NetResults Tracker Enterprise Edition (NRT-EE) Software Updates and Support (SUS) Agreement

Product

NetResults Tracker Enterprise Edition (NRT-EE)

Software Updates and Support (SUS) Agreement

THIS SOFTWARE UPDATES AND SUPPORT AGREEMENT (this "Agreement") STATES THE TERMS AND CONDITIONS UPON WHICH NETRESULTS CORPORATION ("NetResults") OFFERS SOFTWARE UPDATES AND SUPPORT SERVICES TO THE CUSTOMER (“Customer”) WHO SUBSCRIBE TO THE SERVICES.

Introduction

NetResults licenses the software program known as "NetResults Tracker", referred to as the "Program". The separate NetResults Tracker End-User Software License Agreement grants Customer a license to the Program.

NetResults and Customer agree as follows:

1. Software Update Services

NetResults agrees to provide to Customer new software releases which may contain feature enhancements, bug fixes, and/or work-arounds (“Updates”) to the Program when NetResults makes such Updates commercially available. Such modifications, when delivered and installed, shall become part of the Software Product and shall otherwise be subject to all of the terms of the License Agreement.

NetResults agrees to provide software updates (new versions) to Customer free of charge when they become available for the term of this Agreement.

2. Support Services

NetResults agrees to provide to Customer a problem handling service to assist with errors or malfunctions in the Program. Requests for support are initiated by Customer via email. NetResults may choose the method, including but not limited to email, telephone, NetMeeting, or fax to respond to the Customer and help the Customer resolve problems with the Program. NetResults will make a good faith effort to provide an initial response to all problem reports within one business day.

NetResults agrees to provide the problem handling service between the hours of 6:00 a.m. and 5:00 p.m. Pacific Time on weekdays (excluding NetResults' holidays) to Customer's technical contact(s) who have been trained in the use of the Program.

NetResults will use commercially reasonable means to provide the technical support required hereunder in a professional and timely manner. However, NetResults does not guarantee that every problem will be resolved.

An error or malfunction shall be "material" if it represents a nonconformity with NetResults' current published user documentation for the Program that interferes with the Customer's ability to use the Program. NetResults is not obligated to fix errors that are not material. Upon request, Customer shall provide NetResults remote access to Customer's computer system for the purpose of remote diagnostics.

Customer shall pay NetResults at NetResults' then current time and material rates for work of NetResults spent investigating an error or malfunction that NetResults reasonably determines to have been caused by a modification to the Program not made nor authorized by NetResults.

If, in addition, Customer purchased Phone Support Add-on, Customer may initiate support request by calling NetResults between the hours of 9:00am and 5:00pm Pacific Time on weekdays (excluding NetResults' holidays), in addition to initiating support request by email.

3. Customer’s Responsibilities

Customer may designate up to two contact persons. The names of the initial contact person(s) will be provided to NetResults. Customer may change the designated contact person(s) at any time with at least one business day prior notice. Contact person(s) must have sufficient previous experience with the Program and previous experience in the environment in which the Program is being run before being designated a contact person. NetResults may request in its sole discretion, that Customer designate a replacement contact person if the initial contact person has inadequate experience.

Customer shall provide all reasonable assistance to NetResults, including any supporting materials requested by NetResults, in determining the cause of the software problem and/or subsequently reproducing the software problem. If Customer cannot provide sufficient information and/or sufficient system access for NetResults to reproduce the problem or defect, NetResults will not be obligated to correct the problem or defect.

4. Requests for Modification of the Program

Customer may at any time request that NetResults make additional modifications to the Program to add functions or improve performance. NetResults shall respond to a request for such work with the terms on which it may be willing to undertake such work.

5. Delivery

In order to satisfy any delivery obligation, NetResults may, at its option, send to, have Customer download, have delivered to or email to Customer corrected Program(s) or “patches” in electronic, CD-ROM or magnetic form a copy of any modification, error correction, fix, or release to the Program provided pursuant to this Agreement, together with installation instructions.

6. Fees for Services

Customer shall pay NetResults a fee as set forth on NetResults' Web site, for one year of Software Updates and Support Services under this Agreement. Yearly extensions will be available from year to year thereafter at NetResults' then applicable fee. All such fees are payable in advance.

If this Agreement has expired, Customer may reinstate software updates and support only by payment of the then applicable fee plus the then applicable reinstatement Fee.

Phone Support Add-On requires the Customer to pay NetResults an additional per-incident fee as set forth on NetResults' Web site.

Where this Agreement requires Customer to pay an additional time and materials, hourly, or per diem charge, such charge shall be billable to Customer at NetResults' then current rates. The rates in effect as of the date of this Agreement are set forth on NetResults' Web site.

Customer agrees to pay when due (or, if necessary, reimburse NetResults for) any applicable sales, use, property, excise, VAT, and other similar taxes. A monthly interest charge at the rate of one and one-half percent (1 1/2%) or the maximum legal rate, whichever is less, will be assessed on all payments more than fifteen (15) days past due.

7. Intellectual Property

The modifications to the Program, including all intellectual property rights associated therewith, made or provided by NetResults pursuant to this Agreement, whether alone or with any contribution from Customer or its personnel, shall be owned exclusively by NetResults and its licensors.

8. Limited Warranty; Disclaimers

NetResults warrants that it will render services under this Agreement in a professional manner. As NetResults' sole responsibility and Customer's exclusive remedy in the event of any material failure to meet such standard, NetResults shall make a reasonable effort to remedy any resulting discrepancies. Any claim based on the foregoing warranty must be submitted in writing in accordance with NetResults' standard procedures within thirty (30) days after delivery or the date of required delivery of the such service.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NETRESULTS MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ITS SERVICES, ANY PROGRAMMING, OR ANY RESULT OF SOFTWARE USE. NETRESULTS SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9. Limitation of Liability

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE EXTENT PERMITTED BY THE LAW OF THE JURSIDCTION IN WHICH CUSTOMER OBTAINED THIS AGREEMENT, NETRESULTS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTIAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR COMPUTER MALFUNCTION, LOSS OF INFORMATION, LOST PROFITS AND BUSINESS INTERRUPTION, AND THE COST TO SUBSTITUTE SOFTWARE ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE USE OF (OR INABILITY TO USE) THE SOFTWARE HOWEVER CAUSED AND WHETHER ARISING UNDER A THEORY OF CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF NETRESULTS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NETRESULTS'S TOTAL LIABILITY TO CUSTOMER RELATING TO THE USE (OR INABILITY TO USE) THE SOFTWARE EXCEED THE MOST RECENT SUPPORT FEE PAYMENT TO NETRESULTS BY CUSTOMER UNDER THIS AGREEMENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTIAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

10. Limitations on Maintenance Coverage

NetResults has no obligation under this Agreement for any failure to perform NetResults obligations under this Agreement if such failure is due to an act of God, fire, flood, earthquake, or other natural catastrophe; shortage of materials, parts or labor; riots, war or acts of government or military authority; or other causes, events or circumstances beyond its control.

NetResults has no obligation to provide Support Services under this Agreement for:

Any factor outside of NetResults' control, including without limitations, any hardware or non-NetResults software catastrophes, Customer's negligence, operator error and environmental conditions;
Products which have been altered or modified by anyone other than NetResults, including but not limited to Customer's modification of database(s) used by the Program;
Software Problems which arise as a result of Customer's negligence or fault, or from malfunctions of Customer's server hardware, operating system, database management software, web server software, browser software, or other software not eligible for support under this Agreement;
Products used on a computer, operating system, database management system, or web server other than those supported by the Program eligible for support under this agreement;
Products for which Customer has terminated support services; and
Products that are not the most current version.

11. Term

This Agreement shall commence on the day Software Updates and Support is ordered. Unless sooner terminated in accordance with this Section, this Agreement shall continue in effect for one (1) year.

In addition to its termination rights set forth in Section 11.1 hereof, NetResults may terminate this Agreement by giving written notice of termination to Customer upon the occurrence of any of the following events:

Customer defaults in the performance of any material requirement or obligation created by this Agreement or the License Agreement and such default is not cured within the applicable cure period;
Customer fails to make any payment to NetResults within fifteen (15) days of its due date under this Agreement;
Customer ceases business operations. is the subject of any state or federal bankruptcy, insolvency, or similar proceeding, becomes insolvent, or makes an assignment for the benefit of creditors or a receiver is appointed for a substantial part of Customer's assets or becomes unable to pay its debts when due;
In the opinion of NetResults, any alterations to the Program or database(s) used by the Program have been made in violation of the License Agreement that adversely affect NetResults' ability to render service hereunder.

No termination of this Agreement shall release Customer from any obligation to pay NetResults any amount that has accrued or become payable at or prior to the date of termination.

12. Miscellaneous

The date on which NetResults' obligations are required to be fulfilled will be extended for a period equal to the time lost by reason of any delay arising directly or indirectly from acts of God, unforeseeable circumstances, or any other cause beyond NetResults' reasonable control.

Any notice to a party required or permitted hereunder shall be sufficiently given only when provided in writing, and either personally delivered or sent via certified or registered mail to the party's address indicated herein. Customer shall promptly give NetResults notice of any address change.

A failure by either party to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of either party under this Agreement.

This Agreement shall obligate and benefit the parties, their personal representatives, heirs, successors, and assigns. NetResults may assign all or any part of this Agreement, but no assignment or transfer of any interest in this Agreement (including sublicenses, pledge, security interests, and the like) may be made by Customer without the prior written consent of NetResults.

The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision, the remaining provisions being deemed to continue in full force and effect.

This Agreement is the entire agreement of the parties, and supersedes all prior agreements and communications, whether oral or in writing, between the parties with respect to the subject matter of this Agreement.

This Agreement shall be governed by and construed under the laws of the State of California.