Service Terms

SUBSCRIPTION SERVICES TERMS AND CONDITIONS

Updated April 29, 2024

THESE SERVICES TERMS INCLUDE A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, AND SELECTION OF GOVERNING LAW AND CHOICE OF FORUM (INCLUDING MANDATORY ARBITRATION INSTEAD OF COURT). IF YOU DO NOT AGREE TO THESE SERVICES TERMS, DO NOT USE THE SERVICES. THESE TERMS ARE SUBJECT TO CHANGE FROM TIME TO TIME BY VENDOR WITH THE MOST RECENT VERSION POSTED AT https://www.e2open.com/service-terms/.

These Services Terms govern the use of the subscription and/or related services of the member of the Vendor Group identified on the Order Form as Vendor and the member of the Customer Group identified on the Order Form as Customer. In consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are acknowledged, Vendor and Customer agree as follows:

1. Defined Terms.

“Action” means a claim, suit, action, or proceeding by a third party.

“Confidential Information” means the terms of these Services Terms and all documents, software, reports, data, records, forms, and other materials obtained by the Receiving Party from the Disclosing Party: (a) that have been marked as confidential; (b) whose confidential nature has been made known by the Disclosing Party to the Receiving Party; or (c) that, due to their character and nature, a reasonable person under like circumstances would treat such material as confidential.  The Subscription Services, Professional Services, Documentation, Vendor Materials, and pricing are Vendor’s Confidential Information. Transaction Data is Customer’s Confidential Information.

“Competitor” means any person, business, or entity that makes commercially available subscription services, software, or application products and services similar to those offered by Vendor.

“Computer Equipment” means each item of computer hardware including associated peripheral equipment and terminals, configured as required to operate any one or more of the Subscription Services.

“Customer” means the entity identified as Customer on the Order Form.

“Customer Affiliate” means any company directly or indirectly controlled by or under common control with Customer’s ultimate parent company, where a company is directly controlled by another company if the latter holds or controls 50% or more of the shares (or its equivalent) of the particular company.

“Customer Data” means any content, materials, data, and information that Users input or cause to be input into the Subscription Services or that Users derive from their use of and store in the Subscription Services. Customer Data and its derivatives do not include Vendor’s Confidential Information.

“Customer Group” means Customer’s ultimate parent company and any operating company owned or controlled (directly or indirectly) by Customer’s ultimate parent company, including Customer.

“Customer Indemnitees” means Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns.

“Disclosing Party” means a party disclosing Confidential Information to a Receiving Party under these Services Terms.

“Documentation” means Vendor’s user guides, training materials, and technical manuals in any medium, generally made available to Vendor’s customers, and includes all updated versions as may be provided from time to time. Documentation shall not include Vendor’s marketing materials or proposals.

“Expenses” means all actual, reasonable travel, living, and out-of-pocket expenses incurred by Vendor pursuant to these Services Terms.

“Feedback” means comments, suggestions, enhancement requests, or other feedback provided by Customer.

“Indemnitee” means the party seeking an indemnification.

“Indemnitor” means the party providing the indemnification.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Losses” means any and all losses, damages, liabilities, judgments, settlements, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys’ fees.

“Order Form” means each separate, written document signed by the parties under which Customer orders the Services identified therein. Order Forms will identify the Subscription Services and/or Professional Services and include quantities, duration, applicable use, fees, costs, general project plans, scope, objectives, schedules, and Service Level Agreement, as appropriate. Each Order Form becomes a part of these Services Terms. If for Professional Services only, an Order Form may be called a Statement of Work (SOW). May have been formerly called a “Work Order” or similar.

“Patches” mean bug fixes, updates, maintenance, and service packs necessary for the proper function and security of the Subscription Services, as generally released pursuant to the Service Level Agreement.

“Professional Services” means the work performed by Vendor for Customer pursuant to an Order Form to install, configure, or upgrade the Subscription Services in accordance with the terms and conditions set forth in these Services Terms. Professional Services do not include Subscription Services.

“Receiving Party” means a party receiving Confidential Information from a Disclosing Party under these Services Terms.

“Results” means the information derived by Customer from its input of Customer Data into the Subscription Services.

“Service Level Agreement” means the document that describes Vendor’s application uptime, customer support offerings, and product release and maintenance schedule.

“Services” means the Subscription Services and the Professional Services.

“Services Terms” means these Subscription Services Terms and Conditions.

“Statistics” means data compiled, calculated, or otherwise resulting from de-identified, aggregated, and anonymized output from the operation and use of the Services, in whole or in part. Examples of Statistics are transaction volume, number and type of partners, and revenue volume. Statistics will not include personal data.

“Subscription Services” means Vendor’s subscription-based service including software applications and related hosting, maintenance, and support services made available to Customer for access, and excluding any Third-Party Software that is accessed or used in association with the Subscription Services. May have been formerly called “SaaS Services,” “Applications,” “Licensed Material,” “Software,” or similar.

“Substantial Contact” means a party’s interaction with the other party’s employee where such employee had material involvement with the Services during the last 18 months prior to the employee’s last day of employment with his/her respective employer.

“Third Party Software” means software that is not owned or licensed by Vendor.

“User” means any individual natural person or approved automated system (commonly called a bot) granted access through a unique user ID, issued by Customer for access and/or use of the Subscription Services.

“Vendor” means the entity identified as Vendor on the Order Form. May have been formerly called “Company,” “Provider,” “Supplier,” or similar.

“Vendor Affiliate” means any company directly or indirectly controlled by or under common control with Vendor’s ultimate parent company where a company is directly controlled by another company if the latter holds or controls 50% or more of the shares (or its equivalent) of the particular company.

“Vendor Group” means E2open, LLC and any operating company owned or controlled (directly or indirectly) by E2open, LLC, including Vendor.

“Vendor Indemnitees” means Vendor and Vendor’s officers, directors, employees, agents, permitted successors, and permitted assigns.

“Vendor Materials” means any technology, equipment, information, and materials provided or developed by Vendor (independently or with Customer’s or another party’s cooperation) on its own initiative and in the course of performance under the Services Terms, including the delivery of any support or Professional Services to Customer including Documentation, and any derivative works thereof, which may be updated by Vendor. Vendor Materials do not include Customer’s Confidential Information.

2. Subscription Services.

2.1 Grant of Rights. Subject to the terms of these Services Terms:

2.1.1 Vendor hereby grants Customer a non-exclusive, non-transferable, non sub-licensable worldwide right during the term of an applicable Order Form for its Users to access and use the applicable Services, Documentation, and Vendor Materials, solely for Customer’s internal business purposes as contemplated by these Services Terms; provided that any User that is an automated system must be approved by Vendor (not to be unreasonably withheld). Unless the Order Form expressly permits Customer to install the Subscription Services on its Computer Equipment, Customer will access and use the Subscription Services from Vendor’s datacenter;

2.1.2 Customer hereby grants Vendor a non-exclusive, worldwide right to use Transaction Data, as reasonably necessary to provide the Services during the term of the Services Terms; and

2.1.3 Customer hereby grants Vendor a non-exclusive, irrevocable, worldwide right to incorporate the Statistics in works in any form, media, or technology for Vendor’s business purposes and to make available to others, provided that Vendor does not reveal the identity of any member of the Customer Group, Users, or Customer’s Confidential Data.

2.2 Access Management. Customer is responsible for the accuracy, quality, integrity, and legality of Transaction Data, the means by which it acquired the Transaction Data, and for the administration, authorization, and termination of all User access authorizations. Customer will provide Vendor with accurate, complete, and updated registration information of its Users. Notwithstanding the foregoing, Vendor may refuse registration of or suspend Users’ access to the Services if, in Vendor’s reasonable judgment, a significant threat to the security or functionality of the Services or any component thereof is imminent, or due to spamming or illegal activity. Vendor will notify Customer of any such occurrence. Customer is responsible for the security of its access to the Services and the security of Users’ access authorization. Customer will not permit Users to share User IDs and passwords. Customer will promptly notify Vendor of any unauthorized use of the Services, or any other breach of security suspected or known to Customer. Customer is responsible for acquiring and maintaining the required hardware, software, internet connections, and other resources necessary for Users to access and use the Services. Customer is responsible for any and all acts and omissions of any Users to the same extent as if such action or omission were the action or omission of Customer.

2.3 Rights and Restrictions. Customer is responsible for its Users’ compliance with the terms and conditions of these Services Terms. Except as expressly permitted herein, Customer:

2.3.1 will use the Services in compliance with Vendor’s Acceptable Use Policy located at https://www.e2open.com/acceptable-use-policy/, incorporated by reference herein;

2.3.2 will comply with Vendor’s Security Guidelines Policy located at https://www.e2open.com/customer-security-policy/, incorporated by reference herein; and

2.3.3 will not, without the prior written consent of Vendor, directly or indirectly:

2.3.3.1 transfer, assign, lease, loan, resell, distribute, convey, sublicense, or otherwise grant any rights in the Services, Documentation, or Vendor Materials in any form to any third party, including commercial time-sharing, rental or service bureau use;

2.3.3.2 reverse engineer, decompile, disassemble, or attempt to discover the source code from any Services or Vendor Materials;

2.3.3.3 copy, modify, or create derivative works based on the Services, Documentation, or Vendor Materials; or

2.3.3.4 remove or alter any notices of Intellectual Property Rights or confidentiality or similar legends appearing in or on any aspect of any Services.

2.4 Order Process/Contracts With Affiliates. Order Forms incorporate the terms of these Services Terms. Customer may enter into Order Forms with Vendor or a Vendor Affiliate and allow Customer Affiliates to access and use such Services. Customer Affiliate may enter into Order Forms with Vendor or a Vendor Affiliate. Where Order Forms are to be fulfilled by a Vendor Affiliate, if the relevant Vendor Affiliate fails to accept or fulfill any Order Form, Vendor will be responsible for such Order Form. Where Order Forms are to be fulfilled by a Customer Affiliate, if the relevant Customer Affiliate fails to fulfill any Order Form or comply with these Services Terms, the Customer will be responsible for such Order Form.

2.5 Customer Obligations. Customer is responsible for providing the Third Party Software and Computer Equipment necessary to properly operate the Subscription Services. Customer is responsible for site preparation at its facility, including, but not limited to, climate control, foundation mounting, provision of adequate utilities, wiring for all PC and RF devices, and shall bear sole liability for any expenses incurred thereby.

3. Professional Services.

3.1 Customer Performance; Project Cooperation. Professional Services will be outlined in an Order Form. Customer will timely perform all activities and provide all items required by Customer on the Order Form, or as reasonably requested by Vendor during Vendor’s performance of the Professional Services. Customer will timely participate in planning, execution, and related activities, which may include identification of priorities, dependencies and constraints, allocation of resources, working sessions, and day-to-day engagement tasks, as requested by Vendor to enable uninterrupted implementation of the Professional Services.

3.2 Changes. Any changes to the scope of Professional Services will be identified on a change request form signed by the parties.

3.3 Expenses. Customer will reimburse Vendor for Expenses incurred in providing Professional Services.

3.4 Delay; Suspension. If the Professional Service project schedule or any portion thereof is interrupted solely due to Customer’s delay or suspension, Vendor’s performance for the Professional Services stated in the applicable Order Form is excused for such period of the delay or suspension and Vendor may re-allocate resources. Vendor may terminate the Order Form upon written notice to Customer if Customer delays or suspends the project schedule for 30 days or more, and Customer will pay Vendor for all Professional Services performed through the termination date of the Order Form within 30 days of such termination notice by Vendor.

4. Service Level Agreement.

4.1 Support. Vendor will support the Subscription Services pursuant to the Service Level Agreement attached to these Services Terms. The Order Form may refer to this as Annual Maintenance and Support, Customer Service, or Customer Support.

4.2 Patches. Customer will accept all Patches necessary for the proper function and security of the Subscription Services, as generally released by Vendor. Vendor will apply Patches during a maintenance window (as set out in the Service Level Agreement) unless the Patch relates to an emergency or security-related issue.

5. Term; Termination.

5.1 Term. These Services Terms commence on the Effective Date and continue until terminated as permitted herein. Each Order Form may have its own effective date, term, and termination provision; however, unless otherwise agreed to by the parties in writing, Order Forms are not cancelable for convenience. The term for any Order Form that does not contain a term provision will automatically renew on an annual basis unless terminated in writing no less than 45 days prior to the scheduled expiration date. The expiration or termination of any Order Form, in whole or in part, will not modify the efficacy of any other active Order Form(s).

5.2 Termination. Either party may terminate these Services Terms:

5.2.1 if the other party breaches these Services Terms in any material respect and fails to cure the breach, if capable of cure, within 30 days after receiving notice from the other party specifying the nature of the breach; or

5.2.2 immediately 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.

5.3 Effect of Termination. Upon termination of these Services Terms, all rights granted to Customer hereunder with respect to the Services and all Vendor Materials will automatically terminate and Customer will immediately discontinue its use thereof. After termination, each party will destroy all Confidential Information of the other party in its possession received under these Services Terms and will not make or retain any copies of such Confidential Information except as required to comply with any applicable law, regulation, or reasonable internal record-keeping or information technology policies. Notwithstanding the foregoing, non-destruction of electronic copies of materials containing or reflecting Confidential Information that are automatically generated through data backup or archiving systems will not be deemed to violate these Services Terms, so long as the Confidential Information contained therein is not disclosed or used in violation of the other terms of these Services Terms. Upon termination of these Services Terms, the following provisions will survive: Sections 2.1.3 (Statistics), 5.3 (Effect of Termination), 8 (Confidential Information; Exceptions), 9 (Proprietary Rights), 10 (Indemnification), 11 (Limitation of Liability), 12 (Compliance), and 14 (Miscellaneous).

6. Warranties.

6.1 Mutual Warranty. Each party represents that it has the authority to enter into these Services Terms and the right to disclose its Confidential Information in accordance with the terms set forth herein.

6.2 Subscription Services Warranty.  Vendor warrants that the Subscription Services will substantially perform in accordance with the Documentation. As Customer’s sole remedy for a breach of this warranty, Vendor will, at its discretion, either repair or replace the portion of the Subscription Services that do not comply with this warranty, or refund the amounts paid by Customer for the nonconforming portion of the Subscription Services for the period of the nonconformance. Customer acknowledges that Vendor does not control the transfer of data over communications facilities, including the internet, and the Subscription Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.

6.3 Professional Services Warranty. Vendor warrants that the Professional Services will be performed with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Professional Services. As Customer’s sole remedy for a breach of this warranty, Vendor will re-perform any materially nonconforming Professional Services provided Customer notifies Vendor of the nonconformity within 30 days after delivery.

6.4 Disclaimer of Warranties. Except for the express warranties set forth in this Section 6, all Services and Vendor Materials are provided “as is” and Vendor hereby disclaims all warranties, whether express, implied, statutory, or other, and Vendor specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Without limiting the foregoing, Vendor makes no warranty of any kind that the Services or Vendor Materials, or any products or results of the use thereof, will meet Customer’s or any other person’s requirements; operate without interruption; achieve any intended result; be compatible or work with any software, system, or other services; be secure, accurate, complete, free of harmful code, or free of errors; or comply with every applicable law or regulation with which Customer may be required to comply. All third-party materials are provided “as is” and any representation or warranty of or concerning any third-party materials is strictly between Customer and the third-party owner or distributor of the third-party materials.

7. Fees; Taxes.

7.1 Fees. Fees are payable in the currency specified on the Order Form. Customer will pay all fees identified on the Order Form. Invoices are due and payable within 30 days of the date of invoice. Customer will timely pay all undisputed amounts and raise any invoice disputes prior to the due date of an invoice, or the dispute is waived. Disputes must describe in detail the disputed amounts and the reason for the dispute.

7.2 Late Payment. Vendor reserves the right to apply interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, to overdue payments.

7.3 Suspension of Services and Acceleration. If any amount owed by Customer is 30 or more days overdue, Vendor may (a) accelerate all of Customer’s unpaid fee obligations so that all such obligations become immediately due and payable; and/or (b) suspend Services until such amounts are paid in full. Vendor will provide at least 10 days prior notice that Customer’s account is overdue before suspending Services.

7.4 Taxes. Customer is responsible and agrees to pay or reimburse Vendor for all federal, state, and local sales tax, use tax, withholdings, VAT, GST, personal property, and any other taxes and charges of any kind, including penalties and interest, imposed by any entity having authority on the transactions contemplated by these Services Terms, excluding only taxes on Vendor’s net income.

7.5 Customer Purchase Order Requirements. If Customer requires its internal purchase order number to be identified on an invoice, Customer will issue the purchase order to Vendor at least 10 days prior to each invoice date identified on the Order Form or, if the invoice date is the effective date of the Order Form, within 5 days of such effective date. Customer’s failure to issue a purchase order in a timely manner (a) will not impact the payment terms in Section 7.1; and (b) may result in the suspension of Services and/or termination of these Services Terms under Section 5.2.

8. Confidential Information.

8.1 Use of Confidential Information. The Receiving Party will protect all Confidential Information of the Disclosing Party to the same extent it protects its own Confidential Information, and not less than a reasonable standard of care. The Receiving Party will not disclose any Confidential Information of the Disclosing Party to any person other than those necessary to enable it to exercise its rights or perform its obligations under these Services Terms and who are under substantially similar obligations of confidentiality. If a Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it will provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the terms of these Services Terms conflict or are otherwise inconsistent with terms of any non-disclosure agreement the parties entered into prior to the Effective Date, the terms of these Services Terms will control.

8.2 Exceptions. The Receiving Party bears no responsibility for safeguarding information that it can document in writing: (a) is in the public domain through no fault of its own; (b) was properly known to it, without restriction, prior to disclosure by Disclosing Party; (c) was properly disclosed to it, without restriction, by another person with the legal authority to do so; (d) is independently developed by Receiving Party without use or reference to Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to a judicial or legislative order or proceeding in which case the Receiving Party shall provide Disclosing Party with prior notice of the intended disclosure.  Nothing contained in these Services Terms shall preclude disclosures necessary to comply with accounting and Securities and Exchange Commission disclosure obligations and other disclosure obligations imposed by law and/or filings related to Securities and Exchange Commission registration statements or amendments under the Securities Act of 1933, as amended.

9. Proprietary Rights.

9.1 Vendor Proprietary Rights. Vendor and its licensors own all Intellectual Property Rights in and related to the Services, Vendor Materials, and Statistics. Vendor Materials are not readily accessible to Competitors of Vendor and have been acquired and assembled at significant expenditure of resources. Vendor has taken and is taking all reasonable precautions to protect the secrecy of Vendor Materials through the use of reasonable security measures. Vendor retains ownership in all directories and information compiled and curated by Vendor using publicly available information that may be included within Transaction Data. All rights not expressly granted to Customer are reserved to Vendor and its licensors.

9.2 Customer Proprietary Rights. Customer owns all Intellectual Property Rights in and related to the Transaction Data, Results, and Customer’s Confidential Information.

9.3 Feedback. Vendor retains ownership of all right, title, and interest in and to all Feedback relating to the Services and Vendor Materials. Feedback is provided “AS-IS” and Vendor may use Feedback at its own risk. Customer has no liability arising or resulting from or in connection with Vendor’s use of Feedback, nor is Customer required to provide Feedback.

10. Indemnification.

10.1 Vendor Indemnification. Vendor will indemnify, defend, and hold harmless the Customer Indemnitees from and against any and all Losses incurred by such Customer Indemnitee arising out of any Action to the extent that such Losses result from any allegation that Customer’s or a User’s use of the Services (excluding Transaction Data) in compliance with these Services Terms infringes a third-party Intellectual Property Right. This obligation does not apply to any Action or Losses arising out of or relating to any:

10.1.1 access to or use of the Services or Vendor Materials in combination with any hardware, system, software, network, or other materials or service not provided or authorized in writing by Vendor;

10.1.2 modification of the Services or Vendor Materials other than: (a) by or on behalf of Vendor; or (b) with Vendor’s written approval; or

10.1.3 failure by Customer to (a) keep any Subscription Services implemented in a single-tenant environment within 12 releases of the current release; or (b) allow Vendor to apply Patches as set forth in Section 4.2.

10.2 Customer Indemnification. Customer will indemnify, defend, and hold harmless the Vendor Indemnitees from and against any and all Losses incurred by such Vendor Indemnitee in connection with any Action to the extent that such Losses arise out of or relate to any:

10.2.1 Customer Data, including any processing of Transaction Data in accordance with these Services Terms;

10.2.2 materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any User, including without limitation complying with any applicable terms and conditions governing any third-party materials or information; or

10.2.3 failure to allow Vendor to apply Patches as set forth in Section 4.2.

10.3 Indemnification Procedure. Each party will promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to these Services Terms. The Indemnitee will cooperate with the Indemnitor at the Indemnitor’s sole cost and expense. The Indemnitor will immediately take control of the defense of the Action and will employ counsel to handle and defend the Action, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor will have no authority to settle an Action on terms that would have a material adverse effect on the Indemnitee, without the Indemnitee’s prior written consent, which will not be unreasonably withheld or delayed.

10.4 Mitigation. If any of the Services or Vendor Materials are, or in Vendor’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any User’s use of the Services or Vendor Materials is enjoined or threatened to be enjoined, Vendor may, at its option and sole cost and expense:

10.4.1 obtain the right for Customer to continue to use the Services and Vendor Materials as contemplated by these Services Terms;

10.4.2 modify or replace the Services and Vendor Materials, in whole or in part, while not materially diminishing its functionality or utility; or

10.4.3 terminate the respective Order Form with respect to the potentially infringing Services and/or Vendor Materials and require Customer to immediately cease any use of the Services and Vendor Materials or any component thereof, and Vendor will refund prepaid but unused fees covering the remainder of the term of the terminated subscriptions.

Section 10 sets forth Customer’s sole remedies and Vendor’s sole liability and obligation for any actual, threatened, or alleged Intellectual Property Rights Action made pursuant to these Services Terms.

11 Limitation of Liability; Disclaimers.

11.1 Exclusion of Damages. In no event will either party (including Vendor’s licensors) be liable under or in connection with these Services Terms or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) loss of production, use, business, revenue or profit or diminution in value; (b) impairment, inability to use or loss, interruption or delay of the Services, (c) loss, damage, corruption or recovery of data, or breach of data or system security, or (d) consequential, incidental, indirect, exemplary, special, enhanced or punitive damages, regardless of whether such persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

11.2 Limitation of Liability. Except as otherwise provided in Section 11.3, in no event will the aggregate liability of either party (including or Vendor’s licensors) under or in connection with these Services Terms or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the total fees paid or payable by Customer for the specific Service giving rise to the liability, as such fees are identified on an Order Form, during the 12 month period preceding the event or action giving rise to liability. The foregoing limitation applies notwithstanding the failure of any agreed or other remedy of its essential purpose. The provisions of these Services Terms fairly allocate the risks between Customer and Vendor, and Vendor’s pricing reflects the allocation of this risk and the limitation of liability specified herein.

11.3 Exceptions. The exclusions and limitations in Section 11.2 do not apply to Vendor’s breach of its obligations under Section 8 or gross negligence or willful misconduct. The exclusions and limitations in Section 11.2 do not apply to Customer’s breach of its obligations under Section 8, gross negligence or willful misconduct; or its payment obligations.

12. Compliance.

12.1 Customer Compliance. Customer will comply with all applicable laws and regulations governing the use, access, or export of the Services or any part thereof. Without limitation, the Subscription Services or any part thereof may not be used or accessed within or by, or otherwise exported to, (a) any United States embargoed country; or (b) anyone on the United States Treasury Department’s list of Specially Designated Nationals, the United States Department of Commerce’s Table of Denial Orders, or other similar lists.

12.2 Data Protection Compliance (Personal Data). Both parties will comply with the Data Protection Addendum and Standard Contractual Clauses at https://www.e2open.com/data-processing-addendum/.

12.3 Vendor Compliance. Vendor will comply with the privacy policy at https://www.e2open.com/privacy-policy.

12.4 Compliance with Law. Each party will fully comply with all applicable laws.

12.5 Securities Laws; Insider Trading. Each of the parties acknowledges that it is aware, and will advise each of its representatives who are informed as to the matters which are the subject of these Services Terms, that United States securities laws restrict persons with material non-public information about a company, obtained directly or indirectly from that company, from purchasing or selling securities of such company, or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities.

13. Insurance.

13.1 Policy Coverage. Vendor will, at its own expense, procure and maintain during the entire performance period of these Services Terms, insurance of at least the kinds and minimum amounts set forth below:

13.1.1 Workers’ Compensation: In accordance with applicable laws and having an Employers’ Liability limit of at least $1,000,000;

13.1.2 Comprehensive General Liability including Contractual Liability: $1,000,000 Combined single limit for Bodily Injury & Property Damage;

13.1.3 Automobile Liability Insurance including owned (if applicable), hired, and non-owned vehicles: $1,000,000 Combined Single Limit for Bodily Injury and Property Damage; and

13.1.4 Professional Errors and Omissions Insurance/Privacy/Cyber/Network Security Insurance: $5,000,000 in the aggregate with coverage to specifically provide protection against liability for the following: (a) privacy breaches and resulting liability arising from the loss or disclosure of Customer data; (b) denial or loss of service; (c) introduction, implantation, or spread or malicious code software; and (d) unauthorized access to or use of computer systems to include first party coverage for forensic investigation, notification, and credit monitoring and third party coverage for network security errors and omissions with no exclusions for unencrypted portable devices or media or cyber events.

13.2 Certificate of Insurance. Vendor will provide a certificate of the above-required insurance upon Customer’s written request. The certificate will provide that Customer be given no less than 30 days written notice prior to any cancellation thereof.

14 Miscellaneous.

14.1 Entire Agreement. These Services Terms contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior representations and understandings, whether oral or written. These Services Terms may not be amended, nor any obligation waived, except by a writing signed by the authorized representatives of both parties hereto. No terms, provisions or conditions of any purchase order, acknowledgement, or other business form that Customer may use in connection with the acquisition of the Services will have any effect on the rights, duties or obligations of the parties relating to Customer’s use of the Services provided under, or otherwise modify, these Services Terms, regardless of any failure of Vendor to object to such terms, provisions, or conditions. The parties exclude in its entirety the application to these Services Terms of the United Nations Convention on Contracts for the International Sale of Goods.

14.2 Governing Law; Dispute Resolution. These Services Terms shall be governed by, construed, and enforced under the laws of the State of Texas, USA, without regard to its conflicts of laws principles. The parties will resolve all disputes, claims, and causes of action arising from or relating to these Services Terms or the relationship of the parties including its existence, validity, and termination exclusively in arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect when the claim is filed before one arbitrator selected in accordance with the named rules with a minimum ten years of experience in the high-tech industry. The arbitration will take place in Austin, Texas in the English language. The federal and state laws governing arbitration in Austin, Texas will apply to any arbitration of these Services Terms. The arbitration panel will decide any issues relating to the agreement to arbitrate, the scope of arbitration, and the authority of the arbitration panel. The arbitration panel has the authority to issue equitable and monetary remedies in connection with the arbitration. All information and material shared by the parties in connection with the arbitration will be Confidential Information and governed by Section 8 of these Services Terms. The dispute resolution process described in this Section will apply regardless of the country of origin of any dispute. The costs of the arbitration, including administrative and arbitrator fees, shall be shared equally by the parties. Each party shall bear its own costs and attorney and witness fees.

14.3 Assignment. Customer will not assign or sublicense, in whole or in part, any of its rights or obligations under these Services Terms without the prior written consent of Vendor. Notwithstanding the foregoing, Customer may assign these Services Terms in whole without Vendor’s consent, but with notice to Vendor within 10 days of assignment, to an entity within the Customer Group or to the surviving entity in a merger, acquisition, or similar transfer of all or substantially all of Customer’s stock or assets so long as (a) the assignee agrees in writing to be bound by the terms of these Services Terms; (b) any right to use the Services will be limited to the scope of the Customer’s authorized use of such immediately prior to the assignment; and (c) the assignee is not a Competitor of Vendor.  Any prohibited assignment or sublicense of these Services Terms is void. Vendor reserves the right to revise the fees in the event of such assignment, and the parties will negotiate such revised fees in good faith. Customer will, at Vendor’s request, execute all documents and do all acts that may be required for the purpose of transferring all rights and obligations of these Services Terms under this provision.

14.4 Merger and Acquisition Activity. If Customer undergoes a merger or acquisition, Customer’s use of the Subscription Services may change materially. Fees do not include additional volume which results from a merger or acquisition. If Customer’s use of the Subscription Services will materially change as a result of an event, Vendor reserves the right to revise the fees in such event, and the parties will negotiate such revised fees in good faith.

14.5 Force Majeure. Except for the payment of monies due hereunder, neither party is liable to the other for any conditions outside of its control including, but not limited to, failure of a portion of the power grid, failure of the Internet, acts of God, strikes and other labor disputes, natural disasters such as floods, earthquakes, typhoons and epidemics, wars, government acts, terrorist acts, riots, revolutions, sabotage, or other events of a magnitude or type for which precautions are not generally taken in the industry.

14.6 No Partnership. Nothing contained in these Services Terms will be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties will be that of independent contractors. Neither party will have the authority to contract for or bind the other in any manner whatsoever. These Services Terms confer no rights upon either party except those expressly granted herein.

14.7 Notices. Any notice or communication required to be given hereunder must be in English and may be delivered by hand, overnight courier, or confirmed email as listed for each party herein or at such other address as may hereafter be furnished in writing by either party to the other party.

14.8 Severability; Waiver. If any provision of these Services Terms is found to be unenforceable, the remainder will be enforced as fully as possible, and the unenforceable provision will be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties as expressed. Any failure to enforce any provision of these Services Terms will not constitute a waiver thereof or of any other provision.

14.9 Non-Solicitation. Each party acknowledges that the other party’s employees are critical to servicing its customers and that each party has expended substantial resources in recruiting and training its employees. Therefore, each party agrees not to solicit, employ, or otherwise engage the other party’s employees with whom there was Substantial Contact.

14.10 Counterparts; Electronic Delivery. Order Forms may be executed in counterparts. Order Forms may be executed and delivered via electronic transmission with the same force and effect as if they were executed and delivered by the parties simultaneously in the presence of one another.

Service Level Agreement

This Service Level Agreement (“SLA”) details the Vendor’s Application Uptime Target and the Customer Service offered by Vendor on production environments of the Subscription Services identified on an Order Form. This SLA includes information about all Customer Service offerings. Refer to the Order Form for the Support Level selected by Customer.

1. Definitions

1.1 For the purpose of this SLA the following expressions shall have the meanings ascribed to them below:

“Application Uptime” means the actual availability of the applicable Subscription Services as calculated in accordance with Section 7.2 (Calculation of Application Uptime).

“Application Uptime Target” has the meaning ascribed under Section 7.1 (Application Uptime Target).

“Business Day” means any day excluding Saturdays and Sundays (as applicable to the time zone in which the applicable Customer Authorized Personnel is located).

“Business Hours” means the period between 08:00 hrs. and 17:00 hrs. on a Business Day (as applicable to the time zone in which the applicable Customer Authorized Personnel is located).

“Customer Authorized Personnel” means the authorized representatives of the Customer Helpdesk as described under Section 3.2 (Customer Authorized Personnel).

“Customer Data” means any content, materials, data, and information that Users input or cause to be input into the Subscription Services or that Customer or Users derive from their use of and store in the Subscription Services. Customer Data and its derivatives do not include Vendor’s Confidential Information.

“Customer Helpdesk” means the Customer’s internal support function for Users to report Incidents for Level 1 Support as referenced under Section 3.1 (Customer Helpdesk).

“Customer Service” means the support services available to the Customer under this SLA including Level 2 Support as a component of the Subscription Services and specified in the applicable Order Form.

“Customer Systems” means (i) the computer hardware, (ii) any peripherals, communication devices, wires and cabling, and any equipment related to any of the foregoing, and (iii) software, firmware, system software, and/or operating system of Customer (or a third party on behalf of Customer) and used by Users in any way relating to or interacting with the Subscription Services excluding any such items that are owned or licensed by Vendor or otherwise under Vendor’s control.

“Data Center” means the databases, computing servers, and related technology, software, and hardware owned or licensed by Vendor which support the Subscription Services.

“Downtime” means any period in which the Subscription Services are unavailable to the Customer and/or there is a S1 Incident (as defined in the TABLE 1 under Section 6.2 (Incident Prioritization) below) that is materially affecting the normal operation of such Subscription Services, excluding Excused Downtime.

“Emergency Maintenance” means the maintenance activities performed by Vendor as described under Section 5.2 (Emergency Maintenance).

“Excused Downtime” means any period during which the Subscription Services are unavailable to the Customer owing to either: (i) the performance of Scheduled Maintenance under Section 5.1 (Scheduled Maintenance); or (ii) any of the circumstances under Section 13 (Limitations).

“Incident” means a fault or issue related to the applicable Subscription Services (including service-related enquiries) that is reported by the Customer to the Vendor for investigation, response and/or resolution in accordance with the process described under Section 6 (Incident Management).

“Incident Management” means the process for management and resolution of Incidents as described under Section 6 (Incident Management).

“Incident Update” means an update given by the Vendor in relation to the resolution of an Incident as described under Section 6.3(b) (Incident Updates).

“Level 1 Support” means the initial support provided by the Customer Helpdesk in relation to Incidents or service-related enquiries that are reported to it by Users in relation to the Subscription Services. Such support includes (as necessary in the circumstances) recording a description of the Incident, performance of basic diagnostics to the determine the cause of the Incident, and where reasonably practicable performance of remedial action including for example: resolution of logon problems, or responding to questions regarding the Subscription Services and/or the Customer Data as described under Section 3.4 (Level 1 Support).

“Level 2 Support” means technical support requiring product expertise for investigation and resolution of Incidents that cannot be resolved by Customer’s Level 1 Support team.

“Month” means a calendar month.

“Multi-Tenant Solution” means a single instance of the applicable Subscription Services that supports multiple customers.

“Production” means when the applicable Subscription Services are available for normal use by the Customer’s Users in the ‘live’ production environment.

“Scheduled Maintenance” means the maintenance activities performed by Vendor as described under Section 5.1 (Scheduled Maintenance).

“Service Credit” means the amounts for which the Vendor is liable to the Customer for any failure to comply with the applicable Service Levels as determined under Section 8 (Service Levels and Service Credits).

“Service Demarcation Point” means Vendor’s border router, which is used to establish connectivity from the Data Center to the public Internet.

“Single-Tenant Solution” means a single instance of the applicable Subscription Services that supports only the Customer.

“Support Hours” means the period of time during which Level 2 Support is available for Incident Management as referenced in Section 4.2 and specified for the applicable Support Level in Attachment 1 (SLA Matrix) to this SLA.

“Support Level” means the level of support applicable to the supply of the relevant Subscription Services as specified in the applicable Order Form and for which the level of Customer Service is defined in Attachment 1 (SLA Matrix) to this SLA.

“Support Portal” means the Vendor’s web-based, customer support ticketing system that Customer Authorized Personnel and/or Third Party Technical Contacts (as applicable) may use to report and communicate with the Vendor Helpdesk in relation to  Incidents, and to review relevant documentation and reports related to the applicable Subscription Services, as referenced in Section 4 (Support Portal and Vendor Helpdesk).

“Supported Version” means in relation to Single-Tenant Solutions, any version of the Subscription Services used by Customer that is supported by the Vendor as described in the table under Section 9.1(c) (Single-Tenant Solutions);

“Update” means patches or hot fixes that may be implemented by Vendor from time to time (e.g. bug fixes and security patches), which do not constitute a new version of the Subscription Services.

“Upgrade” means each new release or version of the Subscription Services that is made commercially available by Vendor and that may include bug fixes, patches, corrections, workarounds, or other modifications to the Subscription Services including, without limitation, additional capabilities or functionalities or improvements to the applicable Subscription Services.

“User” means any individual natural person or approved automated system (commonly called a bot) granted access through a unique user ID, authorized by Customer for access and/or use of the Subscription Services.

“Vendor Helpdesk” means the Vendor’s customer support organization that is responsible for the provision of Customer Service to Customer as described under this SLA.

“Vendor Helpdesk Representative” means a member of the Vendor Helpdesk team.

1.2 Any other capitalized expressions shall have the meanings ascribed to them elsewhere in the Order Form or the Agreement.

2. General

2.1 This SLA sets out a description of the Customer Service to be supplied by Vendor to the Customer in relation to the applicable Subscription Services including for example:

(a) the procedures for detection, reporting and/or management of Incidents affecting the normal operation of the Subscription Services;

(b) relevant contact information and the hours in which Customer Service will be provided for Incident Management and service-related enquiries;

(c) the Application Uptime Target for the applicable Subscription Services;

(d) the performance targets and Service Levels with which the Vendor will use reasonable endeavors to comply during the performance of Customer Service; and

(e) details of Service Credits to which the Customer may be entitled in the event of Vendor’s non-compliance with the Service Levels.

2.2 Customer Service is available only for Subscription Services in Production.

3. Customer Helpdesk, and Customer Authorized Personnel

3.1 Customer Helpdesk. The Customer will maintain its own Customer Helpdesk, which shall be the Customer’s single point of contact for Users to request Level 1 Support in relation to the Subscription Services. The Customer will ensure that its Customer Authorized Personnel are sufficiently skilled to perform basic diagnostics, troubleshooting, problem solving and/or remedial activities in connection with the Subscription Services before referring the Incident to the Vendor Helpdesk for the provision of Level 2 Support and/or for requesting Customer Service.

3.2 Customer Authorized Personnel. Customer Authorized Personnel are Customer’s authorized representatives of its Customer Helpdesk who are authorized to communicate with Vendor via the Support Portal and/or Vendor Helpdesk in relation to Incidents and/or service-related enquiries (including in relation to Incidents reported to the Customer Helpdesk by Users), provided that:

(a) The number of Customer Authorized Personnel shall not exceed the number specified for the applicable Support Level in Attachment 1 (SLA Matrix) to this SLA.

(b) Customer will notify Vendor of the names, designations and contact details (telephone and email) of its initial Customer Authorized Personnel via email to customersupport@e2open.com; and

(c) Customer or any Customer Authorized Personnel may assign any replacement Customer Authorized Personnel or delegates by not less than 5 Business Days’ notice, given by email to customersupport@e2open.com.

3.3 Level 1 Support. Upon notification of an Incident related to the performance of the Subscription Services by a User, the Customer Helpdesk will perform Level 1 Support as reasonably required to:

(a) diagnose the cause of the Incident; and

(b) resolve the Incident (to the extent reasonably possible without Level 2 Support).

3.4 If the Customer Helpdesk is unable to resolve an Incident under Level 1 Support, then the relevant Customer Authorized Personnel may report the Incident to the Vendor under Section 6.1 (Incident Reporting and Tracking) for the provision of Level 2 Support by Vendor. Third Party Technical Contacts may report Incidents to the Vendor under Section 6.1 (Incident Reporting and Tracking) for Level 2 Support directly.

4. Support Portal and Vendor Helpdesk

4.1 Vendor will maintain a Support Portal and Vendor Helpdesk for the:

(a) monitoring of the performance of the Subscription Services;

(b) detection, reporting and/or management of Incidents affecting the normal operation of the Subscription Services; and

(c) responding to other requests for Customer Service (e.g. requests for reports).

4.2 The Support Portal and Vendor Helpdesk are available for the reporting of Incidents at any time (24 hours/day, 365 days/year). However, Customer Service will be available during the applicable Support Hours as specified in Attachment 1 (SLA Matrix) to this SLA according to the applicable Support Level and Incident Severity Level.

5. Maintenance

Vendor will provide pro-active maintenance of the Subscription Services in order to implement planned and emergency measures as described below.

5.1 Scheduled Maintenance.

(a) The Vendor will perform Scheduled Maintenance that may affect the normal operation of the Subscription Services during the Scheduled Maintenance Period specified in Attachment 1 (SLA Matrix) to this SLA. Scheduled Maintenance includes all activities that the Vendor deems necessary, in its sole discretion, to maintain optimum performance of the applicable Subscription Services including for example: system configuration changes; hardware/firmware/software updates and/or upgrades; security-related updates, and other similar maintenance activities.

(b) No later than 5 Business Days before the performance of Scheduled Maintenance the Vendor will notify the Customer Authorized Personnel of:

     (i) the time and date on which the Scheduled Maintenance will commence;

     (ii) the expected duration of the Scheduled Maintenance; and

     (iii) whether the Scheduled Maintenance will or is likely to affect the normal operation of the Subscription Services (if applicable).

(c) The Customer Authorized Personnel are responsible for notifying the applicable Users accordingly if the Scheduled Maintenance will or is likely to affect the normal operation of the Subscription Services.

5.2 Emergency Maintenance.

(a) Additionally, the Vendor will perform Emergency Maintenance that may affect the normal operation of the Subscription Services at any time if the Vendor determines that an emergency situation exists (e.g. a security risk exists or there is a serious performance issue) and that it is not reasonable to delay the performance of such maintenance until a Scheduled Maintenance Period. Emergency Maintenance includes all activities that the Vendor deems necessary, in its sole discretion, to resolve the emergency situation.

(b) If Emergency Maintenance is required, Vendor will notify the Customer Authorized Personnel as soon as practicably possible in the circumstances of:

     (i) the time and date on which the Emergency Maintenance will commence (or commenced);

     (ii) the expected duration of the Emergency Maintenance; and

     (iii) whether the Emergency Maintenance will or is likely to affect the normal operation of the Subscription Services (if applicable).

(c) The Customer Authorized Personnel are responsible for notifying the applicable Users accordingly if any Emergency Maintenance will or is likely to affect the normal operation of the Subscription Services.

5.3 Maintenance of Customer Systems. The Customer Authorized Personnel are responsible for notifying Vendor of any scheduled or unscheduled maintenance activities on the Customer Systems that will or may potentially affect the normal operation of the Subscription Services.

6. Incident Management

6.1 Incident Reporting and Tracking. Customer Authorized Personnel (and Third Party Technical Contacts, as applicable) may report Incidents to the Vendor either:

(a) via the Support Portal at https://www.e2open.com/csp

(b) by email to the Vendor Helpdesk at customersupport@e2open.com (unless the applicable Support Level is “Essential”);

(c) by chat to the Vendor’s chat window within the Support Portal or, for INTTRA Service only, at https://www.inttra.com/contact-us/; or

(d) by telephone to the Vendor Helpdesk using the applicable telephone number(s) at https://www.e2open.com/global-support/

as summarized under Attachment 1 (SLA Matrix) to this SLA and provided that S1 and S2 Incidents must be reported to the Vendor Helpdesk by telephone.

6.2 Incident Prioritization

(a) In order to prioritize the assignment of Vendor resources to resolution of those Incidents having the highest adverse impact on the Users, the Vendor will assign a Severity Level to each Incident in accordance with the assessment criteria under Table 1 (Incident Prioritization) below.

Table 1. Incident Prioritization

(b) The Vendor Helpdesk Representative will determine the Incident Severity Level based on the description of the Incident provided by the Customer and/or information determined from the Vendor Helpdesk Representative’s investigations.6.3 Level 2 Support. This Section 6.3 describes the scope of the Level 2 Support that will be provided by the Vendor Helpdesk in relation to any Incident related to the Subscription Services. Level 2 Support will be provided during the Support Hours specified for the applicable Support Level under Attachment 1 (SLA Matrix) to this SLA. For any Incident, the Vendor Helpdesk will undertake the activities below (as applicable):(a) Incident Diagnostics and Assignment. The Vendor Helpdesk Representative will undertake initial investigations and/or basic diagnostics and will:

Severity Level	Assessment Criteria	Examples
Severity 1 (“S1”)	The Subscription Services are inaccessible, or there is a critical loss of functionality that severely impacts Customer’s ability to use the Subscription Services.	Complete service outage Critical functionality of the Subscription Services is unavailable Customer Data loss impacting customer core business operations Critical security vulnerabilities Critical business processes are unable to be performed, including B2B transactions
Severity 2 (“S2”)	The performance of the Subscription Services is significantly degraded or impaired or the Incident affects only a subset of sites or Users	Single site or a subset of Users is impacted Core features or functionality are significantly impaired Performance is degraded to the point where business processes are significantly delayed or severely impacted. High impact to business operations and no workaround exists.
Severity 3 (“S3”)	The Subscription Services are subject to a minor degradation, or the Incident does not materially affect the core functionality or Customer’s use thereof.	The software is functioning however a moderate loss of application functionality or performance is causing impact to multiple users. A report is generating incorrect data A search function is returning unexpected results User interface defects that are not impacting service availability or core functionality Error messages or warnings that are not critical to Customer’s use of the Subscription Services and do not materially prevent Users from completing tasks.
Severity 4 (“S4”)	Service request or the Subscription Services are subject to minor nonconformances, or the Incident is merely an inconvenience or cosmetic in nature	Account maintenance (new user setups, deactivations) Cosmetic errors Updates to system documentation
Severity 5 (“S5”)	Customer feedback regarding an improvement to existing functionality.	Requests for new features or enhancements to existing functionality

     (i) resolve the Incident (if practical to do so); or

     (ii) assign the Incident to the appropriate resolving group; and

     (iii) update the CSR Ticket accordingly (which generates an automated email to the Customer).

(b) Incident Updates. Pending resolution of any Incident, the Vendor will use its reasonable endeavors to provide Incident Updates during the applicable Support Hours and within the Target Update Time that is specified for the applicable Incident Severity Level and Support Level under Attachment 1 (SLA Matrix) to this SLA.

(c) Incident Resolution. Upon assignment of an Incident, the resolving group will undertake further investigations and/or take such remedial action as may be necessary to Resolve the Incident. The Vendor will use its reasonable endeavors to Resolve the Incident within the Target Resolution Time that is specified for the applicable Incident Severity Level and Support Level under Attachment 1 (SLA Matrix) to this SLA.

(d) Customer Obligations. The Vendor’s ability to Resolve Incidents in a timely manner relies upon the cooperation of the Customer. The Customer Helpdesk may be required (for example) to: respond to Vendor’s questions regarding the Incident; promptly provide complete and accurate information or data as reasonably requested by the Vendor; and/or follow any instructions provided by the Vendor, as may be necessary for further diagnostic purposes.

(e) Root Cause Analysis. The Vendor will provide a Root Cause Analysis (“RCA”) for S1 Incidents as described in this Section below.

     (i) The purpose of the RCA is to determine the root cause of Incidents in order to devise and implement corrective measures that will permanently resolve the Incident and/or minimize the probability of recurrence. The RCA document is used to communicate the results of the RCA to the Customer.

     (ii) Vendor will use its reasonable endeavors to submit each RCA document to the Customer within the Target RCA Submission Time that is specified for the applicable Incident Severity Level and Support Level under Attachment 1 (SLA Matrix) to this SLA

7. Application Uptime Target

7.1 Application Uptime Target. Vendor will use commercially reasonable efforts to ensure that the Application Uptime for the applicable Subscription Services is not less than the Application Uptime Target specified for the applicable Support Level under Attachment 1 (SLA Matrix) (“Application Uptime Target”).

7.2 Calculation of Application Uptime. Vendor will calculate the Application Uptime for each Month of the subscription term as follows:

     A = ((N x 1,440) – E – D)) x 100 / ((N x 1,440) – E)

     Where:

     A = the Application Uptime for the applicable Month (in %)

     N = the number of days in the applicable Month [note: N x 1,440 = the number of minutes in the applicable Month]

     E= the total number of minutes of Excused Downtime for the applicable Month.

     D = the total number of minutes of Downtime for the applicable Month.

8. Service Credits

8.1 Service Credits for non-compliance with the Application Uptime Target. If for any Month the Application Uptime falls below the applicable Application Uptime Target, then the Customer will be entitled to a Service Credit, which will be equal to the amount of the Annual Subscription Fees paid by the Customer for the affected Subscription Services and for the applicable Month of occurrence multiplied by the applicable Service Credit Percentage specified for the applicable Support Level under Attachment 1 (SLA Matrix), depending on the Application Uptime.

8.2 Process for claiming Service Credits. If the Customer believes that it is entitled to a Service Credit for any Month under this Section 8, then it will submit a claim to Vendor within 10 calendar days following the end of that Month. Subject to verification of the Customer’s claim, Vendor will issue a credit note for the amount of the Service Credits which may be applied against any subsequent invoice amount under the Order Form or if there is no such invoice then the amount of the Service Credits shall be promptly repaid to the Customer. Vendor and Customer agree that Service Credits are liquidated damages that if claimed and paid will constitute Customer’s sole and exclusive remedy with respect to the failure for which the Service Credits are related.

9. Upgrades and Updates

9.1 Upgrades.

(a) Vendor generally issues Upgrades of its Subscription Services in 4 releases per year. Upgrades are available to the Customer for no additional fee.

(b) Subject to the following provision of this Section 9.1, implementation of Upgrades is not included in the Annual Subscription Fees or any other fees designated on Order Forms, and if Customer requires assistance in implementing any Upgrades, or to retro-fit the Upgrade for any customizations made to a prior release or to Vendor’s older versions of the Subscription Services, then such assistance will be provided by Vendor under a statement of work. Provided that if the Customer has agreed to purchase such assistance in implementing any Upgrades as a part of the Subscription Services under the applicable Order Form, then the scope of such assistance will be as specified in the applicable statement of work.

(c) Single-Tenant Solutions. For single-tenant solutions, Vendor recommends that the Customer should upgrade the Subscription Services every 12-18 months and requires Customers to upgrade no less frequently than every 2 years (8 releases). If the Customer elects to not upgrade and remain on a version older than 2 years then either:

     (i) the Customer will be required to purchase an extended support plan to maintain applicable service levels;

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     (ii)) the Vendor will be relieved of liability for any non-compliance with relevant targets under this SLA or any other failure to comply with a provision of the Order Form that would have been avoided had the Customer upgraded to a Supported Version of the Services,

provided that versions older than 5 years are out of support and the Customer must upgrade to continue to receive support.

Vendor’s recommendations and/or requirements for single-tenant solutions are summarized in the table below:

Table 2.

Release VersionYearSupport LevelRecommendationSupported VersionUpdates Available

Current Version1 yearSLA applies
YesYes

Current – 1
Current – 2
Current – 3
Current – 4 to Current – 7	2 Years	SLA applies	Upgrade	Yes	Yes
Current – 8 to Current – 19	3-5 years	Customer to purchase extended support plan else Vendor cannot commit to SLA	Customer should Upgrade	Only if Customer has purchased an extended support plan	‘Yes’ if Customer has purchased an extended support plan, else ‘No’.
Current – 20+	5+ years	No Support	Customer must Upgrade	No	No

(d) Multi-Tenant Solutions. For multi-tenant solutions Upgrades will be deployed automatically during periods of Scheduled Maintenance at no cost to the Customer. The Vendor will give prior notice to the Customer of each such deployment.

9.2 Updates.

(a) Implementation of Updates for certain Supported Versions of Single-Tenant Solutions is included in the Subscription Services as specified in the table under Section 9.1(c)(ii) above.

(b) For multi-tenant solutions Updates will be deployed automatically during periods of Scheduled Maintenance at no cost to the Customer.

10. Reporting, Service Level Reviews and Customer Success Manager.

10.1 Reporting. Customer Authorized Personnel may access self-service reporting directly from the Support Portal.  Standard reports include the ability to report on open and closed CSR Tickets by date and time created.

11. Customer Service Exclusions

11.1 Customer Service does not include:

11.2 Vendor may provide support (but is not obligated to do so) in relation to the items listed under Section 12.1 above as may be reasonably requested by the Customer, subject to agreement between the parties of an appropriate statement of work and the fees payable by the Customer for such support.12. Limitations

12.1 Vendor will be relieved of liability for any delay or failure in compliance with its obligations under this SLA to the extent attributable to:

(a) assignment of an Incident back to the Customer Helpdesk with a request for: (i) further information, investigations and/or diagnostics; (ii) Customer to take action as reasonably required to resolve the Incident;

(b) the Vendor can find no fault with the Subscription Services having used all reasonable endeavors to do so;

(c) delays attributable to circumstances of force majeure; or

(d) delays otherwise attributable to the Customer or a third party (excluding third parties under control of the Vendor);

(e) unavailability of the relevant Subscription Services to the Customer for reasons attributable to:

     (i) data errors that are caused by or attributable to Customer and/or its third party vendors, customers, and agents;

     (ii) any period of unavailability of the Subscription Services to mitigate or defend against a cyber threat or that is mutually agreed between the parties in advance (e.g. to perform work requested by the Customer or Emergency Maintenance)

     (iii) alteration, modification of or damage to the Subscription Services by Customer or any other person under Customer’s control (excluding Vendor) except as explicitly approved by Vendor;

     (iv) issues caused by or attributable to Customer Systems, and/or any other hardware or software not supplied by Vendor as a part of the Subscription Services;

     (v) neglect, negligence, abuse, misuse unless attributable to Vendor;

     (vi) viruses, worms, time bombs, backdoors, logic bombs, Trojan horses, trap doors, or other malicious computer instructions, provided that such failures or defects do not result from Vendor’s failure to take reasonable security precautions.

     (vii) failure or fluctuations in electrical power supplies unless attributable to Vendor;

     (viii) Customer’s failure to comply with its obligations under the SLA or elsewhere under the applicable Order Form and/or the Agreement;

     (ix) circumstances of force majeure; and

     (x) solely in relation to Single-Tenant Solutions, Customer’s use of any version of the Subscription Services that is not a Supported Version.

any other delays or failures not attributable to the Vendor.

Support Level (3)		Essential	Premier
Incident Reporting		Support Portal, Telephone	Support Portal, Email, Telephone
Maximum number of Customer Authorized Personnel		4	20
Maximum number of Third Party Technical Contacts		2	2
Support Hours (1)
Incident Severity Level	S1	24 x 365	24 x 365
	S2-S5	8 x 5	24 x 5
Target Update Time
Incident Severity Level	S1	12 hours	2 hours
	S2	2 Business Days	6 hours
	S3	4 Business Days unless mutually agreed otherwise	3 Business Days unless otherwise agreed mutually
	S4-S5	To be mutually agreed as appropriate	To be mutually agreed as appropriate
Target Resolution Time (2)
Incident Severity Level	S1	24 hours	12 hours
	S2	72 hours	48 hours
	S3	Next scheduled patch release, unless mutually agreed otherwise	Next scheduled patch release, unless mutually agreed otherwise
	S4-S5	As mutually agreed	As mutually agreed
Target RCA Submission Time (for S1 Incidents)		10 Business Days	5 Business Days
Service Level Reviews		n/a	Monthly and Bi-Annual   The agenda for the Monthly Service Level Review meeting will include a review of: (i) open CSR tickets (ii) other support focus areas as agreed.   The agenda for the Bi-Annual Service Level Review meeting will include a review of: (i) Product Roadmap (ii) service performance (iii) S1 and S2 Incidents; (iv) RCAs
Assigned Customer Success Manager		Subject to agreement between the parties depending on the scope of the applicable Subscription Services and the fees payable under the Order Form.

(1) ‘24 x 365’ means at all times (24 hours/day, 365 days/year); ’24 x 5’ means at any time (24 hours/day) during Business Days; and ‘8 x 5’ means during Business Hours.(2) For Incidents that require back-porting of fixes that were previously deployed in newer versions of the Subscription Services, the Target Resolution Time may be unachievable given the need to package, test and deploy the fix. Therefore, in such circumstances, the Vendor will be relieved of its obligation to meet the Target Resolution Time.

(3) The available Support Level for LI-GTM-UK-P1, LI-GTM-UK-P2, and LI-BJS-CM-UK (or categories of these Subscription Services) is limited to Essential Only:

Application Uptime