Software Subscription Agreement

iBwave Software Subscription Agreement

iBwave Solutions Inc.

– IMPORTANT: PLEASE READ CAREFULLY BEFORE ACCESSING OR USING THE SOFTWARE –

This is a legal Subscription Agreement between the Customer and iBwave Solutions Inc. Carefully read all the terms and conditions of this Subscription Agreement prior to Using the iBwave Property. By accepting an Order Form or Using all or any portion of the iBwave Property, the Customer accepts all the terms and conditions of this Subscription Agreement. If the Customer does not agree to all of the terms and conditions of this Subscription Agreement, the Customer shall not install nor Use the iBwave Property.

1. DEFINITIONS

“Affiliate” means, with respect to a party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity. For clarity, this definition includes all terms related to the Support Services.

“Agreement” means this Subscription Agreement, including all Exhibits annexed hereto or otherwise incorporated herein, and all Order Forms entered into pursuant hereto, as amended from time to time.

“Customer” means the person or entity that has entered into an Order Form.

“Customer Data” means any data, information, content, record, and files that Customer (or any of its users) loads or entered into, transmits to, or makes available to the iBwave Property, including but not limited to Personal Information.

“Documentation” means the documentation accompanying or relating to the Subscription Services or other iBwave Property.

“iBwave” means iBwave Solutions Inc., a Canadian with the address set out in the Order Form.

“iBwave Property” has the meaning ascribed to it in Section 2 of this Subscription Agreement

“Support Services” means the support services set out in Exhibit A to this Subscription Agreement.

“Order Form” means any order form agreed to by the Parties that references and incorporates this Subscription Agreement.

”Personal Information” means information about an identifiable individual or information that is subject to applicable privacy or data protection laws.

“Subscription Agreement” is a legal agreement between the Customer and iBwave for the Use of all or any portion of the iBwave Property.

“Subscription Services” means: (A) services through which iBwave hosts and makes available the Subscription services as described in an Order Form and any component thereof; and (B) any component or modification of the services referred to in (A).

“Use” or “Using” means to access or use the Subscription Services or other iBwave Property.

2. OWNERSHIP

iBwave, together with its Affiliates and licensors as applicable, own all rights, title and interest, including all intellectual property rights, in and to the Subscription Services, Documentation, Support Services, and any other products or services (“iBwave Property”) made available by iBwave in connection with this Agreement, including any modifications, adaptations, translations or derivative works thereto. The iBwave Property is licensed, not sold and, except for the license rights expressly set forth in this Agreement, iBwave does not grant any rights or interests in and to the iBwave Property. Customer will treat iBwave Property as iBwave’s proprietary information and property and will not Use the iBwave Property except as provided for in this Agreement. 

3. PROVISIONING THE SERVICES

During the Term, subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, iBwave:

(A) will make available to Customer the Subscription Services set out in the Order Form for Use by Customer and its Permitted Users,and solely for internal business purposes; and

(B) will make available to Customer the Documentation and other iBwave Property in order to exercise Customer’s rights under Section 3(A) above.

4. PROHIBITED USE

Except as expressly permitted by this Agreement, Customer will not itself, and will not permit others to:

  • (A) reverse-engineer, alter, decompile, disassemble, unlock, adapt or translate the Subscription Services or any other iBwave Property, or make any attempt to reconstruct or discover in any way, any source code, object code, programming, underlying algorithms design structure interoperability interfaces, concepts, or underlying ideas of the iBwave Property;
  • (B) copy, transfer, rent, le­­­ase, distribute or sublicense the iBwave Property or any intellectual property rights therein, or otherwise make the iBwave Property available to any third party;
  • (C) Use the iBwave Property for the purposes of building a similar or competitive product or service;
  • (D) repackage the iBwave Property for sale as a competing product;
  • (E) remove any identification markings, including but not limited to copyrights notices and trademarks of the iBwave Property;
  • (F) make any modifications or enhancement to the iBwave Property, unless expressly agreed to in writing by iBwave;
  • (G) Use the iBwave Property: (i) in violation of any applicable law or intellectual property right; or (ii) for any purpose or in any manner not expressly permitted in this Agreement; or
  • (H) Use the iBwave Property to create, collect, transmit, store, use or process any Customer Data (i) that Customer does not have the lawful right to create, collect, transmit, store, use or process; (ii) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (iii) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data.

5. SUSPENSION RIGHTS

iBwave may, from time to time and in its discretion without limiting any of its other rights or remedies at law or in equity under this Agreement:

(A) suspend Customer’s Use of the iBwave Property: (i) if Customer breaches this Agreement and such breach is incapable of being cured, or is capable of being cured but remains uncured seven days after iBwave provide Customer with written notice of such breach; (ii) for scheduled maintenance; (iii) due to a force majeure event as set out in Section 22; (iv) for non-payment of invoices and Fees; (v) to address any emergency security concerns; (vi) if required to do so by a regulatory body or as a result of a change in applicable law; or (vii) for any other reason as provided in this Agreement.

(B) make any modifications, updates, or enhancements to the iBwave Property.

6. CUSTOMER DATA

Customer is responsible for maintaining, protecting, and making backups of Customer Data. To the extent permitted by applicable law, iBwave will not be liable for any failure to store, or for loss or corruption of Customer Data.  The Customer grants to iBwave, its Affiliates, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right during the Term to access, collect, use, process, store, disclose, transmit, copy, modify and display Customer Data to:

(A) provide the iBwave Property in accordance with this Agreement (including the Support Services); and

(B) improve and enhance the iBwave Property.

7. PRIVACY

iBwave’s collection, use storage, processing, disclosure and deletion of Personal Information will be treated in accordance with iBwave’s privacy statement located at https://www.ibwave.com/legal/privacy-statement.

8. RESPONSIBILITY FOR USERS

Customer will identify each of its Affiliate(s) it desires to operate under this Subscription Agreement and subsequently identify the name and email address of each employee of Customer or such identified Affiliate who are employees of Customer or Affiliate that Customer wishes to Use the iBwave Property (each, a “Permitted User”). Customer will ensure that Permitted Users only use the iBwave Property through their respective user accounts and Customer will not allow any Permitted User to share their user account details with any other person. Customer is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users Use the iBwave Property, and for Permitted Users’ compliance with this Agreement. Customer will promptly notify iBwave of any actual or suspected unauthorized use of the iBwave Property. iBwave reserves the right to suspend, deactivate, or replace any user account if it determines that a user account may have been used for an unauthorized purpose. Customer will ensure that all Permitted Users are contractually bound to terms and conditions with Customer that are no less restrictive or protective of iBwave’s rights than those set forth in this Agreement.

9. SUPPORT

iBwave will provide Customer with the Support Services for the duration of the Term.

10. THIRD PARTY CONTENT

The iBwave Property may contain links or access to third-party content, websites, or services. iBwave does not endorse any third-party content, websites, or services, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third-party content, websites, and services are not under iBwave’s control, and if Customer chooses to access or use any such content, websites, or service, Customer does so at its own risk. Customer acknowledges that it is responsible for entering into and complying with the terms of use applicable to any third-party content, websites, or services.

11. FEES AND PAYMENT

(A) Customer will pay to iBwave the fees for the iBwave Property (including the Support Services) described in an Order Form in accordance with the payment methods set out in the Order Form (“Fees”).

(B) iBwave reserves the right to change the Fees and institute new changes on each anniversary of the Term upon providing no less than 30 days’ prior notice to Customer.

(C) Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of 2% compounded annually, or the maximum legal rate (if less), until fully paid. Customer may not withhold or setoff any amounts due under this Agreement.

(D) The Fees set out in the Order Form do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of iBwave.

12. CONFIDENTIAL INFORMATION

For the purposes of this Agreement, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser, its Affiliates, or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and in the case of Customer, including the Customer Data, and in the case of iBwave, including the iBwave Property, provided that Discloser’s Confidential Information does not include: (A) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (B) information that is publicly available through no wrongful act of Recipient; or (C) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.For clarity and notwithstanding anything to the contrary, the contents of this Agreement is considered the Confidential Information of both Parties.

Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement: (A) disclose Confidential Information of the Discloser to any person, except to its own personnel or Affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (B) use Confidential Information of the Discloser; or (C) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each party will take industry standard precautions to safeguard the other party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information: (A) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (B) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business.

13. DISCLAIMER OF WARRANTIES

IBWAVE DOES NOT REPRESENT OR WARRANT THAT THE IBWAVE PROPERTY WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE IBWAVE PROPERTY. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE IBWAVE PROPERTY IS PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, IBWAVE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, IBWAVE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE IBWAVE PROPERTY (OR ANY PART THEREOF), INCLUDING THE SUPPORT SERVICES, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS RESPONSIBLE FOR THE COMPATIBILITY OF THE IBWAVE PROPERTY WITH ANY EQUIPMENT, SOFTWARE, SERVICES AND THIRD PARTY EQUIPMENT OR ANY OTHER MATERIALS NOT PROVIDED BY IBWAVE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE IBWAVE PROPERTY IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR DISTRIBUTION WITH ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT, NAVIGATION, COMMUNICATION, OR CONTROL SYSTEMS, DIRECT LIFE SUPPORT MACHINES, WEAPONS SYSTEMS, OR OTHER USES IN WHICH FAILURE OF THE IBWAVE PROPERTY COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

14. CUSTOMER WARRANTY

Customer represents and warrants to, and covenants with iBwave that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third-party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable iBwave to provide the iBwave Property, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to iBwave and to or from all applicable third parties.

15. CUSTOMER INDEMNITY

Customer will defend, indemnify and hold harmless iBwave, its employees, officers, directors, Affiliates, agents, contractors, successors, and assigns against any and all third-party claims (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (A) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (B) use of the iBwave Property (or any part thereof) by Customer or any of its users in combination with any unauthorized third-party software, application or service; or (C) Customer Data. Customer will fully cooperate with iBwave in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of iBwave.

16. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE  LEGAL BASIS FOR THE CLAIM, NEITHER  IBWAVE NOR ITS AFFILIATES, DISTRIBUTORS, SUPPLIERS OR AGENTS WILL BE LIABLE TO CUSTOMER FOR ANY DIRECT OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUES,  SAVINGS, DATA OR USE OR BUSINESS INTERRUPTION)  EVEN IF IBWAVE, ITS  AFFILIATES’ DISTRIBUTORS, SUPPLIERS OR AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. IBWAVE’S AGGREGATE LIABILITY AND THAT OF ITS DISTRIBUTORS, SUPPLIERS AND AGENTS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

17. TERM AND TERMINATION

This Agreement will commence on the date specified in the Order Form. The Term of this Agreement will automatically renew on the terms and conditions contained herein for additional successive periods of one year, unless either party gives notice to the other that it does not wish to renew this Agreement at least 30 days prior to the end of the then current Term, as applicable, or unless terminated in accordance with this Subscription Agreement.

iBwave may terminate this Agreement and the license(s) granted hereunder, upon providing 30 days’ prior written notice, if Customer materially breaches any terms and conditions of this Agreement, including non-payment by Customer.

Upon termination of this Agreement, each party will promptly destroy or return all Confidential Information of the other party in its possession or control including for greater clarity, in the case of Customer, Customer will destroy or return all copies of the iBwave Property in its possession and control. No expiration or termination will affect the Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle the Customer to any refund.  All Fees due and payable and any amounts due to iBwave are immediately due and are to be immediately paid by the Customer to iBwave. Notwithstanding the foregoing, iBwave will, at the Customer’s request, return to the Customer (in a format mutually agreed by the parties) or delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by iBwave to provide the iBwave Property. Provided, however, that iBwave will not be required to remove any Customer Data from its backup media and services that are maintained in accordance with its standard back procedures of record retention policies until such time as such backups are scheduled to be deleted provided that in all cases Customer Data will continue to be protected in accordance with this Agreement. 

All provisions that expressly or by their nature survive termination of this Agreement will survive termination.

18. EXPORT RULES

The Customer agrees that the iBwave Property will not be shipped, transferred or exported into any country or Used in any manner prohibited by the Canadian Export and Import Permits Act, the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the “Export Laws“).The Customer represents and warrants not being a citizen, or otherwise located within, an embargoed nation and the Customer is not otherwise prohibited under Export Laws from receiving iBwave Property. All rights to Use the iBwave Property are granted on condition that such rights are forfeited without refunds if Customer fails to comply with the terms of this Agreement.

19. GOVERNING LAW

This Agreement is hereby governed by the laws of the Province of Quebec, Canada, without regards to the conflicts of law principles. The parties will initiate any lawsuits in connection with this Agreement in Quebec, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent iBwave from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. The parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English. Les parties ont exigé que le présent contrat ainsi que tous les documents connexes soient rédigés en anglais.

20. NOTICES

Notices sent to either party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the party to whom a notice is being given. Notices must be sent: (A) if to iBwave, to the following address and email contact:

Address: iBwave Legal Dept., iBwave Solutions Inc., 8500 Bd Décarie, 3rd floor, Suite 116, Mont-Royal, Quebec, H4P 2N2, Canada

E-mail:

and (B) if to Customer, to the current mailing or email address that iBwave has on file with respect to Customer. Either party may change its contact information by giving notice thereof to the other party.

21. ASSIGNMENT

Customer may not assign this Agreement to any third party without iBwave’s prior written consent. Notwithstanding the foregoing, Customer may assign this Agreement without consent to any parent, subsidiary or other Affiliate, or to any successor to its business (whether by merger, change of control, sale of all or substantially all of its business), or in the event of an internal reorganization. Any purported assignment or delegation by Customer in violation of this Section will be null and void. iBwave may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent.  This Agreement inures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.

22. FORCE MAJEURE

Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control (except for a failure by Customer to pay Fees or Customer’s indemnities under this Agreement), including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that party’s employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).  For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement.

23. SEVERABILITY

Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

24. AMENDMENTS AND ORDER OF PRIORITY

In the case of any conflict between or within this Agreement, the following order of priority will be utilized: (A) the main body of this Subscription Agreement; (B) the Exhibits to this Subscription Agreement; and (C) the terms and conditions of any Order Form. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby.

25. ACKNOWLEDGEMENT AND ENTIRE AGREEMENT

THE CUSTOMER ACKNOWLEDGES TO HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. THE CUSTOMER FURTHER AGREES THAT THIS AGREEMENT (INCLUDING ANY APPLICABLE ORDER FORMS) REPRESENTS THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND IBWAVE WITH RESPECT TO THE IBWAVE PROPERTY AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.

26. ELECTRONIC SIGNATURES

EACH PARTY INTENDS THAT A FACSIMILE OR A PDF OF THIS AGREEMENT SHALL BE REGARDED AS AN ORIGINAL.  EACH PARTY AGREES THAT ELECTRONIC SIGNATURES, WHETHER DIGITAL OR ENCRYPTED, OF THE PARTIES INCLUDED IN THIS AGREEMENT ARE INTENDED TO AUTHENTICATE THIS WRITING AND TO HAVE THE SAME FORCE AND EFFECT AS MANUAL SIGNATURES. 

EXHIBIT A

SUPPORT SERVICES

This Exhibit A contains the terms and conditions that govern the delivery of support services to Customer for the Subscription Services.

1. DEFINITIONS

“Normal Business Hours” means 9:00 am to 5:00 pm from Monday to Friday in three different time zones: (A) in the North American Eastern Time zone; (B) in the Central European Time zone; and (C) in the Asia Pacific Singapore Standard Time zone.

2. GENERAL TERMS OF SOFTWARE SUPPORT

iBwave will have no obligation to provide the Support Services if Customer is in breach of any of its obligations of this Agreement or any other agreement between Customer and one of iBwave’s authorized distributors.

3. SUPPORT

iBwave will provide the following Support Services:

(A) Technical support during Normal Business Hours. Technical support is provided by phone, online chat, remote computer control or e-mail. Technical support includes support in the standard use and operation of the Subscription Services. If technical support is in relation to an error related to the iBwave Subscription Services, Customer must complete and send a report to iBwave by email at or through iBwave’s support section from iBwave Customer portal at https://my.ibwave.com. Such report must contain the following information:

(i) Customer Trouble Report identification number (if known);
(ii) a description of the commands and procedures that reproduce the error;
(iii) a short description of the error and its impact on the performance of the Subscription Services;
(iv) examples of input;
(v) the resulting output;
(vi) the expected output; and
(vii) any special circumstances surrounding the discovery of the error (“Trouble Report”).

(B) iBwave will make reasonable efforts to respond to and resolve service requests in accordance with Appendix I to this Exhibit A. Given the nature of software development, iBwave cannot guarantee that all service requests can be resolved and nothing in this Exhibit A will be construed as expanded or adding to the iBwave warranties for the Subscription Services set out in the main body of this Subscription Agreement.

4. EXCLUDED SERVICES

The Support Services do not include:

(A) training of Customer’s or its Permitted Users’ regarding Use of the Subscription Services;

(B) the development of enhancements to the Subscription Services pursuant to a Customer request whose primary purpose is the development of a Customer specific application. iBwave reserves the right to determine what constitutes an enhancement covered under this Agreement; and

(C) resolution of issues caused by third-party services providers, operating systems, hardware or other software, or networking problems, which causes iBwave reserves the right to determine.

APPENDIX I TO EXHIBIT A

iBwave will use commercially reasonable efforts to provide confirmation of receipt of a service request or to deliver a temporary or final solution within the following target timelines:

Error PriorityConfirmation of receiptTemporary solutionFinal solution
Critical2 business hours1 business day1 week
Serious2 business hours2 business days2 weeks
Minor1 business day2 weeks8 weeks

The error priority in the table above have the following meanings:

Critical:   Subscription Services is unavailable for use.

Serious:   Functionality that is material to the Subscription Services is seriously affected but can be circumvented so that Subscription Services can be used, or some material functionalities cannot be used although other functions remain unaffected, or certain material functions are disabled, give incorrect results or do not conform to agreed standards.

Minor:      Implies that there is no significant effect on the functionality or usability of Subscription Services

iBwave reserves the right to categorize, or recategorize, the error priority at its discretion.