Legal Form

Hawk Search
MASTER SERVICES LICENSE AGREEMENT

By using the Hawk Search service/software (the “Product”) and signing associated documentation referencing this Agreement, you (“Customer”) agree to be bound by the following terms and conditions of this Master Services Perpetual License Agreement(“Agreement”) with Hawk Search, Inc. (“Hawk”). Customer should carefully read the following terms of this Agreement before using the Product. Customer agrees that any new features that augment or enhance the Product, and/or any new Product(s) subsequently purchased by Customer will be subject to the terms of this Agreement. This Agreement also incorporates by reference, all Appendices and Hawk’s Acceptable Use Policy (“AUP”) found at www.hawksearch.com/contract/hawkaup. With notice to Customer, Hawk may update its terms and conditions. The current terms found at www.hawksearch.com/contract/hawkmsla will be in effect.

Agreement Scope
This Agreement represents the principal terms and conditions that shall apply to Customer’s use of the Product The Products to be provided under this Agreement shall be specifically described on each Exhibit and/or Statement of Work (collectively or independently referred to as “Exhibit”) which shall also reflect the applicable fees for such Products and any other relevant terms and conditions. Any Exhibit executed under this Agreement shall be construed to be incorporated as part of and governed by the terms and conditions of this Agreement. In the event of a conflict between the terms of this Agreement and the Exhibit, the terms of the Exhibit shall control.

Term
This Agreement shall be effective on the date the Agreement is executed by Customer and shall remain in effect for so long as there is an Exhibit in effect unless otherwise terminated in accordance with the Termination provisions below. The term of any Exhibit executed forthwith, shall commence on the date the Products begin (“Go-Live date”) and shall continue in effect perpetually unless terminated as set forth hereunder.

License Grant
Hawk grants to Customer a limited, perpetual, revocable, non-exclusive, non-transferable or assignable royalty-bearing, license to access or use the Products as set forth herein and further specified in the applicable Exhibit. All rights not expressly granted herein are reserved to Hawk. Such right, if applicable, shall include a username and password that should be kept confidential by Customer. Customer is responsible for all access through its account. Hawk shall deliver such materials under this perpetual license so that Customer may operate the Products under this Agreement and no support, upgrades, or other ongoing maintenance shall be provided unless specifically purchased by Customers and included in an Exhibit.

Payments
Customer shall pay to Hawk the fees specified on the applicable Exhibit, and the terms for such payment shall also be specified on the Exhibit. All other fees including, but not exclusive to, any reasonable out-of-pocket expenses incurred by Hawk in connection with the Products, shall be due and payable fifteen (15) days after receipt of an invoice unless otherwise specified. Customer shall be responsible for any applicable sales, use, excise or other taxes attributable to the services provided or the amounts charged under this Agreement and shall hold Hawk harmless from all claims and liabilities arising out of Customer’s failure to report or pay any such taxes, duties, and assessments. In the event of any delinquency in payments, in addition to any other rights or remedies Hawk may have under the Agreement, Hawk may charge Customer interest in the amount of 1 1/2 % per month.

Hawk Intellectual Property
All of the software, code, methodologies, tools, processes, procedures, algorithms, and any related documentation or configuration files in whatever form or media owned or developed by or on behalf of Hawk, including during the term of this Agreement, that is furnished by Hawk or otherwise used in connection with the Products, and any enhancements, modifications, derivative works, or other alterations excluding Third Party Intellectual Property (collectively, the “Hawk Proprietary Intellectual Property”) shall be and shall remain the exclusive property of Hawk. All software, code, methodologies, processes, procedures, algorithms, and any related documentation in whatever form or media licensed or leased by Hawk from a third party that is used in connection with the Products, (“Third Party Intellectual Property”) shall be and shall remain the exclusive property of such third party licensors. Customer shall have no rights or interests in the Hawk Proprietary Intellectual Property or Third Party Intellectual Property except as otherwise expressly granted by Hawk or such third party.

Warranty
Hawk represents and warrants that during the Term of this Agreement, the applicable Products will perform in accordance with, or conform with each applicable Exhibit so long as the applicable Products are used by Customer in accordance with the terms of this Agreement. Customer’s sole and exclusive remedy and Hawk’s sole obligation and liability relating to the Products and Customer’s use thereof, including any breach of this warranty provision where such breach is not due to an act or omission of Customer, in which case, there shall be no warranty, shall be that Hawk shall provide the Products necessary to correct any failure of Products to conform to the service level requirements, if applicable, as set forth in the Exhibit. If Hawk fails after repeated attempts to correct any such failure, either party may terminate the agreement, and Hawk’s entire liability to Customer for such breach shall be a refund of the amount paid to Hawk under the applicable Exhibit, depreciated on a straight-line basis over an assumed five-year life.

Customer represents and warrants that it will not, and will not allow any third party to, (i) reverse engineer or attempt to decompile any software associated with the Products; (ii) attempt to re-sell or re-distribute the Products; or (iii) allow unauthorized access to the Products, including to any affiliated companies not named herein; (iv) creative derivative works based on the Products; (v) use the Products outside of the scope described herein and (iv) remove any proprietary markings or legends on any products or intellectual property furnished in connection with the Products or (vi) use the Products and any associated software to provide or operate any application service, service bureau, marketing, training, outsourcing services, cloud services, web services, or consulting services or any other commercial services related to the software and/or otherwise use the Products or associated software or develop similar products which may be directly or indirectly competitive with Hawk’s business.

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE PRODUCTS THAT ARE PROVIDED TO CUSTOMER BY HAWK INCLUDING WITHOUT LIMITATION, ANY PRODUCTS FURNISHED THAT CONTAIN HAWK PROPRIETARY INTELLECTUAL PROPERTY OR THIRD PARTY INTELLECTUAL PROPERTY PURSUANT TO THIS AGREEMENT ARE FURNISHED BY HAWK ON AN “AS IS” BASIS, AND NEITHER HAWK, OR ITS SUPPLIERS, MAKE ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED, REGARDING THE PRODUCTS TO BE PROVIDED HEREUNDER OR THAT ANY SOFTWARE OR OTHER ELECTRONIC DEVICES PROVIDED WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. HAWK SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO, LOSS OF OR INTERCEPTION OR MISDIRECTION OF CUSTOMER DATA, FILES, SOFTWARE, CODE, OPERATING SYSTEMS, APPLICATIONS, DATA STORAGE MEDIA, OR OTHER PROPERTY THAT OCCURS DURING CONNECTION, TRANSMISSION, USE OR RESTORATION BY CUSTOMER OR HAWK IN CONNNECTION WITH THE PRODUCTS.

Limitation of Liability
IN NO EVENT SHALL HAWK’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED TWENTY FIVE PERCENT OF THE FEES PAID AND RETAINED BY HAWK FOR THE PRODUCTS WITH RESPECT TO WHICH THE CLAIM AROSE UNDER THE APPLICABLE EXHIBIT. Neither Customer nor HAWK shall be liable for, nor will the measure of damages include, any indirect, lost profits or lost revenues, incidental, special, consequential or punitive damages arising out of or relating to its performance or failure to perform under this Agreement even if such party has been adviseD of the possibility of such damages.

Confidentiality
Hawk and Customer acknowledge that any “Confidential Information”, meaning any written, audible, visual, or oral information that is either (a) identified as confidential or proprietary or (b) is marked with a restrictive legend, or which should otherwise be reasonably deemed confidential shall be held in strict confidence by the recipient in at least the same manner as the recipient protects its own confidential information unless (i) that information is or becomes publicly known, (ii) is independently developed by the recipient without violating the disclosing Party's proprietary rights as shown by the recipient's written records, (iii) is disclosed by the owner of such information to a third party free of any obligation of confidentiality, or is rightfully received by a Party free of any obligation of confidentiality or (iv) is required by law or other judicial or governmental order to be disclosed in which case the disclosing party shall be given prior written notice and an opportunity to seek a protective order against such disclosure and the recipient shall disclose only the minimum amount of information necessary as advised by recipient’s legal counsel. Without limiting the foregoing, confidential information shall specifically include (a) Customer’s trade secrets, intellectual property, including data and software, as well as computer operations and recovery procedures (b) Hawk’s trade secrets including Hawk Intellectual Property, physical security systems, access control systems, specialized equipment, pricing and use policies and those of its licensors, and (c) the terms of this Agreement. Neither Customer nor Hawk shall disclose or use any confidential information for any purpose other than for the performance of duties and obligations under this Agreement, and shall restrict disclosure to employees or agents on a “need to know” basis. Any other disclosure must be mutually agreed to in writing. In the event of a breach of the terms in this section, both Hawk and Customer have the right to seek equitable and injunctive relief without the posting of a security bond or other similar requirement.

Relationship
Hawk represents that it is an independent contractor, and that nothing contained in this Agreement shall be construed to make either Customer or Hawk partners, joint ventures, principals, agents or employees of the other; that no authority has been granted to Hawk or its agents to act on behalf of or bind Customer nor shall Customer have the right to bind Hawk; that Hawk may provide similar Products to other customers; that any persons provided by Hawk to Customer pursuant to the performance of Products shall be employees or contractors of Hawk and under the exclusive direction of Hawk. Hawk shall have the sole right to supervise, manage, direct, procure, perform or cause to be performed, all work performed by Hawk under this Agreement.

Accounting and Audit
Hawk may, for purposes of verification of Customer’s compliance with the Licensed Software Use request an accounting of such use and, on a mutually agreed schedule, conduct an audit of Customer’s use of the Software or request certification that the use does not exceed the Licensed Software Use. Hawk shall provide no less than ten (10) days written notice prior to the due date for the accounting, specifying the criteria Hawk requires to be reported, and such criteria to be consistent with the Licensed Software Use. Customer shall provide reasonable cooperation to Hawk in connection with such audit, including scheduling any on-site audit.

SUSPENSION OF SERVICES
If applicable, Customer agrees that Hawk may suspend Products or terminate this Agreement without liability if (a) Hawk reasonably believes that the Products are being used in violation of the Agreement, (b) Customer does not cooperate with Hawk’s reasonable investigation of any suspected violation of the Agreement, (c) if required by law, or (d) invoice payments are delinquent. Hawk will give Customer advance notice of a suspension under this paragraph of at least twelve Business Hours unless Hawk determines in Hawk’s reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect Hawk or its other customers from imminent and significant operational or security risk.

Termination
Hawk shall have the right to terminate this Agreement effective immediately upon written notice to Customer without further obligation or liability if (a) Customer fails to pay any amounts when due, and continues to be delinquent for a period of thirty (30) days after written notice by Hawk of such non-payment, (b) Customer commits a material breach of any obligation under this Agreement and such breach shall not be corrected or remedied, if capable of being cured, within thirty (30) days after written notice by Hawk, or (c) Customer becomes or is declared insolvent or bankrupt, or shall commence or have commenced against it a bankruptcy, insolvency, receivership or similar proceeding.Any use of the Products by Customer other than usage in accordance with the then current Hawk acceptable use policy or the applicable Exhibit will constitute a material breach of this Agreement. In the event of gross and/or malicious non-compliance of the acceptable use policy or for any violation of any law, rule, regulation or policy of any government authority having jurisdiction over Hawk, or any knowing infringement of Hawk Proprietary Intellectual Property or Third Party Intellectual Property, Hawk may, if applicable, immediately suspend Products and cancel any Exhibit executed under this Agreement without notice. Hawk’s termination of this agreement shall be without prejudice to any other remedies that Hawk may have. The Intellectual Property, Limitation of Liability, Confidentiality, and Indemnities sections shall survive any termination of this Agreement. If Customer terminates agreement during any 12 month term, Hawk reserves the right to invoice Customer for the remaining balance of fees due for the current term.

Indemnities
Hawk agrees to indemnify, defend and hold the Customer harmless from and against claims, demands, litigation, expenses and liabilities, and losses incurred by Customer arising from any third party claim arising from copyright, trade secret, trademark, or right of publicity asserted against either party by virtue of Customer's use of the Hawk Proprietary Intellectual Property or Hawk Intellectual Property in its Products; provided, however, that (a) Hawk is given prompt notice of any such claim, (b) Hawk has the right to control and direct the defense of such claim and (c) Customer fully cooperates with Hawk in such defense. Hawk shall have no liability for any claim of infringement that results from or relates to (a) any modification or enhancement to the Hawk Proprietary Intellectual Property or the Products by Customer, (b) any failure by Customer to implement, install or use the Hawk Proprietary Intellectual Property or the Products as directed by Hawk, (c) the combination, operation or use of the Hawk Proprietary Intellectual Property with non-Hawk programs, data or documentation and (d) materials, items, resources, or services provided or performed by Customer (whether or not used in connection with or incorporated into the Hawk Proprietary Intellectual Property or the Products), (e) any content, information or data provided by Customer, end users, or third parties or (f) any failure by Customer to install upgrades or other enhancements available to and recommended by Hawk. In the event the Hawk Proprietary Intellectual Property or the Hawk Intellectual Property in its Products are finally adjudicated to infringe any rights of a third party, Customer’s sole and exclusive remedy and Hawk’s entire liability and obligation with regards to remedy such infringement shall be, at Hawk’s sole option and expense, to (a) modify the Hawk Proprietary Intellectual Property or the Products to be non-infringing, (b) obtain for Customer a license to continue using the Hawk Proprietary Intellectual Property or the Products or (c) terminate this Agreement and the license granted hereunder and accept return of the Hawk Proprietary Intellectual Property. Hawk also agrees to indemnify and hold harmless Customer from personal injury or property damage resulting from or arising out of the gross negligence or willful misconduct of TMI’s employees and/or agents.

Customer agrees to indemnify, defend and hold Hawk and Hawk agents harmless from and against any and all losses arising from any claim relating to (a) the infringement by or of the Customer Intellectual property or any other resources or items provided to Hawk or Hawk agents by Customer or Customer agents, (b) any amounts, including taxes, interest and penalties which are obligations of Customer pursuant to this Agreement and Exhibit, (c) the nature and use of any products or services, materials, or data provided by Customer or Customer agents to third parties, (d) any breach or default by Customer in the performance of Customer's obligations under agreements with third parties, (e) arising out of Customer's or any end user's use of or conduct in connection with the Products; (f) any third party litigation or subpoena arising out of Customer’s products, services, or industry. Customer Intellectual Property shall mean Customer’s prior existing software, materials, information, methodologies, processes, procedures, algorithms, and any related documentation in whatever form or media owned by or on behalf of Customer or licensed or leased by Customer from a third party.

Non-Solicitation
During the term of this Agreement or any Exhibit hereunder, and for a period of one (1) year thereafter, Customer agrees not to hire, solicit or accept employment of any of Hawk’s employees, independent contractors or agents with whom it has had contact as a result of this Agreement without the prior written consent of Hawk. In the event Customer hires such an employee, independent contractor or agent in contravention of this Agreement, Customer will immediately pay a fee to Hawk equal to such person’s then current annual compensation (or the amount paid to such person by Hawk during the previous twelve (12) months in the case of an independent contractor).

Marketing
Customer grants Hawk the right to use Customer's name and logo for the purpose of identifying Customer as one of Hawk's customers for the duration of this Agreement, including without limitation on Hawk's web site, brochures, press releases and other marketing materials. Upon termination of this Agreement, Hawk will remove Customer's name and logo from Hawk's web site within a reasonable time thereafter, and Hawk shall not thereafter prepare any further hard copy materials bearing Customer's name and logo, although Hawk may continue to use up and distribute hard copy materials then in its possession or under its control. Hawk shall have the right to issue a press release announcing the relationship described in this Agreement, including an executive quote within one hundred eighty (180) days following the Effective Date of the applicable Exhibit(s). The press release shall be subject to the prior written approval of both Hawk and Customer, however if there is no written objection by Customer within ten (10) days of projected announcement – Customer’s approval shall be deemed. Neither party will issue any further announcement, press release or any other public statement concerning this Agreement and/or relationship of the parties without the prior written approval of the other party. Customer consents to have a Customer case study published about Customers’ experience with Hawk’s Products and Hawk as a vendor.

Force Majeure
Neither Hawk nor Customer shall be liable for any failure or delay in its performance under this Agreement including any delays, errors, failures to perform, interruptions or disruptions in the use of the Products due to causes that are beyond its reasonable control (a "Force Majeure Event"). The affected party shall notify the other party of such Force Majeure Event promptly, and both Hawk and Customer agree to work together to resolve any issues related to such an event in order to facilitate the resumption of use of the Products.

Limitation Period
Neither Hawk nor Customer may bring an action, regardless of form, arising out of this Agreement more than one (1) year after the cause of action has arisen or the date such cause of action was or should have been discovered.

Export
Neither Hawk nor Customer shall export, directly or indirectly, any information acquired under this Agreement or any product utilizing such information to any country for which the government of the United States of America or any agency thereof or any other governmental authority at the time of export requires an export license or other governmental approval without first obtaining such license or approval.

Governing Law
This Agreement and the rights and obligations of the Parties under this Agreement shall be governed by and construed in accordance with the laws of Illinois without giving effect to the principles thereof relating to the conflicts of laws.

Notices
All notices, requests, consents and other communications under this Agreement shall be in writing and shall be deemed to have been received on the earlier of the date of actual receipt or the third business day after being sent by first class mail. Customer’s address for notices shall be set out in each Exhibit. Hawk’s address for notice is 800 Roosevelt Road Building A-360 Glen Ellyn, IL 60137, Attention: Contract Administration.

Entire Agreement
This Agreement including any and all Exhibits and addenda to this Agreement represent the entire agreement between Hawk and Customer with respect to its subject matter, and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, of the parties. There are no other representations, understandings or agreements between the Hawk and Customer relative to such subject matter. In the event Customer submits work orders, change orders, purchase orders, invoices or other similar documents for accounting or administrative purposes or otherwise, no pre-printed or similar terms and conditions contained in any such form shall be deemed to supersede any of the terms and conditions herein without express written approval by Hawk.

Waivers
No amendment to, or change, waiver or discharge of, any provision of this Agreement shall be valid unless in writing and signed by an authorized representative of each of the parties. In the event any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement shall remain in full force and effect, and the invalid provision shall remain in force as reformed by the court. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any party of any breach or covenant must be signed by the party waiving its rights, and shall not be construed to be a waiver of any succeeding breach or any other covenant.

Assignment
This Agreement shall be binding and inure to the benefit of the parties hereto. Customer may not, without the prior written consent of Hawk, assign this Agreement or any of the rights granted hereunder, in whole or in part, and may not delegate its obligations under this Agreement. Any such purported assignment or delegation in contravention of these terms shall be null and void. No such consent shall be necessary from Hawk in the event of a merger or an acquisition of all or substantially all of Customer’s assets unless the assignment or transfer is to a competitor or an entity owned or controlled by a competitor.

APPENDIX 1

SOFTWARE SUPPORT SERVICES
Software Support Services. Effective after expiration of the Initial Support Term (as defined in an applicable Exhibit) and each Renewal Support Term (as defined below) thereafter, unless Hawk provides ninety (90) days’ prior written notice that Software Support Services shall no longer be provided, Customer may elect to renew Software Support Services for additional one (1) year term(s) (each a “Renewal Support Term”) by executing a Software Support Services Renewal form and by payment of the applicable fees. The Annual Support Fee for the first Renewal Term shall be equal to the Initial Support Term Support Fee. All Software Support Services, including any renewal thereof, will be provided in accordance with the then current applicable support option description set forth herein, subject to the terms and conditions set forth herein. In the event an error is correctable by an Update, Upgrade or other type of correction and Hawk provides such correction to Customer, Customer assumes all risks arising from Customer's failure to implement such Updates, Upgrades and any other corrections released by Hawk.

Software Support Service Fees. Software Support Services fees for any Software Support Service option selected by Customer shall be as specified in the then-current applicable Exhibit. Unless otherwise stated therein, such Software Support Services Fees shall be invoiced upon execution by the parties of such Exhibit and shall be due and payable upon such execution. If Customer elects not to renew Software Support Services at the end of a Software Support Service term and wishes to reinstate such Software Support Services at a later date, Customer may do so, if generally available, by paying the then-current applicable Software Support Service fee and all lapsed Software Support Service fees which would have been due had no interruption in Software Support Services occurred.

Subject to payment of fees, Hawk shall provide the following Software Support Services for the Hawk software licensed by Customer (“Software”):
1. Core Support. If Customer has elected Core support, as indicated on the applicable Exhibit between Hawk and Customer, Hawk will provide reasonable telephone and email support for problem determination and resolution during Hawk’s normal working hours of 9:00 a.m. to 6:00 p.m. Central time, Monday through Friday (excluding major holidays and Hawk recognized holidays) (“Business Hours”), for problems arising either during software development or production deployments with the Licensed Software involving Hawk technology (“Core Support”). Core Support includes the following benefits:

  • Phone access to experienced support engineers during Business Hours
  • Access to the Help section within the Hawk Admin Dashboard
  • Commitment to fast response and case resolution
  • Technical Newsletters
  • Multiple support contacts

2. Support Methods.
2.1. Telephone and email: Hawk maintains a support contact telephone number and email address. Current contact information is attached hereto in Schedule 1. This contact information is subject to change. All changes will be available on Hawk’s Support Web Site.
2.2. Support Assistance: Hawk maintains the Hawk Help section within the Hawk Admin Dashboard

3. Updates and Upgrades. Hawk will, from time to time when and if available, make available to Customer corrections to the Software and minor modifications to existing Software features which Hawk makes available to similarly situated Customers at no additional cost (“Updates”) and may make improvements that provide additional functionality which Hawk makes available to similarly situated Customers at an additional cost (“Upgrades”). Nothing herein shall require Hawk to develop or provide Upgrades or Updates except as necessary to comply with its Error Correction obligations described herein. Update and Upgrades will be treated as Software and subject to the terms of the License Agreement.

Hawk represents and warrants that for thirty (30) days following the first delivery of an Update or Upgrade to Customer (“Support Warranty Period”), that said Update or Upgrade (i) shall conform in accordance with the Documentation and (ii) shall not contain any copy protections, “Time Bombs,” “Trojan Horses” or other disabling devices that will cause the Software to stop functioning after the passage of a certain amount of time or the occurrence of a certain event, except for any license keys or dongles requires to access the Update or Upgrade. If the Update or Upgrade fails to conform to this warranty, Hawk will use commercially reasonable efforts to resolve programming errors in the Update or Upgrade to make the Update or Upgrade function in material conformity with the Documentation. If errors in the Update or Upgrade reported during the Support Warranty Period that prevent or materially interfere with or degrade Customer’s ability to use the same cannot be satisfactorily corrected or resolved by Hawk within thirty (30) days from written notice to Hawk, as Hawk’s entire liability and Customer’s sole and exclusive remedy, Customer shall have the ability to terminate Software Support Services and receive a refund of any unused Software Support Services fees paid.

This remedy is available only if (i) Customer promptly notifies Hawk in writing upon discovery of the non-conformity, within the Support Warranty Period and (ii) Customer provides reasonable amount(s) of relevant information to permit Hawk to duplicate the conditions that gave rise to the non-conformity so that Hawk is able to confirm that such non-conformity exists. Hawk does not warrant that the Update or Upgrade will be error free or that all errors can be remedied. This limited warranty shall not apply in cases where the Update or Upgrade has been (i) altered or modified other than by Hawk; (ii) subjected to negligence, or computer or electrical malfunction; or (iii) used, adjusted, installed, or operated other than in accordance with the Documentation, instructions furnished by Hawk or with an application or in an environment other than that intended or recommended by Hawk in the Documentation.
4. Error Correction. Hawk will use commercially reasonable efforts to correct reproducible errors in the Software, and to assist Customer in resolving operational issues pertaining to the Customer’s deployment of the Software as provided by Hawk according to the schedule below. Hawk’s obligations under this section shall not include error correction for any software written, provided or modified by Customer.

Priority Description Acknowledgement Status reports Resolution
Critical Catastrophic product, module, or operational failures without a viable work around. Core – Four (4) business hour Core – Every four (4) business hours One (1) business day
Urgent Substantiated defects that are a serious inconvenience to the end user. Core – Eight (8) business hours One (1) business day Two (2) business days
Standard All defects that the end user can easily avoid or work around. Two (2) business days As applicable Ten (10) business days

(A) Acknowledgement consists of an acknowledgement to the Customer, via email or telephone, as to the receipt of the problem as reported and a confirmation of the problem severity. Hawk will begin the process of problem determination and resolution at this point.
(B) Status Reports consist of regular communications, either via email or phone as to the status of the problem determination and resolution.
(C) Resolution consists of providing, as appropriate, one of the following to Customer: an existing correction; a new correction; a viable detour, work around or temporary patch and, where the fix is temporary, a plan on how the problem will be finally corrected.
5. Priority Reclassification. Hawk classifies the priority of an error based on input from Customer. If Customer determines that the priority of a previously reported and in-progress issue needs to be reclassified or escalated, Customer may escalate the priority through its Hawk Support Center contact.
6. Services By Designated Parties. Hawk may designate third parties including distributors, OEMs, or VARs to provide any of the Software Support Services identified in this Appendix 1, provided, however, that Hawk shall at all times remain responsible to Customer for the performance of all Software Support Services.
7. On-Site Emergency Support. In critical situations, Customer may request Hawk to provide on-site emergency software support services as a separate and distinct billable service.
8. Customer’s Obligations for Operational Support.
8.1. Contact Person(s). Customer will designate up to two (2) Contact Person(s) (or such other replacement individuals as Customer may designate in writing) who shall be the sole contacts for the coordination and receipt of the Software Support Services set forth in this Agreement. Each Contact Person shall be knowledgeable about the Software. If Hawk is unable to contact any designated Contact Person after reasonable attempts to do so, and such contact is necessary for performing the Software Support Services, Hawk may delay performance of the services until Hawk is able to contact a designated Contact Person, in which case the times for Resolution set forth above will be adjusted for any such delay.
8.2. Remote Access. For the purpose of problem determination and analysis, Customer will provide, as necessary and at Customer’s discretion, Hawk Support personnel with remote access capabilities into Customer’s systems running Hawk Software.
8.3. Supporting Data. Customer will provide reasonable supporting data to aid in the identification and resolution of the issue.
8.4. Installation. Customer will be responsible for installing any error correction, Update, and Upgrade.

SCHEDULE 1
Support Contact Information
Telephone
Core Support, Critical, Urgent and Standard: (253) 683-3529
Email
customerservice@hawksearch.com

APPENDIX 2

PROFESSIONAL SERVICES TERMS AND CONDITIONS

1. Services.
1.1 Hawk or its designated partner will provide the Professional Services pursuant to Exhibit(s) and/or statement(s) of work executed by the parties and referencing the License Agreement (any statement of work describing professional services purchased by Customer shall be attached to an Exhibit listing the professional services purchased by Customer and referred to in this Appendix as a “Statement of Work” or “SOW”). Each such Statement of Work shall set forth the scope of Professional Services, the deliverables, site of the Professional Services, additional responsibilities of the parties and fees with respect to the applicable Professional Services engagement. The Services shall be performed by Hawk or its designated partner substantially as set forth therein.
1.2 The Professional Services do not include maintenance and/or support services for any deliverables or Work Product (as defined below), including software developed and delivered by Hawk as part of the Professional Services. Customer may separately purchase from Hawk maintenance and/or support services for such deliverables or Work Product at Hawk’s then prevailing rates.

2. Change Requests. Either party may request a change to a Statement of Work, and for such purpose shall submit to the other party a written notice (“Change Request”) setting forth the requested change and the reason for such request. Within five (5) business days (or such other period of time as agreed by the parties) after the receipt of such Change Request, the parties shall discuss the necessity, desirability and/or acceptability of the Change Request. When and if both parties have agreed in writing upon the changes, and any resulting change in the estimated fees for the project, the parties shall complete and execute a Change Order.

3. Fees and Expenses.

3.1 Fees for Services.Customer shall pay to Hawk the fees set forth in the SOW(s) for the Professional Services. Unless explicitly stated otherwise in writing in an SOW or Exhibit, all such listed Professional Services fees are estimated fees only based on Hawk’s then-current prevailing rates. Professional Services fees actually incurred by Hawk will be invoiced on a monthly basis and shall be billed prior to the beginning of each phase of such Professional Services. Payment terms are net 15 days, or before the completion of the phase of Professional Services, whichever is earlier. Customer understands and acknowledges that Hawk shall not perform any phase of Professional Services until all prior phases have been paid for by Customer. All fees shall be shown, invoiced and paid in United States Dollars, unless otherwise stated in the applicable Statement of Work. In the event of any delinquency in payments, in addition to any other rights or remedies Hawk may have under the Agreement including without limitation, the right to suspend services at any time during such delinquency, Hawk may charge Customer interest in the amount of 1 1/2 % per month.

3.2 Expenses. Any out-of-pocket expenses incurred by Hawk or its designated partner in connection with the performance of the Professional Services shall be invoiced on a monthly basis as they are incurred and shall be due and payable upon receipt. Out-of-pocket expenses shall mean documented expenses incurred in connection with the performance of the Professional Services under this Agreement, including, but not without limitation travel, meals and lodging expenses in the event the Professional Services are to be performed at a location other than the offices of Hawk or its partner. All travel by Hawk staff shall be in accordance with Hawk’s then-current standard policies governing travel and business expenses.

4. Termination of Services. Either party may terminate a particular Professional Services engagement reflected in an SOW, at any time, on thirty (30) days prior written notice, which notice shall specify the exact date of termination, or on ten (10) days prior written notice in the event of a breach by the other party that is not cured within such ten (10) day period. In the event of such a suspension or termination, Customer shall continue to be obligated to pay all Services fees due and expenses incurred for Professional Services rendered prior to such suspension or termination. Termination of a particular Professional Services engagement shall not (i) affect a license or Software Support Services; or (ii) limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer or any expenses incurred by Hawk.

5. Access to Customer’s Property and Computers. Customeragrees to provide Hawk and its designated partner access to Customer's computer via remote data communications and by visits to Customer's site as reasonably required to perform the Professional Services. All supplies, information and computer resources, including software licenses (other than software supplied by Hawk), required to perform the Professional Services shall be provided to Hawk at Customer's expense.

6. License; Ownership.

6.1 Customer will have a non-exclusive, non-transferable, royalty-free, perpetucal license to use product, programs, interfaces, modifications to programs, reports and documentation developed by Hawk in the performance of Professional Services and delivered to Customer (collectively “Work Product”), upon Customer's payment in full of all amounts due hereunder, solely in conjunction with, and consistent in scope with, Customer’s permitted use of Software under this Agreement.
6.2 Hawk retains all right, title, interest and ownership of all information, Software, Hawk Products and other property owned by it prior to this Agreement or which it develops independently of this Agreement and all work product received, compiled or developed by Hawk, or its designated partner in the performance of this Agreement. All such information shall be treated as confidential information of Hawk, or its partner in accordance with the License Agreement. Hawk may utilize any and all methods, computer software, know-how or techniques related to programming and processing of data, developed by it while providing the Professional Services and may incorporate the work product in future releases of any of its software. Customer agrees that all intellectual property rights and all other ownership in any ideas, modifications, or suggestions it proposes, creates, or authors relating to the Software (“Suggestions”) are hereby assigned to Hawk and shall be the sole and exclusive property of Hawk. Hawk will have sole discretion as to whether and how to implement any such Suggestions into the Software.

7. Limited Warranty. Hawk, or its partner warrants that the Professional Services will be (i) provided in a good and workmanlike manner, subject to the instructions provided by Customer, and (ii) substantially in accordance with the relevant Statement of Work applicable to such Professional Services. Hawk warrants that for a period of ten (10) days following delivery of the Work Product to Customer, Hawk will use commercially reasonable efforts to resolve errors in the Work Product to make the Work Product function in material conformity with the Specifications. Hawk does not warrant that the Work Product will be error free or that all errors can be remedied. The foregoing shall be Hawk’s entire liability and Customer’s sole and exclusive remedy under this warranty. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION, HAWK MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO WORK PRODUCT OR HAWK TECHNOLOGY AND HAWK DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

8. Staffing. Each party shall be responsible for the supervision and general control of its own staff. Hawk shall have sole discretion regarding staffing for the Professional Services, including the assignment or reassignment of its Professional Services personnel. In addition, Hawk may, at Hawk's sole responsibility, retain one (1) or more sub‑contractors to provide all or a portion of the Services. Customer shall provide at least one (1) mutually acceptable contact person to communicate all product development-related activities, and matters concerning the Professional Services, to Hawk.

9. Non-Solicitation. Each party agrees any individual who has received Confidential Information of the other party shall not intentionally solicit for employment the employees or contractors of the other party who are directly involved in the performance of this Agreement or any Statement of Work hereunder for a period of twelve (12) months following such person's last involvement in the performance of this Agreement or any Statement of Work hereunder. Both parties acknowledge that (i) any newspaper or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either party’s employees or contractors.

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