1.1 “Client Content" means the data and information specific to the Client, its other Users, and any of their customers (including, but not limited to, any personal identifiable information of Client, its other Users, and any of their customers), or the Client’s trademark or logo, which a User has allowed to be uploaded or otherwise disseminated through the FOCUSIT Application or FOCUSIT Site.
1.2 “Client Users" are employees or other permitted users of the Client pursuant to this Agreement as contemplated by Section 2.3.1 of this Agreement.
1.3 “FOCUSIT Application” means only those FOCUSIT proprietary client relationship management, workflow, and drip marketing solution applications and programs which have been identified in the Fee Estimate Proposal as being part of service to be provided to Client.
1.4 “FOCUSIT Server” shall mean the computer software or hardware that serves the FOCUSIT Site to users across the Internet, and which hosts pages, scripts, programs, and multimedia files and serves them using a protocol designed to send files to users.
1.5 “FOCUSIT Site” or “Site” means FOCUSIT’s internet website at https:/[customer name].pulsedashboard.net.
1.6 “FOCUSIT Standard Pricing Schedule & Procedures” has the meaning as set forth in Section 4.1.1 herein.
1.7 “FOCUSIT Rules & Templates” means any and all pre-existing and newly created templates of FOCUSIT (including, without limitation, its work flow, email and marketing templates) developed by FOCUSIT from time to time and at any time and which are included or otherwise used in the FOCUSIT Application or FOCUSIT Site.
1.8 “Fee Estimate Proposal” has the meaning as set forth above in the main portion of the Agreement.
1.9 “User” or “Users” means Client and any Client Users gaining access to the FOCUSIT Application and, or the FOCUSIT Site, through the Client.
2. Access Right; Conditions of Use.
2.1 Access Right. Subject to all of the terms and conditions of this Agreement, FOCUSIT hereby grants to Client a non-exclusive, revocable, and limited right to access and use the FOCUSIT Application via the FOCUSIT Site in strict compliance with this Agreement (“Access Right”). Notwithstanding the foregoing Access Right, FOCUSIT also has the right to change, suspend, or discontinue any (or all) aspects of the FOCUSIT Application or the FOCUSIT Site at any time, and from time to time, including the availability of content or features provided therein. Access Right granted to Client pursuant to this Agreement will immediately terminate upon the expiration, cancellation or termination of this Agreement for any reason.
2.2 Conditions of Use. Client’s Access Right is further, and explicitly, subject to the following terms and conditions:
2.2.1 Client shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to or access the FOCUSIT Application via the FOCUSIT Site, including, without limitation, Internet connections, modems, hardware, software, and long distance or local telephone service.
2.2.2 As a condition of Client’s use of the FOCUSIT Application via the FOCUSIT Site, Client hereby agrees that: (i) Client will not use the FOCUSIT Application or the FOCUSIT Site for any unlawful purpose or for any purpose that is prohibited by this Agreement; (ii) Client will not use the FOCUSIT Application or the FOCUSIT Site in any manner that could damage, disable, overburden, or impair the FOCUSIT Site or any of its Servers, or interfere with any other party's use and enjoyment of the FOCUSIT Application via their access to the FOCUSIT Site; (iii) Client will not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the FOCUSIT Application via the FOCUSIT Site; and (iv) Client will not violate or attempt to violate any security features or protocols associated with the FOCUSIT Application and the FOCUSIT Site, including, without limitation, (a) accessing data not intended for the Client or logging into a server or account which Client is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any other users, host, or network.
2.2.3 Without limiting the generality of the foregoing, Client further agrees that Client will not provide any Client Content for distribution or other use through via the FOCUSIT Application or the FOCUSIT Site if the distribution or use of such Client Content (i) would be libelous, defamatory, an invasive of privacy or publicity rights, or otherwise violate the rights of any party; (ii) without limiting the foregoing, would infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party anywhere; (iii) would otherwise violate any local, state, federal or international law; or (iv) would otherwise create any liability for FOCUSIT.
2.2.4 Without limiting the generality of the foregoing, to the extent Client or its Users provide any Client Content for distribution or other use via the FOCUSIT Application or the FOCUSIT Site, Client hereby represents and warrants to FOCUSIT that Client has the lawful right to distribute and use the Client Content. Also, Client is solely responsible for its conduct (and the conduct of its Users) while using the FOCUSIT Application and the FOCUSIT Site, including, but not limited to, all Client Content in any folders, web pages, or any other interactions Client or Client’s Users generate, transmit, or maintain via the FOCUSIT Application and the FOCUSIT Site. FOCUSIT takes no responsibility for any such online distribution, publication or use by Client, any of its Users, or by any other party.
2.2.5 In addition to any other right to suspend, revoke or terminate this Access Right or this Agreement, FOCUSIT hereby has the absolute right to immediately suspend, revoke and/or terminate, without warning, the Access Right and this Agreement of the Client if FOCUSIT believes, in its sole discretion, that Client or any of its Users have violated or otherwise breached any provision of this Agreement or of the FOCUSIT Rules & Templates,
2.2.6 FOCUSIT also reserves the right to suspend, revoke and/or terminate this Access Right and this Agreement without cause, upon notice to Client, provided, however, if said suspension, revocation or termination by FOCUSIT is not based, in any part, on a claim by FOCUSIT that Client or any of its Users have violated or otherwise breached any provision of this Agreement or of the FOCUSIT Rules & Templates, then FOCUSIT will provide a pro-rata refund to the Client of only the Access Fees (as such Access Fee is identified and defined in the FOCUSIT Standard Pricing Schedule) for that billing cycle already paid by Client pursuant to Section 4 hereof.
2.3 Other Permitted Users Through Client; User Accounts.
2.3.1 Client shall restrict use of the Access Right solely to only those employees and contractors of Client (“Client User(s)”) who (i) have been issued a “User Account” (as defined immediately below) by FOCUSIT; and (ii) have consented to FOCUSIT’s then current end user agreement binding that Client User to terms and conditions of use similar to those set forth in this Agreement (hereinafter, an “End User Agreement”). For purposes of this Agreement, a “User Account” will include (at FOCUSIT’s determination) such information as User name, password, other login credentials, and other User information.
2.3.2 With regard to each of the Client Users, the Client agrees that each of the Client Users shall only access and use the FOCUSIT Application and FOCUSIT Site as expressly permitted by the End User Agreement. Client hereby agrees that: (i) Client will be responsible for all uses of the FOCUSIT Application and FOCUSIT Site by Client and all of its Users; and (ii) without limiting the foregoing, Client shall be responsible for compliance by Client Users of each End User Agreement. Client shall indemnify, defend and hold harmless FOCUSIT from (a) all damages arising from any misuse of the FOCUSIT Application or FOCUSIT Site by any employees, contractors or other agents of Client (including, without limitation, all Client Users) or any other uses by any such person or persons that are otherwise not in compliance with the this Agreement or the End User Agreement.
2.4 Authorized Requesters. Client must identify to FOCUSIT the Client’s “Authorized Requesters” who shall be the parties that manage the relationship between FOCUSIT and all Users (hereinafter, the “Authorized Requester(s)”). FOCUSIT is only required to take instructions from an Authorized Requester on behalf of the Client with regard to any rights and obligations of Client under this Agreement and with regard to any other matters related to or arising out of this Agreement. Without limiting the generality of the foregoing, Client agrees that only Authorized Requesters have the right to supply FOCUSIT with the following information, and FOCUSIT is only required to accept the following information from an Authorized Requester: (i) the names of Client Users and any other Users that will be added or deleted; (ii) personal identifiable information about Clients Users and any other User. The Authorized Requesters must provide FOCUSIT with all information about Users that is requested by FOCUSIT in order to allow FOCUSIT to establish the User Accounts as contemplated in Section 2.3.1.
3. Copyrights and Other Intellectual Property Rights; Reservation of Rights.
3.1 Must Respect IP Rights of Others. FOCUSIT’s policy is to respect the copyright and intellectual property rights of others. FOCUSIT has the absolute right to (i) immediately terminate, without warning, the accounts of Client and its Users who, in FOCUSIT’s sole opinion, infringe upon the copyright or intellectual property rights of others, and (ii) remove any Content from the FOCUSIT Application and FOCUSIT SITE that, in FOCUSIT’s sole opinion, may infringe the copyright or other intellectual property rights of any third party.
3.2 Reservation of Rights by FOCUSIT.
3.2.1 FOCUSIT or its licensors, solely and exclusively own all rights, title and interest in and to all inventions, patents, trademarks/service marks, logos, images, graphics, content, reports, analysis, data, formulae, processes, techniques, software, website designs, all other copyrights, and all other intellectual property rights provided in, made available by using, or otherwise contained in or arising out of, the FOCUSIT Application, the FOCUSIT Rules & Templates (including, without limitation, all FOCUSIT Rules & Templates which FOCUSIT may develop while providing the PULSE Application to Client), and the FOCUSIT Site, or which is otherwise provided in furtherance of this Agreement (collectively, “FOCUSIT IP Assets”). Except for the limited Access Right, this Agreement shall not be interpreted to transfer any rights in any intellectual property rights in any FOCUSIT IP Assets from FOCUSIT to Client, its Client Users, or any other Users.
3.2.2 Except as expressly granted in this Agreement, FOCUSIT IP Assets may not be used by any User (including, without limitation, the Client or Client Users) without the prior written permission from FOCUSIT , and then only with proper acknowledgement. Any rights not expressly granted herein are reserved to FOCUSIT. In addition to any other conditions on the Access Right set forth in this Agreement, the Access Right of every User is subject to the following additional conditions: (i) User shall not modify, disassemble, decompile or reverse translate or create derivative works from any of the FOCUSIT IP Assets or otherwise attempt to derive any source code of the same or let any third party do the same; (ii) no copyrighted material, content, or any other FOCUSIT IP Assets may be modified, copied, displayed, transferred, distributed, sold, published, broadcast or otherwise used except as expressly stated herein, in such material or in this notice without the express prior written permission of FOCUSIT (which FOCUSIT may or may not grant in its sole discretion); (iii) Users shall not remove, alter, cover or obscure any copyright notices or other proprietary rights notices of FOCUSIT or any other party placed on or embedded in the FOCUSIT IP ASSETS and shall otherwise retain all such notices on all copies of the same; and (iv) use of the FOCUSIT IP Assets is expressly prohibited by a User unless it/he/she is an authorized Client User pursuant to Section 2.3 herein. Unauthorized use is a violation of copyright and other intellectual property rights and is actionable under law.
3.2.2 For purposes of clarify, the FOCUTIT IP Assets do not include “Client Content: as such term is defined herein.
3.3 Survival. Client also acknowledges and agrees that the terms and conditions of this provision shall survive the cancellation, expiration or termination of this Agreement for any reason.
4. Fees; Payments; Audit Rights.
4.1.1 Fees. As a condition to Client’s continued use of the FOCUSIT Applications, Client hereby agrees to pay FOCUSIT all fees, including, without limitation, all installation fees, maintenance fees, and ongoing access fees (collectively, “Fees”), set forth in, and in accordance with the terms, conditions and procedures set forth in FOCUSIT’s Standard Pricing Schedule & Procedures document (hereinafter, “FOCUSIT Standard Pricing Schedule & Procedures”). The most current version of the FOCUSIT Standard Pricing Schedule & Procedures is attached hereto as “FOCUSIT ACCESS APPLICATION AGREEMENT, Attachment 1 QUANITY, PRODUCT DESCRIPTION AND PRICING”, and by this reference incorporated herein; provided, however, Client hereby acknowledges and agrees that: (i) FOCUSIT reserves the right to make amends at any time, and from time to time, during the Term of this Agreement to any of the Fees or to any of the other terms and conditions set forth in the FOCUSIT Standard Pricing Schedule & Procedures upon thirty (30) calendar days prior notice to Client; and (ii) upon the expiration of said thirty (30) calendar day period, all such amendments shall automatically become effective and, specifically, Attachment 1 to the FOCUSIT ACCESS APPLICATION AGREEMENT shall automatically be deemed to be amended to reflect all such amendments. Notwithstanding any contrary provision herein, Client agrees that: (i) FOCUSIT has the right to audit all applicable Fees as of the last day of the previous month for the next month’s billing cycle and that any additions, removals or modifications made by the Client to its level of service, including, but not limited to, any additions or removals of Client Users (“Client Service Changes”) must be delivered by Client to FOCUSIT prior to the first day of the billing cycle; and (ii) if Client deliver its Client Service Changes on or after the first day of the billing cycle, then FOCUSIT, in its sole discretion, will determine whether or not to grant Client any credits for that billing cycle.
4.1.2 Payment of Fees. Unless otherwise explicitly stated to the contrary in the FOCUSIT Standard Pricing Schedule, all Fees are nonrefundable. FOCUSIT reserves the right to make adjustments in any Fee structure at any time, and from time to time, during the Term of this Agreement pursuant to the provisions of Section 4.1.1 above. Any and all payments including, without limitation, any of the Fees for access and use of the FOCUSIT Application and FOCUSIT Site by Client or by any other User shall be paid by Client only to FOCUSIT and to no other party whatsoever.
4.2 Taxes. Client shall promptly pay or reimburse FOCUSIT for all sales, use, transfer, privilege, excise and all other taxes and all duties, however designated, which are levied or imposed on FOCUSIT by virtue of this Agreement, excluding taxes which may be levied on FOCUSIT ’ income.
4.3 Failure to Pay; Interest. If Client fails to pay any Fees owed to FOCUSIT by the applicable due date, FOCUSIT will have the right to charge on overdue balances interest at the lesser rate as set forth in Exhibit “B” or the maximum rate allowable under applicable law. In addition, FOCUSIT shall have the right to discontinue access by Client and all other Users to the FOCUSIT Application and FOCUSIT Site until such time as all past due amounts are brought current or as otherwise set forth in Exhibit “B”. Failure by Client to pay all sums when due is a material breach of this Agreement. Termination of this Agreement shall not relieve Client of the duty to pay any outstanding payments (including, without limitation, any Fees) and interest owed to FOCUSIT. Client shall reimburse FOCUSIT for any costs associated with collecting overdue payments (including, without limitation, any Fees) including reasonable attorneys’ fees, court costs, and collection agency fees.
4.4 Audit Rights. During the Term of this Agreement and for a minimum of (3) years thereafter, Client shall (a) maintain reasonably detailed books and records relating to its activities under this Agreement (including its list of authorized Client Users and with respect to security measures taken and security related problems); and (b) make such books and records available to FOCUSIT (or its designated auditor) for the purpose of verifying Client’s compliance with this Agreement. FOCUSIT shall conduct any such audit upon reasonable advance written notice to Client, during Client’s normal business hours, and using reasonable efforts to minimize any disruptions to Client’s business. Client shall cooperate fully with FOCUSIT with respect to any audit permitted or required under this Agreement. If an audit reveals that Client has underpaid any amounts due to FOCUSIT, Client, promptly following completion of the audit, shall pay such underpaid amount at the then-current prices plus interest at the rate set forth in Section 4.3 above. If the underpaid amounts exceed five percent (5%) of the total amounts that were otherwise due, then Client will also pay FOCUSIT’s reasonable costs of conducting the audit.
5. Confidentiality; Security.
5.1.1 The parties acknowledge that as a result of the relationship established by this Agreement, each of them may have access to or may become aware of Confidential Information of the other party, and that such Confidential Information is a valuable and unique asset of such party. Each party agrees to protect the confidentiality of all Confidential Information of the other party with at least the same degree of care with which it treats its own confidential information of similar importance (but in no event using less than commercially reasonable efforts). Each party agrees to use the other party’s Confidential Information only in compliance with this Agreement, only to perform this Agreement, and only on a “need to know” basis, and not to disclose any portion of the other party’s Confidential Information to third parties without the prior written consent of the party providing such materials (except as reasonably necessary to perform obligations under this Agreement and as expressly authorized in this Agreement or required by applicable law). In the case of Client and all other Users, the obligations under this Section include taking all reasonable steps necessary to safeguard and protect the security of all FOCUSIT IP Assets they may use under the Access Right and to prevent the unauthorized use or disclosure thereof.
5.1.2 The party disclosing Confidential Information shall be notified immediately by the receiving party upon the receiving party’s discovery of any unauthorized use or disclosure of the disclosing party's Confidential Information or any breach of this Agreement, and the party receiving such Confidential Information shall cooperate with the other party in every reasonable way to remedy any such use or disclosure and to prevent further unauthorized use or disclosure.
5.1.4 Client also acknowledges and agrees that the terms and conditions of this provision shall survive for a period of five (5) years after (the first to occur) the cancellation, expiration or termination of this Agreement for any reason.
5.2 Client’s Duty to Maintain It’s Security
5.2.1 Client shall be solely responsible for and shall provide for the physical and electronic security for all of its computer systems in its possession or control that Client and Client Users uses to access the FOCUSIT Application and FOCUSIT Site, and shall ensure that only authorized personnel are allowed to access and use the FOCUSIT Application and FOCUSIT. The security measures employed by Client shall be not less than those employed in the industry to protect information of a similar kind or nature. Pursuant to Section 4.4, FOCUSIT shall have the right to audit Client’s security, in coordination with Client, to assess the adequacy of Client’s security measures under this Agreement.
5.2.2 Notwithstanding any provision to the contrary, in the event of a security breach to the servers or network components used by Client which provide access to the FOCUSIT Application or FOCUSIT Site such that unauthorized access to the FOCUSIT Application or FOCUSIT Site becomes available, then Client will take measures to prevent any such unauthorized access to the FOCUSIT Application or FOCUSIT Site within twenty-four (24) hours of Client becoming aware of the security breach. If the security breach relating to the servers or network components is not remedied within twenty-four (24) hours after such breach, FOCUSIT may terminate this Agreement on written notice to Client at any time unless such security breach has been actually cured prior to termination by FOCUSIT.
5.3 Permitted Release of Client Content or Client Confidential Information Upon Court Order, etc. If FOCUS IT receives a court order, subpoena, a civil, criminal, or administrative demand, or any other legal process or order (hereinafter collectively referred to as an “Disclosure Order”) seeking or otherwise requiring production of, or access to, any Client Content or any other Confidential Information of Client (including, but not limited to, any personal identifiable information of Client, its other Users, or any of their customers), then FOCUS IT’s has the right to respond to, and otherwise comply with, such Disclosure Order and such response and compliance by FOCUS IT’ shall not be deemed a violation of any provision in this Agreement, including, but not limited to, any of the confidentiality or security provisions of this Section 5. Upon receipt of any such Disclosure Order, FOCUSIT’s sole and exclusive obligation to Client is to provide notice to Client (within a commercially reasonable time after FOCUSIT’s receipt of such Disclosure Order) containing only the following information (i) the name of the entity issuing the Disclosure Order; and (ii) a reasonable description of the Client Content that FOCUS IT disclosed under the Disclosure Order.
5.4 System Security Breach
5.4.1 If there is any security breach, for any reason, of the FOCUSIT Application, FOCUSIT Server or FOCUSIT Site which results in the disclosure of any Client Content or any other Confidential Information of Client, including, but not limited to, any personal identifiable information of Client, its other Users, or any of their customers (hereinafter collectively referred to as a “System Security Breach”), then the following shall govern Client’s rights and remedies arising out of such System Security Breach: a. FOCUSIT’s sole and exclusive obligation to Client arising out of such System Security Breach is to provide notice to Client (within a commercially reasonable time after FOCUSIT’s President learns of such System Security Breach) containing only the following information: (i) notification of the occurrence of the System Security Breach; and (ii) the name(s) of any of Client’s Users whose personal identifiable information may have been disclosed as a result of such System Security Breach; and
b. Client acknowledges and agrees that FOCUSIT’s sole liability resulting from or arising out of any such System Security Breach is specifically limited as set set forth in Section 8 of this Agreement.
c. Client further acknowledges and agrees that FOCUSIT is not responsible for any security breach of any type, including without limitation any System Security Breach, cause by Client or any of Client’s Users.
5.4 General Obligation to Control Users of Client 5.4.1 Client is responsible for maintaining the confidentiality of all Client Content, all other information about Client and its Users, including all User Accounts (as defined in Section 2.3 herein) of all of its Users. Client shall be responsible for all uses of all of such User Accounts, regardless of whether the actual uses are authorized by Client. Client agrees to promptly notify FOCUSIT of any unauthorized use, access or disclosure of any of its User Accounts. 5.4.2 Without limiting any of the foregoing, Client is responsible for all access to and use of the FOCUSIT Application and FOCUSIT Site by all of its Users, and shall assure compliance with this Agreement (and any End User Agreement consented to by that User) by each such User provided access to the FOCUSIT Application and FOCUSIT Site through Client. Any act or omission by any such third party User shall be deemed to be committed by Client for purposes of this Agreement. 6. Term and Termination.
6.1 Term. The “Term” of this Agreement shall commence on the Effective Date set forth above and continue until the occurrence of (i) any suspension, revocation or termination event as described in Sections 2.2.5 or 2.2.6; or (ii) any other termination event as described in this Section
6.6.2 Termination for Convenience.
6.2.1 In addition to any other right of FOCUSIT to terminate this Agreement as set forth in Exhibit “B”, FOCUSIT may terminate this Agreement without cause, as more fully set forth, and in accordance with the terms of, Section 2.2.6.
6.2.2 Client may terminate this Agreement without cause subject to the following conditions:
(i) Client must give FOCUSIT written notice of its election to terminate without cause under this provision; (ii) the effective date of this termination without cause will be the last day of the next full billing period occurring after the date of the Client’s written notice; (iii) Client is not entitled to any refund for any payments made under this Agreement; and (iv) subject to any other conditions set forth in this Agreement, including, but not limited to, Section 4.
6.3 Termination for Breach. In addition to any other right of FOCUSIT to terminate this Agreement as set forth in Exhibit “B”, FOCUSIT has the right to automatically terminate this Agreement for cause if Client breaches any provision of this Agreement. Notwithstanding the preceding sentence (and without limiting any of FOCUSIT’s other available rights or remedies), FOCUSIT may elect, at its option, to defer termination under this Section and provide Client with an opportunity to cure Client’s breach of this Agreement. Notice of any such election by FOCUSIT must be in writing to be effective. Client agrees that its failure to cure any breach within the applicable cure period allowed by FOCUSIT’s notice may result in Client’s being subject to additional Fees (for the time period of such cure period) and/or immediate termination of this Agreement.
6.4 Termination for Insolvency. In addition to any other right of FOCUSIT to terminate this Agreement as set forth in Exhibit “B”, FOCUSIT may terminate this Agreement, effective immediately and without opportunity to cure, if Client is involved in any voluntary or involuntary bankruptcy proceeding, becomes insolvent, dissolves, admits in writing its inability to pay its debts as they mature, makes a general assignment for the benefit of creditors, or otherwise ceases to do business in the ordinary course.
6.5 Obligations Upon Termination. Upon termination, expiration or cancellation of this Agreement (i) all rights (including, without limitation, all Access Rights for Client, its Client Users and any other Users under the Client) granted to Client hereunder shall immediately terminate; (ii) Client must pay within ten (10) days to FOCUSIT any and all outstanding amounts due under this Agreement; and (iii) Client and all of its Users must promptly cease any and all use of the FOCUSIT Application and FOCUSIT Site and of any other FOCUSIT IP Assets in its possession or control and, as instructed by FOCUSIT , destroy or return the same to FOCUSIT . At FOCUSIT’s request, Client shall certify in writing its completion of the foregoing steps.
6.6 Survival. All provisions of this Agreement that by their nature or understanding reasonably should survive the termination or expiration of this Agreement shall survive such termination or expiration.
Client hereby agrees to indemnify, defend and hold harmless FOCUSIT , its affiliates, officers, directors, employees, shareholders, agents, representatives, and licensors, from and against any and all claims, damages, losses, liabilities, costs and expenses of any kind or nature (including reasonable costs and fees of attorneys and other professionals) arising from or related to: (a) Client’s breach of this Agreement; (b) any use of, or access to, the FOCUSIT Application or FOCUSIT Site by Client or any of its Users that is not expressly permitted by this Agreement; (c) any other unauthorized use of, or access to, the FOCUSIT Application, FOCUSIT Site or any FOCUSIT IP Assets by Client or any of its Users; (d) the violation by Clients Users or any other User of its/his/her End User Agreement; and (e) the infringement by Client or any of its Users of any intellectual property or other right of any person or entity.
8. Disclaimer of Warranties; Limitation and Disclaimer of Liability.
8.1 SERVICE LEVEL COMMITMENTS:
The service levels for the FOCUSIT Site (hereinafter, the “Service Level Commitment”) will be as follows:
a. The FOCUST IT Servers will be available 24 hours a day 7 days a week with 99.998% total uptime, excluding, however, regularly scheduled maintenance by FOCUSIT.
b. 95% of all inbound support calls to the Help Desk will be answered within thirty (30) minutes between the hours of 5:00am to 10:00pm PST, 365 days a year.
c. All traffic reaching the FOCUSIT Server will have 120ms or less of latency, excluding issues with local client side network issues
d. FOCUSIT Server backups of all focusIT applications other than email and SharePoint will be retained for thirty (30) days; email and SharePoint backups will be retained for 7 (7) days; all backups are run nightly once per 24 hour period; provided however, (i) FOCUSIT reserves the right to first charge additional charges for any data restoration above the other Fees (including without limitation any monthly service fee); and (ii) each incident will be independently reviewed by FOCUSIT to determine, in its discretion, if additional charges will be applicable, and written customer approval will be required in these cases before the restoration can be completed.
In the event of any non-compliance with any of the foregoing Service Level Commitments (hereinafter,a “Non-Compliance”), then the following provisions shall apply: 1 Client must open a case with the FOCUSIT Help Desk within seven (7) days of the incident that gave rise to the Non-Compliance (“Client’s Non-Compliance Notice”).
2 FOCUSIT shall conduct an investigation of the Noncompliance within a commercially reasonable time, but in no less than thirty (30) days from the date of submitting your Non-Compliance.
3 Provided Client has properly and timely given FOCUSIT the Client’s Non-Compliance Notice, the sole and exclusive remedies that the CLIENT will have as a result of, and otherwise arising out of, a Non-Compliance under this Agreement will be the following, which FOCUSIT may select in its election: (i) refund the Client a pro-rata amount equal to the downtime caused by the Non-Compliance, such prorata amount to be commercially reasonably calculated by FOCUSIT (“Pro-Rata Refund”), and continue the Client’s Access Right pursuant to this Agreement; or (ii) terminate this Agreement and the Access Right of the Client and all of its Users effective upon FOCUSIT’s notice to Client, but FOCUS IT shall also pay the Client a Pro-Rata Refund (as such term is defined above.
8.2 DISCLAIMER OF REPRESENTIONS AND WARRANTIES:
EXCEPT FOR THE SPECIFIC SERVICE LEVEL COMMITMENT SET FORTH IN SECTION 8.1 HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW THE FOCUSIT APPLICATION, FOCUSIT SITE, AND ANY OTHER FOCUSIT IP ASSETS MADE AVAILABLE BY FOCUSIT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND THE ENTIRE RISK AS TO USE, SATISFACTORY PERFORMANCE, ACCURACY AND EFFORT IS WITH CLIENT. EXCEPT FOR THE SPECIFIC SERVICE LEVEL COMMITMENT SET FORTH IN SECTION 8.1 HEREIN, FOCUSIT EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED OR OTHER WARRANTIES: (a) OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, VALIDITY, WORKMANLIKE EFFORT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, RELIABILITY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS, OR SYSTEM INTEGRATION; (b) OF CONFORMANCE TO ANY DEMONSTRATION OR PROMISE BY FOCUSIT; (c) ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OR (d) THAT ACCESS TO OR USE OF THE FOCUSIT APPLICATION OR THE FOCUSIT SITE WILL BE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE. FOCUSIT ALSO MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD PARTY SOFTWARE PRODUCTS OR INFORMATION CONTENT THAT MAY BE USED OR PROVIDED FOR USE UNDER THIS AGREEMENT. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT IN SECTION 8.1.
8.3 LIMITATION OF LIABILITY:
8.3.1 Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER FOCUSIT , NOR ANY OF ITS SUPPLIERS OR LICENSORS, SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USE OF, OR ACCESS TO, THE FOCUSIT APPLICATION, FOCUSIT SITE OR ANY OTHER FOCUSIT IP ASSETS (OR ANY COMPONENT OF ANY OF THE FOREGOING) EVEN IF FOCUSIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3.2 Limitation of Damages. FOCUSIT’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, ANY LIABLITY ARISING OUT OF A FAILURE BY FOCUSIT OF THE SPECIFIC SERVICE LEVEL COMMITMENT SET FORTH IN SECTION 8.1 HEREIN)SHALL BE LIMITED AS FOLLOWS AND SUBJECT TO THE FOLLOWING:
(A) TO CLIENT’S DIRECT DAMAGES ACTUALLY INCURRED BUT ONLY UP TO THE AMOUNT OF COVERAGE OF FOCUSIT’S ERRORS AND OMMISSIONS INSURANCE COVERAGE. RECOVERY OF DAMAGES UP TO SUCH AMOUNT SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY; AND
(B) IN THE CASE OF ANY SECURITY BREACH (INCLUDING, BUT NOT NECESSARILY LIMITED TO, ANY “SYSTEM SECURITY BREACH” AS SUCH TERM IS CONTEMPLATED BY SECTION 5.4 HEREIN) OF ANY CLIENT CONTENT, OR OF ANY OTHER CONFIDENTIAL INFORMATION OR OTHER PERSONAL IDENTIFIABLE INFORMATION OF CLIENT, ITS USERS, OR THEIR CUSTOMERS, SUBJECT ONLY TO FOCUSIT INFORMING THE CLIENT OF SUCH SYSTEM SECURITY BREACH PURSUANT TO THE PROVISIONS OF SECTION 5.4(A) HEREIN, FOCUSIT’S SOLE AND TOTAL AGGREGATE LIABILITY FOR SUCH SYSTEM SECURITY BREACH SHALL NOT EXCEED FOCUSIT’S AMOUNT OF COVERAGE UNDER ITS DATA SECURITY BREACH INSURANCE POLICY.
8.3.3 Application. THE LIMITATIONS IN THIS SECTION 8 SHALL BE DEEMED TO APPLY TO ALL CAUSES OF ACTION AND ALL LEGAL THEORIES (INCLUDING FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, AND OTHER TORTS, AND ANY OTHER CAUSES OF ACTION, HOWEVER STATED). THE LIMITATIONS AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION ARE INDEPENDENT OF THE EXCLUSIVE REMEDY SET FORTH IN THIS SECTION, AND SHALL SURVIVE IF SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED TO BE UNENFORCEABLE.
9. Miscellaneous Provisions.
9.1 Amendment. Once Client begins to use its Access Rights FOCUSIT has the right to modify this Agreement at any time, and from time to time, during the Term of this Agreement, in which case the following provisions shall apply:
a. FOCUSIT will notify Client of the terms of the amended version of this Agreement (the “Amended Agreement”);
b. If Client objects to the Amended Agreement then Client must notify FOCUSIT of such objection and Client and all of its Users must immediately cease all use (including all Access Rights) to the FOCUSIT Application and FOCUSIT Site unless and until Client confirms in writing to FOCUSIT that it consents to the Amended Agreement; provided, however, Client is still obligated to comply with all of the terms and conditions of this Agreement prior to the Amended Agreement including, without limitation, a duty to pay all Fees; and
c. If Client has not objected to the Amended Agreement within thirty (30) days after FOCUSIT’s notice (as contemplated by Section 12.1(i) above, and Client or any one of its Users continue to use or otherwise access any components of the FOCUSIT Application or FOCUSIT, then Client is hereby deemed to have consented to the terms and conditions of the Amended Agreement.
9.2 Governing Law. This Agreement shall be construed and controlled by the laws of the State of Arizona. The laws of the State of Arizona will govern any dispute arising from the terms of this Agreement or a breach of this Agreement. Client agrees to personal jurisdiction by the state and federal courts sitting in the State of Arizona in Maricopa County.
9.3 Notices. Except as otherwise expressly provided in this Agreement, any communications between the parties, or notices to be given hereunder, will be given in writing by personal delivery, express courier, facsimile, or United States Postal Service, postage prepaid, to either Client or FOCUSIT, at the address or number set forth in the signature block to this Agreement, or to such other addresses or numbers as either Party may hereafter indicate pursuant to this Section. Unless otherwise provided in this Agreement, any communication or notice so addressed and mailed will be deemed to be given five (5) days after mailing. Unless otherwise provided in this Agreement, any communication or notice delivered by facsimile or email will be deemed to be given when (i) in the case of a facsimile, the transmitting machine generates a receipt of a successful transmission of the notice; and (ii) in the case of an email, when sent by sender. Unless otherwise provided in this Agreement, any communication or notice given by personal delivery will be deemed to be given immediately upon such delivery, provided such delivery is made to the person indicated below.
9.4 Remedies. Client acknowledges that monetary damages may not be a sufficient remedy for unauthorized use of the FOCUSIT Application, the FOCUSIT Site or any other FOCUSIT IP Assets, and therefore Client agrees that FOCUSIT shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court or arbitration panel of competent jurisdiction without necessity of posting a bond and without having to plead and prove lack of an adequate remedy at law.
9.5 Attorney Fees. If any suit or action is filed by any party to enforce this Agreement or otherwise with respect to the subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees incurred in preparation or in prosecution or defense of such suit or action as fixed by the trial court and, if any appeal is taken from the decision of the trial court, reasonable attorney fees as fixed by the appellate court.
9.6 Binding Effect; No Assignment by Client; Permissible Assignment by FOCUSIT. This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however, that Client may not assign this Agreement, in whole or in part. Any purported assignment in violation of this Section shall be void. FOCUSIT shall have the right to assign this Agreement, or any part of it, in its sole discretion to any party, and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by such successors and assigns.
9.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument and be binding upon the parties.
9.9 Non-Solicitation. Client acknowledges that FOCUSIT invests significant resources into the training of its technical support representatives in order to provide Client with service. Client shall not, except with the prior written consent of FOCUSIT, solicit or hire the employees of FOCUSIT for the Term of this Agreement and for a period of one (1) year following the termination of this Agreement. If Client hires an employee of FOCUSIT in violation of this provision, Client shall pay FOCUSIT a lump sum finder's fee of 25% of the employee's annual salary.
9.10 Independent Contractor Status. It is expressly agreed that the parties are acting as independent contractors and not as partners or joint ventures, and under no circumstances shall any of the employees of one party be deemed the employees of the other for any reason or purpose. This Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other.