These Services Terms and conditions (the "Agreement") describes the terms and conditions under which Borland Software Corporation will provide Consulting and Training Services.

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1. Scope
   
   
   1. Scope of Agreement. Client and Borland may execute project orders for Services under a Statement of Work or Sales Quote ("SOW"). All Services shall be governed by this Agreement. All Services shall be provided on a time and materials basis unless otherwise provided for in the applicable SOW. Borland may retain subcontractors and independent contractors to aid Borland in the provision of Services. Client acknowledges and agrees that Borland may provide the same or similar Services to third parties and nothing herein shall prevent Borland from providing such Services to third parties. All Services shall be deemed accepted upon completion of the Services, unless Customer notifies Borland within five days following completion of the Services.
      
      
   2. Change Orders. Upon receipt of a written request from Client detailing desired changes to a SOW, Borland, with Client's assistance, shall prepare a written estimate of the cost of the proposed changes. Upon Client's approval, all changes shall be reflected in a Change Order executed by both parties.
   
   
2. Term and Termination. This Agreement shall commence on the effective date of the SOW and shall remain in effect until the Services are performed under the SOW. Either party may terminate this Agreement on thirty (30) days notice for any reason or no reason. Either party may immediately terminate this Agreement or any SOW if: (i) the other party fails to perform its material obligations under this Agreement and such failure is not corrected within ten (10) days after receipt of written notice of the breach from the non-breaching party, or (ii) either party is appointed a trustee for the benefit of creditors, becomes insolvent, bankrupt or initiates a voluntary dissolution. Termination of this Agreement or the applicable SOW shall not limit either party from pursuing other remedies including injunctive relief (except as any remedy may be expressly limited by this Agreement). The parties' rights and obligations under Sections 3, 4, 8, 9, 10, and 11 shall survive termination of this Agreement.
   
   
3. Independent Contractor. Borland is an independent contractor and nothing in this Agreement or related to Borland's performance of any SOW shall be construed to create an employer-employee relationship between Client and Borland or any Borland consultant. Borland shall be solely responsible for payment of applicable taxes, deductions or other payments and benefits with regards to Borland's employees and independent contractors. Client may, upon written notice, request that Borland remove or reassign certain personnel based on the individual's skills, background, or failure to perform work in a manner consistent with Borland's obligations hereunder.
   
   
4. Pricing and Payment Terms
   
   
   1. Service. Client shall pay Borland for the Services in accordance with the rates established in the SOW. Services will be invoiced on a monthly basis.
      
      
   2. Expenses. Client will reimburse Borland for actual expenses in accordance with the Borland Travel and Expense policy. Expense invoices will include a summary of expenses by major category. Expenses will be invoiced on a monthly basis.
      
      
   3. Payment Terms. Invoices are due thirty days following receipt. All fees are non-refundable. To the extent that Client contracts for Services from Borland but does not use all of the Services contracted for within six months of the date that Client contracted for such Services, then Borland shall not be obligated to perform the Services nor shall Client be entitled to any credit on future products or services.
      
      
   4. Taxes. Client shall be responsible for all applicable taxes except for taxes imposed on the net income of Borland or taxes related to Borland consultants as stated in Section 3 "Independent Contractor."
   
   
5. Warranty. Borland warrants that the Services will be performed in a professional and workmanlike manner. In the event of Borland's non-conformance with this warranty, it shall re-perform the Services. THE PRECEDING STATES BORLAND'S SOLE LIABILITY AND CLIENT'S SOLE REMEDY. BORLAND MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
   
   
6. Insurance. Throughout the term of this Agreement, Borland will maintain the following minimum amounts of insurance: (i) workers' compensation, statutory minimums, (ii) commercial general liability with a minimum of $1,000,000 per occurrence and $2,000,000 general aggregate; and (iii) automobile liability for all owned, hired, and non-owned automobiles with $1,000,000 combined single limit. A certificate of insurance evidencing the above will be presented to Client upon Client's written request.
   
   
7. Indemnity. Each party shall defend (the indemnifying party) the other party (the indemnified party) against any third party lawsuit or action based on the negligent acts or willful misconduct of its employees or agents, that directly causes damage or bodily injury to persons or property, real or tangible, and such damage or bodily injury directly arises out of performance of the Agreement. The indemnifying party will pay those costs and damages finally awarded (or agreed to in a settlement) against the indemnified party in any such suit or action that are specifically attributable to such claim. This indemnifying party's obligations are subject to the indemnified party giving the indemnifying party prompt written notice of the claim, sole control of the proceedings or settlement, and reasonable cooperation in the defense or settlement negotiations.
   
   
8. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY. IN NO EVENT SHALL EITHER PARTY'S LIABILITY EXCEED THE VALUE OF THE SERVICES PROVIDED UNDER THE AGREEMENT FOR THE PROCEEDING 24 MONTHS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
   
   
9. Confidential Information. Each party agrees that it shall (i) maintain any Confidential Information received from the other party in confidence, (ii) exercise at least the same degree of care to safeguard the Confidential Information of the other party that it uses to safeguard its own Confidential Information (but no less than reasonable care), (iii) not disclose the Confidential Information of the other party to any third party, and (iv) use the Confidential Information of the other party only to exercise its rights and fulfill its obligations under this Agreement. Confidential Information shall mean any non-public information that is marked as confidential, or if disclosed, orally summarized in writing to the recipient and designated confidential within thirty (30) days following the disclosure. Neither party shall have any obligation with respect to information that (i) is public or becomes known to the public through no breach of the receiving party, (ii) is independently developed by the receiving party, (iii) is known to the receiving party prior to its receipt from the other party, (iv) is rightfully received from a third party, or (v) is required to be disclosed by law.
   
   
10. Proprietary Rights. Borland uses proprietary software, documentation, templates, concepts, ideas, methodology and know-how to provide the Services (the "Borland Property"). As a result, the Work (as defined below) contains, or is a Derivative of, the Borland Property. Client agrees that all of the intellectual property developed as a consequence of the Services, including any Derivative, (the "Work") is and shall remain the property of Borland. To the extent the Work consists of software, Client shall have a license in and to the Work under the same terms and conditions as the license for the underlying Borland software product. To the extent the Work does not consist of software, Client shall have a non-exclusive license to use, display and reproduce for Client's own internal business purposes the Work (such purposes may not be for providing Services that are competitive to Borland's Services). To the extent the Work incorporates Client's materials or information, Client shall retain all right, title and interest to such materials or information. The term "Derivative" as used herein shall mean any derivative work from or supplement, enhancement or other change to any Borland Property.
    
    
11. General
    
    
    1. Entire Agreement. This Agreement and any SOW constitutes the entire agreement between the parties and may not be amended except in a writing signed by both parties with reference to this Agreement. The terms on Client's standard forms including any purchase order shall not apply to this Agreement and are hereby rejected.
       
       
    2. Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to any conflict of laws provisions.
       
       
    3. Assignment. Neither this Agreement nor any of the obligations hereunder may be assigned without the prior written consent of the other; provided that no consent shall be required for assignment in conjunction with the sale or merger of all, or substantially all, of the assets of the party.
       
       
    4. Force Majeure. Except for payment obligations, neither party shall be liable for any failure or delay in performance of its obligations hereunder on account of strikes, riots, explosions, acts of god, war, governmental acts, or any other cause that is beyond that party's reasonable control.
       
       
    5. Notice. Any notice provided hereunder shall be in writing via hand delivery or mail delivery with confirmation of receipt to the addresses as set forth above, which may be changed by either party upon written notice.
       
       
    6. Severability. If any provision of this Agreement is held invalid or unenforceable, this Agreement shall be modified to the extent required to make the provision valid and enforceable.