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Master Subscription Agreement
This Master Subscription Agreement (this “Agreement”) is between 1440 LLC, a Delaware
limited liability company with the mailing address of 1090 Center Drive, Park City, UT 84098
(“1440”), and ____________________________, a ___________________________________,
located at _____________________________ (“Customer”). 1440 and Customer are
collectively the “Parties” and each a “Party” to this Agreement. This Agreement is effective as of
the later of the dates beneath the Parties’ signatures below (the “Effective Date”) provided,
however that the dates of the Parties’ signatures are not separated by a period greater than 30
days. If the period is greater than 30 days, then this Agreement is null and void. If only one
signature is dated, the Effective Date is the date of that signature.
RECITALS
WHEREAS 1440 offers a consumer engagement and translation solutions;
WHEREAS Customer desires to purchase Services as outlined here;
NOW, THEREFORE, in consideration of the mutual agreements set forth and for other good and
valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties
agree as follows:
1.0 DEFINITIONS
1.1. “Affiliate(s)” means any entity of the Parties which directly or indirectly controls, is
controlled by, or is under common control with the subject entity. For purposes of this
definition, “Control” means direct or indirect ownership or control of more than 50%
of the voting interests of the subject entity.
1.2. “Beta Services” means services or functionality that may be made available to
Customer from 1440 to try and is for the purpose of testing and evaluating the
Services. Beta Services are optional, at no additional charge, and are clearly
designated as beta, pilot, limited release, developer preview, non-production,
evaluation, or by a similar description.
1.3. “Customer Data” Customer Data means data that is owned or managed by Customer,
stored on and secured by Salesforce’s servers.
1.4. “Malicious Code” means any harmful code intended to cause undesired effects,
security breaches, or damage to a system such as viruses, worms, time bombs, Trojan
horses, etc.
1.5. “Order” means an executed ordering document or online order form specifying the
Services 1440 will provide to Customer and governed by this Agreement.
1.6. “Services” mean the online, web-based, customer engagement and translation
solutions, and platform provided by 1440 as part of this Agreement and applicable
Order(s).
1.7. “Term of Services” defined in Subsection 10.2.
Last updated 8.6.21
1.8. “Users” means the number of individuals who are authorized by Customer to use the
Services. Users may include but are not limited to employees, consultants,
contractors, and agents of Customer.
2.0 SERVICES
2.1. Services. 1440 will provide the Services detailed in each Order during the Term of
Services.
2.2. Services Upgrades. Along with the purchased Services, Customer has the right to use
any upgrades to their Service at no additional cost during the Term of Services. Any
future Services developed that are not contained in the Feature Tier are not part of the
subscription.
2.3. Beta Services. All terms in Subsection 2.3 only apply to Beta Services. 1440 may
provide Beta Services at no charge. Customer may accept or decline to participate in
any Beta Services. Beta Services are: (a) for evaluation purposes and not for
production use; (b) not considered Services under this Agreement; (c) not given the
same level of support and maintenance for Services as outlined in Subsections 2.5,
2.6, and 2.7; and (d) may be subject to additional terms and conditions which will be
designated before initiating.
(a) 1440 grants to Customer a non-transferable, non-sublicensable, and
nonexclusive license to access and use the Services during the term outlined in
Subsection 2.3.
(b) Beta Services term will expire upon the earlier of one year from the trial start
date or the date that a version of the Beta Services becomes generally available
for public distribution.
(c) 1440 may discontinue Beta Services at any time at its sole discretion and is not
required to make Beta Services a regular offering.
(d) 1440 will have no liability for any harm or damage to Customer coming from or
concerning discontinuing Beta Services.
(e) Beta Services are provided on an “as is” basis, without warranty of any kind and
1440 disclaims all warranties relating to the service, express, implied, statutory
or otherwise, including, but not limited to, any warranties of merchantability,
non-infringement, and fitness for a particular purpose, to the maximum extent
permitted by applicable law
2.4. Salesforce Users Access.
(a) If Customer has a full Salesforce Customer Relationship Management
(“SCRM”) subscription, then the number of Customer’s Users are governed by
Customer’s contractual relationship with Salesforce and Services are purchased
as a subscription outlined in an Order.
(b) If Customer does not have a full SCRM subscription, then Users are purchased
and managed with a “Limited Salesforce Platform” through 1440 to access
Services.
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(i) The Limited Salesforce Platform is hosted by Salesforce and will only
include the use of Salesforce’s Accounts, Opportunities, Price Books, and
Products tabs. Customer must not utilize any other functions unless
Customer has purchased a full SCRM subscription directly from
Salesforce for the applicable User(s).
(ii) Customer’s access to Services is limited by the number of Users specified
in an Order. Additional Users subscriptions can be added during the Term
of Services at the same pricing as the original Users subscriptions. Pricing
will be prorated for the remainder of the Term of Services and the added
Users terminate on the same date. The number of Users in the original
contract cannot be reduced until the Term of Services is completed.
(iii) Each Limited Salesforce Platform includes 10GB of data storage. 1440
may require Customer to purchase additional data space from them or
archive older data for anything above 10GB.
(iv) Customer with a Limited Salesforce Platform agrees to Salesforce’s Terms
of Use published at
https://www.salesforce.com/company/legal/agreements.jsp (or any
successor URL as may be published by Salesforce from time to time).
2.5. 1440’s Responsibilities.
(a) 1440 will make the Services available to use by Customer under this Agreement
and Order during the Term of Services provided in the Order.
(b) 1440 may track and analyze usage of the Services and Salesforce Platform to
assist Customer, and to maintain the security of and improve the Services and
Salesforce Platform. 1440 may share with third-parties anonymous, aggregated
usage data that does not enable identification of any entity or individual.
(c) 1440 will (i) provide the amount of support outlined in Customer’s service plan
and (ii) use commercially reasonable efforts to make the online Services
available 24 hours a day, 7 days a week.
2.6. Availability of Service.
(a) Services are available for Customer’s use during at least 99.5% of each month
(“Availability”).
(b) Any disruption to Services caused by the following will be discounted when
determining Availability:
(i) Customer’s abnormal or unusual activity generated outside of average
daily trends;
(ii) scheduled maintenance windows, in which 1440 will notify Customer at
least seven days before any scheduled maintenance and that scheduled
maintenance will only be performed between 2:00 a.m. and 5:00 a.m. PST
on any given day;
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(iii) downtime (of which 1440 will give at least 7 hours electronic notice and
which 1440 will schedule, to the extent practicable, during the weekend
hours between 6:00 p.m. Friday and 3:00 a.m. Monday PST); or
(iv) disruption to Availability caused by circumstances beyond 1440’s
reasonable control. Including, but not limited to: Force Majeure, Internet
service provider failure or delay, Non-1440 Application, denial-of-service
attack, changes to third-party sites, or an outage caused by Salesforce.
(c) 1440 will provide Customer with details concerning Availability upon request.
(i) If Customer disputes Availability, Customer will provide 1440 with
information concerning the disputed time period and Customer and 1440
will, in good faith, agree on a reconciliation of the conflicting information.
(d) If 1440 has failed to meet Availability, 1440 will credit Customer a percentage
of that month’s Service fee, see Table 1. Credits will be held and applied to an
invoice at the direction of Customer.
(i) If 1440 violates Availability for (A) two consecutive months or (B) any
four months during the Term of Services or one year, whichever is shorter;
then Customer may terminate this Agreement by giving 1440 30 days
notice of termination. Anything less does not constitute a material breach
of Availability.
(ii) Table 1:
Monthly Availability Credit for
Applicable Month
99.5% availability and above 0%
Less than 99.5% down to and including 99%
5%
availability
Less than 99% down to and including 98%
10%
availability
Less than 98% availability 50%
2.7. Responding to Issues. 1440 responds to Services issues based on severity. Subsection
2.7 does not apply to Beta Services.
(a) “Initial Response Time” is the time elapsed between when an issue is reported,
ticket opened, and when an assigned support representative responds to
Customer (the “Initial Response”). Initial Responses will be within one business
day.
(i) Initial Response will consist of one of a (A) potential resolution or (B)
request for more information, which will allow 1440 to determine the next
steps toward potential problem resolution.
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(ii) If the issue requires escalation or extensive research, at 1440’s discretion,
Customer will be notified with an estimate of the time required to provide
more information, potential workaround, or a resolution.
(b) Business Hours for Subsection 2.7 mean 8:00 am – 5:00 pm Pacific Time.
(c) A “Priority 1” issue means that Customer is (i) unable to use Services and (ii)
this results in a critical impact on business operations.
(i) Once 1440 responds it will provide continuous effort until the problem is
resolved. Customer must be available continuously to actively collaborate
with the support agent and give 1440 access to Customer’s system. If
Customer fails to do either of these, the situation will be deemed as
noncritical and therefore not a Priority 1 condition.
(ii) 1440 will provide next business day status notifications and submit an
incident report within two business days after Initial Response.
(iii) Resolution of Priority 1 conditions may include temporary relief, enabling
Customer’s business to operate until a more comprehensive solution is
provided.
(d) A “Priority 2” issue means Services are usable but severely limited.
(i) Some examples are:
(A) Services respond but generates exceptions or errors,
(B) application is running significantly slower than normal,
(C) data errors are identified,
(D) issue is critical to Customer’s business operations,
(E) non–production system data with a valid support contract is inaccessible,
cannot be archived or restored,
(F) critical component returning error or not responding within the 1440
Services of Customer’s Salesforce instance,
(G) degraded 1440 Services is having a serious negative impact on business,
(H) root cause analysis is required on a previous Priority 1 issue, or
(I) a 1440 application error has occurred which severely impacts business
operations.
(ii) 1440 and Customer will treat it as a Priority 1 as set out in Subsection
2.7(c)(i) but only during Business Hours.
(iii) 1440 will provide next business day status notifications and submit an
incident report within two business days after Initial Response.
(iv) Resolution of Priority 2 conditions may include temporary relief, enabling
Customer’s business to operate until a more comprehensive solution is
provided.
(e) A “Priority 3” issue means Services are usable and some features are
unavailable, but this does not result in a critical impact on business operations.
(i) Some examples of Priority 3 issues are:
(A) Services are noticeably slower,
(B) Services operate inconsistently,
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(C) data updates are 4-6 hours behind,
(D) issue affects Customer’s ability to meet near–term deadlines,
(E) component returning error or not responding,
(F) a Priority 1 or 2 issue that has an acceptable workaround, or
(G) issue is specific to a few Users.
(ii) These issues will be worked on during Business Hours but do not require
continuous effort.
(iii) 1440 will provide an incident report within five business days
(f) “Priority 4” issues are uses that are not Priority 1, 2, 3 nor an issue that has a
reasonable workaround implemented.
(i) Examples of Priority 4 issues are:
(A) general question such as “how to” or syntax questions,
(B) issue with little or no impact,
(C) documentation issues,
(D) issue is essentially resolved but remains open for Customer confirmation.
Intermittent wait status with little or no Customer interaction required,
(E) cosmetic issue,
(F) feature Enhancement Request, or
(G) requests for 1440 configuration changes that are not currently available for
Customer to make themselves (Locations updates, etc.).
2.8. Customer’s Responsibilities.
(a) Unless otherwise specified in this Agreement or on an Order, Customer must
not use Salesforce Platform subscriptions acquired under this Agreement (i) in a
manner or for a purpose other than as needed to use the Services, (ii) to develop
new applications, (iii) to utilize custom objects delivered outside of the
Services, or (iv) to access the Salesforce Campaigns, Leads, Opportunities,
Cases, Solutions, or Forecasts objects.
(b) Customer will (i) be responsible for compliance with this Agreement; (ii) be
solely responsible for the accuracy, quality, integrity, and legality of Customer’s
Data; (iii) use commercially reasonable efforts to prevent unauthorized access to
or use of the Services; (iv) notify 1440 promptly of any unauthorized access or
use; and (v) use the Services under applicable laws and government regulations.
(i) Customer will not (A) sell, resell, rent, lease, or loan the Services, (B)
interfere with or disrupt the integrity or performance of the Services or
third-party data contained in it, or (C) attempt to gain unauthorized access
to the Services or their related systems or networks.
(ii) Customer will not use the Services to store or transmit (A) infringing,
libelous, or otherwise unlawful material; (B) material violating third-party
privacy rights; or (C) Malicious Code.
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3.0 PAYMENT AND FEES FOR SERVICES
3.1. Payments. Customer must pay the fees specified in all Orders. Fees are (a) quoted
and payable in United States dollars (b) based on Services purchased and not actual
usage, and (c) non-cancelable and fees paid are non-refundable. Fees for Services
added in the middle of a month will be charged for that full month and for the
remaining Term of Services.
3.2. Credit Cards. If an Order specifies a credit card payment, Customer will provide
valid and updated credit card information. If Customer provides credit card
information to 1440, Customer authorizes 1440 to charge that credit card for all
Services listed in an Order for the initial Term of Services and any renewals. Those
charges must be made in advance, either annually or under any different billing
frequency stated in the Order. All credit card payments are subject to a 2.5% charge.
3.3. Invoicing and Payment. If an Order specifies that payment will be by a method other
than a credit card, 1440 will invoice Customer no more frequently than the
anniversary of the original Order execution, or as stated on an Order. Invoiced
charges are due Net 30 days from the invoice date. Customer is responsible for
maintaining complete and accurate billing and contact information.
3.4. Overdue Charges. Any charges not received from Customer by the due date will
accrue late interest at the rate of 3.0% of the outstanding balance per month, or the
maximum rate permitted by law, whichever is lower, from the date the payment was
due until the date paid. When payments are overdue 1440 may, without limiting its
other rights and remedies, (a) condition future subscription renewals and Orders on
payment terms shorter than those specified in Subsection 3.3 (Invoicing and
Payment); (b) accelerate Customer’s unpaid fee obligations so that all obligations
become immediately due and payable; and (c) suspend Services to Customer until
those amounts are paid in full.
3.5. Payment Disputes. 1440 will not exercise its rights under Subsection 3.4 if the
applicable charges are under reasonable and good-faith dispute and Customer is
cooperating diligently to resolve the dispute.
3.6. Pricing. 1440 has the right to modify pricing upon renewal of Services.
3.7. Taxes. Unless otherwise stated, 1440’s fees do not include any taxes, levies, duties,
or similar assessments. Customer is responsible for paying all taxes associated with
Customer’s purchases. If 1440 is obligated to pay or collect taxes for which Customer
is responsible under this paragraph, the amount will be invoiced to and paid by
Customer, unless Customer provides 1440 with a valid tax exemption certificate
authorized by the appropriate taxing authority.
3.8. Pricing After Renewal. The pricing after renewal, discussed in Subsection 10.3, is
the same as that during the prior Term of Services, unless 1440 has given Customer
written notice of a pricing increase at least 90 days before the end of the prior Term
of Services.
3.9. Implementation. This Agreement and an Order must be signed before
implementation. A delay in payment by Customer may cause a disruption in Services
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that 1440 cannot be held liable for. Implementation requires that both Parties do all
reasonably possible to implement Services in a timely manner.
3.10. Additional Service Fees. Additional custom Services and training is available
digitally or on site. Any fees for those Services will be time-based, including
traveling expenses and be performed by a separate consulting agreement or Order to
be executed between the Parties.
4.0 PROPRIETARY RIGHTS
4.1. Reservation of Rights. Subject to the limited rights expressly granted here, 1440
reserves all rights, title, and interest in and to the Services, including all related
intellectual property rights. No rights are granted to Customer other than as expressly
set forth in Section 4.0.
4.2. Restrictions. Customer and their Affiliates must not (a) permit any third-party to
access the Services except as permitted in this Agreement; (b) create derivative works
based on the Services; (c) copy, frame, or mirror any part or content of the Services;
(d) reverse engineer the Services; or (e) access the Services to (i) build a competitive
product or service or (ii) copy any features, functions, or graphics of the Services.
(a) If there is any dispute with Customer violating Subsection 4.2 Customer agrees
it will cease and desist that activity until an agreement is negotiated between
1440 and Customer, or by order of a Judge.
(b) 1440 will receive the maximum amount of damages permitted by law if
Costumer violates Subsection 4.2.
4.3. Customer’s Suggestions. 1440 has a royalty-free, worldwide, transferable,
sublicensable, irrevocable, and perpetual license to use or incorporate into the
Services any suggestions, enhancement requests, recommendations, or other feedback
provided by Customer, relating to the operation of the Services.
4.4. Prior Intellectual Property Rights. Notwithstanding the foregoing, each Party will
retain all of its rights in any materials, ideas, products, concepts, methodologies,
processes, techniques, templates, reports, information, inventions, concepts, data
(including Customer Data), know-how, and other works, and all intellectual property
rights owned or controlled by that Party before the date of this Agreement, or
acquired or developed after the date of this Agreement, but unrelated to this
Agreement and developed without reference to or use of the intellectual property or
confidential information of the other Party. Customer acknowledges and agrees that
1440 will learn and develop general know-how, processes, tools, and methodologies
while providing the Services that 1440 will continue to own and use after the Term of
this Agreement without obligation to Customer.
5.0 CONFIDENTIALITY
5.1. Confidential Information. “Confidential Information” means all information
disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”),
whether orally or in writing, that is designated as confidential or that reasonably
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should be understood to be confidential given the nature of the information and the
circumstances of disclosure.
(a) Customer’s Confidential Information includes Customer Data; 1440’s
Confidential Information includes the Services; and Confidential Information of
each Party includes the terms and conditions of this Agreement and all Orders,
as well as business and marketing plans and strategies, financial information
and projections, technology and technical information, product plans and
designs, prices and quotes for Services, customer lists and customer
information, and all business processes or other information to which a Party
has access as a result of this Agreement.
(b) It is specifically acknowledged and understood that Confidential Information
may consist of (i) information transmitted in written, oral, digital, or any other
medium, (ii) all copies and reproductions, in whole or in part, of that
information, and (iii) all summaries, analyses, compilations, studies, notes, or
other records which contain, reflect, or are generated from that information.
(c) Confidential Information (other than Customer Data) does not include any
information that (i) is or becomes known to the public without breach by the
other Party of any obligation owed to the Disclosing Party, (ii) was known to
the Receiving Party before its disclosure by the Disclosing Party without breach
of any obligation owed to the Disclosing Party, (iii) is received from a third-
party without breach of any obligation owed to the Disclosing Party, or (iv) was
independently developed by the Receiving Party.
5.2. Protection of Confidential Information. Except as otherwise expressly permitted in
writing by the Disclosing Party: (a) the Receiving Party will use the same degree of
care that it uses to protect the confidentiality of its own Confidential Information of
like kind (but in no event less than reasonable care and consistent with industry
practices and standards); (b) the Receiving Party must not disclose or use any
Confidential Information of the Disclosing Party for any purpose outside the scope of
this Agreement; and (c) the Receiving Party will limit access to Confidential
Information of the Disclosing Party to those of its employees, contractors, and agents
who need access for purposes consistent with this Agreement and who have signed
confidentiality agreements with the Receiving Party containing protections no less
stringent than those in this Section.
5.3. Compelled Disclosure. If the Receiving Party is legally compelled (whether by
deposition, interrogatory, request for documents, subpoena, civil investigation
demand, or similar process) to disclose any of the Confidential Information, the
Receiving Party will immediately notify the Disclosing Party in writing of that
requirement so that the Disclosing Party may seek a protective order or other
appropriate remedy or waive compliance with the provisions in this Agreement. The
Receiving Party may disclose Confidential Information of the Disclosing Party if it is
compelled by law to do so, provided the Receiving Party gives the Disclosing Party
prior written notice of that compelled disclosure (to the extent legally permitted) and
reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to
contest the disclosure. If the Receiving Party is compelled by law to disclose the
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Disclosing Party’s Confidential Information as part of a civil proceeding to which the
Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure,
the Disclosing Party will reimburse the Receiving Party for its reasonable cost of
compiling and providing secure access to the Confidential Information.
5.4. Remedies for Breach of Confidentiality. The Parties agree that any breach or
threatened breach of Section 5.0 by a Party could cause not only financial harm, but
also irreparable harm to the other Party; and that money damages may not provide an
adequate remedy for the harm. If a Party breaches or threatens to breach Section 5.0,
the other Party, in addition to any other rights and remedies it may have at law or in
equity, will be entitled to seek equitable relief, including, without limitation, an
injunction (without the necessity of posting any bond or surety) to restrain that
breach.
6.0 Data Protection and Information Security
6.1. Protection of Customer Data.
(a) Additionally, without limiting its obligations under Subsection 5.2, 1440 agrees
as follows:
(i) Except to the extent necessary to carry out 1440’s express obligations
under this Agreement, 1440 (A) cannot use Customer Data for any
purpose and (B) will not disclose any Customer Data to any person or
entity, including, but not limited to, any of 1440’s employees, agents, or
contractors.
(ii) 1440 can disclose Customer Data to a third-party if: (A) the disclosure is
so the third-party can help 1440 perform their duties under this
Agreement; (B) 1440 notifies Customer in writing of the disclosure; and
(C) 1440 enters into a confidentiality agreement with the third-party that
contains the same provisions in Section 5.0. Notwithstanding, 1440
remains liable for any failure of the third-party to comply with the
agreement.
(iii) 1440 will not modify Customer Data.
(b) If 1440 knows or reasonably believes that there has been any unauthorized
access, use, or disclosure (or attempted unauthorized access, use or disclosure)
to or of any Customer Data, (i) the occurrence of which arises out of any act or
omission of 1440 or (ii) while the Customer Data is in the possession, custody
or control of, 1440 or 1440’s employees or agents (collectively, a “Data
Security Breach”), 1440, at its sole cost and expense and without limiting
Customer’s rights and remedies in law or at equity, will take the following
actions:
(i) immediately notify Customer of the Data Security Breach;
(ii) promptly report to Customer the following information, as completely as
they are able: (A) a description of the affected Customer Data; (B) a
description of the facts relating to the Data Security Breach, including
without limitation, the date of the breach and the date of discovery of the
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breach, (C) the names of the individuals who committed or were involved
in the Data Security Breach, (D) the names of the unauthorized individuals
or entities to whom Customer Data has been disclosed, and (E) any other
information as Customer may reasonably request including, without
limitation, the information, data, and documentation required by Customer
to timely comply with applicable law;
(iii) take reasonable steps to remedy the circumstances that permitted the Data
Security Breach to occur, to prohibit further Data Security Breaches of
Customer Data, and provide Customer with notice thereof;
(iv) share with Customer the applicable results of any computer forensics
analysis of any Data Security Breach conducted by 1440 or any expert
retained by 1440;
(v) permit Customer, at Customer’s expense, to conduct an investigation of
the scope and content of any unauthorized access, during normal business
hours, upon prior written notice, and in a manner that does not unduly
interfere with 1440’s operations;
(vi) cooperate with Customer as reasonably necessary to facilitate compliance
with any applicable law with unauthorized access, use, or disclosure of
Customer Data; and
(vii) pay reasonable costs and expenses incurred by Customer in responding to
the Data Security Breach. Any notice sent concerning a Data Security
Breach will be mutually agreed upon by the Parties, that agreement not to
be unreasonably withheld, conditioned, or delayed.
6.2. Security. Parties have complied, and will continue to comply, with their respective
applicable obligations arising from the data protection legislation. Parties agrees to
maintain network and application security that, at a minimum, includes: network
firewall provisioning, intrusion detection, software and subsequent updates, upgrades,
and remains secure from those vulnerabilities. Likewise, Parties agree to maintain
network security that conforms to generally recognized industry standards and best
practices. The Parties further agree that all electronic transmission or exchange of
system and application data with the other, or any other parties expressly required
under an Order, takes place via secure means.
6.3. Sensitive Confidential Information. In addition to and without limiting Section 5.0
(Confidentiality), if, during performing Services for Customer, 1440 has access to, or
possession of, “Sensitive Confidential Information” (meaning Confidential
Information that includes (alone or among other Confidential Information) PII and
Cardholder Data) of Customer, 1440 will comply with all applicable laws and
regulations, including the payment card industry security standards, as it relates to the
access, use, disclosure and processing of the information. “Personally Identifiable
Information” or “PII” means information that reasonably can be used, either by itself
or along with other information, to identify, contact, or locate a single individual
person. “Cardholder Data” means the primary account number (or full magnetic strip)
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of a payment card (credit card, debit card, etc.) plus either the cardholder name,
expiration date, or the service code.
6.4. Audit Rights. Upon reasonable advance notice by Customer (and no more often than
once every 12 months, or more frequently if required to satisfy legal or regulatory
requirements), 1440 agrees to submit its data processing facilities or any locations
from which Customer’s Personal Data can be accessed for audit to verify compliance
with this Agreement, which audit will be carried out, with reasonable notice and
during regular business hours and under a duty of confidentiality, by Customer or by
a third-party appointed by Customer subject to the security and access guidelines
applicable to the facility and, where the facility is owned or managed by a third-party,
the consent of that third-party.
6.5. Details of Processing. The Parties agree that the type of Personal Data processed
under this Agreement, including the subject matter, duration, nature and purpose of
the processing, and the categories of data subjects, are as follows:
(a) Data subjects: The Personal Data concerns the following categories of data
subjects:
(i) Customer
(ii) Customer’s customers
(b) Categories of data:
(i) Publicly posted information. One example is, but not limited to, the name
published on product reviews along with the review
(c) Special Categories of data: N/A
(d) Processing operations: The Personal Data will be subject to the following basic
processing activities:
(i) Storage on Salesforce controlled by Customer.
(ii) Viewed and manipulated by 1440 on Customer’s Salesforce platform
(e) Duration: For the duration of Services
6.6. Data Controller and Processor.
(a) In respect of the Parties’ rights and obligations under this Agreement regarding
the Personal Data, the Parties hereby acknowledge and agree that Customer is
the Data Controller and 1440 is the Data Processor and accordingly 1440 agrees
that it processes all Personal Data under its obligations under this Subsection.
6.7. 1440 Warrants. 1440 warrants that it:
(a) only processes the Personal Data to provide Services and acts only under this
Agreement and Customer’s written instructions issued from time to time;
(b) implements appropriate technical and organizational measures to ensure a level
of security appropriate to the risks that are presented by the processing, in
particular protection against accidental or unlawful destruction, loss, alteration,
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unauthorized disclosure of, or access to Personal Data transmitted, stored or
otherwise processed under this Agreement;
(c) takes reasonable steps to ensure the reliability of any of its staff who will have
access to the Personal Data and ensure that anyone who accesses it will respect
and maintain all due confidentiality;
(d) does not engage any sub-processors in the performance of Services without the
prior written consent of Customer and otherwise comply with Section 6.0 at all
times;
(e) immediately notifies Customer of any actual or alleged incident of unauthorized
or accidental disclosure of or access to any Personal Data or other breach of this
Agreement by any of its staff, sub-processors, or any other identified or
unidentified third-party;
(f) where applicable in respect of any Personal Data processed under this
Agreement, provides full cooperation and assistance to Customer in ensuring
compliance with:
(i) Customer’s obligations to respond to requests from any data subject(s)
seeking to exercise its/their rights under any applicable data protection
legislation or contractual obligation, including by notifying Customer of
any written subject access requests 1440 receives relating to Customer’s
obligations under the data protection legislation; and
(ii) Customer’s obligations under any applicable data protection legislation or
contractual obligation: (A) ensure the security of the processing; (B) notify
the relevant supervisory authority, and any data subject(s), where relevant,
of any breaches relating to Personal Data; (C) carry out any data
protection impact assessments (“DPIA”) of the impact of the processing
on the protection of Personal Data; and (D) consult the relevant
supervisory authority before any processing where a DPIA indicates that
the processing would result in a high risk in the absence of measures taken
by Customer to mitigate the risk;
(iii) makes available to Customer all information necessary to demonstrate
compliance with the obligations set out in Subsection 6.7 and allow for
and contribute to any audits, including inspections, conducted by
Customer or another auditor mandated by Customer; and
(iv) at the request of Customer, deletes or returns to Customer all Personal
Data processed under this Agreement at the end of the Term.
6.8. Third-Party Providers. 1440 ensures that any person it engages to provide Services
on its behalf with this Agreement does so only on the basis of a written contract
which imposes on that person, terms equivalent to those imposed on the 1440 in
Section 6.0 (“Relevant Terms”). 1440 procures the performance by that person of the
Relevant Terms and is directly liable to Customer for any breach by that person of
any of the Relevant Terms.
7.0 WARRANTIES AND DISCLAIMERS
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7.1. Mutual Warranties. Each Party represents and warrants that (a) it has the legal power
to enter into this Agreement and (b) it will comply with all applicable laws.
7.2. 1440’s. 1440 represents and warrants that: (a) it will perform Services in a
professional and workman-like manner and (b) Services will conform in all material
respects to any published documentation relating to those Services and any functional
or performance requirements or specifications agreed to by the Parties in writing.
7.3. Disclaimer. Except as expressly provided in this Section, neither Party makes any
warranties of any kind, whether express, implied, statutory, or otherwise, and each
Party specifically disclaims all implied warranties, including any warranties of
merchantability or fitness for a particular purpose, to the maximum extent permitted
by applicable law.
(a) 1440 is not liable or responsible for unavailable Services caused by
Salesforce.com, eBay, Amazon.com, Google Apps, or any other third-party.
1440 will use commercially reasonable efforts to work with those third-parties
to minimize unavailability caused by them.
8.0 INDEMNIFICATION
8.1. Indemnification. Customer must defend 1440, and its officers, directors, employees,
Affiliates, stockholders, agents, successors, and assigns, against any claim made or
brought against 1440 by a third-party alleging that 1440’s authorized use of any
Customer Data hereunder infringes or misappropriates the intellectual property rights
of a third-party or violates applicable law, and must indemnify 1440 for any damages
finally awarded against, and for reasonable attorney’s fees incurred by, 1440
concerning that claim; provided, that 1440 (a) promptly give Customer written notice
of the claim; (b) gives Customer sole control of the defense and settlement of the
claim (provided that Customer may not settle any claim unless the settlement
unconditionally releases 1440 of all liability); and (c) provide to Customer all
reasonable assistance.
8.2. Exclusive Remedy. Subsection 8.1 (Indemnification) states the indemnifying Party’s
sole liability to, and the indemnified Party’s exclusive remedy against, the other Party
for any type of claim described in this Section.
9.0 LIMITATION OF LIABILITY
9.1. Exclusion of Consequential and Related Damages. Without limiting either Party’s
indemnification obligations under this Agreement, in no event will either party have
any liability to the other Party for any lost profits or revenues or for any indirect,
special, incidental, consequential, cover, or punitive damages however caused,
whether in contract, tort, or under any other theory of liability, and whether or not the
Party has been advised of the possibility of those damages. The foregoing disclaimer
does not apply to the extent prohibited by applicable law.
9.2. Salesforce Breach. Neither Party will be liable for breach of this Agreement if the
breach is caused by Salesforce.
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9.3. 1440’s total aggregate liability for all damages with any agreement cannot exceed the
total undisputed compensation paid for Services set forth for a period of 12 months
prior. This limitation will apply regardless of the form of action, whether in contract,
warranty, indemnity, contribution, tort, or otherwise.
10.0 TERM AND TERMINATION
10.1. Term of this Agreement. This Agreement commences on the Effective Date and
terminates as described below.
(a) A Party may terminate this Agreement and applicable Order for cause: (i) upon
30 days written notice to the other Party of a material breach if the breach
remains uncured at the expiration of that period, or (ii) if the other Party
becomes the subject of a petition in bankruptcy or any other proceeding relating
to insolvency, receivership, liquidation, or assignment for the benefit of
creditors which is not stated or dismissed within 30 days.
(b) The Term of this Agreement will terminate upon written notice by either Party
if there are no active Orders.
(c) The Term of this Agreement will apply to all applicable platforms and third-
parties required to perform Services.
10.2. Term of Services. The time period from the start and end date of provided Services
specified on an Order.
10.3. Automatic Renewal of Services. Except as otherwise specified in an Order, all
Services will automatically renew for an addition Term of Services equal to the
expiring Term of Services or at least one year (whichever is shorter), unless either
Party gives the other written notice of non-renewal at 45 days before the end of the
relevant Term of Services.
11.0 INSURANCE COVERAGE
11.1. During the Term of this Agreement, 1440 maintains the following insurance
coverage. Regarding claims-made policies, coverage will be maintained for at least an
additional two years after completion of all Services. The amounts as specified are
minimums only. The actual amounts above the minimums is determined by 1440. In
addition, for any Services that are authorized to be subcontracted, 1440 requires each
subcontractor to procure and maintain all insurance as outlined in this Section.
(a) Professional Errors & Omissions insurance covering financial losses suffered by
Customer due to error, omission, or negligence of 1440 including its employees
and agents in the performance of Services with a minimum per claim limit of at
least $1,000,000 and $5,000,000 in the aggregate.
(b) Technology errors and omissions insurance covering any failure of 1440’s
Deliverables or Services to perform as promised under this Agreement,
including, without limitation, (i) replacement or restoration of electronic data,
(ii) intellectual property endorsement, and (iii) cyber risk, privacy breach, and
network security damages and mitigation costs with limits of at least $1,000,000
per claim and combined annual aggregate liability limit of at least $1,000,000.
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(c) Commercial General Liability coverage including coverage for
Premises/Operations, Contractual Liability, Products/Completed Operations,
and Personal Injury and Advertising Injury, with limits of at least $1,000,000
per claim and $1,000,000 per occurrence. 1440 maintains Products/Completed
Operations coverage for a period of at least three years after completion of all
Services provided under this Agreement.
(d) Umbrella or Excess Liability coverage with limits of at least $1,000,000 per
claim and limits of at least $1,000,000 per occurrence.
(e) Workers’ Compensation Insurance for its employees under the statutory
requirements of the state where the work is being performed.
(f) Fidelity and computer crime insurance in an amount of at least $1,000,000 per
occurrence and in the aggregate, that insurance is to extend to losses 1440 or
Customer might suffer as a result of fraudulent or dishonest acts of 1440’s
employees, agents, or subcontractors in performing any or all of Services under
this Agreement. 1440 will ensure that the insurance covers its subcontractors.
(g) If 1440 will be using motor vehicles in the performance of Services, then
Automobile Liability insuring any auto, including hired autos, and non-owned
autos with limits of at least $1,000,000 per claim and $1,000,000 per
occurrence.
11.2. Each insurance policy is placed with an insurance company that has an A.M. Best’s
Rating of at least “A” and a policyholder surplus of at least $100,000,000.
11.3. Any Commercial General Liability policy and Umbrella or Excess Liability policy, is
endorsed to add Customer as an additional insured and contain a standard separation
of insured clause.
11.4. Each policy is endorsed to provide that the insurer will give Customer a minimum of
30 days prior written notice of cancellation and intent not to renew. If 1440 intends to
make a material change in policies from that listed in this Section, 1440 gives
Customer a minimum of 30 days prior written notice of the change, including without
limitation any material reduction in the policy limits of any policy or material
reduction in the scope of coverage.
11.5. Regarding policies written on a “claims-made” basis, that insurance provides for a
retroactive date not later than the commencement of Services under this Agreement.
1440 and any subcontractors will provide evidence of renewals of any claims made
policies each year, including for two years after the completion of Services. If an
event occurs, arising from the performance of this Agreement, which is covered under
the claims made policy, 1440 and any applicable subcontractor will promptly notify
the carrier and provide a copy of the notice of claim to Customer. Customer may,
with notice to 1440 and any applicable subcontractor, provide notice of claim under
any claims made policy if 1440 and any applicable subcontractor fail to do so within
a reasonable time. All the insurance required hereunder will be primary to any or all
other insurance coverage in effect for Customer.
11.6. Additionally, but not in place of, the indemnification obligations outlined in this
Agreement, it is the intent of the Parties that any claims against Customer arising out
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of this Agreement will be paid, up to the limits of liability, by the insurance policies
listed in this Section.
12.0 NOTICES, GOVERNING LAW AND JURISDICTION
12.1. Notices. All notices, requests, demands, and other communications required to or
permitted to be given under this Agreement will be in writing and are conclusively
deemed to have been delivered when: delivered by certified mail or in person, as set
forth below:
(a) If to 1440:
1440 LLC
1090 Center Drive
Parc City, UT 84098
(b) If to Customer:
___________________________________________
___________________________________________
_____________________________________________
12.2. Agreement to Governing Law. This Agreement and any claims, controversies, or
disputes arising out of or related to this Agreement is governed by and construed
under the laws of the state of Utah, and the obligations, rights, and remedies of the
Parties hereunder are determined under those laws.
12.3. Waiver of Jury Trial. Each Party hereby waives any right to jury trial concerning any
action or litigation in any way arising out of or related to this Agreement.
13.0 GENERAL PROVISIONS
13.1. Relationship of the Parties. The Parties are independent contractors. This Agreement
does not create a partnership, franchise, joint venture, agency, fiduciary, or
employment relationship between the Parties.
13.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this
Agreement.
13.3. Force Majeure. Neither 1440 nor Customer will be held liable for failure of or delay
in performing its obligations under this Agreement if the failure or delay is the result
of an act of God, such as earthquake, hurricane, tornado, flooding, or other natural
disaster, or in the case of war, action of foreign enemies, terrorist activities, labor
dispute or strike, government sanction, blockage, embargo, or failure of electrical
service. The non-performing Party must make every reasonable attempt to minimize
delay of performance. If Force Majeure continues longer than 120 days, either Party
may terminate this Agreement.
13.4. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising
any right under this Agreement constitutes a waiver of that right. Other than as
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expressly stated in this Agreement, the remedies provided in this agreement are added
to, and not exclusive of, any other remedies of a party at law or in equity.
13.5. Severability. If any provision of this Agreement is held by a court of competent
jurisdiction to be contrary to law, the provision is modified by the court and
interpreted so as best to accomplish the objectives of the original provision to the
fullest extent permitted by law, and the remaining provisions of this Agreement
remains in effect.
13.6. Surviving Provisions. Sections: 3.0 (Payment and Fees for Services), 4.0 (Proprietary
Rights), 5.0 (Confidentiality), 6.0 (Information Security and Data Protections), 7.0
(Warranties and Disclaimers), 8.0 (Indemnification), 9.0 (Limitation of Liability),
12.0 (Notices, Governing Law and Jurisdiction), and 13.0 (General Provisions)
survive any termination or expiration of this Agreement or Order.
13.7. Assignment. Neither Party may assign any of its rights or obligations hereunder,
whether by operation of law or otherwise, without the prior written consent of the
other Party (not to be unreasonably withheld). However, either Party may assign this
Agreement in its entirety, without consent of the other Party, to its Affiliate or with a
merger, acquisition, corporate reorganization, or sale of all or substantially all of its
assets not involving a direct competitor of the other Party. A Party’s sole remedy for
any purported assignment by the other Party in breach of this paragraph, at the non-
assigning Party’s election, is termination of this Agreement upon written notice to the
assigning Party. Subject to this Subsection, this Agreement binds and inures to the
benefit of the Parties, their respective successors, and permitted assigns.
13.8. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all
Orders executed under this Agreement, constitutes the entire agreement between the
Parties and supersedes all prior and contemporaneous agreements, proposals, or
representations, written or oral, concerning its subject matter. No modification,
amendment, or waiver of any provision of this Agreement is effective unless in
writing and signed by the Party against whom the modification, amendment or waiver
is to be asserted. However, to the extent of any conflict or inconsistency between the
provisions of this Agreement and any exhibit or addendum hereto or any Order, the
terms of that exhibit, addendum, or Order supersede.
13.9. Foreign Corrupt Practices Act. 1440 complies with all applicable anti-corruption
laws, including, without limitation, the Canadian OECD Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions, the UK
Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977, and will not pay or
give, offer or promise to pay or give, or authorize the promise, payment or giving
directly or indirectly of any monies or anything of value to any person or firm,
including, but not limited to, those employed by or acting for or on behalf of any
governmental customer, any government official or employee, any political party, any
employee of any political party, any member of a ruling or royal family, or any
candidate for political office to induce or reward any favorable action in any matter
related to the subject of this Agreement or the business of Licensee.
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13.10. Attorneys’ Fees and Costs. If any legal or other action is necessary to enforce this
Agreement, the prevailing Party is entitled to its costs and expenses, including
reasonable attorney’s fees.
13.11. Arbitration of Disputes. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, will be settled by arbitration administered by the
American Arbitration Association under its Commercial Arbitration Rules, and
judgment on the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof.
13.12. Non-Solicitation. During the Term of this Agreement, and for a period of 12
months following the termination of this Agreement, the Parties, nor any of the
Parties’ current or future employees, will not actively solicit for employment those
employees or subcontractor employees of the other. However, this restriction does not
apply to employees or ex-employees who respond to and are hired through a general
job posting or public advertisement made in the ordinary course of business.
13.13. Publicity. 1440 will not, without Customer’s prior written approval, release any
publicity, including press releases, advertisements, news or web releases,
announcements, customer lists that include any name or trademark of Customer, or
any other form of public communication that relate to Services in this Agreement
(including any use of third-party platforms), 1440’s relationship with Customer or
this Agreement, or denial or confirmation of it.
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IN WITNESS WHEREOF, the Parties, by their respective authorized signatories, have duly
executed this Agreement as of the Effective Date.
1440 LLC _____________________________________
[Customer]
By: ____________________________ By: _________________________________
Name: _________________________ Name: _______________________________
Its: ____________________________ Its: _________________________________
Date: __________________________ Date: ________________________________
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