IMAGINECRM PROFESSIONAL SERVICES AGREEMENT

Version Date: April 1, 2024

BY EXECUTING A STATEMENT OF WORK OR SIMILAR ORDERING DOCUMENT (“SOW”) THAT REFERENCES THIS IMAGINECRM PROFESSIONAL SERVICES AGREEMENT (“AGREEMENT”), THE ENTITY NAMED IN THE SOW (“CLIENT”) AGREES TO THE TERMS OF THIS AGREEMENT. IF CLIENT IS A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT THEY HAVE THE LEGAL AUTHORITY TO BIND CLIENT TO THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE CLIENT SIGNS THE SOW (“EFFECTIVE DATE”).

1.          Professional Services.  

1.1        Scope of Professional Services. Subject to Client’s payment of all applicable fees, ImagineCRM will provide the professional services (“Professional Services”) to Client as specified in each SOW in accordance with the timeframes set forth in the SOW. If the Professional Services include the provision of deliverables, such deliverables will be described in the SOW (“Deliverables”). If so indicated in the SOW, the Deliverables may include the provision and implementation of certain pre-existing, proprietary ImagineCRM modules for use with Salesforce products for the purpose of expanding such products’ functionality for industry-specific use cases (“Accelerators”).

1.2        Change Orders. Any requested changes to the Professional Services must be agreed to by both parties in a written change order (“Change Order”) that describes the changes to the Professional Services, as well as any changes to schedules and fees (if any).

1.3        Client Cooperation. ImagineCRM’s ability to perform the Professional Services in a timely and effective way is dependent on Client’s cooperation. Without limiting the generality of the foregoing, and in addition to any specific requirements set forth in the SOW, Client agrees to (i) assign a project lead who acts as the primary point of contact for ImagineCRM; (ii) promptly respond to ImagineCRM’s questions and requests for information; and (iii) provide necessary access to Client data, software and systems as necessary for ImagineCRM to perform the Professional Services.   ImagineCRM is not responsible for any schedule slippage resulting from Client’s failure to provide such cooperation, and any resulting delays may result in Client owing additional fees to cover such delays.

1.4        Protection of Client Data.  ImagineCRM will maintain appropriate technical and organizational measures for the protection of the security, confidentiality and integrity any Client data that it has access to in connection with the performance of the Professional Services (“Client Data”). ImagineCRM will access and use such Client Data only for purposes of performing the Professional Services. Unless otherwise set forth in the SOW, to the extent ImagineCRM has copies of any such Client Data, ImagineCRM will delete all copies of such Client Data within 30 days of the expiration or termination of the applicable  SOW.

2.          Fees, Expenses and Payment Terms.

2.1        Fees and Expenses. Client will pay ImagineCRM the fees for the Professional Services as set forth in the applicable SOW.  If Client is responsible for any expenses in connection with the Professional Services, such expenses will be set forth in the SOW.  

2.2        Payment Terms. Unless otherwise set forth in the SOW, fees are due and payable 30 days from the invoice date. Except where Client is disputing an invoice in good faith and working diligently to resolve the dispute, ImagineCRM may (i) impose interest on overdue amounts at the rate of 1.5% per month, or the maximum legal rate, whichever is lower; and (ii) suspend its performance of Professional Services until such overdue amounts are paid in full.  

2.3        Taxes. ImagineCRM’s fees do not include taxes, and Client is responsible for paying all taxes, if any, associated with its purchases of the Professional Services.

3.          Intellectual Property.

3.1        Client Intellectual Property. Client does not grant to ImagineCRM any rights in or to Client Data or any other Client intellectual property except to the extent such rights are required for ImagineCRM to perform its obligations under this Agreement. Client retains all right, title and interest in the Client Data and all other Client intellectual property.

3.2        License to Professional Services and Deliverables. Subject to Client’s  payment of fees due under an applicable SOW, ImagineCRM grants Client a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use, solely for its internal business purposes in connection with its use of its Salesforce products, any Deliverables provided  by ImagineCRM to Client under an SOW (“Licensed IP”). ImagineCRM retains all right, title and interest in the Licensed IP.

3.3        Separately Licensed Third Party Products.  Client must have a valid license to use the applicable Salesforce products before ImagineCRM can begin performance of the Professional Services.  In addition, if the SOW states that ImagineCRM will install certain other third party products or widgets for use with Client’s Salesforce products (“Third Party Products”), then Client is responsible for obtaining all necessary rights to such Third Party Products directly from the provider of such Third Party Products.  This Agreement does not apply to Client’s use of such Third Party Products, and terms governing such Third Party Products are directly between Client and the applicable provider of such Third Party Products. ImagineCRM is not a party to any agreement between Client and the provider of any such Third Party Products.

4.          Confidentiality.

4.1        Definition. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is either designated as confidential at the time of disclosure or that the Receiving Party should reasonably understand to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes the terms and conditions of this Agreement and all SOWs (including pricing), as well as business and marketing plans, strategies, data, technology and technical information, product plans and designs, and business processes disclosed by such party. Without limiting the generality of the foregoing, the Accelerators  are the Confidential Information of ImagineCRM. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

4.2.       Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.

4.3        Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

5.          Warranties and Disclaimer.

5.1        Mutual Warranties. Each party represents that it has validly entered into this Agreement and has the legal authority to do so.

5.2        ImagineCRM Warranties. ImagineCRM warrants that the Professional Services and Deliverables will be provided in material conformance with the description set forth in the SOW.  For any breach of this warranty, Client’s exclusive remedy, and ImagineCRM’s entire liability,  is (i) ImagineCRM’s re-performance of the deficient Professional Services; or, if ImagineCRM is unable to reperform the deficient Professional Services, (ii) the refund by ImagineCRM to Client of the amounts paid for the deficient Professional Services. Client must make any claim under the foregoing warranty to ImagineCRM in writing within 30 days of performance of such deficient Professional Services in order to receive these warranty remedies.

5.3        Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

6.          Indemnification.

6.1        Mutual Indemnity. Each party (“Indemnitor”) will defend the other party (“Indemnitee”) against any claim, demand, suit or proceeding (“Claim”) made or brought against the Indemnitee by a third party (i) arising out of death, personal injury or damage to tangible property to the extent caused by Indemnitor’s personnel in its performance or receipt of, as applicable, the Professional Services, or (ii) alleging that any information, design, specification, instruction, software, data or material furnished by the Indemnitor hereunder (“Furnished Material”) infringes or misappropriates such third party's intellectual property rights, and will indemnify the Indemnitee from any damages, attorneys fees and costs finally awarded against the Indemnitee as a result of, or for amounts paid by Indemnitee under a settlement approved in writing by Indemnitor of, any such Claim, provided that the Indemnitee: (a) promptly gives the Indemnitor written notice of the Claim; (b) gives the Indemnitor sole control of the defense and settlement of the Claim (except that the Indemnitor may not settle any Claim unless the settlement unconditionally releases the Indemnitee of all liability); and (c) gives the Indemnitor all reasonable assistance, at the Indemnitor’s cost. The Indemnitor will have no liability for any such Claim described in subsection (ii) above to the extent that (1) it arises from specifications provided by the other party; or (2) such claim is based on modifications to the Furnished Material by anyone other than Indemnitor. In the event that some or all of the Furnished Material is held or is reasonably believed by the Indemnitor to infringe or misappropriate, the Indemnitor may, in its discretion and at no cost to the Indemnitee, (A) modify or replace the Furnished Material so it is no longer claimed to infringe or misappropriate; (B) obtain a license for the Indemnitee’s continued use of the Furnished Material in accordance with this Agreement; or (C) require return of the affected Furnished Material and all rights thereto from the Indemnitee. If the Indemnitor exercises option (C), either party may then terminate the relevant SOW upon written notice given within 30 days after the Indemnitor’s exercise of such option, in which case the Indemnitor will refund any prepaid, unused amounts attributable to such Furnished Materials.

6.2        Exclusive Remedy. This Section 6 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.

7.         Limitation of Liability.  

7.1        Disclaimer of Consequential Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

7.2        Liability Cap. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CLIENT UNDER THE SOW OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

7.3        Exclusions. The limitations set forth in Sections 7.1 and 7.2 above do not apply to a party’s (i) fraud, gross negligence or intentional misconduct, or (ii) violation of the other party’s intellectual property rights.

8.          Term and Termination.

8.1        Term. This Agreement commences on the Effective Date and will remain in effect until terminated in accordance with this section.

8.2.       Termination for Convenience. Either party may terminate this Agreement at any time for convenience upon 10 days’ written notice to the other. To the extent there are any SOWs in effect when a party terminates this Agreement, such SOWs shall remain in effect and continue to be governed by this Agreement as if it had not been terminated.

8.3        Termination for Cause. Either party may terminate this Agreement and/or any SOW for cause (i) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such 30 day period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

8.4        Effect of Termination. Unless otherwise set forth in the SOW, upon any termination of this Agreement or a SOW, Client will pay for all Professional Services provided prior to the effective date of termination.  If Client terminates this Agreement for cause and has prepaid for Professional Services, ImagineCRM will refund any fees attributable to the period after the effective date of termination. The following Sections will survive termination or expiration of this Agreement: 2 (Fees, Expenses and Payment Terms), 3 (Intellectual Property), 4 (Confidentiality), 7 (Limitation of Liability), 8 (Term and Termination) and 9 (General).

9.         General.  

9.1        Insurance. During the term of this Agreement, each party will maintain, at its own expense insurance appropriate to its obligations under this Agreement, including, as applicable, general commercial liability, errors and omissions, employer liability, automobile insurance, and worker’s compensation insurance as required by applicable law.

9.2        Compliance with Laws. Each party will comply with all laws and governmental rules and regulations that apply to such party in its performance of its obligations and exercise of its rights under this Agreement.

9.3        Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

9.4        Entire Agreement and Order of Precedence. This Agreement includes all SOWs, Schedules, Exhibits and Change Orders related to the Professional Services. This Agreement is the entire agreement between Client and  ImagineCRM regarding the provision and receipt of Professional Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. Notwithstanding any language to the contrary therein, no terms or conditions stated in Client’s purchase order or in any other Client ordering document will be incorporated into or form any part of this Agreement, and all such terms or conditions are deemed void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable SOW (including any Change Orders or amendments thereto), (2) any exhibit, schedule or addendum to this Agreement, and (3) the body of this Agreement.

9.5.       Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes. 9.6.           No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

9.7        Personnel. ImagineCRM will be responsible for the performance of Professional Services by its personnel, including subcontractors.

9.8        Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

9.9        Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

9.10      Feedback. Client is not obligated to provide ImagineCRM with any feedback or suggestions regarding the Professional Services or Deliverables; however, if Client chooses to do so, ImagineCRM may use and modify such feedback or suggestions for any purpose without restrictions or payment to Client.

9.11      Force Majeure. Neither party is liable for failure to perform its obligations under this Agreement to the extent that performance is delayed, prevented, restricted or interfered with as a result of any causes beyond its reasonable control, including acts of God, terrorism, labor action, fire, flood, earthquake, denial of service attacks and other malicious conduct, utility failures, power outages, or governmental acts, orders, or restrictions.

9.12      Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld), provided however, either party may assign this Agreement in its entirety (including all SOWs, as applicable), without the other party’s consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. In the performance of the Professional Services ImagineCRM may use individual contractors to supplement its workforce, and ImagineCRM is responsible for the acts, omissions and performance of all such personnel.

9.13      Notices. Any notice or other communication under this Agreement given by any party to any other party must be in writing and will be effective upon delivery as follows: (i) if to Client, (a) when delivered via registered mail, return receipt requested, to the address specified in the SOW or otherwise on record for Client; or (b) when sent via email to the email address specified in the SOW or otherwise on record for Client; and (b) if to ImagineCRM when sent via registered mail, return receipt requested, to ImagineCRM, Inc., 115 W. California Blvd., #113, Pasadena, CA 91311, Attn: Daisy Sayre Garcia, or such other address which ImagineCRM may specify from time to time, with a copy to daisy@imaginecrm.org. 

9.14      Governing Law; Venue. This Agreement is governed by and construed under the laws of the State of California, without regard to any conflict of law rules or principles, and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods. Each party consents to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County, California, for any legal action brought by a party in connection with this Agreement