MASTER SERVICES AND CONSULTING AGREEMENT
§1. Description and Scope of Agreement.
This contract serves as the Master Services and Consulting Agreement (“Agreement”) under which Statements of Work orders may be issued for professional services, as well as Services Descriptions for product support and maintenance-related services, to be performed by Agile Business & Technology Solutions, LLC (“ABTS”) as listed in the Addresses and Points of Contact section of this Agreement. This Agreement is entered into by ABTS and _________________________ (“Customer”) and is effective as of the date signed. This Agreement expires at midnight on ________________. For the purposes of this Agreement, ABTS and the Customer may be referred to as such or as the Parties to this Agreement. The terms “contract” and “Agreement” are at times alternately referred to in description of this specific document and its contents, yet the interchangeable usage of said terminology should be understood to have the same legal meaning, enforceability and significance regardless of which term is referenced hereto, as both “contract” and “Agreement” share the exact same definition while used in reference to this individual document.
This Agreement is for the provision of professional services, to potentially include technological consultation and product support services depending upon the Customer’s requirements, to be performed by ABTS. This Agreement may also serve as the provision for ABTS to provide computer software and directly related materials relevant for operation of said software, including documentation, manuals, and other information acquired in conjunction with, and necessary for, the professional services provided by ABTS to Customer.
All professional services provided under this Agreement, as well as any software and directly related materials relevant for operation of said software, shall be defined in either a Statement of Work or a Services Description, each of which is clearly identified with this contract. If the terms of the Statement of Work or the Services Description differ from the Agreement, notice must be given to the point of contact, in the manner of, and at the locations outlined in the addresses section below.
This Agreement shall be referred to as Master Services and Consulting Agreement (“MSCA”) #______________ on all correspondence, change orders, notices, services descriptions, or statements of work issued under it.
§2. Contents of Agreement.
This Agreement consists of (1) this document, including all terms and conditions listed herein, (2) an appendix to this document, which shall be the Rate Schedule in force for ABTS Services at the time and place of the Agreement, (3) any Statement of Work entered into under this Agreement, and/or (4) any Services Description entered into under this Agreement.
The documents identified in this section of this Agreement constitute the entire agreement between the parties to this Agreement concerning the subject matter hereof, and supersede any other prior and contemporaneous communications. The terms of these documents shall control in the following order: (i) this Agreement; (ii) any Statement of Work; and/or (iii) any Services Description. The terms of any purchase order or any general terms and conditions the Customer or its Subdivisions maintain, other than those mandatory terms required by statute or regulation, do not apply. This Agreement can be changed only by an amendment signed by both parties.
§ 3. Definitions.
In this Agreement:
An “Affiliate” is any legal entity owned by ABTS, which owns ABTS, or is under common ownership with ABTS.
“Confidential Information” is information marked or otherwise identified in writing by a party to this contract as proprietary or confidential or that, under the circumstances surrounding the disclosure, ought in good faith to 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 ABTS’ promotional and/or marketing strategy and activity, ABTS’ pricing information (including but not limited to rates, margins, and budgets), ABTS’ financial and budget information, ABTS’ customer lists, information about the education, background, experience, and/or skills possessed by ABTS’ employees, ABTS’ employee compensation information, ABTS’ service and/or sales concepts, ABTS’ service and/or sales methodology, ABTS’ service and/or sales techniques, ABTS’ customer satisfaction data or sales information, or any information which ABTS 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. All beta products are confidential unless excepted in the section regarding Confidential Information later in this Agreement. Confidential information does not include information which: (i) the recipient developed independently; (ii) the recipient knew before receiving it under the relevant agreement; or (iii) is or subsequently becomes publicly available 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 of this Agreement and that has signed this Agreement with ABTS. “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 ABTS 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 ABTS.
“Partners” are companies, organizations, or other entities within the same industry as ABTS with which ABTS 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.
“Services” are professional consulting services as provided under this Agreement, and may include a business process review, project planning, project management and implementation, ERP and CRM consulting, ZOHO implementation and training, software installation, integration, training, configuring, upgrading, diagnostics, development and general consulting services. It may also include ABTS providing the Customer with Service Deliverables, the requisite software itself in which ABTS will perform the aforementioned professional services in conjunction with the software purchased by the Customer.
A “Services Description” is an agreement entered into by ABTS and the Customer under the terms of this Agreement for the purpose of obtaining product support and maintenance services related to the requisite software as installed, to include ZOHO Support Plans if required for ABTS’ ZOHO users, all of which to be provided to the Customer by ABTS directly. A Services Description is a valid part of this agreement only if it directly references this Agreement by number.
A “Statement of Work” is an agreement entered into by ABTS and the Customer under the terms of this Agreement for the purpose of obtaining professional services, to be provided to the Customer by ABTS, 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 is a valid part of this Agreement only if it directly references this Agreement by number.
“Subdivision” is any agency, board, commission, corporation, partnership, department, instrumentality, division, unit or other office that is supervised by or is part of the Customer, or which supervises the customer or of 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.
A “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.
ABTS agrees to provide product support and professional consulting services under the terms and conditions of this Agreement. The precise scope of any services to be provided under this Agreement will be specified in Statements of Work (for professional services, as defined under “Services” above) or Services Descriptions (for product support and maintenance services, also defined under “Services Description” in Section 3) entered into under this Agreement. The Customer or any subdivision of the Customer may enter into Statements of Work and/or Services Descriptions under this Agreement with the applicable division of ABTS signing this Agreement, or any other division or affiliate of ABTS. ABTS’ ability to deliver the services described in Statements of Work and/or Services Descriptions depends upon full and timely cooperation by the Customer and the Customer’s staff, as well as the accuracy and completeness of any information provided. This Agreement does not obligate either ABTS or the Customer to enter into any specific Statement of Work or Services Description.
During the term of a Services Description, ABTS may add support for new products, created and/or provided by ABTS or one or more of its Partners, or discontinue support for products that are obsolete or for which the intellectual property rights are sold to another company with no partner relationship to ABTS. If ABTS discontinues support for a product, it must give the Customer three months notice prior to the discontinuance of services, unless it is legally bound to discontinue services. If ABTS sells to another entity the intellectual property rights to one or more of its products, it will give the Customer notice of the sale under the terms of this Agreement and will either arrange for the purchasing entity to continue the support immediately or continue support itself for 90 days to give the Customer time to make alternative arrangements.
There may be cases where the Customer’s implementation of a product or group of products cannot be effectively supported. As part of providing the support services, ABTS will notify the customer if it determines that such a situation exists. If the Customer is unwilling to modify the implementation to make it effectively supportable within 30 days after notice from ABTS that the implementation cannot be supported, ABTS will not be obligated to provide additional support services for that particular implementation.
Pursuant to the terms of ABTS’ Services Descriptions, ABTS’ software product support and maintenance may include any or all of the following: (i) telephone support manned by skilled customer service technicians, providing 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 in which ABTS uses its software remotely to access a customer’s computer system, allowing ABTS to perform hands on repair; (iii) on-site technical product support services in which ABTS 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 ABTS’ ZOHO users.
§6. Support for Unlicensed Products.
ABTS will not provide support services of any kind for products, either hardware or software, that are not validly licensed.
§7. Fees and Expenses Incurred in Performance of this Agreement.
The Customer agrees to pay ABTS the fees described in each Statement of Work and Services Description. Unless such expenses are specifically included in the rates provided to the Customer as an attachment to this Agreement, or are unambiguously waived in the specific Statement of Work or Services Description under which the services are performed, the Customer also 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 customer is a government entity, ABTS shall comply with the requirements of law in the Customer’s jurisdiction regarding the amount of, calculation of, and payment of travel and living expenses.
For work performed in furtherance of this or any similar MSCA Agreement, ABTS’ will on a bi-monthly basis provide a billing invoice to Customer, calculated at an hourly, billable rate for the following professional consulting services and product support assistance, as documented in each customer’s Statement of Work and/or Services Description:
Professional Services – ABTS will charge Customer an hourly billable rate, in an amount to be predetermined by ABTS, for professional consulting services associated with any Service Deliverables (software) ABTS has provided by sale to Customer, to potentially include ABTS’ 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. ABTS may also need to engage in multiple diagnostic attempts for correction of issues once the software has been installed, due to all software being sold “as is” with possible unknown bugs or imperfections in need of rectification. Technical diagnoses and the correction of issues surrounding ABTS’ provided software, which may require multiple attempts by ABTS to resolve, potentially include off-site research or testing, communication with software publishers and consultation with Customer’s IT team or related consultants, are all billable at an hourly rate by ABTS, at a rate to be predetermined by ABTS and disclosed to Customer at the time this Agreement is signed. All hourly rates and descriptions of ABTS’ professional consulting services associated with said rates will be documented in the Statement of Work accompanying this Agreement.
Product Support and Maintenance Services – ABTS will charge Customer an hourly billable rate, in an amount to be predetermined by ABTS, for professional product support and maintenance services associated with any Service Deliverables (software) ABTS has provided by sale to Customer, to potentially include ABTS’ support services involving (i) remote support in which ABTS uses its software remotely to access a customer’s computer system, allowing ABTS to perform hands on repair; (ii) on-site technical product support services in which ABTS travels to a customer’s location to provide personal product support streamlined to each customer’s specific issues and needs; and (iii) implementation of ZOHO Support Plans if required for ABTS’ ZOHO users. ABTS also offers pre-paid product support plans, not based on hourly billable rates, which can be negotiated between Customer and ABTS at the time of the signing of the MSCA. All hourly rates and descriptions of ABTS’ professional product support and maintenance services associated with said rates will be documented in the Services Description accompanying this Agreement. Any pre-paid product support plan would also be specifically documented within the Services Description associated with this Agreement or other similar MSCA.
ABTS will not bill Customer at hourly increments for the correction of any errors personally perpetrated by ABTS in association with their professional consulting services or product support and maintenance, of which ABTS has had to spend time rectifying and correcting. ABTS will also not bill Customer for any time spent with system restoration to back out changes made by ABTS.
In addition to ABTS’ hourly billing practice, ABTS reserves the right to occasionally perform some services after installation of software pursuant to a fixed contract rate (i.e. custom programming, large report writing projects, etc.) A Statement of Work will be created at the beginning of the project and Customer will be given a fixed price for what it will cost to complete the task. Client will submit a deposit of 50% of the fixed contract price in advance of the work to be performed, with the remainder to be paid at the completion of the special project. This rare digression from the normal hourly billing rate for ABTS’ work on behalf of a customer will only occur under special circumstances, predetermined by ABTS, and will be fully documented in the Statement of Work associated with the applicable MSCA. This departure from the ABTS’ hourly billing method will be discussed and agreed upon with ABTS and Customer before any MSCA is signed by the parties.
The Customer agrees to pay invoices issued under this Agreement within 30 days of the date of the invoice. ABTS will not change its fees during the term of a Statement of Work or Services Description. However, ABTS may adjust fees prior to entering any Statement of Work or Services Description. ABTS’ 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. ABTS is responsible for taxes based upon its own personal property ownership and net income. ABTS is authorized under this Agreement 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 ABTS’ 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, except where ABTS agrees by written agreement;
2. Reverse engineer, decompile or disassemble fixes or Service Deliverables, except to the extent expressly permitted by applicable law despite this limitation or where ABTS agrees by written agreement;
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 the 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.
Software and materials provided by ABTS in connection with the services will be provided subject to the following provisions:
a. Consulting Services. Each Statement of Work will specify the rights in computer software and materials delivered under it.
b. 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 ABTS on the provider of the product. All fixes are licensed to the Customer. ABTS 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 acknowledges that it has access to the World Wide Web. ABTS may also provide other computer software and materials, as limited by the terms of this contract, in connection with product support services. The Services Description will specify the rights in the computer software and materials for those services. ABTS does not transfer ownership rights in any licensed products and it reserves all rights not expressly granted.
§10. Confidentiality and Disclosure.
Customer understands and acknowledges that ABTS may, from time to time, disclose “Confidential Information” to Customer. Customer will not disclose ABTS’ Confidential Information to any third party at any time for a period of five years from date of disclosure, unless provided prior written consent by ABTS, and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants. Further, ABTS’ Confidential Information shall include the terms set forth in this Agreement, all of which shall remain the property of ABTS and shall in no event be transferred, conveyed, or assigned to Customer as a result of the services provided pursuant to this Agreement. The foregoing duty shall survive any termination or expiration of this Agreement.
ABTS also understands and acknowledges that Customer may, from time to time, disclose to ABTS proprietary ideas, concepts, expertise, and technologies developed by Customer relating to computer application programming, installation, and operation (collectively “Customer’s Confidential Information”). Customer may further provide to ABTS documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, or other forms of records or information relating to Customer’s business operations (collectively “Confidential Content”). ABTS agrees for a period of five years from date of disclosure (i) not to use any Customer Confidential Information or Confidential Content for its own use or for any purpose other than the specific purpose of completing the professional services hired by Customer to perform; (ii) not to voluntarily disclose any Customer Confidential Information or Confidential Content to any other person or entity; and (iii) to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Customer Confidential Information and/or Confidential Content in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have such Customer Confidential Information and/or Confidential Content. The foregoing duty shall survive any termination or expiration of this Agreement.
For a period of five years after disclosure, neither party will use the other’s Confidential Information without the other’s written consent except in furtherance of the relationship created by this Agreement or subsequent agreements or disclose the other’s Confidential Information except (i) to obtain advice from legal or financial consultants, or (ii) if compelled by law, in which case the disclosing party will use its best efforts to give the other party notice of the requirement so that the disclosure can be contested. The Parties to this Agreement will take reasonable precautions to safeguard each other’s Confidential Information. Such precautions will be at least as great as those each take to protect their own Confidential Information. The Parties to this Agreement will disclose each other’s Confidential Information to their respective employees or consultants only on a need-to-know basis and subject to the confidentiality obligations imposed here. When Confidential Information is no longer necessary to perform any obligation under any of the agreements, each party will return it to the other or destroy it at the other’s request. Notwithstanding any other provision of this Section and if the Customer is a government entity, the Customer may disclose the terms and conditions of this agreement in accordance with the requirements of any public records law.
In no event shall Customer use ABTS’ Confidential Information to reverse engineer or otherwise develop products or services functionally equivalent to the products or services of the Owner.
The following shall not be considered Confidential Information for purposes of this Agreement: (a) Information which is or becomes in the public domain through no fault or act of the receiving party; (b) Information which was independently developed by the receiving party without the use of or reliance on the disclosing party’s Confidential Information; (c) Information which was provided to the receiving party by a third party under no duty of confidentiality to the disclosing party; or (d) Information which is required to be disclosed by law with no further obligation of confidentiality, provided, however, prompt prior notice thereof shall be given to the party whose Confidential Information is involved.
§11. Retained Rights Regarding Confidentiality and Disclosure.
The Parties to this Agreement are free to develop products independently without the use of the other’s Confidential Information. Neither party is obligated to restrict the future work assignments of people who have had access to Confidential Information. In addition, these people are free to use the information that they remember related to information technology, including ideas, concepts, know-how or techniques, so long as they do not disclose Confidential Information of the other party in violation of this agreement. This use shall not grant either party any rights under the other’s copyrights or patents and does not require payment of royalties or separate license. The Parties to this Agreement may provide suggestions, comments or other feedback to the other with respect to the other’s Confidential Information. Feedback is voluntary and the receiving party is not required to hold it in confidence. The receiving party will not disclose the source of feedback without the providing party’s consent. Feedback may be used for any purpose without obligation of any kind.
The parties agree that the disclosure of any of the foregoing Confidential Information by either party shall give rise to irreparable injury to the owner of the Confidential Information, inadequately compensable in monetary damages. Accordingly, the non-disclosing party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies that may be available.
§12. Cooperation in the Event of Disclosure of Confidential Information.
The Parties to this Agreement mutually agree to immediately notify the other upon discovery of any unauthorized use or disclosure of Confidential Information and agree to cooperate in any reasonable way to help the other regain possession of the Confidential Information and prevent further unauthorized use.
§13. Knowledge Obtained or Derived.
ABTS may use any technical information derived from providing the services relating to problem resolution, troubleshooting, product functionality enhancements and fixes, for its knowledge base. ABTS agrees not to identify the Customer or disclose any of the Customer’s confidential information in any item in the knowledge base.
§14. Independent Contractor; Subcontractors.
ABTS 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. ABTS 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 from ABTS to Customer any of ABTS’ technology and related intellectual property, and all right, title and interest in and to ABTS’ technology and related intellectual property, will remain solely with ABTS. This Agreement does not transfer from Customer to ABTS any of Customer’s technology and related intellectual property, and all right, title and interest in and to Customer’s technology and related intellectual property, will remain solely with Customer. ABTS and Customer each agree that it 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.
ABTS warrants that all services will be performed using generally accepted industry standards and practices. ABTS will use commercially reasonable efforts in providing professional and product support services, and warrants that it will use commercially reasonable efforts in providing professional and product support services.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ABTS 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. ABTS WILL NOT BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY THIRD PARTY VENDORS, DEVELOPERS OR CONSULTANTS IDENTIFIED OR REFERRED TO THE CUSTOMER BY ABTS OR ITS EMPLOYEES, AFFILIATES, OR AGENTS UNLESS SUCH THIRD PARTY PRODUCTS OR SERVICES ARE PROVIDED UNDER WRITTEN AGREEMENT BETWEEN ABTS AND THE CUSTOMER, AND THEN ONLY TO THE EXTENT EXPRESSLY PROVIDED IN SUCH AGREEMENT.
ABTS and Customer hereby 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, in the case of the Customer, or Services and/or Service Deliverables, in the case of ABTS, and any representations made by the other party in any documents (including without limitation, any prospectus or business plan); (b) the other 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, in the case of the Customer, or Services and/or Service Deliverables, in the case of ABTS; (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 herein, ABTS, 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 ABTS is informed of the possibility of such damages.
In no event will ABTS be liable for any data loss. Backup and disaster recovery are the responsibility of the Customer. ABTS’ services under this contract may be available to help 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 and unique responsibility of the Customer.
REGARDLESS OF WHETHER ANY REMEDY SET FORTH 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 ABTS, OR THE CUSTOMER CONTENT, CUSTOMER’S PRODUCTS AND SERVICES, OR ANY PART THEREOF, IN THE CASE OF CUSTOMER.
ABTS’ TOTAL LIABILITY FOR ALL CLAIMS MADE UNDER THIS AGREEMENT SHALL NOT UNDER ANY CIRCUMSTANCES EXCEED THE SUM TOTAL OF THE FEES PAID BY CUSTOMER TO ABTS UNDER THIS AGREEMENT FOR THE SERVICES. THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT RUN 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 18 DO NOT APPLY TO THE INDEMNIFICATION OBLIGATIONS OF CONSULTANT OR CUSTOMER FOR THIRD PARTY CLAIMS AS SET FORTH IN SECTION 17 IMMEDIATELY ABOVE. THE LIMITATIONS IN THIS SECTION WILL NOT APPLY WITH RESPECT TO ABTS’ 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. Either party may terminate this Agreement, any Statement of Work or Services Description for convenience by giving the other party 30 days written notice. Either party may terminate this Agreement or any work order or Services Description 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 agrees to pay all fees for services performed and expenses incurred prior to the termination of this Agreement. Termination of this Agreement will terminate all outstanding Statement of Work or Services Description entered into 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 by a party to this Agreement 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 provisions regarding warranty, limitation of liability, confidentiality, fees and expenses, obligations on termination or expiration, ownership and license, and miscellaneous of this Agreement, and any provisions specified as surviving in a Statement of Work or Services Description, survive any termination or expiration of this agreement, any Statement of Work or Services Description.
§21. Non-Solicitation of Employees.
The parties shall not, during the Term of this Agreement and for a period of eighteen (18) months thereafter, directly or indirectly solicit, employ, offer to employ, or engage as a consultant, any employee, agent, consultant or subcontractor of the other party. The parties agree that, in the event of any breach of this Section 21, the non-breaching party will not have an adequate remedy in money or damages. The parties therefore agree that, in such event, the non-breaching party shall be entitled to obtain injunctive relief against such breach in any court of competent jurisdiction, without the necessity of posting a bond even if otherwise normally required. Such injunctive relief will in no way limit the non-breaching party’s right to obtain other remedies and damages available under applicable law.
During the Term of this Agreement and for a period of eighteen (18) months thereafter, Customer will 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, manage, control, own, operate, be employed by or otherwise render business consulting services similar to or competitive with the services offered by ABTS within any territory in which ABTS offers its services. Customer acknowledges that ABTS offers its services throughout the United States, Canada and the world.
If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect and the parties will amend the Agreement to give effect to the stricken clause to the maximum extent possible.
§24. Waiver of Breach.
No waiver of any breach of this Agreement shall be a waiver of any other breach, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
§25. Force Majeure.
To the extent that either party’s performance is prevented or delayed, either totally or in part, for reasons beyond that party’s control, then that party will not be liable, so long as it resumes performance as soon as practicable after the reason preventing or delaying performance no longer exists.
§26. Alternative Dispute Resolution & Applicable Law; Entire Agreement.
Except for attempts by ABTS to collect amounts owed under this Agreement, a Statement of Work, and/or a Services Description, which may be pursued, among other ways, through the federal and state judicial systems, any dispute between the parties arising out of or relating to this Agreement, a Statement of Work, and/or a Services Description, the breach thereof, shall be referred to arbitration by either party hereto and finally settled by 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 to be appointed by the first two arbitrators so selected. The arbitration shall take place in Los Angeles, California. The arbitration award shall be final, binding upon the parties, not subject to any appeal, and shall deal with the question of costs of arbitration and all matters related thereto. Judgment upon the award rendered may be entered by any court having jurisdiction, or application may be made to such court for judicial recognition of the award or an order of enforcement thereof, as the case may be. This Agreement and each Statement of Work and/or Services Description shall be governed by and construed in accordance with 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, together with any Statements 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. Neither this Agreement, nor any Statement of Work and/or Services Description, may be modified or amended except in a writing signed by duly authorized representatives of each party. To the extent there is such a conflict between the terms and conditions of a Statement of Work an/or a 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.
CUSTOMER AND ABTS EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT
§27. Addresses and Points of Contact.
The addresses and contact information of the parties to this Agreement at the time of signing are shown below. Each of the contracting parties agrees to notify the other in writing of address or contact changes.
All notices, authorizations, and requests given or made in connection with this agreement, including notice of termination of this agreement, must be sent by post, 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.
AGILE BUSINESS & TECHNOLOGY SOLUTIONS
87 N. Raymond Ave. #229
Pasadena, California 91103
Primary Billing Contact:
Primary Billing Contact:
By signing below, each of the parties to this Agreement represents that the information provided in this document and each of the attached forms is accurate, and agrees to be bound by the terms and conditions set forth in this agreement.
PROJECT TERMS & CONDITIONS
AGILE RESELLER AGREEMENT
This Agile Reseller Agreement (the “Agreement”) is between you, both the individual reselling an Agile Professional Service(s) (the “Services”) and, if applicable, the company on whose behalf you are entering into this Agreement (“you” or “Reseller”) and Agile Business & Technology Solutions, LLC (“ABTS” or the “Company”). Reseller is an independent contractor and not a partner, joint venture, franchisee, agent or employee of ABTS. Reseller shall not represent their relationship with ABTS as anything other than an independent contractor or Reseller. In addition, ABTS shall not refer to Reseller as anything other than an independent contractor, consultant, or any other agreed upon designation that ABTS previously approved.
This Agreement is a separate and autonomous agreement from the Agile Master Services and Consulting Agreement (“MSCA”) that ABTS has between the Company and its Customers, or the ATBS’ Privacy Statement, which protects the privacy of any and all individuals who visit ABTS’ website(s) (“Visitors”), as well as any and all individuals who register or purchase professional services as provided by ATBS (“Customers”), with such professional services to include, but not limited to, Business Process Consulting, Cloud Integration, Enablement, Workflow Automation, Web Development and CRM Consulting.
This Agreement’s terms and conditions will apply to any and all orders placed by a ABTS’ Reseller via the ABTS’ Reseller Portal as accessed from ABTS’ website, located specifically at www.agilebts.com. ABTS’ acceptance of a Reseller Order (“Order”) via the Reseller Portal or otherwise, is subject to and expressly conditioned upon Reseller’s assent to the terms and conditions contained in this Agreement. The effective date of this Agreement (“Effective Date”) will be the date that ABTS first provides an authorized Reseller access to the Reseller Portal on ABTS’ website for purposes of placing a Reseller Order. By accessing the Reseller Portal on the ABTS’ website, Reseller agrees to all the terms of conditions of this Agreement, including the limitations on liability set forth herein and the provisions governing ABTS’ ability to modify this Agreement’s terms and conditions. IF RESELLER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS AS SET FORTH HEREIN, RESELLER IS NOT PERMITTED TO USE THE ABTS’ RESELLER PORTAL FOR ORDER PLACEMENT PURPOSES.
§ 1. Definitions.
In this Agreement:
“Confidential Information” is information marked or otherwise identified in writing by a party to this contract as proprietary or confidential or that, under the circumstances surrounding the disclosure, ought in good faith to 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 ABTS’ promotional and/or marketing strategy and activity, ABTS’ pricing information (including but not limited to rates, margins, and budgets), ABTS’ financial and budget information, ABTS’ customer lists, information about the education, background, experience, and/or skills possessed by ABTS’ employees, ABTS’ employee compensation information, ABTS’ service and/or sales concepts, ABTS’ service and/or sales methodology, ABTS’ service and/or sales techniques, ABTS’ customer satisfaction data or sales information, or any information which ABTS 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. Confidential information does not include information which: (i) the recipient developed independently; (ii) the recipient knew before receiving it under the relevant agreement; or (iii) is or subsequently becomes publicly available 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, agency or individual person who purchases the Services from Reseller for such Customer’s own use and not for res-sale or redistribution.
“Customer Contract” means any agreement between the Reseller and any Customer pursuant to which Reseller makes the Services available to such Customer.
“Customer Data” 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 Reseller or ABTS in connection with the purchase or receipt of the Services, if any, which shall remain the sole and exclusive property of Customer. Customer Data can include personally identifiable financial information, including personal credit card information necessary for access to and receipt of the Services.
“Documentation” means ABTS’ Services descriptions, user instructions and any other documentation related to the Services provided by ATBS via an authorized Reseller, which ABTS may provide to Reseller on occasion in connection with the sale of the Services.
“Intellectual Property ” means 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” is in reference to the ABTS provided sign-up and authorization portal found at the ABTS’ website for Resellers to place Orders for the purpose of reselling ABTS’ Services to Customers.
“Services” are professional consulting services as provided 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 ABTS providing the Customer with Service Deliverables, the requisite software itself in which ABTS will perform the aforementioned professional services in conjunction with the software purchased by the Customer.
“User” means each employee, contractor or agent of Customer who is authorized by ABTS and Reseller to use the Services.
§2. Non-Exclusive Appointment; Services.
Subject to the terms and conditions set forth in this Agreement, ABTS appoints Reseller, and Reseller hereby accepts appointment, as a one-time, non-transferable, non-exclusive reseller of the Services to Customers. The relationship between ABTS and Reseller, as created by this Agreement, is non-exclusive in all respects, while ABTS reserves the right at its sole and independent discretion, to appoint and remove independent contractors and/or Resellers in the resale of the Services, or to sell the Services to Customers directly.
2.1 Customer Contracts.
Reseller’s sale of ABTS’ Services to Customers shall be governed by a written, fully executed (by authorized signatories of both Reseller and Customer) Customer Contract. Reseller shall provide Customers with access to the Services only pursuant to valid Customer Contracts. Reseller shall not place in any Customer Contract any term or provision that conflicts with or is otherwise inconsistent with the ATBS’ Privacy Statement or any terms and conditions provided by ABTS on the ABTS website or the terms of this Agreement.
2.2 Consent to ABTS’ Terms.
ABTS’ provision of the Services to Customers is contingent upon ABTS’ receipt of Customer’s consent to ABTS’ terms of service applicable to such Customer’s use of the Services. For each accepted Order, ABTS will contact the applicable Customer (via email or other means) in order to obtain such consent prior to its provision of the Services.ABTS shall have no obligation to provide Services to any Customer unless and until ABTS obtains Customer’s consent to ABTS’ terms of service.
2.3 Reseller Status.
Reseller shall use reasonable, diligent efforts to market, promote and distribute the Services. Reseller is solely responsible for the means, manner and method of its performance under this Agreement. Reseller shall have full discretion to set its own prices for the sale of the Services to Customers.
2.4 Marketing and Promotion.
ABTS may provide promotional and marketing materials to Reseller (the “ABTS’ Materials”). Reseller may build its own marketing strategies and market the Services using all commercially reasonable marketing concepts and means of popularizing and providing access to the Services (forums, blogs, social networks, personal or business websites, printed media, etc.); provided, however, that Reseller shall not (a) market, promote or provide access to the Services to any Person who is to Reseller’s knowledge, using the Services at the time Reseller approaches or markets the Services to such entity or person; (b) utilize any marketing methods that violate this Agreement or any other ABTS’ Policy; (c) infringe, dilute or otherwise violate the intellectual property rights of any third parties; or (d) violate any applicable law, rule, regulation or order in such marketing activities.
2.5 Use by Customers Only.
The Services sold to Reseller under this Agreement are intended only for use by Customers and its Users. Reseller may not use the Services for its own account or for any other purpose pursuant to this Agreement.
§ 3. Order Process; Reseller Portal.
ABTS shall provide Resellers with an account, user name and password granting such Reseller access to and use of the Reseller Portal, located at the ABTS website. Reseller is responsible for maintaining the confidentiality of any such account information and is fully responsible for all activities that occur under Reseller’s account. During the registration process for the Reseller Portal, ABTS will request Reseller to provide certain information, including contact information, business qualifications (if applicable) and any other information required by ABTS for purposes of becoming an authorized Reseller of ABTS’ Services. Reseller represents and warrants that (a) all information provided during the registration process is accurate and complete; (b) 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 of such entity or organization with the authority to legally bind such entity or organization to this Agreement. If ABTS determines that Reseller has provided false, misleading or otherwise inaccurate information to ABTS, ABTS shall have the right to terminate this Agreement immediately upon notice to Reseller and Reseller shall cease holding itself out as a reseller of the Services.
On different instances in conjunction with this Agreement, Reseller may order Services from ABTS on behalf of Customers by submitting an Order via the Reseller Portal. Any Orders received from Reseller by ABTS shall be deemed to have been authorized by Reseller and Customer. Such Order will include all required information to enable ABTS to perform the Services for Customer as set forth in the Reseller Portal, including the name of the Customer, the number of Users included in the Services, the date on which Customer requires access to the Services, and any other instructions or requirements pertinent to such Customer.
Reseller is responsible for providing complete and accurate information to ABTS with respect to all Customers in order for ABTS to make the Services available to such Customers. Reseller acknowledges that ABTS will have access to all of the data and information provided by Reseller, Customers and Users.
§4. Fees; Payment.
Reseller will pay ABTS the fees for the Services in the amounts set forth in the Order (“Fees”). ABTS will have the right to increase the Fees from time to time in its discretion. The Fees charged to Reseller for the Services represent payment for Reseller’s right to sell Services to Customers, to include a 20% discount provided to Reseller at ABTS’ sole discretion, and to further include Reseller’s right to collect payments from Customers for such Services, with an appropriate price mark-up of Reseller’s preference, with notice to ABTS, and approval granted by ABTS, of the desired mark-up price.
4.1 Payment Terms.
All Fees for Reseller’s purchase of Services shall be due and payable at the time Reseller submits an Order to ABTS. Reseller shall pay for the Services by providing ABTS with valid payment information in order to facilitate such purchase, including a credit card number, billing address and any related payment information required by ABTS. ABTS shall be deemed to have accepted an Order upon its receipt of valid payment information from Reseller.
During the Term of this Agreement, ABTS will have the right to audit the records of Reseller relating to Reseller’s sale of the Services to Customers to ensure that Reseller is compliant with the terms and conditions of this Agreement, including the calculation of Fees in accordance with this Section 4.
§5. Customer Data; Confidentiality.
Reseller represents and warrants that: (a) Reseller has the right to use, and to permit ABTS to use, the Customer Data supplied by Customers in connection with the Services hereunder and (b) Reseller has not received notice that any such Customer Data or the use of any such Customer Data in conjunction with the Services infringe upon any third party Intellectual Property Rights or violate the terms of any license agreement or other agreement. Except with respect to ABTS’ provision of Services to Customer under an accepted Order, ABTS bears no liability whatsoever for Reseller’s management of Customer accounts, including, but not limited to, ABTS’ adherence to instructions from Reseller regarding management of Customer accounts.
Each Party will, during the Term of this Agreement and thereafter, maintain in confidence the Confidential Information of the other Party and will not use such Confidential Information except as expressly permitted herein. Each Party will use the same degree of care in protecting such Confidential Information as such Party uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Each Party will use such Confidential Information solely for the purpose of carrying out its respective obligations under this Agreement. In addition, each Party: (a) will not reproduce such Confidential Information, in any form, except as required to accomplish its obligations under this Agreement; and (b) will only disclose such Confidential Information to its employees and consultants who have a need to know such Confidential Information in order to perform their duties relating to this Agreement and have been informed of the obligation to preserve the confidentiality of such information prior to receiving such information. Confidential Information will be the property of the disclosing Party during the Term of this Agreement and afterwards in perpetuity, subject only to the exceptions expressly stated in this Agreement.
§6. Proprietary Rights.
As between ABTS and Reseller, ABTS and/or its licensors own and reserve all right, other than the limited rights explicitly granted to Reseller under this Agreement, title, and interest in and to the ABTS’ Services, including without limitation any other ABTS’ proprietary software or technology utilized in the provision or use of the Services, and all Intellectual Property Rights therein. Reseller acknowledges that all right, title and interest in and to the Services and all Intellectual Property Rights embodied therein or associated therewith, are and shall remain with ABTS or its third party licensors. Reseller will not take or encourage any action during or after the Term of this Agreement that will in any way impair the rights of ABTS’ Intellectual Property Rights in and to any of the foregoing.
§7. ABTS’ Services.
ABTS will, subject to all other terms and conditions of this Agreement, take commercially reasonable efforts to provide the Services to Customer. ABTS shall provide Reseller and/or Customer with support services as reasonably necessary to facilitate ABTS’ performance of the Services.
§8. Reseller Obligations and Acknowledgements.
Reseller understands and agrees that Reseller and Customer’s full, reasonable cooperation is required in order for ABTS to properly, efficiently and effectively perform the Services for Customer hereunder. Reseller agrees to comply with all of ABTS’ reasonable requests made in connection with the provision of Services to Customer hereunder. Reseller understands and agrees that its failure or Customer’s failure to so cooperate with ABTS could result in ABTS’ inability to properly, efficiently and effectively perform the Services hereunder. ABTS’ provision and completion of the Services is subject to (a) delays due to unanticipated Reseller or Customer requests, complications with Customer’s systems, programs, accounts and data, and other unforeseen circumstances beyond the reasonable control of ABTS, (b) Reseller’s and Customer’s cooperation (including the cooperation of third parties under such Customer’s control) with ABTS, as well as (c) Reseller’s and Customer’s compliance with this Agreement or any other ABTS’ Policy. ABTS shall have no liability whatsoever for any delays, deficiencies or failures that occur in the performance of Services as a result of Reseller’s or Customer’s failure to so cooperate.
8.1 Compliance with Law.
Reseller will obtain all registrations, licenses and permits required to perform its obligations under this Agreement. Reseller will comply with all applicable laws, rules, regulations and orders relating to its performance under this Agreement (including, without limitation (a) those concerning the exporting, importing and re-exporting of computer software and the protection of privacy and personal information, and (b) laws and policies related to unsolicited, commercial e-mails (SPAM) or any illegal, objectionable or offensive activities).
Reseller will not make any false or misleading representations concerning the Services, or make any representations concerning the Services’ specifications, features, capabilities and applicable warranties which are not consistent with or are in addition to those set forth in this Agreement, any other ABTS’ Policy, the Documentation, Services/Product descriptions or other promotional materials made available by ABTS to Reseller.
8.3 Customer Requirements.
Reseller represents and warrants that it has all requisite authority to grant ABTS access to Customer’s systems and cloud computing accounts as required for ABTS to provide the Services. Reseller acknowledges that it will be required to provide ABTS with certain information regarding each Customer, via the Reseller Portal and otherwise, in order to enable ABTS to provide the Services to such Customer, including the Customer Data and Customer’s contact and payment information. Reseller represents and warrants that (a) it is authorized by Customer to share such Customer Data and other information with ABTS; (b) it has disclosed to Customer that ABTS (and not Reseller) will perform the Services; and (c) that Customer has agreed to receive communications from ABTS (via email or other means) regarding ABTS’ performance of the Services. In order to use the Services, Customer’s computer hardware, software and Internet connectivity must meet certain minimum requirements as may be specified in the Documentation provided. ABTS bears no liability or responsibility if Customers cannot access the Services provided due to a failure to meet these minimum requirements.
8.4 Agreement to Zoho CRM Terms.
RESELLER AUTHORIZES ABTS, ON BEHALF OF CUSTOMER, TO REGISTER CUSTOMER FOR THE USE OF CERTAIN CLOUD COMPUTING SERVICES OFFERED BY ZOHO REQUIRED FOR ABTS’ PERFORMANCE OF THE SERVICES. 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 OBTAINED PROPER AUTHORIZATION FROM EACH CUSTOMER TO PERMIT ABTS 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 PROVIDED A COPY TO CUSTOMER OF THAT CERTAIN ZOHO ONLINE SUBSCRIPTION AGREEMENT FOR ZOHO CRM, AND (C) RESELLER HAS RECEIVED CUSTOMER’S CONSENT TO BE BOUND BY ALL TERMS AND CONDITIONS OF SUCH SUBSCRIPTION AGREEMENT, INCLUDING ALL PAYMENT TERMS AND FEES APPLICABLE TO SUCH SUBSCRIPTION. RESELLER AUTHORIZES ABTS TO USE AND SUBMIT RESELLER’S NAME AS THE AUTHORIZING PARTY WHEN REGISTRING CUSTOMER FOR THE ZOHO CRM UNDER THIS SECTION 8.4.
8.5 Changes to Services.
ABTS may introduce new Services and/or alter existing Services without prior notice to Reseller, Customers, Users or others, including revising the user interface, features, and functionality of the Services as part of improvements or other necessary changes to the Services during the Term. ABTS may also update or revise the Documentation during the Term. ABTS will have the right, in its sole discretion, to discontinue some or all of the Services, or to change some or all of the Services, upon notification to Reseller of any such discontinuation or change.
8.6 Use of ABTS’ Intellectual Property Rights.
Reseller will not, and will not encourage or permit any Customer, Users or other Person to (a) use ABTS’ Services in any manner or for any purpose other than as expressly permitted by this Agreement; (b) access or use ABTS’ Services in a way intended to avoid incurring fees to be paid to ABTS pursuant to this Agreement; (c) access or use ABTS’ Services in any way that violates this Agreement or any applicable laws, rules, or regulations; (d) modify, alter, tamper with, repair or otherwise create derivative works of any software, technology, content or any Intellectual Property Rights of ABTS included in or used to provide ABTS’ Services; (e) reverse engineer, disassemble or decompile any software or technology of ABTS included in or used to provide the Services, or (f) attempt to discover or recreate any software, technology or Intellectual Property Rights included in or used to provide ABTS’ Services.
8.7 Responsibility for Other Parties.
Reseller will be liable for any action that it permits, assists or facilitates any of its affiliates, officers, directors, employees, contractors, representatives, agents or other Person (each, a “Reseller Party,” and collectively, “Reseller Parties”) to take related to this Agreement, the Customer Data or interfere with the use of ABTS’ Services. Reseller will ensure that all Reseller Parties comply with Reseller’s obligations under this Agreement.
8.8 Notification of Unauthorized Use.
Reseller will immediately notify ABTS in writing of any unauthorized misuse of ABTS’ Services or breach of this Agreement that comes to Reseller’s attention. In the event of any unauthorized misuse by any third party that obtained access to the ABTS’ work product, directly or indirectly through Reseller, Reseller will take all steps necessary to terminate such unauthorized use and will provide ABTS such cooperation and assistance as requested by ABTS in connection with ABTS’s actions to stop or prevent unauthorized use of ABTS’ work product in conjunction with the provided Services.
For so long as ABTS is providing any Services to Reseller or any of its Customers pursuant to this Agreement, and for one (1) year after the completion of any such Services, Reseller will not offer or provide services that are competitive with the Services provided by ABTS hereunder, without ABTS’ prior written agreement. Reseller’s access to the ABTS’ Reseller Portal shall be limited to the purpose of reselling the Services to Customers. Reseller may not access and use the ABTS Reseller Portal for the purpose of developing (or intending to develop) a service that contains similar capabilities or functionalities as or that otherwise competes with the Services (including any other service or product designed to provide cloud computing migration and support services).
Reseller is responsible 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 generated in connection with Reseller’s or its Customers’ use of ABTS’ Services, including in the use of the ABTS’ Reseller Portal. Reseller will not disclose or make available Passwords other than to authorized Users, if applicable, and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords. Reseller and/or its Customers are fully responsible for all activities that occur in connection with the Passwords.
8.11 Suspension, Limitation or Termination.
ABTS may, without liability to Reseller, immediately suspend, terminate or limit access to the ABTS’ Reseller Portal at any time in the event (a) ABTS determines that the ABTS’ Reseller Portal is being used in violation of applicable federal, state or local law or ordinance, this Agreement, or any other ABTS’ Policy; (b) ABTS determines that the ABTS’ Reseller Portal is being used in an unauthorized or fraudulent manner or that Reseller or Customers have submitted fraudulent or inaccurate information to ABTS; (c) ABTS determines that Reseller’s or Customers’ use of the ABTS’ Reseller Portal adversely affects ABTS’s equipment or service to others; (d) ABTS is prohibited by an order of a court or other governmental agency from providing the Services; (e) of a denial of service attack or any other event which ABTS determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; or (f) of a security incident or other disaster that impacts the Services or the security of Customer Data. ABTS shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Resellers use of the ABTS’ Reseller Portal or a Customer’s use of the Services in accordance with this Section 8.11.
8.12 Postings Regarding the Services.
Reseller grants ABTS a perpetual, irrevocable, royalty-free, non-exclusive, worldwide, sublicensable permission to use, edit, reproduce, distribute, display, and publish at any time, in whole or in part and in any media, and at ABTS’ discretion (including, without limitation, publication on the Internet) any feedback, comments, reviews, or other postings made by Reseller regarding ABTS or the Services, whether to ABTS directly, on any third party websites, or otherwise (“Postings”). Reseller acknowledges and agrees that Postings may include, without limitation, Reseller’s name, statements, and employer name (if applicable), and agrees to provide additional appropriate testimonial affidavits and supporting information and documentation at ABTS’ request. ABTS has the right to identify Reseller as a reseller of the Services in ABTS’ promotional materials and releases, however printed or displayed and in any medium of expression, and if applicable, to use Reseller’s corporate logo as it appears from time to time on Reseller’s website or other promotional materials. Reseller represents and warrants such Postings reflect Reseller’s honest beliefs and real experience in connection with ABTS or the Services, are made voluntarily, and are provided without compensation to Reseller. Reseller waives, releases, and discharges ABTS and its employees, officers, affiliates, licensees, successors, assigns, agents, customers, and suppliers from any and all claims Reseller may now or later have (whether related to copyright, right of privacy, right of publicity, performer rights, tort, contract, statute or otherwise) by reason of any use, edit, reproduction, distribution, display, or publication of the Postings by ABTS or by any third party authorized to do so by ABTS. Reseller will not assert (a) any ownership or other right or interest in the Postings or (b) any claim for compensation related to the Postings or the use, reproduction, distribution, or publication thereof. Reseller may withdraw Reseller’s permission to ABTS to use, edit, reproduce, distribute, display, or publish Postings at any time by contacting ABTS, provided that such withdrawal shall only apply to Postings which ABTS can easily remove from the ABTS’ website or other websites, and shall not apply to any printed materials or publications in circulation or ordered for circulation at the time of such withdrawal.
§9. Representations and Warranties; Disclaimer.
Each Party represents and warrants that: (a) it is validly existing and in good standing under the laws of its state of incorporation; (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) its execution and delivery of this Agreement and its performance of its obligations under this Agreement will not result in its breach of or default under any agreement or arrangement by which it is bound; (d) the person entering into this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; and (e) this Agreement is valid, binding and enforceable against it in accordance with its terms.
THE ABTS’ PROFRESSIONAL SERVICES ARE PROVIDED “AS IS.” EXCEPT AS PROVIDED IN SECTION 9.1, ABTS MAKES NO (AND HEREBY DISCLAIM ALL) WARRANTIES OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING, WITH RESPECT TO THE ABTS’ SERVICES, ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), (C) ANY WARRANTY THAT THE ABTS’ SERVICES WILL BE UNINTERRUPTED, 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 WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
§10. Limitation of Liability.
IN NO EVENT WILL ABTS BE LIABLE TO RESELLER, CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY PRODUCTS, SERVICES OR ABTS’ APPLICATIONS PROVIDED BY ABTS, INCLUDING THE ABTS’ SERVICES WHICH ARE THE SUBJECT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ABTS HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER ABTS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) RESELLER OR CUSTOMER’S INABILITY TO USE THE SERVICES AS A RESULT OF ANY SYSTEM DOWNTIME THAT OCCURS FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY RESELLER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE ABTS’ SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF THE CUSTOMER DATA OR OTHER DATA. IN ANY CASE, ABTS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES ACTUALLY PAID BY RESELLER TO ABTS FOR SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
In addition to all other indemnification obligations set forth in other sections of this Agreement, Reseller, at its sole expense, will defend, indemnify and hold ABTS and its directors, officers, employees, contractors, agents, successors and assigns (collectively, the “ABTS Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) (collectively, “Liabilities”) resulting from any claim (including third party claims), suit, action, or proceeding against any ABTS Indemnitee, whether successful or not, resulting from or arising in connection with (a) Reseller’s sale, failure to sell, or provision of access to the Services to Customer; (b) Reseller or Reseller Party’s use of the Customer Data in connection with ABTS’ Services that are the subject of this Agreement; (c) any breach of this Agreement or an applicable Customer Contract or a violation of applicable law by Reseller or a Reseller Party; (d) any statement, representation, warranty, contractual obligation or other commitment made by Reseller on behalf of ABTS that is inconsistent with or not provided by ABTS in the terms of this Agreement, the Documentation provided by ABTS or any ABTS’ Policy; or (f) the negligence or willful misconduct of Reseller or any Reseller Party.
ABTS will reasonably notify Reseller of any claim subject to the indemnification obligations set forth in this Agreement, but the failure of ABTS to so notify Reseller will only affect Resellers’ indemnification obligations hereunder to the extent that such failure materially prejudices Reseller’s ability to defend the subject claim. Provided that Reseller promptly investigates and defends any such claim, Reseller will have control over the defense and settlement thereof at its sole cost and expense. Notwithstanding the foregoing, Reseller will not settle or compromise any claim in a manner that does not fully release ABTS from such claim or results in a restriction on or admission by ABTS or subjects ABTS to any additional obligations. In the event that ABTS determines, in its sole discretion, that Reseller has failed to promptly investigate or rigorously defend any claim for which Reseller has an obligation to indemnify, ABTS will have the right to defend and settle such claim at Reseller’s cost and expense.
§12. Term; Termination; Effect of Termination.
This Agreement will commence on the Effective Date and continue in effect unless otherwise terminated by the Parties hereunder (the “Term”). Either Party may terminate this Agreement, with or without cause, upon five (5) days written notice to the other Party. In the event of termination under this Section 12, ABTS will perform all Services under Orders received and accepted prior to such termination date. Upon any expiration or termination of this Agreement for any reason, (a) any and all Liabilities accrued prior to the date of such expiration or termination will survive; (b) each Party will promptly provide the other Party with all Confidential Information then in its possession or destroy all copies of such Confidential Information, at the disclosing Party’s sole discretion and direction; and (c) Reseller will (i) cease to hold itself out in any fashion as a reseller of the Services and cease the placement of Orders; (ii) promptly discontinue use of the ABTS’ Services in any way, shape or form; (iii) promptly cease all use of any promotional, marketing or instructional materials relating to the Services and immediately return such materials to ABTS. The following sections will survive any expiration or termination of this Agreement: Sections 1, 4, 5, 6, 8.9, 8.11, 9.1, 10, 11, 12 and 13.
§13. General Provisions.
13.1 Entire Agreement.
This Agreement, the Order Form or any other terms and conditions referenced in this Agreement (the “Additional Policies”) are the entire agreement of the Parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the specific subject matter hereof.
13.2 Governing Law; Venue; Dispute Resolution.
This Agreement will be governed by and construed 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 arising out of or relating to this Agreement will be filed only in the state and federal courts located in Los Angeles, California, and the Parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement.
Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Reseller, by operation of law or otherwise, without the prior written consent of ABTS, and any attempted transfer, assignment or delegation without such consent will be void and without effect. ABTS may freely assign this Agreement and any right or duty under this Agreement to an affiliate or other Person by operation of law, change of control, merger, reorganization, or sale of stock or all or substantially all of its assets. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.
13.4 Relationship of the Parties.
Neither Party will, for any purpose, be deemed to be an employee, representative, owner or Reseller of the other Party; and, the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
Neither Party may disclose the specific terms of this Agreement or issue a public statement or press release regarding this Agreement without the prior consent of the other Party. Notwithstanding the foregoing, ABTS may, during the Term of this Agreement, identify Reseller as an authorized reseller of the Services and display Reseller’s logo and/or other branding materials on ABTS’ website and other marketing materials.
The failure of either Party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any Party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
Any notice, demand or communication required or permitted to be given by any provision of this Agreement will be deemed to have been sufficiently given or served for all purposes if: (a) delivered personally; (b) deposited with a pre-paid messenger, express or air courier or similar courier; or (c) transmitted by telecopier, facsimile, email or other communication equipment that transmits a facsimile of the notice to like equipment that receives and reproduces such notice. Notices will be addressed to a Party at the Party’s address, facsimile number or email address as set forth below. Notices will be deemed to have been received (i) in the case of personal delivery, upon receipt, (ii) in the case of messenger, express or air courier or similar courier, two days after being deposited, and (iii) in the case of telecopier, facsimile, email or other communication equipment, the day of receipt as evidenced by a telecopier, facsimile, email or similar communication equipment confirmation statement. Further, either 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 that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision, the affect Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided, that the affected Party: (a) provides the other Party prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event.
13.10 Modifications to the Terms and Conditions of the Agreement.
ABTS may modify these Terms and Conditions or any Additional Policies at any time by posting a revised version of these Terms and Conditions or Additional Policies on the ABTS’ website. Unless otherwise set forth in this Agreement, the revised terms shall be effective upon the earlier of (a) ten (10) days after posting and/or notifying Reseller of the changes; or (b) upon Reseller’s acceptance if ABTS provides a mechanism for the acceptance of the revised terms, such as a click-through confirmation or acceptance button. By continuing to resell the Services after the effective date of any revisions to these Terms and Conditions or any Additional Policies, Reseller agrees to be bound by the revised Terms and Conditions or any revised Additional Policies. It is Reseller’s responsibility to check the ABTS’ website regularly for changes to these Terms and Conditions or the Additional Policies, as applicable. If Reseller disagrees with any modifications to these Terms and Conditions or any Additional Policies, Reseller’s sole and exclusive remedy shall be to terminate the Agreement and the receipt of Services in accordance with Section 12 herein.
AGILE BUSINESS & TECHNOLOGY SOLUTIONS
87 N. Raymond Ave. #229
Pasadena, California 91103
By signing below, each of the parties to this Agreement represents that the information provided in this document and each of the attached forms is accurate, and agrees to be bound by the terms and conditions set forth in this Agreement.