License and Professional Services Agreement
This License and Professional Services Agreement (“Agreement”) is entered into between you, the “Customer” as identified on an Order Form, and Collins eMedia, Inc. (“Provider”), a California corporation having its principal place of business at 4320 Marston Lane Santa Clara, CA 95054 and is effective as of the “Effective Date” stated on an Order Form. Acceptance of this Agreement by Customer shall entitle it to use the Software provided by Provider from Service-now.com (“ServiceNow”), subject to the terms and conditions stated herein. In the event that Customer does not agree with this Agreement, Customer is not authorized to install or use the Software- please promptly contact Provider. The terms “Parties” and “Party” shall refer to Provider and to Customer.
In consideration of the foregoing premises and the mutual covenants and promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1.1 “Available” shall mean, with respect to Licensed Software, that the Licensed Software can be accessed by Customer via a secure password protected site(s) hosted by ServiceNow on the world wide web except for: (i) Planned Maintenance Downtime; (ii) downtime caused by circumstances beyond Provider’s and ServiceNow’s control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, acts of terror, war, third party strikes and other labor problems, or other events of force majeure; (iii) general Internet outages, failure of Customer’s infrastructure or connectivity, computer and telecommunications failures and delays not within Provider or ServiceNow’s control; and (iv) network intrusions or denial-of-service attacks, provided Provider and ServiceNow has implemented commercially reasonable measures to mitigate or prevent such an attack or intrusion.
1.2 “Confidential Information” means any information whether oral, or written, of a private, secret, proprietary or confidential nature, concerning either Party or its business operations, that is either clearly labeled as such or should be reasonably be understood to be confidential or proprietary, including without limitation: (a) business plans, marketing plans, financial data, employee data, technical information and know how, (b) the System, (c) Customer Data and Customer Work Product and (d) the terms of this Agreement, including pricing, which shall be deemed to be the Confidential Information of both Parties. Confidential Information will not include information that: (i) was rightfully in the public domain prior to receiving such information, or (ii) becomes publicly available without breach of this Agreement, or (iii) becomes known to the receiving Party after rightful disclosure from a third party not under an obligation of confidentiality.
1.3 “Customer Data” shall mean all proprietary information of Customer submitted to, stored within, or processed using the Licensed Software.
1.4 “Defect” means (i) a source code bug in the Licensed Software or (ii) a failure or malfunction in the System, in each case that produces an incorrect or unexpected result, or causes the Licensed Software to operate in unintended ways or causes the Licensed Software to operate in a manner substantially inconsistent with the Documentation.
1.5 “Discovery Server” shall mean any non-virtual machine whose operating system is one of the following: Linux, Unix or any Windows version intended for servers.
1.6 “Documentation” shall mean the specifications, technical data and other information made available by ServiceNow to Customer online at https://wiki.service-now.com/ or any successor website.
1.7 “End User” shall mean any User of the Licensed Software with no defined Role.
1.8 “Licensed Software” shall mean that particular Software specified in a valid, effective Order Form, any Upgrades to such Licensed Software and any other Software offered by Provider that constitutes a re-naming, re-packaging, re-bundling or re-licensing of the then-existing functionality of such Licensed Software.
1.9 “License Term” shall mean the periods of time during which Customer will have access to the System in order to use the Licensed Software, as set forth on the Order Forms executed and delivered pursuant to this Agreement from time to time.
1.10 “Order Form” shall mean an ordering document signed by the Parties representing the initial or a subsequent licensing of the particular Licensed Software set forth therein.
1.11 “Planned Maintenance Downtime” shall mean the time during which the Licensed Software is unavailable to the Customer for Provider or ServiceNow to perform maintenance for security and system integrity purposes and provide Upgrades.
1.12 “Process User” shall mean any User of the Licensed Software with an assigned Role.
1.13 “RBA Server” shall mean any physical or virtual machine configured as a server upon which a RBA Task is performed as a step in a process or procedure automated by the ServiceNow Runbook Automation software.
1.14 “RBA Task” shall mean any operation, command, instruction or request including, but not limited to, create, configure, administer or reboot.
1.15 “Role” shall mean any specific named level of access or functionality within the Licensed Software, technically defined by the Customer.
1.16 “Server” shall mean any Discovery Server or any RBA Server, as applicable.
1.17 “Software” shall mean the Internet-delivered and other software services or service suites developed by ServiceNow and provided by Provider, together with any future software services that may be provided by Provider from time to time.
1.18 “System” means all of Provider’s and ServiceNow’s property and technology (including hardware, software, networks, methodologies, algorithms, products, processes, know-how, techniques, designs and other tangible or intangible property) that is used in providing the Software.
1.19 “Upgrade” means a revision to or modification of the Software provided by ServiceNow to Provider. Such modifications may or revisions may: (i) improve upon or repair existing features and operations within the Software, (ii) modify the Software to comply with applicable laws, regulations, industry standards or market practice or (iii) add enhanced functionality to the Software.
1.20 “User” shall mean any Customer employee, consultant, contractor, service provider or agent who is authorized by Provider to access and use the Licensed Software for Customer’s internal business purposes with a unique username and password. Users are classified as either End Users or Process Users.
2. License Grant.
2.1 License Grant. Subject to the terms, conditions and restrictions of this Agreement, Provider hereby grants Customer and each User a limited, personal, worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right and license to access and use the Licensed Software specified on each Order Form during the License Term set forth in such Order Form. Except for the limited right to use the Licensed Software granted herein, no other right, title or interest in the intellectual property rights or technology of ServiceNow or Provider are granted and all such rights are hereby expressly reserved.
2.2 No Sublicensing: Customer may not sub-license the Licensed Software.
2.3 Ancillary Licenses. In connection with the performance of the Licensed Software, Provider may from time to time provide Customer with access to ServiceNow software products intended to be installed on Customer’s equipment and used in connection with the Licensed Software. Such software products may be developed by Provider, ServiceNow or by third parties or both and may be required in order to use certain features of the Licensed Software, such as ServiceNow Discovery or ServiceNow Runbook Automation. Customer understands that any such software products will be subject to independent license terms as described in the Documentation and that Customer will be required to accept the terms of such licenses in order to use such software products.
3. Payment for Licensed Software.
3.1 Order Forms. From time to time during the term of this Agreement, Provider and Customer may agree to add Licensed Software to this Agreement by executing an Order Form setting forth the Software to be licensed, the license fees payable with respect to such Licensed Software, the term during which such Licensed Software shall be provided to Customer and any other terms and conditions relating to such additional Licensed Software as the Parties shall mutually agree upon.
3.2 Invoicing and Payment. License fees for the Licensed Software shall be invoiced and due and payable as set forth on the applicable Order Form. Except as set forth on the applicable Order Form, all license fees are payable monthly in advance. All payment obligations are non-cancellable and all amounts paid and unpaid are due and non-refundable. All fees are quoted and invoiced in US dollars. A one percent (1%) per month interest fee will be charged on all past due invoices.
3.3 User-based Fees. The license fees for all Licensed Software other than ServiceNow Discovery and ServiceNow Runbook Automation are billed in advance based on the maximum number of Process Users authorized to access the Customer’s production instances of such Licensed Software. No fees are charged for (a) any End User accessing any Licensed Software or (b) any Process User accessing any non-production instance of any Licensed Software. Customer shall limit the number of Process Users accessing the production instances of any Licensed Software at any time to the number of Process Users specified on the applicable Order Form for such Licensed Software.
3.4 Server-based Fees. The license fees for ServiceNow Discovery and ServiceNow Runbook Automation are billed in advance based on the maximum number of Discovery Servers or RBA Servers, respectively, licensed. Customer shall limit the number of Discovery Servers discovered and RBA Servers managed through the use of ServiceNow Discovery or ServiceNow Runbook Automation, respectively, to the number of Discovery Servers or RBA Servers specified in the applicable Order Forms.
3.5 License True-Up. If Provider or ServiceNow determines that Customer has exceeded the number of Process Users, Servers or other license terms set forth in the applicable Order Form, Provider shall notify Customer. Customer shall, within thirty (30) days of such notification, regain compliance, including, as applicable, by (i) removing the Process Users or Servers to regain compliance with the applicable Order Form or (ii) purchasing additional Licensed Software pursuant to Section 3.1 at the pricing set forth in the applicable Order Form.
3.6 Suspension of System Access. With fourteen (14) days advance notice to Customer, Provider reserves the right to disable Customer’s usernames and passwords and suspend access to the Software if Customer has undisputed amounts more than thirty (30) days past due, without liability to the Customer, until all such undisputed amounts are paid in full.
3.7 Tax. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and similar assessments and Customer agrees to bear and be responsible for the payment of all such applicable charges imposed on the use by Customer of the Software, excluding taxes based upon Provider’s income. If Customer is a tax-exempt entity, Customer shall provide a certificate of exemption upon execution of this Agreement and Provider will not charge Customer any taxes from which it is exempt. If Customer is required to withhold any withholding taxes from amounts payable to Provider under this Agreement, Customer shall advise Provider of such requirement at the time of signing this Agreement, shall timely remit such withholding taxes to the appropriate taxing authority, and shall deliver to Provider proof of each such remittance (in a form acceptable to the U.S. Internal Revenue Service so that Provider can claim applicable U.S. federal tax credits) within sixty (60) days of such remittance. Without limiting the foregoing, unless otherwise stated in the Order Form, all references to payments made in this Agreement are exclusive of any VAT chargeable and where such payments fall to be made under this Agreement, such VAT shall be added to the amount at the rate applicable, if any, and paid in addition thereto subject to production of a valid and properly numbered VAT invoice.
4. Provision and Use of Licensed Software.
4.1 Availability. Customer acknowledges that ServiceNow has committed to Provider that the production instances of the Licensed Software shall be Available more than 99% of the time. In the event that ServiceNow fails to maintain the foregoing availability of the Licensed Software and provided that the Customer is currently running on a supported version of the Licensed Software as set forth in Section 5.5 below, Customer’s sole and exclusive remedy shall be to request a service credit equal to dollar value of the number of minutes the Licensed Software was not Available as a credit on their next invoice but solely to the extent that Provider receives such credit from ServiceNow. The Customer acknowledges and agrees that the terms of this Section 4.1 relating to service credits constitute a genuine pre-estimate of the loss or damage that the Customer might suffer as a result of a delivery failure and are not intended to operate as a penalty for non-performance.
4.2 Service Credits. Customer must request all service credits or extensions in writing within thirty (30) days of the failure, identifying the relevant technical support request relating to the failure. The total amount of service credits in any month with respect to any Licensed Software shall not exceed the pro-rata portion of the license fee paid by Customer with respect to such Licensed Software allocable to such month.
4.3 Performance. Customer acknowledges that ServiceNow has committed to Provider that the production instances of the Licensed Software will provide a daily average Application Server Transaction Response Time of three (3) seconds for Users performing day-to-day normal operational tasks such as opening, closing and updating incidents, changes and problems, excluding home page logins and exceptionally large system queries. The production instances of the Licensed Software will provide at no additional cost to Customer, a response time monitor to measure the actual server, network and web browser response time in milliseconds and provide a transaction log of such measurements.
4.4 Maintenance Downtime. Customer acknowledges that ServiceNow has committed to Provider to limit Planned Maintenance Downtime to not exceed two (2) hours per month. Provider shall give the Customer reasonable advance notice by e-mail and will be planned for Customer non-core business hours as much as practicable.
4.5.1 Cost; Application. Upgrades are provided to Customer at no additional fee, including all Documentation describing the purpose and function of the Upgrades. Upgrades shall be applied to the Licensed Software as such Upgrades are developed and released to Provider’s general user base. Provider reserves the right to determine how and when to develop and apply any Upgrades. Upgrades shall not degrade the performance, functioning or operation of the Licensed Software.
4.5.2 Timing. Provider shall notify Customer at least thirty (30) days before the release of any Upgrade by e-mail to the e-mail accounts specified by Customer in their Company Record contained within the production ServiceNow instance.
4.6 Unique Authentication. Access to and use of the Software is restricted to Customer’s authorized Users only. Customer shall be responsible to ensure all Customer Users maintain the security of any password, username, or other form of authentication involved in obtaining access to the Software. Usernames and passwords must be uniquely assigned to a specific individual and may not be shared by multiple individuals at any one time or transferred.
4.7 Datacenter and Security Requirements. Customer acknowledges that ServiceNow has committed to Provider to provide the Licensed Software using a SAS 70 Type II certified (or equivalent) data center in a manner consistent with the following requirements:
4.7.1 ServiceNow shall implement and maintain procedures to segregate Customer Data from Provider’s and ServiceNow’s data and data belonging to ServiceNow’s other customers.
4.7.2 ServiceNow shall establish and maintain appropriate environmental, safety and facility procedures, data security procedures and other safeguards against the destruction, corruption, loss or alteration of the Licensed Software and any Customer Data, and to prevent unauthorized access, alteration or interference by third parties of the same.
4.7.3 ServiceNow shall monitor for any attempted unauthorized access to, or use or disclosure of, the Licensed Software or Customer Data and shall promptly take all necessary and appropriate action in the event any such attempt is discovered, promptly notifying Customer of any material or significant breach of security with respect to any such materials.
4.7.4 When software vulnerabilities are revealed and addressed by a vendor patch, ServiceNow will obtain the patch from the applicable vendor and apply it as it is tested and determined to be safe for installation to ServiceNow’s customer base.
Provider will use commercially reasonable efforts to require ServiceNow to comply with the foregoing but shall have discretion in doing so.
4.8 Customer Data Backup. ServiceNow has committed to Provider to back up all Customer Data within Customer’s instances nightly and to maintain seven (7) nightly and three (3) weekly backups of such Customer Data, and to back up all Customer Data within Customer’s production instances nightly to a storage location at a separate datacenter and maintains seven (7) nightly and three (3) weekly backups of such production Customer Data.
4.9 Export Control. Customer acknowledges that the System and the Licensed Software are subject to the export and re-export control laws and regulations of the United States of America, which prohibit export or diversion of certain products and technologies to certain countries. Customer shall in all respects comply with all applicable United States export control laws and regulations. Customer shall not distribute or supply or allow access to the System to any person or entity if there is reason to believe that such person or entity intends to export or re-export or otherwise use the Licensed Software outside of the United States in violation of applicable export control laws and regulations.
4.10 No Harmful Use. Customer shall not: (i) send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity of the Software or the data contained therein; or (iii) upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including the right of publicity and/or privacy) without first obtaining the permission of the owner of such rights.
4.11 Customer Responsibilities. Customer is solely responsible for (i) monitoring and controlling the activity of each User, (ii) ensuring User compliance with this Agreement, (iii) ensuring that there is no unauthorized access to the Licensed Software and notifying Provider promptly of any such access of which Customer becomes aware, (iv) the reliability, accuracy, quality, integrity and legality of all Customer Data and the means by which Customer acquires the Customer Data and (v) ensuring that the use of the Licensed Software is in compliance with all applicable laws and regulations. Customer shall be solely responsible and liable for the acts and omissions of each User on the System.
4.12 Internal Business Use. Customer shall use the Licensed Software solely for its internal business purposes and shall not: (i) commercially exploit the Software by licensing, sub-licensing, selling, re-selling, renting, leasing, transferring, distributing, time sharing or making the Software available in the manner of a service bureau, other than as contemplated by this Agreement; (ii) other than for its own internal business purposes, create derivative works based on the Software; (iii) disassemble, reverse engineer or decompile the Software or any part thereof or permit others to do so; or (iv) access all or any part of the Software in order to build a product or service that competes with the Software.
4.13 Data Protection. Customer acknowledges that ServiceNow has committed to Provider to, in providing the Licensed Software and access to the System, comply with all applicable data protection laws and legislation and, if ServiceNow processes any personal data on Customer’s behalf when performing its obligations under this Agreement, ServiceNow shall comply with relevant data processing requirements. ServiceNow has represented and warranted to Provider that ServiceNow is a participant in, and will remain a participant in during the License Term, the safe harbor program developed by the US Department of Commerce in coordination with the European Commission.
4.14 High Risk Activities. The Licensed Software is not designed or intended for use in hazardous or critical environments requiring fail-safe performance or in any application in which the failure of the Software could lead to death, personal injury, or physical or property damage.
5. Technical Support.
Once Customer begins to use the Licensed Software in production, Provider will provide technical support to Customer at no cost on the following terms and conditions:
5.1 Online Documentation. Prior to submission of any technical support request, Customer is encouraged to consult the Documentation to determine if the support issue has been addressed.
5.2 Requesting Support. For all technical support requests for which a resolution is not found in the Documentation, Customer shall request technical support as follows:
5.2.1 Customer shall submit all requests via the ServiceNow software tool to the group “SN Support” or email to: SNsupport@myservicedesk.co. The priority of all requests shall be determined in accordance with the following guidelines:
P1: A P1 level request should be used to request resolution of any Defect causing a production instance of the Licensed Software not to be Available.
P2: A P2 level request should be used to request: (1) resolution of any Defect causing a non-production instance of the Licensed Software not to be Available or (2) resolution of any Defect that causes any mission critical function of any production instance of the Licensed Software to perform unacceptably or to fail.
P3: A P3 level request should be used to request: (1) resolution of any Defect related to the production instance of the Licensed Software that does not qualify as a P1 or P2 level request or (2) resolution of any Defect that causes any mission critical function of any non-production instance of the Licensed Software to perform unacceptably or to fail.
P4: A P4 level request should be used for any request that does not qualify as a P1, P2 or P3 level request.
5.3 Technical Support Response. Provider will respond to technical support requests and use commercially reasonable efforts to cause ServiceNow to resolve Defects in the time frames described in the table set forth below. Customer acknowledges that the Target Resolution Time metrics are only targets, are not of the essence of this Agreement and cannot be guaranteed.
TARGET RESOLUTION TIME
Thirty (30) minutes
One (1) hour
Two (2) hours
Eight (8) hours
Twelve (12) hours
Five (5) days
Twenty-four (24) hours
For purposes of the foregoing table, the following definitions shall be used:
Priority Level. The priority level assigned to a given technical support request based on the guidelines set forth in Section 5.2.1.
Response Time. The time period for Provider to acknowledge the submission of a technical support request from Customer. Such period will commence on submission of the technical support request and conclude upon first response by Provider.
Target Resolution Time. The target time period for ServiceNow to resolve the Defect or provide a work-around or other temporary fix. Such period will commence on submission of the technical support request by Provider to ServiceNow, shall conclude when such request is identified as resolved, and shall not include any time that a request is identified as awaiting Customer input.
For P1 and P2 level requests, hours and days shall be determined on a 24 x 7 x 365 basis. For all other requests, hours and days shall be determined on a 24 x 5 basis, excluding ServiceNow holidays. In the event that ServiceNow resolves any request to correct a Defect by providing a work-around or other temporary fix, ServiceNow has committed to Provider to use commercially reasonable efforts to determine a permanent resolution to the Defect described in the technical support request.
5.4 Scope of Technical Support. No-cost technical support provided by Provider does not include the following or related services: implementation services, configuration services, integration services, custom software development, modifications to the Software, training or assistance with administrative functions. Provider does not provide any technical support for any software application developed by Customer or any third party using the Software as a platform.
5.5 Supported Versions. Provider and ServiceNow will provide technical support in accordance with Section 5 for the current release and, except for issues known to be resolved by upgrading to the current release, for the prior generally available release and interim releases between the two.
5.6 Section 4.1 and Section 5 state the Customer’s full and exclusive right and remedy, and Provider’s only obligation and liability in respect of, the performance and/or availability of the licensed software, or their non-performance and non-availability.
6. Confidentiality and Non-Use.
6.1 Non-Disclosure and Non-Use. Each Party agrees to hold the other Party’s Confidential Information in the strictest confidence in accordance with this clause and any separate non-disclosure agreement signed between the Parties and not to use such Confidential Information except as necessary in order to perform the obligations under this Agreement. Both Parties shall preserve the confidentiality of such Confidential Information with at least the same degree of care that it protects its own most confidential business information, and such level of care shall be no less than reasonable. Without limiting the foregoing, neither Party shall sell, transfer, publish, disclose, display or otherwise make available to any third party the other Party’s Confidential Information without the prior written consent of the other Party; provided, however that Provider can disclose Customer’s Confidential Information to ServiceNow in connection with the provision and operation of the Licensed Software and any Services. Each Party may only disclose the Confidential Information of the other Party to advisors, employees or subcontractors who need to know (subject always to compliance with relevant data protection laws and regulations) such Confidential Information in order to perform the obligations under this Agreement who are bound by written obligations of confidentiality and non-disclosure at least as protective as those set forth herein. Provider warrants that ServiceNow is and will be bound by written obligations of confidentiality and non-disclosure as to Customer’s Confidential Information at least as protective as those set forth herein.
6.2 Required Disclosure. In the event of a lawful court order or government regulation compelling disclosure of any Confidential Information subject to this Agreement, the receiving Party subject to such order or regulation shall provide the other Party with prompt written notice thereof, and shall reasonably cooperate with the other Party to seek confidential or other protective treatment of such information.
6.3 Disclosure Limitations. The Parties agree that they do not desire to receive any Confidential Information from the other Party that is not reasonably necessary or appropriate to the performance of this Agreement or that is not otherwise requested by the other Party. Each Party agrees to use reasonable efforts to avoid disclosures of Confidential Information to the other Party that are not reasonably necessary or appropriate to the performance of this Agreement, and which have not been requested by the other Party.
6.4 Survival. Each Party’s confidentiality and non-use obligations shall remain in effect with respect to the Confidential Information of the other Party after the cessation or termination of this Agreement for a period of three (3) years.
7. Intellectual Property Rights.
7.1 System. The Licensed Software is licensed, not sold to Customer. The Software and System and their structure, organization and source code constitute valuable trade secrets of ServiceNow. ServiceNow will at all times have and retain sole and exclusive ownership of and all right, title, and interest in and to the System, Software, Documentation and all intellectual property rights therein.
7.2 Customer Data. As between Provider and Customer, all Customer Data is owned exclusively by Customer. Provider and ServiceNow may access Customer Data only to respond to System or technical problems or at Customer’s request, and for the purposes of hosting such Customer Data in connection with the provision of the Licensed Software to Customer and Customer’s duly authorized Users.
7.3 Customer Work Product. Provider acknowledges and agrees that Customer may develop its own best practices and intellectual property using the Licensed Software which may include, but shall not be limited to, scripts, forms, applications, modules or other system elements (“Customer Work Product”) to support Customer’s business operations as contemplated by this Agreement. All rights of patent, copyright, trademark, trade secret and other proprietary rights to such Customer Work Product will be the sole and exclusive property of Customer (excluding the System) upon its inception, conception, creation, development or reduction to practice. To the extent the System is used or embodied in Customer Work Product, (i) Provider and ServiceNow shall not be deemed to have assigned their intellectual property rights in the System to Customer; and (ii) Customer’s use of that Customer Work Product with the System shall cease upon the expiration or termination of this Agreement.
7.4 User Suggestions; Usage Data. Provider and ServiceNow shall have a royalty-free, worldwide, non-exclusive, transferable, sub-licensable, irrevocable, perpetual right and license to use or incorporate into the System or Software any suggestions, enhancement requests, recommendations, new software ideas or other feedback provided by Customer or Users relating to the operation of the System or any existing or potential Software. Customer acknowledges that ServiceNow collects information and data on how the Software is used by Customer and Users (such as, but not limited to, ITIL benchmarking data, usage patterns and roles) in order to improve the delivery of Software and for marketing and other purposes. ServiceNow shall be permitted to disclose such information in an anonymous and aggregated form at its discretion and without compensation to Customer or any User.
7.5 Federal Government Provisions. If Customer or any User is the U.S. Government, ServiceNow provides the Licensed Software in accordance with the following restricted rights: Government technical data and computer software rights related to the Licensed Software include only those rights customarily provided to the public as defined in this Agreement. The Licensed Software is comprised of “commercial computer software” and “commercial computer software documentation” as those terms are defined in FAR §2.101 and/or DFARS §252.227-7014(a)(1) to which the U.S. Government shall acquire only the rights specified in the License Agreement under which the commercial computer software or commercial computer software documentation was obtained, as specified in FAR §12.212 and/or DFARS §227.7202-3.
7.6 Publicity. Each Party consents to the use and public disclosure of the legal name and logo of the other Party solely to identify such other Party as a customer or software provider, as applicable.
9.1 Legal Power. Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement.
9.2 Disclaimer of Warranties. PROVIDER AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY OR GUARANTY, EXPRESS, STATUTORY OR IMPLIED, AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY OR ACCURACY OF THE SYSTEM, THE LICENSED SOFTWARE OR ANY RELATED PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, PROVIDER AND ITS LICENSORS MAKE NO WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Provisions Relating to the Provision of Professional Services
10.1 Applicability. If Customer retains Provider to provide professional services (“Services”) relating to the Software, the terms and conditions set forth in this Section 10 shall apply.
10.2 Order Form. The scope of the Services, the fee payable in respect of such Services and the related invoice schedule shall be set forth in an Order Form, which Order Form may be combined with an Order Form that also provides for the licensing of Licensed Software. The fees for any Services shall be payable on the same terms applicable to the payment of fees for access to the Software as set forth in Sections 3.2 and 3.7.
10.3 Subcontractors. Provider may subcontract or otherwise delegate its Services obligations to a third party with Customer’s prior written consent, not to be unreasonably withheld. Subcontractors approved by the Customer shall be subject to the same terms applicable to Provider; provided, however, that Provider shall at all times remain responsible for its obligations under this Agreement and for any subcontractor’s performance of any of the Services.
10.4 Customer Responsibilities. Customer shall ensure that a sufficient number of Customer personnel of suitable experience, training and skills are assigned to enable the provision of the Services. Customer will provide project management leadership for the Services. Customer shall provide Provider with specific business, functional design and process requirements. Customer will lead training for internal staff, with Provider providing guidance. Customer agrees to assign a representative of suitable experience and skills to serve as Customer administrator who shall use best efforts to learn, through administrative trainings and review of applicable documentation provided by Provider and ServiceNow, how to manage the Licensed Software.
10.5 Schedules. The parties acknowledge the collaborative, interactive and interdependent nature of the Services, and that the schedule set forth in each Order Form requires timely performance by each party. Accordingly, the parties agree that neither party shall be responsible for any delays to schedules that result from the other party’s inaction or failure to perform its responsibilities in a timely manner.
10.6 Services Warranty. Provider represents and warrants that the Services provided hereunder shall be performed in a professional and workmanlike manner in accordance with accepted industry standards and practices. The Services shall comply with all material requirements set forth in the applicable Order Form. In the event Provider fails to comply with the foregoing warranty, Provider shall re-perform the Services in full conformance with the warranty requirements set forth in this Section at no additional charge to Customer. SECTION 10.6 REPRESENTS PROVIDER’S SOLE OBLIGATION AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO THE WARRANTY SET FORTH IN THIS AGREEMENT.
10.7 Warranty Disclaimer. EXCEPT FOR THE FOREGOING EXPRESS LIMITED WARRANTY, THE SERVICES ARE PROVIDED AS-IS, WITH NO OTHER WARRANTY WHATSOEVER, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10.8 License Grant. Provider hereby grants to Customer a perpetual, worldwide, fully-paid, royalty-free, non-exclusive right and license to use any configuration scripts, integration scripts, database configurations or other work provided to Customer by Provider in connection with the Services. Except for the foregoing license grant, neither party grants any other right, title or interest in the intellectual property of such party and all such rights are expressly reserved by such party.
10.9 Termination. In the event either party breaches a material term of this Section 10 and fails to cure such breach within thirty (30) days after receipt of notice of breach from the non-breaching party, the sole remedy of the non-breaching party shall be to terminate this Section 10 by written notice to the breaching party. Upon termination, Customer shall remain obligated to pay any fees accrued or payable to Provider for Services actually rendered prior to the effective date of termination, and shall receive a pro-rata refund of any amount pre-paid by the Customer for Services not actually rendered. Breach of the obligations under this Section 10 shall not, by itself, constitute a material breach of this Agreement entitling either party to terminate the Agreement.
11. Limitation of Liability.
11.1 This Section 10 sets out the entire financial liability of Provider (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: any breach of this Agreement; any use made by the Customer of the Software, the ServiceNow System or any part of them; and any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
11.2 Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for results obtained from the use of the Software or the System by the Customer, and for conclusions drawn from such use. Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Provider or ServiceNow by the Customer in connection with the Software, or any actions taken by Provider at the Customer’s direction.
11.3 SUBJECT TO SECTION 11.4, IN NO EVENT SHALL PROVIDER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, WARRANTY OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
11.4 Nothing in this Agreement excludes the liability of the Provider for death or personal injury caused by Provider’s negligence; or for fraud or fraudulent misrepresentation.
11.5 EXCEPT FOR A PARTY’S LIABILITY UNDER SECTION 6 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOSS OF USE, COSTS OF COVER, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, WARRANTY OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11.6 Nothing in this Agreement shall be taken as in any way reducing or affecting a general duty to mitigate loss suffered by a Party.
13. Term and Termination.
13.1 Term of Agreement. This Agreement commences on the Effective Date and continues until terminated.
13.2 Termination Following License Expiration. Either Party may terminate this Agreement without cause with ten (10) days written notice to the other Party at any time following the expiration of all License Terms under all Order Forms.
13.3 Termination for Cause. Without prejudice to any other rights and remedies to which the parties may be entitled, either Party may terminate this Agreement for cause without liability to the other with twenty (20) days written notice to the other Party: (i) for material breach of this Agreement, granted the breached Party provides notice of the breach in its intent to terminate, and the breach remains uncured for that twenty (20) day period; (ii) in the event either Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, liquidation that is not dismissed within sixty (60) days of its commencement or an assignment for the benefit of creditors and (a) results in Provider’s inability to provide access to or support the Licensed Software, or (b) results in the Customer’s failure to meet its financial obligations defined in this Agreement.
13.4 Effect of Termination. Upon termination of this Agreement for any reason:
13.4.1 All licenses granted under this Agreement shall immediately terminate;
13.4.2 Provider shall use reasonable efforts to cause ServiceNow to retain all Customer Data for a minimum of forty (40) days. Customer shall have thirty (30) days to request a copy of its data and, if requested, Provider shall cause ServiceNow to provide a copy of that data within ten (10) business days in a mutually agreed upon, commercially standard format at no cost to Customer. After such period, Provider shall have no obligation to use any efforts to cause ServiceNow 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;
13.4.3 Customer shall pay any fees accrued or payable to Provider prior to the effective date of termination;
13.4.4 The accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; and
13.4.5 If Customer terminates this Agreement for cause per Section 13.3, Customer shall be entitled to a refund of the pro-rata portion of any pre-paid license fees paid to Provider relating to the time period following the effective date of such termination for which Licensed Software has not been provided.
14. General Provisions.
14.1 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party, in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity of such Party, may assign this Agreement in its entirety to such Party’s successor without the other Party’s consent. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.2 Governing Law. This Agreement and all relations, disputes, claims and other matters arising hereunder (including non-contractual disputes or claims) shall be governed exclusively by, and construed exclusively in accordance with, the laws of the State of California, without regard to its conflicts of laws provisions. The state and federal courts located in San Diego, California shall have exclusive jurisdiction to adjudicate any dispute or claim arising out of or relating to this Agreement (including non-contractual disputes or claims). Each Party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
14.3 Alternative Dispute Resolution. Before either Party initiates any proceeding, the matter in controversy will first be referred to the chief information officers or other appropriate officers of the Parties. Such officers shall take all reasonable steps to attempt to resolve the matter within four (4) weeks of the date of referral.
14.4 Entire Agreement. This Agreement, together with the Exhibits hereto and any Order Form executed hereunder, constitutes the entire agreement between the parties regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous oral or written agreements, representations and negotiations. In the event of any conflict between the terms of this Agreement and any Exhibit or Order Form, this Agreement shall govern. Customer agrees that any terms and conditions in any purchase order submitted by Customer to Provider are for Customer’s own internal purposes and are superseded and replaced by the terms and conditions of this Agreement, and such purchase order terms and conditions shall have no force or effect. Any modification of this Agreement must be in writing and signed by an authorized representative of Provider and Customer.
14.5 Third Party Rights. This Agreement does not confer any rights on any person or party (other than the Parties to this Agreement, ServiceNow and (where applicable) their successors and permitted assigns).
14.6 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, its invalidity shall not affect the other provisions of this Agreement that can be given effect without the invalid provision. If any provision of this Agreement does not comply with any law, ordinance or regulation, such provision, to the extent possible, shall be interpreted in such a manner so as to comply with such law, ordinance or regulation, or, if such interpretation is not possible, it shall be struck and the Agreement construed in accordance with the remaining provisions of the Agreement.
14.7 Notices. Except as otherwise provided herein, all notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been give upon: (1) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email; provided that facsimile and e-mail shall not be sufficient for notices of termination or an indemnifiable claim. Notices shall be sent to the Parties at the addresses listed on the Order Form.
14.8 No Partnership. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. 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.
14.9 Waiver. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
License and Professional Services Agreement © 2012 Collins eMedia, Inc. All rights reserved.