Master Subscription Agreement

This SAAS Subscription Agreement, consisting of this Master Order Document, the attached General Terms and Conditions, and one or more Customer Orders (this “Agreement”) is made between Prodoscore, Inc. (the “SAAS Provider” or “Provider”) and the single business entity or organization identified as “Customer” in Addendum I/Customer Order (the “Customer Order”).

1. Services

Under this Agreement and each Customer Order, Provider agrees to make available to Customer, for Customer’s use for its own internal business purposes only, Software installed, operated and maintained by Provider using computer systems owned or operated by or for Provider, as such Software is described in the corresponding Customer Order (the “Software”). Provider’s services, including Customer’s access to and use of the Software, are referred to herein as the “Services.” This Agreement does not entitle Customer to receive, install, or execute any copy or version of the Software.

2.Account Information.

For the following customer information required, Provider will use the customer information that is completed in the order form.

  • Name of Customer
  • Customer’s Address
  • Name of Main Contact Person
  • Telephone No.
  • E-mail Address
  • MIS/IT
  • Support Desk
  • Accounts Payable
  • Billing address

3. Service Commencement Date.

The Service Commencement Date for the initial Customer Order will be indicated on the Order form.

 

4. Term of Service.

Unless otherwise stated in the pertinent Customer Order, the Initial Term of Service under each Customer Order begins on the Service Commencement Date and lasts for a period of three (3) years thereafter. Following expiration of the Initial Term, Term of Service will automatically renew for successive periods of one (1) year each unless and until either party gives the other party notice of non-renewal at least sixty (60) days prior to the next scheduled renewal date. Customer may elect Early Termination of the Services solely in accordance with Section 18 of the General Terms and Conditions.

5. Customer Order.

Each Customer Order contains: (a) a description of the Software for which the Services are provided; (b) communications and network interoperability requirements for Internet access; (c) required specifications for Customer’s on site computer system; (d) size or volume of use limitations, including any applicable limitations on authorized sites for use of the Services or number of authorized users; (e) installation and training procedures; (f) implementation schedule with target dates and division of responsibility; (g) fee schedule; and (h) support terms.

6. Customer Site and Communications Requirements.

Customer agrees to provide the necessary electric service, wiring, computer equipment, and communication line access (in accordance with UL standards) for access to the Service. Customer agrees to provide, install and maintain, at Customer’s expense, data communication lines therefor, all pursuant to minimum specifications prescribed by Provider from time to time. Customer shall be responsible for ongoing charges for Customer’s own use of such data communication lines.

7. Additional Customer Orders.

In addition to the initial Customer Order, the parties may enter into one or more additional Customer Orders, each of which provides a general description of the Software and Services to be provided to Customer. For any Customer Order to be effective, it must be in writing and signed or otherwise authenticated by Provider. Electronic and fax documents are considered to be in writing for this purpose. All terms and conditions set forth in this Agreement are automatically incorporated in, and deemed part of, each such Customer Order.

8. Order of Precedence.

If there is any conflict between the terms of a Customer Order and the terms of this Master Order Document or the General Terms and Conditions, then the terms of the Customer Order shall control. Each Customer Order, as supplemented by the terms of this Master Order Document and the General Terms and Conditions, constitutes an entire and separate agreement between the parties regarding the Services covered by that Customer Order, unless otherwise provided in the Customer Order, supersedes any other prior oral or written understandings and agreements of the parties regarding the Services covered by that Customer Order. Any provisions contained in Customer’s own purchase order forms, such as preprinted terms and conditions typically found on their reverse side, shall not apply and are superseded in their entirety by the provisions of this Agreement, including the applicable Customer Order.

9. Changes to Services.

Provider reserves the right to upgrade, modify, replace or reconfigure the Software at any time, provided that Customer will be provided at least thirty (30) days’ advance notice for changes that significantly affect use of the Software. Provider may also change the fee schedule, support terms, and service level agreements for the Service subject to at least thirty (30) days’ advance notice. Any such notice may be given and shall be effective if posted by Provider in the “Customer Alert” section of Provider’s Web site (https://www.prodoscore.com/), or if provided in an e-mail sent to Customer’s account representative, or if included in any amendment, extension or new version of this Agreement. After such notice is given, Customer shall have the right to terminate this Agreement and the Services if Customer declines to accept the change, and otherwise the change shall be considered approved and agreed upon in consideration of Provider’s continued rendering of the Services.

GENERAL TERMS AND CONDITIONS

Prodoscore is controlled, operated and administered by Prodoscore primarily from its offices within the USA. Prodoscore makes no representation that materials at Prodoscore are appropriate or available for use at other locations outside of USA and access to them from territories where their contents are illegal is prohibited. Customer may not use Prodoscore or export the Service in violation of USA export laws and regulations. If Customer accesses the Applciation from locations outside of USA, Customer is responsible for compliance with all local laws.

1. Services.

(a) Pursuant to the Services, Provider agrees to grant Customer access to and use of the Software via Internet facilities. The Services and Software may be used by Customer only in the United States and only for Customer’s internal business requirements in relation to the processing, retrieval, and transmission of transaction data collected from the Customer. Customer may allow majority-owned subsidiaries engaged in the same business enterprise as Customer to participate in using the Software, provided that the terms and conditions of this Agreement are at all times met.

(b) To the extent a Customer Order, including any related Fee Schedule, limits use of the Services, or prescribes fees for the Services, in relation to authorized sites for use of the Services, or a number of authorized users, Customer’s use of the Services and Customer’s permission to access and use corresponding Software are for those authorized sites and/or authorized users only. If size or volume of use limits specified in the Customer Order are exceeded, Customer shall be subject to Provider’s standard charges for the additional usage.

(c) Customer may print and distribute output and reports produced using the Services in connection with the normal use of the Services. Such reports must contain the proprietary notice(s) designated by Provider from time to time.

(d) If information is provided or made accessible by Provider as part of the Services, Customer may use such information only as permitted by the terms of Services. Such information shall be subject to such restrictions as the original provider of such information may impose.

(e) The Service may include hyperlinks to external Web sites which are not under the control of Provider. Provider assumes no responsibility for the views, content or accuracy of information contained in such Web sites and the appearance of such hyperlinks does not constitute endorsement or sponsorship of, nor affiliation with, the owners of such Web sites or the information, products, services, and trademarks contained therein.

(f) Throughout the Term of this Agreement and each Customer Order, Customer is subject to the minimum monthly service volume commitment shown in each Customer Order. Charges for each month will not be less than the fees for the minimum monthly service volume in that month. Unused minimum service volumes may not be credited to prior or future months of service.

(g) The communications and network interoperability requirements for Internet access that Customer is required to acquire and maintain are as described under “Internet connection” in the Customer Order.

(h) If third party software or data is included in or with the Service or the Software, such software or data are provided subject to the terms and limitations of the third party vendor, licensor, or contractor.

(i) Unless otherwise stated in the initial Customer Order, the deployment of the Software is in a standard format. If Provider is requested to provide custom modification, consulting, system integration or other services, the terms for such services shall be provided in an additional Customer Order.

2.Customer Responsibilities

Customer has sole responsibility for the following actions:

(a) Supervising the use of the Services in its organization;

(b) Determining whether the Services will achieve the results Customer desires;

(c) Assuring proper machine configuration, program installation, operating system release level, audit controls and operating methods, including an uninterrupted power supply;

(d) Establishing adequate backup plans based on independent alternate procedures, and/or based on access to qualified programming personnel to diagnose, patch, and repair the defects in the event of any malfunctions;

(e) Selecting and training Customer’s personnel so they can operate computers and so they are familiar with the accounts and records that serve as input and output for the Services;

(f) Implementing sufficient procedure and checkpoints to satisfy Customer’s requirements for security and accuracy of input and output, as well as restart and recovery in the event of a malfunction or loss of data;

(g) Reviewing and selecting the parameter settings and programming features and options with the Services in order to comply with legislation applicable to Customer’s business and its use of the Services;

(h) Monitoring and interpreting any legislation applicable to Customer’s business and its use of the Services in the conduct of such business; and

(i) Supervising Authorized Personnel to ensure that, in connection with their use of the Services, they abide by and comply with all applicable provisions of federal and state laws, rules and regulations. 

Provider reserves the right to charge additional service fees if a Customer operator seeks assistance with respect to the foregoing information. Provider does not hold itself out as a professional advisor regarding Customer’s computer or information needs.

3. Authorized Personnel.

(a) Customer agrees to maintain a list of all Customer’s personnel who are authorized to access the Services (the “Authorized Personnel”). Customer agrees to make such list available to Provider promptly upon Provider’s request.

(b) Customer agrees to familiarize all Authorized Personnel with Customer’s obligations under this Agreement as the obligations affect such Authorized Personnel. For purposes of this Agreement, any actions or omissions by Authorized Personnel shall be considered actions and omissions of Customer, and references to Customer include to that extent all Authorized Personnel (whether or not such persons are or continue to be Customer employees).

(c) Provider shall have the right to request, for good cause, removal of any individuals from Customer’s list of Authorized Personnel and the immediate suspension of their access to the Services. Customer agrees when so requested by Provider to remove such individuals promptly and suspend their use of the Services and access to the Services. For this purpose, “good cause” means any good faith decision by Provider that removal or suspension of use is warranted for legal or regulatory reasons, including because of investigation of suspicious activities, or action by authorities, or if Provider has reason to suspect any of such Authorized Personnel are engaged in activities that may violate the terms of this Agreement, applicable laws, or industry policies and practices, or are otherwise deemed harmful to Provider, its network, or Provider’s other customers. In any such case, Provider shall have the right, in its good faith discretion, to prohibit use of or access to the Services by said individuals.

(d) Identification codes and/or passwords are required for access to the Services for security purposes. Customer agrees to keep confidential any identification code and/or password required to access the Services, and Customer agrees to restrict access to such identification codes and passwords to Authorized Personnel. Customer agrees to notify Provider immediately if Customer has reason to believe that unauthorized persons have obtained access to such identification codes or passwords.

(e) Customer agrees not to permit any persons other than Customer’s currently listed Authorized Personnel to access the Services or to enter, transmit or process transactions directly or indirectly into Provider’s service network or using the Services. Customer agrees to bear full financial responsibility for all transactions entered, transmitted or processed by Customer personnel, whether or not they are listed as Authorized Personnel, as well as by any other person or entity gaining access to Provider’s service network via Customer’s business operations, connections, or premises.

4. Hosting.

(a) Installation and training procedures are as described in the Customer Order.

5. Installation.

Provider will:

(a) Provide all equipment, software and services necessary for operation and maintenance of its host computer systems. Provider reserves the right to change the configuration of its systems and change or delete equipment or software at any time.

(b) Provide bandwidth for web communication to Customer and its web users. Customer is responsible for separately obtaining an ISP account with a PPTP Internet connection for communicating to Provider’s server.

(c) Provide information as requested regarding server capacity and network bandwidth, including reports Customer may request showing saturation levels, number of hits, etc. Performance benchmarks, as changed from time to time, will be reasonable and appropriate.

(d) Provide information regarding suggested data back-up procedures, security, and other functions as reasonably requested by Customer.

6. Customer Utilities

To enable Customer to receive and use the Services, Provider grants Customer, and Customer accepts, a non-exclusive, non-transferable, license to install, store, operate and use the object code version of the current release of the Customer utilities, including program routines or database features that may be provided by Provider (the “Customer Utilities Package”). The Customer Utilities Package is for Customer’s use solely in connection with the Services. Customer is responsible for installation of the Customer Utilities. The Customer Utilities Package may be installed, stored, operated and used only on approved equipment. The equipment will be identified by model, number and location in pertinent schedules to the Customer Orders.

7. Provider Contingency Planning

Provider maintains, and will continue to maintain throughout the Term of the Services, a disaster recovery plan and business continuity plan (the “Contingency Plan”) that is designed to enable Provider to recover from a disaster or major system failure and continue providing Services to customers, including Customer, within the recovery time objectives set forth in the Contingency Plan. An executive summary or comprehensive description of the current Plans, which may change from time to time, shall be provided to Customer at its request. Provider will test the operation and effectiveness of the Contingency Plan at least annually. On each anniversary date of the Service Commencement Date, Customer shall have the right to review Consultant’s then current Plans.

8. Restrictions.

(a) Except as expressly permitted above, Customer agrees not to sublicense, license, rent, sell, loan, give or otherwise distribute all or any part of the Services or Software to any third party.

(b) Customer agrees not to reverse engineer, disassemble, decompile, modify, or alter the Software or any copy thereof, in whole or in part.

(c) If Customer is merged, consolidated or sold, or if Customer sells or transfers all or substantially all of its assets relating to the use of the Software, Customer shall have the right to transfer its rights and obligations under this Agreement to the surviving or buying entity, provided that Customer shall not be relieved of its obligations hereunder, the successor must assume the terms and conditions of this Agreement in a manner acceptable to Provider, and the scope of use of the Software may not be not substantially altered.

(d) Customer will reproduce such notices of Provider’s rights on any copies of user documentation created by Customer. Customer shall not alter, remove or conceal any copyright, trade secret or other proprietary rights notices that may appear on or within the Customer Software or related documentation.

9.Data Requirements.

Customer agrees to provide Provider for use in connection with the Services all data, information, documents, and other records necessary for Provider to provide the Services. Provider may accept as correct, accurate and reliable, without any further inquiry, all information, data, documents and other records delivered, supplied or made available to Provider by Customer, its Authorized Personnel, and affiliates, or any other persons accessing Provider’s service network using Customer’s connections. Provider shall have no responsibility or liability for any error, inadequacy, delay, omission, or other failure which results from inaccurate or incomplete information, data, documents or other records provided to Provider by the foregoing. CUSTOMER IS RESPONSIBLE FOR PROPER BACK-UP OF ALL INFORMATION AND MATERIALS THAT CUSTOMER ORIGINATES OR RECEIVES SO CUSTOMER HAS READY ACCESS THERETO IN THE EVENT OF LOSS, CORRUPTION OR INTERRUPTION. In the event of any loss, error or omission caused by the Services, Provider’s sole obligation shall be to re-perform the Services upon Customer’s request using service request instructions and information provided by Customer.

10. Security.

(a) Provider will comply with the security procedures described in Attachment 1 with respect to Provider’s hosting of the Services.

(b) Provider does not guarantee the security of any information transmitted to or from the parties over the Internet, including through the use of e-mail. Access to the Internet, if employed, is Customer’s sole responsibility and the responsibility of Internet providers Customer selects. Provider does not accept any responsibility for failure of service due to Internet facilities, including related telecommunications or equipment. Customer agrees to employ appropriate methods, including encryption and secure communication lines, to minimize the risk of unauthorized persons accessing Customer’s information through the Internet or communications lines. In the event of a security breach, Provider’s responsibility is limited to investigating the breach and taking reasonable steps to halt it.

11.Telephone Support.

Questions of Customer’s Authorized Personnel regarding use and support of the Services shall be directed first to Customer’s Support Desk. Customer’s Support Desk may obtain support from Provider as follows:

(a) Real-time technical assistance, in the form of telephone support, to Customer between the hours of 9 a.m. and 5 p.m. eastern standard time, Monday through Friday, excluding Provider published holidays (with additional access through the use of e-mail).

(b) System down Beeper service for use during emergencies occurring after hours is available seven (7) days a week, twenty-four (24) hours a day, three hundred sixty-five (365) days a year.

12. Service Level Agreemen.

See Attachment 1.

13.Fees.

(a) Customer shall pay the fees indicated on each Customer Order for the corresponding Services. Fees for Services will be fully earned and non-refundable when and as the Services are performed. Services requested but not described in a Customer Order will be charged to Customer at Provider’s standard rates.

(b) Unless otherwise stated in the applicable Customer Order, all amounts due shall be paid in U.S. Dollars within thirty (30) days after date of invoice.

(c) The Customer Order may require payment of expenses incurred by Provider. Communications, equipment usage, and similar expenses, if applicable, will be based on standard rates provided generally by Provider.

(d) Any payment not received by the date due shall bear interest from the date past due at the rate of one percent (1%) per month (prorated for partial periods) or the maximum rate permitted by applicable law, whichever is less.

(e) In the event that payment due to Provider is collected at law or through an attorney-at-law, or under advice therefrom, or through a collection agency, Customer agrees to pay all costs of collection, including, without limitation, all court costs, and reasonable attorney’s fees.

(f) As between Provider and Customer, Customer accepts sole responsibility for the payment of any taxes, charges, or assessments imposed on Customer, the Service, or the fees to be paid Provider by any foreign or domestic national, state, or local government bodies, or subdivisions thereof, and any penalties or interest (other than income taxes imposed on Provider’s revenue).

14. Warranty, Limitations, and Exclusions.

(a) Each party represents that it has validly entered into this Agreement and has the legal power to do so.

(b) The Services shall be provided in a good and workmanlike manner in accordance with Provider’s published standards. Customer’s exclusive remedy and Provider’s sole liability for any interruption or deficiency in the Services shall be as provided in the Service Level Agreement in Attachment 2.

(c) Provider does not warrant that the Services or the operation of the Software will be uninterrupted or error free or that it shall meet Customer’s needs. Customer is solely responsible for the accuracy and integrity of its own data, reports, documentation and security.

(d) Provider will hold Customer harmless from any damages or liabilities resulting from third-party claims that the Services as provided to Customer infringe U.S. patents, copyrights or similar intangible rights, provided that (i) Customer will promptly notify Provider of the matter, cooperate with Provider as requested, and permit Provider to control the investigation, defense and disposition of the same; and (ii) Provider is not responsible for any infringement resulting from the use or combination of the Services with any process, software or equipment of Customer or Customer’s other licensors, suppliers or contractors. This Section 14(c) constitutes Customer’s exclusive remedy and Provider’s sole liability for any claim or allegation that the Services infringe or violate U.S. patent, copyright or other intellectual property rights.

(e) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NO WARRANTY OR ASSURANCE, EXPRESS, IMPLIED, OR STATUTORY, IS GIVEN BY PROVIDER WITH RESPECT TO SOFTWARE, SERVICES OR ANY OTHER MATTER, INCLUDING, WITHOUT LIMITATION (AND PROVIDER SPECIFICALLY DISCLAIMS) ALL WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

15. Limitation of Liability.

(a) PROVIDER SHALL NOT BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS, OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION OR SECURITY, OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST CUSTOMER BY ANY OTHER PARTY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.

(b) PROVIDER’S CUMULATIVE LIABILITY UNDER ANY AND ALL CLAIMS MADE BY CUSTOMER SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES THERETOFORE PAID BY CUSTOMER TO PROVIDER RELATING TO THE AFFECTED SOFTWARE OR SERVICES.

(c) NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR OF (I) THE TERMINATION OR EXPIRATION OF THIS AGREEMENT OR (II) THE EVENT GIVING RISE TO SUCH CAUSE OF ACTION.

(d) THE LIMITATIONS IN SECTION 15(a)-(c) SHALL NOT APPLY TO PROVIDER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14(c).

16. Customer Indemnification.

CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS PROVIDER AND ITS AFFILIATES, AND ITS AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SUCCESSORS AND ASSIGNS, THIRD PARTY PROVIDERS, (COLLECTIVELY, THE “PROVIDER INDEMNIFIED PARTIES”), FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, CLAIMS, DAMAGES, DEFICIENCIES, LOSSES, COSTS AND EXPENSES, WHETHER DIRECT, INCIDENTAL, INDIRECT, CONSEQUENTIAL AND/OR SPECIAL IN NATURE, INCLUDING REASONABLE ATTORNEYS’ FEES AND OTHER EXPENSES INCURRED IN THE INVESTIGATION AND DEFENSE OF ANY CLAIM (AS HEREINAFTER DEFINED) (COLLECTIVELY, “COSTS”), BASED ON ANY CLAIM, DEMAND, PROCEEDING, SUIT AND/OR ACTION (COLLECTIVELY, A “CLAIM”) TO WHICH ANY PROVIDER INDEMNIFIED PARTY MAY BECOME SUBJECT RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES BY CUSTOMER, CUSTOMER’S AFFILIATES, OR CUSTOMER’S OR ITS AFFILIATES’ CUSTOMERS OR ACCOUNTS, EXCEPT TO THE EXTENT THAT ANY SUCH CLAIM DIRECTLY RESULTS FROM THE GROSS NEGLIGENCE OR FRAUD OF PROVIDER.

17. Customer Data.

(a) All data provided by Customer pertaining to its business, personnel, Customers or accounts processed by or stored in Provider’s systems shall be kept confidential by Provider, shall be used only to carry out this Agreement, and may not be disclosed to anyone except employees, agents, and contractors of Provider who have a “need to know” the same in order for the administration and performance of the Services. All such data shall be and remain the property of Customer. Provider may use such information, during and after the Term of this Agreement, for administrative, monitoring, investigative, and back-up purposes and in an anonymous or redacted format for planning and analysis. Provider shall provide Customer with additional assurances or evidence of compliance regarding the confidentiality of such matters as Customer considers necessary or appropriate to comply with applicable laws and regulations, audit inquiries, or privacy policies Customer may adopt in the future.

(b) Subject to Sections 2, 9, and 10 hereof, Provider shall exercise reasonable care for the protection of such data and shall maintain reasonable data integrity safeguards against the deletion or alteration of such data.

(c) When and as requested by Customer, Provider shall return to Customer all of Customer’s information, data, and files in such form as Customer may reasonably request. Provider may charge Customer its standard rates for such services, including expenses incurred to provide such services.

(d) If following termination of this Agreement or an applicable Customer Order, Provider for any reason retains Customer’s information, data, and files, or provides Customer full or limited access thereto or to the Services, Provider may charge Customer its standard rates for such services, including expenses incurred to provide such services.

(e)  Provider may disclose such data to the extent compelled by law to do so, provided that the Provider gives prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Customer’s cost, if the Customer wishes to contest the disclosure. If the Provider is compelled by law to disclose such data as part of a civil proceeding to which the Customer is a party, and the Customer is not contesting the disclosure, the Customer will reimburse the Provider for its reasonable cost of compiling and providing secure access to that data.  

18. Termination.

(a) Provider, at its option, may terminate the Services and/or Customer’s access privileges if Customer commits a material breach of this Agreement and fails to cure the breach as quickly as Provider reasonably requires.

(b) Customer may elect to terminate the Services prior to the expiration of the Initial or Renewal Term then in effect, provided that Customer will give Provider at least sixty (60) days’ advance notice of the termination, and for the period of time remaining in the Initial or Renewal Term then in effect following such termination, Customer shall be responsible for payment of an early termination fee, due at the time of termination, equal to the sum of the charges for the minimum monthly service volume specified for the Services times the number of months remaining in the Initial or Renewal Term then in effect times a percentage, determined as follows:

(1) If, as a result of a change in Customer’s business operations, any substantial part of Customer’s relevant service requirements are eliminated due to Customer “outsourcing” any substantial part of the corresponding business functions, and the provider of said outsource services provides software and services to conduct such business functions, then Customer may terminate the Services used for such functions. In such a case, Customer’s early termination notice must describe, in reasonable detail, the outsourcing arrangement, and state the date on which the outsourcing becomes operational. In such a case, the percentage used to determine the termination fee is thirty percent (30%).

(2) If Customer’s business operations are closed or substantially curtailed and not replaced with other comparable operations having comparable business functions, then Customer terminate the Services used for such functions. In such a case, Customer’s early termination notice must describe, in reasonable detail, the nature of the business closure, and state the date on which the closure will occur. In such a case, the percentage used to determine the termination fee is thirty percent (30%).

(3) In all other cases, the percentage used to determine the termination fee is fifty percent (50%). 

The early termination charge in each case cancellation fee represents agreed-to liquidated damages and not a penalty.

(c) Upon termination of this Agreement, regardless of the reason, Customer shall immediately cease use of the Software, remove the Software from Customer’s computers, and follow Provider’s instructions for the return or destruction of all remaining copies of the Software and related documentation. Customer agrees to certify its compliance with the foregoing requirement upon Provider’s request.

19. Intellectual Property.

(a) Customer acknowledges and agrees that Provider technology and data associated with the Services, the design, format and processing of the Services, the database, programs, protocols, displays, and manuals relating to services network (including any modification, addition, or improvement thereto), and Provider’s name and logos are owned by Provider and protected as Provider’s intellectual property. During the Term of this Agreement and any Customer Order, Customer agrees not to challenge Provider’s ownership and rights in any such intellectual property. Customer agrees to keep the foregoing information and features confidential through reasonable security precautions, to use and disclose the same only as necessary for Customer’s internal use of the Services, and not to make any copies thereof except as necessary to conduct the Services.

(b) Customer acknowledges that the confidential information protected hereunder is of significant importance to Provider and that, in the event of the unauthorized use or disclosure of such confidential information, Provider may not be adequately or reasonably compensated for the loss through damages available in an action at law. Customer therefore agrees that in the event of any such unauthorized use disclosure, Provider shall be entitled to obtain injunctive and other equitable relief to enforce these requirements and prevent further violation, and Customer agrees to waive any obligation that bond be posted by Provider in connection with such relief. Resort to such equitable relief shall not be construed, however, to be a waiver of any other rights or remedies that Provider may have for the same or any other violation of its intellectual property rights.

(c) Customer may not use the “Prodoscore” mark or logo, or any other mark or brand of Provider, in publicity, advertising, or external broadcasts or distributions, without the prior written consent of Provider.

(d) Customer grants Provider and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Provider applications and program code created by or for Customer using a Service or for use by Customer with the Services, and customer data, each as appropriate for Provider to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-Provider application with a Service, Customer grants Provider permission to allow the Non-Provider application and its provider to access Customer data and information about Customer’s usage of the Non-Provider application as appropriate for the interoperation of that Non-Provider application with the Service. Subject to the limited licenses granted herein, Provider acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer data, Non-Provider application or such program code.  

(e) Customer grants to Provider a worldwide, perpetual, irrevocable, royalty- free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its users relating to the operation of Provider’s service.

20. Electronic Orders and Communications.

For purposes of this Agreement, Customer may provide Provider with orders, communications and contract-related documentation in written or electronic form as signed or otherwise authenticated by Customer (signed, electronically-validated, or submitted through a secure electronic network). For this purpose, a facsimile, photocopy, electronic image, or print-out of the written or electronic document will be considered equivalent to an original writing, and compliance with submission requirements of the applicable Service, or any other intentional identification, will qualify as a signature. To that extent, and subject to the requirements of the applicable Service, any such document may be delivered in person or by mail, courier, facsimile, e-mail, Internet communications, EDI, electronic transmission, or other intermediary as selected by the initiating party or as mutually agreed upon by the parties.

21. Force Majeure.

Neither party hereunder shall be liable for any delay or failure to perform its obligations hereunder so long as that delay or failure is the result of an event beyond its reasonable control, including but not limited to, governmental acts, work stoppages, fire, civil disobedience, riots, terrorist acts, rebellions, accidents, explosions, interruptions or imperfections in telephonic service, communications line or equipment failures, satellite malfunctions, electrical disturbances, brown-outs or black-outs, floods, storms, earthquakes, acts of God and similar occurrences, provided that such party uses commercially reasonable efforts to fulfill its obligations under this Agreement. Notwithstanding the foregoing, no adjustment is allowed to Customer’s payment obligations or Customer’s obligations respecting the minimum volume monthly service commitments except as provided in the Service Level Agreement provided in Attachment 2.

22. Audit.

In addition to administrative functions and monitoring available to Provider through the Service Provider shall have the right to audit Customer’s use of the Services and compliance with this Agreement at any time, subject to at least seven (7) days’ advance notice. Customer agrees to provide Provider reasonable escorted access to Customer’s premises, access to and copies or extracts of relevant books and records, upon Provider’s reasonable request in connection with the audit. If the audit uncovers any excess use of the Services by Customer or its affiliates, including any underpayment or other non-compliance, Customer shall promptly rectify its non-compliance and pay Provider at Provider’s standard rates for the excess use of the Services.

23. Miscellaneous

(a) Provider may refer to Customer in advertising or publicity only in accordance with Customer’s requirements.

(b) No failure or delay of either party to exercise any rights or remedies under this Agreement or any Customer Order shall operate as a waiver thereof, nor shall any single or partial exercise of any rights or remedies preclude any further or other exercise of the same or any other rights or remedies, nor shall any waiver of any rights or remedies with respect to any circumstances be construed as a waiver thereof with respect to any other circumstances.

(c) If any provisions of this Agreement or any Customer Order is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement and such Customer Order, and the application of such provisions in any other circumstances, and in any other jurisdiction, shall not be affected thereby.

(d) The terms and conditions of this Agreement, as applied to and incorporated in each separate Customer Order, shall be construed to be a separate contract for each separate Customer Order.

(e) Invoices, purchase orders, acknowledgments, confirmations and other communications submitted by Customer shall not be considered part of any Customer Order or this Agreement unless signed and approved by an authorized representative of Provider clearly indicating the Customer Order in which it is incorporated. In the event of any conflict between this Agreement and a Customer Order, the terms of this Agreement shall control unless the conflict is expressly noted in the applicable Customer Order and the Customer Order provides to the contrary.

(f) This Agreement may not be transferred or assigned by Customer without the prior written consent of Provider and updating or replacing applicable documentation to Provider’s satisfaction. Subject to such consent, this Agreement, and all the terms hereof, will be binding upon Customer’s successors and permitted assignees. Provider may transfer or assign its right to operate the Network and/or this Agreement to an affiliate upon notice to Customer. Notwithstanding anything to the contrary contained in the foregoing, Provider may assign this Agreement in its entirety and/or its right to operate the Network, without notice to or the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its equity or assets.  Provider reserves the right to subcontract responsibility for the Network, provided that Provider retains final responsibility and authority for its obligations under this Agreement. This Agreement is intended for the sole benefit of the named parties; no other person or entity, including the parties’ respective affiliates, customers and accounts, shall be entitled to claim the benefit of this Agreement, enforce the terms of this Agreement, or claim damage as a result of the performance or non-performance of this Agreement. Nothing in this Agreement shall render or be construed to constitute either party, its officers, directors, representatives, customers or affiliates, as the employee, partner or agent acting for or on behalf of the other party.

(g) This Agreement and each Customer Order shall be governed by and construed and enforced in accordance with the laws of the State of California, excluding its principles of conflicts of law.

(h) This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and both of which together shall constitute one and the same instrument. 

 

 

 

 

SERVICE LEVEL AGREEMENT

I. Definitions.

Latency:

Latency means the period of time between the receipt of an electronic command or request by Provider’s systems and transmission of a response by such systems. 

Mean Time to Repair (MTTR):

MTTR is the period of time commencing with the date and time the Service Outage is deemed to commence, as separately provided herein, and ending on the date and time that Service is restored. Provider agrees to notify Customer of restoration of Service, whereupon Customer has forty-eight (48) hours to confirm that service has been restored. 

Service Availability:

Service Availability is the total number of minutes in a calendar month during which Service is available for use by Customer, divided by the total number of minutes in that calendar month. “Available” means Provider’s systems and data transmission are fully operational and able to receive, process, store and transmit Customer’s data accurately. 

Service Installation Period:

The span of time commencing on the date Provider accepts a completed Customer order for activation of a User Account and ending on the date Provider activates the Service for the named Users so that the Service is Available for Customer Use. 

Service Outage:

An unscheduled period of time when service is unavailable for use by Customer. A Service Outage is defined as a cumulative sixty (60) or more seconds of service unavailability within a fifteen (15)-minute period measured by Provider; or in Customer’s determination the Service is unusable and a Priority 1 trouble ticket (or an equivalent Master Trouble Ticket) has been opened. 

Trouble Ticket:

The result of reporting by Customer to Provider of a perceived Service Outage.

II. Qualifications:

To be eligible to receive an SLA credit for a Service Outage, Customer must: (i) initiate a Trouble Ticket within four hours (in regular business hours) of first learning the Service Outage; and, (ii) make a request for SLA credit to Provider during the monthly performance review meeting. Customer’s Provider Account Team will review available reporting and Trouble Tickets with Customer on a monthly basis to determine if the Service was within Service delivery commitment metrics. Customer will then have the opportunity to verify reporting information. Customer will verify in writing its agreement with the reporting information and authorize the Account Team to process the applicable credit. If Customer believes that Provider has not accurately reported SLA compliance, Customer must advise its Provider Account Manager of the disputed issues in writing within one-hundred twenty (120) days from the date of the service review.

III. Performance Standatds:

 

  Service Availability 99.999%
  Mean Time to Repair (MTTR) 4 hours
  Latency 30 seconds

1. Service Availability:

The number of minutes that a service is available to Customer for use during a calendar month. To calculate the percentage of Availability, or the time during which Service was available to Customer, determine the total number of minutes the Service was available to Customer during a calendar month, divide that amount by the total number of minutes in the calendar month, and multiply the quotient by 100.

  Example:
  
  (Total number of minutes in a  

calendar month of service availability

x 100
  Total number of minutes in the calendar month)

An SLA credit will not be given for an Outage:

  • If a Trouble Ticket was not timely opened and a written credit request was not timely made by Customer; or
  • Resulting from any of the occurrences specified in Section V–Exclusions. 

Customer will receive a credit equal to the pro-rated charge for monthly service based on the Monthly Recurring Charge for the total number of User Accounts affected by the Outage.

2. Mean Time to Repair (MTTR):

The period of time commencing with the date and time the Service Outage is deemed to commence, as separately provided herein, and ending on the date and time of service restoration (i.e., close of a Trouble Ticket). Notwithstanding the foregoing, if Customer uses the Customer Portal to open a Trouble Ticket and provides router logs showing the actual time of the outage, Provider will, for purposes of calculating SLA credits, revise the Trouble Ticket’s time of service interruption commencement to match the actual time of service interruption up to a maximum of thirty (30) minutes prior to the time the Trouble Ticket was opened.

MTTR is calculated as the average time to repair a Service Outage affecting service. The length of each Service Outage is totaled at the end of each calendar month and divided by the corresponding number of Service Outages as reflected in Trouble Tickets opened for that calendar month.

3. Latency SLA:

To measure the delay a signal is sent to Provider’s system, the required action is performed, and the returned signal measured at the sending end:

IV. Credits and Remedies.

Credits.

For any calendar month in which Provider fails to meet or exceed any Performance Standard other than the Service Installation SLA or the Latency SLA, a credit will be applied to the net Monthly Recurring Charges (MRCs) for Customer’s non-compliant Service.

  • For a one month SLA failure, Provider will provide a credit equal to % of the monthly recurring fee for the affected Service, after application of all discounts.
  • For an SLA failure of two consecutive months, Provider will provide a credit equal to % of the monthly recurring fee for the affected Service, after application of all discounts, for the second month.
  • For an SLA failure of three consecutive months, Provider will provide a credit equal to % of the monthly recurring fee for the affected Service, after application of all discounts, for the third month and each consecutive month thereafter that Customer remains subscribed to the affected Service and Provider fails to satisfy the SLA.
  • For an SLA failure of three or more months within a twelve (12) month period, Provider shall use commercially reasonable efforts to investigate and correct the problem according to the Performance Improvement Plan highlighted below, which may include provisioning of a new Provider circuit at contract rates. 

Performance Improvement Plan.

A recurring service issue is defined as a “Chronic Outage” when 8 or more Trouble Tickets are opened on the same service element within a 60 day period. Once identified, a chronic Trouble ticket is opened to address the issue in a manner designed to determine its root cause. This activity may involve extensive testing, review by a second level support group, and other actions deemed appropriate to ensure isolation and resolution.

V. Exclusions .

  • Scheduled service maintenance provided that Provider has notified Customer 24 hours in advance of such maintenance and Customer has not requested that such maintenance be rescheduled;
  • Force majeure events;
  • Services Outages attributable to: Customer premises equipment, software or communications (CPE); or any third party equipment other than equipment procured or operated by Provider to carry out the Services;
  • Delays or interruptions in Internet service; or
  • Any act or omission on the part of Customer, its contractors, agents or Providers, except where such refusal is due to Provider’s failure to comply with Customer’s reasonable security policies.