1. The Program. It is the desire of the Client to engage the services of Response CRM (herein “CRM”) for the following:
(i) License to use online version of CRM
(ii) Management of Payment Gateway and Transactions Processed
(iii) Management of ACH Processing Services
(iv) Software Training
(v) Technical Support
2. Term. Client commits to an initial one (1) month term for the license of CRM, unless terminated sooner pursuant hereto. After this initial term, this Agreement shall automatically renew for successive one (1) month terms unless either Party gives notice to the other Party of its intention not to renew this Agreement at least thirty (30) days prior to the end of the initial term or any successive renewal term.
2.1. Termination. This Agreement may be terminated by either Party if:
(a) The other Party becomes insolvent, is dissolved or liquidated, makes a general assignment of the benefit of its creditors, files or has filed against it a petition of bankruptcy, or has a receiver appointed for a substantial part of its assets.
(b) The other Party has committed a material breach of this Agreement and such breach has not been cured within thirty (30) days of receipt of a written notice of such breach.
(c) This Agreement may also be terminated by the express mutual written consent of both Parties.
3. Payment Terms.
(i) CRM will bill the Client on the first business day of each month for any and all amounts owing under this Agreement. If fees accrue to more than $50.00 at any time in any given month, CRM will bill the Client the full amount due on a more frequent basis at CRM’s discretion
(ii) Any amounts not paid by Client when due will be subject to a finance charge equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the due date until the date paid. Payment of such finance charges will not excuse or cure any breach or default for late payment. If Client has not paid all owing amounts on or before the last business day of the month in which they were due, CRM may, in its sole discretion and in addition to all other rights terminate all links, CRM services or other services provided to Client. Unless CRM has already terminated the Agreement, if Client subsequently pays in full all owing fees and charges, including attorneys’ fees and other legal expenses incurred by or on behalf of CRM in connection with collection of any unpaid charges and fees and a twenty five dollar ($25) reactivation fee, CRM agrees to restore Client’s ability to use CRM’s services, upon receipt of such payment.
(iii) Client instructs CRM to debit such fees via ACH/EFT automated transfers from the Client’s bank account as designated by the Client. CRM will initiate and debit Client’s bank deposit account(s) for the Fees due and payable to CRM. CRM reserves the right, at its sole discretion, to delay billing of Fees and charges hereunder. If payment of the Fees are not timely received by CRM from Client’s bank deposit account(s). Fees do not include, without limitation any service fees currently paid to or payable to providers of Client Services, Client Processors, or parties affiliated or related thereto. This Agreement at no time substitutes or invalidates any existing agreements between Client and any third party.
4. Limited Liability. Except for (i) fraud, (ii) willful misconduct (excluding breach of this Agreement); and, (iii) breach of the provisions requiring confidentiality under this Agreement, CRM’s liability shall be limited to the actual aggregate amount of the Fees and other amounts paid to, and received by, Client under Section 3 of this Agreement less the aggregate of CRM’s actual third party expenses. Client’s liability shall be limited to the monthly average of the amount of Fees and all other amounts otherwise due to CRM under Section 3 multiplied by the number of months remaining for the initial term or the current renewal term of the Agreement. In any action which may be brought or prosecuted under the statute or otherwise, and not prohibited or waived by the terms of this Section, neither Party shall be liable to the other Party for indirect, special, incidental or consequential damages (including, without limitation, lost profits, revenues or data) of any nature. At no time will CRM be held liable for any Transaction submitted by Client that does not fall under Client’s standard operations or charged through Client Processor’s account or process for or by a business entity other than Client. Client agrees that the entire liability of CRM, in the event of any damages related to this Agreement and services provided, including any damages resulting from any errors or omissions, project development, hosting services, security breaches and so forth shall be limited to an amount not exceeding the charges paid by Client for the service during period effected.
4.1. Indemnity. Client agrees to indemnify CRM and hold CRM harmless from and against any and all liabilities, damages, costs, or expenses (including reasonable attorney’s fees) claimed by any third party while CRM is performing Services in accordance with the terms of this Agreement, provided, however, said liability, damage, expense, or cost was not the result of any act or omission of CRM. CRM agrees to indemnify Client and hold Client harmless from and against any and all liabilities, damages, costs or expenses (including reasonable attorney’s fees) claimed by any third party as a result of a breach of the terms of this Agreement by CRM, provided, however, that said liability, damage, expense or cost was not the result of any act or omission of Client.
5. Governance. This Agreement shall be governed by the laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether the State of California or any other jurisdiction) that would cause the application of laws of any jurisdiction other than the State of California. If any court action is necessary to enforce the terms and conditions of this Agreement, the Parties hereby agree that the Superior Court of California, County of Orange, shall be the sole jurisdiction and venue for the bringing of such action. The provisions of this paragraph may be enforced by any Court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorney fees, to be paid by the Party against whom enforcement is ordered. 6. Confidentiality. The parties acknowledge that each owns valuable trade secrets (“Confidential Information”) and that each party will have access to the other party's Confidential Information in carrying out this Agreement. Each party will:
(a) Hold and maintain the other party's Confidential Information in strict confidence and in trust for the sole benefit of the other party.
(b) Restrict access to the other party's Confidential Information to persons bound by this Agreement.
(c) Obtain the prior written approval of the other party before using the other party's Confidential Information for its own benefit, or publishing or otherwise disclosing it to others, or permitting others to use it for their benefit or to the detriment of the other party.
(d) Take all necessary action to protect the confidentiality of the other party's Confidential Information.
The parties' obligations under this Section do not extend to information that is:
(a) Generally known to the public
(b) Discovered or created by either party independent of any involvement with the other party or the Confidential Information, or learned by either party through legitimate means other than from the other party or anyone connected with the other party.
7. Severability. If any clause or provision of this Agreement is deemed by competent judicial authority to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the validity and enforceability of all of the other provisions hereof, and this Agreement may be reformed to make the offensive provision fully enforceable to the fullest extent without defeating the parties’ original business purpose for this Agreement.
8. Entirety. This Agreement, together with its applicable Enrollment Form and any financial addendum of the parties, embodies and constitutes the sole and entire understanding and agreement of the parties relative to the subject matter hereof and governs and supersedes all prior representations, understandings and agreements as between the parties respecting the within subject matter.
9. Waiver; Amendments. No waiver of a breach hereof shall be deemed to constitute a waiver of a further breach, whether of a similar or dissimilar nature. All amendments or modifications of the parties to this Agreement must be in writing and signed by the parties. All notices hereunder must be in writing.
10. Notices. All notices, requests and demands hereunder shall be in writing and delivered by hand, e-mail, telegram, or recognized commercial over-night delivery service and shall be deemed given within forty-eight (48) hours with receipt of delivery. ACCORDINGLY, Client hereby acknowledging having fully read this Agreement before signing it; each party signifies its/his/her/full consent and agreement to the terms herein set forth by signing and dating below; and this Agreement is made effective as of the date first stated above.