HomeMy WebLinkAbout2023-008-E-AMS-Business Orientated Software Solutions-BOSSDesk Implementation & TrainingRevised 10/17
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[Departmental Use Only]
TITLE BossDesk
FY 2022/2023
NORTH CAROLINA
SERVICES AGREEMENT UNDER $90,000.00
NO RFP/RFQ
ORANGE COUNTY
This Services Agreement (hereinafter “Agreement”), made and entered into this 29th day of
December, 2022, (“Effective Date”) by and between Orange County, North Carolina a political
subdivision of the State of North Carolina (hereinafter, the "County") and Business Oriented
Software Solutions, Inc., (hereinafter, the "Provider").
WITNESSETH:
That the County and Provider, for the consideration herein named, do hereby agree as follows:
1. Services
a.Scope of Work.
i)This Agreement is for services to be rendered by Provider to County with respect
to (insert type of project): Asset Management Services Implementation & Training,
BOSSDesk Enterprise Subscription, and Annual Renewal- BOSSDesk
Subscription.
ii)By executing this Agreement, the Provider represents and agrees that Provider is
qualified to perform and fully capable of performing and providing the services
required or necessary under this Agreement in a fully competent, professional and
timely manner.
iii) Time is of the essence with respect to this Agreement.
iv)The services to be performed under this Agreement consist of Basic Services, as
described and designated in Section 3 hereof. Compensation to the Provider for
Basic Services under this Agreement shall be as set forth herein.
2.Responsibilities of the Provider
a.Services to be provided. The Provider shall provide the County with all services required
in Section 3 to satisfactorily complete the Project within the time limitations set forth
herein and in accordance with the highest professional standards.
b. Standard of Care.
i)The Provider shall exercise reasonable care and diligence in performing services
under this Agreement in accordance with the highest generally accepted standards
of this type of Provider practice throughout the United States and in accordance
with applicable federal, state and local laws and regulations applicable to the
performance of these services. Provider is solely responsible for the professional
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quality, accuracy and timely completion and/or submission of all work related to
the Basic Services.
ii)Provider shall be responsible for all errors or omissions of its agents, contractors,
employees, or assigns in the performance of the Agreement. Provider shall correct
any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at
no additional cost to the County.
iii)The Provider shall not, except as otherwise provided for in this Agreement,
subcontract the performance of any work under this Agreement without prior
written permission of the County. No permission for subcontracting shall create,
between the County and the subcontractor, any contract or any other relationship.
iv)Provider is an independent contractor of County. Any and all employees of the
Provider engaged by the Provider in the performance of any work or services
required of the Provider under this Agreement, shall be considered employees or
agents of the Provider only and not of the County, and any and all claims that may
or might arise under any workers compensation or other law or contract on behalf
of said employees while so engaged shall be the sole obligation and responsibility
of the Provider.
v)If activities related to the performance of this Agreement require specific licenses,
certifications, or related credentials Provider represents that it and/or its employees,
agents and subcontractors engaged in such activities possess such licenses,
certifications, or credentials and that such licenses certifications, or credentials are
current, active, and not in a state of suspension or revocation.
vi) In determining the basic services to be provided, should any documents be
referenced in this Agreement, the terms of this Agreement shall have priority in any
conflict between the terms of referenced documents and the terms of this
Agreement. Should a request for proposals and a proposal be referenced the terms
of the request for proposals shall have priority over the terms of any proposal.
3.Basic Services
a.Basic Services. The Services to be rendered pursuant to this Agreement are as follows
(fully describe services to be provided): On line access to a software as a service solution
for an improved Asset Mananagement Services ticketing system.
4.Duration of Services
a. Term. The term of this Agreement shall be from 12/05/2022 to 12/05/2023.
b. Scheduling of Services.
i)The Provider shall schedule and perform its activities in a timely manner.
ii)Should the County determine that the Provider is behind schedule, it may require
the Provider to expedite and accelerate its efforts, including providing additional
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resources and working overtime, as necessary, to perform its services in accordance
with the approved project schedule at no additional cost to the County.
iii)The Commencement Date for the Provider's Basic Services shall be 12/05/2022.
5.Compensation
a.Compensation for Basic Services. Compensation for Basic Services shall include all
compensation due the Provider from the County for all services under this Agreement.
The maximum amount payable for Basic Services shall not exceed Three Thousand Six
Hundred Ninety Dollars ($3690.00). Payment for Basic Services shall become due and
payable within thirty (30) days of Provider properly invoicing County. Payment shall be
subject to provisions of Section 5(b).
b. Disputes. In the event the amount stated on an invoice is disputed by the County, the
County may withhold payment of all or a portion of the amount stated on an invoice until
the parties resolve the dispute. Should Provider fail to perform its duties under the terms
of this Agreement, County may, without fault or penalty, withhold any payment associated
with the work to be performed until such time as said work is completed.
c.Additional Services. County shall not be responsible for costs related to any services in
addition to the Basic Services performed by Provider unless County requests such
additional services in writing and such additional services are evidenced by a written
amendment to this Agreement.
6.Responsibilities of the County
a.Cooperation and Coordination. The County has designated (Alan Dorman) to act as the
County's representative with respect to the Project and shall have the authority to render
decisions within guidelines established by the County Manager and/or the County Board
of Commissioners and shall be available during working hours as often as may be
reasonably required to render decisions and to furnish information.
7.Insurance
a. General Requirements. Provider shall obtain, at its sole expense, Commercial General
Liability Insurance, Automobile Insurance, Workers’ Compensation Insurance, and any
additional insurance as may be required by County’s Risk Manager as such insurance
requirements are described in the Orange County Risk Transfer Policy and Orange
County Minimum Insurance Coverage Requirements (each document is incorporated
herein by reference and may be viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php). If
County’s Risk Manager determines additional insurance coverage is required such
additional insurance shall consist of N/A (if no additional insurance required mark N/A
as being not applicable). Provider shall not commence work until such insurance is in
effect and certification thereof has been received by the County's Risk Manager.
8.Indemnity
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a.Indemnity. The Provider agrees, without limitation, to defend, indemnify and hold
harmless the County from all loss, liability, claims or expense, including attorney's fees,
arising out of or related to the Project and arising from property damage or bodily injury
including death to any person or persons caused in whole or in part by the negligence or
misconduct of the Provider except to the extent same are caused by the negligence or
willful misconduct of the County. It is the intent of this provision to require the Provider
to indemnify the County to the fullest extent permitted under North Carolina law.
9.Amendments to the Agreement
a.Changes in Basic Services. Changes in the Basic Services and entitlement to additional
compensation or a change in duration of this Agreement shall be made by a written
Amendment to this Agreement executed by the County and the Provider. The Provider
shall proceed to perform the Services required by the Amendment only after receiving a
fully executed Amendment from the County.
10.Termination
a.Termination for Convenience of the County. This Agreement may be terminated without
cause by the County and for its convenience upon seven (7) days’ prior written notice to
the Provider.
b.Other Termination. The Provider may terminate this Agreement based upon the County's
material breach of this Agreement; provided, the County has not taken all reasonable
actions to remedy the breach. The Provider shall give the County seven (7) days' prior
written notice of its intent to terminate this Agreement for cause.
c.Compensation After Termination.
i)In the event of termination, the Provider shall be paid that portion of the fees and
expenses that it has earned to the date of termination, less any costs or expenses
incurred or anticipated to be incurred by the County due to errors or omissions of
the Provider.
ii)Should this Agreement be terminated, the Provider shall deliver to the County
within seven (7) days, at no additional cost, all deliverables including any electronic
data or files relating to the Project.
d.Waiver. The payment of any sums by the County under this Agreement or the failure of
the County to require compliance by the Provider with any provisions of this Agreement
or the waiver by the County of any breach of this Agreement shall not constitute a waiver
of any claim for damages by the County for any breach of this Agreement or a waiver of
any other required compliance with this Agreement.
e.Suspension. County may suspend the Basic Services and this Agreement at any time for
County’s convenience and without penalty to County upon three (3) days’ notice to
Provider. Upon any suspension by County, Provider shall discontinue work on the Basic
Services and shall not resume the Basic Services until notified to proceed by County.
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11. Additional Provisions
a.Limitation and Assignment. The County and the Provider each bind themselves, their
successors, assigns and legal representatives to the terms of this Agreement. Neither the
County nor the Provider shall assign or transfer its interest in this Agreement without the
written consent of the other.
b.Governing Law. This Agreement and the duties, responsibilities, obligations and rights
of respective parties hereunder shall be governed by the laws of the State of North
Carolina. By executing this Agreement Provider affirms that Provider and any
subcontractors of Provider are and shall remain in compliance with Article 2 of Chapter
64 of the North Carolina General Statutes. By executing this Agreement Provider
certifies that Provider has not been identified, and has not utilized the services of any
agent or subcontractor identified, on the list created by the State Treasurer pursuant to
G.S. 147-86.58. By executing this Agreement Provider certifies that Provider has not
been identified, and has not utilized the services of any agent or subcontractor identified,
on the list created by the State Treasurer pursuant to G.S. 147-86.81.
c.Non-Discrimination. Provider shall at all times remain in compliance with all applicable
local, state, and federal laws, rules, and regulations including but not limited to all state
and federal non-discrimination laws, policies, rules, and regulations and the Orange
County Non-Discrimination Policy and Orange County Living Wage Policy (each policy
is incorporated herein by reference and may be viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php.) Any
violation of the Orange County Non-Discrimination Policy is a breach of this Agreement
and County may immediately terminate this Agreement without further obligation on the
part of the County. This paragraph is not intended to limit and does not limit the definition
of breach to discrimination.
d.Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with
respect to any provision of, or the performance or non-performance of, this Agreement
shall be brought in the General Court of Justice of North Carolina sitting in Orange
County, North Carolina. It is agreed by the parties that no other court shall have
jurisdiction or venue with respect to such suits or actions. Binding arbitration may not be
initiated by either Party, however, the Parties may agree to nonbinding mediation of any
dispute prior to the bringing of such suit or action.
e.Entire Agreement. This Agreement represents the entire and integrated agreement
between the County and the Provider and supersedes all prior negotiations, representations
or agreements, either written or oral. This Agreement may be amended only by written
instrument signed by both parties. Modifications may be evidenced by facsimile
signatures.
f.Severability. If any provision of this Agreement is held as a matter of law to be
unenforceable, the remainder of this Agreement shall be valid and binding upon the
Parties.
g.Ownership of Work Product. Should Provider’s performance of this Agreement generate
documents, items or things that are specific to this Project such documents, items or things
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shall become the property of the County and may be used on any other project without
additional compensation to the Provider. The use of the documents, items or things by the
County or by any person or entity for any purpose other than the Project as set forth in this
Agreement shall be at the full risk of the County.
h.Non-Appropriation. Provider acknowledges that County is a governmental entity, and the
validity of this Agreement is based upon the availability of public funding under the
authority of its statutory mandate.
In the event that public funds are unavailable and not appropriated for the performance of
County’s obligations under this Agreement, then this Agreement shall automatically expire
without penalty to County immediately upon written notice to Provider of the
unavailability and non-appropriation of public funds. It is expressly agreed that County
shall not activate this non-appropriation provision for its convenience or to circumvent the
requirements of this Agreement, but only as an emergency fiscal measure during a
substantial fiscal crisis.
In the event of a change in the County’s statutory authority, mandate and/or mandated
functions, by state and/or federal legislative or regulatory action, which adversely affects
County’s authority to continue its obligations under this Agreement, then this Agreement
shall automatically terminate without penalty to County upon written notice to Provider of
such limitation or change in County’s legal authority.
i.Signatures. This Agreement together with any amendments or modifications may be
executed electronically. All electronic signatures affixed hereto evidence the consent of
the Parties to utilize electronic signatures and the intent of the Parties to comply with
Article 11A and Article 40 of North Carolina General Statute Chapter 66.
j. Notices. Any notice required by this Agreement shall be in writing and delivered by
certified or registered mail, return receipt requested to the following:
Orange County Provider’s Name
Attention:Bonnie Hammersley Maha Mahadevan -
President/CEO
P.O. Box 8181 Business Oriented Software
Solutions, Inc.
Hillsborough, NC 27278 350 Research Drive, Suite
110; Norcross, GA 30092
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have
hereunder set their hands and seal, all as of the day and year first above written.
ORANGE COUNTY: PROVIDER:
B y: _________________________________
County Manager
By: __________________________________
Maha Mahadevan, President/CEO
Printed Name and Title
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1/6/20231/9/2023
Revised 10/17
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ORANGE COUNTY—DEPARTMENT USE ONLY
______________________________________________________________________________
Department
Party/Vendor Name: Business Orientated Software Solutions, Inc. Party/Vendor Contact Person: Maha Mahadevan
Contact Phone: 678-684-1204 Party/Vendor Address: 350 Research Drive, Suite 110 City Norcross State: GA Zip:
30092 Department: AMS Amount: $3690.00 Purpose: BOSSDesk Implementation & Training Budget Code(s):
10240320-630000 Vendor # 64890 (N/A if new vendor) Vendor is a BOCC consultant? Yes No Contract
Type: (Check one) New Renewal Amendment Effective Date Approved by Board Yes No
Agenda Date:
This agreement is approved as to technical form and content:
Department Director’s Signature ________________________________________ Date: ________
Information Technologies
(Applicable only to hardware/software purchases or related services) This agreement has been reviewed and is
approved as to information technology content and specifications:
Office of the Chief Information Officer___________________________________ Date: ________
Risk Management
This agreement is approved for sufficiency of insurance standards, specifications, and requirements:
Office of the Risk Management Officer___________________________________ Date: _________
Financial Services
This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act:
Office of the Chief Financial Officer ____________________________________ Date: _________
Legal Services
This agreement is approved as to legal form and sufficiency:
Office of the County Attorney __________________________________________Date: ________
Clerk to the Board
The following signature block is for hard copies only and is not required for Docusign contracts:
Office of the Clerk to the Board __________________________________________Date:_________
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12/30/2022
1/6/2023
1/9/2023
1/9/2023
1
Sub Total 3,690.00
Total $3,690.00
Estimate Date :05 Dec 2022
Reference# :For Asset Management
Sales person :Maha Mahadevan
BOSS
350 Research Court
Peachtree Corners Georgia 30092
U.S.A
Estimate
# EST-20988
Bill To
DormanAlan
Orange County, NC
#Item & Description Qty Rate Amount
1 BOSSDesk Enterprise Subscription
Includes Service Catalog, Problem & Change management, mobile apps -
Price discounted to $588/agent per year discounted from list price of $828
5
Number of
agents
588.00 2,940.00
2 Implementation & Training
One Time Configuration & Training
Additional professional services billed at $150/hr as requested.
0.5
Per
Customer
1,500.00 750.00
3 Annual Renewal - BOSSDesk Subscription
Annual Subscription - Recurring $2940.00 for 5 agents
1 0.00 0.00
Notes
Payment is due upon receipt. No charge for ACH payments or checks. All estimates good for 30 days. No data migration is included in this
estimate.
Terms & Conditions
The purchase and use of the services, licenses and products described herein are subject solely to the standard terms and conditions of
the BOSSDesk software Subscription Agreement, and is incorporated herein by reference (the " Terms of Service"). By signing this Quote
/Order Form you are agreeing that you have read and agreed to the terms and conditions of the Terms of Service. The terms of the Terms
and conditions of service may only be modified as provided therein.
Agreed & Accepted
Signature: _______________________
Name : __________________________
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Title: ___________________________
Date: ___________
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Addendum 1:
BOSSDESK SOFTWARE
SUBSCRIPTION SERVICE
AGREEMENT
This Software Subscription Service (SaaS) Agreement (the “Agreement”) sets
forth the obligations and conditions between you (“Client”) and Business
Oriented Software Solutions, Inc (BOSS), a Georgia Corporation (“Provider”),
relating to your use of the Serviced defined herein. Please read this
Agreement carefully. Your use of the Services is expressly conditioned on
your acceptance of this Agreement.
Recitals A. Provider is the owner of certain proprietary computer software
known as BOSSDesk that is used to handle asset management and incident
management (the “Software”).
B. Provider provides and sells subscriptions for subscribers to access and use
the Software via bossdesk.io or any website notified to the subscribers from
time to time (the “Services”).
C. Provider is willing to provide access to the Services for Client’s internal
business use pursuant to the terms and conditions set forth herein.
D. Provider and Client acknowledge and agree that this Agreement shall be
effective and in force immediately upon the date that Client clicks the “I Agree”
icon below (the “Effective Date”) NOW THEREFORE, in consideration for the
mutual promises contained herein and other good and valuable consideration,
the parties agree as follows:
1. Software Subscription.
a. Provider grants to Client and Client accepts from Provider, a limited, non-
exclusive, nontransferable right to access and use and permit Authorized
Users to access and use the Services solely for Client’s internal business use.
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The Services shall not be used by Client or by Authorized Users for, or on
behalf of, third parties that are not authorized under this Agreement. Client
shall use its best efforts to ensure that the Authorized Users use the Services
in accordance with the terms and conditions of this Agreement. Client
acknowledges that its right to use the Services will be web-based only
pursuant to the terms of this Agreement and the Software will not be installed
on any servers or other computer equipment owned or controlled by Client or
otherwise provided to Client.
2. Intellectual Property Rights.
a. Client acknowledges that all right, title, and interest in and to the Services
and the Software, together with its codes, sequences, derivative works,
organization, structure, interfaces, any documentation, data, trade names,
trademarks, or other related materials (collectively, the “Provider IP”), is, and
at all times shall remain, the sole and exclusive property of Provider. The
Provider IP contains trade secrets and proprietary information owned by
Provider and is protected by United States copyright laws (and other laws
relating to intellectual property). Except the right to use the Services, as
expressly provided herein, this Agreement does not grant to Client any rights
to, or in, patents, copyrights, database rights, trade secrets, trade names,
trademarks (whether registered or unregistered) or any other rights or licenses
with respect to the Services or the Software.
b. Client shall not attempt, or directly or indirectly allow any Authorized User or
other third party to attempt to copy, modify, duplicate, create derivative works
from, frame, mirror, republish, reverse compile, disassemble, reverse
engineer, download, transmit or distribute all or any portion of the Services
and/or Software in any form or media or by any means.
c. The provisions of this paragraph 2 shall survive termination of this
Agreement.
3. Subscription Fee.
a. Client shall pay to Provider the subscription fee (the “Subscription Fee”) in
the amount and for the duration that Client has entered and agreed to
pursuant to the sign up page for this Agreement.
b. The Subscription Fee for the first Subscription Period (either month or year,
as applicable) of the term of this Agreement shall be paid on the Effective
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Date. The Subscription Fee for all subsequent Subscription Periods of the
term of this Agreement shall be paid to Provider on the first day of each
subsequent Subscription Period, pursuant to subsection d, below.
c. The amount of the Subscription Fee does not include any applicable taxes.
Client is responsible for any and all applicable taxes.
d. Client shall provide a valid credit card, ACH payment system information,
bank account information authorized for automatic bill paying, or other
acceptable method of payment to Provider and shall take all necessary steps
to authorize automatic payment of the Subscription Fee. By agreeing to this
Agreement, Client hereby authorizes Provider to automatically charge said
method of payment for all Subscription Periods during the term of this
Agreement. If, for any reason, automatic payment shall be denied, then Client
shall pay the applicable Subscription Fee, to Provider within thirty(30) days of
notice from Provider.
e. Any additional payment terms between Provider and Client shall be agreed
to in writing and set forth in an invoice, billing agreement, or other written
document.
4. Accessibility/Performance
Provider shall use commercially reasonable efforts to make the Services
available on a 24x7 basis (twenty four hours per day, seven days per week)
during the Term, except for: (i) scheduled system backup or other ongoing
maintenance as required and scheduled in advance by Provider, or (ii) for any
unforeseen cause beyond Provider's reasonable control, including but not
limited to internet service provider or communications network failures, denial
of service attacks or similar attacks, or any force majeure events set forth in
this Agreement. Provider will monitor performance indicators on the systems
and network infrastructure (its own and that of third party suppliers) in order to
gauge the overall performance of its hosting services, and will take
reasonable steps to address systems and network infrastructure as required
to maintain satisfactory performance of the Software. Provider agrees to notify
Client in cases where it restricts such use and use good faith efforts to
determine an appropriate alternative or workaround solution.
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5. Maintenance and Support
Provider shall maintain the Software and/or Services and provide all patches
and fixes to the Software and/or Services at no additional cost. Provided,
however, said maintenance shall not include any major releases of new
versions of the Software, additional functionality, or custom programming,
which Provider, at its discretion, may provide at an additional cost as
otherwise agreed between the parties.
6. Term
The Term of this Agreement shall commence on the Effective Date and shall
continue until terminated as provided herein. Client shall elect whether the
term will consist of annual or monthly periods (each a “Subscription Period”).
The Agreement shall automatically renew for subsequent Subscription
Periods unless either party provides written notice of its election not to renew
this Agreement at least fifteen (15) days prior to end of the then current
Subscription Period or otherwise terminates this Agreement pursuant to the
terms of this Agreement. Upon termination of this Agreement for any reason,
all rights and subscriptions granted to Client shall immediately terminate, and
the Client shall cease using the Services and shall prohibit Authorized Users
from using the Services.
7. Default
Client shall be in default of this Agreement if Client fails to make any payment
when due and fails to cure said default within thirty (30) days after receipt of
written notice thereof from Provider. In addition to the monetary breach
described in the previous sentence, either party will be in default of this
Agreement if the party is in material breach of this Agreement and fails to cure
such breach within Thirty (30) days after receipt of written notice thereof from
the non-breaching party. If a party is in default, the non-breaching party may
terminate this Agreement or seek any other remedies available at law or in
equity, except as otherwise provided in this Agreement. In the event Client
breaches or attempts to breach any of the provisions of this Agreement,
Provider shall have the right, in addition to such other remedies that may be
available, to injunctive relief enjoining such breach or attempt to breach, Client
hereby acknowledging the inadequacy of any remedy at law.
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8. Confidentiality
a. In addition to, and in no way limiting the requirements relating to the
Provider IP as set forth in Section 2 of this Agreement, Client shall use its
reasonable efforts (but in no case less than the efforts used to protect its own
proprietary information of a similar nature) to protect all proprietary,
confidential, and/or nonpublic information pertaining to or in any way
connected to the Software, the Services, the Provider's financial, professional
and/or other business affairs, and this Agreement (the "Confidential
Information").
b. Client shall not disclose or publicize the Confidential Information without the
Provider’s prior written consent.
c. Client shall use their reasonable efforts (but in no case less than the efforts
used to protects its own proprietary information of a similar nature) not to
disclose and not to use the Confidential Information for their own benefit or for
the benefit of any other person, third party, firm or corporation in a manner
inconsistent with the purpose of this Agreement.
d. The terms of confidentiality and nondisclosure contained herein shall expire
five (5) years from the date of the termination of this Agreement.
e. The restrictions on disclosure shall not apply to information which was: (i)
generally available to the public at the time of disclosure, or later available to
the public other than through fault of the Client; (ii) already known to the Client
prior to disclosure pursuant to this Agreement; (iii) obtained at any time
lawfully from a thirdparty under circumstances permitting its use or disclosure
to others; or (iv) required by law or court order to be disclosed.
9. Limited Warranty
Provider warrants that it has the power and authority to grant the subscription
for the Services granted to Client hereunder. EXCEPT FOR THE WARRANTY
SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND
PROVIDER DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABLITY OR FITNESS FOR A PARTICULAR
PURPOSE.
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Limitation of Remedy and Liability
Client represents that it accepts sole and complete responsibility for: (a) the
selection of the Services to achieve Client's intended results; (b) use of the
Services; (c) the results obtained from Services; and (d) the terms of any
contracts between Client and Authorized Users. Provider does not warrant
that the Client’s use of the Services will be uninterrupted or errorfree. Client
shall not assert any claims against Provider based upon theories of
negligence, gross negligence, strict liability, fraud, or misrepresentation, and
Client shall defend Provider from any demand or claim, and indemnify and
hold Provider harmless from any and all losses, costs, expenses, or damages,
including reasonable attorneys’ fees, directly or indirectly resulting from
Client’s use of the Services, an Authorized User’s use of the Services, and/or
any agreement between the Client and an Authorize User based on or in any
way related to the Services. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE,
EXEMPLARY OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER
PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE
THE SERVICES, WHETHER BASED UPON CONTRACT, WARRANTY,
TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF
PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. In any event, under no circumstances shall Provider be liable for
any loss, costs, expenses, or damages to Client in an amount exceeding the
Subscription Fee actually paid to Provider by Client for the previous twelve
(12) months.
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10. SERVICE LEVEL AGREEMENT. When we use the term “Service Level
Agreement” or “SLA” anywhere in this Agreement, we are referring to the
service level agreement set forth in this Section
13. We will use commercially reasonable efforts to make the Cloud Services
available 99.95% of the Service Year. ”Service Year” means the three
hundred sixty five-day period immediately preceding a claim for a service
credit. (a) SERVICE CREDIT. Uptime for each Service Year will be calculated
by subtracting from 100% the percentage of time during which our
Infrastructure was unavailable to all of our Cloud Service clients (the “Uptime
Percentage”). If the Uptime Percentage for the Service Year is less than
99.95%, you will be eligible for a service credit equal to 10% of your Cloud
Services bill for the calendar month in which the Uptime Percentage dropped
below 99.95%. The Uptime Percentage will be calculated using five-minute
increments. (b) DOWNTIME EXCLUSIONS. Downtime does not include
unavailability caused by one or more of the following: (i) maintenance, a
suspension, or a termination of the Cloud Services; (ii) the failure of servers or
services outside of a datacenter on which the Cloud Services are dependent,
including, but not limited to, inaccessibility on the Internet that is not caused
by our Infrastructure or network providers; (iii) a force majeure event such as
an act of God, act of war, act of terrorism, fire, governmental action, labor
dispute, and any other circumstances or events not in our direct control; (iv)
an attack on our Infrastructure, including a denial of service attack or
unauthorized access (i.e., hacking); (v) unavailability not reported by you in
accordance with the reporting provisions in Section 13(c) within five (5) of the
days of the date on which the Uptime Percentage dropped below 99.95%; (vi)
unavailability that results from the failure of individual Cloud Servers and that
is not attributable to an event causing unavailability to all clients using the
Cloud Services; or (vii) unavailability that is caused by your breach of this
Agreement. (c) SERVICE CREDIT PROCEDURES. We will determine, in our
reasonable discretion, your eligibility for service credits and the amount of
service credits awarded pursuant to this SLA. To be eligible for service
credits, you must send us a reasonably detailed, written request for service
credits no later than five (5) Business Days after the day on which your
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Uptime Percentage first drops below 99.95%. To be deemed valid, your
request must include (i) the dates and times of each period of Cloud Service
unavailability upon which your request is based; (ii) the instance names of the
affected Cloud Servers; and (iii) a description of any events from the Cloud
Services portal that may have indicated a system-wide unavailability during
the stated dates and times. If your Uptime Percentage is confirmed by us to
be less than 99.95% for the Service Year, we will issue a service credit during
the billing cycle following the month in which we determine that you are
eligible for one. All service credits will be applied to fees due from you to us
for Cloud Services; we will not pay any service credit to you as a refund. If you
fail to provide us with a valid request, you will not be eligible for a service
credit. Our calculation of your Uptime Percentage and all service credits will
be based on our records and data. Any dates and times that you previously
reported that led to a successful service credit claim cannot be used for future
claims. (d) LIMITATION. THE SERVICE CREDITS DESCRIBED IN THIS SLA
ARE YOUR SOLE AND EXCLUSIVE REMEDY FOR THE UNAVAILABILITY
OF A CLOUD SERVER.
11. Miscellaneous
a. Notice and Demands. Notice, demand, or other communication mandated
to be given by this Agreement by either party to the other shall be sufficiently
given or delivered if it is sent by registered or certified mail, postage prepaid,
return receipt requested or delivered personally. Unless Provider is otherwise
notified in writing, the Client’s address for notice purposes shall be Client’s
address provided as part of Client’s billing information.
b. Governing Law; Forum Selection. This Agreement shall be governed
exclusively by the laws of the State of North Carolina, without regard to its
conflicts of laws principles. The parties irrevocably agree and consent that
said forum is convenient and has jurisdiction to hear and decide any such
action.
c. Compliance with Laws. Client shall use the Services in accordance with any
and all applicable local, state, and federal laws.
d. Headings. The paragraph headings in this Agreement are for convenience
only and they form no part of the Agreement and shall not affect the
interpretation thereof.
e. Severability. If any provision of this Agreement shall be held illegal, void, or
unenforceable, the remaining portions shall remain in full force and effect.
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f. No Waiver. The delay or failure of either party to exercise any right under
this Agreement or to take action against the other party in the event of any
breach of this Agreement shall constitute a waiver of such right, or any other
right, or of such breach, or any future breaches, under this Agreement.
g. Assignment. Client shall not assign or transfer this Agreement.
h. No Partnership or Agency. Nothing in this Agreement is intended to or shall
operate to create a partnership between the parties, or authorize either party
to act as an agent for the other, and neither party shall have the authority to
act in the name or on behalf of or otherwise bind the other in any way.
i. Force Majeure. Provider will not be held responsible for any delay or failure
in performance of any part of this Agreement to the extent that such delay is
caused by events or circumstances beyond the Provider's reasonable control,
including but not limited to fire, flood, storm, act of God, war, malicious
damage, failure of a utility service or transport or telecommunications network.
j. Complete Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the Services, and supersedes any and all
prior or contemporaneous understandings or agreements whether written or
oral. No amendment or modification of this Agreement will be binding unless
reduced to a writing signed by duly authorized representatives of the parties
and such writing makes specific reference to this Agreement and its intention
as an amendment hereto.
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