Services Terms & Conditions Effective July 1st, 2013

By entering into a Statement of Work with SERVICEROCKET INC., a company organized under the laws of Delaware, with a place of business at 2741 Middlefield Road, Suite 200 Palo Alto, CA 94306, United States (“ServiceRocket”) you (“Client”) agree to the following ServiceRocket Consulting Services Terms and Conditions:

1. Definitions and Interpretation

1.1. Defined Terms in this Agreement:
Business Day means a day on which banks are open for business in Palo Alto, California, other than a Saturday, Sunday or public holiday.

Confidential Information means any information provided by one party to the other and relating to the business or financial affairs of the disclosing party or any trade secret, technical knowledge, concepts, ideas, designs, programs, processes, procedures, innovations, databases, customer lists or information, sales plans or marketing plans, research, software, records, intellectual property or other information concerning such disclosing party.

Deliverable means any software, equipment, material, solution, report or document agreed to be delivered by ServiceRocket to the Client in the performance of a Statement of Work, and specifically referred to as a “Deliverable” in the applicable Statement of Work.

Fees means the fees payable by the Client for the Services, as specified in the applicable Statement of Work.

Insolvent means (a) having generally ceased to pay debts in the ordinary course of business other than as a result of bona fide dispute; (b) being unable to pay debts as they become due; or (c) being insolvent within the meaning of United States federal bankruptcy law.

Intellectual Property means all patents, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, computer programs, know-how, logos, designs, circuit layouts, trademarks, domain names, business names, software, copyright and similar industrial or intellectual property, whether or not now existing, and whether or not registered or unregistered.

Intellectual Property Rights means all intellectual property rights including all rights in the Intellectual Property, moral rights (as recognized under any applicable law), any right to have Confidential Information kept confidential, and any application or right to apply for registration of any of these rights.

Services means the services set forth in a Statement of Work.

Specifications means the Client’s specifications and requirements for the Services, as set forth in a Statement of Work.

Statement of Work or SOW means a document agreed by the parties in accordance with Section 2.1.

Tax means any sales tax, use tax, goods and services tax, value-added tax or other similar tax under any applicable law, but excludes any tax on income or capital gains.

1.2. Interpretation
Headings are for convenience only and do not affect interpretation. The singular includes the plural and conversely.

2. Services

2.1. Statements of Work
ServiceRocket and the Client shall work together to develop and agree upon one or more Statement of Works in relation to Services provided under this Agreement. The parties shall include in the Statement of Work an estimate of the time needed to complete the Deliverables.

2.2. Service Delivery
ServiceRocket shall:
2.2.1. perform the Services in accordance with the applicable Statement of Work;
2.2.2. perform the Services with due care, skill and judgment, in a proper workmanlike manner, and in accordance with the Specifications;
2.2.3. use reasonable commercial efforts to ensure that only suitably qualified and experienced personnel work on the provision of the Services;
2.2.4. use reasonable commercial efforts to perform the Services in accordance with the timeframes set out in the applicable Statement of Work; provided however, ServiceRocket shall not be responsible for delays caused by the Client or for reasons or events beyond ServiceRocket’s control; and
2.2.5. in performing the Services, use reasonable commercial efforts to comply with all applicable laws and regulations.

3. Changes to Statements of Work

Either party may request a change to a Statement of Work. No such change is binding upon the parties unless such change is agreed upon in a writing signed by the parties and includes: 3.1.1. ServiceRocket’s proposal for implementing the change;
3.1.2. the amount of additional fees, if any, payable by the Client to ServiceRocket as a result of the change; and
3.1.3. the impact, if any, on the timeframes set out in the applicable Statement of Work, as a result of the change,

4. Fees

4.1. Invoicing
ServiceRocket shall invoice the Client for the Fees monthly in arrears, unless otherwise set forth in the applicable Statement of Work.

4.2. Payment
The Client shall pay the Fees within 30 Business Days of the date of the relevant invoice.

4.3. Taxes
4.3.1. Unless expressly included, the consideration for any supply under, or in connection with, this Agreement does not include Tax.
4.3.2. Subject to the foregoing, each party must comply with its respective obligations under any applicable law in relation to Tax.

5. Confidentiality

5.1. Acknowledgement
Each party acknowledges that during the term of this Agreement it will have access to the other party’s Confidential Information.

5.2. Obligation
Each party shall, and shall ensure that its employees and contractors:
5.2.1. treat all Confidential Information as confidential, not use such Confidential Information except as permitted hereunder, and not make public or disclose to any other person that Confidential Information without the prior written consent of the disclosing party;
5.2.2. prevent third parties from gaining access to Confidential Information;
5.2.3. immediately return all of the disclosing party’s Confidential Information (including all copies) upon written request of the disclosing party.

5.3. Exceptions
This Agreement imposes no obligation on the receiving party with respect to Confidential Information which:
5.3.1. was in the receiving party’s possession before receipt from the disclosing party;
5.3.2. is or becomes a matter of public knowledge through no fault of such receiving party;
5.3.3. is rightfully received by such receiving party from a third party that has no duty of confidentiality;
5.3.4. is independently developed by the receiving party;
5.3.5. is required by law to be disclosed by the receiving party in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party cooperates with the disclosing party’s efforts to seek a protective order or other appropriate remedy; or
5.3.6. is disclosed by receiving party with the disclosing party’s prior written approval.

5.4. Equitable Relief
Each party acknowledges that money damages may not be sufficient compensation for a breach of this Section 5, and each party agrees that the other may seek and obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy to stop Confidential Information from becoming public in breach of this Section 5.

5.5. Survival
Each party’s obligations under this Section 5 shall survive the termination of this Agreement for two years thereafter for any reason whatsoever.

6. Software Licenses

6.1. Client software licenses
The Client shall be responsible for obtaining all software licenses for use of software on equipment owned by the Client. This CSA is not an agreement by ServiceRocket to license any commercially available ServiceRocket or third party software.

6.2. Application specific software licenses
In the event that the Client requires ServiceRocket to use an application specific software license for the purposes of the Services, the Client shall be responsible for obtaining such license and ensuring that it can be validly used by ServiceRocket for the purposes of performing the Services. Unless otherwise agreed, the Client shall be the licensee under all such licenses.

7. Intellectual Property

7.1. Pre-Existing and General Intellectual Property
The Intellectual Property Rights owned by each party before ServiceRocket commences providing the Services shall remain the property of that party. Any ideas, concepts, techniques or other Intellectual Property developed by ServiceRocket in the course of producing a Deliverable shall remain the property of ServiceRocket.

7.2. Client Intellectual Property
Unless otherwise agreed in a Statement of Work, and subject to Section 7.1, ownership of all Intellectual Property Rights in a Deliverable will vest in the Client upon receipt of the final payment by ServiceRocket for the Deliverable as detailed in the SOW.

7.3. Third Parties
Third party Intellectual Property Rights will remain the property of such third party.

8. Non-Solicitation

To the extent permitted by applicable law, each party is prohibited, during the period of 12 months after the expiration or termination of this Agreement, from soliciting or endeavoring to entice away from the other party any employee of the other party or any contractor engaged by that other party at any time without the prior written consent of the other party.

9. Disclaimer of Warranties and Limitation of Liability

9.1. Disclaimer of Warranties
THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND WITH ALL FAULTS. IN PARTICULAR, SERVICEROCKET DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET CLIENT’S REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SERVICEROCKET DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IF AND TO THE EXTENT ANY WARRANTIES OR CONDITIONS CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED, SERVICEROCKET’S SOLE AND EXCLUSIVE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY CLAIM UNDER SUCH WARRANTY OR CONDITION SHALL BE, AT THE OPTION OF SERVICEROCKET, SUPPLYING THE SERVICES AGAIN OR REFUNDING TO CLIENT ALL AMOUNTS PAID BY CLIENT FOR THE AFFECTED SERVICE OR DELIVERABLE.

9.2. Limited Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL SERVICEROCKET BE LIABLE TO THE CLIENT ON ACCOUNT OF ANY CLAIM (WHETHER BASED IN CONTRACT, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY OR OTHERWISE) FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OF OR INTERRUPTION TO THE CLIENT’S BUSINESS, OR FOR ANY DAMAGES OR SUMS PAID BY THE CLIENT TO THIRD PARTIES, EVEN IF SERVICEROCKET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY SERVICEROCKET OF THIS AGREEMENT THAT RESULTS IN DIRECT DAMAGES, SERVICEROCKET’S LIABILITY FOR SUCH DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO SERVICEROCKET HEREUNDER.

10. Indemnification

10.1. Third Party IP Infringement Claim
ServiceRocket shall indemnify Client against any third party claim that ServiceRocket’s provision of the Services or any Deliverable infringes upon or violates any Intellectual Property Rights of third parties, and shall pay those costs and damages awarded by a court of law in a final non-appealable order against Client that are specifically attributable to such claim. The foregoing obligations are conditioned on Client notifying ServiceRocket promptly in writing of such claim,

10.2. Limitation on ServiceRocket Indemnification
Notwithstanding the foregoing, ServiceRocket shall have no obligation under this Section 10 or otherwise with respect to any infringement claim based upon (i) any use of the Deliverables not in accordance with this Agreement, (ii) any use of the Deliverables in combination with other products, equipment, software, or data not supplied by ServiceRocket, (iii) Client’s continued use of any non-current, unaltered version of the Deliverables following notification by ServiceRocket of the requirement that Client must use a more recent version of the Deliverables, or (iv) any modification of the Deliverables by any person other than ServiceRocket.

10.3. ServiceRocket’s Rights to Procure, Replace or Refund
In addition to and not in lieu of ServiceRocket’s obligations above, if any third party claim is made against Client, and/or ServiceRocket reasonably believes, that Client’s use of the Deliverables violates the Intellectual Property Rights of any third party, ServiceRocket may, at its option and expense: (a) procure for Client the right to continue using the Deliverables as provided herein or (b) replace or modify the Deliverables so that they become non-infringing, or (c) refund to Client all fees paid by Client to ServiceRocket hereunder for such Deliverables. This Section 10 sets forth ServiceRocket’s entire liability and Client’s exclusive remedies in the event of a claim of infringement.

11. Termination

11.1. Breach
Either party may terminate this Agreement immediately by written notice to the other party if the other party breaches any provision of this Agreement, and the breach has not been remedied within 20 Business Days after service of written notice of the breach.

11.2. Failure to Pay, Insolvency and Cessation of Business
Either party may terminate this Agreement immediately by written notice to the other party if that other party:
11.2.1. fails to make a payment within the time period specified under this Agreement;
11.2.2. becomes, threatens or resolves to become Insolvent; or
11.2.3. ceases or threatens to cease conducting business in the normal manner.

11.3. Convenience
Either party may terminate this Agreement by providing 30 days’ advance written notice to the other party and in the case of Client, paying in full all amounts due and owing hereunder, without liability to pay any termination fee, except if a Statement of Work has not been completed.

12. Consequence of Termination

12.1. Payments on Termination
Upon termination of this Agreement, the Client shall pay to ServiceRocket any outstanding amounts (either billed or accrued) which are payable to ServiceRocket as of the date of termination.

12.2. Return of Information on Termination
Upon termination of this Agreement, each party must return, or destroy, at the other party’s option, all documentation and information relating to the other party’s business (in whatever form it is held including but not limited to written, graphic or electromagnetic form, and all copies) in that party’s possession or control. Such information includes, without limitation, any Confidential Information and any records relating to a party’s Intellectual Property.

12.3. Effect of Termination
Termination of this Agreement will not prejudice any rights or any claim that either party may have accrued against the other party up to the date of termination including, without limitation, any claim for damages as a result of the occurrence of an event which gives rise to a right of termination.

13. General

13.1 Notices
Notices given under this Agreement:
13.1.1. must be in writing addressed to the intended recipient at the address last notified by the intended recipient to the sender;
13.1.2. must be signed by a person duly authorized by the sender; and
13.1.3. will be taken to be served when delivered, received or left at the intended recipient’s address, but if delivery or receipt occurs on a day on which business is not generally carried on in the place to which the notice is sent, or later than 5pm on that date at that place, it will be taken to have been served at the commencement of business on the next day on which business is generally carried on in that place.

13.2. Entire Agreement
This Agreement embodies the entire agreement between the parties with respect to its subject matter and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter or any term of this Agreement.
13.3. Nature of engagement
ServiceRocket is engaged by the Client as an independent contractor. Nothing in this Agreement creates a relationship between the parties of employer and employee, principal and agent, partnership or joint venture.

13.4 Amendment
All additions or modifications to this Agreement must be made in writing and must be signed by both parties.

13.5. Assignment
Neither party may assign or otherwise transfer its rights under this Agreement without the prior written consent of the other party.

13.6. Precedence
The terms of a Statement of Work will take precedence over this Agreement to the extent of any inconsistency in relation to that Statement of Work. Any pre-printed or other standard terms set forth on any Client purchase order, acknowledgment or other form will be deemed void and of no force or effect, irrespective of whether such form is countersigned by ServiceRocket. In the event of a conflict between this Agreement and any ServiceRocket or third party licenses included within any software or Deliverables, the provisions of those licenses will control.

13.7. Severance
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability, but will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

13.8. No Waiver
No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that right, power or remedy.

13.9. Governing Law
This Agreement is governed by the laws of the State of California, USA, without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. The parties submit to the non-exclusive jurisdiction of the federal and state courts located in Santa Clara County, California.