Emma2CRM
SOFTWARE PLUS SERVICES AGREEMENT
12/1/2016
This Software Plus Services Agreement (“Agreement”) sets out the terms and conditions under
which CRM Innovation LLC (“Company”) will license the Software (as defined below) and
provide the Services (as defined below) to the person or entity that accepts this Agreement
(“you,” or “Licensee”).
THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT YOU
CLICK “ACCEPT” IN THE ACCEPT/REJECT WINDOW SURROUNDING THIS
AGREEMENT OR FIRST ACCESS AND USE THE SOFTWARE AND THE SERVICES,
WHICHEVER OCCURS FIRST. BY CLICKING “ACCEPT” IN THE ACCEPT/REJECT
WINDOW SURROUNDING THIS AGREEMENT OR BY ACCESSING AND USING THE
SOFTWARE AND THE SERVICES, YOU AGREE TO THE FOLLOWING TERMS AND
CONDITIONS:
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License to Software.
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Subject to the provisions of this Agreement, Company hereby grants to Licensee
for the Term of this Agreement (as defined in 18.a below) a limited, nonexclusive,
nontransferable United States license use the current object code version and release of
the Emma2CRM Managed Solution Software provided by Company and Vendor (as
defined below) and hosted at the Site (as defined below), in conjunction with the
Services, for the purposes permitted by this Agreement. No other use of the Software is
permitted. Licensee may permit its employees and agents who agree to be bound by the
terms of this Agreement (“Users”) to use the Software, subject to the license granted
above.
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Company may provide the Services on its own or through the use of a
third party vendor (“Vendor”). The Vendor as of the Effective Date is Emma ,
Inc. Company may change to a different Vendor at any time.
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The Site as of the Effective Date is http://www.myemma.com for the
Vendor. If the Company changes Vendors, Company shall notify Licensee of the new
URL for the Site.
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Company reserves all rights to the Software not expressly granted herein, in this
or any other jurisdiction, whether foreign or domestic, under patent law, copyright law,
publicity rights law, moral rights law, trade secret law, trademark law, unfair competition
law or other similar protections, regardless of whether or not such rights or protections
are registered or perfected (the "Intellectual Property Rights"). ALL INTELLECTUAL
PROPERTY RIGHTS IN AND TO THE SOFTWARE ARE AND SHALL REMAIN IN
THE COMPANY. The foregoing is an express limited use license and not an
assignment, sale, or other transfer of the Software or any Intellectual Property Rights of
the Company.
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Provision of Services. Company will provide Licensee access to and use theVendorhosted
web enabled application interface via the Software and Service as described in Section 5.b
below, and Support as defined in Section 6 below (collectively, the “Services”). Licensee is
responsible for obtaining and maintaining all computer hardware, software and communications
equipment needed to access the Sites and use the Software and the Service, and for paying all
access charges (e.g., ISP, telecom) incurred while accessing or using them (the “Licensee
Systems”). Upon your acceptance of this Agreement, Company or Vendor will provide Licensee
with login access to the Sites for the Term of the Agreement. Licensee shall be solely responsible
for administering its Users’ access to and use of the Software and Services.
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Restrictions. Licensee will not, and will not allow its Users, or agents to, directly or
indirectly, to use the Software or the Services for any purpose that is not specifically permitted by
this Agreement, including (but not limited to) the following:
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Renting, leasing, loaning, selling, copying, modifying, merging, redistributing,
assigning, or transferring any Software or Service or any portion thereof;
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Using the Software or Service either directly or through commands, data or
instructions from or to another computer or a network which is not your network or a
network that you are permitted to use;
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Permitting any person who is not your User to use the Software or Service
without the Company’s advance written consent;
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Reverse engineering, decompiling, translating, disassembling, deciphering,
decrypting, emulating the functionality, reverse compiling, reducing to human readable
form or creating derivative works of the Software. You may not otherwise attempt to
discover the source code of the Software or otherwise modify, alter, adapt, port, or merge
all or any part of the Software;
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Removing, altering, defacing, overprinting or otherwise obscuring Company’s
patent, trademark, service mark, copyright or other Intellectual Property notices;
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Publishing or distributing in any form of electronic or printed communication the
materials within or otherwise related to the Software, including but not limited to the
object code, documentation, help files, examples, and benchmarks;
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Tampering with the Software or otherwise undertaking any activity intended to
bypass, modify, defeat or otherwise circumvent (or having the effect of facilitating,
modifying, or assisting the bypassing, defeating or circumventing of) proper and/or
secure operation of the Software or Service and/or any mechanisms operatively linked to
the Software or Service, including any components of the Software which may embody a
serial copying management system required or permitted by the laws of the United
States;
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Using the Software or Services for any unlawful, unsafe, malicious or abusive
purpose, for interfering with others' use of the Service, in such a way as to defraud
Company or any third party or to create damage or risk to Company’s business, network
or facilities or to third parties;
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Exporting or re-exporting the Software or any copies thereof, either directly or
indirectly, outside of the United States except in compliance with all applicable laws,
ordinances and regulations and the prior written consent of Licensee;
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Violating the Vendor’s policies and terms of use (“Vendor Terms”), which as of
the Effective Date are hosted at
http://myemma.com/terms-of-use
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Credentials and Security.
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To be granted access to the Service, Licensee must complete the registration
process by providing Vendor and Company with current, complete and accurate
information as requested by Vendor and Company. Inaccurate details may result in
suspension or termination of access to the Software and the Service. Licensee is entirely
responsible for maintaining confidentiality with regard to its and its Users password and
account name and related information (collectively, the “Credentials”). Licensee is
solely responsible for any and all claims, losses or other activities that occur involving
use or misuse of the Credentials.
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Licensee shall notify Company immediately if there is a security breach or
unauthorized use of the Service or the Software. Licensee shall permit Company to
review/audit Licensee’s use of the Software and the Service, and grant Company access
to Licensee Systems for that purpose, upon reasonable notice to Licensee.
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Access to Service; Volume of Use and Licensee Data
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Licensee shall access the Service by means of any browser that is compatible
with the Software and the Service, as described in the Software documentation provided
by Company and/or Vendor, and using equipment obtained by Licensee as part of the
Licensee Systems as further described in Section 13 of this Agreement.
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Subject to the current end user pricing schedule, there are preset, advance limits
on the number of transactions that Licensee may perform using the Software and
Services.
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Support. Company shall provide support services to Licensee and its Users concerning
the Software Monday through Friday, excluding all United States federal holidays, between 8:00
a.m. and 5:00 p.m. Central US Time, solely via e-mail sent to
support@CRMInnovation.com.com
(collectively, the “Support”). The Company may provide
premium level support outside those hours or by other means such as by telephone. Should it
implement such a service there maybe additional fees that the Licensee may subscribe. Company
shall not be required to provide Support Services to any person other than Licensee or its Users or
for any software other than the Software. Support is to be used for error identification and outage
reporting, and not for training or sign up purposes. Support for use by the Vendor shall be
provided exclusively by Vendor, as described in the Vendor Terms.
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Fees. In consideration for providing the Software and the Services, Licensee shall pay
Company the fees set out in Schedule A (the “Fees”). Company shall have the right to increase
the Fees at any time (provided that such increase shall be effective on the next anniversary of the
Effective Date) during the Term of this Agreement, by posting a notice of fee increases on the
Sites or by e-mail notice to Licensee. Vendor may increase its fees in the manner permitted by
the Vendor Terms. Continued use of the Software and the Service by Licensee shall constitute
consent to any such fee increase.
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Payment. Licensee shall pay the Fees in accordance with the payment requirements of
Schedule A. Amounts which remain unpaid past their due date (including situations in which
Company does not receive payment from Licensee’s applicable credit card company) will be
subject to a late payment charge at the rate of two percent (2.0%) per month (or the highest rate
permitted by law), payable monthly, on the amounts outstanding until payment in full is received
by Company. Any amount received by Company while late payment charges are outstanding will
be applied first to interest owing. In the event that Company engages counsel or takes other steps
to pursue collection, Licensee shall also pay Company’s reasonable attorneys’ fees and costs of
collection.
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Taxes. Fees and other prices for the Software and Services are exclusive of all taxes, and
Licensee shall pay (and Company shall have no liability for), any taxes, tariffs, duties and other
charges or assessments imposed or levied by any government or governmental agency in
connection with this Agreement, including, without limitation, any federal, provincial, state and
local sales, use, goods and services, value-added and personal property taxes on any payments
due Company in connection with the Services provided hereunder, except for tax based solely on
the income of Company.
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Remedies. If Licensee fails to pay any Fee or other amount when due, Company may, in
addition to any other rights or remedies at law or under this Agreement, and in its sole discretion:
(a) immediately, with or without notice to Licensee, suspend or deny Licensee’s access to or use
of the Software or Service or the performance of any of its obligations under this Agreement until
such failure is remedied, subject to such conditions as Company may require; and/or (b) terminate
this Agreement.
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Ownership of Intellectual Property. Licensee acknowledges and agrees that Company
shall retain and own all Intellectual Property Rights in and to the Software, Services, and
documentation at the Company Site (collectively, the “Company Materials”) and all copies
thereof, and that nothing herein transfers or conveys to Licensee any ownership right, title or
interest in or to the Company Materials or to any copy thereof or any license right with respect to
same not expressly granted herein. Licensee agrees that it will not, either during or after the
termination of this Agreement, contest or challenge the ownership of the Intellectual Property
Rights in the Company Materials by Company. Vendor shall own all patent, copyright, trade
secret, trademark or other similar rights in the Vendor Site, regardless of whether or not such
rights or protections are registered or perfected.
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Ownership of Licensee Data; Company Access; Performance and Accuracy.
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Company acknowledges that all data entered by Licensee for storage and
processing using the Software and Service (“Licensee Data”) and the hardware and
systems used by Licensee to access the Software and Service shall be and remain the
property of Licensee.
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Company and/or Vendor shall have the right to access, monitor, edit, copy, use
and reproduce Licensee Data solely to the extent necessary to provide the Software and
Services and fulfill its obligations to Licensee hereunder. Company will not otherwise
access, monitor, edit, copy, use or reproduce Licensee Data unless necessary to: (a)
comply with any law, regulation, court order or legal process (such as a subpoena or
Digital Millennium Copyright Act notice); (b) protect and defend the rights or property of
Company or any third party; (c) enforce this Agreement, including upon termination,
cancellation or suspension of this Agreement by Company; (d) respond to any third party
request in connection with any claim that Licensee is using the Service in connection
with an infringing, illegal or improper activity, or (e) respond to service or technical
issues.
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Company shall have no responsibility for the performance, adequacy, accuracy,
concurrency or other matters related to Licensee Data. Company shall have no
responsibility for the performance, adequacy, accuracy, concurrency or other matters
related to Licensee Systems.
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Access and Use. Licensee is responsible for: (a) obtaining all Licensee Systems including
hardware, software, Microsoft Dynamics CRM Licenses and services that are necessary to
connect to the Site, access the Services and use the Software such as (but not limited to) all
computers, web browsers and services provided by an Internet service provider, and; (b) contract
with Vendor for, and obtain the Services supplied by Vendor from, the Vendor via the Vendor
Site. All such Licensee Systems shall comply with Company’s and/or Vendor’s interface
specifications for the Services described in the documentation for the Software or Services or as
otherwise required by Company or Vendor.
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Termination or Suspension. The Company reserves the right to suspend or terminate
immediately any Customer or User account or activity that is disrupting or causing harm to the
Vendor’s computers, systems, infrastructure or jeopardizes the security of the Service.
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New Versions or Releases; Updates. The Company shall be entitled (but is not obligated)
to prepare new releases or versions of the Software and make them available to Licensees.
Company may also from time to time (but is not obligated to), in its sole discretion, change some
or all of the functionality or any component of the Service or make any modification for the
purpose of improving the performance, service quality, error correction or to maintain the
competitiveness of the Service.
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Limited Warranty and Disclaimer.
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Company warrants that the elements of the Service provided by Company will
substantially conform to this Agreement and any related documentation, if such
documentation is provided by Company. Licensee's sole and exclusive remedies and
Company's entire obligations to Licensee, any User or any other person or entity
hereunder for any breach of this warranty, shall be, at Company’s election, for Company
to refund to Licensee 33% of the subscription fee paid directly to Company (i.e., not
including any fees paid to Vendor) in the calendar year in which the breach first occurred.
Company does not warrant the accuracy of any data or information furnished to Licensee
that is created from Licensee Data, Licensee Systems or Software, or any element of the
Service provided by Vendor.
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EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY EXPRESSLY
DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND
CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND
CONDITIONS OF SATISFACTORY QUALITY, PERFORMANCE,
MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE AND THOSE ARISING BY STATUTE OR
OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE.
LICENSEE ACKNOWLEDGES AND AGREES THAT THE COMPANY MAKES NO
DIRECT WARRANTY OF ANY KIND TO ANY USER UNDER THIS AGREEMENT.
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WITHOUT LIMITING THE SCOPE OF SECTION 15.b ABOVE, COMPANY
DOES NOT REPRESENT OR WARRANT THAT: (i) THE SOFTWARE OR
SERVICES WILL MEET LICENSEE'S REQUIREMENTS; (ii) THE SOFTWARE OR
SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM VIRUSES,
MALICIOUS CODE OR SECURITY EXPLOITS, OR THAT THE RESULTS
OBTAINED FROM THEIR USE WILL BE ACCURATE OR RELIABLE; OR (iii)
ALL DEFICIENCIES IN THE SOFTWARE OR SERVICES CAN BE FOUND OR
CORRECTED. FURTHER, THE SERVICE MAY BE INTERRUPTED OR
UNAVAILABLE FOR THE PURPOSES OF PERFORMING MAINTENANCE OR
UPGRADES. COMPANY WILL NOT BE RESPONSIBLE FOR: (a) SERVICE
IMPAIRMENTS OR SOFTWARE PROBLEMS CAUSED BY ACTS WITHIN THE
CONTROL OF LICENSEE OR ANY USER; (b) INTEROPERABILITY OF SPECIFIC
LICENSEE APPLICATIONS OR LICENSEE SYSTEMS WITH THE SOFTWARE OR
SERVICES; (c) INABILITY OF LICENSEE OR ANY USER TO ACCESS OR
INTERACT WITH ANY OTHER SERVICE PROVIDER THROUGH THE
INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET
OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE
THROUGH THE INTERNET; (d) SERVICE PROVIDED BY OTHER SERVICE
PROVIDERS; OR (e) PERFORMANCE IMPAIRMENTS CAUSED ELSEWHERE ON
THE INTERNET.
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Without limiting the scope of 15.b and 15.c above, any elements of the Service
provided by Vendor are subject solely to the Vendor’s warranties (if any) contained in the
Vendor Terms.
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Limitation of Liability.
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SUBJECT TO THE PROVISIONS OF SECTION 16.a ABOVE, COMPANY’S
ENTIRE LIABILITY COLLECTIVELY TO LICENSEE AND ITS USERS FOR ALL
LOSSES OR CLAIMS FOR OR ARISING OUT OF THE SOFTWARE, SERVICES OR
THIS AGREEMENT SHALL IN NO EVENT EXCEED THE SUBSCRIPTION FEES
PAID TO COMPANY BY LICENSEE PURSUANT TO THIS AGREEMENT IN THE
CALENDAR YEAR IN RESPECT OF WHICH THE LOSS OR CLAIM FIRST
AROSE, EVEN IF THE LOSS OR CLAIM IS A CONTINUING ONE.
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IN NO EVENT WILL COMPANY BE LIABLE FOR DIRECT, SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST
BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF COVER,
DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO
REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST
LICENSEE BY ANY OTHER PERSON, EVEN IF COMPANY HAS BEEN ADVISED
OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
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COMPANY SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO
OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF ANY DATA,
EQUIPMENT OR THE SOFTWARE OR SERVICES, INCLUDING THROUGH
ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.
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THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS
AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE
OF ACTION, DEMAND, OR ACTION BY LICENSEE, INCLUDING BREACH OF
CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY AND
SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE
FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY
REMEDY CONTAINED HEREIN. SOME STATES AND JURISDICTIONS DO NOT
ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED
WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU
MAY ALSO HAVE ADDITIONAL RIGHTS NOT STATED IN THIS DOCUMENT.
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Licensee may not bring any action, regardless of form, against Company arising
out of or related to this Agreement more than one year after the cause of action has arisen
or the date of discovery of such cause, whichever is later.
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Term and Termination.
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This Agreement shall begin on the Effective Date and continue until the end of
the Subscription Period described in Schedule A , and shall automatically renew for
additional periods the length of which are equal to the Subscription Period from the end
of the previous Subscription Period, unless terminated in accordance with the provisions
hereof (the “Term”). For purposes of this Agreement, non-renewal constitutes
termination of the Agreement.
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This Agreement may be terminated, suspended or non-renewed as described
below:
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The Agreement may be terminated or access to the Software and Service
suspended by Company immediately, without notice or liability to Company, if
Licensee fails to make any payment when due, breaches any of Licensee’s
obligations under this Agreement, or violates the Vendor Terms.
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The Agreement may be non-renewed by either party by providing the
other party with written notice of non-renewal at least 30 days in advance of the
end of the expiring Subscription Period;
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The Agreement may be terminated by Licensee if Company materially
breaches any of its duties, obligations or responsibilities under this Agreement
(other than breaches covered in Section 16.a above), and fails to cure such breach
within 30 days after receipt by Company of Licensee’s written notice specifying
the breach;
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If Vendor terminates its relationship with Company, then Company may
terminate this Agreement by written notice to Licensee. Such termination shall
take effect immediately.
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The Agreement may be terminated by Company immediately in the
event a receiver, trustee, administrator, or administrative receiver is appointed for
Licensee or its property, Licensee makes an assignment for the benefit of its
creditors or Licensee is liquidated or dissolved.
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Upon the termination of this Agreement, Company shall immediately cease
providing the Services and terminate Licensee’s Credentials and access to the Software
and Service, and the license to the Software and rights to use the Services shall terminate.
Licensee and its Users shall immediately and permanently cease to access or use the
Software and the Service, and Licensee shall pay to Company all amounts owing under
this Agreement as of the date of termination, if any. Company shall have no obligation to
refund any Fees or other amounts to Licensee, even if termination occurs before the end
of the then-current Subscription Period.
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Additional Provisions
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Notice. Company may give notice by means of a general notice through the
Service (notification at login), electronic mail to Licensee’s e-mail address on record in
Company's account information, or by written communication sent by first class mail to
Licensee’s address on record in Company's account information. Licensee may give
notice to Company at any time by any of the following: electronic mail to
support@crmInnovation.com; letter sent by confirmed facsimile to Company at the
following fax number: (913) 215-9397; letter delivered by nationally recognized
overnight delivery service to Company at the following address: Suite 480, 8725 Rosehill
Road, Lenexa, KS 66215
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Force Majeure. If the performance of any obligation under this Agreement is
prevented, restricted, or delayed by reason of: fire, flood, earthquake, explosion or other
casualty or accident or act of God; strikes or labor disputes; inability to procure or obtain
delivery of parts, supplies, power, telecommunication services, equipment or software
from suppliers; war or other violence; any law, order proclamation, regulation, ordinance,
demand or requirement of any governmental authority; or any other act or condition
whatsoever beyond the reasonable control of the affected party, the party so affected shall
be excused from such performance to the extent of such prevention, restriction or
interference; provided, however, that the party so affected shall take reasonable steps to
avoid or remove such cause of non-performance and shall promptly resume performance
hereunder whenever such causes are removed.
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Severability. To the extent that any provision, portion or extent of this Agreement
is deemed to be invalid, illegal or unenforceable, such provision, portion or extent shall
be severed and deleted or limited so as to give effect to the intent of the parties insofar as
possible and the remainder of this Agreement, as the case may be, shall remain binding
upon the parties.
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Assignment. Licensee may not, without Company's prior written consent, assign
or transfer this Agreement or any of its rights or obligations under this Agreement to any
third person (an “Assignee”). Company may assign this Agreement to any person or
entity without the consent of Licensee.
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Waiver and Amendment. Company reserves the right to change the terms and
conditions of this Agreement or its policies or documentation relating to the Software or
Service at any time. Continued use of the Service for more than thirty (30) days after any
such change shall constitute your consent to such changes.
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Governing Law; Venue. This Agreement shall be governed by and construed in
accordance with the laws of the State of Kansas without reference to conflict or choice of
law rules or principles. The parties irrevocably and unconditionally submit to the
exclusive jurisdiction of Kansas State Court located in Olathe, Kansas or in the United
States District Court for the District of Kansas located in Kansas City, Kansas for the
purposes of any dispute, suit, action or other proceeding between them. The parties
hereby waive and agree not to assert as a defense or otherwise, in any such suit action or
proceeding, any claim that it is not subject personally to the jurisdiction of the abovenamed
courts, that the suit, action or proceeding is brought in an inconvenient forum, that
the venue of the suit, action or proceeding is improper or that this Agreement or the
subject matter hereof may not be enforced by such court.
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Construction. The titles of the sections of this Agreement are for convenience of
reference only and are not to be considered in construing this Agreement. The parties
agree that this Agreement shall be fairly interpreted in accordance with its terms without
any strict construction in favor of or against either party and that ambiguities shall not be
interpreted against the drafting party.
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Entire Agreement. This Agreement sets forth the entire understanding and supersedes
prior agreements between the parties relating to the subject matter contained herein and merges
all prior discussions between them. Neither party shall be bound by any definition, condition,
provision, representation, warranty, covenant or promise other than as expressly stated in this
Agreement or any documentation or schedule issued by Company concerning the Software or
Services. In the event of any conflict between the terms of this Agreement or any documentation
or schedule, the terms of this Agreement shall be deemed controlling.