic URL or policy referenced in the foregoing and such other documents, attachments and exhibits that the Parties’ authorized representatives may mutually agree to in writing.

1.2 “Applications” means applications that interact and operate with the Software, according to any restrictions specified in the Order Document, developed in accordance with the Documentation; provided, that such applications do not expose generic database functionality provided by the Software nor allow users to further develop such applications.

1.3 “Customer Technology” means any Intellectual Property which is owned or licensed by Customer prior to the Effective Date or which is developed by Customer outside the scope and unrelated to the subject matter of this Agreement. Customer Technology expressly excludes Developed Materials and Work Product.

1.4 “Developed Materials” means any Intellectual Property created or developed solely or primarily by MarkLogic, its employees, agents or contractors, other than Work Product.

1.5 “Documentation” means any user instructions, release notes, manuals or other materials, and on-line help files in the form generally made available by MarkLogic regarding the use of the Software.

1.6 “Equipment” means a single Customer computer system or virtual computer system at Customer’s facilities running the Software, which meet the restrictions specified on the applicable Order Document, if any.

1.7 “Error” means a material failure of Software to conform to its functional specifications described in the Documentation.

1.8 “Error Correction” means any bug fixes, modifications, additions, or routines intended to correct the practical adverse effect of an Error.

1.9 “Intellectual Property Rights” means patent rights (including patent applications and invention disclosures), copyrights, rights in database, moral rights, trademarks, service marks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded.

1.10 “Intellectual Property” means technology, inventions, know-how, show-how, designs, formulae, processes, techniques, trade secrets, ideas, artwork, software, works of authorship, and any document or other materials embodying any of the foregoing, whether or not any of the same are patentable or copyrightable, and related documentation.

1.11 “License Keys” means the license key or keys provided to Customer by MarkLogic hereunder to enable the Software.

1.12 “License Period” means the period for which the license is granted to Customer for each Software, as set forth in an Order Document.


1.13 “Services” means any training services, as described in Section 3.2, or professional services, as described in Section 3.3 herein.

1.14 “Order Document” means the document executed by the Parties specifically referencing this Agreement pursuant to which Customer orders and MarkLogic accepts to supply Software licenses and/or Support, under the terms and conditions of this Agreement.

1.15 “Software” means the computer software programs in object code format specified in the Order Document, the License Keys, Documentation, copies thereof and, if Customer has purchased Support, Updates.

1.16 “Statement of Work” means the document executed by the Parties specifically referencing this Agreement pursuant to which Customer orders and MarkLogic supplies Services, as ultimately described in the Statement of Work

1.17 “Support” means the technical support services and Updates for the level of support services specified in the Order Document.

1.18 “Territory” means the certain geographic areas, specified in the Order Document, in which the Software may be used.

1.19 “Updates” means Error Corrections, updates, modifications or enhancements to the Software developed after the effective date of the Order Document, which MarkLogic makes generally available under the Support level ordered by Customer in the applicable Order Document. Updates expressly exclude new products for which MarkLogic generally charges a separate license fee.

1.20 “Work Product” means any Intellectual Property created or developed by MarkLogic, its employees, agents or contractors on behalf of, and that is specified in the applicable Statement of Work as a deliverable to, Customer in the course of providing Services.

2. Software License

2.1 Grant. Subject to the terms and conditions of this Agreement, including but not limited to payment of the applicable fees and the Software use rights, rules and definitions described in the applicable Order Document, MarkLogic grants to Customer a limited, nonexclusive, nontransferable license in the Territory and for the License Period to (a) install, run and use the Software on the Equipment solely for Customer’s own internal business operations and solely as enabled by the License Keys, and (b) use the Documentation in connection with such use of the Software.

2.2 Additional Licenses. Customer may expand the license granted under this Agreement, or otherwise change the scope of the license granted under an Order Document, upon MarkLogic’s receipt and acceptance of a new Order Document specifying the foregoing, and upon Customer’s payment of additional license fees for such expanded scope as set forth in MarkLogic’s then-current price list.

2.3 Copies. Except as otherwise set forth in an Order Document and except for archival or backup copies of the Software, Customer may not make copies of the Software. Notwithstanding the foregoing and except as otherwise set forth in an Order Document, in no event shall the Software be installed on Equipment that is immediately available for production processing in the event of a disaster or failure of the primary production Equipment running the Software.


2.4 License Restrictions. Customer shall not itself, or through any affiliate, employee, consultant, contractor, agent or other third party:

a) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Software, or MarkLogic’s Confidential Information (as defined in Section 7.2 below);

b) use the Software to provide training or other professional services to third parties;

c) decipher decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the Software, including the License Keys, or MarkLogic’s Confidential Information, in whole or in part, for competitive purposes or otherwise;

d) allow access, provide, divulge or make available the Software or MarkLogic’s Confidential Information to any user other than Customer’s employees and independent contractors who have a need for such access and who shall be bound by a written nondisclosure agreement applicable to the Software with provisions that are no less restrictive than the terms of this Agreement;

e) write or develop any derivative software or any other software program based upon the Software, the Documentation or any Confidential Information, except that Customer may develop its own Applications independently;

f) modify, adapt, translate or otherwise make any changes to the Software or any part thereof, including the License Keys;

g) create license keys or other programs or functionality that enable access to the Software, reverse engineer or otherwise attempt to discover or decipher the License Keys, distribute the License Keys to third parties, or cause such third parties to create, use, or distribute the License Keys, knowingly or otherwise;

h) use the Software or MarkLogic’s Confidential Information to provide processing services to third parties, or otherwise use the Software on a ‘service bureau’ basis or outsource any of its operations utilizing any Software to any third party (which shall include, without limitation, the operation or maintenance of any environment on which any Software is installed). “Outsource” used in this section shall mean any arrangement by which a third party performs any of Customer’s internal business operations on Customer’s behalf;

i) use any name, mark or designation of MarkLogic, any of its affiliates or licensors or their respective products or services, unless expressly permitted herein or by MarkLogic in writing;

j) disclose or publish, without MarkLogic’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on Software; or

k) use the Software where Customer has an existing license to the MarkLogic Express Edition of the Software;

l) otherwise use or copy the Software except as expressly permitted herein.

2.5 Delivery. MarkLogic will promptly make available to Customer, within 10 days after execution and receipt by MarkLogic of (i) the applicable Order Document and (ii) a purchase order from Customer, if applicable as determined by MarkLogic, License Keys as specified in the applicable Order Document, a downloadable


machine-readable copy of the Software and a downloadable machine-readable copy of the Documentation. Customer will be solely responsible for installation and implementation of the Software.

2.6 Inspection/Acceptance. The Contractor (immixTechnology, Inc.) can only, and shall only tender for acceptance those items that substantially conform to the software manufacturer’s (“MARKLOGIC”) published specifications. Therefore, items delivered shall be considered accepted upon delivery. The Government reserves the right to inspect or test any supplies or services that have been delivered. The Government may require repair or replacement of nonconforming supplies or re-performance of nonconforming services at no increase in contract price. If repair/replacement or re-performance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights- (1) Within the warranty period; and (2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.

3. Services

3.1 Support. If ordered, Support is provided on an annual basis under MarkLogic’s Support policies in effect at the time the services are provided for the level of services ordered. Customer may access the current version of such policies as set forth in MarkLogic’s Support Handbook and found on the web at http://www.marklogic.com/files/Mark_Logic_Support_Handbook.pdf. When ordered, Support must be ordered for all copies of the Software. The Support fee is as set forth in the applicable Order Document. Support will automatically renew each year unless either Party notifies the other of its intention not to renew Support at least thirty (30) days prior to the expiration of the then-current term. If Customer terminates Support, Customer may reinstate Support only in accordance with MarkLogic’s then-current business policies concerning reinstatement which may require, among other things, either payment to MarkLogic of the annual Support fee for the reinstatement period and all Support fees that would have been paid previously had Customer not terminated Support.

3.2 Training. Customer may obtain, at its sole option, training courses for its personnel, as set forth in the applicable Statement of Work. Training will be held at a mutually agreed upon time and location. Unless otherwise specified in this Statement of Work, the training fee is charged to Customer at MarkLogic’s standard training rates for the course(s) selected by Customer and, notwithstanding any to the contrary, shall be payable in advance of MarkLogic’s performance of the training course. If Customer discontinues training before the completion of any such training course, MarkLogic has no obligation to reinstate training fees after such course has been discontinued by Customer and Customer will not be entitled to any refund of any previously paid training fees.

3.3 Professional Services. Customer may obtain, at its sole option, professional services such as site planning, configuration, integration and deployment of the Software, as mutually agreed to and described in the applicable Statement of Work.

3.4 Segmentation. The Services, if any, provided under a Statement of Work may be related to Customer’s license to use Software which Customer may acquire under a separate Order Document. The Agreement and that Order Document shall govern Customer’s use of such Software. Any Services acquired hereunder from


MarkLogic are bid separately from such Software license(s), and Customer may acquire either Services or such Software license(s) without acquiring the other.

3.5 Personnel. MarkLogic shall provide sufficient personnel to perform the services required by the Statements of Work. MarkLogic’s personnel performing the services may be either MarkLogic employees or contractor personnel, and in either case shall comply with Customer’s rules and regulations while on Customer’s premises. Customer agrees to provide MarkLogic with access to and use of Customer’s personnel, facilities and equipment to the extent necessary for MarkLogic to perform the services. Statements of Work may set forth additional details regarding MarkLogic’s access to and use of Customer’s personnel, facilities and equipment.

4. Fees and Taxes. Fees or other charges for the Software, Support, Services or other services shall be due and payable within 30 days of invoice.

5. Warranties, Disclaimers and Limitation of Liability

5.1 Software. MarkLogic warrants that the Software, as updated and used in accordance with the Documentation and this Agreement, will perform in substantial accordance with the Documentation for a period of 90 days after the effective date of the applicable Order Document for such Software. As Customer's exclusive remedy for any claim under the warranty in this Section 5.1, Customer shall promptly notify MarkLogic in writing of its claim and, provided that such claim is determined by MarkLogic to be MarkLogic’s responsibility, MarkLogic shall, within 30 days of its receipt of Customer's written notice, (i) use commercially reasonable efforts to correct any Error in the Software or (ii) provide Customer with a plan reasonably acceptable to Customer for correcting any such Error. The preceding warranty cure shall constitute MarkLogic’s entire liability and Customer's exclusive remedy for cure of the warranty set forth in this Section 5.1.

5.2 Services. MarkLogic warrants that the Services will be performed in a workmanlike manner. As Customer’s exclusive remedy for any claim under this warranty, Customer shall notify MarkLogic in writing of its claim within thirty (30) days of MarkLogic’s completion of the applicable Services and, provided that such claim is determined by MarkLogic to be MarkLogic’s responsibility, MarkLogic shall re-perform the applicable Service. MarkLogic’s entire liability and Customer’s exclusive remedy for any breach of the warranty set forth in this Section 5.2 shall be the re-performance of the applicable Service.

5.3 Requirements. The warranties set forth above are made to and for the benefit of Customer only. The Software warranty shall apply only if (i) the Software has been properly installed and used at all times in accordance with this Agreement and the Documentation; (ii) no modification, alteration or addition has been made to the Software by persons other than MarkLogic or MarkLogic’s authorized representative; and (iii) a defect in or malfunction of the Software has not been caused by Customer, Equipment, Customer’s other equipment or software, including, without limitation, Applications, or third party software or equipment.

5.4 Disclaimer. Customer acknowledges that no employee, agent, representative or affiliate of MarkLogic has authority to bind MarkLogic to any oral representations or warranties concerning the Software, or any other product or service provided to Customer hereunder, including any Work Product. Any written representation or warranty not expressly contained in this Agreement is expressly disclaimed and is not


enforceable. Except as set forth in this Section 5, MarkLogic makes no warranties, whether express, implied, or statutory regarding or relating to the Software, Services, Support, Developed Materials, Work Product or any other materials or services provided to Customer hereunder. MARKLOGIC HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE, SERVICES, SUPPORT, DEVELOPED MATERIALS, WORK PRODUCT AND OTHER MATERIALS PROVIDED TO CUSTOMER HEREUNDER. MARKLOGIC DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, SERVICES, SUPPORT, DEVELOPED MATERIALS, WORK PRODUCT OR ANY OTHER MATERIALS PROVIDED BY MARKLOGIC WILL BE ERROR-FREE, PERFORM IN AN UNINTERRUPTED MANNER, OR THAT MARKLOGIC WILL CORRECT ALL ERRORS.

5.5 Limitation of Liability. IN NO EVENT WILL MARKLOGIC BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, BUSINESS INTERRUPTION OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE SOFTWARE, SERVICES, SUPPORT, DEVELOPED MATERIALS, WORK PRODUCT, ANY OTHER MATERIALS PROVIDED BY MARKLOGIC OR OTHER SERVICES PERFORMED BY MARKLOGIC, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, EVEN IF MARKLOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OTHER THAN MARKLOGIC’S OBLIGATIONS TO INDEMNIFY CUSTOMER AS SET FORTH IN SECTION 6 HEREIN, MARKLOGIC’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES AND COSTS SHALL NOT, IN ANY EVENT, EXCEED THE FEE PAID BY CUSTOMER TO MARKLOGIC FOR THE SOFTWARE, SERVICES OR SUPPORT UPON WHICH SUCH DAMAGES AND/OR COSTS ARE BASED.

6. Indemnification

6.1 Customer Indemnity. To the extent not prohibited by law, MarkLogic shall defend any action, suit or proceeding brought against Customer alleging that the Software infringes any copyright or misappropriate any trade secret of any third party and shall pay any final judgments awarded or settlements entered into and agreed to by MarkLogic; provided, that Customer gives prompt written notice to MarkLogic of any such action, suit or proceeding and gives MarkLogic the authority to proceed as contemplated herein. MarkLogic shall have the right to defend any such action, suit or proceeding and make settlements thereof at its own discretion, and Customer may not settle or compromise such action, suit or proceeding, except with the prior written consent of MarkLogic. Customer shall give such assistance, cooperation and information as MarkLogic may reasonably require to defend, settle or oppose any such action, suit or proceeding.

6.2 Remedy. In the event any such infringement action, suit or proceeding is brought or threatened, MarkLogic may, at its sole option and expense: (i) procure for Customer the right to continue use of the Software or the allegedly infringing part thereof; (ii) modify or amend or replace the same with other software or material having substantially similar functionality and performance; or (iii) if neither of the foregoing is commercially practicable as determined by MarkLogic in its sole discretion, MarkLogic shall have the right to terminate the license for the Software involved, and repay to Customer a portion, if any, of the fees paid by Customer equal to the amount paid by Customer for the affected Software less one thirty-sixth (1/36) thereof for each month or portion thereof that the applicable Order Document has been in effect.


6.3 Exclusions. The foregoing obligations shall not apply to the extent the action, suit or proceeding for infringement and/or misappropriation arises or results from (i) modifications to the Software made by any party other than MarkLogic or MarkLogic’s authorized representative, (ii) Software or components thereof made in whole or in part to Customers’ specifications upon Customer’s request, (iii) Software that does not incorporate all of the Updates provided by MarkLogic to Customer or is not being used in compliance with this Agreement, (iv) use of the Software beyond the scope of or not in compliance with the terms of the Documentation, (v) breach of this Agreement by Customer, (vi) combination of the Software or components thereof with other products (hardware or software), processes or materials to the extent the alleged infringement relates to such combination, or (vii) where Customer continues the allegedly infringing activity after being notified thereof and is provided modifications, replacements or other remedies that would have avoided the alleged infringement.

6.4 Limitation. This Section 6 states the entire liability of MarkLogic with respect to infringement of any Intellectual Property Right.

6.5 Reserved.

7. Ownership/Confidentiality.

7.1. Ownership. MarkLogic retains sole and exclusive ownership of the Software and all Intellectual Property Rights in, to and/or embodied in or associated with the Software, Support and Services provided by MarkLogic hereunder, and all copies and derivative works thereof (whether developed by MarkLogic, Customer or a third party), other than Applications independently developed by Customer. Customer acknowledges that no source code of the Software will be provided to Customer. MarkLogic shall retain all rights, title and interest in and to any and all Developed Materials used or in any manner employed by MarkLogic in the provision of services and any and all Work Product. MarkLogic grants Customer, upon full payment of the applicable Services fees and charges, a personal, nonexclusive, non-transferable, worldwide, royalty-free license to, use, execute, reproduce, display, perform and internally distribute the Work Product and prepare for internal use only derivative works based upon the Work Product. Additionally, to the extent Developed Materials may be included with or embodied in any deliverable(s) delivered hereunder, MarkLogic grants Customer, upon full payment of the applicable fees and charges, a personal, nonexclusive, non-transferable, worldwide, royalty-free license to, during the License Period, use, execute, reproduce, display, perform, and internally distribute the Developed Materials and prepare for internal use only derivative works based upon such Developed Materials in each case solely in conjunction with the deliverable(s) provided in connection with the Order Document. Customer acknowledges that MarkLogic may create original works for third parties that may appear similar to a deliverable provided hereunder, including any Work Product. Customer agrees that, so long as such original work does not embody and is not created with reference to any of Customer’s Confidential Information or any portion of the Customer Technology, MarkLogic will not be prevented from independently creating original, but similar, works for the benefit of third parties. Except as expressly set forth in this Section 7.1, the license restrictions set forth herein apply to Work Product and Developed Materials. All rights not expressly granted in this Agreement are reserved by MarkLogic.

7.2 Confidentiality. By virtue of this Agreement, each Party may be exposed to or be provided with certain confidential and proprietary information of the other Party, including, but not limited to, information designated as confidential in writing and information, which ought to be in good faith considered confidential and proprietary to the disclosing Party (“Confidential Information”). Notwithstanding the foregoing, the


following are Confidential Information of MarkLogic: the terms and conditions (but not the existence) of this Agreement, all trade secrets, software, including, without limitation, the Software, Developed Materials and Work Product, source code, object code, specifications, as well as results of testing and benchmarking of the Software or other services, product roadmap, data and other information of MarkLogic and its licensors relating to or embodied in the Software, Developed Materials or Work Product. Each Party will protect the other's Confidential Information from unauthorized dissemination and use with the same degree of care that each such Party uses to protect its own non-public and confidential information, but in no event less than a commercially reasonable degree of care. Neither Party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither Party will disclose to third parties the other's Confidential Information without prior written consent of such other Party. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving Party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving Party; (ii) was in the receiving Party's possession before receipt from the disclosing Party; (iii) is lawfully obtained from a third party who has the right to make such disclosure; (iv) has been independently developed by the receiving Party without use of or reference to any Confidential Information of the disclosing Party; or (v) is required to be disclosed by law provided the receiving Party has promptly notified the disclosing Party of such requirement and allowed the disclosing Party a reasonable time to oppose such requirement.

8. Term and Termination

8.1 Term. This Agreement shall take effect on the Effective Date and shall remain in force until the earlier of expiration of all License Periods specified in the attached Order Documents and termination in accordance with this Section 8.

8.2 Termination by Customer. This Agreement and/or an Order Document may be terminated by Customer upon 30 days’ prior written notice to MarkLogic, with or without cause; provided, that if such written notice sets forth that the termination is for cause, MarkLogic shall have 30 days after MarkLogic’s receipt of Customer’s written notice to cure, and upon such cure, Customer shall withdraw its written notice of termination. Except as otherwise expressly set forth herein, no termination for any reason shall entitle Customer to a refund of any portion of the fees paid under this Agreement or an Order Document and any fees or charges incurred through the effective date of termination shall become immediately due and payable.

8.3 Reserved.

8.4 Effect of Termination. Sections 1, 4, 5, 7, 8.4 and 9 shall survive expiration or any termination of this Agreement for as long as necessary to permit their full discharge. On and after the effective date of expiration or termination, as applicable, all of Customer’s rights to the Software, the Developed Materials and other materials provided by MarkLogic, other than Work Product, granted under this Agreement and its rights to any Support and other services shall immediately cease. Customer's license to the Work Product set forth in Section 7.1 shall survive the expiration or any termination of this Agreement other than a termination by MarkLogic pursuant to Section 8.3. No later than 30 days after the date of expiration, termination or discontinuance of this Agreement for any reason whatsoever, Customer shall return or destroy the Software (including the Documentation, the License Keys and any Updates released by MarkLogic), the Developed Materials and any other materials provided by MarkLogic, any other Confidential Information in its possession


or control and all copies of any of the foregoing in any medium, except for any Work Product which shall only be returned to MarkLogic in the event MarkLogic terminates this Agreement pursuant to Section 8.3 above.

9. Miscellaneous

9.1 Audit. To the extent not prohibited by law, upon 15 days notice and not more frequently than once per calendar year (unless deficiencies are found, in which case as frequently as is required to ensure that deficiencies are eliminated), MarkLogic, or its designated agent, may periodically carry out an audit of Customer’s facilities and systems to ensure Customer’s compliance with the terms of the Agreement. Customer will reasonably cooperate with MarkLogic in such an exercise and provide MarkLogic with reasonable access to its facility and systems to enable MarkLogic’s audit. MarkLogic shall reasonably endeavour not to disrupt Customer’s normal business activities and shall perform the audit in a professional manner. If such audit reveals any noncompliance by Customer of this Agreement, Customer shall reimburse MarkLogic for the costs and expenses of such audit incurred by MarkLogic and pay MarkLogic for any use of the Software beyond the scope or number of licenses authorized or granted in the applicable Order Document at MarkLogic’s then-current list price, and Customer shall promptly cure any such noncompliance; provided, however, that the obligations under this Section 9.1 do not constitute a waiver of MarkLogic’s termination rights or any other rights hereunder.

9.2 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger, consolidation or similar transaction without the prior written consent of MarkLogic. Any assignment by Customer without MarkLogic’s prior written consent is null and void. MarkLogic may assign and delegate its rights and obligations under this Agreement without restriction. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.

9.3 Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be (i) delivered in person, (ii) sent by first class registered mail, or air mail, as appropriate, or (iii) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth below:

Customer: MarkLogic: MarkLogic Corporation 999 Skyway Road San Carlos, CA 94070 Attn: Attn: Legal

Notices shall be considered to have been given at the time of actual delivery in person, 3 business days after deposit in the mail as set forth above or 1 day after delivery to an overnight air courier service, provided in each case that delivery in fact is affected.

9.4 Independent Parties. The Parties will at all times be independent contractors and will so represent themselves to all third parties. Neither Party has granted to the other the right to bind it in any manner whatsoever, and neither Party shall hold itself out as entitled to do the same. Nothing herein will be deemed to empower either Party to be the agent or legal representative of the other nor to constitute the Parties as partners, co-owners, or joint venturers.


9.5 Force Majeure. Neither Party shall incur any liability to the other Party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the Party seeking protection under this Section 9.5. Such events, occurrences, or causes shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire or explosions, but the inability to meet financial obligations is expressly excluded.

9.6 Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by either of the Parties hereto of a breach or of a default under any of the provisions of this Agreement shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such Party’s rights under this Agreement and shall not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action.

9.7 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties shall endeavor in good faith to agree to such amendments that shall preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition or provision shall be severed from the remaining terms, conditions and provisions, which shall continue to be valid and enforceable to the fullest extent permitted by law.

9.8 Reserved.

9.9 Reserved.

9.10 Export. Customer shall comply and shall at MarkLogic’s request, provide to MarkLogic written evidence of such compliance with any and all applicable export laws, restrictions and regulations. Customer shall not export or re-export the Software or the Documentation without the prior written consent of MarkLogic and without the appropriate United States and foreign government licenses.

9.11 Not Fault Tolerant. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance (such as, without limitation, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support machines, or weapons systems) in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damage. Accordingly, the license granted in this Agreement excludes use in any such environments and such use is unauthorized and prohibited. Customer hereby agrees (i) not to directly or indirectly use the Software in such environments and (ii) to indemnify MarkLogic and any of its licensors from all losses, claims, damages, liabilities, attorneys’ fees and other costs and expenses arising from or relating to Customer’s use of Software in such environments.

9.12 U.S. Government Customers. If Customer is a United States government agency or acquired the license to the Software hereunder pursuant to a government contract or with government funds, then as defined in FAR §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) or otherwise, all Software provided in


connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR §227.7202 and FAR §12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the United States government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. Customer shall ensure that each copy used or possessed by or for the United States government is labeled to reflect the foregoing.

9.13 Publicity: MarkLogic may refer to Customer as a MarkLogic customer and/or use Customer’s logos within sales, marketing, investor and analyst presentations and materials (including but not limited to MarkLogic’s website), and related activities. Further, within the first 60 days of the Effective Date, MarkLogic may request, and Customer shall agree, that (i) Customer review one MarkLogic press release and provide a referenceable quote, which MarkLogic may use in various forms of media, from a Customer executive regarding MarkLogic Software or Services and (ii) Customer designate one Customer employee to engage with MarkLogic to assist in creating a case study regarding Customer. Further and at any point during the Term, MarkLogic may request that (i) Customer designate 1-2 Customer employees knowledgeable about MarkLogic Software to provide referenceable quotes in various forms of media, as applicable, (ii) Customer agree to participate in an electronic video production which may appear in various locations, but not be limited to, MarkLogic’s website, MarkLogic’s youtube channel, trade shows/conferences, etc., (iii) upon deployment/go-live of the Software implementation, Customer agree to participate in a press release, which will include a referenceable quote from a Customer executive regarding such deployment/go-live, and (iv) Customer review MarkLogic invitations for Customer employees to speak at events, conferences, advisory groups, user groups, webinars, webcasts or seminars. Finally, Customer agrees to allow MarkLogic to display Customer’s logo on MarkLogic’s website along with a brief description of Customer’s implementation of MarkLogic Software. .

9.14 Reserved.

9.15 Reserved.

MARKLOGIC CUSTOMER SUPPORT HANDBOOK

Policies and Procedures Governing MarkLogic Maintenance and Support Offerings

February 2011

MarkLogic Corporation – Customer Support Handbook

Copyright © 2005-2011 MarkLogic Corporation. All rights reserved.

Page 2 of 9

Table of Contents Page

How to Contact Us……………………………………………………………………………………………. 3

How to Receive Support Services……………………………………………………………………….. 3

Registering with MarkLogic………………………………………………………………………………. 3

Customer Support Contact…………………………………………………………………………… 3

Registering your Customer Support Contacts…………………………………………………. 3

Support Plan Features………………………………………………………………………………………. 4

Software Updates………………………………………………………………………………………. 4

Technical Support……………………………………………………………………………………… 4

On-site Support………………………………………………………………………………………….. 4

What to Do Prior to Logging a Service Request……………………………………………………. 5

Understanding Case Priority and Response Time Targets……………………………………… 5

Technical Support Life Cycle……………………………………………………………………………… 6

Product Release Numbering…………………………………………………………………………. 6

Maintenance and Assistance Support……………………………………………………………. 6

Support Cycle……………………………………………………………………………………………. 6

End of Life…………………………………………………………………………………………………. 7

Customer Responsibilities…………………………………………………………………………………..

Support Terms………………………………………………………………………………………………….

7

7

Information in this document and MarkLogic technical support policies are subject to change without notice.



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HOW TO CONTACT US

To contact MarkLogic Technical Support, please use one of the following methods:

Email – [email protected]

Web – https://help.marklogic.com

Phone – 650-655-2300

We recommend that all support requests be submitted via either email or web, to enhance the process of reporting, tracking and resolving issues.

HOW TO RECEIVE SUPPORT SERVICES

As a customer, you can receive MarkLogic support services as soon as:

The MarkLogic software products are properly licensed by you and you have a valid

contract with MarkLogic, and

You have registered with MarkLogic support.

Support services are provided for issues (including problems created by you) that are

demonstrable or reproducible in the currently supported release(s) of a MarkLogic licensed product, running unaltered, and on an appropriate hardware and operating system configuration,

as specified in the product documentation.

REGISTERING WITH MARKLOGIC SUPPORT

Customer Support Contact

Unless your contract with MarkLogic provides otherwise, you can designate up to two support

contacts within your organization.

The role of the customer support contact is to serve as the first level of support for your organization, to log technical support issues for everyone in your organization, and to contact

MarkLogic support in case of a technical problem.

Registering your Customer Support Contacts

Phone MarkLogic support to register your support contacts, with the following information:

contact name, email address, telephone number and work address.

mailto:[email protected]

https://help.marklogic.com/



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SUPPORT PLAN FEATURES

Software Updates

"Update" means a subsequent release of the software which MarkLogic generally makes available for licensed installations to its supported customers at no additional license fee, provided you

have purchased maintenance and support services for such licenses for the relevant time period. Updates do not include any release, option, or future software that MarkLogic licenses

separately.

Software Updates is the base level for all MarkLogic support services and consists of:

Major, minor, and service releases Patches

Documentation updates

Bug fix information

Updates are provided when available, and MarkLogic is under no obligation to develop any future

software or functionality.

Customer support contacts are notified when updates become available. MarkLogic will provide

download information; you are responsible for downloading and installing the updates.

Technical Support

Technical Support consists of assistance with unlimited support requests and includes email and

telephone support during standard business hours. MarkLogic’s standard business hours are 9 a.m. to 5 p.m., except for holidays observed by MarkLogic. Holidays are posted on the support

site.

Support requests for severity 1 issues (as defined below) should be submitted at any hour via

email to [email protected] or by calling our urgent support telephone number: 650-655-2303.

MarkLogic is not obligated to provide other support services or levels, including support directly

to end users or customers of our customers or any other third party.

On-Site Support

Installation services and additional engineering or technical services, such as on-site trouble-

shooting, configuration, integration and deployment of the software, are available under a

separately agreed Professional Services Agreement. MarkLogic has no obligation to provide any service other than those set forth in this support policy and paid for by the customer.

Professional Services rates are billed on a time and materials basis, plus travel and accommodation expenses of MarkLogic personnel.

mailto:[email protected]



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WHAT TO DO PRIOR TO LOGGING A SERVICE REQUEST

Before contacting MarkLogic Support, please follow the general checklist provided below:

Ensure that you have been registered as a customer support contact.

Review the product documentation, including troubleshooting instructions.

Ensure that you have a supported system configuration.

Document all pertinent information regarding your deployment: Product name and

version, hardware and operating system, description of the problem (including error

messages, and the circumstances under which problem occurred, including the events and actions leading up to the problem

Prepare a minimum reproducible case. When submitting a service request, your support

contact should have a baseline understanding of the problem you are encountering and

an ability to reproduce the problem in order to assist MarkLogic in diagnosing and triaging the problem.

UNDERSTANDING CASE PRIORITY AND RESPONSE TIME TARGETS

You and your MarkLogic support engineer will work together to assign the appropriate priority level to your service request. The MarkLogic support engineer will classify your support need and

the problem severity according to the following criteria.

Case Priority

Problem Severity

Response Goals

1 – Severe The system or major application is down or seriously impacted, or data is lost or destroyed, and there is no reasonable workaround currently available (system crashes or panics, corrupted data).

MarkLogic responds within 1 hour.

2 - High The system or application is moderately affected. There is no workaround currently available or the workaround is cumbersome to use.

MarkLogic responds within 4 business hours.

3 - Medium The system or application issue is not critical: no data has been lost, and the system has not failed. The issue has been identified and does not hinder normal operation, or the situation may be temporarily circumvented using an available workaround.

MarkLogic responds within 1 business day.

4 – Low Non-critical issues, general questions, enhancement requests.

MarkLogic responds within 3 business days.



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Response time is the time it takes to answer the initial contact on a service request, and assumes

the support request was properly filed through documented procedures. Response time is not a resolution goal and should not be interpreted as a guarantee of service.

TECHNICAL SUPPORT LIFE CYCLE

Product Release Numbering

MarkLogic uses a three-place numbering scheme to designate released versions of software. The

format is VV.RR-MM, where V indicates the version, R indicates the release level, and MM indicates the maintenance level. An example would be Version 3.0-1 (abbreviated 3.0-1).

A major release indicates major enhancements to product functionality. A change in the VV

number denotes a major release, e.g. 3.0-1.

A minor release is provided to introduce enhanced functionality on a smaller scale. A change in

the RR number denotes a minor release, e.g. 3.1-1.

A service release is produced to roll out resolutions to a number of problems that have been

identified in the product. A change in the MM numbering denotes a service release, e.g. 3.1-2.

Maintenance and Assistance Support

Maintenance Support includes Software Updates as defined previously.

Assistance Support includes assistance and workarounds for resolving known problems. As a product

enters Assistance Support phase, the following guidelines apply:

New enhancements and error corrections will not be made to the version/release. MarkLogic will direct customers to existing fixes/patches and workarounds applicable to

the reported case. MarkLogic may direct customers to upgrade to a more current version/release of the

product.

Support Cycle

When a major release is made available, MarkLogic will continue to provide Maintenance Support

for the prior major release for a period of at least 365 days from the declared production date of

the new major release. After this period, MarkLogic will provide Assistance Support for a period of at least an additional 180 days.

When a minor release is made available, MarkLogic will continue to provide Maintenance Support

for the prior minor release for a period of 365 days from the declared production date of the new

minor release. After this period, MarkLogic will provide Assistance Support for a period of at least an additional 180 days.

MarkLogic will only provide maintenance support for the last two minor releases at any given

time. For example, if MarkLogic has released versions 3.0, 3.1 and 3.2, it will only provide

maintenance support for 3.1 and 3.2.



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When a service release is made available, MarkLogic will continue to provide Assistance Support

for the prior service release for a period of 90 days from the declared production date of the new service release.

The support cycle described above is based on a major and minor release frequency that results

in an average minor release lifespan of 18 – 24 months.

End of Life

In an effort to continuously enhance and improve our product offering, it may become necessary as a part of MarkLogic's product lifecycle to declare that a particular product or product

configuration (eg. a particular operating system release) is at the “end of life” stage and therefore, MarkLogic reserves the right to desupport that product or product configuration. End-

of-Life Notices generally are available 12 months in advance of the desupport date.

Desupport Notices are provided to you by either mail or e-mail. Desupport Notices contain

desupport dates, information about availability of Maintenance Support and Assistance Support, and information about migration paths for certain features. Desupport Notices are subject to

change. MarkLogic will provide updated Desupport Notices as necessary.

CUSTOMER RESPONSIBILITIES

As a customer of MarkLogic’s support services, you have the following responsibilities:

You will provide MarkLogic with access to your personnel and equipment during normal

business hours. This access must include the ability to log in to the equipment on which the software is operating and to obtain the same access as the highest privilege level.

You will provide supervision, control and management of the use of the software. In

addition, you will implement procedures for the protection of information and the implementation of backup facilities in the event of errors of malfunction of the software

or equipment. MarkLogic will not be responsible for any loss of information or data while

performing maintenance. You will document and promptly report to MarkLogic any errors or malfunctions of the

software, and will freely provide MarkLogic with all relevant and requested information

regarding such errors or malfunctions. You will take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after

such procedures have been received from MarkLogic.

You will maintain a current backup copy of all software and data.

You will properly train your personnel in the use and application of the software and the

equipment on which it is used.

Should you opt to not fully meet or perform your responsibilities as outlined above, MarkLogic's ability to provide you with full and complete support under these policies will be significantly impaired. In this

situation, MarkLogic's sole obligation will be to use its good faith reasonable efforts to provide the

services described in this handbook.

SUPPORT TERMS

Technical Support Fees



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Support fees are due and payable annually in advance of a support period, unless otherwise stated in your contract with MarkLogic. Failure to submit payment will result in the termination of

support (subject to the cure period pursuant to the contract). The fees may be modified by MarkLogic for each renewal term by written notice to the customer at least 90 days before the

end of the relevant support period, but any increase in the fee will be subject to the terms of the

order document.

Support Period

Technical Support is effective upon the effective date of the order document. Unless otherwise

stated in the order document, MarkLogic technical support terms, including pricing, reflect a 12 month support period (the "support period"). All technical support services ordered for a support

period and the related fees are non-cancelable and non-refundable, unless specified otherwise in your contract with MarkLogic. MarkLogic is not obligated to provide technical support beyond the

end of the support period.

Reinstatement of Support

In the event that there is a lapse in Support, Licensee may reinstate Support only in accordance

with MarkLogic’s then-current business policies concerning reinstatement which may require,

among other things, to be determined at MarkLogic’s sole discretion: (i) payment to MarkLogic of all Support fees that would have previously been paid had Licensee continuously renewed

Support plus the next upcoming annual Support period fees in conjunction with an upgrade of the Software to MarkLogic’s most current release, or (ii) repurchase of a license to the most

current version of the Software.

Matching Service Levels

When acquiring technical support, all licenses must be supported under the same technical

support service level. You may not support a subset of licenses.

Exclusions

Support does not include events arising from the following:

Accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; failure

of electric power, air conditioning or humidity control; failure of rotation media not furnished by MarkLogic; operation of the software with other media not meeting or not

maintained in accordance with the manufacturer’s specifications; or causes other than

ordinary use. Improper installation by customer or use of the software that deviates from any

operating procedures established by MarkLogic in the applicable documentation.

Software that does not incorporate all of the required Major, Minor, and Service Releases,

Patches and other release(s) provided by MarkLogic. Modification, alteration or addition or attempted modification, alteration or addition of the

software undertaken by persons other than MarkLogic or MarkLogic’s authorized

representatives. Software, hardware or technology of any third party other than MarkLogic (including

those of the customer).



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Services needed and requested as a result of the above will be billed to the customer at

MarkLogic’s then-prevailing professional services rates. Once such events have been remedied, support is available for recovery efforts.

MarkLogic Server ships with sample applications in installation directories named Samples or

samples. These sample applications are collectively called Sample Software. MarkLogic is under

no obligation to support Sample Software and it is offered "as is" without a warranty expressed or implied. MarkLogic is not responsible for the maintenance of Sample Software. MarkLogic

does not guarantee the publication or availability of any Sample Software within or between major, minor and service releases. MarkLogic is not responsible for any consequences resulting

from the use of Sample Software. Sample Software is employed solely at the customer’s risk and

should be thoroughly tested before use in a production system.