SaaS Subscription Agreement

PLEASE NOTE THAT THE TERMS OF THIS SAAS SUBSCRIPTION AGREEMENT SHALL GOVERN YOUR USE OF THE SERVICE. PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION.

This SaaS Subscription Agreement, including all attachments, exhibits, schedules, addenda (“Agreement”), is entered into by and between Performio company, defined in the Order Form (“Performio”) and the organization on whose behalf you are agreeing to this Agreement, as set forth in the Order Form (“Customer”). This Agreement shall be effective on the date the initial Order Form is fully executed by the parties (“Effective Date”).

By signing the Order Form, registering for and/or accessing, using, or subscribing to use the Service, or otherwise affirmatively manifesting your intent to be bound by this Agreement, you represent and warrant that you have: (a) all necessary rights and authority necessary to enter into this Agreement on behalf of Customer; and (b) read, understood, and agree to be bound by this Agreement on Customer’s behalf, as well as all other agreements referenced herein and any future modification hereto.

1. DEFINITIONS

Affiliate” means with respect to a Party, any person or entity that controls, is controlled by, or is under common control with such Party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities.

Agreement” means, collectively, this SaaS Subscription Agreement, any Statement of Work and Order Form agreed to by the parties, as well as any attached or referenced exhibits or schedules, and amendments hereto, each of which are incorporated herein by this reference. 

Authorized User” means a named individual that: (a) is an employee, representative, consultant, contractor or agent of Customer or a Customer Affiliate; (b) is authorized to use the Service pursuant to this Agreement; and (c) has been supplied a user identification and password by Customer. Customer shall be responsible for all access and use of the Service by the Authorized Users.

Customer Data” means any data that Customer submits to the Service. 

Documentation” means the end user technical documentation provided with the Service, as may be modified from time to time. 

Improvements” means new features, functionality, enhancements, upgrades, error corrections, and bug fixes that the Service makes generally available by Performio for no additional charge to Performio’s customers. 

Order Form” means document entered into by and between Performio and Customer (including Affiliates of either party that enter into an Order Form) that references this Agreement, which details the services to be provided by Performio, the fees associated therewith, and any other transaction-specific terms and conditions. 

Service” means Performio’s hosted service solution as ordered by Customer under an Order Form, including Improvements.

Subscription Term(s)” means the subscription period(s) specified in an Order Form, during which Authorized Users may use and access the Service, subject to the terms of this Agreement.

Support Services” means the maintenance and support services provided by Performio to Customer during the Subscription Term.

2. LICENSE

2.1. Provision of the Service. Conditioned upon Customer’s payment of all fees due hereunder, Performio grants Customer a limited, non-exclusive, non-sublicenseable, nontransferable (except as specifically permitted in this Agreement) right to access and use the Service during the applicable Subscription Term, and in scope of use restrictions as set forth in the applicable Order Form, solely for Customer’s internal business purposes. Customer may permit its Affiliates to use and access the Service and Documentation in accordance with this Agreement, but Customer shall be responsible for the compliance of all Affiliates with this Agreement, Documentation, and the Order Form(s). Performio will host the Service and may update the content, functionality, and user interface of the Service from time to time at its discretion. Performio will not materially decrease the functionality of the Service during Subscription Term. 

2.2. Use Restrictions.  Customer shall not (and shall not permit any third party to): (a) sublicense, sell, transfer, assign, distribute or otherwise grant or enable access to the Service in a manner that allows anyone to access or use the Service without an Authorized User subscription, or to commercially exploit the Service;  (b) use the Service to provide, or incorporate the Service into, any product or service provided to a third party; (c) use the Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code except to the extent expressly permitted by applicable law (and then only upon advance notice to Performio); (e) copy, modify or create any derivative work of the Service or any Documentation; (f) remove or obscure any proprietary information or other notices contained in the Service; (g) allow Authorized User subscriptions to be shared or used by more than one individual Authorized User (except that Authorized User subscriptions may be reassigned to new Authorized Users replacing individuals who no longer use the Service for any purpose, whether by termination of employment or other change in job status or function); (h) publicly disseminate performance information regarding the Service; or (i) access or use the Service: (1) to send or store infringing, obscene, threatening, or otherwise unlawful material, including material violative of third-party privacy rights; (2) in violation of applicable laws; (3) to send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, or agents; (4) in a manner that interferes with or disrupts the integrity of the Service; (5) disable or bypass the measures that Performio may use to prevent or restrict access to the Service, or in applicable, use the Service in excess of certain license restrictions and limits set forth in the Order Form(s).

2.3. Availability and Support Services.  During the Subscription Term, Performio will maintain availability of the Service, and will provide Support Services in accordance with the purchased Support Services level, as described in the Exhibit A.  Support Services are included in the Service subscription.

2.4 Usage Limits.  Use of the Service is subject to the usage limits identified in an Order Form, which may include limitations on features and functionality.  If Customer exceeds a limit, Customer will promptly notify Performio and work with Performio to promptly change its usage to comply with the limit. If Customer fails to do so or notifies Performio of its intent to continue with the excess usage, Customer will execute an Order Form and/or pay invoices issued by Performio for such excess usage. Performio may periodically verify that Customer’s use of the Service is within the applicable usage limits, and Customer shall promptly and accurately certify and/or provide evidence of Customers compliance with the applicable usage limits as may be requested by Performio from time to time.

2.5 Professional Services. Performio (directly, through an Affiliate and/or subcontractors) may perform implementation, training, consultation or other Professional Services as agreed to in a separately executed Statement of Work.

3. CUSTOMER OBLIGATIONS

Customer has exclusive control and responsibility for determining what data Customer submits to the Service and for obtaining all necessary consents and permissions for submission of Customer Data. Customer is solely responsible for the accuracy, content and legality of all Customer Data and for the acts and omissions of Authorized Users in connection with this Agreement. Customer represents and warrants that Customer has all necessary rights, consents and permissions to collect, share and use Customer Data as contemplated in this Agreement, without violation or infringement of any third-party intellectual property, publicity, privacy rights or any laws and regulation and agrees to comply with all applicable laws in its use of the Service. Customer will use reasonable measures to prevent, and will promptly notify Performio of any known or suspected unauthorized use of Authorized User access credentials.

4. INTELLECTUAL PROPERTY AND OWNERSHIP

4.1. Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data.  Subject to the terms of this Agreement, Customer hereby grants to Performio a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Service to Customer during the Subscription Term.     

4.2. Performio Technology. The Service and Documentation, all copies and portions thereof, and all intellectual property rights therein, including, but not limited to derivative works, enhancements and modifications therefrom, shall remain the sole and exclusive property of Performio. Customer grants to Performio a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to incorporate and use, commercialize and distribute with the Service any suggestions, recommendations or other feedback specifically relating to the Service as Customer in its discretion may elect to provide and to create derivate works of the same.

4.3. Intellectual Property. Unless otherwise specified in this Agreement, the Parties agree that the intellectual property provided by either Party shall remain at all times the property of the supplying Party. 

5. FEES & PAYMENT

5.1. Fees and Payment.  All fees are as set forth in the applicable Order Form and shall be paid by Customer within thirty (30) days of date of invoice, unless otherwise specified in the applicable Order Form.  Except as expressly set forth in an Order Form: (a) payment obligations are non-cancelable and fees are non-refundable, unless specifically provided herein; and (b) Customer may not decrease the purchased number of subscription rights during the applicable Subscription Term.   Customer must contact Performio in writing within thirty (30) days from invoice date to dispute any invoice. 

5.2. Effect of Nonpayment.  Unpaid amounts may be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law, plus all collection costs, provided that Performio provides Customer a notice of default and five (5) days to cure.

5.3. Taxes. All fees stated on Order Form are exclusive of any taxes, levies, or duties (“Taxes”), and Customer will be responsible for payment of all such Taxes excluding taxes based solely on Performio income. Unless Customer provides Performio a valid state sales/use/excise tax exemption certificate, Customer will pay and be solely responsible for all Taxes. Performio may invoice Taxes in accordance with the applicable law together on one invoice or a separate invoice.  Performio reserves the right to determine the Taxes for a transaction based on Customer’s “bill to” or “ship to” address, or other information provided by Customer on the location of Customer’s use of the Service. Customer will be responsible for any Taxes, penalties or interests that might apply based on Performio’s failure to charge appropriate tax due to incomplete or incorrect location information provided by Customer. If Customer is required by any foreign governmental authority to deduct or withhold any portion of the amount invoiced for the delivery or use of the Service under this Agreement, Customer shall increase the sum paid to Performio by an amount necessary for the total payment to Performio equal to the amount originally invoiced.

6. TERM AND TERMINATION

6.1. Term. This Agreement commences on the Effective Date and unless earlier terminated pursuant to the terms of this Agreement, the Agreement will continue for so long as there is an Order Form in effect between the Parties. 

6.2. Termination for Cause. Either Party may terminate this Agreement (or any affected Order Form(s)) (a) upon the other Party’s material breach that remains uncured for thirty (30) days following notice of such breach, except that termination will take effect on notice in the event of a breach of Section 2.2 (“Use Restrictions”) or 10 (“Confidential Information”); or (b) immediately in the event 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  (and not dismissed within sixty (60) days thereafter).  

6.3. Termination for Convenience. Either Party may terminate this Agreement for any reason or for no reason, by providing the other Party at least thirty (30) days’ prior written notice.

6.4. Treatment of Customer Data Following Expiration or Termination. Customer agrees that following termination of this Agreement, or termination or expiration of any Order Forms, Performio may immediately deactivate Customer’s account(s) associated with the Agreement or applicable Order Form(s). During the thirty (30) day period following termination or expiration, Performio will grant a reasonable number of Authorized Users access to the Service for the sole purpose of retrieving Customer Data. Thereafter, Performio will delete Customer’s account, including Customer Data, from Performio’s site. 

6.5. Effect of Termination. Upon early termination of this Agreement by Customer for Performio’s uncured material breach pursuant to Section 6.2 or by Performio pursuant to Section 6.3, Customer is entitled to a prorated refund of prepaid fees relating to the Service applicable to the remaining period in the applicable Subscription Term. Upon expiration or termination of this Agreement by Performio for Customer’s uncured material breach pursuant to Section 6.2 or by Customer pursuant to Section 6.3, fees relating to the Service applicable to the duration of any applicable Subscription Term will be immediately due and payable. In addition, upon expiration or termination of this Agreement for any reason: (a) all rights granted to Customer under this Agreement, and Performio’s obligation to provide Support Services and the Service will terminate; and (b) any payment obligations accrued pursuant to this Agreement, as well as the provisions of Section 6, 9, 10, and 12 of this Agreement will survive such expiration or termination.

7. LIMITED WARRANTY

7.1. Mutual Warranty. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; and (b) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.

7.2 Limited Warranty. Performio warrants that, during the Subscription Term, the Service will perform materially in accordance with the applicable Documentation, and Performio will not materially decrease the functionality of the Service. In the event of a breach of the foregoing warranty, Customer’s exclusive remedy shall be to request Performio assistance through Performio’s support program, which Performio shall provide in accordance with its obligations under Section 2.3 (“Availability and Support Services”).

7.3. Malicious Code. Performio warrants that Performio will not knowingly introduce, software viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm.

7.4. Warranty Disclaimer. EXCEPT AS WARRANTED IN SECTIONS 7.1 AND 7.2, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. PERFORMIO IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION OR OTHER DAMAGE RESULTING FROM PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE AND PERSONAL COMPUTING DEVICES, AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS OUTSIDE OF ITS CONTROL.

8. INDEMNIFICATION 

8.1. By Performio. Performio shall defend Customer from and against any claim by a third party alleging that the Service when used as authorized under this Agreement infringes any trademark or copyright of such third party, enforceable in the jurisdiction of Customer’s use of the Service, or misappropriates a trade secret (but only to the extent that such misappropriation is not a result of Customer’s actions) (“Infringement Claim”) and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer by a court of competent jurisdiction or agreed in settlement by Performio (including reasonable attorneys’ fees) resulting from such Infringement Claim. Performio will have no obligation and assumes no liability under this Section 8 or otherwise with respect to any claim based on: (a) if the Service is modified by any party other than Performio, but solely to the extent the alleged infringement is caused by such modification; (b) if the Service is combined, operated or used with any Customer Data or any Customer or third party products, services, hardware, data, content, or business processes not provided by Performio where there would be no infringement Claim but for such combination; (c)any action arising as a result of Customer Data or any third-party deliverables or components contained within the Service; (d) if Customer settles or makes any admissions with respect to a claim without Performio’s prior written consent; or (e)any use provided on a no-charge or evaluation basis.  THIS SECTION 8 SETS FORTH PERFORMIO’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

8.2. Remedies. If Customer’s use of the Service is (or in Performio’s opinion is likely to be) enjoined, if required by settlement or if Performio determines such actions are reasonably necessary to avoid material liability, Performio may, at its option: (i) procure for Customer the right to use the Service in accordance with this Agreement; (ii) replace or modify, the Service to make it non-infringing; or (iii) terminate Customer’s right to use the Service and discontinue the related Support Services, and upon Customer’s certification of deletion of the Service, refund prorated pre-paid fees for the remainder of the applicable Subscription Term for the Service.

8.3. By Customer. Customer will defend, indemnify and hold Performio harmless from and against any damages and costs (including reasonable attorneys’ fees and costs incurred by Performio) finally awarded against Performio arising from or in connection with any claim alleging that Performio’s use of the Customer Data infringes a copyright, trademark, trade secret or breaches privacy, or publicity right of a third party.

8.4. Indemnity Process. Each Party’s indemnification obligations are conditioned on the indemnified Party: (a) promptly giving written notice of the claim to the indemnifying Party; (b) giving the indemnifying Party sole control of the defense and settlement of the claim; and (c) providing to the indemnifying Party all available information and assistance in connection with the claim, at the indemnifying Party’s request and expense.  The indemnified Party may participate in the defense of the claim, at the indemnified Party’s sole expense (not subject to reimbursement). Neither Party may admit liability for or consent to any judgment or concede or settle or compromise any claim unless such admission or concession or settlement or compromise includes a full and unconditional release of the other Party from all liabilities in respect of such claim. 

9. LIMITATION OF REMEDIES AND DAMAGES

9.1. Liability Cap. EXCEPT WITH RESPECT TO:  (A) EITHER PARTY’S OBLIGATIONS UNDER SECTION 8 (“INDEMNIFICATION”) (FOR WHICH THE LIABILITY LIMITATION SHALL BE ONE HUNDRED THOUSAND DOLLARS ($100,000) IN THE AGGREGATE); AND (B) CUSTOMER’S INFRINGEMENT OF PERFORMIO’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID BY AND/OR DUE FROM CUSTOMER FOR THE THEN-CURRENT ANNUAL SUBSCRIPTION TERM, UNDER THE APPLICABLE ORDER FORM(S) RELATING TO THE CLAIM.

9.2. Liability Exclusions. EXCEPT FOR CUSTOMER’S INTELLECTUAL PROPERTY INFRINGEMENT, IN NO EVENT SHALL EITHER PARTY, OR PERFORMIO’S AFFILIATES OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA,  REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3. Limitations Fair and Reasonable. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.  

10. CONFIDENTIAL INFORMATION 

10.1. Confidentiality. “Confidential Information” means this Agreement, the Service, pricing information, Performio’s technical information, performance information relating to the Service, non-public information regarding features and functionalities, Customer Data and any other information disclosed by one Party (“Disclosing Party”) to the other (“Receiving Party”) in connection with this Agreement that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder. Except as expressly authorized herein, the Receiving Party shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement.  The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party’s confidentiality obligations shall not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.  

10.2. Sensitive data. Customer agrees that it will not submit the following types of information to the Service except with Performio’s prior written approval: government-issued identification numbers, consumer financial account information, credit and payment card information, personal health information, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs). Where Customer’s use of the Service includes the processing of personal data (as described in the EU Data Protection Directive 95/46/EC) within the European Economic Area (EEA), Customer will enter into a separate data processing agreement (including the European Commission’s Standard Contract Clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection) with Performio prior to submission of such personal data to the Service. Customer represents and warrants that it has obtained all necessary consents and permissions from data subjects for the submission and processing of personal data in the Service.

11. DATA PROTECTION

During the Subscription Term, Performio will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data at least as rigorous as the measures standard in the industry. Performio will not use Customer Data except to provide the Service or Support Services in accordance with this Agreement or as instructed by Customer. If Performio detects or becomes aware of a breach of its obligations under this Section 11 resulting in unauthorized access effecting Customer Data, Performio will promptly report such breach to Customer. 

12. GENERAL TERMS

12.1. Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party, provided that no such consent will be required to assign this Agreement in its entirety to (i) an Affiliate that is able to satisfy the obligations of the assignor under this Agreement or (ii) a successor in interest in connection with a merger, acquisition or sale of all or substantially of the assigning Party’s assets, provided that the assignee has agreed to be bound by all of the terms of this Agreement and all fees owed to the other Party are paid in full. If Customer is acquired by, sells substantially all its asses to, or undergoes a change of control in a favor of, a direct competitor of Performio, then Performio may terminate this Agreement upon thirty (30) days prior written notice. 

12.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

12.3. Governing Law; Jurisdiction and Venue. This Agreement will be governed by the Applicable Law (without regard to the conflicts of law provisions of any jurisdiction), and claims arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the Jurisdiction based on the Customer’s residence, set forth in the preamble, as provided in the following table:

Customer Residence

Applicable Law

Jurisdiction

Americas

State of California, USA

San Francisco, California, USA

Europe, Middle East, Africa

England & Wales

London, UK

Asia Pacific including Australia and New Zealand

Victoria, Australia

Melbourne, Australia

 

Each Party irrevocably submits to the personal jurisdiction and venue of and agrees to service of process issued or authorized by, any court in the Jurisdiction in any action or proceeding. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. 

12.4. Notice. Notices to a Party will be sent by first-class mail, overnight courier or prepaid post to the address for such Party as identified on the first page of this Agreement and will be deemed given seventy-two (72) hours after mailing or upon confirmed delivery or receipt, whichever is sooner. Customer will address notices to Performio CEO, with a copy to legalnotices@performio.com. Either Party may from time to time change its address for notices under this Section by giving the other Party at least thirty (30) days prior written notice of the change.

12.5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each Party to this Agreement.  No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived.  No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

12.6. Entire Agreement; Interpretation.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement.  In this Agreement, headings are for convenience only and “including”, “e.g.”, and similar terms will be construed without limitation. In the event of a conflict between the terms of this Agreement and the terms of any Order From, Support Services Policy or other exhibit hereto, such conflict will be resolved in the following order: (a) any Order Form; (b) this Agreement; and (c) Support Services Policy. Any preprinted terms on any Customer ordering documents or terms referenced or linked therein will have no effect on the terms of this Agreement and are hereby rejected, including where such Customer ordering document is signed by Performio. Customer acknowledges that the Service is an on-line, subscription-based product, and that in order to provide improved customer experience Performio may make changes to the Service, and Performio will update the applicable Documentation accordingly.  The support service level may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease Performio’s obligations). 

12.7. Subcontractors. Performio may use the services of subcontractors and permit them to exercise the rights granted to Performio in order to provide the Service under this Agreement.  These subcontractors may include, for example, Performio’s hosting infrastructure. Performio remains responsible for compliance of any such subcontractor with the terms of this Agreement and the overall performance of the Service as required under this Agreement.  

12.8. Use of Aggregate Information. Performio may collect, use and analyze general information and data from all of its customers, including Customer Data in anonymized, aggregated manner for purposes of improving and enhancing the quality and nature of the Service, or to market or publish general information and statistics provided that the anonymized data does not include information that identifies or provides reasonable basis to identify a company, an individual or Customer Data in course of collecting using, analyzing, marketing or publishing that information.  

12.9. Independent Contractors.  The parties to this Agreement are independent contractors.  There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.  Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

12.14. Counterparts. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The Parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement shall be legally binding with the same force and effect as manually executed signatures

Exhibit A

Support Levels

1. DEFINITIONS

1.1 “Emergency Downtimemeans such time as the Service is offline due to emergency condition or emergency maintenance.

1.2 “Excused Downtime” means any downtime that is Maintenance Downtime, Emergency Downtime and/or due to other causes beyond Performio’s reasonable control.                      

1.3 “Error” means a failure of the Service to conform to the specifications set forth in the Documentation, resulting in the inability to use, or material restriction in the use of the Service.

1.4 “Maintenance Downtime” means such time as the Service is offline for maintenance or backup purposes.

1.5 “Availability Percentage” means the percentage of time over the course of a quarter during the Subscription Term measured during business hours, excluding Excused Downtime, that the Service is available for use by Customer.

1.6  “Update” is an Improvement that Performio makes generally available to all Performio customers, along with any corresponding changes to Documentation. An Update may be an error correction or bug fix; or it may be enhancement, new feature, or new functionality. 

2. SERVICE AVAILABILITY

Performio will use its commercially reasonable efforts to ensure the Availability Percentage of the Service is equal to or greater than 95%.

3. SUPPORT SERVICES

Performio will provide Support Services to Customer via electronic mail on weekdays during the hours listed below, excluding all national holidays (“Support Hours”).  Customer may initiate a helpdesk ticket by emailing support@performio.co. Company will use commercially reasonable efforts to respond to all tickets within reasonable time period. 

Customer Residence

Support Hours

Americas

9:00 am through 5:00 pm Pacific Time Zone

Europe, Middle East, Africa

9:00 am through 5:00 pm Greenwich Mean Time Zone

Asia Pacific including Australia and New Zealand

9:00 am through 5:00 pm Australian Eastern Time Zone

 

Performio, Inc. | 695 Town Centre Drive, Suite 1200 Costa Mesa, CA 92626, USA | +1 (833) 817-7084 | usa@performio.co | performio.co

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