01.

U.S. SERVICE PROVIDER AGREEMENT

This Service Provider Agreement (the “Agreement”) sets forth terms under which the service provider (“Service Provider”) shall, at the request of Appirio Inc. (including any affiliated companies of Appirio Inc.) (“Appirio”) provide professional services either directly to Appirio or to customers of Appirio on Appirio’s behalf.

1. Definitions.

“Confidential Information” means all information which is identified or treated by Appirio or any of Appirio’s clients or customers as confidential or which by reason of its character or the circumstances or manner of its disclosure is evidently confidential including, without limitation, all Deliverables, all information designated by Appirio as confidential, all information or data concerning or related to Appirio’s products (including the discovery, invention, research, improvement, development, manufacture, or sale thereof), processes, or general business operations (including sales, costs, profits, pricing methods, organization, and employee and customer lists), and any information of the foregoing nature received from Appirio related to Appirio’s customers or clients, which, if not otherwise described above, is of such a nature that a reasonable person would believe it to be confidential or proprietary.

“Deliverables” means the tangible and intangible results of the Services, including, but not limited to, any report, software, code, documents, materials, models, designs, drawings, processes, formulae, inventions, methodologies know-how, Confidential Information or other work performed, made, created, devised, developed or discovered by Service Provider in connection with this Agreement (and whether or not made or discovered during the course of Service Provider’s performance of Service Provider’s duties under this Agreement) either alone or with any other person in connection with or relating to the business of Appirio or capable of being used or adapted for use therein or in connection therewith.

“Intellectual Property Rights” means any and all existing and future intellectual or industrial property rights in and to any Deliverables (whether registered or unregistered) including all existing and future patents, copyrights, design rights, database rights, trade marks, semi-conductor topography rights, plant varieties rights, Internet rights/domain names, know how and any and all applications for any of the foregoing and any and all rights to apply for any of the foregoing in and to any Deliverables.

“Open Source Software” means any “open source” code (as defined by the Open Source Initiative), “free” code (as defined by the Free Software Foundation), community source code, including any libraries or code licensed under the General Public License, or any other software that is generally made available for free on the Internet in source code form.

“Pre-Existing Intellectual Property” means any proprietary methodologies, tools, models, software, procedures, documentation, know-how, processes, trade secrets, inventions, or works of authorship that have already been conceived or developed by Service Provider before Service Provider renders any Services under this Agreement.

“Third Party Materials” means any code, libraries, programs, software, documentation or other intellectual property of any type which is not created solely by Service Provider.

2. Services.

Service Provider shall provide professional services (“Services”) to Appirio as described on one or more Statements of Work signed by Service Provider and Appirio, which reference this Agreement (“SOW” or “Statement of Work”). Service Provider shall perform Services in a prompt manner and provide each Deliverable no later than the delivery dates specified in the applicable SOW. At the direction of Appirio, Service Provider shall provide Services directly to Appirio or to customers of Appirio on Appirio’s behalf. The parties may execute additional Statements of Work describing Services, which will become part of this Agreement upon execution by Service Provider and Appirio.

3. No Subcontractor.

Service Provider may not subcontract the Services without the prior express written consent of Appirio.

4. Changes.

Appirio shall have the right to modify, reject, cancel or terminate any SOW and any related plans, schedules or work in process with written notice to Service Provider. In the event Appirio terminates a Statement of Work other than for Service Provider’s material breach pursuant to Section 9 (Term and Termination) prior to completion of Services, Appirio shall pay Service Provider the fees due under the SOW with respect to Services completed as of the date of termination.

5. Third Party Materials and Open Source.

5.1 Third Party Materials. Service Provider shall not incorporate any Third Party Materials into a Deliverable, furnish any Third Party Materials into a Deliverable, furnish any Third Party Materials in conjunction with a Deliverable, or develop a Deliverable in a manner that requires Appirio to use any Third Party Materials in order to use such Deliverable, unless Service Provider (i) has specifically identified such Third Party Materials in the applicable SOW or otherwise obtained Appirio’s prior written consent and (ii) has obtained a license for Appirio’s (and Appirio’s licensees’) benefit which is as extensive as the license set forth in Section 7.5(b) below (“Third Party Materials License”).

5.2 Use Of Open Source. The obligations set forth in Section 5.1 with respect to Third Party Materials apply to any use of Open Source Software in connection with any Deliverable (excluding the obligation to obtain a Third Party Materials License unless otherwise specified in the applicable SOW). If Appirio approves use by Service Provider of any Open Source Software in connection with a Deliverable, Service Provider shall include documentation with each such Deliverable identifying any and all Open Source Software that is included in such Deliverable and provide Appirio a copy of the applicable license prior to inclusion.

5.3. Types of Open Source Never Allowed. Notwithstanding the foregoing, Service Provider shall not provide as part of any Deliverable, or otherwise use in connection with the Services, any software which contains any Open Source Software which is licensed under the “General Public License,” “LGPL,” “AGPL,” or any other license which could (i) compromise or interfere in any way with Appirio’s intellectual property rights or (ii) require Appirio to publicly release, distribute or license the source code to any Deliverable, to any Appirio software, or to any of Appirio’s customers’ or clients’ software, (iii) require that any disclosure, distribution or license of any Deliverable, any Appirio software, or any of Appirio’s customers’ or clients’ software be at no charge, or (iv) require that any other licensee of any Deliverable, any Appirio software, or any of Appirio’s customers’ or clients’ software be permitted to modify, make derivative works of, reverse-engineer or redistribute such Deliverable or software.

6. Representations and Warranties.

6.1 Service Provider’s Representations and Warranties. Service Provider hereby represents and warrants that:

  1. Due Authority. Service Provider has full right and power to enter into and perform this Agreement without the consent of any third party, and its performance under this Agreement will not conflict with any other obligation Service Provider may have to any other party.
  2. Standard of Performance. Service Provider will perform the Services in a timely, professional and workmanlike manner and with a degree of quality equal to or higher than applicable industry standards for similar services. In addition, all Services and each Deliverable shall conform in all material respects with the description set forth in the SOW.
  3. No Harmful Code. The Services and all Deliverables shall be free of any: (i) viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code; (ii) software disabling devices, time-out devices, counter devices and devices intended to collect data regarding usage of the software without the knowledge of Appirio and (iii) Open Source Software, except as expressly authorized by Appirio in writing in accordance with Section 5 (Third Party Materials and Open Source Software).
  4. Intellectual Property Rights. Each Deliverable is and will be an original work of Service Provider except for any Third Party Materials and Pre-Existing Intellectual Property incorporated therein as approved under Section 5 (Third Party Materials and Open Source Software) or 7.5 (Pre-Existing Intellectual Property), as applicable. Neither the Deliverables nor any element thereof will (i) infringe the intellectual property rights of any third party or (ii) be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments.
  5. No Employment, Agency or Partnership. Service Provider warrants and represents to Appirio that Service Provider is an independent contractor. Service Provider shall perform services on behalf of Appirio in the capacity of independent contractor, and not as an employee, worker, partner, agent or joint venture partner of Appirio. Service Provider shall not have any right or power whatsoever to contract on behalf of Appirio in any way in relation to third parties and will not hold Service Provider out as having such authority unless specifically authorized to do so. Service Provider is supplying the Services to Appirio as part of Service Provider’s business undertaking. Appirio is Service Provider’s client for these purposes.

6.2 Remedy of Defects. Service Provider shall, without charge, correct any non-conformity, defect or malfunction in any Deliverable reported by Appirio within thirty (30) days of receipt of notice from Appirio, or if Service Provider is unable to make the Deliverable operate as warranted within such 30-day period, then Appirio may terminate immediately the applicable SOW, and Service Provider shall refund to Appirio all fees paid for such defective Services within 10 days of termination. The remedies set forth in this Section 6.2 shall be non-exclusive.

6.3 Warranty Disclaimer. EXCEPT FOR SERVICE PROVIDER’S WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SOW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. Inventions and Other Deliverables.

7.1 Creation of Deliverables. Service Provider may make or create Deliverables during the term of any SOW or this Agreement.

7.2 Disclosure and Ownership of Deliverables. Service Provider must immediately disclose to Appirio all Deliverables and all Intellectual Property Rights. Both the Deliverables and the Intellectual Property Rights will belong to and be the absolute property of Appirio or any other person Appirio may nominate. Service Provider hereby assigns and agrees to assign all Intellectual Property Rights and any other rights, title and interest in and to the Deliverables to Appirio.

7.3 Protection, Registration and Vesting of Deliverables. Service Provider shall immediately on request by Appirio (during Service Provider’s engagement or after its termination) and at the expense of Appirio:

  1. apply or join with Appirio in applying for any Intellectual Property Rights or other protection or registration (“Protection”) in the U.S. and in any other part of the world for, or in relation to, any Deliverables;
  2. execute all instruments and do all things necessary for vesting all Intellectual Property Rights or Protection when obtained and all right, title and interest to and in the same absolutely and as sole beneficial owner in Appirio or other person as Appirio may nominate; and
  3. sign and execute any documents and do any acts reasonably required by Appirio in connection with any proceedings in respect of any applications and any publication or application for revocation of any Intellectual Property Rights or Protection.

7.4 Power of Attorney. Service Provider hereby irrevocably appoints Appirio to be Service Provider’s attorney and in Service Provider’s name and on Service Provider’s behalf to execute any such act and to sign all deeds and documents and generally to use Service Provider’s name for the purpose of giving to Appirio the full benefit of this section. Service Provider agrees that, with respect to any third parties, a certificate signed by any duly authorised officer of Appirio that any act or deed or document falls within the authority hereby conferred shall be conclusive evidence that this is the case.

7.5 Pre-Existing Intellectual Property.

  1. Pre-Approval. Service Provider shall not use any Pre-Existing Intellectual Property in connection with this Agreement unless Service Provider (i) has specifically identified such Pre-Existing Intellectual Property in the applicable SOW and (ii) has the right to use such Pre-Existing Intellectual Property for Appirio (and Appirio’s licensees’) benefit and to issue the licenses set forth in this section.
  2. License. If Service Provider incorporates any Pre-Existing Intellectual Property into a Deliverable or furnishes any Pre- Existing Intellectual Property in conjunction with a Deliverable, Service Provider hereby grants Appirio a non-exclusive, royalty-free, irrevocable, worldwide, perpetual license to: (i) make, have made, sell, use, execute, reproduce, modify, adapt, display, perform, distribute, make derivative works of, import, and disclose the Pre-Existing Intellectual Property or products and services using the Pre-Existing Intellectual Property in conjunction with the use of the Deliverable and (ii) authorize or sublicense others from time to time to do any or all of the foregoing.

8. Payment.

In exchange for Service Provider’s obligations under this Agreement, Appirio shall pay Service Provider the fees set forth in the applicable SOW. All payments are due in U.S. dollars within the later of sixty (60) days of Appirio’s receipt of an undisputed invoice, and, if applicable (in cases where Service Provider is performing Services on behalf of an Appirio customer), ten (10) days of receipt of payment of such Services from Appirio’s customer. Service Provider shall not invoice Appirio until Appirio’s acceptance of the Services or Deliverables (as applicable) is received in accordance with the payment schedule set forth in the applicable SOW. Appirio shall not reimburse Service Provider for any expenses unless such expenses are specified in the applicable SOW. When specified in the applicable SOW, Appirio will pay actual and reasonable, pre-approved travel and related expenses incurred by Service Provider in performing the Services, but only in accordance with Appirio’s then-current travel and expense policies. Service Provider acknowledges that this Section 8 sets forth the only compensation which Service Provider is entitled to receive in exchange for the Services and that Service Provider shall not be entitled to any other payments, reimbursements, royalties or consideration of any kind.

9. Term and Termination.

This Agreement remains in effect until terminated in accordance with this Section 9. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days thereafter). Appirio may terminate this Agreement, including any Statement of Work issued under this Agreement, at any time for any reason and without warning. Should Appirio exercise this right, it shall pay Service Provider up until the day of termination. All of the provisions of this Agreement shall survive any termination or expiration except Sections 2 (Services), 3 (No Subcontractor), 4 (Changes) and 8 (Payment) (except that Section 8 shall survive with respect to payments earned prior to termination).

10. Independent Contractor.

10.1 Obligation to Pay Tax. Service Provider shall be solely responsible and liable for any employment related taxes, social security payments, insurance premiums or other employment benefits or contributions required by law respecting Service Provider’s performance of the Services or receipt of the fee by Service Provider, or both (including any interest or penalties incurred in respect of such payments).

10.2 Tax Indemnity. Service Provider shall indemnify and keep indemnified Appirio for all time on demand from and against any and all costs, claims, penalties, liabilities and expenses incurred in respect of income tax, social security or other contributions due by Service Provider in relation to the provision of the Services.

10.3 Deductions. Without prejudice to the indemnity in Section 10.2, if for any reason, Appirio shall become liable to pay, or shall pay, any taxes or other payments referred to in Section 10.1, Appirio shall be entitled to deduct from any amounts payable to Service Provider all amounts so paid or required to be paid by it in that respect.

10.4 No Eligibility for Benefits. Neither Service Provider nor any of Service Provider’s employees or subcontractors will be eligible for any benefits (including, without limitation, stock options, health insurance or retirement benefits) normally provided by Appirio to its employees.

10.5 Background Checks. Service Provider represents and warrants that it conducts industry-standard background checks on all of its personnel, including, without limitation, criminal background checks, social security traces and past employment verification. Service Provider shall conduct any additional background checks, at its expense, that may be required by either Appirio or an Appirio customer or client.

11. Confidential Information.

Other than in the performance of the Agreement, neither Service Provider nor Service Provider’s agents, employees, or subcontractors shall use or disclose to any person or entity any Confidential Information of Appirio (whether in written, oral, electronic or other form), which is obtained from Appirio or otherwise prepared or discovered either in the performance of this Agreement, through access to Systems (as defined below), or while on Appirio’s premises. The provisions of this section relating to use and disclosure shall not apply to any information that: (i) is rightfully known to Service Provider prior to disclosure by Appirio, (ii) is rightfully obtained by Service Provider from any third party without restrictions on disclosure, (iii) is or becomes available to the public without restrictions; or (iv) is disclosed by Service Provider with the prior written approval of Appirio. Service Provider warrants and represents that each employee, agent, or subcontractor who performs work under this Agreement has been informed of the obligations contained herein and has agreed to be bound by them. This obligations set forth in this section shall survive any expiration of termination of this Agreement.

12. Access to Appirio’s Systems and Software.

12.1 Access to Appirio’s Systems. Access, if any, to Appirio’s computer, telecommunication or other information systems (including computers, networks, voice mail, etc.) or those of any Appirio client or customer (“Systems”) is granted solely to facilitate the business relationship described in this Agreement, and is limited to those specific Systems, time periods, and personnel designated by Appirio. Access is subject to business control and all applicable policies, laws and regulations. Service Provider will abide by all information protection or data privacy policies of Appirio or customers of Appirio, and all applicable laws and regulations. Any access to or use of any Systems except as expressly authorized is expressly prohibited. Without limiting the foregoing, Service Provider warrants that it has adequate security measures in place to comply with the above obligations and to ensure that access granted hereunder will not impair the integrity and availability of Systems. Upon reasonable notice, Appirio may audit Service Provider to verify Service Provider’s compliance with these obligations.

12.2 Access to Appirio’s Software. Solely to the extent Appirio determines it is necessary for Service Provider to have access to certain Appirio software or tools (“Appirio Software”) in order to perform the Services, subject to the terms and conditions of this Agreement, Appirio grants to Service Provider a non-exclusive, non-transferable, non-sublicensable, royalty-free license, to use the Appirio Software solely for the performance of the Services. Service Provider will not use any of the trade secrets, algorithms, inventions, or technology revealed or embodied by the Appirio Software except as necessary to perform the Services. No right is granted by this Agreement for the use of the Appirio Software directly or indirectly by others. Service Provider may not sublicense or otherwise transfer, by contract, operation of law, or otherwise, any of the rights granted to Service Provider herein. All rights not expressly licensed herein are reserved to Appirio and its suppliers.

13. Indemnification.

Service Provider will defend, indemnify and hold harmless Appirio, their officers, directors, employees, sublicensees, customers and agents from any and all direct or indirect claims, losses, liabilities, damages, expenses and costs (including legal fees and court costs) arising from or relating to: (i) any breach or alleged breach of any representation, warranty or other provision of this Agreement by Service Provider, and (ii) any infringement or alleged infringement by Service Provider, the Services or any Deliverable of any third-party intellectual property rights; (iii) any act, neglect or default of Service Provider or any person authorised by Service Provider to act on Service Provider’s behalf, including any personal injury or property damage (a “Claim”). Appirio shall give Service Provider written notice of any such Claim and Appirio has the right to participate in the defense of any such Claim at its expense. In no event shall Service Provider settle any Claim without Appirio’s written consent (which consent shall not be unreasonably withheld). From the date of written notice from Appirio to Service Provider of an such Claim, Appirio shall have the right to withhold from any payments due Service Provider under this agreement the amount of any defense costs, plus additional reasonable amounts as security for Service Provider’s obligations under this section.

14. Limitation of Liability.

EXCEPT FOR AN INDEMNIFICATION CLAIM, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL APPIRIO’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES DUE TO BE PAID TO SERVICE PROVIDER UNDER THIS AGREEMENT.

15. Insurance.

Service Provider is solely responsible for maintaining such adequate health, automobile, workers’ compensation, unemployment compensation, disability, liability, and any other type of insurance required by law or as is common practice in Service Provider’s business including a comprehensive policy of insurance to cover Service Provider’s liability in respect of any act, omission or default for which Service Provider may himself become liable, or become liable to indemnify the Company under this Agreement (including insurance to cover third party, employer’s and professional liability claims). Upon request, Service Provider shall provide Appirio with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Service Provider shall acquire additional insurance, at its expense, if so required by either Appirio or an Appirio customer or client. Service Provider shall provide adequate coverage for any Appirio property under the care, custody or control of Service Provider or Service Provider’s personnel.

16. Compliance with Laws and Other Regulations.

Each party shall perform all of its obligations under this Agreement in compliance at all times with all applicable laws, including, but not limited to, those relating to privacy and data protection. Contractor shall additionally comply with all regulations, policies and guidelines of Appirio and Appirio customers or clients. Appirio complies with data processing requirements at the following link: https://appirio.com/dpasp.

17. Publicity.

Neither party shall publicize or disclose the existence or terms of this Agreement to any third party without the prior written consent of the other, except as may be required by law. In particular, no press releases shall be made without the mutual written consent of each party.

18. Records.

Service Provider will keep and maintain complete and accurate records in connection with its performance of the Services and all fees charged to Appirio under this Agreement and will retain these records for at least three (3) years after the amounts documented in these records become due. Appirio may audit such records during regular business hours upon reasonable advance notice and subject to reasonable confidentiality procedures not more than twice per year.

19. General.

Neither party may assign this Agreement without the prior written consent of the other party and any attempt to do so will be void. Notwithstanding the foregoing, Appirio may assign this Agreement to an entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or part of the voting securities or assets of Appirio upon written notice to Service Provider. Any notice or consent under this Agreement will be in writing to the address or email address specified below within the signature block in the accompanying SOW. Terms and conditions of this agreement are subject to change without prior notice and are effective upon any such update. For the duration of this agreement and for thirty-six (36) months after, Service Provider will not hire any persons employed by Appirio, whether or not such resource had direct interaction with Service Provider under this Agreement. Service Provider agrees that for the term of this Agreement, and any other related definitive agreements that may be entered into by and between the parties (e.g., statements of work), and for a period of two (2) years thereafter, Service Provider shall not, directly or indirectly, bid for, offer, sell or otherwise provide any services or products that directly compete with Appirio’s then-existing services or products, to any customer for which Appirio and Service Provider have offered to deliver or have jointly delivered services. This restriction includes, but is not limited to any employee, subcontractor, or agent of Appirio. No provision of this Agreement will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party. Service Provider will abide by all policies and guidelines of Appirio and customers of Appirio. Service Provider hereby acknowledges that from time to time, Appirio is required to ensure that all subcontractors engaged by Appirio, including Service Provider, are bound by the same or substantially similar terms as Appirio under the terms and conditions to which Appirio has agreed with Appirio’s customers (referred to herein as the “Prime Agreement Terms”), and therefore Services Provider hereby understands and agrees to be bound by any such Prime Agreement Terms. It is Service Provider’s responsibility to request a copy of any such applicable Prime Agreement Terms, and absent any such request Appirio is under the assumption that Service Provider is aware of and agrees to be bound by such Prime Agreement Terms.If any provision of this Agreement is adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement is governed by and to be construed in accordance with California law. Each party hereby submits to the exclusive jurisdiction of the San Francisco County courts as regards any claim, dispute or matter arising out of or in connection with this Agreement and its implementation and effect. Any waivers or amendments shall be effective only if made in writing signed by a representative of the respective parties. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties, and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. In the event that Appirio loans Service Provider any equipment during the course of its engagement, Service Provider shall be responsible for returning it in the same condition in which Service Provider received it. Such equipment will be loaned as is with all faults. Appirio reserves the right to charge Service Provider for any damage it finds, beyond the normal wear and tear.