Outmatch, Inc., a Texas corporation, having its principal place of business at 13355 Noel Rd., Suite 1500, Dallas, Texas, 75240 (“Outmatch”), provides online Software-as-a-Service (“SaaS”) application functions on a subscription basis and related professional and support services to enable clients to perform assessments, structured interviews, reference checking, and other related functions in support of the employee assessment, selection and development process. Client desires to use, and Outmatch desires to provide, the services set forth in this Agreement and in the associated Sales Order Form(s) (“Order”). See Schedule 1 for a form of Order. The Agreement includes and incorporates the Order. This Agreement represents the parties’ full and entire understanding of the duties and obligations of both Outmatch and the Client.

For and in consideration of the mutual promises contained herein and other good and valuable consideration, the parties do hereby agree as follows:

Defined Terms. Unless otherwise defined in the Order(s), capitalized terms used in this Agreement, have the following meaning:

“Client Data” consists of Participant Data, the results generated by the Services based on Participant Data, Client User information, Client Administrative User information, and any other information provided by Client that is used by Outmatch to configure and deliver the Services.

“Client Users” shall mean all employees, contractors or consultants of the Client that will be granted access and authorized to use the Outmatch Site or Services.

“Client Administrative Users” shall mean those Client Users authorized by Client to conduct systems administration functions, such as, but not limited to, granting login credentials to other Client Users, on the Outmatch Site or Services and who are granted access credentials with these additional privileges.

“Participants” shall mean the natural persons who are the subject of the Services provided to Client by Outmatch under this Agreement and the scope of its Sales Order(s), including but not limited to candidates for employment positions with the Client, employees of the Client, persons with a professional, educational, or other relationship to another Participant subject to the Services, or any other person as determined and controlled at the sole discretion of the Client.

“Participant Data” shall mean all data and information related to and associated with a Participant, including Personal Information and other information collected from or regarding Participants during the provision of the Services by Outmatch.

“Services” shall mean access to and end-user use of the online information and functions of the outmatch.com website and its underlying SaaS application services, as well as, related implementation, configuration, training, professional and support services offered by Outmatch and delineated in the Order.

“Site” shall mean the Outmatch and associated website(s).

“System” shall mean all hardware, equipment, and additional systems required for Outmatch to provide the Services hereunder.

1. Scope of Services.

1.1 Provision of Services.

1.1.1  General. Subject to the terms of this Agreement, Outmatch will use commercially reasonable efforts to provide Client the Services in accordance with an Order and any related documentation solely for use by Client. Specifically, Outmatch will receive and/or retrieve Client Data from Client, conduct the Services with the users identified in such data, and deliver and/or make available assessment scores and other service outputs to the intended recipient(s). Except as otherwise agreed by the parties pursuant to Section 1.1.2, Outmatch will have no obligation to acquire or transmit any Client Data or results to any party other than Client. For purposes of this Agreement, commercially reasonable efforts exclude remedy of factors beyond Outmatch’s control, such as, but not limited to, Force Majeure Events (defined herein), failure of data communications systems outside Outmatch’s Internet network, and failure of Client’s information systems or networks.

1.1.2  Client’s Use. Client may use the Services only to process and support the screening of Participants and post-hire measurement processes associated with the business of Client. Except as expressly authorized by this Agreement or Outmatch’s prior written consent, Client may not, directly or indirectly: lease, rent, sublicense, transfer, resell, act as a service bureau or otherwise grant rights to any third party concerning the Services; reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Outmatch or authorized within the Services); or remove any proprietary notices or labels. The parties acknowledge and agree that the access and use of the Services by Client and any processing of transactions is for a reasonable number of Client Users (including remote Client Users) through web access to outmatch.com, or if through integration to Client’s Applicant Tracking System (“ATS”) or other human resource system or web portal, a dedicated single configuration, implementation, and connection to Outmatch (a “Subscription”) established pursuant to the initial Order. In addition, the Services may be accessed and used by third parties acting strictly on behalf of the Client, and solely for the benefit of Client, and who have agreed in writing to comply with the terms and conditions of this Agreement (“Third Party Contractors”). Client shall be responsible for breach of this Agreement by such Third Party Contractors. Without limiting the generality of the foregoing, the Client may permit Third Party Contractors to use the Services, in accordance with the terms and conditions of the Agreement, in connection with any outsourcing, facilities management, programming, processing or support services provided to Client by any such Permitted Third Party Contractor. In the event that Client seeks a new Subscription to the Services or any modification of an existing Subscription (not including supported configuration changes), the parties shall prepare an Order that specifies any additional setup, Subscription, integration, and configuration requirements and associated fees. Outmatch shall have no obligation to provide any new or modified Subscription unless the parties have mutually agreed on the terms of a new Order. Client acknowledges that the operation of such new Subscription for the business operations of Client shall be subject to payment by Client of separate setup fees, subscription fees, volume tier charges and other charges applicable to such new Subscriptions, and such fees and charges shall be set forth in a separate Order to be made part of this Agreement.

1.1.3 Expert Service Bundles. As part of this Agreement and at the fees indicated therein, Outmatch shall provide Client with the level of technical support as set forth in Schedule 2, as may be modified by mutual written agreement of the parties from time to time.

1.1.4 Additional Services. As part of this Agreement and at the fees indicated in the Order executed by Client, Outmatch shall provide Client with optional Integration with Outmatch ATS Partner services as set forth in Schedule 3, as may be modified by mutual written agreement of the parties from time to time.

1.1.5 Additional Restrictions and Responsibilities. Further, Client may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof 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. As defined in Federal Acquisition Regulation (“FAR”) section 2.101, the Software and documentation are “commercial items” and according to Defense Federal Acquisition Regulation Supplement (“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 the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

1.1.6 Client represents, covenants, and warrants that Client will use the Services only in compliance with all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless Outmatch against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services.Although Client has no obligation to monitor Client’s use of the Services, Client may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

1.1.7 Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.

2. Software.

Subject to the terms and conditions set forth herein, Outmatch grants the Client a limited, nonexclusive, nontransferable right and license during the term of this Agreement to access and use and to allow its Participants to access and use Outmatch’s Internet Websites and Software thereon located at www.outmatch.com and other websites operated by Outmatch, provided Client is current with the payment of all fees set forth in each Order. All such usage will be the responsibility of Client and will be billed to Client in accordance with the Order. The Software is protected under copyright, trade secret and other intellectual property laws. Client may not sublicense, reproduce distribute, market, sell, transfer, disclose, translate, modify disassemble, or reverse engineer the Software or its documentation or create derivative works based on any portion of the Software or its documentation, or obtain possession of any source code or other technical material relating to the Software. Client shall not remove, alter, or obscure any copyright notice(s) or proprietary legend(s), or “Powered by Outmatch” labels contained in the Software or  any reports or other materials provided to Client hereunder. Outmatch and its suppliers reserve all rights not expressly granted in this Agreement.

3. Implementation.

3.1 Order. The parties shall use commercially reasonable efforts and cooperate in good faith to implement the Services in accordance to a mutually acceptable Order and to enable online access by Client Users and/or a compatible connection from Client’s ATS systems to those of Outmatch.

4. Code of Ethics. Client agrees to adhere to the principles of conduct set forth below (“Code of Ethics”), which will survive the duration of this Agreement and shall remain in effect with regard to all the Services, reports and other outputs furnished to the Client or by the Client to Client’s customers. Client also agrees to accept full responsibility for the conduct of its employees, operating in conjunction with or on Client’s behalf as it pertains to the Services and the Code of Ethics. Client shall indemnify and hold Outmatch harmless from liability, damages and expense for any claim or matter deriving from (a) non-compliance with the Code of Ethics by Client, its employees, agents, or contractors or (b) Client’s violation of any third party rights of privacy. The Code of Ethics is as follows:

(i)  The Services, the reports thereof, and their interpretations will not be used as the sole or principal cause and not be communicated as such for not hiring, transferring, or promoting a candidate for hire, transfer or promotion since the Services and reports thereof are designed to complement other sound selection and hiring practices;

(ii) The Services and the reports thereof will be treated as confidential material, and as such, individuals’ Outmatch reports will not be further revealed except to the individual who is the subject of the report and/or to other Client employees on a “need to know” basis. Client accepts full responsibility for the confidentiality of reports and interpretations retrieved by the Client via any means including retrieval via Internet, electronic mail or fax; and

(iii) Client is responsible for determining and reviewing its own job requirements, qualifications, selection procedures, and employment decisions to ensure job relevance, consistency with business necessity and compliance with all statutes or regulations, rules, rulings, decisions, or requirements of law.

5. Service Level. outmatch.com operates 24x7x365 and Client may use the Services at any time. Outmatch’s service level commitment to Client is defined as set forth on Schedule 4.

6. Data Retention, Portability and Deletion. Outmatch will retain but may relocate Client Data older than 24 months from online access to secure archival storage for system maintenance and performance reasons. Outmatch shall, at the Client’s written request, return Client Data to the Client (in a structured, commonly used, machine-readable and interoperable format) and/or, to the extent allowed by applicable law, delete Client Data within a reasonable period of time after being so requested by the Client. Outmatch’s obligation to protect the confidentiality of Client Data continues indefinitely and survives the termination of the Agreement. Client Data will be deleted in offline backup copies of production data in due course, in accordance with Outmatch’s policies on business record retention and data destruction.

7. Confidentiality, Security, Privacy; Proprietary Rights. Outmatch will keep all of Client Data and the terms of this Agreement confidential and will not disclose, sell, rent or distribute such information to any third parties. Client retains all ownership rights of Client Data. To the extent it receives personal information from Participants, Client Users, and/or Client Administrative Users, Outmatch shall not disclose data or records containing personal information to any party other than its own employees and any authorized agents of Outmatch, bound by Outmatch to the privacy and security provisions of this Agreement. Outmatch shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing. In addition to any other rights granted or contemplated under this Agreement and its Sales Order(s) and notwithstanding anything stated otherwise, Outmatch shall have the right to use, access, copy, provide, distribute, enhance, and incorporate all Client Data provided to Outmatch (collectively, the “Aggregate Data”) in any manner as determined by Outmatch to the extent it is in aggregate form and anonymized, so that it cannot specifically identify the individual associated with such Aggregate Data or the Client itself.

8. Publicity. Client agrees that (a) Outmatch may issue a press release in the form approved in writing by the parties regarding the parties’ entry into this Agreement, and (b) Outmatch may identify Client (including through use of its logo) as a customer of Outmatch on Outmatch’s website and include Client in Outmatch’s customer list provided that the Client has reviewed and approved any such use in writing.

9. Indemnity. Outmatch will indemnify and hold Client harmless from and against any and all claims, liabilities, and obligations (including reasonable attorneys’ fees) to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Outmatch is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Outmatch will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Outmatch, (ii) made in whole or in part in accordance with Client’s specifications, (iii) that are modified after delivery by Outmatch, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Outmatch to be infringing, Outmatch may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Services.

10.  DISCLAIMER; LIMITS OF LIABILITY.

(a) OUTMATCH MAKES NO WARRANTY OR REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER OUTMATCH NOR ITS SUPPLIERS MAKES ANY WARRANTIES AND SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT RELATING TO THE SERVICES OR TO ANY OTHER SERVICES OR PRODUCTS PROVIDED HEREUNDER. FOR THE PURPOSES OF CLARITY, OUTMATCH PROVIDES THE TECHNOLOGY TO AUTOMATE THE CANDIDATE EVALUATION AND REFERENCE CHECKING PROCESS CONDUCTED SOLELY BY THE CLIENT AND DOES NOT CONDUCT ASSESSMENT, REFERENCE CHECKING OR BACKGROUND CHECKING SERVICES ON BEHALF OF THE CLIENT. OUTMATCH DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, INCLUDING THE RESULTS OF ANY OUTMATCH ASSESSMENT REPORT.

(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR THEIR SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES ARISING OUT OF OR RELATING IN ANY MANNER TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUTMATCH NOR ANY OF ITS SUPPLIERS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE TO CUSTOMER FOR: (A) ERROR OR INTERRUPTION OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSEE OF BUSINESS; (B) ANY LOSS OR INJURY ARISING OUT OF OR RELATING TO THIS AGREEMENT REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEEDS THE TOTAL FEES PAID BY CUSTOMER TO OUTMATCH FOR THE SERVICES UNDER THIS AGREEMENT, IN EACH CASE, WHETHER OR NOT OUTMATCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THE AGREEMENT SHALL LIMIT EITHER PARTY’S LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S ACTS OR OMISSIONS, (ii) FRAUD, (iii) BREACHES OF CONFIDENTIALITY, PRIVACY, OR SECURITY OR (iv) BREACHES OF THE CODE OF ETHICS SET FORTH IN SECTION 4.

11.  Fees and Payment. Client agrees to pay for all fees and services outlined in the Order executed by Client. Accounts are due upon receipt. Any additional services provided that are not listed on Order will be charged at a mutually agreed upon rate. Payment must be sent to: Outmatch, Inc., PO Box 8350, Pasadena, CA 91109-8350 or such other address as specified by Outmatch. Except as expressly provided in this Agreement, each party will be responsible for all costs and expenses incurred by it in connection with the negotiation, execution and performance of this Agreement.

12.  Travel Expenses. Client shall reimburse Outmatch for all Travel Expenses that are reasonably incurred by Outmatch in connection with the performance under this Agreement, including any on-site work by Outmatch at Client’s location. Client shall approve all Travel Expenses or estimates in advance in writing to the extent practical. All Travel Expenses shall be billed to Client at Outmatch’s actual cost. “Travel Expenses” means all reasonable and necessary expenses associated with License, configuration and performance of the Services under this Agreement, including airfare, lodging, rental cars, meals and similar items.

13.  Disputed Amounts. In the event that Client disputes the accuracy of any invoice submitted by Outmatch, Client must contact Outmatch no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Outmatch’s customer support department.

14.  Term and Termination. This Agreement will take effect as of the Effective Date and, unless terminated earlier pursuant to Section 16, will expire upon the completion of all Services under all Orders entered into under this Agreement.

15.  Suspension or Termination of Access. If Client breaches any of the terms or conditions of this Agreement, Outmatch may, at its sole discretion, (a) suspend Client’s access to the Services or (b) terminate Client’s access to the Services, thereby terminating this Agreement. Whether or not a breach results in suspension or termination depends on several factors, including but not limited to the severity of the breach, the potential harm to other users or to Outmatch, and whether or not the breach is repeated or cured. If Outmatch suspends or terminates Client’s right to access or use the Services, then Outmatch shall, within twenty-four (24) hours, provide notice to Client of such action. Suspension of Client’s access does not relieve Client from any payment obligations hereunder.

16.  Termination by the Client. Upon Outmatch: (i) breaching any material provision of this Agreement or (ii) becoming an insolvent company or becoming bankrupt within the meaning of applicable bankruptcy laws and regulations, Client may, at its sole option, terminate this Agreement by giving fifteen (15) days’ written notice to Outmatch, except that in the case of (i) breach of any material provision, that the Client will notify Outmatch in writing about the nature of the breach and Outmatch will have ten (10) business days from receipt of such notice to cure the breach, and if so cured within that period, then Client does not have the right to terminate the Agreement. If this Agreement is terminated in accordance with this paragraph, the Client’s liability to Outmatch, if any, shall not exceed unpaid fees for Services actually used to the date of such termination, less any deduction or set-off for costs incurred by the Client due to such events.

17.  Change of Services. Subject to the terms of this Agreement (including warranty and service levels), Outmatch has sole discretion as to the operation, availability and scope of the Services. Outmatch reserves the right to modify, expand, update or otherwise change portions of the Services; provided that such changes do not adversely affect in a material manner Client’s ability to use the existing Services for their intended purpose or result in material increased costs to Client (other than costs associated with new functionality or enhancements described in the last sentence of this Section). Notwithstanding the foregoing, Client acknowledges that additional costs may be associated with new, optional functionality offered by Outmatch if Client elects to use such new functionality.

18.  Miscellaneous.

This Agreement shall be governed by and construed in accordance with the laws of the State of Texas without regard to its rules governing conflicts of law. The Parties agree that the non-exclusive venue for all actions and arbitrations relating in any manner to this Agreement shall be in the applicable federal, state or provincial court of competent jurisdiction located in Dallas, Texas, U.S.A.

Client may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Outmatch, and any such attempted assignment will be void. Such consent may not be unreasonably withheld, and may only be withheld for legitimate business concerns. Outmatch may transfer and assign any of its rights and obligations under this Agreement without consent. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto.

In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation and failure or delay of suppliers or third party systems outside of a party’s control.

Notwithstanding anything else set forth herein to the contrary, the relationship between Client and Outmatch is an independent contractor relationship only, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or any other agency relationship between the parties.

If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect.

The parties agree that this Agreement is the complete and exclusive statement of the agreement between Outmatch and Client, which supersedes any proposal or prior agreement, oral or written, and any other communications between Outmatch and Client relating to the subject matter of this Agreement.

All communications and notices given by either party under this Agreement must be in writing and sent to the address set forth in the preamble of this Agreement or as designated in writing by a party via (a) electronic mail with electronic mail receipt, (b) hand delivery, (c) registered or certified mail, return receipt requested, or (d) overnight express carrier. Any party may change its address for purposes of any such communication by giving ten (10) days’ prior notice of such change. All notices sent pursuant to the terms of this section will be deemed received if properly sent pursuant to this Section and (i) if sent by electronic mail or facsimile, on the day sent or, if not a business day, then on the next business day, (ii)if sent by overnight, express carrier, on the business day immediately following the day sent, or (iii) if sent by registered or certified mail, on the fourth business day following the day sent.

In the event of a conflict between Order and this Agreement, the terms of the Order shall prevail.

Schedule 2

Included Service Bundle

Schedule 3

SOFTWARE INTEGRATION

Schedule 4

SERVICE LEVEL AGREEMENT

Service Level. The purpose of this Service Level Agreement (SLA) is to formalize an arrangement between Outmatch and Client to deliver specific support services and at specific levels of support. This document is intended to provide details of the provision of application support services to Client. Outmatch may update or modify this Service Level Agreement from time to time.

Outmatch will use commercially reasonable efforts to deliver technology services as defined by the contract with the Client.

Definitions:

Availability (or Available) – The services are defined as “available” when Users with rights to perform functions in the hosted web application(s) can do so, subject to the excluded maintenance periods described within this SLA.  Availability is measured and calculated per calendar month.

Total Monthly Minutes – The number of days in the month multiplied by 1440 minutes/day.

Maintenance Period – A period of time when one or more services may be unavailable each month so that maintenance can be performed to maximize the performance and stability of the hosted services.  Whenever possible maintenance is performed during periods of low service utilization to minimize Client and User disruption.  All maintenance windows are scheduled in Central Time.  Maintenance Periods include Recurring, Planned, and Emergency Maintenance as defined below:

Recurring Maintenance – Maintenance performed at regularly scheduled intervals according to the descriptions and platform schedule below:

• Platform Updates – During platform update maintenance windows not all products are updated.  For those products which do receive an update, downtime of less than five minutes may be experienced.  Outmatch takes great care to ensure thorough testing has been performed prior to deploying new platform updates to the production environment.
• System Updates – During system update maintenance windows Outmatch reserves the option to utilize the full maintenance window each week to ensure the production systems are performing at an optimal level.  Although these maintenance periods are not used every week they are most commonly used for operating system and third-party application updates.  For those systems that do receive an update, downtime of less than ten minutes per month is typical and generally used for system restarts required by the update.

Planned Maintenance – Maintenance that can be scheduled in advance with notification to Clients, but due to anticipated time to complete or other factors may fall outside of Recurring Maintenance Windows.

Emergency Maintenance – Maintenance or changes that are performed immediately or with no ability to provide Client notice due to the urgency of performing the change.

Downtime – A period of time when a User cannot access a hosted service.

Excluded Downtime– The Availability calculation excludes time that a User cannot access the service due to:

• Recurring, Planned, or Emergency Maintenance Periods
• The acts or omissions of Client or Client’s employees, agents, contractors or vendors, or anyone gaining access to Outmatch’s network by means of Client’s passwords or equipment
• Force Majeure and/or factors beyond reasonable control of Outmatch or Outmatch’s service providers
• Changes initiated by Client or any third party on behalf of Client
• Any User hardware or software configurations that do not meet the minimum requirements of Outmatch’s solutions
• Problems caused by Client’s web-site content or software
• Willful misconduct or negligence of Client or anyone authorized by Client to use Outmatch’s solutions
• Failure caused by any solution component for which Outmatch is not responsible for (including but not limited to Client managed hardware, software, or web-site content or third-party solution providers integrating with Outmatch services on behalf of Client)
• User-side internet connection failures or systemic internet failures

1. System Availability.  Service availability is monitored by Outmatch using a combination of internal and external monitoring tools in conjunction with Customer and User support requests/incident reports.  Outmatch will provide a minimum of 99.9% systems availability as measured with the following formula:
Availability = (Total Monthly Minutes – Excluded Downtime – Downtime) / (Total Monthly Minutes – Excluded Downtime) * 100%

1.1 Outmatch will use commercially reasonable efforts to minimize such periods of unavailability of the Services due to unscheduled maintenance or material errors or malfunctions and will respond to any such event using the Error Correction procedures defined in Paragraph 2 “Error Correction” below.  The system will be deemed “unavailable” if Client is unable to exchange data with the Services due to failures under the control of Outmatch or if the web application interface is not functioning or not accessible due to failures under the control of Outmatch.

1.2 Outmatch agrees to notify Client promptly of any factor, occurrence or event of which Outmatch has knowledge that may affect Outmatch’s ability to meet the service level described here, or that is likely to cause any interruption in the delivery of the Services.  Client acknowledges that the Services may not be available during Maintenance periods reserved by Outmatch.

2. Error Correction.  Outmatch will provide telephone and e-mail customer service support to Client. We will assist in resolving problems, obtaining clarification relative to the Client’s services and reporting suspected defects or errors. The following section details incident response times for incidents reported during regular business hours or during off-business hours.

2.1 In addition to the foregoing, in the event of a Severity 1 or 2 problem, Outmatch will  use all commercially reasonable efforts to acknowledge receipt of the Client’s problem report within thirty (30) minutes and in the event of Severity 3 problems (which set forth above may only be reported during technical support working hours), Outmatch will to use all commercially reasonable efforts to acknowledge receipt of Client’s problem report within sixty (60) minutes (or, in the case of error reports received during the last 60 minutes of the technical support working hours, within the first 60 minutes of the technical support working hours of the following business day).

3. Contacting Outmatch Customer Support.  The Outmatch Customer Support Desk is accessible via email ([email protected]) and telephone (972 233 6055 # 2902) between the hours of 8:00 AM and 6:00 PM Central Time, Monday through Friday, excluding business holidays.  In the case of a Severity Level 1 or 2 issue, the Client may contact Outmatch for off-hours emergency support by emailing [email protected] with subject line “CRITICAL SUPPORT REQUEST.”  Please include a description of the issue in the email body as well as contact information and customer name so that Support can reach the issue reporter if necessary.  On call support will then be notified.