ClickSoftware Customer Agreement
StreetSmart Saves You Money Every Day.
ClickSoftware Customer Agreement for StreetSmart
This Customer Agreement ("Agreement") governs Your acquisition and use of services from ClickSoftware, Inc. ("ClickSoftware"). If you ("You," "Customer") purchase Services pursuant to a Sales Order form, this Agreement includes and incorporates such Sales Order Form, as well as the accompanying Terms and Conditions. By accepting this Agreement, either by clicking a box indicating Your acceptance or by executing a Sales Order Form that references this Agreement, You expressly agree to the terms of this Agreement. If You enter into this Agreement on behalf of a Company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these terms and conditions. If You do not have such authority, or if You do not agree with these terms and conditions, You must not accept this Agreement and may not use the Services. Each party's acceptance of this Agreement was and is expressly conditional upon the other's acceptance of the terms contained in the Agreement to the exclusion of all other terms. The parties may add additional services or features by mutually executing subsequent Sales Order Forms (that reference this Agreement) in ClickSoftware's standard form or by accepting equivalent online documentation, and each such Sales Order Form shall be subject to all of the terms and conditions of this Agreement. This Agreement was last updated on January 19, 2016. It is effective between You and ClickSoftware as of the date of You executing the initial Sales Order Form that references this Agreement or the date of You accepting this Agreement, whichever is earlier. Terms and Conditions
Subject to the terms and conditions of this Agreement, ClickSoftware will use reasonable commercial efforts to provide Customer the Services described on the Sales Order Form or equivalent online documentation, for the number of Customer employees or contractors authorized by ClickSoftware to use the Services ("Designated Users"), as set forth on the applicable Sales Order Form or equivalent online documentation. Customer acknowledges that ClickSoftware's provision of the Services is dependent in part on Customer's compliance with the terms of Section 2.2 hereunder. Accordingly, any dates or time periods relevant to ClickSoftware's provision of Services or other performance will be extended appropriately and equitably to reflect any delays due to the Customer. This is a contract for ClickSoftware's Software-as-a-Service offering. Any software will be installed, accessed and maintained only by or for ClickSoftware and no license is granted thereto. In addition, use of the Service may require Customer and/or its Designated Users to download and install certain software, which may be subject to additional terms and conditions, and Customer agrees to comply (and ensure that each of its Designated Users complies) with all such terms and conditions, and to be liable for any breach by any Designated User of such terms and conditions. The Services are intended to allow Customer to capture and track certain time, event and location data (collectively, the "Information") and transmit such Information via cellular telephones (the "Phone(s)") to a server owned or managed by ClickSoftware ("Server(s)") for storage and retrieval. Customer grants to ClickSoftware a non-exclusive, transferable right during the term of this Agreement to transmit, store and utilize the Information in the Servers, in connection with ClickSoftware's activities under this Agreement. Customer further understands and agrees that ClickSoftware may provide certain features or services through the Service that require the use of Customer's personal computer while the Customer is logged into the Service, to run certain background computations which may or may not be related to Customer's use of the Service.
- RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly (or permit or assist any third party to): reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services ("Software"); modify, translate, or create derivative works based on the Services or any Software; copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; alter, obscure or remove any proprietary notices or labels; or use (or allow to be used, or provide to any third party) any data, content or information created or generated by the Services, except in connection with Customer's use of the Services during the term hereof. Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.2 Customer represents, covenants, and warrants that Customer will use the Services in compliance with all applicable laws and regulations. Customer shall be responsible for: (a) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services and ensuring that such equipment and ancillary services are compatible with the Services (and, to the extent applicable, the Software) and complies with any configurations and specifications provided by ClickSoftware. Customer acknowledges and agrees that, in order to use the Services, Customer must acquire and maintain an appropriate data plan from the carrier of Customer's choice; that such data plan will not be provided by ClickSoftware; and that the costs and fees associated with the data plan are not included in the Fees (as defined below) and Customer will be billed directly by the carrier for the data plan, and agrees to pay all costs and expenses related to the data plan. The carrier may impose additional terms and conditions for Customer's use of the Software and Services, but in the event of any conflict or inconsistency between such terms and conditions and this Agreement, the terms and conditions of this Agreement will prevail.
2.3 Customer further acknowledges and agrees (and shall inform each of its Designated Users) that ClickSoftware shall have no liability or responsibility, and Customer shall have sole liability and responsibility, for (a) any actions taken by Customer with respect to such Designated Users (including without limitation suspension, termination or disciplinary action) as a result of Customer's use of the Services, and (b) any actions, suits, or claims arising therefrom.
2.4 Certain features of the Service rely upon Phone-based location information. To provide such features or services, ClickSoftware and its partners and licensors may collect, use, transmit, process and maintain a Designated User's location data, including, without limitation, the real-time geographic location of the Designated User's Phone. Customer hereby agrees and consents to such collection, use, transmission, processing and maintenance of such data. In addition, by enabling and/or using any location-based services or features within the Service, Customer agrees and consents to ClickSoftware collecting, using, processing and maintaining information related to Customer's account, and any devices registered thereunder, for purposes of providing such location-based service or feature to Customer. Such information may include, but is not limited to, Customer's user name or identification, Phone identification, Phone type and real-time geographic location of Customer's Phone at time of Customer's request. Any location data provided by the Service is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage. ClickSoftware does not guarantee the availability, accuracy, completeness, reliability, or timeliness of location data or any other data displayed by the Service. CUSTOMER IS RESPONSIBLE FOR ENSURING THAT EACH DESIGNATED USER UNDERSTANDS THAT BY DOWNLOADING THE SOFTWARE TO SUCH DESIGNATED USER'S PHONE AND USING SUCH SOFTWARE, THE DESIGNATED USER HAS CONSENTED TO CLICKSOFTWARE'S COLLECTION, USE, PROCESSING, AND MAINTENANCE OF LOCATION-BASED INFORMATION PROVIDED BY SUCH PHONE (AS SET FORTH IN THIS SECTION 2.4).
2.5 ClickSoftware makes no representation or warranty as to the security or privacy of Information transmitted from the Designated User's phone through use of the Software and Customer shall inform its Designated Users that wireless transmissions of Information may not be secure or private. Customer shall also inform its Designated Users that the Software has been designed to employ the Phone's GPS capabilities as set forth in Section 2.4 above to report the location coordinates of the Phone and such location coordinates will be transmitted to ClickSoftware's Servers for storage and retrieval unless Designated User turns off the Phone's GPS capabilities. Customer agrees that ClickSoftware may use and/or provide to its affiliates, partners, and licensors any aggregated Information, including, but not limited to location coordinates of the Phone and the time stamp when the Information was received, for its bona fide business purposes, so long as such aggregated Information does not disclose any personally identifiable information of Customer or the Designated User.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). The Receiving Party agrees:
(i) to take reasonable precautions to protect such Proprietary Information, and
(ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information.
The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five years following the disclosure thereof or any information that the Receiving Party can document
(a) is or becomes generally available to the public, or
(b) was in its possession or known by it prior to receipt from the Disclosing Party, or
(c) was rightfully disclosed to it without restriction by a third party, or
(d) was independently developed without use of any Proprietary Information of the Disclosing Party or
(e) is required by law to be disclosed.
In any event, ClickSoftware may collect and anonymously use aggregated data ClickSoftware creates in connection with its performance of the Services in order to generally improve and optimize the performance of the Software, Services, and any other ClickSoftware products and services, provided that in no event will ClickSoftware share any data with any third party in a manner that would identify Customer. Customer expressly agrees and represents that when using the Software, it shall not disclose or populate the Software/Service with protected health information or individually identifiable information as such are defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and regulations promulgated thereunder by the U.S. Department of Health and Human Services pursuant to HIPAA ("HIPAA Regulations"), including without limitation the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Part 160 and Part 164 ("Privacy Rule") and Security Standards at 45 CFR Part 160, Part 162 and Part 164 ("Security Rule"), and the Health Information Technology for Economic and Clinical Health Act, Title XIII of the American Recover and Reinvestment Act of 2009 (the "HITECH Act") and regulations promulgated thereunder (the "HITECH Regulations"), as each of which may be amended from time to time. Customer further agrees that it shall indemnify, defend and hold harmless ClickSoftware from any claims, suits, damages and penalties resulting from Customer's breach of the foregoing.
- PAYMENT OF FEES
4.1 Customer will pay ClickSoftware the then-applicable fees for the Services (the "Fees"). Currently applicable Fees are set forth in the Sales Order Form or equivalent online documentation. ClickSoftware reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).
4.2 Full payment for all invoices must be received by ClickSoftware thirty (30) days from the date of receipt of invoice by Customer, or the Services may be terminated. If Customer believes that ClickSoftware has billed Customer incorrectly, Customer must contact ClickSoftware no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to ClickSoftware's Accounting department. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on ClickSoftware's net income.
- TERM; TERMINATION
5.1 Subject to earlier termination as provided below, this Service Agreement is for an initial term of one year or, if longer, the term set forth on the Initial Sales Order Form or equivalent online documentation, and thereafter shall be automatically renewed for additional one year terms, unless either party requests termination by sending written notice to the other party at least thirty (30) days prior to the end of the then-current term. Customer shall notify each Designated User upon any expiration or termination of this Agreement.
5.2 In addition to any other remedies it may have, either party may also terminate this Service Agreement upon thirty (30) days' notice (or ten (10) days in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Service Agreement and such breach is not cured within the relevant notice period. Customer will pay in full for the Services up to and including the last day on which the Services are provided. If ClickSoftware terminates this Agreement for Customer's material breach, or if Customer terminates without cause, all Monthly Minimum Fees paid in advance shall be non-refundable, and all unpaid Monthly Minimum Fees for the remainder of the then-current term shall be due and payable immediately upon such termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Section 2.1, accrued rights to payment, confidentiality obligations, warranty disclaimers, limitations of liability and non-solicitation.
- WARRANTY AND DISCLAIMER
ClickSoftware shall use reasonable commercial efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ClickSoftware or by third-party providers, or because of other causes beyond ClickSoftware's reasonable control, but ClickSoftware shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, ClickSoftware DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT FOR THE FOREGOING, THE SERVICES ARE PROVIDED "AS IS" AND CLICKSOFTWARE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT NEITHER CLICKSOFTWARE NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND INTERNET SEARCH ENGINES. CLICKSOFTWARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, CLICKSOFTWARE AND ITS SUPPLIERS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ClickSoftware' REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO ClickSoftware FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
8.1 ClickSoftware shall indemnify and defend Customer against any costs, liabilities and expenses (including reasonable attorneys' fees) arising from a third-party action, claim or suit ("Claim") to the extent such Claim alleges that the Software or Services infringe any U.S. intellectual property right of a third party. The foregoing obligation shall not apply with respect to any Claim arising from or relating to
(i) Customer's use of the Software or Services other than in accordance with and as contemplated by this Agreement, all applicable documentation, and instructions from ClickSoftware;
(ii) the combination of the Software or Services with any other products, services, materials or technology, if the Software or Services would not be infringing without such combination; or
(iii) modifications to the Software or Services made according to Customer's specifications.
8.2 If the Software or Services become the subject of an intellectual property infringement Claim, ClickSoftware may, at its sole option,
(i) procure for Customer a license to continue using the Software or Services in accordance with this Agreement;
(ii) replace or modify the allegedly infringing portion of the Software or Services to avoid the infringement, or
(iii) terminate this Agreement and refund any prepaid unused fees as of the date of termination. This Section 8.2 sets forth Customer's sole remedy in the event that the Software or Services become the subject of any infringement Claim.
8.3 Customer shall indemnify and defend ClickSoftware against any costs, liabilities and expenses (including reasonable attorneys' fees) incurred in connection with
(a) any Claim arising from any actual or alleged breach of this Agreement by Customer, or otherwise from Customer's use of the Software or Services (including, without limitation, for any Claim arising from any action that Customer takes with respect to any Designated User, including without limitation suspension, termination or disciplinary action) as a result of using the Software or Services) or
(ii) any infringement Claim that is excluded from ClickSoftware's indemnity obligation pursuant to the second sentence of Section 8.1.
8.4 Each party's obligations under this Section 8 shall be conditioned on
(i) the party seeking indemnification providing the indemnifying party with prompt notice of any Claim,
(ii) sole control of the defense and settlement of any such Claim and
(iii) reasonable cooperation in such defense and settlement.
ClickSoftware may identify Customer as a customer of the Services on ClickSoftware's customer lists and in its advertising and marketing materials, and Customer hereby grants to ClickSoftware the right to use Customer's name and trademarks in connection therewith. With Customer's prior consent, ClickSoftware may develop and publish a case study and/or press release based upon Customer's use of the Services.
- PROFESSIONAL SERVICES
Upon execution of a mutually agreed Statement of Work, ClickSoftware agrees to use reasonable commercial efforts to provide agreed upon professional services relating to the Services ("Professional Services"). The Professional Services will be provided at ClickSoftware's then-current standard rates for such services. All payments for professional services shall be subject to the payment terms and conditions set forth in Section 5. ClickSoftware shall retain ownership of all right, title and interest in and to its preexisting software, technology, materials and other intellectual property, as well as all data, materials, software, ideas, concepts, designs, techniques, know-how, inventions, tools, works of authorship and any other technology or information resulting from or arising in the course of performance of the professional services, and all related intellectual property rights. Customer acknowledges and agrees that nothing in this Agreement shall restrict or prevent ClickSoftware from providing professional services of any nature to any other person or entity.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with ClickSoftware's prior written consent. ClickSoftware may transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent there is any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Sales Order Form, the terms of such exhibit, addendum or Sales Order Form shall prevail. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind ClickSoftware in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.