Terms of service
Effective as of 14 October 2015.
This Master Subscription Agreement (“Agreement”) is made and entered into as of the Order Form Effective Date of the first Order Form executed between ClientSuccess, Inc. (“ClientSuccess”) and the Customer, described in such Order Form (“Customer”).
The terms and conditions of this Agreement shall govern the Services to be provided by ClientSuccess under any Order Form submitted by Customer and accepted by ClientSuccess, as though the provisions of this Agreement were set forth in their entirety within such Order Form, and so that each Order Form and this Agreement shall be considered one, fully integrated document and agreement. A Definitions section is included at the end of this Agreement. Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by ClientSuccess regarding future functionality or features.
1. License Grant/Limitations/Restrictions
Subject to the terms and conditions of this Agreement, ClientSuccess hereby grants Customer a non-exclusive, non-transferable, non-assignable, worldwide limited license to use the Services provided hereunder solely for Customer’s own business purposes and only for number of Users and time periods as set forth in each fully executed Order Form. All rights not expressly granted to Customer are reserved by ClientSuccess and its licensors. ClientSuccess reserves the right to make changes, modifications and enhancements to the Services from time to time.
2. Limitations on Use
Customer may not release to any third party the results of any evaluation of the Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of ClientSuccess. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or the Content in any way; (ii) modify or make derivative works based upon the Services or the Content; (iii) reverse engineer the Services; or (iv) access the Services in order to build a competitive product or service. For the avoidance of doubt, and subject to the license grant/limitations/restrictions in Section 1 above, nothing in this Section 2 shall be deemed to prohibit Customer from allowing Customer’s customers from accessing the functionality of the Services, via interfaces, portal applications and the like, for its internal business purposes. Additionally, Customer shall not use the Services to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Services or its related systems or networks.
3. Customer’s Responsibilities
Customer is responsible for all activity occurring under Customer’s User accounts and shall comply with all applicable laws and regulations in connection with Customer’s use of the Services, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data and export control laws and regulations. Customer shall: (i) notify ClientSuccess immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services; (ii) report to ClientSuccess immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of Content, ClientSuccess Technology, Services or Deliverable that becomes known or suspected by Customer or Customer’s Users; and (iii) not impersonate another ClientSuccess user or provide false identity information to gain access to or use the Services. Customer shall indemnify and hold ClientSuccess, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (1) your use of the Services; (2) any claim alleging that transmission, storage, or other use of Customer Data infringes the rights of, or has caused harm to, a third party; or (3) a claim alleging or based upon any facts that, if true, would constitute a violation by you of any of your covenants, representations, or warranties in this Agreement. If ClientSuccess requests that you defend ClientSuccess, ClientSuccess will (1) give you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release ClientSuccess of all liability and such settlement does not affect ClientSuccess’ business, the Services, or any of its other products or services); and (2) provide reasonable information and assistance in connection with the defense and settlement of the claim.
4. Account Information and Data
Customer will retain all ownership of Customer Data that Customer submits to the Services in the course of this Agreement. Customer, not ClientSuccess, has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all Customer Data. Customer will ensure that Customer and ClientSuccess have the right to use Customer Data as contemplated by this Agreement, and Customer hereby grants, and agree to grants, ClientSuccess the right to use all Customer Data for the purposes set forth in this Agreement. ClientSuccess will take commercially reasonable measures to protect Customer Data on the Services. However, ClientSuccess is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Customer Data. Except as permitted in this Agreement, ClientSuccess will not willfully disclose Customer Data unless (a) authorized by Customer, (b) ClientSuccess is required to do so by law, or (c) in the good faith belief that such action is necessary to conform with applicable laws or comply with legal process served on ClientSuccess. Customer grants to ClientSuccess an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, worldwide license, with the right to sublicense, use, reproduce, publish, distribute, perform, and display User statistical information and Customer Data such as usage, traffic patterns, or User activities in aggregate form to third parties, but such information will not include information which could be used to identify Customer or any person. ClientSuccess may access Customer Data to service or respond to technical issues with the Services. Customer will maintain written privacy policies governing the use of the data it collects using the Services and Customer agrees to abide by them. Customer agrees and acknowledges that (i) ClientSuccess is not obligated to retain any Customer Data for longer than 30 days after termination, and (ii) ClientSuccess has no obligation to retain Customer Data, and may delete Customer Data, if Customer has materially breached this Agreement (including but not limited to failure to pay outstanding Fees), or if the Customer provides a written request following any termination or expiration of this Agreement. Upon termination for cause resulting from an uncured breach, Customer’s right to access or use Customer Data immediately ceases, and ClientSuccess shall have no obligation to maintain or forward any Customer Data. If Customer provides a written request within 30 days after any termination or expiration of this Agreement, ClientSuccess shall return Customer Data within 60 days in a mutually agreed upon form.
5. Professional Services
If professional services (such as implementation, training, consulting, etc.,) are included in any Order Form (“Professional Services”), in addition to the provisions in any mutually agreed upon Statement of Work (“SOW”) the following provisions shall apply. ClientSuccess shall retain all ownership rights to any and all Deliverables excluding, any pre-existing technology or materials supplied by Customer for incorporation into such Deliverable. ClientSuccess grants Customer a royalty-free, non-exclusive, non-transferable, non-assignable worldwide license to use any Deliverable, to the extent necessary to permit Customer to use the Deliverable in connection with the Services during the Term. Customer acknowledges that nothing in this Agreement shall restrict or limit ClientSuccess from performing similar services for any third party.
6. Intellectual Property Ownership
ClientSuccess alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the ClientSuccess Technology, the Content, the Services and any Deliverables, including to any and all enhancements, enhancement requests, suggestions, modifications, extensions and/or derivative works thereof. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, to any Deliverable, the ClientSuccess Technology or the Intellectual Property Rights owned by ClientSuccess. The ClientSuccess name, the ClientSuccess logo, and the product names associated with the Services are trademarks of ClientSuccess or third parties, and no right or license is granted to use them.
7. Customer’s Third Party Interactions
During Customer’s use of the Services, Customer may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties showing their goods and/or services through the Services. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between Customer and the applicable third-party. ClientSuccess and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Customer and any such third-party. ClientSuccess does not endorse any sites on the Internet that may be linked through the Services and to the extent any links are provided by ClientSuccess, these are provided to Customer only as a matter of convenience, and in no event shall ClientSuccess or its licensors be responsible for any content, products, or other materials on or available from such sites.
8. Fees, Payment Terms, Taxes, Billing Contact
Customer shall pay all fees or charges as specified on each executed Order Form and/or SOW (“Fees”). All payment obligations are non-cancelable and all amounts paid are nonrefundable. Unless otherwise set forth in the applicable Order Form, payment terms are net thirty (30) days from the date of ClientSuccess’ invoice, without offsets or deductions of any kind, and payment is due in US dollars. If payment under an applicable Order Form is to be made via credit card or electronic money transfer (i.e. ACH), such payment shall be chargeable upon invoice date. ClientSuccess’ Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on ClientSuccess’ income. If ClientSuccess has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides ClientSuccess with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer believes Customer’s bill is incorrect, Customer must contact ClientSuccess in writing within sixty (60) days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Customer agrees to provide ClientSuccess with accurate billing and contact information, including Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Administrator. Customer agrees to update this information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, ClientSuccess reserves the right to terminate Customer’s access to the Services in addition to any other legal remedies. ClientSuccess reserves the right to modify its Fees with respect to its Services and to introduce new charges to become effective upon the upcoming Renewal Service Term by providing Customer written notice at least forty-five (45) days prior to the end of the then current Service Term. In the event that Customer does not provide notice of termination to ClientSuccess as described in 9 below, such Fee changes shall become effective at the commencement of the next Renewal Service Term. In the event Customer fails to make payments per payment terms as set forth in this Agreement or in any applicable Order Form, and legal enforcement by ClientSuccess is deemed necessary, Customer agrees to pay all reasonable legal fees and costs incurred by ClientSuccess
9. Agreement Term, Order Form Term
The Initial Term of this Agreement shall begin on the Order Form Effective Date of the first Order Form and shall continue in effect until all underlying Order Forms with Customer have expired in accordance with the terms of such Order Form(s), or if this Agreement is terminated earlier, as provided herein. The term of an applicable Order Form will begin on the Effective Date of the applicable Order Form and shall continue for the initial term specified in such Order Form (“Initial Service Term”). In the event that an Order Form contains Services added to an existing subscription, such added Services shall be billed on a pro-rated basis and will be coterminous with the Initial Service Term or applicable Renewal Service Term of such Order Form. Unless otherwise set forth in an applicable Order Form, or unless this Agreement is terminated as described in Section 11, upon expiration of the Initial Service Term of any Order Form, such Order Form/s will renew automatically for a subsequent Renewal Service Term of twelve (12) months (subject to any Fees adjustment as set forth in Section 8), unless either party notifies the other party of its intent to terminate at least thirty (30) days prior to the end of the then current Service Term.
10. Non-Payment and Suspension
In addition to any other rights granted to ClientSuccess herein, ClientSuccess reserves the right to suspend or terminate this Agreement, any related Order Forms, and Customer’s access to the Services if Customer’s account becomes delinquent and is uncured for a period of thirty (30) days. Delinquent invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection. In addition, ClientSuccess has the right to remove any credit terms provided in any Order Form in the event Customer’s account becomes delinquent (e.g. net 30 payment terms will be reduced to net 0). Customer will continue to be charged for Fees during any period of Service suspension due to Customer’s delinquency. If ClientSuccess initiates termination of this Agreement for cause, as further described in Section 11, Customer will be obligated to pay all remaining Fees due computed in accordance with their terms for the remainder of the applicable Order Initial Service Term, or Renewal Service Term thereof. Customer agrees that ClientSuccess may charge such unpaid Fees to Customer’s credit card or via ACH payment, or otherwise bill Customer for such unpaid Fees.
11. Termination for Cause
Either party may terminate this Agreement (and any Order Forms then in effect) if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after delivery of notice of such breach.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
13. Disclaimer of Warranties
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN SECTION 12, CLIENTSUCCESS AND ITS LICENSORS MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. CLIENTSUCCESS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CLIENTSUCCESS DOES NOT WARRANT THAT THE SERVICES, (INCLUDING PROFESSIONAL SERVICES OR RELATED DELIVERABLES, IF ANY), ARE OR WILL BE ERROR-FREE, WILL MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE. CUSTOMER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF CLIENTSUCCESS TO ANY THIRD PARTY.
14. Internet Delays
CLIENTSUCCESS’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CLIENTSUCCESS IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS NOT CAUSED BY CLIENTSUCCESS.
15. Limitation of Liability
IN NO EVENT SHALL CLIENTSUCCESS’ AND ITS LICENSORS AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL CLIENTSUCCESS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF CUSTOMER DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF CLIENTSUCCESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer grants ClientSuccess the right to use Customer’s name, mark and logo on ClientSuccess’ website, in ClientSuccess marketing materials, and to identify Customer as a ClientSuccess Customer; provided, however, that any such use must be pre-approved, not be unreasonably withheld, in writing by Customer. Customer further agrees that “ClientSuccess” or similar marks may appear in forms, web pages and other outputs of the Services.
All legal notices (i.e. claimed breach or termination of Agreement or Order Form/s) required to be provided under this Agreement must be delivered in writing (a) by nationally recognized overnight delivery service or (b), by certified US mail to the other party at the address set forth in the applicable Order Form or as otherwise communicated to the other party in writing. All other notices from Customer to ClientSuccess may be made electronic mail and ClientSuccess may give notice by emailing Customer’s billing contact as specified on the order form. All notices shall be deemed to have been given upon receipt or, if earlier, two (2) business days after being deposited in the mail as required above. Either party may change its address by giving timely notice of the new address to the other party pursuant to this Section and identifying in such notice the date on which such change is effective.
Customer may not assign this Agreement to any third party except upon ClientSuccess’ prior written consent, which consent not to be unreasonably withheld. Any purported assignment in violation of this Section shall be void. This Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
The party receiving Confidential Information hereunder agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or disclosure of the Confidential Information to third parties without the disclosing party’s prior written consent. Further, each party shall, during the term and thereafter, may only use the other party’s Confidential Information for the sole purpose of performing the Services hereunder. A party’s confidentiality obligations with respect to such Confidential Information, shall remain in effect for the Term of this Agreement and for a period of three (3) years after the termination or expiration of this Agreement, regardless of any contrary terms in a Non-Disclosure Agreement (“NDA”). For the avoidance of doubt, and without limiting the coverage of the NDA, Confidential Information includes (a) Customer Data, (b) all pricing terms offered to Customer under any Order Form, and (c) the ClientSuccess Technology. In addition, neither party will disclose any pricing terms or other terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, or (b) pursuant to a mutually agreeable press release.
This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and ClientSuccess as a result of this Agreement or use of the Services. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. This Agreement, together with any applicable Order Form(s) (including any other documents referenced therein),comprises the entire agreement between Customer and ClientSuccess regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. In the event of any conflict between the Agreement and the terms of the Order, the terms of the Order will govern, but solely to the extent of the conflict. In the event that one or more of the provisions of this Agreement is invalid or otherwise unenforceable, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the enforceability of remaining provisions will be unimpaired.
As used in this Agreement and in any Order Form(s) associated herewith:
“Content” means the audio and visual information, documents, software, products and services contained in or made available via the Services, other than Customer Data; “Customer Data” means any data, information or material that Customer or Customer’s Users, subscribers or partners may disclose or submit to ClientSuccess or the Services in the course of using the Services; “Order Effective Date” means the date identified in an Order Form as the date on which such Order Form shall be effective; “Initial Service Term” means the contracted period specified in the applicable Order Form. “Renewal Service Term” means each subsequent renewal period beginning on the expiration of the Initial Term; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “Administrator(s)”means those Users designated by Customer who are authorized to submit, whether electronically or in writing, Order Forms and to create Customer accounts and otherwise administer Customer’s use of the Services; “Order Form(s)” means the form evidencing the initial subscription order for the Services and any subsequent Order Forms submitted online or in written form, specifying, among other things, the Order Effective Date, Licenses, number of Users, and/or other services contracted for, the applicable Fees, the billing period, and other charges as agreed to between the parties, each such fully executed Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of the Order Form shall prevail); “ClientSuccess Technology” means all of ClientSuccess’ 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 ClientSuccess in providing the Services; “Service(s)” means ClientSuccess’ on-demand customer service solution and tools provided by ClientSuccess, including, individually and collectively, software, the API and any documentation as well as the other services developed, operated, and maintained by ClientSuccess and accessible via http://www.clientsuccess.com or another designated web site or IP address, or ancillary online or offline products and services provided or licensed to Customer by ClientSuccess, to which Customer is being granted access under this Agreement, including the ClientSuccess Technology, the Content and any product, service or license belonging to a third party that appears on an Order Form; “User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by Customer (or by ClientSuccess at Customer’s request); “Deliverables” means any copyrightable works, products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques and know-how made, conceived, reduced to practice or learned by ClientSuccess (either alone or jointly with Customer or others) that result from Professional Services included in any Order Form and/or SOW, and provided to Customer hereunder.