Sage Partner Cloud Terms and Conditions Overview
These Terms and Conditions (together with all applicable Attachments, the “Agreement”) govern the legal relationship between DSD Business Systems (DSD) and the Customer identified in the applicable Attachment(s).
1 - Definitions
Words used in this Agreement with their initial letters capitalized have the meanings given to them in this section or where they are elsewhere defined in this Agreement. Any term defined in the singular will have the corresponding definition in the plural (and vice versa). As used in this Agreement:
1.1 “Attachment” means any written pricing schedule, statement of work, amendment, addendum or other similar document that is executed by the parties and makes reference to these Terms and Conditions, each of which are hereby incorporated by reference into this Agreement.
1.2 “Confidential Information” means non-public information disclosed by one party to the other in any form that (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
1.3 “Configuration Requirements” means those specifications identified in the applicable Attachment that must be met by Customer prior to and as a condition for the performance of the Services.
1.4 “Customer Configuration” means that selection of services made from time to time by Customer by means of the Customer Portal and not the configuration of the Customer’s ERP Software or related systems hosted.
1.5 “Customer Portal” means the online interface provided by DSD and Sage Software to enable Customer to access and configure information relating to its receipt of Services.
1.6 “Documented Defect” means a material deviation between the then-current Service and its Documentation.
1.7 “Named Users” means those individuals identified in the applicable Attachment or by means of the Customer Portal who are authorized by Customer to access and use the Services in accordance with this Agreement.
1.8 “Sensitive Data” means any: (i) personally identifiable information as defined under applicable data protection or privacy law and includes information that can be used to identify an individual, either by itself or when combined with other information; (ii) trade secrets; (iii) financial records; or (iv) other regulated or confidential information.
1.9 “Services” means those services, identified in an applicable Attachment, which DSD will provide in accordance with this Agreement.
1.10 “Unsupported Services” means any service (including networks, 3rd party modems or firewall, anti-virus, hardware, internet service providers, operating systems, software applications) that is designated as “test”, “beta”, “sandbox”, “early access”, “not supported by publisher or developer”, or similar designation, or which is designated as unsupported by DSD in its sole discretion.
2 - Services
2.1 Upon receipt of payment of the fees when due, DSD hereby grants to Customer a non-exclusive, non-transferable (subject to Section 4 below), non-assignable, non-sub- licensable, time limited right to use the Services.
2.2 The Services are provided by DSD and made available to Customer by DSD setting up an account for the Service and providing Customer with login information to the Customer Portal. During the term, DSD will make the Services available to Customer in accordance with the terms and conditions of this Agreement.
2.3 Customer is responsible for maintaining and keeping confidential its Customer Portal information, including passwords. Customer is responsible for all uses of and activities undertaken with Customer’s login credentials. Customer will immediately notify DSD of any unauthorized use of Customer’s login credentials of which Customer becomes aware.
2.4 DSD shall have no obligation to provide Services to the extent that the Configuration Requirements are not met, to any individuals who are not Named Users, or in connection with any Unsupported Services.
2.5 Service Guidelines are found at https://www.dsdinc.com/services/sage-partner-cloud/guidelines/ which are hereby incorporated by reference to include Emergencies, Network Availability and Connections, Severity Levels, Availability of Application Servers and Maintenance.
3 - Customer Obligations
3.1 Customer hereby authorizes DSD to access the Customer Configuration for the purpose of performing the Services and for invoicing and payment purposes for the Services.
3.1.1 You are required to provide administrative and password information for each application we operate for you as requested by us.
3.2 Customer agrees to notify DSD immediately of any known or suspected unauthorized use of your account, or any known or suspected security breach, and to cooperate with DSD’s reasonable investigation of outages, security issues concerning the Services, as well as any suspected breach of the Agreement.
3.3 You are responsible for keeping your account permissions, billing, and all other account information up to date. You agree that the use of Customer Data or Customer Configuration that you provide to DSD is solely your responsibility unless otherwise agreed to.
3.4 You are responsible for all activity occurring on or through your account regarding any transmission of information. You represent and warrant that you shall abide by all applicable laws in connection with the use of the DSD Service, including those related to data privacy, international communications, and the transmission of technical and/or personal data.
3.5 An appropriate Internet connection is required for proper connection to the Services. Customer is responsible for procuring and maintaining the network connections that connect Customer’s network to the Services, including, but not limited to, browser software that supports protocols used by DSD, including Secure Socket Layer (SSL) protocol or other protocols accepted by DSD, and to follow procedures for accessing services that support such protocols. DSD is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such third-party software or for any compromise of data, including Customer Data, transmitted across computer networks or telecommunications facilities (including but not limited to the internet) which are not owned, operated or controlled by DSD. DSD assumes no responsibility for the absence, availability, reliability or performance of any connections as described in this provision.
3.6 You are responsible to allow your network(s), modem(s), firewall(s) and anti-virus configurations to freely allow access our Service and enable all your end-users to use our Service as designed by us.
3.6.1 DSD is not required under this Agreement to troubleshoot your connection, network, hardware or local software.
3.6.2 Troubleshooting your environment is performed as a complimentary service and at our sole discretion. If we independently verify that your network, components or other services used are not configured or operating properly to our standards, you agree to a reduced level of Support and Service until your environment or components causing the interference is corrected by you. Terminating this Agreement without correcting identified.
3.6.3 Printing and Scanning. Although most printers and scanners are compatible with Customer’s Environment, DSD cannot guarantee that Customer’sprinters and scanners will work in Customer’s Environment. DSD recommends that Customer purchase the latest updated equipment when possible, use TWAIN compliant scanners and cloud ready printers and scanners. DSD discourages the use of non-networked printers and scanners for use in Customer’s Environment. In some instances, Customer may need third party software for the printers and scanners to fully function properly across the remote desktop connection, which can be purchased at Customer’s sole expense, from us, and there are no guarantees that such software will work. DSD cannot guarantee that all functions (including paper bin selection) will be fully functional in Your Environment.
3.7 At your expense, it is your responsibility to maintain all of your equipment including all hardware devices, operating systems, local applications not hosted by us, other hardware like printers, scanners (your Environment). From time to time, we will recommend the replacement, update or upgrade of hardware or software. Support is limited to environments that do not meet our specifications.
3.8 Price Summary does not consider changes or requirements to Publisher Applications that we are not aware of or were not made available to us at the time of providing you our Price Summary, the Price Summary is an estimate. Customer is responsible for providing all technical and installation specification for all products used in their Service prior to commencement of Service. If additional resources are required after Service begins you are financially responsible for all changes or effort. We will notify you and make changes to your price, plan or both as required and reflect those changes in your invoice.
3.9 Changes to the Terms and Conditions. We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on our Website. Your continued use of the Services following the posting of the revised Agreement means that you accept and agree to the changes. You are responsible to check this page each time you log into our website to use our Services so you are aware of any changes, as they are binding on you.
4 - Intellectual Property
4.1 As between the parties, DSD shall retain all right, title and interest in and to the Services including all modifications, derivative works or improvements, and all related intellectual property rights. Customer acknowledges that third party software may be provided or otherwise delivered with the Services. Customer may only use such third- party Services as integrated with and part of the Services. The licensors of the third- party Services are intended beneficiaries of this Agreement, as it pertains to Customer’s rights to use such Services. DSD reserves all rights in the Services and Documentation which it has not expressly granted to Customer under this Agreement.
4.2 Customer shall not (and shall not allow any end user or third party to) (i) decompile, disassemble, reverse assemble, or reverse engineer the Services or attempt to discover any source code or underlying ideas or algorithms of the Services, (ii) remove any product identification, copyright or other notices embedded within the Services, (iii) modify or create a derivative work of the Services, (iv) remove or export any Services from the United States in violation of applicable laws or regulations, (v) relicense, provide, lease or lend the Services to any third party, or use the Services for timesharing or service bureau purposes, (vi) copy the Services or any portion thereof except as provided herein, or (vii) disclose any performance information or analysis (including, without limitation, benchmarks) from any source relating to the Services.
5 - Customer Data
5.1 Customer will retain ownership of all Customer’s information, configurations, applications, and/or proprietary systems (collectively, “Customer Data”). You hereby authorize DSD and its subcontractors to access Customer Data to use, modify, copy, delete, distribute, or otherwise process Customer Data to the extent necessary to perform the Services and fulfill DSD’s obligations hereunder, including, without limitation, responding to Customer’s support requests.
5.2 You are responsible at all times to ensure that your data remains in compliance with applicable law, and for the accuracy, quality, integrity, reliability, appropriateness, and right to use all of your Customer Data unless otherwise agreed to in a separate agreement.
6 - Third Party Use and Rights
6.1 Customer may authorize third parties to assist Customer in the management of information created by use of the Service, provided that: (i) such activities are within the scope of the activities Customer is itself authorized to perform under this Agreement, ii) such third party’s acts are primarily for the direct or indirect benefit of Customer, and (iii) such third parties are not charged a fee by Customer for such activities. Customer is prohibited from using the Service as an application software provider, or in any timesharing, service bureau, or other commercial arrangement of any kind that makes the Services available to third parties primarily for the third party’s own uses. Except as expressly provided herein, no third party has any rights under this Agreement. Customer is liable for any use of the Services by third parties using Customer’s account.
6.2 Notwithstanding the foregoing, no third-party is permitted any access to the Environment directly or indirectly for security, operational quality, and/or proprietary reasons unless previously authorized in writing by DSD, including for installing unattended remote access utilities.
6.3 Customer agrees to permit DSD to engage any third-party provider that DSD deems necessary to assist for the purpose of performing the Services in the same manner and fashion as DSD would engage Customer directly. DSD makes no warranty or guarantee as to the quality, service, or availability of any third- party.
7 - Service Fee and Payment
7.1 Customer agrees to pay the Service Fee in the amounts and on the schedule set forth in the Access Level Agreement and/or related monthly invoice. Service Fees are due on the first day of every month, in advance, for the following month’s Services, and are billed five (5) days in advance of the beginning of each month and due by the 5th day of the month. Payments one (1) day overdue result in the immediate suspension of the Services. DSD reserves the right not to notify Customer of such suspension.
7.2 By request, suspended Services may be re-connected upon receipt of full payment of any past due Service Fees, plus a Reconnection Fee equal to one-quarter (25%) of the then-outstanding Service Fee due at suspension of the Services for each week between such suspension and Customer’s request for re-connection. For the purposes of this calculation, each week is considered as a single unit (e.g. day 1-7 = Week 1; day 8-14 = Week 2; day 15-21 = Week 3; etc.).
7.3 If Customer chooses to subscribe to additional Services, or to decrease existing Services, during the Term, such increases or decreases are managed by Customer via the Customer Portal. DSD will automatically adjust Customer’s monthly Service Fee(s) based on the Access Level Agreement agreed to by Customer, and as reflected in the Customer Portal only.
7.4 Professional services will be provided on project basis. Professional services provided for purposes of onboarding (including but not limited to assistance with data migration from other providers, configuration of servers, and other tasks directly related to “moving in”), unless otherwise specified, is included in the Setup & Migration Price (one-time) in the SLA. If any services performed at Customer’s location, Customer will reimburse DSD for any out-of-pocket expenses.
7.5 Service Fees do not include any excise, sales, use, value added or other taxes, tariffs or duties that may be applicable to the Service. When DSD has the legal obligation to collect such taxes, tariffs or other duties, the amount of such taxes, tariffs and duties will be invoiced to Customer and Customer will pay such amount unless Customer provides DSD with a valid tax exemption certificate authorized by the appropriate taxing authority. All payments by Customer for the Service will be made free and clear of, and without reduction for, any withholding taxes. Any such taxes which are otherwise imposed on payments to DSD will be Customer’s sole responsibility. Customer will provide DSD with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by DSD to establish that such taxes have been paid.
7.6 Customer will pay all Service Fees using a payment method that is maintained on file with DSD and is limited to ACH electronic funds transfer from your bank, or such other method as approved by DSD. Customer is responsible for all fees, including processing fees, associated with making a payment via wire transfer and non-sufficient fund penalties.
7.7 No refunds or credits will be made if Customer does not use the Service during the Term. Service Fees that are not disputed by the 5th of the month are deemed accepted and payable.
7.7.1 No Communication. If Customer does not communicate the status of their account with DSD directly, the account is deemed valid and all outstanding Service Fees are payable according to the terms in this Section.
7.8 DSD may adjust the Service Fees annually at the start of every calendar year except for Customers under a multi-year agreement.
8 - Term and Termination
8.1 This Agreement shall become effective on the date of Customer’s acceptance as set forth in the Price Summary (the “Effective Date”), and unless terminated earlier as provided herein, will continue in effect for the term of the Plan selected from the Effective Date (the “Term”), and will automatically renew at the end of the Term for each subsequent month at the then Monthly Price unless either party provides to the other written notice no later than ninety (90) days prior to the then-current scheduled expiration of the Term or Renewal Term, as applicable, of that party’s intention that this Agreement not be renewed.
8.2 Either party may terminate this Agreement if the other party is in material breach of its undertakings under this Agreement and the other party fails to remedy such breach within a period of thirty (30) days from receipt of written notice requiring such remedy, except that in the event of unlawful conduct, fraud, or material misrepresentation by either party, the other party will be entitled to terminate this Agreement immediately.
8.3 Either party may terminate this Agreement immediately by providing written notice to the other party if the other party becomes insolvent, if a petition in voluntary or involuntary bankruptcy is filed by or against the other party under any chapter of the United States bankruptcy laws and not bonded or discharged within thirty (30) days of the date a receiver or trustee is appointed or if the other party makes an assignment for the benefit of creditors.
8.4 Either party may terminate this Agreement for convenience upon thirty (30) days written notice to the other party.
8.5 DSD may terminate this Agreement immediately in case of: (a) any undisputed invoice not being paid within five (5) days from the invoice date; (b) DSD’s becoming aware of what DSD deems a credible claim that Customer’s use of the Service violates any applicable laws, rules, or regulations; (c) Customer’s use of the Services in violation of this Agreement, or in a manner that interferes with the normal operation of the Services or DSD Environment; or (d) the security of the Services, Data, Environment, or Customer’s access rights being compromised, or in any event where DSD determines that suspension of the Services is needed to protect the integrity of the Services or the Environment.
8.6 Without limiting any other remedy available to DSD, if DSD terminates this Agreement for Customer’s material breach, or if Customer terminates this Agreement for convenience or in any manner other than as set forth in section 8.2 or 8.3 above, Customer shall pay all fees due under this Agreement through the date of termination plus a termination fee in an amount equal to the following:
For termination of a 3 year agreement occurring in months 1-12 of Customer’s Agreement eighty percent (80%) of the monthly recurring fees for the remaining portion of the Term; for termination occurring in months 13 – 24 of Customer’s Agreement, sixty-percent (60%) of the monthly recurring fees for the remaining portion of the Term; for termination occurring in months 25 – 36 of Customer’s Agreement, thirty-percent (30%) of the monthly recurring fees for the remaining portion of the Term; for Agreements less than 12 months, twenty-percent (20%) of the remaining total balance; or the total of $500 per Application Installed (MS SQL is considered an application), free months offered, software discounts or any service offered, whichever is greater. Such fee will be due on such termination.
8.7 Upon termination or expiration of this Agreement, all rights granted to Customer to access and use the Service will likewise terminate. Each party shall also: promptly return to the other party, or certify the destruction of (i) all Confidential Information; and (ii) any other data, programs and materials delivered by a party for purposes of performing this Agreement.
8.8 Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement.
9 - Security
9.1 DSD maintains certain administrative, physical and technical safeguards designed to improve the security, confidentiality and integrity of the Services. Such safeguards include, but will not be limited to, measures designed to prevent access, use, modification or disclosure of Customer Data by DSD personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with this Agreement, or (c) as Customer expressly permits in writing. Customer acknowledges and agrees that no such measures are capable of guaranteeing complete security, including with respect to technological failures, human error, and concerted attacks.
9.2 Customer must implement and use commercially reasonable security safeguards in connection with its use of the Services and Environment, including, but not limited to (a) appropriately securing and encrypting Sensitive Data stored on or transmitted through the Customer Configuration, (b) properly securing Customer infrastructure from malicious attacks or exposure that could infect, damage, degrade or otherwise negatively impact the Service or Environment, and (c) taking appropriate measures to prevent unnecessary access to Sensitive Data by any third party.
11 - Representations and Warranties
11.1 Each party represents and warrants to the other party that it is a business organization duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, has all requisite power and authority to carry on its business and to own and operate its properties and assets.
11.2 DSD warrants that (i) it will provide the Service with commercially reasonable care and skill, and (ii) the Service will function without a Documented Defect. Customer must give DSD notice of a Documented Defect within thirty (30) days from when Customer becomes aware of the Documented Defect. DSD’s sole obligation with respect to a breach of the foregoing warranty shall be, using commercially reasonable efforts, to repair or replace the Service.
11.3 DSD (defined in this section as DSD’s parent, affiliates, subsidiaries and their respective officers, directors and employees) makes no other warranty, express or implied, as to the Service, the associated documentation or any other goods or services provided by DSD to Customer.
11.4 Customer represents and warrants that (i) its use of the Service will comply with and be in accordance with all applicable laws and regulations, including but not limited to all laws and regulations specifically addressing Customer’s industry, and (ii) that the Customer Data will not infringe or misappropriate the intellectual property or other rights of any third party.
11.5 Publisher’s Software affirmatively accepted by Client and herein, “Sage,” or “Application”, means a non-transferable license to deploy Application on Customer’s Service and is otherwise governed by all terms and policies set forth by Publisher. For further information on these terms, contact Publisher directly. DSD DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF PUBLISHERS’ SYSTEM. Publisher’s license will be deemed part of Customer’s Service. Thus any suspension or termination of Customer’s Service will also result in a return of Customer’s license.
11.6 Microsoft Azure (Azure) affirmatively accepted by Client and herein, “Azure” means a non-transferable license to deploy Azure for the Customer’s Service and is otherwise governed by all terms and policies set forth by Microsoft Azure. For further information on these terms, contact Microsoft directly. DSD DOES NOT WARRANT THE PERFORMANCE, UPTIME, OR FUNCTIONALITY OF AZURE. Azure will be deemed part of Customer’s Service. Thus any suspension or termination of Customer’s Service will also result in a corresponding suspension or termination of the Azure environment.
11.7 Microsoft System Center Endpoint Protection affirmatively accepted by Client and herein, “Microsoft System Center Endpoint Protection” means a non-transferable license to deploy Microsoft System Center Endpoint Protection product on Customer’s Service and is otherwise governed by all terms and policies set forth by Microsoft. For further information on these terms, contact Microsoft directly. DSD DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF MICROSOFT SYSTEM CENTER ENDPOINT PROTECTION. Microsoft System Center Endpoint Protection license will be deemed part of Customer’s Service. Thus any suspension or termination of Customer’s Service will also result in a corresponding suspension or termination of the Microsoft System Center Endpoint Protection license.
11.8 TS Scan. In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Customer and herein, “TS Scan” refers to a scanning solution produced by TerminalWorks that can enable Customer’s to use scanners attached to a local workstation to scan to Customer’s Environment in certain instances where Customer is not otherwise able to scan directly to Customer’s Environment. The fee paid for TS Scan is a monthly, however, if Customer has previously purchased TS Scan and needs to add users, bringing the total of users into a higher tier than originally purchased, additional fees will apply. DSD DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF TS SCAN.
11.9 TS Print. In any Service Order Form and/or Service Order Addendum (if any) affirmatively accepted by Customer and herein, “TS Print” refers to a printing solution produced by TerminalWorks that enables Customer’s to use printers attached to a local workstation to print from Customer’s Environment in certain instances where Customer is not otherwise able to print directly from Customer’s Environment. The fee paid for TS Print is monthly, however, if Customer has previously purchased TS Print and needs to add users, bringing the total of users into a higher tier than originally purchased, additional fees will apply. DSD DOES NOT WARRANT THE PERFORMANCE OR FUNCTIONALITY OF TS PRINT.
12 - Disclaimer
To the maximum extent permitted by applicable law and except as expressly provided in this Agreement, the Service is provided “as is” and “as available”, with all faults and without warranty of any kind. Except as expressly provided in this Agreement, DSD makes no warranties or representations to Customer with respect to the Service or otherwise in connection with this Agreement, whether oral or written, express, implied or statutory. Without limiting the foregoing, any implied warranty or condition of merchantability, and the implied warranty or condition of fitness for a particular purpose, are expressly excluded and disclaimed.
13 - Indemnification
13.1 DSD will defend, indemnify, and hold harmless Customer from and against any and all third party claims and will pay any liabilities, losses, damages, claims, costs, and expenses that may be finally awarded against Customer (including reasonable attorneys’ fees) to the extent arising out of any claimed infringement by the Services of any U.S. copyright, trademark, or trade secret existing as of the Effective Date; provided that (a) Customer notifies DSD in writing within thirty (30) calendar days of its receipt of notice of the claim, (b) DSD has sole control of the defense and settlement of the claim, and (c) Customer provides DSD with all reasonable assistance, information, and authority necessary to perform DSD’s obligations under this paragraph. The obligations will not apply to the extent any infringement arises from any use of the Services in a manner not authorized by DSD. In the event that some or all of the Services are held by a court of competent jurisdiction to be infringing, then DSD will, at its option and expense: (i) modify the Services to be non- infringing in a manner that the Services’ functions are not materially modified; or (ii) terminate this Agreement or the affected Services and provide a prorated refund of any fees paid in advance for the affected Services. This section sets forth Customer’s sole and exclusive remedies for any claim of infringement related to the Services or any other intellectual property licensed under this Agreement.
13.2 Customer will defend, indemnify, and hold harmless DSD (defined for purposes of this section as DSD’s parent, affiliates, subsidiaries and their respective officers, directors and employees) from and against any and all third party claims and will pay any liabilities, losses, damages, claims, costs, and expenses (including reasonable attorneys’ fees) resulting from such claims, resulting from or connected with, in whole or in part: (a) Customer’s use of the Services or Third Party services; (b) any infringement or alleged infringement by the Customer Configuration, Data of any Third Party intellectual property rights; (c) any breach or alleged breach by Customer of this Agreement, including any warranty contained in this Agreement; (d) Customer’s consultant, implementor or 3rd Party solution provider who has access to your Service; (e) any violation or alleged violation by Customer or Customer End Users of a Third Party’s rights, including, without limitation, any actual or alleged infringement or misappropriation of a Third Party’s copyright, trade secret, patent, trademark, privacy, right of publicity, or other proprietary right; (f) any damage caused by or alleged to have been caused by Customer or Customer End Users to the Environment, Site or Services; or (g) any actual or alleged violation or noncompliance by Customer or Customer End Users with any applicable law, court order, rule or regulation in any jurisdiction.
14 - Limitation of Liability
DSD (defined for purposes of this section as DSD’s parent, affiliates, subsidiaries and their respective officers, directors and employees) shall not be liable to Customer or any third party for any indirect, incidental, special, consequential, punitive, or exemplary damages arising out of or related to this Agreement under any legal theory, including but not limited to lost profits, business interruption or infringement, or cost of substitute service or software, whether incurred by Customer internally or in connection with any third party.
DSD is not responsible for any lost data except if the loss of data is caused by the gross negligence of DSD while performing backup of the Customer data. DSD’s aggregate liability under this Agreement shall not exceed the amount of the Service Fee paid by Customer for use of the Service under this Agreement during the one (1)month period immediately preceding the claim giving rise to such liability. The limitation provisions of this section shall be applicable to any claim filed by Customer arising out of or relating to any separately licensed software that may be used with the Service. Customer must, in order to preserve its right to compensation, give notice of any claim within one (1) month from when Customer became aware of the basis for the claim.
15 - Dispute Resolution
15.1 Each party agrees that any dispute between the parties relating to this Agreement will first be submitted in writing to a panel of two senior executives of each party, who will promptly meet and confer (telephone communications sufficient) in an effort to resolve such dispute through good faith consultation and negotiation. Each party’s executives shall be identified by notice to the other party, and may be changed at any time thereafter also by notice to the other. Any decisions of the executives will be final and binding on the parties. In the event the executives are unable to resolve any dispute within thirty (30) days after submission to them, either party may then commence legal proceedings as provided in this Agreement.
15.2 Nothing in this section, however, requiring informal dispute resolution prior to instituting legal proceedings will prohibit either party from seeking injunctive relief in situations where such proceedings may be appropriate, including but not limited to threatened or actual infringement of intellectual property or misuse or disclosure of proprietary or confidential information.
15.3 Any dispute arising under this Agreement will be subject to binding arbitration by a single arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The arbitration will be held in or near Costa Mesa, California. The arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction.
16 - Incorporated by Reference
Some terms are incorporated into this Agreement by reference to pages on the DSD website at https://www.dsdinc.com/services/sage-partner-cloud/guidelines/ and we may revise those terms from time to time (including the Access Level and Service Level Agreements). Such revisions will be effective immediately and will form part of the Agreement as of the time they are posted to the website. If there is a conflict between the terms of this Agreement and any document, this Agreement and the related Customer Access Level Agreement will control.
17 - General
17.1 Governing Law. This Agreement will be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions.
17.2 Amendment and Revision. Unless otherwise expressly permitted herein, the terms of this Agreement may be varied only by a written agreement signed by both parties that expressly refers to the Agreement.
17.3 Severability. If any court of competent jurisdiction finds any portion of any provision of this Agreement to be unenforceable or contrary to applicable law, the parties agree that the provision will be deemed modified to the least extent necessary to make it enforceable, and all other provisions of this Agreement will remain unaffected.
17.4 Relation of the Parties. The parties agree that each is acting as an independent contractor and under no circumstances will any of the employees of one party be deemed the employees of the other for any purpose. Except as otherwise expressly agreed by the parties, this Agreement will not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other. Nothing in this Agreement will be deemed to constitute a joint venture or partnership between the parties.
17.5 Force Majeure. With the exception of Customer’s payment obligations, neither party will be responsible for delays or failures in performance resulting from acts of God, acts of civil or military authority, fire, flood, strikes, war, epidemics, pandemics, shortage of power, telecommunications or Internet service interruptions or other acts or causes reasonably beyond the control of that party. The party experiencing the force majeure event agrees to give the other party notice promptly following the occurrence of a force majeure event, and to use diligent efforts to re-commence performance as promptly as commercially practicable. In the event any failure to perform because of a force majeure event remains uncured for a period of fourteen (14) days, the other party may terminate this Agreement, without liability, by providing written notice to the other party.
17.6 Publicity. DSD may publicly disclose that it is providing Services to Customer and may use Customer’s name and logo on its website and in promotional materials, including press releases. Customer agrees that it will not issue any press release or publicity regarding the Agreement, use the DSD name or logo or other identifying indicia, or publicly disclose that it is using the Services without DSD’s prior review and written consent.
17.7 Assignment. Neither party may assign or transfer any rights or obligations under this Agreement (including by operation of law or otherwise) without the prior written consent of the other party. Notwithstanding the preceding sentence, with the exception of an assignment to a competitor of the non-assigning party (which will require written consent from the non-assigning party), either party may assign this Agreement without obtaining the consent of the other party, to an affiliate or to any entity into which the assigning party is merged, or to an acquirer of all or substantially all of the business or assets of the assigning party, or as part of a business restructuring, sale of stock, or other recapitalization or reorganization. Any purported assignment of rights or transfer of obligations in violation of this section is void. This Agreement will bind each party’s authorized successors and assigns.
17.8 Compliance With Laws. Each party will comply with all federal, state and local laws and regulations applicable to it (“Laws”). If, after the Effective Date of this Agreement any Law becomes effective which substantially and materially alters the ability or cost of either party to perform its obligations under this Agreement in whole or part, the parties will renegotiate the provisions of this Agreement to the extent necessary to reflect the effect of such Law. If renegotiations do not result in terms agreeable to both parties, the party that would bear the altered cost due to the change in the Law will have the right to terminate this Agreement without penalty upon thirty (30) days written notice to the other party.
17.9 Survival. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 4, 7, 8, 10, 11, 13, 14, 16, 17.1, 17.5, and 17.12 will survive the expiration or termination of this Agreement.
17.10 No Third Party Beneficiaries. Except as expressly provided in this Agreement, nothing in this Agreement is intended to confer upon any person other than the parties and their respective successors or permitted assigns, any rights, remedies, obligations or liabilities whatsoever.
17.11 No Waiver. The failure of either party to exercise any right, or the waiver by either party of any breach, shall not prevent a subsequent exercise of such right, or be deemed a waiver of any subsequent breach, of the same or any other provision of this Agreement. All waivers must be in writing, and signed by the party waiving its rights.
17. 12 Notices. To give notice of termination of the Agreement, Customer should send such notice to salesops@dsdinc.com.
17.13 Captions and Headings. The captions and headings of clauses contained in this Agreement preceding the text of articles, sections, subsections and paragraphs are inserted solely for convenience and ease of reference only and shall not constitute any part of this Agreement, or have any effect on its interpretation or construction.
17.14 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all other agreements (express or implied), proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter this agreement by any representations or promises not specifically stated in this Agreement. The protections of this Agreement will apply to actions of the parties performed in preparation for and anticipation of the execution of this Agreement. Acceptance of any purchase order or similar document by DSD is made upon the express understanding that it will be governed by the terms and conditions of this Agreement only and that any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order furnished by Customer will be void and have no force and effect notwithstanding any acceptance or execution by DSD. Any amendment to this Agreement must be in writing and signed by duly authorized representatives of the parties.
Effective Date: This Agreement shall take effect on the date and time that you click or electronically sign the “Signature” button below.
By clicking or signing your acceptance, you acknowledge that you have read and understood the foregoing paragraphs regarding your use of DSD Services, and the Services provided, and agree to abide by these Terms and Conditions.
