Forceworks Maintenance Subscription Agreement
Important Notice
This Forceworks Maintenance Subscription Agreement (the "Agreement") sets forth the legally binding terms for our subscription service (the "Service"). By accepting this Agreement upon our receipt of your first payment, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "Customer" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Services. This Agreement is between Forceworks and a single Customer entity; it does not extend to other legal entities controlled by the Customer. Each legal entity shall require its own subscription.
Last Updated: November 7th, 2024
Effective Date: The date Customer accepts this Agreement which acceptance shall occur on the date of the First Payment received by Forceworks from Customer for this subscription
A copy of this Agreement shall be added by Forceworks to the Customer's Account record as of the Effective Date. The Customer is advised to also print and retain a copy.
1. Subscription Service
Subject to the terms and conditions of this Agreement, and during the Term, Forceworks hereby grants to Customer a non-exclusive, terminable, non-transferable right and license to access and use the Services pursuant to the Agreement, in and under Forceworks' intellectual property rights, solely for Customer's internal business operations and for no other use or purpose. Forceworks shall provide the service defined as "Forceworks Maintenance Subscription" as set forth in this Agreement. Forceworks may update the Service from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Service and Customer's use of the Service.
1.2 Services Included for Products Supported
1.2.1 Strategic Advice and Consulting
The Customer is entitled to one one-hour Non Support related call per month with our Principals to seek advice and ask questions about their technology opportunities, and general "blue sky" conversation.
1.2.2 Support
The Customer and any of their internal users are entitled to submit up to two Support Tickets into our Ticketing System each month. See Subscription Entitlement Operation below.
1.3 Subscription Term
This Subscription is a month-to-month subscription that automatically renews unless cancelled by providing 30-days notice to Forceworks, which notice shall become effective on the last day of the current Service Month. As an example, if a notice to cancel is received from a customer on the 15th, it will be considered effective on the last day of that month, and the cancellation will occur 30 days later.
1.4 Subscription Entitlement Operation
1.4.1 Support Request Creation
A subscriber to this service is entitled to create support requests at additional costs, and will be obligated to pay the hourly rate, times the total number of hours expended in resolving each support request.
1.4.2 Monthly Cost
The Monthly Cost shall be $1,000.00 USD paid in advance of each month via autopay method.
1.4.3 Support Request Pricing
Subscriber is entitled to create up to two Support Requests per month, at an additional cost of $500.00 USD per request, paid at the time of support request creation in our portal.
1.4.4 Support Request Process
Within two working days of our receipt of a paid support request, we will respond with the estimated date that a technician will be assigned to the request, based on availability of resources. Once assigned the technician will review the support request and respond with an estimated number of hours required to the satisfy the support request. Upon pre-payment of the estimated hours multiplied by $200.00 USD, the Technician will work as expeditiously as possible to satisfy the support request.
1.4.5 Additional Hours
In the event that estimated hours is reached before satisfaction of the support request, the technician will provide a new estimate of remaining hours to satisfy the support request. Upon pre-payment of the estimated hours multiplied by $200.00 USD, the Technician will continue working satisfy the support request.
1.4.6 Additional Support Requests
Additional Support Requests during a month beyond the two included will cost $1,000.00 USD to create, and all other conditions above will apply.
1.4.7 Monthly Reset
Support Request entitlements reset at the beginning of each monthly term.
The Service is purchased as a subscription under the foregoing license.
2. Term, Fees, Payment & Taxes
2.1 Term of Agreement
The Term of this Agreement shall be month-to-month commencing on the Effective Date (the "Initial Term"). The Term shall be automatically extended for successive Renewal Terms of the one month each, at the then current terms, unless either party provides written notice of non-renewal to the other at least thirty (30) days before the end of a term.
2.2 Fees and Payment
The Customer shall pay Forceworks the fees for the Service ("Subscription Fees"), as agreed. All payments shall be made in United States Dollars (USD). If the Customer requests (and Forceworks agrees) for Forceworks to accept payments denominated in a foreign currency, a minimum surcharge of 3% will apply to each invoice. The Subscription Fees shall accrue and will be invoiced and due monthly in advance for electronic payment only.
2.3 Taxes
Subscription Fees do not include any local, state, federal or foreign taxes, levies, or duties of any nature, including value-added, sale, use, or withholding taxes ("Taxes"). The Customer is responsible for paying all Taxes, excluding only taxes based on Forceworks net income. If Forceworks has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Forceworks with a valid tax exemption certificate authorized by the relevant taxing authority.
2.5 Late Payments
Late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated monthly) or the maximum amount allowed by law, whichever is less.
3. Termination
Either party may immediately terminate this Agreement if the other party commits a material breach of any provision of this Agreement or the Terms of Service, which breach is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail to provide the allegedly breaching party a meaningful opportunity to cure such alleged breach. Upon termination or expiration of this Agreement for any reason, Customer and its Affiliate(s) shall have no rights to continue to use the Service. If Customer terminates this Agreement for any reason other than a material breach by Forceworks, Customer agrees that Forceworks shall be entitled to all of the fees, including, without limitation, the Subscription Fees, due under this Agreement for the then-current Term. If this Agreement is terminated due to a material breach on Forceworks' part, Forceworks shall refund the pro-rata portion of any Subscription Fees paid by Customer to Forceworks under this Agreement for the terminated portion of the Term.
4. Warranties
4.1 Services Warranty
Forceworks warrants that (a) it and each of its employees, consultants, and subcontractors, if any, Forceworks used to provide and perform Services have the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the Services in accordance with this Agreement, and (b) the Services will be performed for and delivered to Customer in a good, diligent, workmanlike manner in accordance with industry standards and applicable laws and governmental regulations. If through no fault or delay of Customer the Services do not conform to the foregoing warranty, and Customer notifies Forceworks within sixty (60) days of Forceworks' delivery of the Services, Customer's sole and exclusive remedy is to have Forceworks re-perform the non-conforming portion(s) of the Services.
5. Disclaimer of Warranties
FORCEWORKS DOES NOT REPRESENT THAT CUSTOMER'S USE OF THE SERVICE OR TRANSMISSION OF CUSTOMER DATA TO/FROM THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR THAT THE SERVICE WILL MEET THE CUSTOMER'S REQUIREMENTS. FURTHERMORE, FORCEWORKS DOES NOT REPRESENT THE ACCURACY OF THE INFORMATION OR DATA IN THE SERVICE, OR THAT ALL ERRORS IN THE SERVICE AND DOCUMENTATION WILL BE CORRECTED, OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, THE MICROSOFT CLOUD, OTHER TRANSMISSION NETWORKS, AND CUSTOMER'S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY FORCEWORKS. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
EXCEPT AS OTHERWISE STATED HEREIN, THE SERVICES AND DELIVERABLES PROVIDED TO THE CUSTOMER ARE PROVIDED TO THE CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS AND FOR COMMERCIAL USE ONLY. THE CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE AND DELIVERABLE(S) OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR THE CUSTOMER'S PURPOSES. THE WARRANTIES STATED IN SECTION 6.1 ABOVE ARE THE SOLE REMEDIES FOR THE CUSTOMER AND EXCLUSIVE OBLIGATIONS OF FORCEWORKS RELATED TO THE SERVICES AND DELIVERABLES TO BE PERFORMED FOR AND DELIVERED TO THE CUSTOMER PURSUANT TO THIS AGREEMENT.
6. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE BAA (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN THIS SECTION BELOW.
Except with regard to amounts due under this Agreement, liability arising out of or in connection with the Service, or Deliverables, liability resulting from gross negligence or willful misconduct, or claims subject to indemnification as set forth in Section 7 hereof, the maximum liability one party may have to the other party whatsoever arising out of or in connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of the contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed One Million Dollars ($1,000,000). The maximum liability of Forceworks to any person, firm, or corporation arising out of or in connection with any Services or Deliverables shall be the amount paid by Customer for the Services giving rise to the liability. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Service available to Customer and providing Services and that, were Forceworks to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
7. Indemnification
7.1 Infringement
Forceworks shall, at its own expense and subject to the limitations set forth in this Section, defend Customer from and against any allegations, threats, claims, suits, and proceedings brought by third parties (collectively "Claims") alleging that the Services, as used in accordance with this Agreement, infringes third party copyrights, trade secrets or trademarks and shall indemnify and hold Customer harmless from and against liability, damages and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, "Losses") to the extent based upon such a Claim. If a Claim of infringement is brought or threatened, Forceworks shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Customer against such Claim without cost to Customer, (b) to modify or replace all or portions of the Service as needed to avoid the alleged infringement, such update or replacement having substantially similar or better capabilities, or (c) if (a) and (b) are not commercially feasible, terminate this Agreement and refund to Customer a pro-rata refund of the Subscription Fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted to Customer under this Section state Forceworks' entire liability and Customer's exclusive remedy regarding any claim of infringement of the intellectual property rights of a third party.
7.2 Customer's Indemnity
Customer shall, at its own expense and subject to the limitations set forth in this Section, defend Forceworks from and against any Claims (a) alleging that the Customer Data or any trademarks or service marks, or any use thereof, infringes the intellectual property rights or other rights, or has caused harm to a third party, or (b) arising out of Customer's breach of the Terms of Service, and shall indemnify and hold Forceworks harmless from and against liability for any Losses to the extent based upon such Claims.
7.3 Indemnification Procedures and Survival
In the event of a potential indemnity obligation under this Section, the indemnified party shall (a) promptly notify the indemnifying party in writing of such Claim, (b) allow the indemnifying party to have sole control of its defense and settlement (provided that the indemnifying party shall make no admission of fault or wrongdoing or other statement reflecting negatively on the indemnified party without the indemnified party's prior express written consent), and (c) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party's cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party's compliance with this Section, except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section, but such Claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section shall survive termination of this Agreement for one (1) year.
8. General Provisions
8.1 Assignment
Neither party may assign this Agreement without the written consent of the other; provided, however, that Forceworks may assign this Agreement and delegate its obligations hereunder to any of its affiliates, or a successor, by way of merger or consolidation or the acquisition of substantially all of the business or assets relating to the subject matter of this Agreement, without Customer's prior written consent. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
8.2 Governing Law; Jurisdiction; Venue
This Agreement shall be governed by the laws of the State of Florida and any controlling U.S. federal law and excluding the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on Contracts for the International Sale of Goods (CISG). Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement (or the Service) shall be subject to the exclusive jurisdiction of the state and federal courts located in the Judicial District 11: Hillsborough County Florida.
8.3 Attorneys' Fees and Costs
The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs in connection with such action. In the event of any litigation or any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and costs. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
8.4 Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim ("Legal Notices"), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to the Customer will be addressed to the relevant billing contact designated by the Customer. All other notices to Customer will be addressed to the appropriate Service administrator designated by Customer.
8.5 Amendments; Waivers
No supplement, modification, or amendment of this Agreement will be binding unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement. Any such document relating to this Agreement will be for administrative purposes only and have no legal effect.
8.6 Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although Forceworks reserves the right to name Customer as a User of the Service.
8.7 Non-Solicitation/Non-Hire
During the Term, the Customer will not directly or indirectly solicit, employ, or engage the services of any of the employees and contractors of Forceworks who were involved in providing Professional Services under or relating to this Agreement without prior written permission from Forceworks. If the Customer breaches this clause, they agree to pay Forceworks a penalty equal to [two times the employee's annual salary/contractor's annualized rate] as liquidated damages, acknowledging that Forceworks will incur significant costs and damages that would be difficult to precisely quantify.
8.8 Force Majeure
Neither party shall be liable for any loss or delay (including failure to meet the service response time commitments) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage (other than those involving Forceworks employees), Internet service provider failures or delays, civil unrest, war or military hostilities or criminal acts of third parties (collectively, a "Force Majeure Event"), and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any Force Majeure Event.
8.9 Entire Agreement
This Agreement shall constitute the entire understanding between Customer and Forceworks and is intended to be the final and complete expression of their agreement. The parties expressly disclaim any reliance on any prior discussions, emails, Requests for Proposals, or understandings between the parties. There are no other verbal agreements, representations, warranties, undertakings, or other agreements between the parties. Under no circumstances will the terms, conditions, or provisions of any purchase order, invoice, or other administrative document issued by Customer in connection to this Agreement be deemed to modify, alter or expand the rights, duties, or obligations of the parties under, or otherwise modify this Agreement, regardless of any failure of Forceworks to object to such terms, provisions or conditions. This Agreement shall not be modified or amended, except as expressly set forth herein or in the Terms of Service, or in writing and signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. Any provisions that are by their nature intended to survive termination of this Agreement will continue to survive following termination.
9. Additional Terms
9.1 Confidentiality
For purposes of this Agreement, "Confidential Information" shall include the terms of the Agreement, Customer Data, each party's proprietary technology, intellectual property, trade secrets, business processes and product information, designs and issues, and any information (whether or not reduced to writing or designated as confidential). Confidential Information shall not include (a) information that is known publicly; (b) information that is generally known in the industry before the disclosure; (c) information that has become known publicly, without fault of the receiving party, subsequent to disclosure by the disclosing party; (d) information which the receiving party receives from a third party without a duty of confidentiality, where such third party had the lawful right to disclose such information to the receiving party; or (e) De-Identified Data.
Each receiving party agrees (a) to keep confidential all Confidential Information, (b) not to use or disclose Confidential Information, except to the extent necessary to perform its obligations or exercise its rights under the Agreement or as directed by the disclosing party, (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information), and (d) to only make Confidential Information available to authorized persons of the receiving party on a "need to know" basis. Receiving party may disclose Confidential Information on a need-to-know basis to its contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of the Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation.
10. Modification; Discontinuation of the Service
10.1 To the Service
Forceworks may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify the Customer of any material changes. Forceworks reserves the right to discontinue offering the Service at any time for any reason. Forceworks shall not be liable to Customer nor any third party for any modification of the Service.
10.2 To Applicable Terms
If Forceworks makes a material change to these Terms, then Forceworks will notify the Customer by either sending an email to the notification email address or posting a notice in the Customer's account. If the change has a material adverse impact on the Customer and the Customer does not agree to the change, the Customer shall notify Forceworks via support@forceworks.com within thirty (30) days after receiving notice of the change. If Customer notifies Forceworks, Customer will remain governed by the Terms of Agreement immediately before the change until the end of the then-current Term for the affected Service. If the affected Service is renewed, it will be renewed under Forceworks' then-current Terms.
By subscribing or renewing, you expressly agree to these terms and conditions.