ServiceRocket Master Subscription Agreement Effective July 1st, 2013
This Master Subscription Agreement (“Agreement”) permits Customer (as identified above) to purchase a subscription to the products and services from ServiceRocket Inc. (“Vendor”) pursuant to Vendor order forms referencing this Agreement (“Order Form(s)”) and sets forth the terms and conditions under which those products and services will be delivered. This Agreement shall govern Customer’s initial purchase as well as any future purchases made by Customer which reference this Agreement. This Agreement includes any and all attachments and Order Forms executed by the parties.
1. Vendor Products
1.1. Trial Period. Customer is be entitled to use a Vendor Product for an evaluation period (“Trial Period”), and such Trial Period shall end thirty (30) days following Customer’s initial use of the Vendor Product in accordance with the terms of this Agreement. Any Customer Data that Customer has entered through access to the Vendor Product during the Trial Period will be permanently lost unless customer purchases a subscription to such Vendor Product or exports such Customer Data before the end of the Trial Period. Notwithstanding the terms described in Sections 6 and 7.2 of this Agreement, during the Trial Period the Vendor Products are provided “as is” without any warranty or support.
1.2. Provision of Products. Vendor offers various online software-as-a- service products (“Vendor Products”). Vendor Products are as described in the then-current version of the service description for the applicable Vendor Product (“Service Description”), a copy of which may be requested by Customer at any time. Each Vendor Product is provided on a subscription basis for a set term designated on the Order Form (each, as “Subscription Term”). Vendor also offers Professional Services (as defined in Section 7) related to the Vendor Products. Customer shall purchase and Vendor shall provide the specific Vendor Products and related Professional Services (if any) as specified in the applicable Order Form.
1.3. General Restrictions. Customer shall not: (a) rent, lease, copy, provide access to or sublicense Vendor Products to a third party or use Vendor Products to provide a service to a third-party, (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or APIs to Vendor Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to Vendor), (c) modify any Vendor Product or any Documentation, or create any derivative product from any of the foregoing, (d) remove or obscure any product identification, proprietary, copyright or other notices contained in Vendor Products (including any reports or data printed from Vendor Products), (e) incorporate the Vendor Products into any other offering (whether software as a service or otherwise), or (f) publicly disseminate information or analysis regarding the performance of Vendor Products.
1.4. Security. Customer may access and use Vendor Products solely for its own benefit and in accordance with the terms and conditions of this Agreement, the end user technical documentation provided with the Vendor Products (“Documentation”) and any scope of use restrictions designated in the applicable Order Form. Use of and access to Vendor Products, in whole or in part, is permitted to those persons designated by Customer pursuant to the terms this Agreement (“Permitted Users”). If Customer is given passwords to access Vendor Products on Vendor’s systems, Customer shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords and shall immediately notify the Vendor of any unauthorized use of the Customer’s account, breach of security, or loss or theft of user ID or passwords . Customer acknowledges that while the security of Customer’s account will be maintained through the use of passwords, it is possible for Customer’s accounts to be accessed by unauthorized thirds parties via communication between Customer and Vendor using the internet, other network communications, facilities, telephone, or other electronic means. Customer may permit its independent contractors and consultants who are not competitors of Vendor (“Contractors”) and Affiliates (as defined below) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement and any such use of Vendor Products by such Contractor or Affiliate is for the sole benefit of Customer. “Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. The Affiliate rights granted in this section shall not apply to any “enterprise wide” licenses unless Affiliate usage is designated in the applicable Order Form.
1.5. Hosting Services. Vendor will provide the Hosting Services in Vendor’s designated hosting facility and may update the content, functionality and user interface of the Hosting Services from time to time in its sole discretion and in accordance with this Agreement. The Customer will be solely responsible for the data entered in Vendor Product, whether entered by the Customer or by Vendor on behalf of the Customer and any other item not related to Vendor’s Hosting Services responsibility.
1.6. Hosting Service Access. In order to use the Vendor Products, Customer must have or obtain access to the internet. Customer agrees that Vendor is not providing Customer with access to the internet in order to use the Vendor Products and that Customer is solely responsible for obtaining and maintaining such internet access and for providing all equipment necessary to obtain and maintain such internet access. Vendor does not and cannot control the flow of data to or from Vendor’s network, designated hosting facility and/or other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the internet (or portions thereof). Vendor agrees to use commercially reasonable efforts to take any actions it deems appropriate to remedy and avoid such events. However, Vendor cannot guarantee that such events will not occur. Accordingly, Vendor disclaims any and all liability resulting from or related to such events.
1.7. Hosting Service Level. Downtime for the Vendor Products shall not exceed 1% of the time in each (90) day period during the term of this Agreement. For the purposes of this Agreement, “Downtime” shall mean any interruption in the provision of Vendor’s hosting services for the Vendor Products, but excluding (1) scheduled maintenance (2) interruptions in respect of which Customer has received at least twenty- four (24) hours notice, and (3) any unavailability caused by circumstances beyond Vendor’s reasonable control, including without limitation, acts of force majeure, catastrophic failure of the internet or power supply, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, virus attacks or hackers, software or power systems not within Vendor’s possession or reasonable control or any unavailability caused by Customer’s use of the Vendor Products other than in accordance with Agreement. If the service levels described in this Section 1.7 is not met by Vendor for any 90 day period as described above, Customer shall be entitled to a 1 month extension of their subscription at no additional charge; provided that Customer provides written notice to Vendor of such failure no later than 10 days following the downtime. This Section 1.7 states Customer’s sole and exclusive remedy for failure to meet the service levels described above.
1.8. Hosting Capacity Limitations. Unless otherwise agreed with Vendor, Customer is limited to a maximum data storage of 4GB of Customer Data or an additional charge may apply.
2. Customer Data
2.2. Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Vendor. Subject to the terms of this Agreement, Customer hereby grants to Vendor a non-exclusive, worldwide, royalty-free right to use, copy store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide Vendor Products. Upon request by Customer made within 30 days after the effective date of termination of this Agreement, Vendor will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. After such 30-day period, Vendor shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in Vendor’s systems or otherwise in Vendor’s possession or under Vendor’s control.
2.3. Uploads of Customer Data. Customer shall be responsible for providing all Customer Data to Vendor and shall provide such Customer Data in a format consistent with the technical compatibility
requirements set forth in the applicable Service Description (or as otherwise specified by Vendor) (“Technical Requirements”). Errors in loading Customer Data onto Vendor systems due to defective media, erroneous data or failure to meet Technical Requirements may be rejected by the Vendor Products or may be referred back to Customer for resolution and Vendor shall have no responsibility for any related impact on the applicable service
2.4. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Vendor from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) any action taken (or not taken) by Customer based upon use of a Vendor Product, (b) any Customer Data or (c) any service or product offered by Customer in connection with or related to the Vendor Product. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of Vendor at Customer’s expense.
This is a subscription agreement for use of Vendor Products and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to the Vendor Products and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise and Customer agrees that Vendor or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Vendor Products, Service Descriptions, Documentation, Professional Services deliverables and any and all related and underlying software (including interfaces), databases (including data models, structures, non-Customer specific data and aggregated statistical data contained therein), technology, reports and documentation (collectively, “Vendor Technology”). Further, Customer acknowledges that the Vendor Products are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the Vendor Product itself.
4. Subscription Term, Fees & Payment
4.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term shall automatically renew for additional twelve month periods unless either party gives the other written notice of termination at least 30 days prior to expiration of the then-current Subscription Term.
4.2. Fees and Payment. All fees owing by Customer are set forth in the applicable Order Form and shall be paid by Customer within 30 days of the effective date of the applicable Order Form, unless otherwise specified in the applicable Order Form. Except as expressly set forth in Section 6 (Limited Warranty), all fees are non-refundable. Vendor’s fees are exclusive of all shipping costs and Customer is required to pay any sales, use GST, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Vendor. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
5. Term and Termination
5.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
5.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within 30 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within 60 days thereafter).
5.3. Effect of Termination. Upon any termination of this Agreement, Customer shall immediately cease any and all use of and access to Vendor Products (including any and all related Vendor Technology) and delete (or, at Vendor’s request, return) any and all copies of the Documentation, any Vendor passwords or access codes and any other Vendor Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data input into the Vendor Products, and that Vendor may delete any such data at any time. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.3 (General Restrictions), 2.4 (Indemnification by Customer), 3 (Ownership), 4.2 (Fees and Payment), 5 (Term and Termination), 6.2 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9 (Indemnification), 10 (Confidential Information), and 12 (General Terms).
6. Limited Warranty
6.1. Limited Warranty. Vendor warrants, for Customer’s benefit only, that Vendor Products will operate in substantial conformity with the applicable Documentation. Vendor does not warrant that Customer’s use of the Vendor Products will be uninterrupted or error-free, nor does Vendor warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Vendor’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Vendor’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Vendor determines such remedies to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of any fees Customer has pre- paid for use of Vendor Products or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 6.1 shall not apply: (i) unless Customer makes a claim within 30 days of the date on which the condition giving rise to the claim first appeared, or (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services or (iii) to use provided on a no-charge or evaluation basis.
6.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, VENDOR PRODUCTS, HOSTED SERVICES AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER VENDOR NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. VENDOR SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF VENDOR.
7. Additional Services
7.1 Professional Services. Vendor shall provide the professional consulting services (“Professional Services”) purchased in the applicable Order Form. The scope of Professional Services shall be as set forth in a Statement of Work (“SOW”) executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information. Unless Professional Services are provided on a fixed-fee basis, Customer shall pay Vendor at the per-hour rates set forth in the Order Form (or, if not specified, at Vendor’s then-standard rates) for any excess services. Customer will reimburse Vendor for reasonable travel and lodging expenses as incurred. Customer shall have a license right to use anything delivered as part of the Professional Services subject to the terms set forth in the applicable SOW, but Vendor shall retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by Vendor (or its agents).
7.2 Support. Vendor will provide email support to Customer from 9AM to 5PM Pacific Standard Time, Monday through to Friday, business days. Vendor shall make commercially reasonable efforts to respond to support requests within one business day. Support covers investigating possible defects in the Vendor Products, providing work-arounds to defects, and providing brief answers about Vendor Product functionality. Vendor offers additional consulting and training services to answer questions not covered by support.
8. Limitation of Remedies and Damages
8.1. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, VENDOR’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO VENDOR DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT.
8.3. THIS SECTION 8 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “GENERAL RESTRICTIONS,” INFORMATION”. “CUSTOMER DATA” OR “CONFIDENTIAL”
8.4. The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9.1 Vendor Indemnification. Vendor shall indemnify and hold harmless Customer, its licensors and its affiliates, officers, directors, employees, and agents from and against all third party claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
Vendor’s Product’s infringing upon or violating any intellectual property rights, any provided that Vendor shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Vendor to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of any Vendor Product is, or in Vendor’s opinion is likely to be, enjoined due to a claim of infringement, or if required by settlement, Vendor may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using Vendor Products; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term which was paid by Customer but not rendered by Vendor. The foregoing indemnification obligations of Vendor shall not apply: (1) if a Vendor Product is modified by any party other than Vendor, but solely to the extent the alleged infringement is caused by such modification; (2) a Vendor Product is combined with other non-Vendor products or processes not authorized by Vendor, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of Vendor Products; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within Vendor Products. THIS SECTION 9 SETS FORTH VENDOR’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Customer Indemnification. Customer shall indemnify and hold harmless Vendor, its licensors and its affiliates, officers, directors, employees, and agents from and against all claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) violation by Customer of Customer’s representations and warranties in this Agreement; or (ii) breach by Customer of any terms of this Agreement, provided that Customer shall have received from Vendor: (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Vendor.
10. Confidential Information
10.1. Confidentiality. Each party agrees that all code, inventions, know- how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Vendor Technology, performance information relating to the Vendor Products, and the terms and conditions of this Agreement shall be deemed Confidential Information of Vendor without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
10.2.Trade Secrets. Customer acknowledges that use of Vendor Products will expose Customer to proprietary methodologies, formulae, presentations, user interfaces, and other trade secret materials of Vendor. During the term of this Agreement and for a period of one year following the termination thereof, Customer shall not (directly or indirectly) create or develop any information, products, concepts, systems, or techniques that are similar to or compete with the information products, concepts, systems, or techniques contemplated by or embodied in Vendor’s Confidential Information.
At the request of Vendor, Customer agrees to the issuance of a joint press release (“Press Release”) on a mutually agreed upon date. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Vendor Products to other potential customers and use of Customer’s name and logo on Vendor’s web site and in Vendor promotional materials. Customer agrees that Vendor may disclose that Customer is a customer of Vendor.
14. General Terms
14.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 14.1 will be null and void.
14.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
14.3. Governing Law. This Agreement is governed by the laws of California. The parties submit to the non-exclusive jurisdiction of the state and federal courts of Santa Clara county, California.
14.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
14.5. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii)if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
14.6. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
14.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that Vendor Products are on-line, subscription- based products, and that in order to provide improved customer experience Vendor may make changes to Vendor Products, and Vendor will update the Vendor Products Service Description accordingly.
14.8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
14.9. Subcontractors. Vendor may use the services of subcontractors for performance of services under this Agreement, provided that Vendor remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of Vendor Products as required under this Agreement.
14.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.