Fusion Standard Terms and Conditions

Section 1 – Definitions

1.1 “Client Data” means any data, information, or other materials that Client provides to Fusion when Fusion performs, or Client uses, the Services.

1.2 “Consulting Deliverables” means deliverables generated by Fusion and delivered to Client under a SOW for Consulting Services.

1.3 “Consulting Services” means Fusion-performed consulting services as described in one or more SOW(s) issued pursuant to this Agreement.

1.4 “Confidential Information” means the terms of this Agreement and each Transaction (including the nature of the Services and the fees charged for Services) and any other information in oral or written form disclosed by a party to the other party that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of its disclosure, including but not limited to information that relates to current or potential customers, employees, product plans, products, services, processes, techniques, methodologies or software programs. Confidential information does not include information which: (a) is or becomes publicly available through no wrongful act of the receiving party; (b) was lawfully known by the receiving party at the time of disclosure without any obligation of confidentially;  (c) was lawfully acquired by the receiving party from a third-party without restriction on use or disclosure; or (d) was developed independently by the receiving party without reference to the disclosing party’s Confidential Information.

1.5 Configured Functionality” means the Subscription Services’ Generally Available Functionality that has been modified by Fusion to Client’s specifications.

1.6Documentation” means all Fusion-provided user manuals and on-line help files made available by Fusion to Users to support the use of the Subscription Services.

1.7 Force Majeure” means a cause beyond a party’s control, including, but not limited to, an act of God, war, terrorism, civil disturbance, court order, third-party performance or nonperformance, strikes, or work stoppages.

1.8 “Force Majeure” means a cause beyond a party’s control, including, but not limited to, an act of God, war, terrorism, civil disturbance, court order, third-party performance or nonperformance, strikes, or work stoppages.

1.9 Highly Protected Personal Information” means an individual’s social security number or other government issued identification number; a driver license or a state identification number; an individual’s credit card, debit card or related account number; an individual’s financial information or credit history; any information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; or an individual’s health insurance policy number or subscriber identification number.

1.10 Industry Standard(s)” means a standard: (a) actually used or adopted by a substantial number of companies working with comparable information; (b) prescribed for use by an industry standards body or group; or (c) publicly assessed before use by recognized experts in the field as acceptable and reasonable.

1.11 Losses” means any and all costs, liabilities, losses, and expenses including, but not limited to, reasonable attorneys’ fees arising out of or in connection with a claim, suit, action, or proceeding brought by any third-party.

1.12 Personal Contact Information” means information, such as name, address, telephone number and email address that may be used to contact an identifiable individual.

1.13 “Privacy Laws” means all United States, Canadian and European Union, laws, treaties and regulations regarding data protection and privacy.

1.14 Resultant Data” means data that is derived from the use of the Subscription Services. Resultant Data is not derived from Client Data and cannot be reversed engineered back into Client Data.  Resultant Data is not Client Data.

1.15 “Services” means, collectively, the Consulting Services and the Subscription Services.

1.16 “Service Order” means an executed transactional document itemizing the type of User subscriptions and the related number of each for Subscription Services (and related Consulting Services, if any).

1.17 “SOW” means an executed transactional document defining the Consulting Services.

1.18 “Subcontractors” means independent consultants retained by Fusion to perform Services.

1.19 “Subscription Services” means the web-based software application identified in the applicable Service Order.

1.20 “Terms of Service” means the terms in Attachment A to this Agreement.

1.21 “Transaction” means, collectively, the executed Transaction Document, this Agreement (including any amendments), and the Client-issued purchase order.

1.22 “Transaction Document” means either a Service Order or an SOW.

1.23 “User” means the named individual enabled by an Admin. User to utilize the Subscription Services, subject to the limitations stated on the Transaction Document for the applicable subscription.

Section 2 – Agreement Structure; Fees; Taxes

2.1      Agreement Structure, Services. This Agreement sets forth terms and conditions that apply to the Services. When Client wishes to procure Services from Fusion, the parties will negotiate and execute a Transactional Document.  The terms and conditions of this Agreement are incorporated by reference into each Transactional Document.  Each Transaction is a separate contract between the parties.  In the event of a conflict between this Agreement and any Transactional Document, the terms of this Agreement will control.  The terms of one Transaction shall not serve to add-to, amend or modify the terms of another Transaction.

2.2      Fees; Payment; Taxes. Client agrees to pay all fees for Services within 30-days of receipt of Fusion’s invoice for such Services.  If Client fails to remit payment within 30-days of receipt of Fusion’s invoice, Client will pay interest on amounts past due at the rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is lower from the date such payment is due until the date such payment is made.  For Consulting Services, fees are payable pursuant to the payment schedule stated in the applicable SOW.  For Subscription Services, fees stated in the Service Order are invoiced annually in advance.  Upon automatic renewal of a term of for Subscription Services, the fees may be increased by the official Consumer Price Index, All Urban Consumers, U.S. City Average, All Items, published by the Bureau of Labor Statistics, United States Department of Labor, plus 6%.  Unless otherwise stated, Fusions’ fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales and use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder. If Fusions has the legal obligation to pay or collect Taxes for which Client is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Client, unless Client provides Fusion with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Fusion is solely responsible for taxes assessable against it based on its income, property and employees.

Section 3 – Confidential Information; Privacy; Data Security

3.1        Confidential Information. Each party agrees not to disclose any of the other party’s Confidential Information without the other party’s prior written consent.  Each party (including its employees and agents) will use no less than the same standard of care to protect any Confidential Information disclosed during negotiation or performance of a Transaction that it uses to protect its own confidential information, but in no event less than a reasonable standard of care.  Each party will use Confidential Information disclosed by the other party only as required for the performance under a Transaction. A party may disclose the other party’s Confidential Information: (a) to employees, subcontractors and authorized agents who have a need to know and are under an obligation of confidentiality no less onerous than provided for in this Agreement and any Transaction; or (b) as required by government or judicial order, so long as the disclosing party gives the other party prior, written notice and an opportunity to contest the disclosure.  Upon request, each party will promptly return the other party’s Confidential Information. Each party will promptly notify the other party, in writing, upon learning of any unauthorized disclosure or use of the other party’s Confidential Information.

3.2       Privacy; No Highly Protected Personal Information Required.Client acknowledges that the Subscription Services provided do not require the provision or disclosure of Highly Protected Personal Information or any confidential information regarding Client’s customers.  Client’s entry or disclosure of Highly Protected Personal Information or any confidential information regarding Client’s customers is expressly not within the intended use of Fusion’s Services.  If Client opts to disclose, enter or store Highly Protected Personal Information or any confidential information regarding Client’s customers hereunder, notwithstanding anything to the contrary in a Transaction, it is at Client’s sole risk.

3.3       Use of Personal Contact Information. Fusion acknowledges that Personal Contact Information is Confidential Information of Client.  Fusion will only use, retain and disclose any Personal Contact Information for the purposes specified in the Transaction. Fusion will comply all Privacy Laws applicable to Personal Contact Information and the provision of the Services. Fusion will retain Personal Contact Information for only as long as is necessary for the purposes specified in the Transaction.

3.4       Data Security. During the term of this Agreement, Fusion will maintain an IT security and compliance program that includes: (a) reasonable and appropriate technical, organizational and security measures against the destruction, loss, unavailability, unauthorized access or alteration of Client Data in the possession or under the control of Fusion; (b) a business continuity plan to address availability of information following interruption to, or failure of, critical business processes; and (c) an annual third-party audit of its security controls for locations where Client Data is stored. Upon request, Fusion will provide Client with an executive summary of Fusion’s business continuity plan and the results of such third-party security audits.

Section 4 – Intellectual Property

4.1       Ownership of Proprietary Materials. Each party is and will remain the owner of all right, title and interest in and to such party’s proprietary materials, and all copies thereof, and in and to all of the related trade secrets, copyrights, patents and all other proprietary rights. Except as provided in this Section 4, neither party will obtain any right or license in and to the other party’s proprietary materials.  All such rights are reserved.

4.2        Grant of License – Consulting Services and Deliverables. The Consulting Services and Consulting Deliverables contain proprietary and confidential information of Fusion that is protected by applicable intellectual property and other laws. On receipt of payment in full of the applicable fees, Fusion grants Client a non-exclusive, non-transferable (except as set forth in Section 9.11), perpetual, world-wide, fully paid-up license to copy and use all Consulting Deliverables solely for Client’s internal business purposes and not for the benefit of any third-party.

4.3        Grant of License – Subscription Services.  The Subscription Services, and any integrated third-party software provided in connection with it, contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Fusion grants Client during the term of the applicable Service Order a world-wide, non-exclusive, non-transferable (except as set forth in Section 9.11) and terminable (but only as expressly set forth herein) license to use the Subscription Services, solely for Client’s internal business operations, for up to the number of current registered User subscriptions paid for by Client as set forth in the Service Order. This license does not include the right to act as an outsourcer to others, renting, or time-sharing the Subscription Services or mirroring any of its content other than on Client’s own intranets or otherwise for Client’s own internal business purposes. Client also may not license, sublicense, sell, resell, lease, or make the Subscription Services available to any third parties. Client will not (and will not allow any third-party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part of it.  Client will not otherwise attempt to discover any source code or use unauthorized versions of the Subscription Services.  Client agrees not to use the Subscription Services in order to build a similar or competitive product or service. Except as specifically provided in each Service Order, Fusion does not convey any rights or ownership rights in the Subscription Services or any related intellectual property rights. Any Subscription Services rights not expressly granted to Client are reserved by Fusion.

4.4        Grant of License – Client. Client grants Fusion a non-exclusive non-transferable (except as set forth in Section 9.11) license to copy, store, record, transmit, maintain, display, view, print, or otherwise use any Client Data, but only to the extent necessary to provide Services to Client. Client agrees that the license to Client Data survives the termination of a Transactional Document solely for the purpose of storing backup Client Data at an offsite storage facility and only as long as required by Fusion’s data backup and destruction protocols.  Client grants Fusion a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any Fusion products or services any suggestions, enhancement requests, recommendations or other feedback provided by Client relating to the operation of the Subscription Services except that portion, if any, which is comprised of Client Data or Confidential Information.

4.5       Ownership of Inventions; Resultant Data. Any and all inventions, improvements, developments or innovations made, conceived or devised by Fusion in the course of providing any Services as well as any Resultant Data are the sole and exclusive property of Fusion, including all rights to patents, copyrights, trademarks and trade secrets, except that portion, if any, which is comprised of Client Data or Confidential Information.

Section 5 – Warranty

5.1      Mutual Warranties. Each party hereby represents and warrants to the other that: (a) it has all requisite corporate power and authority (or if a party is not a corporation, such party represents and warrants that it has sufficient power and authority under its organizational documents or agreements) to enter into this Agreement and to carry out the obligations stated a Transactional Document contemplated hereby, (b) the execution, delivery, and performance of this Agreement and the consummation of the subsequent Transaction(s) contemplated hereby have been duly authorized by all requisite corporate (or, as applicable, other entity) action on the part of such party, (c) this Agreement and each Transactional Document has been duly executed and delivered by such party and (assuming the due authorization, execution, and delivery hereof by the other party) is a valid and binding obligation of such party and enforceable against it in accordance with its provisions, and (d) its entry into this Agreement does not violate or constitute a breach of any agreement to which it is a party or otherwise bound.

5.2     Consulting Services Warranty.  Fusion warrants that it will perform the Consulting Services in accordance with Industry Standards and conforming to the specifications stated in the applicable Transactional Document.  In the event Client give Fusion written notice of Fusion’s failure to comply with this warranty within 10-days of Fusion providing such non-conforming Consulting Services, Fusion’s sole and exclusive obligation will be to promptly take such action as may be reasonably necessary to correct such failure.

5.3       Subscription Services Warranty.  Fusion warrants that it has full power and authority stated in the Grant of License for the Subscription Services. Fusion warrants to Client that the Subscription Services will achieve, in all material respects, the mutually agreed upon Configured Functionality as implemented by Fusion and that the Configured Functionality will be maintained in all material respects in subsequent upgrades or modifications to the Subscription Services. Client’s sole and exclusive remedy for Fusion’s breach of this warranty is for Fusion to use Industry Standard efforts to achieve in all material respects the mutually agreed upon Configured Functionality.  If Fusion is unable to restore such functionality within 30-days, Client may terminate the applicable Service Order and Fusion will refund the portion of the fees paid by Client for the Subscription Services not yet furnished by Fusion. Fusion also warrants that it will, at a minimum, utilize and maintain Industry Standard security and backup procedures for Client Data. Fusion has no obligation: (a) for a warranty claim for Client-implemented configuration changes, unless Fusion approved the changes in writing; or (b) unless notified of a claim within 90-days of the first instance of any material functionality problem.  All notices must be sent to billing@fusionrm.com.

5.4       Disclaimer of Warranties.  THE WARRANTIES STATED IN THIS SECTION 5 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY FUSION.  FUSION MAKES NO OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES OFFERED OR PERFORMED BY FUSION.  FUSION DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES WHATSOEVER PROVIDED BY FUSION’S LICENSORS.  EXCEPT AS STATED IN THIS SECTION 5, THE SERVICES ARE PROVIDED TO CLIENT ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ARE FOR COMMERCIAL USE ONLY.

Section 6 – Indemnification

6.1       Fusion. Fusion will indemnify, defend and hold Client and its directors, officers, employees, and agents harmless from and against any and all Losses which arise out of, or result from, the infringement by the Services of any copyright, patent or trademark of any third-party registered in a country that is a signatory to the Patent Cooperation Treaty (“Patent”); provided that Client provides Fusion: (a) prompt, written notice of the claim, suit, action, or proceeding; (b) sole control of the defense and related settlement negotiations; and (c) all reasonably available information and assistance necessary to perform Fusion’s obligations under this paragraph. If the Services are held to infringe any intellectual property right, Fusion will, in its sole discretion and at its own expense, either: (x) procure a license that will protect Client against such claim without cost to Client, or (y) replace the Service with a non-infringing service.

6.2       Client. Client will indemnify, defend and hold Fusion and its directors, officers, employees, and agents harmless from and against any and all Losses which arise out of or result from: (a) the infringement of any copyright, Patent or trademark due to Fusion’s use of the Client Data, (b) any Client modification to the Subscription Services or Consulting Deliverables not approved in writing by Fusion; or (c) Client’s breach of applicable law; provided that Fusion provides Client: (x) prompt, written notice of the claim, suit, action, or proceeding; (y) sole control of the defense and related settlement negotiations; and (z) all reasonably available information and assistance necessary to perform Client’s obligations under this paragraph.

6.3       Mutual. Each party will indemnify and defend the other party, its directors, officers, employees, agents and their successors from and against Losses, arising directly from performance of a Transaction and relating to personal injury, death, or damage to personal property that is alleged to have resulted from the negligent or willful acts or omissions of the indemnifying party or its subcontractors, directors, officers, employees, or agents.  These indemnification obligations are contingent upon the indemnified party providing the indemnifying party with prompt notice of any claims and providing all reasonable assistance in the defense of the claims.

Section 7 – Term; Termination; Suspension; Default

7.1       Term.  This Agreement commences on the Effective Date and remains in effect until terminated by either party as provided in Section 7.1 below. Each Service Order shall (a) begin upon the effective date stated therein, (b) run in 12-month increments, and (c) continue for the term specified therein. A Service Order will automatically renew for successive one-year periods at the end of each term, unless a party provides notice to the other party of its intent not to renew at least 60-days prior to the end of the term.  Each SOW is effective upon the Effective Date stated therein and continues until the Consulting Services specified in the SOW are completed.

7.2       Termination of Agreement. This Agreement may be terminated by either party with 30 calendar days’ prior, written notice to the other party upon the expiration of the term of all Transactions then-currently in effect.

7.3       Suspension; Events of Default. In the event Client’s account is more than 60-days overdue on payment for any reason, Fusion shall provide written notice to Client of such condition and Client shall have 10-days from receipt of such notice to cure the overdue condition of its account. In the event Client fails to cure the overdue condition of its account within 10-days after receipt of such notice from Fusion, then Fusion shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend access to or use of the Services without further notice to Client until Client has paid in full the balance owed.  Upon the occurrence of one or more of the following events of default, each of which shall constitute a material breach of this Agreement, the non-breaching party may terminate the then in-effect Transaction(s) and seek the rights and remedies available to such party as provided in Section 8.2: (a) failure of Client to pay any undisputed amount due to Fusion under a Transaction within 60 calendar days following receipt of written notice of such failure to pay; (b) failure of a party to perform any other material obligation under a Transaction that is not cured within 30 calendar days following receipt of written notice of such failure; or (c) the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against a party under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if such proceedings have not been dismissed or discharged within 30 calendar days after they are instituted; the insolvency or making of an assignment for the benefit of creditors; the institution of any reorganization arrangement or other readjustment of debt plan of a party not involving the United States Bankruptcy Code; or any corporate action taken by the Board of Directors of a party in furtherance of any of the above actions.

Section 8 – Insurance; Limitation of Liability

8.1       Insurance. Fusion will maintain, at its own expense during the term of this Agreement insurance covering its operations in the following minimum amounts: (a) Commercial General Liability Insurance, including broad form property damage, and personal injury with a limit of not less than $1,000,000 per occurrence and $2,000,000 general aggregate; (b) Business Automobile Liability Insurance for all, non-owned, and hired vehicles to be used in connection with this Agreement, with a combined single limit of at least $1,000,000 each accident; (c) Workers’ Compensation including $1,000,000 Employers Liability coverage; (d) Umbrella (Excess) Liability Insurance coverage in an amount of not less than $4,000,000 per occurrence; (e) Property Insurance against all risks of physical loss or damage to any property of Client in the care, custody, or control of Fusion; (f) Technology Errors and Omissions in the amount of $3,000,000 per claim and $4,000,000 in the aggregate, including coverage for network security liability and privacy liability; (g) Crime Insurance, including Employee Dishonesty and Client Property (third-party) coverage in the amount of not less than $1,000,000.  Each party agrees to furnish evidence of insurance coverage upon the reasonable written request of the other party.  Client will maintain, at its own expense, commercial general liability insurance with limits consistent with Industry Standards against any claims for death, bodily injury and damage to real and tangible personal property damage for its employees and any property that it owns or leases or otherwise controls.

8.2       Limitation of Liability. EXCEPT FOR A PARTY’S OBLIGATIONS ARISING UNDER SECTION 6, EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY OR TO ANY THIRD-PARTY UNDER A TRANSACTION OR THIS AGREEMENT FOR ANY CAUSE WHATSOEVER IS LIMITED TO THE AMOUNT PAID OR PAYABLE BY CLIENT DURING THE MOST RECENT 36-MONTHS UNDER THE TRANSACTION FOR THE SERVICES THAT GAVE RISE TO SUCH LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE, DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH DAMAGES.  THE PARTIES AGREE THAT THIS IS A REASONABLE ALLOCATION OF THE RISKS HEREUNDER AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, LIABILITY IS LIMITED AS SET FORTH IN THIS SECTION.

Section 9 – Miscellaneous

9.1       Subcontractors. Fusion may retain the services of Subcontractors to perform all or any portion of the Services.  Client consents to Fusion’s use of Salesforce.com and AppExtremes, Inc., d/b/a Conga, as Subcontractors for the Subscription Services. All Subcontractors will perform Services under Fusion’s direction.  Fusion remains responsible for the performance of all of its obligations hereunder.

9.2       Relationship of Parties. Fusion is an independent contractor.  Any Fusion personnel or Subcontractors are not employees of Client and are not entitled to any benefits Client provides to its employees, including, without limitation, group health insurance, disability insurance, paid time off, retirement benefits and overtime pay. Fusion and its Subcontractors are responsible for the employee tax withholdings and other tax payments for its own employees.  Client will make no such deductions from fees paid to Fusion.

9.3       Non-Solicitation.  Neither party, without the express written consent of the other, shall solicit for employment, employ or otherwise retain, directly or indirectly, any employee or subcontractor of the other party, during the term of this Agreement and for a 1-year period following termination of the Transaction; provided, however, that an employee or subcontractor who responds to a generally posted job opening and is subsequently hired shall not be considered a violation of the above stated prohibition.

9.4       Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, the invalidity of such provision will not affect the other provisions of this Agreement, and all provisions not affected by such invalidity will remain in full force and effect.

9.5       Waiver. The waiver by either party of a breach or default in any of the provisions of this Agreement will not be construed as a waiver of any other breach or default.  No delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have, hereunder will operate as a waiver in connection with any other breach or default.

9.6       Force Majeure. Excluding payment obligations, neither party is in default hereunder due to any failure in its performance if such failure arises out of a Force Majeure.  However, if a Force Majeure prevents, hinders or delays performance of either party’s obligations hereunder for more than 30 calendar days, the party not prevented from performing may, at its option, terminate the applicable Transaction without liability or penalty by providing written notice of termination to the other party.

9.7       Governing Law, Exclusive Jurisdiction. Each Transaction will be governed by and enforced in accordance with the laws of the State of Illinois (excluding Illinois’ conflict of law provisions).  Any suit or proceeding arising from or relating in any way to the subject matter of a Transaction will be brought only in the courts, state and federal, located in the County of Cook, State of Illinois, and the parties hereto consent to the exclusive personal jurisdiction and venue of such courts.

9.8         Notices. Any notice required or permitted to be delivered pursuant to a Transaction will be in writing and deemed delivered upon transmission if sent via email, with a confirmation copy sent via overnight mail.     Client will provide Fusion with an e-mail address for receipt of routine notices regarding Subscription Services, which do not require a confirmation copy via overnight mail.

9.9       Advertising. No advertising, publicity or similar public information concerning this Agreement or a Transaction will be published by either party without the other party’s prior written consent.

9.10      Survival of Obligations. Termination of this Agreement for any cause or its expiration shall not release either party from any liability that accrued on or before the date of termination or which may thereafter arise with respect to any act or omission occurring on or before the date of termination, or from any duty or obligation that by its nature should extend beyond the expiration or earlier termination of this Agreement.

9.11      Assignment. Neither party may assign its interest in this Agreement without the other party’s prior written consent, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, Fusion may transfer and/or assign some or all of this Agreement by operation of law due to a merger or change of control, without prior notice to the Client.

9.12     Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties regarding and supersedes all prior agreements relating to the subject matter hereof. No modification, amendment or supplement this Agreement or any Transaction will be effective for any purpose unless agreed to in writing and signed by authorized representatives of the parties.  The terms of a purchase order shall not add-to, modify or amend the terms of this Agreement or any Transaction.  For the purpose of executing this Agreement, any Transactional Document or any amendment, the parties agree that a facsimile or electronic signature shall serve as an original signature.

Attachment A – Terms of Service

These Terms of Service apply to, and are incorporated by reference into, each Service Order executed by the parties.

Definitions:

A. “AppExchange” means the online directory of on-demand applications that work with the Fusion Framework or the Platform, located at https://appexchange.salesforce.com/ or at any successor website, but that are licensed separately from other application developers.

B. “Fusion Framework” means Fusion’s online risk management application, which includes integrated third-party applications from Salesforce.com’s AppExchange certified application providers.

C. “Platform” means the online, Force.com web-based platform service provided by Salesforce.com to Fusion in connection with Fusion’s provision of Fusion Framework to Client.

D. “Salesforce.com CRM Service” means the online, Web-based application and platform service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding AppExchange applications.

  1. Fusion Framework Description. In order to use Fusion Framework, Client’s Users must have access to the internet. Client must provide all equipment necessary to connect to the internet.  Fusion Framework may be subject to limitations, delays, and other problems inherent in the use of the internet. Fusion is not responsible for any delays, delivery failures, or other damage resulting from such problems.Client will provide its Users with unique passwords and usernames, not to exceed the total number of subscriptions in the Service Order. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time-to-time to new Users who are replacing former Users who no longer require use of the Fusion Framework). Client will be responsible for the confidentiality and use of Client’s passwords and usernames. Client will immediately notify Fusion if Client becomes aware of any loss or theft or unauthorized use of any of Client’s passwords, usernames, and/or account number.Fusion Framework is a subscription service provided by Fusion and built on the Platform, which is hosted by Salesforce.com. Fusion will provide Fusion Framework to Client in accordance with the levels of service set forth in Attachment B – Service Level Agreement.
  2. Client Conduct. Client is responsible for the content of all communications sent through Fusion Framework under Client’s account, including account registration, account holder information, financial information, Client Data, and all other content of any kind entered electronically into the Fusion Framework. Fusion will act upon any communications Fusion receives under Client’s passwords, usernames, and/or account numbers as if sent by Client. Client agrees to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of Fusion Framework, including without limitation those related to privacy, electronic communications, and anti-spam legislation. Client will not send any communications from Fusion Framework that are unlawful. Client will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining the permission of the owner of such rights. Client will not (i) send or store viruses or any other harmful or malicious code, files, scripts, agents or programs; (ii) interfere with or disrupt the integrity or performance of Fusion Framework or its data; or (iii) attempt to gain unauthorized access to Fusion Framework, the Platform or the Salesforce.com CRM Service or its related systems or networks.  Client will require that any use of Fusion Framework by Client’s Users complies with the terms and conditions of the applicable Transaction.
  3. Third-Party Software. Client agrees to use browser software that supports a data security protocol compatible with the Industry Standard protocol used by Fusion and communicated to Client. Client will follow the logon procedures that support such protocols. Client acknowledges that Fusion is not responsible for notifying Client of any upgrades, fixes or enhancements to any browser software.
  4. Transmission of Data. The processing and transmission of Client Data and communications is necessary to Client’s use of Fusion Framework. Client’s communications and Client Data will be transmitted over the internet, from Client’s infrastructure to the instance of Salesforce licensed by Client residing in a Salesforce data center. Fusion is not in the communication link between Client and the Salesforce data center. There is a possibility that Client’s communications and Client Data may be accessed by unauthorized parties when communicated across the internet, network communications facilities or other electronic means. Client agrees that Fusion is not responsible for any communication or Client Data that is lost, altered, intercepted or stored without authorization during transmission across networks.
  5. Third-party Interactions. While using Fusion Framework, Client’s Users may correspond with providers of AppExchange applications, products and services related to the Platform and the Salesforce.com CRM Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between Client and the applicable third-party provider. Fusion and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Client and a third-party provider, even if the products or services interact or are “certified,” “validated” to interact with Fusion Framework or the Platform.
  6. Modification or Discontinuation. Fusion may update or modify Fusion Framework from time to time. Fusion reserves the right to discontinue the Fusion Framework Service at the conclusion of any current Service Order term. Fusion is not liable to Client for any modification of Fusion Framework except as described in the Subscription Services warranty in the Agreement.
  7. Handling of Client Data Upon Termination. Upon termination of Client’s Service Order, Fusion shall immediately deactivate User access to Client’s account. During the 30-day period after termination, Client may request a copy of the Client Data, which Fusion will provide in .csv format.  After 30-days, this temporary, limited access will expire and the Client Data will be no longer available.  Fusion is not liable to Client or to any third-party for any termination of Client access to Fusion Framework or deletion of Client Data if Fusion is in compliance with the terms of each Service Order.
  8. Additional Terms and Conditions of Platform Provider.
  9. A Transaction does not include a subscription to use the Salesforce.com CRM Service or to use the Platform separately from Fusion Framework. Client agrees to not access, distribute or use such CRM Functionality separately unless it has entered into a separate subscription for such access or use with Salesforce.com or its authorized reseller. “CRM Functionality” is defined as access to CRM standard objects through standard tabs, related lists in custom tables, through the SFDC web services API or through reports and dashboards. CRM standard objects include campaigns, leads, opportunities, cases, solutions and forecasts. Client is expressly prohibited from developing applications or creating new objects in the Fusion Framework or on the embedded Platform licenses without written approval from Fusion, which approval will be limited to custom objects necessary to perform the intended functions of the Fusion Framework only.  com is a third-party beneficiary to this Agreement solely as it relates to the use of the Salesforce.com Platform.

[end of Attachment A]

 

 

Attachment B – Service Level Agreement

This SERVICE LEVEL AGREEMENT (“SLA”) applies to, and is incorporated by reference into, each Service Order executed by the parties. Capitalized terms not defined in the SLA are defined in the Agreement.

1. Technical, Organizational and Security Measures. Fusion will host the Client Data at Tier 3 or better (based on the Uptime Institute’s Tier Classification System for data centers) datacenter(s) located in the United States. Each data center will have the following:

a) Access Control and Physical Security: (i) 24/7 manned security with interior and exterior video surveillance; (ii) tracking of assets into and out of the datacenter; and (iii) biometric-only access to data center rooms with interior access-controlled steel cages.

b) Environmental Controls: Industry Standard humidity and temperature controls, and redundant cooling systems.

c) Power: Underground utility feeds with redundant CPS/UPS systems, redundant power distribution units (PDUs) and redundant diesel generators with on-site fuel storage.

d) Fire Detection and Suppression: VESDA (very early smoke detection apparatus) with Industry Standard fire suppression systems.

e) Networks and Connectivity: (i) Redundant fiber connecting through concrete network interconnection vaults to highly redundant internal networks; and (ii) Perimeter firewalls and edge routers; (iii) Internal firewalls and intrusion detection sensors throughout the internal network.

f) Backup: (i) Real-time replication to disk performed at each data center and near real-time replication between the primary and backup data center; (ii) Daily tape backups at all production data centers that are maintained at the same data center under strict chain of custody.

g) Recovery: Each datacenter provides production services and disaster recovery services. Recovery is on site at the primary production data center, if possible. If the recovery cannot be completed at the primary production datacenter within designated Recovery Time Objective (“RTO”) and Recovery Point Objective (“RPO”), recovery is performed at the backup data center. Disaster Recovery tests conducted no less than annually will verify RTO of 24 hours and RPO of 4 hours or better.

2. Service Levels, Support and Metrics.

2.1  Availability.  Client’s production instance of the Fusion Framework will be available at least 99.9% calculated on a rolling 90-day basis, according to the following formula (the “Availability SLA”):

[[(Total – Non-excluded – Excluded) / (Total – Excluded)] * 100] ≥ 99.9%

Where:

  1. Downtime” means that Fusion Framework is unavailable to Client or Client is unable to complete transactions on Fusion Framework. Note that only Service Disruption alerts for Client’s production instance of the Platform, as posted on www.trust.salesforce.com, constitute Downtime.
  2. Excluded” means:
    1. Any Downtime caused by a Force Majeure; and
    2. Any planned Downtime (not to exceed six hours in any rolling calendar quarter) of which Fusion gives 24 or more hours’ notice or via a conspicuous on-screen message in the Services. Fusion will use commercially reasonable efforts to schedule all planned downtime during the hours from 10:00 p.m. Friday to 3:00 a.m. Monday, U.S. Central Time.
  3. Non-excluded” means any Downtime that is not excluded.
  4. Service Disruptions” means an event or occurrence causing the Fusion Framework to impair or disrupt the functioning of the Fusion Framework.
  5. Total” means the total number of minutes in the calendar quarter.

For any partial calendar quarter during which Client subscribes to the Subscription Services, the Availability SLA will be calculated based on the entire calendar quarter, not just the portion for which Client subscribed.

If Fusion fails to comply with the Availability SLA for two or more consecutive calendar quarters, or for any three-calendar quarters during any rolling 12-calendar month period, such failure shall be deemed a material breach of the Transaction for which Client may in its discretion immediately terminate the applicable Transaction upon written notice to Fusion.

2.2  Error Management.  If the Fusion Framework fails to operate in material conformance with the Configured Functionality or if the following specified errors (each an “Error“) occur, Fusion will use Industry Standard efforts to respond to Errors, provide status updates, and restore the Subscription Services in accordance with time intervals and other requirements corresponding to the applicable Error Severity Levels set forth below.

security level graph

Status updates shall include the following information: (a) start time of Error; (b) current status of repair; (c) description of the aspect(s) of the Subscription Services that is/are unavailable to Client; and (d) estimated time of repair.

2.3  Standard Support. During the Implementation Phase (as defined in the Implementation SOW), Fusion’s implementation team provides support directly to Client. Upon completion of the Implementation, Fusion provides Client with standard post-implementation technical support. Support is initiated by Client request to the Fusion Support Portal and Fusion will respond during the hours of 8 a.m. to 5 p.m. CST, Monday through Friday, except holidays (“Normal Business Hours”). 24/7 phone support is available for Severity Level 1 issues. On-call resources will respond in accordance with Severity Level 1 Response times as set forth above.

Fusion support is provided directly to trained Client-designated administrator Users only (“Admin. User”). Support for Errors, or other warranty issues, is included at no charge. Charges may apply for support issues regarding enhancements or incremental functionality, or issues that should have been provided by a trained Admin. User and require more than 15 minutes of support resource time. For the avoidance of doubt, standard support does not include assisting program managers and end Users or assisting Admin. Users with enhancements or incremental functionality support.

Support is provided by Fusion to Admin. Users via the following process:

  1. Client end Users submit requests for support to Admin. Users using Client’s process for providing support to internal customers.
  2. Users support Client end User requests and resolve using tools and training provided by Fusion. If Admin. User is unable to resolve Client end User issue, Admin. User may submit a Support Request Ticket using the Fusion’s Client Service Portal.
  3. Fusion Support will respond to Support Request Tickets by the end of the next business day (or sooner as may be warranted based on Table 2.2).
  4. Fusion will not provide support directly to Client end Users unless such interaction is required to recreate or isolate an issue requiring resolution, and then only with the assistance of an Admin. User.

2.4 Full Copy Sandbox. Access to a Full Copy Sandbox is included in Standard Support.  “Full Copy Sandbox” means a complete copy of Client’s production organization configuration and data in separate environment.  The Full Copy Sandbox can be used for a variety of purposes, such as testing and training, without changing the data and configuration in Client’s production organization. Client may refresh its Full Copy Sandbox once every 29 days

3. Monitoring; Reporting; Audit.

3.1. Monitoring. The Fusion Framework operates on the Platform and Client’s use of the Fusion Framework and the Platform is monitored.  Alerts and Salesforce.com audit results are provided to Client at www.trust.salesforce.com/trust/status, which provides real-time, on demand access to key operational and availability status information for all of Force.com.  Fusion will provide training to Admin. Users on accessing and using the website information that is specific to Client’s production instance of the Fusion Framework.

3.2  Reporting. Fusion will provide Client with reports on the results of Industry Standard internal and third-party security assessments conducted not less than annually.  Currently, Fusion conducts the following tests: Application Vulnerability Threat Assessment, Network Vulnerability Threat Assessment, Penetration Testing, Code Review, and Security Control Framework Review and Testing.

3.3  Audit. Client shall, not more than one time per calendar year, provide Fusion with Admin. User access to its instance of the Fusion Framework for Fusion to inspect and confirm use of the Subscription Services are within the scope of the terms of this Agreement and the User subscriptions stated in the Transactional Document.  If such audit determines Client has used the Subscription Services that violates the terms of this Agreement or exceeds the limitation stated in a Transactional Document, Fusion and Client shall implement a plan to prevent such activity in the future.  If Salesforce audits Client’s use and such audit reveals any unauthorized use, Client shall hold Fusion harmless for any costs Salesforce imposes on Fusion.

4. Escalation Procedures. Fusion will maintain the following escalation process to aid in Error resolution should any outstanding Errors warrant escalation because Fusion has not provided Services within the parameters set forth in this SLA or responded to an Error within the period set forth in Table 2.2.

Fusion’s escalation process, for addressing detectable failures affecting productive use of Subscription Services, is as follows:

  1. Either: (a) a Client Admin. User submits a Support Request Ticket using either Fusion’s Client Service Portal, Support Email Address, or via Fusion Support Phone Number; or (b) Fusion notifies impacted clients via a Product Service Notification email, whichever occurs earlier, Fusion will advise the Client on the circumstances and set expectations.
  2. Severity Level 1 issues will be escalated within four hours to Fusion’s Chief Technology Officer.
  3. Severity Level 2 and Severity Level 3 will, by default, be resolved by Fusion’s Director of Client Support
  4. Any issue (a) determined to be related to Fusion’s packaged products, and (b) unresolvable by Fusion Client Support Services is internally escalated to the Fusion Product Management team.
  5. Any escalated issue that requires more than 24 hours to resolve will be escalated to Fusion’s Director of Product Management.
  6. Any escalated issue that requires more than two business days to resolve will be escalated to Fusion’s Director of Product Management.
  7. Any issue that will jeopardize achieving the Availability SLA will be escalated as soon as possible to Fusion’s Chief Technology Officer and Fusion’s C.E.O.
  8. Client may at any time, and in its sole discretion, challenge the escalation process by contacting the Client Account Executive and requesting a process review and expedited escalation. Client Account Executives have direct access to Fusion Senior Management and are available as client advocates regarding Service issues.

[end of Attachment B]