Master Services Agreement

This Master Services Agreement (including the Customer Support Policy and the Upgrade Policy, attached hereto and incorporated by reference) (“Agreement”) between Tenon Software Inc. (“Tenon”) and the customer set forth below (“Customer”) is made as of the effective date set forth below (“Effective Date”).

1. Definitions

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.  “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.    

“Agreement” means this Master Services Agreement and any policies, exhibits, schedules and addenda hereto.

“Confidential Information” means: (a) Tenon Technology(which is Confidential Information of Tenon); (b) Customer Data and Customer Technology (which are Confidential Information of Customer); (c)any other nonpublic information (written, oral or electronic) disclosed by the disclosing party to the receiving party and shall be deemed to include the following information of the disclosing party, without limitation: (i) customer lists, the names of customer contacts, business plans, technical data, product ideas, personnel, contracts and financial information; (ii) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (iii) information about costs, profits, markets and sales; (iv) plans for future development and new product concepts; (v) all documents, books, papers, drawings, models sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments ; and (d) the specific terms and conditions of this Agreement, any Order Form, any SOW, and any amendment and attachment thereof, between the parties. Confidential Information shall not include any information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) was rightfully in the receiving party’s possession at the time of disclosure without restriction on use or disclosure; (iii) is independently developed by the receiving party without use of the disclosing party's Confidential Information; or (iv) was or is rightfully obtained by the receiving party from a third party not under a duty of confidentiality and without restriction on use or disclosure.

"Contractor" means the independent contractors and consultants permitted by Customer to serve as Users of the Subscription Service.

“Customer Data” means any electronic data uploaded by or for Customer and Customer’s agents, employees and contractors that is processed through the Subscription Service, excluding the Tenon Technology. For the avoidance of doubt, Customer is the data controller and Customer Data is hosted by ServiceNow in the ServiceNow Platform.

“Customer Technology” means the ServiceNow Platform, software, methodologies, templates, business processes, documentation or other material authored, invented or otherwise created or licensed (other than by or from Tenon) by Customer using or for use with the Subscription Service, excluding the Tenon Technology.

“Customer Trademarks” means Trademarks owned by Customer that Customer expressly authorizes Tenon to use in connection with this Agreement as applicable.“Deliverable” is a deliverable that is explicitly identified as such in the applicable SOW and that is created by Tenon for Customer, at Customer’s specific request, in the performance of the Professional Services. For the avoidance of doubt, all Deliverable(s) shall be considered Tenon Technology.

“Documentation” means the Tenon product release notes relating to the features and functionality of the Subscription Service, as updated from time to time by Tenon.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

“Work Product” means intellectual property in any inventions or works of authorship that are made by Tenon specifically for Customer in the course of performing Professional Services for Customer that is identified as “Work Product” in an SOW, excluding the Tenon Technology.

“Order Form” means a written ordering document specifying the Subscription Service to be provided hereunder that is entered into between Customer and Tenon.‍

“Professional Services” means any professional services provided by Tenon pursuant to an agreed SOW.

“ServiceNow Platform” means the hosted platform and/or platform-as-a-service made available by ServiceNow under the “ServiceNow” brand.‍

“Statement of Work” or “SOW” means a statement of work for Professional Services, agreed to by the Parties in writing.

“Subscription Service” means the Tenon software-as-a-service application(s) that are ordered by Customer under an Order Form and made available by Tenon.  Subscription Service excludes Third-Party Applications that may be available for use with the Subscription Service. ‍

“Subscription Term” means the term of authorized use of the Subscription Service as set forth in any Order Form.‍

“Tenon Technology” means: (a) the Subscription Service, Deliverable(s), Third-Party Applications and Documentation; and any  methodologies (including, without limitation, products, software tools, hardware designs, algorithms, templates, software (in source and object forms), architecture, class libraries, objects and documentation) existing as of the Effective Date or otherwise arising outside of work under a professional service or statement of work; (b) updates, upgrades, improvements, configurations, extensions, and derivative works of the foregoing and related technical or end user documentation or manuals; (c) intellectual property anywhere in the world relating to the foregoing; and (d) excludes ServiceNow technology and the ServiceNow Platform.

“Tenon Trademarks” means Trademarks owned by Tenon that Tenon expressly grants Customer to use in accordance with this Agreement as applicable.

‍“Third Party Applications” means any separate services or applications (and other consulting services related thereto), procured by Customer from a party other than Tenon that can be used in connection with the Subscription Service.

“Trademarks” means a party’s logo(s), service marks, trademarks and certification marks. “Customer Trademarks” means Trademarks owned by Customer that Customer expressly authorizes Tenon to use in connection with this Agreement.

“User” means the individuals designated and granted access to the Subscription Service by or on behalf of Customer, including its Affiliates and/or Contractors.‍

2. Tenon Responsibilities.‍

2.1 Provision of Subscription Service. Subject to the terms of this Agreement, Tenon authorizes Customer to access and use the purchased Subscription Service during the Subscription Term as set forth in an applicable Order Form for its internal business purposes in accordance with the Documentation. Customer may permit Contractors and Affiliates to serve as Users provided that any use of the Subscription Service by each such Contractor or Affiliate is solely for the benefit of Customer or such Affiliate. Tenon may provide Subscription Service only in the English language, unless otherwise agreed in writing. The parties have expressly requested that this Agreement and all related documents be drafted in English.‍

2.2 Customer Support.  During the Subscription Term, Tenon will provide customer support for the Subscription Service to Customer at no additional charge in accordance with the Tenon Customer Support Policy, attached hereto.‍

2.3 Protection of Customer Data.‍

• 2.3.1 Tenon will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data in its possession.  Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Tenon personnel except (a) to provide customer support in accordance with the Customer Support policy attached hereto; (b) to provide Professional Services in accordance with a SOW as applicable; (c) as compelled by law in accordance with Section 7 (Confidentiality), or (d) as expressly permitted in writing by Customer.
• ‍2.3.2 Notwithstanding anything to the contrary in this Agreement or any other agreements signed between the parties, Tenon’s obligations extend only to those systems, networks, network devices, facilities and components over which Tenon exercises control.  For clarity, Section 2.3.1 does not apply to: (i) any ServiceNow datacenter or any infrastructure within the control of ServiceNow, including the ServiceNow Platform (ii) Customer Data hosted in Customer’s existing ServiceNow instance(s); (iii) Customer Data in Customer’s virtual private network (VPN) or a third-party network; or (iv) any Customer Data processed by Customer or its Users in violation of this Agreement.
• 2.3.3 Customer acknowledges that any electronic Protected Health Information (ePHI) or Personally Identifiable Information (PII) disclosed to Tenon as part of Customer Data is incidental to the Subscription Service under this Agreement and that Tenon does not review or analyze the content of Customer Data in the ordinary course of operating the Subscription Service.  Customer agrees that it shall be solely responsible for complying with any obligations under any government law or regulation that requires any review or analysis of such content.  For the avoidance of doubt, Customer acknowledges and agrees that Tenon does not have access to Customer’s production instance of ServiceNow, and Customer shall not provision any such access to Tenon.

‍3. Use of Subscription Service

3.1 Usage Limits.  The Subscription Service is subject to usage limits, including quantities and/or functionality restrictions referenced in an Order Form.  Unless otherwise specified, (a) a quantity in an Order Form may not be exceed the use and access rights by more than the quantity ordered, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Subscription Service.  Customer will reasonably cooperate with any Tenon audit of Customer's use of the Subscription Service, which may require Customer to run a report for Tenon’s review.  If Tenon determines that Customer has exceeded its permitted use of the Subscription Service then Tenon will notify Customer and within thirty (30) days thereafter Customer, at its option, shall either: (i) disable any unpermitted use or (ii) purchase additional subscriptions commensurate with Customer’s actual use.

3.2 Customer Responsibilities. Customer agrees to be subject to the Company’s Acceptable Use Policy available at https://www.tenonhq.com/acceptable-use-policy, as the same may be amended or modified in the Company’s sole discretion from time to time in accordance with the terms thereof.

3.3 Customer Responsibilities.  Customer will (a) be responsible for Users’ compliance with this Agreement and the Acceptable Use Policy (as defined below), (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Subscription Service, and notify Tenon promptly of any such unauthorized access or use, (d) use the Subscription Service only in accordance with the Documentation and applicable laws and government regulations; and (e) use ServiceNow’s column-level encryption feature on all Customer-created fields for all Customer Data containing ePHI or PII or any other fields that Customer as data controller deems to be sensitive information. In the event that Customer obtains or requires any personally identifiable information (or other sensitive information) about Tenon personnel, Customer warrants that such information will be treated in the strictest confidence, used only for legally required purposes (and in full compliance with any applicable laws), and that such data will be destroyed when no longer necessary.

3.4 Usage Restrictions.  Customer will not and will not permit any third party to do the following with respect to the Tenon Technology: (i) use the Subscription Service with external programs in a manner that intentionally circumvents contractual usage restrictions; (ii) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any of it available for access by third parties except as otherwise expressly provided in an Order Form; (iii) access it for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Subscription Service; (iv) disassemble, reverse engineer or decompile it; (v) copy, create derivative works based on or otherwise modify it except as permitted in this Agreement; (vi) remove or modify a copyright or other proprietary rights notice in it; (vii) use it to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (viii) use it to create, use, send, store or run Malicious Code or other harmful computer code, files, scripts, agents or other programs or otherwise engage in a malicious act or disrupt its security, integrity or operation; or (ix) access or disable any Tenon or third party data, software or network.

3.5 Third Party Applications. In support of Customer’s authorized internal business use of the Subscription Service during the Subscription Term, Tenon may provide URL links or interconnectivity within the Subscription Service to facilitate Customer’s use of Third-Party Applications, at Customer’s sole discretion. Notwithstanding the foregoing, any procurement or use of Third-Party Applications are solely between Customer and the applicable third party and Tenon will have no liability for such Third-Party Applications. For the avoidance of doubt, Customer agrees that all URL links or interconnectivity shall be identified in a Statement of Work.

4. ServiceNow Platform

4.1 General.  The Subscription Service is developed and operates exclusively on the ServiceNow Platform and is hosted by ServiceNow.  Customer must be an existing ServiceNow customer or is required to purchase ServiceNow in order to use and access Tenon’s Subscription Service either directly from ServiceNow or through a ServiceNow approved reseller, as applicable.  Customer must be operating on a current ServiceNow subscription release in accordance with the ServiceNow’s Upgrade Policy in ServiceNow’s Subscription Service Guide as published (https://www.servicenow.com/schedules.html). Customer acknowledges that if ServiceNow is inoperable and/or terminates services to Customer due to a party’s breach of the agreement between Customer and ServiceNow, any Subscription Service installed in the affected ServiceNow instance will be inaccessible and Tenon will not thereby be deemed to be in breach of this Agreement.  Tenon has no liability to Customer for any losses or harm occasioned by Customer’s use of the ServiceNow Platform, or for any failures, defects, or errors, arising from the ServiceNow Platform.‍

5. Fees and Payment

5.1 Fees.  Customer will pay all fees as specified in an Order Form(s) or a SOW(s), as applicable.  Except as otherwise specified herein or in an Order Form or a SOW, (i) fees are based on Subscription Service usage rights purchased and not actual usage, (ii) payment obligations are non-cancellable and fees paid are non-refundable, (iii) quantities purchased cannot be decreased during the relevant Subscription Term and (iv) partial payments on invoices will be considered a breach of this Section 5.

5.2 Invoicing and Payment.  Subscription Service fees will be invoiced annually in advance and otherwise in accordance with the relevant Order Form.  Unless otherwise stated in the Order Form, fees are due net 30 days from the invoice date. Tenon requires payment be submitted via Automated Clearing House (ACH) or other electronic means. Customer shall provide Tenon with their ACH or electronic invoicing information no later than the Effective Date of this Agreement. Customer is responsible for providing complete and accurate billing and contact information to Tenon and notifying Tenon of any changes to such information. Professional Services fees will be invoiced on a time and materials basis, monthly in arrears.  

5.3 Purchase Orders.  If Customer issues a purchase order, then it shall be for the full amount of the Order Form, and any additional or conflicting terms appearing in a purchase order shall not amend the Order Form or this Agreement. Upon request, Tenon shall reference the purchase order number on its invoices (solely for administrative convenience) so long as Customer provides the purchase order at least ten (10) business days prior to the date of the invoice.‍

5.4 Overdue Charges.  If any invoiced amount is not received by Tenon by the due date, then without limiting Tenon’s rights or remedies, those charges may accrue late interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

5.5 Suspension of Service.  If any charge owing by Customer is thirty (30) days or more overdue, Tenon may, without limiting its other rights and remedies, suspend the Subscription Service until such amounts are paid in full, provided Tenon has given Customer at least ten (10) days’ prior notice that its account is overdue in accordance with the Section 12.11 (Notices) below.  Notwithstanding the foregoing, if ServiceNow suspends services to Customer due to Customer’s breach of their agreement with ServiceNow, any Subscription Service installed in the same ServiceNow instance will also be inaccessible and Tenon will not thereby be deemed to be in breach of this Agreement.

‍5.6 Payment Disputes. Tenon will not exercise its rights under Section 11.2 (Termination) or Section 5.6 (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full when due.‍

5.7 Taxes.  Tenon's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Customer is responsible for paying all Taxes associated with its purchases hereunder.  If Tenon has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Tenon will invoice Customer and Customer will pay that amount unless Customer provides Tenon with a valid tax exemption certificate authorized by the appropriate taxing authority which must be provided before the Effective Date.  Tenon will calculate applicable Taxes based on the address where Customer primarily uses the Subscription Service as specified in the relevant Order Form.  Customer will be responsible for self-assessing and paying any additional Taxes arising from its use of Subscription Service at a different address.  Customer will promptly notify Tenon of any changes to a Customer address specified in an Order Form.  For clarity, Tenon is solely responsible for taxes assessable against it based on its income, property and employees.

6. Intellectual Property and Licenses

6.1 Tenon Ownership.   As between Tenon and Customer, all rights, title, and interest in and to all intellectual property rights in the Tenon Technology are owned exclusively by Tenon notwithstanding any other provision in this Agreement or any other agreement as signed between the parties. Except as expressly provided in this Agreement or in a SOW, Tenon reserves all rights in the Tenon Technology and does not grant Customer any rights, express or implied or by estoppel.‍

6.2 Customer Ownership.  As between Customer and Tenon, Customer shall retain all rights, title, and interest in and to its intellectual property rights in Customer Data and Customer Technology.

‍6.3 License by Customer for Customer Data.  Customer grants Tenon and its hosting providers a worldwide, limited-term license to copy, transmit and display Customer Data and program code created by or for Customer, as necessary for Tenon to provide the Subscription Service in accordance with this Agreement.  Subject to the limited licenses granted herein, Tenon acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data. Customer’s use of the Subscription Service and all Customer Data will comply with applicable laws and government regulations. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Tenon under this Agreement and that the Customer Data will not violate the rights of any third party.

‍6.4 Feedback. Tenon encourages Customer to provide suggestions, proposals, ideas, recommendations or other feedback regarding improvements to Tenon’s services and related resources. Tenon shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Software Services or any new programs, upgrades, modifications or enhancements developed by Tenon in connection with rendering the Subscription Services to Customer even when refinements and improvements result from Customer’s feedback or request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Tenon by virtue of the Agreement or otherwise, Customer grants to Tenon a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit feedback (including by incorporation of such feedback into the Subscription Services) without restriction.‍

6.5 Professional Services.  Subject to this Section 6.5, Tenon assigns (and in the future is deemed to have assigned) to Customer any Work Product upon payment in full by Customer for the Professional Services for which the Work Product was created. If any Tenon Technology is incorporated into a Deliverable, Tenon grants to Customer a non-exclusive, royalty-free, non-transferable (except as set forth in Section 12.14 (Assignment)), non-sublicensable worldwide license to use the Tenon Technology incorporated into the Deliverable in connection with the Subscription Service as contemplated under this Agreement during the applicable Subscription Term. Nothing in this Agreement shall be deemed to restrict or limit Tenon’s right to perform similar Professional Services for any other party or to assign any employees or subcontractors to perform similar Professional Services for any other party or to use any information incidentally retained in the unaided memories of its employees providing Professional Services.

6.6 Trademark Ownership. Tenon acknowledges that Customer owns all Customer Trademarks and any goodwill derived from the use of Customer Trademarks by Tenon under this Agreement inures solely to the benefit of the Customer. Customer acknowledges that Tenon owns all Tenon Trademarks and any goodwill derived from the use of Tenon Trademarks by Customer under this Agreement inures solely to the benefit of Tenon.‍

7. Confidentiality

7.1 Obligations.  The recipient of Confidential Information shall: (i) at all times protect it from unauthorized disclosure with the same degree of care that it uses to protect its own confidential information, and in no event using less than reasonable care; and (ii) not use it except to the extent necessary to exercise rights or fulfill obligations under this Agreement. Each party shall limit the disclosure of the other party’s Confidential Information to those of its employees and contractors with a need to access such Confidential Information for a party’s exercise of its rights and obligations under this Agreement, provided that all such employees and contractors are subject to binding disclosure and use restrictions at least as protective as those set forth herein. Each party’s obligations set forth in this Section 7 shall remain in effect during the term and three (3) years after termination of this Agreement. The receiving party shall, at the disclosing party’s request or upon termination of this Agreement, return all originals, copies, reproductions and summaries of Confidential Information and other tangible materials and devices provided to the receiving party as Confidential Information, or at the disclosing party's option, certify destruction of the same. Provisions for the return of Customer Data are set forth in Section 11.4 (Customer Data Portability and Deletion).‍

7.2 Required Disclosures.  A party may disclose the disclosing party’s Confidential Information to a court or governmental body pursuant to a valid court order, law, subpoena or regulation, provided that the receiving party: (a) promptly notifies the disclosing party of such requirement as far in advance as possible to the extent advanced notice is lawful; and (b) provides reasonable assistance to the disclosing party in any lawful efforts by the disclosing party to resist or limit the disclosure of such Confidential Information.‍

7.3 Equitable Remedies.  The parties agree that the receiving party’s disclosure of Confidential Information except as provided herein may result in irreparable injury for which a remedy in money damages may be inadequate. The parties further agree that in the event of such disclosure or threatened disclosure, the disclosing party may be entitled to seek an injunction to prevent the breach or threatened breach without the necessity of proving irreparable injury or the inadequacy of money damages, in addition to remedies otherwise available to the disclosing party at law or in equity.

8. Representation, Warranties, Exclusive Remedies and Disclaimers

8.1 Representation.  Each party represents that it has validly entered into this Agreement and has the legal power to do so.‍

8.2 Warranties. Tenon represents, warrants and covenants that: (a) it has the full corporate right, power and authority to enter into the Agreement; (b) the execution of the Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a Party or by which it is bound; (c) it shall provide the Professional Services in a good and workmanlike, professional manner. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 8 AND IN ANY STATEMENT OF WORK, TENON DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, CLIENT ACKNOWLEDGES AND AGREES THAT ALL TENON TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS.

8.3 Disclaimers.  EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, TENON DISCLAIMS ALL WARRANTIES OF ANY KIND, express or implied, oral or written, including warranties arising under statute, warranties of merchantability, accuracy, title, non-infringement or fitness for a particular purpose or any warranties arising from usage of trade, course of dealing or course of performance. Without limiting the generality of the foregoing, TENON specifically does not warrant that the subscription service, SERVICENOW PLATFORM, THIRD-PARTY APPLICATIONS or documentation will meet the requirements of CUSTOMER OR OTHERS or that they will be accurate or operate without INTERRUPTION OR error. CUSTOMER ACKNOWLEDGES THAT IN ENTERING THIS AGREEMENT IT HAS NOT RELIED ON ANY PROMISE, WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH HEREIN.

9. Mutual Indemnification

9.1 Indemnification by Tenon. Subject to the exclusions set forth below, Tenon shall: (i) defend Customer, its officers, directors and employees against any third party suit, claim, action or demand (each a “Claim”), excluding in all cases the use or provision of open source software and the ServiceNow Platform, to the extent alleging that  the Subscription Service used in accordance with this Agreement infringes any third party U.S. patent, copyright or trademark, or misappropriates any third party trade secret and (ii) pay any court-ordered award of damages or settlement amount to the extent arising from any such Claims. If any portion of the Subscription Service becomes the subject of a Claim under Section 9.1(i)(A), Tenon may: (a) contest the Claim; (b) obtain permission from the claimant for Customer’s continued use of the Subscription Service; (c) replace or modify the Subscription Service to avoid infringement, if such replacement or modification has substantially the same capabilities as the Subscription Service; or, if the foregoing (a), (b), and (c) are not available on commercially reasonable terms in Tenon’s judgment, then (d) terminate Customer’s use of the affected Subscription Service upon sixty (60) days’ written notice and pay to Customer a refund of any prepaid subscription fees covering the remaining portion of the applicable Subscription Term for the affected Subscription Service after the date of termination.

Notwithstanding the above, Tenon shall have no obligation or liability for any Claim under Section 9.1(i) arising in whole or in part from: (1) any use of the Subscription Service which exceeds the authorized use permitted under this Agreement or not in accordance with the Documentation; (2) Customer Data or Customer Technology; (3) use of the Subscription Service by Customer in violation of applicable law; (4) use of the affected Subscription Service after termination in accordance with clause (d) of this Section 9.1; (5) modifications to the Subscription Service made to Customer’s specifications or otherwise made by any person other than Tenon or a person acting at Tenon’s direction if the Claim would have been avoided by use of the unmodified Subscription Service; or (6) use of the Subscription Service in combination with any hardware, software, application or service that was not provided by Tenon, including but not limited to Third-Party Applications, if the Claim would have been avoided by the non-combined or independent use of the Subscription Service.  Notwithstanding any other provisions hereof, the foregoing indemnity will not apply with respect to any infringement based on Customer’s activities occurring subsequent to its receipt of notice of any claimed infringement unless Tenon will have given Customer written permission to continue to use and access the allegedly infringing Subscription Service.‍

9.2 Indemnification by Customer. Customer shall: (i) defend Tenon, its Affiliates, officers, directors and employees against any Claim related to any violation of applicable law, code or regulation by Customer, including, without limitation data privacy laws and laws related to unsolicited commercial electronic messages, or alleging that: (A) Customer Data, (B) Customer Technology or (C) a modification to the Subscription Service made to Customer’s specifications or otherwise made by or on behalf of Customer by any person other than Tenon or a person acting at Tenon’s direction (but only if the Claim would have been avoided by use of the unmodified Subscription Service), infringes any patent, copyright or trademark, misappropriates any third party trade secret, or violates any third party privacy rights; and (ii) pay any court-ordered award of damages or settlement amount to the extent arising from such Claim.‍

9.3 Process.  All of the foregoing indemnity obligations of Tenon and Customer are conditioned on the indemnified party notifying the indemnifying party promptly in writing of any actual or threatened Claim, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense.

‍9.4 Exclusive Remedy.  This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

10. Limitation of Liability

10. 1 Limitation of Liability.  EXCEPT FOR ANY FEES OWED BY CUSTOMER TO TENON, AND TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE products or SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER FOR THE SUBSCRIPTION SERVICE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO: (1) CUSTOMER’S OBLIGATION TO PAY FOR THE SUBSCRIPTION service or taxes; (2) a party’s obligations in Section 9 (MUTUAL indemnification); (3) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND (4) LIABILITY WHICH, BY LAW, CANNOT BE LIMITED.

10.2 Exclusions.  TO THE EXTENT PERMITTED BY LAW, NEITHER TENON NOR CUSTOMER SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR LOST PROFITS (WHETHER DIRECT OR INDIRECT) OR LOSS OF USE OR DATA, cover, substitute goods or services, OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGE TO BUSINESS, REPUTATION OR GOODWILL), OR INDIRECT DAMAGES OF ANY TYPE HOWEVER CAUSED, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION EVEN IF SUCH PARTY HAS BEEN ADVISED OF SUCH DAMAGES IN ADVANCE OR IF SUCH DAMAGES WERE FORESEEABLE. THE FOREGOING EXCLUSIONS SHALL NOT APPLY TO: (1) Payments to a third party arising from a party’s obligations under Section 9 (MUTUAL indemnification); (2) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND (3) LIABILITY WHICH, BY LAW, CANNOT BE LIMITED.

10.3 Gross Negligence; Willful Misconduct.  AS PROVIDED BY LAW, NOTHING HEREIN SHALL BE INTENDED TO LIMIT A PARTY’S LIABILITY IN AN ACTION IN TORT (SEPARATE AND DISTINCT FROM A CAUSE OF ACTION FOR BREACH OF THIS AGREEMENT) FOR THE PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT.

11. Term and Termination

11.1 Term of Agreement.  This Agreement commences on the Effective Date and continues until a party terminates in accordance with the terms of the Agreement and/or there are no Order Forms in effect. Either party may terminate an Order Form or SOW upon written notice if the other party materially breaches this Agreement or the applicable Order Form or SOW for the affected service(s) subject to Section 11.2.

11.2 Termination.  A party may terminate this Agreement for cause if the other party (a) materially breaches this Agreement and fails to cure the breach within 30 days after written notice by the non-breaching party detailing the breach, or (b) becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within 60 days.  Professional Services are separately ordered from the Subscription Service and are not required for the Subscription Service. A breach by a party of its obligations with respect to Professional Services shall not by itself constitute a breach by that party of its obligations with respect to the Subscription Service even if the services are enumerated in the same Order Form.

11.3 Refund or Payment upon Termination.  If Customer terminates this Agreement in accordance with the Section 11.2 (Termination), Tenon will refund Customer any prepaid fees covering the remainder of the Subscription Term of the effected Order Form after the effective date of termination.  If this Agreement is terminated by Tenon in accordance with Section 11.2 (Termination), Customer will pay any unpaid fees covering the remainder of the Subscription Term of the effected Order Form.  In no event will termination relieve Customer of its obligation to pay any fees payable to Tenon for the period prior to the effective date of termination.

11.4 Customer Data Portability and Deletion.  Customer must request any and all Customer Data from ServiceNow as Tenon has no authorization to access or return such Customer Data hereunder.

11.5 Surviving Provisions.  The sections titled “Fees and Payment,” “Intellectual Property and Licenses”, “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Usage Restrictions”, “Refund or Payment upon Termination,” “Customer Data Portability and Deletion,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.

12. General Provisions

12.1 Export Compliance.  The Subscription Service, other Tenon Technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions.  Tenon and Customer each represents that it is not named on any U.S. government denied-party list.  Customer represents and warrants that it is not located in and will not permit any User to access or use the Subscription Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region) and is not in violation of any U.S. export law or regulation.‍

12.2 Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from a Tenon employee or agent in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.  If Customer learns of any violation of the above restriction, it will use reasonable efforts to promptly notify Tenon.‍

12.3 Publicity and Reference.  Either party may publicly identify the other party as a customer or vendor, as applicable, using the other party’s name and logo, or other trademark(s).  Either party may issue a press release announcing Customer’s selection of the Subscription Service, the text of which will be subject to the other party’s prior written approval, not to be unreasonably withheld or delayed. Customer will use commercially reasonable efforts to act as a sales reference for Tenon upon request once per quarter, provided Customer is satisfied with the Subscription Service.‍

12.4 Trademark License. Subject to compliance with this Agreement, including the restrictions set forth in this Section 12.5, each party grants to the other, until the expiration or termination of this Agreement, a limited, personal, revocable, non-sublicensable, non-transferable, non-exclusive license to display the Trademarks of the other party subject to that party’s trademark and logo usage guidelines. Each party agrees to: (i) cooperate with the other party to facilitate the monitoring and control of the license recipient’s use of the trademarks in a promotional manner; (ii) upon request, use commercially reasonable efforts to provide the Trademark owner with specimens of its use of the Trademarks; and (iii) comply with any instructions of the Trademarks’ owner in relation to such use, including, if so requested by the other party, submitting any proposed use of the Trademarks to the Trademarks’ owner for review and approval prior to public use or dissemination of materials reflecting such use.‍

12.5 Force Majeure Event.  No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (excluding Customer’s failure to pay amounts owed when due), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including without limitation: strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), trespassing, sabotage, theft or other criminal acts, failure of energy sources or transport network, acts of God, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions (each a “Force Majeure Event”). The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event.

‍12.6 Usage of Aggregated Data; Monitoring Service.  Customer agrees that Tenon may collect, use and disclose quantitative data derived from the use of the Subscription Service (the “Aggregated Data”) for industry analysis, benchmarking, analytics, marketing, and other business purposes in support of the provision of the Subscription Service.  Aggregated Data shall be Tenon’s sole and exclusive property. Tenon shall not sell, rent or trade such Aggregated Data with third parties for their promotional purposes.

‍12.7 Entire Agreement and Order of Precedence.  This Agreement is the entire agreement between Tenon and Customer regarding Customer’s use of Subscription Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) any exhibit, schedule or addendum to this Agreement, (3) the body of this Agreement, and (4) the Documentation.

‍12.8 Relationship of the Parties.  The parties are independent contractors.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

‍12.9 No Third-Party Beneficiaries. There are no other third-party beneficiaries under this Agreement.‍

12.10 Notices.  Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, (c) confirmed delivery by courier service, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer, and Legal Notices to Customer will be addressed to Customer and be clearly identifiable as Legal Notices.  All other notices to Customer will be addressed to the relevant Subscription Service system administrator designated by Customer.‍

12.11 Waiver.  No failure or delay by either party in exercising any right hereunder will constitute a waiver of that right.

‍12.12 Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.‍

12.13 Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, together with all Order Forms, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.  In the event of such a termination, Tenon will refund Customer any prepaid fees covering the remainder of the term of all subscriptions.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.‍

12.14 Governing Law.  This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Indiana, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.  Notwithstanding the foregoing, either party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such party’s intellectual property rights. Neither Party shall be liable to the other Party under or in connection with this Agreement or any Order Form, for any claim not made in writing within two (2) years (or within the applicable statutory limitation period if shorter) of the date the facts giving rise to the claim were known or ought reasonably to have been known by the claiming Party.

12.15 Counterparts.  This Agreement may be executed by facsimile or electronic signature and in counterparts.

Customer Support Policy

This Customer Support Policy governs the support that Tenon will provide for its Subscription Service. This Policy may be updated from time to time.

Scope

The purpose of Customer Support is to resolve defects that cause the Subscription Service to perform not in substantial conformance to the Product Overview. A resolution to a defect may consist of a fix, workaround, or other relief Tenon deems reasonable.

Customer Support does not include:

• Implementation services
• Configuration services
• Integration services
• Customization services
• Custom software development training
• Assistance with administrative functions

Customer Support is not required to provide resolutions for immaterial defects or defects due to modifications of the Subscription Service made by any person other than Tenon or a person acting at Tenon’s direction.

Business Hours

Customer Support is available Monday through Friday from 8 am to 8 pm ET excluding major US holidays.‍

Incident Priority

Incident priority for a defect is determined using the guidelines below:

• Priority 1: Any defect that causes an instance to be unavailable.
• Priority 2: Any defect that causes a critical function to fail.
• Priority 3: Any defect that significantly impedes work or progress.
• Priority 4: Any defect that does not significantly impede work or progress.

Response Times and Level of Effort

Customer submits an incident with Tenon via phone or email. All support requests are tracked online and can be viewed by Customer's authorized contacts.  Response times do not vary if the incident was filed via phone or email.

Tenon will use reasonable efforts to meet target response times and target level of effort stated in the table below:

• Priority 1
  Target Response Time: 2 hours
  Target Level of Effort: Continuous, 24 hours per day, Monday through Friday
• Priority 2
  Target Response Time: 4 hours
  Target Level of Effort: Continuous, 8am-8pm ET, Monday through Friday.
• Priority 3
  Target Response Time: 1 business day
  Target Level of Effort: As appropriate during normal business hours.
• Priority 4
  Target Response Time: N/A
  Target Level of Effort: Varies.

Customer Responsibilities

Customer's obligations are as follows:

• Customer agrees to receive from Tenon communications via email, phone or email at support@tenonhq.com regarding the Subscription Service
• Customer shall appoint no more than five (5) contacts ("Customer Authorized Contacts") to engage Customer Support for questions and/or technical issues.
• Only Customer Authorized Contacts are authorized to contact Customer Support
• Customer Authorized Contacts are trained on the use and administration of the Subscription Service
• Customer shall cooperate to enable Tenon to deliver the Subscription Service and support for the service
• Customer is solely responsible for the use of the Subscription Service by its authorized users.