Terms and Conditions – Version 2022.1

YOU OR THE ENTITY THAT YOU REPRESENT (“COMPANY”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND A PARTY TO THESE TERMS AND CONDITIONS TOGETHER WITH ANY APPENDICES HERETO (THESE “TERMS AND CONDITIONS”); UNLESS COMPANY HAS EXECUTED A SEPARATE SIGNED AGREEMENT WITH AERA TECHNOLOGY, INC. (“AERA”) GOVERNING THE SAME SUBJECT MATTER HEREIN (THE “SEPARATE AGREEMENT”) IN WHICH CASE SUCH SEPARATE AGREEMENT SHALL APPLY. COMPANY’S DOWNLOAD, SUBSCRIPTION TO, ACCESS TO OR USE OF ANY AERA SOFTWARE AND/OR SERVICES IS CONDITIONED ON, AND INDICATES COMPANY’S ASSENT TO, THESE TERMS AND CONDITIONS TO THE EXCLUSION OF ALL OTHER TERMS, UNLESS OTHERWISE AGREED IN THE SEPARATE AGREEMENT.  IF COMPANY DOES NOT UNCONDITIONALLY AGREE TO ALL OF THESE TERMS AND CONDITIONS, THEN IN THE ABSENCE OF A SEPARATE AGREEMENT COMPANY WILL HAVE NO RIGHT TO DOWNLOAD, ACCESS OR USE AERA’S SOFTWARE OR SERVICES.

THESE TERMS AND CONDITIONS CONTAIN AN ARBITRATION PROVISION. ANY DISPUTE ARISING HEREUNDER SHALL BE SUBJECT TO RESOLUTION PURSUANT TO THAT PROVISION. COMPANY ACKNOWLEDGES THAT IT IS AWARE OF AND ACCEPTS BINDING ARBITRATION AS THE SOLE MEANS OF RESOLVING DISPUTES WITH AERA.

These Terms and Conditions shall remain in effect for as long as Company has the contractual right to use Aera’s software or services, unless earlier terminated as set forth herein.  These Terms and Conditions represent the complete understanding and the entire agreement between the parties with respect to the subject matter hereof.  No amendments or modifications to these Terms and Conditions shall be effective unless such amendment or modification is in writing and such writing is signed by both parties hereto. Any terms and conditions set forth in a purchase order issued by or on behalf of Company shall not amend or modify these Terms and Conditions and shall be of no force or effect.

1.	Subscription SaaS License. Subject to payment of all fees and compliance with these Terms and Conditions Aera grants Company a non-exclusive, non-sublicensable, and non-transferrable limited right and license to access and use Aera’s subscription SaaS products, and any other software, deliverables, documentation, support or materials provided by Aera in connection herewith (collectively, the “Subscription Items”). Company’s access to and use of all Subscription Items shall expire at the end of the applicable license term (including any renewals thereof) associated therewith (“License Term”), unless earlier terminated in accordance with these Terms and Conditions. For the avoidance of doubt, Company may not use the Subscription Items or any services provided by Aera (the "Services” and together with the Subscription Items, the “Solution”): (i) for any purpose other than its internal business purposes, (ii) in a manner that is inconsistent with the Aera documentation, or (iii) in a manner that exceeds any data and other usage restrictions imposed at the time the license is purchased or procured (“Usage Restrictions”). Company shall reasonably and promptly cooperate with any Aera request to verify its compliance with these Terms and Conditions. In the event that Company exceeds the stated data and/or other Usage Restrictions applicable to the Subscription Items, Aera or its authorized reseller may invoice Company for such excess use, and Company hereby agrees to purchase and pay for such excess use. 

2.	Restrictions. Company may not use the Solution in any manner that could reasonably be expected to damage, disable, overburden, or impair servers, networks or other devices running thereon, or connected thereto. Company will not and will not authorize third parties to: (i) reproduce, modify, translate, enhance, bench test or create derivative works of the Solution, (ii) decompile, disassemble, or reverse engineer the Solution (except to the extent such restriction is expressly prohibited by applicable law), or (iii) provide, divulge, disclose, or make available to, or permit the use of the Solution by or for the benefit of any third party. Company will, at all times, comply with all applicable laws, statutes, ordinances, and regulations in connection with its provision of data to Aera or its use of the Solution. Company will be responsible for its users’ compliance with these Terms and Conditions and shall hold Aera harmless from any liability resulting from upload and use of the Company’s data in connection with its use of the Solution.

3.	Intellectual Property. Company shall retain ownership of all Company data provided by Company to Aera hereunder. Aera has and shall retain sole and exclusive ownership of all right, title and interest in and to the Solution, including without limitation all deliverables, hardware, know-how, algorithms, logic, technology and software owned, licensed, or developed by Area and/or used to provide the Solution hereunder, any feedback provided relating to any portion of the Solution (for clarity, Company hereby grants Aera a perpetual, irrevocable right to use, exercise and exploit any such feedback for any purpose), any modification, enhancement, upgrade or derivative work of any portion of the Solution, and all intellectual property and proprietary rights in and to any portion of the Solution, (collectively, “Aera IP”). Company acknowledges that Aera utilizes or relies on artificial intelligence components and other forms of machine learning, so that through Company’s use of the Solution, the Aera IP may be modified, improved, or enhanced and that all such modifications, improvements and enhancements are owned exclusively by Aera. Neither Company nor any of its users or any third party acquires any ownership or intellectual property rights in or to Aera or any Aera IP as a result of any use by Company or its users of the Solution or any Aera IP. The Solution provided hereunder may contain components governed by separate third party licenses (including licenses to open-source technology). The parties hereby agree that each party shall comply with the terms and conditions applicable to the use of such components as part of the Solution.

4.	COS Self-Service Terms. If Aera has provided Company or its authorized users access to the COS Self-Service functionality, then the COS Self Services Terms attached hereto as Appendix 1 shall apply to Company’s use of the COS Self-Service features and functionality, and such terms shall be incorporated herein by reference.

5.	Confidentiality. Either party may disclose to the other party business, technical or financial information hereunder that either is identified as confidential at the time of disclosure, or that a reasonable person would consider confidential (“Confidential Information”). Except as otherwise expressly provided elsewhere in these Terms and Conditions, the receiving party may only use the Confidential Information of the other party as reasonably necessary to perform services and/or deliver the Solution or related deliverables; and may only disclose the other party’s Confidential Information to its affiliates, subcontractors and personnel who have a need to know as necessary to provide access to the Subscription Items, perform the Services and/or deliver related deliverables and who are bound to protect such information as set forth herein.  For the avoidance of doubt, Aera may disclose Confidential Information to its authorized resellers as necessary to effectuate these Terms and Conditions. The foregoing obligations will not apply to information which the receiving party can document: (i) is or becomes part of the public domain without the breach of the Terms and Conditions, (ii) was known to the receiving party prior to the time of disclosure, (iii) is disclosed to receiving party by a third party without confidentiality obligations with respect to such Confidential Information, or (iv) was independently developed by the receiving party. In the event either party is required to disclose, pursuant to a judicial order, a requirement of a governmental agency or by operation of law, any Confidential Information provided to it by the other party, then such party will provide the other party written notice of any such requirement immediately after learning of any such requirement (unless prohibited), and take commercially reasonable measures to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and allow the other party to participate in the proceeding. Any disclosure will be the minimum disclosure as recommended by disclosing party’s legal counsel. Upon written request by either party hereto, the other party will promptly return or destroy all documents and other tangible materials representing the requesting party’s Confidential Information and all copies thereof, except for any archived materials that are required to be retained by law or that are not easily retrievable from secured archival systems, or records created in the ordinary course of business that are kept by a party and used only for contract compliance and enforcement purposes, provided that such information shall remain the subject to the obligations of confidentiality set forth in these Terms and Conditions. 

6.	Payment Terms.  Company shall pay the fees for the Subscription Items and Services in accordance with any payment terms set forth at the time of purchase.  Company shall be responsible for and shall pay any applicable taxes, duties, withholdings and governmental assessments (“Taxes”), other than taxes based on Aera’s (or its authorized reseller’s) U.S. income. Company shall not deduct any Taxes from the total amount due or any other amounts owed hereunder.

7.	Termination; Effect Thereof; Termination for Breach. 

a.	Effect of Termination or Expiration. The License Term shall automatically expire at the end of each such License Term. Notwithstanding the foregoing, all amounts accrued for Subscription SaaS License fees and any other fees prior to the expiration of the License Term are non-cancellable, non-refundable, and will remain due and owing after such expiration. Immediately upon the expiration of the applicable License Term, all licenses and rights of Company and its users will terminate and Aera’s obligation to provide access to the Subscription Items and Services will cease, and all accrued payment obligations and/or outstanding amounts owed will immediately become due and payable, and such payment obligation shall survive expiration.

b.	Termination for Breach. Either party may terminate these Terms and Conditions  thirty (30) days after notice to the other party of a material breach of these Terms and Conditions if such breach remains uncured at the expiration of such thirty (30) day notice period. Immediately upon the effective date of any termination of these Terms and Conditions, all licenses and rights of Company and its users will terminate and Aera’s obligations to provide the Solution hereunder will cease.

8.	Delays. The estimated timelines for the delivery of the Solution are subject to availability of the Company and Aera. Aera will not be responsible for any delays to the applicable project schedule for the delivery of such license or services, which are due to or caused by the acts or omissions of the Company. Any additional services or any additional costs due to such delays will require the written approval of Company and Aera. 

9.	Backups. For the avoidance of doubt, Company shall be responsible for maintaining backups of its data and data sources, generally. Any backup copies of master tables containing Company data used by Aera to provide the Solution, e.g., for testing, validation, or security and disaster recovery purposes, etc. (“Backups"), are created solely for such operational purposes and are not part of the Solution (as defined hereunder) ordered by Company. For clarity, Aera will not retain Backups longer than reasonably required to support Aera’s obligations under the Service Level Agreement attached hereto as Appendix 2 and disaster recovery policy purposes. Backups may be created as Aera determines is reasonably necessary for such operational purposes and will be deleted within one (1) year after creation, unless otherwise mutually agreed in writing (which may be subject to additional fees).

10.	Test Environments. From time to time, in connection with the use of and access to the Solution by Company, a party may desire to test certain extensions of functionality (collectively, “Skills”) in a test environment prior to the release of that Skill in the production environment. The parties acknowledge and agree that (1) the test environments, by their nature, are designed solely to serve as a test environment and are not designed to support a production environment; and (2) test environments provided as part of the Subscription Items are (A) subject to the use and scope limitations determined by Aera or otherwise mutually agreed in writing; (B) not subject to the Service Levels set forth in the Service Level Agreement; and (C) not for use as or combined with a production environment. Any test environment provided to Company may adhere to the same specifications as a production environment but may not meet the same security standards or certifications as applicable to Aera’s production environment. Company hereby authorizes Aera to test Skills in a testing environment and to use any data authorized by Company in connection with such testing (e-mail authorization from any Company user being deemed sufficient) (“Test Data”). The parties do not intend for any personal information to be included in Test Data. Any data protection and/or security requirements on data relevant to such testing, shall be mutually agreed in writing (e-mail being sufficient), subsequently hereto on a case-by-case basis as relevant to the Test Data.

11.	Service Levels. Aera will support the Subscription Items in accordance with the Service Level Agreement attached hereto as Appendix 2.

12.	Limited Warranties and Disclaimer.  

a.	Corporate Organization and Authority. Each party represents and warrants to the other party that: (a) it is a corporation or other business entity, properly organized and in good standing in its state of incorporation; and (b) it has the full corporate right and authority to enter into, execute, and perform its obligations under these Terms and Conditions. The individual entering into these Terms and Conditions on a party’s behalf represents and warrants that he or she has the authority to bind such party to these Terms and Conditions.

b.	Compliance with Laws.  Each party represents and warrants to the other party that it will comply with all applicable laws, statutes, ordinances, and regulations in connection with its performance of these Terms and Conditions.

c.	Viruses.  Aera represents and warrants to Company that it shall test all software it provides in connection with the Solution using reasonable means to protect against viruses, malware and disabling code.

d.	Performance. Aera warrants to Company, that during the applicable License Term, the subscription SaaS products licensed hereunder will operate in substantial conformity with the applicable documentation, or Aera shall respond to the non-conformity as set forth in Appendix 2 or otherwise bring them into conformity.  The warranty set forth in this Section 12 (d) shall not apply if the non-conformity was caused by Company data, misuse, unauthorized modifications, third-party hardware, software or services, matters beyond Aera’s reasonable control, or any use provided on a no-charge or evaluation basis.  The remedy set forth in this subsection (d) shall be Company’s sole remedy and Aera’s sole liability for any performance failure or non-conformity.

e.	DISCLAIMER.  COMPANY ACKNOWLEDGES AND AGREES THAT AERA RESELLERS AND OTHER THIRD PARTIES HAVE NO AUTHORITY TO MAKE ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES ABOUT THE SUBSCRIPTION ITEMS, SERVICES, OR ANYTHING ELSE PROVIDED BY AERA.  EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 12, AND WITHOUT LIMITING SECTION 11, THE SUBSCRIPTION ITEMS AND SERVICES AND ANYTHING ELSE PROVIDED BY AERA ARE PROVIDED AS-IS, WITHOUT ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND (ALL OF WHICH ARE HEREBY DISCLAIMED), INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

13.	Limitation of Liability. EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (I) NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES OR FOR ANY LOST PROFITS OR REVENUES, AND (II) A PARTY’S MAXIMUM AGGREGATE LIABILITY HEREUNDER SHALL BE THE FEES PAID OR PAYABLE BY COMPANY TO AERA IN THE TWELVE (12) MONTHS PRIOR TO THE EVENTS GIVING RISE TO SUCH LIABILITY. THESE LIMITS SHALL APPLY EVEN IF LIABILITY WAS FORESEEABLE AND REGARDLESS OF THE TYPE OF ACTION. AERA SHALL NOT BE LIABLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

14.	Solution Improvements and Changes.

a.	New Features.  The Solution is subject to modification (for example, to provide improvements and new features or comply with regulatory requirements) from time to time at Aera’s discretion, provided that Aera will provide Company with thirty (30) days’ prior notice of (i) any material adverse changes, and/or (ii) any planned discontinuation of the thereof.  

b.	Change of Laws.  Changes in the industry and other partner requirements, applicable laws and regulations, and/or other circumstances may require Aera to make changes to its Solution from time to time.  Company acknowledges that its continued use of the Solution following notification of any such changes constitutes acceptance of those changes.  Company shall inform Aera if it becomes aware that these Terms and Conditions is not in compliance with any laws, rules, and regulations applicable to Company and the right to access the Solution is revoked where these Terms and Conditions, or to the extent the use, offering, sale or provision of the Solution, conflict with any applicable law, rule, or regulation.

15.	General Terms. Either party may only assign these Terms and Conditions in whole to an affiliate or to a successor-in-interest as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its business or assets, provided that the use of the Solution after such assignment shall be limited to the use of such Solution immediately prior to such assignment. All other attempted assignments shall be null and void. These Terms and Conditions shall be governed by the laws of the state of California, without regard to its conflicts of law provisions. Any claims for emergency or preliminary injunctive relief may be brought in any court of competent jurisdiction. ALL OTHER DISPUTES, CLAIMS OR CONTROVERSY ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS, OR THE INTERPRETATION, MAKING, PERFORMANCE, BREACH OR TERMINATION THEREOF, WILL BE SUBJECT TO MANDATORY, BINDING ARBITRATION UNDER THE JUDICIAL ARBITRATION AND MEDIATION SERVICES IN SAN FRANCISCO, CALIFORNIA, IN THE ENGLISH LANGUAGE. BOTH PARTIES ACKNOWLEDGE THAT BY AGREEING TO ARBITRATION, THEY WAIVE THE RIGHT TO RESOLVE ANY SUCH DISPUTE THROUGH A TRIAL BY JURY OR JUDGE OR ADMINISTRATIVE PROCEEDING. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator(s) or any other court may, in its discretion, award reasonable costs and fees to the prevailing party. Company acknowledges and agrees that Aera may use subcontractors to provide the Solution, but Aera remains fully responsible for any such subcontracted services. 

16.	Export and Other US Government Matters.  

a.	Neither party may knowingly export or re-export the Subscription Items, any data or information, or any software (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority, including, without limitation, to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”), at any time.  Company further represents and warrants that it will not use the Solution for the development, design, manufacture, or production of missiles, or nuclear, chemical, or biological weapons. 

b.	As defined in FAR section 2.101, any software and documentation provided by Aera are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and Conditions and will be prohibited except to the extent expressly permitted by the terms thereof.  

 

Appendix 1
Cognitive Operating System (COS) Self-Service Terms

The following terms and conditions shall apply to the self-service features licensed to Company as part of the Subscription Items (the “COS Terms”). “COS Self-Service” means the features within the Subscription Items consisting of a Skill-building platform. COS Self-Service is made available by Aera to Company as a part of the Subscription Items and is subject to the same license grant and conditions governing the use of the Subscription Items. Notwithstanding Section 2(i) of the Terms and Conditions, if Company has been authorized by Aera to use COS Self-Service, it may use COS Self-Service to build its own Skills or modify Aera-developed Skills (the latter defined as “Aera-Developed Skills”) solely for use with the Subscription Items during the applicable Term.
1.	COS Self-Service User Security Requirements. Company will be responsible for ensuring that all authorized users to whom it provides access to the COS Self-Service features (“COS Self-Service User(s)”) will adhere to the restrictions and obligations applicable to the COS Self-Service determined by Aera applicable to access to the COS Self-Service features (including in connection with the Terms and Conditions and these COS Terms). Company will ensure that all COS Self-Service Users will have passed Company’s standard background check, security training, and all other requirements generally imposed by Company on other personnel performing similar services for Company in the applicable region, and Company will not allow any COS Self-Service User to access the Subscription Items until the foregoing requirements are met.
2.	Company-Developed Skills.  Company represents and warrants (on behalf of itself and its COS Self-Service Users) that (a) the Skills or portions thereof developed by Company or its COS Self-Service Users (collectively, “Company-Developed Skills”) are its original creation and that it has the full power, right and authority to use the Company Developed Skills with the Subscription Items. Company hereby grants Aera the rights herein without any conflict with third party rights; (b) it has obtained all rights necessary from its COS Self-Service Users involved in the creation of Company-Developed Skills, to grant the rights in these COS Terms without any further restrictions or obligations; (c) the Company-Developed Skills are not subject to any Company, COS Self-Service User or third party rights that will bind or restrict Aera in any way; (d) the Company-Developed Skills shall not contain any malware, viruses, defects, or other harmful code or programming instructions that can damage, disable, impair, interfere with or otherwise adversely affect COS Self-Service or the Subscription Items, or any underlying computer programs, data files, or hardware that support COS Self-Service or the Subscription Items without the consent and intent of Aera. Company shall promptly notify Aera of any facts or circumstances of which Company become aware that would make these representations and warranties inaccurate in any respect. Company shall be fully responsible for all COS Self-Service Users that Company allows such access and will indemnify and hold Aera harmless from any losses, liabilities, damages, claims and expenses arising from or relating to use of COS Self-Service by Company or its COS Self-Service Users.
3.	Notification of COS Self-Service User Changes. In the event a COS Self-Service User’s employment or contract with Company is terminated, Company shall immediately terminate such user’s access to the Subscription Items (including without limitation, the COS Self-Service) and change any applicable access credentials thereto. For the avoidance of doubt, any replacement of COS Self-Service Users shall be subject to and in accordance with the Usage Restrictions and the Terms and Conditions (including these COS Terms). As between the parties, Company is solely responsible for and shall indemnify and hold Aera harmless from Company’s and its COS Self-Service Users use of, and acts and omissions in connection with their use of the COS Self-Service.
4.	Ownership.
a.	As between the parties, Aera shall retain all right, title and interest in and to the COS Self-Service technology, platform, and all Aera-Developed Skills (and any portions thereof), and all related intellectual property rights.
b.	Subject to Section 4(a) above, and without limiting Aera’s rights set forth herein and in the Terms and Conditions, as between the parties, Company shall retain all right, title and interest in and to the Company-Developed Skills; provided that Company hereby grants Aera the right to access and use such Company-Developed Skills to provide the Subscription Items under the Terms and Conditions. No rights or licenses are granted by Aera with respect to the underlying Skills and technology made available by Aera in connection with the COS Terms except for the limited licenses during the applicable License Term, as expressly set forth in the Usage Restrictions and the applicable Terms and Conditions.
5.	Freedom to Operate and Evolve. Nothing arising in or from these COS Terms shall prevent Aera from using, disclosing, exercising, or exploiting information, know-how, ideas and skills of a general nature developed or learned in the course of performance of the Terms and Conditions and this Appendix that relates generally to its business operations, provided that Aera does not attribute or disclose Confidential Information uniquely applicable to Company in connection therewith.
6.	Survival. Aera’s rights and Company’s obligations and liabilities under the COS Terms shall survive any expiration or termination of the applicable License Term and/or Terms and Conditions between the parties. 
 
Appendix 2
Service Level Agreement

This Service Level Agreement Appendix describes the support services offered by Aera in connection with the Subscription Items under the Terms and Conditions to which this Appendix is attached (collectively, the “Agreement”).  Capitalized terms not otherwise defined herein shall have the corresponding meaning set forth in the Agreement.

1.	SERVICE AVAILABILITY 
1.1	Definitions.

1.1.1	“Available” means the amount of time the hosted SaaS Subscription Item is operational in a production environment without Unscheduled Downtime.

1.1.2	“Business Days” means Monday through Friday, excluding U.S. federal holidays.

1.1.3	“Business Hours” means 8 a.m. to 6 p.m. Pacific Time on Business Days.

1.1.4	“Monthly Availability” means, expressed as a percentage, 100 multiplied by the quotient of: the total number of hours in the applicable calendar month less Scheduled Downtime, Force Majeure Events, and Unscheduled Downtime; divided by the total number of hours in the applicable calendar month less Scheduled Downtime and Force Majeure Events.  

1.1.5	“Pacific Time” means Pacific Standard Time or Pacific Daylight Savings Time, whichever is then in effect at the applicable moment of consideration. 

1.1.6	“Scheduled Downtime” means the number of hours the hosted SaaS Subscription Item is unavailable due to planned downtime for maintenance, system repair or updates. 

1.1.7	“Unscheduled Downtime” means the number of hours that the Aera-hosted SaaS Subscription Item has a Severity Level 1 critical failure in a production environment, affecting all users of thereof, with no workaround available; provided that Unscheduled Downtime excludes Scheduled Downtime and Force Majeure Events for the avoidance of doubt.  

1.2	Availability Targets. During each calendar month of the License Term, Aera will use best efforts to provide the hosted SaaS Subscription Items with a Monthly Availability of no less than 99.5% on a 24x7 basis (“Availability Target”).  

1.3	Scheduled Downtime Notifications.  Aera shall use commercially reasonable efforts to notify Company in advance of the duration and timing of any Scheduled Downtime in accordance with the following terms: (a) at least thirty (30) calendar days in advance for the deployment of major product releases; and (b) at least five (5) Business Days in advance for all other Scheduled Downtime.  Scheduled Downtime will be scheduled to occur on weekends and holidays whenever reasonably practical. The parties agree that the total amount Scheduled Downtime will not exceed sixteen (16) hours per calendar quarter.  Aera shall provide Company with (i) prompt telephone notification to the applicable point of contact set forth in the Agreement as soon as it becomes aware of any actual or imminent Unscheduled Downtime; and (ii) during the Unscheduled Downtime, periodic updates regarding Aera’s progress in remedying the Unscheduled Downtime and the estimated time until the Subscription Item will be Available.
2.	ERROR REPORTING, RESPONSE AND RESOLUTION. 
2.1	Additional Definitions.
2.1.1	“Error” means a failure of the Aera-hosted Subscription item, when properly used by authorized users in a production environment, to conform to the applicable specifications set forth in the applicable documentation in all material respects, with no workaround available; and excluding Force Majeure Events.

2.1.2	“Severity Level” means the applicable Error Severity Level described in the chart below:
Severity Level	Description
Level 1 – Critical	Critical production Error affecting all users, including entire system Unscheduled Downtime and data integrity issues with no workaround available.
Level 2 – Urgent	Major functionality is impacted or performance is significantly degraded by an Error. Error is persistent and affects many users and/or major functionality. No reasonable workaround is available. Also includes time-sensitive requests such as requests for feature activation or a data export.
Level 3 – High	System performance Error or bug affecting some but not all users. Short-term workaround is available, but not scalable.
Level 4 – Medium	Inquiry regarding a routine technical Error; information requested on application capabilities, navigation, installation or configuration; bug affecting a small number of users. Reasonable workaround available. Resolution required as soon as reasonably practicable.

2.1.3	Error Reporting.  Company shall promptly report any observed Errors to Aera and in doing so shall initially identify the Error as a Severity Level 1, 2, 3, or 4 Error based on Company’s initial good faith evaluation in accordance with the Severity Level descriptions above.  Company may report to Aera any Severity Level 1 or 2 Error twenty-four (24) hours per day, seven (7) days per week, and any Severity Level 3 or 4 Error during Aera’s normal Business Hours.  If Aera independently becomes aware of a Severity Level 1 or 2 Error, Aera shall notify Company promptly, but in any event within the applicable Initial Response timeframe designated in the chart set forth above, and such notice will identify the Error as a Severity Level 1 or 2 Error based on Aera’s initial evaluation in accordance with the Severity Level descriptions above. 
2.1.4	Severity Level Determination.  Aera and Company shall cooperate in good faith to jointly determine whether an Error is a Severity Level 1, 2, 3 or 4 Error; provided, however, that if Aera and Company cannot reach a joint determination despite such good faith cooperation, Company’s reasonable determination will control. 
2.1.5	Reported Error Response and Resolution Times.  Following receipt of notification by Company of an Error, Aera shall categorized and handle the Error according to the assigned severity level.  Aera shall use commercially reasonable efforts to respond to, and use the applicable efforts consistent with those designated in the chart below to resolve, the Error or provide a workaround.  Company shall provide Aera with all information and assistance reasonably requested by Aera to resolve the Error, and the resolution times set forth herein shall be extended for any period of time attributable to Company’s failure to comply with the foregoing obligations.
Error Severity Level	Level of Effort	Initial Response	Target Service Restoration or Workaround
1	Continuous best efforts, 24 hours per day, 7 days per week	60 minutes	12 hours
2	Continuous best efforts, 24 hours per day, 7 days per week	4 hours	24 hours
3	Commercially reasonable efforts, during normal Business Hours	1 Business Day	3 calendar days
4	Commercially reasonable efforts, during normal Business Hours	1 Business Day	8 calendar days