ServiceTitan, Inc. Standard Vendor Terms and Conditions

06.10.2021

1.0 DEFINITIONS.  As used in these ServiceTitan Standard Vendor Terms and Conditions (“Terms and Conditions”), the following defined terms have the meanings indicated below:

Agreement” means the contract or Purchase Order to which these Terms and Conditions are annexed or references, any and all appendices, exhibits, and schedules attached thereto and these Terms and Conditions.

Confidential Information” shall have the meaning ascribed to it in Section 12.1.

Documentation” means such end user documentation, manuals, performance specifications and any other specifications about the Products, which Vendor shall provide to ServiceTitan prior to execution of this Agreement.

Maintenance Services” means the maintenance services for equipment, hardware and/or Software to be provided by Vendor to ServiceTitan as set forth in this Agreement or pursuant to a Purchase Order.

Products” means all items of whatever type or nature sold or licensed by Vendor to ServiceTitan hereunder including, without limitation, all equipment, hardware, furniture, fixtures, Software (or licenses thereto), Services, supplies, creative works, disposables, and/or containers.

Professional Services” shall mean work to be provided by Vendor to ServiceTitan as set forth in this Agreement or pursuant to a Purchase Order, including, without limitation, work of any kind or nature, installation, applications training services, project management services, repair or replacement services, consulting services or creative/artistic services.

Purchase Order” means one or more written authorizations issued by ServiceTitan on its standard purchase order form to Vendor to ship Products or provide specified Services, in a specified number, and in each case for a specified price, which will become a legally binding contract when accepted in writing or by conforming delivery by Vendor. 

ServiceTitan Indemnified Parties” has the meaning ascribed to it in Section 4.1.

Services” means Professional Services and/or Maintenance Services, as applicable.

Software” means (i) the object code version of any Vendor proprietary or licensed software product specified by a Purchase Order or this Agreement, (ii) all Updates thereto provided by Vendor or its supplier in the performance of this Agreement, (iii) any customized features and functions provided by Vendor pursuant to this Agreement, and (iv) all related Documentation.  “Software” does not include Third Party Software except as expressly provided by this Agreement or the applicable Purchase Order.

Term” means the period defined in this Agreement during which all of the terms and conditions of this Agreement shall be effective. The Term will be provided on the Purchase Order.

Third Party Software” means software proprietary to a third party and identified as such by the applicable Purchase Order.

Update” means a release of Software that includes bug fixes, patches and/or fixes of minor errors and/or corrections or minor enhancements only, without new major features, which is normally identified by an increase in a release or version number to the right of the first decimal (for example, an increase from Version 3.1 to 3.2 or from Version 3.1.1 to 3.1.2).  “Update” shall not be construed to include Upgrades but shall include service packs or service releases.

Upgrade” means a release of the Software that includes additional major capabilities (functionality) and/or major enhancements over versions of the Software previously supplied to ServiceTitan and/or Vendor’s customer base for the Product, which is normally identified by an increase in the release or version number to the left of the decimal (for example, an increase from Version 3.2 to Version 4.0).

2.0 USE OF Names and Trademarks / PUBLICITY

2.1 Use of Names and Trademarks:  The parties shall not use the names of the other party or any adaptation, abbreviation or likeness thereof, or any trademark, trade name, trade style or registered design that is the property of or currently in use by the other party, on any web site or in any printed materials, publicity, advertising, or for trade or other commercial purposes (including without limitation in Vendor’s client/customer lists) without the prior written consent of the other party as to form, content and context, which consent may be revoked at any time upon five (5) business days’ notice.  Any materials produced pursuant to this Agreement or in connection with Vendor’s performance hereunder, bearing the logo, style or trademarks of ServiceTitan may be used by Vendor only as necessary to perform its obligations hereunder, subject in all cases to the prior written consent of ServiceTitan as provided herein.

2.2 Publicity:  Vendor shall not make any public statements (including issuing a press release, responding to media inquiries, making public presentations or publishing articles or other written materials) regarding ServiceTitan, Vendor’s relationship with ServiceTitan, this Agreement, Services performed, or products provided to ServiceTitan, without the prior written consent of ServiceTitan.

3.0 INSURANCE.  Unless otherwise specified in the Purchase Order, Vendor will maintain not less than the following insurance coverage, on an occurrence basis (or on a claims made basis with at least a three (3) year extended reporting provision), from an insurance company with a rating of A XII or better from A.M. Best (or such higher coverage and rating as may be required by law):

  • Commercial General Liability (including Products and Completed Operations) $1 million per occurrence / $3 million annual aggregate

  • Umbrella Liability $5 million

  • Worker’s Compensation; Employer’s Liability Statutory Limits; $1 million

  • Professional Liability / Errors & Omissions $5 million per claim

  • Cyber Risk / Data Security (if applicable pursuant to Section 3.2 below) $5 million per claim

Within ten (10) days of the signing of this Agreement, Vendor will deliver to ServiceTitan evidence of the foregoing insurance, including a Certificate of Insurance naming ServiceTitan (and any Affiliate designated by ServiceTitan) as an additional insured on its commercial general liability, automobile liability, umbrella liability and cyber risk / data security policies for the foregoing amounts and providing at least thirty (30) days prior written notice from the carrier to ServiceTitan in the event of cancellation or reduction of any of the foregoing coverage.  

4.0 INDEMNITIES

4.1 Indemnification:  Vendor shall indemnify, defend and hold harmless ServiceTitan, its directors, officers, employees and agents (collectively, the “ServiceTitan Indemnified Parties”) from and against any and all losses, costs, damages, liabilities and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred as a result of any third party claim that arises out of Vendor’s breach of its representations, warranties or other obligations under this Agreement or is due to the negligent acts, omissions or intentional acts of Vendor, its employees, agents, consultants, or subcontractors.  Without limiting the foregoing indemnity, ServiceTitan may elect to be represented by counsel of its own choosing.  In the event of such election, ServiceTitan shall advance the cost of legal defense for itself and shall be entitled to recover the cost thereof from Vendor as a component of any settlement or in the event of any judgment entered against Vendor or ServiceTitan. 

4.2 Infringement: 

4.2.1 Should the Products or any component part thereof supplied hereunder become the subject of a patent, copyright, trade mark, trade secret or other intellectual property right infringement suit or proceeding, Vendor will (at Vendor’s option and at its sole cost and expense):  (i) obtain a license that would permit ServiceTitan to continue to use the Products, (ii) modify the Products to render them non-infringing, (iii) provide a non-infringing product that possesses the full functionality of the original Products purchased and/or leased or licensed by ServiceTitan, or (iv) refund the purchase price or license fee to ServiceTitan.

4.2.2 In the event that ServiceTitan is notified in writing that it is required to cease and desist from using the Product or any component part thereof as a result of such infringement claim, all fees otherwise due during such period shall be waived and Vendor shall have thirty (30) days to arrange for a remedy referred to in Section 4.2.1 above. 

4.2.3 Vendor shall indemnify, defend and hold harmless the ServiceTitan Indemnified Parties or any one of them from and against any Losses arising from or incurred as a result of any suit or proceeding based on a third party’s claim of infringement, provided Vendor (i) is notified promptly in writing of any such claim, (ii) is given authority to control any such suit or proceeding, (iii) receives all material information in the possession of ServiceTitan, and (iv) is given reasonable assistance and cooperation from ServiceTitan in preparation for the defense of any such suit or proceeding, all of the foregoing at Vendor’s sole cost and expense.  Vendor shall pay all Losses that the ServiceTitan Indemnified Parties shall be required to pay on the basis of such infringement suit or proceeding and shall reimburse the ServiceTitan Indemnified Parties for any authorized expense they incur at Vendor’s request.

4.2.4 If Vendor shall not perform in accordance with the provisions of this Section 4.2, then in addition to all other rights and remedies ServiceTitan may have at law or in equity, ServiceTitan shall have the right to terminate its obligations under this Agreement on not less than ten (10) days’ written notice and all fees paid for the Products shall be pro-rated over the current Term and credited or refunded, as applicable.

4.3 Notice of Complaint:  Upon the receipt or discovery by any of the parties hereto of any complaint, claim (either asserted or potential), notice of lawsuit or lawsuit involving any aspect of the Products supplied or Services rendered under this Agreement, unless prohibited by law, the party in receipt of such notice shall promptly notify the other party and both parties shall provide complete access as may be provided under the law, to such records and other relevant information, including the right to make copies, at their own expense, as may be necessary or desirable to resolve such matters.  Notwithstanding anything to the contrary in this Section 4.0, failure to give prompt notice shall not be grounds for a denial of indemnity or defense unless the party alleging the late notice can prove actual and material prejudice arising therefrom.

5.0 ASSIGNMENT / SUBCONTRACTING

5.1 Assignment:  Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, that, upon prior written notice to the other party, ServiceTitan may assign the Agreement to a successor of all or substantially all of the assets of ServiceTitan through merger, reorganization, consolidation or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 

5.2 Subcontracting:  Vendor shall not engage subcontractors to provide any portion of the Services without ServiceTitan’s prior written consent.  In no event shall any subcontracting relieve, limit or modify Vendor’s obligations to ServiceTitan hereunder nor confer upon such subcontractors any contractual relationship with, or rights with respect to, ServiceTitan.  Notwithstanding the foregoing, all subcontractors shall be bound by and comply with the provisions herein, including any confidentiality, insurance and indemnification obligations running in favor of ServiceTitan.

6.0 TERMINATION.  Either party may terminate this Agreement in the event of a material default by the other party upon giving the defaulting party at least fifteen (15) days’ written notice of termination specifying the default in reasonable detail.  Termination shall be effective at the expiration of such notice period unless during such period the defaulting party cures the default to the reasonable satisfaction of the non-defaulting party.  If there shall be two or more material defaults by Vendor in any twelve (12) month period during the Term of this Agreement, then, notwithstanding that such prior defaults shall have been cured by Vendor, upon the third or any subsequent material default by Vendor hereunder, ServiceTitan may terminate this Agreement immediately by giving written notice to Vendor and Vendor shall not have the right to cure such default.  Termination of this Agreement will not affect the rights and obligations of the parties accrued before the termination.

7.0 OCCUPATIONAL SAFETY AND WARRANTY.  Vendor warrants that, to the extent applicable, the Products and Services provided to ServiceTitan shall conform to the standards and regulations promulgated by the U.S. Department of Labor under the Occupational Safety and Health Act of 1970 (29 U.S.C. 651 et. Seq.) (“OSHA”).  In the event that any Products do not conform to OSHA standards and regulations, ServiceTitan may return the Products for correction or replacement at Vendor’s option and expense.  Services performed by Vendor that do not conform to OSHA standards and regulations must be corrected by Vendor, or by ServiceTitan in the event Vendor fails to make appropriate corrections within a reasonable time, in either case at Vendor’s expense.  Vendor personnel working onsite at ServiceTitan shall comply with all applicable ServiceTitan policies and procedures regarding work safety, including COVID-19 related policies and procedures, and all applicable government regulations, including OSHA general industry standards. 

8.0 WARRANTY. Vendor warrants as follows: 

8.1 All Products sold by Vendor hereunder, if they shall be tangible goods, are warranted to be new, free from defects in material, design and workmanship and, if applicable, shall be pure and unadulterated.  All Products sold “as per sample” shall conform and perform in all respects in accordance with the sample provided or shown.

8.2 All Products shall perform in accordance with their Documentation upon acceptance by ServiceTitan and for a period of one (1) year, or such longer period as may be prescribed elsewhere in this Agreement.  Any service level standards, including performance guarantees and corrective maintenance response times, shall be set forth in this Agreement or an attachment hereto.  

8.3 Vendor hereby warrants the merchantability of its goods and further warrants that such goods are fit for the uses and purposes specified in its advertising and promotional material. 

8.4 All tangible Products will be accurately labeled, contained, packaged and marked, and shall conform to any statement made on the containers, labeling and packaging. 

8.5 All Products, to the extent required, have been approved for use by or in humans by all necessary regulatory bodies, including, without limitation, the U.S. Food and Drug Administration.  No administrative action to prohibit or condition such use is pending or to the knowledge of Vendor threatened. 

8.6 The Products do not infringe the patent, copyright or other proprietary rights of a third party.  Vendor has full right, title and authority to enter into and perform this Agreement without the consent of any third party.

8.7 Additional warranties for Products that are Software or include Software:  Vendor warrants to ServiceTitan that Vendor has full right, title and interest necessary to license the Software to ServiceTitan free and clear of any claim of a third party.  In addition, Vendor warrants that (i) the Software shall not contain (a) any software routine, code, or instruction, hardware component or combination of the foregoing (1) which permits unauthorized access to ServiceTitan’s IT network or ServiceTitan’s Confidential Information or (2) can disable, delete, modify, damage or erase software, hardware or data, or (b) any malicious code that can disable, delete, modify, damage or erase software or data; (ii) the Software has received all required third party approvals, consents, permits, authorizations, etc., including, without limiting the foregoing, all requisite approvals from all regulatory or governmental agencies to allow ServiceTitan and Vendor to enter into and perform this Agreement and use the Software as intended; (iii) Vendor has in place within the Software physical and electronic security in compliance with the requirements of HIPAA, if applicable; (iv) the Software shall operate without conflict with commercial anti-virus software products to be specified and installed by ServiceTitan; and (v) the Software is compatible with the most current version of the operating system and database on which it is designed to function, and Vendor shall, without additional cost to ServiceTitan, revalidate the Software and make any modifications required to cause the Software to meet or exceed its previous specifications within four (4) months after new versions, upgrades, patches, maintenance releases or service packs are made available by the publisher of such operating system or database and provide such re-validated versions of the Software to ServiceTitan at no charge.  Vendor shall continue to offer licenses of the Software to the public and to maintain the Software and offer maintenance to ServiceTitan for a period of not less than five (5) years after acceptance by ServiceTitan. 

8.8 All Services shall be performed in a professional, workmanlike and timely manner by personnel appropriately trained and skilled in the service to be performed. 

8.9 All warranties shall continue in effect during the Term of this Agreement, the term of any extended warranty and the term of any contract between the parties for support and maintenance.  All warranties shall survive acceptance and payment.

9.0 CONDITION ON DELIVERY / PAYMENT

9.1 Delivery and Acceptance:  Vendor shall deliver all equipment or other goods which are a part of the Products FOB destination (freight and insurance charges pre-paid and absorbed) in at least a good condition and state of repair.  Unless otherwise specifically provided herein, any equipment or other goods damaged in shipping or delivery shall be the responsibility of Vendor and it shall file all claims for damages with the carrier and shall promptly replace all damaged equipment or other goods which are a part of the Products, regardless of the status of claims against the carrier. No Products shall be deemed to have been accepted by ServiceTitan until they shall have been inspected and, where appropriate, duly installed and tested to the reasonable satisfaction of ServiceTitan.

9.2 Invoicing and Payment Terms:  Vendor’s invoices shall be submitted for ServiceTitan payment upon acceptance of the Products and shall be dated on or after the date of acceptance. Invoices must be sent via email to ap@servicetitan.com, and include a valid ServiceTitan Purchase Order Number (“PO #”) as well as sufficiently detailed back-up information that has been reasonably requested by ServiceTitan, if any (including, without limitation, time sheet summaries and unit prices for any Products provided on a time and materials basis). Amounts due and payable by ServiceTitan under this Agreement shall be paid within forty-five (45) days after the end of the month of the date of the invoice.

10.0 CONSEQUENTIAL DAMAGES.  Neither party shall be liable to the other for any consequential, special, incidental, indirect or punitive damages, including, but not limited to, lost profits.  Notwithstanding anything to the contrary contained herein, any limitation of liability, remedies or damages contained herein shall not limit or apply to any Losses incurred as a result of or in connection with any action, suit or claim subject to indemnification by Vendor hereunder, or as a result of or in connection with the breach of Vendor’s confidentiality obligations, or Vendor’s infringement, gross negligence or intentional misconduct.

11.0 PRODUCT RECALLS.  Vendor shall notify ServiceTitan if a product recall or defect notice is issued related to any of the Products or components thereof within five (5) days of the earliest defect announcement in any nation by Vendor, the manufacturer of a Product or component, or a regulatory body.  Notwithstanding any limitation of rights, remedies or damages set forth herein, Vendor will reimburse ServiceTitan for return shipping, Product reimbursement costs and any additional cost or expense (including, without limitation, costs associated with explanting, replacing or correcting affected Products) incurred by ServiceTitan associated directly or indirectly with any Product corrective action, withdrawal or recall from the market (whether voluntary or involuntary) or any court action impacting ServiceTitan’s use of the Products.  

12.0 CONFIDENTIALITY

12.1 Confidential Information:  Vendor shall treat as confidential any non-public information, including, without limitation, any data, reports, and other documentation and information regarding ServiceTitan’s business operations, facilities, finances, marketing, employees, or use of the Products, and confidential information of third parties identified as such by ServiceTitan, any of which are provided to Vendor by ServiceTitan or accessed or observed by Vendor in connection with the performance of Vendor’s responsibilities under this Agreement, in whatever form (“Confidential Information”).  Vendor shall keep Confidential Information safe and secure and shall not disclose the same to any third party or use any Confidential Information other than as required hereunder to perform this Agreement, without ServiceTitan’s prior written consent.  Vendor shall disclose the Confidential Information only to Vendor’s employees, agents, contractors and Affiliates who have a need to know in order to carry out the terms and conditions of this Agreement and who are bound by a duty of confidentiality.  Upon termination of this Agreement, Vendor shall return to ServiceTitan or destroy all Confidential Information in Vendor’s possession without retaining copies thereof except as required by law.  The confidentiality provisions hereof shall continue to apply to any retained copies.  

12.2 Injunction:  Vendor stipulates that it would be impossible to ascertain ServiceTitan’s damages from any breach of the covenants set forth under this Section 12.  If Vendor breaches any provision of such section, ServiceTitan may choose, in addition to any other right or remedy available to it, the right to obtain from any court of competent jurisdiction an injunction restraining such breach or threatened breach.  Vendor stipulates that no bond or other security shall be required in obtaining such equitable relief and Vendor hereby consents to the issuance of such injunction or injunctions pending the outcome of judicial resolution involving this Agreement.  Vendor shall not urge, argue or otherwise advise a court that an injunction remedy is not appropriate under the circumstances.

13.0 ARBITRATION AND EQUITABLE RELIEF

13.1 Arbitration:  Except as provided in Section 13.3 below, any dispute or controversy arising out of, relating to, or concerning any interpretation, construction, performance, or breach of this Agreement, will be settled by arbitration to be held in the Los Angeles, California area with the rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in the dispute or controversy. The decision of the arbitrator will be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. ServiceTitan and the Vendor will each pay one half of the costs and expenses of the arbitration, and each will separately pay their own counsel fees and expenses. If any rule of the American Arbitration Association conflicts with the applicable state law, state law governs.

13.2 Waiver or Right to a Jury Trial: This arbitration clause constitutes a waiver of Vendor’s right to a jury trial for all disputes relating to all aspects of this Agreement (except as provided in Section 13.3 below), including, but not limited to, the following claims:

(a) claims, both express and implied, for breach of contract, breach of the covenant of good faith and fair dealing, negligent or intentional infliction of emotional distress, negligent or intentional misrepresentation, negligent or intentional interference with contract or prospective economic advantage, and defamation;

(b) any and all claims for violation of any federal, state, or municipal statute.

13.3 Equitable Remedies: The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this Agreement and without abridgement of the powers of the arbitrator.

13.4 Consideration: Each party’s promise to resolve claims by arbitration in accordance with the provisions of this Agreement, rather than through the courts, is consideration for the other party’s like promise.

14.0 NOTICES.  All notices affecting this Agreement must be in writing and sent (a) in the case of Vendor, to the address set out in the Purchase Order, (b) in the case of ServiceTitan, to the persons designated below.  The notices must be delivered in person, sent by nationally recognized overnight courier, or sent by certified mail, return receipt requested.  Notice is effective on the date of receipt if delivered in person, on the date of first attempted delivery if delivered by courier, or on the fifth (5th) business day after mailing by certified mail, postage prepaid.  Either party may provide notice of change to the contact information for person(s) to be notified under this provision by like notice. Notices shall be delivered or sent to the following addresses:

Attn: Procurement ServiceTitan, Inc. 801 N. Brand Blvd., Suite 700 Glendale, CA 91203

15.0 INTEGRATION / AMENDMENT.  This Agreement and all appendices, addenda, schedules and exhibits annexed hereto or referenced herein constitute the entire, complete, final and sole agreement between the parties regarding the subject matter thereof and supersedes and cancels any prior understanding, communication, representation or agreement pertaining to the subject matter thereof.  This Agreement may not be modified, amended or terminated prior to the expiration of its term except (i) as otherwise specified therein or (ii) by a writing signed by duly authorized representatives of both parties.

16.0 GOVERNING LAW.  This Agreement, and any claim, controversy or dispute arising under or related to this Agreement, the relationship of the parties and/or the interpretation and enforcement of their respective rights and obligations, shall be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflicts of law.  

17.0 THIRD PARTIES.  This Agreement is solely between the parties hereto and, except as otherwise specified herein, is not intended to be enforceable by any third parties or to create any express or implied rights hereunder of any nature whatsoever in any third parties.

18.0 WAIVER.  A waiver of any term or condition of this Agreement must be in writing signed by the party to be charged.  No waiver, express or implied, of any breach of any provision of this Agreement shall be deemed a waiver of breach of any other provision of this Agreement or a waiver of any subsequent breach of the same or any other provision.

19.0 PARTIAL INVALIDITY / SECTION HEADINGS.  If any term, covenant, condition or provision of this Agreement or the application thereof to any person or circumstance shall, at any time or to any extent be determined to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby.  Each remaining term, covenant, condition, and provision of this Agreement shall be considered valid and enforceable to the fullest extent permitted by law, provided that this Agreement shall not thereby fail of its essential purpose.  The section headings used herein are for reference and convenience only, and shall not enter into the interpretation hereof.

20.0 SURVIVAL.  Sections including governing law, confidentiality, compliance with applicable laws, notices, indemnities, record retention, entities, warranty and such other Sections which by their terms reasonably include performance after expiration or termination shall survive such expiration or termination of this Agreement.