Consulting Services Terms and Conditions

The following General Terms and Conditions (this “Agreement”) shall apply to all current and future consulting and professional service contracts between the Client (hereinafter “Client”) listed on the applicable Order Form or Statement of Work (“SOW”) and Serviceaide, Inc. and its affiliates, including Sunview Software, Inc., and Wendia North America, LLC (collectively referred to as “Serviceaide”). Pursuant to any applicable Order Form or SOW(s) by and between the Client and Serviceaide, Client hereby agrees to the following terms and conditions. Serviceaide and Client may hereinafter be individually referred to as a “Party” or, collectively, as the “Parties,” as the context may so require.
 
1. Term. This Agreement shall be in effect until terminated in accordance with the applicable Order Form or SOW or as agreed upon by the Parties.
 
2. Hours and Location. Serviceaide shall perform the Services in accordance with the Order Form or SOW or as agreed upon by the Parties.
 
3. Independent Contractor Status. It is understood and agreed that Serviceaide is an independent contractor of Client.
 
4. Fees and Expenses. Client shall pay to Serviceaide the fees for the Services as set forth in the Order Form or SOW or as agreed upon by the Parties.
 
5. Confidentiality. Each Party agrees that it will not use or disclose any confidential information, which means any and all information disclosed by either party (the “Disclosing Party”) to the other (the “Receiving Party”), which is marked “confidential” or “proprietary” or which should reasonably be understood by the Receiving Party to be confidential or proprietary, including, by way of example only, this Agreement, pricing, and any related software (including source and object code and Documentation), of the Disclosing Party (the “Confidential Information”). Each Party will use the same degree of care to protect the other Party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither Party will disclose the other Party’s Confidential Information to any person or entity other than its officers, principals, employees, and subcontractors who need access to such Confidential Information in order to affect the intent of the Agreement or the Order Form or SOW and who are bound by confidentiality terms no less restrictive than those in the Agreement. The foregoing obligations of this section are perpetual and shall survive termination of this Agreement or the Order Form or SOW.
 
b. Exceptions. The restrictions set forth in Subsection 5(a) will not apply to any Confidential Information that the Receiving Party can demonstrate (a) was known to it prior to its disclosure by the Disclosing Party; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed or2[2497-010/4101207]acquired by the Receiving Party; or (e) has been approved for release in writing by the Disclosing Party.
 
c. Disclosing Party’s Confidential Information. Confidential Information may, without breach of Subsection 5(a), be disclosed by court order or as otherwise required by law, provided that the Party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure.
 
d. Injunctive Relief. The Parties agree that in addition to any other remedies available at law or hereunder, the Disclosing Party will be entitled to seek injunctive relief for any threatened or actual disclosure by the Receiving Party.
 
6. Client’s Duties and Obligations. The Client shall have the following duties and obligations under this Agreement and any applicable Order Form or SOW:
a. Client will cooperate fully and timely with Serviceaide so as to enable Serviceaide to perform its Services under this Agreement and the applicable Order Form or SOW;
 
b.Client will act diligently and promptly in reviewing materials submitted to Client from time to time by Serviceaide;

c. Client will immediately give written notice to Serviceaide of any change in its financial condition, or in its business or operations, which had or might have an adverse effect on its operations, assets, properties or prospects of its business and relevant to Serviceaide’s performance of the Services; and

d. Client will promptly pay any and all compensation, fees, and reimbursements due to Serviceaide under the provisions of this Agreement or the applicable Order Form or SOW.
 
7. Representations and Warranties. Client makes the following representations and warranties to Serviceaide:
a. Client has the full authority, right, power, and legal capacity to enter into this Agreement and any applicable Order Form or SOW and consummate the transactions which are provided for herein and therein. The execution of this Agreement and any applicable Order Form or SOW by the Client and its delivery to Serviceaide and the consummation by it of the transactions which are contemplated herein and therein have been duly approved and authorized by all necessary action by Client and no further authorization shall be necessary on the part of Client for the performance and consummation by Client of the transactions which are contemplated by this Agreement and any applicable Order Form or SOW. This Agreement and any applicable Order Form or SOW is the legal, valid, and binding obligation of Client, enforceable against Client in accordance with their respective terms, subject to the effect to any applicable bankruptcy,3[2497-010/4101207]insolvency, reorganization, moratorium, or similar law effecting creditors’ rights generally and to general principals of equity.

b. The business and operations of Client have been and are being conducted in all material respects in accordance with all applicable laws, rules and regulations of all authorities that affect the Client or its properties, assets, businesses or prospects. The performance of this Agreement and any applicable Order Form or SOW shall not result in any breach of, or constitute a default under, or result in the imposition of any lien or encumbrance upon any property of Client or cause acceleration under any arrangement, agreement or other instrument to which Client is a party or by which any of its assets are bound. Client has performed in all respects all its obligations that are, as of the date of the latest applicable Order Form or SOW, required to be performed by it pursuant to the terms of any such agreement, contract or commitment.
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8. Serviceaide’s Disclaimer of Representations and Warranties. SERVICEAIDE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR WILL BE ERROR-FREE. FURTHER, CLIENT ACKNOWLEDGES AND AGREES THAT SERVICEAIDE DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES (EXCEPT THOSE LISTED ABOVE), EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
 
9. Limitation on Liability.
 
a. IN NO EVENT SHALL SERVICEAIDE AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND LICENSORS (“THE SERVICEAIDE PARTIES”) BE LIABLE (JOINTLY OR SEVERALLY) TO CLIENT OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, LOST DATA, AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE SERVICEAIDE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILIY OF SERVICEAIDE ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT, ANY APPLICABLE ORDER FORM OR SOW, OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN SERVICEAIDE’S4[2497-010/4101207]LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. CLIENT WILL INDEMNIFY, DEFEND AND HOLD HARMLESS SERVICEAIDE FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST SERVICEAIDE RELATING TO ANY BREACH OF THIS AGREEMENT BY CLIENT.
 
10.Termination. Pursuant to the contracted terms, upon receipt of a termination notice by either Party, Client shall compensate Serviceaide for the Services performed, and approved expenses incurred as provided for herein, up until such date. Thereafter, the Parties shall have no further obligations to each other.
 
11. Saving Provision. Client acknowledges that Client has carefully read and considered the provisions hereof and having done so, agrees that the terms as set forth herein are fair and reasonable and are necessary to protect the legitimate business interests of Serviceaide. In the event a court of competent jurisdiction should decline to enforce any provision of this Agreement, such provision shall be deemed modified to the extent which the court shall find enforceable.
 
12. Indemnification. Client, at its expense, will defend, indemnify, and hold Serviceaide harmless from and against any and all third-party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorney’s fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Serviceaide which directly relate to a claim, action, lawsuit, or proceeding made or brought against Serviceaide by a third party alleging (i) the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Licensor Claim”) by way of Serviceaide’s use of any Client content that Client provides to Serviceaide and Serviceaide uses in the provision of any Services; (ii) the failure of Client to comply with any applicable governmental law, regulation, rule, or order; (iii) any breach or alleged breach of the terms, obligations, and covenants under this Agreement or the Order Form or SOW by Client (including Client’s personnel, contractors, or any service providers); (iv) the negligence, willful misconduct, or any act or omission of Client (including its personnel, contractors or any service providers), (v) any bodily injury (including death) or damage to tangible or real property to the extent caused by or in connection with Client’s performance under this Agreement or the Order Form or SOW; or (vii) any security breach involving Client information or Client personnel data resulting from Client’s use of the Services.
 
13. Governing Law/Arbitration. The validity, construction and interpretation of this Agreement and the Order Form or SOW will be governed by the internal laws of the State of California, excluding its conflict of laws provisions. The Parties consent to the exclusive jurisdiction and venue of the Federal and State Courts located in Santa Clara County, California, for any action arising hereunder. At the Serviceaide’s sole discretion, it may require Client to submit any disputes arising from this Agreement or the Order Form or SOW, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying California law.
 
14. NO TRIAL BY JURY. CLIENT AND SERVICEAIDE (BY ACCEPTANCE HEREOF) HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTES BASED UPON OR ARISING OUT OF THIS AGREEMENT.
 
15.Injunctive Relief. Client acknowledges that disclosure of any Confidential Information or breach or threatened breach of this Agreement would give rise to irreparable injury to Serviceaide, which injury would be inadequately compensable in money damages. Therefore, Client hereby agrees that, in the event of an actual or threatened breach of this Agreement, Serviceaide shall be entitled to seek injunctive relief including, in the event of a breach or threatened breach of Section 5, specific performance, in any case without the necessity of posting any bond (or other form of security) or proving irreparable harm, in addition to and not in limitation of any other legal remedies that may be available to Serviceaide.
 
16. Force Majeure. Serviceaide shall be excused from performance under the Agreement and any applicable Order Form or SOW to the extent that Serviceaide is prevented from performing, in whole or in part, by delays caused by an act of God, war, civil disturbance, labor dispute, pandemic, epidemic, government related shutdowns, or other causes beyond its reasonable control. Serviceaide shall promptly give notice of its non-performance to the Client. Serviceaide shall make all commercially reasonable efforts to remove such cause of nonperformance. All other obligations not affected by such cause of nonperformance shall be in full force and effect during the period of time that the affected obligation is suspended during the continuance of such cause of non-performance.
 
17. General.
 
a. Should any provision of this Agreement be deemed invalid or unenforceable, such provision shall be severed from this Agreement, such that the remaining valid and enforceable provisions remain intact. The Parties will endeavor to promptly negotiate a revised term or condition to replace that which was deemed illegal or unenforceable.
 
b. The article titles used herein are inserted solely for purposes of convenience, do not form a part of this Agreement, and will not be construed to qualify, explain, or affect any provision of this Agreement.
 
c. This Agreement is binding upon the Parties and their heirs, executors, administrators, successors, and assigns. This Agreement is personal to the Client and Client shall not assign this Agreement nor any of the Services to be performed hereunder without first having obtained the written consent of Serviceaide to such assignment, which consent may be arbitrarily withheld at Serviceaide’s sole discretion. Any such assignment made without Serviceaide’s prior written consent shall be null and void.
 
d. No delay or omission in the exercise of any right under this Agreement will impair any such right or will be taken, construed or considered as a waiver or relinquishment thereof, but any such right may be exercised from time to time and as often as may be6[2497-010/4101207]deemed expedient. If any of the terms and conditions are breached and thereafter waived, such waiver will be limited to the particular breach so waived and will not be deemed to be a waiver of any other breach under this Agreement.
 
e. This Agreement may only be altered, amended, or modified by written agreement signed by both Parties.
 
f. This Agreement may be executed in counterparts (including by means of facsimile or electronic mail), each of which shall be deemed an original but all of which together will constitute one and the same instrument.