Agreement Terms & Conditions
Table of Contents
- THIRD PARTY RIGHTS
- ENTIRE AGREEMENT
- LAW AND JURISDICTION
1.1 Except to the extent expressly provided otherwise, in this Agreement:
"Affiliate" means business entities, organizations or individuals that Control Customer or that Customer Control(s).
"API" means application programming interface that supports interoperability of applications with the HawkSoft Services and third party services provided by HawkSoft that is authorized by the Customer.
"Authorized User" means an account enabling an individual who is authorized by Customer to use Services, for whom Customer has purchased a subscription, and to whom Customer (or, when applicable, Provider at Customer request) have supplied a user identification and password. An Authorized User may include, for example, Customer employees, consultants, contractors and agents, and third parties with which Customer transacts business.
"Authorized Representative" means a representative designated by Customer in the Agreement to be a primary point of contact with Provider, and Customer has authorized to act as an official delegate or agent on behalf of Customer.
"Business Day" means any weekday other than a legal holiday in the United States;
"Business Hours" means the hours of 06:00 to 17:00 PT on a Business Day.
"Charges" means the following amounts:
- the amounts specified in the executed Sales Proposal or current rate schedule for Customer;
- such other amounts as may be agreed in writing by the parties from time to time; and,
- 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.
"Cloud Services" means Client Data and/or CMS Software that are stored and/or made available from the Provider’s cloud computing hardware or service.
"Content" means Client Data that is entered into the CMS Software.
“Control,” “Controls” or “Controlled” means the legal right to control (directly or indirectly) the management, operation or business activities of an entity, organization, or individual.
"Client Data" means all data that is uploaded, stored, or processed by the Provider on behalf of the Customer in relation to this Agreement, and may include, but is not limited to:
- 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.
- 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:
- was marked as "confidential"; or
- was reasonably understood by the Provider to be confidential;
"Documentation" means the documentation for the Platform produced by the Provider and delivered or made available by the Provider to the Customer.
"Effective Date" means the date first set forth in the executed Sales Proposal.
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected including, but not limited to, failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, governmental restrictions, bandwidth throttling by third parties, natural disasters, explosions, fires, floods, riots, terrorist attacks and acts of war.
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights, including copyright and related rights, database rights, codes, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, unfair competition rights, patents, models, semi-conductor topography rights and rights in designs.
"Maintenance Services" means the general maintenance of and the application of Updates to the Platform.
"Local Install" means Client Data and/or CMS Software is being provided from a Customer’s own on-premises hardware.
"Platform Defect" means a defect, error or bug in the Platform having a material adverse effect on the operation, functionality or performance of the Platform, but excluding any defect, error or bug caused by, related to or arising as a result of:
- any act or omission of the Customer;
- any use of the Platform contrary to the Documentation, whether by the Customer or by any person authorized by the Customer;
- a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or,
- an incompatibility between the Platform and any other system, network, application, program, hardware or software not specified as compatible in the Platform Specification.
"Platform Specification" means the specification for the Platform set out in Part 3 of Schedule 1 (Platform particulars) and in the Documentation.
"Sales Proposal" is the initial agreement and authorization between Customer and Provider to acquire CMS Software and Services as provided herein.
"Schedule" means any schedule(s) attached to the main body of this Agreement;
"Seat(s)" means concurrent Authorized User(s) of the CMS Software pursuant to the terms of this Agreement. The current minimum Seats per agency is three (3).
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under the Agreement;
"Set Up Services" means the configuration, implementation, conversion, and integration of the Platform in accordance with Part 2 of Schedule 1 (Platform);
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Platform, but shall not include the provision of training or Set Up Services;
"Supported Web Browser" means the current release of web browsers identified at https://www.hawksoft.com/support/system-requirements/
"Term" means the term of this Agreement, commencing in accordance with Section 2.1 and ending in accordance with Section 2.2;
"Update(s)" means a hotfix, patch or version update to any Platform software.
2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force month to month.
3.1 The Provider shall provide Set Up Services to the Customer.
3.2 The Provider shall use reasonable efforts to ensure that the Set Up Services are provided as soon as practical following the Effective Date.
3.3 The Customer acknowledges that a delay in the Customer performing its obligations in this Agreement may result in a delay in the performance of the Set Up Services; and the Provider will not be liable to the Customer for any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.
3.4 Any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.
4.1 Upon Provider’s authorization the Platform will generate an account for the Customer as soon as practical following the Effective Date and Provider will provide to the Customer login details as an Authorized User. The Provider shall also provide to the Customer login details for each Seat upon the completion of the Set Up Services.
4.2 The Provider hereby grants to the Customer a worldwide, revocable, non-exclusive license to use the Platform, including the CMS Software, by means of software installed by Provider as part of Set Up Services or a Supported Web Browser exclusively for the internal business purposes of the Customer in accordance with the Documentation.
4.3 The license granted by the Provider to the Customer under Section 4.2 is subject to the following limitations:
- the Platform may only be used by Authorized User(s) and Affiliates of the Customer; and,
- 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.
4.4 Except to the extent expressly permitted in this Agreement, the license granted by the Provider to the Customer under Section 4.2 is subject to the following prohibitions:
- the Customer may not sub-license its right to access and use the Platform to a non-Affiliate third party;
- the Customer may not permit any unauthorized person to access or use the Platform;
- the Customer may not use the Platform to provide services not in accordance with the Documentation to non-Affiliate third parties; and
- the Customer may not make any alteration to the Platform.
4.5 The Customer shall use all reasonable efforts, including security measures relating to Authorized User access, to ensure that no unauthorized person may gain access to the Platform using any Seat.
4.6 The parties acknowledge and agree that Schedule 3 (Availability SLA) shall govern the availability of the Platform.
4.7 The Customer and Affiliate will comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Platform with the authority of the Customer or by means of a Seat comply with Schedule 2 (Acceptable Use Policy).
4.8 The Customer and Affiliate may not use the Platform in any way that causes or may cause damage to the Platform or impairment of the availability or accessibility of the Platform.
4.9 The Customer and Affiliate must not use the Platform:
- in any way that is unlawful, illegal, fraudulent or harmful; or
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.10 The Customer and Affiliate has no right to and may not access the software code (including object code, intermediate code and source code) of the Platform, including the CMS Software, either during or after the Term. Customer and Affiliate shall not disassemble, decompile or reverse engineer the CMS Software.
4.11 The Provider may suspend access to and/or use of the Platform and any other Services if Customer is in breach of or default under the terms and conditions of the Agreement including if any amount due to be paid by the Customer to the Provider under the Agreement is past due.
5.1 The Provider will provide Maintenance Services to the Customer during the Term.
5.2 The Provider will provide Maintenance Services with reasonable skill and care.
5.3 The Provider shall provide Maintenance Services in accordance with Schedule 4 (Maintenance SLA).
5.4 The Provider may suspend the provision of Maintenance Services if Customer is in breach of or default under the terms and conditions of the Agreement including if any amount due to be paid by the Customer to the Provider under the Agreement is past due.
6.1 The Provider shall provide Support Services to the Customer during the Term.
6.2 The Provider shall provide Support Services with reasonable skill and care.
6.3 The Provider shall provide Support Services in accordance with Schedule 5 (Support SLA).
6.4 The Provider may suspend the provision of Support Services if Customer is in breach of or default under the terms and conditions of the Agreement including if any amount due to be paid by the Customer to the Provider under the Agreement is past due.
7.1 Unless the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
- timely cooperation, support and response to inquiries;
- information and documentation as requested; and
- 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.
7.2 The Customer will provide to or procure for the Provider, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.
8.1 So Customers can benefit from the future enhancements to Provider’s Platform and API, the Provider may use, store, deliver, analyze, and process Client Data consistent with the specifications herein (“Permitted Purpose”).
8.2 The Customer warrants to the Provider that the use of the Client Data by the Provider in accordance with this Agreement will not:
- breach the provisions of any law, statute or regulation;
- infringe the Intellectual Property Rights or other legal rights of any person; or
- give rise to any cause of action against the Provider in any jurisdiction and under any applicable law.
8.3 If Customer uses Cloud Services, Provider shall create a back-up copy of the Client Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Client Data to the state it was at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 15 days.
8.4 Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall reasonably undertake to restore to the Platform the Client Data stored in any back-up copy created and stored by the Provider in accordance with Section 8.3. The Customer acknowledges that this process will overwrite the Client Data stored on the Platform prior to the restoration.
8.5 Upon termination of this Agreement and Customer’s written request, together with payment of a back-up fee as provided in Schedule 1, Section 4, Provider will provide a final back-up of all Client Data and a local copy of CMS Software so that the Client Data can be viewed in read-only mode.
9.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer or from the Customer to the Provider.
10.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
10.2 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable sales or value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
10.3 Subject to the Schedules, the Provider may elect to revise or change any Charges by giving to the Customer not less than 30 days' notice per Section 21.
10.4 Except as otherwise specified herein or as provided at Schedule 1, Section 4, Charges are based on Services purchased and not actual usage. Requests to change Service will be prospective only.
10.5 Customer may dispute, in good faith, any Charges. Customer must submit to Provider documentation explaining the disputed Charges within 30 days of Billing. Customer must have paid all Charges current in order for Provider to consider, investigate and respond to the disputed billing. Provider will respond to Customer’s dispute within 15 days of receipt.
11.1 The Customer must pay the Charges to the Provider as set out in the Sales Proposal or current rate schedule for your agency, and as Seats, features and applications are added or removed by an Authorized Representative of the Customer.
11.2 The Customer must pay the Charges by debit card, credit card, or direct debit.
11.3 If the Customer does not pay any amount due to the Provider under this Agreement, the Provider may pursue any remedies available under the law including the following:
- Interest charges on any past due amount per Schedule 1, Section 4;
- Late fees per Schedule 1, Section 4; and,
- Suspension and/or termination of access to the Platform.
12.1 The Provider must:
- 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;
- 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,
- not use any of the Client Data for any purpose other than the Permitted Purpose.
12.2 Notwithstanding Section 12.1, the Provider may disclose the Client Data to the Provider's officers, employees, advisers, insurers, agents, and those who have a need to access the Client Data for the performance of their work with respect to the Permitted Purpose and those who have a professional obligation to protect the confidentiality of the Client Data.
12.3 This Section 12 imposes no obligations upon the Provider with respect to Client Data that:
- is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
- is or becomes publicly known through no act or fault of the Provider; or
- 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.
12.4 The restrictions in this Section 12 do not apply to the extent that any Client Data is required to be disclosed by any law or regulation, by any judicial or governmental order or subpoena.
12.5 Customer acknowledges that 30 days following any termination of this Agreement, Provider may delete, remove, or erase all Client Data from the Platform. Provider will, thereafter, have no obligation or responsibility to preserve, maintain, or recover such data.
13.1 The Customer warrants to the Provider that Customer has the legal right to provide Client Data to the Provider under or in connection with this Agreement, and that the processing of Client Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any contractual obligation or applicable data protection or data privacy laws.
13.2 The Provider warrants to the Customer that:
- it has in place appropriate security measures against unlawful or unauthorized processing, loss, or corruption of Client Data;
- it will only process the Client Data for the purposes of performing its obligations and exercising its rights under this Agreement; and,
- it will process the Client Data in compliance with all applicable laws.
13.3 The Provider shall notify the Customer promptly if:
- any of the Client Data is breached, lost, destroyed, damaged, corrupted, or unusable; or
- the Provider receives any complaint or regulatory notice which relates to the processing of any of the Client Data; or
- the Provider receives a request or demand for access to any of the Client Data.
13.4 Subject to other provisions herein, the Provider shall co-operate with the Customer in relation to:
- any request from the Customer to amend or delete any of the Client Data;
- any complaint or regulatory notification relating to the processing of any of the Client Data; and
- any request for access to any of the Client Data, all at the cost and expense of the Customer.
14.1 The Provider warrants to the Customer that:
- the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
- 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;
- the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement;
- the Platform will conform in all material respects with the Platform Specification; and,
- the Platform will incorporate security features reflecting the requirements of good industry practice.
14.2 The Provider warrants to the Customer that the Platform, when used by the Customer in accordance with this Agreement, will not breach any applicable laws, statutes or regulations.
14.3 The Provider warrants to the Customer that the Platform, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person.
14.4 If the Provider reasonably determines, or any third party alleges, that the use of the Platform by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
- modify the Platform in such a way that they no longer infringe the relevant Intellectual Property Rights; or
- procure for the Customer the right to use the Platform in accordance with this Agreement.
14.5 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under the Agreement.
14.6 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into the Agreement or any related contract.
15.1 The Customer acknowledges that complex software is not wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Platform will be wholly free from defects, errors and bugs.
15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Platform will be entirely secure.
15.3 The Customer acknowledges that the Platform are designed to be compatible only with that software and those systems specified as compatible in the Platform Specification; and the Provider does not warrant or represent that the Platform will be compatible with any other software or systems.
15.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Platform; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Platform or the use of the Platform by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
16.1 The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly as a result of any breach by the Provider of this Agreement (a "Provider Indemnity Event").
16.2 The Customer must:
- upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider in writing;
- provide to the Provider all assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
- allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
- 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.
16.3 The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of this Agreement (a "Customer Indemnity Event").
16.4 The Provider must:
- upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
- provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
- allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
- 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.
16.5 The indemnity protections set out in this Section 16 shall be subject to any and all limitations and exclusions of liability set out in the Agreement.
17.1 Provider shall not be liable to Customer for indirect, special, incidental, exemplary, or consequential damages (including, without limitation, lost profits) related to, arising from or under this Agreement or resulting from Customer’s use or inability to use the CMS Software, arising from any claim or cause of action whatsoever, including contract, warranty, strict liability or negligence. Under no circumstances shall the liability of Provider to Customer exceed the amounts paid by Customer to Provider under this Agreement.
17.2 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
18.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
18.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
- promptly notify the other; and
- inform the other of the period for which it is estimated that such failure or delay will continue.
18.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
19.1 Either party may terminate this Agreement by giving to the other party not less than 30 days' written notice of termination.
19.2 Either party may terminate this Agreement immediately by giving notice of termination to the other party if:
- the other party commits any material breach of the Agreement, and:
- the breach is not remediable; or
- 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
- the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).
19.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
- the other party:
- is dissolved;
- ceases to conduct all (or substantially all) of its business;
- is or becomes unable to pay its debts as they fall due;
- is or becomes insolvent or is declared insolvent; or
- convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
- an order is made for the winding up of the other party, or the other party passes a resolution for its winding up;
- if that other party is an individual:
- that other party dies;
- as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
- that other party is the subject of a bankruptcy petition or order.
19.4 The Provider may terminate this Agreement immediately by giving written notice to the Customer if:
- 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
- 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.
20.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Sections 1, 4.10, 9, 11, 12, 16, 17, 19, 20, 21, 23, 24, 25, 26, 28, 29 and 30.
20.2 The termination of this Agreement shall not affect the accrued rights of either party.
20.3 Within 30 days following the termination of this Agreement for any reason:
- 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,
- 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.
21.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods:
- delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
- sent by certified mail, return receipt requested, in which case the notice shall be deemed to be received 3 Business Days following posting; or
- via facsimile with confirmation of receipt; or
- via e-mail with recipient response.
Each party shall timely notify the other of any changes to the respective party’s contact information. Each party is entitled to rely upon other party’s most recent contact information for all notices provided herein.
21.2 The Provider's contact details for notices are as follows:
1230 SE 3rd Avenue
Canby, OR 97013
22.1 The Provider may subcontract any of its obligations under this Agreement.
22.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
22.3 Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
23.1 The Customer hereby agrees that the Provider may assign, transfer, or otherwise deal with the Provider's contractual rights and obligations under this Agreement.
23.2 The Customer may not assign, transfer, or otherwise deal with the Customer's contractual rights and/or obligations under this Agreement without the prior written consent of the Provider.
24.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
24.2 No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.
25.1 If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
25.2 If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
26.1 This Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party.
26.2 The exercise of the parties' rights under this Agreement is not subject to the consent of any third party.
27.1 Notwithstanding, the Provider may modify or amend this Agreement by giving to the Customer at least 15 days’ notice of the proposed changes, providing that if the Provider gives to the Customer a notice under this Section, the Customer shall have the right to terminate the Agreement by giving notice of termination to the Provider at any time during the period of 15 days following receipt of the Provider's notice.
28.1 The Sales Proposal or the current rate schedule for your agency, and the Agreement, as defined in the CMS Software and Hosting Agreement, shall constitute the entire agreement between the parties, and shall supersede all previous agreements, arrangements and understandings between the parties with respect to Services.
29.1 This Agreement shall be governed by and construed in accordance with the laws of the state of Oregon.
29.2 Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the state courts of Oregon.
30.1 The section headings do not affect the interpretation of this Agreement.
30.2 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
31.1 Customer represents that Customer has the full power, capacity, and authority to accept this Agreement. If Customer is accepting on behalf of its employer or another entity, Customer represents that it has full legal authority to bind its employer or such entity to this Agreement.
1. Customer Details
Customer shall limit its use of the CMS Software to the number of Seats licensed and ensure only fully trained, Authorized Users have access to and use of the CMS Software. Customer agrees to use the CMS Software only for Customer’s own business activities. Customer shall not, except for an Affiliate, (i) permit any parent, subsidiary, affiliated entity or third party to access the CMS Software; (ii) process or permit to be processed the data of any other person or entity using the CMS Software; nor, (iii) use the CMS Software in the operation of a service bureau. Customer may acquire additional Seats for the Software for an additional fee.
2. Set Up Services
Provider will make available to the Customer the Platform, and install any software required to access or use the Platform on Customer equipment for the number of Seats licensed under the terms of this Agreement. Provider will provide Platform configuration and implementation consulting in scheduled sessions to Customer within the first 60 days of installation. Provider will make training resources available to Authorized Users through HawkSoft University for up to 12 months from Effective Date.
3. Platform Specifications
Provider agrees to provide Customer with access to Platform. Customer will have access to 10 gigabytes of highly available, protected data storage per User. Access to additional data storage may be added for an additional fee as set forth in Schedule 1, Section 4. Software applications other than those provided by the Platform may be made available for Customer’s use on the Platform at the sole discretion of the Provider and for an additional fee as set forth in Schedule 1, Section 4.
To access the Platform, Customer must provide and use only equipment, hardware and software that meets system requirements as defined and kept updated at https://www.hawksoft.com/support/system-requirements.
4. Financial Provisions
Customer will make payment for Platform, Set Up Services, and Support Services in the amount, manner and schedule all as set forth in the Sales Proposal or current rate schedule for your agency, as amended. Payment options, calculations and discounts are provided therein. Set Up Services fees, whether paid in full upfront or paid by installment plan, are fully earned upon execution of this Agreement. Other software services and applications may be provided and hosted at the Platform, for an additional fee. A list of these services and applications can be found at https://www.hawksoft.com/terms/additional-services.
- Scope of Maintenance Services. During the term of this Agreement, Provider will provide Customer the following Standard Maintenance Services for the Software:
- Corrections of substantial defects in the Platform as identified by Provider; and,
- 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,
- Telephone support, e-mail support, chat support, and remote desktop access during Provider’s regular business hours.
- Services Not Included. Standard Maintenance Services do not include:
- Charged-for-Enhancements available at Provider’s sole discretion;
- Custom Programming Services;
- At Site(s) support and/or training;
- Hardware and related network support;
- After-hours support, except as offered at the Provider’s sole discretion, for an additional fee charged according to Schedule 1, Section 4;
- 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;
- Training for Customer and its Authorized Users beyond what is provided in Schedule 1, Section 2.
Schedule 2 (Acceptable Use Policy)
Customer’s continued use of CMS Software constitutes acceptance of the Acceptable Use Policy hereunder and the terms and conditions set forth at https://www.hawksoft.com/terms/agreement, both of which are subject to change from time to time.
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
- the use of Platform; and,
- the transmission, storage and processing of Content by you, or by any person on your behalf using the Platform.
1.2 References in this Policy to "you" are to Customer (and "your" should be construed accordingly); and references in this Policy to "us" are to HawkSoft, Inc. and/or its subcontractors, (and "we" and "our" should be construed accordingly).
1.3 By using the Platform, you agree to the rules set out in this Policy.
2. General usage rules
2.1 You may not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You may not use the Services:
- in any way that is unlawful, illegal, fraudulent or harmful; or
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.3 You will ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by you in any manner licensed or otherwise authorized by you, must not:
- be libellous or maliciously false;
- be obscene or indecent;
- infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
- infringe any right of confidence, right of privacy or right under data protection legislation;
- constitute negligent advice or contain any negligent statement;
- constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
- be in contempt of any court, or in breach of any court order;
- constitute a breach of racial or religious hatred or discrimination legislation;
- be blasphemous;
- constitute a breach of official secrets legislation; or,
- constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic or sexually explicit.
5. Factual accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
6. Negligent advice
6.1 You may not use the Services to provide legal, financial, investment, taxation, accountancy, medical, or other professional advisory services unless you are licensed, certified, or otherwise educationally qualified to render such services.
6.2 Content may not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
7.1Content may be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2Content may not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3Content may not be liable to cause annoyance, inconvenience or needless anxiety.
7.4You may not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5You may not use the Services for the purpose of deliberately upsetting or offending others.
8. Marketing and spam
8.1Any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service, must comply with the CAN-SPAM Act.
8.2Customer shall not use Services to store or transmit spam as defined by the Federal Trade Commission's (FTC) CAN-SPAM Act.
8.3You may not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.
8.4Customer shall not use Services or text messaging in violation of the Federal Communications Commission's (FCC) Telephone Consumer Protection Act.
9.1You may not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
10.1 You acknowledge that we may actively monitor the Content and the use of the Services.
11. Harmful software
11.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
11.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
Schedule 3 (Availability SLA)
1. Introduction to availability SLA
1.1 This Schedule 3 sets out the Provider's availability commitments relating to the Platform.
1.2 In this Schedule 3, "uptime" means the percentage of time during a given period when the Platform is available at the point of the Customer’s public internet gateway.
2.1 The Provider shall use all reasonable efforts to ensure that the uptime for the Platform is at least 99.5% during each calendar month with the exception of Force Majeure Events.
3. Service credits
3.1 With respect of each calendar month during which the Platform uptime is less than specified in Paragraph 2.1, the Provider may, at its sole discretion, issue service credits to Customer.
3.2 Service credits (“Credits”), if issued at Provider’s sole discretion, shall be the sole and exclusive remedy of the Customer in relation to any failure by the Provider to meet the uptime availability in Paragraph 2.1.
3.4 The value of Credits may not exceed the total amount to be paid by Customer in any given month.
3.5 Upon the termination of this Agreement, the Customer's claim to Credits shall immediately cease, save any unused Credits previously allowed by Provider may be offset against amounts billed by the Provider with respect to Platform following such termination.
4.1 Downtime caused, directly or indirectly, by any of the following shall not be considered when calculating whether the Provider has met the uptime availability specified in Paragraph 2.1:
- a Force Majeure Event;
- a fault or failure of the internet or any public telecommunications network;
- a fault or failure of the Customer's computer systems or networks;
- any breach by the Customer of this Agreement; or
- scheduled maintenance carried out in accordance with this Agreement.
Schedule 4 (Maintenance SLA)
1.1 Schedule 4 sets out the service levels applicable to the Maintenance Services.
2. Scheduled Maintenance Services
2.1 The Provider shall where practicable give to the Customer at least 10 Business Days' prior notice of scheduled Maintenance Services that may affect the availability of the Platform or may have a material negative impact upon the Platform, without prejudice to the Provider's other notice obligations under this Schedule 4.
2.2 The Provider will strive to provide all scheduled Maintenance Services outside Business Hours.
3.1 Provider shall apply Updates to the Platform as follows:
- 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;
- 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
- other Updates shall be applied to the Platform in accordance with any timetable notified by the Provider to the Customer.
4.1 The Provider may produce Upgrades during the Term.
4.2 The Provider shall give to the Customer at least 5 Business Days' prior notice of the application of an Upgrade to the Platform.
Schedule 5 (Support SLA)
1.1 This Schedule 5 sets out the service levels applicable to the Support Services.
2.1 The Provider will make available to the Customer a helpdesk in accordance with the provisions of this Schedule 5.
2.2 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
2.3 The Provider shall ensure that the helpdesk is accessible by telephone, email, chat, and using the Provider's web-based ticketing system.
2.4 The Provider will ensure that the helpdesk is operational during Business Hours during the Term.
2.5 The Customer will ensure that all requests for Support Services that it makes shall be made through the helpdesk.
3. Response and resolution
3.1 Issues raised through the Support Services shall be categorised as follows:
- Inaccessible Network: the Platform are inoperable or a core function of the Platform is unavailable;
- High: a core function of the Platform is significantly impaired;
- 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
- Low: any impairment of the Platform not falling into the above categories; and any cosmetic issue affecting the Platform.
3.2 The Provider shall determine, acting reasonably, into which severity category an issue falls.
3.3 The Provider shall use reasonable efforts to respond to requests for Support Services promptly.
3.4 The Provider shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.
3.5 The Provider shall use reasonable efforts to resolve issues raised through the Support Services promptly.
4. Provision of Support Services
4.1 The Support Services will be provided remotely, save to the extent that the parties agree otherwise in writing.
5. Limitations on Support Services
5.1 The Provider shall have no obligation to provide Support Services in respect of any issue caused by:
- the improper use of the Platform by the Customer; or
- any alteration to the Platform made without the prior consent of the Provider.
Schedule 6 (Requirements for agencies with Nationwide only)
It is acknowledged and understood that Customer is a Nationwide independent contractor agent or Nationwide employee agent that may sell, solicit, service and negotiate specific types of products on behalf of Nationwide, which products may include, but are not limited to, personal and commercial lines of insurance, fixed life insurance and annuities that are owned by Nationwide. In the course of doing business Customer will have access to business, financial and marketing data and personal information acquired from or on behalf of Nationwide, including Customer Confidential Information, activity notes and other content generated or uploaded by Customer using Provider’s Platform (altogether, the “Data”), and that such Data is owned by Nationwide. Notwithstanding any other provisions herein the following terms and conditions shall apply to and take precedent in this Agreement.
2. Nationwide Termination
This Agreement and all licenses provided hereunder shall automatically terminate at such time as Customer’s agency appointment with Nationwide is terminated. If Nationwide informs Provider that Customer’s appointment has been terminated, Provider will immediately deactivate Customer as an Authorized User (including all Seats), as well as other Provider products and services, and, thereafter, restrict Customer’s access to the Platform and all Customer Data (including Customer Confidential Information and Customer Personal Data). Further, upon termination of Customer’s agency appointment with Nationwide, Customer agrees and acknowledges Provider may provide Nationwide access to Data owned by Nationwide stored in or on the Platform and as part of the Hosted Services and restrict Customer’s access to such. To continue Customer access to the Provider Platform and Hosted Services, Customer will be required to execute a new CMS Software License and Hosting Agreement.
3. Customer Termination
Customer acknowledges that in the event it provides the 30 day written notice of termination, for any reason, as provided at Section 19 of the Agreement, Provider is required to immediately notify Nationwide of such notice of termination. Unless or until otherwise instructed in writing, Provider will be unable to provide Customer with an unencrypted copy of Customer Confidential Information or Customer Personal Data and, at the expiration of the 30 day notice period, Provider will terminate Customer as an Authorized User and provide Nationwide access to and immediately restrict Customer’s access to any Nationwide owned Data (including Customer Confidential Information and Customer Personal Data) stored, maintained or based within or upon the Platform and/or part of the Hosted Services. Thereafter, Provider may make available to Customer any Data (including Customer Confidential Information and Customer Personal Data) not owned by Nationwide.
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 terms are listed in Section 19 of the HawkSoft Terms & Conditions.
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