Subscription Agreement

THIS JUSTPERFORM SAAS SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERN CUSTOMER'S USE OF JUSTPERFORM PLATFORM1 (“JUSTPERFORM”) AND OTHER ANCILLARY SERVICES PROVIDED BY JUSTPERFORM.

BY EXECUTING AN ORDER SCHEDULE THAT REFERENCES THIS AGREEMENT, THE CUSTOMER (“CUSTOMER”) AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.

This Agreement was last updated on October 09, 2022 and will be effective upon execution of the first Order Schedule between the Parties (the “EffectiveDate”).

In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:

1. Definitions

  1. 1.1“Affiliate” means with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (but only if such person or entity meets these requirements).
  2. 1.2“Agreement” means this JustPerform SAAS Subscription Agreement, including any and all Order Schedule agreed to by the Parties, referenced exhibits, and addendums hereto.
  3. 1.3 “Annual Subscription Fees” means the total subscription fee specified in an Order Schedule charged for the Subscription Year.
  4. 1.4 “Authorized User” means a Customer or its named individual or associate that is a Customer's employee, representative, consultant, contractor, or agent (“Representatives”), authorized to use the JustPerform Service pursuant to a valid subscription or other right granted by JustPerform, and has been supplied a user identification and password.
  5. 1.5“Business Day” means a day other than a Saturday, a Sunday or a public holiday in the location from where the JustPerform Services are provided or received.
  6. 1.6“Confidential Information” means this Agreement and all its Order Schedules, any addendums hereto , Professional Services Agreement and all its Statement of Works, Software Applications, software listings, documentation, technical information, data, drawings, benchmark tests, assessments, specifications, trade secrets, methodology, object code and machine-readable copies of software, source code copies of software, pricing, Customer Data and any other intellectual property or proprietary information supplied to one party (“Disclosing Party”) to the other party (“Receiving Party”),whether it is disclosed orally, in writing, in machine readable form or in any other forms, or obtained by the Receiving Party as a result of any visit to any establishment belonging to the Disclosing Party or discussion between the parties and/or their respective Representatives, regardless of whether or not it is marked as “confidential”.
  7. 1.7“Customer Data” means any electronic data or materials provided or submitted by Customer or Authorized Users to or through the Software Applications for processing, and the outputs and modifications to such data obtained from such processing, or information and materials obtained by JustPerform by virtue of or in the course of performing this Agreement.
  8. 1.8“Designated Equipment” means the cloud provider (like Microsoft Azure, AWS Cloud, Google Cloud Platform etc,) or any computer hardware on which the Software Applications will be deployed on a private cloud2.
  9. 1.9“Improvements” means new features, functionality, enhancements, upgrades, updates, error corrections and bug fixes to the Software Applications made generally available by JustPerform, in its sole discretion, for no additional charge to Customer during the Subscription Term.
  10. 1.10“JustPerform Service” means Software Applications (accessible by Authorized Users via supported web browsers through the login page at https://www.justperform.com/ or any other url provided to the Customer time to time) as ordered by the Customer under an Order Schedule, support services as described in the Service Level Agreement attached hereto as Exhibit B and Improvements, if any.
  11. 1.11“Order Schedule” means a document entered into by and between JustPerform and Customer (including Affiliates of either party that enter into an Order Schedule) that references this Agreement and details of the JustPerform Services, the fees associated therewith, and any other transactionspecific terms and conditions.
  12. 1.12“Professional Services” means the consulting, training, implementation or other professional services to be performed by JustPerform (directly, or through an Affiliate and/or subcontractors) in relation to Customer's use of JustPerform Service pursuant to the Statement of Work agreed under the reference of the Professional Services Agreement (PSA).
  13. 1.13“Software Applications” means JustPerform software application that the Customer subscribes the license to use under the applicable Order Schedule. It is a cloud-based application with a pre-configured set of formulas, data hierarchies, actions, algorithms, dashboards and/or other elements that is specifically designed to be loaded into and interoperate with the JustPerform Service for processing Customer Data in support of an identified business process.
  14. 1.14“Statement of Work” or “SOW” means a document entered into by and between JustPerform and Customer (including Affiliates of either party that enter into a Statement of Work) that references Professional Services Agreement attached hereto as Exhibit C and describes the activities and deliverables for implementation, training or other Professional Services related to Customer's use of JustPerform Service.
  15. 1.15“Subscription Anniversary” means a completion of Subscription Year.
  16. 1.16“Subscription Term” means the subscription period(s) specified in an Order Schedule during which Customer or Authorized Users may use the Software Applications subject to the terms of this Agreement.
  17. 1.17“Subscription Year” means a one-year term of the subscription of JustPerform Service starting from the Effective Date of signing the relevant Order Schedule.
  18. 1.18“Total Subscription Fee” means the total subscription fee specified in an Order Schedule charged for the licensed use of JustPerform Service as provided under the applicable Order Schedule.
  19. 1.19“User Documentation” means user guides, operation manuals, specifications and other related information and documentation, whether in print or online media, to support Customer's use of the JustPerform Service, as updated by JustPerform from time to time.

2. Provision of the JustPerform Service

  1. 2.1The JustPerform Service shall be available to Customer as described in the Order Schedule(s) during the Subscription Term(s). The JustPerform Service includes the features and functionality of the Software Applications as ordered by the Customer in the relevant Order Schedule. The content, functionality, and user interface of the JustPerform Service may get updated from time to time. Provided that, the functionality of the JustPerform Service will not materially decrease during Customer's Subscription Term.
  2. 2.2A non-exclusive, non-sublicensable, non-transferable, world-wide, non-assignable and revocable (as pursuant to this Agreement) right to access and use the JustPerform Service shall be granted to the Customer during the applicable Subscription Term, solely for Customer's internal business purposes relating to the business processing of Customer Data.
  3. 2.3During the Subscription Term, the JustPerform Service shall be available 24/7 to the Customer, except for (i) planned downtime (of which JustPerform shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond JustPerform's reasonable control, including an act of God, act of government, flood, fire, civil unrest, act of terror, earthquake, internet service provider failure or delay, denial of service attack etc. Technical support and service level commitments, if applicable, are specified in Exhibit B3
  4. 2.4JustPerform Service or any feature of a JustPerform Service is considered “Trial/Demo Service” when JustPerform makes such services or feature available at no charge with limited functionality or for a limited time to try the available functionality (such as beta, early access, preview). Such Trial/Demo Services are excluded from available service level commitments and support as stated under Exhibit B. JustPerform may change or discontinue Trial/Demo Service at any time and without notice.

3. Usage Restrictions

  1. 3.1Customer agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party:
    1. 3.1.1sell, license, sublicense, transfer, assign, distribute or otherwise encumber any portion of the JustPerform Service or enable access to the JustPerform Service in a manner that allows anyone to access or use the JustPerform Service without an Authorized User Subscription or to commercially exploit the JustPerform Service;
    2. 3.1.2decompile, disassemble, or reverse engineer any portion of the JustPerform Service or attempt to discover any source code or underlying ideas or algorithms of JustPerform Service;
    3. 3.1.3copy, modify or create any derivative work based on the JustPerform Service or any proprietary or Confidential Information;
    4. 3.1.4copy any features, functions or graphics of the JustPerform Service;
    5. 3.1.5use the JustPerform Service to provide processing services to third parties, commercial timesharing, rental or sharing arrangements, or on a “service bureau” basis or otherwise use or allow others to use the JustPerform Service for the benefit of any third party;
    6. 3.1.6provide, disclose, divulge or make available to, or permit use of the JustPerform Service by persons other than Customer's employees or agents who have signed a confidentiality agreement consistent with the terms and provisions herein;
    7. 3.1.7send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts or agents;
    8. 3.1.8interferes with or disrupts the integrity or performance of the JustPerform Service;
    9. 3.1.9combine JustPerform Service with Customer's value add to create a commercially available Customer branded solution that Customer markets to its end user customers.
  2. 3.2Customer shall be responsible for the use of JustPerform Service by any User who accesses the JustPerform Service with Customer's account credentials. Any use of the JustPerform Service in breach of the foregoing by Customer or Authorized Users that in JustPerform's judgment threatens the security, integrity, or availability of JustPerform Service, may result in immediate suspension of the subscription, however JustPerform will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

4. Customer Data Protection

  1. 4.1During the Subscription Term, JustPerform shall maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data at least as rigorous as the measures described in the data security and privacy principles attached hereto as Exhibit A. Additionally, JustPerform shall (a) ensure that processes, policies and procedures are established (in each case, with reference to international standards) and complied with for key areas such as (i) encryption standards, (ii) security incident response, (iii) change management, (iv) disaster recovery and backup, (v) vulnerability management, (vi) privileged and user access management including multi-factor authentication (MFA), (vii) secure software development lifecycle and source code reviews, (viii) data deletion and destruction and (ix) patching management; and (b) from time to time, if required by Customer, provide to Customer such copies of processes, policies and procedures.
  2. 4.2JustPerform shall treat all Customer Data as confidential and use Customer Data solely for the purpose of providing and managing the JustPerform Service, or to prevent or address technical problems, in accordance with this Agreement or as instructed by the Customer. If JustPerform detects or becomes aware of a breach of its obligations under this Clause 4.3 resulting in unauthorized access to Customer Data, JustPerform shall promptly report such breach to Customer and (without prejudice to other rights Customer may have under this Agreement or at law) take reasonable mitigation actions as Customer may require. JustPerform shall use diligent efforts to perform a root cause assessment and remedy such breach in a timely manner.
  3. 4.3Customer has exclusive control and responsibility for determining the Customer Data submitted by the Customer to the JustPerform Service and is further responsible for the accuracy, quality, and legality of all Customer Data, and for the acts and omissions of Authorized Users in connection with this Agreement. Customer will use reasonable measures to prevent and will promptly notify JustPerform of any known or suspected unauthorized use of Authorized User access credentials. For clarity, Customer shall retain all ownership interests in Customer Data processed or converted by the JustPerform Service and has full right of usage of and ownership in the models generated by JustPerform.

5. Subscription Fee

In consideration of the rights granted herein, Customer shall pay the Subscription Fees as specified in the applicable Order Schedule. JustPerform may increase the Subscription Fees upon any subsequent or additional renewal term. Unless otherwise set forth in the applicable Order Schedule, Customer agrees to pay the applicable Subscription Fees within thirty (30) days of the date of the applicable invoice. In addition to any other remedies, JustPerform may have hereunder or at law, any payments more than thirty (30) days after the date of the invoice will be subject to a late payment fee of 15% per year, or the maximum rate allowed by law, whichever is lower. This Agreement and Customer's access to the JustPerform Service may be suspended or terminated if Customer's account falls into arrears for more than 90 days. Such Suspension or termination will not relieve Customer's obligation to pay amounts due. Payment obligations are non-cancellable during the Subscription Term and fees paid are non-refundable in any circumstances.

6. Manner of Payment/Taxes

Unless otherwise set forth in an applicable Order Schedule, all amounts due hereunder shall be paid in United States Dollars (USD). All amounts payable under this Agreement are exclusive of any applicable transportation charges, or any sales, use, value-added, withholding, goods and services, and other taxes and duties and Customer will pay or reimburse all taxes and duties assessed in connection with this Agreement by any authority.

7. Term and Termination

  1. 7.1This Agreement commences on the date Customer first take the subscription under the applicable Order Schedule and continues until all subscriptions hereunder have expired or have been terminated. The term of each subscription shall be specified in the applicable Order Schedule.
  2. 7.2Without prejudice to any other rights that the parties may have, a party (“Non-defaulting Party”) may terminate this Agreement (together with all Order Schedules) by providing written notice to the other Party (“Defaulting Party”) in any of the following events:
    1. a.if the Defaulting Party materially breaches any of the provisions of this Agreement. Upon notice from the Non-defaulting Party to the Defaulting Party specifying details of the breach, the Defaulting Party will be given thirty (30) days to cure the breach; if the breach is not cured within thirty (30) days, then the Non-defaulting Party shall be entitled to terminate this Agreement with immediate effect;
    2. b.the Defaulting Party (i) suspends or ceases business or becomes insolvent or admits in writing its inability to pay its debts when due or (ii) enters into liquidation proceedings.
  3. 7.3If this Agreement is terminated by Customer in accordance with the clause 7.2(a), JustPerform will refund Customer any prepaid fees covering the remainder of the term of all Order Schedules after the effective date of termination. If this Agreement is terminated by JustPerform in accordance with the clause 7.2(a), Customer will pay any unpaid fees covering the remainder of the term of all Order Schedules. In no event will termination relieve Customer of its obligation to pay any fees payable to JustPerform for the period prior to the effective date of termination.
  4. 7.4Customer agrees that following thirty (30) days after the termination of this Agreement, or expiration of any Order Schedule (“Disengagement Period”), JustPerform may immediately deactivate Customer's account(s) associated with the Agreement or applicable Order Schedule(s). During the Disengagement Period, JustPerform will make Customer Data available to Customer for export or download as provided in the User Documentation. After such Disengagement period, JustPerform will have no obligation to maintain or provide any Customer Data and will Proprietary & Confidential JustPerform SAAS Subscription Agreement Page 3 of 7 thereafter delete or destroy all copies of Customer Data from JustPerform platform or otherwise in its possession or control, unless legally prohibited.
  5. 7.5Upon expiration or termination of this Agreement, JustPerform's obligation to provide the JustPerform Service, and Customer's right to access or use the JustPerform Service shall terminate immediately.

8. Intellectual Property Rights and Ownership

  1. 8.1By JustPerform. JustPerform owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the JustPerform Service. No rights are granted to Customer hereunder other than as expressly set forth herein. JustPerform shall at all times retain full and unequivocal ownership of all Software Applications, including any documentation, derivative versions and any copies thereof and all configurations of the Software Applications created or developed during the term of this Agreement.
  2. 8.2By Customer. Customer allows JustPerform a worldwide, non-exclusive license to host, copy, process, transmit and display Customer Data as reasonably necessary for JustPerform to provide the JustPerform Service in accordance with this Agreement. Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Customer Data and any deliverables generated by the JustPerform Service in specific to the Customer.
  3. 8.3Customer acknowledges that the JustPerform name, logo and the product names associated with the JustPerform Service are trademarks of Red Apricot, and no license to such marks is granted herein. Customer grants to JustPerform a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to incorporate and use, commercialize and distribute with the JustPerform Service any suggestions, recommendations or other feedback specifically relating to the JustPerform Service as Customer in its discretion may elect to provide and to create derivate works of the same or any customizations, if any.
  4. 8.4Use of Aggregate Information. JustPerform may collect, and aggregate data derived from the operation of the JustPerform Service (“Aggregated Data”) and may use such Aggregated Data for purposes of performing its obligations under this Agreement, monitoring performance of the JustPerform Service, and improving the JustPerform Service. JustPerform's use of Aggregated Data will not reveal any Customer Data, Customer Confidential Information, or personally identifiable information of the Customer and Authorized Users.

9. Indemnification for Infringement

  1. 9.1JustPerform represents and warrants that (i) it is fully and legally entitled to license the JustPerform Service and (ii) the JustPerform Service shall not infringe any issued patent, copyright, trade secret or other proprietary right of any third party or cause damages to any third party. JustPerform shall, at its expense, defend or settle any claim, action or allegation brought against Customer to the extent it is based on a claim that the JustPerform Service infringes any issued patent, copyright, trade secret or other proprietary right of any third party or causes damages to any third party and shall pay any final judgment awarded against Customer as a result of any such claim, action or allegation, provided that (i) Customer gives prompt written notice to JustPerform of any such claim, action or allegation of infringement; (ii) JustPerform has the sole and exclusive right to defend any such claim, action, or allegation and make settlements thereof at its own discretion; and (iii) Customer gives JustPerform such assistance and information as JustPerform may reasonably require to settle or oppose such claims.
  2. 9.2In the event any such infringement, claim, action, or allegation is brought or threatened, JustPerform may, at its sole option and expense:
    1. 9.2.1Procure for Customer the right to continue use of the JustPerform Service or the infringing portion thereof
    2. 9.2.2Modify, amend or replace the JustPerform Service or infringing part thereof with other software having substantially the same or better capabilities;
    3. 9.2.3If neither of the foregoing is reasonably available to JustPerform, terminate the JustPerform Service, in which case JustPerform's sole liability shall be to refund to Customer a prorated amount of prepaid fees for the JustPerform Service applicable to the remaining period in the thencurrent Subscription Term.

10. Warranty and Limitation of Liability

  1. 10.1JustPerform warrants that, during the Subscription Term, JustPerform shall perform its obligations and the JustPerform Service will perform materially in accordance with the applicable User Documentation, and JustPerform will not materially decrease the functionality of JustPerform Service. In the event of a breach of the foregoing warranty, JustPerform will use diligent efforts to perform a root cause assessment and remedy such breach in a timely manner.
  2. 10.2JustPerform warrants that, to the best of its knowledge, the JustPerform Service is free from, and Justperform will not knowingly introduce, software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm.
  3. 10.3Except as warranted on clauses 10.1 and 10.2, all other representations and warranties, express, implied, statutory, or otherwise, including any implied warranty of merchantability and fitness for a particular purpose are hereby disclaimed to the maximum extent permitted by applicable law. JustPerform Service are provided 'as is' exclusive of any warranties whatsoever. In no event will JustPerform be liable for any loss of profits, loss of use, business interruption, loss of data, any delay or delivery failures or other damages resulting from problems inherent in the use of internet, cost of cover, or indirect, special, incidental or consequential damages of any kind in connection with or arising out of the JustPerform Service and JustPerform's maximum aggregate liability whether in contract, tort or any other form of liability shall not be greater than the Subscription Fee paid by the Customer to JustPerform for the last 12 months under the relevant Order Schedule to which the cause of action relates.
  4. 10.4No employee, agent, representative or affiliate of JustPerform has authority to bind JustPerform to any oral representations or warranty concerning the JustPerform Service. Any written representation or warranty not expressly contained in this Agreement will be void and unenforceable.

11. Assignment/Binding Agreement

Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of the other party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns. Notwithstanding the foregoing, no transfer or assignment of the party's respective rights hereunder shall be effective unless and until (1) Customer has paid all the amounts due hereunder, and (2) the purported assignee agrees in writing to be bound by all the obligations of the assigning party hereunder.

12. Confidentiality

  1. 12.1Each party acknowledges that the Confidential Information constitutes valuable trade secrets, and each party agrees that it shall use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party's prior written consent. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. However, neither party bears any responsibility for safeguarding any information that it can document in writing (i) is in the public domain through no fault of its own, (ii) was properly known to it, without restriction, prior to disclosure by disclosing party, (iii) was properly disclosed to it, without restriction, by another person with the legal authority to do so, (iv) is independently developed by receiving party without use or reference to disclosing party's Confidential Information or (v) is required to be disclosed pursuant to a judicial or legislative order or proceeding; provided that, to the extent permitted by and practical under the circumstances, the Receiving Party provides to the Disclosing Party prior notice of the intended disclosure and an opportunity to respond or object to the disclosure or if prior notice is not permitted or practical under the circumstances, prompt notice of such disclosure.
  2. 12.2In the event of actual or threatened breach of the provisions of Clause 12.1, the non-breaching party will be entitled to immediate injunctive and other equitable relief.

13. Notice

Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by registered mail, return receipt requested, (c) sent by overnight air courier, or (d) by e-mail, in each case forwarded to the appropriate address of the Parties.

14. Miscellaneous

  1. 14.1Force Majeure. Neither party will incur any liability to the other on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond its control and without negligence of the parties. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire, and explosions ("Force Majeure Event"), but the ability to meet financial obligations is expressly excluded. If either Party's ability to perform any of its obligations under this Agreement is adversely affected because of a Force Majeure Event, the party who has been so affected shall as soon as reasonably practicable give notice to the other party and shall take reasonably practicable steps to resume performance. Upon receipt of such notice, all affected obligations under this Agreement shall be immediately suspended for the period of such Force Majeure Event. If the period of suspension or non-performance exceeds thirty (30) days from the date of occurrence of the Force Majeure Event, the party whose ability to perform has not been so affected may give written notice to terminate this Agreement with immediate effect.
  2. 14.2Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed to be deemed a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action.
  3. 14.3Survivability. Clauses on Intellectual Property Rights and ownership, Payment obligations, Limitation of Liability and Confidentiality shall survive expiration or termination of this Agreement and any Order Schedule until the parties have completely fulfilled their respective obligations, except for Confidentiality which shall survive expiration or termination of this Agreement and the applicable Order Schedule for three (3) years thereafter. Such provisions shall be binding to each party and their successors. Both parties recognize and acknowledge that the breach of such provisions shall cause irreparable injury inadequately compensable in damages and that; accordingly, the other party may seek injunctive relief against a breach or threatened breach of the provisions contained in each paragraph, in addition to any other legal remedies under this Agreement.
  4. 14.4Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
  5. 14.5Entire Agreement. This Agreement (including the Order Schedules, PSA, Statement of Works and any addenda hereto signed by both parties) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. In the event of a conflict between the terms of this Agreement and the terms of any Order Schedule, any Statement of Work, or other exhibit hereto, such conflict will be resolved in the following order: (a) the Order Schedule; (b) this Agreement, (c) the exhibits A and B; (d) the Statement of Work and (e) the Professional Services Agreement.
  6. 14.6Standard Terms of Customer. No terms, provisions or conditions of any purchase order, acknowledgement, or other business form that Customer may use in connection with the provision of this Agreement hereunder will (i) have any effect on the rights, duties, or obligations of the parties hereunder, or (ii) otherwise modify, amend, or add language to this Agreement, regardless of any failure of JustPerform to object to such terms, provisions, or conditions.
  7. 14.7Modification of Agreement. This Agreement may be modified or changed only by a written addendum signed by the duly authorized representatives of each party.
  8. 14.8Public Announcements/Publicity. JustPerform may use Customer's name and logo on JustPerform's website and marketing collaterals subject to compliance with branding guidelines provided by the Customer. Upon completion of implementation services, JustPerform may issue one press release, distribution costs paid by JustPerform, to announce Customer's selection and implementation of JustPerform and the JustPerform Service. No financial or contract details will be included. Customer will work with JustPerform to create a case study describing how JustPerform has benefited its operations. JustPerform will pay all costs associated with creation and distribution of the case study. Distribution of the case study and an accompanying press release is subject to Customer's prior approval.
  9. 14.9Applicable Law/Language. This Agreement will be interpreted and construed in pursuant to the laws of Singapore without regard to conflicts of laws and provisions. In the event of any dispute between the parties under this Agreement or any Schedule, such dispute shall be resolved by arbitration at the Singapore International Arbitration Center (SIAC) in accordance with its rules of arbitration for the time being in force, which rules are deemed to be incorporated by reference into this Clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English. Notwithstanding any of the foregoing, the parties shall have the right to seek injunctive relief in the courts of Singapore. The parties agree that the official language of this Agreement and any related documents is English. In the event of a conflict between a non-English version of Agreement or any related documents (even if prepared or executed in that language), then the official English translation shall prevail.

EXHIBIT A

DATA SECURITY AND PRIVACY PRINCIPLES4

This Exhibit describes the principles and architecture of the security and privacy related audits and certifications received for, and the administrative, technical, and physical controls applicable to the JustPerform Service. The Exhibit is effective between JustPerform and the entity that has executed the Agreement that explicitly refers to this Exhibit while such Agreement remains in effect between the parties. Capitalized terms in this Exhibit shall have the meaning assigned to them in the Agreement unless otherwise defined herein.

1. Principles.

JustPerform emphasizes the following principles in the design and implementation of its security program and practices.

  1. 1.1Confidentiality - Prevention of disclosure of information to unauthorized individuals or systems
  2. 1.2Integrity - Maintaining the accuracy and consistency of data over its life cycle.
  3. 1.3Availability - Maximizing availability of information

2. Security Program.

JustPerform shall maintain an effective security program, consisting of industry best practices, which includes having:

  1. 2.1A formal risk management and treatment program that includes vendor risk;
  2. 2.2Conducting periodic risk assessments of Software Applications that process Customer Data, on at least an annual basis;
  3. 2.3Periodic review of security incidents and subsequent remediation;
  4. 2.4A written security policy that explicitly addresses and provides guidance to its personnel in furtherance of the confidentiality, integrity and availability of Customer Data and Software Applications. The policies are endorsed by JustPerform's senior management and state ramifications for noncompliance; and
  5. 2.5JustPerform shall have resources (i.e., identified individual(s)) to foster and focus on information security efforts.

3. Security Controls.

  1. 3.1User Access, Controls and Policies. JustPerform Service supports a variety of configurable security controls including: unique user identifiers (user IDs) to ensure that activities can be attributed to the responsible individual; controls to revoke access after several consecutive failed login attempts; controls to ensure generated initial passwords must be reset on first use; controls to force a user password to expire after a period of use; controls to terminate a user session after a period of inactivity; password complexity requirements; requirement to periodically change passwords; and denial of access to new users. Further, JustPerform supports SAML 2.0 SSO (Single Sign-On), which Customers can use to centrally manage user access.
  2. 3.2JustPerform Employee Access, Controls and Policies. JustPerform staff cannot see any end-user data without being granted permission by the end user-owner through the native access control system; access is based on the information security principle of 'least privilege with access strictly limited to a select number of skilled individuals; all access is monitored and logged; employees are trained on documented information security and privacy procedures; all employees are subject to 'Employee Background Checks' prior to employment; all employees are required to sign Customer Data confidentiality agreements; and, access is immediately revoked on termination of employment.
  3. 3.3Third Party Service Providers. JustPerform takes reasonable steps to select and retain only third-party service providers that will maintain and implement the security measures consistent with the measures stated in this Exhibit and in accordance with all applicable state, federal or international laws and/or regulations.

4. Vulnerability and Malware Management

  1. 4.1Malware and Viruses. JustPerform undertakes that the JustPerform Service shall not introduce any virus or malware to Customer's systems. Scans are performed for viruses and malware that could be included in attachments or other Customer Data uploaded into Software Applications by Customer.
  2. 4.2Web Application Vulnerability Management. The JustPerform Service is subjected to regular Web Application Scanning (WAS) process carried out using market leading security and compliance providers.
  3. 4.3Third Party Penetration Testing. The JustPerform Service undergoes penetration testing by a third-party firm at least once per year.

5. Security Procedures, Policies and Logging.

All JustPerform Service, including firewalls, routers, network switches and operating systems, log information to their respective system log facility and to a centralized syslog server. All data access by Customer is monitored and logged. All data changes by Customer are monitored and logged. Logging will be kept for a minimum of 365 days. Logging will be kept in a secure area to prevent tampering.

6. Data Encryption.

JustPerform use industry-standard encryption products to protect Customer Data and communications during transmissions between Customer's network and JustPerform, including management of public keys. All data in transit between Customer and JustPerform is encrypted using HTTPS/TLS. Data at rest is stored in a unique non-readable binary format and subject to AES 256-bit full disk encryption.

7. System Maintenance.

Maintenance is carried out during scheduled maintenance hours. Maintenance is most used for new version releases, typically every 4-6 weeks, but may be performed for other updates or on a different frequency.

8. Change Management.

Fully documented change management procedures are followed for all changes and enhancement for Software Applications. All configuration changes are tracked and managed through a written ticketing system and require approval from JustPerform's Change Review Board.

9. Incident Management.

JustPerform maintains incident management policies and procedure describing the roles and responsibilities of the Support, TechOps, Security and Engineering teams and other functional groups. Escalations between the teams are determined based on the nature of issue (infrastructure, security, application, or customer model), duration of issue, and/or scope of issue. A root cause analysis is performed after an issue is resolved.

JustPerform reserves the right to update this Exhibit from time to time with prior notice in writing to Customer, provided that no such update will materially and adversely diminish the overall security of JustPerform Service during the Subscription Term. In the event the update materially and adversely diminishes the overall security of JustPerform Service, such update shall be subject to mutual agreement of both the Parties.

EXHIBIT B

JUSTPERFORM AVAILABILITY AND SUPPORT SLA5

This Service Level Agreement (“SLA”) describes JustPerform availability and support service level policies for use of the JustPerform Service under the terms of the Agreement. The SLA is effective between JustPerform and the Customer that has executed a JustPerform SAAS Subscription Agreement (“Agreement”) while such Agreement remains in effect between the parties. Capitalized terms in this SLA shall have the meaning assigned to them in the Agreement unless otherwise defined herein.

Service Availability.

JustPerform will use commercially reasonable efforts to maintain a Service Availability Percentage at or above 99.5% for a given calendar month. Service Availability means the ability to login to the JustPerform Service (production site) via the “launchpad” login page and, once logged in, the ability to launch a model, input data, perform calculations, and import/export data via JustPerform's documented APIs (taking into account potential service interruptions or degradation arising from import, export and processing of large data sets, simultaneous requests on the same data sets by different users, and complex calculations).

The Service Availability Percentage is calculated monthly as follows:

Service Availability Percentage = (Actual Service Availability / Planned Service Availability) * 100

Actual Service Availability means total minutes of Planned Service Availability in a calendar month minus minutes of unavailability for any reason other than Permitted Outages.

Planned Service Availability means total minutes in a calendar month minus minutes of Scheduled Maintenance

Permitted Outages

means unavailability due to: (1) scheduled maintenance during maintenance hours (not to exceed four hours per week, beginning at 1 p.m. Pacific Standard/Daylight Time on Saturdays, or at another time with at least seven (7) days prior notice from JustPerform) (“Scheduled Maintenance”); (2) emergency maintenance due to factors outside of JustPerform's control that could not have been reasonably anticipated by JustPerform and that reasonably require prompt action to protect the integrity and/or security of Customer Data, Confidential Information or the JustPerform Service; and (3) due to a general failure of Internet connectivity outside of JustPerform's reasonable control.

Support.

Subject to Customer's compliance with the terms and conditions of the Agreement, JustPerform will respond to support requests as provided in this SLA and the Agreement and use commercially reasonable efforts to promptly resolve each request. Customer may submit support cases to JustPerform through the following channels:

E-mail: cathy@justperform.com

JustPerform Incident Management System

Telephone: +65 6708 8303 (English only. JustPerform may respond to requests in other languages on an as-available basis.). JustPerform recommends telephone reporting for the quickest response, particularly on Severity 1 issues.

Customer may view outstanding tickets and issues that are being worked on by JustPerform support personnel, along with each ticket's history, by accessing an Authorized User's individual profiles from within the JustPerform Service.

Severity Level Determination.

Customer shall reasonably recommend to JustPerform an appropriate Severity Level designation based on the definitions below. JustPerform's initial response time will be based on Customer's reported Severity Level. Thereafter, JustPerform may validate Customer's Severity Level designation and will notify Customer of a change in the Severity Level designation with justification for the change. The parties may escalate conflicts in Severity Level designation for resolution through consultation between the parties' management, during which time the parties shall continue to handle the support issue in accordance with JustPerform's Severity Level designation.

Severity Level Definitions & Target Response Times.

JustPerform will use commercially reasonable efforts to adhere to the following response times forthe first contact initiated by a JustPerform support representative.

Severity LevelDescriptionResponse Time
1Fatal. Critical error preventing any useful work from being done. Includes issues affecting all users and a complete loss of system availability where no workaround is available.2 hours
2Severe Impact. Persistent error affecting many users that prevents major functions from being performed or that severely degrades performance, with no reasonable workaround available.4 hours
3Degraded Impact. Error affecting some, but not all users, disabling only certain non-essential functions. Workaround available for short term, but not suitable for long term16 hours
4Minimal Impact. Routine technical issues, errors affecting a small number of users, and other issues with no immediate impact on day-to-day operations, or where a reasonable workaround is available.24 hours

Scope.

JustPerform will provide technical assistance in support of the JustPerform Service in accordance with the Agreement and as described in this Exhibit. Model-building questions or requests for assistance in designing or building JustPerform models or parts of models or formula help may require an appointment with a JustPerform Customer Success representative, which may be subject to an additional fee. JustPerform is not responsible for configuring or diagnosing problems in any other part of the Customer's technical infrastructure.

Responsibilities.

Justperform's ability to provide support depends on Customer's compliance with the Agreement, participation of knowledgeable Customer representatives that provide accurate and detailed information sufficient for JustPerform to reproduce the reported error, and Customer's response to JustPerform communications in a timely manner. JustPerform is not obligated to provide support for issues related to network unavailability due to reasons beyond JustPerform's control including emergency updates to address security, privacy, legal, regulatory, or third-party hardware or software issues not reasonably foreseeable by JustPerform or within Justperform's direct control. JustPerform reserves the right to update support policies from time to time, provided that no such update will materially and adversely diminish Customer's rights to support services as provided herein.

Note:

  1. 1The website www.justperform.com (“Website”) and the software application (“JustPerform”) is operated by Red Apricot Pte. Ltd. [Company Registration No. 201612206K], a company incorporated in Singapore having its registered address at 190 Clemenceau Avenue, #06-02 Singapore 239924. JustPerform is the brand name registered by the Red Apricot Pte. Ltd. under which all the services mentioned in this document are provided. Red Apricot owns and retain all rights and interest in JustPerform Platform, including all documentation, modifications, improvements, upgrades, derivative works, and all other Intellectual Property rights in connection with the JustPerform.
  2. 2Designated Equipment is applicable only for private cloud deployment and shall be clearly stated in the applicable Order Schedule, if any.
  3. 3In case of private cloud deployment, these SLAs shall not be applicable to its entirety. The Parties will separately discuss the applicable SLAs and agree under the Order Schedule.
  4. 4This exhibit shall not be applicable for the private cloud deployment. The Parties shall mutually discuss and agree separate data security and privacy principles in the case of private deployment.
  5. 5This exhibit shall not be applicable for the private cloud deployment. The Parties shall mutually discuss and agree separate SLAs in the case of private deployment.
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