By your acceptance of this “Agreement”, You do hereby warrant that you have the authority to provide access to your company’s database (Salesforce.com, SugarCRM, Microsoft Dynamics, ZOHO, Pardot, Marketo, Hubspot, NetSuite, Quickbooks, Zuora, Intacct, , Private Cloud db, or Public Cloud db) and you here by granting such authority to Forcivity subject to the terms and conditions set forth in stated herein . This Agreement governs the relationship between Forcivity, Inc. (“Forcivity”) and you (the “Customer”). It is important that you carefully read and understand the terms and conditions of this Agreement. By clicking accept and providing access, Customer agrees to accept and abide by this Agreement as of this date (“Effective Date”).
We reserve the right at any time to: (i) change the terms and conditions of this Agreement ;( ii) change the Product or any features thereof; or (iii) deny or terminate your use of and/or access to the Site.
Any changes we make will be effective immediately upon our making such change(s) available on the Site or otherwise providing notice thereof. Customer agrees that by continuing to use the Product thereafter you accept such change(s). Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement.
- Product Conductor. The Product Conductor includes services that: automates the transfer of your data from your cloud application to a relational database, a process to keep that data up to date, tools to transfer data back to your cloud application, tools to compare your data overtime, and tools to prepare data for consumption by other applications.
- Provision of Product. Customer shall within a reasonable period of time of the Effective Date provide to Forcivity access its Salesforce® data so that Forcivity is able to transfer such data to Amazon® or any other server it may select in accordance with terms and conditions of this Agreement. Customer is responsible at its own expense for (a) providing Forcivity with such access to and (b) for providing its own access to the Internet, either directly or through devices that access Web-based content, and for paying any fees associated with such access.
- License Grant. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the Order Form, Forcivity hereby grants to Customer a non-exclusive, non-transferable license for Customer to access and use the Conductor Application, it’s services, and resources required to function, within the scope of their license agreement/service level.
- Forcivity has entered into an agreement with Amazon to provide hosting services, to support the Forcivity application, its data, and the customer’s data enable within the application. Forcivity makes no additional representations or warranties and has no responsibility for access or use of such data. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Forcivity hosted data, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. In addition to the above the following additional requirements may be applicable:
- Cohabitation Instance – Customers in this class, will have their data stored within their own MSSQL database, on an instance that is shared with other customers & their databases;
- Private Instance – Customers in this class will be provided their own Amazon hosted MSSQL server instance; and
(c) In the event the customer elects to host the services & storage (local, private cloud, or public cloud of choice), Forcivity is not responsible for the provisioning of the server, it’s software, or any other connection/service/resource required to enable the Forcivity platform.
- Restrictions. Unauthorized use (including any resale or commercial exploitation) of the Product or any Forcivity Technology in any way is expressly prohibited. Customer shall not (and shall not allow any third party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of any Forcivity Technology, or access the Product in order to build a competitive product or service or copy any ideas, features or functions of the Product. Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign the Product or any Forcivity Technology to any third-party. Customer shall take all measures necessary to ensure compliance by all of its Users with all terms and conditions of this Agreement and Customer shall be responsible for all acts and omissions of such Users in connection with this Agreement. Customer shall keep all passwords safe and secure, and shall be responsible for all use of the Product using passwords issued to Customer and its Users. In addition to Forcivity’s other remedies hereunder, Forcivity reserves the right upon 10 days prior written notice to Customer to terminate any user’s right to access the Product if Forcivity can reasonably demonstrate to Customer that such user has materially violated the restrictions contained in this Agreement.
- Forcivity Ownership. Customer acknowledges and agrees that (i) as between Forcivity and Customer, all right, title and interest in and to the Forcivity Technology and the Product and all derivatives thereof (including any and all patents, copyrights, trade secret rights, trademarks, trade names and other intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain Forcivity and this Agreement in no way conveys any right or interest in the Forcivity Technology or the Product other than a limited license to use the Product in accordance herewith, and (ii) the Forcivity Technology and the Product are works protected by copyright, trade secret, and other proprietary rights and laws. The Forcivity name, the Forcivity logo, and the product names associated with the Product may be trademarks of third parties, and no right or license is granted to use them. Customer shall not remove any Forcivity logo from the Product. Forcivity Technology means all of Forcivity’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by Forcivity in providing the Product.
- Payment of Fees; Taxes. Customer shall pay to Forcivity the fees specified and in accordance with the schedule set forth on the applicable Order Form. If Customer pays fees by credit card, Forcivity will charge the credit card the applicable fee in advance, at the frequency set forth in the Order Form. Customer remains liable for any fees which are rejected by the card issuer or charged back to Forcivity. If fees are invoiced, payment is due thirty days from date of invoice (unless otherwise specified on the Order Form). Customer agrees to pay a late charge of one and half percent (1 1/2%) per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid when due. Amounts set forth on the Order Form exclude taxes. Customer will be solely responsible for, and will promptly pay, all taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement, the Products, or Customer’s and its Users access to the Product. Customer agrees to pay reasonable attorneys’ fees and court costs incurred by Forcivity to collect any unpaid amounts owed by Customer.
- Customer Data. All data and content which the Customer makes available to Forcivity in connection with this Agreement (the “Customer Data”) is stored in a private and secure fashion, and will not be used by Forcivity except as necessary to provide the Product. As between Forcivity and Customer, Customer retains ownership of all Customer Data, including all right, title and interest therein. Customer hereby grants to Forcivity a limited, non-exclusive, non-transferable right to use, display, transmit and distribute the Customer Data solely in connection with providing the Product to Customer. In addition, Forcivity may use Customer Data to create aggregated data (e.g. with other customers) and statistics, and Forcivity may during and after the term hereof, use and disclose such data and statistics in its discretion so long as any disclosed data does not identify Customer or any individual (collectively “Benchmarking”). Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. Forcivity shall operate the Product in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections. [add?]
- Customer Responsibilities. Customer is solely responsible for all Customer Data. Forcivity does not guarantee the accuracy, integrity or quality of such Customer Data. Customer shall not: (a) upload or otherwise make available to Forcivity any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to Forcivity any Customer Data that Customer does not have a right to transmit under any law or under contractual relationships; (c) use, upload or otherwise transmit any Customer Data or domain name that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person; (d) upload or otherwise make available to Forcivity any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Product or Servers or networks connected to the Product; (f) upload or otherwise make available to Forcivity any Customer Data that constitutes protected health information subject to the Health Insurance Portability and Accountability Act or any regulation, rule or standards issued thereunder; or (g) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the Federal Trade Commission, any rules of any securities exchange, and laws regarding the export of technical data. Customer shall also be responsible to protect its own sensitive data if it is required by performing its own encryption.. Forcivity shall not provide any encryption services.
- 10. Microsoft Software. In conjunction with the Services, You may be allowed to use certain software (including related documentation) developed and owned by Microsoft Corporation or its licensors (collectively, the “Microsoft Software”). If you choose to use the Microsoft Software, Microsoft and its licensors require that You agree to these additional terms and conditions: (a) the Microsoft Software is neither sold nor distributed to you and you may use it solely in conjunction with the Services; (b) you may not transfer or use the Microsoft Software outside the Services; (c) you may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Microsoft Software; (d) you may not reverse engineer, decompile or disassemble the Microsoft Software, except to the extent expressly permitted by applicable law; (e) Microsoft disclaims, to the extent permitted by applicable law, all warranties by Microsoft and any liability by Microsoft or its suppliers for any damages, whether direct, indirect, or consequential, arising from the Services; (f) Microsoft is not responsible for providing any support in connection with the Services.
- Limited Warranty. (a) Customer represents and warrants that: (i) Customer Data and its use by Forcivity as permitted by this Agreement will not infringe on the copyrights, trademarks, service marks, patents, or other intellectual property or personal rights held by any third party; (ii) Customer has all corporate (or other organization type) power and authority to enter into this Agreement and has duly and validly authorized this Agreement; and (iii) Customer shall comply with all laws, regulations and rules applicable to Customer and its use of the Product. (b) Customer shall not, and shall not permit others to, (i) remove any proprietary notices or labels on the Products (including without limitation, any copyright, trademark notices), or (ii) use the Product other than as expressly permitted hereunder. (c) Forcivity represents and warrants that (i) it will provide the Product in a competent and workmanlike manner; and (ii) it has all corporate power and authority to enter into this Agreement and has duly and validly authorized this Agreement. Forcivity retains the right to modify Product at its discretion provided that doing so does not have a material adverse impact on the Product hereunder. Customer’s sole remedy for Forcivity’s breach of the warranty in clause i above shall be that Forcivity shall remedy the applicable error, or if Forcivity is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Product for the period during which the breach of warranty period. (d) Customer acknowledges and agrees that except for the express warranties provided above in this Section 11, all warranties, whether express, implied or statutory, and all obligations and representations as to performance, including all warranties which might arise from course of dealing or custom or trade and including all implied warranties of merchantability, are hereby expressly excluded and disclaimed by Forcivity.
- Warranty Disclaimers. EXCEPT FOR THE LIMITED WARRANTY AT SET FORTH IN THIS AGREEMENT, TO THE EXTENT ALLOWED BY LAW, FORCIVITY ON BEHALF OF ITSELF AND ITS SUPPLIERS HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE.
- 13. Limitation of Liability. (A) EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS HEREUNDER (SECTION 14), CUSTOMER’S BREACH OF SECTION 5 (RESTRICTIONS), OR CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER:
(I) TO THE FULLEST EXTENT PERMISSIBLE BY LAW, EACH PARTY’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO FORCIVITY UNDER THIS AGREEMENT DURING THE PRIOR SIX (6) MONTHS; AND (II) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (WHICH MAY INCLUDE THE LOSS OF ANTICIPATED PROFITS OR REVENUES) ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
(B) THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 13 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT FORCIVITY HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY LIMITED REMEDY OR THIS AGREEMENT SHALL FAIL ITS ESSENTIAL PURPOSE.
- Indemnification. (a) Forcivity shall defend, indemnify and hold harmless Customer, its affiliates, and their respective directors, officers, employees and agents (collectively, “Related Persons”) from and against any liabilities, losses, damages, costs or expenses, including reasonable attorneys’ fees, experts’ fees and court costs (collectively, “Losses”) to the extent resulting from any third party claim, demand, suit or proceeding (each, a “Claim”) based on any allegation that the Product, as provided by Forcivity hereunder, infringes or misappropriates any copyright or trade secret of such third party. If a claim of infringement or misappropriation occurs, or if Forcivity determines that a claim is likely to occur, Forcivity shall have the right, in its sole discretion, to either: (i) procure for Customer the right or license to continue to use the Product free of the infringement claim; or (ii) replace or modify the Product to make it non-infringing. If these remedies are not reasonably available to Forcivity, Forcivity may, at its option, terminate this Agreement and return to Customer any pre-paid unused fees for the Product. Despite the provisions of this Section, Forcivity has no obligation with respect to any claim of infringement or misappropriation that is based upon or arises out of (x) Customer’s use of the Product other than in accordance with the applicable documentation or Forcivity’s written directions or policies; or (y) any third party software, other technology, data or content, or any Customer Data. FOR ANY INFRINGEMENT BY THE PRODUCT, THIS SECTION STATES THE ENTIRE LIABILITY OF FORCIVITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES.
(b) Customer shall defend, indemnify and hold harmless Forcivity and its Related Persons from and against any Losses to the extent resulting from any Claim based on (i) any allegation that the Customer Data infringes, violates or misappropriates such third party’s intellectual property or proprietary rights, or (ii) Customer’s breach of Section 5 (Restrictions) or 9 (Customer Responsibilities).
(c) As conditions to the indemnification obligations in paragraphs a and b above, the indemnified party shall (i) promptly notify the indemnifying party in writing of any Claim for which indemnity is claimed, provided that failure to so notify will not relieve the indemnifying party’s indemnification obligation except to the extent it is prejudiced thereby; (ii) allow the indemnifying party sole control, at its expense, of the defense and settlement of the Claim, provided that (A) the indemnified party may participate in such defense and settlement via counsel of its own choosing, at its sole expense, and (B) any settlement shall be subject to the prior written consent of the indemnified party, not unreasonably withheld; and (iii) reasonably cooperate with the indemnifying party with respect to such defense and settlement.
- Assignment. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Neither party shall, without the prior written consent of the other party, assign or transfer this Agreement, in whole or in part, provided that either party may assign this Agreement in its entirety, without consent, to any successor to its business, including in connection with any merger, consolidation, and any sale of all or substantially all of its assets or any other transaction in which more than 50% of the party’s voting securities are transferred, provided that such successor agrees in writing to be bound by the terms of this Agreement.
- Entire Agreement. This Agreement, including the Order Form, contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written (including confidentiality agreements), relating to the subject matter herein. Notwithstanding any course of dealings between the parties at any time, no purchase order, invoice or similar document shall be construed to modify any of the terms of this Agreement, unless the document is (a) signed by both parties and (b) expressly refers to all provisions of this Agreement that the parties intend to modify by such document. This Agreement may be executed electronically or in multiple counterparts, all of which, taken together, shall constitute one and the same instrument. Delivery of an executed signature page by facsimile or email shall be deemed effective as delivery of a manually-executed counterpart. Any conflict between the terms set forth on an Order Form and this Agreement shall be controlled by the terms and conditions set forth in this Agreement.
- Termination and Suspension. This Agreement takes effect on the Effective Date and shall continue until completion for the period of performance set forth in the Order Form. Unless otherwise set forth on the Order Form, upon the initial contract end date this Agreement will automatically renew for successive terms of 12 months, unless either party gives written notice of non-renewal at least 30 days before the renewal date. Notwithstanding the foregoing, each party will have the right to terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. In addition to the foregoing, Forcivity also reserves the right, in its sole and absolute discretion, to suspend providing the Product and Customer agrees that Forcivity may shut off and suspend Customer’s access to the Product at any time, without having to terminate this Agreement, if Customer is more than 30 days late with respect to any payments due hereunder, subject to being provided written notice of such payment delinquency by Forcivity. Upon such suspension, Customer shall still be liable for all payments that have accrued prior to the date of suspension and that will accrue throughout the remainder of the term. Forcivity will not be obligated to restore access to the Product until Customer has paid all fees owed to Forcivity.
- After Termination. Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder shall terminate and Forcivity shall no longer provide access to the Product to Customer and (ii) Customer shall cease and cause its Users to cease using the Product. Upon termination of this Agreement by Forcivity due to Customer’s uncured breach, in addition to any other remedies Forcivity may have for such breach, Customer shall pay Forcivity for all fees that had accrued prior to the termination date and continue to pay Forcivity for all monthly Product fees that will accrue through the end of the then current term. Except as expressly provided herein, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. Sections 5, 6, 10(d), and 12-21, and all accrued payment obligations, will survive termination or expiration of this Agreement.
- Confidentiality. Each Party agrees that during the term of this Agreement, information that is confidential may be disclosed to the other Party, including, but not limited to Forcivity Technology, Customer Data, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, projections, and marketing data (“Confidential Information”). Confidential Information shall not include information that the receiving Party can demonstrate (a) is generally known to the public at the time of its disclosure, or thereafter becomes generally known to the public through a source other than the receiving Party, (b) was known to the receiving Party as of the time of its disclosure, (c) is independently developed by the receiving Party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing Party. Except as provided for in this Agreement, each Party shall not make any disclosure of the other Party’s Confidential Information to anyone other than its employees, contractors or Users who have a need to know in connection with this Agreement. Each Party shall notify its employees, contractors and Users of their confidentiality obligations with respect to the other Party’s Confidential Information and shall require its employees, contractors and Users to comply with these obligations. The confidentiality obligations of each Party and its employees and Users shall survive three years beyond the expiration or termination of this Agreement. Forcivity shall have the right to publicly use Customer’s name and logo on lists published on Forcivity’s website and in marketing materials. Forcivity may announce the customer relationship in a press release provided that Forcivity obtains Customer’s prior approval of the release and the wording of the release, not unreasonably withheld.
- Notices. Any notice required or permitted hereunder shall be in writing and may be delivered to the contact person listed on the Order Form as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally; (ii) by established overnight courier upon written verification of receipt; (iii) by certified or registered mail, return receipt requested, upon verification of receipt; or (iv) by electronic delivery when receipt is confirmed orally. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section.
- Force Majeure. If either party is prevented from performing any of its obligations under this Agreement (except for Customer’s obligation to pay amounts due to Forcivity) due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, acts of vandals, acts of hackers, or Denial of Service attacks (DoS) (each, a “Force Majeure Event”), the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence; provided that, if a party suffering a Force Majeure Event is unable to resume performance within 30 days, the other party may terminate this Agreement by written notice thereof.
- Independent Contractors. The relationship of the parties is that of independent contractor, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between the parties. Customer shall have no authority to enter into agreements of any kind on behalf of Forcivity and shall not have the power or authority to bind or obligate Forcivity in any manner to any third party.
- Except for actions to protect Confidential Information and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Manchester New Hampshire. The arbitrator shall apply the laws of the State of New Hampshire to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
- General Provisions. This Agreement shall be interpreted according to the laws of the State of New Hampshire without regard to or application of choice-of-law rules or principles. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of any breaches and the waiver of any breach shall not act as a waiver of subsequent breaches. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of this Agreement will remain in full force and effect. The parties further agree that in the event such provision is an essential part of this Agreement, they will begin negotiations for a replacement provision. Neither this Agreement nor the Order Form (and other schedules and exhibits thereto) may be construed as creating or constituting a partnership, joint venture, or agency relationship between the parties.