Reputation Enterprise Standard Service Agreement
This Standard Service Agreement governs the provision of the licenses and services (the “Services”) described in the Proposal for Services or other ordering document (the “Proposal”) to be provided by Reputation.com (the “Company”) to its customer (the “Client”).
1. Service Level Agreement
The Services will be available at least 99.9% of the time. Should Services not be available, and should Client notify the Company of such, the Company will extend Client’s subscription term by the period of any reported outage at no cost.
2. License Grant and Restrictions
2.1 Proprietary Rights. All intellectual property rights in and to the Services and any user documentation related thereto are owned by Reputation.com, including, but not limited to, patents, copyrights, trade secrets, and trademarks.
2.2 License Grant. Upon Company’s acceptance of Client’s order and for the duration of the Services term defined in the Service Proposal, Client shall have the nonexclusive, non-assignable (except as set forth in Section 9.6 below), royalty free, worldwide limited right to access and use the Services solely for its internal business operations and subject to the terms of the Agreement. Client may allow its employees to use the Services for this purpose and Client is are responsible for its employee compliance with the Agreement.
2.3 License Restrictions. The licenses granted to Client in this Service Agreement does not include any right to: (a) damage, disable, or impair the Services or the network(s) connected thereto; (b) copy a Service or any part, feature, function or user interface thereof (c) to modify, reroute, create derivative works of, derive the source code of, reverse engineer, disassemble or tamper with Services, or attempt to do any of the foregoing; (d) permit direct or indirect access to or use of any Services by a third party, (e) take any action that imposes an unreasonably or disproportionately large burden on Company’s infrastructure; (f) violate any local, state, federal or other applicable consumer privacy regulations or applicable law or violate the rights of any third party (including, without limitation, rights of privacy or proprietary rights); (g) disable or circumvent any security features of the Company’s products or Services; or (h) cause or permit any third party to do any of the foregoing.
2.4 Reservation of Rights. All rights not expressly granted to Client in this Agreement are reserved to Company. No additional rights whatsoever (including, without limitation, any implied licenses) are granted to Client by implication, estoppel or otherwise. Client does not, by virtue of this Service Agreement or any Proposal or otherwise, acquire any ownership interest or rights in the Services, any Company trademarks or service marks, or any other Company technology, software (including third party technology and software) or intellectual property, except for the limited use and access rights described herein.
3. Fees and Payment for Services
3.1 Fees. Client agrees to pay all fees specified in the Proposal. Unless otherwise provided in the attached Proposal, the annual fee shall be invoiced upon execution of the Agreement. Payment of all invoices shall be due no later than thirty (30) days after invoice date.
3.2 Taxes, Late Fees and Penalties. Client shall be responsible for paying any applicable taxes related to this Agreement. If any payment is not received by its due date, Client shall be assessed interest on the overdue amount at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4. Warranties and Disclaimer
4.1 Company. The Company represents and warrants that: (a) the Services will be provided in a professional and efficient manner; and (b) the Services do not infringe upon the intellectual property rights of third parties.
4.2 Client. Client represents and warrants that: (a) all information it provides to Company to perform the Services is accurate; (b) Client is authorized to provide Company with the customer, patient or end-user information or other data that it provides in connection with the Services; and (c) the Company’s possession and/or use of such customer, patient or end-user information will not violate any contract, statute, or regulation.
4.3 Disclaimers. THE SERVICES ARE PROVIDED “AS IS” AND WE SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S NEEDS OR BE FREE FROM ERRORS.
5. Limitation of Liability
5.1 Limitation on Types of Damages. IN NO EVENT SHALL EITHER PARTY EVER BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, OR LOSS OF GOODWILL), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, OR CLAIM FOR CONTRIBUTION, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR DAMAGE.
5.2 Limitation on Amount of Damages. The Company’s maximum liability arising out of or in any way connected to this Agreement shall not exceed the fees paid by Client pursuant to this Agreement during the 12 months preceding the claim.
6. Term/Termination
6.1 Term of Engagement, Renewals and Price Adjustments. The term of the Agreement shall begin on the date of the last signature below and shall continue for a period of twelve (12) months (the “Initial Term”). Unless otherwise specified in this Agreement, at the end of each term, the Agreement shall automatically renew for successive terms equal in duration to the Initial Term (each a “Renewal Term”) unless either party provides written notice to the other party of its election to terminate the Agreement at least thirty (30) prior to the end of the then-current term. After the Initial Term or the first twelve (12) month period, whichever is longer, the fee for Services purchased shall be subject to an annual increase at a rate of two (2%) percent per annum to be calculated at the time of renewal.
6.2 Termination for Breach. Either party may terminate this Agreement at any time upon written notice to the other if the other: (a) is in material breach of this Agreement and the breaching party fails to remedy the breach within thirty (30) days after receiving written notice identifying the material breach to be cured; or (b) is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a reconstruction), or has an administrative or other receiver, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets.
6.3 Effect of Termination. Upon termination: (a) all rights granted to Client under this Agreement, including Client’s license to use the Services, shall cease; (b) the Company shall stop performing all Services; (c) Client shall immediately pay any fees due through the date of termination and (d) each party, shall, upon receipt of a written request from the other party, destroy or return all Confidential Information. Sections 5 through 9 shall survive any termination or expiration of this Agreement.
7. Confidentiality/Privacy/Publicity
7.1 Definition of Confidential Information. As used herein, Confidential Information (“CI”) means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood as confidential given the nature of the information and the circumstances of disclosure. CI shall include, without limitation, technical product information, product designs, techniques, methods, or strategies used in connection with the Services, user names, passwords and other log-in information, Company pricing information, the specific terms of this Agreement, and confidential information about and from Client’s customers, including their personal and business data. However, CI shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
7.2 Protection of Confidential Information. The parties each agree to collect, store, and use all CI provided to it or obtained by it as a result of this Agreement, in a manner that: (i) protects the security, confidentiality and integrity of the CI; (ii) ensures against reasonably anticipated threats or hazards to the security or integrity of the CI; and (iii) protects against unauthorized access to or use of the CI that could result in harm or inconvenience to the other party. Each party shall use at least the same degree of care in protecting the CI as the party uses to protect its own CI of like kind (but in no event less than reasonable care). The parties agree that CI shall not be used for any purpose outside the scope of this Agreement and that neither party shall disclose the any CI to any third party without the other party’s prior written consent other than to: (i) its legal counsel and accountants; (ii) to potential investors, lenders, purchasers of either party’s business, or underwriters in connection with their due diligence in future financings, acquisitions mergers or public offerings of either party; or (iii) as required by law.
7.3 Privacy. The Company’s privacy policy at www.reputation.com/privacy-policy (“Privacy Policy”) as it is hereby incorporated into this Agreement by reference, and governs our treatment of any information, including personally identifiable information Client submits to us. Client acknowledges and understands that the Privacy Policy may be amended from time to time at the Company’s discretion.
7.4 Publicity. Client hereby acknowledges and agrees that Company may use Client’s name and logo for the purposes of identifying Client as a Company customer.
7.5 HIPAA. If Client is a Covered Entity, then the terms of the Business Associate Addendum at www.reputation.com/legal/business_associate_termsshall be incorporated herein. As part of our Service, Company may send emails to patients of a Covered Entity to request reviews or to seek responses to surveys. Covered Entity shall take all required steps to ensure that the recipients of emails have consented to receive communications that may contain PHI from Covered Entity at the email addresses provided.
8. Arbitration, Forum and Governing Law
Any claim, dispute or controversy of whatever nature (“Claim”) arising out of or relating to this Agreement shall be resolved by binding arbitration. The arbitration shall be conducted by a single arbitrator selected from and administered by the San Francisco, CA office of JAMS, in accordance with its Comprehensive Arbitration Rules. The parties agree that all proceedings prior to the final arbitration hearing shall be handled via email, telephone or video conference, but the final arbitration hearing shall be held in San Francisco, California. This Agreement shall be governed by California law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Each party shall bear its own attorneys’ fees and costs arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator and JAMS. Judgment on the award may be entered by any court of competent jurisdiction
9. General Provisions
9.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon (i) personal delivery, (ii) the second business day after mailing by overnight carrier, (iii) the first business day after sending by confirmed facsimile or email (provided email shall not be sufficient for notices of termination or indemnification). All notices shall be sent to the addresses set forth on the applicable Agreement, which may be updated from by written notice to the other party.
9.2 Product Modifications. The Company continues to innovate and develop its Services and reserves the right from time-to-time to make modifications to the Services and/or to particular components of the Services to improve the product and/or to address market changes, including, but not limited to, adjustments to the particular third party review, social media and/or business listing sites the Services monitor and/or manage. Company will use commercially reasonable efforts to notify Customer of any material modifications to its Services.
9.3 Export Compliance. The Services, other technology that the Company may make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Client shall not permit access to or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
9.4 External Forces. The Company shall be excused from performance hereunder to the extent that its performance is prevented, delayed or obstructed by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government; other event outside the reasonable control of the obligated party. In such event, both parties will use reasonable efforts to mitigate the effect of a force majeure event.
9.5 Waiver and Severability. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach. If any provision of this Agreement is found to be contrary to law by a court of competent jurisdiction, such provision shall be of no force or effect; but the remainder of this Agreement shall continue in full force and effect. The parties shall meet and confer in good faith with respect to any provision found to be in contravention of the law in order to agree on a substitute provision.
9.6 Amendment and Assignment. Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing and signed by or on behalf of each of the parties. Client may not assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the Company.
9.7 Relationship of the Parties. The relationship of the parties is that independent contractors, and neither party is an agent or partner of the other. Neither party has the authority to act in the name or on behalf of or otherwise to bind the other party.
9.8 Entire Agreement. This Agreement, including all exhibits and addenda hereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum executed by both parties, the terms of such exhibit or addendum shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any document not executed by both parties (including Client’s purchase order or our invoice) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.