Thanks for using Sendbloom, a super awesome sales automation tool designed and built by Cordata, Inc.
This Software as a Service Customer Agreement (“Agreement”) is made as of January 19, 2014 by and between Cordata, Inc., a Delaware corporation (the “Company”) having its principal place of business located at 216 Clayton Street, San Francisco, CA 94117 and you, our user (“Customer”) (each, a “Party” and collectively, the “Parties”) (capitalized terms not defined with the first use shall have the meaning set forth for such term within the Agreement, including Exhibit B):
Subject to Customer complying with the terms and conditions of this Agreement, the Company shall during the Service Term (i) host, operate and maintain the Software described on the Service Schedules on servers operated by or for the Company and (ii) provide Customer with access to remotely use the functionality of the Software and Customer Data in accordance with this Agreement and the Documentation solely for the Intended Purpose (“Service”).
Customer may purchase such Services from the Company by signing a service schedule that details the Services to be provided (each, a “Service Schedule”). Each Service Schedule shall refer specifically to this Agreement and shall become effective and a part of this Agreement when executed by both Parties.
The Company shall provide Customer with support as set forth on Exhibit A.
Upon the execution of this Agreement, the Company and Customer will each identify in writing to the other Party an implementation coordinator who will be that Party’s contact during the implementation and training periods.
Upon execution of this Agreement and the Company's receipt of the amount owed as listed on the applicable Service Schedule, the Company will grant Customer access to the Software.
The Company may provide Customer training for its Customer Users and other identified users as a part of the initial implementation. The scope of training, if any, is listed on Exhibit A. Such training will be conducted on a mutually agreed upon date by Customer and the Company as soon as is reasonably possible after the Commencement Date. The Parties agree to complete any training, support and implementation plan (the “Support and Implementation Plan”) within thirty (30) days after the Commencement Date and that the mutually agreed upon Support and Implementation Plan will become a part of this Agreement and incorporated by reference.
The Commencement Date shall be the first day of the calendar month in which the Company first makes the Service available to Customer. Unless terminated earlier in accordance with this Agreement, the Company shall continue to provide the Services through the number of months set forth in the applicable Service Schedule (the “Service Term”). The Service Term shall automatically renew for successive 1-month periods, unless either Party has notified the other Party that it elects not to renew the Service at least ninety (90) days prior to the expiration of the then-current Service Term.
Fees for the Service (“Service Fees”) shall be set forth in the applicable Service Schedule. Service Fees for subsequent renewal periods, if any, shall be payable in advance and prior to the applicable renewal date. All other fees, if any, shall be invoiced as incurred and shall be due as outlined in the payment terms in Service Schedule. All payments shall be made in U.S. dollars in accordance with instructions provided by the Company. Any amount not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is greater.
The Company and Customer agree that the Standard Terms and Conditions attached hereto as Exhibit B shall constitute an integral part of this Agreement and are hereby incorporated into this Agreement.
"Customer data" means the data and information (i) loaded into the Software by or on behalf of Customer in the course of Customer’s use of the Software, (ii) loaded by the Company into the Software at Customer’s direction, or (iii) loaded into the Software via an interface to a third party which was established at Customer’s direction. “Documentation” means any published or electronic user guides or operating manuals that the Company may make generally available to its customers for use with the Software and as updated by the Company from time to time. “Intended Purpose” means use of the Software for sales force automation. “Licensed Materials” means the Software and the Documentation. “Software” means the current version of the software application described in the Service Schedule, including bug fixes and updates thereto. The feature specifications for the Software are set forth in the applicable Documentation.
Subject to the terms of this Agreement and each of the Service Schedules attached hereto, the Company hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right for Customer to access and use the Software on a Software-as-a-Service (“Saas”) basis and the Service for Customer’s internal use in accordance with the Documentation.
Customer shall ensure that the Service is accessed and used only by Customer or Customer Users with appropriate Credentials. Customer shall be responsible for (i) issuing or providing information to the Company to issue Credentials and (ii) managing Credentials pursuant to applicable minimum access policies or requirements maintaining the confidentiality of Credentials used to access the Service. “Credentials” means a login name and password provided to Customer or a Customer User. “Customer Users” means the staff members and representatives of Customer who use the Service.
The Company shall not be obligated to provide access to the Service for any other programs, workflows, process management or functionality not explicitly identified in a Service Schedule or covered by the Intended Purpose. Customer agrees that any use other than the Intended Purpose would require additional consideration and the prior written approval of the Company.
Customer shall not: (a) sell, rent, lease, loan, sublicense, disseminate, assign, transfer, hypothecate, grant a security interest in or otherwise provide the Service, Software or Documentation to third parties, make the Service, Software or Documentation available for use by third parties or use the Service, Software or Documentation for the benefit of any third party including through any outsourcing, timesharing, service bureau, facilities management, practice management, billing or data processing service basis; (b) copy, reproduce, modify, adapt, translate or create any derivative works from the Service, Software or Documentation; (c) disassemble, decompile, reverse engineer, or make any other attempt by any means to discover or obtain the source code for, the Software; (d) remove, alter, obscure or tamper with any trademark, copyright or other proprietary markings or notices affixed to or contained within the Service, Software or Documentation; (e) take any action that may adversely impact or impair the Company’s or its Suppliers’ rights, title and interest in the Service, Software or Documentation; or (f) encourage or permit any other third party to engage in any of the foregoing. Customer shall be responsible for ensuring that all Customer Users comply with the terms of this Agreement, and Customer shall be liable for any breach by any Customer User of the restrictions or other terms of this Agreement. Customer shall not cause or permit the installation or use of any programs or device that attempts to interface directly to the Software source code or that attempts to read the Software’s proprietary data files without the Company’s express prior written authorization. “Suppliers” means all third party licensors and other suppliers to the Company that provide any portion of the Software or Documentation or support the Company’s provision of the Service.
Customer acknowledges and agrees that all Intellectual Property Rights, including without limitation all worldwide right, title and interest in and to the Service, Software, Documentation and related materials (including all modifications, alterations and enhancements thereto and derivative works thereof) and all copies thereof, including all trademarks, service marks, patents, copyrights, Trade Secrets, designs, algorithms and all other intellectual property, industrial property and proprietary rights in or related to the Service, Software and Documentation, are and shall remain the exclusive property of the Company and its Suppliers. “Intellectual Property Rights” means any and all rights with respect to the Software, Service, Documentation, and related services and materials arising from or under any of the following, whether protected, created or arising under the laws of the United States of America or any other jurisdiction in the world: patents, copyrights, trademarks and service marks, trade dress, trade names, Trade Secret and know-how and any other intellectual property or proprietary rights of any nature, by whatever name or term known or however designated. “Trade Secrets” means information that derives actual or potential economic value because it is not generally known to, and by proper means not readily ascertainable by, others who can obtain economic value from its disclosure or use; and is the subject of commercially reasonable efforts to maintain its secrecy.
Solely for the purposes of providing and supporting the Services, Customer hereby grants to the Company a worldwide, fully paid-up, royalty-free and non-exclusive license to use and combine the Customer Data with other data and to use, transmit, distribute, reproduce, modify, edit, adapt, translate and reformat Customer Data in any manner, in whole or in part. Customer represents and warrants that (i) it owns or has the legal right and authority, and will continue to own or maintain the legal right and authority, to grant to the Company during the term of this Agreement the rights and licenses set forth herein and (ii) the Company’s use of Customer Data as provided herein will not infringe any copyright or other proprietary right or trade secret of any third party or otherwise violate any right of a third party.
The Company will use commercially reasonable efforts to correct any errors in the Software that are deemed material by the Company and of which the Company has been notified by Customer in a timely manner. This warranty shall not apply if: (a) the Service or Software is not used in accordance with this Agreement or the Documentation or is used in a manner for which it is not designed, contemplated or specifically recommended by the Company; (b) the Service or Software is adapted, modified, altered or tampered with by anyone other than the Company or its authorized agents; (c) the Service or Software is used in conjunction with any programs, hardware or other products not specified in writing by the Company for use with the Software; or (d) the error is caused by Customer, the Internet, or any third party hardware, programs or other products. Customer acknowledges and agrees that this Section 3.1 sets forth the Company’s exclusive liability, and Customer’s exclusive remedy, for any breach of the warranty set forth herein.
The Company represents and warrants that to its knowledge the Software does not contain any computer code designed to disrupt, disable, harm, or otherwise impede the operation thereof or of any associated software, firmware, hardware, computer system, or network (sometimes referred to as “viruses” or “worms”) other than license management code that enables the Company to disable the Software upon Customer’s no longer having a valid license hereunder.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 3, THE COMPANY, ITS AFFILIATES AND SUPPLIERS (COLLECTIVELY, THE “COMPANY PARTIES”) MAKE NO WARRANTIES WHATSOEVER AND PROVIDE THE SOFTWARE AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE COMPANY PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, ACCURACY OF INFORMATIONAL CONTENT AND SYSTEM INTEGRATION. THE COMPANY DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES TO BE UNINTERRUPTED OR ERROR FREE AND IS NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS OR SERVICES.
Neither Party shall use or disclose, or permit others to use or disclose, any of the other Party’s Proprietary Information without the disclosing Party’s prior written consent or except as expressly authorized hereunder or as required for each party to perform its obligations hereunder. Each Party shall safeguard the confidentiality of the Proprietary Information including, at a minimum, taking those precautions used by the receiving Party to protect its own Proprietary Information of a similar nature, which in no event shall be less than a reasonable degree of care. The receiving Party shall restrict the possession, knowledge and use of Proprietary Information to its employees, agents and subcontractors who have a need to know for purposes of this Agreement and are bound by confidentiality obligations no less stringent than those contained herein. Before disposing of any media containing the Documentation or other Proprietary Information of the Company, Customer agrees to take all necessary steps to securely destroy or erase all Documentation and other Proprietary Information of the Company and its Suppliers contained in such media. The receiving Party may disclose Proprietary Information as required by law, regulation or judicial process, in which case, the receiving Party will use reasonable efforts under the circumstances to disclose only such information as is required and to seek confidential treatment for any Proprietary Information so disclosed. The receiving Party promptly shall notify the disclosing Party of any facts known to such Party regarding any unauthorized disclosure or use of the Proprietary Information. All Proprietary Information shall remain the exclusive property of the disclosing Party. The terms of this Section 4.1 shall survive termination or expiration of this Agreement. “Confidential Information” means non-public information of value to its owner and that is the subject of its owner’s reasonable efforts to maintain confidentiality thereof, including without limitation the terms of this Agreement. Confidential Information shall not include any information that the receiving Party can demonstrate: (a) was in the receiving Party’s possession at the time of disclosure by the disclosing Party without confidentiality obligation; (b) becomes known to the receiving Party through disclosure by sources other than the disclosing Party who have the legal right to disclose such Proprietary Information without confidentiality obligation; or (c) is independently developed by or for the receiving Party without reference to or reliance upon the disclosing Party’s Proprietary Information. The placement of a copyright notice on the Software or Documentation shall not constitute publication or otherwise impair the confidential nature thereof. “Proprietary Information” is, collectively and without regard to form, any third party information that either party has agreed to treat as confidential, and Confidential Information and Trade Secrets. Without limiting the generality of the foregoing, Customer acknowledges that the Service, Software and Documentation, including the ideas, methods of operation, architecture, processes and know-how embodied in such items, constitute Proprietary Information of the Company or its licensors. Each party immediately shall report to the other party any attempt by any person of which such party has knowledge or becomes aware (i) to use, disclose or copy Proprietary Information without authorization from the other party or (ii) to copy, reverse assemble, reverse compile or otherwise reverse engineer any part of the Proprietary Information.
Upon termination of this Agreement for any reason or upon the other Party’s written request, each Party promptly shall: (a) return or securely destroy, at the other Party’s direction, all tangible material embodying the Proprietary Information in such Party’s possession or under such Party’s control; and (b) if requested by the other Party, deliver an affidavit, signed by an executive officer of such Party, certifying that such Party has complied with the obligations set forth in subsection (a) above.
The Service Fees for any renewal period are subject to an annual adjustment defined at the annual invoice period.
Should Customer fail to satisfy any payment within fifteen (15) days of the due date, then, in addition and cumulative to any and all other remedies available to it and upon written notice to Customer, the Company may disable access to the Service for Customer, revoke the rights granted herein, stop providing any support to Customer, and cease working on any professional services being performed for Customer pursuant to this Agreement or any other agreement. Should the Company disable access to the Service under this section then Customer may reinstate such Service by paying all amounts owed to the Company, including interest thereon. For the sake of clarity, any action taken by the Company pursuant to this Section 5.2 shall not relieve Customer of any obligations under this Agreement or any other agreement.
All prices and fees set forth herein are net amounts to be received by the Company. Customer shall be responsible for any and all taxes and assessments that arise from this Agreement and related transactions, except for taxes based upon the Company’s net income.
The Company, at its own expense, shall defend or settle, at the Company’s option, any third party claim, suit or proceeding (“Third Party Claim”) brought against Customer claiming that the Service, Software or Documentation, in the form in which they are furnished by the Company, infringe upon a United States patent or copyright of such third party, and the Company shall pay any final judgment entered against Customer by a court of competent jurisdiction or settlement agreed to by the Company with respect to any such Third Party Claim, but only if: (a) Customer notifies the Company in writing within ten (10) days after first being notified of such Third Party Claim; (b) the Company has control over the defense and settlement of such Third Party Claim; (c) at the Company’s request and expense, Customer reasonably cooperates with the Company in defending such Third Party Claim; and (d) Customer takes no action that is contrary to the Company’s interests with respect to such Third Party Claim. In addition to its obligation set forth under this section, upon assertion of any such Third Party Claim, the Company shall have the right, at its option and expense, to: (x) obtain the right for Customer to continue using the affected Service or Documentation; (y) replace or modify the affected portions of the Service or Documentation so that the they are no longer infringing; or, if neither of the foregoing options is reasonably acceptable to the Company, then (z) terminate the rights granted Customer hereunder and refund to Customer any prepaid and unused Service Fees.
This Section 6 states the Company’s entire liability and Customer’s exclusive remedies for infringement. The Company shall have no liability or obligation to Customer under this Section 6 to the extent that the Third Party Claim results from: (a) the Service or Software being used other than in accordance with this Agreement or the Documentation; (b) adaptations, modifications or alterations to the Service or Software made by a party other than the Company or its authorized agents; (c) Customer’s use of the Service in combination with any programs, hardware or materials not provided or specifically approved by the Company; (d) Customer’s use of the Service in conjunction with inaccurate or improper Customer Data; (e) the use or possession of Customer Data in violation of a third party’s intellectual property rights, or (f) any use of the affected Service, Software or Documentation after Customer receives notice of any such Third Party Claim (collectively, the “Exclusions”).
Customer shall indemnify, defend (at Customer’s own expense) and hold harmless the Company Parties from and against any and all claims, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of or in connection with (i) any of the Exclusions, and (ii) Customer’s unauthorized use or disclosure of the Service, Software or Documentation, or (iii) Customer Data.
IN NO EVENT SHALL THE COMPANY PARTIES (i) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES FOR LOSS OF DATA, GOODWILL, BUSINESS INTERRUPTION OR THE LIKE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) HAVE AN AGGREGATE LIABILITY FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEEDING THE TOTAL SERVICE FEES ACTUALLY PAID BY CUSTOMER TO THE COMPANY UNDER THE APPLICABLE SERVICE SCHEDULE FOR THE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EARLIEST DATE ON WHICH THE EVENTS GIVING RISE TO THE LIABILITY OCCURRED. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OR THE FORM OF ACTION (WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY OR OTHERWISE) AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS LIMITATION IS CUMULATIVE AND NOT PER INCIDENT.
Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.
Each Party acknowledges that the limitation of liabilities and disclaimers contained herein constitute an agreed upon allocation of risk between the Parties, have been factored into the Company’s pricing and are an essential element of the bargain between the Parties.
Either Party shall be entitled to terminate this Agreement in the event of any material breach by the other Party (including any failure by Customer to make payments when due) if such breach is not cured within thirty (30) days after receipt of written notice thereof or reasonable actions to cure such breach have not been initiated.
This Agreement, including all rights, access grants and Service Schedules hereunder shall terminate automatically if either Party ceases conducting business in the normal course, makes an assignment for the benefit of creditors, or becomes the subject of any judicial or administrative proceedings in bankruptcy, receivership or reorganization which are not dismissed within ninety (90) days.
The Company reserves the right to suspend its performance obligations hereunder in its sole discretion if Customer is in breach of its obligations hereunder. Under such circumstances, the Company shall promptly notify Customer of its decision and the reasons therefor. If Customer addresses the Company's concerns to the Company's satisfaction, the Company may resume performance.
Upon termination of this Agreement for any reason or expiration or non-renewal of any Service Term, all rights granted to Customer hereunder with respect to the applicable Service, Software and Documentation shall cease, and Customer shall: immediately cease all use of the applicable Service, Software and Documentation, and promptly return or destroy, at the Company’s direction, any Software or Documentation and all copies thereof. In addition, Customer promptly shall pay to the Company all fees and other amounts due and owing under this Agreement. Any termination of this Agreement by the Company shall be in addition to, and not in lieu of, any other rights or remedies available to the Company at law or in equity. Except as expressly provided herein, no portion of the fees paid to the Company under this Agreement shall be refundable upon termination of this Agreement, whether such termination is by Customer or by the Company. Notwithstanding anything to the contrary contained herein, any provisions, which, by their nature, are intended to survive any expiration or termination of this Agreement shall so survive.
Customer shall not assign this Agreement or any rights or obligations hereunder, whether by operation of law or otherwise, without the Company’s express prior written consent, not to be unreasonably withheld. Any assignment in violation of this section shall be void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the permitted successors and assigns of the Customer. The Company may freely assign this Agreement to any third party.
All notices or approvals required or permitted hereunder shall be in writing and shall be deemed to have been given upon: (a) receipt if sent by certified or registered mail, postage prepaid, return receipt requested; (b) delivery if sent by a courier service that confirms delivery in writing; or (c) the date sent by facsimile, with a confirmation copy sent via national overnight courier, in each case addressed to the applicable address set forth on the first page of this Agreement.
Customer recognizes that irreparable injury would result to the Company in the event of Customer’s failure to comply with any of the terms of this Agreement, and that the full amount of the damages that would be incurred by the Company as a result of any such breach would be difficult to ascertain. Accordingly, Customer hereby agrees that, in the event of any such breach or threatened breach, the Company shall be entitled to seek appropriate injunctive relief without the need to post bond or prove the inadequacy of monetary damages.
The relationship of the Company and Customer is that of independent contractors. Neither Party shall have any authority to bind the other Party to any obligation by contract or otherwise.
If any provision of this Agreement shall be deemed invalid or unenforceable, in whole or in part, this Agreement shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable and, insofar as possible, consistent with the original intent of the Parties. The failure of a Party to require performance of any obligations of the other Party hereunder shall not be deemed a waiver and shall not affect its right to enforce any provision of this Agreement at a subsequent time.
No provisions of this Agreement are intended nor shall be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party under this Agreement, except that the Company’s affiliates and Suppliers shall be deemed third party beneficiaries under this Agreement for purpose of enforcing their rights in their respective intellectual property rights and Proprietary Information.
This Agreement may be executed in one or more duplicate counterparts, each of which shall be deemed an original, but which collectively shall constitute one and the same instrument.
Any term or provision of this Agreement may be amended or modified only by a writing signed by both Parties.
This Agreement, including all Service Schedules and attachments hereto, all of which are incorporated herein by reference, constitutes the entire understanding and agreement of the Parties, whether written or oral, with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings between the Parties with respect to the Service furnished by the Company hereunder.
If any conflict or ambiguity arises between the terms and conditions set forth in the body of this Agreement and any term or condition of any Service Schedule, Exhibit or other attachment to this Agreement, then, in every case, the order of precedence shall be the body of the Agreement then any other exhibits or attachments.
Neither Party shall be held liable to the other Party for failure of performance (except for the payment of money) caused by the other Party or otherwise due to circumstances beyond the non-performing Party’s reasonable control, including acts of God, war, terrorism, strikes or labor disputes, civil disturbances or interruptions in power, communications, transportation or the like.
This Agreement shall be governed in accordance with and interpreted under the laws of the State of California without giving effect to its choice of law provisions. Without limiting either Party’s obligations toward alternative dispute resolution, any action, suit, or other proceeding brought by either Party against the other Party shall be brought in a State or Superior court or the United States District Court of competent jurisdiction in the metropolitan area of San Francisco, California. Both Parties hereby submit to the exclusive jurisdiction of such courts and waive any objection to jurisdiction or venue in any such proceeding.
Customer’s access to Software will require access to the internet, and access to the internet is solely the Customer’s responsibility. No hardware, software, training, or support for access to the public internet will be provided by the Company.
END OF STANDARD TERMS & CONDITIONS