SUBSCRIPTION SERVICES GENERAL TERMS AND CONDITIONS

SUBSCRIPTION SERVICES GENERAL TERMS AND CONDITIONS

These Subscription Services General Terms and Conditions (the “Agreement”) are incorporated by reference into, and shall apply to, any Order Form or Statement of Work between the SumTotal Systems, LLC Affiliate identified in an Order Form or Statement of Work issued hereunder (“SumTotal”) and the customer named on such Order Form or Statement of Work (“Customer”). Any capitalized term not defined herein shall be defined as set forth in such Order Form or Statement of Work. Collectively, SumTotal and Customer may be referred to herein as the “Parties” or in the singular as “Party”.

GENERAL TERMS AND CONDITIONS

1. Definitions

1.1. Affiliate means and include any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where "control" means the ownership of, or the power to vote, at least fifty-one percent (51%) of the voting stock, shares, or interests of such entity provided such entity agrees in writing to be unconditionally bound by the terms and conditions of this Agreement.

1.2 Cloud Services means the hosting services provided by SumTotal pursuant to the Exhibit C to this Agreement.

1.3 Confidential Information means any non-public, confidential or proprietary information or data, whether communicated in writing, orally, or by any other method, and whether or not patentable or copyrightable, that is provided by one Party (“Discloser”) to the other Party (“Recipient”) under this Agreement and that is (i) marked as “confidential” or “proprietary” by the Discloser at the time of disclosure, or within thirty (30) days after disclosure in written form; or (ii) information which a reasonable person engaged in a similar transaction would consider to be confidential information; further provided that, if such information or data relates to the “Service” as defined in Section 1.23, then such information and data will be “Confidential Information” whether or not it has been marked as “confidential” or “proprietary” by the Discloser. Without limitation, SumTotal’s Confidential Information will include the Service, web site architecture and content, its proprietary technology, or computer software in all versions and forms of expression, manuals, notes, Documentation, technical information, drawings, diagrams, or specifications. Customer’s Confidential Information will include the Customer Data.

1.4 Customer Data means any data, information, or material provided or submitted to the Service by Customer in the course of using the Service.

1.5 Customer Equipment means Customer’s computer hardware, software, and network infrastructure used to access the Service.

1.6 Customer Error Incident means any Service unavailability related to Customer’s applications, Customer Data, or Customer’s Equipment, or any act or omission of any user of the Service.

1.7 Derivative Work means a work of authorship based on one or more pre-existing works, such as a revision, modification, abridgement, condensation, expansion, or any other form in which the pre-existing work may be recast, transformed, or adapted.

1.8 Documentation means the information that SumTotal routinely provides regarding the Software and Service to customers via SumTotal’s website.

1.9 Force Majeure has the meaning as set forth in Section 14.1 of this Agreement.

1.10 Intellectual Property Rights means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

1.11 Login means the username and password assigned by Customer for each User.

1.12 Malicious Code means any computer viruses, worms, or any other software that is intended to damage or detrimentally alter a computer system or data.

1.13 Maintenance Services means the maintenance services provided by SumTotal pursuant to the Exhibit B of this Agreement.

1.14 Named User Model means the subscription model whereby Customer has purchased a committed number of Users to access the Service during the Subscription Term.

1.15 New Version Release has the meaning as set forth in the Exhibit B of this Agreement.

1.16 Order Form means SumTotal’s standard order form that (i) specifies the Service applications or modules provided to Customer; (ii) references this Agreement; and (iii) is signed by authorized representatives of the Parties and deemed incorporated into the Agreement.

1.17 Overage means the number of Users, Unique Logins, or Registrations in excess of the number of Users, Unique Logins, or Registrations, as applicable, as set forth in the applicable Order Form and as amended in any subsequent Order Form.

1.18 Professional Services means the services further described through a Statement of Work, pursuant to Exhibit A of this Agreement.

1.19 Professional Services Fee means the fee paid by Customer to SumTotal for the additional Professional Services as provided in Exhibit A and the applicable Statement of Work.

1.20 Registration means any form of training, (such as, but not limited to, documents, online courses, and/or instructor-led courses) registration event (either self- directed or by a third-party) that does not have a corresponding Registration Cancellation event within the same calendar month. Each training event registered via a combined structure such as a curriculum will be counted as an individual Registration.

1.21 Registration Cancellation means the action taken by Customer whereby either (i) the Registration is deleted or (ii) the Registration is replaced.

1.22 Registration Model means the subscription model whereby Customer has purchased a committed number of Registrations during the Subscription Term.

1.23 Service means the hosted, on-demand, web-based service offered by SumTotal, including the Software Modules, and updates made thereto from time to time and accessible via http://www.sumtotalsystems.com or another designated web site or IP address.

1.24 Service Deliverables means the items to be delivered to Customer in connection with any implementation or Professional Services SumTotal performs pursuant to Exhibit A, such as consulting reports, on-site training, integration work or modifications to the Software Modules, but excluding the Software Modules.

1.25 Software means the object code version of the SumTotal software or Third Party Products, made available through the Service under this Agreement.

1.26 Software Modules means the unmodified and fully compiled executable code for the Software identified in the Order Form(s) executed pursuant to this Agreement.

1.27 Statement of Work has the meaning as set forth in Exhibit A of this Agreement.

1.28 Subscription Service Fee means the committed fee paid by Customer for access to the Service during the Subscription Term.

1.29 Subscription Term(s) means the period(s) during which a specified number of Users are licensed to use the Service.

1.30 SumTotal Technology means all of SumTotal’s proprietary technology (including Software Modules, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by SumTotal in providing the Service.

1.31 Third Party Products means any products and/or services provided by SumTotal to Customer where SumTotal is a reseller of a third party.

1.32 Transaction means, with respect to the use of the expense management Software, the submission and approval of an expense report using the expense management Software.

1.33 Unique Login means a committed unique User who authenticate into the system one or more times in a calendar month or year, as defined in the applicable Order Form.

1.34 Unique Logins Model means the subscription model whereby Customer has purchased a committed number of Unique Logins.

1.35 User means any individual with an active account, for whom talent management data, (e.g., learning data, goals, appraisals, succession plans, etc.) or employment, payroll or expense related data exists in the database maintained by SumTotal for the benefit of the Customer. An active account means the account has been accessed or data in the account has been updated or was inputted during the relevant Subscription Term, and in the case of the Learning Management applications and their related modules, any individual for whom there is a user login account permitting such individual to access and use the Service is considered to constitute an individual with active account. Exceptions:

(A) For purposes of SumTotal’s learning management applications, data may be retained for persons who are flagged as inactive in the system for historical reporting purposes only and such persons are not counted as Users and are not allowed to login to the system or access any system functionality.

(B) For purposes of SumTotal’s talent management applications, a person who only accesses the system to provide feedback in a 360 assessment and/or act as an external job applicant and does not have any other data stored in the system is not counted as a User.

2. Service.

2.1 SumTotal will provide Customer with use of the Service, including a browser interface and login data, in addition to encryption, transmission, access to, and storage of Customer Data. As part of the Service, SumTotal shall provide the Maintenance Services set forth in Exhibit B and Professional Services mutually agreed upon via Statements of Work. SumTotal may at its sole discretion enhance the Service from time to time, at no cost or expense to Customer, provided any such enhancement will not, in any case, reduce the performance or functionality of the existing Service prior to such enhancement. SumTotal will set up a website for Customer from which Customer can access the Service and will notify Customer of the URL for such SumTotal website.

2.2 SumTotal hereby grants Customer a non-exclusive, non-transferable, worldwide right to access and use the Service, subject to the terms and conditions of this Agreement. Customer may only (a) access the Software Modules as stated in this Agreement; and (b) permit such access by Users.

2.3 Each User must have a Login with a unique user identification. SumTotal reserves the right to require Customer to alter any password if SumTotal believes it is no longer secure. Customer shall not permit more than one person to use each Login to access the Service or to otherwise share login accounts, user identifications, or passwords. Customer shall not deactivate a named individual’s access to the Service and assign such access to another named individual, except when the named individual is no longer employed by Customer (or, where applicable, a contractor of Customer). Customer is responsible for all access to the Service and activities conducted by individuals accessing the Service using the Logins, including each such individual’s compliance with the terms herein.

2.4 If Customer subscribes for services using two usage models each group of users must be managed in separate domain hierarchies. E.g., if the Named User Model and the Registrations Model are both used, Customer must manage all Registration Model Users accessing the Service on a per Registration basis in a separate domain hierarchy from all other Users under the root domain. All Users who are not managed in the separate domain hierarchy for Registration Model Users will be counted as Users under the Named User Model.

2.5 SumTotal shall have the right to verify the number of Users, Unique Logins, and/or Registrations under this Agreement at the end of each month. At the end of each quarter following the Effective Date, if there are usage Overages during the previous quarter, SumTotal shall submit a quarterly usage report to Customer summarizing the number of Users, Unique Logins, or Registrations, as applicable, on the Software during the previous quarterly period (“Usage Report”). Along with the Usage Report, SumTotal shall submit to Customer an invoice for any Overage owed to SumTotal based upon the Usage Report. For Workforce Management, Expense, or Payroll/HR OnDemand, such Overages shall be calculated and invoiced monthly. Once an Overage is detected, SumTotal may increase the total number of Users, Unique Logins, and/or Registrations with access to the Service to include those Users, Unique Logins, and/or Registrations added via the Overage, in which case the new total number of Users, Unique Logins, and/or Registrations shall form the basis for the number of authorized Users, Unique Logins, and/or Registrations with access to the Service for the Subscription Term, as well as any renewal terms thereafter, unless otherwise mutually agreed upon in writing between the Parties. Customer will pay SumTotal for all Users, Unique Logins, and/or Registrations added via such an Overage adjustment.

3. Restrictions.

3.1 Customer shall use the Service solely for Customer’s business purposes, in compliance with applicable law, and shall not: (i) sublicense, lease, or make the Service available to any unauthorized third party; (ii) send or store infringing, unlawful, defamatory, or libelous material; (iii) send or store any Malicious Code; (iv) access the Service by any means other than the Login, or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the data contained therein; (v) modify, copy, or create Derivative Works based on the Service; (vi) reverse engineer the Service; (vii) access the Service for the purpose of building, selling, marketing, or otherwise offering a competitive product or service, or copying its features or user interface; or (viii) remove the copyright, trademark, or any other proprietary indicia or notices included within the Service or Service Deliverables, as well as those included on or in the documentation and training materials. All rights not expressly granted to Customer herein are expressly reserved by SumTotal. Customer may not access the Service if Customer is a direct competitor of SumTotal.

4. Customer Responsibilities.

4.1 Customer shall: (i) notify SumTotal promptly of any unauthorized use of any Login or any other known or suspected breach of security; (ii) report to SumTotal promptly and use reasonable efforts to promptly stop any copying or distribution of content that is known or suspected by Customer to be infringing or unlawful; and (iii) not impersonate another SumTotal customer or provide false information to gain access to or use the Service.

4.2 Customer shall be responsible for any costs in connection with establishment and maintenance of Internet connectivity to the Service, including telephone, communications, Internet service provider costs, computer hardware, fees charged by third parties, insurance, Internet access software, or any other costs incurred by Customer in accessing the Service.

5. Account Information and Data.

5.1 SumTotal does not own any Customer Data. Customer, not SumTotal, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and SumTotal shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any data that may result from Customer’s actions. SumTotal is not responsible for restoring lost data or damage to Customer Data that results from Customer’s actions. Customer hereby grants to SumTotal a non-exclusive, fully-paid and royalty-free license to reproduce, distribute, perform, display and otherwise use the Customer Data solely to provide the Service to Customer. Customer represents and warrants that: (i) Customer owns or otherwise has all consents and permissions necessary to grant the license set forth in this section for the Customer Data, and (ii) the Customer Data does not violate the privacy rights, publicity rights, Intellectual Property Rights, or other rights of any person or entity. SumTotal has the right (but not the obligation) to review any Customer Data and delete any Customer Data that in the sole judgment of SumTotal violates this Agreement; is prohibited content; is illegal; violates the rights, harms, or threatens the safety of any user or any other person; or creates liability for SumTotal, its Suppliers, or any user upon 30 days’ written notice specifying the alleged default or violation if the default or violation is not remedied within the notice period.

6. Intellectual Property Ownership.

6.1 SumTotal alone (and its suppliers, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the SumTotal Technology and the Service. Customer hereby assigns to SumTotal all Intellectual Property Rights in, or arising from, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Service or the SumTotal Technology. SumTotal may use such submissions as it deems appropriate in its sole discretion. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service, the SumTotal Technology or the Intellectual Property Rights owned by SumTotal and its suppliers. The SumTotal name, the SumTotal logo, and the product names associated with the Service are trademarks of SumTotal or its suppliers, and no right or license is granted to use them. Customer will not accrue any residual rights to the SumTotal Technology or Service, including any rights to the Intellectual Property Rights in connection therewith.

7. Payment Terms, Charges and Fees.

7.1 Customer agrees to pay SumTotal the Subscription Service Fee(s) set forth in an Order Form issued under this Agreement. The Subscription Service Fee(s) shall be due and payable annually in advance within thirty (30) days after the invoice date. Except as otherwise set forth herein, all amounts received by SumTotal pursuant to this Section 7 shall be non-refundable. In the event that Customer designates another entity to receive invoices on its behalf, Customer shall remain liable to Skillsoft for the timely payment of said invoices. Such designation may be made by written notice to Skillsoft.

7.2 Customer shall reimburse SumTotal upon demand for all reasonable costs incurred (including attorneys’ fees) in collecting past due amounts owed by Customer, and SumTotal reserves the right to charge interest of up to one and one-half percent (1.5%) per month, or the maximum charge permitted under applicable laws, on the past due amounts that are the subject of such collections activities. For the avoidance of doubt, SumTotal shall not bring an action to collect any past due fee that is the subject of a good faith dispute between the Parties.

7.3 SumTotal reserves the right to impose a reasonable reconnection fee in the event any termination of the Service under this Agreement is lifted by SumTotal as a result of Customer’s cure of a breach of its obligations hereunder.

7.4 Taxes. All amounts payable to SumTotal hereunder are exclusive of taxes. SumTotal shall be responsible for all taxes payable in connection with its provision of the Service and Service Deliverables to Customer and on its income therefrom. SumTotal shall invoice Customer and Customer shall be responsible for all sales, use, excise, service, or similar taxes payable in connection with its receipt and use of the Service and Service Deliverables under this Agreement. Notwithstanding the foregoing, prior to Customer’s execution of this Agreement Customer may provide SumTotal with a valid tax exemption certificate or direct pay permit acceptable to the applicable taxing authorities to allow the issuance of invoices to Customer without the applicable tax. In the event that Customer is legally required to withhold income tax from any payments to SumTotal under this Agreement, SumTotal shall provide Customer with a valid tax residency certification as required under any double taxation treaty then in effect to reduce or eliminate the income tax to be withheld from these payments. Customer shall withhold tax at the applicable rate in effect as of the date of payment and shall provide to SumTotal on a timely basis documentation evidencing payment of the tax withheld to the applicable tax authority.

8. Compliance with Laws

8.1 Compliance with Law. Each Party shall comply with all applicable laws and regulations in connection with its provisioning, downloading and/or use of the Service and Service Deliverables and in performing its obligations hereunder, including, but not limited to, export controls and embargo restrictions under the laws and regulations of the United States ("U.S.") and the European Union (“EU”), including without limitation export controls administered by the U.S. Department of Commerce, the United States Department of the Treasury Office of Foreign Assets Control, or other U.S. agencies.

8.2 Prohibited Jurisdictions. Customer acknowledges and further agrees that the Service and Service Deliverables shall not be used in, and none of the underlying information, software, or technology may be downloaded, transferred, or otherwise exported or re-exported to, any country to which the U.S. and/or the EU maintains an embargo applicable to the Service and Service Deliverables; nor shall Customer share the Service and Service Deliverables with a national or resident of any such country, or with any person or entity on the U.S. Department of the Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons List, Unverified List, or Entity List, or who is listed in General Order No. 3 as set forth in Title 15 of the U.S. Code of Federal Regulations, Part 736, Supplement No. 1 “Designated National”. The lists of Embargoed Countries and Designated Nationals are subject to change without notice.

8.3 Remedy. Notwithstanding any other provision of this Agreement, Customer agrees that SumTotal, in its sole discretion, may take such actions as it deems necessary to remedy a breach of any provision in this Section 8.

9. Term and Termination.

9.1 The term of this Agreement (the “Term”) will commence on the Effective Date and will expire on the furthermost End Date set forth in an Order Form issued under this Agreement, unless earlier terminated pursuant to this Section 9.

9.2 Either Party may cancel this Agreement and/or an Order Form issued under this Agreement (a) upon written notice to the other Party, if the other Party commits a material breach which it fails to cure within thirty (30) days of receipt of written notice of such breach, or which by the nature of the breach cannot be cured within such thirty (30) day period; or (b) immediately if the other Party has a receiver appointed, or makes an assignment for the benefit of creditors, or in the event of any insolvency or inability to pay debts as they become due by the other party, except as may be prohibited by applicable bankruptcy laws.

9.3 If SumTotal terminates this Agreement pursuant to subsection 9.2(a) or 9.2(b) above, then SumTotal reserves the right to pursue any and all rights and remedies available to it under applicable law, including, but not limited to, collection of the Subscription Service Fee. If Customer terminates this Agreement pursuant to subsection 9.2(a) above, then SumTotal shall not retain any amount previously paid by Customer for the period after the effective date of termination, but shall be entitled to receive and retain all amounts attributed to the period before the effective date of termination.

9.4 The rights and obligations of the Parties which either expressly or by their nature are to continue after the termination or expiration of this Agreement shall survive and remain in effect.

10. Representations and Warranties.

10.1 Representations and Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

10.2 Warranty on Service. SumTotal warrants that it will provide the Service in accordance with industry standard practices. During the term of an applicable Order Form executed under this Agreement the Service will substantially conform to the Documentation. In the event that a material defect is identified by Customer, and confirmed by SumTotal, then SumTotal, at its sole option and expense may: (i) make reasonable efforts to correct defects in the Software Module(s) that are documented by Customer, and confirmed by SumTotal; or (ii) replace the defective Software Module(s); or (iii) if SumTotal deems neither of the foregoing are commercially practicable, terminate the license granted herein with respect to the applicable Software Module, accept return of the defective Software Module and grant Customer a pro-rated credit of the unused portion of the license fees paid with respect to the defective Software Module. The remedy stated in this Section 10.2 shall be SumTotal’s entire obligation and Customer’s sole and exclusive remedy for breach of warranty hereunder and shall be in lieu of any other remedy available to Customer at law or in equity. This warranty shall not apply if the Software Module(s) have been (a) altered, modified, or enhanced by any party other than SumTotal; (b) subjected to misuse, negligence, or computer or electrical malfunction; or (c) used, adjusted, installed, or operated other than in accordance with the Documentation, or as authorized in writing by SumTotal. Furthermore, no warranties shall apply in the event of an uncured breach of this Agreement by Customer for which notice of breach has been given by SumTotal hereunder.

10.3 Limited Warranty on Service Deliverables. For a period of 30 days following the delivery of a Service Deliverable (“Service Deliverable Warranty Period”), SumTotal warrants that the Service Deliverable, as provided by SumTotal during the Service Deliverable Warranty Period, will in all material respects conform to and perform in accordance with the mutually-agreed specifications. Customer must report any breach of the foregoing warranty to SumTotal in writing pursuant to Section 14.5 of this Agreement within the Service Deliverable Warranty Period. Customer’s exclusive remedy for a breach of this warranty is the correction of any material reproducible nonconformity in the Service Deliverable so that it conforms to this warranty. If SumTotal determines that SumTotal is unable to correct the Service Deliverable after using commercially reasonable efforts to do so, then SumTotal’s sole and exclusive obligation shall be to refund the fees actually paid for such Service Deliverable provided that Customer discontinues all use of the Service Deliverable and certifies that Customer has done so and has destroyed all copies in Customer’s control.

10.4 DISCLAIMER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED. SUMTOTAL SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ABSENCE OF SECURITY INTEREST, LIEN, OR ENCUMBRANCE. SPECIFICALLY, AND NOT IN LIMITATION OF THE FOREGOING, SUMTOTAL DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED. TO THE EXTENT THAT ANY IMPLIED WARRANTIES ARE DEEMED TO EXIST UNDER APPLICABLE LAW, THEY ARE HEREBY EXPRESSLY LIMITED IN DURATION TO THE DURATION OF ANY EXPRESS WRITTEN WARRANTY MADE HEREIN.

11. Limitation of Liability.

11.1 Fraud, Death, or Personal Injury. Neither Party excludes or limits its liability to the other for fraud, for death or personal injury resulting from its negligence or for any other liability which cannot be excluded or limited by law.

11.2 Non-Direct Damages. Neither Party shall be liable for any consequential, collateral, special, incidental, indirect, exemplary, or punitive damages, including, without limitation, loss of profits or revenue, loss of use, damage, loss or destruction of data, costs of cover, or costs of delay, however caused and based on any theory of liability, for any claims or causes of action arising out of or related to this Agreement or its subject matter. These limitations will apply even if a Party has been informed of the possibility of such damages or any other liability which cannot be excluded or limited by law.

11.3 In no event shall either Party’s aggregate liability for any claims arising in a given contract year (whether in contract, tort, or otherwise; and whether arising under this Agreement or arising out of or resulting from Customer’s use of the Service) exceed the total Subscription Service Fee paid or payable under this Agreement for said contract year.

11.4 The limitations of liability set forth in Sections 11.2 and 11.3 above shall not apply to (i) the Parties’ respective indemnification obligations under this Agreement; (ii) damages arising out of or in connection with Customer’s breach of Section 3.1 of this Agreement; or (iii) any damages arising out of or in connection with Customer’s misappropriation of SumTotal’s Intellectual Property Rights.

12. Indemnification.

12.1 Claims Related to the Service or Service Deliverable. SumTotal, at its own expense, shall indemnify, defend, and hold Customer harmless from and against all claims, damages or other liabilities asserted by, or payable to, a third party that the Service or any Service Deliverable infringe(s) a patent, copyright, trademark, or trade secret of said third party (each, a “Service Claim”). In order to seek or receive indemnification pursuant to the provisions of this Section 12.1, (i) SumTotal shall be notified promptly in writing by Customer of any Service Claim of which it is aware for which indemnification may be available; (ii) SumTotal shall have the sole control of the defense of any such Service Claim and of all negotiations for its settlement or compromise, provided that such settlement or compromise does not require the admission of liability, fault, or wrongful act or conduct on the part of Customer; and (iii) Customer shall cooperate reasonably with SumTotal in the defense, settlement, or compromise of such Service Claim at SumTotal's expense. SumTotal will not be responsible for the expenses, including attorney’s fees, of Customer incurred after SumTotal assumes defense of a Service Claim, but Customer may participate therein and retain counsel at its own expense. SumTotal will not be responsible for any settlement or compromise made by Customer without SumTotal’s written consent. SumTotal will not consent to the entry of any judgment or enter into any settlement or compromise affecting Customer, to the extent that the judgment, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of Customer, and/or otherwise involves more than the payment of money by SumTotal, without the prior written consent of Customer.

12.2 Exclusions. The foregoing provisions of this Section 12 notwithstanding, SumTotal shall not have any liability to Customer under this Section 12 to the extent that any infringement or claim thereof is based upon (i) Customer Data; (ii) use of the Service in combination with any equipment or software not supplied hereunder where the Service would not otherwise be infringing; (iii) compliance with designs, plans, or specifications provided by Customer; (iv) use of the Service in an application or environment for which it was not designed, not provided for in the Documentation, or not contemplated under this Agreement; (v) use of Software which has reached either its End of Support or End of Service, in accordance with the provisions of Exhibit C; (vi) use of Software other than the then-current version, where the indemnifiable claim would not have occurred but for Customer’s use of such non-current Software; (vii) use of the Service in breach of this Agreement; and/or (viii) any claims of infringement in which Customer or any Affiliate of Customer has an interest or license in the property allegedly infringed upon by the Service.

12.3 Injunction. If Customer’s use of the Service or a Service Deliverable is enjoined, or if in SumTotal’s sole judgment is likely to be enjoined, SumTotal may, at its sole option and expense, and as a complete remedy to Customer, either (a) substitute equivalent non-infringing software for the infringing item; (b) modify the infringing item so that it no longer infringes but remains functionally equivalent; or (c) obtain for Customer the right to continue using such item. If SumTotal deems none of the foregoing are commercially practicable, terminate the license granted herein with respect to the Service and grant Customer a pro-rated credit of the unused portion of the Subscription Fee paid with respect the Service. If the foregoing options are not available on commercially reasonable terms and conditions with respect to a Service Deliverable, SumTotal will refund to Customer the fees paid for such Service Deliverable less a credit for use based on straight line depreciation applied on a quarterly basis over five years from the date of initial delivery of the Service Deliverable.

12.4 Claims Related to Customer Data. Customer agrees that Customer shall indemnify, defend, and hold SumTotal harmless from and against all claims, damages, or other liabilities asserted by or payable to a third party arising out of or in connection with Customer Data (each, a “Customer Data Claim”). In order to seek or receive indemnification pursuant to the provisions of this Section 12.4 (i) SumTotal will promptly notify Customer in writing after receiving notice of any Customer Data Claim; (ii) Customer shall have the sole control of the defense of any action on such Customer Data Claim and all negotiations for its settlement or compromise; and (iii) SumTotal shall cooperate reasonably with Customer in the defense, settlement, or compromise of such Customer Data Claim at Customer’s expense. Customer shall not be responsible for the expenses, including attorney’s fees, of SumTotal incurred after Customer assumes defense of a Customer Data Claim, but SumTotal may participate therein and retain counsel at its own expense. Customer will not be responsible for any settlement or compromise of any Customer Data Claim made by SumTotal without Customer’s written consent. Customer will not consent to the entry of any judgment or enter into any settlement or compromise affecting SumTotal, to the extent that the judgment, settlement, or compromise requires the admission of liability, fault, or wrongful act or conduct on the part of SumTotal, and/or otherwise involves more than the payment of money by Customer, without the prior written consent of SumTotal.

12.5 Mutual Indemnities. Each Party hereby agrees to indemnify and hold harmless the other together with its officers, directors, employees, agents, and Affiliates from and against any and all third party claims, actions, demands, liabilities, penalties, fees, costs, or expenses, including reasonable attorneys’ fees, arising out of or in connection with the indemnifying Party’s (i) breach of its obligations set forth in Section 8; or (ii) gross negligence or willful misconduct.

13. Confidential Information.

13.1 Non-Disclosure Obligation. All Confidential Information will be maintained in confidence by the Recipient using at least the same degree of care as the Recipient uses to protect its own Confidential Information, but in no event less than a reasonable degree of care, and will not be disclosed to a third party or used for any purposes except as set forth in this Agreement. The obligations described in this Section 13.1 will not apply to any Confidential Information that:

a. is known by the Recipient at the time of receipt, and not through a prior disclosure by the Discloser, as documented by the Recipient’s business records;

b. is known to the public before its receipt from the Discloser, or thereafter becomes known to the public through no breach of this Agreement by the Recipient;

c. is subsequently disclosed to the Recipient by a third party who is not under an obligation of confidentiality to the Discloser; or

d. is developed by the Recipient independently of Confidential Information received from the Discloser, as documented by the Recipient’s business records.

13.2 Certain Permitted Disclosures. Notwithstanding the obligations of confidentiality and non-use set forth in Section 13.1, the Recipient may use and disclose Confidential Information as may be reasonably required by it in order for the Recipient to perform its obligations and to exercise its rights under this Agreement. The Recipient may disclose Confidential Information: (a) to its employees, directors, agents, consultants, advisors, or other third parties for the performance of its obligations and exercise of its rights hereunder, provided such entities are under an obligation of confidentiality with respect to such information that is no less stringent than those of this Section 13; and (b) to the extent necessary to comply with a court order, or as otherwise required by law or by a regulatory agency or government body, provided that the Recipient shall first give notice to the Discloser (so long as such notice is not prohibited by law) and assist the Discloser, at the Discloser’s expense, to block such disclosure and/or obtain a protective order to protect the confidentiality of such information. If the Recipient is nevertheless required to make such disclosure, the Recipient agrees to disclose only that portion of the Confidential Information that it is legally required to disclose, provided, however, the Recipient shall continue to be bound by the confidentiality and non-use provisions of Section 13.1 with respect to any Confidential Information disclosed by the Recipient pursuant to this Section 13.2. The Recipient shall immediately notify the Discloser of any actual or suspected unauthorized disclosure of Confidential Information.

13.3 Injunctive Relief. The Parties agree that a breach or threatened breach of this Section 13 would result in irreparable harm to the non-breaching Party, which breach would be inadequately compensated by money damages. Accordingly, the non-breaching Party may, in addition to any other legal remedies that may be available, seek injunctive relief, including without limitation preliminary injunctive relief, prohibiting or enjoining any such actual or threatened breach of this Section 13. The Parties agree that the non-breaching Party will not be required to post a bond in seeking such injunctive relief.

14. General Provisions.

14.1 Force Majeure. With the exception of payment obligations, neither Party shall be liable to the other for any loss or damage resulting from any delay or failure to perform its obligations hereunder, in any respect, if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond its control. Such events, occurrences, or causes include, without limitation, acts of God, strikes, lockouts, inability to secure materials and transportation facilities, riots, acts of war, epidemics or pandemics, terrorist acts, governmental actions, floods, earthquakes, natural disasters, fires, and explosions.

14.2 Affiliates. Any Affiliate of Customer may license products and services from SumTotal, or an Affiliate of SumTotal, subject to the terms and conditions of this Agreement; further provided, that such license shall be set forth in a separate Order Form between SumTotal, or its applicable Affiliate, and the applicable Affiliate of Customer. For the avoidance of doubt, Customer may not transfer its licenses to the Service issued under this Agreement to any Affiliate of Customer without the prior express written consent of SumTotal or its applicable Affiliate.

14.3 Assignment. This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either Party may assign its rights and obligations under this Agreement, in whole but not in part, without the other Party’s permission, to an Affiliate or in connection with any merger, consolidation, sale of all or substantially all of such assigning Party’s assets, or any other similar transaction; provided that the assignee: (i) is not a direct competitor of the non-assigning Party; (ii) provides prompt written notice of such assignment to the non-assigning Party, including any updates to the Notices provision below; (iii) is capable of fully performing the obligations of the assignor under this Agreement; and (iv) agrees to be bound by the terms and conditions of this Agreement. Any purported transfer or assignment in violation of this Section 14.3 shall be null and void and of no force and effect.

14.4 Successors. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

14.5 Notices. All notices given hereunder shall be in writing, and shall be deemed to be duly given if delivered by any of the following methods: (i) by personal delivery; (ii) by electronic mail or facsimile, with a confirmation copy sent by first class mail; (iii) by registered or certified mail, postage prepaid, return receipt requested; or (iv) by a nationally recognized express courier. A notice sent by personal delivery, registered or certified mail, or express courier shall be deemed given on the date of receipt or refusal of receipt. A notice sent by electronic mail or facsimile shall be deemed given on the date of electronic confirmation of receipt. Notices shall be sent to the respective addresses of each Party as set forth in the applicable Order Form.

14.6 Prevailing Party. In any litigation, arbitration, or other proceeding arising out of or related to this Agreement, the prevailing Party shall be entitled to receive its reasonable attorneys’ fees, and its reasonable costs and expenses. Note: This Section 14.6 shall be deemed to be intentionally omitted with respect to any Order Form governed by the laws of the United Kingdom or Germany.

14.7 Severability. If any provision herein is held invalid or unenforceable by a court of competent jurisdiction, then such provision shall, to the extent of such invalidity or unenforceability, be severed. All other provisions shall continue in full force and effect and shall be construed so as to best effectuate the intention of the Parties in executing it.

14.8 Federal Acquisition Regulations. The Service licensed under this Agreement is Commercial Computer Software under United States Federal Government Acquisition Regulations and agency supplements thereto. The Service is provided to the federal government and its agencies only under the Restricted Rights Provision of the Federal Acquisition Regulations applicable to commercial software developed at private expense and not in the public domain. The use, duplication, or disclosure by the government is subject to restrictions as set forth in subdivision (c) (1) (ii) of the Rights in Technical Data and Computer Software at DFAR 252 227-7013. Unless exempt, Customer and SumTotal shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status, or disability. If applicable, the Customer and SumTotal shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights. Note: This Section 14.8 shall be deemed to be intentionally omitted with respect to any Order Form that is not governed by the laws of the United States.

14.9 No Third Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the Parties and is not intended to convey any rights or benefits to any third parties, nor will this Agreement be interpreted to convey any benefits or rights to any person except the Parties.

14.10 Governing Law and Venue. As specified in the applicable Order Form.

14.11 Waiver. The failure or delay by either Party in exercising any right or remedy hereunder shall not operate as a waiver of any such right or remedy. Waiver by either Party of any default shall not waive any prior, concurrent, or subsequent defaults by the other Party.

14.12 Counterparts, Electronic Signatures. This Agreement may be executed in counterpart(s), all of which shall be original, signed documents, and which together shall constitute a single agreement. In addition, the Parties expressly agree to the use of electronic signatures to execute this Agreement, any Order Form, and/or any amendment to the foregoing.

14.13 Publicity. SumTotal shall not use Customer’s name or logo in any list or other promotional materials (including, without limitation, online or print-based quotes, case studies, and video testimonials) without the advance authorization from Customer, which will not be unreasonably delayed, conditioned, or withheld. Except as set forth above, there shall be no public announcement of this Agreement or the relationship between the Parties without mutual review and approval by both Parties, except as part of required governmental filings, SEC filings, quarterly earnings announcements, and/or financial presentations.

14.14 Headings. The descriptive headings contained in this Agreement are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. Each of the recitals set forth at the beginning of this Agreement is incorporated into this Agreement and is binding upon the Parties.

14.15 Relationship of the Parties. The relationship of SumTotal and Customer established by this Agreement is of licensor and licensee, each to constitute an independent contractor. Nothing in this Agreement shall be construed to give either Party the power to direct or control the daily activities of the other Party, or to constitute the Parties as principal and agent, employer and employee, franchisor and franchisee, partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that, except as specifically provided in this Agreement, each Party does not grant the other Party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of it, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of it, or to transfer, release, or waive any right, title, or interest of it.

14.16 Entire Agreement; Amendment. This Agreement and any and all Order Forms issued hereunder constitute the entire understanding and agreement between the Parties with respect to the subject matter thereof and supersede all prior and contemporaneous proposals, agreements, and/or nondisclosure agreements, as well as representations between them, whether written or oral. In the event of any conflict between the provisions of this Agreement and any Order Form(s) issued hereunder, the Order Form(s) shall govern, provided, however, that any proposed amendment to any specific provision of these General Terms and Conditions, whether by Order Form or other written instrument, shall only be effective to modify such provision if it identifies the provision by its section reference and is signed by an authorized representative of Customer and a representative of SumTotal at the Senior Manager, Contracts & Revenue, level or higher, or such person’s designee. Any terms or conditions contained in any Customer purchase orders or other Customer documents shall be void and of no force or effect, even if such document is executed by both Parties after the Effective Date. Notwithstanding the foregoing, Customer may change its bill to and/or ship to address upon written notice to SumTotal.

END OF AGREEMENT

EXHIBIT A

PROFESSIONAL SERVICES

This Exhibit sets forth the additional terms and conditions under which SumTotal will provide professional services in connection with the Service.

1. Performance of Services.

(a) Statements of Work. Each professional services project SumTotal undertakes shall be described in statements of work (each a “Statement of Work”) setting forth the agreed upon the scope of the Statement of Work, Service Deliverables, estimated or actual pricing and any special payment terms and, if applicable, project schedule, Service Deliverables, and estimated delivery dates. Both Parties shall execute each Statement of Work and each is incorporated into this Agreement. If there is a conflict between the terms set forth in this Agreement and a Statement of Work, the terms set forth in the applicable Statement of Work will control.

(b) Delivery and Cooperation. Customer acknowledges that Customer’s cooperation is essential to the timely performance of SumTotal’s services. Customer will, to the extent required in connection with the performance of SumTotal’s services: (i) provide SumTotal with any necessary Customer materials; (ii) provide SumTotal with any necessary access to Customer’s personnel, facilities or data; (iii) cause the appropriate personnel to cooperate with SumTotal as required for SumTotal to provide SumTotal’s services, including responding promptly to questions or issues; and (iv) make all payments when due. Customer’s delay or failure to do so may delay the estimated delivery schedules set forth in the Statement of Work. If Customer fails to do any of the foregoing, the Parties will cooperate in good faith to develop a revised written delivery schedule and written Statement of Work or change order signed by both Parties with new pricing.

(c) Place of Performance. If SumTotal’s personnel, agents or representatives are required to travel to a location other than one of SumTotal’s facilities, Customer will pay or reimburse SumTotal upon invoice for all reasonable travel expenses including airfare, ground transportation, lodging and meals for personnel required to travel. SumTotal will adhere to SumTotal’s corporate travel policies and provide a copy, if requested by Customer, unless other arrangements are made prior to undertaking a project. Services to be provided on-site at Customer’s facilities will be scheduled in advance by agreement of each Party. The Parties will use reasonable efforts to accommodate any requested change in the scheduled dates for on-site services, subject to the availability of appropriate personnel. Customer will also reimburse SumTotal upon invoice for SumTotal’s out-of-pocket expenses in connection with the performance of services as set forth in the applicable Statement of Work. At Customer’s request, SumTotal will provide receipts or other reasonably satisfactory evidence of such expenses.

(d) Qualified Personnel. SumTotal will provide all services in accordance with current industry standards and practices using qualified personnel with the necessary skills, qualifications, and experience to provide the Service Deliverables in accordance with the applicable Statement of Work. All personnel providing services will be SumTotal’s employees acting within the scope of their employment and under obligation to assign all rights in the Service Deliverables to SumTotal, or will be independent contractors under written obligation to assign all such rights to SumTotal.

2. Services Payment Terms.

Customer will pay SumTotal for all undisputed services provided under a Statement of Work. Customer will pay SumTotal for time and materials projects at the then-current prevailing hourly rate set forth in a Statement of Work. Fixed fee rates, if applicable, shall be negotiated between Customer and SumTotal. Hourly rates for time and materials projects are subject to change. SumTotal will invoice Customer on a time and materials basis at the end of each month at the billing rates set forth in the Statements of Work for work performed on each Statement of Work during the previous month. Such invoices will include a summary of all time expended for each personnel classification providing services during the month. Fixed fees shall be due upon execution unless otherwise stated in the relevant Statement of Work, except that fixed training fees, if any, shall be due upon completion.

3. Termination of Projects.

Customer may terminate any Statement of Work for any reason upon 30 days prior written notice to SumTotal. If any particular Statement of Work is terminated for any reason other than an uncured breach by SumTotal, after receiving 30 days prior written notice from Customer, then SumTotal shall deliver the work completed on the Service Deliverables then in process and be paid for all services performed through the effective date of termination based on the actual time expended for time and materials projects. If the Parties agree upon a fixed price for Professional Services in a Statement of Work, in the event of termination SumTotal shall be entitled for pro-rated remuneration of the Professional Services actually provided. Such proration shall be calculated based upon actual effort expended by SumTotal through the date the termination became effective, but in no case shall exceed the original agreed-upon fixed price or the amount that would have been charged had the Professional Services been invoiced on a time and materials basis, excluding any additional claims allowed pursuant to this Agreement. Customer will not be entitled to any refund of amounts previously paid under a Statement of Work if Customer elects such early termination.

4. Changes to Service Deliverables.

(a) Changes to Project Scope. Customer may request changes to the scope of a Statement of Work. Any changes to the scope of a Statement of Work shall result in a change order to such Statement of Work or a new Statement of Work. Any scope changes shall be made pursuant to the terms set forth in a Statement of Work, to be mutually agreed upon by the Parties.

(b) Changes to Non-functional Elements. Customer acknowledges that certain non-functional or aesthetic elements of the Services Deliverables, such as screen displays and user interface design, can vary greatly without impact on the functional or performance specifications. SumTotal will incorporate any nonfunctional or aesthetic elements specified in the Statement of Work into the Service Deliverables, and will work together with Customer in the design of such nonfunctional or aesthetic elements. If Customer wants to change the nonfunctional or aesthetic elements of any Service Deliverable which meets the functional and performance specifications and otherwise complies with the applicable Statement(s) of Work, then Customer shall compensate SumTotal at a mutually agreed price set forth in a change order, or at SumTotal’s then current hourly rates, for any additional time required to make such changes.

EXHIBIT B

CUSTOMER MAINTENANCE

This Exhibit sets forth the additional terms and conditions under which SumTotal will provide customer maintenance services in connection with the Software licensed to Customer pursuant to this Agreement.

Customer Maintenance Contact Information:

SumTotal Maintenance Web Site: www.sumtotalsystems.com/online.../ (Note: Follow the instructions for submitting a technical issue or question to SumTotal.).

The contact information in the URL above and the information, policies, and procedures posted therein are current as of the date of this Agreement. SumTotal reserves the right to change its contact information, and the information, policies, and procedures posted on the URL from time to time upon notice to the Designated Contacts, which notice may be provided via telephone or email.

B1. Additional Definitions.

(a) “Designated Contacts” means the individuals designated by Customer and agreed to by SumTotal who are authorized to contact SumTotal’s customer maintenance staff and who will coordinate all of Customer’s Error submissions and maintenance requests.

(b) “Error” shall mean a reproducible defect in the Software when operated on a Supported Environment, which causes the Software not to operate substantially in accordance with SumTotal’s Documentation.

(c) “Error Correction” means a modification or patch that brings the Software into substantial conformance with SumTotal’s Documentation, or a procedure, routine or other information that enables Customer to avoid the practical adverse effect of an Error.

(d) “Instance” shall mean one or more SumTotal web application servers attached to a single database instance.

(e) “New Version Release” means a new version of the Software containing new features or enhancements to functionality. A New Version Release is designated by an increase in the version number (e.g., from 18.1 to 18.2 or 19.0). “New Version Release” only includes releases of the Software in a language included in Customer’s License Configuration Order Form.

(f) “Maintenance Release” means an update to an existing version of the Software containing Error Corrections or minor functionality enhancements. A Maintenance Release is designated as a numbered service pack for the current version, with no change in the version number (e.g., from 18.1.1 to 18.1.2).

(g) “Primary Instance” means an Instance in Customer’s production environment containing Customer’s live learning, talent, payroll, attendance, or expense records.

(h) “Secondary Instance” means an Instance in Customer’s testing environment used for testing or staging of Customer’s data.

(i) “Supported Environment” means a hardware, operating system and database platform meeting the minimum system configuration requirements for the proper use and operation of the Software as set forth in SumTotal’s Documentation.

(j) “Maintenance Term” means any period during which Customer is entitled to receive maintenance hereunder, including any renewals or extensions thereof.

B2. Maintenance Services.

(a) Standard Maintenance Provided. During each Maintenance Term, SumTotal will provide the following maintenance, subject to the procedures and limitations described herein: (i) clarifying and assisting in the operation of the features and functions of the Software; (ii) clarifying SumTotal’s Documentation; (iii) assisting in identifying and verifying the causes of suspected Errors; and (iv) Error Corrections. Such maintenance will be provided for the Primary Instance and Secondary Instance. During each Maintenance Term, Customer will have access to SumTotal’s online community portal located at https://community.sumtotalsyst.... The community portal provides the Customer with access to online learning, knowledge documentation, and tools that enable Customer to enhance Customer’s knowledge of the Software and use the mobile and social learning features. SumTotal provides support on a worldwide basis, therefore, Customer Data may be accessed by SumTotal employees outside of the United States.

(b) Self Help Maintenance Resources. Customer agrees that the Users will first attempt to answer any questions or resolve any issues with respect to the operation of the Software by using the following self-help resources: (i) the Help function of the Software, (ii) SumTotal’s Documentation, (iii) SumTotal’s knowledge documentation, and/or (iv) available tools located on SumTotal’s Community Portal or Support Web Portal.

(c) Contacting Customer Maintenance. If Customer is unable to resolve an issue or question with respect to the Software using the self-help resources described above, the Designated Contacts may contact a customer maintenance representative to receive maintenance using one of the methods described below. SumTotal will provide maintenance only in English and only to the Designated Contacts. Any communication between the Designated Contacts and a customer maintenance representative must be in English. SumTotal will not provide maintenance to end users of the Software or to any person other than the Designated Contacts.

(i) Telephone Hot Line. SumTotal will provide telephone maintenance to the Designated Contacts (as outlined at the following URL - http://www.sumtotalsystems.com/online-support/) during business hours based on the Customer’s address listed in the preamble set forth on the first page of this Agreement excluding SumTotal holidays (the “Support Hours”). SumTotal will provide Customer with a list of SumTotal holidays and any reduced maintenance hours on those holidays upon request. .

(ii) Support Web Portal. SumTotal will use commercially reasonable efforts to provide an acknowledgement to submissions and support requests sent via the web portal located at https://community.sumtotalsyst... set forth in Table B1 (during standard business hours) after SumTotal receives the inquiry.

(d) Error Reporting and Correction. When Customer reports an Error to SumTotal, Customer should include a detailed description of the Error and the severity level determined in accordance with Section B2(e) below. When SumTotal receives notice of an Error, SumTotal will assign a problem tracking number to be included in all correspondence between Customer and SumTotal related to the Error and after SumTotal’s e-mail acknowledgement described in Section B2(c)(ii) above SumTotal will provide a response in accordance with the severity levels and response times identified in Section B2(e). Thereafter, SumTotal will use commercially reasonable efforts to provide an Error Correction. The Error Correction may require that Customer install the latest Maintenance Release for the supported version of the Software on which Customer reported the Error. An Error Correction may require multiple contacts and off-line research. The Error Correction, when completed, may be provided in the form of a Software patch consisting of sufficient programming and operating instructions to implement the Error Correction, which will be provided to Customer via email, download or other electronic means or deployed directly by SumTotal for any subscription Service.

(e) Response Times. SumTotal’s response to an Error depends on the severity of the Error and the level of maintenance purchased by Customer, as determined by Table B1. For each level of severity, SumTotal customer maintenance representatives will use commercially reasonable efforts to respond, during the Support Hours, within the times set forth in Table B1. Response time is the time from SumTotal’s receipt of notice of the Error until SumTotal contacts the Designated Contact reporting the Error to begin resolution efforts, not the time to deliver an Error Correction. SumTotal will respond to an Error which arises in the Primary Instance at all severity levels set forth in Table B1. If an Error arises in the Secondary Instance, SumTotal will only respond according to the Severity 3 level response time, as set forth in Table B1.

(f) Additional Services with Premier Maintenance for the Primary Instance and Secondary Instance. If Customer has purchased Premier Maintenance, SumTotal will provide Customer with the following additional services for the Primary Instance and Secondary Instance:

(i) Two (2) additional Designated Contacts, totaling four (4) Designated Contacts;

(ii) A designated Support Point of Contact who:

(a) Acts as primary support contact during Maintenance Hours;

(b) Provides initial support response, triage, troubleshooting, and solutions;

(c) Holds regular case review meetings on an agreed upon cadence;

(d) Conducts monthly or quarterly operations review with Premier Support Reporting which includes: analysis of Customer specific metrics; delivery of case trend reports and insights, delivery of action plans and best practices for DSCs; and review of release notes and known issues; as well as

(iii) Improved response times as noted in Table B1

(g) Exclusions from Maintenance Program. SumTotal is not responsible or liable for causes external to the Software, including: (i) Customer’s failure to incorporate Maintenance Releases or New Version Releases; (ii) installation of the Software or any New Version Releases not in accordance with the documentation provided with the Software or New Version Releases; (iii) Customer’s use of the Software with any software or hardware other than the Supported Environment; (iv) problems resulting from use of the Software in a manner not permitted pursuant to Customer’s license; (v) modifications, alterations, or additions to the Software by parties other than SumTotal (including, modifications, alterations, or additions to the Software made by Customer); or (vi) damage from any source other than SumTotal including water, humidity, fire, power surges, computer viruses, and accidents (“Excluded Services”). Any maintenance or services required to fix the Excluded Services will be billed to Customer on a time-and-materials basis in accordance with SumTotal’s then current rates. Such services shall be set forth in a mutually agreed upon Statement of Work and provided to Customer pursuant to Exhibit A. Unless SumTotal is hosting the Software at its data center, this maintenance program does not include maintenance in connection with or correcting Errors arising out of or related to a database management server a web server or any other third-party component that is used in conjunction with the Software. SumTotal may, but is not required to, provide Error Corrections for such Errors at its then current time and materials rates. Maintenance does not include Software installation, configuration or services provided on-site at Customer’s location. If SumTotal is required or requested to travel to Customer’s facilities, any services will be provided at then current time and materials rates and Customer will reimburse SumTotal for all reasonable travel expenses, including meals and lodging. Maintenance does not include problems or errors in modifications to the Software SumTotal provides as a Service Deliverables pursuant to Exhibit A. Service Deliverables are provided with a warranty as set forth in Section 10.3 of this Agreement. SumTotal is not responsible for restoring lost data or damage to Customer’s data base that result from Customer’s actions. If Customer desires to purchase upgrade services or other professional services from SumTotal outside the scope of the maintenance in this Exhibit B, then SumTotal will provide such professional services to Customer for a charge as set forth in a mutually agreed upon Statement of Work pursuant to Exhibit A.

B3. Customer’s Responsibilities.

(a) Supported Environment and Operations. Customer is responsible for undertaking the proper supervision, control and management of Customer’s use of the Software including, but not limited to: (i) providing, maintaining and assuring proper configuration of the Supported Environment; (ii) following industry standard procedures for the security of data, accuracy of input and output, and back-up plans, including restart and recovery in the event of hardware or software error or malfunction; and (iii) maintaining a procedure external to the Software for reconstruction of lost or altered files, data and programs. This section will not apply to Customer if SumTotal is hosting the Software at its data center.

(b) Assistance in Providing Maintenance. Customer will provide reasonable assistance to SumTotal in determining and resolving Errors reported by Customer. Error determination activities may include performing network traces, capturing error messages, collecting configuration information and other similar activities to allow SumTotal to reproduce the Error. Resolution activities may include access to Customer’s personnel and/or remote access to the Supported Environment. Customer agrees to allow SumTotal to use remote access tools, with the participation and under the supervision of a Designated Contact, to access the Software in the Supported Environment and modify its configuration as part of its Error determination and resolution activities. Customer acknowledges that SumTotal may not be able to provide Customer with an Error Correction without such remote access. Customer is responsible for performing activities to implement Error Corrections SumTotal provides and for responding in a timely manner to requests for information by SumTotal. Error Corrections may include changing, installing or reinstalling new or existing versions of web browser software or new components, or modifying processes. Any information Customer provides SumTotal in connection with the maintenance process that Customer designates as confidential will be used only to resolve reported Errors, and will not be disclosed to anyone other than SumTotal personnel involved in resolving the Error. As part of SumTotal’s Error resolution process, information Customer provides to SumTotal may be made available to SumTotal’s employees in foreign countries, unless Customer notifies SumTotal otherwise in writing when providing SumTotal with such information. For self- or third party-hosted environments (not hosted by SumTotal), a database copy may be requested or required for Error determination activities. Resolution activities, and therefore Error Correction, may not be possible if Customer fails to provide a database copy in such instances.

(c) Designation of Maintenance Contacts. Customer will designate up to the number of individuals specified in the Order Form as the Designated Contacts for receiving maintenance hereunder and notify SumTotal customer maintenance of the Designated Contacts. Customer may change the Designated Contacts by notifying SumTotal customer maintenance, but may not have more than the number of Designated Contacts set forth in Exhibit C at one time, unless otherwise agreed upon. Each Designated Contact may not be changed more than once in a 30-day period. All Designated Contacts must complete SumTotal’s standard Designated Support Contact training to be certified by SumTotal in basic product knowledge prior to becoming a Designated Contact hereunder.

(d) Training. Customer is responsible for proper training of the Designated Contacts and all other appropriate personnel in the operation and use of the Software and the Supported Environment. Validation of completion of SumTotal Designated Contact Training and/or New Version Release training is required to enable access to SumTotal Maintenance Services.

B4. New Releases of the Software.

The designation of a Software release as a Maintenance Release or a New Version Release will be made by SumTotal at SumTotal’s reasonable discretion. Any New Version Release or Maintenance Release is part of the Software and subject to the terms and conditions of this Agreement and the applicable Order Form. New Version Releases will not occur more than once every six (6) weeks.

Table B1

Severity Level and Response Times

Severity Level Severity Level Description SumTotal Response

P-0 Complete Outage of Primary Instance

• Primary Instance is inaccessible and cannot be used SumTotal will work on the outage around-the-clock until the Primary Instance is accessible.

P-1 Critical Feature/functionality is non-functional in the Primary Instance

• No viable workaround is available;

• A significant number of Users are affected; and

• There is a critical business impact SumTotal will triage and work on the issue as a high priority and will provide a workaround, a data correction script, a patch release or a major release.

P-2 Minor feature/functionality is non-functional in the Primary Instance

• A workaround is available or has been provided for a P1 issue, or

• Limited number of Users are affected; and

• There is a non-critical business impact SumTotal will triage and work on the issue and will provide a workaround, data correction script, a patch release or a major release.

P-3 Primary Instance is fully operational or issue only exists in Secondary Instance

• Minor application issue; or

• Cosmetic issue; or

• Documentation questions; or

• How-To questions; or

• Root Cause Analysis (RCA); or

• Product feedback or enhancement requests For application and cosmetic issues, SumTotal will identify a potential delivery date for a future release.

For Documentation & how-to questions, SumTotal will provide guidance and/or Documentation.

For feedback and enhancement requests, SumTotal will triage these items for potential inclusion on its product roadmap.

Initial Response Times:

Standard Premier

Severity Level Initial Response Severity Level Initial Response

P-0 1 hour P-0 1 hour

P-1 4 hours P-1 1 hour

P-2 8 hours P-2 4 hours

P-3 2 days P-3 8 hours

EXHIBIT C

CLOUD SERVICES

This Exhibit sets forth the additional terms and conditions under which SumTotal will provide hosting services in connection with the Software licensed to Customer pursuant to this Agreement.

C1. Additional Definitions. Any term not otherwise defined herein shall have the meaning provided it in the Agreement.

(a) Emergency Maintenance means downtime of the Service due to the application of urgent patches or fixes, or other urgent maintenance, recommended by SumTotal’s vendors, that is performed outside of Scheduled Maintenance. SumTotal will make commercially reasonable efforts to give Customer prior notice of any Emergency Maintenance, which notice may be provided via telephone or email. Where practical, SumTotal will make commercially reasonable efforts to perform Emergency Maintenance during Customer’s off-peak business hours.

(b) End of Service means the date as of which access to the Service in SumTotal’s cloud environment for a specific Version will be disabled.

(c) End of Support means the period after Maintenance Services ends for a given Version.

(d) Extended Maintenance shall be as described in Section C6(e) below.

(e) Recovery Point Objective (RPO) means the maximum transactional User activity that could be lost should the primary facility be destroyed.

(f) Recovery Time Objective (RTO) means the maximum amount of time to resume access to Customer’s environment at SumTotal’s alternate data center facility.

(g) Scheduled Maintenance means any maintenance performed during SumTotal’s then current standard maintenance windows and any other maintenance for which Customer is given at least forty-eight (48) hours advance notice, which notice may be provided via telephone, email, and/or community portal. As part of the Scheduled Maintenance SumTotal may perform maintenance on some or all of the Service in order to upgrade hardware or software that operates or supports the Service, implement security measures, or address any other issues SumTotal deems appropriate for the continued operation of the Service.

(h) Version means any major version of the Software designated by a version number (e.g., 18.1, 18.2, or 19.0).

C2. Service.

(a) SumTotal will install the Service, and SumTotal will host the Service and any Service Deliverables used in conjunction with the Service.

(b) Any production environment outage is treated as a high priority event for which SumTotal will engage in commercially reasonable recovery efforts to resolve promptly. Non-production environments are supported on a 5 days x 10 hours per day basis (limited to weekdays), and any outage shall be recovered on a commercially reasonable effort basis.

(c) In addition, at Customer’s own expense and without SumTotal’s assistance, Customer may access the Service once every five (5) minutes for purposes of monitoring its availability or functionality, but may not monitor the Service for any other benchmarking or competitive purposes.

(d) SumTotal will provide data storage according to the initial Order Form and any subsequent supplemental Order Forms the (“Storage Allowance”). If at any time Customer exceeds the Storage Allowance, Customer must purchase additional Storage within 60 days of such overage. SumTotal reserves the right to delete any excess data stored by Customer in the event that Customer does not purchase the aforesaid additional storage. Note that there is no charge for storage used by platform data or code.

(e) SumTotal reserves the exclusive right to enforce a fair usage policy regarding content storage. Fair use shall be defined as reasonable usage of the Service in support of Customer’s business and relevant to the services being provided by SumTotal. Customer shall not use the Service in manner inconsistent with typical service usage patterns and agrees to exercise reasonable care with regards to content storage.

(f) SumTotal shall provide Customer with a secure transport mechanism for the receipt of any sensitive files.

(g) SumTotal will maintain the Service at a reputable hosting facility, where it is subject to commercially reasonable security precautions to prevent unauthorized access to the Service. Maintenance of Customer Data and procedures relating to such maintenance shall comply with industry standards for the type of information maintained. However, Customer acknowledges that, notwithstanding such security precautions, use of or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Service and/or Customer Data.

(h) SumTotal shall provide Customer with SumTotal’s AT 101 SOC 2 audit certification or any other relevant audit or certification held by SumTotal upon written request by Customer.

C3. SumTotal Responsibilities

(a) In connection with the Service, SumTotal will provide and maintain all third party software and hardware (such as servers) reasonably necessary to operate the Service.

(b) SumTotal will provide and maintain vendor supported versions of all necessary hardware and software, telecommunications hardware and software, security software and other software that is reasonably necessary to operate and maintain the Service.

(c) SumTotal’s standard disaster recovery service is included in Customer’s service fees. Should a disaster be declared SumTotal will make every reasonable effort to resume access to Customer’s environment at SumTotal’s alternate data center facility within SumTotal’s RTO of 2 days. The standard service includes an RPO of 1 day. The Subscription Service Fee will continue to apply while the alternative site is being utilized. There is no customer-specific recovery testing as part of the standard service.

C4. Service Availability.

(a) SumTotal shall make reasonable efforts to provide production environment service availability of 99.5% measured on a monthly basis (“Service Availability”), not including Scheduled Maintenance, Customer Error Incidents, Emergency Maintenance, and Force Majeure events. For this purpose, and to enable SumTotal to troubleshoot problems as necessary, SumTotal uses an administrator account on each Customer environment. If the Service fails to respond to SumTotal’s automated testing, then SumTotal uses manual testing to confirm such failure. Service Availability is calculated as a percentage by dividing the number of minutes the Service is available during the applicable month by the number of total minutes in the month, excluding in all cases the aggregate of the number of minutes the Service is unavailable due to Scheduled Maintenance, Customer Error Incidents, Emergency Maintenance, and Force Majeure events. An interruption in the Service shall not be considered a breach of SumTotal’s obligations hereunder if: (i) SumTotal promptly takes all reasonable steps to restore the Service, or (ii) the interruption in Service results from a Force Majeure event.

(b) If Customer engages in activity that is not a legitimate use of the Service, such as security penetration tests, stress tests, spamming activity, synthetic workloads or any other activity for which the product is not intended, SumTotal may shut down Customer’s Service until such activity ceases, with such Service interruption not being counted against the above availability measure. Additionally, SumTotal assumes no obligation to remediate any findings resulting from such activities.

C5. Return of Customer Data.

(a) In the event this Agreement is terminated or expires, SumTotal will upon request provide an electronic copy of Customer course content via sFTP at no charge. Customer can also obtain the content of the most common database tables using the data extract inherent in the application’s reporting tool. However, if the Customer requires additional tables or a different data format Customer may request within 30 days of termination or expiration a custom extract of specific data be provided, with the fee based on the complexity of Customer’s requirements, and pursuant to a Professional Services Statement of Work. After such 30-day period, SumTotal shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. SumTotal will not provide extracts of Customer Data unless all amounts due and owing for the Service, including Committed Subscription Service Fees for each Subscription Term, Setup Services Fees, Professional Services Fees, Overage fees, or any other fee or charge associated with Customer’s use of the Service, have been paid by Customer.

(b) Any data retention requirements are the sole responsibility of the customer. SumTotal is not responsible for maintaining data past the end of the contract except for the case in C5(a).

C6. End of Life.

(a) SumTotal will provide Maintenance Services for each Version of the Software for a minimum of two years after the official production release of that Version. SumTotal will provide notification to Customer twelve (12) months before the effective date of End of Support.

(b) As of the End of Support date there will be a) no product patches provided for that Version, and b) no Service Availability in effect. Additionally, the Customer agrees to hold SumTotal harmless for any Version-related cybersecurity incidents.

(c) SumTotal will declare Version(s) of the Software End of Service no sooner than three (3) years after the official production release of the Software. SumTotal will provide notification to Customer twelve (12) months before the effective date of End of Service.

(d) SumTotal, at its sole discretion, may offer Extended Maintenance for an additional fee. This extended support program would reinstate Maintenance Services, subject to (e) below, for the period between the End of Support and End of Service.

(e) Extended Maintenance allows for the continued support of the version of the Software supported by Extended Maintenance. If at any time during the Maintenance Term, Customer should fail to stay on an up-to-date version of the Software, as set forth in the applicable Order Form, Customer may obtain Extended Maintenance on a pro-rated basis until such time that Customer has upgraded to the most current New Version Release. Customer has the option to contract for Extended Maintenance should Customer choose to remain on an out-of-date version of the Software. If Extended Maintenance is no longer available for the version of the Software that is being utilized, Customer must upgrade from the unsupported version of the Software to the most current New Version Release.

(f) For the avoidance of doubt, all referenced dates are relative to the official production release of the Software only. Contract execution dates and/or go-live dates have no impact any timelines referenced herein. All current dates, including initial production, End of Support, and End of Service can be found at SumTotal’s current Customer Community web site.