MASTER SERVICES AND CONSULTING AGREEMENT
- 1. Description and Scope of Agreement
This legal Agreement, known as the Master Services and Consulting Agreement (“Agreement”), is between you (“Customer”) and Boosted CRM LLC (“BCLLC”), for professional services, potential technological consultation and product support services all to be performed by BCLLC. For references to this document, “Agreement” and “Contract” will be used interchangeably throughout the contents. It is understood that the usage of these terms will have the same legal meaning, definition, significance, and enforceability. The Customer and BCLLC may be referred to as “Parties” to this Agreement. The Agreement is entered into by BCLLC and ________________, which becomes effective upon the signing by both Parties. This Agreement will expire at midnight on _________.
Under this Agreement, BCLLC will issue Statements of Work orders for professional services, as well as Services Descriptions for product support and maintenance-related services performed by BCLLC. These are listed in the Points of Contact and Addresses section. This Agreement may also serve as the provision for BCLLC to provide computer software and directly related materials relevant for operation of said software, including documentation, manuals, and other information obtained in conjunction with, and essential for, the professional services provided by BCLLC to its Customer.
The Statement of Work orders and Services Description for any software and directly related materials relevant its operation, shall be clearly identified and defined in the Contract. Notice must be given immediately to the “Point of Contact,” at the locations in the Addresses section, should the terms of the Statement of Work and Services Description differ from this Agreement.
The Agreement will be titled, Master Services and Consulting Agreement (“MSCA”) #_____________, which can be found on all change orders, notices, correspondence, services descriptions, and statements of work issued under it.
- 2. Contents of Agreement
The Agreement shall consist of the following: (1) All terms and conditions listed in this contract; (2) The Rate Schedule, in effect at the time and place of the Agreement, which is located in the Appendix; (3) The Statement of Work; and/or (4) The Services Description. All identifiable documents herein constitute the entire agreement between the parties to this Contract, and supersedes any other prior or contemporaneous communications. The entire contents of this Agreement shall control in this order: (I) The Agreement; (ii) The Statement of Work; and/or (iii) The Services Description. Any general terms, conditions, purchase orders provided by the Customer or its subdivisions are not applicable, unless they are mandated by statute or regulation. Changes to this Agreement can only be by amendment and signed by both parties.
- 3. Definitions
“Affiliate” is any legal entity owned by or which owns BCLLC, or is under common ownership with BCLLC.
“Confidential Information” is information identified in writing by either party to this contract as proprietary or confidential or that, under the circumstances surrounding the disclosure, should in good faith, be treated as proprietary or confidential. For purposes of this Agreement, the term “Confidential Information” shall include but not be limited to any nonpublic and/or proprietary information or materials relating to BCLLC promotional and/or marketing strategy and activity, BCLLC pricing information (including but not limited to rates, margins, and budgets), BCLLC financial and budget information, BCLLC customer lists, information about the education, background, experience, and/or skills possessed by BCLLC employees, BCLLC employee compensation information, BCLLC service and/or sales concepts, BCLLC service and/or sales methodology, BCLLC service and/or sales techniques, BCLLC customer satisfaction data or sales information, or any information which BCLLC marks or identifies as “confidential” at the time of disclosure or confirms in writing as confidential within a reasonable time (not to exceed thirty (30) days) after disclosure. Unless excepted in the Confidential Information Section, all beta products are confidential. Confidential information does not include information:(i) independently developed by the recipient; (ii) known to the recipient knew prior to receiving it under the Agreement; or (iii) which is or subsequently becomes available to the public or is received from another source, in both cases other than by a breach of an obligation of confidentiality.
“Customer” is defined as the company, organization, board, or agency referred to in Description and Scope, and who has signed this Agreement with BCLLC. “Customer” also refers to any subdivision of the Customer that signs a Statement of Work and/or Services Description under this Agreement.
“Customer Content” is any and all data, information, reports, analysis, artwork, logos, graphics, video, text, and other materials, including without limitation, financial data supplied by Customer to BCLLC in connection with this Agreement, if any, which shall remain the sole and exclusive property of Customer.
“Fixes” are bug fixes, workarounds, patches, beta fixes and beta builds of software products provided by BCLLC.
“Partners” are companies, organizations, or other entities within the same industry as BCLLC with which BCLLC has an ongoing, legally defined professional or commercial relationship.
“Service Deliverables” are computer software, software code and related materials, other than fixes provided to the Customer as a part of the performance of services. BCLLC is not responsible for backing up any Customer service deliverables once the upload has been completed.
“Services Description” is an agreement whereby BCLLC will provide the Customer, under the terms of this Contract, product support and maintenance services related to the requisite software as installed, which also includes ZOHO Support Plans if required for BCLLC ZOHO users. A Services Description only becomes a valid part of this Agreement if it directly references the Agreement by number.
“Statement of Work” is an agreement whereby BCLLC will provide the Customer, under the terms of this Contract, professional services, which may include any or all of the following: installation and integration of software, training of Customer personnel for related software issues, configuration of software per Customer’s specifications, the upgrading and/or customization of software, and consultation relevant to Customer’s software needs and specific requirements. A Statement of Work only becomes a valid part of this Agreement if it directly references the Agreement by number.
“Subdivision” is any agency, board, commission, corporation, partnership, department, instrumentality, division, unit or other office that is supervised by the Customer, that supervises the Customer, or which the Customer is a part. If the customer is a government entity, Subdivision may include, as mandated by law, any county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality located within the Customer’s jurisdiction and geographic boundaries, provided that a state and its Subdivisions shall not, for purposes of this definition, be considered to be Subdivisions of the Federal government or its Subdivisions.
“Work Order” is the same as a Statement of Work for the purposes of this Agreement. Certain other terms are defined as set forth elsewhere in this Agreement.
- 4. Services
Under the terms and conditions of this Agreement, BCLLC agrees to provide all product support and professional consulting services to the Customer. The range of these services will be stipulated in the Statements of Work (for professional services, as defined under “Services”) or the Services Descriptions (for product support and maintenance services, also defined under “Services Description in Section 3) The Customer, or any of its subdivisions, may enter into the Statements of Work and/or Services Descriptions with the applicable BCLLC division, or its affiliate, by signing this Agreement. In order for BCLLC to supply the services described in the Statements of Work and/or Services Descriptions, will be contingent upon the full and timely cooperation of the Customer and its staff, as well as the accuracy and completeness of any information provided. This Agreement does not require either party to enter into any specific State of Work or Services Description.
- 5. Supportability
During the term of a Services Description, BCLLC may add support of new products it provides and/or creates itself or one or more of its Partners. In addition, BCLLC may discontinue support for products that are outdated or where the intellectual property rights have been sold to another company with no partner relationship to BCLLC. The Customer will be given three months’ notice prior to any discontinuance of support for a product or services, unless BCLLC is legally bound to discontinue services. The Customer will receive notice, under the terms of this Agreement, of BCLLC’s sale of any intellectual property rights to one or more of its products to another entity. BCLLC will either arrange for the purchasing entity to immediately continue the support, or continue the support itself for 90 days in order to give the Customer time to make other arrangements.
BCLLC will notify a Customer when the Customer’s product or group of products implementation cannot be effectively supported. Once notified, the Customer has 30 days to modify the implementation to make it supportable. If the Customer is unwilling or unable to make the necessary changes, BCLLC will not be responsible for providing additional support services for that particular implementation.
Consistent with the Services Descriptions, BCLLC software product support and maintenance may include any or all of the following: (i) telephone support furnished by skilled customer service technicians, who offer customer support via their web-based support portal or through live telephone contact available five days a week and by appointment on the weekends; (ii) remote support, which allows BCLLC to use its software remotely to access a customer’s computer system to perform hands on repair; (iii) on-site technical product support services in which a member of BCLLC travels to a customer’s location to provide personal product support streamlined to each customer’s specific issues and needs; and (iv) ZOHO Support Plans if required for BCLLC ZOHO users.
- 6. Support for Unlicensed Products
It is BCLLC’s policy to not render support services for products, either hardware or software, that do not have a valid license.
- 7. Fees and Expenses incurred in Performance of this Agreement
The Customer agrees to pay BCLLC the fees listed in the Statement of Work and Services Description. Unless such expenses are specifically included in the rates provided to the Customer as an addition to this Agreement, or are waived in the Statement of Work or Services Description, the Customer agrees to pay reasonable out-of-pocket travel and living expenses (if any) as required in the performance of services under this Agreement. If the Agreement is with a government entity, BCLLC shall abide by the law in the Customer’s jurisdiction, as it relates to the amount, calculation and payment of travel and living expenses.
For work performed under this Agreement, BCLLC will submit, on a bi-monthly basis, a billing invoice to the Customer. The invoice will contain a calculated hourly, billable rate for the following professional consulting services and product support assistance as listed in the Customer’s Statement of Work and/or Services Description:
Professional Services – BCLLC will determine and charge the Customer an hourly billable rate for professional consulting services associated with any Service Deliverables (software) BCLLC has sold to the Customer. This could possibly include BCLLC’s services involving a business process review, project planning, project management and implementation, ERP and CRM consulting, ZOHO implementation and training, the installation and integration of software, training of personnel independent of ZOHO implementation, development and configuration of software, as well as the upgrading, updating and customization of software to meet the Customer’s specific needs. All software is sold “as is” and may contain possible unknown bugs or imperfections that need rectification. Therefore, BCLLC may need to conduct multiple diagnostic attempts to correct any issues that may arise once the software has been installed. These technical diagnoses and correction of issues related to BCLLC software, may also include off-site research or testing, communication with software publishers, and consultation with the Customer’s IT team or related consultants. All are billable at the hourly rate established by BCLLC upon the signing of this Agreement. The Statement of Work details all hourly rates and descriptions of BCLLC professional consulting services.
Product Support and Maintenance Services – BCLLC will determine and charge the Customer an hourly billable rate for professional product support and maintenance services associated with any Service Deliverables (software) BCLLC has sold to the Customer. This could possibly include BCLLC support services involving: (i) remote support, which allows BCLLC to use its software remotely to access a customer’s computer system to perform hands on repair; (ii) on-site technical product support services in which a member of BCLLC travels to a customer’s location to provide personal product support streamlined to each customer’s specific issues and needs; and (iii) ZOHO Support Plans, if required for BCLLC ZOHO users. Pre-paid product support plans are available. They are not based on hourly billable rates and can be negotiated between the parties at the time of signing this Agreement. All hourly rates and descriptions of BCLLC professional product support and maintenance services are referenced in the Services Description, as well as any pre-paid product support plan related to this Agreement.
Customers will not be billed at hourly increments for the correction of any errors BCLLC has to spend time repairing, which were associated with BCLLC’s professional consulting services or product support and maintenance. Time spent on system restoration to back out changes BCLLC has to make will not be billed to the Customer.
In addition to the hourly billing practices, BCLLC reserves the right, after installation of the software, to occasionally perform some services consistent with a fixed contract rate. (i.e. custom programming, large report writing projects, etc.) At the beginning of the project, a Statement of Work will be drafted and the Customer will be given a fixed price of the cost to complete the project. A fifty (50%) deposit of the fixed price is required in advance from the Customer for the work to be performed. The remainder will be paid at the completion of the project. BCLLC will determine when to deviate from the normal hourly billing rate for work on behalf of a Customer. This will only occur under special circumstances and will be documented in the Statement of Work under the applicable Agreement. A change in BCLLC’s hourly billing method will be agreed upon by both parties before they sign the Agreement.
As the Customer, you agree to pay all invoices issued, under this Agreement, within 30 days of the date of the invoice. BCLLC agrees to not change its fees during the term of a Statement of Work or Services Description; however, BCLLC may adjust fees prior to entering any Statement of Work or Services Description. BCLLC fees exclude taxes, duties, tariffs, value added taxes or other governmental charges required by law, and such applicable taxes or fees will be billed to and paid by the Customer. BCLLC is responsible for taxes based upon its own personal property ownership and net income. Under this Agreement, BCLLC is authorized to assess a finance charge of the lesser of 1.5% per month or the highest amount allowed by law on all past due amounts, starting 30 days from the date of BCLLC invoice. Failure to pay for more than 60 days, after the date of invoice, shall be a material breach of this Agreement.
- 8. Restrictions on Use
The Customer may not:
1.Rent, lease, lend or host service deliverables, without prior written consent from BCLLC agrees;
2.Reverse engineer, decompile or disassemble fixes or Service Deliverables, except to the extent expressly permitted by applicable law despite this limitation or by written consent from BCLLC; and
3.Transfer licenses to, or sublicense, fixes or service deliverables to the U.S. Government or any other entity not previously agreed to in writing by both parties.
The Customer acknowledges that software licensed under this Agreement is of U.S. origin. The Customer agrees to comply with all applicable international and national laws that apply to these products, including the U.S. Export Administration Regulations, as well as end-user, end-use and country destination restrictions issued by U.S. and other governments.
Neither party grants the other the right to use any trademarks, trade names, or other designations in any promotion or publication without express written consent by the other party.
- 9. Ownership and License
BCLLC shall supply software and materials, in connection with the services, according to the following provisions:
- Consulting Services. Each Statement of Work will specify the rights in computer software and materials supplied by BCLLC.
- Support Services. Use of any fixes is defined by the product use rights for the affected product or, if the fix is not provided for a specific product, any other use terms provided by BCLLC on the provider of the product. The Customer retains license to all fixes. BCLLC will provide the Customer with a copy of the applicable product use rights or other use terms, or it will make them available to the Customer either by publication on the World Wide Web at a site identified to the Customer or by some other reasonable means. The Customer must have access to the Work Wide Web. With regards to product support services, BCLLC may provide other computer software and materials according to the terms of this Contract. Rights in the computer software and materials for those services will be listed in the Services Description. BCLLC will not transfer ownership rights in any licensed products and will reserve all rights not expressly granted herein.
- 10. Confidentiality and Disclosure
BCLLC may, from time to time, disclose “Confidential Information” to the Customer. The Customer understands and acknowledges that it will not disclose BCLLC Confidential Information to any third party for five years from the date of disclosure, unless BCLLC gives prior written consent. If consent is given, the Customer agrees to take reasonable measures to prevent any unauthorized disclosure by its agents, employees, contractors or consultants. BCLLC Confidential Information shall include the terms of this Agreement, which shall remain the property of BCLLC. It shall not be transferred, conveyed or assigned to the Customer as a result of the services BCLLC provides under this Agreement. The parties’ duties under this Section shall survive any termination or expiration of this Agreement.
The Customer may divulge to BCLLC proprietary ideas, expertise, concepts and technologies they have developed, which relates to computer application programming, installation and operation (“Customer Confidential Information). In addition, the Customer may give documentation, memoranda, notes, reports, papers, plans, data, recordings, drawings, designs, materials, or other forms of information related to their business operations (“Confidential Content”). BCLLC agrees for a period of five years from the date of disclosure to: (i) not voluntarily reveal any Customer Confidential Information or Confidential Content to another person or entity; (ii) use all reasonable measures to protect and prevent disclosure or use of Customer Confidential Information and/or Confidential Content from reaching the public domain or falling into the possession of individuals, other than those authorized under the Customer Confidential Information and/or Confidential Content. The parties’ duties under this Section shall survive any termination or expiration of this Agreement.
BCLLC and the Customer agree not to use the other’s Confidential Information for a period of five years after disclosure without the other’s prior written consent, except in advancement of the relationship created under this Agreement or subsequent agreements. Disclosure of either party’s Confidential Information is prohibited except: (i) when obtaining advice from legal or financial consultants; or (ii) if required by law, the disclosing party will make every effort to give the other party notice to allow for the disclosure to be contested. BCLLC and the Customer will take reasonable measures to safeguard one another’s Confidential Information, as they would their own Confidential Information. Disclosure of the other’s Confidential Information to this Agreement to their respective employees or consultants will occur only on a need-to-know basis. Confidentiality obligations will be imposed. When the Confidential Information is no longer needed to perform any obligation pursuant to this Agreement, each party till return the Confidential Information to the other, or destroy it at the other’s request. However, if the Customer is government entity, the terms and conditions of this Agreement may be disclosed under the requirements of any public records law.
In no event shall Customer use BCLLC Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of the Owner.
For the purposes of this Agreement, the following is not considered Confidential Information: (a) Information that becomes a part of the public domain through no fault of the receiving party; (b) Information that was independently created by the receiving party without dependence on the disclosing party’s Confidential Information; (c) Information given by a third party to the receiving party under no duty of confidentiality to the disclosing party; or (d) Information required to be revealed by law with no further obligation of confidentiality, unless efficient prior notice is given to the party whose Confidential Information is involved.
- 11. Retained Rights Regarding Confidentiality and Disclosure
BCLLC and the Customer are not prohibited from creating their own independent products without the use of the other’s Confidential Information. There is no responsibility for either party to limit the future projects of those who have had access to the Confidential Information. Those individuals are at liberty to use the information related to information technology, concepts, ideas, know-how or techniques, as long as they do not disclose Confidential Information of the other party in violation of this Agreement. Note, this use does not grant the parties any rights, under the other’s copyrights or patents, and does not require royalty payments or separate license. BCLLC and the Customer may provide suggestions, comments or other feedback with respect to the other’s Confidential Information. The feedback is voluntary and receiving party is not obligated to hold it in confidence. It may be used for any purpose without any obligations. The receiving party must obtain consent from the other party prior to disclosing the source of the feedback.
BCLLC and the Customer acknowledge that disclosure of the Confidential Information, by either party, shall give rise to irreparable harm to the owner of the Confidential Information, inadequately compensable in monetary damages. Therefore, in addition to any other legal remedies available, the non-disclosing party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing.
- 12. Cooperation in the Event of Disclosure of Confidential Information
BCLLC and the Customer agree to immediately contact the other upon discovery of any unauthorized use or disclosure of Confidential Information. In addition, the parties agree to work together in a reasonable manner to assist the other in regaining possession of the Confidential Information and prevent further unauthorized use.
- 13. Knowledge Obtained or Derived
BCLLC may use any technical information derived from providing the services relating to problem resolution, troubleshooting, product functionality enhancements and fixes, for its knowledge base. BCLLC shall not identify the Customer or reveal any of the Customer’s confidential information in any item in the knowledge base.
- 14. Independent Contractor; Subcontractors
BCLLC provides services as an independent contractor, and will be responsible for any and all social security, unemployment, workers’ compensation and other withholding taxes for all of its employees. BCLLC may use subcontractors to perform services, in which case it will be responsible for the performance of those subcontractors.
- 15. Intellectual Property Ownership
This Agreement does not transfer any of the Customer’s technology and related intellectual property to BCLLC. All right, title and interest in and to the Customer’s technology and related intellectual property remains exclusively with the Customer. The Customer shall remain the sole owner of all Intellectual Property, Workflows and Software Applications that is comprised of the ZOHO Application Project. The Customer retains all rights to use, copy and re-distribute the Application worldwide. Boosted CRM LLC agrees not to disclose confidential information related to the Project and Workflows. In addition, BCLLC shall not decompile, copy, disassemble or reverse engineer the Project, nor retain any right s to license the Project or it’s Workflows to any third party. This includes any company operating in the environmental testing industry worldwide. Both parties agree they will not, directly or indirectly, reverse engineer, de-compile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party and/or its third party vendors.
- 16. Warranties, Express or Implied, Disclaimer
BCLLC warrants that all services will be performed according to industry standards and practices, and BCLLC will use commercially reasonable efforts to provide professional product support services to its Customers.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BCLLC DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, OTHER THAN THOSE IDENTIFIED EXPRESSLY SET FORTH IN THIS SECTION, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PRODUCTS, SERVICE DELIVERABLES, RELATED MATERIALS AND SERVICES. BCLLC WILL NOT BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY THIRD PARTY VENDORS, DEVELOPERS OR CONSULTANTS IDENTIFIED OR
REFERRED TO THE CUSTOMER BY BCLLC OR ITS EMPLOYEES, AFFILIATES, OR AGENTS UNLESS SUCH THIRD PARTY PRODUCTS OR SERVICES ARE PROVIDED UNDER WRITTEN AGREEMENT BETWEEN BCLLC AND THE CUSTOMER, AND THEN ONLY TO THE EXTENT EXPRESSLY PROVIDED IN SUCH AGREEMENT.
- 17. Indemnification
The parties agree to indemnify, defend and hold harmless each other from and against any and all actual or threatened claims, actions, damages, liabilities, costs and expenses, including without limitation reasonable attorney’s fees and expenses, arising out of or in connection with: (a) the accuracy, validity or truthfulness of the Customer Content, as it relates to the Customer, or Services and/or Service Deliverables. As it relates to BCLLC, any representations made by the other party in any documents (including without limitation, any prospectus or business plan); (b) a party’s failure to comply with any applicable law or regulation; (c) third party claims of infringement of any patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights alleged to have occurred with respect to the Customer Content, as it relates to the Customer, or Services and/or Service Deliverables, in the case of BCLLC; (d) the death or bodily injury of any person, to the extent that such death or bodily injury was caused by the other party’s gross negligence or willful misconduct; (e) the damage, loss or destruction of real or tangible personal property, to the extent such damage, loss or destruction was caused by the other party’s gross negligence or willful misconduct; and (f) any damages incurred directly or by virtue of a claim made by a third party, in either case, arising out of a breach of a party’s representations, warranties, covenants or duties arising out of, or in condition with, this Agreement.
- 18. Limitation of Liability; Time
Except as expressly provided in this Agreement, BCLLC, its employees, stockholders, directors, subcontractors, agents or subsequent agents, owners, directors or stockholders, shall not be liable for claims or damages arising from this Agreement including but not limited to: negligence, loss of data, time, revenue or profits, labor costs, lost profit opportunity, capital costs, overtime, loss of property, real or assumed damages, mistake, error, delays, defects, omissions or other consequential, incidental, direct or indirect exemplary or punitive damages arising from this Agreement or performance here under even when BCLLC is informed of the possibility of such damages.
BCLLC shall not be liable for any data loss. The Customer is responsible for all backup and disaster recovery. Under this Contract, BCLLC services may be acquired to assist with agency design and set up disaster recovery schemes. The performance of actual backups and the confirmation of the appropriateness and efficiency of such schemes shall remain the total responsibility of the Customer.
WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER IN CONTRACT, TORT, STRICT LIABILITY OR CAUSE OF ACTIONS OF ANY NATURE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR RELIANCE, LOSS, DAMAGE OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF USE OR REVENUES, WHETHER OR NOT EITHER PARTY WAS ADVISED, SHOULD HAVE KNOWN OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS, DAMAGE, OR EXPENSE ARISING OUT OF OR IN CONNECTION WITH ANY ACT OR OMISSION OF SUCH PARTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE PROFESSIONAL SERVICES, PRODUCT SUPPORT AND SERVICE DELIVERABLES, OR ANY PART THEREOF, IN THE CASE OF BCLLC, OR THE CUSTOMER CONTENT, THE CUSTOMER’S PRODUCTS AND SERVICES, OR ANY PART THEREOF, IN THE CASE OF THE CUSTOMER.
BCLLC’S TOTAL LIABILITY FOR ALL CLAIMS MADE UNDER THIS AGREEMENT SHALL NOT EXCEED THE SUM TOTAL OF THE FEES PAID BY CUSTOMER FOR BCLLC’S SERVICES. THE PARTIES OBLIGATIONS UNDER THIS AGREEMENT APPLY ONLY TO EACH OTHER AND NOT TO ANY OTHER PERSONS OR ENTITIES. NOTWITHSTANDING ANY OTHER TERMS AND CONDITIONS OF THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY AS TO ANY THIRD PARTY INFORMATION OR PRODUCTS PROVIDED TO EACH OTHER, ALL OF WHICH ARE PROVIDED, SOLD OR LICENSED “AS IS,” AND THE PARTIES AGREE TO LOOK SOLELY TO THE WARRANTIES AND REMEDIES, IF ANY, PROVIDED BY THE THIRD PARTY. THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS OF CONSULTANT OR CUSTOMER FOR THIRD PARTY CLAIMS AS SET FORTH IN SECTION 17. THE LIMITATIONS IN THIS SECTION WILL NOT APPLY WITH RESPECT TO BCLLC OBLIGATIONS UNDER SECTION 10 OF THIS AGREEMENT REGARDING CONFIDENTIALITY. THIS EXCLUSION OF LIABILITY DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALITY OBLIGATION OR OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Notwithstanding the provisions of this section, if the Customer is a government entity, any limitation of liability does not apply to the extent a court of competent jurisdiction (including any appellate court of final review) determines such limitation of liability violates the law in force in the jurisdiction applicable to the Customer, in which case the specific limitation that the court determines is in violation of law shall be void.
Except for any different period required by applicable law, any action arising under this Agreement, apart from those disclaimed immediately above, must be brought within (1) one year from the date that the cause of action arose, not when it was discovered.
- 19. Term and Termination of Agreement; Assignment
This Agreement shall remain in effect until terminated by either party, this includes any Statement of Work or Services Description, by giving the other party 30-days written notice. The Agreement, work order or Services Description may be terminated if the other party is in material breach or default of any obligation that is not cured within 30-days’ notice of such breach. The Customer shall pay all fees for services performed and expenses incurred prior to termination of this Agreement. The termination of this Agreement will end all outstanding Statement of Work or Services Description entered into between the parties under this Agreement.
Neither party may assign this Agreement or any Statement of Work or Services Description without the written consent of the other. Any attempt to assign this Agreement or any Statement of Work or Services Description without the written consent of the other party may be deemed notice of termination of this Agreement, effective on the date of assignment, by the other party.
- 20. Survival Upon Termination or End of Term
The following provisions shall survive any termination or expiration of this Agreement, any Statement of Work or Services Description: (i) warranty; (ii) limitation of liability; (iii) confidentiality; (iv) fees and expenses; (v) obligations on termination or expiration; and (vi) ownership and license.
- 21. Non-Solicitation of Employees
During the term of this Agreement and for a period of eighteen (18) months thereafter, BCLLC and the Customer shall not directly or indirectly solicit, employ, offer to employ, or engage as a consultant, any employee, agent, consultant or subcontractor of the other party. In the event of a breach of this Section, the non-breaching party will not have an adequate remedy in law for money or damages. BCLLC and the Customer agree that the non-breaching party is entitled to injunctive relief in any court of competent jurisdiction, without the necessity of posting a bond, even if normally required. Injunction relief shall not limit the non-breaching party’s right to other remedies and damages that may be available under law.
- 22. Non-Competition
The Customer, during the term of this Agreement and for a period of eighteen (18) months thereafter, shall not directly or indirectly, either individually, in partnership, jointly, or in conjunction with or through the activities of any third person, firm, partnership, corporation or organization of any kind, offer to any person or entity of any kind, whether as an officer, director, stockholder, partner, proprietor, associate, representative, consultant, principal, agent, employee or independent contractor, manager, control, own, operate, be employed by or otherwise render business consulting services similar to or competitive with the services provided by BCLLC within any territory in which BCLLC offers its services. The Customer recognizes and understands that BCLLC offers its products and services throughout the United States, Canada and the world.
- 23. Severability
The finding of a Court that any provision of this Agreement is illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. The parties agree to amend the Agreement to give effect to that provision to the maximum extent possible.
- 24. Waiver of Breach
Pursuant to this Agreement, no waiver shall be enforced, unless expressed in writing and signed by an authorized representative of the waiving party. Waiver of any breach of this Agreement shall not be a waiver of any other breach.
- 25. Force Majeure
Neither party shall be liable to the extent that party was prevented or delayed, totally or in part, for reasons beyond their control, so long as that party resumes performance as soon as practical after the reason preventing or delaying performance no longer exists.
- 26. Alternative Dispute Resolution & Applicable Law; Entire Agreement
BCLLC will attempt to collect amounts owed it under this Agreement, a Statement of Work, and/or a Services Description, through federal and state judicial systems.
BCLLC AND THE CUSTOMER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHTS TO A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Any dispute or breach that may arise between the parties relating to this Agreement, a Statement of Work, and/or a Services Description, shall be referred to and settled by binding Arbitration in accordance with the rules of the American Arbitration Association as the exclusive method of dispute resolution. The Arbitration Panel shall consist of three (3) arbitrators to be appointed by each party, and the third appointed by the first two arbitrators selected. The Arbitration hearing shall take place in Los Angeles, California. The Arbitration award is final and binding upon the parties, is not subject to appeal, and shall deal with the question of costs of arbitration and all matters related thereto. Judgment award rendered by the arbitrators may be entered by any court having jurisdiction, or an application may be made to such court for judicial recognition of the award or an order of enforcement thereof. This Agreement, each Statement of Work and/or Services Description shall be governed by the laws of the State of California, without regard to its conflict of laws provisions.
The exclusive jurisdiction and venue for all legal actions arising out of or related to this Agreement shall be in courts of competent subject matter jurisdiction located in Los Angeles County, California, and the parties hereby consent to the jurisdiction of such courts. This Agreement, along with any Statement of Work and/or Services Descriptions, executed pursuant hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, proposals, understandings and representations, written or oral, with respect to the subject matter hereof. This Agreement, Statement of Work and/or Services Description, may be modified or amended except in writing signed by duly authorized representatives of each party. If there is a conflict between the terms and conditions of the Statement of Work and/or Services Description and the terms and conditions of this Agreement, the terms and conditions of the Statement of Work/Services Description shall govern and control, unless otherwise specified in the Statement of Work/Services Description.
- 27. Addresses and Points of Contact
The parties’ contact information, at the time of the signing of this Agreement, are shown below. Each contracting party agrees to notify the other in writing of any contact changes.
All notices, authorizations and requests made in relation to this Agreement, including notice of termination, must be sent by postal service, express courier, facsimile, or email to the addresses and numbers indicated in this section. Notices will be deemed delivered on the date shown on the postal return receipt or on the courier, facsimile or email confirmation of delivery, except as otherwise required by action of law.
Boosted CRM LLC
22961 Council Bluffs Ave.
Lake Forest, California 92630
Primary Billing Contact:
Primary Billing Contact:
By signing below, the parties to this Agreement represent that the information provided in this document and each of the attached forms is accurate. All parties agree to be bound by the terms and conditions set forth in this Agreement.
FOR BCLLC: FOR CUSTOMER:
By: _________________________ By: ______________________________
Print Name ___________________ Print Name ________________________
Title ________________________ Title ______________________________
Date ________________________ Date ______________________________
PROJECT TERMS & CONDITIONS
Boosted CRM, LLC has created this Statement of Work (SOW), detailing the professional services quotations based upon their perspective of your project. This SOW, if not approved, expires in 30 days, unless otherwise stated herein. If BCLLC determines that the project will require considerably more hours than originally estimated, you will be contacted for approval. BCLLC will prepare a Change Order stipulating the specifics of the additional work. In the event the scope of the project changes during performance, both parties consent to divulge information that would affect the scope of the project and potentially the price or the timetable. Services not listed in the SOW are excluded. The SOW does not include travel time, mileage, or expenses that may be included on the invoice. Note, additional charges for sales tax and shipping may apply. BCLLC will invoice semi-monthly for the professional services and expenses it has provided. Those costs are payable within thirty (30) days.
While BCLLC is performing requested services on your business applications and network environment, you shall be responsible for the following:
- Backup & Restore: Prior to BCLLC performing any of its services, the Customer must have completed and tested backup on all of its systems. Should BCLLC at any time for any reason need to restore from a backup, the Customer shall provide access to a resource that can operate and restore the information. The Customer will be assessed all costs associated with data recovery in cases where restoration is required and full backups are not available. DO NOT assume your backups are working.
- Test Environment: It is recommended that the Customer have a Test Database and/or Test Environment prior to BCLLC providing services or installing additional software. A Test Environment will decrease Customer risk to existing data by employing it prior to upgrading or installing application or modifications to the production system. At the Customer’s request, BCLLC can create Test Environments and may demand such a Test Environment for the performance of its services.
- On-site or Remote Access: BCLLC may require access to the Customer’s environment during or after normal business hours. The Customer agrees to make available all resources for access to their systems.
- Project Acceptance: The Customer shall review and verify any BCLLC solutions that have been delivered and/or implemented in the Customer’s systems. At the end of the project, BCLLC shall require a signature from the Customer accepting the services.
- Zoho Partnership Alignment: BCLLC functions under the name Boosted CRM for all work associated with Zoho, and any of its corresponding apps. In working with Boosted CRM for Zoho-related projects, the Customer agrees to partner his or her business with Boosted CRM by submitting a mapping token, or by allowing Boosted CRM to generate that token by using the Customer’s Zoho credentials
Boosted CRM RESELLER AGREEMENT
The Boosted CRM Reseller Agreement (“Agreement”) is a legal contract between you, both the individual reselling Boosted CRM Professional Service(s) (“Services”) and, if applicable, the company on whose behalf you are entering into this Agreement (“You” or “Reseller”) and Boosted CRM, LLC (“BCLLC” or the “Company”). For the purposes of this Agreement, Reseller is an independent contractor and not a partner, joint venture, franchisee, agent or employee of BCLLC. The Reseller shall not represent his or her relationship with BCLLC an anything other than that of an independent contractor or Reseller. BCLLC agrees to not classify Reseller as anything other than an independent contractor, consultant, or any other agreed upon designation that BCLLC previously approved.
This Agreement is distinct and independent from the Boosted CRM Master Services and Consulting Agreement (“MSCA”), which BCLLC has between the Company and its Customers. It is also separate from the ATBS
Privacy Statement, which protects the privacy all individuals (“Visitors”) who visit BCLLC website(s), as well as any who register or purchase professional services provided by ATBS (“Customers”). These professional services include, but are not limited to, Business Process Consulting, Cloud Integration, Workflow Automation, Enablement, Web Development and CRM Consulting.
The terms and conditions of this Agreement applies to all orders placed by a BCLLC Reseller via the BCLLC Reseller Portal (“Portal”). The Portal can be accessed from the BCLLC website, located at www.boostedcrm.com. BCLLC’s acceptance of a Reseller Order (“Order”), via the Portal is subject to Reseller’s consent to the terms and conditions in this Agreement. The Agreement becomes effective on the date BCLLC provides an authorized Reseller access to the Portal for placing an Order. Once Reseller enters the BCLLC website, he or she agrees to all the terms and conditions of this Agreement, including the limitations on liability set forth herein and the provisions governing BCLLC’s power to modify the Agreement. IF RESELLER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS AS SET FORTH HEREIN, RESELLER IS NOT PERMITTED TO USE THE BCLLC PORTAL FOR ORDERING.
- 1. Definitions
Pursuant to this Agreement, the following definitions apply:
“Confidential Information” is information identified in writing by BCLLC or the Customer as proprietary or confidential, which shall be treated as such. It shall contain, but not be limited to the following: BCLLC’s nonpublic and/or proprietary information or materials; its promotional and/or or marketing strategy and activity, its pricing data (e.g. rates, margins, and budgets); its financial and budget figures; its customer lists, its reports on the education, background, experience and skills of BCLLC employees; BCLLC employee compensation; its service and sales models, methodologies and/or sales practices; its customer satisfaction data or sales information identified as “confidential” by BCLLC once it has been disclosed, or verified in writing within a reasonable time (not to exceed thirty (30) days) after the disclosure. For the purposes of this Agreement, confidential information does not include the following material: (i) the recipient developed independently; (ii) the recipient knew before obtaining it under the Agreement; or (iii) that became public knowledge and was received from another source, in both cases other than by a breach of an obligation of confidentiality.
“Customer” refers to the company, organization, board, agency or individual person who purchases the Services from Reseller for its own use and not for res-sale or redistribution.
“Customer Contract” is any agreement between the Reseller and a Customer for Services to be provided by the Reseller.
“Customer Data” is all data, information, reports, analysis, artwork, logos, graphics, video, text, and other materials, including without limitation, financial data supplied by Customer to Reseller or BCLLC in connection with the purchase or receipt of the Services shall remain the sole and exclusive property of the Customer. This may cover personally identifiable financial records, including personal credit card information necessary for access to and receipt of the Services.
“Documentation” refers to BCLLC Services descriptions, user instructions and any other credentials connected to the Services provided by ATBS via an authorized Reseller, which BCLLC may supply to the Reseller on occasion as it relates to the sale of the Services.
“Intellectual Property” is defined as all patents, copyrights, moral rights, trademarks, trade secrets, trade dress and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
“Reseller Portal” refers to the sign-up and authorization portal provided by BCLLC on its website for Resellers to place Orders to resell BCLLC Services to Customers.
“Services” are professional consulting services offered under this Agreement, and may include a business process review, project planning, project management, implementation and enablement, ERP and CRM consulting, ZOHO implementation and training, software installation, integration, training, configuring, upgrading, diagnostics, development and general consulting services. It may also include BCLLC providing the Customer with Service Deliverables, the requisite software itself in which BCLLC will perform the aforementioned professional services in conjunction with the software purchased by the Customer.
“User” an employee, contractor or agent of the Customer, who has been approved by BCLLC and the Reseller to use the Services.
- 2. Non-Exclusive Appointment; Services
Under this Agreement, a Reseller shall accept an appointment by BCLLC as a one-time, non-transferable reseller of the Services to Customers. The appointment of Reseller by BCLLC shall establish a non-exclusive Agreement between the two parties. BCLLC, at its own discretion, has the authority to appoint and remove independent contractors and/or Resellers in the resale of the Services, or to directly sell the Services to Customers.
2.1 Customer Contracts
The Reseller and the Customer shall enter into a written Customer Contract, signed by both parties, for Reseller’s sale of BCLLC Services to the Customer. The Reseller will supply the Customer with access to the Services under a valid Customer Contract. The Reseller is prohibited from adding any terms or provisions to the Customer Contract that conflicts with or is otherwise inconsistent with the ATBS’ Privacy Statement, or any terms and conditions provided by BCLLC on its website or in this Agreement.
2.2 Consent to BCLLC Terms
The provision of the Services to Customers is dependent upon the Customer’s consent to BCLLC terms of service relevant to the Customer’s use of the Services. Prior to the delivery of Services, BCLLC will communicate with the Customer (via email or other means) to obtain consent. BCLLC shall not be required to deliver Services to any Customer, unless BCLLC has received the Customer’s consent to the terms of service.
2.3 Reseller Status
Reseller shall use due diligence in marketing, promoting and distributing the Services. The Reseller has the exclusive responsibility for the means, manner and method of its performance under this Agreement. In addition, Reseller has full discretion to set its own prices when selling the Services to its Customers.
2.4 Marketing and Promotion
BCLLC may offer promotional and marketing materials (“BCLLC Materials”) to Reseller. However, Reseller may develop its own advertising strategies and to sell the Services using all commercially reasonable promotional concepts and means of popularizing and providing access to the Services thru forums, social networks, blogs, printed media, personal or business websites, etc. However, the Reseller shall not: (a) market, promote or provide access to the Services to any person or entity currently using the Services at the time Reseller markets to the person or entity; (b) employs any type of advertising practice in violation of this Agreement or other BCLLC Policy; (c) infringe, dilute or otherwise violate the intellectual property rights of any third party; or (d) violate any applicable law, rule, regulation or order in such promotional activities.
2.5 Use by Customers Only
Reseller agrees to not use BCLLC Services for its own account, or for any other purpose under this Agreement. All Services sold to Reseller are intended only for use by Customers and its Users.
- 3. Order Process; Reseller Portal
BCLLC shall supply Resellers with an account, user name, and password to access the Reseller Portal on the BCLLC website. During registration, BCLLC requires Reseller to supply certain information, such as contact information, business qualifications (if applicable), and any other pertinent data necessary for becoming an authorized Reseller. It is the responsibility of Reseller to preserve the confidentiality of their account information and for all activities that occur under that account. Reseller represents and guarantees that: (a) all information submitted during registration is accurate and complete; (b) the Reseller is at least eighteen (18) years of age and has the legal capacity to enter into this Agreement; and (c) if registering on behalf of an entity or organization, Reseller is an authorized representative with the authority to legally bind such entity or organization to this Agreement. In the case BCLLC discovers Reseller has provided false, misleading or inaccurate information, BCLLC shall immediately terminate the Agreement upon notice to Reseller. The Reseller shall cease to hold itself out as a reseller of BCLLC Services.
Reseller may place Orders for Services on behalf of Customers by submitting them to BCLLC via the Reseller Portal. The Order shall include all essential information to enable BCLLC to perform the Services for the Customer as listed in the Reseller Portal. This will include the name of the Customer, the number of Users included in the Services, the date the Customer needs access to the Services, and any other instructions or requirements. All Orders received by BCLLC shall be deemed to have been authorized by the Reseller and the Customer.
In order for BCLLC to ensure the Services are available to the Customer, Reseller is obligated to provide complete and accurate information regarding the Customer’s Order. Reseller recognizes BCLLC will have access to all of the date and information provided by Reseller, Customers and Users.
- 4. Fees; Payment
Reseller agrees to pay BCLLC all fees for Services in the amounts listed in the Order (“Fees”). BCLLC has the right to increase Fees at any time within its discretion. Fees charged to Reseller constitute payment for Reseller’s right to sell Services to the Customers, which includes a 20 percent discount at BCLLC’s discretion. In addition, Reseller has the right to collect payments from Customers for the Services with suitable price mark-ups at the Reseller’s preference. BCLLC must be given notice and approve the desired mark-up price.
4.1 Payment Terms
All Fees shall be due and payable at the time Reseller submits an Order to BCLLC. Payment shall be made by submitting BCLLC with valid payment information, including a credit card number, billing address and any additional required information. BCLLC shall be deemed to have accepted the Order upon receipt of valid payment information from Reseller.
Under the Term of this Agreement, BCLLC has the right to audit the records of Reseller pertaining to the sale of Services to Customers to verify the Reseller is in compliance with the terms and conditions of the Agreement, including the calculation of Fees in accordance with Section 4.
- 5. Customer Data; Confidentiality
Reseller certifies that: (a) it has the right to use and permit BCLLC to use Customer Data furnished by the Customers in relation to the Services; and (b) it has not received notice that the Customer Data or use of the Data in connection with the Service infringes upon any third party’s Intellectual Property Rights, or violates and terms of any license or other agreement. Except the BCLLC provision of Services to Customer under an accepted Order, BCLLC shall not be liable for Reseller’s management of Customer accounts, including but not limited to, BCLLC adherence to instructions from Reseller regarding management of Customer accounts.
For the Term of this Agreement, each Party shall maintain in confidence the Confidential Information of the other Party, and shall not use such Confidential Information except as permitted herein. Each Party shall use reasonable care and/or the same degree of care in preserving such Confidential Information as it uses to protect its own from unauthorized use or disclosure. Both Parties agree to use such Confidential Information for the exclusive purpose of performing their obligations under the Agreement. Furthermore, each Party: (a) will not reproduce such Confidential Information, in any form, except as required under this Agreement to fulfill its obligations; and (b) will only divulge such Confidential Information to is employees and consultants, who need to know in order to accomplish their responsibilities related to this Agreement, and have been informed of their obligation to preserve the confidentiality of the Information prior to receiving it. Property of the Confidential Information remains with the disclosing Party during the Term of the Agreement and afterwards in perpetuity, subject only to the exceptions expressly stated in the Agreement.
- 6. Proprietary Rights
BCCLC and/or its licensors shall own and reserve all right, other than the limited rights expressly granted to Reseller under the Terms of this Agreement, title and interest in and to BCLLC Services. This includes, without limitation, any other BCLLC proprietary software or technology employed for use of the Services and all Intellectual Property Rights therein. Reseller accepts that BCLLC, or its third party licensors, shall retain all right, title and interest in and to the Services and all Intellectual Property Rights under the Terms of this Agreement. Reseller agrees to not take action during or after the Term of the Agreement that will diminish the rights of BCLLC Intellectual Property Rights in and to any of the foregoing.
- 7. BCLLC Services
BCLLC shall, subject to the terms and conditions of the Agreement, take make reasonable efforts to provide said Services to Customer. BCLLC agrees to render Reseller and/or Customer with support services as necessary to promote its performance of the Services.
- 8. Reseller Obligations and Acknowledgments
Reseller acknowledges that in order for BCLLC to properly, expeditiously and effectively perform Services for the Customer, Reseller and Customer must fully work together and abide by BCLLC’s reasonable requests made in conjunction with the provisions of the Services to Customer Section. Failure of Reseller and Customer to cooperate with BCLLC’s requests may result in BCLLC being incapable of effectively performing the Services. BCLLC accomplishment of the Services is subject to: (a) delays due to unforeseen Reseller or Customer requests, problems with the Customer’s systems, programs, accounts and data, as well as other unanticipated circumstances beyond BCLLC’s reasonable control; (b) Reseller’s, Customer’s, and third parties (under Customer’s control) ability to work with BCLLC; and (c) Reseller’s and Customer’s compliance with the Agreement and/or any other BCLLC Policy. BCLLC shall not be liable for any delays, deficiencies or failures that may occur in the performance of the Services as a result of Reseller’s or Customer’s omission to comply.
8.1 Compliance with Law
All registrations, license and permits that are essential for the performance under this Agreement will be acquired by the Reseller. The Reseller shall observe all applicable laws, rules, regulations and orders as it relates to the performance of this Agreement (in addition to rules involving exporting, importing and re-exporting of computer software; protection of privacy and personal information; and laws and policies related to unsolicited, commercial emails (SPAM) or any illegal or offensive actions).
Reseller shall not make any false or misleading statements pertaining to the Services, or make any statements regarding the specification, features, capabilities and applicable warranties, which conflicts with or adds to those set forth in this Agreement, other BCLLC Policies, the Documentation, Services/Product Descriptions or other marketing materials made available to Reseller by BCLLC.
8.3 Customer Requirement
BCLLC requires Reseller to certify it has the authority to grant BCLLC access to Customer’s systems and cloud computing accounts to provide Services. In order for BCLLC to provide these Services to the Customer, Reseller agrees to furnish BCLLC with specific information about the Customer, via the Reseller Portal, including Customer Data and the Customer’s contact and payment information. Reseller represents that (a) it is authorized by Customer to share Customer Data and other information with BCLLC; (b) it has disclosed to Customer that BCLLC (and not Reseller) will perform the Services; and (c) that Customer consents to receiving communications from BCLLC (via email or other means) related to BCLLC’s performance of the Services. Customers’ computer hardware, software and Internet connectivity must meet certain minimum requirements as specified in the enclosed Documentation. BCLLC is not liable if Customers cannot access the Services due to failure to meet the minimum requirements.
8.4. Agreement to Zoho CRM Terms
ON BEHALF OF THE CUSTOMER, RESELLER GRANTS BCLLC THE POWER TO REGISTER CUSTOMER FOR USE OF CERTAIN CLOUD COMPUTING SERVICES OFFERED BY ZOHO IN ORDER FOR BCLLC TO PROVIDE THE SERVICES. A STIPULATION OF RESELLER’S PURCHASE OF SERVICES AND CONSENT TO TERMS OF THIS AGREEMENT, RESELLER REPRESENTS THAT: (A) IT HAS AS A CONDITION TO RESELLER’S PURCHASE OF SERVICES HEREUNDER, AND BY AGREEING TO THE TERMS OF THIS AGREEMENT, RESELLER HEREBY REPRESENTS AND WARRANTS THAT: (A) RESELLER HAS RECEIVED AUTHORIZATION FROM EACH CUSTOMER TO PERMIT BCLLC TO REGISTER SUCH CUSTOMER FOR A SUBSCRIPTION TO THE ZOHO CRM, INCLUDING AUTHORIZATION TO SUBMIT CUSTOMER’S CONTACT AND PAYMENT INFORMATION TO ZOHO, (B) RESELLER HAS SUBMITTED A COPY TO CUSTOMER OF THE ZOHO ONLINE SUBSCRIPTION AGREEMENT FOR ZOHO CRM, AND (C) RESELLER OBTAINED CUSTOMER’S CONSENT TO BE BOUND BY ALL TERMS AND CONDITIONS OF SUCH SUBSCRIPTION AGREEMENT, INCLUDING ALL APPLICABLE PAYMENT TERMS AND FEES. RESELLER CONSENTS TO BCLLC USING AND SUBMITING RESELLER’S NAME AS THE AUTHORIZING PARTY WHEN REGISTRING CUSTOMER FOR THE ZOHO CRM UNDER THIS SECTION 8.4.
8.5. Changes to Services
BCLLC may, without prior notice, during the Term of this Agreement, introduce new Services and/or alter existing Services to Customers, Reseller, Users or others. These new or modified changes include revising the user interface, features, and functionality of the Services for improvements, or other necessary changes. In addition, BCLLC may modify the Documentation. BCLLC has the right, upon notification to Reseller, to end or change some or all Services.
8.6. Use of BCLLC Intellectual Property Rights
Reseller agrees to not or authorize any Customer, Users or other Person to: (a) use BCLLC Services in any manner or for any purpose other than is permitted under this Agreement; (b) access or use BCLLC Services in a manner to circumvent payment of incurring fees; (c) use BCLLC Services under any circumstances that violate this Agreement or any applicable laws, rules or regulations; (d) alter, modify, tamper with, or otherwise produce derivative works of any software, technology, content, or any BCLLC Intellectual Property Rights included in or used to offer Services; (e) disassemble, reverse engineer or decompile any software or BCLLC technology included in or used to deliver Services; or (f) attempt to uncover or reconstruct any software, technology or Intellectual Property Rights included in or used to provide Services.
8.7. Responsibility for Other Parties
Reseller shall be liable for any action it authorizes, aids or enables any of its officer, directors, employees, contractors, representatives, affiliates, agents, or other Person (collectively referred to as “Reseller Party(ies)) to interfere with the use of BCLLC Services or the Customer Data. It is the responsibility of Reseller to ensure all Reseller Parties are in compliance with this Agreement.
8.8 Notification of Unauthorized Use
Reseller shall immediately inform BCLLC, in writing, of any illegal misuse of BCLLC Services or breach of this Agreement that comes to their attention. In the event a third party has gained access to BCLLC work product, directly or indirectly through Reseller, Reseller shall action to stop such use and support BCLLC in its efforts to stop and/or prohibit illegal use of their work product associated with the provided Services.
Reseller shall not offer services to its Customers that are in direct competition with BCLLC Services, without prior written consent from BCLLC during the Term of this Agreement, and for one (1) year after completion of BCLLC Services. Reseller’s access to BCLLC Reseller Portal shall be restricted to reselling Services to Customers. Reseller is prohibited from using BCLLC Reseller Portal with the intention of creating (or intending to create), a service that contains similar performance or operations that competes with BCLLC Services (including other services or products designed to provide cloud computing migration and support services).
Reseller will be held accountable for protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other credentials and login information (collectively “Passwords”) that have been provided to Reseller or that are associated with Reseller’s or its Customers’ use of BCLLC Services, as well as the use of the BCLLC Reseller Portal. Reseller shall not reveal or make accessible Passwords other than to authorized Users, if applicable, and shall use reasonable efforts to block illegal access to, or use of, the Passwords. Reseller and/or its Customers are liable for all activities that occur in connection with the Passwords.
8.11 Suspension, Limitation or Termination
Without liability to Reseller, BCLLC may end, immediately interrupt or reduce access to the BCLLC Reseller Portal in the event: (a) BCLLC has discovered the BCLLC Reseller Portal is being used in violation of applicable federal, state or local law or ordinance, this Agreement or any other BCLLC Policy; (b) BCLLC verifies the BCLLC Reseller Portal is being used in a fraudulent manner or that Reseller or its Customers have presented erroneous or false information; (c) BCLLC concludes that Reseller’s or Customer’s use of the BCLLC Reseller Portal negatively affects BCLLC equipment or service to others; (d) BCLLC is forbidden by a court order or other governmental agency from offering the Services; (e) of a denial of service attack or other event which BCLLC agrees could possibly jeopardize the Services or to any other customers if the Services were not suspended; or (f) of a security incident or other disaster that effects the Services or safety of Customer Data. BCLLC shall not be liable for any damages, liabilities or losses as a result of any interruption, restriction or cessation of Resellers use of the BCLLC Reseller Portal, or a Customer’s use of the Services in accordance with this Section.
8.12 Postings Regarding the Services
Reseller assigns BCLLC a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, sub-licensable authorization to use, edit, reproduce, distribute, display, and publish, in whole or in part, and in any media, and at BCLLC discretion (without restrictions publication on the Internet) any replies, statements, reviews, or other postings made by Reseller involving BCLLC or the Services, whether directly to BCLLC, on any third party websites, or otherwise (“Postings”). Reseller agrees the Postings may include Reseller’s name, statements, and employer name (if applicable), and to submit additional testimonial affidavits and supporting documentation and proof at BCLLC request. BCLLC retains the right to name the Reseller as a “reseller” of the Services in BCLLC advertising materials and releases, however printed or displayed and in any medium. If applicable, the Reseller’s corporate logo as it may look on its website or other informational materials. Reseller represents the Postings were submitted without compensation to Reseller, were voluntarily given, and attest to Reseller’s confidence in BCLLC and its Services. Reseller agrees to waive and release BCLLC and its employees, officer, affiliates, successors, licensees, customers, agents and suppliers from any and all claims Reseller may assert (related to copyright, right of publicity, performer rights, right of privacy, contract, statute or tort) due to any use, edit reproduction, distribution, display or publication of the Postings by BCLLC or any third party approved to do so by BCLLC. Reseller shall not maintain: (a) any ownership, right or interest in the Postings; or (b) any claim to compensation involved in the use, reproduction, distribution, or publication of the Postings. Reseller may relinquish its authorization for BCLLC to use, edit, reproduce, distribute, display or publish Postings by contacting BCLLC, provided such relinquishment only applies to Postings which BCLLC can simply remove from BCLLC website or other websites. The relinquishment shall not include printed materials or publications in or ordered for circulation at the time the authorization is withdrawn.
- 9. Representations and Warranties; Disclaimer
Each Party represents that: (a) it is a valid entity in good standing under the laws of its state of incorporation; (b) has complete corporate power and authority to execute, deliver and perform its duties under this Agreement; (c) its execution, delivery and performance under this Agreement shall not result in its breach of or default under any agreement to which it is bound; (d) the person entering in this Agreement has been duly appointed and empowered to enter into this Agreement on the Party’s behalf; and (e) the Agreement is valid, binding and enforceable in accordance with its terms.
BCLLC PROFESSIONAL SERVICES ARE PROVIDED “AS IS.” EXCEPT AS PROVIDED UNDER THIS SECTION, BCLLC GRANTS NO WARRANTIES OF ANY KIND, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO BCLLC SERVICES, INCLUDING: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITENES OR SUITABILITY FOR ANY PURPOSE; (C) ANY WARRANTY THAT BCLLC SERVICES WILL BE UNINTERRUPTED, ALWAYS AVAILABLE, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT THE CUSTOMER DATA WILL NOT BE LOST OR DAMAGED; AND (D) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. THIS DISCLAIMER AND EXCLUSION APPLIES EVEN IF THE EXPRESS WARRANT SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
- Limitation of Liability
BCLLC SHALL NOT BE LIABLE TO RESELLER, CUSTOMER OR ANY THIRD PARY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF REVENUE, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WITH RESPECT TO THIS AGREEMENT OR ANY BCLLC PRODUCT, SERVICE OR APPLICATION, INCLUDING ALL SERVICES SUBJECT TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR STRICT LIABILITY, WHETHER OR NOT BCLLC WAS ADVISED OR AWARE OF THE PROSPECT OF SUCH DAMAGES. IN ADDITION, BCLLC SHALL NOT BE OBLIGATED TO COMPENSATE, REIMBURSE OR RESPONSIBLE FOR DAMAGES REGARDING: (A) RESELLER OR CUSTOMER’S INABILITY TO USE THE SERVICES AS A RESULT OF ANY PERIOD WHEN THE SYSTEM IS DOWN FOR ANY REASON, INCLUDING DUE TO POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (C) RESELLER’S INVESTMENTS, COMMITMENTS OR EXPENDITURES WITH RESPECT TO THIS AGREEMENT, CUSTOMER’S USE, OR ACCESS TO BCLLC SERVICES; OR (D) ILLEGAL ACCESS TO, ALTERATION OF OR DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE CUSTOMER OR OTHER DATA. UNDER THIS AGREEMENT, BCLLC’S AGGREGATE LIABILITY IS LIMITED TO FEES ACTUALLY PAID BY RESELLER FOR SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS PRIMARY PURPOSE
As to the other indemnification obligations listed in other sections of this Agreement, Reseller shall defend, indemnify and hold BCLLC and its directors, officers, employees, contractors, agents, successors and assigns (collectively “BCLLC Indemnitees”) harmless from and against any and all actions proceeding in law or equity, claims, damages, payments, deficiencies, fines, judgments, settlements, losses, costs, expenses, attorney fees, penalties, interest and disbursements (“Liabilities”) subsequent to any third party claim, suit, action or proceedings against any BCLLC Indemnitee, in connection with: (a) Reseller’s sale, failure to sell, or provide Customer access to BCLLC Services; (b) Reseller or Reseller Party’s use of Customer Data involving BCLLC Services under this Agreement; (c) any breach of the Agreement or Customer Contract, as well as, violation of law by Reseller or Reseller Party; (d) all statements, warranties, representations, contractual obligations and commitments Reseller made on BCLLC’s behalf that conflicts with the terms of this Agreement, the Documentation, or BCLLC Policy; or (f) Reseller or Reseller Party’s negligence or willful misconduct.
Reseller shall receive reasonable notice of any claim subject to the indemnification requirements pursuant to this Agreement. Failure of BCLLC to contact Reseller will only affect Reseller’s indemnification obligations to the extent such failure materially prejudices Reseller’s ability to defend the claim. If Reseller conducts an investigation to defend any claim, it shall control the defense and settlement at its own expense. Reseller agrees to not settle any claim that does not release BCLLC or results in a limitation on, admission by BCLLC, or subjects BCLLC to additional responsibilities. In the case where BCLLC decides Reseller has not investigated or strictly defended the claim, where Reseller is obligated to indemnify, BCLLC has the right to defend and settle such claim at Reseller’s expense.
- Term; Termination; Effect of Termination
This Agreement shall commence on the Effective Date and continue in effect, unless terminated by the Parties as provided in this document (“Term”). Either Party may end the Agreement, with or without cause, upon five (5) days written notice to the other Party. BCLLC shall perform all Services under Orders received and accepted prior to the termination date. Upon termination of this Agreement for any reason: (a) all Liabilities accumulated before the date of termination will survive; (b) the Parties shall furnish one another with all Confidential Information in its possession or destroy all copies according to the disclosing Party’s direction; and (c) Reseller will (i) cease to place Orders and represent itself as a reseller of the Service; (ii) discontinue use of BCLLC Services; (iii) cease all use of promotional, marketing or instructional materials related to the Services and return such to BCLLC. The following sections will survive any termination or expiration of this Agreement: Sections 1, 4, 5, 6, 8.9, 8.11, 9.1, 10, 11, 12 and 13.
Each payment required under this Agreement is non-refundable and non-creditable.
12.2 Expiration of Paid Consulting Fees
Under this Agreement, each payment that has not been utilized shall expire after 365 days, if the Customer does not respond. Payment under this Section is non-refundable, non-credible or usable)
12.3 One to One Online Training or Meeting Charges
The amount of hours charged will be doubled for every hour spent on an online meeting.
12.4 Onsite Consulting Charges
Every hour spent at your company site will be calculated 4 hours. The hours will be calculated from the time our consultant left the office to the time returned to the office.
- General Provisions
13.1 Entire Agreement
The Agreement, Order Form and any other terms and conditions listed in this document (“Additional Policies”) constitutes the entire Agreement of the Parties and supersedes all other agreements between them, whether oral or written, regarding the specific subject matter herein.
13.2 Governing Law; Venue; Dispute Resolution
This Agreement shall be governed by and enforced in accordance with the laws of the State of California, without resort to its conflict of law provisions. The Parties agree that any action at law or in equity pertaining to this Agreement shall be filed only in the state and federal courts located in Orange County, California. In addition, the Parties unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding originating from this Agreement.
Reseller shall not transfer, assign or delegate any rights or duties under this Agreement, by operation of law, without the prior written consent of BCLLC. Any attempted transfer, assignment or delegation will be declared void and without effect. BCLLC may voluntarily assign the Agreement and any rights and duties thereunder to an affiliate or other Person by operation of law, reorganization, change of control merger, sale of stork or its assets. This Agreement shall be binding upon all Parties and their personal representative, heirs, administrators, successors and assigns.
13.4. Relationship of the Parties
Neither Party will be considered an employee, representative, owner or Reseller of the other Party. The Parties’ only affiliation will be that of independent contractors. Neither Party has the authority to assume, enter any agreements or make any representations or guarantees on behalf of the other Party, whether expressed or implied, that will be binding on the other.
Neither Party shall reveal specific terms of this Agreement, issue a public statement, or a press release without the prior approval from the other Party. However, BCLLC may identify Reseller as an authorized reseller of the Services and display Reseller’s logo and/or other branding on BCLLC website and other promotional materials.
Failure of either Party to demand strict performance of the terms of this Agreement, or to exercise their rights and remedies under the Agreement will not be construed as a waiver of their rights or remedies; instead, the same will remain in full force and effect.
If any provision of this Agreement is null and void, illegal or incapable of being enforced by a rule of law or public policy, all other provisions will remain in full force and effect, as long as the legal and monetary matters intended in the Agreement does not negatively affect any Party. If a provision is found to be illegal, null and void or incapable of being enforced, the Parties shall a good faith effort to modify the Agreement for the purpose of instituting the original intent of the Parties so that the provisions contemplated are fulfilled.
All communications, notices or demands required under this Agreement will be considered to have been satisfactorily met for all intended purposes if they were: (a) personally delivered; (b) placed with a pre-paid messenger, express or air courier, or similar courier service; or (c) sent by telecopier, facsimile, email or other device that transmits a facsimile of the notice. Notices will be directed to a party at their address, facsimile number, or email address as listed below. Notice shall be deemed received in: (i) the case of personal delivery upon receipt; (ii) by messenger, express or air courier or similar courier service, two days after being deposited; and (iii) case of facsimile, telecopier, email or other device, the day of the confirmation receipt. Each Party may change the individual designated below or its contact information, or both by notice in accordance with this Section.
13.9 Force Majeure
In the event, either Party is precluded from executing, or unable to execute any of its responsibilities under this Agreement due to reasons beyond the reasonable control of the Party raising this provision, said Party’s performance will be excused, and the time for performance will be extended for the period of the delay or inability due to the occurrence; as long as said Party: (a) gives the other Party prompt notice of the nature and expected duration of the incident; (b) takes reasonable efforts to address and mitigate the cause and effect of the incident; (c) arranges for periodic notices of pertinent developments, and (d) gives prompt notice of the end of such event.
13.10 Modifications to the Terms and Conditions of the Agreement
BCLLC may modify the Terms and Conditions or any Additional Policies at any time by posting a revised version on its website. Unless otherwise set forth in this Agreement, the revisions shall be effective upon the earlier of: (a) ten (10) days after posting and/or notifying Reseller of the revisions; or (b) upon Reseller’s acceptance of the revisions, if BCLLC provides process for acceptance of the revised terms (e.g. a click-through confirmation or acceptance button). If Reseller continues to resell the Services after the effective date of the revisions, Reseller agrees to be bound by the revised Terms and Condition and/or revised Additional Policies. Reseller must consult BCLLC website on a consistent basis for modifications to the Terms and Conditions or the Additional Policies. If Reseller opposes any changes, Reseller has the exclusive remedy to terminate the Agreement and receipt of Services under Section 12.
Boosted CRM LLC
22961 Council Bluffs Ave.
Lake Forest, California 92630
Mark P Fahimi
Primary Billing Contact:
By signing below, the parties to this Agreement represent that the information provided in this document and each of the attached forms is accurate. All parties agree to be bound by the terms and conditions set forth in this Agreement.
FOR BCLLC: FOR RESELLER:
By: _________________________ By: _________________________
Print Name __________________ Print Name ___________________
Title ________________________ Title _________________________
Date ________________________ Date _________________________