TERMS AND CONDITIONS
These Terms and Conditions (“Agreement”) are between Focus3, Inc., a North Carolina corporation (“Vendor”), and the entity who executes the SaaS Services Order Form (“Service Order”) with Vendor to which this Agreement is hereby incorporated (“Customer”). By entering into a Service Order, Customer hereby agrees to be by bound by and abide with the terms and conditions of this Agreement. This Agreement is effective upon the execution of a Service Order between Vendor and Customer and shall remain in effect for so long as each Sales Order is in effect. In consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, Vendor and Customer hereby agree as follows:
- Scope of Vendor Services. Subject to the terms and conditions set forth in this Agreement, Vendor agrees to provide access to, and Customer shall accept and pay for, Vendor’s services via the Internet that consists of various functions assisting Customer to accomplish certain real estate-related tasks and other related services (the “SaaS Service”), in accordance with and subject to the additional terms of Exhibit A, attached hereto and incorporated herein by this reference. Furthermore, Vendor agrees to host Customer’s use of the SaaS Service by means of a certain Internet-accessible hardware and software environment (“System”) hosted in a data center of Vendor’s choice (“Data Center”).
- System Use by Customer. Subject to compliance with this Agreement, including payments set forth on the SaaS Services Order Form incorporated herein by reference, Vendor hereby grants Customer personal, nonexclusive, non-transferable, non-sublicensable, and limited access to the System by certain Authorized Users (as more fully defined below) to access and use the SaaS Service during the term of this Agreement, including any updates and any associated electronic or written documentation that may be provided from time to time, for Customer’s internal business functions only, subject to the following limitations
- Customer understands that the scope of the grant in this Agreement is limited to the access of the SaaS Service provided on the System and that Customer may access the SaaS Service solely to process its own internal data, and it shall not be used to perform service bureau services or to store or process data on behalf of any third party. Customer may not sub-license any right conferred under this Agreement or otherwise grant or allow use of the SaaS Service or access to the System to any third party or persons that are not Authorized Users. Notwithstanding any other provision of this Agreement, Customer receives no right or interest in or to any hardware or software utilized by Vendor in providing the SaaS Service or System. Customer acknowledges and agrees that any use of the SaaS Service and/or System in violation of the limitations of this Section 2(a) shall constitute a material breach of this Agreement.
- Customer shall identify to Vendor which of its personnel shall be authorized to access the System (“Authorized User(s)”) initially as of the Effective Date. Additional Authorized Users may be added by the Authorized User designated by Customer as its system administrator. The names of each such additional Authorized Users will be provided to Vendor through Customer’s use of a designated page of the SaaS Service.
- Customer shall be responsible for all access and utilization of the System of the Authorized Users acquired or facilitated through use of any user identification, password or other security measure provided to Customer by Vendor, developed by Customer, or obtained from another source. Customer shall use its best efforts to prevent unauthorized persons from obtaining access to or utilizing the System in any way and shall establish and follow reasonable security procedures, and shall comply with those policies and procedures established and provided to Customer by Vendor from time to time, to maintain the confidentiality of all data on the System, and of all access information, passwords, and the like related to the System and SaaS Service. Attempts by Customer personnel, or any other entity by means of Customer equipment and facilities, user identification or password, to obtain any type of unauthorized access to the System or SaaS Service shall constitute a material breach of this Agreement, and Vendor shall be entitled, without prejudice to any other available remedy, to revoke access authorization for any Authorized User or entity or account determined to have attempted or facilitated such unauthorized access.
- Customer shall not copy, disassemble, decompile, adapt, modify or reverse engineer any part of the SaaS Service or System, or any part thereof, except as otherwise authorized hereunder or required by applicable law. Utilization of any configuration function made available through the System shall not constitute a breach of this Section 2(d).
- Customer shall not violate any intellectual property rights or other proprietary rights of Vendor, its licensors, or any third party, related to the SaaS Service or System, nor access the System by any method or in excess of the authorization rights granted under this Agreement.
- In the event that Customer subscribes to Vendor’s Action Scheduler bulk email feature, Customer agrees to be bound by any additional restrictions on use of such feature that Vendor implements in its discretion. Customer agrees that the use of any bulk email feature can result in the generation of nuisance emails. Accordingly, Customer agrees that Vendor may disable Customer’s use of any such bulk email feature, in its sole discretion, at any time and without advance notice if Vendor believes that such bulk email feature is being abused in any manner.
- Concurrently with the execution of this Agreement, Customer will name designated contacts whose details are provided to Vendor on the SaaS Services Order Form. The designated contacts may be amended by Customer upon prior written notice to Vendor. Any final decisions regarding the support and use of the System (including user roles and permissions and approval of additional services) for Vendor will be the responsibility of any one designated contact.
- Ownership and Intellectual Property. The parties agree to the intellectual property provisions set forth on Exhibit B.
- Confidentiality. The parties agree to the confidentiality provisions set forth on Exhibit B.
- User Documentation. User documentation, which includes but is not limited to the user manuals supplied in electronic format and all training materials provided or made available by Vendor (“User Documentation”), are provided solely to support Customer’s authorized use of the SaaS Service and System. The User Documentation may not be otherwise used, copied, modified, or distributed, nor any copy, adaptation, transcription, or portion thereof, except that Customer may make and distribute one (1) copy of the User Documentation for each Authorized User or as otherwise expressly authorized by Vendor in writing. Customer shall not delete or modify any copyright notice or other proprietary rights notice or attribution included in or with the User Documentation. The User Documentation contains Confidential Information of Vendor, and distribution of the User Documentation to any unauthorized person or entity is expressly prohibited. Customer is responsible for ensuring that the User Documentation is used by its personnel only as permitted under this Agreement and any distribution or transfer to third parties shall be considered a material breach of this Agreement.
- Limited Warranty.
- Vendor warrants that it will use commercially reasonable efforts to make the SaaS Service available to Customer and that the SaaS Service will reasonably conform to the functional descriptions contained in the User Documentation. The above warranty specifically excludes defects resulting from any Customer accident, abuse, unauthorized use or repair, modification, enhancement, misapplication, or from any interruption in utility service or other event or condition beyond Vendor’s control.
- EXCEPT AS SET FORTH IN THIS SECTION 6, VENDOR MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE OPERATION, CAPACITY, SPEED, FUNCTIONALITY, QUALIFICATIONS OR CAPABILITIES OF THE SYSTEM OR ANY SERVICES COVERED BY OR FURNISHED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION (i) OF MERCHANTABILITY, (ii) OF FITNESS FOR A PARTICULAR PURPOSE, OR (iii) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. VENDOR DOES NOT WARRANT THAT USE OF OR PROCESSING BY THE SYSTEM OR USE OF THE SAAS SERVICE WILL BE COMPLETELY UNINTERRUPTED OR ERROR FREE.
- Limitation of Liability. IN NO EVENT WILL VENDOR OR ITS OFFICERS, EMPLOYEES, SHAREHOLDERS, DISTRIBUTORS, SUPPLIERS, AGENTS OR AFFILIATES BE LIABLE FOR: (i) COSTS OF SUBSTITUTE GOODS OR SERVICES; (ii) LOST PROFITS OR REVENUES, OR SPECIAL, EXEMPLARY, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS, INACCURACY OR INACCESSIBILITY OF DATA OR THE SaaS SERVICE, OR LOSS OF REVENUE OR PROFIT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (iii) ANY CLAIM AGAINST CUSTOMER BY ANY THIRD PARTY; OR (iv) ANY DAMAGES, LOSSES OR INJURIES TO CUSTOMER, OR THOSE CLAIMING THROUGH CUSTOMER, UNDER ANY OTHER CLAIM OR THEORY OF ACTION WHATSOEVER, IN AN AGGREGATE AMOUNT EXCEEDING THE FEES PAID BY CUSTOMER TO VENDOR FOR THE SAAS SERVICE OR OTHER SERVICES DIRECTLY CAUSING THE LIABILITY, DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE ASSERTED LOSS. Customer accepts sole responsibility: (a) to ensure that the SaaS Service is used properly and data input accurately by adequately trained personnel; (b) to interpret and evaluate the significance of the results and information obtained from the SaaS Service and System, including individual circumstances; and (c) to satisfy itself that such results will be utilized appropriately.
- Customer acknowledges that Data conversion and Data entry constitute operations that are prone to introducing errors and that Vendor shall not be liable for any such errors. Customer shall be responsible for all costs associated with Data conversion and Data entry. Customer shall be responsible for reviewing, confirming and validating all data, reports, and generated forms (collectively, “Outputs”) that may be generated by the SaaS Service or System, and will notify Vendor immediately if errors are found related to the SaaS Service. Vendor shall not be obligated to Customer to review any of the Outputs generated by the System and in no event shall Vendor be responsible or liable for inaccurate or incomplete Outputs. Customer also is responsible for complying with all local, state, and federal laws pertaining to the use and disclosure of any Data. Vendor shall have no liability for, and Customer shall indemnify Vendor against, any injury or loss to Vendor due to Customer’s use of the SaaS Service and which arises or results from the (i) use or reliance on Data by any person or entity or (ii) disclosure or loss of Data or information caused by or related to unauthorized access to the System or SaaS Service.
- Customer agrees that (i) it is solely responsible for collecting, inputting and updating all Data related to Customer’s use of the SaaS Service and for initiating timely remedial action to correct any improperly processed Data, and (ii) Data shall not include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or contain anything that is obscene, defamatory, harassing, offensive or malicious.
- Fees; Payment.
- Vendor shall invoice Customer monthly, in advance, for amounts due under this Agreement, in accordance with the fees described on the SaaS Services Order Form. Customer shall pay all invoices within ten (10) days from date of invoicing. Invoices may also include applicable sales and use taxes and shipping and handling charges, which, in any event, are the responsibility of Customer. Vendor shall be entitled to assess interest charges on overdue but unpaid invoices at a rate equal to the lesser of one and one-half percent (1.5%) per month on the unpaid amount, or the maximum rate allowed by applicable law. Customer shall bear all costs incurred by Vendor in enforcing the terms and conditions of this Agreement, including, but not limited to, any expense to collect overdue amounts, court costs and attorney fees. Vendor may, upon ninety (90) days prior written notice to Customer, modify the fees and charges described on the SaaS Services Order Form.
- If Customer is delinquent in any payment due under this Agreement, Vendor may, at its sole discretion, upon prior written notice to Customer, and without prejudice to any other applicable remedy, (i) terminate this Agreement, (ii) in whole or in part suspend providing SaaS Service to Customer until payment in full has been made, (iii) in whole or in part suspend providing SaaS Service to Customer until Vendor and Customer have agreed, in writing, to modified payment terms that include a payment schedule for all delinquent amounts, and/or (iv) require other assurances or security to ensure Customer’s payment obligations hereunder.
- All fees charged by Vendor are exclusive of taxes and similar fees now in force or enacted in the future imposed on the SaaS Service or other services contemplated by this Agreement. All sales, use or other taxes arising out of this Agreement or Customer’s use of the System are Customer’s sole responsibility, except for income or franchise taxes based on Vendor’s net income.
- Term and Termination. The initial term of this Agreement is for a period of one (1) year from the Effective Date. The term shall automatically renew for successive renewal terms of one (1) year each unless either party gives written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term. Customer also may terminate this Agreement at any time by notifying Vendor in writing and paying all remaining minimum monthly payments for the remainder of the then-current term as set forth on the SaaS Services Order Form. This Agreement may be terminated by Vendor if Customer fails to pay any SaaS Service fee or other charge or any part thereof or otherwise breaches any material term or condition of this Agreement and does not remedy such breach within thirty (30) days after receiving written notice describing such breach. Vendor may terminate this Agreement immediately on written notice, if (i) Customer breaches its duty of confidentiality or violates the intellectual property rights of Vendor or any of its suppliers, or (ii) bankruptcy or insolvency proceedings are instituted by or against Customer, or a receiver is appointed, or if the System in use by Customer is the object of an attempted attachment, sequestration or other comparable action related to Customer’s use, and any such proceeding or action is not vacated or terminated within sixty (60) days after commencement or filing. Upon any termination of this Agreement, Customer shall (x) immediately cease all use of the SaaS Service and the System, and (y) return all related User Documentation, other materials and all copies thereof to Vendor or certify their destruction.
- Miscellaneous. Nothing in this Agreement, in the course of dealing between the parties in connection herewith or in the performance hereunder is intended or shall be deemed to create between them (including their respective directors, officers, employees and agents) any partnership, joint venture, association, fiduciary relationship or any other relationship with respect to one another other than that of independent contractors. Vendor shall not be held liable for and will not be responsible for any delay or failure to perform under this Agreement if such delay or failure results from fire, explosion, labor disputes or difficulties, contractor difficulties, earthquake, casualty or accident, lack of or failure of transportation facilities and/or services, lack or failure of telecommunications facilities and/or services including Internet services, epidemic, flood, drought, or by reason of war, revolution, civil commotion, blockade or embargo, act of God, any inability to obtain any requisite license, permit or authorization, or by reason of any law, proclamation, regulation, ordinance, demand or requirement of any government or by reason of any other cause whatsoever, whether similar or dissimilar to those enumerated, that is beyond Vendor’s reasonable control. Delays or failures that are excused as provided in this Section shall result in automatic extensions of dates for performance. In addition, no such excused delay or failure shall constitute a default hereof or be a basis for disputing or withholding amounts payable hereunder. This Agreement shall be interpreted, governed and enforced in accordance with the law of the State of North Carolina, without regard to its conflict of laws rules. If any provision of this Agreement is held invalid or unenforceable, such invalidity or unenforceability shall not affect the remaining provisions, which shall continue in full force and effect. Notwithstanding any termination or expiration of this Agreement for any reason, (i) any unpaid amounts or accrued sums due and payable at the time of termination or expiration, and (ii) the parties obligations under Sections 2, 3, 4, 5, 6, 7 and 11 shall survive such termination or expiration and continue in full force and effect. This Agreement, together with any Exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof. No terms of any purchase order, acknowledgement or other ordering document submitted by Customer shall affect or modify this Agreement; which may be modified only in writing signed by the party against whom such term is sought to be enforced. Any notice required or allowed by this Agreement shall be written and sent by certified mail, return receipt requested, or by commercial overnight mail to the other party at the contact address and to the attention of the person identified below, or such other address of which a party gives notice in accordance with this Agreement and shall be deemed to have been duly given four (4) days after mailing to the respective addresses set forth on the Service Order. This Agreement will be binding upon and will inure to the benefit of the parties and their respective permitted successors and assigns. Customer shall have no right to assign, transfer or grant any of its rights, duties, or obligations under this Agreement to any other person or entity, in whole or in part, and any attempt to do so shall be deemed void and shall constitute a material breach of this Agreement. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay or failure in exercising any right or remedy hereunder on a particular occasion, nor any course of dealing, shall constitute a waiver of that or any other right or remedy on any other or further occasion. The headings in this Agreement are included for convenience of reference, and in the event of any conflict between such headings and the text of this Agreement, the text will control. This Agreement may be executed in multiple counterparts and shall be binding upon all parties when a counterpart has been signed by all parties hereto and for all intents and purposes as if all of the parties had signed a single document. The parties hereto agree that executed copies of this Agreement delivered by facsimile shall have the same force and effect as delivery of an executed original.
SaaS Service: Vendor’s Internet-based services include the following technical and management activities, which shall be provided at no additional charge (unless specifically indicated below):
ONGOING TECHNICAL SUPPORT:
- Vendor will monitor network connectivity to measure performance levels of its broadband service providers and, if bandwidth is interrupted or falls below reasonably acceptable levels of performance, Vendor will notify and work with its broadband service provider to resolve problems and minimize the impact to Customer
- Vendor will monitor performance levels of all equipment housed within the Data Center and take appropriate steps to maintain reasonably acceptable performance levels for Customer
- Vendor will conduct preventive maintenance on equipment housed within the Data Center on a periodic and documented basis
- Vendor will conduct periodic backups of the Customer’s data stored on Data Center equipment at least once per business day and store one copy of backup media off-site
ONGOING APPLICATION SUPPORT:
- Vendor will provide free support via email at email@example.com as more fully described in the Section entitled “Support Rates”. Vendor will reply to such emails, or contact Customer by telephone, in its sole discretion and its convenience.
- Vendor will, in its sole discretion, request System enhancements and “bug fixes” on behalf of Authorized Users. Customer shall be entitled to receive access to Vendor’s current production System, as that the System may be updated, upgraded or enhanced during the term of this Agreement.
- Vendor will provide an initial and periodic (on at least a quarterly basis) processing of Customer’s Data against Vendor’s database lists of National Change of Address Registry and National Do Not Call Registry in accordance with current federal regulations. Any actual out-of-pocket costs or charges incurred by Vendor to effectuate such processing shall be billed to Customer. If federal regulations change so as to impose a substantial additional burden on Vendor, then the Parties shall renegotiate the terms for providing this support. Vendor makes no representation or warranty with regard to Customer’s compliance with the requirements of the National Do Not Call Registry. [NTD: Should this be at the written request of Customer?]
The following ongoing application support is optional and available at additional cost:
- Premium support service is available for a fee. Premium support services include Vendor providing Level 1 help desk support via email at firstname.lastname@example.org between the hours of 8:30 AM and 5:30 PM Eastern Standard Time (excluding federal holidays), auto-response confirmation of receipt of email and a response by Vendor within four (4) hours of auto-response. Vendor will not respond to email requests from an e-mail address other than the designated contact’s address provided on the SaaS Services Order Form and will not provide telephone support except as otherwise agreed to in writing.
- Ownership & Intellectual Property.
- Customer acknowledges and agrees that it receives and that it will not assert any ownership, right, title, or other interest, in or to the SaaS Service and/or the System, or to any software, documentation or any modifications or enhancements to, or derivative works of, the software and documentation that constitute any portion of the SaaS Service and/or the System.
- Customer retains ownership of all data it inputs, uploads, transmits, or otherwise provides for use with the SaaS Service (collectively, “Data”). Vendor will treat the Data that is stored on the System as confidential information of Customer and not disclose the Data to any third party without Customer’s prior authorization. Notwithstanding the foregoing, Vendor will not be responsible for any inadvertent disclosure of Data that occurs as a result of Data being misdirected due to incorrect input, upload, or transmission by Customer, or as a result of improper actions or omissions of the Data Center. In addition, Customer acknowledges and agrees that Vendor will not have any obligation of confidentiality with regard to Data (whether comprising Confidential information or otherwise) that may be visible to Vendor personnel in the event that Customer requests Vendor to remotely access an Authorized User’s computer for the purpose of providing Level 1 technical support. Customer shall be solely responsible for communicating this limitation to its Authorized Users and ensuring that no Confidential Information is made visible to Vendor personnel in this manner or otherwise. At Customer’s request, Vendor will provide Customer with a copy of the Data in electronic form and in a standard format at the termination or expiration of this Agreement. Customer may contract with Vendor for additional transition services at Vendor’s standard hourly rates, subject to Vendor’s capacity to provide such additional services.
- “Confidential Information” includes all proprietary and non-public information and data that concerns a party’s business, technology, systems, finances, personnel, operations, or other assets and activities of a party, including, but not limited to, trade secrets, ideas, processes, formulas, programming, know-how, improvements, discoveries, developments, designs, inventions, techniques, marketing plans, training and education materials and programs, product developments, rates, prices, costs and customer data. Confidential Information shall also include any information of a party identified as confidential or proprietary at the time of disclosure or that is known, or under the circumstances should reasonably be known, to be confidential by the receiving party. Customer is solely responsible for ensuring that its Confidential Information is not disclosed to Vendor in the course of requesting technical support from Vendor, and that Vendor shall have no obligation of confidentiality to Customer with regard to any Data disclosed to Vendor in the course of receiving such technical support.
- Vendor and Customer each agree that, during and after the term of this Agreement, Customer and its personnel (whether an Authorized User or otherwise) shall maintain all Confidential Information received from Vendor in strictest confidence, shall not use such Confidential Information except in furtherance of its rights under this Agreement, and shall not disclose such Confidential Information to Customer’s personnel except on a strict need to know basis, and shall not disclose or disseminate such Confidential Information to any third party except by prior written consent of Vendor or in obedience to an appropriate judicial order or other legal process after providing the disclosing party with reasonable notice and opportunity to object. Each entity or individual receiving Confidential Information pursuant to this Agreement shall have entered into a written confidentiality agreement with the Customer which furthers the intent of this Section. Without limiting the generality of the foregoing, Customer shall not grant access to the SaaS Service or System to anyone other than its Authorized Users and shall take reasonable measures to prevent such access. In particular, User Documentation (as defined below) associated with the SaaS Service and the System are deemed to be Confidential Information of Vendor. For the avoidance of doubt, this restriction on disclosure includes any third party consultants and service providers utilized by Customer to integrate the SaaS Service or System with Customer’s existing network.
- Notwithstanding the foregoing, the confidentiality obligations of this Section 4 will not apply to any information that (i) is publicly available without breach of an obligation of confidentiality under this Agreement, (ii) a party has authorized the other party to disclose without restriction, (iii) the receiving party demonstrates to have been independently developed by the receiving party outside the scope of this Agreement and without reference to information received pursuant to this Agreement as evidenced by contemporaneously prepared documentation, or (iv) is rightfully obtained by the receiving party from third parties that are entitled to possess it without obligation to protect its confidentiality.
- Vendor reserves the right to use Customer’s Confidential Information and/or Data for statistical and comparative analysis purposes. Subject to receipt of Customer’s written permission to use such information, Customer grants to Vendor the right to use such Confidential Information and/or Data for statistical and comparative analysis purposes, provided that no such Confidential Information and/or Data is used in any manner by Vendor which could reasonably identify Customer or result in the inadvertent disclosure of the Confidential Information and/or Data itself.
- Upon termination of this Agreement for any reason, or otherwise on demand, Customer shall return to Vendor all Confidential Information received from Vendor and certify the destruction of all copies, summaries or analyses thereof.
- The parties agree that any breach or threatened breach of any duty in Sections 3 or 4 of this Agreement or violation of any third party’s intellectual property rights will result in substantial and immediate irreparable harm to such party, that such damages cannot be adequately remedied by monetary damages, and that an injured party is entitled to seek injunctive relief for any such breach or violation or threatened breach or violation, in addition to any other remedy to which the party is otherwise entitled. Any disputes regarding Sections 3 or 4 of this Agreement shall be subject to the jurisdiction of the North Carolina state courts in and for Wake County, North Carolina, or, if there is federal jurisdiction, the United States District Court for the Eastern District of North Carolina, and the parties agree to submit to the personal jurisdiction and venue of these courts.
- User Documentation.
User documentation, which includes but is not limited to the user manuals supplied in electronic format and all training materials provided or made available by Vendor (“User Documentation”), are provided solely to support Customer’s authorized use of the SaaS Service and System. The User Documentation may not be otherwise used, copied, modified, or distributed, nor any copy, adaptation, transcription, or portion thereof, except that Customer may make and distribute one (1) copy of the User Documentation for each Authorized User or as otherwise expressly authorized by Vendor in writing. Customer shall not delete or modify any copyright notice or other proprietary rights notice or attribution included in or with the User Documentation. The User Documentation contains Confidential Information of Vendor, and distribution of the User Documentation to any unauthorized person or entity is expressly prohibited. Customer is responsible for ensuring that the User Documentation is used by its personnel only as permitted under this Agreement and any distribution or transfer to third parties shall be considered a material breach of this Agreement.