ReachForce Customer Agreement
THIS CUSTOMER AGREEMENT (this “Agreement”) effective as of ________________, is entered into by and between ReachForce, Inc. (“ReachForce”) and________________, hereto (“Customer”).
- Services. ReachForce will provide Customer the services (the “Services”) described in the Service Order accompanying this Agreement. The parties may agree to additional Service Orders for additional Services from time to time, all of which will be subject to the terms and conditions of this Agreement. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by ReachForce regarding future functionality or features.
- Rights to Customer Data, Services and Deliverables. Subject the terms of this Agreement, the applicable Service Order and the payment in full of all fees, ReachForce hereby grants to Customer and its authorized users a non-exclusive, non-transferable, nonsublicensable, right of access to the Services and a non-exclusive, non-transferable, non-sublicensable, perpetual license to use the deliverables provided to Customer in conjunction with the Services (the “Deliverables”) solely for Customer’s own internal business purposes. Except for the foregoing, ReachForce does not grant Customer any right, title or interest in or to the Services or Deliverables or any intellectual property of ReachForce, and all such rights are retained by ReachForce. Customer hereby grants to ReachForce and its third party service providers a non-exclusive, nontransferable right to use all information provided to ReachForce by Customer (the “Customer Data”) solely to perform the Services. Customer acknowledges and agrees that all data related to, or provided by the Services and Deliverables, whether created or compiled by ReachForce or its third party suppliers prior to, during the course of, or after the performance of the Services, including, without limitation, verifications, corrections, and updates, and all Deliverables and other information provided to Customer by ReachForce as part of the Services, are and will be the proprietary intellectual property of ReachForce or its third party suppliers which ReachForce may use for any purpose whatsoever.
- Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party, including the terms and conditions of this Agreement and information marked or identified as confidential or proprietary (“Confidential Information”). Customer’s Confidential Information will include, but not be limited to, the Customer Data, and ReachForce’s Confidential Information will include, but not be limited to, fee information, the Services and the Deliverables and all passwords and usernames used in conjunction with the Services, even if not marked accordingly. Neither party will use in any way, except as expressly permitted by this Agreement, nor disclose to any third party except as may be required by law, any of the other party’s Confidential Information. Each party will take reasonable precautions to protect the confidentiality of the other party’s Confidential Information. Confidential Information does not include information that (i) is known to the recipient of the information before receipt from the disclosing party; (ii) publicly available through no fault of recipient; (iii) rightly received by recipient from a third party without a duty of confidentiality; (iv) disclosed by disclosing party to a third party without a duty of confidentiality on the third party; (v) independently developed by recipient without breach of this or any other confidentiality agreement; or (vi) disclosed by recipient after prior written approval from the disclosing party.
- Fees. Customer will pay the fees set forth in the applicable Service Order. All invoices will be due and payable in full within thirty (30) days from the date of such invoice. All fees are fixed fees and nonrefundable except as otherwise set forth in a Service Order. Partial payments will not be construed as acceptance of payment in full. Fees may not be withheld or offset for any reason. Fees are exclusive of all taxes, including without limitation, sales, use, or other taxes or levies on Services and Deliverables provided under this Agreement. Customer will maintain up-to-date administration and accounts payable contacts with ReachForce.
- Representations and Warranties. Each party represents and warrants that it has the power to enter into this Agreement and to carry out its obligations under this Agreement. Customer further represents and warrants that Customer will not use the Services or any Deliverables for any unlawful purpose or in contravention of the rights of any third party. ReachForce further represents and warrants that the Services, under normal use, will perform materially in accordance with the applicable ReachForce documentation and be provided in a manner consistent with generally accepted industry standards. If ReachForce fails to provide the Services as warranted, and customer reports such failure within 30 days of such failure, ReachForce will immediately re-perform the services, as applicable. The foregoing is customer’s sole and exclusive remedy for breach of warranty by ReachForce. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5 OR OTHERWISE SET FORTH IN THE APPLICABLE SERVICE ORDER, REACHFORCE HEREBY DISCLAIMS, ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FURTHER, REACHFORCE DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Limitations of Liability. NEITHER PARTY WILL BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF CUSTOMER’S BUSINESS, EVEN IF REACHFORCE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. EXCEPT FOR CUSTOMER’S BREACHES OF THE LICENSES SET FORTH HEREIN, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, UNDER SECTIONS 5 AND 7, WILL BE LIMITED TO THE TOTAL FEES PAID BY CUSTOMER TO REACHFORCE HEREUNDER FOR THE PRIOR 12 MONTH PERIOD. Customer acknowledges that ReachForce has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.
- Indemnification. Each party will indemnify, defend and hold the other harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) that result from any claim, suit, action, or proceeding brought by a third party (each, a “Claim”) arising out of a breach of a representation, warranty or covenant set forth in Section 5 and that are finally awarded to such third party by a court of competent jurisdiction or in settlement of such Claim. The party claiming indemnification will promptly provide written notice to the other party, and the indemnifying party may elect to have sole control of the defense and settlement of such Claim.
- Term; Termination; Suspension. This Agreement commences on the Effective Date and will continue until the expiration or termination of the last-surviving Service Order. A particular Service Order Initial Term begins at midnight of the Effective Date and ends at midnight of the Expiration Date. Unless either party gives written notice of nonrenewal thirty (30) days prior to the Expiration Date of the then current term, Service Orders will automatically renew for successive terms equal to the Initial Term. Either party will have the right to terminate this Agreement or any Service Order if the other party materially breaches this Agreement or any Service Order and fails to cure such breach within 30 days after receipt of written notice from the non-breaching party. Within 30 days after such expiration or termination, each party will return or destroy all Confidential Information of the other party in its possession that it does not have a continuing right to use pursuant to the express terms of this Agreement. Sections 3, 4, 5, 6, 7, 9 and 10 will survive the expiration or termination of the Agreement.
ReachForce may suspend Customer’s rights to use the Services (in whole or in part) or terminate this Agreement fifteen (15) days following ReachForce’s provision of notice to Customer if Customer is in default of any payment obligation with respect to any of the Services or if any payment mechanism Customer has provided to ReachForce is invalid or charges are refused for such payment mechanism, and Customer fails to cure such payment obligation default or correct such payment mechanism problem within such 15-day period. For the avoidance of doubt, Customer’s payment obligations under this Agreement will not be suspended or terminated if ReachForce suspends or terminates this Agreement pursuant to this Section 9.
- Miscellaneous Provisions. This Agreement together with the applicable Service Orders constitutes the entire agreement between the parties with respect to the subject matter herein, and supersedes all prior agreements between the parties. Either party’s failure to enforce any provision of this Agreement will not be construed as a waiver of any provision or right. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions will remain in full force and effect. In the event of a conflict between this Agreement and a Service Order, the terms of the Service Order will govern and prevail. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. ReachForce may delegate the performance of the Services to third parties, provided that ReachForce will remain liable for performance. Neither party may assign this Agreement or its rights and responsibilities hereunder without the prior written consent, except that either Party may assign this Agreement if the assignee is an acquiring party or affiliated party including by purchase, merger or operation of law. Subject to the foregoing, this Agreement will be binding upon the parties’ respective successors and permitted assigns. Customer agrees that ReachForce may refer to Customer by trade name and trademark, and may briefly describe Customer’s business and the nature of this Agreement, in ReachForce’s marketing materials and web site provided that ReachForce complies with Customer’s publicly available trademark usage guidelines. The laws of the State of Delaware (excluding its choice of law rules) will govern interpretation and enforcement of this Agreement. If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party will be entitled to recover its reasonable attorney’s fees and costs from the other party. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, without limitation, act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, or governmental act. ReachForce and Customer are independent contractors. Any notice or communication hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, sent by email, or mailed by registered or certified mail, return receipt requested, postage prepaid. Such notice will be deemed to have been given as of the date it is delivered.
Customer Support Services Agreement
This Customer Support Services Agreement is issued pursuant to the Software-as-a-Service Addendum C and the ReachForce Customer Agreement (“the Agreement”) by and between ReachForce and Customer, which terms are incorporated herein by reference. All capitalized terms will have the same meaning given to them pursuant to the Agreement unless otherwise set forth herein. In the event of a conflict between any of the terms and conditions of this Customer Support Services Agreement and the terms and conditions of the Agreement, this Customer Support Services Agreement will prevail in connection with Customer Support Services (term defined below) provided for the Software-as-a-Service purchased by Customer.
- On Demand Customer Support. Provided (i) that Customer is in compliance with the terms and conditions of Agreement and the Order Form under which Customer has procured the Software-as-a-Service from ReachForce, and (ii) Customer has paid the applicable Subscription fees, ReachForce agrees to provide support Customer Support Services with respect to the Software-as-a-Service as follows: (1) answers to technical questions concerning functions and features of the Software and Service; (2) error verification, analysis and corrective efforts and (3) all software and infrastructure upgrades which ReachForce generally applies to its Software-as-a-Service customers.
- “Customer Support Services Term” will mean the Software-as-a-Service Term;
- Customer Support Services Contact Information. Customer will designate one or more (maximum of three (3)) individuals within Customer’s organization as Customer’s primary contacts for requesting Customer Support Services (“Support Contact(s)”). Each Support Contact is responsible for contacting ReachForce for any support-related issues arising from the use of the Software-as-a-Service (“Support Requests”) and for working with ReachForce to resolve such issues.
- Customer Support Services Availability. Customer Support Requests for the Software-as-a-Service may be submitted through ReachForce’s website twenty-four (24) hours a day, seven (7) days a week.
- Incident Severity Levels.
Customer Support assigns a severity level to each incident, according to the criteria described in the following table. Severity levels are used to determine target initial response times.
- Initial Target Response Time and Availability.
Severity Description SLA S1 Catastrophic impact to production system(s) 2 hour 24/7 response, target zero day resolution S2 High Impact, production operations are disrupted or degraded 4 hour 24/5 response, 24-48 hour resolution S3 Medium impact, partial loss of non-critical functionality 1 business day response, 3-5 business day resolution S4 Minimal production impact and feature requests. 5 business day response, flexible schedule permitting resolution
(i) Upon receipt of a Support Request, a Customer Support Engineer will make initial contact as described below:
- Customer Support Service Terms and Conditions. ReachForce’s obligation to provide Customer Support Services is conditioned on Customer performing the following obligations:
- Provide to ReachForce all information relating to the error identified in each Support Request (an “Error”) including test data associated with the Error and a detailed description of the Error;
- Support ReachForce’s personnel in their efforts to diagnose, reproduce and resolve any suspected system anomalies. This may include sending any diagnostic information as requested by ReachForce personnel.
- Successfully deploy and verify all changes in a test environment(s) before requesting to make the changes in a production environment.
- Customers must allow ReachForce to implement and apply all necessary upgrades to the Software and/or Hardware and/or Network and/or any other component of Software-as-a-Service within ReachForce recommended time period.
- Customer authorizes ReachForce to access Customer’s application and related data stored in the ReachForce Software-as-a-Service infrastructure.
- Exclusions from Customer Support Services. ReachForce is not obligated to provide Customer Support Services in the following situations:
- An Error is caused by Customer’s negligence or other causes beyond the reasonable control of ReachForce
- An Error is caused by third-party software not licensed through ReachForce
- The Software is improperly configured or used by Customer.
Revised on 01/31/2018