End User Terms of Service

1. The Platform Application.
   1. Access and Availability.  Eloqua will make the Platform Application available to (a) Customer and (b) individuals who are authorized by Customer to use the Platform Application on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Eloqua at Customer’s request), including employees, consultants, contractors, and agents of Customer (“Users”).  Eloqua hereby grants the Customer and its Users a limited, non-exclusive right to access and use one database instance of the Platform Application, in each case during the Subscription Term and in accordance with this Agreement (including the specific access rights and limitations set forth in the Order Form) (the “Subscription”).  Customer’s Subscription is not dependent on any future functionality or features (or any public comments or other disclosure made by Eloqua with respect thereto).  “Platform Application” means the online, website application provided by Eloqua via http://www.eloqua.com or at such other designated URL as Eloqua may assign from time to time (including all components thereof, on an individual and collective basis).
       
   2. Subscription Term.  Customer’s initial subscription term for the Platform Application commences on the expected “Subscription Start Date” stated in the Order Form, or, if later or if none is provided in the Order Form, the day User login names and a password are issued to Customer to access the Platform Application under the Order Form (the “Subscription Start Date”).  The Subscription will continue for the “Initial Subscription Term” specified in the Order Form (the “Initial Subscription Term”), and will automatically renew for successive one (1) year periods (each, a “Renewal Term”) at the Platform Application subscription price in effect on a generally commercially available basis at the time of the renewal, based on the actual number of contacts loaded into the Platform Application and product functionality being used by Customer, unless (i) either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the Initial Subscription Term or the Renewal Term then in effect or (ii) the parties mutually execute a separate order form for such renewal, in which case (a) the separate mutually executed renewal order form will be deemed to be an addendum to and become part of the “Order Form” for purposes of this Agreement, and will therefore be governed in part by these Terms and will become a part of this Agreement, (b) the renewal term set forth in such separate mutually executed renewal order form will be deemed to be a “Renewal Term” hereunder and (c) this sentence will continue to apply for further subsequent renewals.  The Initial Subscription Term plus all Renewal Terms are referred to herein as the “Subscription Term”.
       
   3. Money Back Guarantee (SmartStart Program).  Provided that Customer has purchased the SmartStart services (as set forth in the Order Form) and has permitted and cooperated with Eloqua or Eloqua’s designee to complete all of the elements of the SmartStart services described in the Order Form, during the first six (6) months of the Initial Subscription Term, Customer may terminate this Agreement for any reason upon thirty (30) days prior written notice to Eloqua, in which event Eloqua will refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Initial Subscription Term following the effective date of such early termination.
       
   4. Customer Affiliates.  The Subscription is granted solely to the Customer and its Users, and not any other third parties (including not to any of Customer’s Affiliates), except as otherwise set forth in the Order Form.  Customer’s Affiliate’s may purchase Subscriptions to the Platform Application under separate Order Forms, provided that if any Affiliates are granted any right to access or use the Platform Application hereunder, Customer will remain fully responsible and liable for all acts and omissions of such Affiliates and will cause such Affiliates to comply with the provisions of this Agreement.  “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of such party.
       
   5. Customer Number of Contacts.  The Subscription price is based on the number of customer contacts that are uploaded into the Platform Application.  Customer will use best efforts to accurately calculate the number of contacts in its customer data list to purchase the Subscription that most accurately fits its good faith projected number of contacts in its customer data list.  Eloqua and its subcontractors will have the right to monitor or audit remotely the number of customer contacts that are uploaded into the Platform Application.  Unless otherwise stated in the Order Form, (i) if Customer exceeds the number of contacts in the contact band set forth in the Order Form, Eloqua will have the right to charge Customer Eloqua’s then-current subscription fee for such overage, and (ii) for each Renewal Term, Eloqua will have the right to charge Customer Eloqua’s then-current subscription fee that applies to the greater of (a) the number of contacts uploaded by Customer during the term immediately prior to such Renewal Term and (b) the number of contacts in the contact band for which Customer was initially charged for the term immediately prior to such Renewal Term.
       
   6. Service Level Agreement and Support.  Eloqua will provide the general maintenance services and technical support described in the Service Level Agreement (“SLA”) set forth in Schedule A.
       
2. Customer Conduct and Use.
   1. Customer Data; Upload Restrictions.  Customer will retain all right, title and interest in and to all data uploaded by Customer and its Users to the Platform Application that would typically be provided in the planning, execution or analysis of marketing programs, as well as all information generated by Users using of the Platform Application (collectively, “Customer Data”).  Customer will not upload into the Platform Application any financial or medical information of any nature, or any personally identifiable information (e.g., social security numbers, driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers, passwords and credit card numbers), and none of the foregoing will be deemed “Customer Data” hereunder, and Customer will remove such information from the Platform Application immediately or, at its reasonable discretion, Eloqua may purge the same from the Platform Application.  Eloqua will not access Customer Data uploaded by Customer except:  (i) to respond to service or technical problems; (ii) to monitor compliance with this Agreement; (iii) if there has been a violation of this Agreement; (iv) to assess or determine whether the Platform Application is being properly implemented and configured for the service(s) purchased by Customer; (v) at Customer’s request; or (vi) upon Customer’s written consent (including by email). Eloqua may also collect data with respect to Customer’s use of the Platform Application and report on such usage in an aggregated and anonymous manner.
      
   2. Compliance. Customer is responsible for (i) all activities that occur with respect to the Customer account, (ii) its and its Users’ use of the Platform Application and compliance with this Agreement, and (iii) all Customer Data and other data uploaded, stored or accessible by Customer or its Users via or on the Platform Application.  Customer and its Users will comply with all applicable privacy, publicity, data protection, electronic communications, spam and other laws in connection with the use of the Platform Application, including the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), the EU Data Protection Directive.
      
   3. Certain Restrictions. Customer and its Users will use the Platform Application for internal business purposes only as contemplated by this Agreement and will not:
      • tamper with the security of the Platform Application or Eloqua’s other customer accounts;
      • attempt to probe, scan or test the vulnerability of the Platform Application, breach the security or authentication measures of the Platform Application without proper authorization or wilfully render any part of the Platform Application unusable;
      • access data on the Platform Application not intended for the Customer or log into a server or account on the Platform Application that Customer is not authorized to access;
      • lease, distribute, (sub)license, sell or otherwise commercially exploit the Platform Application, use the Platform Application for timesharing or service bureau purposes or otherwise for the benefit of a third party, or make the Platform Application (including any evaluation version) available to a third party other than as contemplated in this Agreement;
      • allow any third party that offers or provides services that are competitive with Eloqua’s products or services to use or access the Platform Application, use or access the Platform Application to develop a product or service that is competitive with Eloqua’s products or services or otherwise copy any ideas, features, functions or graphics of the Platform Application;
      • use the Platform Application in violation of Eloqua’s Acceptable Usage Policy (AUP) available at http://www.eloqua.com/about/AUP/, which is hereby incorporated by reference and made a part of these Terms;
      • reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Platform Application, or modify or create a derivative work of the Platform Application or any related documentation;
      • remove or obscure any product identification, proprietary, copyright or other notices contained in the Platform Application or related documentation;
      • create any link to the Platform Application or frame or mirror any content contained or accessible from the Platform Application; or
      • disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Platform Application (including benchmark tests).
         
   4. Communications.  Customer will be responsible for the content of all communications sent using the Platform Application.  Customer will not use the Platform Application to communicate any message or material that (i) is libellous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law.  Eloqua will use reasonable efforts to provide Customer with the opportunity to remove or disable access to any offending material or content.
   5. Suspension.  In the event of any breach or threatened breach of this Agreement by Customer or any Users (including non-payment of fees), without limiting Eloqua’s other rights and remedies, Eloqua may immediately suspend Customer’s access to the Platform Application.
       
3. Confidentiality
   1. Scope.  "Confidential Information" means all information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party") that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms and conditions of the Order Form are Confidential Information of Eloqua.
       
   2. Restrictions.  The Receiving Party will:  (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. 
       
   3. Exceptions.  If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection.  Further, this Section 3 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. 
       
   4. Equitable Relief.  The Receiving Party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
       
4. Fees; Interest; Taxes.  Customer will pay to Eloqua all of the fees specified in the Order Form, in United States currency, unless otherwise specified in the Order Form.  Such fees are based on Subscriptions purchased, whether or not Customer actually utilizes the service.  All payment obligations are non-cancellable.  Except as expressly set forth in this Agreement, all amounts paid Eloqua are non-refundable.  Fees will be invoiced in advance in accordance with the terms of the Order Form.  Unless otherwise stated in the Order Form, all fees are due within thirty (30) days from the invoice date.  Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection.  All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”).  Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Eloqua.  Customer will not withhold any Taxes from any amounts due Eloqua.  If Eloqua pays any such taxes on behalf of Customer, Customer will reimburse Eloqua for such payments.
    
5. Proprietary Rights.  Customer is permitted to access and use the Platform Application, but this Agreement is not otherwise an agreement for the sale or license of any software.  Customer acknowledges that the Platform Application contains copyrighted and proprietary products and materials, certain components of which are licensed from one or more of Eloqua’s licensors.  Eloqua and Eloqua’s licensors solely and exclusively retain all right, title and interest in and to the Platform Application and related support, documentation and professional services deliverables, and all related and underlying software, interfaces, databases, data models, structures, non-Customer-specific data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto (all of the foregoing, the “Eloqua IP”).  Except for the Subscription granted hereunder, Customer has no right, title or interest in or to the Eloqua IP.
   
   
6. Term and Termination.  
   1. Term and Termination.  This Agreement will be effective during the Subscription Term, unless earlier terminated as follows.  Unless otherwise stated in the Order Form, this Agreement may only be terminated: (i) by a party upon written notice to the other party (A) if the other party breaches a material term of this Agreement that is uncured within thirty (30) days (or, in the case of non-payment, fifteen (15) days) after receipt of notice of such breach; (B) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (C) immediately in the event of a material breach by the other party of Section 2 of these Terms; (ii) by Eloqua pursuant to Section 9(a); or (iii) by Customer during the first six (6) months of the Initial Subscription Term pursuant to Section 1(c).
      
   2. Outstanding Fees.  Customer will pay all fees owed to Eloqua that have accrued up until termination of this Agreement immediately upon such termination.  In addition, if Eloqua terminates this Agreement pursuant to clause (i) of Section 6(a), Customer will pay Eloqua, within thirty (30) days after termination, all unpaid amounts that would have been owed to Eloqua for the remainder of the then-current Subscription Term absent early termination.  However, if Customer terminates this Agreement pursuant to Section 6(a), Eloqua will refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination.
      
   3. Effect of Termination.  Upon any termination of this Agreement, Customer will immediately cease all use of and access to the Platform Application and delete (or, at Eloqua’s request, return) all related documentation, passwords and access codes and any other Eloqua Confidential Information in its possession.  Eloqua will have no liability for any suspension or termination of Customer’s access to the Platform Application, or any termination of this Agreement, provided that it is conducted in accordance with the terms of this Agreement. Upon written request by Customer made within thirty (30) days after termination, Eloqua will provide Customer with temporary access to the Platform Application solely for Customer to retrieve its Customer Data, but not any other purpose.  After such 30-day period, Eloqua will have no obligation to maintain or provide access to such Customer Data and will thereafter, unless legally prohibited and except for archival backup purposes, have the right to delete all such Customer Data in its possession or control.  Sections 3, 4, 5, 6, 7(a), 7(c), 8, 9 and 10 of these Terms will survive any termination or expiration of this Agreement.
       
7. Warranties.
   1. Corporate Authority.  Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement (including these Terms).
       
   2. Functionality Warranty. Eloqua warrants that the Platform Application will operate in substantial conformity with the then current version of the applicable documentation provided by Eloqua. 
       
   3. Disclaimer. Except for the warranties contained in sections 7(a) and 7(b), (i) the platform application, subscription and all other eloqua products and services are provided “as is”, and (ii) eloqua, on behalf of itself and its licensors, specifically disclaims any and all warranties, whether express, implied, statutory or otherwise, including implied warranties of merchantability, title, non-infringement and fitness for any purpose, in each case to the maximum extent permitted by law. The warranties contained in sections 7(a) and 7(b) are solely to and for the benefit of customer and no other third party. Eloqua and its licensors do not warrant that (a) the functions contained in the platform application will meet the customer's requirements, (b) the operation of the platform application will be timely, secure, uninterrupted or error-free, (c) any errors in the platform application can or will be corrected, (d) the platform application or the functions contained therein, or any results of the use thereof (including estimates and optimization of third party advertising), will meet customer’s requirements, including for reliability, availability, timeliness, quality, suitability, accuracy or completeness. Eloqua and its licensors will not be liable or responsible for any delays, interruptions, delivery or service failures, or any other problems or damages arising from customer’s use of the internet, electronic communications or any other systems.
       
8. Limitations of Liability.  Except for liability arising from a party’s indemnification obligations set forth in section 9, in no event will either party be liable for any indirect, special, incidental, consequential, punitive or exemplary damages of any kind, however caused and whether in contract, tort or under any other theory of liability, including loss of business, goodwill, profits, data, sales or revenue, work stoppage or computer failure or malfunction, in each case whether or not the party has been advised of the possibility of such damages. Without limiting the foregoing, in no event will eloqua be liable to customer for any damages, costs, claims or other liabilities (including indemnification obligations) related to or arising out of this agreement, whether in contract, negligence or tort, in excess of the lesser of (i) the total fees paid by the customer for the right to access and use the platform application under this agreement during the twelve (12) month period immediately preceding the event or act giving rise to the cause of action and (ii) five hundred thousand u.S. Dollars (us$500,000). Eloqua’s licensors disclaim all liability to customer, whether direct or indirect, incidental or consequential (including lost profits), arising in connection with this agreement. Except with respect to enforcing customer’s payment obligations under this agreement or a breach of section 2 or 3, no action against either party arising out of this agreement may be brought by the other party more than one year after the cause of action has arisen. This section 8 will apply to the maximum extent permitted under applicable law.
    
9. Mutual Indemnification. 
   1. Eloqua Indemnification.  Eloqua will indemnify, defend and hold harmless Customer against any loss, damage or cost (including reasonable and necessary attorneys’ fees) (“Losses”) incurred in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer alleging that the use of the Platform Application, as contemplated hereunder, infringes the patents or copyrights of a third party in the United States or Canada.  Notwithstanding the foregoing, if Eloqua reasonably believes that the Customer's use of any portion of the Platform Application is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party intellectual property rights then Eloqua may, at its expense and in its sole discretion: (i) procure for the Customer the right to continue using the Platform Application; (ii) replace the same with other non-infringing software, services or other material of substantially equivalent functions; or (iii) modify the applicable software, services or other material so that there is no longer any infringement, violation or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Platform Application. If, in Eloqua’s opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, Eloqua may, in its sole discretion, terminate this Agreement and refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Eloqua will not apply: (1) if the Platform Application is modified by any party other than Eloqua, but solely to the extent the alleged infringement is caused by such modification; (2) if the Platform Application is combined with other non-Eloqua products, applications, or processes not authorized by Eloqua, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Platform Application; (4) to any third party deliverables or components contained within the Platform Application that are not provided by Eloqua; or (5) to any action arising as a result of the Customer Data. THIS SECTION 9(a) SETS FORTH Eloqua’s SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
       
   2. Customer Indemnification.  Customer will indemnify, defend and hold Eloqua and its Affiliates, and their officers, directors, employees, agents and contractors (“Eloqua Indemnitees”), harmless from and against any Losses incurred in connection with Claims against Eloqua Indemnitees arising from or relating to Customer’s communications with its actual and potential customers, use of Customer Data or other use of the Platform Application, in each case except to the extent Eloqua is obligated to indemnify Customer under Section 9(a).
       
   3. Procedure.  Each party's indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party will cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
       
10. General Provisions.
    1. Entire Agreement; Interpretation.  This Agreement (which consists of the Order Form and these Terms) constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s Subscription to the Platform Application described in the Order Form, and supersedes all prior agreements and discussions with respect thereto.  In the event of an inconsistency between the terms and conditions of these Terms and the Order Form, the terms of the Order Form will govern. This Agreement will control over any different or additional terms of a Customer purchase order or other non-Eloqua ordering document, and no terms included in any Customer purchase order or other non-Eloqua ordering document will apply to the Customer’s Subscription or use of the Platform Application.  Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement.  For purposes hereof, “including” means “including without limitation”.
        
    2. Marketing. Neither party may issue any press release regarding this Agreement without the other party’s prior written consent.  Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines. 
        
    3. Relationship of Customer and Eloqua.  The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
        
    4. Modifications and Waiver.  No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party.  No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
        
    5. Assignment.  This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party, except that Eloqua may assign this Agreement without the consent of Customer to a corporation or other business entity succeeding to all or substantially all of the assets or business of Eloqua to which this Agreement relates, whether by merger or purchase.
        
    6. Governing Law.  This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement.  The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the state courts in Fairfax County and the federal courts in the City of Alexandria in the Commonwealth of Virginia, USA.  The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
        
    7. Notices. Any notices under this Agreement will be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Eloqua will be sent to the address for Eloqua set forth in the Order Form and addressed to the Chief Financial Officer, with a copy to the Chief Executive Officer.  Notices to Customer will be sent to the address for Customer set forth in the Order Form and addressed to Customer’s signatory unless otherwise designated by Customer.
    8. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
        
    9. Facsimile Transmission/Counterparts/Electronic Signatures.  This Agreement will be deemed executed upon mutual execution of the Order Form, which may be executed and delivered by facsimile or email, and upon receipt such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument.  The parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations.  Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually.  In no event will electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
        
    10. Force Majeure. Neither party to this Agreement will be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
         
    11. Subcontractors. Eloqua may use the services of subcontractors for the provision of any Platform Application and performance of any services under this Agreement.
        

Schedule A
EUTOS SERVICE LEVEL AGREEMENT (SLA)

1. Platform Application Availability

   The Eloqua Platform Application will be available 24 hours per day, 7 days per week, excluding any scheduled maintenance as described below. 

   Category 1 –Scheduled Maintenance
   There will be a weekly scheduled maintenance period every Sunday between 5:00AM Eastern Time to 11:00AM ET to perform system maintenance, backup, and upgrade functions for the Platform Application. The weekly scheduled maintenance period does not require the Platform Application to be offline; however, during the maintenance period, the Platform Application may have short periods of instability and may be offline for up to one hour.
   
   If scheduled maintenance is required outside of the weekly scheduled maintenance period described above, Eloqua will notify Customer at least three (3) days in advance.  Such scheduled maintenance would occur between 11:00PM ET and 1:00AM ET on a planned weekday, after 9:00PM ET on a Friday, or anytime on a Saturday.
   
   Category 2 – Unscheduled Maintenance
   Unscheduled maintenance may be required to resolve issues that are critical for Customer and/or performance of the Platform Application.  Eloqua will notify Customer via email at least eight (8) hours prior to the unscheduled maintenance. The unscheduled maintenance will be conducted between 9:00PM ET and 3:00AM ET and will last no more than one (1) hour in duration. All scheduled and unscheduled maintenance notifications are logged and communicated via the Eloqua Trust Site discussion area in Customer Central (Eloqua’s online customer support portal).

   Non-compliance with Platform Application Availability
   Please reference the following table (Reporting Period = Calendar Month) which details the credit available to the Customer in the event the Platform Application availability falls below the indicated thresholds:

   Platform Application Availability	Credits
   < 98% in one Reporting Period	5% of one (1) month of Subscription fees
   < 95% in one Reporting Period	15% of one (1) month of Subscription fees

   Additionally, if the Platform Application availability falls below 98% for three (3) consecutive Reporting Periods, Customer shall have the right to terminate the Agreement and such right must be exercised within ten (10) days of the end of such three (3) month period or Customer shall be deemed to have waived its termination right with respect to that particular three (3) month period.

   Calculation of Platform Application Availability
   Platform Application Availability = (Total Hours in Reporting Period – Unscheduled Maintenance which causes unavailability – Severity 1 issue durations (as defined in Section 2) - Scheduled Maintenance – Excluded*) / (Total Hours in Reporting Period – Scheduled Maintenance – Excluded*) X 100%.
   *Excluded means the following: (i) unavailability caused by circumstances beyond Eloqua’s reasonable control, including, without limitation, act of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Eloqua employees), or any other force majeure event or factors; (ii) any problems resulting from Customer combining or merging the Platform Application with any hardware or software not supplied by Eloqua or not identified by Eloqua in writing as compatible with the Platform Application or Systems; (iii) interruptions or delays in providing the service resulting from telecommunications or Internet service provider failures outside of Eloqua’s datacenter as measured by Gomez (a third party website availability monitoring provider); (v) any interruption or unavailability resulting from Customer’s use of the Platform Application in an unauthorized or unlawful manner or any interruption resulting from the misuse, improper use, alteration, or damage of the Platform Application; (vi) any problems caused by modifications in any version of the Platform Application not made or authorized by Eloqua in writing; and (vii) any problems resulting from Customer’s or any third party’s acts, errors or omissions or any systems not provided by Eloqua.

   Request for Credit
   Any Customer request for a credit that Customer is entitled to under this SLA may only be made on a calendar monthly basis and must be submitted within ten (10) days after the end of the relevant calendar month or shall be deemed to have been waived by Customer.  For those periods at the end of a Subscription Term that do not coincide with the end of a calendar month, Customer must make a claim for a credit within ten (10) days after the expiration of the Subscription Term or the claim for credit shall be deemed to have been waived by Customer. The total of all credits applicable to or accruing in any given Reporting Period shall not exceed 15% of the Subscription fees paid or payable to Eloqua by Customer for the Reporting Period.
   Except as set forth in this Section 1, the right to a credit and/or the right to terminate the Agreement described in this Section 1 shall be the sole and exclusive remedy available to Customer in the event of unavailability of the Eloqua Platform Application and, under no circumstance, shall the unavailability of the Platform Application be deemed a default under the Agreement or this Service Level Agreement.

   All credit requests will be verified against Eloqua's system records. Eloqua will make available to Customer a monthly record of the Platform Application availability.

2. Product Support

   Eloqua’s Product Support Team provides live Standard Support from 8AM to 8PM Monday to Friday in Customer’s Prime Region. Customer’s Prime Region is the region that best covers the primary user of the Platform Application. Regions and coverage times are (a) North America, 8AM to 8PM Eastern Time, (b) EMEA, 8AM to 8PM Greenwich Mean Time and (c) APAC, 8AM to 8PM Singapore Time. Standard Support includes one Prime Region; if Customer has users outside Customer’s Prime Region and would like Eloqua to provide live support coverage in addition to the coverage in the Prime Region then Customer may purchase such additional live support in the regions other than the Prime Region for additional cost. The most effective channel to reach Eloqua’s live support team is to use the Eloqua Customer Support Portal which requires an application login. Alternatively, Customer can contact Eloqua at 1-866-FAST-ROI, Press 1.

   Product Support Response Times for Severity Levels
   Severity Level Definitions:

   • Severity 1: Platform Application Halted (Platform Application outage or down, severe business impact)
   • Severity 2: Essential Platform Application Functionality Impacted (customer cannot send any emails, cannot access landing pages, unrecoverable data corruption, unrecoverable loss of form submission)
   • Severity 3: Platform Application Impacted (Platform Application partially down (Data Card Services, Program Builder, Data Import, Data Export, Reporting)), extreme slowness, functionality working intermittently (i.e., Data Import fails intermittently)
   • Severity 4: Platform Application Impaired (Platform Application is working but functionality and/or performance is impaired – generally bugs with a workaround)
   • Severity 5: General Questions and Product Information
      

** The Response and Resolution times are measured from when Customer notifies Eloqua Product Support, either through the Eloqua Support Portal or by telephone, about a performance problem with the Eloqua Platform Application and Eloqua issues a trouble ticket number to Customer. Customer must have a ticket number for a claim under this SLA to be valid.
*** Eloqua will use commercially reasonable continuous efforts to provide a computer-based interim resolution

Customer Escalation Procedures for Severity Levels
The table below displays the automatic escalation procedures for Severity Level 1, 2, 3, 4, and 5 situations, based on how long a case is unresolved.