MSA

Master Services Agreement

THIS MASTER SERVICES AGREEMENT is entered into by and between goDeskless Inc, a Delaware corporation with principal place of business at 11501 Dublin Blvd, Suite 200, Dublin, CA 94568, USA (the “Company” or “goDeskless”) and the legal entity, including its Affiliates (collectively, the “Customer”) identified in the applicable Order Form and/or Statement of Work (“SOW”). This agreement, together with any related Order Form(s) and/or SOWs are collectively referred to as the “Agreement”. Company and Customer are each a “Party,” and collectively, the “Parties”. By executing an Order Form or an SOW that references this agreement, Customer agrees to be bound by the terms of this Agreement.

1. Capitalized terms not otherwise defined have the meaning set forth in Appendix A.
2. SUBSCRIPTION SERVICES.
   • License Grant. Subject to Customer’s compliance with all of the terms and conditions of this Agreement, Company hereby grants Customer a limited, revocable, non-exclusive, non-transferable right during the Term of this Agreement to access/use the goDeskless Solution, solely in connection with Customer’s purchase and use of Subscription Services under this Agreement.
   • Provision of Subscription Services. Company shall make the Subscription Services available to Customer pursuant to this Agreement and the applicable Order Forms during each Subscription Term, subject to Customer’s timely payment of all applicable fees. Company may provide access to the Subscription Services and host the goDeskless Solution on its own infrastructure or using a third-party cloud computing services provider. Customer’s purchases of Subscription Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Company regarding future functionality or features. Company may, in its sole discretion, modify, enhance and/or expand the Subscription Services at no additional cost to Customer. Company may also modify, enhance or expand the Subscription Services by providing additional features or functionality, which may, but are not required to be, added by Customer to this Agreement at additional cost. Such additional cost for additional features and functionality may be added by mutual written agreement of the Parties.
   • Unless otherwise specified in the applicable Order Form(s), (a) access rights to the goDeskless Solution are purchased as subscriptions, (b) additional subscriptions may be purchased during the Subscription Term by signing an additional Order Form(s) and paying the additional fees for such additional subscriptions, prorated for the portion of that Subscription Term remaining at the time the Subscriptions are added and (c) the added subscriptions shall terminate on the same date as the underlying subscriptions. The Subscription Services are subject to usage limits that are specified in the Order Forms(s). If Customer exceeds its permitted use of the Subscription Services, then Company will promptly notify Customer and within thirty (30) days thereafter, Customer may purchase additional usage subscriptions, or revert to original usage limits specified in the Order Form(s).
3. GENERAL RESTRICTIONS AND LIMITATIONS ON SUBSCRIPTION SERVICES
   • Company Responsibilities. As part of the Subscription Services, Company will (a) provide Customer with Company’s standard support for the Subscription Services at no additional charge and/or upgraded support if purchased for an additional fee and (b) use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond Company’s reasonable control, including, for example, Force Majeure events, internet service provider failure or delay, failure or delay of service from any third party cloud computing services provider, or denial of service attack. Company’s support services and service level commitments are set out in Appendix B. Company’s service level agreement for availability of services will be provided upon request.
   • Customer Responsibilities. Customer shall (a) be responsible for Authorized Users’ compliance with this Agreement, (b) be solely responsible for the accuracy, quality, integrity, and legality of Customer Data and of the means by which Customer acquired and disclosed Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services, including, but not limited to, (i) efforts to ensure the expeditious removal of access credentials for any Authorized User whose employment or contractual relationship with Customer has terminated (for any reason) or whose authorization to access and use the Subscription Services has otherwise been rescinded by Customer, and (ii) efforts to ensure the security of any mobile device used to access the Subscription Services by Authorized Users who are employed by, provide contract services to, or are otherwise considered to be workforce members of, Customer, (d) notify Company promptly of any unauthorized access or use of the Subscription Services, (e) use the Subscription Services only in accordance with the Documentation and applicable laws, and (f) timely provide Company with all the assistance, information and materials that are reasonably requested as necessary to effectively provide the Subscription Services.
   • Customer will not, directly or indirectly, do any of the following: (a) make any Subscription Services available to, or use any Subscription Services for the benefit of, anyone other than Customer or its Authorized Users; (b) sell, resell, license, sublicense, distribute, rent or lease any Subscription Service, or include any Subscription Services in a service bureau or outsourcing offering; (c) use the Subscription Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Subscription Services to store or transmit code, files, scripts, agents or programs intended to do harm (including, for example, viruses, worms, time bombs and Trojan horses); (e) interfere with or disrupt the integrity or performance of any Subscription Services or third-party data contained therein; (f) attempt to gain unauthorized access to any Subscription Services or the goDeskless Solution; (g) permit direct or indirect access to or use of any Subscription Services or goDeskless Solution in a way that circumvents a contractual usage limit, (h) copy any part, feature, function or user interface of the Subscription Services; (i) access any Subscription Services or goDeskless Solution in order to build a competitive product or service; or (j) reverse engineer, disassemble or decompile any portion of the goDeskless Solution.
   • Customer Data. The Subscription Services can be used to access and process Customer Data to generate reports, analyses, documents, and/or results. If Customer chooses to save such output, it will be saved as Customer Data in Customer’s account. Upon any termination (see Section 11), Company will make all Customer Data available to Customer for electronic retrieval for a period of sixty (60) days, but thereafter Company may, but is not obligated to, delete stored Customer Data (unless otherwise required by applicable law). Company will not access Customer Data except in accordance with (a) the licenses granted to Company in Section 7.3 (Customer Data; License); and (d) in compliance with Sections 6.4 (Compelled Disclosure) and 6.5 (Privacy).
   • Company has implemented industry standard technical, physical and organizational measures designed to secure the Subscription Services and Customer Data from accidental loss and unauthorized access, use, alteration or disclosure; however, Company cannot guarantee that unauthorized third-parties will never be able to defeat those measures to gain access to the Subscription Services. Notwithstanding the foregoing, each Party shall take, and hereby represents that it has taken, all steps to ensure the reliability and security of its systems; and that it will comply with their respective systems, network and data security policies.
4. PROFESSIONAL SERVICES
   • Professional Services. The Parties may, but are under no obligation to, enter one or more SOWs for Professional Services to be performed by Company. No Professional Services shall be furnished to Customer by virtue of this Agreement alone but shall require the execution of an SOW by both Parties, for purchases of Professional Services.
   • Scope Modifications. Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular SOW by making a written request to Company specifying the desired modifications. Company shall submit an estimate of the cost for such modifications and a revised estimate of the time for performance pursuant to the SOW. Modifications to any SOW for Professional Services shall become effective only when a written change request is executed by authorized representatives of both Parties.
   • Company Personnel. Company shall be responsible for securing, managing, scheduling, coordinating and supervising Company personnel, including its subcontractors, performing the Professional Services. Company shall have the right to remove or replace any personnel providing Professional Services with similarly skilled personnel. Company shall provide reasonable notice to Customer of any change in personnel providing Professional Services. Company may, in its sole discretion, subcontract or delegate any work under any Order Form to any third party without Customer’s prior written consent, provided that, Company shall remain responsible for the performance of any such subcontractors. In the event Company removes or replaces any personnel following a lawful and reasonable request from Customer, any project timelines shall automatically extend by the amount of time required to replace said personnel and assimilate them into the project.
   • Customer shall perform its obligations as set forth in the applicable SOW, as well as the following obligations: (a) designate and provide one Customer project manager who will be responsible for coordinating the Customer obligations under an SOW; (b) provide sufficient, qualified, knowledgeable personnel capable of: (i) performing Customer obligations set forth in each SOW; (ii) making timely decisions necessary to move the Professional Services forward; and (iii) participating in the project and assisting Company in rendering the Professional Services; and (c) in the case of on-site Professional Services, provide Company with reasonable access to Customer’s facilities and equipment or systems during Customer’s normal business hours and otherwise as reasonably requested by Company, including such working space as Company may reasonably request. Customer acknowledges and agrees that the performance by Customer of its obligations is material to Company’s ability to commence, proceed with and complete the Professional Services. In the event Customer does not perform Customer obligations in a timely manner, Company may take any action as set forth in the applicable SOW or terminate the applicable SOW in accordance with this Agreement.
   • If Configuration services are contracted under Professional Services, Company will as part of the implementation, Configure the goDeskless Solution software or SaaS for Customer requirements. “Configuration” services mean the process of making the goDeskless Solution ready to use in a specific way, including by defining options, values of parameters, and/or general set-up using pre-existing configurable features, templates and pre-sets. The fact that Customer uses the goDeskless Solution in any particular manner or configuration is Customer’s Confidential Information, however, Customer acknowledges that it does not receive any exclusive right under this Agreement to use any goDeskless Solution in any particular manner or configuration.
   • No Solicitation. Customer agrees that during the term of this Agreement, and for a period of one (1) year after the termination or expiration of this Agreement, it shall not offer employment or engagement (whether as an employee, independent contractor or consultant) to any employee or consultant of Company without Company’s prior written consent. Customer shall not be in breach of this Section 4.6 if it can show by written records that there has been no targeted solicitation of employment or engagement (whether as an employee, independent contractor or consultant) and/or if the employee, contractor or consultant responded to a job posting or general advertisement (for example, through online job postings) that was publicly and generally available and placed in connection with an open position.
5. FEES AND PAYMENTS
   • Customer agrees to pay Company the fees and other amounts set forth on all applicable Order Forms. Except as otherwise specified in an Order Form, (a) fees for Subscription Services are based on Subscription Services purchased and not actual usage, and (b) payment obligations are non-cancellable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant Subscription Term. Except as otherwise specified in an Order Form, fees for any and all Professional Services shall be based on then-current rates, which can be fixed or hourly, as further set forth in the applicable Order Form.
   • Payment Terms. Unless otherwise specified in the applicable Order Form, all undisputed fees and other amounts due under this Agreement shall be due payable net thirty (30) calendar days after date of receipt by Customer of the applicable invoice. Company may charge a late charge equal to the lesser of (a) one percent (1%) per month or (b) the maximum amount allowed by applicable law, on any outstanding past due balance that is not the subject of a good faith dispute. Customer will provide complete and accurate billing and contact information to Company and promptly notify Company of any changes to such information.
   • Customer shall be responsible for, all taxes, duties, and assessments imposed on Customer in connection with fees paid under the provisions of this Agreement, including without limitation, all sales, use, excise or other taxes and duties, and Company will include all such taxes, duties and assessments on each applicable invoice. If a tax-exempt certificate applies, Customer agrees to provide Company, within thirty (30) days of the Effective Date of this Agreement, with such applicable sales tax exemption certificate(s).
   • If agreed in writing in the applicable SOW, Customer shall reimburse Company for any reasonable, actual out-of-pocket expenses incurred and approved by Customer, including travel expenses and related costs, incurred by Company employees and subcontractors, provided that such expense and costs are consistent with Customer’s own travel policies and approved in advance by Customer.
   • Disputed Charges. Customer must notify Company in writing of any dispute or disagreement with invoiced charges within thirty (30) calendar days after the date of receipt of the applicable invoice by Customer. Absent such notice, Customer shall be deemed to have agreed to the charges as invoiced.
   • If any amount owing by Customer under this Agreement is thirty (30) or more days past due, Company may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend the Subscription Services and/or Professional Services to Customer until such amounts are paid in full. Company will give Customer at least ten (10) days’ prior notice that Customer’s account is overdue before implementing any such suspension.
6. CONFIDENTIAL INFORMATION
   • The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain Confidential Information of the other Party or Confidential Information of third parties that the disclosing Party is required to maintain as confidential.
   • Mutual Obligations. Except as may be expressly set forth in this Agreement, each Party that receives Confidential Information of the other Party agrees during the term of this Agreement and thereafter, to: (a) use the Confidential Information only for the purposes of performing this Agreement; (b) hold the Confidential Information of the other Party in confidence and restrict it from dissemination to, and use by, any third party; (c) protect the confidentiality of the other Party’s Confidential Information using the same degree of care, but no less than reasonable degree of care, as the receiving Party uses to protect its own Confidential Information; (d) not create any derivative work from Confidential Information of the other Party; and (e) restrict access to the Confidential Information of the other Party to such of its personnel, subcontractors, and/or consultants who have a need to have access to such Confidential Information, who have been advised of the confidential nature of such information, and who have agreed in writing to terms no less protective than the terms set forth in this Agreement with respect to the treatment of such Confidential Information.
   • Confidentiality Exceptions. Section 6.2 shall not apply to Confidential Information that is: (a) publicly available or in the public domain at the time disclosed; (b) publicly available, becomes publicly available or enters the public domain through no fault of the recipient; (c) rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) independently developed by the recipient without use of or reference to the disclosing Party’s Confidential Information and by employees or other authorized agents of the receiving Party who have not been exposed to the disclosing Party’s Confidential Information; or (f) approved for release or disclosure in writing by the disclosing Party.
   • Compelled Disclosure. Notwithstanding the foregoing, each Party may disclose Confidential Information of the other Party to the limited extent required to: (a) comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall, to the extent allowed by law, first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
   • To the extent Customer Data may include personal information, both Parties must comply with all applicable requirements of applicable data protection laws. Without prejudice to the generality of this Section 6.5, the Customer will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of any personal information to Company for the duration and purposes of this Agreement so that Company may lawfully use, process and/or transfer the personal information in accordance with this Agreement on the Customer’s behalf.
   • Equitable Relief. The Parties acknowledge and agree that money damages would not be a sufficient remedy for breaches of this Section 6, and that each Party may seek injunctive relief, specific performance, or other equitable relief as a remedy for any such breach.
7. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
   • Company and its licensors own all right, title and interest, including all IP Rights, in and to all Company Confidential Information, the goDeskless Solution, and the Aggregated Data, including, without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto, and any third party software provided by Company, and all software, associated documentation, hardware, materials, information, processes or subject matter that is proprietary to Company and is provided under this Agreement. Company expressly reserves all rights not expressly granted to Customer under this Agreement and all executed Order Forms. Customer shall not knowingly engage in any act or omission that would impair the IP Rights of Company or its licensors. In no event shall Customer obtain any ownership rights in or to the Confidential Information of Company, the goDeskless Solution or any IP Rights of Company.
   • Customer and its licensors own all right, title and interest, including all IP Rights, in and to the Customer Data, Customer Content, and all Confidential Information disclosed by Customer. Company shall not knowingly engage in any act or omission that would impair Customer’s IP Rights or Confidential Information. In no event shall Company obtain any ownership rights in or to the Confidential Information of Customer, the Customer Data, Customer Content or Customer’s IP Rights.
   • Customer Data; License. As between Company and Customer, Customer exclusively owns all rights, title, and interest in and to all of the Customer Data. Customer hereby grants Company a worldwide, limited-term license to host, copy, transmit, process, and display Customer Data, as necessary for Company to provide the Subscription Services in accordance with this Agreement. Subject to the limited licenses granted herein, Company acquires no right, title or interest from Customer under this Agreement in or to Customer Data. Customer hereby grants to Company a non-exclusive, royalty-free license to (a) use Customer Data in order to provide, monitor and improve the Subscription Services to Customer and (b) use all of Customer Data that is anonymous and does not personally identify Customer, Authorized Users, or clients of Customer, for statistical, analytical and other aggregate use.
   • Customer Content; License. Customer represents and warrants to Company that it owns all right, title and interest in, or otherwise have full and sufficient authority to use in the manner contemplated by this Agreement, any Customer Content furnished by Customer to Company for Configuration of, incorporation, or upload into the Subscription Services. Customer hereby grants Company a limited, non-exclusive, royalty-free license to use such Content in the manner contemplated by this Agreement.
   • Aggregated Data. Customer hereby grants Company the right to aggregate and de-Identify Customer Data in accordance with applicable data protection laws. Customer further acknowledges that Company may use the Aggregated Data for any and all purposes in its discretion, including, without limitation, the development and improvement of products and services, provided that Company will use such Aggregated Data solely in aggregate and/or other de-identified form (and not susceptible to re-identification) in connection with its business, and further provided that it will not disclose Customer’s Confidential Information.
   • To the extent that Customer or its Authorized Users provide any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Services, Documentation and/or goDeskless Solution (“Feedback”), Customer hereby grants Procore an irrevocable, perpetual, royalty-free license to freely use, reproduce, distribute, modify, create derivatives, incorporate, commercially exploit, and further develop such Feedback without any restrictions or attribution.
   • Work Product. Unless otherwise specified in the applicable Order Form, all Work Product created under this Agreement, including all IP Rights related thereto, shall be owned by Company.  For any Work Product created under this Agreement that is owned by Company and is made available to Customer to enable Customer’s use of the Subscription Services (including any connectors) pursuant to the terms of this Agreement, Company hereby grants Customer a worldwide, non-exclusive, non-transferrable, non-sublicensable right and license to use the Work Product, solely in connection with Customer’s use of the Subscription Services.  To the extent Customer acquires any rights in the Work Product, Customer hereby assigns such rights to Company. For sake of clarity, unless expressly agreed in the applicable Order Form, Company does not provide customizations or work-made-for-hire services. In the event such out-of-scope services are contracted, these shall be solely under the terms of a separately executed Statement of Work.
8. REPRESENTATIONS AND WARRANTIES
   • Each Party represents and warrants to the other that it has full power and authority to enter into and perform this Agreement, and that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including any confidentiality obligations.
   • Subscription Services Warranties. Company warrants that the Subscription Services shall perform materially in accordance with the specifications set out in the Documentation and/or applicable SOW; and (b) the functionality of the Subscription Services will not be materially decreased during a Subscription Term. For any breach of either such warranty, Customer’s exclusive remedy shall be as provided in Section 11.5 (Termination for Breach). Customer acknowledges that availability of the Subscription Services depends upon the availability of the internet and any third-party cloud computing services provider and that Company has no control over such availability. Accordingly, Company makes no representations, warranties, or covenants regarding the availability of the Subscription Services to the extent that such availability depends upon the availability of the internet or any third-party cloud computing services provider.
   • Professional Services Warranty; Exclusive Remedy. Company warrants the Professional Services performed hereunder will be performed in a professional and workmanlike manner, using sound principles, accepted industry practices and competent personnel (“Professional Services Warranty”). The Professional Services Warranty shall not apply if the Work Product is implemented, customized, modified, enhanced or altered by Customer or any third party that is not specifically retained by Company as a contractor for such purposes. Customer’s sole and exclusive remedy, and Company’s sole obligation, in the event of a breach of the Professional Services Warranty is for Company, at its expense, to re-perform the Professional Services which were not as warranted, provided Company has received notice from Customer within thirty (30) calendar days of the completion of the Professional Services that Customer alleges were not performed consistent with the Professional Services Warranty. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THIS SECTION 8.3 SETS FORTH COMPANY’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE PROFESSIONAL SERVICES WARRANTY.
   • EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8, COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED OR STATUTORY, AND COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. NO WARRANTY IS MADE BY COMPANY ON THE BASIS OF TRADE USAGE OR COURSE OF DEALING. COMPANY DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES, GODESKLESS SOLUTION, SOFTWARE APPLICATIONS OR ANY OTHER INFORMATION, MATERIALS, OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
9. LIMITATIONS OF LIABILITY
   • EXCEPT FOR DAMAGES ARISING OUT OF (I) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) A PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S IP RIGHTS, OR (iii) WHERE A CLAIM RESULTS FROM INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, OR COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF THE PARTY FROM WHOM SUCH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED.
   • EXCEPT FOR DAMAGES ARISING OUT OF (I) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) A PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S IP RIGHTS, OR (iii) WHERE A CLAIM RESULTS FROM INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NEVER EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY BEFORE ANY EVENT GIVING RISE TO A CLAIM BY THE OTHER PARTY HEREUNDER. EACH PARTY HEREBY RELEASES THE OTHER PARTY FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS IN EXCESS OF THIS LIMITATION.
   • Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
10. INDEMNIFICATION
    • By Company. Company shall indemnify, defend and hold harmless Customer from and against all losses, liabilities, damages, claims, costs and reasonable expenses (including reasonable attorneys’ fees) arising out of or related to a third party claim that Customer’s use of, or access to, the goDeskless Solution as used in compliance with this Agreement and its Documentation, infringes a United States copyright or trademark or misappropriates any third party trade secrets (an “Infringement Claim”). Upon the occurrence of any Infringement Claim for which indemnity is or may be due under this Section 10.1, or in the event that Company believes that such a claim is likely, Company will, at its option: (a) appropriately modify the goDeskless Solution to be non-infringing, or substitute functionally equivalent software or services; (b) obtain a license to the applicable third-party intellectual property rights; or (c) if the remedies set forth in clauses (a) and (b) above are not commercially feasible, as determined by Company in its sole discretion, Company may terminate this Agreement on written notice to Customer and refund any pre-paid fees for services that have not been provided. THE PROVISIONS OF THIS SECTION 10.1 STATES THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF COMPANY TO CUSTOMER, AND IS CUSTOMER’S SOLE REMEDY, WITH RESPECT TO ANY INFRINGEMENT CLAIM.
    • By Customer. Customer will defend at its own expense any claim or action against Company , or its Affiliates, or their respective officers, directors, employees or contractors (each a “Company Indemnified Party”) brought by a third party or governmental entity, and will indemnify and hold harmless each Company Indemnified Party from and against all costs (including reasonable attorneys’ fees) and damages incurred by such Company Indemnified Party in any such claim or action, to the extent that the action is based on: (a) allegations that the Customer Content, or Customer’s activities in connection with the Subscription Services hereunder, violate any applicable law or infringe or misappropriate the IP Rights of any third party; (b) Customer Data or a violation of  any applicable privacy law, rule or regulation by Customer; or (c) Authorized User claims.
    • Each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its officers, directors, shareholders, managers, employees, agents and Affiliates (each, an “Indemnified Party”) against any claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the grossly negligent or willful intentional acts or omissions of the Indemnifying Party, its employees or agents, while performing its obligations pursuant to this Agreement, which result in death, physical or bodily injury or tangible property damage.
    • Proceedings. The indemnity obligations under this Section 10 are conditional upon the Indemnified Party giving the Indemnifying Party (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as the Indemnifying Party may reasonably request, at the Indemnifying Party’s expense, in connection with such defense and/ or settlement. Notwithstanding the foregoing, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle any third-party claim against the Indemnified Party unless (i) such settlement completely and forever releases t the Indemnified Party with respect thereto or (ii) does not involve any financial obligation on the part of the Indemnified Party. In any action for which the Indemnifying Party provides defense on behalf of the Indemnified Party, the Indemnified Party may participate in such defense at its own expense by counsel of its choice.
11. TERM AND TERMINATION
    • Term of Agreement. This Agreement shall become effective upon the Effective Date hereof and shall continue in effect until it is earlier terminated in accordance with this Section 11.
    • Term of Purchased Subscriptions. Each Subscription Term shall be as specified in the applicable Order Form. Unless otherwise specified in the applicable Order Form, subscriptions to Subscription Services will automatically renew for additional periods equal to the expiring Subscription Term, unless either Party gives the other Party written notice of non-renewal at least sixty (60) days before the end of the expiring Subscription Term. The pricing for any automatic renewal term will be the same as that during the immediately prior Subscription Term unless Company has given Customer written notice of a price increase at least sixty (60) days before the end of the expiring Subscription Term, in which case the price increase will be effective upon renewal.
    • Term of Professional Services. Unless otherwise stated in the applicable SOW, the term of Professional Services shall last until performance thereunder is completed.
    • Termination on Expiration of Subscription Terms. Upon expiration or termination of any and all Subscription Terms executed under Agreement, either Party may terminate this Agreement by giving not less than thirty (30) days written notice to the other Party.
    • Termination for Breach. Either Party may terminate this Agreement, or any Order Form executed under this Agreement, in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party; specifically identifying the breach on which such notice of termination is based. The breaching Party will have a right to cure such breach within sixty (60) calendar days of receipt of such notice (ten (10) calendar days in the case of non-payment). The non-breaching Party may terminate this Agreement, or any Order Form executed under this Agreement, in the event that such cure is not made within such sixty (60)-day period (or ten (10)-day period in the case of non-payment).
    • Effect of Termination. Upon any termination of this Agreement, Customer shall immediately discontinue all use of the Subscription Services and promptly pay to Company all amounts due and payable under this Agreement. In addition, each Party shall: (a) immediately discontinue all use of the other Party’s Confidential Information; (b) at the option of the disclosing Party, either return or destroy all Confidential Information of the disclosing Party in its possession; and (c) delete the disclosing Party’s Confidential Information from its computer storage or any other media, except for archival copies which may be retained and shall be destroyed in accordance with the party’s Record retention policy. Any such retained copies shall remain subject to Section 6 (Confidentiality). Each Party will, on request from the disclosing Party, provide the disclosing Party with a written confirmation of compliance with this Section 11.6 signed by an officer.
    • Survival of Obligations. The provisions of Sections 3.3, 3.4, 4.6, 5, 6, 7 (not including 7.3(a)), 8.3, 8.4, 9, 10, 11.6, 11.7, and 12, as well as Customer’s obligations to pay any amounts due and outstanding hereunder, shall survive termination or expiration of this Agreement.
12. MISCELLANEOUS
    • Applicable Law; Venue and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its rules regarding conflicts of laws. The Parties further agree that the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The Parties agree that any and all causes of action between the Parties arising from or in relation to this Agreement shall be brought exclusively in the state and federal courts located within the state of California. Additionally, each of the Parties hereto hereby irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or related to this Agreement or the transactions contemplated hereby.
    • Order of Precedence. In the event of a conflict between this Agreement and any Order Form/SOW or other document referencing this Agreement that is executed by both Parties, the Order Form/SOW shall govern, except to the extent that the Agreement, or other executed document expressly states the intent of the Parties to supersede or change one or more provisions in the Order Form and clearly identifies the provision(s) to be superseded or changed. This Agreement, including each Order Form, SOW or other executed document, shall prevail over any different, conflicting, inconsistent or additional terms contained in any purchase order or like document issued by Customer.
    • Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Subscription Services. Without limiting the foregoing, (a) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports and (b) Customer shall not permit Authorized Users to access or use the Subscription Services in violation of any U.S. export embargo, prohibition, or restriction.
    • Force Majeure. Either Party shall be excused from performance of its obligations under this Agreement if such a failure to perform results from compliance with any requirement of applicable law, acts of god, flood, fire, strike, earthquake, embargo, terrorist attack, war, act of government, civil unrest, insurrection or riot, strike or other labor problem, or other causes beyond the reasonable control of such Party. Any delay resulting from any of such causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
    • Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person; (b) sent by registered mail, return receipt requested; or (c) sent overnight using an overnight air courier. Notices will be considered to have been given at the time of actual delivery if delivered in person, three (3) business days after posting if sent by mail, or one (1) day after delivery to an overnight air courier service. All such notices shall be sent to each Party at its address specified on the signature page of this Agreement, or addressed to such other address as that Party may have given by written notice in accordance with this provision.
    • Neither Party shall assign its rights or delegate its obligations under this Agreement without the other Party’s prior written consent, and, absent such consent, any purported assignment or delegation shall be null, void and of no effect. Notwithstanding the foregoing, either Party may assign this Agreement, without requiring such prior consent, in connection with a merger or sale of all or substantially all of its assets, provided that the assignee agrees in writing to assume the assignor’s obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit of Company and Customer and their successors and permitted assigns.
    • Company may refer to Customer and its success stories (and for this limited purpose, use and display Customer’s name and logo) in its marketing and promotional materials, provided Company complies with Customer’s guidelines, if any. Upon Customer’s prior written approval, Company may issue a press release announcing Customer’s selection of Company’s product and services and/or Customer’s successful deployment of the Company products and services.
    • Independent Contractors. The Parties are acting as independent contractors in making and performing this Agreement. The relationship arising from this Agreement does not constitute or create any partnership, joint venture, employment relationship or franchise between the Parties.
    • No Third-Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
    • Entire Agreement. This Agreement (together with all Order Forms, SOWs and exhibits) sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof. No changes in or additions to this Agreement will be recognized unless incorporated herein by written amendment and signed by duly authorized representatives of both Parties. This Agreement shall apply and supersede any pre-printed, additional or boilerplate terms and conditions of any form submitted by either Party. The waiver by either Party of a breach or violation of any provision of this Agreement will not operate as, or be construed to be, a waiver of any subsequent breach of the same or any other provision hereof. In the event any provision of this Agreement is held to be unenforceable for any reason, the unenforceability thereof will not affect the remainder of this Agreement, which will remain in full force and effect and enforceable in accordance with its terms. Headings in this Agreement shall not be used to interpret or construe its provisions.

[End of Terms]

APPENDIX A

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Aggregated Data” means, collectively, all statistical, analytical and other aggregated data collected, analyzed, and compiled by Company as part of its provision of the Services, and any information related to the use, provision of, monitoring and performance of the Subscription Services and related systems and technologies, but solely in an anonymous, aggregated and de-identified manner.

“Authorized Users” means individuals (including employees, agents and contractors) who are authorized by Customer to access and use the Subscription Services, and who have been supplied access credentials (user identifications and passwords) by Customer.

“Confidential Information” means any material, data or information relating to a Party’s software, inventions, processes, formulas, technologies, designs, drawings, research, development, products, product plans, services, customers, customer lists, Customer programs, resource information, markets, marketing plans, financial statements, or other business information, trade secrets or intellectual property that such disclosing Party treats as proprietary or confidential, and is marked as “confidential” or “proprietary” or that, given the circumstances, should be reasonably apparent that such information is of a confidential or proprietary nature. Without limiting the foregoing, (i) the goDeskless Solution and all IP Rights associated therewith shall constitute Confidential Information of Company, and (ii) Customer Data shall constitute Confidential Information of Customer.

“Configure” has the meaning set forth in Section 4.5.

“Customer Data” means any data, regardless of whether in printed or electronic form, that is (i) provided to Company by Customer in Order Form for Company to perform its obligations under this Agreement, (ii) otherwise obtained by Company for or on behalf of Customer in the course of performing services for Customer, (iii) provided to Company by Authorized Users; or (iv) derived from Customer’s use of the Subscription Services.

“Customer Content” means text, music, sound, images, video, graphics, logos, trademarks, software, and all other content provided by or on behalf of Customer to Company for Configuring the user interface of the goDeskless Solution for Customer, as described in the applicable SOW and this Agreement.

“Documentation” means the technical documentation provided by Company to Customer in connection with the Subscription Services, expressed in any medium or format, such as user manuals, product specifications, “read-me” files, and other documentation (including any application programming interfaces’ documentation to enable connectors of Customer’s systems with the goDeskless Solution).

“Effective Date” means the date this Agreement enters into force, which is the date of the latter signature in the first Order Form executed between Customer and Company.

“goDeskless Solution” means, collectively, Company’s proprietary software and software application(s) (mobile and desktop) that are made available to Customer and its Authorized Users as a subscription service (including as software-as-a-service or SaaS) under this Agreement. The goDeskless Solution includes all software, designs, formulas, algorithms, processes, programs, code and application programming interfaces, that are developed and/or owned by Company or its licensors, and that are used to provide the Subscription Services.

“IP Rights” means any and all intellectual property rights of any type, recognized in any country or jurisdiction throughout the world, now or hereafter existing, and whether or not perfected, filed, registered or recorded, including without limitation, all: (i) inventions, including patents, patent applications and statutory invention registrations or certificates of invention, and any divisions, continuations, renewals or re-issuances of any of the foregoing; (ii) trademarks, service marks, domain names, trade dress, logos, and other brand source distinctions; (iii) copyrights and works of authorship (including moral rights), and/or (iv) trade secrets and know-how; and all derivatives, improvements,  renewals and extensions thereof.

“Order Form” means one or more ordering documents for purchases of Subscription Services and/or Professional Services that are executed by Customer and Company from time to time under this Agreement. Order Forms are incorporated herein by reference.

“Professional Services” means, in each instance, the implementation, integration, Configuration (defined in Section 4.5), training, consulting or other professional services provided by Company pursuant to an Order Form or SOW under this Agreement.

“Statement of Work” or “SOW” “means one or more ordering documents for purchases of Professional Services that are executed by Customer and Company from time to time under this Agreement. Each SOW shall contain, at a minimum, the following information: (i) the scope of the Professional Services to be provided; (ii) responsibilities and dependencies of each Party; (iii) any applicable fees; (iv) agreed upon services, specific deliverables and Work Product, if any; and (v) signatures of authorized representatives of both Parties. By entering into an SOW hereunder, an Affiliate of Customer agrees to be bound by the terms of this Agreement as if it were an original party hereto. SOWs are incorporated herein by reference.

“Subscription Services” means any software applications and platform (either online, web-based, SaaS or installable), including the goDeskless Solution, as described in the applicable Documentation and provided by Company under subscriptions, that are ordered by Customer under an Order Form but excluding Professional Services.

“Subscription Term” means the period of time from the start date to the end date specified in each Order Form for each subscription purchased thereunder. Each renewal of a subscription, whether automatic or in writing, shall constitute a new Subscription Term.

“Work Product” means any expression of Company’s findings, developments, inventions, analyses, conclusions, opinions, recommendations, ideas, techniques, designs, programs, enhancements, modifications, interfaces, source code, object code and other technical information resulting from the performance of Professional Services, support services, or any other services performed by Company under a SOW.

APPENDIX B

1. Customer Support. Customer may contact goDeskless for support with an issue regarding the services via email at support@godeskless.com or telephone at (650) 910-5100
2. Upon the logging of a support ticket, goDeskless will assign each ticket to one of the categories in Table A-1 below depending on Company’s assessment of the severity of the Ticket.
3. Target Response Times. The times listed in Table A-1 below are target times for goDeskless to respond to or provide a Workaround for a Ticket. Note that Target Response and Workaround Times are to be considered within context of the Support Cover period within Customer’s selected Support Services package which is located on the Customer’s Order Form. goDeskless’s Support Service packages and respective Support Cover periods are as follows:
   • Gold Level Support: 7:00 a.m. – 7:00 p.m. CST, Monday through Friday
   • Platinum Level Support: 24 x 7, Monday through Friday

Ticket Categories: Target Response Times and Target Workaround Times

4. In the event that a Workaround is not provided within the Target Workaround Time, then the escalation timings listed in Table A-2 below shall apply. “Escalation” means goDeskless may escalate to a Support Manager and then a goDeskless Director or Executive member in relation to a Workaround.

Service Level Exceptions. goDeskless will endeavor to meet the targeted workaround times, but cannot be held accountable where the resolution of an incident is delayed due to factors beyond goDeskless’s reasonable control, including but not limited to: (I) circumstances beyond the reasonable control of goDeskless as provided in Section 12.4, (II) scheduled maintenance performed by goDeskless where Customer has been notified in advance, (III) the degraded performance or failure of Customer’s applications, equipment or internet connection, (IV) incorrect configuration information supplied by Customer to goDeskless; or (V) Customer’s systems not being configured in accordance with the “goDeskless Technical Prerequisites” found in the SOW.