IMPORTANT- READ CAREFULLY:
YOUR PURCHASE AND USE OF SERVICES IS CONDITIONED UPON YOUR COMPLIANCE WITH AND ACCEPTANCE OF THIS AGREEMENT.
This Service Agreement (the “Agreement”) governs the purchase and use of Salelytics, LLC’s (“Provider”) services (as defined below) (the “Provider Services”). Services may be purchased by: (a) executing a work order or statement of work or purchase order (for purposes of this Agreement each shall be referred to as an “SOW”); or (b) using the Services. The individual or legal entity executing an SOW or opening an account for Services under this Agreement shall be referred to as “you,” “your” or “Client” in this Agreement and the other party who executes the SOW or provides the Services shall be referred to as “we,” “us” or “Provider” in this Agreement. Each SOW shall govern and control in case of conflict with the Agreement, and in conjunction with this Agreement shall form a separate agreement between the parties that execute the applicable SOW. Please read this Agreement carefully before executing an SOW, accessing, or otherwise using the Services. By executing an SOW, accessing, or otherwise using the Services you agree to be bound by this Agreement. Please maintain a copy for your records. If you do not agree with the terms of this Agreement, do not use the Services.
2. Service Description
This Agreement governs your use of Provider’s automated and/or live agent call services (such as B2B Customized Sales Solution, Full Account Management, Retail Sales Coverage, Lead Management, Sole Territory Coverage, Team Sell, business process services or other related services set forth in the applicable SOW between you and Provider (the “Services”), or used by you if no such SOW has been executed. Client agrees to provide information reasonably required by Provider to perform Services, including as applicable, but not limited to: hiring profiles; scripts; message content, recipient contacting information and lists, database of accounts or leads, program content and materials; Client or third party databases; forecasts; current process performance statistics; Client or third party software, hardware, systems, routing and network addresses and configurations; and key contacts for problem escalation (collectively the “Client Materials”). You agree that our obligation to provide Services is conditioned upon you providing all information and assistance reasonably required to perform the Services. Provider will provide standard reports electronically on a monthly basis detailing the results of each Program. The Client Materials shall be provided in a format as agreed upon by the parties and should include key contact information.
This Agreement will continue so long as the Services are, accessed, or otherwise used. Each SOW may specify its duration (each an “SOW Term”) and/or each SOW may further specify one or more services purchased under the SOW.
All SOW’s shall automatically renew for yearly periods unless either party terminates the specific SOW in writing ninety (90) days prior to the expiration of the applicable SOW, which termination will be effective at the expiration of the applicable SOW.
5. Termination for Cause
Any SOW may be terminated as follows: (a) by either party upon the failure by the other party to perform any material obligation related to such SOW that is not cured within thirty (30) days after receipt of written notice and demand for cure from the affected party; (b) by either party upon the violation by the other party of any applicable state or federal law, statute, rule or regulation in relation to its performance of the SOW; provided that such right to terminate shall only be available for 30 days from the time that the non-violating party is aware or should have been aware of such breach; or (c) by Provider, upon fourteen (14) days written notice if undisputed payments are in arrears. In addition, Provider may take any or all of the following actions any time undisputed payments are more than fourteen (14) days in arrears: (i) suspend the Services; or (ii) withhold data, materials or reports.
6. Effect of Termination
The termination of any SOW shall not otherwise affect the Term of this Agreement or any other SOW. If you terminate any SOW for cause: (a) you will pay for all Services rendered up to the date of termination; (b) Provider will reimburse you for any amounts prepaid by you for Services not rendered; and (c) you shall be relieved of any future payments due under such SOW. Otherwise, upon any termination of this Agreement or any SOW, as applicable, you agree to pay for: (a) all Services rendered up to the date of termination; and (b) any future amounts due under this Agreement or the SOW for the entire SOW Term or SOW Term, as applicable, including the current renewal thereof, if applicable. The parties agree and acknowledge that Provider has made pricing concessions based on the provisions agreed to herein and that any shortfall payments due are a fair approximation of the damages that would be caused to Provider and do not constitute a penalty.
7. Payments, Charges and Minimum Commitment
With respect to Provider Services, you agree to pay in advance for all training related to Provider Services as fully set forth in the SOW which will be invoiced as incurred. Billing for electronic transmission of reports will be waived by Provider. If Client desires to utilize a rebate check Program, an additional processing charge of $1.95 will be invoiced to Client for each check issued. The aggregate face value of rebate checks must be remitted to Provider by Client prior to mailing checks. No rebate checks will be issued without prior approval of Client. Printing costs and / or mailing costs are to be reimbursed to Provider by Client at Provider costs plus 10% handling. Fax charges will be invoiced to Client at $.25 per page. EDI line charges / access fees, if any are to be reimbursed to Provider by Client at Provider's cost. Requests for ad hoc reports may require database programming. Database programming costs shall be charged to Client at the rate of $150.00 per hour. Client shall reimburse Provider for all reasonable and out-of-pocket travel related expenses incurred by Provider when visiting selected Accounts and attending Client functions, including product training sessions. Client must approve all such expenses in advance in writing. When travel has been completed, all expenses will be documented by Provider with appropriate receipts. If Client wishes to offer bonus or incentive money to Provider Associate(s), funds will be handled by Provider and processed through Provider payroll. Client agrees to pay for all such bonus or incentive amounts in addition to any related employment or payroll taxes, fees or surcharges that Provider is required to pay on such bonus or incentive amounts. In the event it is necessary to change the scope of the Client Program (encompass a larger account base, include another focus, respond to a new direction or need in the sales effort), upon mutual agreement of both parties, the SOW will be amended and additional costs will be determined at that time and agreed to in writing prior to such changes being effective.
At the end of each month during the SOW term, Client agrees to full payment of the shortfall resulting from Client’s failure to meet the minimum commitment (if included in the SOW) and any such shortfall shall appear as a line item on Client’s invoice. Only monthly fees for Sales Associates and Sales Managers in accordance with Schedule I billed to Client will go towards the minimum commitment. Client shall not be responsible for any shortfall resulting from Provider’s failure to staff to the minimum commitment. Upon any termination of this SOW for any reason other than a termination for cause by Client, Client shall pay the shortfall between the fees actually paid and the minimum commitment fees due for the SOW Term within thirty (30) days of such termination. The parties agree and acknowledge that Provider has made pricing concessions based on the provisions agreed to in this SOW and that any shortfall payments due under this SOW are a fair approximation of the damages that would be caused to Provider and does not constitute a penalty.
Provider agrees to staff each Program with the number of associates set forth in the SOW and You agree to pay Provider for those associates. Excluding a Termination for Cause, You agree to give Provider a minimum of forty-five (45) days or as otherwise mutually agreed to amount of time agreed to by the Parties in writing for any requested changes in the number of associates on Your Programs. Client acknowledges and understands that if Client requests an increase in staffing, recruiting and training lead times will affect the timing of supplying additional Associates. If, in the event the requested changes are more or less than five percent (5%) of overall staffing, Provider may, at its sole option, determine the amount of time needed to meet such requested change.
You agree to make payment of all invoices under this Agreement within thirty (30) days from the date of invoice. Unpaid invoices will be subject to a monthly service charge which is the lesser of one and one-half percent (1½%) per month, or the highest rate allowed by law. You must notify Provider of any disputed charges within thirty (30) days from the date of the invoice, otherwise you will be deemed to agree to such charges and waive all such claims and Provider will not be subject to making adjustments to charges or invoices. Rates for the Services are set forth in the SOW. Provider may increase the rates on each twelve (12) month anniversary of the applicable SOW by the CPI-U for all items, not seasonally adjusted, for Midwestern Size Class B/C cities (CPI) for the same period.
10. Unpaid Invoices
In the event an invoice is not paid in full, for any reason, within thirty (30) days from the invoice date, Provider shall have the right to suspend all or any portion of the Services until such time as all invoices and applicable late fees have been paid. Following such payment, Provider may reinstate Services only upon satisfactory assurance of Your ability to pay for Services, including modified payment terms such as prepayment. Such suspension shall not relieve you of any payment liability. You agree to reimburse Provider for any costs, expenses, or fees expended by Provider in connection with any collection efforts against you, including reasonable internal and outside attorneys’ fees.
11. Taxes, Fees and Surcharges
In addition to the rates for the Services, you shall pay all applicable fees, duties, tolls, administrative assessments, surcharges, or taxes now or hereafter attributable to the Services. On each twelve (12) month anniversary of the effective date of any SOW, you agree that the pricing shall be increased by the CPI-U for all items, not seasonally adjusted, for Midwestern Size Class B/C cities (CPI) (Table 10), for the same period and such rate increases shall appear on Client’s invoices in accordance with the applicable SOW.
Subject to your compliance with the terms and conditions of this Agreement, Provider hereby grants you a limited, non-exclusive, non-transferable license during the applicable SOW Term to use the Services (“Licensed Materials”). Except as specifically set forth herein, Provider or its suppliers retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Services, including without limitation all technology, any Provider owned telephone numbers, web addresses, software, or systems relating to the Services. You agree not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of any software related to the Services. Other than using the Services where you are an active participant, you may not resell the Services or otherwise generate income from the Services (from an ASP model or otherwise).
13. Compliance, Calling Lists and Do Not Call Obligations
You represent and warrant that: all representations to be made by Provider as a part of the Services and the content, timing, leads, and nature of all call Programs (including promotions and advertising to induce calls to Your programs) will be in compliance with all laws, rules, and regulations, including maintenance of Your internal Do Not Call list. You further represent and warrant that prior to directing Provider to use any call lists (the “Records”), You have scrubbed the Records against your own internal Do Not Call list, if applicable. You are solely responsible for the information or content submitted, posted, transmitted or made available through your use of the Services. You may use the Services to transmit personalized wording, images and language (“Messages”) or direct Provider to make contacts via any channel to, or with, Your customers, partners, or other recipients (the “Recipients”). You are responsible for maintaining the confidentiality of your accounts and owner numbers and if applicable, any necessary codes, passwords and personal identification numbers used in conjunction with the Services and for all uses of the Services in association with your accounts whether or not authorized by you including unintended usage due to holidays, daylight savings, computer clock errors or similar circumstances. You acknowledge and agree that Provider does not control nor monitor your Messages nor guarantee the accuracy, integrity, security or quality of such Messages. Use of recording or taping any use of the Services by you may subject you to laws or regulations and you are solely responsible for and obligated to provide any required notification to those being recorded or taped. Further, You represent and warrant that Provider’s use of the Messages as directed shall not violate the rights of any third party or any law, rules or regulation.
For the Client Materials under an SOW defined as Business to Business accounts (“B2B”), Provider will not scrub the Records against the National Do Not Call Registry, any state Do Not Call list, or the DMA Telephone Preference Service List (the “DNC Registries”), unless applicable. Provider will scrub all Records against Provider’s internal Do Not Call list. Only in the event an automatic dialing system is used, Provider will scrub against the DMA Wireless Block Identifier and the Neustar Wireless Do Not Call lists (“Wireless Lists”) unless directed otherwise, in writing, by You. For any leads that You direct Provider not to scrub against the Wireless Lists, You represent and warrant (a) You have obtained any required prior express consent or prior express written consent to contact each wireless phone number delivered by You to Provider in connection with the provision of contacts made using an automatic telephone dialing system; and (b) the intended contact recipient is the current subscriber to, or non-subscriber customary user of the wireless phone number.
In the event Provider reasonably believes You may not have complied with these provisions, Provider may, at its option, scrub all numbers against the Wireless Lists or not provide Services. If required by law or if so directed by You, Provider will provide You with a listing of all contacts who would like to have their name removed from future outbound solicitations. In addition to any other indemnification obligations, You shall indemnify, defend and hold Provider and its officers, directors, employees and agents harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from Your breach of any representation and warranty set forth above.
14. Privacy and Data Use
In the course of performing services on behalf of its clients, Provider obtains and develops knowledge and information that Provider owns related to the business, relationships and needs of prospects and customers, including contact names, competitive information and buying information (“Marketing Information”). The parties recognize that Provider utilizes such Marketing Information to most effectively deploy and perform the Services for Client hereunder. You acknowledge that Provider may develop or obtain further Marketing Information in the course performing the Services. For the avoidance of doubt, Marketing Information shall not include: (a) any of Your product pricing or product offerings or product quantities ordered (“Client Product Information”); or (b) Protected Health Information (“PHI”) or Nonpublic Personal Information (“NPI”) (as PHI and NPI are defined in the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (45 C.F.R. Parts 160-164) and the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.)) of Your customers and prospects. Client Product Information and PHI and NPI of Your customers and prospects, if any, and the Client Materials shall be Your Confidential Information and solely owned by You. Provider shall only use such Client Product Information, PHI and NPI at the direction of You in performing the Services on your behalf.
16. Export and Import Control Laws and Regulations
You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services and any related software. Without limiting the foregoing, you acknowledge that the Services and any related software are or may be an “encryption item” subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. You agree not to export or re-export the Services or any related software in any form in violation of the export laws of the United States or any foreign jurisdiction.
Each party represents and warrants to the other that: (a) its execution and performance of this Agreement and the applicable SOW will not violate any provision of law, rule, regulation to which such party is subject; and (b) such party will comply with all laws, rules and regulations pursuant to which such party conducts its business. Each party represents and warrants to the other that: (a) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the applicable SOW; (b) the execution, delivery and performance of this Agreement and the applicable SOW have been duly authorized by such party; (c) no approval, authorization or consent of any governmental or regulatory authority is required to be obtained by it in order for it to enter into and perform its obligations under this Agreement and the applicable SOW; and (d) the signatory to this Agreement and the applicable SOW possesses all necessary authority to enter into the Agreement and applicable SOW. Upon request, you agree to provide reasonable proof of compliance with the provisions set forth in this Agreement. You agree to immediately notify us of any actual or potential breach of this Agreement by you. You acknowledge and agree that: (a) Provider does not provide content and Client shall be solely responsible for all content and Messages and for providing any list of names, numbers or addresses for Client to utilize in sending Messages; and (b) Provider has not and is not expected to provide Client with any analysis, interpretation or advice regarding the compliance of any aspect of Client’s Messages, Client’s content, campaigns or programs with any third party rights or laws, rules, or regulations. Client agrees that Provider may in its sole discretion suspend or terminate provision of any or all of the Services without liability or penalty at any time in the event that: (a) Provider is obliged to comply with an order, instruction, directive or request of a governmental body or network operator which necessitates that it do so; (b) Provider discovers an actual or potential breach or where Provider believes that Client has not so complied with its obligations hereunder; or (c) one or more of the network operators upon which the provision of Services hereunder is dependent suspends its provision of those services to Provider. You agree that all use by you of the Services shall comply with applicable laws.
18. Investigation and Enforcement of the AgreementAll users of the Services must adhere to the terms of this Agreement. We have the right, but are not obligated, to strictly enforce this Agreement through self-help, active investigation, litigation and prosecution. We may also access and disclose any information (including transactional information) related to your access and use of our Website or Network for any lawful reason, including but not limited to: (1) responding to emergencies; (2) complying with law, rule or regulation (e.g., a lawful subpoena); (3) protecting our rights or property and those of our customers; or (4) protecting users of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services.
19. Limited Warranty
ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY. YOU UNDERSTAND AND AGREE THAT PROVIDER’S SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. PROVIDER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. PROVIDER MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH PROVIDER OR THE SERVICES, OR THAT THE SERVICES WILL MEET ANY OF YOUR REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF PROVIDER’S SERVICES ARE AT YOUR SOLE RISK. PROVIDER IS NOT LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND PROVIDER’S REASONABLE CONTROL.
20. Limitation of Liability
EXCEPT FOR PAYMENT OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER OR ITS SUPPLIERS BE LIABLE FOR INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGE FOR LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COST OF COVER OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF, OR RESULTING FROM THE SERVICES OR THIS AGREEMENT WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT MAY NOT BE EXCLUDED BY LAW AND PAYMENT OBLIGATIONS, YOU AGREE THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY YOU IN REASONABLE RELIANCE, UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT YOU ACTUALLY PAID FOR THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY).
You shall indemnify, defend and hold Provider and its officers, directors and employees harmless from any and all third-party claims, actions, suits, proceedings, costs, expenses, liabilities, and damages (including punitive, treble and enhanced damages and reasonable attorneys’ fees) arising out of, connected with or resulting from: (i) a breach by You of any term of this Agreement; (ii) the Client Materials; or (iii) a claim by any customer of Yours or any party called on Your or your customer’s behalf relating to any defect in any product or service offered by You or any of its clients; or (iii) any actual or alleged infringement or violation by you (including without limitation, any person accessing the Services using your Client Materials) of any intellectual property, privacy or other right of any person or entity or (iv) information or content that you submit, post, transmit or make available through the Services. Provider shall indemnify, defend and hold You and its officers, directors and employees harmless from any and all third-party claims, actions, suits, proceedings, costs, expenses, liabilities, and damages (including punitive, treble and enhanced damages and reasonable attorneys’ fees) which arise out of or result from a breach by Provider of any term of this Agreement.
Subject to the requirements of this section, Provider will defend, at its expense, a third-party action, suit, or proceeding against You (“Claim”) to the extent such Claim is based upon an allegation that the Licensed Materials, as of their delivery date under this Agreement, infringe a valid United States patent. Provider makes no representations, provides no warranties, and assumes no responsibilities for the use, sale, placement, or other disposition by You of products incorporating the Licensed Materials under this Agreement. Provider’s liability to You will not extend to infringement caused by use of the Licensed Materials as an element of a patented product or process. You will hold Provider and its officers, directors, employees, and agents harmless against all liabilities, demands, damages, expenses, or losses arising out of or resulting from any misuse of the Licensed Materials.
The party claiming indemnification shall: (i) provide prompt written notice to the indemnifying party of any claim in respect of which the indemnity may apply; (ii) relinquish control of the defense of the claim to the indemnifying party; and (iii) provide the indemnifying party with all assistance reasonably requested in defense of the claim. The indemnifying party shall be entitled to settle any claim without the written consent of the indemnified party so long as such settlement only involves the payment of money by the indemnifying party and in no way affects any rights of the indemnified party.
In order to be indemnified to the extent stated, You must operate within the instructions and technical limits provided or approved by Provider. Provider shall have no indemnity obligation for (1) Provider-furnished licensed materials that have been used with or in combination with hardware or software not furnished by Provider; and (2) any claim or any portion of any claim that arises from Your reckless, wanton, wrongful, or otherwise negligent acts.
Each party agrees to hold all Confidential Information of the other party in strict confidence. Confidential Information shall mean information that derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and marked as Confidential (“Confidential Information”). The parties agree that all Confidential Information shall be disclosed only to those employees or representatives on a need-to-know basis and who agree to be bound by these confidentiality restrictions. This confidentiality obligation shall not apply to any information (i) independently developed by a party, (ii) generally available to the public other than by a party’s breach of this Agreement, (iii) already known by a party at time of disclosure to that party, or (iv) rightfully received from a third party without restriction on disclosure or an obligation of confidentiality running directly or indirectly to the other party. Nothing shall prevent or prohibit the receiving party from providing access to Confidential Information as may be required by law, rule or regulation, provided that the receiving party gives as much notice as is reasonably practical and provides reasonable assistance to the disclosing party in challenging or modifying the disclosure so required. Neither party shall have any rights in the other party’s Confidential Information and shall return or destroy all such Confidential Information upon the termination of the applicable SOW or the request of the discloser. Notwithstanding the foregoing, the parties acknowledge that recipient shall not be required to return to discloser or destroy those copies of Information residing on recipient’s backup, disaster recovery or business continuity systems and the obligations hereunder with respect to such Confidential Information shall survive until such Information is destroyed.
23. Third Party Services
All access and use of any third party Services is governed by the terms and conditions set forth from time to time by such third party provider and such terms and conditions are incorporated herein by reference.
If any part of this Agreement is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the allocation of risks, and the remainder of the Agreement will continue in effect. If any provision(s) is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Provider’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by Provider in a non-electronic writing manually signed by a duly authorized representative of Provider.
Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. You and Provider are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. The parties confirm that they wish to have this Agreement written in English only. You authorize Provider’s monitoring including recording of calls for the purposes of quality assurance and you further consent to Provider’s use of automatic dialing equipment to contact you. Provider’s performance of the Services is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Provider’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of Provider’s Website, the Services or information provided to or gathered by Provider with respect to such use. You may not assign this Agreement to any other person or entity without Provider’s prior written approval, but nothing restricts Provider’s ability to assign this Agreement or subcontract the Services hereunder.
26. Identification, Advertising & Publicity
Client agrees that it will not identify Provider as the provider of the Services to the media or any governmental, regulatory, or other official without prior notice to Provider and Provider’s prior consent, unless required by legal process, law, rule or regulation, in which case Client shall still notify Provider of such requirement. Except for materials already made public, neither party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this Agreement or SOWs, nor use the other party’s name or trademarks (or any variation thereof), without the other party’s prior written consent. Notwithstanding the foregoing, Provider may use Client’s name and trademarks in a list of customers, or in connection with written sales or promotional materials.
27. Governing Law; Exclusive Forum; Jurisdiction
You consent to the exclusive jurisdiction and venue of the courts sitting in Douglas County, Nebraska, USA with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any services provided by Provider. Regardless of Venue, this Agreement and all causes of action related to this Agreement or the Services will be governed by and construed in accordance with the laws of the state of Nebraska, USA, without giving effect to the conflict-of-laws principles thereof that would require application of the laws of a different state or jurisdiction. You agree to service of process by mail directed to your billing address. You waive all defenses including but not limited to sovereign immunity, lack of personal jurisdiction and forum non conveniens and expressly waive any right to bring suit or have any action heard in your local courts. You agree that any claim or cause of action arising out of or related to this Agreement must be commenced by you within one (1) year after the cause of action arose.
28. Force Majeure
Provider will not be responsible or liable for delays and/or defaults in its performance due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of god or of the public enemy; fire or explosion; flood; stability or availability of the Internet; the elements; telecommunication system failure; war; technology attacks, epidemic; acts of terrorism; riots; embargoes; quarantine; viruses; strikes; lockouts; disputes with workmen or their labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing.
29. Entire Agreement
This Agreement, in conjunction with the applicable SOW constitutes the entire agreement between the parties to such SOW with respect to the subject matter of this Agreement and the applicable SOW and supersede all prior agreements, discussions, proposals, representations or warranties, whether written or oral. You agree that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that you may now or later provide to Provider, will have no effect and that this Agreement is the only contract between Provider and you regarding the Services and may only be amended as set forth herein. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. A printed version of this Agreement and of any notice given to you in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. SOWs may be executed by fax, and/or in any number of counterparts, all of which shall together be considered an original and may be evidenced by a fax or scanned electronic (e.g. .pdf, .tif) copy.
30. Increased Cost of Services
Notwithstanding the terms of this Agreement or any SOW, if at any time Provider’s variable labor costs in providing the Services from a particular location increase by 5% or more (i) as a result of any law, regulation, order, arbitral or judicial award or negotiated agreement; or (ii) at the discretion of Provider provided (a) such increase is incurred within any thirty (30) day period and (b) Provider has given prior written notice to Client no less than thirty (30) days earlier that such increase is likely to occur, Client shall, within thirty (30) days of receipt of written notice of such cost increase from Provider under section (i) or (ii) above, either (x) execute an amendment to the applicable SOW to revise pricing to reflect such increased costs, (y) execute an amendment to the applicable SOW permitting Provider to provide the Services under the applicable SOW from one or more alternate locations, or (z) terminate the applicable SOW upon thirty (30) days written notice to Provider. In the event of a termination in accordance with the foregoing sentence, any transition assistance and ramp down provisions under the applicable SOW shall be reduced to a period no longer than sixty (60) days.
Without the prior written consent of the other party, during the applicable SOW Term and continuing through the first anniversary of the termination of the applicable SOW Term, neither party shall directly or indirectly, solicit or attempt to solicit for employment any employees or agents of the other party who are directly involved in carrying out the obligations of such party related to the Services. If any employee or agent of a party, as a result of active recruitment solicitation by the other party, becomes employed by such other party within the time periods defined above, such other party agrees to pay the party at the time of such employment an amount equal to seventy-five percent (75%) of the employee’s or agent’s estimated income during the first year of employment. This paragraph does not pertain to unsolicited individuals that voluntarily approach a party for employment or respond to general advertising.
32. Change Management
Either party may request changes or enhancements to the Services. In such event, the following procedure shall be followed by the parties (the “Change Policy”). The requesting party shall provide a written description of the change and the parties shall meet in good faith to discuss the change and any additional costs or other required terms and any such change shall only become effective upon mutual agreement on a change order or amendment. For the avoidance of doubt, if the Agreement or an SOW otherwise allows either party to unilaterally alter the Services or any policies, rules or procedures applicable to this Agreement or the SOW, either party may implement the Change Policy prior to any such changes becoming effective or binding if such unilateral change will cause time or cost impact to such party.
Any notice to be provided shall be in writing and shall be deemed given: (a) if by hand delivery, upon receipt thereof, (b) if mailed, three (3) days after deposit in the United States mail, postage prepaid, certified mail return receipt requested, or (c) if by next day delivery service, upon such delivery, or (d) if by facsimile transmission, upon receipt of such transmission, to the addresses or facsimile numbers set forth below the signature block or to such other addresses or facsimile numbers as either party may designate from time to time by written notice to the other party hereto.
Provider may, at any time, amend the provisions of this Agreement. Any amendment proposed by you may only be accepted by Provider in a non-electronic writing manually signed by authorized representatives of the parties. Notwithstanding anything in this Section to the contrary, if Provider posts amended terms on its Website, such terms will automatically become effective ten (10) days after they are posted on the Website. By using the Services after such revised terms are posted, you agree to be bound by any such amended provisions. Therefore, you agree to periodically visit the Website to examine the then-current Agreement.
Revised: May 15, 2019
Effective January 1, 2020
Salelytics values the privacy of our customers and any individual who accesses or uses the Salelytics website, products, and services (collectively, the “Services”). Your privacy is an important factor Salelytics considers in the development of each of our products and services. This Privacy Statement explains generally how we receive Personal Information about you, and what we do with that Personal Information once we have it.
What do we mean by “Personal Information”?
FFor us, “Personal Information” means information or data that relates to an identified or identifiable individual. “Sensitive Personal Information” is a subset of Personal Information and is data about children, financial information, health information (including PHI as defined by the Health Insurance Portability and Accountability Act), Social Security or other national identification number, racial or ethnic origin, political opinions, religious beliefs, trade union membership, sex life, criminal convictions, and precise geolocation data.
What type of Personal Information is collected?
We may collect data, including Personal Information, about you as you use services and interact with us. This information may include name, address, email address, IP address or phone number. If we link other data with your Personal Information, we will treat that linked data as Personal Information.
Please understand, in addition to collecting Personal Information, Salelytics may also gather information that does not personally identify you regarding your use of the Salelytics services (“Anonymous Information”). We may use the Anonymous Information we collect regarding your use of services to measure the effectiveness of our marketing efforts, for business to business sales and marketing, for improving the Services we offer to you, or to improve the Salelytics website. Generally, you will not be aware when we collect such Anonymous Information. It may be collected in various ways, such as through traffic data or direct surveys of our customers and may entail the use of, among other things, cookies, IP addresses, or other numeric codes used to identify the computer or other device used to access the Salelytics website.
How do we receive Personal Information about you?
We learn Personal Information about you when:
You give it to us directly (e.g., when you choose to contact us); If you are under 13, we don’t want your Personal Information, and you must not provide it to us. If you are a parent and believe your child who is under 13 has provided us with Personal Information without your express consent, please contact us to have your child’s information removed.
By providing your Personal Information, you opt-in and consent to its collection, use, disclosure, sharing, and transfer as described in this Privacy Statement.
What do we do with your Personal Information once we have it?
When you give us Personal Information, we will use it in the ways for which you’ve given us permission, or ways in which our clients who provided us the Personal Information instruct. Generally, we use your Personal Information to help us provide and improve our products and services for you and our clients with which you have a business relationship.
We may use the Personal Information to enforce our agreements with you, prevent fraud and other prohibited or illegal activities, for other legally permissible purposes and generally to ensure that we comply with applicable laws and prevent or detect use or abuse of our services.
Salelytics may also use your Personal Information to create anonymous data records or aggregations of data, to perform statistical analyses and for other purposes, by omitting or removing information that makes the data personally identifiable to you.
How long will we retain Personal Information?
We will retain your Personal Information only as long as needed to fulfill the purposes for which it was collected or as required by law. Your information will be deleted, anonymized or pseudonymized once it is no longer needed to comply with our business requirements, legal obligations, resolve disputes, protect our assets, or enforce our agreements.
When do we share your Personal Information with others?
We will/may share your Personal Information with others:
How do we protect your Personal Information?
We are committed to protecting your Personal Information once we have it. We implement industry standard physical, administrative and technical security measures. If, despite these efforts, we learn of a security breach involving your Personal Information, when required by law or contractual obligations, we’ll notify you or our client so appropriate protective steps can be taken. Salelytics is not responsible for unauthorized access to such Personal Information by hackers or others that obtain access through illegal measures in the absence of negligence on the part of Salelytics.
How can you protect your Personal Information?
Electronic communication (e.g., email, online chat or instant messaging, etc.) you send to us may not be secure unless we advise you in advance that security measures will be in place prior to you transmitting the information. For this reason, we ask you do not send Personal Information such as financial information, social security numbers or passwords to us through unsecured electronic communication. Users should also take care with how they handle and disclose their Personal Information. Please refer to the Federal Trade Commission’s Web site at http://www.ftc.gov/bcp/menus/consumer/data.shtm for information about how to protect yourself against identity theft.
How do you keep my healthcare information private?
Salelytics is required by law to maintain the privacy of “protected health information.” Please follow this link to Salelytics’s HIPAA Privacy Notice.
What about cookies and other tracking technology?
A cookie is a small file, typically of letters and numbers, downloaded onto a device when the user accesses certain websites. Cookies can make the web more useful by storing information about your preferences for a particular website or a service. Cookies in and of themselves do not personally identify users, although they do identify a user’s computer.
Cookies are typically classified as either session Cookies or persistent Cookies depending on whether they expire at the end of a browser session (from when a user opens the browser window to when they exit the browser) or they can be stored for longer.
How do you handle my “Do Not Track” browser settings?
Salelytics does not track the non-Salelytics website activity of any internet user with Do Not Track browser settings engaged.
Does Salelytics use any other tracking technology?
Salelytics employs a software technology called transparent images to help us better manage content on our site by informing us what content is effective. We use extremely small, transparent images with a unique identifier, similar in function to cookies, used to track the online movements of Web users. The main difference between the two is transparent images are invisible on the page and are very small, about the size of the period at the end of this sentence. In some instances, transparent images are tied to users’ personally identifiable information. In particular, we use transparent images in our HTML-based e-mails to let us know which e-mails have been opened by the recipients. This allows us to gauge the effectiveness of certain communications. Users may opt out of these e-mails by replying to the unsubscribe link at the end of the e-mail message.
How does Salelytics ensure compliance with legal obligations?
In connection with the Services, and if applicable, you and Salelytics shall at all times ensure compliance with any privacy and data protection laws including those in the United States (including but not limited to the Gramm-Leach-Bliley Financial Services Modernization Act, the Health Insurance Portability and Accountability Act and the Fair Credit Reporting Act.
What if we change this Privacy Statement?
We may need to change this Statement and our notices. The updates will be posted online. If the changes are substantive, we will announce the update through Salelytics’s websites. Your continued use of the product or service after the effective date of such changes constitutes your acceptance of such changes. To make your review more convenient, we will post an effective date at the top of the page.
How to Contact Us?
If you want to make a correction to your Personal Information, or you have any questions about our privacy statement, please contact the legal department at via this link.
You may also reach us by emailing Privacy-Request@salelytics.com, or by mail, we can be contacted at:
Allison K. Gagnon, Director, Contract Management
1111 E. South River Street
Appleton, WI. 54915
Salelytics Code of Ethical Business Conduct
This Code of Ethical Business Conduct (“Code”) is intended as an overview of Salelytics guiding principles and not as a restatement of Salelytics policies and procedures.
Salelytics reputation as an ethical company is essential to our success. Our reputation needs to be managed and developed with the same care we extend to our clients. In carrying out the business of Salelytics, we deal with clients, vendors, community leaders, the press and the general public. It is essential all of our dealings be legal and above reproach, and must not, in any way, compromise Salelytics interests, its policies or its reputation for the highest standards of business ethics.
We believe Salelytics directors, officers and employees should disclose any activity that may have the appearance of being unethical. In so doing, not only can we take appropriate disciplinary or legal action, but we may be able to take steps to prevent the situation that gives rise to the questioned activity.
Merely operating within the law is just the beginning of the ethical conduct we insist upon and expect. The following is a broad statement of Salelytics expectations regarding legal and ethical conduct. This statement is intended to be interpreted in the spirit of its intent and not literally, as it is virtually impossible to address every situation or condition that may arise.
In the event of any conflict between the Code and the certificate of incorporation or bylaws of the Company, including, without limitation, provisions related to business opportunities presented to members of the Board of Directors, the provisions set forth in the certificate of incorporation or bylaws, as applicable, shall control.
Each director and officer should be aware of the ethical practices of each of the people he or she manages. We must maintain an attitude within Salelytics unethical actions or the appearance of unethical actions are not acceptable. This Code cannot and is not intended to cover every applicable law or provide answers to all questions that might arise; for that we must rely on each person’s good sense of what is right, including a sense of when it is proper to seek guidance from others on the appropriate course of conduct.
Conflict of Interest:
All directors, officers and employees of Salelytics are expected to avoid any activity, investment, interest or association which interferes with or is reasonably likely to interfere with the independent exercise of his or her judgment when it is related to Salelytics interests. Directors, officers and employees of Salelytics have a duty of loyalty to Salelytics, and must therefore avoid any actual or apparent conflict of interest with Salelytics.
It is impossible to cover every possible conflict of interest, and at times it will not be easy to distinguish between proper and improper activity. However, the most common conflicts are:
In short, we cannot be influenced by improper personal considerations which might consciously or unconsciously affect our judgment regarding the best interests of Salelytics. If a director, officer or employee becomes aware of an actual or apparent conflict of interest, he or she should discuss it with the appropriate manager and disclose it to Salelytics General Counsel.
No director, officer or employee of Salelytics may:
Employees, officers and directors owe a duty to Salelytics to advance its legitimate interests when the opportunity to do so arises.
Information About Competitors:
As a business that competes in the marketplace, we seek economic knowledge about our competitors. However, Salelytics officers, directors and employees shall not engage in illegal or improper acts to acquire a competitor’s trade secrets or customer lists. In addition, we will not hire a competitor’s employees for the purpose of obtaining confidential information about the competitor.
All directors, officers and employees should maintain the confidentiality of information entrusted to them by Salelytics, its business partners, suppliers, clients or others related to Salelytics business. Such information must not be disclosed to others, except when disclosure is authorized by Salelytics or legally mandated. Confidential information includes all nonpublic information that might be of use to competitors, or harmful to Salelytics or its clients if disclosed.
Dealing with Suppliers and Clients:
Salelytics overall view regarding its relations with vendors and clients is simple. They must be treated as Salelytics expects to be treated – with fairness.
Salelytics strives to ensure it does not have or contribute to adverse human rights impacts (including modern slavery or human trafficking) within its business or through its supply chains. There is an ongoing commitment to engage only those suppliers that uphold the same principles as Salelytics. In the event suppliers fail to take steps to cease or prevent adverse human rights impacts, Salelytics will reconsider its business relationships with those suppliers.
Contributions to Political Parties, Candidates or Government Officials:
Salelytics policy is precise and specific. Contributions by a corporation to political parties or candidates involving federal offices in the United States are expressly forbidden by Federal law. Salelytics obeys the law. In addition, while political contributions to parties or candidates may be legal in some states and in some foreign countries, no Salelytics corporate funds may be used for such purposes without the express prior approval of the President of Salelytics. Salelytics is an active participant in the democratic process at the national, state and local levels within the parameters of the law. Salelytics also encourages all employees to participate in our political system by voting, speaking out on public issues, and becoming active in civic and political activities. It is important, however, that directors, officers and employees clearly distinguish their personal view from those of Salelytics, unless specifically authorized by Salelytics to speak on Salelytics behalf.
Payments to Government Personnel:
The U.S. Foreign Corrupt Practices Act prohibits giving anything of value, directly or indirectly, to officials of foreign governments or foreign political candidates in order to obtain or retain business. It is strictly prohibited to make illegal payments to government officials of any country.
In addition, the U.S. government has a number of laws and regulations regarding business gratuities which may be accepted by U.S. government personnel. The promise, offer or delivery to an official or employee of the U.S. government of a gift, favor or other gratuity in violation of these rules would not only violate Company policy but could also be a criminal offense. State and local governments, as well as foreign governments, may have similar rules.
Accuracy of Salelytics Records:
All official records showing the conduct of Salelytics business must be accurate and complete in all material respects. All those involved in the preparation of such materials should consider the accuracy of the records of critical importance, and should understand Salelytics does not maintain, nor does it countenance, any off-the-books funds for any purposes. It is the policy of Salelytics to fully and fairly disclose the financial condition of Salelytics in compliance with applicable accounting principles, laws, rules and regulations. All books and records of Salelytics shall be kept in such a way as to fully and fairly reflect all Salelytics transactions in accordance with generally accepted accounting principles.
There must be full, fair, accurate, timely and understandable disclosure in reports and documents filed with governmental agencies and in other public communications made by Salelytics, as well as in documents prepared for our equity and debt holders.
Retention of Records:
Disposal or destruction of Salelytics records and files should comply with company policy. In addition, when litigation or a government investigation is pending or imminent, relevant records must not knowingly be destroyed until the matter is closed.
Federal law and the Securities and Exchange Commission’s regulations prohibit the use of “inside” (i.e., material nonpublic) information when trading in Salelytics securities. The Insider Trading and Securities Fraud Enforcement Act of 1988 imposes significant criminal and civil penalties for insider trading.
Examples of such information include, if applicable, possible acquisitions, mergers, stock splits, dividends, earnings, new contracts, new products or discoveries, major management changes, expansion plans, data which may be proprietary, or data which has not yet been disclosed to the investment public and other important corporate developments. As a result of these regulations, Salelytics personnel should follow the Salelytics Anti-Corruption Policy located on Salelytics intranet.
Dealings with Clients:
Salelytics business is built upon the principle of effective, courteous management of client contacts. Salelytics treats all clients and their consumers with dignity and respect.
Salelytics employees have been, and will continue to be, the key to our success. Salelytics strongly supports and recognizes its responsibility to provide equal employment opportunities to all qualified individuals. Salelytics places a high value on diversity. Salelytics strongly believes all people are unique and valuable, and should be respected for their individual abilities.
In support of this goal, Salelytics has established a company policy regarding discrimination or harassment on the basis of race, gender, age, color, religion, disability status, veteran status, sexual orientation, marital status or ethnic, national or any other characteristic protected by law. This policy applies to all personnel relationships, including but not limited to: promotions, transfers, training, job assignments, job stations, hours of work, rates of pay, working conditions, terminations, and all terms and conditions of employment.
Legal Conduct and Compliance with this Code:
Salelytics policy is that all of its directors, officers and employees shall conduct business on behalf of Salelytics in full compliance with the laws of the many jurisdictions in which Salelytics may conduct business. Accordingly, the provisions of the present Code are not intended as a substitute for applicable national laws and regulations and the scope of the Code’s application shall be limited to the extent incompatible with such laws and regulations. Under the laws of certain countries in which the Company has a presence, legal conduct and compliance with this Code may require further adaptations and directors, officers and employees should refer to the appropriate country annex that addresses such matters.
Any director, officer or employee who acquires knowledge of a violation of a law or this Code, or has cause to believe that a law or this Code has been violated, must immediately report this situation to the legal department, the President, Chief Operating Officer, or Vice President of Human Resources. If you wish to remain anonymous, you may report a violation of this Code by (a) calling the Telephone Hotline at 833-613-0412; (b) emailing Salelytics@GetInTouch.com; or (c) visiting www.InTouchWebsite.com/Salelytics. The Telephone Hotline and the email address are monitored by an independent company and are available 24 hours a day every day.
Any employee who ignores or violates any of Salelytics ethical standards, and any manager who penalizes a subordinate for trying to follow these ethical standards, will be subject to corrective action. However, it is not the threat of discipline that should govern your actions. Salelytics expects you to share its belief that a dedicated commitment to ethical behavior is the right thing to do and is good business.
Violations of this Code will result in disciplinary action that may include termination, referral for criminal prosecution and reimbursement to Salelytics for any losses or damages resulting from the violation. As with all matters involving investigations of violations and discipline, principles of fairness and dignity will be applied pursuant to the procedures developed and used by Salelytics Employee Relations Department.
Any waivers of this Code for directors or executive officers must be approved by the Executive Leadership team and must be promptly disclosed (with reasons for the waiver) as required by applicable law and our contractual requirements.