Professional Services Agreement - Support.com Inc. and Office Depot, Inc.


PROFESSIONAL SERVICES AGREEMENT

THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement"), dated July 26, 2007 (the "Effective Date"), is between OFFICE DEPOT, INC., a Delaware corporation located at 2200 Old Germantown Road, Delray Beach, FL 33445 ("Office Depot"), including its subsidiaries and affiliates and SUPPORTSOFT, INC., located at 1900 Seaport Blvd., 3rd Floor, Redwood City, California 94063 ("SupportSoft") (each of SupportSoft and Office Depot, a "Party," and together, the "Parties"). Office Depot and SupportSoft agree as follows:

1.

Definitions. In addition to terms defined elsewhere in the Agreement, the following terms have the meanings ascribed to them below.

1.1.

"Customer" means a purchaser of technology support services from Office Depot who has entered into a Work Order with Office Depot for those services and purchases the services for internal use and not for distribution or resale.

1.2.

"End User License Agreement" or "EULA" means the license agreement accompanying SupportSoft Software and governing end users access to and use of the Software.

1.3.

"Intellectual Property Rights" means all current and future worldwide patents, patent applications, copyrights, copyright registrations and applications therefore, mask work rights, trade secrets, and all other intellectual property rights recognized anywhere in the world, now known or later developed, and the related documentation or other tangible expression thereof, including documentation related to ownership.

1.4.

"Software" means the SupportSoft software, in object code, and any accompanying documentation, that SupportSoft may provide to Office Depot pursuant to an SOW for distribution to Customers, solely for Customers153 internal use in conjunction with the purchase of Services.

1.5.

"Statement of Work" or "SOW" means a mutually agreed, signed statement of work attached to this Agreement and incorporated herein by reference.

1.6.

"Technology" means all technology, including all inventions, know-how, techniques, design rules, algorithms, routines, software, files, databases, works of authorship, processes, devices, prototypes, schematics, test methodologies, any media on which any of the foregoing is recorded, and any other tangible embodiments of any of the foregoing.

1.7.

"Work Order" means the order form and accompanying terms and conditions applicable to Customers153 purchase of services from Office Depot.

2.

Services. During the term of this Agreement, SupportSoft shall make itself and its personnel available to perform technology support services, as described in the Remote Services Program Specification attached as Exhibit A to this Agreement and in any SOW, to Customers of Office Depot (the "Services"). For each Customer purchase of Services, Office Depot will enter into a Work Order with the Customer identifying the particular Services sold, and containing terms and conditions for the delivery of the Services that are substantially similar to, and at least as protective to SupportSoft, as the support.com Terms and Conditions attached hereto as Exhibit D (support.com Service Terms and Conditions).

3.

Marketing and Promotional Activities.

3.1.

Branding. The Services will be branded by Office Depot and will be identified as "Delivered by support.com", as further described in Exhibit A. Unless otherwise set forth in an Exhibit or SOW, neither Party may engage in any marketing or promotional activities involving the other Party153s brand features without the other Party153s prior written consent, and any such use shall be subject to appropriate license terms.

3.2.

Marketing Plan. Each Party shall perform its respective marketing and promotion activities with respect to the Services as set forth in Exhibit E (Marketing Plan).


4.

Intellectual Property; Licenses.

4.1.

Intellectual Property Ownership. SupportSoft retains and shall own all right, title and interest in and to its Technology, Software and Services, and all Intellectual Property Rights in and to the foregoing. Office Depot shall acquire no right, title or interest in any Intellectual Property Rights related to SupportSoft153s Technology, Services or Software other than the license rights as described in Section 4 of this Agreement. All rights not expressly granted, are reserved to SupportSoft.

4.2.

License to SupportSoft Software. Subject to the terms and conditions of this Agreement and the applicable SOW, SupportSoft hereby grants to Office Depot a nonexclusive, nontransferable license (without the right to grant sublicenses) to (i) reproduce and distribute the Software (in executable form only) solely to Customers who agree to be bound by the terms of the applicable end user license agreements and solely as bundled with the Services; and (ii) use the Software solely in providing Services to such Customers.

4.3.

Software License Restrictions. Except to the extent expressly stated herein, Office Depot shall not (and shall not enable or permit any third party to) (i) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Software by any means whatsoever, (ii) remove any product identification, copyright or other notices, (iii) provide, lease, lend, or use for timesharing, service bureau or hosting purposes, or otherwise use or allow others to use the Software to or for the benefit of third parties, (iv) modify, translate, convert to another programming language, incorporate into or with other software or create a derivative work of any part of the Software or SupportSoft Technology, (v) disseminate information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Software, (vi) use any third party software included with the Software, except in conjunction with the Software and Services, or (vii) access or use any portion or functionality of the Software not expressly licensed to Office Depot or utilize the Software, or any component or output thereof, except through application program interfaces documented by SupportSoft. Office Depot must reproduce and include the copyright notice and other proprietary notices that appear on the original Software on any copies and any media thereof made in accordance with the terms of this Agreement.

4.4.

SupportSoft Trademark License. Subject to the terms and conditions of this Agreement, SupportSoft grants to Office Depot a nonexclusive, nontransferable license (without the right to grant sublicenses) to use and reproduce the SupportSoft trademarks and logos identified in writing by SupportSoft solely in connection with the marketing and promotional activities contemplated under Section 3. Office Depot agrees to comply with SupportSoft153s trademark guidelines and policies provided by SupportSoft, as may be modified by SupportSoft from time to time in its sole discretion. Office Depot acknowledges SupportSoft153s exclusive ownership of the SupportSoft trademarks and logos and agrees not to take any action inconsistent with such ownership. Upon SupportSoft153s reasonable request, Office Depot will provide SupportSoft with samples of materials that contain the SupportSoft trademarks or logos prior to their public use, distribution or display for SupportSoft153s quality assurance purposes.

4.5.

Office Depot Trademark License. Subject to the terms and conditions of this Agreement, Office Depot grants to SupportSoft a nonexclusive, nontransferable license (without the right to grant sublicenses) to use and reproduce the Office Depot trademarks and logos identified in writing by Office Depot solely in connection with SupportSoft153s performance of the Services contemplated in the Agreement. SupportSoft agrees to comply with Office Depot153s trademark guidelines and policies provided by Office Depot, as may be modified by Office Depot from time to time in its sole discretion. SupportSoft acknowledges Office Depot153s exclusive ownership of the Office Depot trademarks and logos and agrees not to take any action inconsistent with such ownership. Upon Office Depot153s reasonable request, SupportSoft will provide Office Depot with samples of materials that contain the Office Depot trademarks or logos prior to their public use, distribution or display for Office Depot153s quality assurance purposes.


5.

Term and Termination. The term of this Agreement shall commence on the Effective Date and continue for a period of one (1) year after the National Launch, as specified in Exhibit A to this Agreement (the "Initial Term"). Upon the expiration of the Initial Term, the Parties may agree to extend the Agreement for an additional twelve (12) months (the "Renewal Term") by written agreement.

5.1.

Except as otherwise set forth herein, upon termination, Office Depot shall not be obligated to SupportSoft, or its successors or assigns, for any payments other than for Services performed in accordance with this Agreement prior to the date of termination.

5.2.

If either Party fails to perform any of its material obligations hereunder, and does not cure such failure within thirty (30) days after receipt of written notice from the non-defaulting Party, the non-defaulting Party may, in addition to any other rights it may have under this Agreement, terminate this Agreement.

5.3.

Absent a good faith dispute, if Office Depot fails to make payment to SupportSoft pursuant to this Agreement when such payment is due, and does not fully cure such failure within ten (10) business days after receipt of written notice thereof from SupportSoft, SupportSoft may, in addition to any other rights it may have under this Agreement, terminate this Agreement.

5.4.

If, under the terms of this Agreement, Office Depot is unable to ramp up to, or otherwise withdraws, such quantity or type of services and, SupportSoft, in its reasonable judgment, determines that it is no longer commercially reasonable for SupportSoft to continue to provide any or all Services hereunder, based upon the then-current pricing and contractual terms, then SupportSoft may terminate this Agreement upon thirty (30) days153 prior written notice.

5.5.

After the Initial Term, either Party may terminate the Agreement for convenience upon *** (***) *** prior written notice to the other Party.

5.6.

The following Sections will survive any expiration or termination of this Agreement: Sections 1, 4.1, 4.3, 5.6, 6, 8.2 (for the period identified therein), 9, 11.2, 12.3, 14, 15, 16, and 18.

6.

Payment. Rates charged for Services shall be set forth in Exhibit F (Pricing), attached hereto, unless otherwise set forth in an SOW. SupportSoft will invoice Office Depot monthly for Services performed in the immediately preceding month. Payments shall be made in full within *** (***) *** following the date of invoice. Services will be deemed accepted upon completion of performance.

6.1.

Office Depot agrees to pay amounts equal to any applicable taxes, including, but not limited to, sales and use taxes, resulting from any transaction under this Agreement, excluding taxes based on SupportSoft net income.

7.

Independent Contractor. Pursuant to this Agreement, SupportSoft and Office Depot intend to enter into an arm153s-length commercial relationship. The Parties confirm and agree that no employment relationship is intended nor will be created by provision of Services contemplated by this Agreement. SupportSoft and its personnel, in performing the Services, shall act solely as an independent contractor; SupportSoft, and any employees or agents of SupportSoft, shall under no circumstances be treated as or deemed to be employees of Office Depot. Nothing in this Agreement shall be construed to create a partnership, agency, joint venture, or employer-employee relationship as between Office Depot and SupportSoft, or as between Office Depot and SupportSoft employees. SupportSoft understands Office Depot has no federal, state, or local obligations regarding employee liability or insurance to employees of SupportSoft, and Office Depot153s total commitment and obligations concerning such under this Agreement are limited to the cash payments set forth herein or in any applicable SOW. SupportSoft expressly represents and agrees that it is solely responsible for timely remittance to appropriate authorities of all federal, state, and local taxes and charges incident to the provision of and payment of compensation and/or benefits owing to its employees for Services and to the operation of SupportSoft153s business, including, but not limited to, payment of workers153 compensation insurance premiums, social security taxes (FICA, OASDI, Medicare hospitalization), and federal and state income taxes (including quarterly estimated taxes). NEITHER SUPPORTSOFT NOR ITS EMPLOYEES SHALL HOLD ITSELF (OR HIMSELF OR HERSELF, AS THE CASE MAY BE) OUT OR OTHERWISE REPRESENT ITSELF (OR HIMSELF OR HERSELF, AS THE CASE MAY BE) TO ANY PERSON OR ENTITY AS ANYTHING OTHER THAN AN INDEPENDENT CONTRACTOR OF OFFICE DEPOT. Unless otherwise set forth in a Statement of Work, neither SupportSoft nor its employees shall be entitled to enter into any contract, agreement, arrangement, or association on behalf of Office Depot. SupportSoft shall have sole right and responsibility to supervise its employees in the performance of the Services. Each Party shall comply with all state and federal laws which relate to the employment of its employees and of conduct of its business.


8.

Written Records and Reporting; Audit.

8.1.

Records. From time to time, as specifically set forth in the applicable SOW, each Party shall furnish to the other Party written reports pertaining to the Services, including details regarding Work Orders, sales volumes, sales forecasts, transactions, and Services delivered.

8.2.

Audit. Each Party agrees to maintain records supporting the payments made hereunder for a period of two (2) years following the date that the payment is due. The relevant portion of such records and accounts will be available for inspection and audit by an independent certified public accountant selected by the auditing Party and acceptable to the other Party (but not more than once in any twelve (12) month period) during regular business hours, upon reasonable advance notice, and conducted in a manner that does not unreasonably interfere with the operation of the audited Party153s business. Except as provided herein, the auditing Party will bear the sole costs and expenses in connection with such audit. Any underpayments discovered under any audit performed pursuant to this Section 8.2 will be paid promptly by the audited Party following the receipt of a final report from the auditor. Any overpayments found by the auditor will be deducted from any following payments due until such overpayment is fully recouped there from. In the event that a discrepancy is found of greater than ten percent (10%) of revenue for the period that is being audited, then the audited Party will bear the reasonable costs of the audit.

9.

Confidential Data. During the performance of this Agreement, each Party may disclose to the other certain Confidential Information, as such term in defined in the Mutual Nondisclosure Agreement entered into by and between the Parties on *** (herein, the "NDA"). Such NDA is attached hereto as Exhibit G (Mutual Nondisclosure Agreement) and is incorporated herein by reference. Any such Confidential Information disclosed hereunder will be subject to the terms and conditions of the NDA; provided that, as related to Confidential Information disclosed under this Agreement, the rights and obligations of the Parties under such NDA will survive for a period of two (2) years after termination or expiration of this Agreement.

10.

Conflict of Interest. SupportSoft represents and warrants that it has no commitments or obligations to perform Services for others during the period of this Agreement which would materially interfere with the performance of SupportSoft obligations under this Agreement. Other than as prohibited by this paragraph, SupportSoft shall be free to provide services to its other customers and clients.

11.

Compliance with Regulations and Policies. Unless otherwise set forth in the applicable SOW, SupportSoft shall perform the Services at SupportSoft premises or on-site at Office Depot153s premises, and shall be responsible for providing all equipment and supplies necessary to perform the Services. If the performance of the Services requires SupportSoft to be located at Office Depot facilities, SupportSoft shall comply with all applicable federal or state laws and regulatory requirements, all safety and health regulations, and all policies and procedures, including anti-harassment policies, prescribed by Office Depot and provided to SupportSoft. SupportSoft remains responsible for ensuring that SupportSoft employees comply with such laws, regulations, and safety laws and policies and procedures, and supervision of SupportSoft employees remains SupportSoft153s responsibility.

11.1.

SupportSoft hereby certifies compliance with all federal, state, and local employment laws and regulations, including, but not limited to, the Immigration Reform and Control Act ("IRCA"). SupportSoft specifically certifies that each of its employees and subcontractors have completed an 1-9 form as required by IRCA and that the completed forms are maintained in accordance with the provisions of IRCA.

11.2.

Each Party agrees to comply with the other Party153s then-current privacy policy provided by such Party), relating to any of a Customer153s personally identifiable information so disclosed.


12.

Warranty; Warranty Disclaimer.

12.1.

SupportSoft represents and warrants that Services provided hereunder shall be performed (i) in a professional, timely and workmanlike manner, (ii) in accordance with industry standards; and (iii) substantially in accordance with the applicable SOW. As the sole and exclusive remedy for breach of the foregoing warranty, if a Customer experiences a problem with the Services and calls SupportSoft within seven (7) days of the date the Services were originally performed, SupportSoft will use commercially reasonable efforts to try to resolve the Customer153s problem at no additional charge, but no refund will be provided. As set forth below, there are no other warranties for the Services, SupportSoft shall pass through to Office Depot all applicable manufacturer warranties, if such warranties have been granted to SupportSoft.

12.2.

Customer Consents and Licenses. Office Depot represents and warrants that it will obtain all required consents and authorizations from Customers to enable SupportSoft to access Customers153 computers and perform the Services. For any software provided by SupportSoft to Office Depot for distribution to Customers or installation on Customer computers, as set forth in an SOW, Office Depot will require any Customer or other end user of such software to agree to be bound by the terms and conditions of any applicable SupportSoft EULA or third-party end user license agreement. Office Depot will also provide each such Customer with copies of the applicable Supportsoft EULA and third-party end user license agreements and will present to such Customer SupportSoft153s then-current privacy policy, with a statement that such privacy policy applies to the Services performed by SupportSoft.

12.3.

EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ALL ADVICE, CONTENT, AND SOFTWARE) ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS OF THE SERVICES, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SUPPORTSOFT DOES NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED, ERROR FREE, OR SUCCESSFUL IN RESOLVING CUSTOMER QUESTIONS OR COMPUTER PROBLEMS. SUPPORTSOFT MAKES NO WARRANTY THAT THE SERVICES WILL MEET USERS153 EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS, CONTENT OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMERS FROM THE SERVICES OR FROM OFFICE DEPOT SHALL CREATE ANY WARRANTY. ANY CONTENT OR SOFTWARE THAT CUSTOMERS ACCESS, DOWNLOAD OR USE WITH THE SERVICES IS DONE AT CUSTOMERS153 OWN DISCRETION AND RISK AND CUSTOMERS AGREE THAT THEY WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM SUCH ACTIVITIES.

13.

Staffing. SupportSoft is responsible for supplying its employees to perform the Services, and SupportSoft is responsible for supervising and/or directing those employees. It is SupportSoft153s responsibility to ensure that its employees are sufficiently competent and experienced to ensure that the Services are performed in accordance with good industry practices. SupportSoft shall use reasonable efforts to ensure the continued employment by SupportSoft of its employees or subcontractors who perform the Services for Office Depot pursuant to this Agreement. If, at any time during the performance of this Agreement, in Office Depot153s sole but reasonable determination, the performance of a particular SupportSoft employee or subcontractor is not compliant with the terms of this Agreement, Office Depot shall promptly notify SupportSoft in writing of Office Depot153s determination and the Parties shall discuss in good faith the appropriate actions to be taken to resolve such issue. SupportSoft shall be primarily liable for the acts or omissions of any subcontractors engaged to perform Services under this Agreement or any SOW.

14.

Intellectual Property Indemnity. SupportSoft agrees, at its own expense, to (1) indemnify and defend Office Depot against or, at its option, to settle any third party claim, suit, or proceeding brought against Office Depot on the issue of any U.S. trademark, patent, or copyright infringement with respect to the SupportSoft Technology or Software provided to Office Depot, or Services performed by SupportSoft; and (2) pay Office Depot any and all costs, damages, and reasonable attorneys153 fees and expenses for which Office Depot is found liable to such third party as a result of, or agrees to pay in settlement of, any lawsuit based on such a claim, provided that Office Depot (i) notifies SupportSoft within a reasonable period after it receives notice of such claim, (ii) provides SupportSoft sole control over the defense or settlement of such claim, and (iii) fully cooperates with SupportSoft in its defense or settlement of such claim. Notwithstanding the foregoing, SupportSoft will have no obligation under this Section 14 with respect to any such infringement claim based on a combination of the SupportSoft Technology, Software or Services with any products, technology or services not provided by SupportSoft, or for any modification or unauthorized use of the SupportSoft Technology, Software or Service.


15.

Indemnification. With respect to damages related to third parties, each Party (the "Indemnifying Party") shall indemnify and hold harmless the other Party (the "Indemnified Party"), its agents, and its employees from and against any and all liability, loss, damage, or expense, including reasonable legal fees and costs of defense, arising from any third party claim, demand, action, or cause of action asserted against the Indemnified Party to the extent resulting from: (i) any breach of any representation, warranty or covenant by the Indemnifying Party; (ii) negligence or willful misconduct on the part of the Indemnifying Party, its employees, subcontractors, or agents; and/or (iii) the Indemnifying Party153s failure to comply with federal, state, local, or other applicable law relating to its performance of services or this Agreement (including, but not limited to, those laws set forth in Section 11 above). The Indemnified Party shall notify the Indemnifying Party as soon as practicable of any circumstances or set of circumstances that might reasonably lead to the operation of this paragraph. The Indemnifying Party will have sole control over the defense or settlement of such matters, and the Indemnified Party agrees to cooperate fully in such defense or settlement.

16.

Limitation of Liability. EXCEPT FOR THE PARTIES153 INDEMNIFICATION OBLIGATIONS IN SECTIONS 14 AND 15 ABOVE OR EITHER PARTY153S WILLFUL, OR KNOWING BREACH OF SECTION 4, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR ITS USE, LOSS OF PROFITS, LOSS OF BUSINESS, OR OTHER ECONOMIC DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. REGARDLESS OF THE FORM OF ACTION, OTHER THAN AN ACTION FOR PAYMENT OF AMOUNTS DUE UNDER THE AGREEMENT, THE PARTIES153 INDEMNIFICATION OBLIGATIONS IN SECTIONS 14 AND 15 ABOVE, AND EITHER PARTY153S WILLFUL OR KNOWING BREACH OF SECTION 4, THE TOTAL LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO SUPPORTSOFT FOR SERVICES SATISFACTORILY PERFORMED UNDER THIS AGREEMENT AS OF THE DATE OF SUCH CLAIM.

17.

Insurance.

17.1.

SupportSoft Liability Insurance. During the performance of the Services, SupportSoft at its cost and expense, shall purchase and maintain the insurance set forth in this Section 17. The insurance shall be purchased and maintained in companies acceptable to Office Depot and shall be primary with no right of contribution.

17.2.

Workers153 Compensation and Employers153 Liability. Statutory Worker153s Compensation Insurance and Employer153s Liability Insurance with a limit of $1,000,000; including coverage for occupational injury, illness and disease, and other similar social insurance in accordance with the laws of the country, state or territory exercising jurisdiction over the employee.

17.3.

General Liability. Comprehensive General Liability Insurance, including Products, Completed Operations, Premises Operations, Personal and Advertising Injury, Contractual and Broad Form Property Damage liability coverage, on an occurrence basis, with a minimum combined single limit per occurrence of $1,000,000 and a general aggregate limit of $2,000,000.

17.4.

Automobile Liability. Automobile Liability Insurance covering use of all owned, non-owned and hired automobiles for bodily injury, property damage, uninsured motorist and underinsured motorist liability with a minimum combined single limit per accident of $1,000,000.

17.5.

Insurance Certificate. Unless otherwise agreed to by the Parties, SupportSoft shall not be permitted to begin to provide Services without first delivering to Office Depot153s designated representative certificates from SupportSoft insurers evidencing the above reference coverages.

17.6.

No Waiver. Failure of Office Depot to demand insurance certificates or other evidence of full compliance with these insurance requirements or failure of Office Depot to identify a deficiency from evidence that is provided shall not be construed as a waiver of SupportSoft153s obligation to maintain such insurance.


17.7.

Deductibles. SupportSoft may purchase the above-required insurance policies with such reasonable deductibles as it may elect; provided that losses not covered by reason of such deductible shall be for SupportSoft account.

18.

General.

18.1.

Assignment. Neither Party shall assign this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Any attempt to assign this Agreement without prior consent shall be void.

18.2.

Entire Agreement. This Agreement, including completed SOWs, Schedules, Appendices and Exhibits, constitutes the entire agreement between the Parties. All prior negotiations, proposals, and agreements between the Parties concerning the subject matter contained in this Agreement, are canceled and superseded by this Agreement. Any changes to this Agreement must be agreed to by both Parties in writing.

18.3.

Notices and Consent. Any notice, demand, or consent required or permitted to be given under the terms of this Agreement shall be deemed to have been duly given or made, if given by any of the following methods:

18.3.1 Deposited in the United States mail, in a sealed envelope, postage prepaid, by registered or certified mail, return receipt requested, or hand delivered, respectively addressed as follows:

To Office Depot:

Office Depot, Inc

2200 Old Germantown Road

Delray Beach, FL 33445

Attention: John Lostroscio, Vice President

With a copy to:

Office Depot, Inc.

2200 Old Germantown Road Delray Beach, FL 33445

Attn: Office of the General Counsel

To SupportSoft:

SupportSoft, Inc.

1900 Seaport Blvd., Third Floor Redwood City, CA 94063

Attn: Richard Mandeberg

With a copy to:

SupportSoft, Inc.

1900 Seaport Blvd., Third Floor Redwood City, CA 94063

Attn: Office of the General Counsel

18.3.2 Sent to the above address via an established national overnight delivery service, charges prepaid; or

18.3.3 Sent via any electronic communications method, if the sender (i) obtains written confirmation of receipt of the communication by the electronic communication equipment at the office of the addressee listed above; and (ii) immediately follows such notice with a second notice in one of the methods set forth in 18.3.1 or 18.3.2 above.

18.3.4 Notices shall be effective on the third day after posting if sent by mail, on the next day after posting if sent by express courier and on the day of dispatch if manually delivered within regular business hours or if transmitted within regular business hours by electronic communication methods.


18.4.

Severability. If a court of competent jurisdiction shall hold any provisions of this Agreement invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of this Agreement.

18.5.

Waiver. The failure of either Party to enforce at any time or for any period of time any of the provisions of this Agreement will not be construed to be a waiver of such provisions or of its right thereafter to enforce such provision and each and every provision thereafter.

18.6.

Invalid Provisions. If any of the provisions of this Agreement are held to be invalid, illegal, or unenforceable, the provisions shall remain in effect to the extent allowed by law and the validity, legality, and enforceability of the remaining provisions shall in no way be affected or impaired thereby.

18.7.

Governing Law. This Agreement shall be interpreted in accordance with New York law. Each Party acknowledges that any actual or threatened breach of Section 4 or 9 may cause the other Party irreparable harm for which money damages may not be an adequate remedy, and that injunctive relief may be an appropriate remedy for such breach. Each party will comply with all applicable export and import control laws and regulations in the use and distribution of the Software, Services and any other SupportSoft Technology.

18.8.

Breaches of Agreement. Both Parties agree that if either Party breaches any term or condition of this Agreement, subject to the non-breaching Party153s termination rights under Section 5, the remaining provisions, clauses, and/or articles of this Agreement, or parts thereof, remain valid and in full force or effect.

18.9.

Non-Solicitation of Personnel. Neither Party shall employ or otherwise contract for the same or similar services of any current employee, subcontractor or agent (hereafter collectively referred to for this provision as "Personnel") of the other Party, performing duties in support of this Agreement, or Personnel hired by the other Party, performing duties in support of this Agreement, during the term hereof until one year after the earlier of: (a) the termination of such Personnel153s employment; or (b) the termination of this Agreement. No offer or other form of solicitation of employment will be made at any time when the employment of such Personnel is prohibited by this Agreement; provided however, that this limitation shall not prohibit the solicitation, recruitment or hiring of anyone who is identified solely as a result of their response to a general advertisement by Office Depot. The intention of this Section is to prohibit the active recruitment of Personnel of the other Party.

18.10.

Force Majeure. Neither Party will be responsible or liable in any way for its failure to perform or delay in performance of its obligations under this Agreement during any period in which performance is prevented or hindered by conditions beyond its reasonable control, including, but not limited to, acts of God, fire, flood, failure or public utilities, war, criminal activity, malicious acts, embargo, strikes, labor disturbances, explosions, riots, and laws, rules, regulations and orders of any governmental authority.

18.11.

Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same instrument.

18.12.

Authority. By signing this Agreement, the undersigned representatives of SupportSoft and Office Depot represent and warrant that he/she has the power and authority to sign this Agreement and that once signed this Agreement is legally binding on SupportSoft and Office Depot respectfully,

SUPPORTSOFT, INC.

OFFICE DEPOT, INC.

By

/s/ Ken Owyang

By

/s/ Stephen Olsen

Name

Ken Owyang

Name

Stephen Olsen

Title

CFO

Title

VP Merchandise Strategy & Scs

Date

26 July 2007

Date

7/27/07


By

/s/ Scott Koern

Name

Scott Koern

Title

SVP

Date

7/27/07

List of Exhibits

A

Remote Services Program Specification

B

Service Statements of Work

C

Associate Standard Operating Procedures

D

support.com Service Terms and Conditions

E

Marketing Plan

F

Pricing

G

Mutual Nondisclosure Agreement