Legal

Last Updated: April 4th, 2020

Skedulo Master Subscription Agreement

This Master Subscription Agreement (“Agreement”) is entered into between Skedulo (as defined below) and the customer (“Customer”) identified in the corresponding Order Forms referencing this Agreement as of the Effective Date.  This Agreement sets forth the terms and conditions under which Customer may use the Services.  By accepting this Agreement, including by executing an Order Form that references this Agreement, Customer agrees to the terms of this Agreement and represents that the person signing the Order Form has the authority to bind Customer to this Agreement.

1. SERVICES

1.1 Provision of Services. Subject to payment of applicable Fees, Customer and End Users may download, access and use the Services in accordance with this Agreement and the Documentation. Skedulo will provide the Services in accordance with the Service Level Agreement set forth in Exhibit A.

1.2 Subscriptions. Except as set forth in the Order Form, Services are made available as subscriptions and additional End User subscriptions may be added during the Subscription Term at the same price applicable to that subscription type, prorated for the remainder of the then-current Subscription Term.  Any additional End User subscriptions or subscriptions where an End User is upgraded to a new subscription type will be billed automatically.

1.3 Security & Privacy. Skedulo will implement and maintain an industry-standard information security program with administrative, physical, and technical safeguards designed to protect the integrity of Customer Data. Skedulo will transfer, store, and process Customer Data in accordance with Skedulo’s privacy policy.

1.4 Software. Some Services allow Customer and End Users to download Skedulo software, which may be updated automatically.  Skedulo grants Customer a limited, non-transferrable (except as provided herein), non-exclusive right during the Term to download, access and, use such software only to facilitate use of the Services.

1.5 Changes. Skedulo may, at its discretion, modify or update the Services from time to time.  Skedulo will notify Customer in advance of changes to the Services that may materially affect their functionality.

1.6 Support. Skedulo will provide standard email support for the Services to Customer at no additional charge. Customer can email Skedulo’s help desk at help@skedulo.com. Skedulo is not responsible for support issues caused by Customer’s use and administration of Third-Party Services.

1.7 License Restrictions. Except as expressly provided herein, Customer shall not directly or indirectly: (i) decompile, disassemble, decode, redesign, reverse engineer or attempt to reconstruct or discover any source code, algorithms, architecture, or other elements of; (ii) translate, adapt, or modify; (iii) write or develop any program based upon; (iv) use for benchmarking or ‘service bureau’ purposes; (v) sell, sublicense, transfer, or otherwise assign or grant to any third party any rights in; (vi) allow access to unauthorized persons to; or (vii) otherwise use except as expressly permitted hereunder, in each case of (i) – (vii), the Services.

2. CUSTOMER USE OF SERVICES

2.1 Customer Responsibilities. Customer is responsible for any use of the Services and Third-Party Services through its account, including all use of the Services by Customer’s End Users. Customer is responsible for maintaining the confidentiality of account credentials used by End Users to access the Services and preventing unauthorized use of the Services. Customer may not permit sharing of End User accounts and passwords.

2.2 Customer Administration. Customer is responsible for designating Administrators for its Services account, maintaining updated Administrator contact information, and managing access to Administrator accounts. The Customer acknowledges that if it purchases the Services through a reseller, the reseller’s personnel may be designated Administrators for Customer’s Services account and have corresponding access and control.

2.3 Modifications. Subject to the terms and conditions of this Agreement, Customer or a Third-Party Service acting on Customer’s behalf may customize and configure the Services or modify Skedulo Materials (“Customer Modifications”) solely to develop bug fixes, customizations, and additional features for the Services for its own internal use.  Customer is responsible to ensure that no copyleft style open source software (e.g., requiring that any modifications to the open source software, or combinations of the open source software with other software, be made available in source code form under the terms of the copyleft style license) will be used with the Services or Skedulo Materials under any circumstances. Any Skedulo Materials that is not provided under an open source license is Skedulo Technology and Skedulo’s Confidential Information.  Customer may only use the Customer Modifications with respect to its own use of the Services and may not distribute Customer Modifications to any third party.  Notwithstanding anything in this Agreement, or a professional services agreement to the contrary, (a) Skedulo does not warrant or support any Customer Modifications and (b) Skedulo will have no liability and provide no indemnification with respect to the Customer Modifications or their combination, interaction, or use with the Services.

2.4 Usage Limits. Use of the Services may be subject to usage limits set forth in Customer’s Order Form or the Documentation.

2.5 Content. Skedulo respects the intellectual property rights of third parties and responds to notices of alleged copyright infringement if they comply with the law.  Skedulo reserves the right to delete Customer Data alleged to be infringing from Customer’s Services account and terminate End Users or Customers that repeatedly infringe third-party rights.

2.6 Suspension. Skedulo may suspend Customer’s or End User’s right to use the Services and Third-Party Services if (a) Customer or End User’s use of the Services or Third-Party Services poses a security risk, or may adversely affect the Services or Third-Party Services, Skedulo’s systems and infrastructure, or a third party, (b) Customer or End User’s use of the Services or Third-Party Services could subject Skedulo to liability, or (c) Customer is in breach of this Agreement.  Skedulo will use commercially reasonable efforts to provide prompt notice of a suspension.  If Customer is required disable the Third-Party Services in order for Skedulo to exercise its suspension rights, Customer will promptly disable the Third-Party Services until the issue is resolved.

3. THIRD-PARTY SERVICES

3.1 Third-Party Services. The Services allow Customer to import data from and export data to Third-Party Services (e.g., Salesforce and ServiceNow).  By using the Services, Customer authorizes Skedulo to transfer, store, and process Customer Data from End Users and Customer’s Third-Party Services accounts on its behalf.  By using the Services, Customer also authorizes Skedulo to export Customer Data to Customer’s Third-Party Services accounts on its behalf.

3.2 Responsibility. If Customer uses a Third-Party Service, Skedulo will not be responsible for any act or omission of the Third-Party Service, including the Third-Party Service’s access to, use, provision, modification, or deletion of Customer Data or the Third-Party Service’s integrity, accuracy, timeliness, or security. Skedulo does not warrant or support any Third-Party Service.  Skedulo cannot ensure the continued availability of features in the Services that interact with Third-Party Services, and may remove such features from the Services without Customer receiving any compensation or refund.  Customer is responsible for securing proper licenses from or adjusting settings with Third-Party Services in order to make certain data and functionality available to End Users using the Services.  Customer will comply with its agreements with any Third-Party Service.  The Services may also be subject to limitations (e.g., limits on data storage space, limits on the number of API calls) related to Customer’s use of the Services with Third-Party Services.

4. INTELLECTUAL PROPERTY RIGHTS

4.1 Reservation of Rights. Except for the rights granted in Section 1.1 (Provision of Services) and this Section 3.1 (Skedulo License), Skedulo and its licensors own and reserve all right, title, and interest in and to the Skedulo Technology.

4.2 Customer License. Except for the rights granted in this Section 4.2 (Customer License), Customer owns and reserves all right, title, and interest in and to the Customer Data.  Customer grants Skedulo and its contractors a worldwide, non-exclusive, right to use, copy, distribute, create derivative works based on, display, and perform its Customer Data, Third-Party Services, and Modifications as reasonably necessary for Skedulo to provide the Services to Customer.

4.3 Reports. Skedulo may use Skedulo Data (i) to provide, analyze, support, operate, and improve the Services and develop new products and services and (ii) create and distribute reports and materials about the Services. Skedulo will not identify Customer as a source of information for any report or material described in this section without Customer’s permission.

4.4 Customer Marketing. Skedulo may use Customer’s name, logo, and marks to identify Customer as a Skedulo customer on Skedulo’s website and in other marketing materials.  Customer also agrees to participate in joint press releases, case studies, reference calls, and other marketing initiatives.

5. FEES AND PAYMENT

5.1 Fees. Customer will pay Skedulo the fees for the Services set forth in the Order Form.  All payments are due in U.S. dollars unless otherwise indicated on the Order Form or invoice.  Customer is responsible for providing complete and accurate billing and contact information to Skedulo and updating Skedulo of any changes.  All fees paid are non-refundable except as set forth in this Agreement and not subject to set-off.  If Customer is purchasing the Services from a reseller, Customer’s payment obligations may be to the reseller.

5.2 Invoicing & Payment. Unless otherwise set forth in the Order Form, all fees will be invoiced in advance and are due and payable upon execution of this Agreement, and once Skedulo receives payment, all licenses specified in the applicable Order Form shall be activated. If Customer provides Skedulo with credit card information for payment, Customer acknowledges that an invoice may not be sent, and Customer authorizes Skedulo to charge the credit card for the Services listed in the Order Form for the Subscription Term, and for any renewal.  If the Customer requires the use of a purchase order or purchase order number, the Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void.  If Customer is purchasing the Services from a reseller, any terms and conditions between Customer and the reseller that conflict with this Agreement are void.

5.3 Late Payments. Except if Customer has raised a timely, good-faith dispute with an invoice, all past due amounts may (at Skedulo’s discretion) subject to a finance charge of 1.5% per month (or the highest rate permitted by law) from the payment due date until paid in full.  Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Skedulo in collecting past due amounts.  If Customer’s fees are past due, Skedulo may suspend the Services automatically and provide notice of termination for material breach.

5.4 Taxes. Customer is responsible for all taxes, except those directly relating to Skedulo’s net income, gross receipts, or capital stock.  Skedulo will invoice Customer for sales tax when required to do so and Customer will pay the tax unless Customer provides Skedulo with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.5 Future Functionality. Customer agrees that it has not relied on the availability of any future functionality of the Service or any other future product or service in executing this Agreement or any Order Form.  Customer acknowledges that information provided by Skedulo regarding future functionality should not be relied upon to make a purchase decision.

6. TERM & TERMINATION

6.1 Agreement Term. The Agreement will remain in effect for the Term.

6.2 Subscription Terms. Unless otherwise set forth in an Order Form, subscriptions will automatically renew for additional one (1) year subscriptions, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the Subscription Term. Skedulo will provide notice of any price increase for the Services at least sixty (60) days prior to any renewal. Skedulo reserves the right to increase prices upon renewal in line with increases in the Unites States Consumer Price Index. For any renewal in which subscription or usage volume for any Services has decreased from the prior Subscription Term, Skedulo will re-price each subscription type or usage fee at renewal irrespective of the prior Subscription Term per-unit pricing.

6.3 Termination. Either party may terminate this Agreement if (a) the other party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings.  Skedulo may also terminate the Agreement if it has the right to suspend the Services under Section 2.8 or in order to comply with law or regulation.

6.4 Effect of Termination. If this Agreement expires or is terminated, then (a) any unpaid fees will become immediately due to be paid, (b) the rights granted by one party to the other will cease immediately except as otherwise set forth in this Section, (c) upon request made by Customer within thirty (30) days after the effective date of termination or expiration of the Agreement, Skedulo will make Customer Data stored by Skedulo (and not a Third-Party Service) available to Customer, (d) after thirty (30) days, Skedulo will have no further obligation to maintain any Customer Data, and (e) the following Sections will survive: 3 (Intellectual Property Rights), 4 (Fees & Payment), 5.4 (Effect of Termination), 6 (Confidentiality), 7 (Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10 (Disputes), 11(General Provisions), 12 (Definitions).

7. CONFIDENTIALITY

7.1 Definition of Confidential Information. “Confidential Information” means any business or technical information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement that is marked as confidential or would normally be considered confidential to a reasonable person under the circumstances. This Agreement, Order Forms, and the Skedulo Technology will be Confidential Information of Skedulo.  Customer Data will be Confidential Information of Customer.  Confidential Information will not include any information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party prior to receipt, (c) is obtained by the Receiving Party from a third party not under an obligation of confidentiality, and (d) is independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.

7.2 Obligations. The Receiving Party will use reasonable care to (a) not use the Disclosing Party’s Confidential Information for any purpose outside of the scope of this Agreement and (b) except as authorized or directed by the Customer to provide Confidential Information to a Third-Party Service, limit access to the Disclosing Party’s Confidential Information to its and its Affiliate’s employees, contractors, and advisors who need access to the Confidential Information for any purpose not outside of the scope of this Agreement and who have agreed to confidentiality provisions with the Receiving Party containing similar protections to the protections for Confidential Information in this Agreement.

7.3 Compelled Disclosure. Each party may disclose the other party’s Confidential Information when required by law or regulation so long as the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted, and reasonable assistance at the Disclosing Party’s cost to contest or limit the disclosure.  If the Receiving Party is compelled to disclose the Confidential Information, the Receiving Party will disclose the minimum extent of Confidential Information necessary.

8. WARRANTIES; DISCLAIMERS

8.1 Mutual Warranties. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

8.2 Skedulo Warranties. Skedulo warrants to Customer that during the applicable Term the Services purchased by Customer will substantially perform in all material respects with the applicable portions of the Documentation. This warranty shall not apply to Customer Modifications, non-conformities, errors, or problems caused by acts within the control of Customer or any of its Representatives, or arising from Customer’s negligence or improper use of the Services, from unauthorized modifications made to the Services, from use of the Services in an unsupported operating environment or manner, or from interoperability issues arising from devices or equipment or browsers used by Customer to access the Services, or that arises from Customer’s or any third party’s software or systems (including Third Party Services).

8.3 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, SKEDULO AND ITS AFFILIATES, LICENSORS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES OR ANY OUTPUT FROM THE SERVICES, AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR (II) THAT THE SERVICES, OR OUTPUT OF THE SERVICES ARE ACCURATE, COMPLETE, OR RELIABLE.  THE SERVICES AND ANY OUTPUT FROM THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” SKEDULO WILL NOT BE RESPONSIBLE FOR ANY THIRD-PARTY SERVICE OR ANY RESTRICTED INFORMATION SUBMITTED IN BREACH OF THIS AGREEMENT.

8.4 Beta Services. Despite anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any Beta Services, (b) Beta Services may not be supported and may be changed at any time, including in a manner that reduces functionality, (c) Beta Services may not be available or reliable, and (d) Skedulo provides Beta Services “as-is” and will have no liability arising out of or in connection with Beta Services.

9. INDEMNIFICATION

9.1 By Skedulo. Skedulo will defend Customer from and against all third-party claims, lawsuits, and demands arising out of an allegation that Skedulo’s technology used to provide the Services infringes or misappropriates any U.S. patent, copyright, or trade secret of such third party, and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement.  In no event will Skedulo have obligations or liability under this Section arising from: (a) use of the Services in a modified form or in combination with materials not furnished by Skedulo, and (b) any content, information, or data provided by Customer, End Users, or other third parties.  For any claim covered by this Section, Skedulo may, at its election, either (i) procure the rights to use the portion of the Services alleged to be infringing, (ii) replace the alleged infringing portion of the Services with a non-infringing alternative, or (iii) terminate the allegedly infringing portion of the Services, or this Agreement and provide Customer with a pro rata refund of prepaid fees for the affected Services.

9.2 By Customer. Customer will defend Skedulo and its Affiliates, licensors, and distributors from and against all third-party claims, lawsuits, and demands arising out of (a) Customer’s use of the Services, (b) Customer Modifications or Customer’s breach of Section 2.4 (Modifications), or (c) Customer Data, and will indemnify Skedulo and its Affiliates, licensors, and distributors for all reasonable attorney’s fees incurred and damages and other costs awarded in a final judgment or amounts paid in a settlement.

9.3 General. The party seeking indemnification will promptly notify the indemnifying party of the claim and cooperate with the indemnifying party by providing reasonable assistance in defending the claim.  The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed, and (b) the other party may join in the defense with its own counsel at its own expense.  THE INDEMNITIES ARE A PARTY’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

10. LIMITATION OF LIABILITY

10.1 Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7, OR FROM DATA BREACHES, SKEDULO AND ITS AFFILIATES, LICENSORS AND DISTRIBUTORS WILL NOT BE LIABLE TO CUSTOMER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER SKEDULO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

10.2 Liability Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, SKEDULO’S AND ITS AFFILIATES’, LICENSORS’, AND DISTRIBUTORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT CUSTOMER HAS PAID OR IS PAYABLE FOR CUSTOMER’S USE OF THE SERVICES IN THE TWELVE (12) MONTHS PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.

10.3 NOTHING IN THIS SECTION 10 APPLIES TO DAMAGES ARISING OUT OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 9.

11. GENERAL PROVISIONS

11.1 Agreement Modification. Skedulo may modify this Agreement periodically. If an update will affect Customer’s use of the Services, Skedulo will notify Customer prior to the update’s effective date (except for changes due to legal or regulatory reasons which may be effective immediately).  Otherwise, updates will be effective as of the date posted on this website.  By continuing to use the Services or executing additional Order Forms after the changes become effective, Customer agrees to be bound by the modified Agreement.  If Customer does not agree to the modified Agreement for the Services, Customer may terminate the Services within thirty (30) days of receiving notice of the change.

11.2 Contracting Entity. “Skedulo” will mean the entity Customer is contracting with under this Agreement depending on Customer’s domicile:

If Customer is domiciled in: Customer is contracting with: The Agreement’s governing law will be:
Australia, New Zealand, or a country in Asia Skedulo Pty Ltd
79 McLachlan St
Fortitude Valley, QLD
Australia 4006
Queensland, Australia
A country in North America, Europe, or the rest of the world Skedulo Inc
731 Sansome St.
San Francisco, CA 94111
United States
Delaware, United States

 

11.3 Entire Agreement. All attachments to the Agreement, Order Forms executed by the parties are hereby incorporated into the Agreement by reference. This Agreement constitutes the entire agreement between Customer and Skedulo with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements.  Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the parties.  If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: Order Form, the Agreement, and the Documentation.

11.4 Governing Law & Jurisdiction. This Agreement will be governed by the law set forth in Section 11.2 (Contracting Entity) except for its conflicts of laws principles.   Skedulo and Customer consent to the exclusive jurisdiction and venue of the federal or state courts set forth in Section 11.2 (Contracting Entity).

11.5 Informal Resolution. Skedulo wants to address Customer’s concerns and requests that Customer bring issues that may lead to a dispute to our attention immediately.  Before filing a claim, Skedulo and Customer agree to try to resolve the dispute by providing notice to the other party and having the appropriate executives attempt to resolve the dispute through communication and discussion.  After fifteen (15) days, either party may bring a formal proceeding.

11.6 Notices. Notices must be sent by first class mail or overnight courier and are deemed given when received.  Notices to Customer may also be sent to the applicable Administrator account email address and are deemed given when sent.  Notices to Skedulo must be sent to Skedulo to the address set forth in Section 11.2 (Contracting Entity) to the attention of the Legal Department with a copy to legal@skedulo.com.

11.7 Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent, not to be unreasonably withheld; except, however, either party may assign this Agreement in its entirety, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Subject to the restrictions in this section, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns.  Any other attempt to transfer or assign is void.  If a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of a direct competitor of the other party, then the other party may terminate this Agreement upon written notice.

11.8 Relationship of the Parties. The parties are independent contractors.  This Agreement does not create a partnership, joint venture, or agency relationship between the parties.

11.9 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

11.10 Construction. Any ambiguity in the Agreement will be interpreted equitably without regard to which party drafted the Agreement.  “Including” and “include” will be construed to mean “including without limitation.”

11.11 Force Majeure. Skedulo will not be liable for inadequate performance to the extent caused by a condition or event (for example, natural disaster, act of war or terrorism, labor disputes, governmental action, utilities failures, third-party vendor failures, and Internet disturbance) that was beyond its reasonable control.

11.12 Waiver. No failure or delay by either party in exercising a right under this Agreement will constitute a waiver of that right.  A waiver of a default is not a waiver of any subsequent default.

11.13 Severability. If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the parties’ intention and only to the extent necessary to make the term enforceable.  The remaining provisions of the Agreement will remain in effect.

11.14 Counterparts. This Agreement and any Order Form may be executed in counterparts, which taken together will constitute one instrument, and may be executed and delivered electronically.

11.15 Export Compliance. The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer’s and its End Users’ use of the Services.  Customer will not permit End Users to use the Services from a U.S. embargoed country.

12. DEFINITIONS

12.1 Administrator” means a Customer-designated End User who administers the Services account and has access to permissions and other sensitive settings.

12.2 “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means the ability to direct the management and policies of an entity.

12.3 “Beta Services” means products or features available to Customer on a trial, beta, early access, or similar basis.

12.4 “Customer Data” means data and information submitted to the Services by Customer or its End Users, including data and information submitted to the Services from Third-Party Services authorized by Customer.

12.5 “Documentation” means any Skedulo-provided written documentation and policies.

12.6 “Effective Date” means the earlier of the effective date or subscription start date set forth on Customer’s first Order Form.

12.7 “End Users” means users of Customer’s Services account. End Users may include Customer’s and its Affiliate’s employees, agents, and consultants.

12. 8 “Initial Subscription Term” means the term for the applicable Services starting on the subscription start date set forth on the Customer’s first Order Form and continuing for the period set forth in the Order Form.

12.9 “Order Form” means the ordering document or page for the Services.

12.10 “Restricted Information” means (a) sensitive personal information such as social security numbers, passport numbers, driver’s’ license numbers and other government identification numbers, (b) to the extent Skedulo and Customer have not executed a Business Associate Agreement, Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder) or similar information under comparable laws and regulations, (c) Nonpublic Personal Information (as defined in the Gramm-Leach-Bliley Act and regulations thereunder) or similar information under comparable laws or regulations, or (d) sensitive personal data (as defined in Article 9(1) of the General Data Protection Regulation (EU) 2016/679).

12.11 “Services” means the products and services ordered by Customer under an Order Form or otherwise provided by Skedulo and used by Customer under this Agreement.

12.12 “Skedulo Data” means usage data, statistics, aggregate data, and de-identified data derived from Customer Data so that such data does not identify a person.

12.13 “Skedulo Materials” means source code, SDKs, and Documentation provided by Skedulo to Customer for the purpose of Customer developing bug fixes, customizations, and additional features for the Services for its own internal use.

12.14 “Skedulo Technology” means the Services, Skedulo Data, Skedulo Materials, Documentation, and Skedulo’s trademarks, logos, and other brand features.

12.15 “Subscription Term” means the Initial Subscription Term or any renewal terms for the Services.

12.16 “Suggestions” means feedback, Customer Modifications, comments, ideas, reviews, information, suggestions, or other materials that Customer or End Users provide to Skedulo or its contractors.

12.17 “Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (a) the last Subscription Term has expired or (b) until the Agreement is terminated.

12.18 “Third-Party Services” means products or services (a) offered by a third party or Customer that interoperate with the Services for which Customer has an account and has connected the account with the Services, (b) offered by a third party or Customer that are linked from the Services, and (c) offered by a third party of Customer that are related to the Services and their use, including implementation, customization, and other consulting services.

Exhibit A

Skedulo Service Level Agreement

This Skedulo Service Level Agreement (“SLA”) is a policy governing the use of the Services under the terms of the Skedulo Master Subscription Agreement (the “MSA”) between Skedulo and Customer.  Unless otherwise provided herein, this SLA is subject to the terms of the MSA and capitalized terms not otherwise defined will have the meaning set forth in the MSA.  This SLA states Customer’s sole and exclusive remedy for any failure by Skedulo to meet the Service Commitment (as defined below).

Service Commitment

Skedulo will use commercially reasonable efforts to make Services available with a Monthly Uptime Percentage (defined below) of at least 99.9% during any calendar month (the “Service Commitment”).  In the event the Services do not meet the Service Commitment, Customer will be eligible to receive Service Credits by following the process in this SLA.

Definitions

“Downtime” means loss of external connectivity by all End Users.

“Downtime Period” means a period of at least five consecutive minutes of Downtime.

“Monthly Uptime Percentage” means the total number of minutes in a month, minus the number of Downtime minutes suffered during Downtime Periods in a month, divided by the total number of minutes in a month.

“Service Credit” is a dollar credit based on pro-rated fees, calculated as set forth below, that Skedulo may credit to Customer’s next invoice for failure to meet the Service Commitment.

Monthly Uptime Percentage Service Credit
Less than 99.90% but equal to or greater than 98.0% 3 days
Less than 98.00% but equal to or greater than 95.0% 7 days
Less than 95.0% 15 days


Credit Request Procedures

To receive a Service Credit, Customer must submit a claim by contacting Skedulo support within 30 days from the time Customer becomes eligible to receive the Service Credit.  The claim must include the dates and times of each Downtime Period.  Failure to comply with these requirements will forfeit Customer’s right to receive a Service Credit.  The maximum amount of Service Credits for a month will not exceed 50% of the fees applicable to that month. Skedulo’s proprietary system tracking Service Downtime will be the sole basis for resolution of any dispute regarding Service Credits.

Exclusions

The Service Commitment does not apply to: (a) any Third-Party Services, (b) any Beta Services, (c) use of the Services not in compliance with the Agreement or Documentation, (d) any suspension or termination of rights to use the Services permitted under the MSA, (e) any usage limits, (f) loss of connectivity caused by factors outside of Skedulo’s reasonable control, including resulting from (i) any force majeure event including systemic Internet failures, (ii) Customer’s software or hardware, including Third-Party Services, (iii) third-party software or hardware, or (iv) failure of Customer’s network connection, or (g) planned maintenance or required emergency maintenance.

Special Termination Right

If Skedulo fails to achieve the Service Commitment for three (3) consecutive months, Customer may, as its sole and exclusive remedy, terminate the Agreement upon written notice to Skedulo and receive a refund of prorated, prepaid fees for the Services. Customer must exercise this termination right within thirty (30) days of reasonably becoming aware of a Services failure or such right will be deemed waived.

EXHIBIT B

Skedulo Insurance

Through the term of this Agreement, and for a period of one (1) year thereafter for any insurance written on a claims-made basis, Skedulo (“Skedulo”) shall maintain a minimum of the following insurance coverage (all of which the “Required Insurance):

  1. Commercial General Liability. This includes products/completed operations, personal and advertising injury liability.  Minimum limits of liability shall be $2 million each occurrence and $4 million general aggregate.
  2. Workers’ Compensation. The minimum liability for workers’ compensation and employers’ liability insurance or any alternative plan or coverage as required by applicable law.
  3. Professional Liability. The minimum limit for professional liability insurance (errors and omissions) covering liability for financial loss due to error, omission or negligence of Skedulo for Services offered in this Agreement shall be $10 million general aggregate.
  4. Cyber. The minimum limit for Cyber (“Cyber”) insurance for loss arising out of or in connection with loss or disclosure of Confidential Information or PHI is $10 million general aggregate.

Upon written request from Customer, Skedulo shall provide certificates of insurance to Customer evidencing the Required Insurance, and with respect to any general, products, and excess liability, non-contributory with respect to any other insurance or self-insurance Customer may maintain.  Furthermore, the Commercial General Liability shall be provided by reputable and financially responsible insurance carriers with an A.M. Best’s Financial Strength Rating of “A” or better, and a minimum Financial Size Category of IX or higher.