Master Services Agreement – Agency 

If Agency executes an Order Form and/or Statement of Work, this Agreement together with such Order Form and/or Statement of Work constitutes the “Agreement.” Otherwise, this Agreement is hereinafter referred to as the “Agreement” and is effective as of the date you executed a Statement of Work or Order Form (the “Effective Date”). If you are accepting on behalf of your employer or another entity you represent, you warrant that (a) you have the legal authority to bind your employer or the applicable entity to the terms and conditions contained herein; and (b) you have read and agree to be bound by the terms and conditions of this Agreement.

 

This Master Services Agreement (this “Agreement”) is between Sprinklr, Inc. (“Sprinklr”) and you (“You” or “Agency”) on behalf of and as agent for your client  (“Client”).

1.              CERTAIN DEFINITIONS

“Account” means Client’s password restricted account to access and use the Platform.

“Affiliate” means any entity which is directly or indirectly controlling, controlled by, or under common control with a party to this Agreement.

 “Connected Services” means the various social media services supported by the Platform that Client desires to connect to through the Platform.

“Connected Services Authorization” means the authorization provided to Sprinklr by Client relating to Client’s Connected Services accounts, which enable the Platform to interact with Client’s Connected Services accounts.

“Content” means materials in whatever form and/or nature, including text, data, graphics, photos, audio, video, electronic messages, trademarks and other brand identifiers Processed through the Platform under the Account.

“Order Form” means a written order executed by the parties which identifies the Platform information, such as, modules purchased, term and associated fees.

“Platform” means Sprinklr’s proprietary social relationship infrastructure software platform which is accessed by Client via the internet, as specified in an applicable Order Form. Platform includes Updates made during the Term.

“Processed” means uploaded, stored, processed or transmitted.

“Professional Services” means Sprinklr social media services other than the Platform that may be offered from time to time and that Client elects to receive as described in an executed SOW.

“Representative” means Client’s representatives and/or other Client service providers.

“Social Media Information” means data relating to Client’s customers, followers and participants of the Connected Services.

“Sprinklr Services” means the Platform and Professional Services.

“Statement of Work” or “SOW” means a written order executed by the parties which identifies the Professional Services ordered by Client, including the description, and associated fees.

“Updates” means modifications, updates and changes made by Sprinklr to the Platform which Sprinklr makes generally available to its customers at no additional fee.

“User Guides” means Sprinklr materials made available to Client through the support portal to assist users of the Platform, as such materials may be updated during the Term.

2.              RIGHTS OF USE

2.1   Subject to the terms and conditions of this Agreement, Sprinklr grants to Agency as agent for Client a non-exclusive, non-transferable right to access and use the Platform during the Term via the Internet for the limited purpose of (i) connecting to Client’s accounts on the Connected Services  in order to access, read and reply to communications and data through Client’s Connected Services accounts, (ii) campaign management, including, viewing, printing and downloading, for internal use only, reports about Agency and Client’s use of the Platform and Connected Services, and (iii) such other uses as may be specified in an applicable Order Form. The Platform may be accessed and used solely by the number of Agency/Client users specified in the applicable Order Form(s) during the term of each applicable Order Form. Sprinklr will conduct periodic reviews of use of the Sprinklr Platform to determine the number of Agency/Client users. If the review determines that the number of users exceeds those purchased, then Agency’s sole obligation is to pay (and Agency agrees to pay) the additional Fees for such additional users from the date those users were added to the Platform. Additional users may also be purchased under an additional Order Form at Sprinklr’s then current Fees. Agency will provide Sprinklr with access to only those Connected Services accounts for which it has sufficient authority from Client and for which Client has sufficient authority to grant to Agency. 

2.2   For purposes of clarity, Agency may exercise the rights granted (and will be subject to the restrictions) in this Agreement solely on behalf of Client. Subject to the terms and conditions of this Agreement, Agency and its Representatives may access and use the Platform for the benefit of Client and Client Affiliates. All obligations of Agency shall apply equally to each Client, Client Affiliate and Representative that uses the Sprinklr Services; provided however, Agency shall be responsible for all acts or omissions of Client, each Client Affiliate and Representative  under this Agreement.

2.3   Sprinklr will provide the Sprinklr Services in accordance with the service levels described in Exhibit A (the “SLA”).

3.              ACCEPTABLE USE AND ACCOUNT MANAGEMENT

3.1   Agency/Client may only access and use the Platform through Client’s Account, and agrees to provide and maintain accurate and current Account information, including Connected Services Authorization. Agency is responsible for all activity conducted under Client’s Account, as well as all Content and Social Media Information that is Processed through the Client Account on the Platform. Content may not: (i) be defamatory, harmful to minors, obscene, indecent, pornographic, libelous, threatening, harassing, false, misleading or inaccurate; (ii)  contain or cause to be placed on Sprinklr’s or other third party’s system any Trojan horses, worms, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept or expropriate any system, data or personal information; (iii)  violate any applicable law, rule or regulation, including Privacy Laws and Privacy Standards (“Laws”); (iv) violate any rule or policy of any Connected Service; (v) infringe or violate any third party rights; or (vi) contain any health, medical, financial, credit card or other payment information or any information of any person under the age of 13. Social Media Information processed through the Platform may not violate any Laws applicable to the collection, retention, use, Processing or disclosure of personal information. Content that does not comply with clauses (i) – (vi) above and any Social Media Information that does not comply with the prior sentence, are referred to as “Prohibited Information”.  Agency and/or Client is responsible for reviewing and approving all Content Processed through or in the Platform. Agency and/or Client will be solely responsible for monitoring the communications it receives from users of the Connected Services that are Processed through the Sprinklr Services and for removing any Prohibited Information from the Platform. Sprinklr does not pre-screen Content, however Sprinklr has the right, but not the obligation, to remove Content from, or refuse to Process any Content on, the Platform and to make it unavailable through the Sprinklr Services, as Sprinklr may reasonably determine. In addition, upon notice, Sprinklr may terminate or suspend use by the authorized user that Processed such Prohibited Information.

3.2   Agency will not, directly or indirectly (i) reverse engineer, decompile, disassemble, disclose or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Platform; (ii) modify, translate, or create derivative works based on the Platform; or (iii) use the Sprinklr Services for timesharing or service bureau purposes or otherwise for the benefit of a third party (other than for Client or Client’s Affiliates as permitted hereunder).

3.3   Agency is responsible for adding authorized users to the Client Account, for maintaining the confidentiality of all Client Account passwords, for ensuring that each Client Account password is used only by the authorized user, for ensuring that Client Accounts and passwords are not shared, and for maintaining the security of the Client Account and of the equipment needed to connect to, access or use the Platform and the Connected Services. Agency shall limit access to the Platform only to authorized persons and will promptly disable all access to Client’s Account by any employee, contractor or Agency/Client representative who is no longer authorized to use the Platform.   

 

4.              OWNERSHIP AND LICENSES

4.1   Client owns all right, title and interest in and to the Social Media Information and all Content Processed through the Platform under Client’s Account.

4.2   Sprinklr owns all rights, title and interest in and to the Platform, User Guide and all Sprinklr Services.

4.3   Agency grants to Sprinklr during the Term a royalty-free, non-exclusive, non-transferable, worldwide right and license: (i) to copy, cache, store, reproduce, perform, display, use, distribute, transmit and generally make available the Content in electronic form via the Internet, through wireless communications services and social media through the Platform in order to provide the Sprinklr Services; and (ii)  to use Social Media Information as needed for Sprinklr to provide the Services and Platform or to comply with applicable Law; and (iii) to access Client’s accounts on the Connected Services in order to provide the Sprinklr Services.

5.              FEES AND PAYMENT

5.1   Agency shall pay Sprinklr all fees set forth in each applicable Order Form and/or SOW (collectively, “Fees”) within thirty (30) days of the invoice date.  Agency may withhold payment of any Fees that are the subject of a good faith dispute of which Agency has provided Sprinklr written notice within five (5) business days of invoice receipt (“Disputed Fees”); provided that all Fees which are not Disputed Fees shall be timely paid, and the Disputed Fees shall be paid within ten (10) days of resolution of the dispute.  Unless stated otherwise in an applicable Order Form and/or SOW, Fees are denominated and payable in United States dollars.  Platform Fees set forth in an Order Form are payable annually in advance and Professional Services fees set forth in an SOW are payable as stated in the applicable SOW. Except as may be expressly stated in this Agreement, all Fees are non-cancelable, non-refundable and are based on the Sprinklr Services purchased and not based on usage. Agency shall reimburse Sprinklr for all reasonable out-of-pocket expenses incurred in performing the Sprinklr Services as described in the applicable Order Form and/or SOW upon the submission to Agency of applicable receipts or other documentation. Sprinklr agrees to hold Agency liable for payments solely to the extent proceeds have been received from Client to Agency for payments due hereunder.  Agency agrees to use diligent efforts to obtain timely payment from Client for such amounts.  For sums not received by Agency, Sprinklr agrees to hold Client solely liable. Sprinklr understands that Client is Agency’s disclosed principal and Agency, as agent, has no obligations relating to such payments, either joint or several except as specifically stated above or in writing otherwise. 

5.2   Sprinklr reserves the right to charge Agency interest at the rate of the lesser of  1.5% per month, or the maximum rate permitted by law on any Fees not received by Sprinklr within fifteen (15) days of the payment due date. Additionally, in the event any Fees or expenses are more than thirty (30) days overdue, Sprinklr may (i) suspend its performance of the Sprinklr Services, and (ii) require full payment before Sprinklr resumes performance.

5.3   All Fees exclude taxes and Agency agrees to pay any applicable taxes charged arising from this Agreement in a timely manner, other than those based on Sprinklr’s income.  If Agency is tax-exempt, Agency shall provide Sprinklr with its tax-exemption number and certificate within five (5) business days after the Effective Date.  Agency shall be responsible for any liability or expense incurred by Sprinklr as a result of Agency’s failure or delay in paying taxes due or if Agency claimed tax exemption is rejected.  If Agency is legally required to withhold tax from its payment of Fees to Sprinklr, Agency agrees to gross up all Fees that are subject to such withholding tax, such that the net payment received by Sprinklr is the full originally stated amount of such Fees.

6.              TERM AND TERMINATION

6.1   The term of this Agreement will begin on the Effective Date and continue until expiration or termination of all Order Form’s and/or SOW’s (the “Term”). Each Order Form and SOW will have its own term as stated in such document.

6.2   Either party may terminate this Agreement and all Order Forms and SOW’s in the event that the other party is in material breach of this Agreement, and/or any Order Form or SOW, which has not been cured within twenty (20) days following receipt of written notice of such breach, except that any curable breach of Sections 2, 3, 4 or 8 shall have a three (3) day cure period. 

6.3   Upon expiration or termination of this Agreement for any reason: (i) Agency shall immediately remit to Sprinklr all monies due, if any; (ii) all rights to use the Platform immediately cease and provision of Professional Services immediately ends; (iii) within thirty (30) days, each party will return or destroy at the disclosing party’s request the other party’s Confidential Information; and (iv) Sections 3.2, 4.1, 4.2, 5, 6.3, and 8 – 11 shall survive, as well as any other provisions which by their terms or sense are intended to survive. Upon request by Agency to legal@sprinklr.com, received within ten (10) days after the effective date of termination, Sprinklr will make a file of Social Media Information and Content available to Agency or Client for download.  After such ten (10) day period, Sprinklr shall have no obligation to maintain or provide any Social Media Information or Content.

7.              WARRANTIES

7.1   Each party represents and warrants that it has the right and authority to enter into and perform its obligations under this Agreement. Agency represents and warrants to Sprinklr that Client is Agency’s disclosed principal and Agency, as agent, has the full legal right and authority from Client to enter into this Agreement on behalf of Client, to bind Client to the obligations provided in this Agreement and to fully perform its duties and obligations and to exercise its rights hereunder, including on behalf of Client.  Sprinklr warrants that during the Term, when used by Agency and/or Client as expressly permitted hereunder, the Platform shall perform in all material respects in accordance with the terms of this Agreement and each Order Form or SOW. In the event Agency or Client determines that the Platform has not met the foregoing warranty, Agency shall give Sprinklr prompt notice of the deficiency, including details sufficient to allow Sprinklr to replicate the deficiency, and in such event Sprinklr will use commercially reasonable efforts to remedy the identified deficiency. If Sprinklr does not remedy the deficiency, either party may terminate the affected Order Form or SOW and in such case Sprinklr will refund to Agency the amount of any pre-paid Fees for the period after termination as its exclusive remedy. 

7.2   Agency and Sprinklr each agree that (i) at all times during the Term it will use commercially reasonable efforts to comply with (i) all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements currently in effect and as they become effective relating in any way to the privacy, confidentiality or security of Personal Information including, without limitation, the European Union Directives governing general data protection (Directive 1995/46/EC), electronic commerce (Directive 2002/58/EC), and data retention (Directive 2006/24/EC); the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA) and relevant provincial laws; security breach notification laws, laws imposing minimum security requirements, laws requiring the secure disposal of records containing certain Personal Information; and all other similar international, federal, state, provincial, and local requirements (collectively “Privacy Laws”), and (ii) all applicable industry standards concerning privacy, data protection, confidentiality or information security (collectively “Privacy Standards”); and (iii) for purposes of the EU Directives, Agency/Client is the “data controller” and Sprinklr is the “data processor”. Notwithstanding the foregoing, Sprinklr’s obligations under this Agreement are limited to only those Privacy Laws and Privacy Standards that apply to content and data that is not Prohibited Information and that is permitted to be Processed through the Platform.

7.3 Agency and Sprinklr acknowledge that Privacy Laws and Privacy Standards change frequently, and each party agrees to use commercially reasonable efforts to stay apprised of its applicable obligations with respect to Privacy Laws and Privacy Standards.  In the event of any change of Laws applicable to the Sprinklr Service in any jurisdiction that would in Sprinklr’s reasonable determination cause the Sprinklr Service or any element thereof to no longer comply with applicable Laws, Sprinklr shall have the right to replace or modify the affected elements of the Sprinklr Service, in whole or in part, so that it becomes legally compliant but provides substantially equivalent functionality. If such modification is not feasible on commercially reasonable terms, Sprinklr may terminate provision of the Sprinklr Services in the affected jurisdiction and in such case will refund to Agency the amount of any pre-paid Fees applicable to Sprinklr Services in such terminated jurisdiction for the period after termination. Agency acknowledges that its rights described in the preceding sentence are its sole and exclusive rights in the event of such change of Laws.

8.              CONFIDENTIALITY

8.1   “Confidential Information” means: (i) business or technical information, including product plans, designs, source code, marketing plans, business opportunities, personnel, research, development or know-how (all of the foregoing as they relate to the Sprinklr Services, including the Platform (current or planned), are Sprinklr’s Confidential Information, and all of the foregoing as they relate to Client’s business, are Client’s Confidential Information); and (ii) information designated by the disclosing party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential. Confidential Information includes information disclosed prior to or during the Term of this Agreement. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (iii) is developed independently by the receiving party without use of any of disclosing party’s Confidential Information and by persons without access to such Confidential Information.

8.2   Agency, Client and Sprinklr each agree not to use any Confidential Information of the other party for any purpose other than as necessary to perform its obligations under this Agreement.  During and after the Term, neither receiving party will disclose any Confidential Information of the disclosing party to any third party without the prior written consent of the disclosing party, except as may be required by Law (provided that the party obligated to make the disclosure shall give the other party advance notice of such requirement to the extent legally permitted). Each receiving party shall be responsible for compliance with this Section and applicable provisions of this Agreement by each of its employees, contractors and advisors (“representatives”), and shall obtain the agreement by each representative to keep the Confidential Information of the disclosing party confidential and to use it solely as required for the performance of the receiving party’s obligations hereunder. Each receiving party will be responsible for compliance by its representatives.  For purposes of clarity, Agency and/or Client may publicly disclose the fact that it is using the Sprinklr Services, but all details about the uses, functionalities or other aspects of the Sprinklr Services (including screenshots and specific features of the Platform) are Confidential Information of Sprinklr and may not be disclosed.

9.     INDEMNIFICATION

9.1   Sprinklr shall indemnify, defend and hold harmless Agency, Client and Client Affiliates (the “Client Parties”) from and against any losses, liabilities, costs, expenses (including reasonable attorneys’ fees and expenses), penalties, judgments, settlement amounts and damages (“Losses”) incurred by a Client Party arising from a claim, suit, action or proceeding brought  by a third party (a “Claim”) against any Client Party alleging that the Sprinklr Services (excluding the Content, Social Media Information and use of the Connected Services Authorization) when used by Agency and Client as permitted hereunder infringes any third party intellectual property right. In the event  (a) it is held (or in Sprinklr’s reasonable opinion it is likely to be held) that the Sprinklr Services when used in accordance with this Agreement and the applicable Order Form and/or SOW infringe a third party’s rights, Sprinklr shall at its expense  either (x) procure for Agency the right to continue using the affected elements of the Sprinklr Services, or (y) replace or modify the affected elements of the Sprinklr Service, in whole or in part, so that it becomes non-infringing but provides substantially equivalent functionality. If neither (x) nor (y) are feasible on commercially reasonable terms, Sprinklr may terminate provision of the affected Sprinklr Services and refund to Agency the amount of any pre-paid Fees applicable to the terminated Sprinklr Services for the period after termination. Agency acknowledges that its right to obtain indemnification and the rights described in the preceding sentence are its sole and exclusive rights in the event of such a claim.

9.2   Agency shall indemnify, defend and hold harmless Sprinklr and its Affiliates, (the “Sprinklr Parties”) from and against any Losses arising in connection with a Claim against any Sprinklr Party alleging (i) that the Content (including the products and services promoted therein), Social Media Information, Connected Services Authorization   when used by Sprinklr as permitted hereunder, violates any Law, or policy or rule of any Connected Service, or infringes any third party right; (ii) that the Social Media Information was obtained or used in violation of any applicable privacy policies, Laws or Connected Services policies and rules; or (iii) a breach of Agency/Client’s obligations under this Agreement.

9.3   The indemnification obligations contained in this Agreement are conditioned upon: (i) notice by the party seeking indemnity (“Indemnitee”) to the party from whom indemnity is sought (“Indemnitor”) of any Claim for which indemnity is claimed within five (5) days of the Indemnitee receiving notice of such claim (failure to meet this condition does not exempt the Indemnitor of its  indemnification obligation, except to the extent that failure has materially prejudiced the Indemnitor’s ability to defend the Claim); (ii) complete control of the defense and settlement of the Claim by the Indemnitor, provided that no settlement may be made without the consent of the Indemnitee, such consent not to be unreasonably withheld or delayed; and (iii) reasonable cooperation by the Indemnitee in the defense as the Indemnitor may request. The Indemnitee has the right to participate in the defense against the indemnified Claims with counsel of its choice and at its own expense but may not confess judgment, admit liability or take any other actions prejudicial to the defense. Further, the Indemnitee may not settle an Indemnified claim unless such settlement includes an unconditional release of the other party from all liability on all Claims, or the other party gives its prior written consent, which shall not be unreasonably withheld.

9.4   THIS SECTION 9 STATES EACH PARTY’S ENTIRE LIABILITY TO THE OTHER AND EACH PARTY’S SOLE REMEDY FOR ANY THIRD PARTY CLAIM DESCRIBED IN THIS SECTION.

10.   LIMITATIONS OF WARRANTY AND LIABILITY

10.1                    EXCEPT AS EXPRESSLY STATED IN SECTION 7, THE SPRINKLR SERVICES, INCLUDING ALL FUNCTIONS THEREOF, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SPRINKLR SERVICES (INCLUDING THE PLATFORM) WILL BE SECURE, UNINTERRUPTED, TIMELY OR ERROR-FREE.

10.2 SPRINKLR DISCLAIMS ALL LIABILITY OF ANY KIND ARISING FROM OR IN CONNECTION WITH CONTENT, COMMUNICATIONS OR DATA FROM USERS OF THE CONNECTED SERVICES THAT MAY BE PROCESSED ON THE SPRINKLR PLATFORM.

10.3 IN NO EVENT SHALL ANY SPRINKLR PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES OR ANY OTHER MATTER RELATING TO THE SPRINKLR SERVICES.

10.4  EXCEPT FOR (i) THE PARTIES’ INDEMNIFICATION OBLIGATIONS; (ii) A BREACH OF SECTION 3.2; AND/OR (iii) A MISAPPROPRIATION OF SPRINKLR’S INTELLECTUAL PROPERTY (WHICH SHALL NOT BE LIMITED BY THIS SECTION), IN NO EVENT SHALL THE TOTAL LIABILITY OF ONE PARTY TO THE OTHER PARTY (EACH OF AGENCY AND CLIENT TO BE CONSIDERED, FOR PURPOSES OF CALCULATING DOLLAR LIMITS UNDER THIS SECTION, A SINGLE PARTY) FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE), ARISING FROM THIS AGREEMENT OR AGENCY/CLIENT’S USE OF THE SPRINKLR SERVICES, EXCEED, IN THE AGGREGATE, THE TOTAL FEES RECEIVED BY OR PAYABLE TO SPRINKLR FROM AGENCY/CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.  EACH OF AGENCY AND CLIENT ACKNOWLEDGES THAT SPRINKLR HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

10.5 Sprinklr Service features that interoperate with the Connected Services depend on the continuing availability of the Connected Service’s API and program for use with the Sprinklr Services. Agency acknowledges that if a Connected Service ceases to make its API or program available to Sprinklr for use with the Sprinklr Services on reasonable terms, Sprinklr may cease providing such Sprinklr Service features, and in such event Sprinklr’s sole obligation, and Agency’s exclusive remedy will be to receive a refund of any pre-paid Fees for Sprinklr Service features not provided for the period after such features are no longer available.

11.   GENERAL

11.1                   All notices pursuant to this Agreement shall be in writing and sent to the address set forth in the introductory paragraph of this Agreement to the attention of the undersigned, or to any other address designated by a party pursuant to this Section, and are deemed given on receipt.

11.2                   This Agreement is governed by the laws of the State of New York, without reference to conflict of law principles. The parties irrevocably consent to the exclusive jurisdiction of any State or Federal court located in New York County, NY, over any suit, action or proceeding arising out of or relating to this Agreement. THE PARTIES UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT ANY ORDER FORM AND/OR SOW. The parties expressly acknowledge that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

11.3                   In no event may Agency initiate any action against Sprinklr pursuant to this Agreement more than one (1) year from the date the claim arose.

11.4                   This Agreement together with each Order Form and/or SOW is the entire agreement between the parties relating to this subject matter, and supersedes all prior or contemporaneous understandings of the parties related thereto, including any separate non-disclosure agreement between the parties relating to this subject matter as it relates to confidential information disclosed after the date of and pursuant to this Agreement. This Agreement, any Order Form and SOW may be amended or any right waived only in writing signed by the parties.

11.5                   The Sprinklr Services may be subject to US export laws and regulations of the United States and other countries. Agency shall comply with all relevant export laws and shall ensure that no Sprinklr Services are used or accessed in violation thereof.

11.6                   Except as may be expressly provided herein, all remedies provided for in this Agreement are non-exclusive remedies.

11.7                   Agency will reasonably cooperate with Sprinklr if it desires to issue a press release regarding Sprinklr’s provision of the Sprinklr Services to Agency. Sprinklr may identify Agency/Client as a Sprinklr client in Sprinklr’s marketing materials and promotional presentations.  Any and all other uses of either party’s name shall be subject to the prior review and approval of the owning party, such approval not to be unreasonably withheld.

11.8                   Except as to the payment of any sums due, neither party will be liable to the other for any failure to perform, or delay in the performance of, any obligation under this Agreement caused by circumstances beyond such party’s reasonable control, including but not limited to: acts of God, fire, labor difficulties, or governmental action.

11.9                   Sprinklr has the worldwide, perpetual, irrevocable right to use aggregated, anonymized, and statistical data derived from the operation and use of the Sprinklr Services (“Statistical Data”) for business and/or operating purposes, provided that Sprinklr does not share with any third party Statistical Data which reveals the identity of Agency or Client, Client’s users, or Client’s Confidential Information except as permitted pursuant to Section 8.

11.10  Neither party may assign this Agreement in whole or in part without the prior consent of the other party, provided that either party may assign this Agreement upon prior notice but without consent to an Affiliate or in connection with a merger, sale of all or substantially all of such party’s business or other change of control, provided that the assignee expressly assumes in writing the assigning party’s obligations hereunder.

11.11  Nothing in this Agreement will create any association, partnership, or joint venture between the parties.  No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly stated in this Agreement. If a court of competent jurisdiction finds any provision of this Agreement unenforceable, all other provisions will remain in full force and effect and the unenforceable provision will be replaced with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision.

11.12  In the event of a conflict between any provision of this Agreement, and an SOW or Order Form, the terms of the SOW and/or Order Form will prevail with respect to the matters covered by the applicable SOW and/or Order Form.

 

EXHIBIT A

SERVICE LEVEL AGREEMENT

 

Defined terms used but not defined in this SLA shall have the meanings given to them in the attached Master Services Agreement. All references in this SLA to “Client” shall include both Agency and Client.

1. Platform Availability. Sprinklr will use commercially reasonable efforts to make the Platform generally available twenty-four (24) hours a day, seven (7) days a week and will provide Availability of the Platform of at least 98.5% (the “Availability Commitment”).  “Availability“ or “Available” means the time during each calendar month that the Platform is available for use by Client. “Downtime” means the time that the Platform is not Available, but excluding Excused Unavailability. “Excused Unavailability” means:  (i) scheduled maintenance (currently 12:30am US ET Sunday to 3:30am US ET Sunday, or such other alternative time outside of 9:00am US ET through 9:00pm US ET Monday through Friday, upon notice to Client); (ii) unavailability caused by acts or omissions of Client or its agents or caused by any breach by Client of this Agreement; (iii) unavailability caused by network unavailability or bandwidth limitations outside of the Sprinklr network; (iv) issues arising from bugs or other problems in the software, firmware or hardware of Sprinklr’s suppliers; (v) hacks, malicious introduction of viruses, disabling devices, and other forms of attacks that disrupt access to the Platform; (vi) power outages or other telecommunications or Internet failures; and (vii) events outside of Sprinklr’s control. In the case of subsections (iv) and (v), such events shall be included in the calculation of Excused Unavailability if the outage could not have been prevented by reasonable and customary precautions in the hosting industry.  Availability will be calculated as follows: (total minutes in any calendar month – total minutes of Downtime) divided by (the total minutes in such calendar month).

2. Termination Option. If Sprinklr fails to meet the Availability Commitment for two (2) consecutive calendar months or fails to meet the Availability Commitment for any three (3) calendar months within any twelve (12) month period, then by notice given within thirty (30) days after the end of the month which triggered Client’s right of termination, Client may terminate this Agreement effective thirty (30) days after receipt of the notice, and receive a refund of any pre-paid Fees for periods after the effective date of termination. The provisions of this SLA state Client’s sole and exclusive remedy for any service level deficiencies of any kind.

3. Platform Support. Sprinklr will use commercially reasonable efforts to provide Platform support to Client comprised of (i) on-line access to the Sprinklr support portal generally available twenty-four (24) hours a day, seven (7) days a week (subject to circumstances outside of Sprinklr’s control); (ii) Sprinklr’s telephone support line (currently 9am-9pm US ET Monday through Friday); and (iii) access to Client’s Account Manager.  Sprinklr will use commercially reasonable efforts to respond to Clients inability to access the Platform or a component of the Platform which had previously performed as expected (“Problem”) within eight (8) hours of the Problem being reported by Client to the Sprinklr support team through one of the three methods identified above.