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CONSULTING SERVICES PROVISIONS , Consulting Services Provisions (Not applicable to software licenses, maintenance, or BindView Policy Operations Center except as may be otherwise indicated) 9. Statements of Work; Services; Ownership 9,] Applicability 9,2 Services 93 Personnel a) This Agreement is designed to be incorporated by reference into one or more mutually-agreed written Statement(s) of Work executed by the parties ("SOW"), under which we are to perfoml one or more services ("Services") for you as set forth in the SOW. Such Services may but need not in- clude the providing to you of written materials or other items specified in the SOW ("DeJiverables"). Each SOW, ifany, shall constitute a separate contract. In the event ofa conflict or inconsistency be- tween this Agreement and an SOW, the tenus of this Agreement will control unless the SOW ex- pressly states that the teons of this Agreement are being superseded. b) Our providing to you of computer software, user documentation, and/or maintenance support pur- suant to a written license agreement (including but not limited to an Order Form and/or a click-wrap license agreement) shall not be deemed Services, nor shall any such software, documentation, or maintenance support be deemed Deliverables. Neither these Consulting Services Provisions nor any SOW, nor any obligation, representation, or warranty under them, shall apply to our provision, or your acquisition or use, of any such software, documentation, or maintenance support, the same be- ing governed exclusively by the applicable license agreement. a) We will perform the Services described in each SOW as set forth therein. b) All changes to a SOW must be documented in a written change order agreed to in writing by both parties. a) We will ensure that our personnel who provide Services under a SOW (I) will be qualified and trained for their duties and (2) will be bound by confidentiality obligations to BindView sufficient to support any confidentiality obligations that we have to you under this Agreement. b) In addition to subparagraph (a), we will ensure that (1) our personnel who provide Services under a SOW while physically on-site at your site have completed the necessary requirements to be legally employed in the United States, and (2) ifso provided in the SOW or in a Master Agreement, and subject to applicable privacy laws, we have had criminal backgrourxl checks performed on such personnel. c) We will be solely responsible for detennining the method, details, means and manner by which we perfoml our obligations under each SOW, and for supervising our personnel in such performance. d) You agree to designate a member of your staff to have authority to represent you on technical and staffing matters relating to the Services. Ifparticipation by your staff is necessary to our perfonn. ance of the Services, you will assign appropriate staff for that purpose, who shall possess appropriate skills and experience and shall be made available at such times as are reasonably agreed by the parM ties. You acknowledge that if you do not comply with the previous sentence, it could adversely af- fect our ability to perfonn the Services and could require a change order. e) Each party will (i) be responsible for all salary, employment benefits (ifany), taxes, and fees re- quired by law to be withheld from or paid by that party as a result of any wages paid to its personnel, and (ii) defend and indemnify the other party and hold it harmless against any claim or detennina- tion by any of its personnel that the other party is responsible for payment of any of the foregoing. This Agreement shall not be construed as giving either party's employees any right or interest in the employment benefits (if any) provided by the other party to its employees. BINDVIEW CUSTOMER AGREEMENT 95-3172 PAGE 13