TQ CRM SYSTEMS, LLC d/b/a thankQ USA
1.1. The definitions and rules of interpretation in this clause apply in this Contract.
thankQ Software means software components or modules of the Software that are owned by Us or licensed to Us and made available to You under this Agreement either on premise or in the cloud and specified in the applicable Statements of Work;
Agreement means the agreement between thankQ USA and You for the licensing of the Software and the supply of the Services, comprising the Order Specification and these Terms and Conditions;
|Annex||means an annex to this master agreement or a Statement of Work setting out the details of the Software and/or Services provided and any additional terms;|
|Business Days||means Monday to Friday excluding public holidays;|
|Business Hours||means the hours of 9am to 8pm Eastern Time on Business Days;|
|Cancellation Charge||means any cancellation charges set out in clause 6.5;|
|Configured Software||means software code changes and additions to Software specifically developed or modified or written by Us for You. Such “Configured Software” is supplied under license and will remain Our property;|
|Consulting Services||means the consultancy services specified in an applicable Statement of Work and may include, but not be limited to, implementation, configuration, integration and or general IT consultancy services;|
|Customer System||means Your computer equipment, operating system, computer network infrastructure hardware and associated telecom links and networks;|
|Documentation||means documents or on-line help (provided in any media) relating to the Software;|
|Effective Date||means the date the Software is installed|
|Event of Insolvency||means the situation in which a party becomes insolvent, has an insolvency practitioner appointed over the whole or any part of its assets, enters into any compound with creditors, or has an order made or resolution for it to be wound up (otherwise than in the furtherance of a scheme for solvent amalgamation or reconstruction), or an analogous event occurs in respect of a party in any jurisdiction to which that party is subject;|
|Fees||means the License Fee, SaaS Fee, Hosting Fee and fees for Consulting Services or any of them and any other fees, charges costs and expenses paid or payable under this Agreement by You;|
|Hosting Services||means the deployment set out in the relevant Statement of Work;|
|License Fee||means the fee for the License, software maintenance and support as set out in clause 3.1 and relevant Statement of Work;|
|Intellectual Property Rights||means all intellectual and industrial property rights, including patents, trademarks, logos, brand, company names, rights in databases, rights in designs, inventions, discoveries, know-how and copyrights (including rights in computer software) (whether or not any of these is registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;|
|License||means the permission granted to the Licensee to Use the Software under the terms of this Agreement during the period for which the License Fee has been paid;|
|License Term||means the total period for which You hold a valid License;|
|Licensee||means You and/or the Permitted Users;|
|Permitted Users||means the permitted users of the Software (as set out in the Statement of Work);|
|Services||means the Technical Support, Consulting Services, Hosting Services, Managed Services and Hardware Support to be provided by Us and as set out in Statements of Work;|
|Software||means thankQ Software, Configured Software and Third Party Software specified in an applicable Statement of Work but, for the avoidance of any doubt, not including SaaS;|
|Specification||means each specification for the Software and/or SaaS as set out in the relevant Documentation and/or the Statement of Work;|
|Statement(s) of Work||means each agreement specifying the Software, SaaS and/or Services to be supplied under this Agreement (together with any Annex), which forms part of this Agreement and shall be attached to it;|
|Technical Support||means technical operating support in relation to the operation of the Software and/or use of the SaaS;|
|Third Party Software||means software that is owned by a party other than either You or Us which may be supplied under this Agreement as specified in a Statement of Work;|
|Use||means the restricted use of and access to the Software by the Permitted Users (unless otherwise agreed in writing by Us) in object code form by storing, accessing, running and/or loading the Software on the Customer System to process instructions in the Software as agreed between the parties and the Documentation;|
|Warranty Period||means the applicable warranty period for the Software, SaaS and/or Services being 180 days from the start of the License, SaaS provision or the Services, as the case may be, unless otherwise as set out in an applicable Statement of Work;|
|We||means thankQ USA as do the terms “Us” and “Our;”|
|You||means the licensee of the thankQ CRM Software.|
2.1. This agreement is a master agreement, the terms of which are to be incorporated into, or supplemented by, any number of Statements of Work and Schedules which are, or may be, attached. Each Statement of Work constitutes a separate agreement on the terms of this master agreement. Termination of any one Statement of Work shall not affect termination of any other Statement of Work. The limitations of liability in clause 10 cover this Agreement including all the Statements of Work in aggregate.
2.2. Each Statement of Work, together with any Annexes will form a separate and independent contract for the applicable transaction between us and will commence on the date on which it is signed by both parties.
2.3. For the supply of any further Software and/or Services the parties shall agree on new Statements of Work.
2.4. If there is any conflict or inconsistency between any provision of this master agreement and any Statement of Work the terms of the master agreement shall prevail unless specifically stated in writing in a Statement of Work with reference to this clause.
2.5. Except as set out in this Agreement, all dates, timescales and Consulting Services estimates given or agreed by Us in respect of a Statement of Work shall be estimates only as this is a time and materials agreement.
3.1. In consideration of and conditional upon the payment of the License Fee to Us, We grant the Licensee a non-exclusive, revocable, non-transferable, non-sub-licensable License to Use the Software, commencing on the Effective Date and continuing for the License Term.
3.2. The License Term shall be for three (3) years from the Effective Date, unless otherwise noted in the Order Specification, and automatically renew for subsequent periods of 12 months unless You provide 30 days’ written notice to Us of your intention not to renew. The Software may not be Used unless the License Fees and any applicable Hosting Fee is paid in full in advance of the start of a subsequent period.
3.3. The Software is licensed for Use to the Permitted Users as set out in the applicable Statement of Work. Should You wish to increase the Permitted Users, You shall be entitled to do so, subject to You paying an additional License Fee.
3.4. Unless explicitly stated otherwise in an applicable Statement of Work, the License covers the Use of the Software where the database(s) reside on a single SQL Server instance only. Use of the Software is limited to the processing of Your/ Licensee’s own data. For the avoidance of any doubt, You are not permitted to provide services to third parties using the Services or the Software.
3.5. Unless explicitly stated otherwise in an applicable Statement of Work, You shall be responsible for ensuring that Permitted Users are properly trained to operate the Customer System on which the Software resides. Unless otherwise specified within the License (or requirements document when Configured Software has been supplied) the Software will be deemed as accepted by You unless You notify Us otherwise within thirty (30) days of installation or supply of the initial activation keys. No right is given for the Licensee to Use the Software commercially unless You have acknowledged acceptance. If the Software is put to commercial use or operation by the Licensee, whether or not acceptance has been acknowledged, the acceptance will be deemed to have occurred on the first date of such use.
3.6. You shall protect and keep confidential all passwords and credentials and shall be responsible for all use of the Software and/or Services that occurs under your passwords and credentials whether or not such use was by You, on Your behalf or authorized by You. You shall indemnify Us and hold Us harmless against any costs, losses, expenses or damages that We suffer or incur as a result of any breach of this clause or any misuse of any of Your passwords or credentials, including, but not limited to, any third party costs (e.g. hosting costs).
3.7. You are required to pay the applicable License Fees for the entire duration of the License Term. We reserve the right to embed technology within the Software to automatically time expire the Software if the relevant License Fees are not paid by You.
3.8. You acknowledge that the Third Party Software and thankQ Software, and associated documentation, are provided on an “as is” basis and have not been prepared to meet Your individual requirements and that it is Your responsibility to ensure the facilities and functions described in the documentation and any applicable Specification meet Your requirements.
3.9. You shall not (nor permit any third party to) disassemble, decompile, modify, adapt, reverse engineer, merge or make error corrections to the Software, in whole or in part, or in any way expose the source code, instruction sequences, internal logic, protocols, or algorithms of the Software. Where You are taking Software on a SaaS basis, You may access it only through published interfaces and APIs using authorized logins. Nothing in this clause shall prevent You from configuring interfaces and other elements in the Software which are intended to be configured by You.
3.10. We shall notify You of all version upgrades to the Software, via Our user newsletters which are sent periodically by email. At Your request We shall provide You with each such upgrade relating to the Software and Services for which you are validly licensed free of charge and within a reasonable period of time following such request. Services relating to the installation of such upgrades may be subject to charge. Subject to payment of the relevant License Fees, We shall provide Technical Support in respect of the version of the Software used by You from time to time in accordance with the terms set out of this Agreement.
3.11. We shall use reasonable endeavors in accordance with good industry practice to prevent the introduction of known computer viruses or other program code which is likely to damage the Software or the Customer System. You will use reasonable endeavors in accordance with good industry practice to prevent the introduction of any known computer viruses into the Customer System and will check each release of the Software with the same diligence as would be expected from an organization similar to You using current virus scanning software from time to time.
4.1. We warrant that during the Warranty Period the Software will, when used in accordance with the Documentation, operate in all material respects in accordance with the Documentation and Specification (where applicable). We will obtain and at all times during the term of the Agreement maintain all necessary licenses and consents, and comply with all applicable laws and regulations relating to the Software. For the avoidance of doubt, We do not warrant that the operation of the Software will be uninterrupted or error free.
4.2. Software response times are subject to Your own IT systems specification, and as such cannot be guaranteed or underwritten by Us. You are solely responsible for the Customer System, its suitability, compatibility with the Software and for ensuring that it fully meets Your business requirements. We are not a manufacturer of Customer System nor an expert in this area.
4.3. The warranty given under clause 1 does not cover, and We shall have no liability for, persistent or material defects or failures in the Software caused by:
4.3.1. any fault in the Customer System that prevents the Software working in or with the Customer System;
4.3.2. the Licensee’s failure to use the Software in accordance with the Documentation or terms specified in the Statement of Work;
4.3.3. use of consumables which are described in the Statement of Work or which We have notified to You as being inappropriate for use with the Software;
4.3.4. third party software or hardware which is not provided or approved by Us;
4.3.5. any modification or alteration of or attachment to the Software or removal of the same, other than those made by Us or on Our behalf; or
4.3.6. persistent refusal to allow Us access to the Software or relevant data for the purpose of Technical Support.
4.4. The provision of the warranty in clause 1 is further dependent on You having a current and valid fully paid up License including Technical Support for the Software or having paid all Fees up to date.
In the event that You elect to receive Services from Us, this clause 5 shall apply in respect of such Services specified in the applicable Statement of Work.
5.1. TECHNICAL SUPPORT
5.1.1. Technical Support shall start on the Effective Date and continue during the License Term, subject to the payment of the relevant fee.
5.1.2. Technical Support will be provided during Support Hours being Business Hours other than during public holidays.
5.1.3. We will provide Technical Support to Permitted Users who have undertaken training. You will appoint a representative with all the necessary authority to bind Your Company and who shall consolidate the queries of Permitted Users and be the prime contact for Technical Support to ensure smooth communications.
5.1.4. Our obligation to provide the Technical Support shall not extend to:
126.96.36.199. rectification of lost or corrupted data arising by reason other than Our negligence;
188.8.131.52. attendance to faults caused by Your failure to use the supported Software or SaaS in accordance with the requirements of the Documentation and/or documentation or manuals supplied with the supported Software, or caused by operator error or omission;
184.108.40.206. attendance to faults attributable to faults in the Customer System or its use or interaction with other software with which the Software is not compatible or its use or interaction with software or on equipment that We have not approved in writing.
5.2 CONSULTING SERVICES
5.2.1. We will perform the Consulting Services specified in the applicable Statement of Work.
5.2.2. Except as expressly set forth herein, We do not make any warranty, express or implied, with respect to the services rendered by Us or Our personnel or the results obtained from Our work, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose.
5.3. HOSTING / SAAS SERVICES
5.3.1. We shall provide such Hosting/SaaS Services requested by You in the Order Specification.
5.4.1. We will perform all Services in accordance with good industry practices and will use appropriately skilled and qualified personnel.
5.4.2. You agree that We will be relying upon the accuracy of all representations, statements, information, materials and documents (“Data”) supplied by You in connection with the Services and that We shall be under no obligation to test, check or confirm the accuracy of any Data prior to performing the Services unless set out in the Statement of Work. We accept no responsibility or liability whatsoever for or resulting from any Data prepared and/or supplied by You or a third party on Your behalf.
6.1. You agree to pay the Fees for the Software and Services without deduction or set off and in accordance with the terms specified in each Statement of Work.
6.2. You must pay the License Fees prior to Using the Software and You shall pay any subsequent License Fees, Hosting and Services fees within 30 days of invoice. License Fees are non-refundable.
6.3. We have the right to increase all Fees annually.
6.4. We reserve the right to suspend the supply and/or access to the Software and/or Services to You where any amounts owed under this Agreement are overdue until all such amounts have been paid in full.
6.5. In the event that You cancel or postpone the provision of SaaS or any Service(s) within five Business Days of the agreed start date then 100% of the Fees will be payable as a Cancellation Charge. If You cancel or postpone between six and nine Business Days of the agreed start date then 50% of the Fees will be payable as a Cancellation Charge. Notwithstanding the foregoing, you shall reimburse us in full for all costs and expenses that we suffer or incur if you cancel or postpone any Services prior to the agreed start date.
6.6. All rates detailed in the Statement of Works for Consulting Services are estimates only and exclude actual travel and accommodation expenses which will be charged as incurred.
7.1. You shall ensure that You are entitled to transfer the relevant personal data to Us so that We may lawfully process the personal data in accordance with the Agreement on Your behalf.
7.2. We shall process the personal data only in accordance with the terms of the Agreement and any written instructions given by You from time to time. We shall keep a record of any processing of personal data.
7.3. Should We receive a request, complaint, notice or communication which relates directly to the processing of your personal data, We shall immediately notify You and provide you with such assistance as is required to enable You to comply and or respond to any such request, complaint, notice or communication.
7.4. We hereby confirm that all user data shall be Your property. Nothing in this Agreement is intended to transfer any aspect of ownership in the end user data to Us.
7.5. Any personal data while in transit will be protected through suitable encryption.
7.6. We shall notify You immediately upon Our becoming aware of any unauthorized or unlawful processing, loss of, damage to or destruction of any personal data.
8.1. You acknowledge that all Intellectual Property Rights (including any new Intellectual Property Rights) arising out of or in connection with the Software, Services and Documentation supplied belong at all times to Us or Our licensors.
8.2. Nothing in this Agreement shall transfer any Intellectual Property Rights in or arising from the Software, Services or Documentation to You but that these shall remain vested in Us or Our licensors, and no rights to use any such Intellectual Property Rights are granted, except as expressly stated in this Agreement or the relevant Statement of Work.
8.3. We warrant that We are not aware that the Software, any Documentation, information, data, computer facilities or material that We supply, or any provision of the Services or Your use of the same in accordance with the terms of this Agreement will infringe any third party’s Intellectual Property Rights but We have not carried out any investigation into the same. We shall indemnify You against all direct costs, claims, demands, expenses (including reasonable legal costs) and liabilities of whatever nature incurred by or awarded against You arising out of or in connection with any breach of the warranty contained in this clause 3.
9.1. If a party is in material breach of its obligations under this Agreement which is incapable of remedy or if capable of remedy, fails to remedy the same within 30 days (unless otherwise agreed between the parties acting reasonably) of written notice to do so by the other party, the other party may, without prejudice to its other rights and remedies and at its option terminate the Agreement or the affected Statement of Work as a whole, or any affected element of the Software or Services provided under it.
9.2. If a party is in material breach of its obligations under any Statement of Work which is incapable of remedy or if capable of remedy, fails to remedy the same within 30 days (unless otherwise agreed between the parties acting reasonably) of written notice to do so by the other party, the other party may, without prejudice to its other rights and remedies and at its option, terminate the affected Statement of Work as a whole, or any affected element of the Software or Services provided under it.
9.3. Either party may terminate this Agreement with immediate effect on written notice if the other party is subject to an Event of Insolvency.
9.4. We may suspend and/or terminate Your license if You do not pay the License Fees by the due dates. Suspension does not relieve you of any liability to pay the Fees.
9.5. The termination of this Agreement or any Statement of Work in whole or in part for whatever reason shall not affect any provision of this Agreement which is expressed, or by its nature, implied to continue, survive or come into force in the event of such termination.
9.6. Upon termination of this Agreement or any Statement of Work in whole or in part for any reason other than pursuant to clause 3:
9.6.1. the parties shall (without prejudice to any other rights and remedies) promptly pay to each other all sums which are due or outstanding in respect of part of the Agreement or Statement of Work that has been terminated; and
9.6.2. You shall cease all access and use of the Software; and
9.6.3. unless necessary in order that We may continue to perform Our obligations, We shall cease all access to the Customer Systems and shall promptly return all information, materials, documents and data in Our possession at the date of termination to You.
10.1. Subject to clause 3, the total liability of either party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with this Agreement or any Statement of Work shall be limited to an amount equal to the Fees paid or payable to Us pursuant to the relevant Statement of Work under which the liability arose.
10.2. Subject to clause 3, neither party shall be liable for any misrepresentation (other than fraudulent misrepresentation), loss of profits, loss of business, depletion of goodwill and similar losses, loss of anticipated savings, loss of goods, loss of contract or loss of use (in each case whether direct or indirect) nor for any consequential, incidental, special or indirect damages, or for acts of negligence that are not intentional or reckless in nature, regardless of whether the party has been advised of the possibility of such damages. If We provide SaaS or Hosting Services to You under this Agreement, Our liability in connection with the loss or corruption of data or information is as set out in the applicable Annex. In all other cases, We shall not be liable for any loss or corruption of data or information, whether direct or indirect.
10.3. Nothing in this Agreement shall limit or exclude either party’s liability for death or personal injury resulting from negligence; fraud; or any other liability which may not be properly limited or excluded under applicable law nor in respect of the indemnities given in clause 3 nor Your obligation or liability to pay all and any of the Fees under this Agreement.
11.1. This clause shall not apply to any unpaid Fees which, for the avoidance of any doubt, shall deemed to be a material breach and shall be dealt with under clause 1 or 9.2 as applicable. If a dispute arises between You and Us in relation to any other matter, the representatives for each of us in relation to the applicable Statement of Work shall, in the first instance attempt to agree on a resolution for such dispute. If, after 60 days (or such other time as the parties may agree in writing), such representatives, each acting reasonably, are unable to resolve the dispute, You and We shall arrange for a senior representative to attend one or more meetings solely in order to resolve the matter in dispute. Such meetings shall be conducted in such manner and at such venue (including a meeting conducted over the telephone) as to promote a consensual resolution of the dispute in question.
11.2. If the senior representatives are unable to resolve the matter in question within 60 days (or such other time as the parties may agree in writing) then it shall be subject to binding arbitration under the then-current rules of the American Arbitration Association (“AAA”). The arbitration shall be heard and determined by a single arbitrator who is knowledgeable in the field of technology services. The arbitration shall be held in New York County, New York, unless the parties mutually agree otherwise. The arbitrator’s decision will be final and binding, and either party may enter it in any court with jurisdiction. Each party will bear its own attorneys’ fees and related costs associated with the arbitration. Notwithstanding the foregoing, both parties retain the right to obtain an injunction or other equitable relief in court to prevent the misuse of the other party’s confidential information or its intellectual property.
12.1. We may change these Terms and Conditions from time to time and will notify You of any changes by posting them on Our website or via Our newsletter or email. Any changes will be effective immediately upon such notice. If You use the Services/Software after notice of the changes to the Terms and Conditions, You will be taken to have agreed to the changes.
12.2. Each provision of this Agreement shall be construed separately and notwithstanding that the whole or any part of any such provision may be held by any body of competent jurisdiction to be illegal invalid or unenforceable, the other provisions of this Agreement and the remainder of the provision in question shall continue in full force and effect.
12.3. This Agreement will be governed by and construed in accordance with the laws of the State of New York, and the venue of any dispute shall be in the City, State and County of New York.
12.4. This Agreement constitutes the entire agreement between You and Us with respect to the subject matter of this Agreement and supersedes any and all prior agreements.
12.5. You agree that We may refer to You as a client and as a user of Software as applicable in Our marketing and public relations materials.
12.6. Neither Party shall assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably delayed or withheld provided that We may transfer or assign this Agreement to any successor in interest in the event of a sale or merger, such transfer or assignment to be effective upon written notice to You.
12.7. Neither of us shall without the prior written consent of the other party (during and after termination of this Agreement) use (other than in the performance of this Agreement) or disclose to any other person any Confidential Information of the other party, except that any obligations contained in this clause shall not prevent any disclosure of Confidential Information which is required (though only to the extent required) by law, court order or any legal or regulatory authority.
13.1. Any notices to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses set forth in the Order Specification, but each party may change such address by written notice to the other. Notices delivered personally will be deemed made as of actual receipt. Mailed notices will be deemed communicated as of two days after mailing.
We will use all reasonable efforts to ensure that the Hosting Service is available for 99.70% of each calendar month. The Service will be deemed unavailable if it cannot be reached from a functioning Internet Connection. Any instances of unavailability shall have to be ratified by Our monitoring system.
The Hosting Service shall not be deemed unavailable (without limitation) in the event of any of the following:
1.1.1. Periods of scheduled maintenance;
1.1.2. Failure by You or End User connection to the Network (e.g. via the public internet or Your own network, or any 3rd party telecommunications tail circuits);
1.1.3. Malfunction of yours or End User’s own computing systems;
1.2. Recovery Point Objective RPO is the maximum time period in which data might be lost, for SQL Server this is 12 hours, for a Single Virtual Machine this is 12 hours, for a Complete Primary Datacenter Outage this is also 12 hours.
1.3. Recovery Time Objective RTO is the duration of working time within which Service should be restored after a disaster. This time starts from when a support call is logged with Us, for SQL Server this is 6 hours, for a Single Virtual Machine is 6 hours, for a Complete Datacenter Outage it is 12 hours.
1.4. Service Level Credits
If We fail to achieve the Service Level Target, and if You request Us to do so within twenty (20) Business Days after the target is not met, We will issue to You service credits against future periods of service as detailed in the adjacent table.
Service credits issued shall not survive termination of the contract for the Service and are not applicable against other services.
|Service Level Target||Service Credit|
|Shared Hosting||99.70%||1 hour subscription per hour of downtime (after 2 hours)*|
|Partial Hosting||99.70%||Half day subscription per 1 hour of downtime (after 2 hours)*|
|Isolated Hosting||99.70%||1 day subscription per 1 hour of downtime (after 2 hours)*|
*Hour of downtime = hour or part thereof.
Subscription credits are calculated by dividing the annual charge by the number of days in the given year, divided by 24 hours.
1 hour of subscription would typically be worked out by dividing the annual charge by 8731 (365 days x 24 hours x 99.7% minus 2 hours)
Half day subscription is calculated as the annual charge divided by 8731, multiplied by 12 hours.
1 day subscription is calculated as the annual charge divided by 8731, multiplied by 12 hours.
The maximum Service Credit available in any calendar month is equivalent to the annual charge divided by 12.
1.5. You will comply with Our Acceptable Use Policy which is published on Our website:- Acceptable Use Policy