Master Services Agreement

THIS MASTER SUBSCRIPTION AND SERVICES AGREEMENT (“AGREEMENT”) BETWEEN SERVICEAIDE, INC, A DELAWARE CORPORATION AND ITS AFFILIATES INCLUDING SUNVIEW SOFTWARE, INC. AND WENDIA NORTH AMERICA, LLC (COLLECTIVELY THE “COMPANY,” “US,” OR “OUR”) WITH ITS PRINCIPAL PLACE OF BUSINESS AT 2445 AUGUSTINE DRIVE, SUITE 150, SANTA CLARA, CA 95054 AND THE CUSTOMER IDENTIFIED ON THE APPLICABLE ORDER FORM (“CUSTOMER”). IT IS EFFECTIVE (THE “EFFECTIVE DATE”) AS OF THE DATE OF ACCEPTANCE OF THE APPLICABLE ORDER FORM.

THIS AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF OUR SOFTWARE AND SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND THIS AGREEMENT IS EFFECTIVE AS OF SUCH DATE. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.

WHEREAS, Customer desires to access one or more of the Company’s software products and receive services from the Company, and the Company wishes to grant such access and provide services, pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the parties agree as follows:

Capitalized terms not otherwise defined in this Agreement have the meanings ascribed to them below:
 
1.1    “Customer Data” means all data, information or material submitted or provided by Customer to the Company through Customer’s use of the Services under this Agreement.
 
1.2    “Day(s)” means calendar day(s) for this Agreement (except when used as part of a proper name, e.g. Memorial Day).
 
1.3    “Order Form” means any ratified document that identifies: (i) the Software to be provided by the Company, (ii) the subscription Term, subscription fees and other terms relating to the Company’s provision of such Software, and (iii) any Services, including Professional39507170.6[2497-010/4096514]Services, to be provided by the Company. Each executed Order Form will become a part of this Agreement.
 
1.4   “Professional Services” means any consulting, implementation or other services performed by the Company for Customer under an Order Form to facilitate Customer’s use of the System.
 
1.5    “Regulation” means any applicable governmental law, regulation, rule, or order
 
1.6    “Services” means the online hosting, maintenance and support services, and Professional Services as set forth in an Order Form.
 
1.7    “Software” means the software products identified on an Order Form executed by the parties, including associated documentation and any Upgrades and Enhancements. Additional Order Forms may be executed by the parties from time to time for additional software products.
 
1.8    “Statement of Work” or “SOW” means a document that identifies the Professional Services to be performed, the Fees Customer will pay for the Professional Services and the estimated duration of the Professional Services. If used, each executed Statement of Work shall be attached to an Order Form and is incorporated into and made part of this Agreement.
 
1.9   “System” means the Software, forms, reports, associated documentation, the Company’s database, and all software, hardware and systems accessed or utilized by the Company, in connection with providing access to Customer under this Agreement.
 
1.10 “Upgrades and Enhancements” means code corrections and fixes, updates and new releases to the Software, which are made available by the Company generally to all of its customers. Upgrades and Enhancements include new optional functionality and net-new functionality for the Software subscribed to by Customer, but do not include net-new functionality falling outside of the scope of the Software subscribed to that would otherwise be sold as a separate component.
 
1.11 “Users” means Anyone who are authorized by Customer and who have been issued a User ID and password to access and use the System for Customer’s internal business.

2.1    Grant of Rights. Subject to the terms and conditions of this Agreement, the Company grants to Customer a non-exclusive, non-transferable, non-assignable (except as set forth in Section 16.5), limited term right, without the right to sub-license, to access, display and use the System remotely via the Internet for the number and type of Users as set forth on an Order Form. The Company and its licensors reserve all rights in and to the System not expressly granted to Customer under this Agreement. The System will be made available39507170.6[2497-010/4096514]via the Internet in a Software as a Service, or “SaaS” model, in accordance with the terms of the Company’s Service Level Agreement, attached to this Agreement as Exhibit A.
 
2.2    Restrictions on Use. Customer will not permit its Users to directly or indirectly edit, alter, abridge, or otherwise change in any manner the System. Customer may not, and may not permit Users to:
(a) reproduce, display, download, modify, create derivative works of or distribute the System, in whole or in part, or attempt to reverse engineer, decompile, disassemble or access the source code for the System or any component thereof;
(b) use the System, or any component thereof, in the operation of a service bureau to support or process any data of any party other than Customer;
(c) permit any party, other than the then-currently authorized Users to access the System;
(d) transmit the System, in whole or in part, electronically by any means;
(e) access the System via any means other than over the Internet using the Company’s supported technology;
(f) access the System other than through the authorized User ID and password. The Company reserves the right to include a license key or other means within the System to limit use thereof to the then currently authorized Users and to enforce the restrictions on use of the System set forth in this Agreement.
 
2.3    Authorized Use Only. Customer is responsible for the acts and omissions of all Users and for all activity occurring under its accounts, whether or not authorized by Customer. Customer will implement reasonable controls to ensure that the System is only accessed and used by the then-currently authorized Users, and Customer shall immediately disable access when a User is no longer authorized. Customer will promptly notify the Company of any unauthorized access to or use of the System that becomes known to Customer. Customer will take all reasonable steps to ensure that each User’s access to and use of the System is in compliance with the terms of this Agreement. Customer may not share or transfer User IDs or passwords, and each User shall access the System only with a User ID issued to them. Customer will be responsible for all acts or omissions of Customer or its Users, and will cooperate with the Company in the enforcement of this Agreement against all third party Users. The Company will have the right to immediately suspend or terminate a User’s access to and use of the System if such User breaches the terms of this Agreement or threatens or disrupts the System. Where reasonably possible, the Company will deliver notice to Customer of the suspension or termination of a Users access to and use of the System.

3.1    Customer’s Obligations. Customer shall:
(a) cooperate with the Company to achieve an effective implementation of the System and performance of the Services;
(b) provide the Company with all information, access and resources reasonably necessary for effective implementation and operation of the Services;
(c) have in place the appropriate browser and other software and hardware for implementing and accessing the System, including any third party licenses;39507170.6[2497-010/4096514]
(d) supply sufficient workspace and other necessary resources at Customer’s facility at no charge to the Company;
(e) be solely responsible for the accuracy, quality, integrity and legality of all Customer Data provided by Customer or any User and of the means by which it acquired such data;
(f) designate a Customer representative who will be named in the engagement’s Statement of Work, who is authorized to make commitments on Customer’s behalf and who will render decisions promptly to avoid delays in the progress of the Services.

4.1    Company’s Services. The Company will perform the Services pursuant to the Order Form, each applicable Statement of Work and this Agreement. Any modification to an executed Statement of Work must be approved in writing by the parties and may result in an adjustment to timelines or Fees due.

5.1    Fees. Customer will pay the amounts set forth on each Order Form or as otherwise agreed in writing by both parties (“Fees”). Except as expressly provided in the Service Level Agreement, all Fees are non-cancellable and non-refundable. Fees are exclusive of taxes, levies, duties, governmental charges, or expenses. In addition to the Fees and expenses specified in this Agreement, Customer is solely responsible for and will pay (or reimburse the Company for) all withholding, value added and sales taxes due, except for taxes on the Company’s income. Customer will, at the Company’s request, provide the Company with receipts and other written evidence of payment of such taxes.
 
5.2 Subscription Fees, Each Order Form will specify the initial number of Customer Users that Customer is subscribing for (“Base Users”) as well as the Subscription Fees for such Users (“Base Users Subscription Fees”) and other Subscription and non-Subscription Products.
 
5.3   Professional Services Fees. Customer will pay the amounts set forth in each Order Form for Professional Services or other amounts relating to implementation of the System (“Professional Services Fees”).
 
5.4   Fee Increases. Except as otherwise set forth on the applicable Order Form, after the Initial Term, a price increase of 6% per annum shall be applied to Fees for each Renewal Term in accordance with Section 9.1. The Fee per User will change accordingly with any Renewal Term price increases.

6.1   Payment Terms. Unless otherwise set forth in an Order Form, the Company will invoice Customer for the Fees annually in advance, and Customer will pay such invoices, within thirty (30) Days of the invoice date. Customer will make payment via electronic funds transfer or wire. If Customer fails to make any payment when due, provided that the Company first provides written notice of the delinquency to Customer and Customer fails to pay all amounts within ten (10) Days from receipt of such notice, the Company may cancel or suspend Services or access to the System, and any unpaid, undisputed amount will accrue interest at the rate of one percent (1%) per month or the highest rate permitted by law, whichever is less. Customer will be liable for all costs and expenses attendant to collection of past due amounts, including reasonable legal fees, court costs and other professional fees and expenses of enforcement. In addition, as provided in the Order Form, the Company reserves the right to audit Customer’s use of the System monthly and invoice Customer based on the number of Additional Users (as defined in an Order Form) in excess of Customer’s Base Users. The Company’s rights under this section will be in addition to all other rights and remedies available to the Company upon Customer’s default.

7.1  Company’s Ownership of the System. The Company and any third party licensors, where applicable, retain ownership of all right, title and interest to all copyrights, patents, trademarks, trade secrets and other intellectual property rights in and to the System, including without limitation, the Software, the Company’s database (and all data therein except for Customer Data), all associated forms and documentation, Upgrades and Enhancements, and all processes, know-how, methodology and the like utilized by or created by the Company in performing under this Agreement, as well as all work product developed in providing the Services or resulting from providing the Services, including any enhancement requests, feedback or information provided by Customer relating to the Services. Customer hereby grants to the Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Software and Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including its Users, relating to the Software or Services. The Company retains all right, title and interest in and to all methodologies, processes, techniques, ideas, concepts, software, trade secrets, know-how, copyrights, trademarks and other intellectual property rights used by or created by the Company in the provision of the Services. The Company reserves all other reasonable rights not identified herein.

8.1    Customer’s Data. Customer retains ownership of all rights, title and interest in and to the Customer Data. Customer hereby grants the Company a non-exclusive, royalty-free, worldwide, irrevocable, non-transferable, perpetual license to use the Customer Data to perform its obligations in accordance with the terms of this Agreement and to use the data in an aggregated, unidentifiable format for benchmarking, research and data analysis for the Company and its customers. The Company will not sell the Customer Data to a third39507170.6[2497-010/4096514]party in either detailed or aggregate form. Customer warrants that it may freely transmit all Customer Data to the Company necessary for the operation of the provided solution(s).

9.1    Term. This Agreement commences on the Effective Date and continues for the initial term and any renewal term(s) for the Software and/or Services specified in an Order Form or Statement of Work, as applicable, as set forth below (the “Initial Term”). Except as provided in section 9.2, if Customer elects to non-renew, or to terminate after any contract term, as provided on the Order Form, all rights to access the system and all obligations to perform Services, shall to terminate unless either Party gives the other Party written notice of the non-renewal at least ninety (90) days before the end of the Initial Term or each Renewal Term (defined below), this Agreement will automatically renew for additional term(s) equal in length to the Initial Term (each, a “Renewal Term” and, collectively with the Initial Term, the “Term”) and at the then current price plus a six (6.00%) inflationary price increase.
 
9.2    Termination. Either party may terminate this Agreement by written notice to the other party: (a) if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) Days of receiving a written notice of breach from the non-breaching party; (b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of any applicable laws; (c) a bankruptcy or other petition is filed, a notice is given, or an order is made, for the winding up of that other party; (d) an application is made to court, or an order is made, for the appointment of an administrator, receiver or trustee, or if an administrator, receiver or trustee is appointed over the other party; (e) a creditor of the other party attaches or takes possession of, the whole or any part of its assets and such attachment or process is not discharged within 14 Days; or (f) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
 
9.3   Effect of Termination. Upon termination or expiration of this Agreement, in addition to the parties’ other rights and remedies available at law or equity: (a) Customer will immediately cease use of the System and upon the Company’s request, verify in writing to the Company that it has destroyed, permanently erased or returned to the Company any portion of Company’s Confidential Information in its possession or control (other than information stored in the course of normal backups that is rendered inaccessible, which shall remain subject to the confidentiality obligations hereunder); (b) if requested by Customer within thirty (30) Days after the expiration or termination, the Company will make available to Customer an extract of their Customer Data in an industry standard format and after such thirty (30) day period the Company has no obligation to maintain or provide any Customer Data; (c) Customer will pay any and all Fees accrued as of the date of expiration or termination; and (d) all rights granted under this Agreement immediately terminate except for the license set forth in Sections 7 (Ownership) and 8 (Customer Data). Sections 1 (Definitions), 7 (Ownership), 8 (Customer Data), 11 (Effect of Termination),39507170.6[2497-010/4096514]12.3 (Warranty Disclaimers), 13 (Limitations of Liability), 14 (Indemnification), 15 (Confidentiality) and 16 (General) survive termination or expiration of this Agreement.
 
9.4   Liquidated Damages. If this Agreement is terminated before the end of its then current Term for any reason other than by Customer under Subsections 9.1 or 9.2, then Customer will pay to the Company as liquidated damages the amount due by Customer for the previous calendar month times the number of months remaining in the Term (“Liquidated Damages”) within 30 days after such termination. The parties agree that the Liquidated Damages under this clause are not intended to be and will not be punitive in effect and that the Liquidated Damages are a genuine pre-estimate of loss (which may be difficult to ascertain) resulting from early termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, if Customer receives any notice of late payment under this Agreement in any form, written or electronic, from the Company including any business division (e.g., Company’s Credit Department), such notice will be deemed to be a Notice of Breach.

10.1  The Company Warranties. The Company warrants that any Services provided will be performed in a professional manner and in accordance with generally recognized commercial practices. In the event of a breach of the warranty set forth in this Subsection 10.1, the Company’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, is for the Company to reperform the Services, provided that Customer has reported such nonconforming Services to the Company within thirty (30) days after performance.
 
10.2  Limited Software Warranty. The Company warrants to Customer that the System utilized by Customer under this Agreement will function in accordance with the Software specifications on each Order Form and the Service Level Agreement for such System. In the event of a breach of the warranty set forth in this Subsection 10.2, the Company’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, is for the Company to correct or replace, at no additional charge to Customer, any functionality of the System found to be defective, provided that Customer has reported such nonconforming Software to the Company within thirty (30) days Customer’s discover of the nonconformity.
 
10.3  Warranty Disclaimers. EXCEPT AS EXPRESSLY CONTAINED IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS AND OTHER TERMS, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR IN ANY OTHER WAY, INCLUDING ANY IMPLIED WARRANTIES AS TO QUALITY, PERFORMANCE, TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE, ARE EXCLUDED FROM THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW AND ARE HEREBY DISCLAIMED. THE COMPANY DOES NOT WARRANT THAT THE SYSTEM WILL MEET THE REQUIREMENTS OF39507170.6[2497-010/4096514]CUSTOMER OR ANY USERS OR THAT THE OPERATION OR USE OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE. IT IS UNDERSTOOD AND AGREED THAT THE SERVICES MAY INCLUDE ADVICE AND RECOMMENDATIONS; BUT ALL DECISIONS IN CONNECTION WITH THE IMPLEMENTATION OF SUCH ADVICE AND RECOMMENDATIONS SHALL BE THE RESPONSIBILITY OF, AND MADE BY, CUSTOMER. THE COMPANY WILL NOT PERFORM MANAGEMENT FUNCTIONS OR MAKE DECISIONS FOR CUSTOMER, AND THE COMPANY NEITHER OWES NOR ACCEPTS ANY DUTY TO ANY PERSON OTHER THAN CUSTOMER. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY LOSSES, DAMAGES, LIABILITY OR CLAIMS SUFFERED BY ANY PERSON OR ENTITY RESULTING FROM ANY USE OF OR RELIANCE ON THE SERVICES.
 
10.4  Templates Provided in System. THE COMPANY PROVIDES CERTAIN PRE-DEFINED TEMPLATES WITHIN THE SYSTEM AS A CONVENIENCE TO OUR CUSTOMERS. THESE TEMPLATES ARE INTENDED TO BE USED UNIVERSALLY ACROSS OUR CUSTOMER BASE ACCORDING TO OUR INTERPRETATION OF THE SPECIFIC INDUSTRY STANDARDS TO WHICH THESE TEMPLATES RELATE. BECAUSE CUSTOMERS MAY INTERPRET THESE INDUSTRY STANDARDS DIFFERENTLY OR EXECUTE TESTS AGAINST THESE STANDARDS IN A DIFFERENT MANNER, EACH CUSTOMER MUST REVIEW, VALIDATE AND MODIFY THESE TEMPLATES TO MEET THEIR SPECIFIC NEEDS PRIOR TO USE. THE COMPANY WELCOMES FEEDBACK ON THE TEMPLATES, BUT THE TEMPLATES ARE PROVIDED “AS-IS, WHERE-IS” WITH ALL FAULTS, AND IT MAKES NO WARRANTIES, GUARANTEES OR ASSUMES ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF THESE TEMPLATES OR THAT THEY CONFORM TO ANY PARTICULAR STANDARD. USE OF THE TEMPLATES BY CUSTOMER IS AT CUSTOMER’S SOLE RISK AND CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY FROM ANY CLAIMS, DAMAGES, LIABILITY OR LOSS ARISING FROM CUSTOMER’S USE OF OR RELIANCE ON THE TEMPLATES.

11.1  IN NO EVENT SHALL THE COMPANY AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND LICENSORS (“THE PARTIES”) BE LIABLE (JOINTLY OR SEVERALLY) TO THE CUSTOMER, ITS USERS, 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 PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN39507170.6[2497-010/4096514]ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILIY OF THE COMPANY ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY THE CUSTOMER 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 THE COMPANY’S LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS COMPANY FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST THE COMPANY RELATING TO ANY BREACH OF THIS AGREEMENT BY SUBSCRIBER.

12.1  Company’s Indemnification. The Company, will defend, indemnify, and hold the Customer 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 the Customer which directly relate to a claim, action, lawsuit, or proceeding made or brought against Customer by a third party arising out of or relating to (i) a claim that the System infringes the intellectual property rights of a third party; or (ii) the Company’s gross negligence or willful misconduct.
 
12.2 The Company’s Remedies. If the System becomes, or in the Company’s opinion is likely to become, the subject of an infringement or misappropriation claim, the Company may, at its sole option, and expense, either (a) procure for Customer the right to continue using the System; (b) replace or modify the System so that it becomes non-infringing or does not use the alleged misappropriated trade secrets; or (c) terminate Customer’s right to use the infringing System and give Customer a refund or credit for the unused Fees actually paid by Customer for the infringing components of the System less an allowance for the period of time Customer has used the System during the Term. This Section 12.2 states Customer’s sole and exclusive remedies, and the Company’s entire liability, for any and all infringement and misappropriation claims and actions.
 
12.3  Exceptions. The Company has no obligation with respect to any infringement or misappropriation claim based upon: (a) use of the System in combination with software or equipment not supplied or directed by the Company if such claim would have been avoided by not combining such use; (b) unauthorized modification of the System if such claim would have been avoided by making no such modifications; (c) continued use of the Software or System after the Company has notified Customer in writing that such claim would have been avoided by ceasing such use; or (d) the use of the System except as permitted by this Agreement, or in a manner for which it was not designed or contemplated, where such claim would have been avoided without such use.
 
12.4  Customer Indemnification. Customer, will defend, indemnify, and hold the Company 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 the Company which directly relate to a claim, action, lawsuit, or proceeding made or brought against Company by a third party alleging (i) that the use of Customer Data infringes the rights of (including, but not limited to, the rights of privacy or publicity), or has caused harm to, a third party; (ii) the infringement or violation of such third party's registered patent, trade secret, copyright, or trademark (each a “Company Claim”) by way of the Company’s use of any Customer content that the Customer provides to the Company and the Company uses in the provision of any services; (ii) the failure of the Customer to comply with any Regulation; (iii) any breach or alleged breach of this Agreement by Customer or its Users (including Customer’s personnel, contractors, or any other service providers); (iv) the negligence, act or omission of Customer (including its personnel, contractors or any other service providers), (v) any bodily injury (including death) or damage to tangible or real property to the extent caused by or in connection with Customer’s performance under this Agreement; or (vii) any security breach involving customer information or customer personnel data resulting from Customer’s use of the System.
 
12.5  Conditions. The party seeking indemnification will (a) promptly give written notice of the claim to the other party; (b) give the other party sole control of the defense and settlement of the claim (provided that the party providing indemnification may not settle or defend any claim unless it unconditionally releases the other party of all liability); and (c) provide the other party all available information and assistance.

13.1  Definition. Any proprietary information or materials provided by one party to the other party pursuant to this Agreement is considered confidential and proprietary information, including, without limitation, business or technical information, databases, object code, source code and associated documentation in whatever form (“Confidential Information”) of the disclosing party. Without limiting the generality of the foregoing, the System, including without limitation, the Software, the Company’s database, reports, and forms (including all data therein except for the Customer Data), Upgrades and Enhancements and related documentation, are the Confidential Information of the Company, and the Customer Data is the Confidential Information of Customer.
 
13.2  Use and Non-Disclosure. Each party will: (a) only use the other party’s Confidential Information as expressly permitted in this Agreement; (b) protect the other party’s Confidential Information from unauthorized use or disclosure using at least reasonable care; and (c) not disclose to any third party the other party’s Confidential Information except to those employees (and in the Company’s case, subcontractors and agents) who have a need to know in connection with performing services under this Agreement and39507170.6[2497-010/4096514]who are subject to obligations of confidentiality similar to this Section 13. This Agreement will not prevent either party from disclosing the other party’s Confidential Information to the extent required by a judicial order or other legal obligation, provided that the receiving party promptly notifies the other party in writing and in advance of such disclosure to provide the other party the opportunity to contest or minimize the scope of disclosure.
 
13.3  Exceptions. The obligations and restrictions contained in this Section do not apply to information: (a) which is now or subsequently becomes publicly available other than by breach of this Agreement; (b) which was already in the recipient’s possession and at its free disposal at the time of disclosure and was not obtained directly or indirectly from discloser; or (c) which is independently developed by the recipient without use of the other party’s Confidential Information.

14.1  Customer’s Acknowledgement of Other Terms and Conditions. By utilizing the System, the Customer explicitly agrees to be bound by the Company’s Terms of Use, Privacy Policy, and, when applicable, the SaaS Usage Terms, MSP SaaS Terms, and Consulting Terms and Conditions. These terms are accessible on our website via the following hyperlink: www.serviceaide.com/agreements. The customer acknowledges the ongoing responsibility to review these documents regularly, as they may be updated.
 
14.2  Independent Contractor. The Company acknowledges that it is an independent contractor, and neither Customer nor the Company is or will be construed to be an agent, partner, joint venture or employee of the other. Neither party has any authority to bind or otherwise obligate the other party in any manner, nor may either party represent to anyone that it has a right to do so.
 
14.3  Publicity Rights. Customer grants to the Company a limited right to use Customer’s logo on the Company’s website and marketing materials in the format and manner agreed by Customer, with such agreement not to be unreasonably withheld or delayed. The Company may publish a press release relating to the relationship between the parties subject to Customer’s prior written consent, which consent will not be unreasonably withheld or delayed.
 
14.4  Governing Law; Jurisdiction. This Agreement will be construed and interpreted under the laws of the State of California, excluding its conflicts of law doctrine. The parties hereby disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Any claim arising from or related to this Agreement shall be brought exclusively in the state or federal courts located in Santa Clara, California, and each party consents to jurisdiction and venue therein.
 
14.5  Interlocutory/Injunctive Relief. Each party recognizes that its failure to comply with the terms of Sections 2 (System), 7 (Ownership), 8 (Customer Data), 9.2 (Effect of Termination), 12 (Indemnification) or 13 (Confidentiality) above could cause irreparable damage to the other party. Therefore, if either party breaches or threatens to breach any of39507170.6[2497-010/4096514]such terms of this Agreement, the injured party will be entitled to interlocutory or injunctive relief restraining such breach and/or a decree of specific performance, without showing or proving any actual damage, together with recovery of legal and other professional fees and expenses, and other costs incurred in obtaining such equitable relief.
 
14.6  Assignment. This Agreement may not be assigned or transferred by Customer without the prior written consent of the Company, such consent which will not be unreasonably withheld. Any prohibited assignment is void ab initio. Notwithstanding anything in this Section, the Company may subcontract its obligations under this Agreement, provided that the Company remains responsible for a subcontractor’s compliance with the terms of this Agreement and for the subcontractor’s performance of the Company’s obligations. This Agreement will bind upon and will inure to the benefit of the parties and their respective permitted successors and assigns.
 
14.7  Amendments; Waiver. This Agreement may only be amended or modified in a writing duly executed by authorized representatives of both parties. Any waiver of any breach of any term or any condition of this Agreement will not be construed as a waiver of any subsequent breach of any term or condition of this Agreement.
 
14.8  Notice. Any notice to be given by one party to the other under this Agreement will be in writing. Delivery will be by (i) tracked express courier delivery service (delivery charge prepaid) to the applicable address set forth in the opening paragraph of this Agreement: for Company, Attention: Legal Department, 2445 Augustine Drive, Suite 150, Santa Clara, CA 95054; and for Customer at the address set forth in the Order Form. The notice will be deemed to have been served on actual delivery.
 
14.9  Force Majeure. If performance of any obligation hereunder (except payment of monies due) is prevented, restricted or interfered with by any force majeure, including without limitation act of God; fire or other casualty or accident; strikes or labor disputes; war or other violence; unavailability or failures of or delays in procuring materials, telecommunications, power or supplies; any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental or intergovernmental agency or body; pandemics, epidemics, public health emergencies; hacking, denial of service attacks, or criminal acts of third parties; or any other act or condition whatsoever beyond the reasonable control of the party affected thereby, the party so affected will be excused from such performance during the time such prevention, restriction or interference persists.
 
14.10 Acknowledgment of Limitation of Liability. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT IT HAS REVIEWED AND FULLY UNDERSTANDS THE LIMITATIONS ON THE COMPANY’S LIABILITY AND ON THE COMPANY’S WARRANTY OBLIGATIONS UNDER SECTIONS 10.3 (WARRANTIES AND DISCLAIMERS) AND 11 (LIMITATIONS OF LIABILITY) ABOVE.
 
14.11 Insurance. During the Term of this Agreement, the Company will maintain, at its sole cost and expense, at least one commercial general liability insurance policy having a combined single limit liability coverage of not less than one million dollars ($1,000,000)39507170.6[2497-010/4096514]per occurrence, two million dollars ($2,000,000) aggregate, and umbrella coverage of three million dollars ($3,000,000) per occurrence, three million dollars ($3,000,000) aggregate. Upon Customer’s request, the Company will provide Customer with evidence of such insurance.
 
14.12 Severability. If any term or provision of this Agreement is held to be invalid, illegal or unenforceable in any respect or in any jurisdiction, then such invalidity, illegality or unenforceability will not affect any other provision hereof and such provision will be limited and construed in such jurisdiction as if such invalid, illegal or unenforceable term or provision were not contained herein.
 
14.13 Entire Agreement. This Agreement incorporates each of the attachments listed below, which together with any executed Order Forms and Statements of Work and associated schedules constitute the entire and exclusive statement of the mutual agreement and understandings of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement. Further, in the event of any conflict between the terms of this Agreement and the terms of any Order Form, Statement of Work, Customer purchase order or other ordering document, the terms of this Agreement shall prevail.

Exhibit A: Service Level Agreement
 

EXHIBIT A TO THE MASTER SUBSCRIPTION
AND SERVICES AGREEMENT    
SERVICE LEVEL AGREEMENT
Serviceaide will host the System in accordance with this Service Level Agreement (“SLA”).

If Hosted, The System is hosted in a professionally managed facility staffed 24 hours a Day, seven (7) Days a week.

A full backup of Customer Data is performed each Day along with transactional log backups that occur every 15 minutes. In addition, data is replicated to Serviceaide’s secondary datacenter asynchronously to facilitate off-site data protection.

If Hosted, The System is accessed through the Internet and Serviceaide assumes no responsibility for Customer’s ability to access the Internet. Serviceaide will provide at least 99.5% System availability on a monthly basis, excluding (a) scheduled maintenance with 48 hours’ notice to Customer; (b) emergency maintenance requested by Customer or other Serviceaide customers that must by its nature only be conducted outside the scheduled maintenance window, provided that Serviceaide will notify Customer as soon as practicable of the need for such emergency maintenance before the System is taken offline; (c) downtime caused by any unauthorized use of the System by Customer; and (d) circumstances beyond Serviceaide’s reasonable control, including force majeure. In any event, Serviceaide will make all possible efforts to return the System to normal operation as quickly as possible.

If Hosted, Customer’s sole and exclusive remedy and Serviceaide’s entire liability for any breach of this SLA will be for Serviceaide to credit Customer in accordance with this Section 4. If Uptime falls below 99%, it shall be considered a minor default; and if Uptime falls below 98%, it shall be considered a major default. In the event of a minor default, Service Provider is entitled to 2 days credit of SaaS fees, based on the SaaS fees paid. In the event of a major default, Service Provider is entitled to 5 days credit of SaaS fees, based on the SaaS fees paid. Any credits issued to Service Provider will be applied towards the next billing period applicable to Service Provider or otherwise as agreed between the parties. Except to the extent provided in Section xx, the credits issued under this Section will be the Service Provider’s sole and exclusive remedy for the default event giving rise to the credit.

Unless specified in subsequent agreement, Serviceaide will provide access to support for up to three (3) named Users. Support for additional Users is available at an additional cost.

Customer will provide the Company with a list of Support Users and a description of the type of access required for each User. Serviceaide will create an initial User ID and password for each User identified by Customer. After the initial setup and User IDs and passwords have been provided by Serviceaide, Customer will be solely responsible for managing the User accounts, including requests to remove User access upon change in employment status or role.

Serviceaide will use reasonable commercial efforts to respond to Customer’s request for help operating the Software and general use questions during business hours (7 a.m. to 5 p.m., U.S. Central Time, excluding recognized U.S. holidays), through the Serviceaide Portal at http://serviceaide.com/customer-support

Fault Resolution. In the event there are three (3) major defaults within a 3-month period of time, upon 30 days written notice to SA (which notice shall be received by SA within ten (10) business days of the third unexcused major default), Service Provider may terminate this Agreement without incurring any additional charges or termination fees. In the event of such termination the Service Provider shall be entitled to a refund of SaaS fees which have not yet been applied towards the SaaS as of the effective date of termination and/or SA shall relieve Service Provider of its obligation to pay for any unused fees applicable in the then current Term. Except for the provisions of Section 7.1 above, the refund herein shall be Service Provider’s sole and exclusive remedy under this Agreement and any Order Form(s) arising hereunder, and SA shall have no further liability arising out of this Agreement and any Order Form(s) arising hereunder.

Serviceaide will Upgrades and Enhancements available in the System as part of maintenance services. New functionality or major revisions to the software may be available as separate Serviceaide products to which customer can subscribe, when commercially available, for additional fees.