1. CONTRACT STRUCTURE & ORDER-OF-PRECEDENCE
This Ility Master Subscription Agreement (“Agreement”) is entered into between Ility, Inc. (“Ility”) and the customer (“Customer”) identified on the first order document signed by both Parties referencing this Agreement (“Order Form”), effective
as of the effective date identified in that Order Form (“Effective Date”). Capitalized terms in this Agreement are defined in Section 17 (Definitions) and elsewhere in this Agreement. This Agreement and all Order Forms govern Customer’s access
to and use of Ility’s Service, and SOW govern any Professional Services Ility provides to Customer. Customer and Ility may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.” In the event of any conflicts
between this Agreement, any Order Form, and/or any SOW, the following order-of-precedence applies: SOW take precedence and prevail over Order Forms solely with respect to the subject matter of SOW; and Order Forms and SOW take precedence and
prevail over this Agreement solely with respect to their respective subject matter.
THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN ILITY AND CUSTOMER. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT,” OR ACCESSING OR USING ANY ILITY SERVICE.
BY SIGNING AN ORDER FORM, OR ACCESSING OR USING ANY ILITY SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT, AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING
ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, ILITY’S OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY ILITY SERVICE IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT AND CONDITIONED
ON CUSTOMER’S CONSENT TO THIS AGREEMENT.
2. OWNERSHIP OF SERVICE & CUSTOMER DATA
2.1 Ownership of the Service. The Service is the property of Ility, and is protected by copyright, patent, trade secret and other intellectual property laws. Ility and its licensors retain any and all rights, title and interest in and to the Service
(including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Customer’s right to use the Service is limited to the rights expressly granted in this Agreement
and the applicable Order Form(s). All rights not expressly granted to Customer are reserved and retained by Ility and its licensors.
2.2 Ownership of Customer Data. As between Customer and Ility, (a) all Customer Data is the property of Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications,
extensions and derivative works thereof.
3. GRANT OF RIGHTS
Subject to the terms and conditions of this Agreement, Ility hereby grants to Customer the non-exclusive, non-transferable (except as specified in Section 16.2 (Assignment)), worldwide, royalty-free right to access and use the Service during the
Service Term in accordance with the terms of this Agreement and all applicable Order Form(s) and SOW (e.g., any usage volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services
set forth therein).
4. CUSTOMER RESPONSIBILITIES
4.1 Customer Responsible for User Accounts. Customer is responsible for all activity occurring under Customer’s User accounts (except to the extent any such activity is caused by Ility), and for complying with all laws and regulations applicable
to Customer’s use of the Service. Customer also must (a) notify Ility promptly upon becoming aware of any unauthorized use of any Customer password or account (or any other breach of security of the Service), and (b) notify Ility promptly
upon becoming aware of, and make a reasonable effort to stop, any unauthorized copying, distribution or other misuse of any aspect of the Service, and (c) particularly with respect to RevPro, input accurate and complete Transaction records
into the Service in the established standard format and in accordance with the specifications set forth in the documentation therefor.
4.2 Use Restrictions. Customer must not, without Ility’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access
to, any element of the Service, except to the extent expressly permitted by this Agreement (Customer may allow its own customers to access the functionality or output of the Service via interfaces, portal applications and the like, solely
for Customer’s internal business purposes in accordance with the applicable Order Form; (b) creation of any modifications or derivative works of the Service; (c) reverse engineering of the Service; (d) gaining of unauthorized access to the
Service or its related systems or networks (for example, by impersonation of another user of the Service or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Service or the
data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights;
or (g) sending, storing or use of any infringing, obscene, threatening, libelous or otherwise unlawful or tortious material in connection with the Service (including, without limitation, any illegal spam, or any material that is harmful to
children or violates any third party privacy rights). Customer also must use reasonable security measures to access the Service, and must not knowingly send, store or use any material containing any viruses, worms, Trojan horses or other malicious
or harmful computer code, files, scripts, agents or programs in connection with the Service. Ility also reserves the right to take all steps reasonably necessary to protect the security, integrity or availability of the Service (e.g., by temporarily
suspending access by anyone who introduces malicious code or attempts to do so), notwithstanding anything to the contrary in this Agreement.
4.3 Customer PCI Responsibilities. If Customer or its third party service provider processes any credit card information using the Service, Customer (and/or such service provider, as applicable) will: (a) comply with their responsibilities under
the Payment Card Industry Data Security Standard (“PCI DSS”); (b) implement and maintain reasonable security measures to protect all cardholder data in their possession or control; and (c) not take any action in connection with using the Service
that places Ility in non-compliance with the PCI DSS (for example, storing any cardholder data in any custom fields of the Service).
5. PRIVACY, SECURITY, CUSTOMER DATA, CONTINUITY & SUPPORT
5.1 Compliance with Privacy Laws. Ility and Customer will at all times comply with all Privacy Laws. Ility will only use Customer Data in the manner permitted by this Agreement and all Privacy Laws; provided, however, that:
a. Customer hereby authorizes Ility and its Affiliates to use Customer Data solely to provide the Service to Customer and otherwise meet Ility’s obligations under this Agreement, including engaging subprocessors and contractors to provide the
Service to Customer in accordance with this Agreement (Ility remains liable for such Affiliates’, subprocessors’ and contractors’ compliance with this Agreement);
b. Customer hereby warrants that, to the extent required by Privacy Laws applicable to Ility’s provision of the Service to Customer and the parties’ respective obligations under this Agreement, Customer has provided all proper notices under Privacy
Laws and obtained from its personnel, customers and all legally-required third parties all rights and permissions legally required in order to grant the authorizations in Section 5.1(a) and to use the Service in the manner contemplated by
this Agreement.
Notwithstanding anything to the contrary in this Agreement, if (i) complying with any Privacy Laws would materially change Ility’s costs or risks in providing the Service (including, without limitation, by requiring that any Ility data centers
be located outside the U.S., or requiring Ility to operate in violation of any U.S. laws), and (ii) after the Parties’ respective legal counsel meet to discuss the problem, Ility provides written notice that it does not wish to incur such
costs or risks, then each Party will have the right to terminate this Agreement (including all Order Forms and SOW) in writing within thirty (30) days after Ility provides such written notice – in which case the termination will be effective
thirty (30) days thereafter. In the event of such a termination, Customer’s sole right and Ility’s sole obligation (except to the extent otherwise expressly stated in this Agreement) will be for Ility to promptly refund to Customer, on a pro
rata basis, any Fees paid under all Order Forms and SOW then in effect that are unused as of the termination effective date.
5.1.1 Unless otherwise mutually agreed to in writing by the Parties, Customer’s Tenant(s) will be hosted in Ility’s US and/or European Union Data Center(s). Customer’s Tenant(s) may be accessed remotely for support and technical operations purposes
from outside of the US and EU.
5.2 Security of the Service, and PCI DSS Compliance. Throughout the term of this Agreement, Ility will maintain a data security program for the Service that will: (a) include reasonable administrative, physical, technical, organizational and other
security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data processed or stored by the Service; (b) comply with the PCI DSS (or prevailing successor industry standard,
if replaced); and (c) include reasonable and appropriate controls pursuant to Ility’s Service Organization Control (“SOC”) 1 & 2 audit (or other name if replaced). Ility will be responsible for unauthorized access and damage to, and for unauthorized
deletion, destruction and loss of, Customer Data solely to the extent arising from Ility’s breach of its obligations under this Agreement. Notwithstanding anything contained in this Agreement to the contrary, subsection (b), above, is not
applicable to, and specifically excludes, RevPro.
5.3 Export and Deletion of Financial Account Data & Other Customer Data. The Service allows Customer to export and back-up Customer Data at its discretion, and Ility encourages Customer to do so regularly. Customer will need assistance from Ility,
however, to export credit card account information or other Customer Data (e.g., ACH direct debit account information) that is subject to the PCI DSS or other financial industry rules or regulations regarding account information (collectively,
“Financial Account Data”). Ility will provide Financial Account Data only to recipients that have the required certifications and qualifications (e.g., certification to receive information that is subject to the PCI DSS). Any export or transfer
of Financial Account Data must occur no later than thirty (30) days after expiration or termination of this Agreement, and will require Customer to first pay all amounts owed Ility and to sign a separate written agreement to (a) help ensure
the security and integrity of such data is maintained, and (b) give Ility reasonable protection against liability relating to extraction, transfer and potential misuse of such data. Ility will assist with one extraction of Financial Account
Data free of charge; Customer will be charged for any other data extraction at Ility’s prevailing Professional Services rates.
5.4 Data Retention.Regardless of the basis for expiration or termination of this Agreement, Ility will not be obligated to retain any Customer Data for longer than thirty (30) days after any such expiration or termination, unless otherwise agreed
in advance by the Parties in writing.
5.5 Business Continuity & Disaster Recovery. Ility will implement and maintain throughout the term of this Agreement reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant
interruption or failure of critical business processes or systems affecting the Service.
5.6 Support & Service Level Agreement. Ility will provide technical support for the Service in accordance with Exhibit A to this Agreement (Support and Service Level Agreement) as long as Customer is entitled to receive support under the applicable
Order Form and this Agreement.
6. TERM, TERMINATION & EFFECT OF TERMINATION
6.1 TERM
6.1.1 Term of Agreement. This Agreement will begin on the Effective Date and continue in effect until all Order Forms and SOW expire or are terminated in accordance with this Agreement (e.g., Section 6.2.2), which may be done concurrently with
termination of this Agreement.
6.1.2 Term of Order Forms. The term of each Order Form will be set forth therein, starting on the Effective Date specified therein and continuing for the initial Service term specified therein (“Initial Service Term”).
PLEASE CAREFULLY REVIEW THESE AUTOMATIC RENEWAL TERMS AND THOSE IN SECTION 7.2. Unless otherwise set forth in the applicable Order Form, or unless the Order Form is terminated in accordance with Section 6.2.2, upon expiration of the Initial Service
Term, the relevant Order Form will renew automatically on an annual basis for subsequent renewal terms of twelve (12) months (each a “Renewal Service Term“), unless either Party notifies the other Party in writing, at least thirty (30) days
(subject to Section 7.2) prior to the end of the then-current Service Term, that it chooses not to renew. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term.”PLEASE
CAREFULLY REVIEW THESE AUTOMATIC RENEWAL TERMS AND THOSE IN SECTION 7.2. Unless otherwise set forth in the applicable Order Form, or unless the Order Form is terminated in accordance with Section 6.2.2, upon expiration of the Initial Service
Term, the relevant Order Form will renew automatically on an annual basis for subsequent renewal terms of twelve (12) months (each a “Renewal Service Term“), unless either Party notifies the other Party in writing, at least thirty (30) days
(subject to Section 7.2) prior to the end of the then-current Service Term, that it chooses not to renew. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term.”
6.2 TERMINATION
6.2.1 Termination of Agreement. Neither Party will have the right to terminate this Agreement without legally valid cause (no termination “for convenience”). Either Party may terminate this Agreement, but only by providing written notice to the
other Party, and only after all Order Forms and SOW have expired or been terminated in accordance with this Agreement (e.g., Section 6.2.2), or concurrently therewith.
6.2.2 Termination of Order Form or SOW. Either Party may terminate any Order Forms and/or SOW in accordance with their respective terms. If not specified in the applicable Order Form or SOW, then subject to the exclusive remedy provisions in this
Agreement (e.g., in the sections regarding warranties and Service Credits): either Party may terminate any Order Forms or SOW for cause upon written notice if the other Party fails to cure any material breach thereof, or any material breach
of this Agreement, within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach. Either Party may terminate this Agreement, but only by providing written notice to the other Party, and
only after all Order Forms and SOW have expired or been terminated in accordance with this Agreement (e.g., Section 6.2.2), or concurrently therewith.
6.3 EFFECT OF TERMINATION
6.3.1 Effect of Expiration or Termination of Agreement. Sections 1, 2, 4.2, 5.3, 6, 8, 9, 10, 11, 12.3, 13, 14, 15, 16 and 17 of this Agreement will survive any expiration or termination of this Agreement. The applicable Order Forms and SOW may
identify additional terms that will survive any expiration or termination of this Agreement.
6.3.2 Effect of Termination of Order Form or SOW.
Subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding Compliance with Privacy Laws, Indemnification, Warranties and Service Levels): (a) if Customer terminates an Order Form, SOW and/or this Agreement for
uncured material breach in accordance with this Agreement, Customer will be entitled to a refund, on a pro rata basis, of any Fees paid thereunder that are unused as of the termination effective date; and (b) if Ility terminates an Order Form,
SOW and/or this Agreement for uncured material breach in accordance with Section 6.2, all amounts owed by Customer thereunder will become due and payable.
7. ORDER PROCESS
Customer orders the Ility Service via one or more Order Forms, and Customer may also order Ility’s Professional Services via one or more SOW. Customer’s Affiliates are also permitted to sign Order Forms and/or SOW with Ility that are governed
by this Agreement, in which case all references to “Customer” in this Agreement shall be interpreted to refer to the relevant Customer Affiliate for purposes of interpreting such Affiliate Order Forms and SOW; provided, however, that Ility’s
maximum liability under Section 14 to Customer and all of its Affiliates who sign Order Forms or SOWs under this Agreement shall not exceed, in the aggregate, the limits stated in Section 14.
7.1 Purchase Orders. If Customer requires that a purchase order (“PO”) be issued before making payment under an Order Form or SOW, Customer must provide to Ility such valid PO conforming to the applicable Order Form or SOW in time for Customer
to meet its payment obligations. The terms and conditions of any PO (or of any other unilateral Customer document not agreed in writing by authorized representatives of both Parties) will have no effect on the rights or obligations of the
Parties, regardless of any failure to object to such terms and conditions.
7.2. Modification of Fees Upon Renewal. Ility reserves the right to modify the Fees for its Service under one or more Order Forms, effective upon commencement of the next Renewal Service Term of the relevant Order Form(s), by notifying Customer
of such change in writing at least thirty (30) days before the end of the then-current Service Term, unless Customer notifies Ility in writing, at least twenty (20) days prior to the end of the then-current Service Term, that Customer chooses
not to renew such Order Form(s).
8. FEES & PAYMENT
8.1 Payment Details. Customer must pay all fees and charges in accordance with this Agreement and each mutually executed Order Form and SOW (“Fees”).
Except to the extent otherwise expressly stated in this Agreement or in an Order Form or SOW:
a. all obligations to pay Fees are non-cancelable and all payments are non-refundable;
b. Customer must make all payments without setoffs, withholdings or deductions of any kind;
c. Customer must pay all Fees due under all Order Forms and SOW within thirty (30) days after Customer receives each invoice (invoices are deemed received when Ility emails them to Customer’s designated billing contact); and
d. all payments must be in U.S. Dollars.
Except to the extent otherwise expressly stated therein, if an applicable Order Form or SOW provides for payment via credit card or electronic money transfer (e.g., ACH), Ility is permitted to process such payment on the date of Ility’s invoice.
Upon Order Effective Date, Ility invoices and collects in advance annual fees for use of the Service based on the edition of the Service subscribed to by Customer, and Customer’s anticipated usage volume using the Service (after the Initial Service
Term, Ility will invoice Customer for such annual fees at the start of each Renewal Service Term); and if Customer’s use of the Service exceeds the committed volume specified above, Customer will pay the additional usage-based fees described
in this Order Form in arrears as invoiced.
8.2 Taxes. Ility’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities in connection with any Order Forms or SOW. Customer is responsible for paying all such taxes, levies, or duties. Customer is not, however, responsible
for paying any taxes based solely on Ility’s income or which do not arise from any Order Form or SOW. If Ility has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and
paid by Customer unless Customer provides Ility a valid tax exemption certificate authorized by the appropriate taxing authority.
8.3 Customer Contact Information. Customer agrees to provide Ility accurate billing and other contact information for each Order Form and SOW at all times during the Service Term, including the name of Customer’s applicable legal entity, and the
street address, e-mail address, name and telephone number of an authorized billing contact. Customer shall update this information within thirty (30) days after any changes, via email to Ility’s Accounts Receivable team at hi@ility.com for
billing contact information. Customer shall also maintain, at all times during the Service Term, at least one User who is a current employee and is authorized to administer Customer’s use of the Service (e.g., by creating accounts and resetting
passwords).
8.4 Consequences of Non-Payment. If Customer fails to make any payments required under any Order Forms or SOW, then in addition to any other rights Ility may have under this Agreement or applicable law:
a. Customer will owe Ility an interest penalty of one and one-half percent (1.5%) per month on any outstanding balance under each delinquent invoice, or the maximum permitted by law (whichever is less);
b. Ility will be entitled to recover its reasonable attorneys’ fees, other legal expenses (including expert witness fees and expenses on appeal) and other reasonable costs to collect such amounts; and
c. If Customer’s account remains delinquent (with respect to payment of a valid invoice) for thirty (30) days after receipt of a delinquency notice from Ility, which may be provided via email to Customer’s designated billing contact, Ility may
temporarily suspend Customer’s access to the Service for up to ninety (90) days to pursue good faith negotiations before pursuing termination in accordance with Section 6. Customer will continue to incur and owe all applicable Fees irrespective
of any such Service suspension based on such Customer delinquency.
9. NON-PRODUCTION USAGE
From time to time, to the extent applicable, Customer may use the Service for evaluation, testing or other purposes where such use is outside a Production Tenant (e.g., by using an API Sandbox Tenant or another non-production service environment).
By using the Service on such a non-production basis, Customer accepts the Service on an “as is” basis and acknowledges Ility provides no express or implied warranties, indemnities or security commitments, and Ility will have no liability,
in connection with such use, notwithstanding anything to the contrary in this Agreement.
10. THIRD PARTY INTERACTIONS
To the extent use of the Service requires use of any third party products or services not made available by Ility (e.g., Oracle Java, Adobe Acrobat, Salesforce CRM, Amazon Web Services and/or a Web browser), Customer may be required to separately
purchase/license such products or services directly from the applicable third party. In addition, in connection with using the Service, Customer may choose to purchase/license certain other third party products and/or services made available
by Ility. Any third party products and services (even if included on an Order Form or otherwise made available via a Ility-controlled site) and any terms associated therewith (even if presented by Ility) are between Customer and the relevant
third parties. Ility does not support, license, control, endorse or otherwise make any representations or warranties regarding any third party products or services under this section, and in no event will Ility have any liability whatsoever
in connection therewith.
11. PROFESSIONAL SERVICES
If Customer wishes to purchase any training, implementation or other professional services from Ility relating to the Service (“Professional Services”), the Parties will mutually execute one or more separate SOW containing the relevant terms and
conditions. Ility Professional Services are separate and apart from the Service, and neither Party’s obligations in connection with the Service are dependent in any way on any Professional Services. Except to the extent expressly set forth
to the contrary in any applicable SOW, the following provisions will apply to all SOW:
a. As between Customer and Ility, Customer will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for
Customer without any contribution by Ility and provided to Ility under the SOW. Customer grants Ility a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, distribute, create derivative works of,
and otherwise use such Customer-owned materials in connection with providing the Service during the Term of this Agreement and otherwise performing its obligations under this Agreement;
b. As between Customer and Ility, Ility will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Ility
(either alone or jointly with Customer or others) and provided to Customer under the SOW, and any derivative works thereof, excluding any incorporated Customer Confidential Information (collectively, “Ility PS Materials”); and
c. Subject to the terms of this Agreement, Ility grants Customer a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, create derivative works of, and otherwise use internally the Ility PS Materials
in connection with the Service during the Term of this Agreement.
Nothing in this Agreement will prohibit, restrict or limit (i) Ility from performing similar Professional Services for any third party, or (ii) Customer from hiring any third party to perform similar Professional Services (though Customer is not
permitted to give any direct competitor of Ility access to the Service or any Ility PS Materials without Ility’s prior written consent).
12. WARRANTIES & DISCLAIMERS
12.1 Mutual Warranties. Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that this Agreement has been duly authorized, executed and delivered and constitutes a valid and
binding agreement enforceable against such Party in accordance with its terms.
12.2 Additional Ility Commitments. Ility further represents and warrants that:
a. It will use reasonable technical means to screen for and detect disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots and other computer programming routines designed to damage, detrimentally
interfere with, surreptitiously intercept or expropriate any other software or data;
b. The Service will perform substantially in accordance with the relevant Service description and
c. It will make reasonable efforts to notify Customer, at least thirty (30) days in advance via Ility’s Normal Communication Channels, of any scheduled changes Ility believes are likely to have a material, adverse impact on Customer’s use of the
Service (“Material Changes”). (As a multi-Tenant SaaS vendor, Ility reserves the right to make enhancements and other changes to the Service, including occasional deprecation and removal of certain features and functionality, subject to the
Service warranty in Section 12.2(b).)
If Ility breaches any warranties in this Section 12.2, Customer’s exclusive remedy and Ility’s sole obligation will be for Ility to make reasonable efforts to correct the non-conformity or, if Ility is unable to correct the non-conformity within
sixty (60) days after receipt of Customer’s written notice, for Customer to terminate the applicable Order Form(s) and receive a refund, on a pro rata basis, of any annual fees prepaid under such Order Form(s) that are unused as of the termination
effective date.
12.3 Warranty Disclaimers. EXCEPT TO THE EXTENT EXPRESSLY STATED IN SECTIONS 5 OR 12 OF THIS AGREEMENT OR IN EXHIBIT A HERETO: (A) ILITY AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED
(IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND (B) ILITY AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR ANY PROFESSIONAL SERVICES ARE OR WILL BE ERROR-FREE, MEET CUSTOMER’S
REQUIREMENTS, ACHIEVE ANY PARTICULAR RESULTS, OR BE TIMELY OR SECURE. ILITY AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND
ANY PROFESSIONAL SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY ILITY.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. ILITY IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH
PROBLEMS NOT CAUSED BY ILITY.
CUSTOMER AGREES THAT ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY
OR FEATURES. MORE GENERALLY, IN ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS RELYING ON ANY OTHER COMMITMENTS, STATEMENTS OR OTHER MATTERS NOT EXPRESSLY ADDRESSED IN THIS AGREEMENT, AN ORDER FORM OR AN SOW.
13. INDEMNIFICATION
13.1 By Ility. Ility will defend Customer, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on an allegation that use of the Service in accordance with this Agreement and the applicable
Order Form(s) infringes a copyright in any country or a patent of the U.S.A., a member state of the European Union, Canada or Australia (collectively, “Claims”). Ility will also indemnify Customer and its Affiliates, officers, directors and
employees by paying all damages, costs and expenses (including reasonable legal fees and costs) awarded by a court of competent jurisdiction in a final, non-appealable judgment, or agreed in a written settlement agreement agreed in writing
by Ility, arising out of such Claims.
If (a) any aspect of the Service is found by a court in a final, non-appealable judgment, or in Ility’s reasonable opinion is likely to be found by a court in a final, non-appealable judgment, to infringe upon a third party Intellectual Property
Right, or (b) the continued use of the Service is enjoined, then Ility will promptly and at its own expense: (i) obtain for Customer the right to continue using the Service in accordance with this Agreement and the applicable Order Form(s);
(ii) modify the item(s) in question to no longer be infringing; or (iii) replace such item(s) with a non-infringing functional equivalent. If, after reasonable efforts, Ility determines in good faith that options (i), (ii) and (iii) are not
feasible, Ility will remove the infringing item(s) from the Service and refund to Customer on a pro rata basis any Fees paid by Customer for such infringing element(s) that are unused as of the removal date.
Ility will have no obligation or liability for any Claim under this section to the extent arising from: (x) the combination, operation or use of the Service with any product, device, software or service not supplied by Ility to the extent the
combination creates the infringement; (y) the unauthorized alteration or modification by Customer of the Service, or (z) Ility’s compliance with Customer’s designs, specifications, requests, or instructions in providing Professional Services
to the extent the Claim is based on such compliance.
13.2 By Customer. Customer will defend Ility, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on a breach by Customer of Section 4 (Customer Responsibilities) of this Agreement. Customer
will also indemnify Ility and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) awarded by a court of competent jurisdiction in a final, non-appealable judgment,
or agreed in a written settlement agreement agreed by Customer in writing, arising out of the third party claims described in this section.
13.3 Requirements for Indemnification.
Each Party’s respective defense and indemnity obligations under Sections 13.1 and 13.2 are contingent upon the indemnified Party: (a) promptly giving notice of the third party claim to the defending/indemnifying Party once the claim is known;
(b) giving the defending/indemnifying Party sole control of the defense and settlement of the claim and not compromising or settling the claim without the defending/indemnifying Party’s approval (though the defending/indemnifying Party must
not settle such claim unless the settlement unconditionally releases the other Party of all liability and does not adversely affect the other Party’s business or service in a material manner); and (c) providing appropriate information and
reasonable cooperation to the defending/indemnifying Party in connection with the claim.
THE FOREGOING ARE THE DEFENDING/INDEMNIFYING PARTY’S SOLE OBLIGATIONS, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDIES WITH RESPECT TO INDEMNIFICATION AND THE MATTERS ADDRESSED IN THIS SECTION 13.
14. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BUT ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:
14.1 EXCEPT FOR SUMS DUE ILITY UNDER APPLICABLE ORDER FORMS AND SOW, AND EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), 4.3 (CUSTOMER PCI RESPONSIBILITIES) AND 13 (INDEMNIFICATION),
NEITHER PARTY’S TOTAL AGGREGATE LIABILITY OR RESPONSIBILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORMS OR SOW WILL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING
THE EVENT GIVING RISE TO SUCH LIABILITY;
14.2 EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), 4.3 (CUSTOMER PCI RESPONSIBILITIES) AND 13 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OWNERS, OFFICERS,
DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE OR OTHERWISE OBLIGATED TO THE OTHER PARTY OR ANYONE ELSE FOR ANY LOSS OF PROFITS, REVENUE, OPPORTUNITIES, ECONOMIC ADVANTAGE, GOODWILL, DATA OR USE, OR FOR ANY INDIRECT, CONSEQUENTIAL, HYBRID, INCIDENTAL,
SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, AND EVEN IF A REMAINING AVAILABLE REMEDY FAILS ITS ESSENTIAL PURPOSE; AND
14.3 THE TERMS OF SECTION 14 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STATUTE,
OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE PROVISIONS OF SECTION 14 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND ILITY, AND THE FEES CHARGED FOR THE SERVICE ARE BASED ON THIS ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.
15. CONFIDENTIALITY
15.1 Definition. As used in this Agreement, “Confidential Information” means information and materials provided by the disclosing Party (“Discloser”) to the Party receiving such information or materials (“Recipient”) that (a) are identified as
confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt,
Customer’s Confidential Information includes, without limitation, the Customer Data and Customer’s non-public business plans, and Ility’s Confidential Information includes, without limitation, all pricing terms offered to Customer under any
Order Form, Ility’s non-public business plans, all non-public aspects of the Ility Technology, and the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance
or functionality, or for any other benchmarking or competitive purposes.
15.2 Purpose. Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the “Purpose”). For the avoidance of doubt, use of
Confidential Information in an aggregated and anonymized manner that does not include Personal Data is not prohibited.
15.3 Permitted Disclosures and Obligations. Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s Affiliates, contractors and consultants who (a) need to know such information in order to fulfill
the Purpose, and (b) are bound by confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully responsible for its respective Affiliates’, contractors’ and consultants’ compliance with this Agreement).
Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Further, neither Party may disclose publicly the existence or
nature of any negotiations, discussions or consultations in progress between the Parties without the prior written consent of the other Party. Recipient and its Affiliates, contractors and consultants who receive Confidential Information hereunder
must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary for the Purpose; (ii) not reverse engineer, disassemble or decompile any prototypes, software or other tangible
objects received from Discloser under this Agreement that embody Confidential Information; (iii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably
assist Discloser in remedying any such unauthorized use or disclosure. For the avoidance of doubt, a security breach involving Customer Data will be governed by Section 5.2, and not Section 15.
15.4 Exclusions. Recipient’s obligations under Section 15 will not apply to any Discloser Confidential Information that Recipient can prove: (a) is or becomes part of in the public domain through no fault of Recipient; (b) is rightfully in Recipient’s
possession free of any confidentiality obligation; (c) was independently developed by Recipient without use of any Discloser Confidential Information; or (d) is communicated by Discloser to an unaffiliated third party free of any confidentiality
obligation. A disclosure by Recipient of any Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by law, or (iii) necessary
to establish the rights of either Party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, Recipient gives Discloser prompt notice and reasonable cooperation so Discloser may seek to prevent or
limit such disclosure.
15.5 Ownership and Destruction of Confidential Information. As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided
to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient will (a) destroy or return to Discloser all Confidential Information
and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic
files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic
backup copies for so long as such Confidential Information is retained.
15.6 Export. Exchange of Confidential Information under this Agreement is subject to all applicable export laws and regulations. Except to the extent permitted by a separate written agreement, the Parties will not disclose any information requiring
an authorization to be exported. Each Party also specifically agrees to comply with all applicable laws, regulations, orders and sanctions relating to prohibitions or limitations on relationships or transactions with prohibited countries or
individuals (e.g., those administered by the U.S. Commerce or Treasury Departments).
15.7 Confidentiality Period. Recipient’s obligations with respect to Discloser’s Confidential Information under Section 15 will remain in effect for the term of this Agreement and for three (3) years after any expiration or termination of this
Agreement.
16. GENERAL
16.1 Governing Law and Dispute Resolution. This Agreement is governed by Delaware law and controlling United States federal law, without regard to conflicts of law provisions of any jurisdiction. The Service is a service, not a good, and is not
subject to the Uniform Commercial Code, the Uniform Computer Information Transactions Act, or the United Nations Convention on the International Sale of Goods. Any disputes, actions, claims or causes of action arising out of or relating to
this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, USA. However, other than with respect to seeking injunctive relief in connection with matters
that qualify for such an extraordinary remedy under applicable law, neither Party may initial any litigation against the other Party until after providing clear written notice of its intention to do so and first making a good faith effort
to resolve the dispute informally through escalation to an appropriate level of executive management of both Parties for at least thirty (30) days after providing such notice.
16.2 Assignment & Other Transfers. Neither Party may assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other
Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that upon written notice to the other Party, either Party may assign or otherwise transfer this Agreement, along with
all associated Order Forms and SOW (and all its rights and obligations thereunder), (a) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of most or all of its assets, or other change of control, or
(b) to its Affiliate.
Notwithstanding anything to the contrary in this section, however: (i) in the event of any permitted transfer by Customer under this section to a direct competitor of Ility, Ility will have the right to terminate this Agreement, including all
associated Order Forms and SOW, for cause under Section 6.5 (in the event of such a termination, Ility will promptly refund to Customer, on a pro rata basis, all Fees prepaid by Customer under all Order Forms and SOW then in effect that are
unused as of the termination effective date); and (ii) Customer is not allowed to transfer to a successor-in-interest or Affiliate a subscription to the Growth Edition (or other name if replaced) version of the Service if Ility otherwise would
not allow the proposed transferee to subscribe to that version, e.g., because Ility believes the size or complexity of the proposed transferee’s business warrants a subscription to the Enterprise Edition or Nine Edition (or other name if replaced)
version of the Service.
In the event of a transfer by Customer that is permitted under this section, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under applicable Order Forms prior to the transfer (e.g.,
any transaction volume terms, and any limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this section
is void. Subject to the terms of this section, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and transferees.
16.3 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than payment obligations) due to any cause beyond its reasonable control, e.g., war, riots, labor unrest,
fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected Party’s performance will be excused for the resulting
period of delay or inability to perform.
16.4 Marketing. Ility is permitted to identify Customer as a Ility customer on Ility’s website and marketing materials and, within thirty (30) days after Customer goes live on the Service, Customer and Ility will also issue a mutually agreed joint
public announcement relating thereto.
16.5 Independent Contractors. The Parties are independent contracting parties. Neither Party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection
with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.
16.6 Notices. All legal notices (e.g., notice of termination of this Agreement or an Order Form based on an alleged material breach) required under this Agreement must be delivered to the other Party in writing (a) in person, (b) by nationally
recognized overnight delivery service, or (c) by certified U.S. mail (requiring signature) to the other Party’s corporate headquarters, Attention: Legal Department. With respect to all other notices, Customer may email Ility at hi@ility.com,
and Ility may email Customer’s billing contact identified on the applicable Order Form(s) or SOW. Either Party may change its notice address by giving written notice to the other Party.
16.7 Anti-Corruption. Customer acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any Ility employee, representative or agent in connection with this Agreement.
Customer will use reasonable efforts to promptly notify Ility at hi@ility.com if Customer becomes aware of any circumstances that are contrary to this acknowledgment.
16.8 Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Service constitutes software and documentation provided as
“Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed made accessible to U.S. government Users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101
and 12.212.
16.9 Execution. This Agreement may be signed electronically and in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.
16.10 Entire Agreement. This Agreement, together with any applicable Order Forms and SOW (including any other terms referenced in any of those documents), comprises the entire agreement between Customer and Ility regarding the subject matter of
this Agreement, supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter, and may only be modified by a document signed by authorized representatives
of both Parties.
17. DEFINITIONS
As used in this Agreement:
“Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition,
“control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“API Sandbox Tenant” means a Non-Production Tenant identified as an “API Sandbox Tenant” (or its equivalent, if renamed) on the applicable Order Form. “Non-Production Tenant” means a Tenant the use of which is restricted
to processing non-production data solely for evaluation and/or testing. “Tenant” means a single, discrete operational environment within Ility’s SaaS environment in which Customer may use the Service. “Production Tenant” means
a Tenant that Customer is permitted to use to process live Customer Data for production use in accordance with the applicable Order Form;
“Content” means the audio and visual information, documentation, software, products and services contained in or made available via the Service, other than Customer Data and Customer Confidential Information;
“Customer Data” means any data, information or material received by the Service from Customer or Customer’s Users in the course of accessing or using the Service;
“Intellectual Property Rights” means rights under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide;
“Normal Communication Channels” means the online channels through which Ility normally communicates important information to its customers, e.g., Ility’s online Knowledge Center and community site, and/or the email address(es) provided
by Customer. (Customer must opt-into Ility’s online community site to receive certain important information regarding such changes and to take other required action relating to use of the Service.);
“Personal Data” means information relating to a natural person as such term is defined by the applicable Privacy Laws, including the General Data Protection Regulation (EU) 2016/679 (GDPR);
“Privacy Laws” means all laws and regulations regarding data privacy and transmission of Personal Data that apply to Ility’s provision of the Service to Customer (e.g., storing and processing Customer Data in connection with the Service);
“Service” means (i) the Ility SaaS service for subscription relationship management “Service” also includes, without limitation, all other components of the applicable Service, and all related Content and Ility Technology;
“SOW” means Statement(s) of Work, Work Authorization(s) or other contract(s) under which Ility provides its Professional Services, if any;
“Transaction” and “Transaction Record” both mean, with respect to ility, originating from Customer’s internal financial systems, including contract lines, order lines and invoice lines. For purposes of clarification, the Parties
agree that standalone invoices that do not reference to a sales order are counted as part of Transaction Record Volume but invoices which reference a sales order are not counted as part of Transaction Record Volume, as stated in the applicable
Order Form. For the avoidance of doubt, if the identical transaction record is input into the Service via multiple forms (e.g. the identical transaction record appears on an invoice and on an order and/or contract) it shall only be counted
as one single Transaction Record. Customer may input Transaction Records into Ility that are (a) not Completed as of the Effective Date. For purposes of this Agreement, the term “Completed” means that the revenue for the Transaction
Record has been 100% recognized for accounting purposes. Twelve (12) months after a Transaction Record is Completed, Ility will offload it to archival storage within the production system that will be available to Customer during the term
of this Agreement on a “read-only” basis.
“User(s)” means Customer’s customers, employees, representatives, consultants, contractors and agents who have been authorized by Customer to use the Service; and
“Ility Technology” means all of Ility’s and its licensors’ proprietary technology that Ility makes available to Customer as part of or in connection with the Service (including, without limitation, any and all software, hardware, products,
processes, APIs, algorithms, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information).
Exhibit A
(SUPPORT AND SERVICE LEVEL AGREEMENT)
This is Exhibit A to Ility’s Master Subscription Agreement (the “Agreement”). Capitalized terms not defined herein have the meaning indicated in the Agreement and its associated Order Form(s). For purposes of clarity, (i) Sections I-V of this
Exhibit do not apply to and specifically exclude Ility, and (ii) Section VI of this Exhibit applies exclusively to Ility.
I. SUPPORT CONTACTS, ILITY COMMUNITY & CUSTOMIZATIONS:
A. For “Growth Edition”-level support (or the equivalent, if renamed), Customer will appoint up to five (5) designated support contact persons knowledgeable regarding the Service for purposes of contacting Ility’s support team about technical
support issues with the Service, including reporting such issues via Ility’s designated support portal / channel.
B. For “Enterprise Edition”-level support (or the equivalent, if renamed), Customer will appoint up to twenty (20) designated support contact persons knowledgeable regarding the Service for purposes of contacting Ility’s support team about technical
support issues with the Service, including reporting such issues via Ility’s designated support portal / channel.
C. For “Nine Edition”-level support (or the equivalent, if renamed), Customer will appoint a reasonable number (though there is no limit on the number for Nine Edition-level support) of designated support contact persons knowledgeable regarding
the Service for purposes of contacting Ility’s support team about technical support issues with the Service, including reporting such issues via Ility’s designated support portal / channel.
D. Customer must opt-into Ility’s online community site (i) to receive certain important information about updates and other changes to the Service and about the subprocessors Ility uses to provide the Service. Ility will provide reasonable notice
of any updates to its subprocessors through its Normal Communication Channels.
E. The commitments under this exhibit do not apply to customizations, enhancements or other non-standard modifications to the Service requested or made by Customer.
II. SUPPORT FOR ILITY NON-PRODUCTION TENANTS (FOR ALL CUSTOMERS AND ALL EDITIONS):
A. RESPONSE TIMES: For all support issues relating to Ility Non-Production Tenants, Ility will make efforts to respond promptly (via Ility’s Normal Support Channels, defined below) to all tickets submitted through Ility’s designated support portal
/ channel, in any event within two (2) Business Days after receipt. If Ility fails to meet this response time commitment, Customer’s exclusive remedy and Ility’s sole obligation will be: (a) for Ility to make efforts to respond promptly
after Customer notifies Ility that it failed to meet this response time commitment; and (b) if Ility fails to meet this response time commitment five (5) times during a 3-month period, for Customer to terminate the applicable Order
Form and receive a refund, on a pro rata basis, of any Fees paid for the Non-Production Tenant(s) that are unused as of the termination effective date.
”Business Day” means Monday through Friday, based on the time zone of Customer’s primary place of business.
B. SERVICE LEVELS & SERVICE CREDITS: No Service Level or Service Credit commitments apply to Non-Production Tenants.
III. SUPPORT FOR PRODUCTION TENANTS – ILITY GROWTH EDITION CUSTOMERS:
For “Growth Edition”-level support (or the equivalent, if renamed):
A. RESPONSE TIMES: For all support issues relating to Ility Production Tenants, Ility will make efforts to respond promptly (via Ility’s Normal Support Channels) to all tickets submitted through Ility’s designated support portal / channel, in
any event within two (2) Business Days after receipt. If Ility fails to meet this response time commitment, Customer’s exclusive remedy and Ility’s sole obligation will be: (a) for Ility to make efforts to respond promptly after Customer
notifies Ility that it failed to meet this response time commitment; and (b) if Ility fails to meet this response time commitment three (3) times during a 3-month period, for Customer to terminate the applicable Order Form and receive
a refund, on a pro rata basis, of any Fees paid for the Production Tenant(s) that are unused as of the termination effective date; and
B. SERVICE LEVELS & SERVICE CREDITS: No Service Level or Service Credit commitments apply to the Production Tenants.
IV. SUPPORT FOR PRODUCTION TENANTS – ILITY ENTERPRISE EDITION AND NINE EDITION CUSTOMERS:
For “Enterprise Edition”-level and “Nine Edition”-level support (or the equivalent, if renamed), Ility will provide the following technical support for all Production Tenants:
A. RESPONSE TIMES: For all support issues relating to Ility Production Tenants, Ility will respond in accordance with Table 1:
TABLE 1
| ISSUE SEVERITY LEVEL** | RESPONSE COMMITMENT*** |
|---|---|
| 0 | Fifteen (15) minutes (seven days per week) |
| 1 | Two (2) Hours (seven days per week) |
| 2 | Six (6) Hours (seven days per week) |
| 3 | Two (2) Business Days |
**The Issue Severity Levels are defined in Section IV-A-1 below.
***”Response Commitment” is the maximum time within which Ility will respond (via Ility’s Normal Support Channels) to each support issue reported by Customer.
1. Issue Severity Level Definitions
Severity Level 0 (Service Unavailability): Customer experiences complete loss of Service, meeting the definition of “Unavailable” in Section IV-B-1 below.
Severity Level 1 (Severe Issues): Customer experiences a severe defect or configuration issue with the Service that materially impacts Customer’s business in a n egative way (excluding Service failures that qualify as Severity Level 0).
Severity Level 2 (Delayed Performance): Customer experiences transactional and operational slowness in the Service (excluding Service issues that qualify as Severity Level 0 or 1).
Severity Level 3 (Routine Requests): Routine Service support requests relating to issues that don’t qualify as Severity Level 0, 1 or 2.
2. Assignment of Severity Levels: Ility will determine the Severity Level assigned to each support issue in its reasonable discretion, but taking into consideration the Severity Level input by Customer.
3. Remedies for Breach of Response Time Commitments: If Ility fails to meet the response time commitments in Table 1 above, Customer’s exclusive remedy and Ility’s sole obligation will be: (a) for Ility to make efforts to respond promptly
after Customer notifies Ility that it failed to meet the relevant response time commitment; and (b) if Ility fails to meet the relevant response time commitments three (3) times during a calendar quarter, for Customer to terminate the applicable
Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Production Tenant(s) that are unused as of the termination effective date.
B. SERVICE LEVELS & SERVICE CREDITS:
1. Uptime Commitment
The Quarterly Uptime Percentage for the Service will be ninety-nine and nine-tenths percent (99.9%) (the “Uptime Commitment”). Subject to the exclusions described in Subsection IV-B-2 below, “Quarterly Uptime Percentage” is calculated
by subtracting from 100% the percentage of 1-minute periods during any quarterly billing cycle (i.e., 3 calendar months) in which Customer’s Production Tenant(s) is(are) Unavailable out of the total number of minutes in that quarterly billing
cycle. “Unavailable” and “Unavailability” mean that, in any 1-minute period, all connection requests received by Customer’s Production Tenant(s) failed to process (each a “Failed Connection”); provided, however, that no
Failed Connection will be counted as a part of more than one such 1-minute period (e.g. a Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period 12:00:30-12:01:29). The Quarterly Uptime Percentage will be measured
based on the industry standard monitoring tools Ility uses.
2. Exclusions from Quarterly Uptime Percentage
Notwithstanding anything to the contrary in this exhibit, any Service Unavailability issues resulting from any of the following will be excluded from calculation of Quarterly Uptime Percentage:
2.1 Regularly scheduled maintenance of the Service that does not exceed six (6) hours per 3-month period and is communicated by Ility at least twenty-four (24) hours in advance via Ility’s Normal Support Channels. (Ility typically schedules
such regularly scheduled maintenance once per month.);
2.2 any failures of the Ility Standard and Custom Reporting Services;
2.3 any issues with a third party service to which Customer subscribes (e.g. salesforce.com, Avalara, or a payment gateway);
2.4 2.4 any problems not caused by Ility that result from (a) computing or networking hardware, (b) other equipment or software under Customer’s control, (c) the Internet, or (d) other issues with electronic communications;
2.5Ility’s suspension or termination of the Service in accordance with the Agreement and/or its associated Order Form;
2.6exceeding Ility’s published Concurrent Request Limits
2.7software that has been subject to unauthorized modification by Customer;
2.8negligent or intentional misuse of the Service by Customer; or
2.9“Beta” or “limited availability” products, features and functions identified as such by Ility. Customer may elect to use certain billable Ility Professional Services to resolve issues associated with the excluded areas listed in
this Subsection IV-B-2. Such Professional Services may require Customer to complete a network assessment, and/or give Ility access to Customer’s network, in order to diagnose the issue.
3. Service Credits
If Ility does not meet the Uptime Commitment with respect to any particular calendar quarter (i.e., the Quarterly Uptime Percentage was below 99.9%), and Customer is negatively impacted thereby, then as Customer’s sole and exclusive remedy, and
only upon Customer’s written request in accordance with Section 4 below:
Ility will provide to Customer, for each calendar month in such quarter during which the Monthly Uptime Percentage was below 99.9% a service credit (“Service Credit(s)”) equal to the annual fees paid by Customer for the Service during that
month under all affected Order Forms then in effect (but excluding any Professional Services fees).
For purposes of the preceding sentence, “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any billing cycle for a calendar month during which Customer’s Production Tenant(s) is(are)
Unavailable out of the total number of minutes in that monthly billing cycle. The Monthly Uptime Percentage will be measured based on the industry standard monitoring tools Ility uses.
4. Service Credit Process
To receive a Service Credit, Customer must submit a request by sending an email to hi@ility.com. To be eligible, the credit request must: (a) include the dates and times of each Unavailability incident that Customer claims to have experienced,
along with sufficient details to enable Ility to verify the information; and (b) be received by Ility within thirty (30) Business Days after the last Failed Connection that is part of Customer’s Service Credit claim. If Customer is past due
with respect to any payment obligation, or otherwise in material breach of any contractual obligation to Ility, Customer is not eligible for any Service Credits. Service Credits will be issued to Customer within sixty (60) days after Ility
confirms that Customer qualifies for the Service Credit under this section.
V. ADDITIONAL SUPPORT FOR PRODUCTION TENANTS – ILITY NINE EDITION CUSTOMERS ONLY:
For “Nine Edition”-level support (or the equivalent, if renamed), Ility will also provide the following additional technical support for all Production Tenants:
A. Advanced Salesforce Development Support: If Ility determines it is likely that an issue Customer reports to Ility was caused by Salesforce’s platform, Ility’s support team will make efforts to help Customer and Salesforce resolve the issue,
free of additional charge;
B. Advanced Payment Gateway Support: If Ility determines it is likely that an issue Customer reports to Ility was caused by Customer’s chosen payment gateway(s), Ility’s support team will make efforts to help Customer and the payment gateway(s)
resolve the issue, free of additional charge; and
C. Customization Support: If Ility determines it is likely that an issue Customer reports to Ility was caused by a customization to the Ility Service, Ility’s support team will make efforts to help Customer resolve the issue, free of additional
charge.
VI. SUPPORT FOR ILITY (ANY REFERENCE TO SERVICE IN THIS SECTION VI MEANS ILITY ONLY)
1. Support. Customer may initiate Help Desk Tickets through a customer support online portal maintained by Ility. Help Desk Tickets may cover Service errors, malfunctions or other issues. Ility will respond to Help Desk Tickets and provide Customer
with technical support services in accordance with this Section VI. Ility will handle Priority 1 and 2 Level issues on a 24/7/365 basis. Customer may also make telephone support requests during business hours (i.e., 9:00 a.m. to 5:00 p.m.
PST), and during non-business hours to an emergency telephone support service desk that will notify Ility’s on-call technical support engineer of the Help Desk Ticket.
2. Priority Levels. Ility will assign a “Priority Level” to each Help Desk Ticket, based on the following categories:
(a) Priority Level 1 (Critical Problem) — A failure that (a) causes the Service to fail completely, (b) requires Customer to constantly re-login to the Service, (c) results in irretrievable corruption or loss of data or the failure of a critical
function of the Service, or (d) keeps Customer from performing its critical business functions in a timely manner (e.g., inability to close its books at Customer’s normal scheduled time).
(b) Priority Level 2 (Serious Problem) — A problem prevents Customer from using a documented function of the Service that materially prevents or inhibits Customer from accomplishing the task(s) for which it was designed.
(c) Priority Level 3 (non-critical loss of functionality) – The Service does not work explicitly as it is documented, but the problem does not cause a failure of critical functionality or a critical data error.
3. Service Level Response Time Requirement. Ility will respond to a Help Desk Ticket according to its Priority Level, as follows:
(a) Priority Level 1 Issues. Ility will respond as soon as possible but not longer than sixty (60) minutes from receipt of Customer’s Help Desk Ticket and, within 8 hours of collecting the necessary information, provide a root cause analysis the
reported error or malfunction. Based on the complexity of the problem, Ility will provide a resolution or temporary work-around (hereafter “Resolution”) as soon as possible. Until Ility has provided a Resolution, Ility will continue to assign
a senior software engineer fully dedicated with highest priority to isolate, diagnose and identify a Resolution. If a Resolution is not provided within 2 business days, and until the Resolution is provided, Ility will notify Customer’s designated
technical representative every 12 hours of its activities to find a Resolution.
(b) Priority Level 2 Issues. Ility will respond within four (4) hours from receipt of Customer’s Helpdesk Ticket and, within forty-eight (48) hours of collecting necessary information, provide a root cause analysis of the reported error or malfunction.
Customer and Ility will agree to a timeframe to isolate and diagnose the issue and provide a Resolution based upon the circumstances of the issue and its effect on Customer’s use of the Service. Ility will use commercially best efforts to
provide such Resolution within a period of time that meets Customer’s business needs but in no event will such timeframe exceed seven (7) days.
(c) Priority 3 Level Issues. Ility will respond within one (1) working day of receipt of Customer’s Help Desk Ticket. Ility will collect the required information within ninety-six (96) hours. Customer and Ility will agree to a timeframe to isolate
and diagnose the issue and provide a Resolution based upon the circumstances of the issue relative to the effect on Customer’s use of the Service. Ility will provide a Resolution within a time frame that meets Customer’s business needs. If
the issue is documentation related, Ility may choose to correct the documentation on its next documentation release.
4. Service Updates, Major and Minor Releases. Ility will periodically update the Service to correct errors or bugs (“Patches”), or to deliver Service enhancements, (Updates and Major and Minor Releases (Major and Minor Releases are each a “New
Release”). Patches may be critical or non-critical. Updates and Minor Releases provide improved or enhanced functionality or performance and may also include certain Patches, while Major Releases provide new features and/or functionality and
may contain new products, technology or modules; however, Major Releases do not include new products, technology, modules or functionality which Ility licenses separately from the Service licensed by Customer or for which Ility charges a separate
fee. Ility will use reasonable efforts to provide Customer with at least a one (1) month written notice prior to the commercial release of a Patch, Update, Minor or Major Release. Patches, Updates, Minor and Major Releases are part of Support
and are provided at no additional charge to Customer. If Customer requests Ility to develop custom software under an SOW, and later a Patch, Update or New Release will not work with such custom software without further services by Ility, then
Ility may charge a fee for those services. Any Patches, Updates, New Releases or modifications to the Service provided to Customer under Support will be considered the “Service.”
5. Timing for the Installation of Patches, Updates and New Releases. Ility will use reasonable efforts to accommodate Customer’s request on the timing of the installation of any Patch, Update or New Release, subject to the following: (i) critical
Patches will be installed no later than thirty (30) days from commercial release; (ii) non-critical Patches will be installed per Customer’s request, but no later than as part of Ility’s routine installation cycle for such Patches (generally,
monthly); (iii) Minor Releases will be installed no later than the end of the calendar quarter immediately following the quarter in which it was made commercially available; and (iv) Major Releases will be installed no later than the end of
the second calendar quarter immediately following the quarter in which it was made commercially available.
6. Availability. The Service will be operational and available for use on a 24×7 basis with an average uptime commitment of 99.9% for each calendar month (Uptime Commitment).
6.1 Scheduled Maintenance. The calculation of uptime does not include Scheduled Maintenance. “Scheduled Maintenance” means Ility’s scheduled routine maintenance for which Ility notifies Customer at least 7 calendar days in advance. Ility will
use commercially reasonable efforts not to schedule such maintenance at the end of a calendar quarter.
6.2 Exclusions. In addition to Scheduled Maintenance, the calculation of uptime will not include downtime due to: (a) use of the Service by Customer in a manner not authorized in this Agreement or (b) general Internet problems, force majeure events
or other factors outside Ility’s reasonable control.
6.3 Service Credits. Ility will provide to Customer, for each calendar month in such quarter during which the Monthly Uptime Percentage was below 99.9% a service credit (“Service Credit(s)”) equal to the annual fees paid by Customer for Ility
during that month under all affected Order Forms then in effect (but excluding any Professional Services and/or non-ility fees).