Enterprise Support 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 Enterprise Support Services Terms and Conditions (the “Agreement“):

1. Definitions and Interpretation

1.1. Defined terms
In this Agreement:

Confidential Information means any information relating to the business or financial affairs of a 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 a party.

Enterprise Support Schedule means the applicable enterprise support schedule for the Support Services agreed to by the parties as set forth in a Statement of Work.

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

Incident Tracking System incorporates the Information Technology Infrastructure Library (ITIL) terminology for incident and problem management.  These are defined as follows:

Incident means any event which is not part of the standard operation of a service and which causes, or may cause, an interruption to, or a reduction in, the quality of that service.

Problem means a condition often identified as a result of multiple Incidents that exhibit common symptoms. Problems can also be identified from a single significant Incident, indicative of a single error, for which the cause is unknown, but for which the impact is significant.

Known Error is a condition identified by successful diagnosis of the root cause of a problem, and the subsequent development of a work-around.

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, trade marks, domain names, business names, 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.

Service Levels means the service levels for the Support Services described in Section 4.1 and 4.2.

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

Support means activities that are executed as a result of an application, interface. Typical examples of support include, calls logged directly to the ServiceRocket Support Centre, incident diagnosis, server restarts (scheduled or unscheduled) and escalation of support requests.  This explanation cannot be interpreted as definitive, and ServiceRocket reserves the right to determine the category of any work carried out under this agreement.  Activities of a consulting nature such as new feature development, design, etc are excluded from the definition of support.

Support Services means the Incident resolution and Problem management services described in a Statement of Work.

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

2. Support Services

2.1. Statement of Work
ServiceRocket will provide to the Client the Support Services described in a Statement of Work as agreed to by the parties under this Agreement.

2.2. Service Delivery
ServiceRocket will:
(a) perform the Support Services in accordance with the Statement of Work;
(b) perform the Support Services with due care, skill and judgment, in a proper workmanlike manner, and in accordance with the Service Levels;
(c) ensure that only suitably qualified and experienced personnel work on the provision of the Support Services;
(d) use reasonable efforts to perform the Support Services in accordance with the Service Levels but will not be responsible for delays caused by the Client or for reasons beyond ServiceRocket’s control; and
(e) in performing the Support Services, comply with all applicable laws and regulations.

2.3. Hours of Operation
ServiceRocket’s support centre will provide Support Services for issues raised with it by email or telephone depending on the level of support purchased in accordance with Statement of Work.

3. Changes to Enterprise Support Schedule

Either party may request a change to a Statement of Work.  No such change is binding upon the parties unless:
(a) ServiceRocket’s proposal for implementing the change;
(b) the amount of additional fees, if any, payable by the Client to ServiceRocket as a result of the change; and
(c) the impact, if any, on the Service Levels, as a result of the change,
are agreed upon in writing signed by the parties.

4.Service Levels

4.1. Response Times
All requests for Support Services received by ServiceRocket’s support centre in accordance with this Agreement will receive a response from ServiceRocket in accordance with the level of support purchased as detailed in the Statement of Work. This request will be logged by ServiceRocket in the incident tracking system, and the details of the report (including tracking number) will be communicated to Client contact that made the request.

4.2. Repairs
Once a request has been logged in the incident tracking system in accordance with clause 4.1, ServiceRocket will start work to try and repair the issue in accordance with the timeframes defined in the Statement of Work.

To avoid doubt, ServiceRocket does not guarantee (under this Agreement or otherwise) to be able to resolve any issue.

4.3. Assumptions and Dependencies
ServiceRocket is only responsible for Service Levels with regard to Supported Applications which ServiceRocket has agreed to support as set out in a Statement of Work. Levels of support provided by ServiceRocket are subject to the following dependencies:
(a) Availability of, and accessibility to, the Client’s network and server infrastructure;
(b) Time waiting for responses from third parties will not be counted towards the response times included in the Service Levels;
(c) Time waiting for user acceptance sign-off or time delays due to incorrect logging of incidents is not included in determining whether Service Levels have been met; and/or
(d) The quality of Support Services depends on accuracy of up-to-date information provided by the Client to ServiceRocket.

4.4. Client Responsibilities
Provision of Support Services by ServiceRocket is dependent on the Client meeting its responsibilities as set out below:
(a) The Client will organise required account privileges for all systems that ServiceRocket is required to support as part of the Support Services; and
(b) The Client will provide ServiceRocket with access to all required resources, including (but not limited to) network and servers. The level of access is at the discretion of the Client and may affect the level of support that ServiceRocket can provide.

5.Fees

5.1. Invoicing
ServiceRocket will invoice the Client for the Fees quarterly in advance, unless otherwise stated in a Statement of Work. To avoid doubt, if the Client requires Support Services hours in any quarter in excess of those set out in a Statement of Work, Additional Support Charges may be payable by the Client.

5.2. Usage
Service request times will be drawn down on the actual hours paid for in advance.  The minimum charge for any request will be 30 minutes, with subsequent time over 30 minutes drawn down based on actual usage, rounded up to the nearest 15 minutes.

5.3. Payment
The Client must pay the Fees within 30 Business Days of the date of the relevant invoice.

5.4. Currency and Taxes
Unless otherwise agreed in a Statement of Work, all amounts quoted or invoiced under the Statement of Work will be in United States Dollars (USD).


5.5. Reporting and Agreement Management
Time spent on preparation of reports required under a Statement of Work will be invoiced under the Statement of Work. Time spent on communication on the terms set forth herein will also be invoiced under the Statement of Work.

5.6. Taxes
(a) Unless expressly included, the consideration for any supply under, or in connection with, the Agreement does not include Tax.
(b) Client is solely responsible for payment of any Tax payable in respect of any Deliverable or otherwise in connection with this Agreement.  To the extent that ServiceRocket is required to pay any such Tax, Client must reimburse ServiceRocket for the amount paid. To the extent Client is required to withhold Tax from any payments to ServiceRocket, Client shall effect such withholding and remit such Tax to the appropriate authorities, and the sum payable by Client upon which the deduction or withholding is based shall be increased to the extent required such that ServiceRocket receives the gross amount owed by Client notwithstanding such withholding.
(c) Subject to the foregoing, each party must comply with its respective obligations under any applicable law in relation to Tax.

6. Confidentiality

6.1. Acknowledgement
Each party acknowledges that in the course of their association with each other they will have access to Confidential Information.

6.2. Obligation
Each party will, and will procure that their respective employees and contractors:
(a) treat all Confidential Information as confidential and not make public or disclose to any other person that Confidential Information without the prior written consent of the other party;
(b) prevent third parties from gaining access to Confidential Information;
(c) immediately return all of the other party’s Confidential Information (including all copies) upon request.

6.3. Exceptions
This Agreement imposes no obligation on either party with respect to Confidential Information which:
(a) was in such party’s possession before receipt from the other party;
(b) is or becomes a matter of public knowledge through no fault of such party;
(c) is rightfully received by such party from a third party without a duty of confidentiality;
(d) is independently developed by such party;
(e) is required by law to be disclosed by such party in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that such party must give the other party prompt written notice and allow for a reasonable effort by the other party to obtain a protective order prior to disclosure; or
(f) is disclosed by such party with the other party’s prior written approval.

6.4 Equitable Relief
Each party acknowledges that money damages may not be sufficient compensation for a breach of this Section 6, 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 6.

6.5. Survival
Each party’s obligations under this Section 6 shall survive the termination of this Agreement for any reason whatsoever.

7. Intellectual Property

7.1. Pre-Existing and General Intellectual Property
To avoid doubt, the Intellectual Property Rights owned by each party before the Services Commence remain the property of that party.  Any ideas, concepts or techniques developed by ServiceRocket in the course of providing the Support Services remain the property of ServiceRocket.

7.2. 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.

9.2. Consequential loss
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. Term

This Agreement, including the SOW, will continue for one (1) year and will automatically renew in one (1) year increments unless either party terminates the Agreement by providing written notice to the other at least sixty (60) days prior to the expiration date of this agreement.

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:
(a) fails to make a payment within the time period specified under this Agreement;
(b) becomes, threatens or resolves to becomes Insolvent; or
(c) ceases or threatens to cease conducting business in the normal manner.

12. Consequence of Termination

12.1. Payments on Termination
Upon termination of this Agreement, the Client must 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:
(a) must be in writing addressed to the intended recipient at the address last notified by the intended recipient to the sender;
(b) must be signed by a person duly authorised by the sender; and
(c) 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
Except to an Affiliate (as defined under the California Corporations Law), 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.

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 California.