FAMA TECHNOLOGIES, INC. CUSTOMER AGREEMENT
Last Updated: September 7th, 2018
THIS CUSTOMER AGREEMENT (“Agreement”) is a legal agreement by and between Fama Technologies, Inc., a Delaware corporation with its principal offices at 5340 Alla Rd, Suite 210, Los Angeles, CA 90066 (“Company”), and the entity on whose behalf the authorized representative is agreeing to the use of the Services (“Customer”). By signing the applicable Work Order or Contract, or by accessing, copying, or otherwise using the Service, Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. Company will not and does not license and make the Service available unless Customer agrees to the terms of this Agreement. The person entering into this Agreement on behalf of Customer is authorized to do so and has the power to bind Customer to the obligations described in this Agreement.
In consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:
1. Definitions. In addition to terms defined elsewhere in this Agreement, the following definitions apply:
“Authorized User” means an individual registered and identified by Customer by name to receive a User ID in order to access the Company Service online, including employees, agents, consultants, contractors and any other persons having access to the Company Service by virtue of his or her relationship with Customer.
“Company Service” means access and use of Company’s web-based software as a service software application for reducing risk and better understanding the character and trustworthiness of a potential hire or existing employees.
“Data” means all information, records, files, and data entered into, received, processed, or stored by or for Customer using the Company Service.
“FCRA” means the federal Fair Credit Reporting Act, 15 U.S.C. §1681 et seq.
“Order” means the description of the Company Service, search volume and associated pricing selected by Company.
“Services” means the Company Service, Support Services, training and associated services provided by Company to Customer under this Agreement.
“SLA” means the service level commitments set forth in Exhibit A, attached hereto.
“Support Services” means those support and maintenance services provided by Company to Customer under this Agreement.
“Update” means any improvement, enhancement, modification or changes to the Company Service offered or provided by Company, including any customizations and other developments made for Customer.
“User ID” means the unique user identification assigned to an authorized individual Authorized User as set forth in Section 5.2.
“User Materials” means any on-line help files or written instruction manuals regarding the use of the Company Service.
2. Company Service.
2.1 Services. Company will provide Customer with the Company Service specified in Customer’s Order. Customer acknowledges that access and use of the Company Service is licensed to the Customer for use at the volume purchased by the Customer as itemized in the applicable Order.
2.2 License. Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees set forth on the applicable Order, Company hereby grants to the Customer, solely during the term of the applicable Order a nonexclusive, personal and nontransferable license to allow its Authorized Users to access and use the Company Service on its behalf solely for Customer’s internal use. This license is subject to Customer’s and its Authorized Users’ compliance with the terms and conditions set forth in this Agreement.
2.3 Restrictions. Customer will not, in whole or in part, (a) copy the Company Service or User Materials or distribute copies of the Company Service or User Materials to any third party; (b) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Company Service or User Materials except as otherwise permitted by law; (c) rent, loan, sub-license, lease, distribute or attempt to grant any rights to the Company Service to third parties; or (d) use the Company Service or User Materials to act as a service bureau or application service provider, or to permit access to the Company Service or User Materials by any third party.
3. Service Levels, Support Services and Training.
3.1 Service Levels and Support Services. Company will use commercially reasonable efforts to meet the service levels and provide the Support Services to Customer as more specifically set forth in the SLA.
3.2 Scheduled Maintenance. Company reserves the right to take down applicable servers hosting the Company Service to conduct routine maintenance checks (“Scheduled Maintenance”). Company will use commercially reasonable efforts to perform Scheduled Maintenance outside of regular business hours. Company will not be responsible for any damages or costs incurred by Customer, if any, for Scheduled Maintenance.
3.3 Training. Company may provide training for Authorized Users. Such training may be conducted via internet and phone.
4. Fees and Payment.
4.1 Fees. Customer will pay the Fees set forth in the applicable Order in the manner specified in such Order. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Company may increase or add new fees and charges for any existing Services by providing at least 30 days’ prior notice. [DWT1]
4.2 Taxes. The fees do not include taxes. Customer will be responsible for the payment of all taxes associated with this Agreement (other than taxes based on Company’s gross receipts or net income). If Customer is exempt from sales tax, a valid exemption certificate provided by Customer will be attached to this Agreement. In the event a valid exemption certificate is not attached to this Agreement, Customer will be invoiced for all applicable sales tax, if any, resulting from this Agreement or any performance under this Agreement.
5. Customer Responsibilities.
5.1 Registration Information. If required, Customer will promptly provide to Company the name, contact information and other information requested by Customer to register each Authorized User to use the Company Service.
5.2 User IDs. Each Authorized User will have a unique User ID for his or her access to the Company Service. Customer will ensure that its Authorized Users will use only their respective assigned User IDs and will never use another’s User ID. Customer will adopt and maintain such security precautions for User IDs to prevent their disclosure to and use by unauthorized persons and will promptly notify Company if the security or integrity of a User ID or password has been compromised. Customer will promptly notify Company in writing of the termination of employment of any of its Authorized Users (or, if the Authorized User is not an employee, of the termination of the relationship with Customer that resulted in the individual being an Authorized User or otherwise having access to the Company Service).
5.3 Authorized Users. Customer will (a) remain responsible for all obligations under this Agreement arising in connection with its Authorized Users’ use of the Company Service; (b) be liable for any act or omission by any of its Authorized Users, which, if performed or omitted by Customer, would be a breach of this Agreement; and (c) any such act or omission of any Authorized User will be deemed to be a breach of this Agreement by Customer.
5.4 Computer System. Customer will: (a) cooperate and consult with Company in the set-up and activation of the Company Service for Customer, (b) provide and maintain, in good and working order at all times, its own Internet access and all necessary telecommunications equipment, software and other materials necessary for Authorized Users to access and use the Company Service. Customer is responsible for the security of its own computer systems and the security of its and its Users’ access to and connection with the Company Service.
5.5 Authorization; Non-infringement. Customer is responsible for obtaining all authorizations, consents, releases, and permissions necessary to enter Data into the Company Service, to use the Company Service to process and store Data, and to receive the Services. Customer and its Authorized Users will not submit any Data or use the Services in any way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of any third party or violates any applicable local, state or federal laws, statutes, ordinances, rules or regulations or any judicial or administrative orders.
5.6 FCRA Compliance. Customer is responsible for its compliance with the FCRA, as well as any applicable state and local consumer reporting laws, in connection with its use of the Company Service. Without in any way limiting the foregoing:
(a) Customer shall request the Company Service for a permissible purpose for obtaining Consumer Reports as defined by FCRA §604 and applicable state and local law.
(b) Prior to requesting Company Service, Customer shall identify the permissible purpose under FCRA §604 and applicable state and local law for which the Company Service is to be furnished; and certify that the Company Service shall be used for no other purpose.
(c) Customer shall establish and comply with reasonable procedures designed to ensure that information derived from Customer’s use of Company Service is used only for a purpose consistent with FCRA §604 and applicable state and local law. Customer is solely responsible for compliance with the procedural requirements of FCRA §607(a) and applicable state and local law. In the event that the Company Service is used for employment purposes, Customer shall provide the certifications required by FCRA § 604(b) and applicable state and local law.
(d) Customer may archive, maintain or use Company Service for audit and disaster recovery purposes, as well as complying with Customer’s obligations under the FCRA, similar state laws or other applicable law.
5.7 Security. Customer shall implement reasonable administrative, technical, and physical safeguards to protect the Company Service. Customer agrees to notify Company immediately if Customer has any reason to believe that the security of Customer’s account has been compromised or if the Company Service has been accessed by unauthorized users.
5.8 No Interference with Service Operations. Customer will not take any action that: (a) interferes or attempts to interfere with the proper working of the Company Service or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Company Service; (b) circumvents, disables, or interferes or attempts to circumvent, disable, or interfere with security-related features of the Company Service or features that prevent or restrict use, access to, or copying of any data or enforce limitations on use of the Company Service or data; or (c) imposes or may impose, in Company’s sole discretion, an unreasonable or disproportionately large load on the Company Service infrastructure.
6. Term & Termination.
6.1 Term. The initial term of this Agreement will be for the period set forth in the Order commencing on the first of the calendar month following the effective date of the Order and will continue in effect until otherwise terminated in accordance with this Agreement.
6.2 Termination. Each party will have the right to terminate this Agreement upon 30 days’ prior written notice if the other party is in material breach of this Agreement, or in the case of nonpayment ten days’ prior written notice, and the breaching party fails to remedy such breach within such notice period. Each party will have the right to terminate this Agreement immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within 60 days of filing. Notwithstanding the foregoing, Company may terminate this Agreement immediately upon written notice to Customer if Customer violates the scope or any restriction on its license or its obligations hereunder with respect to the FCRA or Confidential Information.
6.3 Effect of Termination.
(a) Upon termination for any reason, all licenses granted hereunder will automatically terminate, and Company may immediately disable and discontinue Customer’s access to and use of the Company Service without additional notice to Customer. Customer will return to Company all User Materials and other materials it has acquired pertaining to the Company Service or any Confidential Information. In addition, all fees and payment obligations of Customer will become immediately due and payable.
(b) All rights to payment and the provisions of this Agreement that by their sense and context are intended to survive termination will survive any expiration or termination of this Agreement.
7. Proprietary Rights.
7.1 Company Service. Company is and will remain the exclusive owner of all right, title and interest in and to the Company Service, Updates, User Materials, Company’s Confidential Information, and all other Company work product and/or other materials provided or accessible to Customer in connection with this Agreement, including all intellectual property rights therein.
7.2 Data. Customer grants to Company a non-exclusive license during the term of this Agreement to use Data for the purposes of performing its obligations under this Agreement. Company may also use the Data at any time and for any business purpose in aggregate de-identified form. Subject to the foregoing license, Customer will retain all intellectual property and other rights that it may have in the Data.
7.3 Feedback. To the extent that Company receives from Customer or any of its Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Company Service or any other products or services (“Feedback”), Company may use, disclose and exploit such Feedback without restriction, including to improve the Services and to develop, market, offer, sell and provide other products and services.
8.1 Company Service. Customer acknowledges and agrees that the Company Service, User Materials and any nonpublic information or materials (tangible or intangible) provided or accessible to Customer pursuant to this Agreement contain trade secrets and confidential information of Company (“Confidential Information”). Customer will take all steps necessary to protect the confidentiality of the Company Service and Company’s other Confidential Information and will not disclose, provide, or otherwise make available the Company Service and any Confidential Information to any third party without Company’s prior written consent. In accordance with this provision, Customer will maintain at least the same precautions as it takes in regard to its own confidential information, but not less than reasonable care. Customer will ensure that its Authorized Users having access to the Company Service or Confidential Information are aware of and bound by nondisclosure and use restrictions at least as protective of the Company Service and Confidential Information as those set forth in this Agreement. Customer agrees to promptly report to Company any unauthorized use or disclosure of the Company Service or other Confidential Information.
9. Limitations; Disclaimer.
9.1 Service Limitations. The Company Service may be temporarily unavailable from time to time due to required maintenance, telecommunications interruptions, or other disruptions. Company may also make improvements and/or changes in the Company Service at any time without notice. Company will not be responsible for any damages that Customer may suffer arising out of use or inability to use the Company Service. Company will not be liable for unauthorized access to or alteration, theft or destruction of Customer’s data files, programs, procedures or information through accident, fraudulent means or devices, or any other method. It is hereby acknowledged that it is Customer’s responsibility to validate for correctness all output and reports and to protect Customer’s data from loss by maintaining back-ups of all data and routinely updating such back-ups. Customer hereby waives any damages occasioned by lost or corrupt data, incorrect reports or incorrect data files resulting from a programming error, operator error, equipment or software malfunction, or from the use of third-party software.
9.2 Disclaimer of Warranties. Company makes no warranties related to the Company Service or any other services provided by Company hereunder, and hereby disclaims all warranties, express or implied, including without limitation warranties of merchantability, fitness for a particular purpose and noninfringement. Company DOES NOT WARRANT THAT THE OPERATION OF ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. Company ALSO MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF ANY SERVICES. in no event will company be responsible for any employment decisions that result from customer’s use of the company service.
9.3 Limitations of Liability. In no event will Company be liable for any consequential, indirect, special, incidental, exemplary or punitive damages under this Agreement or in connection with The Company Service or any other services provided by Company hereunder, including without limitation damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss arising out of the use or inability to use the Company Service, data or any other services, even if Company has been advised of the possibility of such damages and even if available remedies are found to have failed their essential purpose. Further, in no event will Company’s entire liability under this Agreement exceed the Fees for the most recent one (1) year of fees paid by Customer to Company UNDER this Agreement.
10. Indemnification. Customer agrees to indemnify, defend and hold harmless Company and its officers, directors, employees, representatives and agents (the “Indemnified Parties”) harmless from any claims, actions, losses, liabilities, damages, costs and expenses (including attorney's fees and court costs) made, incurred, assessed or awarded against Company by any third party arising out of or in connection with: (a) any breach of any representation, warranty or obligation in this Agreement; (b) Customer’s or any Authorized User’s use of the Company Service; (c) any claims or disputes concerning Data, including regarding ownership, infringement or other rights; or (d) Customer’s noncompliance with the FCRA requirements in this Agreement, or violation of any law or regulations, including without limitation, the FCRA. Customer will not settle or compromise such claim except with prior written consent of the Indemnified Party. The Indemnified Party may participate in the defense or settlement of such claim at its own expense and with its own choice of counsel.
11.1 Assignment, Successors. No right or license under this Agreement may be assigned or transferred by Customer, nor may any duty be delegated by Customer without Company’s prior written consent. Any assignment, transfer or delegation in contradiction of this provision will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of Customer and Company.
11.2 Construction. Whenever used in this Agreement, unless otherwise specified the terms “includes”, “including”, “e.g.”, “for example”, “such as”, “for instance” and other similar terms are deemed to include the term “without limitation” immediately thereafter. The headings of sections and subsections of this Agreement are for convenience of reference only and are not intended to affect the interpretation or construction of any provision of this Agreement.
11.3 Entire Agreement. This Agreement, including the linked Service Levels and Support Services description, constitutes the entire agreement, understanding and representations, expressed or implied, between Company and Customer with respect to subject matters described herein and supersedes all prior communications, agreements, representations, warranties, statements, negotiations, understandings and proposals with respect to such subject matters. Any rights not expressly granted herein are reserved.
11.4 Force Majeure. Notwithstanding any other provision of this Agreement, Company will not be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance due to any cause beyond the reasonable control of and without fault or negligence by Company or its officers, directors, employees, agents or contractors.
11.5 Governing Law; Jurisdiction. This Agreement will be governed by and construed under the laws of the State of Delaware. The parties agree that Los Angeles County, in the State of California, will be the exclusive and proper forum for any action, including arbitration, if any, brought under this Agreement. The parties accept the personal jurisdiction of the state and federal courts located therein.
11.6 Notice. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. The notice address for Company is 373 Rose Ave, Venice, CA 90291, and the notice address for Customer is the address specified in the Order. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
11.7 Waiver, Severability, Amendment. Waiver of a breach of or right hereunder will not constitute a waiver of any other or subsequent breach or right. If any provision herein will be held by a court of competent jurisdiction to be contrary to law, that provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions herein will remain in full force and effect. This Agreement may be amended only in a document signed by authorized representatives of Customer and Company.
Service Levels and Support Services
1. Service Levels. Subject to the terms and conditions of the Agreement, Company will use commercially reasonable efforts (i) to make the Company Service available at least 99.5% of the time as measured over the course of each calendar month during the term, and (ii) to process all queries within 24 hours, in each case excluding unavailability or delays as a result of: (a) any act or omission by Customer or any Authorized User; (b) Customer’s or its Authorized User's Internet connectivity; (c) any force majeure event; (d) any failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by the Company pursuant to this Agreement; or (e) Scheduled Maintenance or any emergency maintenance.
2. Support Requests. Company will provide support in response to telephone and email queries from Authorized Users as described in this Attachment.
3. Error Resolution. If an Authorized User identifies an Error, Customer will report the Error to Company in accordance with Company’s support procedures. Customer will provide all information reasonably requested by Company and will give Company assistance and co-operation to enable Company to properly perform the activities included in this Attachment. An “Error” is an event where the Company Service does not perform substantially as described in the User Materials. Company will assign a category and work to resolve reported Errors as follows:
a. Severity 1: An Error that causes an emergency condition preventing access to the Company Service or loss of critical functions that prevents an Authorized User from conducting normal business operations. Company will give first priority to resolving Severity 1 Errors. If Company provides a workaround for a Severity 1 Error, it will be downgraded to a Severity 2 or 3 Error.
b. Severity 2: An Error that prevents the use of one or more functions of the Company Service but does not prevent an Authorized User from conducting normal business operations. Severity 2 Errors will have priority for resolution over Severity 3 Errors.
c. Severity 3: An Error that does not significantly affect an Authorized User’s use of the Company Service.
4. System Administrator. Customer will provide Company a designated system administrator or support contact with all relevant contact information to respond to questions from Company regarding the Company Service and Company’s provision of Services.
5. Support Exceptions. Company will not be responsible or liability with respect to any problems or issues arising from (i) unauthorized or improper use of the Company Service; (ii) modification, alteration or configuration of the Company Service by or for Customer that has not been authorized in writing by Company, (iii) hardware, software, technology or intellectual property which has not been provided by Company pursuant to this Agreement, (iv) telecommunications facilities; (v) any breach of this Agreement by Customer, or any act or omission of any Authorized User which, if performed or omitted by Customer, would be a material breach of this Agreement, and/or (vi) any act or omission of Customer or any Authorized User that prevents, delays, disturbs or interferes with Company’s performance of its obligations hereunder.
[DWT1][Note: FAMA envisions click-through customers buying services in advance, either annually (increasing 6% each year) or with three-year licenses (where fees are locked in). Pricing for the licenses etc. will need to be made clear in an online order form for a clickthrough agreement. FAMA is also contemplating having a grace period where fees begin to be assessed on the first of the month (since it takes many customers a bit of time to implement) or similar period (2 weeks?) after the effective date.]