EXHIBIT 10.31
SciQuest, Inc.
SERVICES AGREEMENT
This Services Agreement ("Agreement") is entered into the ______ day of
_______________ 2001 (the "Effective Date") by and between SciQuest, Inc., a
Delaware corporation ("SciQuest"), having an address of 0000 XxXxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxxxx, Xxxxx Xxxxxxxx 00000 and ________________, a ___________
("Client"), having an address of _________________. Agreement" shall include, by
reference, all Supplements executed pursuant to this Agreement.
WHEREAS, Client and SciQuest desire to agree on the provisions applicable
to performance of services (defined below);
NOW, THEREFORE, in consideration of the mutual promises herein contained,
Client and SciQuest hereby agree as follows:
1. Services
SciQuest shall perform the services (the "Services") set forth herein and in any
Supplement(s) (the "Supplement(s)") attached hereto. The Supplement(s) may
contain additional terms applicable to the particular Services. In the event of
a conflict between the terms hereof and a Supplement(s), the terms of the
Supplement(s) shall control with respect to the services provided under that
Supplement.
2. Client Responsibilities
Client shall accept purchase orders provided by SciQuest electronically via EDI,
ADX (a third party electronic transaction clearing house), XML, FAX or upon such
other method as agreed to by the parties.
3. Client Representative
Client shall designate a representative (the "Client Representative"), who shall
be Client's sole point of contact for all issues related to this Agreement.
SciQuest, may, but is not obligated to, communicate with any other Client
employee or agent with respect to issues or questions related to this Agreement.
Client may appoint a back up to the Client Representative. The Client
Representative and his or her back up shall be specified in the applicable
Supplement.
4. Fees, Expenses, Taxes
(a) Client shall pay SciQuest the rates and fees specified in the applicable
Supplement. Any revision of the rates or fees set forth in a Supplement
must be mutually agreed upon by the parties and set forth in a written
amendment to the applicable Supplement, which must be signed by both
parties. If the parties cannot agree on a revision of rates or fees prior
to the beginning of a renewal term, then the then current rate and fees
shall apply. The fees payable under this Agreement shall not include local,
state or federal sales, use, value-added, excise or personal property or
other similar taxes or duties and any such taxes shall be assumed and paid
by the Client except those taxes based on the net income of SciQuest.
(b) SciQuest shall issue an invoice for the fees for Services as detailed in
each Supplement. All payments shall be made no later than fifteen (15) days
after the date of invoice. All payments not received when due shall accrue
interest at the rate of one and one-half percent (1.5%) per month.
5. Ownership and Rights
SciQuest shall own all work product, deliverables or other material resulting
from Services, including the eCatalogs comprising the data compilation and the
converted product data (collectively, the "Work Product") including without
limitation all copyrights, rights to create derivative works, patents,
trademarks, trade secrets, mask works and any other intellectual property rights
pertaining to the Work Product ("Intellectual Property Rights"), and Client
hereby irrevocably transfers, assigns and conveys to SciQuest all its right,
title and interest in and to the Work Product. SciQuest hereby grants to Client,
solely for its internal business purposes, a nonexclusive, nontransferable,
worldwide, royalty free, perpetual license to use, reproduce and display any
Work Product delivered to Client hereunder. Notwithstanding the foregoing,
SciQuest shall not own Client's product data.
6. Warranties on Services and Work Product
(a) SciQuest warrants that the Services shall be performed in a professional
manner and to standards not less than those generally accepted in the
industry. The foregoing Warranty shall not apply to any portion of Work
Product that has been used by Client in a manner inconsistent with the
provisions of this Agreement or any other agreement between Client and
SciQuest or modified by a party other than SciQuest without SciQuest's
prior written approval.
(b) Client represents and warrants that (i) the use of materials, product data,
and/or information or other resources supplied to SciQuest by Client
hereunder shall not infringe any copyright, patent, trademark, trade
secret, or other proprietary right of any third party.
(c) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, WITH RESPECT TO
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THE SERVICES AND THE WORK PRODUCT, SCIQUEST MAKES AND CLIENT RECEIVES NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED ALL
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Representations and Warranties of Client
The execution and delivery of this Agreement, including each Supplement, shall
not conflict with or result in a breach of the terms, conditions or provisions
of, or give rise to a right of termination under, or constitute a default under,
or result in any
violation of any agreement, contract, instrument, order, judgment, decree,
statute, law, rule or regulation to which Client is subject.
8. SciQuest Employees and Contractors
SciQuest is engaged in the business of providing software products, services and
electronic commerce solutions to a variety of clients. SciQuest shall not be
limited or restricted in any way, with respect to the assignment and/or
reassignment of its employees and/or contractors who have worked on the Services
under this Agreement, to other business pursuits with any other customer whether
or not similar to the Services provided under this Agreement. SciQuest therefore
may use the data processing, information processing techniques, ideas, concepts,
know-how and expressions embodied in the Services in its business pursuits with
others.
9. Independent Contractor
The relationship of the parties established by this Agreement is solely that of
independent contractors, and nothing contained in this Agreement shall be
construed to (a) give any party the power to direct and control the day-to-day
activities of the other; or (b) constitute such parties as partners, joint
venturers, co-owners or otherwise as participants in a joint or common
undertaking; or (c) make either party an agent of the other for any purpose
whatsoever, except as expressly authorized by the other. Neither party (nor its
agents and employees) is the representative of the other for any purpose, and
neither has power or authority to act as agent or employee to represent, to act
for, bind, or otherwise create or assume any obligation on behalf of the other.
10. Indemnities
(a) SciQuest shall indemnify and hold Client harmless from any and all claims,
suits or proceedings, losses, damages, liabilities and costs (including,
without limitation, reasonable attorneys' fees) which are attributable to
infringement by the Work Product of any copyrights, patents, trademarks,
trade secrets, or other intellectual property rights. Notwithstanding
anything herein to the contrary, SciQuest shall have no indemnification
obligation in the event such infringement is caused by Client's acts or
omissions, or if the Work Product causing the infringement was developed by
SciQuest from data or content provided by Client.
(b) Client will defend, indemnify and hold harmless SciQuest, its officers,
directors, agents and employees, against and with respect to all claims,
lawsuits, liabilities, losses, costs and expenses, including reasonable
attorneys' fees, suffered or incurred by them as a result of (i) any claim
that a Client product was defective or harmful or violated a warranty of
Client, (ii) any Client pricing policies or practices; (iii) the
infringement by Client product data or products of any third party right,
and/or (iv) any breach of Client's obligations hereunder.
11. Term/Termination
(a) This Agreement shall commence on the Effective Date and shall continue for
a twelve (12) month period, renewing automatically for successive twelve
(12) month renewal terms unless the Agreement is terminated as set forth
under this Agreement. The term applicable to each of the particular
Services shall be specified in the applicable Supplement. In no event
shall a term under a Supplement extend beyond the term of this Agreement.
(b) Either party may terminate this Agreement for any reason as of the last day
of each twelve-month term by one party giving the other written notice at
least thirty (30) days prior to the last day of the current twelve-month
term. Termination of this Agreement shall automatically terminate each of
the Supplements.
(c) This Agreement may be terminated by either party upon a breach by the other
party of any material term of the Agreement, which breach is not cured
(unless such breach is incapable of cure, such as breach of the
confidentiality provisions hereof) within thirty (30) days notice thereof,
or such longer period as may be mutually agreed by the parties. Upon
termination pursuant to this Paragraph 12(c), all Supplements shall
automatically terminate.
(d) Either party may terminate this Agreement, and all Supplements attached
hereto, immediately upon notice to the other party if such other party
becomes insolvent, any proceedings under the bankruptcy or insolvency laws
is brought by or against such other party, or a receiver or trustee is
appointed for such other party.
Following a termination under this Paragraph, Client shall, within ten (10) days
of such termination, pay SciQuest for all work performed through and including
the date of termination according to the fees and rates set forth in the
applicable Supplement.
12. Limitation on Liability
IN NO EVENT SHALL SCIQUEST'S LIABILITY FOR ANY AND ALL CLAIMS OR DAMAGES ARISING
UNDER THIS AGREEMENT EXCEED THE AMOUNT SET FORTH UNDER THE SUPPLEMENT GIVING
RISE TO THE CLAIMED LIABILITY DURING THE YEAR IN WHICH THE CLAIM AROSE. IN
ADDITION, IN NO EVENT SHALL CLIENT OR SCIQUEST BE LIABLE FOR SPECIAL, INDIRECT,
CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES INCLUDING LOSS OF DATA OR
PROFITS RELATED TO, OR AS A RESULT OF, THIS AGREEMENT, THE SERVICES PROVIDED
HEREUNDER OR THE USE OR PERFORMANCE OF A WORK PRODUCT.
13. Employment
SciQuest and Client agree that the employees of each may possess technical
abilities that are in great demand and further agree that each party has
incurred substantial expense in recruiting and training such employees and would
incur even greater expense if required to replace any such employee. Therefore,
SciQuest and Client each agree not to recruit or employ, either directly or
indirectly, a present employee of the other during the term of this Agreement or
any other agreement between them, and for one (1) year following termination of
all such agreements.
14. Insurance
Client will maintain adequate product liability and general liability business
insurance, which is normal and customary for Client's industry, and will
maintain the insurance through the term of this Agreement and thereafter for the
applicable statute of limitations period for product liability claims.
15. Force Majeure
Neither party shall be liable to the other by reason of any failure of
performance hereunder (except failure to pay) if such failure arises out of
causes beyond such party's reasonable control, despite the reasonable efforts
and without the fault or negligence of such party. Any party experiencing such
an event shall give as prompt notice as possible under the circumstances.
16. Assignment
This Agreement shall bind the parties and their successors and permitted
assigns. Neither party may assign this Agreement or any Supplement without the
prior written consent of the other; with respect to Client, the term "assign" or
"assignment" shall include any transfer by merger, acquisition, stock transfer
or other consolidation of Client with another entity or sale of all or
substantially all of Client's assets. Any assignment attempted without the
written consent of the other party shall be void. Notwithstanding the foregoing,
SciQuest may assign this Agreement and all its rights and obligations hereunder
to any entity acquiring substantially all of its stock or assets.
17. Waiver
No delay or omission by either party to exercise any right or power it has under
this Agreement shall impair or be construed as a waiver of such right or power.
A waiver by either party of any covenant or breach shall not be construed to be
a waiver of any succeeding breach or of any other covenant. All waivers must be
in writing and signed by the party waiving its rights.
18. Notice
Any notice, consent or other communication in connection with the Agreement
shall be in writing and may be delivered in person, by mail or by facsimile
copy. If hand delivered, the notice shall be effective upon delivery. If by
facsimile copy, the notice shall be effective when sent. If served by mail, the
notice shall be effective three (3) business days after being deposited with the
United States Postal Service by certified mail, return receipt requested,
addressed appropriately to the intended recipient, as follows:
If to SciQuest:
SciQuest, Inc.
0000 XxXxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
If to Client:
_______________________________
_______________________________
_______________________________
_______________________________
Each party may change its address for notification purposes by giving the other
party written notice of the new address and the date upon which it shall become
effective.
19. Governing Law
This Agreement shall be governed by and construed in accordance with the
internal substantive and procedural laws of the State of North Carolina without
regard to conflict of law principles.
20. Entire Agreement and Release
This Agreement, including all of its Supplements, each of which is incorporated
into this Agreement, is the entire agreement between the parties with respect to
its subject matter, and supercedes and replaces any prior agreement between the
parties with respect to said subject matter and there are no other
representations, understandings or agreements between the parties relative to
such subject matter. No amendment to, or change, waiver or discharge of any
provision of this Agreement shall be valid unless in writing and signed by any
authorized representative of the party against which such amendment, change,
waiver or discharge is sought to be enforced.
21. General
(a) Compliance with Laws. Each party shall comply with all governmental
(including federal, state and local) laws, statutes, rules and regulations
applicable to this Agreement and in the conduct of its business. Failure
to comply with this provision shall constitute a material default under
this Agreement entitling the non-breaching party to terminate this
Agreement.
(b) Survival. The parties agree that payment obligations and any provision in
this Agreement or any of the Supplements which by its terms or nature is
intended to survive shall survive termination of this Agreement and any
Supplement.
(c) Severability. If any provision of this Agreement is held to be
unenforceable, then both parties shall be relieved of all obligations
arising under such provision, but only to the extent that such provision is
unenforceable, and this Agreement shall be deemed amended by modifying such
provision to the extent necessary to make it enforceable while preserving
its intent or, if that is not possible, by substituting another provision
that is enforceable and achieves the same objective and economic result.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS AGREEMENT
WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES,
INDEMNIFICATION OR EXCLUSION OF DAMAGES OR OTHER REMEDIES IS INTENDED TO BE
ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN
THE EVENT ANY REMEDY UNDER THIS AGREEMENT IS DETERMINED TO HAVE FAILED OF
ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF
DAMAGES OR OTHER REMEDIES SHALL REMAIN IN EFFECT.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed by its duly authorized representative.
Client: SciQuest, Inc.
By: __________________________________ By: ____________________________
Print Name: __________________________ Print Name: Xxxxxxx X. Xxxxx
Title: _______________________________ Title: Chief Executive Officer
Date: ________________________________ Date: __________________________
This Agreement may contain the following Supplements:
Schedule A: CONTENT MANAGEMENT SERVICES SUPPLEMENT
Schedule B: STOREFRONT LICENSE SUPPLEMENT
Schedule C: SciCentral LICENSE SUPPLEMENT
SciQuest, Inc.
CONTENT MANAGEMENT SERVICES SUPPLEMENT
Schedule A to the Services Agreement
This is a Supplement (the "Supplement") to the Services Agreement between
SciQuest, Inc. and _______________originally dated __________________. This
Supplement is entered into as of the date of the last signing (the "Effective
Date"). The following terms are agreed to by the parties and should be read with
the Services Agreement as if originally contained in the Services Agreement.
Where the terms of this Supplement conflict with the terms of the Service
Agreement, the terms of this Supplement will take precedence over the terms of
the Services Agreement only with regard to the rights and obligations set forth
in this Supplement.
1. Grant of Rights
Subject to the terms and conditions set forth in this Content Management
Supplement and the Services Agreement, Client hereby grants to SciQuest a
nontransferable, nonexclusive right to (I) create derivative works of Client's
product data by formatting, categorizing and, where necessary, enriching the
product data (such derivative works are referred to hereinafter as the
"eCatalogs"); and (ii) display and distribute the eCatalogs via public and
private web sites operated by SciQuest.
2. Data Enrichment Services
Client hereby grants to SciQuest the right to edit or truncate any raw product
data as necessary in order to create the eCatalogs. Client will promptly provide
a complete data set to SciQuest. Client shall have the right to approve the
eCatalog before it is made available to buyers. Upon delivery of the enriched
data to Client, Client shall review such data and advise SciQuest in writing no
later than seven (7) days following delivery of Client's rejection or approval
of the enriched data. Failure to provide notice within the time frame set forth
above shall result in such data being deemed approved. If the data is rejected,
Client shall include with the notice a written description detailing the reason
for rejection.
3. Data Management and Storage Services
SciQuest shall store Client's eCatalogs in a secured backed-up format and
provide the following data management services: product price updates, deletion
of discontinued products from the eCatalogs, and process changes to eCatalogs,
in accordance with the frequency specified in the attached Exhibit B. All
---------
updates and changes to eCatalogs (i.e., changes to prices and product
descriptions) shall be provided to SciQuest in electronic format and will be
performed by SciQuest as soon as practical after receipt of the applicable
information from Client. Client acknowledges that the speed in which its
eCatalogs is updated is a function of the (i) the quality and format in which
the data is provided to SciQuest, and (ii) the quantity of updates to be
performed. In no event will SciQuest be liable for the timeliness of updates to
the eCatalogs.
4. Payment
In consideration of services provided by SciQuest under this Content Management
Supplement in Exhibit A attached, Client shall pay to SciQuest the "Fees" set
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forth in the attached Exhibit B. All payments shall be made in accordance with
---------
the terms and conditions of the Services Agreement unless otherwise set forth in
Exhibit B.
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5. Term and Termination
(a) This Content Management Supplement shall commence on date first set forth
above and shall have an initial term of twelve (12) months. Thereafter this
Content Management Supplement shall automatically renew for successive
twelve month periods unless either party gives written notice of its intent
not to renew to the other party not less than thirty (30) days prior to the
end of the then current term. Notwithstanding the foregoing, Iin no event
shall a term under a Supplement extend beyond the term of the Services
Agreement.
(b) This Supplement may be terminated by either party upon a breach by the
other party of any material term of the Supplement, which breach is not
cured (unless such breach is incapable of cure, such as breach of the
confidentiality provisions hereof) within thirty (30) days notice thereof,
or such longer period as may be mutually agreed by the parties.
6. Client Representative
The Client Representative for all issues arising under this Content Management
Supplement shall be the following person.
Name:_______________________________________
Telephone Number:___________________________
Facsimile Number:___________________________
Email Address:______________________________
Client Representative Back-up, if any.
Name:_______________________________________
Telephone Number:___________________________
Facsimile Number:___________________________
Email Address:______________________________
7. Remedies
SciQuest's sole liability for inability to perform in accordance with the terms
of this Supplement shall be for direct damages not to exceed the Fees previously
paid by Client to SciQuest under this Supplement in the year the claim arises
prorated on a monthly basis. IN NO EVENT SHALL CLIENT OR SCIQUEST BE LIABLE FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES INCLUDING
LOSS OF DATA OR PROFITS RELATED TO, OR AS A RESULT OF, THE SERVICES UNDER THIS
SUPPLEMENT OR THE USE OR PERFORMANCE OF A WORK PRODUCT.
Page 5
IN WITNESS WHEREOF, the undersigned have caused this Content Management
Supplement to be executed by their duly appointed representatives.
Client: SciQuest, Inc.
By: ______________________________ By: _________________________________
Print Name: ______________________ Print Name: Xxxxxxx X. Xxxxx
Title: ___________________________ Title: Chief Executive Officer
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Exhibit A: Content Management Services Supplement
This Schedule describes the data enrichment, management and storage services to
be performed by SciQuest. Some or all of these services will be performed based
on the data type and services required under Exhibit B, unless otherwise
indicated. If services are required that are not listed in this Schedule and not
otherwise contained in this Content Management Services Supplement, they will be
quoted and performed under a separate Schedule.
Initial Data File Review
------------------------
A SciQuest Scientific Content Developer (SCD) will send the Client a copy of the
SciQuest Electronic Data format template. The Client will provide SciQuest their
data in the format specified in Exhibit B. Upon receiving a Client's data, the
SCD will perform an initial review of a representative sample of (20) SKU's from
the data file. The SCD will verify that the representative sample set is in the
expected format, and that the data has not been corrupted during transmission.
The SCD will check the sample data set for the following:
. Accurate and satisfactory short description, product part number (SKU),
shipping weight, shipping method, product name and product price
The SCD will verify this sample data against Client catalogs, websites, and/or
through the Client designated contact. If the data is incomplete, corrupt, or
otherwise insufficient to continue the loading process, SciQuest will contact
the Client for a replacement or additional data.
Data Conversion
---------------
Data received in graphics files or paper form must first be converted into
SciQuest's standard file format. Electronic data files are verified by SciQuest
to conform to SciQuest's standard file format and prepared for loading into the
development environment.
Edit Product Descriptions
-------------------------
SciQuest SCD will review and edit the textual descriptions for each product item
to determine if specific descriptions are clear and consistent among products.
In addition, SCD will identify keywords from the product description to be
included in the SciQuest keyword search.
Edit Product Attributes
-----------------------
SciQuest will extract the relevant attributes from product information based on
the context of the product, and then normalize these attributes across product
categories to be used in product search and description.
Attach Product Images
---------------------
SciQuest SCDs will check all Client provided images to verify the following:
. Clarity of the image is acceptable for presentation on the web
. The format of the file is not so large as to impact performance
. The picture is an accurate representation of the product
Insert Product Links
--------------------
The SCD will verify a sample of no more than 10% of the links provided by the
Client to determine that the link is active and that it transfers the user to an
appropriate page on the Client website. When links are invalid or inaccurate,
the SCD will contact the Client to retrieve the correct link.
Categorization
--------------
The SCD will review the Client product information and assign a category based
on SciQuest's industry standardized set of scientific categories.
Load Buyer Specific Pricing
---------------------------
The Client will provide SciQuest with a standard price to be loaded for each
product in the catalog. Where the Client has prices for specific buyers who
utilize a private marketplace powered by SciQuest, the Client will provide
SciQuest with a price file for these customers.
Perform Internal Data Quality Assurance
---------------------------------------
Once the categorization and enrichment processes are complete, SciQuest will
perform a Quality Assurance test on the Client's data. This test includes a
representative sample of the Client's data not to exceed 10% of the total number
of SKUs.
Page 7
Verification processes include the data has the following:
. Correct standard attributes
. No truncated fields
. HTML tagging ASCII codes are correct
. Prices exist
. Categories exist
Perform Client Preview
----------------------
SciQuest will provide the Client with access to the entire data file. The
Client will, within (7) days, perform a detailed review of the file. The Client
may submit change requests to the SCD for processing within the 7-day Client
review period.
Promote and Test Data in Production Environment
-----------------------------------------------
Once the Client has approved the data, or the 7-day approval period has lapsed,
whichever comes first, the data will be promoted onto the production
environment.
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Exhibit B: Content Management Services Supplement
Pricing Schedule
Services
Data storage and maintenance for ____________ SKU's at the SciQuest site
Data submission
SciQuest will accept data in an electronic spreadsheet - SciQuest template
Pricing Maintenance
SciQuest will load one price file as the standard or list price, and
subsequent price files for individual buyer marketplaces, powered by
SciQuest, where applicable.
Update frequency
SciQuest will update SKU's : Bi-Annually
SciQuest will update price files: Quarterly
Adds, Deletes, Changes
Client may add up to 25 new SKU's or 5% of the total number of SKU's listed
above, whichever is greater, under the terms of this Supplement without
additional fees.
Payment Options: Choose One
_____Total Annual Fee $_________ due upon contract signing
_____Quarterly Payments (4) quarterly payments of $__________, first
payment due upon contract signing
Client's Initials _________ Date: __________________
Page 9
SciQuest, Inc.
STOREFRONT LICENSE SUPPLEMENT
Schedule B to the Services Agreement
This is a supplement (the "Supplement") to the Services Agreement between
SciQuest, Inc. and _____________________ originally dated _____________. This
Supplement is entered into as of the date of the last signing (the "Effective
Date"). The following terms are agreed to by the parties and should be read with
the Services Agreement as if originally contained in the Services Agreement.
Where the terms of this Supplement conflict with the terms of the Service
Agreement, the terms of this Supplement will take precedence over the terms of
the Services Agreement only with regard to the rights and obligations set forth
in this Supplement.
1. Access; License
(a) Subject to the terms of this Supplement, SciQuest will make the web-based
software applications listed in Exhibit B (the "SciQuest Applications")
---------
available to Client for its internal business use via the Internet, and
SciQuest hereby grants Client during the term set forth in this Supplement
a nonexclusive, nontransferable right and license (without rights to
sublicense) to use the SciQuest Applications to allow customers to review
and purchase Client's products. Client shall not allow its affiliates,
subsidiaries (except as set forth on Exhibit A), consultants, agents or any
---------
third parties to use the SciQuest Applications, nor will Client use the
SciQuest Applications on their behalf.
(b) Operation; Access. SciQuest will host and operate the SciQuest Applications
on computer servers accessible by Client via the Internet. Client will post
on its website the terms and conditions applicable to customers' access and
use of the SciQuest Applications.
2. Support and Maintenance
Enhancement and Maintenance. During the term of the license provided in this
Supplement, SciQuest agrees to support and maintain the SciQuest applications as
set forth in Exhibit A.
3. Client Responsibilities.
(a) Hardware and Internet Access. To facilitate the license and services in
this Supplement, Client shall be responsible for procuring, at its expense,
the necessary environment to access and use the SciQuest Applications that
are provided via the Internet, including, without limitation, (I) computer
hardware and equipment, (ii) third party software such as web browsers,
(iii) Internet access services, and (iv) telecommunications services
(collectively, the "Client Systems"). Without limiting the generality of
the foregoing, the Client Systems shall meet the recommended minimum
specifications set by SciQuest for use of the SciQuest Applications. In
addition, Client is responsible for obligations under any third party
agreements to which Client is a party, including, without limitation, any
agreements pursuant to which Client procures the Client Systems or any
portion thereof, regardless of whether SciQuest works with Client to
negotiate or enter into such third party agreements.
(b) Misuse. Client shall be responsible for notifying SciQuest if it believes
that a customer has misused the SciQuest Applications.
(c) Client Data. Client shall be responsible for ensuring that any data,
information or other materials that may be provided by Client in
conjunction with the SciQuest Applications (the "Client Data") are
accurate, are not corrupt in any way, and do not contain any viruses.
Client shall be responsible for making appropriate back-up and archival
copies of the Client Data. Notwithstanding anything herein to the contrary,
Client hereby grants to SciQuest a nonexclusive, nontransferable right to
use all content and transaction data, provided that with regard to
transaction data SciQuest may not use such data to identify Client or its
customers or any individual transaction.
(d) Proper Use. Client shall be responsible for its use of the SciQuest
Applications in accordance with the applicable user manuals provided by
SciQuest either in writing or via Internet access. SciQuest may amend such
user manuals from time to time, in its sole discretion. Client shall not
use the SciQuest Applications in conjunction with any data, information or
other materials that (I) violate any applicable laws, rules or regulations,
(ii) infringe upon or misappropriate any intellectual property or
proprietary right of others, or (iii) violate the privacy rights of others.
4. Proprietary Rights.
(a) SciQuest Applications. Client acknowledges and agrees that, as between
Client and SciQuest, SciQuest is the sole and exclusive owner of all right,
title and interest in and to the SciQuest Applications and any information
developed or collected by Client in connection with its operation of the
SciQuest Applications (other than Client Data), including all ideas,
formats and processes, and all copyrights, patent rights and other
intellectual property and proprietary rights therein and thereto, and
Client shall not assert any claims to the contrary. Except as expressly
permitted or required hereby, Client shall have no right or license to, and
Client shall not, use, copy, print, display, publish, transmit, sublicense
or otherwise transfer, distribute or make available to others, edit, modify
or create any derivative works of all or any part of the SciQuest
Applications.
(b) Trademarks. All trademarks, service marks, trade names and logos of
SciQuest appearing on or within the SciQuest Applications or used in
connection with the services provided by SciQuest are the property of
SciQuest. All use of such marks shall inure to the benefit of SciQuest, and
the use of SciQuest marks in conjunction with any other marks shall not
create a unitary or composite xxxx.
5. Access Fees; Payment.
(a) Access Fees. Subject to the terms and conditions of this Supplement and in
addition to any fees under the
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Services Agreement and its other Supplements, Client will pay SciQuest the
annual fees set forth in Exhibit B attached hereto (the "Access Fees"). The
------- -
Access Fees are based upon Client's current access requirements as provided
to SciQuest and are subject to revision in the event that such requirements
change or Client uses the SciQuest Applications in violation of the terms
of this Supplement.
(b) Payment Terms. SciQuest will submit to Client an invoice for the amounts
due hereunder as set forth in Exhibit B. All invoices submitted by
SciQuest shall be due and payable in full, without reduction for any
offset, withholding or other claims, within 30 days after the date thereof.
Any amounts payable to SciQuest hereunder which are not paid when due shall
thereafter bear interest at the rate of 1.5% per month or the maximum
amount permitted by applicable law, whichever is less. SciQuest shall have
the right to suspend the user Ids and passwords assigned to Client's End
Users or deny access to the SciQuest Applications if Client is delinquent
in its payment obligations.
(c) Payments Upon Termination. Upon expiration or termination of the license
provided hereunder for any reason, Client shall pay all earned and unpaid
Access Fees and other amounts due SciQuest hereunder, all of which shall
become immediately due and payable.
(a) Term and Termination.
(b) Initial Term; Renewal. The initial term of the Supplement shall commence
as of the Effective Date and shall continue for a period of twelve (12)
months. Thereafter, the Supplement shall be automatically renewed for
additional successive periods of twelve (12) months unless either party
submits a written notice of its intention not to renew to the other party
at least ninety (90) days prior to the end of the then-current term. Not
withstanding the foregoing, in no event shall the terms of this Supplement
extend beyond the termination of the Services Agreement.
(c) This Supplement may be terminated by either party upon a breach by the
other party of any material term of the Supplement, which breach is not
cured (unless such breach is incapable of cure, such as breach of the
confidentiality provisions hereof) within thirty (30) days notice thereof,
or such longer period as may be mutually agreed by the parties.
(d) Survival. Termination of the Supplement shall not relieve either party of
its respective obligations to the other hereunder that arose prior to the
effective date of termination.
6. Warranties.
(a) Applications. For a period of ninety (90) days, commencing on the
Effective Date (the "Warranty Period"), SciQuest warrants that each
SciQuest Application will substantially perform in accordance with the
functional specifications for such application during the term of the
Supplement.
(b) Support. SciQuest warrants that the support and services provided hereunder
shall be of professional quality and performed in a workmanlike manner with
qualified personnel.
(c) Disclaimer of Implied Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
SCIQUEST MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-
INFRINGEMENT, AND SCIQUEST HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, SCIQUEST MAKES NO REPRESENTATION OR WARRANTY
THAT THE SCIQUEST APPLICATIONS WILL OPERATE UNINTERRUPTED OR ERROR FREE.
8. Remedies.
SciQuest's sole liability and obligation and Client's remedy for breach of
the warranty set forth regarding the SciQuest Application(s) shall be for
SciQuest to use commercially reasonable efforts to cause the applicable
SciQuest Application to substantially perform in accordance with its
functional specifications. In the event that SciQuest is unable to cause the
applicable SciQuest Application to perform in accordance with its functional
specifications, then SciQuest's sole liability and obligation and Client's
sole remedy shall be that SciQuest refund Access Fees for the year in which
the failure occurs, prorated on a monthly basis. SciQuest's warranty
obligations shall not apply if the SciQuest Application failure to perform in
accordance with its functional specifications is caused by (i) third party
software licensed by Client, (ii) Client's use of or access to the SciQuest
Applications other than as intended or in violation of this license, (iii)
unauthorized modifications made to the SciQuest Applications by Client.
SciQuest's sole liability for inability to perform in accordance with the
warranty regarding support services or any other claim arising out of or
relating to this Supplement, shall be for direct damages not to exceed the
annual Access Fees previously paid by Client to SciQuest in the year the
claim arises prorated on a monthly basis. IN NO EVENT SHALL CLIENT OR
SCIQUEST BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR
INCIDENTAL DAMAGES INCLUDING LOSS OF DATA OR PROFITS RELATED TO, OR AS A
RESULT OF, the LICENSE OR SERVICES UNDER THIS SUPPLEMENT OR THE USE OR
PERFORMANCE OF A WORK PRODUCT.
Client: SciQuest, Inc.
By: __________________________________ By: __________________________________
Print Name: ___________________________ Print Name: Xxxxxxx X. Xxxxx
Title: ________________________________ Title: Chief Executive Officer
Date:_____________________________ Date:_____________________________
CONFIDENTAL Page 11
V. 2.3 - Release Date: 07/27/01
Exhibit A: Storefront License Supplement
Maintenance and Support
During the term of the License, SciQuest agrees to perform the following
maintenance and support:
1. Support
(a) Upgrade the SciQuest Applications to add new features or functionalities
(collectively, "Enhancements"), as such Enhancements are generally made
available to SciQuest's other licensee's free of charge;
(b) Provide Support Services via telephone, facsimile, electronic mail, or
other electronic means, at SciQuest's discretion, from the hours of 8:00
a.m. to 7:00 p.m. EST, Monday-Friday, (excluding SciQuest holidays) to
Client Contact (as defined below);
(c) Provide and maintain all SciQuest owned and operated hardware and network
components that are used to make the SciQuest Applications available to
Client;
(d) Provide the data processing infrastructure support that will enable Client
to access the SciQuest Applications including, without limitation, SciQuest
servers to host the SciQuest Applications; third party software necessary
to host, operate and maintain the SciQuest Applications; personnel
necessary to manage and operate the SciQuest hardware and software; and
data management and computer facilities.
(e) Perform regular quality inspections of hardware, network components and
software owned or maintained by SciQuest, which are used to provide the
SciQuest Applications; and
(f) Make the SciQuest Applications available to Client for at least 98% of the
time (determined monthly), 7 days a week, 24 hours per day, not including
any unavailability that a) lasts less than 15 minutes; b) results from
regularly scheduled SciQuest maintenance; c) results from the failure of
Client's hardware or software; d) results from the failure of a
communication service or other outside service or equipment not within the
control of SciQuest; or e) is beyond the reasonable control of SciQuest. If
SciQuest, at any time, fails to achieve the service level set forth above
in this paragraph, Client will take all reasonable measures to mitigate any
direct damages it may sustain as a result of such failure.
2. Defects.
Upon expiration of the Warranty Period and for the remaining term under this
Supplement, SciQuest agrees to:
(a) Use commercially reasonable efforts to correct Defects in the SciQuest
Applications. For the purposes of this Supplement, a "Defect" shall mean
the failure of a SciQuest Application to substantially perform in
accordance with the functional specifications for such application, which
are provided to Client in printed form by SciQuest;
(b) Use reasonable efforts to respond to reported Defects in accordance with
the response times set forth below.
3. Current Version.
SciQuest shall only provide Support Services for the most current version of
SciQuest Applications and only to Client (not to Client's customers); SciQuest
does not provide Support Services for any third party software that is licensed
by Client and used by Client as part of a system that is integrated with the
SciQuest Applications.
4. Custom and Third Party.
Maintenance and support for customized software developed by SciQuest for Client
is not covered under this Supplement. Client may obtain maintenance and support
services for such software only under a separate agreement. When the SciQuest
Applications are deployed in conjunction with other software products,
including, but not limited to, web servers, browsers, third party databases, and
operating systems, SciQuest is not responsible for providing support for these
other products, or for ensuring correct interoperation with these products.
Corrections for difficulties or defects traceable to Client's or a third party's
errors or system changes may be billed to Client at SciQuest's then current
rates plus expenses.
5. Unauthorized Use.
SciQuest shall not have an obligation to provide Support Services for problems
caused by:
(a) Third party software licensed by Client,
(b) Client's use of or access to the SciQuest Applications other than as
intended or in violation of this Supplement, or
(c) Unauthorized modifications made to the SciQuest Applications by Client.
6. Telephone Support
SciQuest will answer a reasonable number of calls made by Client Contact (such
calls not to exceed in length an aggregate time of two (2) hours per month),
provided, however, that SciQuest may charge, at its then current rates in
effect, for its services spent responding to calls for which there exist
adequate materials in Client's possession to address the general and specific
areas and topics about which such calls are made, or Client has not adequately
researched such area or topic prior to contacting SciQuest. The limitation on
the number of calls described above does not apply to calls relating to an
actual Defect in a Software Application.
7. Support Services Response Times
Page 12
SciQuest shall respond to Defects reported by Client based on a problem severity
code using the following classifications for the severity of the problem
reported:
Xxxxx 0, Xxxxxxxxxxxx: Client's SelectSite is down, and no workaround exists.
Xxxxx 0, Xxxx Xxxxxx: Client's SelectSite is disrupted, but there is some
capacity to operate and conduct transactions.
Xxxxx 0, Xxx-Xxxxxxxx: Client has experienced a partial, non-critical loss of
functionality.
Level 4, Cosmetic: No affect on functionality. Change is desires solely for
aesthetic and "look and feel" reasons.
Problems may only be classified as Priority Level 1 and 2 if authorized by
signature of the Client Contact person for this Supplement. Client shall
designate and may from time to time change the contact person by written notice
to SciQuest. Client and SciQuest shall work in good faith to agree on the
severity of each problem reported.
SciQuest shall use all reasonable efforts to provide error correction services
in accordance with the following response time targets:
--------------------------------------------------------------------------------------------------------------------------------
Priority Level Solution or Action Plan Delivered (Orally or Status/Update Reports Delivered
in Writing)
-------------------------------------------------------------------------------------------------------------------------------
Level 1, Catastrophic Within 8 business hours after receipt of the Ongoing
problem report
-------------------------------------------------------------------------------------------------------------------------------
Level 2, High Impact Within 48 business hours after receipt of the Once per business day
problem report
-------------------------------------------------------------------------------------------------------------------------------
Level 3, Non-Critical Within 7 business days after receipt of the Upon request
problem report
-------------------------------------------------------------------------------------------------------------------------------
Level 4, Cosmetic Next release, if at all Upon request
-------------------------------------------------------------------------------------------------------------------------------
Calculation of all above stated response times shall not include time spent
waiting for elaboration on problems by Client, or information necessary to make
a response to a reported problem. If these response targets cannot be met,
SciQuest will develop an action plan outlining the steps to be taken to resolve
the problem and provide such action plan to Client as soon as practicable.
These response targets refer to normal business hours at SciQuest' support
facilities (excluding regularly scheduled holidays). If at Client's request,
SciQuest provides services outside of those hours for level 2 and 3 problems,
Client shall pay additional changes at a rate to be mutually agreed upon by the
parties or, if none is agreed, then at two times SciQuest's standard rate for
technical consulting services.
Client Contact:
Name: _______________________________________
Address: _______________________________________
_______________________________________
_______________________________________
Phone: _______________________________________
Fax: _______________________________________
E-mail: _______________________________________
Back-up to Client Contact:
Name: _______________________________________
Address: _______________________________________
_______________________________________
_______________________________________
Phone: _______________________________________
Fax: _______________________________________
E-mail: _______________________________________
CONFIDENTIAL Page 13
v. 2.3 - Release Date: 07/27/01
Exhibit B: Storefront License Supplement
Pricing Schedule
Application(s)
SciQuest SmartStore(TM)
Payment Options: Choose One
_____Total Annual Fee $___________ due upon contract signing
_____Quarterly Payments (4) quarterly payments of $_________, first
payment due upon contract signing
Client's Initials _________ Date: __________________
CONFIDENTIAL Page 14
v. 2.3 - Release Date: 07/27/01
SciQuest, Inc.
SciCentral LICENSE SUPPLEMENT
Schedule C to the Services Agreement
This is a Supplement (the "Supplement") to the Services Agreement between
SciQuest, Inc. and _____________ originally dated _________________. This
Supplement is entered into as of the date of the last signing (the "Effective
Date"). The following terms are agreed to by the parties and should be read
with the Services Agreement as if originally contained in the Services
Agreement. Where the terms of this Supplement conflict with the terms of the
Services Agreement, the terms of this Supplement will take precedence over the
terms of the Services Agreement only with regard to the rights and obligations
set forth in this Supplement.
1. Access; License
(a) Subject to the terms of this Supplement, SciQuest will make the web-based
software applications listed in Exhibit B (the "SciQuest Applications")
----------
available to Client for its internal business use via the Internet, and
SciQuest hereby grants Client during the term set forth in this Supplement,
a nonexclusive, nontransferable right and license (without rights to
sublicense) to use the SciQuest Applications to allow customers to access
the application via the Client's web site. Client shall not allow its
affiliates, subsidiaries (except as set forth on Exhibit A), consultants,
---------
agents or any third parties to use the code for the SciQuest Applications
on any other web site, nor will Client use the SciQuest Applications on
their behalf.
(b) Operation; Access. SciQuest will host and operate the SciQuest Applications
on computer servers accessible by Client via the Internet. Client will
insert the appropriate application code on the Client's web site to enable
access to the SciQuest Applications.
2. Support and Maintenance
Enhancement and Maintenance. During the term of the license provided in this
Supplement, SciQuest agrees to support and maintain the SciQuest Applications as
set forth in Exhibit A.
---------
3. Client Responsibilities.
(a) Hardware and Internet Access. To facilitate the license and services in
this Supplement, Client shall be responsible for procuring, at its expense,
the necessary environment to access and use the SciQuest Applications that
are provided via the Internet, including, without limitation, (i) computer
hardware and equipment, (ii) third party software such as web browsers,
(iii) Internet access services, and (iv) telecommunications services
(collectively, the "Client Systems"). Without limiting the generality of
the foregoing, the Client Systems shall meet the recommended minimum
specifications set by SciQuest for use of the SciQuest Applications. In
addition, Client is responsible for obligations under any third party
agreements to which Client is a party, including, without limitation, any
agreements pursuant to which Client procures the Client Systems or any
portion thereof, regardless of whether SciQuest works with Client to
negotiate or enter into such third party agreements.
(e) Misuse. Client shall be responsible for notifying SciQuest if it believes
that a customer has misused the SciQuest Applications.
4. Proprietary Rights.
(a) SciQuest Applications. Client acknowledges and agrees that, as between
Client and SciQuest, SciQuest is the sole and exclusive owner of all right,
title and interest in and to the SciQuest Applications and any information
developed or collected by Client in connection with its operation of the
SciQuest Applications including all ideas, formats and processes, and all
copyrights, patent rights and other intellectual property and proprietary
rights therein and thereto, and Client shall not assert any claims to the
contrary. Except as expressly permitted or required hereby, Client shall
have no right or license to, and Client shall not, use, copy, print,
display, publish, transmit, sublicense or otherwise transfer, distribute or
make available to others, edit, modify or create any derivative works of
all or any part of the SciQuest Applications.
(b) Trademarks. All trademarks, service marks, trade names and logos of
SciQuest appearing on or within the SciQuest Applications or used in
connection with the services provided by SciQuest are the property of
SciQuest. All use of such marks shall inure to the benefit of SciQuest, and
the use of SciQuest marks in conjunction with any other marks shall not
create a unitary or composite xxxx.
5. Access Fees; Payment.
(a) Access Fees. Subject to the terms and conditions of this Supplement and in
addition to any fees under the Services Agreement and its other
Supplements, Client will pay SciQuest the fees set forth in Exhibit B
---------
attached hereto (the "Access Fees"). The Access Fees are based upon
Client's current access requirements as provided to SciQuest and are
subject to revision in the event that such requirements change or Client
uses the SciQuest Applications in violation of the terms of this
Supplement.
(b) Payment Terms. SciQuest will submit to Client an invoice for the amounts
due hereunder, under the terms set forth in Exhibit B. All invoices
---------
submitted by SciQuest shall be due and payable in full, without reduction
for any offset, withholding or other claims, within 30 days after the date
thereof. Any amounts payable to SciQuest hereunder which are not paid when
due shall thereafter bear interest at the rate of 1.5% per month or the
maximum amount permitted by applicable law, whichever is less. SciQuest
shall have the right to suspend the access to the SciQuest Applications in
the event that the Client is delinquent in its payment obligations.
(c) Payments Upon Termination. Upon expiration or termination of this
Supplement for any reason, Client shall pay all earned and unpaid Access
Fees and other amounts due SciQuest hereunder, all of which shall become
immediately due and payable.
CONFIDENTIAL Page 15
v. 2.1 - Release Date: 07/27/01
6. Term and Termination.
(a) Initial Term; Renewal. The initial term of the Supplement shall commence as
of the Effective Date and shall continue for a period of twelve (12)
months. Thereafter, the Supplement shall be automatically renewed for
additional successive periods of twelve (12) months unless either party
submits a written notice of its intention not to renew to the other party
at least thirty (30) days prior to the end of the then-current term. Not
withstanding the foregoing, in no event shall this Supplement extend beyond
the termination of the Services Agreement.
(c) This Supplement may be terminated by either party upon a breach by the
other party of any material term of the Supplement, which breach is not
cured (unless such breach is incapable of cure, such as breach of the
confidentiality provisions hereof) within thirty (30) days notice thereof,
or such longer period as may be mutually agreed by the parties.
(d) Client understands that if the term of this Supplement is intended to
extend beyond the current term of the Services Agreement, Client must
continue the Services Agreement.
(e) Survival. Termination of the Supplement shall not relieve either party of
its respective obligations to the other hereunder that arose prior to the
effective date of termination. In addition, the payment obligations and
provisions contained in Sections 4, 6(C) and 8 shall survive the expiration
or termination of this Supplement for any reason.
7. Warranties.
(a) Applications. For a period of ninety (90) days, commencing on the
Effective Date (the "Warranty Period"), SciQuest warrants that each
SciQuest Application will substantially perform in accordance with the
functional specifications for such application during the term of the
Supplement.
8. Support. SciQuest warrants that the support and service provided hereunder
shall be of professional quality and performed in a workmanlike manner with
qualified personnel.
(f) Disclaimer of Implied Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
SCIQUEST MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-
INFRINGEMENT, AND SCIQUEST HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, SCIQUEST MAKES NO REPRESENTATION OR WARRANTY
THAT THE SCIQUEST APPLICATIONS WILL OPERATE UNINTERRUPTED OR ERROR FREE.
9. Remedies.
SciQuest's sole liability and obligation and Client's remedy for breach of the
warranty set forth regarding the SciQuest Application(s) shall be for SciQuest
to use commercially reasonable efforts to cause the applicable SciQuest
Application to substantially perform in accordance with its functional
specifications. In the event that SciQuest is unable to cause the applicable
SciQuest Application to perform in accordance with its functional
specifications, then SciQuest's sole liability and obligation and Client's sole
remedy shall be that SciQuest refund Access Fees for the year in which such
failure arises prorated on a monthly basis. SciQuest's warranty obligations
shall not apply if the SciQuest Application failure to perform in accordance
with its functional specifications is caused by (I) third party software
licensed by Client, (ii) Client's use of or access to the SciQuest Applications
other than as intended or in violation of this license, (iii) unauthorized
modifications made to the SciQuest Applications by Client. SciQuest's sole
liability for inability to perform in accordance with the warranty regarding
support services or any other claim arising out of or relating to this
Supplement, shall be for direct damages not to exceed the annual Access Fees
previously paid by Client to SciQuest in the year the claim arises prorated on a
monthly basis. IN NO EVENT SHALL CLIENT OR SCIQUEST BE LIABLE FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR INCIDENTAL DAMAGES INCLUDING LOSS OF DATA
OR PROFITS RELATED TO, OR AS A RESULT OF, THE LICENSE OR SERVICES UNDER THIS
SUPPLEMENT, OR THE USE OR PERFORMANCE OF A WORK PRODUCT.
10. Disclaimer and Indemnification
(a) The SciQuest Applications may provide access to content that is not under
the direct control of SciQuest, Inc. Any mention of specific products,
services, treatments, or other medical procedures does not imply an
endorsement by SciQuest. Use of any information from the SciQuest
Applications is at the end user's risk and peril.
(b) Client indemnifies and holds harmless SciQuest, its employees, officers and
directors from and against any claim arising of, or resulting from, an end
user's or Client's use of, or reliance on, any content provided through the
SciQuest Application.
Client: SciQuest, Inc.
By: __________________________________ By: __________________________________
Print Name: ___________________________ Print Name: Xxxxxxx X. Xxxxx
Title: ________________________________ Title: Chief Executive Officer
Date:_____________________________ Date:_____________________________
Exhibit A: SciCentral License Agreement Supplement
Maintenance and Support
During the term of the license, SciQuest agrees to perform the following
maintenance and support:
1. Support
(a) Provide Support Services via telephone, facsimile, electronic mail, or
other electronic means, at SciQuest's discretion, from the hours of 8:00
a.m. to 5:00 p.m. EST, Monday-Friday, (excluding SciQuest holidays) to
Client Contact (as defined below);
(b) Provide and maintain all SciQuest owned and operated hardware and network
components that are used to make the SciQuest Applications available to
Client;
(c) Provide the data processing infrastructure support that will enable Client
to access the SciQuest Applications including, without limitation, SciQuest
servers to host the SciQuest Applications; third party software necessary
to host, operate and maintain the SciQuest Applications; personnel
necessary to manage and operate the SciQuest hardware and software; and
data management and computer facilities.
(d) Perform regular quality inspections of hardware, network components and
software owned or maintained by SciQuest, which are used to provide the
SciQuest Applications and Databases; and
(e) Make the SciQuest Applications available to Client for at least 98% of the
time (determined monthly), 7 days a week, 24 hours per day, not including
any unavailability that a) lasts less than 15 minutes; b) results from
regularly scheduled SciQuest maintenance; c) results from the failure of
Client's hardware or software; d) results from the failure of a
communication service or other outside service or equipment not within the
control of SciQuest; or e) is beyond the reasonable control of SciQuest. If
SciQuest, at any time, fails to achieve the service level set forth above
in this paragraph, Client will take all reasonable measures to mitigate any
direct damages it may sustain as a result of such failure.
2. Defects. Upon expiration of the Warranty Period and for the remaining term
of this Supplement, SciQuest agrees to:
(a) Use commercially reasonable efforts to correct Defects in the SciQuest
Applications. For the purposes of this Supplement, a "Defect" shall mean
the failure of a SciQuest Application to substantially perform in
accordance with the functional specifications for such application, which
are provided to Client in printed form by SciQuest;
(b) Use reasonable efforts to respond to reported Defects in accordance with
the response times set forth below.
3. Current Version.
SciQuest shall only provide Support Services for the most current version of
SciQuest Applications and only to Client. In no event shall SciQuest provide
support regarding the SciQuest Applications to the Client's end-users of the
Application; SciQuest does not provide Support Services for any third party
software that is licensed by Client and used by Client as part of a system that
is integrated with the SciQuest Applications.
4. Custom and Third Party.
Maintenance and support for customized software developed by SciQuest for Client
is not covered by this Supplement. Client may obtain maintenance and support
services for such software only under a separate agreement. When the SciQuest
Applications are deployed in conjunction with other software products,
including, but not limited to, web servers, browsers, third party databases, and
operating systems, SciQuest is not responsible for providing support for these
other products, or for ensuring correct interoperation with these products.
Corrections for difficulties or defects traceable to Client's or a third party's
errors or system changes may be billed to Client at SciQuest's then current
rates plus expenses.
5. Unauthorized Use. SciQuest shall not have an obligation to provide Support
Services for problems caused by:
(A) Third party software licensed by Client,
(B) Client's use of or access to the SciQuest Applications other than as
intended or in violation of this Supplement, or
(C) Unauthorized modifications made to the SciQuest Applications by Client.
6. Telephone Support
SciQuest will answer a reasonable number of calls made by Client Contact (such
calls not to exceed in length an aggregate time of two (2) hours per month),
provided, however, that SciQuest may charge, at its then current rates in
effect, for its services spent responding to calls for which there exist
adequate materials in Client's possession to address the general and specific
areas and topics about which such calls are made, or Client has not adequately
researched such area or topic prior to contacting SciQuest. The limitation on
the number of calls described above does not apply to calls relating to an
actual Defect in a Software Application.
7. Support Services Response Times
SciQuest shall respond to Defects reported by Client based on a problem severity
code using the following classifications for the severity of the problem
reported:
Xxxxx 0, Xxxxxxxxxxxx: Client's SelectSite is down, and no workaround exists.
Xxxxx 0, Xxxx Xxxxxx: Client's SelectSite is disrupted, but there is some
capacity to operate and conduct transactions.
Xxxxx 0, Xxx-Xxxxxxxx: Client has experienced a partial, non-critical loss of
functionality.
Level 4, Cosmetic: No effect on functionality. Change is desired solely for
aesthetic and "look and feel" reasons.
Problems may only be classified as Priority Level 1 and 2 if authorized by
signature of the Client Contact person for this Supplement. Client shall
designate and may from time to time change the contact person by written notice
to SciQuest. Client and SciQuest shall work in good faith to agree on the
severity of each problem reported.
SciQuest shall use all reasonable efforts to provide error correction services
in accordance with the following response time targets:
--------------------------------------------------------------------------------------------------------------------------------
Priority Level Solution or Action Plan Delivered (Orally or Status/Update Reports Delivered
in Writing)
-------------------------------------------------------------------------------------------------------------------------------
Level 1, Catastrophic Within 8 business hours after receipt of the Ongoing
problem report
-------------------------------------------------------------------------------------------------------------------------------
Level 2, High Impact Within 48 business hours after receipt of the Once per business day
problem report
-------------------------------------------------------------------------------------------------------------------------------
Level 3, Non-Critical Within 7 business days after receipt of the Upon request
problem report
-------------------------------------------------------------------------------------------------------------------------------
Level 4, Cosmetic Next release, if at all Upon request
-------------------------------------------------------------------------------------------------------------------------------
Calculation of all above stated response times shall not include time spent
waiting for elaboration on problems by Client, or information necessary to make
a response to a reported problem. If these response targets cannot be met,
SciQuest will develop an action plan outlining the steps to be taken to resolve
the problem and provide such action plan to Client as soon as practicable.
These response targets refer to normal business hours at SciQuest' support
facilities (excluding regularly scheduled holidays). If at Client's request,
SciQuest provides services outside of those hours for level 2 and 3 problems,
Client shall pay additional charges at a rate to be mutually agreed upon by the
parties or, if none is agreed, then at two times SciQuest's standard rate for
technical consulting services.
Client Contact:
Name: _______________________________________
Address: _______________________________________
_______________________________________
_______________________________________
Phone: _______________________________________
Fax: _______________________________________
E-mail: _______________________________________
Back-up to Client Contact:
Name: _______________________________________
Address: _______________________________________
_______________________________________
_______________________________________
Phone: _______________________________________
Fax: _______________________________________
E-mail: _______________________________________
Exhibit B: SciCentral License Agreement Supplement
Pricing Schedule
Application(s)
SciCentral NewsFeed Application
Article Count
Number of links to articles in the SciCentral NewsFeed Application Seven (7)
Update frequency
Links to Articles updated: Daily - Monday thru Friday
(except U.S. holidays)
Payment Options: Choose One
_____Total Annual Fee $________ due upon contract signing
_____Quarterly Payments (4) quarterly payments of $____________, first
payment due upon contract signing
Client's Initials _________ Date: __________________
