ZUORA MASTER SUBSCRIPTION AGREEMENT

1. CONTRACT STRUCTURE & ORDER-OF-PRECEDENCE

This Zuora Master Subscription Agreement (“Agreement”) is entered into between Zuora, Inc. (“Zuora”) and the customer (“Customer”) identified on the first order document signed by both Parties referencing this Agreement (“Order Form”), effective as of the effective date identified in that Order Form (“Effective Date”). Capitalized terms in this Agreement are defined in Section 17 (Definitions) and elsewhere in this Agreement. This Agreement and all Order Forms govern Customer’s access to and use of Zuora’s Service, and SOW govern any Professional Services Zuora provides to Customer. Customer and Zuora may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.” In the event of any conflicts between this Agreement, any Order Form, and/or any SOW, the following order-of-precedence applies: SOW take precedence and prevail over Order Forms solely with respect to the subject matter of SOW; and Order Forms and SOW take precedence and prevail over this Agreement solely with respect to their respective subject matter.

THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN ZUORA AND CUSTOMER. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT,” OR ACCESSING OR USING ANY ZUORA SERVICE. BY SIGNING AN ORDER FORM, OR ACCESSING OR USING ANY ZUORA SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT, AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, ZUORA’S OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY ZUORA SERVICE IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S CONSENT TO THIS AGREEMENT.

2. OWNERSHIP OF SERVICE & CUSTOMER DATA 

2.1 Ownership of the Service.  The Service is the property of Zuora, and is protected by copyright, patent, trade secret and other intellectual property laws. Zuora and its licensors retain any and all rights, title and interest in and to the Service (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Customer’s right to use the Service is limited to the rights expressly granted in this Agreement and the applicable Order Form(s). All rights not expressly granted to Customer are reserved and retained by Zuora and its licensors.

2.2 Ownership of Customer Data.  As between Customer and Zuora, (a) all Customer Data is the property of Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof.

3. GRANT OF RIGHTS

Subject to the terms and conditions of this Agreement, Zuora hereby grants to Customer the non-exclusive, non-transferable (except as specified in Section 16.2 (Assignment)), worldwide, royalty-free right to access and use the Service during the Service Term in accordance with the terms of this Agreement and all applicable Order Form(s) and SOW (e.g., any usage volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). The number of Production Tenants and API Sandbox Tenants to which Customer is entitled generally depends on the edition of the Zuora Service to which Customer subscribes, as further detailed in Zuora’s online Knowledge Center found at https://knowledgecenter.zuora.com?cid=EDI-0001 or https://knowledgecenter.zuora.com/Zuora_RevPro/Zuora_RevPro_Overview, as applicable. Customer is permitted to use the RevPro Service (“RevPro”) solely to process its own Transactions and those of its Affiliates.

4. CUSTOMER RESPONSIBILITIES

4.1 Customer Responsible for User Accounts.  Customer is responsible for all activity occurring under Customer’s User accounts (except to the extent any such activity is caused by Zuora), and for complying with all laws and regulations applicable to Customer’s use of the Service. Customer also must (a) notify Zuora promptly upon becoming aware of any unauthorized use of any Customer password or account (or any other breach of security of the Service), and (b) notify Zuora promptly upon becoming aware of, and make a reasonable effort to stop, any unauthorized copying, distribution or other misuse of any aspect of the Service, and (c) particularly with respect to RevPro, input accurate and complete Transaction records into the Service in the established standard format and in accordance with the specifications set forth in the documentation therefor.

4.2 Use Restrictions.  Customer must not, without Zuora’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Service, except to the extent expressly permitted by this Agreement (Customer may allow its own customers to access the functionality or output of the Service, excluding RevPro, via interfaces, portal applications and the like, solely for Customer’s internal business purposes in accordance with the applicable Order Form; (b) creation of any modifications or derivative works of the Service; (c) reverse engineering of the Service; (d) gaining of unauthorized access to the Service or its related systems or networks (for example, by impersonation of another user of the Service or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Service or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights; or (g) sending, storing or use of any infringing, obscene, threatening, libelous or otherwise unlawful or tortious material in connection with the Service (including, without limitation, any illegal spam, or any material that is harmful to children or violates any third party privacy rights). Customer also must use reasonable security measures to access the Service, and must not knowingly send, store or use any material containing any viruses, worms, Trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service. Zuora also reserves the right to take all steps reasonably necessary to protect the security, integrity or availability of the Service (e.g., by temporarily suspending access by anyone who introduces malicious code or attempts to do so), notwithstanding anything to the contrary in this Agreement.

4.3 Customer PCI Responsibilities.  If Customer or its third party service provider processes any credit card information using the Service, Customer (and/or such service provider, as applicable) will: (a) comply with their responsibilities under the Payment Card Industry Data Security Standard (“PCI DSS”); (b) implement and maintain reasonable security measures to protect all cardholder data in their possession or control; and (c) not take any action in connection with using the Service that places Zuora in non-compliance with the PCI DSS (for example, storing any cardholder data in any custom fields of the Service).

5. PRIVACY, SECURITY, CUSTOMER DATA, CONTINUITY & SUPPORT

5.1 Compliance with Privacy Laws.  Zuora and Customer will at all times comply with all Privacy Laws. Zuora will only use Customer Data in the manner permitted by this Agreement and all Privacy Laws; provided, however, that:

a. Customer hereby authorizes Zuora and its Affiliates to use Customer Data solely to provide the Service to Customer and otherwise meet Zuora’s obligations under this Agreement, including engaging subprocessors and contractors to provide the Service to Customer in accordance with this Agreement (Zuora remains liable for such Affiliates’, subprocessors’ and contractors’ compliance with this Agreement);

b. Customer hereby warrants that, to the extent required by Privacy Laws applicable to Zuora’s provision of the Service to Customer and the parties’ respective obligations under this Agreement, Customer has provided all proper notices under Privacy Laws and obtained from its personnel, customers and all legally-required third parties all rights and permissions legally required in order to grant the authorizations in Section 5.1(a) and to use the Service in the manner contemplated by this Agreement.

Notwithstanding anything to the contrary in this Agreement, if (i) complying with any Privacy Laws would materially change Zuora’s costs or risks in providing the Service (including, without limitation, by requiring that any Zuora data centers be located outside the U.S., or requiring Zuora to operate in violation of any U.S. laws), and (ii) after the Parties’ respective legal counsel meet to discuss the problem, Zuora provides written notice that it does not wish to incur such costs or risks, then each Party will have the right to terminate this Agreement (including all Order Forms and SOW) in writing within thirty (30) days after Zuora provides such written notice – in which case the termination will be effective thirty (30) days thereafter. In the event of such a termination, Customer’s sole right and Zuora’s sole obligation (except to the extent otherwise expressly stated in this Agreement) will be for Zuora to promptly refund to Customer, on a pro rata basis, any Fees paid under all Order Forms and SOW then in effect that are unused as of the termination effective date.

5.1.1    Unless otherwise mutually agreed to in writing by the Parties, Customer’s Tenant(s) will be hosted in Zuora’s US and/or European Union Data Center(s).  Customer’s Tenant(s) may be accessed remotely for support and technical operations purposes from outside of the US and EU.

5.2 Security of the Service, and PCI DSS Compliance.  Throughout the term of this Agreement, Zuora will maintain a data security program for the Service that will: (a) include reasonable administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data processed or stored by the Service; (b) comply with the PCI DSS (or prevailing successor industry standard, if replaced); and (c) include reasonable and appropriate controls pursuant to Zuora’s Service Organization Control (“SOC”) 1 & 2 audit (or other name if replaced).  Zuora will be responsible for unauthorized access and damage to, and for unauthorized deletion, destruction and loss of, Customer Data solely to the extent arising from Zuora’s breach of its obligations under this Agreement. Notwithstanding anything contained in this Agreement to the contrary, subsection (b), above, is not applicable to, and specifically excludes, RevPro. 

5.3 Export and Deletion of Financial Account Data & Other Customer Data. The Service allows Customer to export and  back-up Customer Data at its discretion, and Zuora encourages Customer to do so regularly. Customer will need assistance from Zuora, however, to export credit card account information or other Customer Data (e.g., ACH direct debit account information) that is subject to the PCI DSS or other financial industry rules or regulations regarding account information (collectively, “Financial Account Data”). Zuora will provide Financial Account Data only to recipients that have the required certifications and qualifications (e.g., certification to receive information that is subject to the PCI DSS). Any export or transfer of Financial Account Data must occur no later than thirty (30) days after expiration or termination of this Agreement, and will require Customer to first pay all amounts owed Zuora and to sign a separate written agreement to (a) help ensure the security and integrity of such data is maintained, and (b) give Zuora reasonable protection against liability relating to extraction, transfer and potential misuse of such data. Zuora will assist with one extraction of Financial Account Data free of charge; Customer will be charged for any other data extraction at Zuora’s prevailing Professional Services rates.

5.4 Data Retention.Regardless of the basis for expiration or termination of this Agreement, Zuora will not be obligated to retain any Customer Data for longer than thirty (30) days after any such expiration or termination, unless otherwise agreed in advance by the Parties in writing.

5.5   Business Continuity & Disaster Recovery.  Zuora will implement and maintain throughout the term of this Agreement reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Service.

5.6 Support & Service Level Agreement.  Zuora will provide technical support for the Service in accordance with Exhibit A to this Agreement (Support and Service Level Agreement) as long as Customer is entitled to receive support under the applicable Order Form and this Agreement.

6. TERM, TERMINATION & EFFECT OF TERMINATION

6.1   TERM

6.1.1 Term of Agreement.  This Agreement will begin on the Effective Date and continue in effect until all Order Forms and SOW expire or are terminated in accordance with this Agreement (e.g., Section 6.2.2), which may be done concurrently with termination of this Agreement.

6.1.2    Term of Order Forms.  The term of each Order Form will be set forth therein, starting on the Effective Date specified therein and continuing for the initial Service term specified therein (“Initial Service Term”).

PLEASE CAREFULLY REVIEW THESE AUTOMATIC RENEWAL TERMS AND THOSE IN SECTION 7.2. Unless otherwise set forth in the applicable Order Form, or unless the Order Form is terminated in accordance with Section 6.2.2, upon expiration of the Initial Service Term, the relevant Order Form will renew automatically on an annual basis for subsequent renewal terms of twelve (12) months (each a “Renewal Service Term“), unless either Party notifies the other Party in writing, at least thirty (30) days (subject to Section 7.2) prior to the end of the then-current Service Term, that it chooses not to renew. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term.”

6.2   TERMINATION

6.2.1 Termination of Agreement.  Neither Party will have the right to terminate this Agreement without legally valid cause (no termination “for convenience”). Either Party may terminate this Agreement, but only by providing written notice to the other Party, and only after all Order Forms and SOW have expired or been terminated in accordance with this Agreement (e.g., Section 6.2.2), or concurrently therewith.

6.2.2 Termination of Order Form or SOW.  Either Party may terminate any Order Forms and/or SOW in accordance with their respective terms. If not specified in the applicable Order Form or SOW, then subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding warranties and Service Credits): either Party may terminate any Order Forms or SOW for cause upon written notice if the other Party fails to cure any material breach thereof, or any material breach of this Agreement, within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach. Either Party may terminate this Agreement, but only by providing written notice to the other Party, and only after all Order Forms and SOW have expired or been terminated in accordance with this Agreement (e.g., Section 6.2.2), or concurrently therewith.

6.3   EFFECT OF TERMINATION

6.3.1 Effect of Expiration or Termination of Agreement.  Sections 1, 2, 4.2, 5.3, 6, 8, 9, 10, 11, 12.3, 13, 14, 15, 16 and 17 of this Agreement will survive any expiration or termination of this Agreement. The applicable Order Forms and SOW may identify additional terms that will survive any expiration or termination of this Agreement.

6.3.2 Effect of Termination of Order Form or SOW.

Subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding Compliance with Privacy Laws, Indemnification, Warranties and Service Levels): (a) if Customer terminates an Order Form, SOW and/or this Agreement for uncured material breach in accordance with this Agreement, Customer will be entitled to a refund, on a pro rata basis, of any Fees paid thereunder that are unused as of the termination effective date; and (b) if Zuora terminates an Order Form, SOW and/or this Agreement for uncured material breach in accordance with Section 6.2, all amounts owed by Customer thereunder will become due and payable.

7. ORDER PROCESS

Customer orders the Zuora Service via one or more Order Forms, and Customer may also order Zuora’s Professional Services via one or more SOW.  Customer’s Affiliates are also permitted to sign Order Forms and/or SOW with Zuora  that are governed by this Agreement, in which case all references to “Customer” in this Agreement shall be interpreted to refer to the relevant Customer Affiliate for purposes of interpreting such Affiliate Order Forms and SOW; provided, however, that Zuora’s maximum liability under Section 14 to Customer and all of its Affiliates who sign Order Forms or SOWs under this Agreement shall not exceed, in the aggregate, the limits stated in Section 14.

7.1 Purchase Orders.  If Customer requires that a purchase order (“PO”) be issued before making payment under an Order Form or SOW, Customer must provide to Zuora such valid PO conforming to the applicable Order Form or SOW in time for Customer to meet its payment obligations. The terms and conditions of any PO (or of any other unilateral Customer document not agreed in writing by authorized representatives of both Parties) will have no effect on the rights or obligations of the Parties, regardless of any failure to object to such terms and conditions.

7.2. Modification of Fees Upon Renewal.  Zuora reserves the right to modify the Fees for its Service under one or more Order Forms, effective upon commencement of the next Renewal Service Term of the relevant Order Form(s), by notifying Customer of such change in writing at least thirty (30) days before the end of the then-current Service Term, unless Customer notifies Zuora in writing, at least twenty (20) days prior to the end of the then-current Service Term, that Customer chooses not to renew such Order Form(s).

8. FEES & PAYMENT

8.1 Payment Details.  Customer must pay all fees and charges in accordance with this Agreement and each mutually executed Order Form and SOW (“Fees”).

Except to the extent otherwise expressly stated in this Agreement or in an Order Form or SOW:

a. all obligations to pay Fees are non-cancelable and all payments are non-refundable;

b. Customer must make all payments without setoffs, withholdings or deductions of any kind;

c. Customer must pay all Fees due under all Order Forms and SOW within thirty (30) days after Customer receives each invoice (invoices are deemed received when Zuora emails them to Customer’s designated billing contact); and

d. all payments must be in U.S. Dollars.

Except to the extent otherwise expressly stated therein, if an applicable Order Form or SOW provides for payment via credit card or electronic money transfer (e.g., ACH), Zuora is permitted to process such payment on the date of Zuora’s invoice.

In accordance with each Order Form: (i) Zuora charges and collects in advance the annual fees for use of the Service based on the edition of the Service subscribed to by Customer, and Customer’s contracted usage volume(s) for the Service (after the Initial Service Term, Zuora will invoice Customer for such annual fees at least thirty (30) days prior to the start of each Renewal Service Term); and (ii) if Customer’s use of the Service exceeds the contracted usage volume(s) specified in the applicable Order Form, Customer will pay the additional usage-based fees as described in such Order Form.

8.2 Taxes.  Zuora’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities in connection with any Order Forms or SOW. Customer is responsible for paying all such taxes, levies, or duties. Customer is not, however, responsible for paying any taxes based solely on Zuora’s income or which do not arise from any Order Form or SOW. If Zuora has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Zuora a valid tax exemption certificate authorized by the appropriate taxing authority.

8.3 Customer Contact Information.  Customer agrees to provide Zuora accurate billing and other contact information for each Order Form and SOW at all times during the Service Term, including the name of Customer’s applicable legal entity, and the street address, e-mail address, name and telephone number of an authorized billing contact. Customer shall update this information within thirty (30) days after any changes, via email to Zuora’s Accounts Receivable team at ar@zuora.com for billing contact information. Customer shall also maintain, at all times during the Service Term, at least one User who is a current employee and is authorized to administer Customer’s use of the Service (e.g., by creating accounts and resetting passwords).

8.4 Consequences of Non-Payment.  If Customer fails to make any payments required under any Order Forms or SOW, then in addition to any other rights Zuora may have under this Agreement or applicable law:

a. Customer will owe Zuora an interest penalty of one and one-half percent (1.5%) per month on any outstanding balance under each delinquent invoice, or the maximum permitted by law (whichever is less);

b. Zuora will be entitled to recover its reasonable attorneys’ fees, other legal expenses (including expert witness fees and expenses on appeal) and other reasonable costs to collect such amounts; and

c. If Customer’s account remains delinquent (with respect to payment of a valid invoice) for thirty (30) days after receipt of a delinquency notice from Zuora, which may be provided via email to Customer’s designated billing contact, Zuora may temporarily suspend Customer’s access to the Service for up to ninety (90) days to pursue good faith negotiations before pursuing termination in accordance with Section 6. Customer will continue to incur and owe all applicable Fees irrespective of any such Service suspension based on such Customer delinquency.

9. NON-PRODUCTION USAGE

From time to time, to the extent applicable, Customer may use the Service for evaluation, testing or other purposes where such use is outside a Production Tenant (e.g., by using an API Sandbox Tenant or another non-production service environment). By using the Service on such a non-production basis, Customer accepts the Service on an “as is” basis and acknowledges Zuora provides no express or implied warranties, indemnities or security commitments, and Zuora will have no liability, in connection with such use, notwithstanding anything to the contrary in this Agreement.

10. THIRD PARTY INTERACTIONS

To the extent use of the Service requires use of any third party products or services not made available by Zuora (e.g., Oracle Java, Adobe Acrobat, Salesforce CRM, Amazon Web Services and/or a Web browser), Customer may be required to separately purchase/license such products or services directly from the applicable third party. In addition, in connection with using the Service, Customer may choose to purchase/license certain other third party products and/or services made available by Zuora. Any third party products and services (even if included on an Order Form or otherwise made available via a Zuora-controlled site) and any terms associated therewith (even if presented by Zuora) are between Customer and the relevant third parties. Zuora does not support, license, control, endorse or otherwise make any representations or warranties regarding any third party products or services under this section, and in no event will Zuora have any liability whatsoever in connection therewith.

11. PROFESSIONAL SERVICES

If Customer wishes to purchase any training, implementation or other professional services from Zuora relating to the Service (“Professional Services”), the Parties will mutually execute one or more separate SOW containing the relevant terms and conditions. Zuora Professional Services are separate and apart from the Service, and neither Party’s obligations in connection with the Service are dependent in any way on any Professional Services. Except to the extent expressly set forth to the contrary in any applicable SOW, the following provisions will apply to all SOW:

a. As between Customer and Zuora, Customer will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Customer without any contribution by Zuora and provided to Zuora under the SOW. Customer grants Zuora a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, distribute, create derivative works of, and otherwise use such Customer-owned materials in connection with providing the Service during the Term of this Agreement and otherwise performing its obligations under this Agreement;

b. As between Customer and Zuora, Zuora will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Zuora (either alone or jointly with Customer or others) and provided to Customer under the SOW, and any derivative works thereof, excluding any incorporated Customer Confidential Information (collectively, “Zuora PS Materials”); and

c. Subject to the terms of this Agreement, Zuora grants Customer a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, create derivative works of, and otherwise use internally the Zuora PS Materials in connection with the Service during the Term of this Agreement.

Nothing in this Agreement will prohibit, restrict or limit (i) Zuora from performing similar Professional Services for any third party, or (ii) Customer from hiring any third party to perform similar Professional Services (though Customer is not permitted to give any direct competitor of Zuora access to the Service or any Zuora PS Materials without Zuora’s prior written consent).

12. WARRANTIES & DISCLAIMERS

12.1 Mutual Warranties.  Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms.

12.2 Additional Zuora Commitments.  Zuora further represents and warrants that:

a. It will use reasonable technical means to screen for and detect disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots and other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data;

b. The Service will perform substantially in accordance with the relevant Service description found at https://knowledgecenter.zuora.com?cid=EDI-0001 (except for RevPro, for which the relevant Service description is found at https://knowledgecenter.zuora.com/Zuora_RevPro/Zuora_RevPro_Overview), or such other location as Zuora shall, from time to time, advise Customer, under normal use and circumstances; and

c. It will make reasonable efforts to notify Customer, at least thirty (30) days in advance via Zuora’s Normal Communication Channels, of any scheduled changes Zuora believes are likely to have a material, adverse impact on Customer’s use of the Service (“Material Changes”). (As a multi-Tenant SaaS vendor, Zuora reserves the right to make enhancements and other changes to the Service, including occasional deprecation and removal of certain features and functionality, subject to the Service warranty in Section 12.2(b).)

If Zuora breaches any warranties in this Section 12.2, Customer’s exclusive remedy and Zuora’s sole obligation will be for Zuora to make reasonable efforts to correct the non-conformity or, if Zuora is unable to correct the non-conformity within sixty (60) days after receipt of Customer’s written notice, for Customer to terminate the applicable Order Form(s) and receive a refund, on a pro rata basis, of any annual fees prepaid under such Order Form(s) that are unused as of the termination effective date.

12.3 Warranty Disclaimers.  EXCEPT TO THE EXTENT EXPRESSLY STATED IN SECTIONS 5 OR 12 OF THIS AGREEMENT OR IN EXHIBIT A HERETO: (A) ZUORA AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND (B) ZUORA AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR ANY PROFESSIONAL SERVICES ARE OR WILL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY PARTICULAR RESULTS, OR BE TIMELY OR SECURE. ZUORA AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY PROFESSIONAL SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY ZUORA.

THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. ZUORA IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY ZUORA.

CUSTOMER AGREES THAT ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES. MORE GENERALLY, IN ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS RELYING ON ANY OTHER COMMITMENTS, STATEMENTS OR OTHER MATTERS NOT EXPRESSLY ADDRESSED IN THIS AGREEMENT, AN ORDER FORM OR AN SOW.

13. INDEMNIFICATION

13.1  By Zuora.  Zuora will defend Customer, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on an allegation that use of the Service in accordance with this Agreement and the applicable Order Form(s) infringes a copyright in any country or a patent of the U.S.A., a member state of the European Union, Canada or Australia (collectively, “Claims”). Zuora will also indemnify Customer and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) awarded by a court of competent jurisdiction in a final, non-appealable judgment, or agreed in a written settlement agreement agreed in writing by Zuora, arising out of such Claims.

If (a) any aspect of the Service is found by a court in a final, non-appealable judgment, or in Zuora’s reasonable opinion is likely to be found by a court in a final, non-appealable judgment, to infringe upon a third party Intellectual Property Right, or (b) the continued use of the Service is enjoined, then Zuora will promptly and at its own expense: (i) obtain for Customer the right to continue using the Service in accordance with this Agreement and the applicable Order Form(s); (ii) modify the item(s) in question to no longer be infringing; or (iii) replace such item(s) with a non-infringing functional equivalent. If, after reasonable efforts, Zuora determines in good faith that options (i), (ii) and (iii) are not feasible, Zuora will remove the infringing item(s) from the Service and refund to Customer on a pro rata basis any Fees paid by Customer for such infringing element(s) that are unused as of the removal date.

Zuora will have no obligation or liability for any Claim under this section to the extent arising from: (x) the combination, operation or use of the Service with any product, device, software or service not supplied by Zuora to the extent the combination creates the infringement; (y) the unauthorized alteration or modification by Customer of the Service, or (z) Zuora’s compliance with Customer’s designs, specifications, requests, or instructions in providing Professional Services to the extent the Claim is based on such compliance.

13.2 By Customer.  Customer will defend Zuora, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on a breach by Customer of Section 4 (Customer Responsibilities) of this Agreement. Customer will also indemnify Zuora and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) awarded by a court of competent jurisdiction in a final, non-appealable judgment, or agreed in a written settlement agreement agreed by Customer in writing, arising out of the third party claims described in this section.

13.3 Requirements for Indemnification.

Each Party’s respective defense and indemnity obligations under Sections 13.1 and 13.2 are contingent upon the indemnified Party: (a) promptly giving notice of the third party claim to the defending/indemnifying Party once the claim is known; (b) giving the defending/indemnifying Party sole control of the defense and settlement of the claim and not compromising or settling the claim without the defending/indemnifying Party’s approval (though the defending/indemnifying Party must not settle such claim unless the settlement unconditionally releases the other Party of all liability and does not adversely affect the other Party’s business or service in a material manner); and (c) providing appropriate information and reasonable cooperation to the defending/indemnifying Party in connection with the claim.

THE FOREGOING ARE THE DEFENDING/INDEMNIFYING PARTY’S SOLE OBLIGATIONS, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDIES WITH RESPECT TO INDEMNIFICATION AND THE MATTERS ADDRESSED IN THIS SECTION 13.

14. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BUT ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

14.1 EXCEPT FOR SUMS DUE ZUORA UNDER APPLICABLE ORDER FORMS AND SOW, AND EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), 4.3 (CUSTOMER PCI RESPONSIBILITIES) AND 13 (INDEMNIFICATION), NEITHER PARTY’S TOTAL AGGREGATE LIABILITY OR RESPONSIBILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORMS OR SOW WILL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY;

14.2 EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), 4.3 (CUSTOMER PCI RESPONSIBILITIES) AND 13 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE OR OTHERWISE OBLIGATED TO THE OTHER PARTY OR ANYONE ELSE FOR ANY LOSS OF PROFITS, REVENUE, OPPORTUNITIES, ECONOMIC ADVANTAGE, GOODWILL, DATA OR USE, OR FOR ANY INDIRECT, CONSEQUENTIAL, HYBRID, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMAINING AVAILABLE REMEDY FAILS ITS ESSENTIAL PURPOSE; AND

14.3 THE TERMS OF SECTION 14 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.

THE PROVISIONS OF SECTION 14 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND ZUORA, AND THE FEES CHARGED FOR THE SERVICE ARE BASED ON THIS ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.

15. CONFIDENTIALITY

15.1 Definition.  As used in this Agreement, Confidential Information” means information and materials provided by the disclosing Party (“Discloser”) to the Party receiving such information or materials (“Recipient”) that (a) are identified as confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt, Customer’s Confidential Information includes, without limitation, the Customer Data and Customer’s non-public business plans, and Zuora’s Confidential Information includes, without limitation, all pricing terms offered to Customer under any Order Form, Zuora’s non-public business plans, all non-public aspects of the Zuora Technology, and the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

15.2 Purpose.  Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the “Purpose”). For the avoidance of doubt, use of Confidential Information in an aggregated and anonymized manner that does not include Personal Data is not prohibited.

15.3 Permitted Disclosures and Obligations.  Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s Affiliates, contractors and consultants who (a) need to know such information in order to fulfill the Purpose, and (b) are bound by confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully responsible for its respective Affiliates’, contractors’ and consultants’ compliance with this Agreement). Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Further, neither Party may disclose publicly the existence or nature of any negotiations, discussions or consultations in progress between the Parties without the prior written consent of the other Party.  Recipient and its Affiliates, contractors and consultants who receive Confidential Information hereunder must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary for the Purpose; (ii) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects received from Discloser under this Agreement that embody Confidential Information; (iii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably assist Discloser in remedying any such unauthorized use or disclosure. For the avoidance of doubt, a security breach involving Customer Data will be governed by Section 5.2, and not Section 15.

15.4 Exclusions.  Recipient’s obligations under Section 15 will not apply to any Discloser Confidential Information that Recipient can prove: (a) is or becomes part of in the public domain through no fault of Recipient; (b) is rightfully in Recipient’s possession free of any confidentiality obligation; (c) was independently developed by Recipient without use of any Discloser Confidential Information; or (d) is communicated by Discloser to an unaffiliated third party free of any confidentiality obligation. A disclosure by Recipient of any Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by law, or (iii) necessary to establish the rights of either Party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, Recipient gives Discloser prompt notice and reasonable cooperation so Discloser may seek to prevent or limit such disclosure.

15.5 Ownership and Destruction of Confidential Information.  As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient will (a) destroy or return to Discloser all Confidential Information and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic backup copies for so long as such Confidential Information is retained.

15.6 Export. Exchange of Confidential Information under this Agreement is subject to all applicable export laws and regulations. Except to the extent permitted by a separate written agreement, the Parties will not disclose any information requiring an authorization to be exported. Each Party also specifically agrees to comply with all applicable laws, regulations, orders and sanctions relating to prohibitions or limitations on relationships or transactions with prohibited countries or individuals (e.g., those administered by the U.S. Commerce or Treasury Departments).

15.7 Confidentiality Period.  Recipient’s obligations with respect to Discloser’s Confidential Information under Section 15 will remain in effect for the term of this Agreement and for three (3) years after any expiration or termination of this Agreement.

16. GENERAL

16.1 Governing Law and Dispute Resolution.  This Agreement is governed by Delaware law and controlling United States federal law, without regard to conflicts of law provisions of any jurisdiction. The Service is a service, not a good, and is not subject to the Uniform Commercial Code, the Uniform Computer Information Transactions Act, or the United Nations Convention on the International Sale of Goods. Any disputes, actions, claims or causes of action arising out of or relating to this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, USA. However, other than with respect to seeking injunctive relief in connection with matters that qualify for such an extraordinary remedy under applicable law, neither Party may initial any litigation against the other Party until after providing clear written notice of its intention to do so and first making a good faith effort to resolve the dispute informally through escalation to an appropriate level of executive management of both Parties for at least thirty (30) days after providing such notice.

16.2 Assignment & Other Transfers.  Neither Party may assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that upon written notice to the other Party, either Party may assign or otherwise transfer this Agreement, along with all associated Order Forms and SOW (and all its rights and obligations thereunder), (a) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of most or all of its assets, or other change of control, or (b) to its Affiliate.

Notwithstanding anything to the contrary in this section, however: (i) in the event of any permitted transfer by Customer under this section to a direct competitor of Zuora, Zuora will have the right to terminate this Agreement, including all associated Order Forms and SOW, for cause under Section 6.5  (in the event of such a termination, Zuora will promptly refund to Customer, on a pro rata basis, all Fees prepaid by Customer under all Order Forms and SOW then in effect that are unused as of the termination effective date); and (ii) Customer is not allowed to transfer to a successor-in-interest or Affiliate a subscription to the Growth Edition (or other name if replaced) version of the Service if Zuora otherwise would not allow the proposed transferee to subscribe to that version, e.g., because Zuora believes the size or complexity of the proposed transferee’s business warrants a subscription to the Enterprise Edition or Nine Edition (or other name if replaced) version of the Service.

In the event of a transfer by Customer that is permitted under this section, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under applicable Order Forms prior to the transfer (e.g., any transaction volume terms, and any limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this section is void. Subject to the terms of this section, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and transferees.

16.3 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than payment obligations) due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected Party’s performance will be excused for the resulting period of delay or inability to perform.

16.4 Marketing. Zuora is permitted to identify Customer as a Zuora customer on Zuora’s website and marketing materials and, within thirty (30) days after Customer goes live on the Service, Customer and Zuora will also issue a mutually agreed joint public announcement relating thereto.

16.5 Independent Contractors.  The Parties are independent contracting parties. Neither Party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.

16.6 Notices.  All legal notices (e.g., notice of termination of this Agreement or an Order Form based on an alleged material breach) required under this Agreement must be delivered to the other Party in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified U.S. mail (requiring signature) to the other Party’s corporate headquarters, Attention: Legal Department. With respect to all other notices, Customer may email Zuora at notices@zuora.com, and Zuora may email Customer’s billing contact identified on the applicable Order Form(s) or SOW. Either Party may change its notice address by giving written notice to the other Party.

16.7 Anti-Corruption.  Customer acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any Zuora employee, representative or agent in connection with this Agreement. Customer will use reasonable efforts to promptly notify Zuora at legal@zuora.com if Customer becomes aware of any circumstances that are contrary to this acknowledgment.

16.8 Government Users.  If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Service constitutes software and documentation provided as “Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed made accessible to U.S. government Users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.

16.9 Execution. This Agreement may be signed electronically and in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.

16.10 Entire Agreement.  This Agreement, together with any applicable Order Forms and SOW (including any other terms referenced in any of those documents), comprises the entire agreement between Customer and Zuora regarding the subject matter of this Agreement, supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter, and may only be modified by a document signed by authorized representatives of both Parties.

17. DEFINITIONS

As used in this Agreement:

“Affiliatemeans a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, “control” means direct or indirect  ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;

API Sandbox Tenant” means a Non-Production Tenant identified as an “API Sandbox Tenant” (or its equivalent, if renamed) on the applicable Order Form. “Non-Production Tenant” means a Tenant the use of which is restricted to processing non-production data solely for evaluation and/or testing. “Tenant” means a single, discrete operational environment within Zuora’s SaaS environment in which Customer may use the Service. “Production Tenant” means a Tenant that Customer is permitted to use to process live Customer Data for production use in accordance with the applicable Order Form;

Content” means the audio and visual information, documentation, software, products and services contained in or made available via the Service, other than Customer Data and Customer Confidential Information;

Customer Data” means any data, information or material received by the Service from Customer or Customer’s Users in the course of accessing or using the Service;

Intellectual Property Rights” means rights under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide;

Normal Communication Channels” means the online channels through which Zuora normally communicates important information to its customers, e.g., Zuora’s online Knowledge Center and community site, and/or the email address(es) provided by Customer. (Customer must opt-into Zuora’s online community site to receive certain important information regarding such changes and to take other required action relating to use of the Service.);

“Personal Data” means information relating to a natural person as such term is defined by the applicable Privacy Laws, including the General Data Protection Regulation (EU) 2016/679 (GDPR);

“Privacy Laws” means all laws and regulations regarding data privacy and transmission of Personal Data that apply to Zuora’s provision of the Service to Customer (e.g., storing and processing Customer Data in connection with the Service);

Service” means (i) the Zuora® SaaS service for subscription relationship management, accessible via https://www.zuora.com and/or another Web site or IP address designated by Zuora, and as further described at https://knowledgecenter.zuora.com?cid=EDI-0001; and/or (ii) the RevPro® service for revenue management automation, accessible via https://www.zuora.com and/or another Web site or IP address designated by Zuora, and as further described at https://knowledgecenter.zuora.com/Zuora_RevPro/Zuora_RevPro_Overview, one or both of which Zuora provides to Customer under an Order Form to this Agreement.  “Service” also includes, without limitation, all other components of the applicable Service, and all related Content and Zuora Technology;

SOW” means Statement(s) of Work, Work Authorization(s) or other contract(s) under which Zuora provides its Professional Services, if any;

“Transaction” and “Transaction Record” both mean, with respect to RevPro, each discrete transaction record input into RevPro, originating from Customer’s internal financial systems, including contract lines, order lines and invoice lines.  For purposes of clarification, the Parties agree that standalone invoices that do not reference to a sales order are counted as part of Transaction Record Volume but invoices which reference a sales order are not counted as part of Transaction Record Volume, as stated in the applicable Order Form. For the avoidance of doubt, if the identical transaction record is input into the Service via multiple forms (e.g. the identical transaction record appears on an invoice and on an order and/or contract) it shall only be counted as one single Transaction Record.  Customer may input Transaction Records into RevPro that are (a) not Completed as of the Effective Date.  For purposes of this Agreement, the term “Completed” means that the revenue for the Transaction Record has been 100% recognized for accounting purposes.  Twelve (12) months after a Transaction Record is Completed, Zuora will offload it to archival storage within the production system that will be available to Customer during the term of this Agreement on a “read-only” basis.

User(s)” means Customer’s customers, employees, representatives, consultants, contractors and agents who have been authorized by Customer to use the Service; and

Zuora Technology” means all of Zuora’s and its licensors’ proprietary technology that Zuora makes available to Customer as part of or in connection with the Service (including, without limitation, any and all software, hardware, products, processes, APIs, algorithms, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information).

Exhibit A

(SUPPORT AND SERVICE LEVEL AGREEMENT)

This is Exhibit A to Zuora’s Master Subscription Agreement (the “Agreement”). Capitalized terms not defined herein have the meaning indicated in the Agreement and its associated Order Form(s). For purposes of clarity, (i) Sections I-V of this Exhibit do not apply to and specifically exclude RevPro, and (ii) Section VI of this Exhibit applies exclusively to RevPro.

I. SUPPORT CONTACTS, ZUORA COMMUNITY & CUSTOMIZATIONS:

A. For “Growth Edition”-level support (or the equivalent, if renamed), Customer will appoint up to five (5) designated support contact persons knowledgeable regarding the Service for purposes of contacting Zuora’s support team about technical support issues with the Service, including reporting such issues via Zuora’s designated support portal / channel.

B. For “Enterprise Edition”-level support (or the equivalent, if renamed), Customer will appoint up to twenty (20) designated support contact persons knowledgeable regarding the Service for purposes of contacting Zuora’s support team about technical support issues with the Service, including reporting such issues via Zuora’s designated support portal / channel.

C. For “Nine Edition”-level support (or the equivalent, if renamed), Customer will appoint a reasonable number (though there is no limit on the number for Nine Edition-level support) of designated support contact persons knowledgeable regarding the Service for purposes of contacting Zuora’s support team about technical support issues with the Service, including reporting such issues via Zuora’s designated support portal / channel.

D. Customer must opt-into Zuora’s online community site (i) to receive certain important information about updates and other changes to the Service and about the subprocessors Zuora uses to provide the Service.   Zuora will provide reasonable notice of any updates to its subprocessors through its Normal Communication Channels.

E. The commitments under this exhibit do not apply to customizations, enhancements or other non-standard modifications to the Service requested or made by Customer.

II. SUPPORT FOR ZUORA NON-PRODUCTION TENANTS (FOR ALL CUSTOMERS AND ALL EDITIONS):

A. RESPONSE TIMES:  For all support issues relating to Zuora Non-Production Tenants, Zuora will make  efforts to respond promptly (via Zuora’s Normal Support Channels, defined below) to all tickets submitted through Zuora’s designated support portal / channel, in any event within two (2) Business Days after receipt. If Zuora fails to meet this response time commitment, Customer’s exclusive remedy and Zuora’s sole obligation will be: (a) for Zuora to make  efforts to respond promptly after Customer notifies Zuora that it failed to meet this response time commitment; and (b) if Zuora fails to meet this response time commitment five (5) times during a 3-month period, for Customer to terminate the applicable Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Non-Production Tenant(s) that are unused as of the termination effective date.

Business Day” means Monday through Friday, based on the time zone of Customer’s primary place of business.

Zuora’s Normal Support Channels” means Zuora’s online support portal, Zuora’s online community site, the “Trust” support status page located at http://trust.zuora.com, and emails sent to the contact duly designated by Customer.

B. SERVICE LEVELS & SERVICE CREDITS:  No Service Level or Service Credit commitments apply to Non-Production Tenants.

III. SUPPORT FOR PRODUCTION TENANTS – ZUORA GROWTH EDITION CUSTOMERS:

For “Growth Edition”-level support (or the equivalent, if renamed):

A. RESPONSE TIMES:  For all support issues relating to Zuora Production Tenants, Zuora will make  efforts to respond promptly (via Zuora’s Normal Support Channels) to all tickets submitted through Zuora’s designated support portal / channel, in any event within two (2) Business Days after receipt. If Zuora fails to meet this response time commitment, Customer’s exclusive remedy and Zuora’s sole obligation will be: (a) for Zuora to make  efforts to respond promptly after Customer notifies Zuora that it failed to meet this response time commitment; and (b) if Zuora fails to meet this response time commitment three (3) times during a 3-month period, for Customer to terminate the applicable Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Production Tenant(s) that are unused as of the termination effective date; and

B. SERVICE LEVELS & SERVICE CREDITS:  No Service Level or Service Credit commitments apply to the Production Tenants.

IV. SUPPORT FOR PRODUCTION TENANTS – ZUORA ENTERPRISE EDITION AND NINE EDITION CUSTOMERS:

For “Enterprise Edition”-level and “Nine Edition”-level support (or the equivalent, if renamed), Zuora will provide the following technical support for all Production Tenants:

A. RESPONSE TIMES:  For all support issues relating to Zuora Production Tenants, Zuora will respond in accordance with Table 1:

TABLE 1

ISSUE SEVERITY LEVEL**

RESPONSE COMMITMENT***

0

Fifteen (15) minutes

(seven days per week)

1

Two (2) Hours

(seven days per week)

2

Six (6) Hours

(seven days per week)

3

Two (2) Business Days

**The Issue Severity Levels are defined in Section IV-A-1 below.

***”Response Commitment” is the maximum time within which Zuora will respond (via Zuora’s Normal Support Channels) to each support issue reported by Customer.

1. Issue Severity Level Definitions

Severity Level 0 (Service Unavailability): Customer experiences complete loss of Service, meeting the definition of “Unavailable” in Section IV-B-1 below.

Severity Level 1 (Severe Issues): Customer experiences a severe defect or configuration issue with the Service that materially impacts Customer’s business in a negative way (excluding Service failures that qualify as Severity Level 0).

Severity Level 2 (Delayed Performance): Customer experiences transactional and operational slowness in the Service (excluding Service issues that qualify as Severity Level 0 or 1).

Severity Level 3 (Routine Requests):  Routine Service support requests relating to issues that don’t qualify as Severity Level 0, 1 or 2.

2. Assignment of Severity Levels: Zuora will determine the Severity Level assigned to each support issue in its reasonable discretion, but taking into consideration the Severity Level input by Customer.

3. Remedies for Breach of Response Time Commitments: If Zuora fails to meet the response time commitments in Table 1 above, Customer’s exclusive remedy and Zuora’s sole obligation will be: (a) for Zuora to make efforts to respond promptly after Customer notifies Zuora that it failed to meet the relevant response time commitment; and (b) if Zuora fails to meet the relevant response time commitments three (3) times during a calendar quarter, for Customer to terminate the applicable Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Production Tenant(s) that are unused as of the termination effective date.

B. SERVICE LEVELS & SERVICE CREDITS:

1. Uptime Commitment

The Quarterly Uptime Percentage for the Service will be ninety-nine and nine-tenths percent (99.9%) (the “Uptime Commitment”). Subject to the exclusions described in Subsection IV-B-2 below, “Quarterly Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any quarterly billing cycle (i.e., 3 calendar months) in which Customer’s Production Tenant(s) is(are) Unavailable out of the total number of minutes in that quarterly billing cycle. “Unavailable” and “Unavailability” mean that, in any 1-minute period, all connection requests received by Customer’s Production Tenant(s) failed to process (each a “Failed Connection”); provided, however, that no Failed Connection will be counted as a part of more than one such 1-minute period (e.g. a Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period 12:00:30-12:01:29). The Quarterly Uptime Percentage will be measured based on the industry standard monitoring tools Zuora uses.

2. Exclusions from Quarterly Uptime Percentage

Notwithstanding anything to the contrary in this exhibit, any Service Unavailability issues resulting from any of the following will be excluded from calculation of Quarterly Uptime Percentage:

2.1 Regularly scheduled maintenance of the Service that does not exceed six (6) hours per 3-month period and is communicated by Zuora at least twenty-four (24) hours in advance via Zuora’s Normal Support Channels. (Zuora typically schedules such regularly scheduled maintenance once per month.);

2.2 any failures of the Zuora Standard and Custom Reporting Services;

2.3 any issues with a third party service to which Customer subscribes (e.g. salesforce.com, Avalara, or a payment gateway);

2.4 any problems not caused by Zuora that result from (a) computing or networking hardware, (b) other equipment or software under Customer’s control, (c) the Internet, or (d) other issues with electronic communications;

2.5 Zuora’s suspension or termination of the Service in accordance with the Agreement and/or its associated Order Form;

2.6 exceeding Zuora’s published Concurrent Request Limits described at:

http://knowledgecenter.zuora.com/BB_Introducing_Z_Business/Policies/Concurrent_Request_Limits

2.7 software that has been subject to unauthorized modification by Customer;

2.8 negligent or intentional misuse of the Service by Customer; or

2.9 “Beta” or “limited availability” products, features and functions identified as such by Zuora.

Customer may elect to use certain billable Zuora Professional Services to resolve issues associated with the excluded areas listed in this Subsection IV-B-2. Such Professional Services may require Customer to complete a network assessment, and/or give Zuora access to Customer’s network, in order to diagnose the issue.

3. Service Credits

If Zuora does not meet the Uptime Commitment with respect to any particular calendar quarter (i.e., the Quarterly Uptime Percentage was below 99.9%), and Customer is negatively impacted thereby, then as Customer’s sole and exclusive remedy, and only upon Customer’s written request in accordance with Section 4 below:

Zuora will provide to Customer, for each calendar month in such quarter during which the Monthly Uptime Percentage was below 99.9% a service credit (“Service Credit(s)”) equal to the annual fees paid by Customer for the Service during that month under all affected Order Forms then in effect (but excluding any Professional Services fees).

For purposes of the preceding sentence, “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any billing cycle for a calendar month during which Customer’s Production Tenant(s) is(are) Unavailable out of the total number of minutes in that monthly billing cycle. The Monthly Uptime Percentage will be measured based on the industry standard monitoring tools Zuora uses.

4. Service Credit Process

To receive a Service Credit, Customer must submit a request by sending an email to support@zuora.com. To be eligible, the credit request must: (a) include the dates and times of each Unavailability incident that Customer claims to have experienced, along with sufficient details to enable Zuora to verify the information; and (b) be received by Zuora within thirty (30) Business Days after the last Failed Connection that is part of Customer’s Service Credit claim. If Customer is past due with respect to any payment obligation, or otherwise in material breach of any contractual obligation to Zuora, Customer is not eligible for any Service Credits. Service Credits will be issued to Customer within sixty (60) days after Zuora confirms that Customer qualifies for the Service Credit under this section.

V. ADDITIONAL SUPPORT FOR PRODUCTION TENANTS – ZUORA NINE EDITION CUSTOMERS ONLY:

For “Nine Edition”-level support (or the equivalent, if renamed), Zuora will also provide the following additional technical support for all Production Tenants:

A. Advanced Salesforce Development Support:  If Zuora determines it is likely that an issue Customer reports to Zuora was caused by Salesforce’s platform, Zuora’s support team will make efforts to help Customer and Salesforce resolve the issue, free of additional charge;

B. Advanced Payment Gateway Support:  If Zuora determines it is likely that an issue Customer reports to Zuora was caused by Customer’s chosen payment gateway(s), Zuora’s support team will make efforts to help Customer and the payment gateway(s) resolve the issue, free of additional charge; and

C. Customization Support:  If Zuora determines it is likely that an issue Customer reports to Zuora was caused by a customization to the Zuora Service, Zuora’s support team will make efforts to help Customer resolve the issue, free of additional charge.

VI.  SUPPORT FOR REVPRO (ANY REFERENCE TO SERVICE IN THIS SECTION VI MEANS REVPRO ONLY)

1. Support. Customer may initiate Help Desk Tickets through a customer support online portal maintained by Zuora. Help Desk Tickets may cover Service errors, malfunctions or other issues. Zuora will respond to Help Desk Tickets and provide Customer with technical support services in accordance with this Section VI.  Zuora will handle Priority 1 and 2 Level issues on a 24/7/365 basis.  Customer may also make telephone support requests during business hours (i.e., 9:00 a.m. to 5:00 p.m. PST), and during non-business hours to an emergency telephone support service desk that will notify Zuora’s on-call technical support engineer of the Help Desk Ticket.

2. Priority Levels. Zuora will assign a “Priority Level” to each Help Desk Ticket, based on the following categories:

(a) Priority Level 1 (Critical Problem) — A failure that (a) causes the Service to fail completely, (b) requires Customer to constantly re-login to the Service, (c) results in irretrievable corruption or loss of data or the failure of a critical function of the Service, or (d) keeps Customer from performing its critical business functions in a timely manner (e.g., inability to close its books at Customer’s normal scheduled time).

(b) Priority Level 2 (Serious Problem) — A problem prevents Customer from using a documented function of the Service that materially prevents or inhibits Customer from accomplishing the task(s) for which it was designed.

(c) Priority Level 3 (non-critical loss of functionality) – The Service does not work explicitly as it is documented, but the problem does not cause a failure of critical functionality or a critical data error.

3. Service Level Response Time Requirement. Zuora will respond to a Help Desk Ticket according to its Priority Level, as follows:

(a) Priority Level 1 Issues. Zuora will respond as soon as possible but not longer than sixty (60) minutes from receipt of Customer’s Help Desk Ticket and, within 8 hours of collecting the necessary information, provide a root cause analysis the reported error or malfunction. Based on the complexity of the problem, Zuora will provide a resolution or temporary work-around (hereafter “Resolution”) as soon as possible.  Until Zuora has provided a Resolution, Zuora will continue to assign a senior software engineer fully dedicated with highest priority to isolate, diagnose and identify a Resolution. If a Resolution is not provided within 2 business days, and until the Resolution is provided, Zuora will notify Customer’s designated technical representative every 12 hours of its activities to find a Resolution.

(b) Priority Level 2 Issues. Zuora will respond within four (4) hours from receipt of Customer’s Helpdesk Ticket and, within forty-eight (48) hours of collecting necessary information, provide a root cause analysis of the reported error or malfunction. Customer and Zuora will agree to a timeframe to isolate and diagnose the issue and provide a Resolution based upon the circumstances of the issue and its effect on Customer’s use of the Service. Zuora will use commercially best efforts to provide such Resolution within a period of time that meets Customer’s business needs but in no event will such timeframe exceed seven (7) days.

(c) Priority 3 Level Issues.  Zuora will respond within one (1) working day of receipt of Customer’s Help Desk Ticket. Zuora will collect the required information within ninety-six (96) hours. Customer and Zuora will agree to a timeframe to isolate and diagnose the issue and provide a Resolution based upon the circumstances of the issue relative to the effect on Customer’s use of the Service. Zuora will provide a Resolution within a time frame that meets Customer’s business needs. If the issue is documentation related, Zuora may choose to correct the documentation on its next documentation release.

4. Service Updates, Major and Minor Releases. Zuora will periodically update the Service to correct errors or bugs (“Patches”), or to deliver Service enhancements, (Updates and Major and Minor Releases (Major and Minor Releases are each a “New Release”). Patches may be critical or non-critical. Updates and Minor Releases provide improved or enhanced functionality or performance and may also include certain Patches, while Major Releases provide new features and/or functionality and may contain new products, technology or modules; however, Major Releases do not include new products, technology, modules or functionality which Zuora licenses separately from the Service licensed by Customer or for which Zuora charges a separate fee.  Zuora will use reasonable efforts to provide Customer with at least a one (1) month written notice prior to the commercial release of a Patch, Update, Minor or Major Release. Patches, Updates, Minor and Major Releases are part of Support and are provided at no additional charge to Customer.  If Customer requests Zuora to develop custom software under an SOW, and later a Patch, Update or New Release will not work with such custom software without further services by Zuora, then Zuora may charge a fee for those services.  Any Patches, Updates, New Releases or modifications to the Service provided to Customer under Support will be considered the “Service.”

5. Timing for the Installation of Patches, Updates and New Releases. Zuora will use reasonable efforts to accommodate Customer’s request on the timing of the installation of any Patch, Update or New Release, subject to the following: (i) critical Patches will be installed no later than thirty (30) days from commercial release; (ii) non-critical Patches will be installed per Customer’s request, but no later than as part of Zuora’s routine installation cycle for such Patches (generally, monthly); (iii) Minor Releases will be installed no later than the end of the calendar quarter immediately following the quarter in which it was made commercially available; and (iv) Major Releases will be installed no later than the end of the second calendar quarter immediately following the quarter in which it was made commercially available.

6. Availability. The Service will be operational and available for use on a 24×7 basis with an average uptime commitment of 99.9% for each calendar month (Uptime Commitment).

6.1 Scheduled Maintenance.  The calculation of uptime does not include Scheduled Maintenance.  “Scheduled Maintenance” means Zuora’s scheduled routine maintenance for which Zuora notifies Customer at least 7 calendar days in advance.  Zuora will use commercially reasonable efforts not to schedule such maintenance at the end of a calendar quarter.

6.2 Exclusions. In addition to Scheduled Maintenance, the calculation of uptime will not include downtime due to: (a) use of the Service by Customer in a manner not authorized in this Agreement or (b) general Internet problems, force majeure events or other factors outside Zuora’s reasonable control. 

6.3 Service Credits. Zuora will provide to Customer, for each calendar month in such quarter during which the Monthly Uptime Percentage was below 99.9% a service credit (“Service Credit(s)”) equal to the annual fees paid by Customer for RevPro during that month under all affected Order Forms then in effect (but excluding any Professional Services and/or non-RevPro fees).