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, service 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.
“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.
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.
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.
The success of this Agreement depends largely on the commitment of the Parties to work together by returning phone calls, attending scheduled meetings, providing necessary materials, information, and access to staff and board members, and otherwise cooperating to move steadily toward project completion.
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. 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.
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.
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, however, BCLLC may adjust fees prior to finalizing any 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. BCLLC may then refer collection of the unpaid amount to an attorney or collections agency. The Customer will be required to pay BCLLC any costs we or our agents incur in recovering monies you owe, including any attorney’s fees or collection agency fees in addition to the late fees and accrued interest. BCLLC is authorized to disclose information about your non-payment to a credit reporting agency. This may result in your loss of credit rating and/or court action against you. You may also be responsible for any recovery and/or legal fees incurred by BCLLC during the process.
FAILURE TO PAY ALL INVOICE IN FULL WILL RESULT IN BCLLC GAINING FULL OWNERSHIP OF THE INTELLECTUAL PROPERTY.
Boosted CRM will refuse to provide any support if the original code developed by Boosted CRM developers is modified!
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 the 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:
1. Consulting Services. Each Statement of Work will specify the rights in computer software and
materials supplied by BCLLC. 2. 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 rights 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.
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 ACTION 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 a notice of termination of this Agreement, effective on the date of assignment, by the other party.
Each payment required under this Agreement is non-refundable and non-creditable.
21. 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.
22. Unpaid Balances
In cases in which the projects are delivered by BCLLC but the customer has not paid the balance in full, the customer is legally responsible to pay the full balance on the initial invoice. BCLLC has the right to take legal actions against the client and file legal claims against the customer’s company. The actions taken by BCLLC to collect the unpaid balance will not be limited to approach credit bureau and collection agencies as well as providing realistic reviews to the public about the way the customer conducts business. Data migration projects balances should be paid in full prior to the final migration. BCLLC does not have any responsibility for any delay on migrations in which the invoice is not paid in full.
This agreement may be terminated at any time by either party, effective immediately upon notice, or the mutual agreement of the parties. In the event of termination, Boosted CRM and his subcontractors will be compensated for the Project performed through the date of termination in the amount of:
Prices for all completed work;
50% of the price of commenced, uncompleted work as of the date of termination;
All expenses, fees, out of pockets together with any additional costs incurred through and up to, the date of termination.
In the event of termination and upon full payment of compensation as provided herein, Boosted CRM grants to Client such right and title as provided for in this agreement with respect to those deliverables provided to and accepted by Client as of the date of termination.
23.1. 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.
24. 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.
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.
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.
27. 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.
28. 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.
29. 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 Orange County, 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 Orange 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 a 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.
30. 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
26632 Towne Centre Dr. Suite 300 Foothill Ranch, CA 92610
Telephone Number: (949) 677-9792
Email Address: email@example.com
Primary Contact: 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 CUSTOMER:
By: _________________________ By: ______________________________
Print Name: ________________ Print Name: Mark Fahimi
Title: _______________________ Title: President
Date _______________________ Date ______________________________