Terms of Service
By signing a Product Order Form or completing an online registration or purchasing process with ServiceChannel.com, Inc., or an Affiliate of ServiceChannel.com, Inc. that is named in such Product Order Form or online flow (together with its Affiliates, “ServiceChannel”), or by accessing or using any Services, Customer (as specified in the applicable Order Document) agrees to be bound by the terms and conditions set forth in these Terms of Service (“Agreement”).
“Active Location” means a Customer facility for which Services are available with at least one Service Contractor relationship with an “open date” that is blank or occurs prior to the applicable monthly billing date, solely as designated and updated by Customer in the Customer Data.
“Active Technician” means a Customer Technician for which the Services are available that is entered as Customer Data.
“Actual Units” means the actual number of units of a Service that Customer uses, including without limitation, Active Locations and Active Technicians.
“Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity for so long as such control continues to exist.
“Agreement” means these terms and conditions, along with any applicable Product Order Form(s) and any exhibit, amendment or addendum to any of the foregoing.
“Beta Services” means ServiceChannel’s services that are not generally available to customers.
“Contracted Units” mean the units of a Service that Customer orders as set forth on the Product Order Form, including, but not limited to the number of Customer Locations and Customer Technicians.
“Customer Content” means all materials, including without limitation information, data, text, graphics, or materials generated in any form or media, provided by Customer or its authorized Service Contractors to ServiceChannel for use or posting on or in connection with the Services relating to the fulfillment of the commercial relationship between Customer and its Service Contractors together with related performance data and billing information.
“Customer Data” means Customer Content and other electronic data and information submitted by or for Customer to the Services or collected and processed by or for Customer using the Services, excluding ServiceChannel Content.
“Customer Location” means a Customer facility.
“Customer Technician” means a Customer employee that maintains and repairs facilities, equipment and property of Customer at Customer Locations or performs related services thereat.
“Documentation” means ServiceChannel’s online user guides, documentation and help and training materials, as updated from time to time.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Product Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between Customer and ServiceChannel or any of its Affiliates, including any addenda and supplements thereto. By entering into a Product Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“SaaS Services” means ServiceChannel’s Software as a Service platform and related services, including ServiceChannel Essentials.
“SC Professional Services” means the professional services set forth in an applicable Product Order Form and may include ServiceChannel Network Development Services or ServiceChannel Work Order Management Services.
“Service Contractors” means third parties that provide materials or services to Customer and/or maintain and repair facilities, equipment and property of Customer at Customer Locations or perform related services thereat. For clarity, Service Contractors include SCM Service Providers (as defined below).
“ServiceChannel Content” means materials, including but not limited to any computer software (in object code and source code form), data or information (including data and information about Service Contractors), know-how, methodologies, equipment or processes developed or provided by ServiceChannel under this Agreement, or used on, to, in connection with or to create or operate the Services or any part thereof, including without limitation all copyrights, trademarks, patents and trade secrets and any other proprietary rights therein, excluding Customer Content.
“Services” means the products and services that are ordered by Customer and specified on a Product Order Form and may include access to websites, implementation services, customer service, support and maintenance and includes SaaS Services and SC Professional Services.
“User” means an individual who is authorized by Customer to use a Service with respect to an applicable Customer Technician or Customer Location, for whose Customer Location has ordered the Service, and to whom Customer (or ServiceChannel at Customer’s request) has supplied a user identification and password. Users may include, for example, Customer’s employees, consultants, contractors and agents and third parties with which Customer transacts business.
“Work Order” means a work order submitted to the Services by Customer and includes Reactive Work Orders and Scheduled Work Orders. “Reactive Work Order” means a Work Order for services to repair equipment, structure or other asset that has malfunctioned, been damaged or is otherwise in need of repair, in order to restore it to its normal operating condition. “Scheduled Work Order” means a Word Order for maintenance tasks that are assigned to a service provider with a given timeframe, and can include, without limitation, inspections, adjustments, regular service or planned shutdowns.
2. SERVICECHANNEL RESPONSIBILITIES
2.1 Overview. ServiceChannel will provide access to the Services, including enabling Customer to maintain Customer Data of Service Contractors for their business locations, to administer requests for products and services from such vendors, to confirm execution of such services, to process bills for such products and services and, if specified in an applicable Product Order Form, to effect payment of such bills. If SC Professional Services are ordered by Customer in a Product Order Form, ServiceChannel shall provide such SC Professional Services to Customer, in accordance with the specifications and requirements set forth on the ServiceChannel platform and the applicable Product Order Form(s).
2.2 Provision of SaaS Services. Subject to the terms and conditions of this Agreement and pursuant to the applicable Product Order Form(s), ServiceChannel will (a) maintain and operate the SaaS Services via the ServiceChannel platform in accordance with industry standards, (b) make the SaaS Services and ServiceChannel Content available to Customer and (c) schedule maintenance, upgrades and required repairs in a manner and at a time that will reasonably minimize disruption to Customer’s use of the SaaS Services; in each case, in accordance with the then-current ServiceChannel service levels located at https://servicechannel.com/servicechannel-contracts/, as may be amended from time to time, and excepting any unavailability caused by circumstances beyond ServiceChannel’s reasonable control, including, for example, an act of god, government or terror, flood, fire, earthquake, civil unrest, strike or other labor problem (other than one involving ServiceChannel’s employees), Internet service provider failure, delay or denial of service or attack.
2.3 Protection of Customer Data. ServiceChannel will maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation and in ServiceChannel’s then-current Security and Disaster Recovery Addendum located at https://servicechannel.com/servicechannel-contracts/, as may be amended from time to time. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by ServiceChannel’s personnel, except (a) to provide Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.4 (Required Disclosure) below or (c) as Customer expressly permits in writing.
To the extent applicable, ServiceChannel’s Data Protection Agreement (available at https://servicechannel.com/data-protection-agreement/) is incorporated by reference into this Agreement.
2.4 Beta Services. From time to time, ServiceChannel may invite Customer to try Beta Services. Customer may accept or decline any such trial in Customer’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported and may be subject to additional terms. Unless otherwise stated, access to any Beta Services will expire upon the earlier of one (1) year from the trial start date or the date that a version of the Beta Services becomes generally commercially available. ServiceChannel may discontinue Beta Services at any time in ServiceChannel’s sole discretion and may never make them generally commercially available. ServiceChannel will have no liability for any harm or damage arising out of or in connection with a Beta Service.
2.5 End of Life. Customer acknowledges and agrees that ServiceChannel may discontinue any Service upon at least twelve (12) months prior written notice to Customer (“End of Life”). In the event of a planned End of Life, the parties agree to negotiate in good faith the transition of Customer to a replacement Service, if any, to be delivered within a commercially reasonable timeframe to support the specified End of Life. Upon Customer’s acceptance of the replacement Service, if any, the Agreement shall continue in accordance with the applicable Product Order Form. If after good faith negotiations the Customer elects to not agree to or accept a replacement Service at End of Life, Customer may terminate this Agreement in part, with respect to the discontinued Service, or in whole, upon written notice to ServiceChannel without further liability for recurring or other fees.
3. USE OF SAAS SERVICES AND SERVICECHANNEL CONTENT
3.1 Subscriptions. Unless otherwise provided in the applicable Product Order Form, (a) SaaS Services are purchased as subscriptions, (b) subscriptions (including additional Contracted Units and Actual Units) may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
3.2 Access and Use. Subject to the terms and conditions of this Agreement, if ordered by Customer pursuant to a Product Order Form, ServiceChannel hereby grants to Customer a non-exclusive, nontransferable (except as otherwise set forth herein) license to access and use the SaaS Services and ServiceChannel Content, including to post, access, display, print and download Customer Data.
3.3 Usage Limits. SaaS Services and ServiceChannel Content are subject to usage limits, including, for example, the quantities specified in a Product Order Form. Unless otherwise specified, (a) quantity in a Product Order Form refers only to the number of Contracted Units or Actual Units, for use only by Users authorized by Customer to use the SaaS Services with respect to the applicable Contracted Units or Actual Units, (b) a User’s password may not be shared with any other individual and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the SaaS Service or ServiceChannel Content.
3.4 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Customer Data (including promptly updating Active Locations using the SaaS Services and changing the status of or removing from Customer Data former Active Locations that are no longer Active Locations) and the means by which Customer acquired Customer Data (ServiceChannel does not review any information or data contained in Customer Data for accuracy or completeness), (c) use commercially reasonable efforts to prevent unauthorized access to or use of SaaS Services and ServiceChannel Content and notify ServiceChannel promptly of any such unauthorized access or use and (d) use SaaS Services and ServiceChannel Content only in accordance with the Documentation and applicable laws and government regulations.
3.5 Usage Restrictions. Customer will not, directly or indirectly, (a) make any SaaS Service or ServiceChannel Content available to, or use any SaaS Service or ServiceChannel Content for the benefit of, anyone other than Customer and its Affiliates or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any SaaS Service or ServiceChannel Content, or include any Service or ServiceChannel Content in a service bureau or outsourcing offering, (c) use a SaaS Service to store or transmit infringing, libelous or otherwise unlawful or tortious material or to store or transmit material in violation of third-party privacy rights, (d) use a SaaS Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any SaaS Service or third-party data contained therein, (f) attempt to gain unauthorized access to any SaaS Service or ServiceChannel Content or its related systems or networks, (g) permit direct or indirect access to or use of any SaaS Service or ServiceChannel Content in a way that circumvents a contractual usage limit, (h) copy a SaaS Service or any part, feature, function or user interface thereof, (i) copy ServiceChannel Content except as permitted herein or in a Product Order Form or the Documentation, (j) frame or mirror any part of any SaaS Service or ServiceChannel Content, other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation, (k) access any SaaS Service or ServiceChannel Content in order to build a competitive product or service or (l) reverse engineer any SaaS Service or ServiceChannel Content (to the extent such restriction is permitted by law).
3.6 Non-ServiceChannel Products and Services. Through the SaaS Services, Customer may request, track and administer contractor services of Service Contractors or other third parties such as call centers. Additionally, Customer may request that ServiceChannel integrate the SaaS Services with non-ServiceChannel products and services. Any acquisition by Customer of third-party data, products or services, and any exchange of data between Customer and any applicable party (including a Service Contractor), is solely between Customer and the applicable third party. ServiceChannel does not warrant or support any such products or services of Service Contractors, whether or not they are designated by ServiceChannel as “certified” or otherwise, except as specified in a Product Order Form.
3.7 Access to Customer Data. If Customer enables Service Contractors to access Customer Data for use with a SaaS Service, Customer grants ServiceChannel permission to allow such party to access Customer Data as required for the SaaS Service. ServiceChannel is not responsible for any disclosure, modification or deletion of Customer Data resulting from such access.
3.8 Relationship with Service Contractors. ServiceChannel does not assess the adequacy of the repairs or services rendered by Service Contractors who are wholly responsible to Customer with respect thereto. Any question concerning the accuracy of Customer Data or any omission therein shall be addressed to Customer or the applicable Service Contractor who rendered (or was supposed to supply or perform) the services, parts or repairs in question. Customer acknowledges that ServiceChannel may charge Service Contractors fees use of ServiceChannel’s products and services for contractors, including for access, processing transactions, reports or integrations or providing and posting specific data content in the ordinary course of business between ServiceChannel and such Service Contractor. In addition, ServiceChannel shall have the right to market other services and business tools to Service Contractors for fees.
3.9 Payment of Service Contractor Invoices. Customer will pay all Customer’s Service Contractor’s directly and will handle all inquiries by Customer’s Service Contractors about payment for services.
4. SC PROFESSIONAL SERVICES
4.1 Customer Cooperation. Customer will furnish to ServiceChannel Customer Data, cooperation, technical assistance, resources and support as reasonably necessary or appropriate to perform the ServiceChannel Professional Services. Such cooperation may include (a) actively participating in implementation, including attending weekly system trainings, attending weekly implementation meetings, providing a list of company names and email addresses for any service providers the client is bringing in to the Services, providing data in the Services’ templates for locations, location notes, users, assets, collaboration on creating, testing, and approving eInvoice specifications and files, coordination of location training and distribution of end-user credentials, (b) collaborating and communicating with its assigned ServiceChannel program manager for any change requests to any and all standing operating procedures, (c) promptly reviewing and accepting or rejecting SCM Service Providers (as defined below), (d) creating Work Orders via the SaaS Services, mobile app or calling the ServiceChannel Call Center, (e) approving proposals submitted by Service Contractors or SCM Service Providers which are above agreed proposal approval limit specified in the SaaS Services or otherwise agreed to in writing, (f) approving invoices submitted by Service Contractors or SCM Service Providers which are above agreed proposal approval limit specified in the SaaS Services or otherwise agreed to in writing, (g) timely reviewing and providing authorization for reasonable requests to increase SCM Work Order not-to-exceed amounts where request is above agreed not-to-exceed increase limit, (h) providing escalation paths and contact information, and (i) informing the assigned ServiceChannel program manager of changes to any and all configurations necessary for the performance of the applicable SC Professional Service.
4.2 Network Development Services. If Customer uses ServiceChannel Network Development Services, as ordered in a Product Order Form , ServiceChannel will provide a panel of service providers for Customer to select from who are chosen from criteria (the “Criteria”) such as operating address, contractual terms, insurance types and amounts, labor rate, trade capabilities, and geographical capabilities. ServiceChannel will provide the Criteria for the applicable service provider to Customer and, if applicable, any exceptions to the Criteria. Customer will have the option to accept or reject the service provider into its provider network. If Customer accepts a service provider into its provider network, that service provider will be deemed an “SCM Service Provider.” Customer acknowledges that SCM Service Providers will be required to agree to the Provider Standard Services Agreement available at https://servicechannel.com/resources-download/customer_scmprovider_services_agreement.pdf (“Provider Services Agreement”) and will be subject to the legal terms and insurance requirements specified therein. If Customer accepts an SCM Service Provider into Customer’s provider network, Customer will be deemed to have accepted and be contractually bound to the Provider Services Agreement with respect to such SCM Service Provider, including without limitation the insurance requirements in the Provider Services, without further execution by Customer. Any additional terms that Customer desires an SCM Service Provider to be bound by, such as additional legal terms or insurance requirements, must be negotiated directly between Customer and any applicable SCM Service Provider (i.e., this is not facilitated by ServiceChannel). For clarity, ServiceChannel does not warrant the services of SCM Service Providers and will not be liable for the acts or omissions of SCM Service Provider.
4.3 Payment of SCM Service Provider Invoices. Customer will pay all Customer’s SCM Service Provider’s directly and will handle all inquiries by Customer’s SCM Service Providers about payment for services.
4.4 Additional SCM Service Provider Terms and Conditions. Some SCM Service Provider of certain trades (e.g., equipment rentals) may have additional terms and conditions that they will require directly of Customer to receive the ServiceChannel Work Order Management Services (“Additional SCM Service Provider Terms”). Customer acknowledges that in order to receive such ServiceChannel Work Order Management Services Customer will need to agree to such Additional SCM Service Provider Terms directly with the applicable SCM Service Provider.
5. FEES AND PAYMENT FOR SERVICES
5.1 Fees. Customer will pay all fees specified in Product Order Forms. Except as otherwise specified herein or in a Product Order Form, (a) fees are based on Services purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, (c) quantities purchased cannot be decreased during the relevant subscription term and (d) monthly fees will continue to accrue for all Actual Units so long as they remain so designated and will be adjusted on a monthly basis to reflect any increase or decrease therein, provided that monthly fees will be equal to the greater of those due for the number of Actual Units or Contracted Units.
5.2 Invoicing and Payment. ServiceChannel will invoice Customer in accordance with the Product Order Form. The calculation of overage fees will be based upon the greater of the number of Actual Units or the number of Contracted Units as calculated on the last day of the prior month, for the current month’s service period. Unless otherwise stated in the Product Order Form, invoiced charges are due net thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to ServiceChannel, including valid credit card information (if applicable), and notifying ServiceChannel of any changes to such information. If Customer provides credit card information to ServiceChannel, Customer authorizes ServiceChannel to charge such credit card for all Services for the applicable initial subscription term(s) and any renewals thereof, in accordance with the applicable Product Order Form(s) and this Agreement.
5.3 Overdue Charges. If any invoiced amount is not received by ServiceChannel by the due date, then without limiting ServiceChannel’s rights or remedies, (a) those charges may accrue late interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) ServiceChannel may condition future subscription renewals and Product Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4 Suspension of Service. If any amount (a) owed by Customer to ServiceChannel under this or any other agreement for ServiceChannel services is thirty (30) or more days overdue or (b) owed by Customer to any Service Contractor is thirty (30) or more days overdue, ServiceChannel may, without limiting ServiceChannel’s other rights and remedies, suspend ServiceChannel’s services to Customer until such amounts are paid in full. ServiceChannel will give Customer at least ten (10) days’ prior notice that Customer’s account is overdue, in accordance with Section 12.4 (Notice), before suspending services to Customer.
5.5 Payment Disputes. ServiceChannel will not exercise its rights under Sections 5.3 (Overdue Charges) or 5.4 (Suspension of Service) above only if Customer notifies ServiceChannel of a payment dispute within ten (10) days of receipt of the applicable invoice, is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If a dispute is not raised within such period, the invoice shall be deemed to have been accepted by Customer.
5.6 Taxes and Duties. ServiceChannel’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature,(including, but not limited to, ad valorem, consumption, excise, franchise, gross receipts, import, license, property, sales, stamp, storage, transfer, turnover, use or value-added, and any and all items of withholding, deficiency, penalty, addition to tax, interest, or , assessment related thereto) imposed by any governmental authority on Customer or its employees or subcontractors in any way connected with this Agreement (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. All payments due and payable to ServiceChannel by Customer under this Agreement shall be made without deduction or withholding for Taxes, except that if Customer shall be required by law to deduct or withhold any Taxes from or in respect to any amount payable by it to ServiceChannel hereunder, the amount payable by Customer shall be increased by such amount as may be necessary so that after making all required deductions or withholdings, ServiceChannel receives an amount equal to that which ServiceChannel would have received if no such deduction or withholding had been made.
5.7 Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by ServiceChannel regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, ServiceChannel and its licensors reserve all respective right, title and interest in and to the Services and ServiceChannel Content, including all respective intellectual property rights therein or related thereto. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 License to Customer Data. Customer hereby grants to ServiceChannel and its Affiliates a worldwide, non-exclusive, royalty-free, transferable and sublicensable license to host, use, copy, modify, distribute, transmit and display Customer Data as necessary for ServiceChannel to provide the Services. Subject to the licenses granted herein, ServiceChannel acquires no right, title or interest from Customer or its licensors under this Agreement in or to Customer Data. Notwithstanding the foregoing, ServiceChannel and its Affiliates shall have the right to compile, use, distribute, copy, incorporate, report on, create derivatives of and otherwise benefit from Deidentified Data for ServiceChannel’s business purposes, including but not limited to assessing the operation and organizational effectiveness of the ServiceChannel website or Services (including benchmarking, performance and usage), for use in ServiceChannel’s or its Affiliates’ existing or future products or services and marketing, internal or external reporting and/or management purposes, and any other rights to use or otherwise benefit from Customer Data as agreed to by Customer through the Services. “Deidentified Data” means data submitted to or collected or generated by ServiceChannel or its Affiliates in connection with Customer’s use of the Service, but only in a deidentified or anonymized form that is not linked specifically to Customer.
6.3 Feedback. Customer hereby assigns and agrees to assign to ServiceChannel all right, title and interest in and to any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Services.
7. CONFIDENTIAL INFORMATION
7.1 Definition. Each party agrees that the business, technical and financial information, including without limitation all software, source code, inventions, algorithms, know-how, ideas and the terms and conditions of this Agreement, that is designated in writing as confidential, or is disclosed in a manner from which a reasonable person would understand the confidential nature thereof, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (a) is previously rightfully known to the receiving party without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation or (d) is independently developed by the receiving party.
7.2 Confidentiality. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information and shall similarly bind its employees, consultants, independent contractors and clients in writing.
7.3 Return of Confidential Information. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party in industry standard format, and the receiving party will make no further use of such materials, except to the extent that such party has a continuing right to such materials herein.
7.4 Required Disclosure. If required by law, the receiving party may disclose Confidential Information but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
7.5 Relief. Money damages will not be an adequate remedy if this Section 7 is breached and, therefore, either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 ServiceChannel Warranties. ServiceChannel warrants that (a) the SaaS Services will perform materially in accordance with the applicable Documentation, (b) ServiceChannel will not materially decrease the functionality of the SaaS Services during a subscription term, (c) ServiceChannel Content will not introduce Malicious Code into Customer’s systems, and (d) the SC Professional Services will be performed in a professional and workmanlike manner, consistent with industry standards.
8.3 Procedure; Sole Remedy. Customer must notify ServiceChannel of any warranty deficiencies within thirty (30) days from performance of the relevant Services in order to receive warranty remedies. For any breach of the express warranties set forth above, Customer’s exclusive remedy shall be the performance or correction of the deficiency. If ServiceChannel is unable to reperform or correct such deficiency, Customer shall be entitled to end such deficient Service and recover the portion of the fees prepaid to ServiceChannel for such Service prior to such notification, and such refund shall be ServiceChannel’s entire liability.
8.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF SERVICE, TIMELINESS, RELIABILITY, AVAILABILITY, SUITABILITY, ACCURACY, COMPLETENESS OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICECHANNEL CONTENT IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
9. MUTUAL INDEMNIFICATION
9.1 Indemnification by ServiceChannel. ServiceChannel will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded to such third party against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer, provided Customer (i) promptly gives ServiceChannel written notice of the Claim Against Customer, (ii) gives ServiceChannel sole control of the defense and settlement of the Claim Against Customer (except that ServiceChannel may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives ServiceChannel all reasonable assistance, at ServiceChannel’s expense. If ServiceChannel receives information about an infringement or misappropriation claim related to a Service, ServiceChannel may in its sole discretion and at no cost to Customer (A) replace or modify the Service so that it no longer infringes or misappropriates, (B) procure for Customer the right to continue using that Service, or (C) terminate Customer’s subscriptions for that Service and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Customer Data or Customer’s breach of this Agreement. The foregoing obligations shall not apply to: (1) Services modified by any party other than ServiceChannel, if the alleged infringement relates to such modification, (2) Services combined or bundled with any non-ServiceChannel services or materials where the alleged infringement relates to such combination, (3) Services created to the specifications of Customer; or (4) infringement or misappropriation of any proprietary right in which Customer has an interest. This Section 9.1 states ServiceChannel’s sole liability to, and Customer’s exclusive remedy against, any type of claim described in this Section 9.1.
9.2 Indemnification by Customer. Customer will defend ServiceChannel against any claim, demand, suit or proceeding made or brought against ServiceChannel by a third party (a “Claim Against ServiceChannel”) arising out of or in connection with (a) Customer Data, (b) Customer’s use of any Service or ServiceChannel Content in breach of this Agreement, or (c) Customer’s agreement with a Service Contractor, including without limitation, any claim that ServiceChannel is liable to a Service Contractor for the payment obligations of Customer to its respective Service Contractors for services performed, and will indemnify ServiceChannel from any damages, attorney fees and costs finally awarded to such third party against ServiceChannel as a result of, or for any amounts paid by ServiceChannel under a court-approved settlement of, a Claim Against ServiceChannel, provided ServiceChannel (i) promptly gives Customer written notice of the Claim Against ServiceChannel, (ii) gives Customer sole control of the defense and settlement of the Claim Against ServiceChannel (except that Customer may not settle any Claim Against ServiceChannel unless it unconditionally releases ServiceChannel of all liability), and (iii) gives Customer all reasonable assistance, at Customer’s expense.
10. LIMITATION OF LIABILITY
10.1 Cap on Damages. SERVICECHANNEL’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT IN THE AGGREGATE EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER FOR THE APPLICABLE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Product Order Forms hereunder have expired or have been terminated. The Subscription Term commences on the Subscription Term Start Date.
11.2 Term of Purchased Subscriptions. The term of each subscription to Services shall be as specified in the applicable Product Order Form.
11.3 Termination. Either party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 11.3 (Termination), ServiceChannel will refund Customer any prepaid fees covering the remainder of the term of all Product Order Forms after the effective date of termination. If this Agreement is terminated by ServiceChannel in accordance with Section 11.3, Customer will pay any unpaid fees covering the remainder of the term of all Product Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to ServiceChannel for the period prior to the effective date of termination.
11.5 Customer Data Portability; Transition Services. Upon request from Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, ServiceChannel will make Customer Data available to Customer for export or download in industry standard format in accordance with the Documentation. After that thirty- (30-) day period, ServiceChannel will have no obligation to maintain or provide Customer Data, and Customer may thereafter no longer have access thereto. Notwithstanding the foregoing, ServiceChannel will permit one User read-only access to Customer Data in industry standard format for ninety (90) days after the effective date of termination or expiration of this Agreement for an additional fee if Customer uses the Services to opt into such access prior to such expiration or termination. ServiceChannel will automatically invoice Customer for any such access in accordance with the terms of this Agreement without the requirement of a new Product Order Form. The parties may agree to additional transition services to be provided after the effective date of termination or expiration of this Agreement pursuant to an applicable Product Order Form.
11.6 Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Customer Data Portability” and “General Provisions” will survive any termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1 Insurance. During the term of this Agreement, ServiceChannel shall maintain the minimum required insurance necessary under Applicable Law to perform the Services and shall provide a copy of ServiceChannel’s Certificate of Insurance upon Customer’s written request.
12.2 Publicity. Each party shall only use the respective trademarks, service marks and logos (collectively referred to as “Marks”) of the other party with prior written authorization. Upon receiving such authorization, which shall specify the general permitted scope of use each party will only use and display the other party’s Marks, each party will only use and display the other party’s Marks and copyrighted information in accordance with the applicable guidelines provided by the Mark owner. Each party will ensure that proper trademark and copyright notices are displayed at all times in association with the Marks and copyrighted materials, including any such use or display on the other party’s website.
12.3 Relationship of Parties. The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
12.4 Notice. Notices under this Agreement shall be sufficient only if in writing and personally delivered, delivered by a major commercial rapid delivery courier service or mailed by certified or registered mail, return receipt requested to a party at the address first set forth herein or as amended by notice pursuant to this subsection.
12.5 Force Majeure. If either party is unable to perform any of its obligations under this Agreement, other than payment obligations, due to any cause beyond the reasonable control of such party, the affected party’s performance shall be extended for the period of its inability to perform due to such occurrence.
12.6 Headings. Headings and captions used in this Agreement are for convenience only and are not to be used in the interpretation of this Agreement.
12.7 Assignment. This Agreement and the rights and obligations herein may not be assigned or transferred, in whole or in part, by either party without the prior written consent of the other party, except that either party may assign this Agreement to an Affiliate or in connection with its merger or sale of all or substantially all its assets or business to which this Agreement relates without consent. Any assignment in violation of this provision is void and without effect. In the case of any permitted assignment or transfer of or under this Agreement, this Agreement or the relevant provisions shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto.
12.8 Governing Law. This Agreement shall be governed by and construed under the laws of Delaware and the United States without regard to conflicts of laws provisions thereof.
12.9 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover its costs, expenses and attorneys’ fees.
12.10 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.
12.11 Entire Agreement. This Agreement together with the exhibits hereto and any Product Order Form(s), constitute the entire agreement between the parties relating to the subject matter hereof and supersede all proposals, letters of intent, memoranda of understanding, or discussions, whether written or oral, relating to the subject matter of this Agreement and all past dealing or industry custom.
12.12 Waiver. No provision of, right or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing duly executed by both parties. No waiver by any party of any breach or default of any provision of this Agreement by the other party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver.
12.13 Modification. SERVICECHANNEL MAY UPDATE THE TERMS OF THIS AGREEMENT OR POST AN UPDATED AGREEMENT ON THE SERVICECHANNEL WEBSITE AT ANY TIME, AND, TO THE EXTENT PERMITTED BY LAW, SUCH MODIFICATIONS WILL BE EFFECTIVE IMMEDIATELY AND (IF LEGALLY PERMITTED), SHALL APPLY RETROACTIVELY. CUSTOMER AGREES TO THE MODIFIED AGREEMENT BY CONTINUING TO USE THE SERVICES.
Date Last Updated: October 6, 2023