1.     SERVICES.

1.1  Services.  From time to time, Client may order certain professional services pursuant to a professional services ordering document that is accepted in writing by Engagio that describes the specific services to be performed by Engagio and any work product to be delivered by Engagio (such services, the “Services”, and such ordering document, the “SOW”).  Each SOW will form a part of this Agreement, and will be subject to the terms and conditions contained herein.  Engagio will perform the Services specified in each SOW in accordance with this Agreement and each SOW.  No change to any SOW will be effective without the written agreement of each party.

1.2  Client Responsibilities.  In connection with each SOW, Client will provide Engagio with access to Client’s systems and facilities and otherwise cooperate with Engagio, in each case, as reasonably required to permit Engagio to perform the Services.  Client will also make available to Engagio any data, information and any other materials required by Engagio to perform the Services, including any data, information or materials specifically identified in the SOW (collectively, “Client Materials”).  Client will be responsible for ensuring that all such Client Materials are accurate and complete.

1.3 Designated Contacts. The parties will designate an individual who will be the primary point of contact (the “Primary Contact”) between the parties for all matters relating to the Services.  A party may designate a new Primary Contact by written notice to the other party.

2. PAYMENT.

Client will pay Engagio fees calculated in accordance with the terms set forth in the applicable SOW. Client shall pay those amounts set forth in invoices not disputed in good faith within thirty (30) days of the date of receipt thereof, unless a specific date for payment is set forth in the SOW, in which case the payment will be due on the date specified. All payment obligations are non-cancelable and all amounts paid are non-refundable, except for amounts paid in error that are not actually due under this Agreement. The fees paid by Client are exclusive of all taxes, levies, or duties imposed by taxing authorities, if any, and Client shall be responsible for payment of all such taxes, levies, or duties, excluding taxes based on Engagio’s income. Client represents and warrants that the billing and contact information provided to Engagio is complete and accurate. Client shall pay interest on all payments not received by the due date at a rate of one and a half percent (1.5%) or the maximum amount allowed by law, whichever is lesser.

3. PROPRIETARY RIGHTS.

Deliverables” means any work product, reports or other deliverables specifically set forth in a mutually agreed upon SOW and delivered by Engagio to Client.  As between the parties, Client shall own all right, title and interest to any Deliverables, including all intellectual property rights embodied by such Deliverables.  To the extent any portion of any Deliverables has any general applicability to the Engagio Platform (as defined below) or for Engagio’s other customers, Engagio shall have a non-exclusive, worldwide, royalty-free, sub-licensable irrevocable right to use and otherwise exploit such portion of the Deliverables for its business purposes; provided that such portion does not include any Client Confidential Information.  Notwithstanding anything to the contrary, Engagio exclusively owns all right, title and interest in and to its account-based marketing automation platform, subsequent updates and upgrades of the foregoing, and intellectual property rights to the foregoing (the “Engagio Platform”), and nothing contained in this Agreement shall be deemed to grant Client any rights or licenses in or to the Engagio Platform.

4. CONFIDENTIALITY.

Each party acknowledges that it may acquire from other party information of a sensitive or proprietary nature in connection with the activities contemplated hereunder (collectively, “Confidential Information”). The receiving party agrees to hold such Confidential Information in strict confidence and that the receiving party will not use and/or disclose such Confidential Information other than as contemplated hereunder. The receiving party further agrees that it will not allow any unauthorized person access to Confidential Information, either before or after the termination of this Agreement, and that it will take all action reasonably necessary and satisfactory to the disclosing party to protect the confidentiality of the Confidential Information, including without limitation implementing and enforcing operating procedures to minimize the possibility of unauthorized use or copying of Confidential Information and limiting access to only those employees who have a need to know for purposes contemplated hereunder and are under an express written obligation to maintain such confidentiality. These restrictions shall not apply to (a) information generally available to the public; (b) information released by the disclosing party generally without restriction; or (c) information independently developed or acquired by the receiving party without reliance on protected information of the disclosing party or its clients. The receiving party agrees to provide the disclosing party notice immediately after learning of or having reason to suspect a breach of any of these confidentiality obligations. Notwithstanding the foregoing restrictions, the receiving party may disclose information to the extent required by an order of any court or other governmental authority, but only after the receiving party has notified the disclosing party and given the disclosing party a reasonable opportunity to obtain protection for such information in connection with such disclosure.

5. DATA SECURITY.

To the extent Client provides with any customer data in connection with the Services (“Client Data”), Engagio agrees that it shall implement industry standard measures designed to protect any Client Data stored by Engagio from any unauthorized use, access, and disclosure (each, a “Security Incident”). Engagio shall promptly notify Client in the event it becomes aware of a Security Incident involving Client Data and will cooperate with Client with any investigation of such Security Incident. Client represents and warrants that it has obtained all rights and licenses necessary for Engagio to use the Client Data in connection with the Services.

6. WARRANTY.

6.1 Services Warranty. Engagio warrants that the Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Services. As Client’s sole and exclusive remedy and Engagio’s entire liability for any breach of the foregoing warranty, Engagio will either, at its sole option and expense, promptly (a) re-perform any Services that fail to meet this limited warranty or (b) refund to Client the fees paid for the non-conforming Services.

6.2 Warranty Disclaimers. THE EXPRESS WARRANTIES SET FORTH ABOVE IN SECTION 4.1 ARE IN LIEU OF, AND ENGAGIO DISCLAIMS, ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS WITH RESPECT TO THE SERVICES OR DELIVERABLES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

7. TERM AND TERMINATION OF SERVICES.

This Agreement shall continue until terminated as permitted hereunder.  Each party will have the right to terminate any SOW (and all Services thereunder) if the other party breaches any material term of such SOW or this Agreement with respect to such SOW and fails to cure such breach within thirty (30) days after receipt of written notice thereof.  In addition, each party may terminate this Agreement upon written notice to the other party if there are no SOWs in effect.  Upon the completion or termination of any SOW: (i) Engagio will promptly return to Client all Client Materials provided under such SOW; (ii) each party will promptly return to the other party all confidential information of the other party in its possession or control obtained under such SOW; and (iii) Client will, within thirty (30) days after receipt of Engagio’s invoice, pay all accrued and unpaid fees and expenses under such SOW.  All fees that have accrued as of such expiration or termination, and Sections 2, 3, 4, 5, 2, and 7 through 11 of this Agreement, will survive the completion or termination of any SOW.

8. NON-SOLICITATION.

During the term of this Agreement and for a period of twelve (12) months thereafter, Client will not recruit or otherwise solicit for employment any Engagio employees or subcontractors who participated in the performance of Services without Engagio’s express prior written approval.

9. LIMITATION OF LIABILITY.

9.1 EXCEPT FOR LIABILITY ARISING OUT OF A BREACH OF SECTION 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 EXCEPT FOR LIABILITY ARISING OUT OF A BREACH OF SECTION 4 OR CLIENT’S PAYMENT OBLIGATIONS HEREUNDER, NEITHER PARTY’S LIABILITY HEREUNDER FOR ANY DAMAGES (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY, OTHER TORTS OR OTHERWISE) SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID TO ENGAGIO HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

10. FORCE MAJEURE.

Except for payment obligations, neither party hereto will be liable for defaults or delays due to Acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, floods, accidents, or other unforeseeable causes beyond its control and not due to its fault or negligence.

11. MISCELLANEOUS.

This Agreement shall be governed by and construed under the laws of the State of California. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving San Mateo, California. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect. This Agreement represents the entire agreement between the parties and supersede any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this Agreement. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties. This Agreement shall control over additional or different terms of any purchase order, confirmation, invoice or similar document, even if accepted in writing by both parties, and waivers and amendments to this Agreement shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this Agreement. The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement. This Agreement may not be assigned by either party without the prior written approval of the other, except that either party may assign this Agreement to a successor to all or substantially all of the business or assets to which this Agreement relates, and Engagio may assign this Agreement to any of its affiliates; and any purported assignment in violation of this section shall be void.

(Last updated 12 August 2019)