THE FOLLOWING GAINSIGHT PX TERMS AND CONDITIONS (“AGREEMENT”) GOVERN CLIENT’S (AS DEFINED BELOW) ACCESS AND USE OF THE GAINSIGHT, INC. (“GAINSIGHT”) PRODUCT EXPERIENCE PLATFORM PRODUCTS AND SERVICES (“SERVICES”). BY CLICKING ON THE “ACCEPT” BUTTON, YOU, AND THE ENTITY OR COMPANY THAT YOU REPRESENT AND HAVE THE AUTHORITY TO BIND, (“CLIENT”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, AND BECOME A PARTY TO, THIS AGREEMENT. IF CLIENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLIENT WILL NOT ACCEPT THE AGREEMENT OR ACCESS OR USE THE SERVICES. GAINSIGHT’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON CLIENT’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Gainsight will make the Services available to Client through the Internet for the applicable annual or monthly term (“Subscription Term”), as specified in the pricing plan Client has selected (“Pricing Plan”). Client’s authorized use of the Services is limited to the types of products and the number of users (“Users”) specified on the Pricing Plan. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services. The Services are subject to modification from time to time at Gainsight’s sole discretion, for any purpose deemed appropriate by Gainsight. Gainsight will use reasonable efforts to give Client prior written notice of any such modification.
1.2 Gainsight reserves the right to suspend Client’s access to the Services: (i) for scheduled or emergency maintenance, (ii) unavailability of services (including network and hosting services) provided by a third party service provider, or (iii) in the event Client is in breach of this Agreement, including failure to pay any amounts due to Gainsight.
1.3 Subject to the terms hereof, Gainsight will provide support to Client for the Services as described in Exhibit B: Service Level Agreement.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Client will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal business purposes; permit any third party to access the Services except as permitted herein; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation). Client shall not copy, frame or mirror any content forming part of the Services, other than on Client’s own intranets or otherwise for its own internal business purposes and Client shall not access the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Services. Client shall not remove any title, trademark, copyright and/or restricted rights notices or labels from the Services.
2.2 Client will cooperate with Gainsight in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions
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as Gainsight may reasonably request. Client will also cooperate with Gainsight in establishing a password or other procedures for verifying that only designated Users have access to the Services.
2.3 Client hereby agrees to indemnify and hold harmless Gainsight against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Services. Although Gainsight has no obligation to monitor the content provided by Client or Client’s use of the Services, Gainsight may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Client will be responsible for maintaining the security of Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account with or without Client’s knowledge or consent.
2.5 Client shall (a) be responsible for Users’ compliance with this Agreement, (b) be solely responsible for the Client Content (as defined below), and (c) use the Services only in accordance with applicable laws and government regulations. Client shall not (i) upload or otherwise transmit through the Services any material which violates or infringes in any way upon the rights of others, which is unlawful, which encourages conduct that would constitute a criminal offense, gives rise to civil or otherwise violates any law, (ii) use the Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (iii) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (iv) attempt to gain unauthorized access to the Services or their related systems or networks. Any conduct by Client that in Gainsight’s discretion restricts or inhibits any other Gainsight customer from using or enjoying the Services is expressly prohibited. Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Gainsight promptly of any such unauthorized access or use. Client shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Services and all charges related thereto.
2.6 The terms of the data processing addendum at https://www.gainsight.com/pxdpa/ (“DPA”) are hereby incorporated into this Agreement by reference, and shall apply to the extent that Client Data includes Personal Data (each as defined in the DPA). By accepting this Agreement by clicking a box indicating acceptance, Client agrees to be bound by the obligations under the DPA.
3. CONFIDENTIALITY
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any
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event, Gainsight may collect data with respect to and report on the aggregate response rate and other aggregate measures of the Services’ performance.
3.3 Client acknowledges that Gainsight does not wish to receive any Proprietary Information from Client that is not necessary for Gainsight to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Gainsight may reasonably presume that any unrelated information received from Client is not confidential or Proprietary Information.
3.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, Gainsight alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any third party relating to the Service and/or the Software, which are hereby assigned to Gainsight. Client will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Service or Software, or any intellectual property rights.
4.2 Gainsight will obtain and process content/data provided by or on behalf of Client (“Client Content”) only to perform its obligations under this Agreement. Client and its licensors shall (and Client hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Client Content distributed through the Services and the intellectual property rights with respect to that Client Content. If Gainsight receives any notice or claim that any Client Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Gainsight may (but is not required to) suspend activity hereunder with respect to that Client Content and Client will indemnify Gainsight from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. As between Gainsight and Client, Client owns all right, title and interest in and to the Client Content.
4.3 Gainsight shall hold Client harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Gainsight is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Gainsight will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Gainsight, (ii) resulting in whole or in part in accordance from Client specifications, (iii) that are modified after delivery by Gainsight, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of is not strictly in accordance with this Agreement and all related documentation. Client will indemnify Gainsight from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Gainsight’s indemnity obligation by the preceding sentence.
5. PAYMENT OF FEES
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5.1 Client will pay Gainsight the applicable fees for Client’s access and use of the Services, including the annual or monthly payments as set forth on the Pricing Plan Client selects ( “Subscription Fees”). All Subscription Fees are due in full at the commencement of the Subscription Term.
5.2 Client acknowledges and agrees that Subscription Fees may be processed by one or more third party transaction processors, which Gainsight may choose at its sole discretion (“Payment Processor”). Client hereby authorizes Payment Processor to charge Client’s credit card or other payment instrument, as applicable. Client will provide complete and accurate billing and contact information to Payment Processor. This authorization continues until all fees due hereunder are paid in full.
5.3 Except as otherwise specified herein, Subscription Fees are based on Services purchased and not actual usage, payment obligations are non-cancelable and Subscription Fees paid are non-refundable. Any payment not received from Client by the due date may accrue, at Gainsight’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.4 To the extent applicable, Client will pay Gainsight for additional services, such as professional services, integration or other consulting pursuant to a separate order form or statement of work.
5.5 Subscription Fees are stated as net of any applicable withholding taxes that are required by law. If Gainsight has the legal obligation to pay or collect taxes for which Client is responsible, including but not limited to, sales, use, transfer, privilege, excise, and all other taxes and duties that are levied or imposed by reason of performance of Gainsight under this Agreement, the appropriate amount shall be invoiced to and paid by Client within 30 days of its receipt of such invoice, unless Client provides Gainsight with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. LIMITED WARRANTY; DISCLAIMER
Gainsight warrants during the Subscription Term that the Services will be free of material defects. Gainsight does not make any representations or warranties that the functions performed by the Services will meet Client’s requirements, that the operation of the Services will be uninterrupted or error free, or that all defects in the Services will be corrected. To the extent permitted by applicable law, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND GAINSIGHT DISCLAIMS ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT GAINSIGHT KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, GAINSIGHT FURTHER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. No action for breach of the limited warranty set forth in this Section may be commenced more than one (1) year following the expiration date of such limited warranty.
7. TERMINATION
7.1 Subject to earlier termination as provided below, this Agreement is for the Subscription Term as specified in the Pricing Plan. The Subscription Term shall automatically renew for subsequent annual or monthly periods, in accordance with the Pricing Plan Client has selected, unless either party gives the other party notice of non-renewal at least forty-five (45) days prior to the end of the then-current Subscription Term.
7.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Subscription Term by giving thirty (30) days (ten (10) days in the case of
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Client’s non-payment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business. Notwithstanding the foregoing, Gainsight may immediately suspend access to the Services and/or terminate this Agreement if Gainsight determines that Client’s actions are likely to cause legal liability for Gainsight, its suppliers, or other customers.
7.3 Upon any expiration or termination of this Agreement, and upon expiration of the Subscription Term if Client does not renew in accordance with this Agreement, the rights and licenses granted hereunder will automatically terminate, and Client may not continue to use the Services. If the Agreement is terminated based on Gainsight’s uncured material breach, Gainsight shall refund to Client any prepaid fees covering the remainder of the term of all subscriptions after the effective date of such termination. If the Agreement is terminated based on Client’s uncured material breach, Client shall pay any unpaid fees covering the remainder of the term of all Pricing Plans after the effective date of such termination. In no event shall any termination relieve Client of the obligation to pay any fees payable to Gainsight for the period prior to the effective date of termination. Gainsight will have no liability for any costs, losses, damages, or liabilities arising out of or related to any termination of this Agreement. Client agrees that if Client terminates this Agreement, Gainsight is not obligated to refund any portion of subscription fees already paid to Gainsight. Upon the termination of this Agreement for any reason, Client shall, at Client’s sole cost and expense, immediately cease using the Services. Termination of this Agreement shall not limit Gainsight from pursuing any other remedies available to it, including injunctive relief.
7.4 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT FOR CLIENT PAYMENT OBLIGATIONS, THE TOTAL LIABILITY OF EACH PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE CUMULATIVE FEES INVOICED TO CLIENT UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Client may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Client acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported
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to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Gainsight are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
10. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Client except with Gainsight’s prior written consent. Gainsight may transfer and assign any of its rights and obligations under this Agreement with written notice to Client. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Gainsight in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Gainsight will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Gainsight is permitted to disclose that Client is one of its customers to any third-party at its sole discretion. Client also agrees to consider the following upon reasonable request: (i) serving as a reference or hosting onsite reference visits; (ii) collaborating on press releases announcing or promoting the relationship upon completion of the initial phase of the project with the help of the Gainsight marketing team; and (iii) collaborating on case studies or other marketing collateral as Client realizes a return on investment following successful deployment with specific metrics around time and cost savings along with business impact in a white paper.
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EXHIBIT A
PROFESSIONAL SERVICES FOR SERVICES IMPLEMENTATION
A. Professional Services Provisions
1. Description of Professional Services. Beginning on or about the Start Date, Gainsight will provide the services (“Professional Services”) to Client as described in a mutually executed Order Form and/or Statement of Work (“SOW”).
2. Client’s Obligations. Client agrees to provide assistance, cooperation, information, equipment, data, a suitable work environment and resources reasonably necessary to enable Gainsight to perform the Professional Services. Client acknowledges that Gainsight’ ability to provide Professional Services as set forth herein may be affected if Client does not provide such reasonable assistance.
3. Project Management. Each party shall designate a Project Manager who shall work together with the
other party’s Project Manager to facilitate an efficient delivery of Professional Services.
4. Change Order. In order to change the Description of Professional Services set forth above, Client will submit a written request to Gainsight specifying the proposed changes in detail and Gainsight will provide an estimate of the charges and anticipated changes in the delivery schedule that will result from the proposed change in Professional Services. Gainsight will continue performing the Professional Services in accordance with this Professional Services Attachment until the parties agree in writing on the change in scope of work, scheduling, and fees.
5. License. Subject to the terms and conditions of the Agreement, Gainsight grants Client a non-exclusive, non-transferable, royalty-free license to use for its internal business purposes all reports and other materials developed by Gainsight as a result of the Professional Services for which Gainsight has received full payment (“SOW Results”).
6. Proprietary Rights. Gainsight shall own and retain all right, title and interest in and to the Professional Services, including SOW Results and/or any and all derivatives, enhancements or modifications to the foregoing, and all intellectual property and proprietary rights worldwide relating thereto, subject only to Clients’ rights to Client Proprietary Information. Gainsight makes no assignment of any sort to Client under this Agreement.
7. Warranty. Gainsight warrants for ninety (90) days from the performance of any Professional Services by Gainsight that such Professional Services shall be performed in a professional and workmanlike manner consistent with generally accepted industry standards. Client must report in writing any breach of this warranty to Gainsight during the relevant warranty period, and Client’s exclusive remedy and Gainsight’ entire liability for any breach of such warranty shall be the re-performance of the Professional Services, or if Gainsight is unable to perform the Professional Services as warranted, Client shall be entitled to recover the fees paid to Gainsight for the nonconforming Professional Services.
B. Payment Provisions
1. Fees. Professional Services shall be provided under this Professional Services Attachment at the rates
set forth in the applicable Order Form and/or SOW.
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2. Payment Type. The Professional Services, if requested, are provided either on a fixed fee or on a time and materials (“T&M”) basis as described in the applicable Order Form and optional SOW. For fixed fee engagements, Client shall pay Gainsight the fees stated in the applicable Order Form plus all customary travel and living expenses (“Expenses”). For T&M engagements, Client shall pay Gainsight for time spent performing such Professional Services at Gainsight standard consulting rates, materials, and all Expenses associated with Gainsight personnel traveling to Client’s site. All Expenses will be pre-authorized in writing by Client.
C. Miscellaneous
1. Product Mix. Client acknowledges that the Professional Services (if requested by Client) acquired hereunder will be ordered separately from the Services described on the Gainsight Order Form and Client may acquire either Services or Professional Services without acquiring the other.
2. Independent Contractor. Both parties agree that Gainsight is an independent contractor and, as such, neither Gainsight nor its personnel shall be considered employee(s) of Client. As a consequence, Client is neither liable nor responsible for withholding or deducting any sums for federal or state income taxes, social security, health, workers compensation, and disability insurance coverage, pension or retirement plan, or the like.
3. Non-Solicitation. During the term of this Agreement and for a period of one year thereafter, Client agrees that it will not solicit for hire, on behalf of Client or any other organization, any employee or sub- contractor of Gainsight, unless Client has first obtained Gainsight’ written consent.
4. General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, Gainsight shall not be prohibited or enjoined at any time by Client from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the services specified under this Agreement. For the purposes of this Agreement, “skills or knowledge of a general nature” shall include, without limitation, anything that might reasonably be learned or acquired in connection with similar work performed for another client.
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EXHIBIT B
SERVICE LEVEL AGREEMENT (SLA)
1. Services Application Availability
Gainsight will use commercially reasonable efforts to provide 99.9% Application Availability measured per month. “Application Availability” means that the subscription Services are available 24 hours per day, 7 days per week, excluding any scheduled and unscheduled maintenance time to implement updates, upgrades or other modifications.
Gainsight will use commercially reasonable efforts to notify Client at least twenty-four (24) hours prior to any scheduled maintenance to minimize the effect of such maintenance on the subscription Services and as soon as practicable for any unscheduled maintenance or any known and verified unscheduled downtime.
Application Unavailability
Please reference the following table (Reporting Period = calendar month) which details the credit available to Client in the event the Application Availability falls below the indicated thresholds:
Application Availability Credits
≥ 99.0% in one Reporting Period 0% of 1 month of Subscription fees
≥ 95.0 but < 99.0 % in one Reporting Period 5% of 1 month of Subscription fees
< 95% in one Reporting Period 25 % of 1 month of Subscription fees
Additionally, if Application Availability falls below 95% for 3 consecutive Reporting Periods, Client shall have the right to terminate the Agreement; such right must be exercised within 10 days of the end of such 3 month period or Client shall be deemed to have waived its termination right with respect to that particular 3 month period. Upon effective termination, Gainsight shall refund promptly to Client fees prepaid and unused due to such termination.
Calculation of Application Availability
Application Availability as measured monthly and calculated by subtracting from 100% the total percentage of 1-minute periods during the Reporting Period for which there is no external connectivity and the subscription Services do not service obligatory data requests as required for functionality in accordance with the Agreement subject to any scheduled and unscheduled maintenance time and time for any Exclusions. “Exclusions” means the following: (i) unavailability caused by circumstances beyond Gainsight Software’s reasonable control, including, without limitation, acts of nature, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Gainsight employees), or any other force majeure event or factors; (ii) any problems resulting from Client combining or merging the Gainsight Services with any hardware or software not supplied by Gainsight or not identified by Gainsight in writing as
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compatible with the Services; (iii) interruptions or delays in providing the Services resulting from telecommunications or Internet service provider failures; (v) any interruption or unavailability resulting from Client’s use of the Services in an unauthorized or unlawful manner or any interruption resulting from the misuse, improper use, alteration, or damage of the Services; (vi) any problems caused by modifications in any version of the Services not made or authorized by Gainsight in writing; and (vii) any problems resulting from Client’s or any third party’s acts, errors or omissions or any systems not provided by Gainsight.
Request for Credit
Any Client request for a credit that Client is entitled to under this SLA may only be made on a calendar monthly basis and must be submitted in writing within 10 days after the end of the relevant calendar month or shall be deemed to have been waived by Client. For those periods at the end of a Subscription Term that do not coincide with the end of a calendar month, Client must make a claim for a credit within 10 days after the expiration of the Subscription Term or the claim for credit shall be deemed to have been waived by Client. The total of all credits applicable to or accruing in any given Reporting Period shall not exceed 25% of the Subscription fees paid or payable to Gainsight by Client for the Reporting Period.
The right to a credit and/or the right to terminate the Agreement described in this Section 1 shall be the sole and exclusive remedy available to Client in the event of unavailability of the Services as set forth herein. In no circumstance shall the unavailability of the Services be deemed a default under the Agreement or this SLA.
All credit requests will be verified against Gainsight’s system records. Gainsight will make available to Client a monthly record of the Application Availability.
2. Gainsight Support Targets
Standard Support
Priority Initial Response
Time
Updates from Support
Resolution
Resolution
Urgent 1 hour (12×5) Every 4 business hours Gainsight access is restored
High 4 hour (12×5) Once per business day Critical function is restored or workaround is given
Normal 1 business day Upon status change Instruction or workaround is given
Low 2 business days No updates provided Question is answered
Americas Hours: Monday through Friday from 7am – 7pm Central Time Support Channels:
• Support Portal Ticket Submission
• Phone
• Live Chat
EMEA Hours: Monday through Friday from 7am – 7pm BST Support Channels:
• Support Portal Ticket Submission
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Premier Support
Priority Initial Response
Time
Updates from Support Resolution
Urgent 1 hour (24×5) Every 4 business hours Gainsight access is restored
High 4 hour (24×5) Every 12 business
hours
Critical function is restored or workaround is given
Normal 12 hours (24×5) Upon status change Instruction or workaround is given
Low 24 hours (24×5) No updates provided Question is answered
Support Portal Ticket Submission Hours: Sunday 7pm to Friday 7pm Central Time Phone & Live Chat Hours: Monday through Friday from 7am – 7pm Central Time
Elite Support
24×5 Support Hours: Sunday 7:00 PM CST – Friday 7:00 PM CST
24×7 Support Hours for Urgent Priority include Friday 7:00 PM CST – Sunday 7:00 PM CST:
Priority Initial Response
Time
Updates from Support Resolution
Urgent 1 hour (24×7) Every 4 hours Gainsight access is restored
High 4 hour (24×5) Every 12 business
hours
Critical function is restored or workaround is given
Normal 12 hours (24×5) Upon status change Instruction or workaround is given
Low 24 hours (24×5) No updates provided Question is answered
Support Portal Ticket Submission Hours: Sunday 7pm to Friday 7pm Central Time for High, Normal, and Low Priority. 24×7 for Urgent Priority. Phone & Live Chat Hours: Monday through Friday from 7am – 7pm Central Time
Note: Response times are measured from when Client notifies Support, through the online support portal, about a performance problem with the subscription Services. Client must have a ticket number for a claim under this SLA to be valid.
Priority Level Definitions:
• Urgent: System Unavailable – Complete loss of service or a significant feature is unavailable and no workaround exists.
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• High: Critical Function Issue – Degraded service that substantially impairs the use of one or more features of the application required to perform necessary business functions but does not effectively render the application unusable as a whole.
• Normal: Low Impact Issue – Application is impaired but the reported error or issue has a reasonable workaround and does not pose a serious business impact.
• Low: General questions about existing documentation, training or use of subscription Services.
Management Escalation The table below displays the escalation procedures.
Priority Management Escalation
Urgent Immediate
High 1 Business Day
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