THOUGHTWORKS STUDIOS TECHNICAL SUPPORT SERVICES AGREEMENT  

THIS IS A “CLICK-THROUGH AGREEMENT.” BY ORDERING THE SUPPORT SERVICES AND AGREEING TO THIS AGREEMENT, THE INDIVIDUAL DOING SO GUARANTEES THAT HE OR SHE IS AUTHORIZED TO ENTER INTO THIS AGREEMENT WITH THOUGHTWORKS ON BEHALF OF CUSTOMER, THAT HE OR SHE HAS READ AND UNDERSTANDS THE TERMS OF THIS AGREEMENT AND THAT CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE BOX INDICATING YOU HAVE READ AND AGREE TO THIS AGREEMENT. IF YOU DO NOT CHECK THE BOX INDICATING YOU HAVE READ AND AGREE TO THIS AGREEMENT, YOU WILL NOT HAVE ACCESS TO THE SERVICES TO BE PROVIDED BY THOUGHTWORKS UNDER THIS AGREEMENT.

1.    DEFINITIONS:
Agreement means this Technical Support Services Agreement.
ThoughtWorks means ThoughtWorks, Inc., a Delaware Corporation, located at 200 E. Randolph St., 25th Floor, Chicago, Illinois 60601, United States of America.
Customer means the person or entity (real or legal) that agrees to the terms of the Agreement and is listed as such in the Order Review and Submit page or in a Schedule attached hereto. Where Customer is a legal person, Customer includes any currently existing or future entity which controls, is controlled by, or is under common control with Customer, where “control” means (a) the direct or indirect power to control the management and direction of such entity, whether by ownership, contract, or otherwise, or (b) ownership of fifty percent (50%) or more of the outstanding shares, ownership of a controlling interest, or beneficial ownership of such entity.
Effective Date means the date on which ThoughtWorks and Customer enter into this Agreement.
Schedule means any Schedule for Support Services that is signed by both parties and which references this Agreement.
Supported Software means the RubyWorks Production Stack.
Error means any reproducible failure of the Supported Software to operate as intended.
Request for Support means the Customer’s email communication of an Error to ThoughtWorks and request for assistance in resolving that Error.
Incident means a unit of Support Services, the duration of which is set forth in Appendix A.  
Third-Party means a party other than Customer or ThoughtWorks.

2.    SUPPORT SERVICES
Customer is purchasing support services (“Support Services”) comprised of the number of Incidents listed in Appendix A for the corresponding support structure purchased by Customer.  An Incident begins when ThoughtWorks commences providing services in response to Customer’s email communication of an Error to ThoughtWorks.  Upon receipt of a Request for Support, ThoughtWorks will confirm that Customer has provided the correct customer identification key and that Customer has at least one Incident remaining.  Upon confirmation, ThoughtWorks will begin working on the Error within the timeframe set forth in Appendix A for the corresponding support structure purchased by Customer.  For each Incident, ThoughtWorks will provide any combination of the following services to Customer in response to a Request for Support for up to the maximum number of hours set forth in Appendix A:

• Email support.
• Remote consultation on operation and use of the Supported Software.
• Remote problem analysis, determination, and resolution assistance.
• Remote support for mission critical emergencies.

ThoughtWorks estimates that many Errors can be resolved within the allocated Incident time frames.  However, some Errors may be significantly more complex than an average case, and thus require additional effort.  When such Errors are identified by ThoughtWorks, the ThoughtWorks support team will provide Customer with an estimate of the complexity of the problem and the effort involved in resolving it, which may require applying a patch or waiting for a new release.  In some cases, Errors may be completely resolved within the current release if additional time is spent on the repair. In these cases, ThoughtWorks will offer Customer the choice to either spend the next available Incident under this Agreement (up to 2 Incidents for the Error) or engage ThoughtWorks to continue working on the Error on a time and materials basis, at rates mutually agreed between the parties.

For email support, Customer will utilize the contact information provided at www.studios.thoughtworks.com (found on the support page specific to the Supported Software).  

ThoughtWorks will not be required to provide the following services as part of Support Services (although such services may be available as “Additional Services” as described in Section 5):

• Telephone support.
• Remote support, consultation or issue analysis on any non-current version of the Supported Software.
• Remote support, consultation or issue analysis on installations of the Supported Software on operating systems other than those listed at www.studios.thoughtworks.com (found on the support page specific to the Supported Software).
• Remote support, consultation or issue analysis in relation to any Customer or Third-Party supplied modifications or enhancements to Supported Software.
• Any on-site visits for support or consultation.

This Agreement is not intended to cover Errors attributable to Third-Party software or hardware that are no longer supported by their original vendor (e.g. operating system, database, SCM, build tool, etc.), as well as Errors or limitations based on environmental issues outside of ThoughtWorks control (e.g. network and file system permissions, network topology, CPU capacity, etc.).  However, the exact nature of an Error may not be known until after substantive investigation by ThoughtWorks, and any such investigation will be treated as an Incident.  

Support Services are valid for one year from the date of purchase, after which the balance of unused Incidents will expire.  

3.    THOUGHTWORKS RESPONSIBILITIES
Subject to and in consideration of Customer paying and continuing to pay the Fees forth in Section 7, ThoughtWorks will provide the Support Services described in Section 2 of this Agreement.  All Services performed by ThoughtWorks in connection with this Agreement will be performed on a reasonable efforts basis and in accordance with prevailing industry standards.  Nevertheless, ThoughtWorks does not warrant that the Services will be uninterrupted or error free.

4.    CUSTOMER RESPONSIBILITIES
Customer is responsible for documenting Errors in a mutually agreed upon manner which includes providing a summary of the Error, steps to recreate the Error, and any relevant supporting data.  Prior to logging an Error with ThoughtWorks, Customer will endeavor to diagnose the nature of the problem to ensure that it is resident in the Supported Software and not a Third-Party application or component.  During the collaborative initial phase of reporting an Incident, Customer will reciprocate a reasonable level of time and resources in accordance with the severity of the Error.  This will include documenting the problem and providing supporting documentation such as logs and database information.  If ThoughtWorks is unable to reproduce the Error, Customer may be required to provide remote access to its systems for further analysis.  Customer will also provide ThoughtWorks access to the appropriate test environments on Customer’s network to facilitate more efficient resolution, and to validate that the Error resolutions work in Customer’s environment.

5.    ADDITIONAL SERVICES
If Customer modifies or enhances the Supported Software on its own, causes such modifications or enhancements, or would like to request customization of the Supported Software, on-site visits, training or other services not specifically included as Support Services (“Additional Services”), ThoughtWorks and Customer may agree in a written Statement of Work to the scope and fees applicable to the Additional Services. Notwithstanding anything to the contrary contained herein, an Incident that has been reported as an Error that requires an enhancement or modification to the Supported Software in order to resolve will be treated as an Incident and as part of the Support Services unless the parties agree otherwise in writing.

6.    TERM AND TERMINATION
The initial term of this Agreement is one year from the Effective Date.  The term will automatically renew on an annual basis at the prevailing rate published by ThoughtWorks for similar Support Services, unless Customer gives ThoughtWorks written notice of cancellation 60 days prior to the end of any given annual support period.  ThoughtWorks reserves the right to terminate this Agreement by giving Customer 60 days prior written, and any fees paid by Customer will be refunded on a pro rata basis.  ThoughtWorks shall have the right to suspend its obligation to provide Support Services in the event of non-payment by Customer.  ThoughtWorks shall have the right to terminate by giving 7 days prior written notice if Customer fails to cure any breach of Section 7 within the notice period, or if Customer becomes insolvent, makes a general assignment for the benefit of creditors, files for bankruptcy, or becomes subject to any proceedings under any bankruptcy or insolvency law.

7.    FEES AND PAYMENT TERMS
7.1    The fees for the Support Services for the initial term shall be set forth in the Order Review and Submit page or in a Schedule attached hereto.
7.2    The fees are due and payable to ThoughtWorks beginning on the Effective Date of this Agreement, and continuing until this Agreement is terminated.  All fees for the initial term will be automatically billed to Customer’s credit card, if purchased online, or invoiced in accordance with the terms of the Schedule attached hereto if not purchased online.  In the event of cancellation or termination of this Agreement by Customer, no pro-rata refunds will be made.  At the beginning of each renewal term, all fees for such renewal term will be automatically billed to Customer’s credit card, if purchased online, or invoiced in accordance with the terms of the Schedule attached hereto if not purchased online.
7.3    The fees for Additional Services, as defined in Section 8, will be assessed on a time and materials basis according to the terms of the applicable Statement of Work.
7.4    All fees by Customer under or in relation to this Agreement are exclusive of value added tax or any applicable sales or service tax or any similar, successor or supplemental taxes and Customer shall pay such taxes, in addition to the amounts specified as payable to ThoughtWorks under this Agreement, against delivery of a valid value added, sales or service tax or comparable invoice.

8.    WARRANTY AND CONFIDENTIALITY
ThoughtWorks and Customer each represent and warrant that their disclosure and delivery of any information, documents, software and other materials, and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, without limitation, any copyright, known patent or trade secret right.  If either party discloses confidential information in connection with this Agreement, such information will be labeled or identified as confidential before or at the time it is communicated to the other party and the recipient will then protect the confidential information using the same procedures used to protect its own confidential information.  

9.    INTELLECTUAL PROPERTY OWNERSHIP
The entire right, title and interest in and to any materials produced in conjunction with this Agreement or any applicable Statements of Work, including without limitation, any modifications or enhancements to the Supported Software, documentation or source code, and all portions thereof, together with all proprietary rights relating thereto, including, without limitation, all copyrights, patent and trade secret rights are owned exclusively by ThoughtWorks.  ThoughtWorks hereby grants Customer a perpetual, worldwide, irrevocable, fully paid, license to use the materials for internal use only.  This license grant shall in no way affect ThoughtWorks’ rights in the Supported Software and shall not be applicable to any open source code or any of ThoughtWorks’ or Third-Party programs or products made available to Customer under a separate license agreement.
 
10.    LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 3 AND 8, THOUGHTWORKS MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO THE FITNESS FOR ANY PARTICULAR PURPOSE OR USE, CONDITION, OR MERCHANTABILITY OF THE SUPPORTED  SOFTWARE OR THE SUPPORT SERVICES.  TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE SOFTWARE, GOODS OR SERVICES, OR OTHER LOSS OR DAMAGES, EITHER IN CONTRACT OR IN TORT, ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, OR THAT RESULT FROM THE USE OR INABILITY TO USE THE SUPPORTED SOFTWARE, EVEN IF THOUGHTWORKS IS ADVISED IN ADVANCE OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES OR LOSS.  IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED THE AMOUNT PAID OR TO BE PAID BY CUSTOMER UNDER THIS AGREEMENT.

11.    TAX
Customer is responsible for all taxes, other than taxes levied on ThoughtWorks’ net income.  Support Services fees do not include any applicable taxes. If ThoughtWorks is required to pay any sales, use, goods and services, value added, or other taxes in relation to Customer’s purchase, those taxes shall be billed to and paid by Customer.

12.    ASSIGNMENT
Customer may not assign its rights under this Agreement, provided that if there is a change in control of Customer, where “control” means (a) the direct or indirect power to control the management and direction of such entity, whether by ownership, contract, or otherwise, or (b) ownership of fifty percent (50%) or more of the outstanding shares, ownership of a controlling interest, or beneficial ownership of such entity, Customer may assign its rights under this Agreement with 60 days written notice to ThoughtWorks of any such assignment.  Any purported assignment of this Agreement by Customer in violation of this Section 12, shall be null and void.  ThoughtWorks may assign its rights under this Agreement for any reason and without the consent of Customer.  Neither Party may assign their respective obligations under this Agreement without prior written consent of the other Party, which consent shall not be unreasonably withheld.

13.    SEVERABILITY
Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law.  The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof.  Any invalid or unenforceable provision shall be deemed severed from this Agreement and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provisions(s) held to be invalid or unenforceable and so as to effect the original intent of the parties hereto.

14.    GOVERNING LAW
This Agreement shall be deemed executed in Chicago, Illinois and shall be governed by and construed in accordance with the laws of the State of Illinois, U.S.A., without regard to choice of law or conflict of law principles.  For purposes of enforcement of arbitration awards, equitable relief, or if for any other reason litigation is permissible under this Agreement, each party hereby irrevocably agrees to the non-exclusive personal jurisdiction and venue of any court located in Cook County, Illinois.  Save that nothing in this
Agreement shall prevent ThoughtWorks from initiating proceedings in any jurisdiction required to enforce its interests under this Agreement, including without limitation ThoughtWorks’ intellectual property rights and its right to receive Support Services fees.

15.    EXPORT
Customer acknowledges that the services, materials, tools and/or technical data delivered by ThoughtWorks may be subject to export controls or restrictions by the United States or other countries or territories and Customer hereby certifies that Customer is not located in Cuba, Iran, North Korea, Sudan, or Syria.  Additionally, Customer affirms that, to Customer’s knowledge, Customer is not included on any list that would cause ThoughtWorks’ export of such services, materials, tools and/or technical data to Customer to be prohibited by the laws or regulations of the United States, including the Department of Commerce’s ("DOC") Denied Persons, Entities, and Unverified Lists; the U.S. Department of State’s Debarred List; or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers, or Specially Designated Terrorists.  Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce.  Specifically, Customer agrees that Customer will not -- directly or indirectly -- sell, export, re-export, transfer, divert, or otherwise dispose of the materials, tools and/or technical data received from ThoughtWorks to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.  Customer will not use the services, materials, tools and/or technical data for military, nuclear, missile or chemical biological weaponry end uses.  In addition, Customer acknowledges that ThoughtWorks will not provide technical support related to the implementation of encryption or the development of any defense article.  Customer agrees to indemnify, to the fullest extent permitted by law, ThoughtWorks from and against any fines or penalties that may arise as a result of any breach of this provision.

16.    NO WAIVER
No failure or delay by either party in exercising any right, power, or privilege granted under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege granted under this Agreement.  The knowing waiver of a breach of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.

17.    NO THIRD-PARTY BENEFICIARIES
This Agreement may only be enforced by the parties hereto and their respective successors and permitted assigns and there are no third-party beneficiaries to this Agreement.

18.    AMENDMENT
This Agreement can only be amended or modified by mutual written assent of the parties.

19.    ENTIRE AGREEMENT
This Agreement, Appendix A, the appropriate Order Review and Submit page (if any), and any mutually executed Schedule constitute the entire agreement between the parties with respect to the subject matter hereto, and supersedes all prior or contemporaneous understandings, representations, communications, or agreements, written or oral, regarding these Support Services or in any way related to ThoughtWorks intellectual property rights in the Supported Software.

Support Structure	Support details
Number of Queries	3
Email Access	Yes
Telephone Access	No
Max. Time to    First Response	1 Business day
Availability	M-F; 9-5 Central
Duration	8 hours, reasonable efforts basis