SUBSCRIPTION SERVICE TERMS AND CONDITIONS
IMPORTANT: PLEASE READ BEFORE INSTALLATION OR USE OF THE SCALABLE SOFTWARE, INC. (“SCALABLE”) SUBSCRIPTION SERVICE. BY INSTALLING OR IN ANY WAY USING THE SUBSCRIPTION SERVICE, THE ENTITY OR COMPANY THAT YOU REPRESENT (“CUSTOMER”) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS SUBSCRIPTION SERVICE AGREEMENT (“AGREEMENT”) WITH SCALABLE. IF CUSTOMER DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, INSTALLATION OR USE OF THE SUBSCRIPTION SERVICE IS STRICTLY PROHIBITED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
This Subscription Service (defined below) is provided by Scalable Software, Inc., a Texas corporation (“Scalable”).
1. PROVISION OF SERVICES
Scalable will make the following services available to Customer, subject to the terms and conditions of this Agreement and each respective Order Form:
(a) use of the Scalable subscription service(s) as specified in an Order Form and described in Scalable’s Operations Guide, attached as Schedule A, and the Service Level Agreement, attached as Schedule B, which are incorporated herein by this reference (“Subscription Service”); and
(b) professional services from Scalable as indicated on a statement of work (“Professional Services”).
2. ORDERING
2.1. SUBSCRIPTION SERVICE. When Customer has ordered the Subscription Service, the Order Form associated with that order shall specify the term of authorized use of the Subscription Service (“Subscription Term”) and the numbers, types and identifiers of permitted devices, servers, and capacity at or through which Customer is permitted to use the Subscription Service. Customer may not use or otherwise access the Subscription Service in a manner that exceeds Customer’s authorized use.
2.2. PROFESSIONAL SERVICES. When Customer has ordered Professional Services, the Order Form associated with that order shall specify the Professional Services described in one or more written statements of work (“SOW”).
3. GRANT OF USE RIGHTS; OWNERSHIP; CUSTOMER RESTRICTIONS
3.1. GRANT OF USE RIGHTS. Solely as contemplated by this Agreement and the applicable Order Form: (a) Scalable hereby grants to Customer a nonexclusive, nontransferable, worldwide right during the Subscription Term to access and use the Subscription Service and the user documentation relating to the operation and use of the Subscription Service that is provided by Scalable to Customer under the Agreement, as reasonably updated by Scalable from time to time (the “Documentation”); and (b) Customer hereby agrees that Scalable may use the electronic data pertaining to Customer and/or its users that is processed using the Subscription Service (collectively, “Customer Data”) to provide the Subscription Service to Customer, and may also use such data in an aggregate anonymized form to help improve its products or services, or to conduct statistical or trend analysis.
3.2. SOFTWARE. Scalable may provide Scalable software products (“Software”) for use in connection with the Subscription Service. Any Software is licensed and not sold, and Scalable grants Customer a limited, personal, worldwide, nonsublicensable, nontransferable, nonexclusive license to install and execute the Software on machines operated by or for Customer solely to permit Customer to use the Subscription Service during the Subscription Term in accordance with the terms and conditions of this Agreement. The Software or Deliverable (as defined below) may include independent code that is licensed under third party license agreements, including open source, made available or provided with the Software or Deliverable as applicable.
3.3. OWNERSHIP. As between Scalable and Customer, all rights, title, and interest in and to all intellectual property rights in the Subscription Service, Software, Documentation and/or Scalable Core Technology (as defined below) are owned exclusively by Scalable. Except as expressly provided in this Agreement, Scalable does not grant Customer (and expressly reserves) any rights, express or implied, or ownership in the Subscription Service, Software, Documentation, and/or Scalable Core Technology. Scalable shall have a royalty-free, worldwide, nonexclusive, transferable, sublicensable, irrevocable, perpetual right to make, use, sell, offer for sale, import, or otherwise incorporate into the Subscription Service, Software, Documentation, and/or Scalable Core Technology, any suggestions, enhancements, recommendations or other feedback provided by Customer relating to the Subscription Service, Software, Documentation, and/or Scalable Core Technology.
3.4. RESTRICTIONS. Customer shall not (and shall not permit others to): (i) license, sublicense, sell, re-sell, rent, lease, transfer, distribute, or time share the Subscription Service, Software or Documentation or make any of them available for access by third parties, such as for example in the manner of a service bureau or hosted application; (ii) create derivative works based on or otherwise modify the Subscription Service, Software or Documentation; (iii) disassemble, reverse engineer or decompile the Subscription Service or Software; (iv) access the Subscription Service, Software or Documentation in order to develop a competing product or service; (v) use the Subscription Service as a service for others; (vi) use or send viruses or other harmful computer code; (vii) interfere with the integrity of the Subscription Service or its data; or (viii) remove or modify a copyright or other proprietary rights notice on or in the Subscription Service, Software or Documentation; or (ix) use or distribute to Scalable material protected by copyright or other intellectual property right (including the right of publicity and/or privacy) without first obtaining the permission of the owner.
3.5. DELIVERABLES. Subject to the provisions of this Section 3.5, Scalable shall assign to Customer any Newly Created IP (defined below) in Deliverables upon payment in full by Customer of all amounts due for the Professional Service under which the Deliverable was created. A “Deliverable” is a deliverable that is identified in the applicable SOW and that is created by Scalable for Customer in the performance of the Professional Services. “Newly Created IP” means intellectual property in any inventions or works of authorship that are made by Scalable for Customer in the course of performing Professional Services for Customer, other than Scalable Core Technology. “Scalable Core Technology” means: (a) Scalable technology, methodologies and intellectual property (including, without limitation, product(s), software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects and documentation (both printed and electronic)) existing at the Effective Date of this Agreement or otherwise arising in whole or in part outside of work under a Professional Service for Customer; (b) any derivatives, improvements, enhancements or extensions of the foregoing, whether or not conceived, reduced to practice, or developed during the term of this Agreement or in performance of Professional Service, as applicable; and (c) any intellectual property anywhere in the world relating to any of the foregoing. To the extent (if at all) any Scalable Core Technology is incorporated into a Deliverable, Scalable grants to Customer a nonexclusive, royalty-free, nontransferable, nonsublicensable worldwide license to use the Scalable Core Technology solely to use the Deliverable in connection with the Subscription Service as contemplated under this Agreement during the Subscription Term. Nothing in this Agreement shall be deemed to restrict or limit Scalable’s right to perform similar Professional Services for any other party or to assign any employees or subcontractors to perform similar Professional Services for any other party.
4. WARRANTIES
4.1. LIMITED SUBSCRIPTION SERVICE WARRANTY. Scalable warrants that during the Subscription Term the Subscription Service will operate without a Defect, as defined in the Operations Guide, that causes a material failure of Customer’s production instances of the Subscription Service to perform in accordance with the functional specifications for the Subscription Service (“Specifications”). Customer’s exclusive remedy for breach of this warranty is to request Scalable to correct or work around the Defect, subject to and in accordance with the procedures and limitations for receiving Support, as defined in the Operations Guide. If the Defect persists in causing a material failure in Customer’s production instances of the Subscription Service to conform to the Specifications without correction or work around forty-five (45) days after written notice to Scalable of a warranty claim under this Section 4.1, then Customer may terminate the affected Subscription Service and Scalable shall refund to Customer any prepaid subscription fees covering the remainder of the Subscription Term of the affected Subscription Service after the date of termination. This Section 4.1 sets forth Customer’s exclusive rights and remedies (and Scalable’s sole liability) in connection with any Defect or other failure of the Subscription Service to perform in accordance with the Specifications or any other manner.
4.2. LIMITED PROFESSIONAL SERVICES WARRANTY. Scalable warrants that the Professional Services will be performed in a competent and workmanlike manner in accordance with accepted industry standards and practices and all material requirements set forth in the Service Description or SOW, as applicable. Customer’s exclusive remedy for breach of this warranty is to notify Scalable in writing of the breach within forty-five (45) days after performance of the nonconforming Professional Services. Upon receipt of such notice, Scalable, at its option, shall either use commercially reasonable efforts to re-perform the Professional Services in conformance with these warranty requirements or shall terminate the affected Professional Services, whereupon the Scalable shall refund to Customer any prepaid amounts for unperformed Professional Services. This Section 4.2 sets forth Customer’s exclusive rights and remedies (and Scalable’s sole liability) in connection with the performance of Professional Services.
4.3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER AND ANY ACCOMPANYING SOFTWARE OR DELIVERABLE ARE PROVIDED “AS-IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND AND, TO THE MAXIMUM EXTENT ALLOWED BY LAW, SCALABLE DISCLAIMS ALL WARRANTIES OF ANY KIND INCLUDING WARRANTIES ARISING UNDER STATUTE, WARRANTIES OF MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SCALABLE SPECIFICALLY DOES NOT WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET THE REQUIREMENTS OF CUSTOMER OR OTHERS OR THAT THEY WILL BE ACCURATE OR OPERATE WITHOUT INTERRUPTION OR ERROR.
5. CONFIDENTIALITY AND NON-USE RESTRICTIONS
5.1. CONFIDENTIAL INFORMATION. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure: including of the foregoing, without limitation, each party’s respective business plans and processes; financial and employee data; proprietary technology and product information and designs; the Subscription Service and Software; Customer Data; and the terms of this Agreement, Order Form(s) and pricing. Confidential Information excludes information that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without breach of any obligation to the Disclosing Party; or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
5.2. PROTECTION. The Receiving Party shall: (i) at all times protect the confidentiality of the Disclosing Party’s Confidential Information using no less than reasonable care; and (ii) not use Confidential Information of the Disclosing Party except to the extent necessary to exercise its rights or fulfill its obligations under this Agreement. To the extent necessary under this Agreement, the Receiving Party may disclose the Confidential Information of the Disclosing Party to the Receiving Party’s employees or subcontractors who are bound by written obligations of confidentiality and non-use restrictions at least as protective as those set forth herein. In the event of a court order or government regulation compelling disclosure of any Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice thereof, and shall reasonably cooperate with the Disclosing Party to seek confidential or other protective treatment. Each party’s obligations set forth in this Section 5 shall remain in effect during the term and three (3) years after termination of this Agreement. The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party. The Confidential Information is exempt from disclosure under the Freedom of Information Act, 5 U.S.C. §552 (“FOIA”) and is trade secret information as that term is used in the Trade Secrets Act, 18 U.S.C. §1905 and the Economic Espionage Act, 18 U.S.C. §§1831 and 1832; provided that such is properly marked in accordance to the FOIA and the Trade Secrets Act and Economic Espionage Act. Provisions for the return of Customer Data are set forth in the Operations Guide.
6. INDEMNIFICATION
6.1. SCALABLE OBLIGATION. Scalable shall: (i) defend Customer, its officers, directors and employees against any third party suit, claim, action or demand (“Claim”) alleging that Customer’s use of the Subscription Service in accordance with this Agreement infringes any valid patent, copyright, or trademark of a third party that is issued or registered in the United States; and (ii) pay any court-ordered award of damages or settlement amount, and reasonable attorney fees, to the extent caused by such Claim. If any portion of the Subscription Service becomes the subject of a Claim, Scalable may: (a) contest the Claim; (b) obtain permission from the claimant for Customer’s continued use of the Subscription Service; (c) replace or modify the Subscription Service to avoid infringement, if such replacement or modification has substantially the same capabilities as the Subscription Service; or, if the foregoing (a), (b), and (c) are not available on commercially reasonable terms in Scalable’s judgment, then (d) terminate Customer’s use of the affected Subscription Service upon forty-five (45) days’ written notice, whereupon Scalable shall pay to Customer a refund of any prepaid subscription fees covering the remaining portion of the applicable Subscription Term for the affected Subscription Service after the date of termination. Notwithstanding the above, Scalable shall have no liability for any Claim arising in whole or in part from: (i) any use of the Subscription Service which exceeds the authorized use in the Order Form; (ii) the Customer Data; (iii) use of the Subscription Service by Customer in violation of applicable law; (iv) use of the affected Subscription Service after termination in accordance with clause (d) of this Section 6.1; (v) modifications to the Subscription Service by any person other than Scalable or a person acting at Scalable’s direction; or (vi) use of the Subscription Service in combination with any hardware, software, application or service made or provided other than by Scalable.
6.2. PROCESS. All of the foregoing indemnity obligations of Scalable are conditioned on Customer notifying Scalable promptly in writing of any actual or threatened Claim, Customer giving Scalable sole control of the defense thereof and any related settlement negotiations, and Customer cooperating and, at Scalable’s request and expense, assisting in such defense. SECTION 6 STATES SCALABLE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR THIRD PARTY INFRINGEMENT CLAIMS AND ACTIONS.
7. LIMITATIONS OF LIABILITY AND DAMAGES
7.1. LIMITATIONS OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO: (1) BODILY INJURY OR DEATH; (2) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND (3) CUSTOMER’S OBLIGATION TO PAY AMOUNTS OWED TO SCALABLE FOR SERVICES PROVIDED HEREUNDER.
7.2. EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY LAW, NEITHER SCALABLE NOR CUSTOMER SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS (WHETHER DIRECT OR INDIRECT) OR LOSS OF USE OR DATA, COSTS OF SUBSTITUTE GOODS, OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGE TO BUSINESS, REPUTATION OR GOODWILL), OR INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION EVEN IF SUCH PARTY HAS BEEN ADVISED OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE.
8. TERM AND TERMINATION
8.1. TERM AND TERMINATION. This Agreement continues until terminated. Each party may terminate this Agreement in its entirety either: (i) upon thirty (30) days prior written notice to the other party, if at the time such notice is served there are no Order Forms in effect; or (ii) upon written notice if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, liquidation in any jurisdiction that is not dismissed within sixty (60) days of its commencement or an assignment for the benefit of creditors. Either party may terminate a Subscription Service or Professional Services effective immediately upon written notice if the other party materially breaches a material obligation under this Agreement or the applicable Order Form for the affected service and does not cure the breach within thirty (30) days after receiving written notice thereof from the nonbreaching party. Professional Services are separately ordered from the Subscription Service, and are not required for the Subscription Service. A breach by a party of its obligations with respect to Professional Services shall not by itself constitute a breach by that party of its obligations with respect to the Subscription Service even if the services are enumerated in the same Order Form.
8.2. EFFECT OF TERMINATION OF SERVICE. Upon expiration or other termination of the Subscription Service for any reason, Customer shall immediately stop using, and Scalable shall immediately stop providing, the terminated Subscription Service. (a) If the Subscription Service is terminated by Customer due to Scalable’s breach, then Scalable shall refund to Customer, within thirty (30) days after the effective date of termination, all prepaid fees for the remaining portion of the Subscription Term for the terminated Subscription Service after the effective date of termination. (b) If Professional Services are terminated due to Scalable’s breach, Customer may terminate the affected Professional Services whereupon Scalable shall refund to Customer of any prepaid amounts for unperformed Professional Services. (c) If the Subscription Service is terminated by Scalable for cause, then Customer shall pay to Scalable, within thirty (30) days after the effective date of termination, fees for the terminated Subscription Service that would have been payable for the remainder of the Subscription Term after the effective date of termination. (d) Upon expiration or other termination of the Subscription Service for any reason, Customer shall request the return of Customer Data in accordance with the Operations Guide.
8.3. SURVIVAL. Upon termination of this Agreement for any reason, Customer shall pay to Scalable all amounts owed by it in connection with the services provided hereunder. Sections 3.3, 3.4, and 5 through 9 of this Agreement, together with any other provision required for their construction or enforcement, shall survive termination of this Agreement for any reason.
9. GENERAL PROVISIONS
9.1. ASSIGNMENT. Neither party may assign its rights or obligations, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may upon notice without the other party’s consent: (i) in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity of such party, assign this Agreement in its entirety to such party’s successor; and (ii) assign this Agreement in its entirety to any company, partnership or other legal entity which from time to time directly or indirectly Controls, is Controlled by or is under the common Control with such party, where "Control" means the legal power to direct or cause the direction of, the general management of the company, partnership or other legal entity. Any attempted or purported assignment in violation of this Section 9.1 will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
9.2. NOTICE. Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by confirmed email; provided that e-mail shall not be sufficient for notices of termination or a Claim.
9.3. EXPORT COMPLIANCE. Each party shall comply with United States and foreign export control laws and regulations. Customer acknowledges that the Subscription Service is subject to the U.S. Export Administration Regulations (the “EAR”) and that Customer shall comply with the EAR. Without limiting the foregoing, Customer represents and warrants that: (i) Customer is not located in any country that is subject to U.S. export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria); (ii) Customer shall not use the Subscription Service in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems; and (iii) Customer is not prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government.
9.4. FORCE MAJEURE. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including but not limited to strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), trespassing, theft or other criminal acts, failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions (a “Force Majeure Event”). The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event.
9.5. ENTIRETY. This Agreement, together with the referenced and/or attached documents, is the final and entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous oral or written agreements, representations, understandings, undertakings, and negotiations. In the event of any conflict between this Agreement and any referenced and/or attached documents or Order Form(s), this Agreement shall govern unless such referenced and/or attached document, is signed by both parties and manifests a clear intent to override the terms of this Agreement. The terms of this Agreement apply to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. Any purchase order submitted by Customer is for Customer’s internal purposes only and its terms and conditions are superseded and replaced by this Agreement, and the purchase order terms and conditions have no force or effect. Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Scalable which is not set out in this Agreement, or the applicable Order Form or SOW or Service Description. Customer’s orders are not contingent on, and Customer has not relied on, the delivery of any future functionality regardless of any verbal or written communication about Scalable’s future plans.
9.6. WAIVER AND AMENDMENT. A waiver of any right is only effective if it is in writing and only against the party who signed and for the circumstances given. Any modification of this Agreement, or an Order Form or SOW or Service Description must be in writing and signed by authorized representatives of the parties; provided that the Operations Guide and the Service Level Agreement in effect at the time of an Order Form under this Agreement shall be applicable to the services purchased or renewed under the Order Form and are incorporated herein by this reference.
9.7. RELATIONSHIP OF THE PARTIES. The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship. Neither party shall have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of the other party. Scalable may at any time subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.
9.8. GOVERNING LAW; VENUE; TIME FOR BRINGING ACTION. This Agreement shall be governed by, subject to, and interpreted in accordance with the laws of the state of Texas, without regard to conflict of laws principles. The parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Austin, Texas, for the purposes of adjudicating any action or proceeding to enforce the terms of this Agreement. To the extent permitted by law, choice of law rules and the United Nations Convention on Contracts for the International Sale of Goods shall not apply. No cause of action arising hereunder or relating hereto may be brought more than one (1) year after it first accrues. The prevailing party in an action to enforce this Agreement shall be entitled to costs of bringing the claim and reasonable attorneys’ and experts’ fees and expenses. Notwithstanding the foregoing, either party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding either party's intellectual property rights.
9.9. CONSTRUCTION. The Subscription Service and Professional Services shall be provided in the English language unless agreed otherwise. The parties confirm that they have requested that this Agreement and all related documents be drafted in English at the express wishes of the parties. Capitalized terms not defined herein shall have the meaning set forth in the Operations Guide or the Service Level Agreement. Section headings are for convenience only and are not to be used in interpreting this Agreement.
SCHEDULE A
OPERATIONS GUIDE FOR SUBSCRIPTION SERVICE
1. AUTHORIZED USE
1.1. CUSTOMER RESPONSIBILITIES. Without limitation, Customer is responsible for: (a) Customer’s implementation of the Subscription Service; (b) protecting Customer designated User names and passwords and preventing and notifying Scalable of unauthorized use; (c) the lawfulness of, and results obtained from, all Customer Data submitted by Users to the Subscription Service and each User’s acts and omissions; (d) using the Subscription Services’ disk level and end-to-end encryption (encryption at-rest and encryption in-flight) features for all Customer-created elements and attachments containing sensitive Customer Data, including for personally identifiable information and other sensitive information; (e) using the Subscription Service only in accordance with the numbers, types and identifiers of permitted users, servers, devices, and locations at or through which Customer is permitted to use the Subscription Service as specified in this Agreement and the Order Form; and (f) using the Subscription Service only in accordance with the Documentation. If Customer exceeds its permitted use of the Subscription Service, it will regain compliance within thirty (30) days by: (i) disabling un-permitted use; (ii) purchasing additional subscriptions; or (iii) taking other steps reasonably requested by Scalable. Scalable may review Customer’s use of the Subscription Service, and Customer shall provide any reasonable assistance, to verify Customer’s compliance with this Agreement. Scalable may suspend Customer’s use of the Subscription Service after giving thirty (30) days written notice of noncompliance.
2. SUPPORT
2.1. PROCESS. Customer may, through its designated representatives as agreed by the parties, request, via the online portal https://scalablesoftware.freshdesk.com/support/home/ or any successor site, at no additional charge, that Scalable correct a problem causing Customer’s instances of the Subscription Service to not conform to the Specifications (“Defect”). Support (“Support”) is offered for the current release of the Subscription Service and the one (1) prior release (“Supported Versions”) except for: Defects known to be resolved by Upgrading; immaterial Defects; or corrections that will degrade the Subscription Service. Support does not include: implementation services; configuration services; integration services; custom software development; support for Customer or third party developed applications, support for Customer or third-party modifications to the Subscription Service; support for Custom Applications, training or “how-to”; or assistance with administrative functions or other professional services; corrections of immaterial Defects or corrections that will degrade the Subscription Service. Prior to submission of any Support request, Customer is encouraged to consult the Documentation to determine if the Support issue has been addressed. Scalable will use reasonable efforts to initially respond to a Support request in the following target time frames based on Scalable priority classifications:
| Name of Defect | Definition | Production Instance Target Initial Response Time | Non-Production Instance Target Initial Response Time |
| Urgent Priority 1 Defect | Business critical. Complete loss of service. No workaround exists. |
Classified as Priority 1 Defect. Within 1 business hour excluding holidays. |
N/A |
| High Priority 2 Defect | Degraded service. Intermittent issues. Reduced QoS. |
Classified as Priority 2 Defect. Within 2 business hours excluding holidays. |
N/A |
| Medium Priority 3 Defect | General issues. Product questions. |
Classified as Priority 3 Defect. Within 4 business hours excluding holidays. |
Classified as Priority 3 Defect. Within 4 business hours excluding holidays. |
| Low Priority 4 Defect |
Non-product questions. Freshdesk/portal access. |
No target initial response time.
|
No target initial respoinse time.
|
2.2. UPGRADES AND PLANNED DOWNTIME. “Upgrades” are repairs or enhancements to the Subscription Service provided by Scalable as part of Support from time to time at no additional fee during the Subscription Term. Scalable determines how and when to develop, release and apply any Upgrade. Scalable reserves the right to exclude new functionality from Upgrades, and to make new functionality commercially available for a separate fee. Scalable may perform maintenance, including applying Upgrades at its sole discretion. Generally, Scalable performs maintenance on a Sunday during which the Subscription Service will be unavailable for up to five (5) hours (“Planned Downtime”).
3. RETURN OF CUSTOMER DATA
Following the end of the Subscription Term, where Customer has not renewed, Customer shall have thirty (30) days to request a copy of its Customer Data and, if requested, Scalable shall use commercially reasonable efforts to provide a copy of that data within fifteen (15) days in a mutually agreed upon, commercially standard format at no cost to Customer unless it is determined that the data output is not routine in which case the parties shall mutually agree on an SOW for Professional Services. After such thirty (30) day period, Scalable shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, retain the right to delete all Customer Data in its systems or otherwise in its possession or under its control.
4. CAPITALIZED TERMS
Capitalized terms not defined herein shall have the meaning set forth in the Agreement, including the General Terms and Conditions and the Service Level Agreement, of which this Schedule is a part.
SCHEDULE B
SERVICE LEVEL AGREEMENT FOR SUBSCRIPTION SERVICE
1. SERVICE LEVEL AGREEMENT
If Customer’s production instances of the Subscription Service running on a Supported Version and implemented in accordance with the Documentation are not Available (as defined below) ninety-nine percent (99.0%) of the time or more in any calendar month (“SLA”), then Customer’s exclusive remedy for failure of the Subscription Service to meet the SLA is for Customer to request Scalable to either: (1) extend the affected Subscription Term for the number of minutes the Subscription Service was not Available in the month in excess of the SLA; or (2) issue a service credit to Customer for the dollar value of the number of minutes the Subscription Service was not Available in the month in excess of the SLA (determined at the deemed per minute rate Scalable charged to Customer for Customer’s use of the affected Subscription Service) which Customer may request Scalable apply to Scalable’s next invoice to Customer for subscription fees. “Available” means that the Subscription Service can be accessed by Customer via a secure password protected site(s) hosted by Scalable on the world wide web except for: (i) Planned Downtime; and (ii) downtime caused by circumstances beyond Scalable’s control, including without limitation, Customer or third-party modifications to the Subscription Service, Custom Applications, a Force Majeure Event such as, for example, general Internet outages, failure of Customer’s infrastructure or connectivity, computer and telecommunications failures and delays not within Scalable’s control, and network intrusions or denial-of-service or other criminal attacks.
2. PROCESS
Customer must request all service credits or service extensions in writing to Scalable within thirty (30) days of the end of the month in which the SLA was not met, identifying the Support requests relating to the unavailability. The total amount of service extension or credits for any month may not exceed the subscription fee for the affected Subscription Service for the month, and has no cash value. Customer agrees that Scalable may delay issuing service credits until such amounts reach a minimum threshold of $1,000 U.S. dollars.
3. CAPITALIZED TERMS
Capitalized terms not defined herein shall have the meaning set forth in the Agreement, including the General Terms and Conditions and the Operations Guide, of which this Schedule is a part.