CRM BINDER MASTER SERVICE AGREEMENT

This CRM Binder Terms of Service Agreement, (this “Agreement”) is by and between CRM Binder, LLC, a Texas limited liability company (“CRM Binder”) and the undersigned client (“Client”) (each, a “Party” and, collectively, the “Parties”);

WHEREAS, CRM Binder offers the service of the software program and mobile application known as the “CRM Binder” and its associated web sites, applications, software, and data (collectively, all of the foregoing are the “CRM Binder”);

WHEREAS, CRM Binder is to provide the CRM Binder and/or similar services on behalf of Client as provided in an executed Client order (the “ORDER”), which is incorporated by reference as if restated in full herein (the “Services”);

WHEREAS, by executing the ORDER, the Parties agree to the CRM Binder Terms of the ORDER, this Agreement, and the CRM Binder Terms and Privacy Policy (each defined below), with each to be effective as of the date the ORDER is signed by both Parties (the “Effective Date”).

NOW, THEREFORE, in consideration of the monetary compensation and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Client and CRM Binder hereby agree as follows:

    MUTUAL OBLIGATIONS
  1. CRM Binder’s Services. CRM Binder will provide and perform the Services according to the specifications provided in the ORDER. CRM Binder may perform additional Services pursuant to an amended or additional ORDER by written agreement between the Parties (including via email), and such ORDER shall be subject to this Agreement. In the event of a conflict between the CRM Binder Terms of the ORDER and this Agreement, the provisions of this Agreement shall prevail.
  2. CRM Binder Terms of Service & Privacy Policy. Client agrees that the Services are subject to the CRM Binder General CRM Binder Terms of Service (the “CRM Binder Terms”) and Privacy Policy, each of which are incorporated herein by reference, and as each are amended by CRM Binder from time to time.
  3. Protection of Confidential Information. CRM Binder recognizes and acknowledges that in the course of performing Services for Client, CRM Binder may have access to Client confidential information concerning its trade secrets, drawings, models, business methods, business affairs, product plans, identities of licensors, suppliers, contractors, agents, customers, distributors, joint venturers and other data. All such information is hereinafter collectively referred to as "Confidential Information." CRM Binder agrees that, except as directed by Client, CRM Binder will keep in strictest confidence, both during the term of this Agreement and subsequent to termination of this Agreement and will not during the term of this Agreement disclose or divulge to any person, firm or corporation, or use directly or indirectly, for its own benefit, any Confidential Information. Except as directed by Client, CRM Binder will not permit any person, firm or corporation other than Client, its authorized agents or representatives, to examine and/or make copies of any Confidential Information, nor any portions thereof. Any employees, officers, owners, suppliers, contractors, or other agents of CRM Binder shall only receive or have access to Confidential Information after they have entered into non-disclosure agreements with CRM Binder Terms consistent with those described herein. While providing the Services to Client, CRM Binder will not bring, refer to, use, or disclose confidential information or trade secrets of any prior customer or other third party. If, during the term of this Agreement and for two years hereafter, CRM Binder is called upon to perform services that would or might cause CRM Binder to refer to, use, or disclose the Confidential Information, CRM Binder will not perform such services, and will report any such conflict to the Client.
  4. Third Party Services. CRM Binder may integrate use of Client software and systems, as well as third-party software, systems, services and API, as needed in performance of the Services (collectively, “Third Party Services”). CRM Binder has no responsibility or liability to Client or any such Third Party Services nor the performance, failure, or management of any such Third Party Services. Client will provide CRM Binder with the necessary access and technical specifications to use all Third Party Services as needed in connection with the Services, and CRM Binder’s own technology infrastructure (to the extent relevant to the Services), including but not limited to security specifications and login information. CRM Binder will not obtain any personal information or data from any persons. Client is solely responsible for compliance with any data privacy laws related to the Services and CRM Binder’s use of Third Party Services in connection with the Services, and will indemnify, defend and hold harmless CRM Binder from and against any claims related to data privacy laws and breach of and privacy policies.
  5. Payment. As consideration for the Services, Client will pay CRM Binder as provided in the ORDER. If a retainer or advance payment is required by the ORDER, all such payments must be made in advance or, as appropriate, by or before the first of each calendar month during the term of this Agreement. CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT NO REFUNDS OF ADVANCE PAYMENTS WILL BE PROVIDED FOR ANY REASON. In the event Client fails to pay any amounts owed to CRM Binder, CRM Binder may, at its sole discretion, terminate the License, lock-out Client from the Services and/or remove Client access from all CRM Binder accounts, information, materials and other CRM Binder work product related to the Services until such time as Client has made all required payments.

    All fees are exclusive of all federal, state, municipal, or other government excise, sales, use, value-added, gross receipts, personal property, occupational, or other taxes now in force or enacted in the future, and CRM Binder shall pay any such tax (excluding taxes on CRM Binder’s net income) that CRM Binder may be required to collect or pay now or at any time in the future with respect to such fees. Payment of the amounts due to CRM Binder shall be made in accordance with the payment schedule set forth in the ORDER by credit or debit cards only, or by any other immediately-available funds. Any amount not paid within five (5) days following the due date of CRM Binder’s invoice shall bear a finance charge at the rate of 2% per month, or the highest legal rate, whichever is less.
  6. Limitations and Indemnity
  7. a.Limited Performance Warranty. CRM Binder warrants that the Services will be performed in a good and workmanlike manner. In the event Client believes that CRM Binder is in violation of this limited performance warranty, Client shall notify CRM Binder and CRM Binder shall use reasonable commercial efforts to correct any error or defect. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED BY CRM Binder “AS IS,” WITHOUT WARRANTY OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AGAINST INFRINGEMENT OR ANY WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION, OR THAT THE SERVICES WILL MEET COMPANY’S REQUIREMENTS, AND ANY WARRANTIES IMPLIED BY LAW, BY THE COURSE OF DEALING BETWEEN THE PARTIES, OR OTHERWISE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
    b.Limitation of Claims/Damages. CRM Binder SHALL NOT BE LIABLE TO CLIENT UNDER ANY CIRCUMSTANCES FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT, REVENUE, BUSINESS OPPORTUNITY OR BUSINESS ADVANTAGE), WHETHER BASED UPON A CLAIM OR ACTION OF TORT CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, CONTRIBUTION, INDEMNITY OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CRM Binder’S TOTAL LIABILITY UNDER OR RELATING TO THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE CAUSE OR FORM OF ACTION, AND WHETHER BEFORE OR AFTER ITS TERMINATION, SHALL NOT EXCEED THE TOTAL OF ALL AMOUNTS PAID TO CRM Binder BY CLIENT.
    c.Obligation to Indemnify. Client will indemnify and hold harmless CRM Binder, its licensors, service providers, and their respective affiliates, managers, agents and employees, from and against all losses, costs, and expenses, including reasonable attorneys’ fee, from third party claims arising from the Services, except for claims arising from the intentional or grossly negligent acts or omissions of CRM Binder.
    d.Force Majeure. Neither Party shall be entitled to recover damages or terminate this Agreement by virtue of any delay or default in performance by the other Party (other than a delay or default in the payment of money) if such delay or default is caused by Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections, Internet or power outages, and/or any other cause beyond the reasonable control of the Party whose performance is affected; provided that the Party experiencing the difficulty shall give the other prompt written notice following the occurrence of the cause relied upon, explaining the cause and its effect in reasonable detail. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
  8. Users. Client is responsible for the use of the Services by all its designees, sub-licenses and other users (“Authorized Users”) and will ensure that all Authorized Users agree to comply with this Agreement, the CRM Binder Terms, CRM Binder Privacy Policy and all other requirements of CRM Binder.
    OWNERSHIP AND RIGHTS
  1. Ownership of Intellectual Property. Client acknowledges that CRM Binder shall be the sole owner of any and all Intellectual Property (as defined below) in and related to the Services, and all accompanying manuals, documents or materials, as well as any modifications, derivative works, changes, enhancements, improvements, conversions, copies, print-outs, or translations thereof, whether made by Client, CRM Binder, any third party or any combination thereof (all preceding items are collectively referred to as “CRM Binder Property”). CRM Binder does not assign, transfer, convey or grant to the Client or any third party, and nothing in this Agreement shall be interpreted or construed that CRM Binder assigns, transfers, conveys or grants to the Client or any third party, expressly or implicitly, all or any part of the CRM Binder Property or any Intellectual Property therein. Without limiting the foregoing, Client shall own all Data (defined in Section 3.2) input into the Software by Client, but hereby grants CRM Binder a permanent, royalty-free, and fully transferable license in and to such Data.
  2. Intellectual Property Defined. "Intellectual Property" means, wherever existing, (a) all inventions and improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof, (b) all trademarks, service marks, trade dress, logos, trade names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith, (c) all copyrightable works, designs, instructions and templates, and any copyright applications, registrations, and renewals in connection therewith, (d) trade names, (e) all trade secrets and other Confidential Information, (f) all domain names, URLs or Internet websites, (g) all other proprietary rights, and (h) all copies, translations and tangible embodiments thereof (in whatever form or medium).
  3. Limited License. Pursuant to this Agreement, CRM Binder herby grants to Client a non-exclusive, limited license to use CRM Binder Intellectual Property solely in connection with the Services described herein (the “License”). CRM Binder may, but shall not be required, to advertise that Client uses the Services, including the use of Client’s name and logos, as well as data or advertisements related to the Services (e.g., increases in sales volume, etc.). Subject to the ORDER and the CRM Binder Terms, Client may sublicense the License to Client’s employees and prospects. Client is liable for any violations of this Agreement or the CRM Binder Terms by and sublicensees of Client.
    OWNERSHIP AND RIGHTS
  1. CRM Binder’s provision of Services under this Agreement will terminate at the time specified in the ORDER, or by either Party upon 60 days written notice to the other Party. CRM Binder may terminate the Agreement immediately in the event of a breach of this Agreement or the CRM Binder Terms by Client or any users or Authorized Users. In the event of termination of this Agreement, Client will be obligated only to pay CRM Binder through the effective date of termination. Sections 1.4-1.7, 2.1, 2.3 and 4 will survive any termination of this Agreement.
  2. Access to Data after Termination. Unless otherwise agreed in writing between, upon suspension or termination of the Agreement for any reason, Client’s ability, to access the software, and/or to any Client information, materials, reports, or other data stored in the Software (collectively, “Data”) will cease. Provided that Client has paid all amounts due and otherwise complied with all of its material obligations under this Agreement after a termination, the Client shall then have renewed access to the Data within thirty (30) days of paying all amounts due only if payment has been provided within sixty (60) days of termination. For avoidance of doubt, if payment is not made within sixty (60) days of termination, the Client understands and agrees that a termination lasting more than sixty 60 days, will result in the loss of your Data. Except as provided herein, Client will have no access to the Data following termination. Client understands and agrees that a termination of this Agreement may result in the loss of your Data, and that CRM Binder is not responsible, in any way, for any such Data loss.
    MISCELLANEOUS
  1. Severability. If any provision of this Agreement is held to be unenforceable, this Agreement will be considered divisible and such provision will be deemed inoperative to the extent it is deemed unenforceable, and in all other respects, this Agreement will remain in full force and effect; provided, however, that if any such provision may be made enforceable by limitation thereof, then such provision will be deemed to be so limited and will be enforceable to the maximum extent permitted by applicable law.
  2. No Waiver. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
  3. Entire Agreement. This Agreement and any statement of work and schedules attached herewith constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous agreements.
  4. Binding Effect. This Agreement is intended to benefit and be binding upon the Parties, and their agents, employees, officers, directors, attorneys, legal representatives, beneficiaries, estates, predecessors, successors, parent corporations, subsidiaries, shareholders, branches, and assigns.
  5. Amendments to this Agreement. CRM Binder can modify this Agreement at any time, and such amended terms are binding on you once a copy of the amended Agreement is delivered to you.
  6. No Joint Venture. Nothing in this Agreement will be construed to place the Parties in the relationship of agent, employee, franchisee, officer, partners, or joint ventures. Neither Party may create or assume any obligation on behalf of the other.
  7. Non-Transferrable. Except as provided herein regarding Authorized Users, this Agreement for the Services is not assignable or transferable by Client, and may not be assigned, transferred or otherwise delegated to a third party, in whole or in part, absent prior written approval from CRM Binder. CRM Binder may delegate, transfer or assign its obligations and rights under this Agreement to a third party at its sole discretion.
  8. Notices. The Parties agree that, for a notice to be effective, it must be in writing. The Parties further agree that all notices, demands and other communications relating to this Agreement must be sent by email or by express courier, hand delivery, registered mail, or certified mail to the other Party at the principal business address for such Party, unless a Party requests in writing that notices be sent to a different address. Actual receipt of a written notice by a Party shall constitute a waiver of any claims of inadequate notice.
  9. No Third-Party Beneficiaries. Agreement is made for the sole benefit of the Parties. Except as otherwise provided herein, no other persons shall have any rights or remedies by reason of this Agreement against any of the Parties or shall be considered to be third party beneficiaries of this Agreement in any way.
  10. Governing Law/Forum Selection. THIS AGREEMENT WILL BE CONSTRUED AND GOVERNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT APPLICATION OF CHOICE-OF-LAW PROVISIONS THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. THE PARTIES AGREE THAT ALL CLAIMS AND DISPUTES RELATING TO OR ARISING UNDER THIS AGREEMENT THAT CANNOT BE SETTLED THROUGH NEGOTIATION BETWEEN THE PARTIES THEMSELVES SHALL BE SETTLED IN A COURT OF COMPETENT JURISDICTION LOCATED IN DALLAS, COUNTY, TEXAS, AND THE PARTIES HEREBY SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH COURT.
  11. Remedies. No remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and will be in addition to every other remedy given hereunder now or hereafter existing in law or in equity or by statute or otherwise. The election of any one or more remedies by either Party will not constitute a waiver of the right to pursue other available remedies.