Amazing Business Results
Standard Terms and Conditions for CRM Software Product
Last updated on September 24, 2023
These Standard Terms and Conditions (the “Terms”) shall apply to the Services of Amazing Business Results (“ABR”, “Consultant”, “we”, or “us”) and the client (“Client” or “you”) (Consultant and Clients are sometimes referred to as “party” or “parties” in these Terms), when these Terms are expressly referenced in any Zoho CRM Productivity Package and Consulting Master Services Agreement, Statement of Work, attachment, Consultant Proposal, schedule, exhibit, or any other document under which such Services are provided to the client from the Consultant, and where these Terms are referenced or incorporated (collectively, such documents are referred to as the “Agreement(s)” throughout these Terms).
Please note that these Terms are subject to change any time at the sole discretion of Consultant. It is the Client’s responsibility to review the Standard Terms and Conditions by visiting the pages https://www.amazingbusinessresults.com/medicrm-ai-usa-standard-terms-and-conditions/ to ensure the continued agreement with all applicable terms.
While reasonable efforts may be made by Consultant to notify Client about any changes to these Standard Terms and Conditions, Consultant does not assume any responsibility to do so. With respect to any part of the Agreements which are executed prior to the change in the Terms, the old version of the Terms shall continue to apply to the parts of the Agreements so executed, unless agreed otherwise between the parties in writing.
Furthermore, these Terms will apply to the Consultant legal entity mentioned in an Agreement, or referenced in any part of an Agreement exclusively, and no other affiliate, subsidiary, parent or related party of such Consultant legal entity shall be liable or responsible for, or entitled to any obligations, responsibilities or entitlements pursuant to such Agreements, unless stated otherwise explicitly therein.
WHEREAS, Client is of the opinion that Consultant has the necessary qualifications, experience, and abilities to provide services and software products to Client; and Client desires to retain Consultant to provide certain services and software products to Client described in any relevant Agreement,
WHEREAS, Consultant is willing to provide such services and software products to Client, each on the terms and conditions set forth in this Agreement.
WHEREAS, both parties agree that this preamble shall form a binding part of these Terms.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows, intending to be legally bound:
“Action” has the meaning set forth in 12.1.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” has the meaning set forth in the preamble.
“Change of Scope of Services” has the meaning set forth in 5.1.
“Confidential Information” means any information that is treated as confidential by a Party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. Confidential information also includes all written and oral information and material disclosed or provided by Client to Consultant under this Agreement regardless of whether such information was provided before or after the date of this Agreement or how it was provided to Consultant by Client. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
“Client” has the meaning set forth in the preamble.
“Client Contract Manager” has the meaning set forth in 4.1(a).
“Client Equipment” means any equipment, systems, technology, or facilities provided or maintained by Client and used directly or indirectly in the provision of the Services, where applicable.
“Client Materials” any documents, data, know-how, methodologies, software, and other materials provided to Consultant by Client, including computer programs, reports, and specifications.
“Consultant” has the meaning set forth in the preamble.
“Consultant Personnel” means all employees and Permitted Subcontractors, if any, engaged by Consultant to perform the Services.
“Consultant Proposal” means Client’s Request for Proposal for the Services and Consultant’s response, where applicable, describing how Consultant proposes to carry out the Services, where applicable, and which also is considered an Agreement, or part of any Agreement hereunder.
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by Law to be closed for business.
“Deliverables” means any specifically identified documents, work product, and other materials that are specified in any Agreement and are provided to Client hereunder or prepared by or on behalf of Consultant in the course of performing the Services, including any items identified as such in the Statement of Work.
“Disclosing Party” means a party that discloses Confidential Information under this Agreement.
“Dollar” means a U.S. Dollar.
“Force Majeure Event” has the meaning set forth in 15.
“Initial Term” shall mean the term during which the applicable Statement of Work is in effect.
“Intellectual Property” shall have the meaning described in Clause 7.
“Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Hourly-based Services” has the meaning set forth in Section 2.2(a)(ii).
“Key Personnel” means any Consultant Personnel who is identified as being key in the Statement of Work, where applicable.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any Province, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Package Expiration Date” with respect to Subscription-Based Services, date on which the term of this Agreement expires.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Pre-Existing Materials” means the pre-existing materials specified in the Statement of Work/all documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, technology platforms, and specifications, provided by or used by Consultant in connection with performing the Services, in each case developed or acquired by the Consultant prior to the commencement or independently of this Agreement.
“Project” means a project as described in the Statement of Work.
“Project-based Services” has the meaning set forth in 2.2(a)(i).
“Project Milestone” means an event or task described in the Statement of Work which shall be completed by the relevant date set forth in the Statement of Work.
“Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
“Renewal Term” has the meaning set forth in 5.
“Services” mean the software products and other services to be provided by Consultant under any Agreement or Consultant Proposal or Statement of Work, and Consultant’s obligations under such Agreements.
“Software Product Services” means specific software products and services made available to the Client from the Consultant as described in any specific Agreement, and subject to the conditions specified therein.
“Statement of Work” or “SOW” means the Statement of Work entered into by the parties which is referenced in any part of an Agreement or Consultant Proposal. The Parties would enter into additional SOWs, depending on Client’s additional requests for Services to be provided under this Agreement. These Terms shall be treated as a master agreement.
“Subscription-Based Services” has the meaning set forth in Section 2.2(a)(iii).
“Term” has the meaning set forth in Section 5.
2.1 Consultant shall provide the Services to Client, as described in more detail in the Agreements, in accordance with these Terms.
2.2 Each Statement of Work/Consultant Proposal/binding Agreement shall include the following information, if applicable:
(a) a detailed description of the Services to be provided pursuant to the Agreement, such as, but not limited to:
Software Product Services- specific software products and services made available to the Client from the Consultant as described in any specific Agreement, and subject to the conditions specified therein.
Project-based Services – Services performed under this approach will be performed on a fixed fee basis. Any out-of-scope Services will be performed at standard hourly rates set forth in the Statement of Work, as applicable.
Hourly-based Services – Services performed under this approach will be performed on a standard hourly basis.
Subscription-Based Services – Services performed under this approach will be performed based on a pre-paid package of consulting hours purchased by Client, as described in the applicable Statement of Work. Any out-of-scope Services will be performed at reduced hourly rates set forth in the Statement of Work, as applicable. However, if Client cancels Subscription-based Services prior to the Package Expiration Date, any Services rendered by Consultant up to and including the date of cancellation will be charged at standard hourly rates (for which purpose, the total fees will be recalculated based on such standard hourly rates).For clarity, these Terms apply primarily to Software Product Services, and any other related Services associated with such Software Product Services provided by the Consultant hereunder, and other terms and conditions may apply if such other Services are provided to the Client separately.
(b) the date upon which the Services will commence and the term of such Statement of Work;
I the names of the Consultant Account Manager and any Key Personnel, where applicable;
(d) the fees to be paid to Consultant under the Statement of Work;
(e)the Project implementation plan, including a timetable, where applicable;
(f)Project Milestones and payment schedules, where applicable;
(g)any criteria for completion of the Services/Project, where applicable;
(h)procedures for the testing and acceptance of the Services and Deliverables by Client, where applicable and to the extent there are any difference from 6; and
(i)any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.
3. Consultant’s Obligations.
Clearly state the content, nature and extent of any Services, along with relevant payment terms, in any part of an Agreement issued hereunder, and perform or provide such Services in a reasonable and workmanlike manner, subject to reasonable industry standards.
4. Client’s Obligations.
Client shall cooperate with Consultant in all matters relating to the Services as described in any relevant Consultant Proposal or Agreement.
5. Term and Termination.
5.1 Term. This Agreement shall commence on the date specified in any Agreement and shall continue in force as stated therein.
5.2 Renewal. In case of any Subscription-Based Services, Software Product Services, or Hourly-Based Services, upon expiration of the Initial Term, an Agreement may specify that the Term will automatically renew for any specified Renewal Period, unless either party provides written notice of nonrenewal at least 7 calendar days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). If the Term is renewed for one or more Renewal Term, the terms and conditions of these Terms during each Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal, subject to any change in fees in accordance with 6.2, or any change to the Terms described in the Preamble. If either Party provides timely notice of nonrenewal, then an Agreement shall terminate on the expiration of the then-current Term, unless sooner terminated as provided in this Section 5. The Consultant will provide written notice of the renewal date in the final month of the Services term, as well as the day before the automatic renewal is executed and the Client’s card/payment method is charged (the Client’s card/payment method will be charged at most 7 calendar days prior to the start of Renewal Term). Furthermore, to the extent that any automatic renewal of an Agreement, and subsequent Renewal Period is not valid, enforceable or applicable due to the operation of any applicable State, provincial, national or regional laws, the Renewal Period shall continue on a month-to-month basis, rather than on an annual basis (if applicable in any Agreement), and the Client may terminate an Agreement or subscription upon thirty (30) days notice in writing to the Consultant, after the Initial Term, in such cases alone.
5.3 Termination for Convenience. Either party, in its sole discretion, may terminate an Agreement or any Statement of Work, in whole or in part, at any time without cause, pursuant to the terms stated in any applicable Agreement. The Consultant may terminate any Agreement at will, by providing the Client with at least three (3) months notice in writing, or the equivalent refund of Monthly Fees paid by the Client for the months following such notice up until termination in lieu of notice.
5.4 Termination for Cause. Either party may terminate any Agreement or any SOW, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
(a) breaches an Agreement or part of these Terms, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 5 days after receipt of written notice of such breach; or
(b) (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within 30 business days or is not dismissed or vacated within 30 business days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
5.5 Effects of Termination or Expiration. Upon expiration or termination of this Agreement a breach by the Client, the Consultant will keep any fees paid for the entire duration of the Term, and the remaining Services and Term due under any Agreement may be canceled and terminated, without liability to the Consultant for any losses, loss of data, damage, expenses or fees incurred by the Client. In the event of the termination of this Agreement for breach by the Consultant, any portion of fees paid by the Client for Services rendered defective by the breach may be refunded to the Client.
5.6 . Survival. The rights and obligations of the parties set forth in this 5.6 and 1, 5.5, 7, 8, 9, 10, 11, 12, and 14, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
5.7 Loss of Data. In case of the Termination of this Agreement for any reason, the Client, and not the Consultant, will be responsible for exporting any data they have uploaded or stored using the Services prior to the date of Termination, and the Consultant will not be liable or responsible for any damages, expenses, loss of data or liabilities incurred by the Client relating to the loss of the Client’s data after the date of Termination, for any reason.
6. Fees and Expenses; Payment Terms.
6.1 In consideration of the provision of the Services by the Consultant and the rights granted to Client under an Agreement, Client shall pay the fees set forth in the applicable Agreement. In the absence of language to the contrary in any Agreement, payment for Software Product Services shall be subject to the following conditions:
The Client will be charged a fee for the first 12 months of their subscription as described in any Agreement, which will billed in advance for the first year of Services upon the execution of an Agreement, unless stated otherwise thereunder (the “Monthly Fee”).
The Monthly Fee will include any license costs charged by third party providers, such as Zoho.com. However, to the extent that any additional charges are levied by such providers due to additional usage of the Services by the Client, the Client will be responsible for the payment of such additional fees, in addition to a service charge of 10% of the amount of such fees, on demand, when requested by the Consultant. The Client must pay the Consultant such fees at least within three (3) business days of the request for such fees. Any additional fees due for add-ons or licenses will be paid for the duration of the Client’s currently active and remaining subscription, in one non-refundable payment, as invoiced to the Client by the Consultant.
There will be a non-refundable setup fee defined in an Agreement, to initiate the Services, due on the execution of an Agreement.
In the event that the Client fails to make any payment described in any Agreement, within the time periods specified above, the Client will be immediately liable to the Company on demand for all legal costs, expenses and fees (including attorney’s fees) incurred by the Consultant in connection with the recovery of any payments due to them from the Consultant and any collection efforts undertaken.
Furthermore, in the event of non-payment of the fees described hereunder by the Client, the Consultant shall be entitled to immediately suspend and/or terminate the Services described hereunder and in any Agreement, without any liability whatsoever, for any loss of data, damages, loss of profits/revenues, costs, expenses or liabilities of whatever nature, incurred by the Client as a result of such termination or suspension.
The Client gives the Consultant their full consent and authorization to automatically charge the Client’s credit card or payment method provided, with respect to any subscription for Services, add on requests, payments rightfully due to the Consultant, and subsequent Renewal Terms, as described in these Terms, or in any applicable Agreement. The Client agrees not to hold the Consultant liable for, or demand a refund for any charges to the Client’s credit card or payment method rightfully made in accordance with these Terms or any applicable Agreement.
6.2. The Consultant will be entitled to increase any Monthly Fees paid on an annual basis, by an amount communicated to and agreed by the Client in writing, at the Consultant’s discretion. If the Client’s subscription is renewed for any Renewal Term (automatically or otherwise), the Client will be assumed to have consented to such rate increases as described hereunder.
7. Intellectual Property Rights and Non-Circumvention:
7.1 The Client agrees that all software, source code, add-ons, functionalities, content, user interfaces, text, images, sounds, videos, applications, proprietary information, trademarks, service marks, copyrights and intellectual property of any kind, associated with the Services accessed by the Client, and all Intellectual Property Rights included therein, including any Pre-Existing Materials, and derived works (the “Intellectual Property”), shall belong exclusively to the Consultant and their third party licensors. However, the Consultant acknowledges that all Client or third-party data submitted by the Client to the Consultant, or uploaded to any software or database via the Services, shall remain under the ownership of the Client and their licensors, and will be kept confidential as such by the Consultant. The Client provides the Consultant with a royalty free, perpetual, unlimited, and worldwide license to use the data submitted or uploaded via the Services for the sole purpose of maintaining the Services and Intellectual Property provided by the Consultant.
7.2 The Client agrees that if any licenses or software is provided by any third party licensors of the Consultant, the Client will not, for the duration of the Term of an Agreement and their subscription, circumvent the Consultant by cancelling their subscription during any relevant trial or other period described in an Agreement, while seeking the software and licenses from such third parties directly, without being liable to the Consultant for the full fees due for the Services as described hereunder, regardless of whether the Client has cancelled any subscription during any applicable trial period.
7.3 Consultant and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Intellectual Property , including all Intellectual Property Rights therein. Consultant hereby grants Client a limited, revocable, royalty-free, non-transferable, non-sublicensable, and worldwide license to any Intellectual Property incorporated in, combined with or otherwise necessary for the use of any Deliverables and Services, solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Intellectual Property are expressly reserved by Consultant.
7.4 In the event of the violation of the terms of this Clause by the Client, the Client agrees that they will be immediately liable to the Consultant, on demand, for all liabilities, costs, damages, fees, expenses or royalties incurred or payable to the Consultant, which arise from or are related to the violation or breach of this Clause by the Client, and the remedy of the said breach by the Consultant.
8. Confidential Information.
8.1 The Receiving Party agrees:
(a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates, and their officers, employees, consultants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this 10;
(b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Client, to make use of the Services and Deliverables; and
(c) to immediately notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
8.2 If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide:
(a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
(b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
8.3 Nothing in this Agreement shall prevent either party from using any general methodologies or know-how contained in the unaided memory of such party’s personnel or those of its Affiliates developed or disclosed under this Agreement, provided that in doing so it is not in breach of its obligations of confidentiality under this Section or using any Intellectual Property Rights of the other party or any of its Affiliates.
9. Representations and Warranties.
9.1 Each party represents and warrants to the other party that:
If applicable and a party hereunder is a legal entity, it is duly organized, validly existing and in good standing as a corporation/company or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;
it has the full right, power, and authority to enter into the Agreements, to grant the rights and licenses granted hereunder and pursuant to any Agreements, and to perform its obligations hereunder and pursuant to any Agreements;
the execution of the Agreements by its representative whose signature is set forth on any such relevant document has been duly authorized by all necessary corporate action of the party; and
when executed and delivered by such party, the Agreements and these Terms will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with their terms.
9.2 Consultant represents and warrants to Client that:
it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services/products, and shall devote adequate resources to meet its obligations under any applicable Agreements;
it is in compliance with, and shall provide the Services in compliance with, all applicable Laws;
(i) to Consultant’s knowledge none of the Services, Deliverables, and Client’s use thereof infringe or will infringe any Intellectual Property Right/registered or issued patent, copyright or trademark of any third party arising under the Laws applicable to the Consultant, and, (ii) as of the date hereof, there are no pending or, to Consultant’s knowledge, threatened claims, litigation, or other proceedings pending against Consultant by any third party based on an alleged violation of such Intellectual Property Rights, in each case, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (x) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client to Consultant, (y) use of the Deliverables in combination with any materials or equipment not supplied or specified by Consultant, if the infringement would have been avoided by the use of the Deliverables not so combined, and (z) any modifications or changes made to the Deliverables by or on behalf of any Person other than Consultant.
9.3 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 9, (A) THE CONSULTANT HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) CONSULTANT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
a) The Client agrees that the Services are purchased or accessed “as is,” which means that they accept them as listed or described by the Consultant in writing on their website or otherwise, and will not hold the Consultant accountable for anything beyond what is specifically listed in terms of the Services specifically or explicitly described to the Client in any such communication or Agreement. The Consultant bears no liability for any costs, injuries to person or property, or damages of any kind, arising from the use or misuse of the Services accessed or purchased by the Client. All such Services are purchased or accessed at the sole risk and discretion of the Client, and in accessing the Services, the Client acknowledges that such Services are accessed or purchased as is, while waiving all claims against the Consultant for any damages arising out of the use or application of any Services provided, except to the extent of the Consultant’s gross negligence or willful misconduct. Once Services are purchased or accessed, there are no refunds permitted, unless the Consultant, in their sole and absolute discretion, deems that a refund is warranted to the Client.
b) Without limiting the foregoing, the Consultant, its subsidiaries, affiliates, licensors, officers, directors, agents, co-branders, partners, suppliers and employees do not warrant that the Services and any software or information provided thereunder are accurate, reliable or correct; that the Services will meet the Client’s requirements; that the Services will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Services are free of viruses or other harmful components. Any Services or software downloaded or otherwise obtained through the use of the Services is downloaded at the Client’s own risk and the Client shall be solely responsible for any damage to Client’s computer system or mobile device or loss of data that results from such download or Client’s use of the Services.
c) The Consultant does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Services or any hyperlinked website or service, and the Consultant shall not be a party to or in any way monitor any transaction between Client’s and third-party providers of products or services, unless expressly stated otherwise in any Agreement.
d) The Services may become inaccessible or they may not function properly with Client’s web browser, mobile device, and/or operating system. The Consultant cannot be held liable for any perceived or actual damages arising from the Services’ operations, or use of any Services.
e) Some jurisdictions do not allow the exclusion and limitations of certain implied warranties. The above exclusions may not apply to the Client. The disclaimers and exclusions under these Terms shall not apply to the extent prohibited by applicable law.
The Client agrees to defend, indemnify and hold the Consultant and its subsidiaries, licensors, affiliates, officers, directors, agents, co-branders, partners, contractors, suppliers and employees harmless from and against any and all claims or demands, damages, obligations, losses, liabilities, costs or debt, and expenses, including, but not limited to, legal fees and expenses, arising from:
a) Client’s use of and access to the Services, including any data or information transmitted or received by Client;
b) Client’s violation of these Terms or any Agreement, including, but not limited to, Client’s breach of any of the representations and warranties set forth in these Terms or an Agreement;
c) Client’s violation of any third-party rights, including, but not limited to, any right of privacy or intellectual property rights;
d) Client’s violation of any statutory law, rule, or regulation;
e) any Client content or other content that is submitted from Client’s account, including third party access with Client’s unique username, password or other security measure, if applicable, including, but not limited to, misleading, false, or inaccurate information;
f) Client’s negligence or willful misconduct; or
g) any violation of a relevant/applicable statutory provision by Client or its affiliates, officers, directors, agents, co-branders, partners, suppliers, contractors, and employees to the extent allowed by applicable law.
11. Limitation of Liability
11.1 EXCEPT AS OTHERWISE PROVIDED IN 11.4, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT THE CLIENT BREACHES THE CONSULTANT’S INTELLECTUAL PROPERTY RIGHTS.
11.2 IN NO EVENT WILL THE CONSULTANT’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CONSULTANT PURSUANT TO THE APPLICABLE AGREEMENTS.
11.3 DUE TO SYSTEM LIMITATIONS, NOT ALL SERVICES UNDER THIS AGREEMENT CAN BE PERFORMED BY USING A TESTING ENVIRONMENT (SUCH AS SANDBOX IN ZOHO, FOR EXAMPLE). AS A RESULT, CONSULTANT MAY BE REQUIRED TO PERFORM WORK ON CLIENT’S LIVE SYSTEMS. IN NO EVENT WILL CONSULTANT BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF DATA, USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL INCIDENTAL, IDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM PERFORMANCE OF SERVICES UNDER THIS AGREEMENT TO THE EXTENT THEY ARE A RESULT OF SYSTEM LIMITATIONS.
12.1 During the Term of any Agreement and for a period of 24 months after its termination, the Client shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work or provided any Services for them under any Agreement who is then in the employ of the Consultant. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this 12.1, and the hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this 12.1.
12.2 If the Client breaches 12.1, the Client shall, on demand, pay to the Consultant a sum equal to one year’s basic salary or the annual fee that was payable by Consultant to that employee, worker, or independent contractor plus the recruitment costs incurred by the Consultant in replacing such person.
13. Force Majeure.
13.1 No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of an Agreement or the Terms, (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including without limitation the following force majeure events (“Force Majeure Events”):
(a) acts of God;
(b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion;
(c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest;
(d) government order, law, or actions;
(e) embargoes or blockades in effect on or after the date of this Agreement; and
(f) national or regional emergency; and
(g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and
(h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials. The Impacted Party shall give notice within 5 (five) business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue.
13.2 During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance.
13.3 The affected party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume performance of its obligations as soon as reasonably practicable after the removal of the cause.
14.1 Each party shall, upon the reasonable request, and at the sole cost and expense, of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the Terms and any applicable Agreement.
14.2 The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever, unless stated otherwise in any Agreement.
14.3 All notices, requests, consents, claims, demands, waivers, changes to the Statement of Work/an Agreement, and other communications hereunder shall be in writing and shall be deemed to have been given
(a) when delivered by hand (with written confirmation of receipt);
(b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested);
(c) on the date sent by e-mail if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.
14.4 For purposes of this Agreement,
(a) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”;
(b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein:
(c) to Sections, Schedules, Exhibits, and Statements of Work refer to the Sections of, and Schedules, Exhibits, and Statements of Work attached to any Agreement which references these Terms;
14.5 These Terms, and any Agreement, together with all Schedules, Exhibits, and Statements of Work and any other documents incorporated therein by reference, constitutes the sole and entire agreement of the parties to the Agreement with respect to the subject matter contained therein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the Terms and any Agreement the following order of precedence shall govern:
(a) first, the Agreement, inclusive of its Exhibits and Schedules;
(b) second, these Terms.
14.6 The Client may not assign, transfer, or delegate any or all of its rights or obligations under these Terms or an Agreement, including by operation of law, change of control, or merger, without the prior written consent of the Consultant. The Consultant may assign an Agreement to an Affiliate or to a successor of all or substantially all of the assets of the Consultant, through merger, reorganization, consolidation, or acquisition, without any consent from the Client. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
14.7 An Agreement entered into pursuant to these Terms is for the sole benefit of the parties thereto and their respective successors and permitted assigns and nothing herein or therein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms or an Agreement.
14.8 The headings in these Terms are for reference only and shall not affect the interpretation of the Terms.
14.9 An Agreement may be amended, modified, or supplemented only by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in any Agreement or these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms or any Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.10 If any term or provision of these Terms or an Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or an Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify an Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.11 Governing Law and Disputes.
a) If the Client is located or registered in the United States of America, and any State or territory therein, all Agreements entered into between the parties shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Delaware. The parties hereby agree, that if the Client is registered or maintains their business operations in the United States of America, any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, an Agreement or the transactions contemplated thereby, whether in contract, tort or otherwise, shall be brought in the United States District Court for the District of Delaware or in the Court of Chancery of the State of Delaware (or, if such court lacks subject matter jurisdiction, in the Superior Court of the State of Delaware), so long as one of such courts shall have subject-matter jurisdiction over such suit, action or proceeding, and that any case of action arising out of an Agreement shall be deemed to have arisen from a transaction of business in the State of Delaware. Each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) to the extent applicable hereunder, in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding that is brought in any such court has been brought in an inconvenient form. Service of process, summons, notice or other document by registered mail to the address set forth in Section 14.3 shall be effective service of process for any suit, action or other proceeding brought in any such court.
b) If the Client is located or registered anywhere outside the United States of America, all Agreements entered into between the parties shall be governed by and construed exclusively in accordance with the laws of the Province of Ontario and the laws of Canada, applicable therein, and the parties irrevocably and exclusively attorn to the jurisdiction of the courts of Ontario and agree that any proceeding brought in respect to this Agreement will be brought in such of those courts as appropriate. In the event that any provision herein or part thereof shall be deemed void or invalid by a court of competent jurisdiction, the remaining provisions or parts thereof shall be and remain in full force and effect.
c) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
d) If any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.