1 Description and Scope of Agreement
This Agreement is between you ("Customer") and Boosted CRM LLC ("BCLLC") for professional services, potential technological consultation, and product support services performed by BCLLC. "Agreement" and "Contract" are used interchangeably throughout and carry the same legal meaning, definition, significance, and enforceability.
The Agreement is entered into by BCLLC and ________________, becoming effective upon signature by both Parties and expiring at midnight on _________. Under this Agreement, BCLLC will issue Statements of Work for professional services and Services Descriptions for product support. It may also serve as the provision for BCLLC to supply computer software and directly related materials.
The Agreement will be titled Master Services and Consulting Agreement ("MSCA") #_____________, appearing on all change orders, notices, correspondence, services descriptions, and statements of work issued under it.
2 Contents of Agreement
The Agreement shall consist of: (1) All terms and conditions listed herein; (2) The Rate Schedule in the Appendix; (3) The Statement of Work; and/or (4) The Services Description. These documents constitute the entire agreement and supersede all prior communications, controlling in this order:
- The Agreement
- The Statement of Work
- The Services Description
General terms or purchase orders from the Customer are not applicable unless mandated by statute. Changes to this Agreement require a signed amendment by both parties.
3 Definitions
"Affiliate" — any legal entity owned by or which owns BCLLC, or under common ownership with BCLLC.
"Confidential Information" — information identified in writing as proprietary or confidential, including BCLLC pricing, financial data, customer lists, employee compensation, service methodologies, and any information marked "confidential" at disclosure. Excludes information independently developed, previously known, or publicly available without breach.
"Customer" — the company, organization, board, or agency that has signed this Agreement with BCLLC, including any subdivision that signs a Statement of Work under this Agreement.
"Customer Content" — all data, information, reports, artwork, logos, graphics, video, text, and financial data supplied by Customer, which remains the sole property of Customer.
"Fixes" — bug fixes, workarounds, patches, beta fixes, and beta builds of software products provided by BCLLC.
"Partners" — companies within the same industry as BCLLC with an ongoing, legally defined professional or commercial relationship.
"Service Deliverables" — computer software, code, and related materials other than fixes. BCLLC is not responsible for backing up Customer service deliverables after upload completion.
"Services Description" — an agreement for product support and maintenance services, including ZOHO Support Plans where required. Valid only when it directly references the Agreement by number.
"Statement of Work" — an agreement for professional services including installation, training, configuration, customization, upgrading, and consultation. Valid only when it directly references the Agreement by number.
"Subdivision" — any agency, department, commission, corporation, or other office supervised by or supervising the Customer.
"Work Order" — same as a Statement of Work for purposes of this Agreement.
4 Services
Under the terms of this Agreement, BCLLC agrees to provide all product support and professional consulting services to the Customer. The range of services will be stipulated in the Statements of Work (professional services) or Services Descriptions (product support and maintenance).
BCLLC's ability to supply services is 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 Statement of Work or Services Description.
5 Supportability
BCLLC may add support for new products or discontinue support for outdated products. The Customer will receive three months' notice prior to any discontinuance, unless BCLLC is legally bound to act immediately. BCLLC will notify the Customer when an implementation cannot be effectively supported; the Customer then has 30 days to make it supportable.
Product support and maintenance may include: (i) telephone and web portal support five days a week; (ii) remote support; (iii) on-site technical support; and (iv) ZOHO Support Plans where required.
5.1 Expectations
The success of this Agreement depends on both parties returning calls, attending meetings, providing necessary materials, and cooperating to move steadily toward project completion.
6 Support for Unlicensed Products
It is BCLLC's policy not to render support services for any product — hardware or software — that does not have a valid license.
7 Fees and Expenses
The Customer agrees to pay BCLLC the fees listed in the Statement of Work and Services Description, plus reasonable out-of-pocket travel and living expenses unless waived in writing. BCLLC will submit invoices on a bi-monthly basis.
Professional Services are billed at an hourly rate covering business process review, project planning, CRM consulting, ZOHO implementation, training, software development, and related activities. All software is sold "as is" and all diagnostic work is billable at the established hourly rate.
Product Support and Maintenance Services are billed hourly covering remote support, on-site support, and ZOHO Support Plans. Pre-paid support plans are available and negotiated at signing. For fixed-price projects, a 50% deposit is required in advance; the remainder is due upon completion.
Customers will not be billed for correction of errors attributable to BCLLC's own professional consulting or for system restoration to back out BCLLC changes. All invoices must be paid within 30 days. A finance charge of the lesser of 1.5% per month or the maximum allowed by law will be assessed on amounts past due beyond 30 days. Failure to pay for more than 60 days constitutes a material breach.
8 Restrictions on Use
The Customer may not:
- Rent, lease, lend, or host Service Deliverables without prior written consent from BCLLC;
- Reverse engineer, decompile, or disassemble fixes or Service Deliverables, except as expressly permitted by applicable law or written consent from BCLLC; or
- 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 is of U.S. origin and agrees to comply with all applicable international and national laws, including U.S. Export Administration Regulations. Neither party grants the other the right to use trademarks, trade names, or other designations without express written consent.
9 Ownership and License
Each Statement of Work will specify the rights in computer software and materials supplied by BCLLC. The Customer retains license to all fixes. BCLLC will not transfer ownership rights in any licensed products and reserves all rights not expressly granted herein. Rights in computer software for product support services will be listed in the Services Description.
10 Confidentiality and Disclosure
The Customer agrees not to disclose BCLLC Confidential Information to any third party for five years from the date of disclosure without prior written consent. BCLLC Confidential Information remains the property of BCLLC and shall not be transferred to the Customer as a result of services under this Agreement.
BCLLC agrees for five years from disclosure to: (i) not voluntarily reveal Customer Confidential Information to another person or entity; and (ii) use all reasonable measures to protect and prevent unauthorized disclosure.
Disclosure of Confidential Information is prohibited except when obtaining advice from legal or financial consultants or when required by law. When Confidential Information is no longer needed, each party shall return it to the other or destroy it upon request.
11 Retained Rights Regarding Confidentiality
Neither party is prohibited from creating independent products without using the other's Confidential Information. Both parties may provide voluntary feedback with respect to the other's Confidential Information; the receiving party is not obligated to hold it in confidence but must obtain consent before disclosing the source.
Both parties acknowledge that unauthorized disclosure shall give rise to irreparable harm, and the non-disclosing party may seek injunctive relief in addition to any other legal remedies.
12 Cooperation in the Event of Disclosure
Both parties agree to immediately contact the other upon discovery of any unauthorized use or disclosure of Confidential Information, and to work together reasonably to assist the other in regaining possession and preventing further unauthorized use.
13 Knowledge Obtained or Derived
BCLLC may use technical information derived from providing services — problem resolution, troubleshooting, product enhancements — for its knowledge base. BCLLC shall not identify the Customer or reveal any Customer Confidential Information in any knowledge base item.
14 Independent Contractor; Subcontractors
BCLLC provides services as an independent contractor and is responsible for all social security, unemployment, workers' compensation, and other withholding taxes for its employees. BCLLC may use subcontractors and will be responsible for their performance.
15 Intellectual Property Ownership
This Agreement does not transfer any of the Customer's technology or intellectual property to BCLLC. The Customer remains the sole owner of all Intellectual Property, Workflows, and Software Applications comprising the ZOHO Application Project, retaining all rights to use, copy, and redistribute the Application worldwide.
Boosted CRM LLC agrees not to disclose confidential information related to the Project and Workflows, and shall not decompile, copy, disassemble, or reverse engineer the Project, nor retain any rights to license the Project or its Workflows to any third party — including any company in the environmental testing industry worldwide.
16 Warranties, Express or Implied, Disclaimer
BCLLC warrants that all services will be performed according to industry standards using commercially reasonable efforts.
17 Indemnification
The parties agree to indemnify, defend, and hold harmless each other from and against all claims, actions, damages, liabilities, costs, and expenses (including reasonable attorney's fees) arising out of or in connection with:
- The accuracy, validity, or truthfulness of Customer Content or representations in any documents;
- A party's failure to comply with applicable law or regulation;
- Third-party claims of infringement of patents, trade secrets, copyrights, trademarks, or similar proprietary rights;
- Death or bodily injury caused by the other party's gross negligence or willful misconduct;
- Damage, loss, or destruction of property caused by the other party's gross negligence or willful misconduct; and
- Any damages arising out of a breach of a party's representations, warranties, covenants, or duties under this Agreement.
18 Limitation of Liability; Time
Except as expressly provided herein, BCLLC shall not be liable for negligence, loss of data, time, revenue, profits, or consequential, incidental, direct, indirect, exemplary, or punitive damages, even when 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.
Any action arising under this Agreement must be brought within one (1) year from the date the cause of action arose.
19 Term and Termination of Agreement; Assignment
This Agreement shall remain in effect until terminated by either party with 30 days' written notice, or immediately upon a material breach not cured within 30 days of written notice. The Customer shall pay all fees for services performed prior to termination. Termination ends all outstanding Statements of Work and Services Descriptions.
Neither party may assign this Agreement without the written consent of the other. Any unauthorized assignment may be deemed a notice of termination effective on the date of assignment.
20 Non-Refundable
Each payment required under this Agreement is non-refundable and non-creditable.
21 Expiration of Paid Consulting Fees
Each payment that has not been utilized shall expire after 365 days if the Customer does not respond.
22 Unpaid Balances
Where projects are delivered but the Customer has not paid in full, the Customer is legally responsible to pay the full amount on the initial invoice. BCLLC reserves the right to take legal action, approach credit bureaus and collection agencies, and provide public reviews of the Customer's business conduct. Data migration project balances must be paid in full prior to the final migration.
23 Termination
This Agreement may be terminated at any time by either party, effective immediately upon notice or mutual agreement. Upon termination, Boosted CRM and its subcontractors will be compensated for:
- Prices for all completed work;
- 50% of the price of commenced, uncompleted work as of the date of termination; and
- All expenses, fees, out-of-pocket costs, and additional costs incurred through the date of termination.
23.1 Survival Upon Termination or End of Term
The following provisions survive any termination or expiration: (i) warranty; (ii) limitation of liability; (iii) confidentiality; (iv) fees and expenses; (v) obligations on termination; and (vi) ownership and license.
24 Non-Solicitation of Employees
During the term of this Agreement and for 18 months thereafter, neither party shall directly or indirectly solicit, employ, or engage as a consultant any employee, agent, or subcontractor of the other party. A breach of this Section entitles the non-breaching party to injunctive relief without the necessity of posting a bond, in addition to any other available remedies.
25 Non-Competition
The Customer, during the term of this Agreement and for 18 months thereafter, shall not directly or indirectly offer business consulting services similar to or competitive with BCLLC's services in any territory in which BCLLC operates. The Customer acknowledges that BCLLC offers its products and services throughout the United States, Canada, and worldwide.
26 Severability
If a court finds any provision of this Agreement 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
No waiver shall be enforced unless expressed in writing and signed by an authorized representative of the waiving party. Waiver of any breach shall not be a waiver of any other breach.
28 Force Majeure
Neither party shall be liable to the extent it was prevented or delayed for reasons beyond its control, so long as that party resumes performance as soon as practical after the reason no longer exists.
29 Alternative Dispute Resolution & Applicable Law
Any dispute or breach shall be settled by binding Arbitration under the rules of the American Arbitration Association as the exclusive method of dispute resolution. The Arbitration Panel shall consist of three arbitrators. The hearing shall take place in Orange County, California. The award is final, binding, and not subject to appeal.
This Agreement shall be governed by the laws of the State of California without regard to conflict of laws provisions. Exclusive jurisdiction and venue for all legal actions shall be in courts of competent jurisdiction located in Orange County, California.
30 Addresses and Points of Contact
All notices, authorizations, and requests must be sent by postal service, express courier, facsimile, or email to the addresses below. Notices are deemed delivered on the date shown on the postal return receipt or on the courier, facsimile, or email confirmation of delivery.
Boosted CRM LLC
Address: 200 Spectrum Center Dr. #300
Irvine, CA 92618
Phone: (949) 677-9792
Email: admin@boostedcrm.com
Primary Contact: Mark P. Fahimi
Customer
Address: ___________________________
Phone: ___________________________
Fax: ___________________________
Email: ___________________________
Primary Contact: ___________________________
Billing Contact: ___________________________
33 Signatures
By signing below, the parties represent that the information provided in this document is accurate and agree to be bound by all terms and conditions set forth in this Agreement.
