THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") applies to all PowerStart™ implementations purchased on-line by credit card or paid for via check or other payment method on or after March 1, 2020 (contact Service Provider for terms covering services purchased prior to this date) unless otherwise disclaimed below.
This Agreement is made and entered into as of the date purchaser completes the online payment process or the date payment is received for a covered service (the "Effective Date") and is between the purchaser under the payment process (the "Client") and akaCRM Inc. (the “Service Provider”). This Agreement is accessible from Service Provider or online prior to Client completing its purchase and Client agrees it has had the opportunity to ask questions prior to completion of the purchase process.
In consideration of the mutual promises contained herein, the parties agree as follows:
1. SERVICES PROVIDED. Service Provider shall provide Client certain services ("Services") specified at the URL which contains the link to the checkout process for such Services, on the page containing the purchase link or through a written agreement between the parties. Each party shall designate a principal point of contact between the parties for all matters relating to Services provided hereunder. A party may designate a new point of contact by written notice to the other party.
2. FEES, EXPENSES & PAYMENT. For all Services performed hereunder, Client shall pay Service Provider according to the fees, rates and payment terms set forth in the accompanying purchasing link or Service informational URL. Unless Client provides Service Provider with a valid tax exemption or direct pay certificate upon execution of this Agreement, Client is responsible for all taxes, duties, and customs fees which may be assessed on the amounts paid for Services performed hereunder, excluding taxes based on Service Provider's income or payroll. Client shall reimburse the actual and reasonable out-of-pocket expenses of Service Provider associated with travel that is REQUESTED by Client and any other expenses approved in advance by Client. Mileage and tolls for Service Provider staff based within 30 miles of Client premise shall not be billed to Client; otherwise such mileage and tolls shall be invoice at the then existing IRS-approved rates. For business travel of three hours or more per day which is requested by Client, Client shall reimburse Service Provider 4 hours per travel day at the rate in the purchased Service offering. Client shall pay invoices for travel within 15 days of receipt of invoice from Service Provider.
3. RETURN AND CANCELLATION. This Agreement will commence on the Effective Date and will remain in full force and effect until terminated as provided in this Section. Unless otherwise provided herein, either party may terminate this Agreement for any reason or for no reason by giving the other party advance written notice of termination. If this Agreement is terminated by the Client due to no fault of Service Provider, Client shall pay Service Provider for all work performed and for all expenses incurred prior to the effective date of termination and any pre-paid amounts shall not be refunded and shall be considered Service Provider's termination fee. If this Agreement is terminated by Service Provider due to no fault of Client, then Service Provider shall refund any pre-paid amounts for which Services have not been provided. Upon termination of this Agreement, or any Services provided hereunder for any reason: (i) all materials, including without limitation, Confidential Information, provided by either party to the other hereunder will be promptly returned after the effective date of termination, and (ii) all earned and unpaid fees and expenses will become immediately due and payable. Each party's termination rights set forth in this Agreement are cumulative and are in addition to all other rights and remedies available to the parties.
4. CALCULATIONS. If your work product or the Services involve calculations, formulas, mathematical reports, documents, dashboards, invoices, quotes, etc., we will work hard to ensure the accuracy of the result. You understand; however, that you are responsible for data inputs and shall be ultimately responsible for confirming any calculations, formulas, reports, documents, dashboards, invoices or quotes we produce for you to ensure they are accurate. If you find any discrepancies, please document them in writing and bring them to our attention immediately and we will be more than happy to resolve them.
5. REPRESENTATIONS, WARRANTIES, INDEMNIFICATION, LIMITS ON LIABILITY. Each party warrants that it has the right and power to enter into this Agreement and it has been signed by an authorized representative of such party. Service Provider warrants that the Services will be performed in a professional and workmanlike manner in accordance with recognized industry standards. To the extent Services provided by Service Provider are advisory, no specific result is assured or guaranteed. Client acknowledges that Service Provider has made no representations or warranties of any kind, express or implied (including warranties of merchantability or fitness for a particular purpose, which are hereby specifically disclaimed), with respect to the Services provided hereunder except as provided herein. Subject to the limitations set forth in this paragraph, Service Provider and Client shall each protect, defend, indemnify and hold the other and the other's successors, directors, officers, employees or representatives harmless from any loss, liability, damage, cost or expense (including reasonable attorneys' fees) caused by, arising out of, or resulting from any intentional or negligent act or omission on the part of the indemnifying party, its officers, directors, employees or representatives in the performance of, or the failure to perform, this Agreement. Except for the Indemnification provided in this Section, Service Provider’s maximum liability for any action arising under this Agreement, regardless of the form of action and whether in tort or contract, shall be limited to the amount of fees paid by Client for the Services from which the claim arose. In no event shall either party shall be liable to the other for any special, incidental, consequential, punitive or indirect damages, including, without limitation, lost profits or business expectancy damage, computer downtime or any other unauthorized use, whether in contract or in tort, or otherwise, whether or not such party had notice of the possibility of such damages occurring, arising out of such party's performance or alleged nonperformance of this Agreement.
6. CONFIDENTIAL INFORMATION.
Confidential Information" shall mean any confidential and proprietary business and/or technical information or any information that may have commercial or other value in the disclosing party’s business and is confidential or proprietary in nature, including but not limited to: (i) trade secrets, inventions, pending patents and copyrights, (ii) concepts, know-how, ideas, techniques, discoveries, and improvements, (iii) algorithms, formulas, specifications, research, development, data, databases, software design and architecture, computer programs, source, object and other computer code, (iv) technical or other representations, documentation, diagrams, and flow charts, (v) other technical, business, financial, customer, supplier and development plans or information, schedules, forecasts, strategies, marketing plans, techniques, and other similar information and (vi) names and contact information of employees, clients, partners and prospects. Confidential Information may be written or verbally communicated information which: (a) if in tangible form, has been marked trade secret, confidential, proprietary or with words of similar import; (b) if oral or other intangible form, which is stated to be confidential at the time of disclosure and a description of which is delivered to the receiving party within thirty (30) days of disclosure. Confidential information may include information that is confidential or proprietary to the disclosing party’s clients, partners or affiliates for which the disclosing party is authorized to disclose solely for the purposes of providing Services to such clients, partners or affiliates. Confidential Information loses that status if: (a) the information is or becomes generally available to the public other than as a result of a disclosure by the receiving party or its representative in breach of this Agreement; (b) is or becomes available to the receiving party or its representative on a non-confidential basis from a source other than the disclosing party or its representatives, that is not bound by a confidentiality or similar agreement prohibiting the disclosure thereof; (c) is within the receiving party’s possession prior to being furnished, provided that the receiving party can establish with appropriate documentation that the same or substantially similar data or information was already in the receiving party’s possession at the time of disclosure by the disclosing party; or (d) has been independently developed by the receiving party, provided the receiving party can establish with appropriate documentation that the same or substantially similar data or information was developed by the receiving party without reference to, use of, or reliance upon the data or information disclosed by the disclosing party. Each party agrees to hold the other party’s Confidential Information in confidence and, other than for the purposes of furthering the Services, shall not improperly use or disclose the Confidential Information of the disclosing party to any third party, and it is understood that said Confidential Information shall remain the sole property of disclosing party. Each party will protect the Confidential Information according to commerical reasonable standards and no less rigorously than a party protects its won Confidential Information. Each party acknowledges that a breach of the provisions of this Section shall result in injury to the disclosing party, or its customer, for which monetary damages can not adequately compensate. Each party agrees that, in addition to any other remedy available to it, the disclosing party shall be entitled to seek both temporary and permanent injunctive relief to the extent permitted by law for a breach of threatened breach of this Section.
7. DISPUTE RESOLUTION. Any controversy or claim, whether based on contract, tort, misrepresentation, or any other legal theory, related directly or indirectly to this Agreement ("Dispute"), shall be resolved solely in accordance with the terms of this Section. Re-performance of services shall be Client's only remedy hereunder. Either party reserves the right to seek an injunction or other equitable relief in court to prevent or stop a breach of this Agreement or a violation of rights either party has under law. In the event of Dispute, Service Provider and Client hereby agree that (i) they will first attempt, in good faith, to resolve such Dispute through direct negotiation within thirty (30) days of the date either party notifies the other party of the existence of a Dispute; (ii) in the event a Dispute under this Agreement cannot be resolved through direct negotiation, each party hereby agrees and covenants that both shall submit to mediation under a mutually agreeable mediator in El Paso County, Colorado. In the event of mediation, each party shall bear its own costs of such mediation, including its own attorney’s fees and its pro rata share of mediator fees. The parties and their representatives shall hold the existence, content and result of the mediation in confidence. The mediator shall not consider punitive damages. There shall be no discovery conducted prior to, or during the mediation process. Disputes for non-payment of Services shall not be required to be submitted to mediation. If following any requirement for mediation above, any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled, in addition to other such relief as may be granted, to a reasonable sum as and for attorney's fees, costs of collection, and costs of any litigation, which fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose.
8. PROVISIONS FOR SUCCESS. If the Services we provide require us to access your Salesforce CRM deployment or other system, be sure we have a current set of system administrator credentials. If we cannot access the system(s), it will delay our services and you may lose your place in the support queue while we wait for updated credentials.
The parties agree that in lieu of a written signature, the entry of payment information by the Client and the authorization and collection of such payment by the Service Provider shall be deemed to be equivalent to written signatures exchanged between the parties. Additionally, as consideration for the beneficial pricing and other terms of the Services purchased hereunder, the Client specifically agrees to the terms of this Agreement. Headings used in this Agreement are for convenience only and will not be deemed to be operative text. Terms of gender will be deemed interchangeable as will singular and plural terms, in each case unless the context otherwise requires. All monetary amounts used herein will be deemed to refer to current U.S. dollars, unless the context otherwise requires.