Professional Services Agreement

PROFESSIONAL SERVICES AGREEMENT



This PROFESSIONAL SERVICES AGREEMENT (this "Agreement") is entered into by and between Sage Networks, Inc., a Georgia corporation with prin ciple offices at 215 First St., 3rd Floor, Cambridge, MA 02142 ("Customer") and Portal Software, Inc., a California corporation with principle offices located at 20863 Stevens Creek Boulevard, Suite 200, Cupertino, California 95014 ("Portal") is effective as of July 31, 1998 ("Effective Date") and describes the terms and conditions pursuant to which Portal will provide professional services with respect to the software licensed by Portal to Customer ("Portal Software") pursuant to a certain Software Licens e and Support Agreement (the "License Agreement"). Any capitalized terms not expressly defined in this Agreement have the meanings given to such terms in the License Agreement.



In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:



1 SCOPE OF SERVICES



1.1 SERVICES. Portal will provide the professional services (the "Services") described in Schedule A attached hereto, as amended from time to time by agreement of the parties.



1.2 MANNER OF P ERFORMANCE. Portal will retain sole and exclusive right to control or direct the manner or means by which the Services are performed and may subcontract or assign any or all of its obligations and rights under this Agreement. Any such subcontract or assig nment is subject to Customer's consent, which consent shall not be unreasonably withheld or delayed.



1.3 SOFTWARE. The Services will be provided for the current release of the Portal Software, unless otherwise specifically noted. Portal will not be respons ible for the migration or implementation of the Services for Updates, releases or versions of the Portal Software, unless Customer separately contracts for such migration or implementation.



2 CUSTOMER'S DUTIES AND RESPONSIBILITIES



2.1 DATA AND INFORMATIO N. Customer shall make available at Customer's offices in a timely manner, upon reasonable advance notice, at no charge to Portal all technical data, computer facilities, programs, files, documentation, test data, sample output, or other information and r e sources required by Portal for the performance of the Services. Customer will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer.



2.2 EQUIPMENT. Customer shall provide, at no charge to Portal, office space, services and equipment (such as copiers, fax machines, and modems) as Portal reasonably requires to provide the Services.



3 RELATIONSHIP OF PARTIES



3.1 INDEPENDENT CONTRACTORS. Each party will be and act as an independent contractor and not as an agent or partner of, joint venturer with, the other party for any purpose related to this Agreement or the transactions contemplated by this Agreement, and neither party w ill by virtue of this Agreement will have any right, power or authority to act or create any obligation, expressed or implied, on behalf of the other party.



3.2 CONTACT PERSON. Each party will appoint in writi ng an employee or agent of such party to act as the "Contact Person" for all communication between the parties related to the Services. The contact person will be responsible for monitoring the status of the Services and will schedule regular meetings wit h both technical and management personnel of each party to review the status of the Services. Either party may change its Contact Person upon written notice to the other.



4 CONFIDENTIALITY



Each party agrees that all code, inventions, algorithms, know-how, ideas and all other business, technical and financial information each party obtains from the other are the confidential property of the disclosing party ("Proprietary Information" of the disclosing party). Without limiting the generality of the foregoin g , any code, inventions, algorithms, know-how, ideas and all other business, technical and financial information resulting from Portal's performance of the Services shall be deemed Proprietary Information of Portal. Except as expressly and unambiguously al l owed herein, the receiving party will hold in confidence and not use or disclose any Proprietary Information of the disclosing party and shall similarly bind its employees in writing. The receiving party shall not be obligated under this Section 4 with re spect to information the receiving party can document:



(a) is or has become publicly available without restriction through no fault of the receiving party or its employees or agents;



(b) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information;



(c) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or



(d) was independently developed by employees or consultants of the receiving party without use or reference or access to such Proprietary Information.



5 PORTAL'S RIGHT TO DEVELOP COMPETITIVE PRODUCTS



Nothing in this Agreement shall be construed as to preclude Portal from developing, using, or marketin g programs or other materials that may be competitive with that prepared for Customer hereunder, irrespective of whether such programs are similar or related to the programs developed under this Agreement.



6 FEES AND PAYMENTS



6.1 FEES. Customer shall pay Portal for the Services in accordance with the fees and rates set forth in Schedule A attached hereto. Portal hereby reserves the right to modify the fees by providing Customer with written notice within ninety (90) days of such notification provided, ho w ever, Customer shall have the right to cancel this Agreement within said ninety (90) day period in the event Customer desires not to be bound by such modification. Portal will invoice Customer on a biweekly basis as Services are performed. All payments fo r fees and expenses must be made within thirty (30) days of the date of invoice. In the event that within one hundred and eighty days from the Effective Date hereof Portal reduces its fees and rates offered to other customers generally for the same service s to be rendered to PROFESSIONAL SERVICES AGREEMENT



Customer hereunder, below the fees and rates set forth herein, then the fees and rates herein shall be reduced to such prevailing fees and rates.



6.2 EXPENSES. Customer shall rei mburse Portal for all reasonable travel and other related expenses incurred by Portal in connection with performance of the Services subject to the following: (i) Portal agrees to substantially comply with Customer's current Corporate Travel and Entertain ment Policy, a copy of which is attached hereto as Schedule B; (ii) Customer will not pay for travel expenses in connection with Portal personnel who live within fifty miles of the Customer site.



6.3 TAXES. Customer agrees to pay or reimburse Portal for al l federal, state, dominion, provincial or local sales taxes, fees or duties arising out of this Agreement or the transaction contemplated by this Agreement (other than taxes on the net income of Portal).



6.4 INTEREST AND FURTHER COSTS. Customer shall pay Portal one and one-half percent (1 1/2% ) interest per month on the outstanding balance of any fees or expenses not paid within thirty (30) days of the date of invoice. Customer shall be responsible for all costs incurred by Portal in order to recover pay m ent of Customer's account, including without limitation, all reasonable professional fees and legal costs. Without waving or prejudicing any other rights or remedies, Portal shall have the right to suspend or delay the provision of Services on a day-for-d ay basis equal to the number of days a payment due hereunder is past due beginning five (5) days after notice to Customer if Customer has not cured such payment default within such five (5) day period.



6.5 INVOICES. Services will commence as soon as practical following Portal's receipt and acceptance of a signed copy of this Agreement and a purchase order or other written authorization of the Services. Fees for the Services shall be payable when invoice d and shall be deemed overdue if they remain unpaid 31 days after they become payable. If Customer's procedures require that an invoice be submitted against a purchase order before payment can be made, Customer will be responsible for issuing such purchase order at least thirty (30) days before the payment date.



7 LIMITED WARRANTY AND LIMITATION OF LIABILITY



7.1 PORTAL WARRANTS THAT THE SERVICES PROVIDED UNDER THIS AGREEMENT WILL BE PERFORMED IN A PROFESSIONAL AND WORKMAN-LIKE MANNER CONFORMING TO GENERALL Y ACCEPTED INDUSTRY STANDARDS AND PRACTICES. EXCEPT FOR THE FOREGOING, PORTAL MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO ANY CUSTOMER UNDER THIS AGREEMENT OR THE RESULTS THEREOF. PORTAL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SAID MATERIAL AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.



7.2 IN NO EVENT WILL PORTAL BE LI ABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER, OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF SERVICES, WHET H ER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF PORTAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, PORTAL WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SERVICES . PORTAL'S LIABILITY UNDER THIS AGREEMENT FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY CUSTOMER TO PORTAL UNDER SECTION 5.1 O F THIS AGREEMENT.



7.3 Customer shall indemnify Portal against all claims by third parties related to this Agreement.



7.4 The provisions of this Section 7 allocate risks under this Agreement between Customer and Portal. Portal's pricing reflects this allocation of risk and limitation of liabilities.



7.5 No action arising our of any breach or claimed breach of this Agreement or the transactions contemplated by this Agreement may be brought by either party more than one (1) year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.



7.6 No employee, agent, representative, or affiliate of Portal has authority to b ind Portal to any oral representations or warranty concerning the Software or the Services. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.



8 TERM AND TERMINATION



8.1 TERM. This Agreement will take effect on the Effective Date and will remain in effect, unless earlier terminated in accordance with Section 8.2, until all of the Services have been completed.



8.2 TERMINATION.



(a) This Agreement may be terminated, with or without cause, by Customer upon thirty (30) days' prior written notice to Portal, provided that no such termination will entitle Customer to a refund of any portion of the Services fee.



(b) This Agreement may be terminated by Portal if Customer (i) fails to pay any amount due to Por tal under this Agreement within thirty (30) days after Portal gives written notice of such non-payment, or (ii) commits a material non-monetary breach of this Agreement, which breach if capable of being cured, is not cured within thirty (30) days of writt en notice of such breach by Portal.



(c) This Agreement may be terminated by Portal if Customer (i) terminates or suspends its business activities, (ii) becomes insolvent, admits in writing ...