Home » Terms » Agreement

1. Definitions

  1. the amounts specified in the executed Sales Proposal or current rate schedule for Customer;
  2. such other amounts as may be agreed in writing by the parties from time to time; and,
  3. standard time-based or task-based charging rates for Provider's personnel performing the Support Services, Set-up Services and Platform, including professional consulting, as set forth in the Schedules.
  1. Customers’ and their clients’ names, signatures, addresses, contact information, date of birth, account numbers, policy numbers, social security numbers, credit reports, driver’s license numbers, demographic information, financial and transaction information, customer lists, employees’ information, policies, pricing, sales data, security procedures, plans, programs, technical data and know-how, manuals, notes and specifications.
  2. Customer Confidential Information which may include, but is not limited to, information disclosed by or on behalf of the Customer to the Provider during the Term of this Agreement that at the time of disclosure:
    1. was marked as "confidential"; or
    2. was reasonably understood by the Provider to be confidential;
  1. any act or omission of the Customer;
  2. any use of the Platform contrary to the Documentation, whether by the Customer or by any person authorized by the Customer;
  3. a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or,
  4. an incompatibility between the Platform and any other system, network, application, program, hardware or software not specified as compatible in the Platform Specification.

2. Term

3. Set Up Services

4. Grant of License, Services, and Provisioning

  1. the Platform may only be used by Authorized User(s) and Affiliates of the Customer; and,
  2. the Platform may not be used at any point in time by more than the number of Seats purchased, providing that the Customer may add Seat licenses in accordance with the Provider’s then current terms and conditions for such.
  1. the Customer may not sub-license its right to access and use the Platform to a non-Affiliate third party;
  2. the Customer may not permit any unauthorized person to access or use the Platform;
  3. the Customer may not use the Platform to provide services not in accordance with the Documentation to non-Affiliate third parties; and
  4. the Customer may not make any alteration to the Platform.
  1. in any way that is unlawful, illegal, fraudulent or harmful; or
  2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

5. Maintenance Services

6. Support Services

7. Customer Obligations

  1. timely cooperation, support and response to inquiries;
  2. information and documentation as requested; and
  3. evidence of governmental, legal and regulatory licenses, consents and permits, as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.

8. Customer Data

  1. breach the provisions of any law, statute or regulation;
  2. infringe the Intellectual Property Rights or other legal rights of any person; or
  3. give rise to any cause of action against the Provider in any jurisdiction and under any applicable law.

9. No Assignment of Intellectual Property Rights

10. Charges

11. Payments

  1. Interest charges on any past due amount per Schedule 1, Section 4;
  2. Late fees per Schedule 1, Section 4; and,
  3. Suspension and/or termination of access to the Platform.

12. Provider's Confidentiality Obligations

  1. other than as provided herein, not disclose the Client Data in a non-anonymous manner to any person without the Customer's prior documented consent;
  2. use the same degree of care to protect the confidentiality of the Client Data as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care; and,
  3. not use any of the Client Data for any purpose other than the Permitted Purpose.
  1. is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
  2. is or becomes publicly known through no act or fault of the Provider; or
  3. is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.

13. Data Protection

  1. it has in place appropriate security measures against unlawful or unauthorized processing, loss, or corruption of Client Data;
  2. it will only process the Client Data for the purposes of performing its obligations and exercising its rights under this Agreement; and,
  3. it will process the Client Data in compliance with all applicable laws.
  1. any of the Client Data is breached, lost, destroyed, damaged, corrupted, or unusable; or
  2. the Provider receives any complaint or regulatory notice which relates to the processing of any of the Client Data; or
  3. the Provider receives a request or demand for access to any of the Client Data.
  1. any request from the Customer to amend or delete any of the Client Data;
  2. any complaint or regulatory notification relating to the processing of any of the Client Data; and
  3. any request for access to any of the Client Data, all at the cost and expense of the Customer.

14. Warranties

  1. the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
  2. the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement;
  3. the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement;
  4. the Platform will conform in all material respects with the Platform Specification; and,
  5. the Platform will incorporate security features reflecting the requirements of good industry practice.
  1. modify the Platform in such a way that they no longer infringe the relevant Intellectual Property Rights; or
  2. procure for the Customer the right to use the Platform in accordance with this Agreement.

15. Acknowledgements and Warranty Limitations

16. Indemnities

  1. upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider in writing;
  2. provide to the Provider all assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
  3. allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
  4. not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider, and the Provider's obligation to indemnify the Customer under Section 16.1 shall not apply unless the Customer complies with the requirements of this Section 16.2.
  1. upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
  2. provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
  3. allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
  4. not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer, without prejudice to the Customer's obligations under Section 16.3.

17. Limitations and Exclusions of Liability

18. Force Majeure Event

  1. promptly notify the other; and
  2. inform the other of the period for which it is estimated that such failure or delay will continue.

19. Termination

  1. the other party commits any material breach of the Agreement, and:
    1. the breach is not remediable; or
    2. the breach is remediable, but the other party fails to remedy the breach within the period of 10 days following the giving of a notice to the other party requiring the breach to be remedied; or
  2. the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).
  1. the other party:
    1. is dissolved;
    2. ceases to conduct all (or substantially all) of its business;
    3. is or becomes unable to pay its debts as they fall due;
    4. is or becomes insolvent or is declared insolvent; or
    5. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
  2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
  3. an order is made for the winding up of the other party, or the other party passes a resolution for its winding up;
  4. if that other party is an individual:
    1. that other party dies;
    2. as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
    3. that other party is the subject of a bankruptcy petition or order.
  1. any amount due to be paid by the Customer to the Provider under the Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
  2. the Provider has given to the Customer at least 10 days' written notice, following the failure to pay, of its intention to terminate the Agreement in accordance with this Section.

20. Effects of Termination

  1. the Customer must pay to the Provider any Charges, including accrued interest with respect to Services provided to the Customer before the termination of the Agreement; and,
  2. the Provider must refund to the Customer any Charges paid by the Customer to the Provider with respect to Services that were to be provided to the Customer after the termination of the Agreement, all without prejudice to the parties' other legal rights.

21. Notices

  1. delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
  2. sent by certified mail, return receipt requested, in which case the notice shall be deemed to be received 3 Business Days following posting; or
  3. via facsimile with confirmation of receipt; or
  4. via e-mail with recipient response.

22. Subcontracting

23. Assignment

24. No Waivers

25. Severability

26. Third Party Rights

27. Modification

28. Entire Agreement

29. Law and Jurisdiction

30. Interpretation

31. Authority


Schedule 1

1. Customer Details

2. Set Up Services

3. Platform Specifications

4. Financial Provisions

5. Maintenance

  1. Scope of Maintenance Services. During the term of this Agreement, Provider will provide Customer the following Standard Maintenance Services for the Software:
    1. Corrections of substantial defects in the Platform as identified by Provider; and,
    2. Periodic Updates of the Platform, at the sole discretion of Provider, that may incorporate: corrections of any substantial defects; fixes of any minor bugs; and enhancements to the Software; and,
    3. Telephone support, e-mail support, chat support, and remote desktop access during Provider’s regular business hours.
  2. Services Not Included. Standard Maintenance Services do not include:
    1. Charged-for-Enhancements available at Provider’s sole discretion;
    2. Custom Programming Services;
    3. At Site(s) support and/or training;
    4. Hardware and related network support;
    5. After-hours support, except as offered at the Provider’s sole discretion, for an additional fee charged according to Schedule 1, Section 4;
    6. Relocation of the software and/or of the data contained in the software, except at the sole discretion of the Provider, subject to a fee as defined Schedule 1, Section 4;
    7. Training for Customer and its Authorized Users beyond what is provided in Schedule 1, Section 2.

Schedule 2 (Acceptable Use Policy)

1. Introduction

  1. the use of Platform; and,
  2. the transmission, storage and processing of Content by you, or by any person on your behalf using the Platform.

2. General usage rules

  1. in any way that is unlawful, illegal, fraudulent or harmful; or
  2. in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

3. Unlawful Content

  1. be libellous or maliciously false;
  2. be obscene or indecent;
  3. infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
  4. infringe any right of confidence, right of privacy or right under data protection legislation;
  5. constitute negligent advice or contain any negligent statement;
  6. constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
  7. be in contempt of any court, or in breach of any court order;
  8. constitute a breach of racial or religious hatred or discrimination legislation;
  9. be blasphemous;
  10. constitute a breach of official secrets legislation; or,
  11. constitute a breach of any contractual obligation owed to any person.

4. Graphic material

5. Factual accuracy

6. Negligent advice

7. Etiquette

8. Marketing and spam

9. Gambling

10. Monitoring

11. Harmful software


Schedule 3 (Availability SLA)

1. Introduction to availability SLA

2. Availability

3. Service credits

4. Exceptions

  1. a Force Majeure Event;
  2. a fault or failure of the internet or any public telecommunications network;
  3. a fault or failure of the Customer's computer systems or networks;
  4. any breach by the Customer of this Agreement; or
  5. scheduled maintenance carried out in accordance with this Agreement.

Schedule 4 (Maintenance SLA)

1. Introduction

2. Scheduled Maintenance Services

3. Updates

  1. third party security Updates shall be applied to the Platform as soon as practical following release by the relevant third party, providing that the Provider may acting reasonably decide not to apply any particular third party security Update;
  2. the Provider's security Updates shall be applied to the Platform promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update; and
  3. other Updates shall be applied to the Platform in accordance with any timetable notified by the Provider to the Customer.

4. Upgrades


Schedule 5 (Support SLA)

1. Introduction

2. Helpdesk

3. Response and resolution

  1. Inaccessible Network: the Platform are inoperable or a core function of the Platform is unavailable;
  2. High: a core function of the Platform is significantly impaired;
  3. Medium: a core function of the Platform is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Platform is significantly impaired; and
  4. Low: any impairment of the Platform not falling into the above categories; and any cosmetic issue affecting the Platform.

4. Provision of Support Services

5. Limitations on Support Services

  1. the improper use of the Platform by the Customer; or
  2. any alteration to the Platform made without the prior consent of the Provider.

Schedule 6 (Requirements for agencies with Nationwide only)

1. Introduction

2. Nationwide Termination

3. Customer Termination


Schedule 7 (Requirements for Hawksoft Managed Services customers)

1. ADDITIONAL EXPENSES

Additional charges for computer services, fax transmissions, and other out of pocket expenses, including postage, etc., may be added to your monthly bill. Such charges are in addition to the fee above and will be due and payable upon receipt of invoice.

TERMS OF PAYMENT

All billings are “DUE ON RECEIPT.” All amounts unpaid after 30 days are subject to interest at 2% per month (24% per annum), calculated from the invoice date, on the total outstanding amount.

TERMINATION

Termination terms are listed in Section 19 of the HawkSoft Terms & Conditions.

CONFIDENTIALITY

The Client acknowledges that HawkSoft Managed Services, LLC, in the course of their work, may view or otherwise come into contact with information the Client considers confidential. Confidentiality obligations for HawkSoft Managed Services, LLC can be found in Section 12 of the HawkSoft Terms & Conditions.

LAW AND JURISDICTION

This agreement shall be governed per the law and jurisdiction information in Section 29 of the HawkSoft Terms & Conditions.

 

Last Revision: January 8, 2019