ServiceTech101 Terms | Pencilwrench

Last updated July 17, 2024

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS THE CUSTOMERS USE OF THE SERVICE101 SERVICES. BY USING THE SERVICE101 SERVICES, CUSTOMER AGREES TO COMPLY WITH THESE TERMS OF USE.

MASTER SUBSCRIPTION AGREEMENT

This Master Subscription Agreement (the “Agreement”) is made by and between SERVICETECH101 PTY LTD ("Service101") and the party using the services (the “Customer”) as may be identified in any order or by use of the services. Service101 and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."

WHEREAS, Service101 provides access to the Subscription Services to its customers; and

WHEREAS, Customer desires to access the Subscription Services, and Service101 desires to provide Customer access to the Subscription Services, subject to the terms and conditions of this Agreement.

WHEREAS, Service101 additionally performs certain Professional Service, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.
(a) "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Service101 in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services provided that any data used is de-identified, aggregated and/or anonymized according to applicable reasonable industry standards, provided that it does not identify the Customer, any dealership, its customers, Authorized Users, or any other personally identifiable information.
(b) "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
(c) "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(d) "Documentation" means Service101's documentation relating to the Services provided by Service101 to Customer electronically relating to the Services.
(e) "Professional Services" means various setup and training services as may be set forth in the Order Form.
(f) "Order Form" means the order form which orders the Services.
(g) "Service101 IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Service101 IP includes Aggregated Statistics and any information, data, or other content derived from Service101's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
(h) "Subscription Services" means the software-as-a-service offering described in the Order Form.
(i) “Services” means the Subscription Services and Professional Services.

2. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer's payment of Fees, completion of an Order Form, and compliance with all terms and conditions of this Agreement, Service101 hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by up to the number of Authorized Users set forth in the Order Form and in accordance with the terms and conditions herein. Such use is limited to the Customer's internal use.
(b) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) modify, or create derivative works of the Services or Documentation, in whole or in part ; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation to parties unaffiliated with Customer ; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(c) Reservation of Rights. Service101 reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Service101 IP.
(d) Suspension. Notwithstanding anything to the contrary in this Agreement, Service101 may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Service101 reasonably determines that (A) there is a threat or attack on any of the Service101 IP by the Customer; (B) Customer’s or any Authorized User’s use of the Service101 IP disrupts or poses a security risk to the Service101 IP or to any other customer or vendor of Service101 through unpermitted use of the Service101 IP; (C) Customer, or any Authorized User, is using the Service101 IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to conduct its business for over 120 days, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding which is not dismissed within 120 days; or (E) Service101's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Service101 has suspended or terminated Service101's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with non-payment of fees due after the applicable cure period (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). If access to all or any portion of the services is suspended or terminated due to subclause (ii) above, Service101 shall, at the Customer’s request, refund any pre-paid unused amount paid by Customer. Service101 shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Service101 shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Service101 will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(e) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Service101 may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Service101 and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Service101. Customer acknowledges that Service101 may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Service101 may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify personally identifiable data, Customer or Customer's Confidential Information.

3. Customer Responsibilities. Customer is responsible for compliance with this Agreement including acts or omissions of its Authorized Users in violation of this Agreement.

4. Fees and Payment.
(a) Fees. Customer shall pay Service101 the fees ("Fees") as set forth in the Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, without limiting Service101's other rights and remedies: (i) Service101 may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Service101 for all reasonable costs incurred by Service101 in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; (iii) if such failure continues for fifteen (15) days or more, Service101 may remove any Loyalty Discount as may be in any Order Form; and (iv) if such failure continues for thirty (30) days or more, Service101 may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full. Additionally, if Customer is the head of a dealership group and any individual dealer does not pay, then such turn off will only affect that individual dealer not the dealership group.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Service101's income.

5. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6. Intellectual Property Ownership; Feedback.
(a) Service101 IP. Customer acknowledges that, as between Customer and Service101, Service101 owns all right, title, and interest, including all intellectual property rights, in and to the Service101 IP.
(b) Customer Data. Service101 acknowledges that, as between Service101 and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Service101 a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Service101 to provide the Services to Customer , and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Service101 by mail, email, telephone, or otherwise, suggesting or recommending changes to the Service101 IP, including without limitation, new features or functionality relating thereto, notices, bulletins, advice or any comments, questions, suggestions, or the like ("Feedback"), Service101 is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer represents and warrants they have the right to give the Feedback. Customer hereby assigns to Service101 on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Service101 is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Service101 is not required to use any Feedback.

7. Limited Warranty and Warranty Disclaimer. Service101 warrants that the Services will be continuously maintained in accordance with industry standards and made available for access by the Customer, accurate and up-to-date, and that in the event of inaccuracies or any downtime, Service101 will promptly correct and update the information. Service101 further warrants that it will implement reasonable security measures to protect Customer’s Data from unauthorized access, disclosure, alteration or destruction and that it shall provide reasonable technical support during normal business hours and to respond to Customer inquiries and reported issues promptly. Service101 warrants that regular backups of Customer Data will be performed, and a data recovery plan will be in place in the event of data loss. Service101 will make reasonable efforts to restore data promptly. Other than as set forth above, Service101 does not make any representations or guarantees regarding uptime, accuracy, or availability of the Services. THE SERVICES AND THE PENCILWRENCH IP ARE PROVIDED "AS IS" AND PENCILWRENCH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PENCILWRENCH 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. PENCILWRENCH MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, PENCILWRENCH IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS (FOR EXAMPLE, BUT NO LIMITED TO THE SERVICES FORCING COMPLIANCE WITH ANY NOTICES, REQUIREMENTS, RECALL UPDATES OR APPLICABLE LAWS), OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

8. Indemnification.
(a) Service101 Indemnification.
(i) Service101 shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that is based on the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights provided that Customer promptly notifies Service101 in writing of such Third-Party Claim, cooperates with Service101, and allows Service101 sole authority to control the defense and settlement of such Third-Party Claim (now a “Third-Party-IP Claim”). Service101 may not settle any Third-Party Claim against Customer unless Customer consents to such settlement which requires any obligation on Customer, which consent shall not be unreasonably withheld. If a Third Party-IP Claim is made or appears possible, Customer agrees to permit Service101, at Service101's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Service101 determines that neither alternative is reasonably available, Service101 may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. Regarding any Third-Party-IP Claim this section sets forth the sole remedy for Customer and Service101’s sole liability and obligation for any actual, threatened or alleged claims of intellectual property infringement or misappropriation of any IP of any third party.
(ii) This Section will not apply to the extent that the alleged infringement arises from: (A) use of the Subscription Services in combination with data, software, hardware, equipment, or technology not provided by Service101 or authorized by Service101 in writing; (B) modifications to the Subscription Services not made by Service101; or (C) Customer Data.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Service101's option, defend Service101 from and against any Losses resulting from any Third-Party Claims based on Customer's or any Authorized User's (i) use of the Services in a manner not authorized by this Agreement; (ii) any Feedback, materials, or intellectual property contributed by Customer (iii) any errors in any repairs, claims, user stories or otherwise whether or not the Services or the result thereof were used by the Customer or (iv) modifications to the Services not made by Service101, provided that Customer may not settle any Third-Party Claim against Service101 unless Service101 consents to such settlement which requires any obligation on Service101, and further provided that Service101 will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Mutual Indemnification. Each party shall indemnify, hold harmless, and, defend the other party from and against any Losses resulting from any Third-Party Claims based on their own gross negligence or willful misconduct.

9. Limitations of Liability. IN NO EVENT WILL PENCILWRENCH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PENCILWRENCH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR THE OBLIGATIONS IN SECTION 8, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PENCILWRENCH UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Term and Termination.
(a) Term. The term of this Agreement will continue in effect until the expiration of any current Order Form or in accordance with section (b) below.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Service101 may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than 15 days after Service101's delivery of written notice thereof; or (B) materially breaches any of its obligations under section 2(b) and such breach is incapable of being cured in a reasonable timeline.
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law which is not dismissed within 120 days; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Service101 IP and Customer shall delete, destroy, or return all copies of the Service101 IP and certify in writing to the Service101 that the Service101 IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. Sections 1, 5, 6, 7, 8, 9, 10, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

11. Miscellaneous.
(a) Entire Agreement. This Agreement, together with the Order Form constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, regional cloud services failure, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement, Order Form, or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the state of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Service101 which consent shall not be unreasonably withheld except in the case that Customer may assign this Agreement to the surviving party in a merger into another entity or in an acquisition of all or substantially all its assets.. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(i) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.