ProvenAir Terms

SOFTWARE-AS-A-SERVICE AGREEMENT

This Software-as-a-Service Agreement (the “Agreement”) is by and between ProvenAir Technologies Inc., a Delaware Corporation (“PAT”) and the customer identified in the Order Form to which this is attached (“Customer”) effective as of the effective date of such Order Form (“Effective Date”). Each of PAT and Customer are sometimes referred to herein as a “Party” and collectively as the “Parties”. Future Order Forms may reference this Agreement and are governed by the terms hereof.

This Agreement, any attached Order Form or subsequent Order Form(s) that the Parties may execute from time to time, and any exhibits or schedules attached hereto constitute the entire agreement among the Parties. Capitalized terms used but not defined herein have the meanings set forth in Section 13 below.

In consideration of the mutual covenants contained in this Agreement, the Parties agree as follows:

SUBSCRIPTION SERVICES AND RESTRICTIONS.
1. General. Effective upon Customer’s payment of the applicable Initial Fees, PAT hereby grants to Customer for the duration of the applicable Subscription Term, a non-exclusive, non-transferable (except as set forth in Section 12(b)) license to access and use the Hosted Software and related Documentation through the Subscription Services solely for Customer’s internal business purposes and subject to the terms and conditions of this Agreement and applicable Order Form. PAT reserves all rights in and to the Hosted Software and Documentation not expressly granted in this Agreement.
2. Restrictions. Except as permitted by law, Customer shall not, and shall not permit any user to (i) offer or use the Hosted Software for the benefit of any unaffiliated third parties, including in any computer service business, service bureau arrangement, outsourcing or subscription service, time sharing or other participation arrangement; (ii) modify, port, adapt or translate or create any derivative works from or based on the Hosted Software, in whole or in part; (iii) reverse engineer, decompile, disassemble or otherwise attempt to reduce any provided object code for the Hosted Software to source code, or discover the source code of the Hosted Software; (iv) combine or merge the Hosted Software with, or incorporate it into, any other software; (v) except as set forth in Section 12(b), sublicense, assign or transfer the Hosted Software in whole or in part to any third party; (vi) assign or transfer to any third party any of Customer’s rights or interests in and to the Hosted Software, including through any lease, rental, subscription, lending, pledge, security interest or shared participation arrangement with or in favor of any third party.
3. Subscription Services. During the Subscription Term, PAT shall use commercially reasonable efforts to make the Hosted Software accessible through the Subscription Services to Customer’s computers with Internet access in accordance with Exhibit A hereto. Customer shall provide, at Customer’s own expense, all necessary hardware, software applications and Internet connectivity, as referenced in the Documentation or an Order Form, necessary to access and use the Hosted Software.
4. Usage Limitations. Customer shall limit its access and use of any Hosted Software to the traffic and use limitations specified in the applicable Order Form. PAT shall monitor the Customer’s traffic and usage, and if such traffic and usage exceeds the volume specified in the applicable Order Form on more than three (3) days in any given month than Customer shall be upgraded to the next usage tier and shall be responsible for retroactive payment of any additional fees. Any additional fees for usage tiers shall be based on PAT’s then-current price list or as specified in the applicable Order Form.
5. Customer Data. Customer shall be solely responsible for each user that accesses the Hosted Software and for all data created by Customer in the Hosted Software or stored in the Hosted Software (the “Customer Data”). Customer grants to PAT a non-exclusive, non-transferable, royalty-free, worldwide license to access and use the Customer Data in order to provide access and use of the Hosted Software. PAT, may utilize Client’s data in an anonymous fashion including, but not limited to, benchmarking purposes, trend analysis, or other data analytics to assist with ongoing improvements, and enhancements to products and/or additional service offerings.
SUPPORT.
1. PAT Support Obligations. Throughout the applicable Subscription Term and as part of the Subscription Services, provided that Customer is not then in default of its obligations under this Agreement (including payment obligations) and subject to the exclusions set forth in Section 2(b), PAT will provide or cause to be provided the following support: (i) a dedicated support email address to report issues with Hosted Software that does not meet the specifications in the Documentation or arise from Upgrades to Hosted Software; (ii) installation by PAT of such Updates to the Hosted Software as made available by PAT to its customers for no additional charge from time to time; (iii) application performance support; (iv) assistance with recovering application functionality in the event of catastrophic system failure; and (v) as described in Exhibit A hereto.
2. Exclusions. Support will not include: resolution of problems resulting from: (i) Customer’s failure to access and use the Hosted Software in accordance with the applicable Documentation; (ii) requests for enhancements, modifications, configurations or customizations to the Hosted Software; or (iii) any training or other Services.
OTHER SERVICES.
1. PAT offers various consulting Services relating to the Subscription Services, including configuration, customization and training, and PAT will provide the Services specified in each Order Form executed by both Parties from time to time. From time to time, Customer may request the performance of additional Services. In such cases, the Parties will prepare and execute a new Order Form.
2. Customer acknowledges and agrees that the Services may be performed by PAT’s employees or independent contractors of PAT; provided, that in any event, PAT shall remain responsible for the performance of all such Services.
PROPRIETARY RIGHTS.
1. Ownership of Hosted Software and Other Materials. Customer acknowledges that PAT is and will remain the sole and exclusive owner of all right, title and interest, including all Intellectual Property Rights, in and to (a) the Hosted Software; (b) any and all translations, adaptations, developments, enhancements, improvements, Updates, customizations or other modifications or derivations of or to the Hosted Software, whether or not developed by or for the Customer; and (c) any suggestions, ideas, enhancement requests, feedback, or recommendations provided by or on behalf of Customer relating to the Hosted Software. In providing any customized report template or other customized work product deliverables in connection with its provision of Services hereunder, PAT does not and shall not be deemed to transfer to Customer any Intellectual Property Rights therein, whether as “work-for-hire” or otherwise, other than the right to use the same in accordance with this Agreement as part of the Hosted Software. Customer hereby assigns to PAT all right, title and interest in and to any and all such materials, effective upon their creation or communication. Customer will execute and deliver to PAT such further assignments and take all such further actions as PAT may reasonably request to effect or evidence the assignment to and vesting in PAT of all such rights.
2. Ownership of Customer Data. Nothing in this Agreement shall be construed as granting PAT any title or interest in or to any Customer Data or other content or information input into the Hosted Software, other than the limited license expressly set forth in this Agreement and required by the system to function.
3. No Contest. Neither Party shall pursue any claims contesting, make any filings or registrations inconsistent with or otherwise take any actions to challenge the respective Intellectual Property Rights of the other Party as set forth in this Section 4.
ORDER, FEES and PAYMENT.
1. Order and Provisioning. Customer may order Subscription Services for the Hosted Software and/or Services by submitting one or more signed Order Forms to PAT, subject to PAT’s acceptance thereof. After its acceptance of an Order Form for Subscription Services, PAT will provide Customer with pre-configured Subscription Services. Any customized configurations or customizations of Subscription Services may be ordered either on Customer’s signed Order Form for Subscription Services, or by submitting a separate signed Order Form at a later date, subject to PAT’s acceptance thereof.
2. Fees. Customer shall pay PAT (i) the fees set forth in each Order Form for the Subscription Term and each renewal period for the Subscription Services; and (ii) the fees set forth in each Order Form for Services, if any.
3. Payment. All fees and expenses are quoted and invoiced in the currency specified in the applicable Order Form. All invoiced amounts are due and payable by Customer within fifteen (15) days after the invoice date. Any payment not received by PAT by the date specified will be subject to a late fee of the lesser of one and one-half percent (1.5%) per month, or the maximum allowed by law.
LIMITED WARRANTY; DISCLAIMER.
1. Warranty. PAT warrants that (i) during the Subscription Term, the Hosted Software will perform substantially in accordance with the Documentation; and (ii) the Services will be performed in accordance with generally accepted industry standards of care and competence. Customer’s sole and exclusive remedy for a breach of PAT’s warranty will be for PAT in its sole discretion to either: (1) use its reasonable commercial efforts to re-perform or correct the Hosted Software or Services, or (2) refund the fee Customer paid for the Hosted Software or Services that are in breach of PAT’s warranty. Customer must make a claim for breach of warranty in writing within ninety (90) days of the date that (x) the Services that do not comply with PAT’s warranty are performed; or (y) marks the commencement of the initial Subscription Term for the applicable Hosted Software. This warranty is voided in the event that Customer makes alterations to the Hosted Software provided by PAT. If Customer does not notify PAT of a breach of PAT’s warranty during that 90-day period, Customer will be deemed to have irrevocably accepted the Hosted Software and Services.
2. Disclaimer of Warranties. PAT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF ACCURACY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE HOSTED SOFTWARE IS NOT INTENDED TO SATISFY ANY REGULATORY OR SAFETY REQUIREMENTS AND CANNOT BE USED IN ANY MISSION CRITICAL APPLICATION. NO WARRANTY IS GIVEN THAT THE HOSTED SOFTWARE WILL OPERATE WITHOUT ERROR.
3. Information Security. Consistent with its then current practices and procedures, PAT will maintain and enforce safety and physical security procedures with respect to the Subscription Services and protection of any of Customer’s Confidential Information that is input into, accessed through or maintained or stored in a database within the Hosted Software. Among other things, the security procedures are designed to provide technical and organizational safeguards to minimize accidental or unlawful destruction, loss, alteration or unauthorized disclosure or access of Customer Data. PAT shall promptly report to Customer any compromise of security that it becomes aware of with regard to Customer Data and reasonably cooperate with Customer in investigating the compromise. PAT will make security assessments of the Hosted Software from time to time, and may update the Hosted Software and security procedures based on the results of such assessments. CUSTOMER ACKNOWLEDGES THAT SECURITY SAFEGUARDS, BY THEIR NATURE, ARE CAPABLE OF CIRCUMVENTION AND THAT PAT DOES NOT AND CANNOT GUARANTEE THAT THE SUBSCRIPTION SERVICES, PAT’S SYSTEMS, AND THE INFORMATION CONTAINED THEREIN (INCLUDING CONFIDENTIAL INFORMATION) CANNOT BE ACCESSED BY UNAUTHORIZED PERSONS CAPABLE OF OVERCOMING SUCH SAFEGUARDS. EXCEPT TO THE EXTENT DIRECTLY CAUSED BY PAT’S BREACH OF THIS SECTION, PAT SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY SUCH UNAUTHORIZED ACCESS NOR SHALL ANY SUCH UNAUTHORIZED ACCESS CONSTITUTE A BREACH BY PAT OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER.
LIMITATION OF LIABILITY.
IN NO EVENT, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL PAT OR ANY OF ITS THIRD PARTY SUPPLIERS OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSSES, LOST REVENUE, LOST PROFITS, LOST BUSINESS, LOST OR DAMAGED DATA, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, DELAYS, INTERRUPTIONS, ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF THE BASIS OF THE CLAIM, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) AND WHETHER FORESEEABLE OR NOT AND EVEN IF PAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PAT’S AGGREGATE LIABILITY HEREUNDER TO CUSTOMER, WITHOUT REGARD TO THE BASIS OF THE CLAIM, WHETHER IN CONTRACT, TORT, OR FOR INDEMNIFICATION (INCLUDING ATTORNEYS’ FEES AND ALL OTHER COSTS), EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY CUSTOMER TO PAT IN THE TWELVE-MONTH PERIOD PRECEDING THE DATE SUCH CLAIM OR CAUSE OF ACTION FIRST AROSE FOR THE SPECIFIC HOSTED SOFTWARE OR SERVICES FOR WHICH LIABILITY HAS BEEN ASSERTED.
INDEMNIFICATION.
1. PAT Indemnity. PAT agrees to indemnify, defend and hold harmless Customer and its agents, officers and employees, from and against all loss or expense, including related costs and reasonable attorneys’ fees arising from third party claims caused by (i) any wrongful, intentional or grossly negligent acts or omissions of PAT, or its employees or agents, which may arise out of or are connected with the activities covered by this Agreement or any Order Form; or (ii) any claim that any of the Hosted Software infringes or misappropriates any trademark, copyright, patent, trade secret or other proprietary right of any third party in the United States.
2. Customer Indemnity. Customer agrees to indemnify, defend and hold harmless PAT, its affiliates and their agents, officers and employees, from and against all claims, lawsuits, investigations or demands (including any and all loss or expenses, related costs and reasonable attorneys’ fees) arising from third party claims arising out of, relating to, or in connection with (i) Customer’s actions or omissions arising out of this Agreement or in connection with the use of the Hosted Software through the Subscription Services; (ii) Customer Data or (iii) breach by Customer of any applicable laws through use of the Subscription Services.
CONFIDENTIALITY.
During the term of this Agreement and for a period equal to the shorter of three (3) years or the longest period allowed by law (and, with respect to a Party’s trade secrets, for such further period of time as such trade secrets remain, without breach by the receiving Party of its obligations hereunder, trade secrets), each Party will keep in confidence all Confidential Information (as defined below) of the other Party and neither Party will use or disclose to any person or entity, directly or indirectly, without the prior written approval of the other, any Confidential Information relating to the other Party obtained by virtue of this Agreement or the Services performed pursuant to the Agreement, except on a confidential basis to its business, legal and financial advisors or as required to be disclosed under applicable law or by legal process. “Confidential Information” means information that a Party possesses or to which such Party has legal rights (for example, third party confidential information in such Party’s lawful possession) and includes, but is not limited to, technical processes and formulas, source and object code, product designs, fees, quotes and selling price and other unpublished financial information, product and business plans, marketing data, the terms and conditions of this Agreement (including any Order Form), documents, copies of documents, data, summaries, reports and all other information of all kinds, whether oral, electronic or written. Confidential Information does not include any information that is: (i) generally known or available to the public through no act of the receiving Party, (ii) already known to the receiving Party at the time of receiving such Information, (iii) independently developed by the receiving Party; or (iv) furnished to the receiving Party by a third party with the right to do so. Customer and PAT agree to use all commercially reasonable precautions necessary to prevent the Confidential Information from being acquired, accessed or used by unauthorized persons.
TERM AND TERMINATION.
1. This Agreement is effective as of the Effective Date, and will remain in force while any Order Form hereunder remains in effect. If no Order Form is in effect hereunder, either Party may terminate this Agreement upon thirty (30) days’ written notice to the other. The term for the Subscription Services (“Subscription Term”) shall be, unless otherwise specified in an applicable Order Form, one (1) year from the date the Customer first accesses and uses the Hosted software via the Subscription Services. At the completion of the initial Subscription Term, the Subscription Term shall renew automatically for successive one (1) year renewal periods, unless either Party gives written notice to the other Party of its intent not to renew at least ninety (90) days prior to the end of the then current Subscription Term. The term for any other Services shall be as stated in any applicable Order Form.
2. Either Party may terminate this Agreement or any Order Form upon at least thirty (30) days’ advance (or immediately in the event of the material breach of the Agreement by the other Party) written notice to the other. However, upon termination of this Agreement, this Agreement will continue to remain in effect with respect to any Order Forms already issued at the time of such termination, until such Order Forms are themselves either terminated or the performance thereunder is completed.
3. Upon any expiration or termination of this Agreement or the Subscription Term, Customer shall: (i) immediately cease accessing and using the Hosted Software through the Subscription Services; and (ii) pay PAT for all partial Services provided (plus, to the extent that an Order Form for Services provides for a termination fee, payment of such termination fee) and all direct costs incurred by PAT thereunder. Provided that Customer has paid all fees due for the Subscription Services and the Agreement and upon Customer’s request, PAT shall return the Customer Data in PAT’s possession to Customer, if any.
TAXES.
Customer will pay or reimburse PAT for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by PAT under this Agreement, excluding, however, income taxes on profits that may be levied against PAT.
GENERAL.
1. Integration; Headings; Survival. This Agreement, any attached Order Form and any subsequent Order Form(s) executed by the Parties, and any attached exhibits or schedules constitute the entire agreement between PAT and Customer with respect to the Hosted Software, Subscription Services and Services. This Agreement supersedes all prior agreements and correspondence between the Parties concerning the subject matter hereof. Any separate Order Form executed by the Parties, even if prior to the Effective Date, shall be deemed an Order Form under this Agreement. No provision of this Agreement will be deemed waived, amended or modified by either Party unless such waiver, amendment or modification is in writing and signed by both Parties. Section and subsection headings are included for convenience only and are not to be used to construe or interpret this Agreement. Except as otherwise provided, any rights and duties of the Parties which by their nature extend beyond the expiration or termination of this Agreement, including but not limited to, limitation of liability, indemnity, confidentiality, ownership of work product, and survival of obligations, shall survive the termination of this Agreement.
2. Assignment. Except as expressly provided herein, this Agreement may not be assigned by a Party without the prior written consent of the other Party; provided, however, that a Party shall have the right to assign and otherwise transfer this Agreement without consent to any successor that acquires all or substantially all of the business or assets of such Party by way of merger, consolidation, other business reorganization, or the sale of stock or assets, provided that the assigning Party notifies the other Party in writing of such assignment and the successor agrees in writing to be bound by the terms and conditions of this Agreement. This Agreement shall be binding upon successors and permitted assigns of the Parties. Any assignment not in accordance with this Section is null and void.
3. Non-Solicitation of Personnel. During the term and for two (2) years following the termination hereof, the Parties agree not to solicit, employ or do business with, directly or indirectly, any personnel (including third party contractors) from the other Party.
4. Notice. Any notice provided for herein will be in writing and sent by overnight courier, registered or certified mail, postage prepaid, to the address of the Party contained herein. Either Party may change its address for notice purposes by notifying the other Party in this manner.
5. Counterparts. This Agreement may be executed in multiple counterparts, each of which is deemed to be an original and of equal force and effect.
6. Governing Law and Forum. The validity, construction and enforcement of this Agreement shall be determined in accordance with the laws of the State of Illinois, United States of America, without reference to its conflicts of laws principles, and the Parties hereto expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or the transactions, services or deliverables hereunder. Any action arising under or relating to this Agreement shall be brought exclusively in the state and federal courts located in Cook County, Chicago, Illinois, United States of America, and Customer hereby consents to the personal jurisdiction of such courts. If any legal action is necessary to enforce the terms of this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that Party may be entitled. This provision shall be construed as applicable to the entire Agreement.
7. Relationship. The relationship between Customer and PAT is that of independent contractors not that of employer/employee, partnership or joint venture.
8. No Waiver. The failure of either Party at any time to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of either Party thereafter to enforce each and every provision thereof in accordance with its terms.
9. Force Majeure. No liability shall result to Customer or PAT from delay in performance or nonperformance caused by circumstances beyond the reasonable control of Customer or PAT including, but not limited to, acts of God, fire, war, terrorism, utility outage, embargo, any law or governmental regulations or labor dispute, and the period of performance shall be deemed extended to reflect such delay as agreed upon by the Parties.
10. Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement. In the event that any provision of this Agreement is determined to be invalid, unenforceable, or otherwise illegal, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the Parties and the remainder of the Agreement will continue in full force and effect to the extent that continued operation under this Agreement without the invalid or unenforceable provision is consistent with the intent of the Parties as expressed in this Agreement.
DEFINITIONS.
1. “Customer Data” is defined in Section 1(e).
2. “Documentation” means the standard operating manuals, user instructions and technical specifications relating to the use and administration of the Hosted Software supplied by PAT to Customer, as may be updated by PAT from time to time.
3. “Hosted Software” means the PAT software comprised of the applicable modules specified in an Order Form, including any Updates thereto made available by PAT hereunder.
4. “Initial Fees” means all initial setup and integration fees and the first month’s payment of the Subscription Fees, together with all fees for any related Services (to the extent such fees are to be paid up front pursuant to the Order Form), in each case as shown on the applicable Order Form.
5. “Intellectual Property Rights” means all copyright, patent, trade secret, trademark and other intellectual property and proprietary and moral rights related thereto.
6. “Order Form” means PAT’s then current order form for Subscription Services and/or Services pursuant to the terms of this Agreement and which has been completed and signed by Customer and PAT.
7. “Services” means the services, other than Subscription Services to the Hosted Software, provided by PAT under this Agreement, as requested by Customer, accepted by PAT and described in one or more Order Forms.
8. “Subscription Fees” means the applicable fees set forth in an Order Form to be paid by Customer for the Subscription Services monthly in advance for the duration of the applicable Subscription Term.
9. “Subscription Services” means PAT’s software-as-a-service to provide access to the Hosted Software via the Internet.
10. “Subscription Term” is defined in Section 10(a).
11. “Update” means any updates, enhancements, improvements, corrections, service packs or other modifications of or to the Hosted Software that are generally released by PAT during the Subscription Term.

Exhibit A

Service Level Agreement and Support

Support email address:

Support@ProvenAir.com

Access to Upgrades

Yes, automatically

Target Response Time – Critical

<1 hour (within normal business hours)

Target Response Time – Severe

<4 hours (within normal business hours)

Target Response Time – Moderate

<2 business days

Target Response Time – Low

<1 week

Maximum Tickets to Resolve

Up to 20/month (+ all critical)

1. Definitions.

1.1. “Available” or “Availability” means that the Subscription Services are available for use by Customer.

1.2. “Critical” means reproducible emergency condition which makes the use or continued use of the Hosted Software impossible and cannot be circumvented or avoided on a temporary basis. There is no possible alternative and a large number of users are affected and/or not able to do their job.

1.3. “Low” means reproducible cosmetic, textual, or usability issues within the Hosted Software.

1.4. “Moderate” means reproducible problem or condition within the Hosted Software which is not critical in that no loss of Customer Data occurs and no critical function is impacted. Condition is apparent to the user/Customer in some fashion but does not prevent the Hosted Software from generally functioning as intended.

1.5. “Permitted Unavailability” means the period of time during which PAT conducts standard systems maintenance and any unavailability due to causes beyond PAT’s reasonable control, including without limitation any failures caused by outside factors.

1.6. “Response” means a verbal, written, or electronic response from PAT to Customer regarding a reported problem from Customer. The Response will include acknowledgement from PAT of the reported problem.

1.7. “Severe” means reproducible condition which makes the use or continued use of specific critical functionality in the Hosted Software impossible and cannot be circumvented or avoided on a temporary basis.

1.8. “Uptime” means the total number of minutes the Hosted Software is Available through the Subscription Services in the calendar month divided by the total number of minutes in the calendar month, less any period of Permitted Unavailability.

2. Support.

2.1. PAT will be available 24x7 to acknowledge issues from Customer personnel. Response times to issues depends on the severity of the issue reported as per above.

2.2. PAT will install Updates to the Hosted Software to allow the Hosted Software generally to continue to function when underlying hardware, operating systems, databases, or other services on which they depend are patched or upgraded in the ordinary course.

2.3. A dedicated support email address will be provided for Customer to report issues. Upon receiving an email, PAT will log a ticket and respond within the targeted Response time window and immediately commence work on fixing the solution.

2.4. The following are the steps for escalating issues discovered by Customer:

1) An issue is detected in the Hosted Software by Customer.

2) Customer sends an email to PAT’s support address.

3) PAT will investigate the issue and categorize it with the appropriate severity.

4) The issue is evaluated to be sure it meets the criteria for being covered under this agreement.

If the issue is in scope, the status will be communicated back to the Customer along with expected Response time (as per the issue severity level and targeted Response time window). The Parties will, in good faith, mutually determine a severity level for the issue. The Parties will also, in good faith, mutually determine if an issue is an error or feature request.
If the issue is out of scope, the reason for being out of scope will be communicated, and further action can be negotiated separately.

5) The engineer does appropriate investigation. Within the targeted Response time window (i.e., depending on the severity of the issue), the engineer will contact Customer with an initial analysis and next steps.

6) The issue is escalated to a PAT engineer with appropriate skills to resolve.

7) Engineer will continue to work on issue and provide regular updates until either:

The issue is fixed and the Hosted Software is performing according to the Documentation.
The issue is not fixed, but the severity level is successfully reduced. At this point the issue stays in queue at the new severity level and the process continues at step 5.

3. Uptime.

3.1. The Hosted Software will be Available for access and use by Customer as specified below, excluding any period of Permitted Unavailability. Uptime: [95]%

4. Other Expenses.

4.1. PAT will bill Customer for other reasonable, out-of-pocket expenses incurred to perform the support services. Such charges include the reasonable costs of packaging and shipping and other reasonable expenses incurred by PAT at Customer’s request. In-house expenses such as general photocopying, phone calls between PAT and Customer, video-conferencing, and postage expenses for routine mail from PAT to Customer are included in the cost set forth in the Order Form and are not separately charged by PAT.

5. Additional.

5.1. Follow up Communication. Follow up communication for clarification and review of reported information will be made to the person who reported the issue. If such person is unreachable, PAT will communicate to Customer’s prearranged primary support contact. Communications will be made via email or, optionally, performed using the most appropriate medium to expedite closure of the issue, including email, phone, text, and instant messaging.

5.2. Support Policy. Support will only be provided for the Hosted Software accessed and used through the Subscription Services during the Subscription Term. Additional custom development by Customer or third parties will not be supported, except to the extent that such development was sanctioned and accepted by PAT.

5.3. Open Source Software Component Policy. Support will only be provided for open source software components assembled or approved by PAT as part of the supported Hosted Software.

5.4. Emergency Updates. If an emergency patch is made available for the included open source projects and the Customer is current on Subscription Fees, PAT will install the patch.