SERVICECENTRAL TECHNOLOGIES SUBSCRIPTION SERVICES AGREEMENT
Last Updated: January 5th, 2018
This Subscription Services Agreement (the “Agreement”), is binding between ServiceCentral Technologies, Inc. (“ServiceCentral”) and the person or entity clicking “I accept” (“Customer”). By clicking “I accept,” Customer is agreeing to enter into a legally binding contract with ServiceCentral (even if Customer is using or accessing the Subscription Services on behalf of Customer’s company or employer). If Customer does not agree to this Agreement, do not access or otherwise use any of ServiceCentral’s services.
This document governs the use of the ServiceCentral services (the “Subscription Services”) ordered either directly from ServiceCentral or through a reseller. Customer’s right to access and use the Subscription Services is subject to certain rights and limitations contained herein.
BY (1) ACCEPTING THESE TERMS AND CONDITIONS, OR (2) INSTALLING, COPYING, DOWNLOADING OR OTHERWISE ACCESSING THE SUBSCRIPTION SERVICES, CUSTOMER COMPLETELY AND UNEQUIVOCALLY AGREES TO BE BOUND BY THIS AGREEMENT WITHOUT MODIFICATION. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, IT SHALL NOT ACCESS OR OTHERWISE USE THE SUBSCRIPTION SERVICES OR ASSENT TO THESE TERMS AND CONDITIONS FOR THE SUBSCRIPTION SERVICES.
ServiceCentral may modify this Agreement from time to time. If ServiceCentral makes material changes to it, ServiceCentral will provide Customer with notice through the Subscription Services, or by other means, to provide Customer the opportunity to review the changes before they become effective. If Customer objects to any changes, Customer may terminate its account. Continued use of the Subscription Services after ServiceCentral publishes or sends a notice about the changes to these terms means that Customer is consenting to the updated terms.
SERVICECENTRAL TECHNOLOGIES SUBSCRIPTION SERVICES AGREEMENT
TERMS AND CONDITIONS
- Definitions.For purposes of this Agreement, the following terms have the following meanings:
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Authorized Users” means the all persons authorized by Customer to access and use the Subscription Services through Customer’s account under the this Agreement.
“Authorized User Location” means the physical address designated by Customer where one or more Authorized Users are located.
“Customer” has the meaning set forth in the preamble.
“Customer Data” means any information entered into the Subscription Services by the Customer or its’ Authorized Users in use of the Subscription Services; including, but not limited to, information about Customer’s customers, devices, staff, time sheets, catalog, inventory, sales, repairs, invoices, payments, and/or settings.
“Documentation” means user manuals, technical manuals and any other materials provided by ServiceCentral, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Subscription Services.
“Equipment” means the resources, tangible or intangible, including but not limited to hardware, firmware or Subscription Services, serving to equip ServiceCentral and/or Customer in the operation and/or the provision of Subscription Services to Customer.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Subscription Services” means the current version of the RepairQ™ Software.
“Term” has the meaning set forth in Section 4(a).
“Third Party” means any Person other than Customer, Authorized User or ServiceCentral.
“Update” means any revision, modification or improvement to the Subscription Services.
- Access to the Subscription Services. In consideration of Customer’s payment of the applicable Subscription Fees, and Customer’s agreement to be bound by the terms and conditions of this Agreement, ServiceCentral grants Customer a non-exclusive, non-sublicensable, terminable, non-transferable, and limited right to access the Subscription Services and the Documentation during the Term solely for the Customer’s internal business operations.
(a) The Subscription Services are located on Equipment and servers that are owned and controlled by ServiceCentral. Customer will access the Subscription Services via the Internet and shall have no right to receive a copy of the object code or source code to the underlying Subscription Services.
(b) Customer must have a high speed Internet connection, and hardware and Subscription Services that is compatible with the Equipment and Subscription Services, as set out in the Documentation. ServiceCentral has no responsibility to supply Customer with the connection, hardware or Subscription Services required by the Documentation.
(c) ServiceCentral solely owns the intellectual property in the Subscription Services (except for third party components) and the Documentation.
- Conditions of Use. Customer’s use of the Subscription Services is subject to the following restrictions:
(a) Customer shall not rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Subscription Services available to any Third Party for any reason, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, Software as a service, cloud or other technology or service. For this purpose, a “transfer” of the Subscription Services shall be deemed to occur upon the transfer to any Person not an Affiliate of the transferring party of (i) all or substantially all of the assets of Customer, (ii) over 50% of the voting control of Customer, or (iii) any other transaction, by way of merger or otherwise, that results in a transfer of all or substantially all of the assets or a change of voting control of Customer.
(b) This Agreement is expressly made subject to any United States government and other applicable laws regarding export from the United States of computer software or technical data, or derivatives thereof, and Customer shall not allow the Subscription Services, in whole or in part, to be exported outside the United States in any manner or by any means.
(c) All copies of the Subscription Services and/or the Documentation made by the Customer:
(i) will be the exclusive property of ServiceCentral;
(ii) will be subject to the terms and conditions of this Agreement; and
(iii) must include all trademark, copyright, patent and other intellectual property
rights notices contained in the original.
(d) Customer shall not, directly or indirectly:
(i) with the exception of its Authorized Users, provide any other Person, including any subcontractor, independent contractor, Affiliate or service provider of Customer, with access to or use of the Subscription Services or Documentation, other than on a “read-only” basis to Persons who owe a duty of confidentiality to Customer;
(ii) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Subscription Services or Documentation or any part thereof;
(iii) combine the Subscription Services or any part thereof with, or incorporate the Subscription Services or any part thereof in, any other programs, other than programs furnished by or expressly approved by ServiceCentral;
(iv) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Subscription Services or any part thereof;
(v) remove, delete, alter or obscure any trademarks or any copyright, patent or other intellectual property or proprietary rights notices from the Subscription Services or Documentation, including any copy thereof;
(vi) except as expressly set forth this Agreement, copy the Subscription Services or Documentation, in whole or in part;
(vii) use the Subscription Services for purposes of competitive analysis of the Subscription Services, the development of a competing Subscription Service product or service or any other purpose that is to ServiceCentral’s commercial disadvantage.
- Term and Termination.
(a) The Initial Term shall be for one year, commencing on the date Customer agrees to pay for the Subscription Services by completing the registration form (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms of one year, (each a “Renewal Period”) at ServiceCentral’s then current fees. Either party may terminate this Agreement, by notifying the other party in writing at least 30 days prior to the end of the Initial Term or the then current renewal period.
(b) ServiceCentral may terminate this Agreement, effective upon written notice to Customer, if Customer or any of Customer’s Authorized Users, materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after ServiceCentral provides written notice thereof.
(c) ServiceCentral may terminate this Agreement, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
(d) Upon expiration or earlier termination of this Agreement, the rights granted hereunder shall also terminate, and Customer and its Authorized Users shall cease using and destroy all copies of the Subscription Services and Documentation.
(e) In the event of any termination of this Agreement, all obligations and responsibilities of each Party under Sections 5 through 13 shall survive and continue in effect and shall inure to the benefit of and be binding upon the Parties and their legal representatives, heirs, successors, and assigns. The termination provision of this Agreement shall not excuse a prior breach of that provision.
- Charges and Payment of Fees.ServiceCentral shall invoice Customer the Subscription Fee monthly. Customer shall pay all fees or charges to Customer’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments for the Subscription Services must be made monthly in 15 days from receiving the invoice electronically. Payments are arranged through ServiceCentral’s subscription billing system or by check. All payment obligations are non-cancelable and all amounts paid are non-refundable. Customer is responsible for paying for all Authorized User Locations and Authorized Users allocated to Customer’s account. ServiceCentral reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to Customer, which notice may be provided by e-mail. All pricing terms are confidential, and Customer agrees not to disclose them to any Third Party. Implementation advisory, support and training fees are subject to separate negotiation and are paid upon delivery.
- Billing and Renewal.ServiceCentral charges and collects monthly for use of the Subscription Services. ServiceCentral will deliver an email receipt for each month upon receipt of payment. Fees for other services will be charged on an as-quoted basis. ServiceCentral’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties. Customer agrees to provide ServiceCentral with complete and accurate billing and contact information. This information includes Customer’s legal company name, street address, and e-mail address.
- Non-Payment and Suspension.In addition to any other rights granted to Customer herein, ServiceCentral reserves the right to suspend or terminate this Agreement and Customer’s access to the Subscription Services if Customer’s account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. If Customer or ServiceCentral initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account computed in accordance with Section 5 above.
ServiceCentral reserves the right to impose a reconnection fee in the event Customer’s account is suspended and thereafter requests access to the Subscription Services. Customer agrees and acknowledges that ServiceCentral has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Customer’s account is 30 days or more delinquent.
- Responsibility for Use of Subscription Services.Customer is responsible and liable for all activities and uses of the Subscription Services, including all activity and uses by Customer’s Authorized Users, either directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Subscription Services by any Person to whom Customer or an Authorized User may provide access to or use of the Subscription Services, whether such access or use is permitted by or in violation of this Agreement.
- Collection and Use of Information.
(a) Customer acknowledges that ServiceCentral may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Subscription Services and about equipment on which the Subscription Services is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services.
(b) Customer agrees that the ServiceCentral may use such information for any purpose related to any use of the Subscription Services by Customer or its Authorized Users or on Customer’s or Authorized User’s equipment, including but not limited to:
(i) improving the performance of the Subscription Services or developing Updates; and
(ii) verifying Customer’s and/or its Authorized User’s compliance with the terms of
this Agreement and enforcing the ServiceCentral’s rights, including all intellectual property rights in and to the Subscription Services.
- Intellectual Property Rights.Customer acknowledges and agrees that ServiceCentral owns all intellectual property rights in the Subscription Services and Documentation. This Agreement does not grant Customer any rights to, or ownership interest in the Subscription Services or Documentation or any other rights thereto other than to use the same subject to all terms, conditions and restrictions, under this Agreement. ServiceCentral and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Subscription Services and all intellectual property rights arising out of or relating to the Subscription Services, except as expressly granted to Customer in this Agreement. Customer shall use commercially reasonable efforts to safeguard the Subscription Services from infringement, misappropriation, theft, misuse or unauthorized access. Customer shall promptly notify ServiceCentral if Customer becomes aware of any infringement of the ServiceCentral’s intellectual property rights in the Subscription Services and fully cooperate with ServiceCentral, at ServiceCentral’s sole expense, in any legal action taken by ServiceCentral to enforce its intellectual property rights.
- Warranty Disclaimer; Limitation of Liability.
(a) THE SUBSCRIPTION SERVICES AND DOCUMENTATION ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SERVICECENTRAL, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SUBSCRIPTION SERVICES AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, SERVICECENTRAL PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SUBSCRIPTION SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(b) TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(i) IN NO EVENT WILL SERVICECENTRAL OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SUBSCRIPTION SERVICES, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(ii) IN NO EVENT WILL SERVICECENTRAL’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO SERVICECENTRAL PURSUANT TO THIS AGREEMENT.
(iii) THE LIMITATIONS SET FORTH IN SECTION 11(b)(i) AND SECTION 11(b)(ii) SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
- U.S. Government Rights. The Subscription Services is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer or any of its Authorized Users are the U.S. Government or any contractor therefor, Customer and/or its Authorized Users shall receive only those rights with respect to the Subscription Services and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government Customers and their contractors.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia in each case located in the city of Atlanta and Fulton County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
(b) ServiceCentral shall not be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Customer or Authorized User equipment, loss and destruction of property or any other circumstances or causes beyond ServiceCentral’s reasonable control.
(c) All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Communications to the ServiceCentral must be sent to ServiceCentral Technologies, Inc., 200 Galleria Parkway, Suite 1475, Atlanta, GA 30339. Communications to the Customer will be sent to the Customer using the Customer’s address.
(d) This Agreement constitutes the sole and entire agreement between Customer and ServiceCentral with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
(e) Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without ServiceCentral’s prior written consent, which consent ServiceCentral may give or withhold in its sole discretion. Any purported assignment, delegation or transfer in violation of this Section 13(e) is void. ServiceCentral may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(g) No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(h) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) For purposes of this Agreement, (i) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections refer to the Sections of this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(j) The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.