SERVICENOW INSTANCE CONFIGURATION AGREEMENT
This ServiceNow Instance Configuration Agreement (the “Agreement”) is entered into as of of the date of purchase by and between Pericror, a corporation, (the “Developer”), and the purchasing entity (the “Company,” and together with the Developer, the “Parties”).
WHEREAS, the Company is a current customer of ServiceNow; and
WHEREAS, the Developer is engaged in the business of configuring and implementing ServiceNow Instances; and
WHEREAS, the Company wishes to engage the Developer as an independent contractor for the Company for the purpose of configuring the Company’s ServiceNow Instance (the “ServiceNow Instance”) on the terms and conditions set forth below; and
WHEREAS, the Developer wishes to configure the ServiceNow Instance and agrees to do so under the terms and conditions of this Agreement; and
WHEREAS, each Party is duly authorized and capable of entering into this Agreement.
NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein, the Parties hereby agree as follows:
The Company hereby appoints and engages the Developer, and the Developer hereby accepts this appointment, to perform the services described on the corresponding payment forms, product or service info page on the corporate site, or agreed to Statement of Work, in connection with the design and configuration of the ServiceNow Instance (collectively, the “Services”).
The total compensation for the configuration of the ServiceNow Instance shall be defined within the purchase form for the given service or product, and is due in full prior to services beginning. Any work or support beyond the scope of the currently defined service or product will require additional compensation. Payment covers the configuration or service hours, but does not account for any additional cost incurred to ServiceNow through the usage of the configurations by additional ‘fulfiller’ users.
This Agreement shall become effective as of the Purchase Date and, unless otherwise terminated in accordance with the provisions of Section 4 of this Agreement, will continue until the Services have been satisfactorily completed and the Developer has been paid in full for such Services (the “Term”) [or on the expiration of the Warranty Period as defined in subsection 9(a) of this Agreement.].
(a) Types of Termination. This Agreement may be terminated:
A. By either Party on provision of seven (7) days written notice to the other Party.
B. By either Party for a material breach of any provision of this Agreement by the other Party, if the other Party’s material breach is not cured within seven (7) days of receipt of written notice thereof.
C. By the Company at any time and without prior notice, if the Developer is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directives of the Company, or is guilty of serious misconduct in connection with performance under this Agreement.
(b) Responsibilities after Termination. Following the termination of this Agreement for any reason, the Company shall promptly pay the Developer according to the terms of the corresponding payment forms product or service info page on the Pericror website for Services rendered before the effective date of the termination (the “Termination Date”). The Developer acknowledges and agrees that no other compensation, of any nature or type, shall be payable hereunder following the termination of this Agreement. All intellectual property developed pursuant to this Agreement before the Termination Date shall be delivered to the Company within 7 days of the Termination Date.
(a) Of the Developer. The Developer agrees to do each of the following:
A. Remotely configure the ServiceNow Instance as detailed in the corresponding payment forms product or service info page on the Pericror website to this Agreement, with no requirement for online or onsite configurations.
B. Devote as much productive time, energy, and ability to the performance of its duties hereunder as may be necessary to provide the required Services in a timely and productive manner.
C. Perform the Services in a workmanlike manner and with professional diligence and skill, using fully-trained, skilled, competent, and experienced personnel.
D. Provide Services and a configured ServiceNow Instance that are functioning and substantially free of defects.
E. Communicate with the Company regarding progress it has made with respect to the completion of functionality listed in product or service info page on the corporate site in performing the Services in a remote & offline manner.
(b) Of the Company. The Company agrees to do each of the following:
A. Provide all assistance and cooperation to the Developer in order to complete the ServiceNow Instance configuration timely and efficiently.
B. Provide valid initial information, maintain any Pericror credentials on the ServiceNow Instance, and supply all information for the ServiceNow Instance configuration as needed on the deployment form.
C. Make any changes or additions to the Company’s current systems, software, and/or hardware, at the Company’s own expense, that may be required to support the operation of the ServiceNow Instance.
This Agreement defines no maintenance on behalf of the Developer. Any additional configuration requests will be charged at the Developer’s applicable hourly rates.
7. CONFIDENTIAL INFORMATION.
The Developer agrees, during the Term and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, firm, or corporation without the prior written authorization of the Company, any Confidential Information of the Company. “Confidential Information” means any of the Company’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, software, configurations, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Developer by the Company either directly or indirectly. The Developer may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with Company personnel or authorized representatives or for any other purpose the Company may hereafter authorize in writing.
8. PARTIES’ REPRESENTATIONS AND WARRANTIES.
(a) The Parties each represent and warrant as follows:
A. Each Party has full power, authority, and right to perform its obligations under the Agreement.
B. This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
C. Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.
(b) The Developer hereby represents and warrants as follows:
A. The Developer has the sole right to control and direct the means, details, manner, and method by which the Services required by this Agreement will be performed.
B. The Developer has the experience and ability to perform the Services required by this Agreement.
C. The Developer has the right to perform the Services required by this Agreement at any place or location, and at such times as the Developer shall determine.
D. The Services shall be performed in accordance with and shall not violate any applicable laws, rules, or regulations, and the Developer shall obtain all permits or permissions required to comply with such laws, rules, or regulations.
E. The Services required by this Agreement shall be performed by the Developer or the Developer’s staff, and the Company shall not be required to hire, supervise, or pay any assistants to help the Developer perform such services.
F. The Developer is responsible for paying all ordinary and necessary expenses of its staff.
(c) The Company hereby represents and warrants as follows:
A. The Company will ensure successful payments of amounts earned by the Developer under this Agreement and as detailed in the corresponding payment forms.
B. The Company shall notify the Developer of any changes to its procedures affecting the Developer’s obligations under this Agreement at least 14 days prior to implementing such changes.
C. The Company shall provide such other assistance to the Developer as it deems reasonable and appropriate.
9. SERVICENOW INSTANCE CONFIGURATION REPRESENTATIONS AND WARRANTIES.
(a) Performance. The Developer hereby warrants and represents that for a period of 7 days following delivery of the ServiceNow Instance configuration to the Company pursuant to the corresponding payment forms product or service info page on the Pericror corporate website (the “Warranty Period”), the ServiceNow Instance will be free from configuration errors and defects in workmanship, and will conform to the specifications of the corresponding product or service info page on the Pericror corporate site. If configuration errors or other defects are discovered during the Warranty Period, the Developer shall promptly remedy those errors or defects at its own expense; provided, however, that the Developer shall not be obligated to remedy any such error or defect unless the Company notifies it of the existence and nature of such error or defect promptly on its discovery thereof. The Developer is not held accountable for changes across version releases from ServiceNow.
(b) No Disablement. The Developer hereby warrants and represents that the ServiceNow Instance configuration, when delivered or accessed by the Company, will be free from configuration defects, and from viruses, logic locks, and other disabling devices or codes, and in particular will not contain any virus, Trojan horse, worm, drop-dead devices, trap doors, time bombs, or other software routines or other hardware component that could permit unauthorized access, disable, erase, or otherwise harm the ServiceNow Instance or any software, hardware, or data, cause the ServiceNow Instance or any software or hardware to perform any functions other than those specified in this Agreement, halt, disrupt, or degrade the operation of the ServiceNow Instance or any software or hardware, or perform any other such actions.
10. TIMING AND DELAYS.
The Developer recognizes and agrees that failure to deliver the ServiceNow Instance configuration in accordance with the delivery schedule detailed in the corresponding payment forms or Statement of Work will result in expense and damage to the Company. The Developer shall inform the Company immediately of any anticipated delays in the delivery schedule and of any remedial actions being taken to ensure completion of the ServiceNow Instance according to such schedule. If a delivery date is missed, the Company may, in its sole discretion, declare such delay a material breach of the Agreement under subsection 4(a) and pursue all of its legal and equitable remedies. The Company may not declare a breach, and the Developer cannot be held in breach of this Agreement, of this section if such delay is caused by an action or failure of action of the Company. In such case, the Developer will provide the Company with written notice of the delay and work on the ServiceNow Instance configuration shall not continue until the reason for the delay has been resolved by the Company and written notice of that resolution has been provided to the Developer. Scheduling service hours requires a minimum 3 business day lead time, and may take up to 10 business days to align resources.
11. NATURE OF RELATIONSHIP.
(a) Independent Contractor Status. The Developer agrees to perform the Services hereunder solely as an independent contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. The Developer is and will remain an independent contractor in its relationship to the Company. The Company shall not be responsible for withholding taxes with respect to the Developer’s compensation hereunder. The Developer shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party and a third party.
12. NO CONFLICT OF INTEREST; OTHER ACTIVITIES.
The Developer hereby warrants to the Company that, to the best of its knowledge, it is not currently obliged under any existing contract or other duty that conflicts with or is inconsistent with this Agreement. During the Term, the Developer is free to engage in other ServiceNow Instance configuration activities; provided, however, the Developer shall not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Developer’s obligations or the scope of Services to be rendered for the Company pursuant to this Agreement.
(a) Of Company by Developer. The Developer shall indemnify and hold harmless the Company and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of the Developer arising from or connected with the Developer’s carrying out of its duties under this Agreement, or (ii) the Developer’s breach of any of its obligations, agreements, or duties under this Agreement.
(b) Of Developer by Company. The Company shall indemnify and hold harmless the Developer from and against all Claims that it may suffer from or incur and that arise or result primarily from (i) the Company’s operation of its business, (ii) the Company’s breach or alleged breach of, or its failure or alleged failure to perform under, any agreement to which it is a party, or (iii) the Company’s breach of any of its obligations, agreements, or duties under this Agreement; provided, however, none of the foregoing result from or arise out of the actions or inactions of the Developer.
14. INTELLECTUAL PROPERTY.
(a) No Intellectual Property Infringement by Developer. The Developer hereby represents and warrants that the use and proposed use of the ServiceNow Instance configuration by the Company or any third party does not and shall not infringe, and the Developer has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party in the ServiceNow Instance configuration, and the use of the ServiceNow Instance configuration will not include any activity that may constitute “passing off.” To the extent the ServiceNow Instance configuration infringes on the rights of any such third party, the Developer shall obtain a license or consent from such third party permitting the use of the ServiceNow Instance configuration.
(b) No Intellectual Property Infringement by Company. The Company represents to the Developer and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Developer for inclusion in the ServiceNow Instance configuration are owned by the Company, or that the Company has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Developer and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by the Company.
(c) Continuing Ownership of Existing Trademarks. The Developer recognizes the Company’s right, title, and interest in and to all service marks, trademarks, and trade names used by the Company and agrees not to engage in any activities or commit any acts, directly or indirectly, that may contest, dispute, or otherwise impair the Company’s right, title, and interest therein, nor shall the Developer cause diminishment of value of said trademarks or trade names through any act or representation. The Developer shall not apply for, acquire, or claim any right, title, or interest in or to any such service marks, trademarks, or trade names, or others that may be confusingly similar to any of them, through advertising or otherwise. Effective as of the termination of this Agreement, the Developer shall cease to use all of the Company’s trademarks, marks, and trade names.
No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.
The Company may assign this Agreement freely, in whole or in part. The Developer may not, without the written consent of the Company, assign, subcontract, or delegate its obligations under this Agreement, except that the Developer may transfer the right to receive any amounts that may be payable to it for its Services under this Agreement, which transfer will be effective only after receipt by the Company of written notice of such assignment or transfer.
17. SUCCESSORS AND ASSIGNS.
All references in this Agreement to the Parties shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Agreement shall be binding on and shall inure to the benefit of the successors and assigns of the Parties.
18. FORCE MAJEURE.
A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
(a) notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
(b) use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
19. NO IMPLIED WAIVER.
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return-receipt requested) to the respective Parties as follows:
If to the Company:
Address of the company as identified on__________
the payment form.___________________________
If to the Developer:
16476 Bernardo Center Dr. Suite 127A___________
San Diego CA 92128_________________________
21. GOVERNING LAW.
This Agreement shall be governed by the laws of the state of California. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
22. COUNTERPARTS/ELECTRONIC SIGNATURES.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. For purposes of this Agreement, use of a facsimile, e-mail, checkbox, or other electronic medium shall have the same force and effect as an original signature.
Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provisions had never been contained herein.
24. ENTIRE AGREEMENT.
This Agreement, constitutes the final, complete, and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.