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Trendzact Master Services Agreement

This Master Services Agreement (“MSA”) is dated as of the last signature date below (the “Effective Date”) by and between TrendzAct, LLC, a Utah limited liability company (“TrendzAct”), and __________________., a _________________ (“Customer”). This MSA together with all order forms, and any Statements of Work (each an “SOW”), constitute the “Agreement”. 

The Agreement will be governed by and construed in accordance with the laws of the State of Utah without regard to that state’s conflict of law analysis. The United Nations Commission on International Trade Law and United Nations Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act (UCITA) shall not apply. Any legal suit, action, or proceeding arising out of or related to the Agreement or the Services shall be instituted exclusively in the state or federal courts located in the District of Utah. The parties each waive any and all objections to the exercise of jurisdiction over any claim or legal proceeding commenced in such courts.

  1. DEFINITIONS

“Agreement” shall mean this MSA, any Statement of Work (an “SOW”), and any Order Form executed in connection herewith. 

“Claims” shall have the meaning given in Section 9.2. 

“Confidential Information” shall have the meaning given in Section 8.1. 

“CPI” shall mean the Consumer Price Index, as further described in Section 5.1. 

“Customer” shall mean _____________________________. 

“Customer Content” shall have the meaning given in Section 2.6. 

“Effective Date” shall have the meaning given in the introductory paragraph of this MSA. 

“Escrow Agent” shall have the meaning given in Section 2.7. 

“Force Majeure Event” shall have the meaning given in Section 10.11. 

“Indemnified Party” shall have the meaning given in Section 9.2.  

“MSA” shall mean this Master Services Agreement. 

“Order Form” shall have the meaning given in Section 2.1. 

“Release Event” shall have the meaning given in Section 2.7. 

“Services” shall mean the Software, and any related consulting, customization and configuration, and other services. 

“Software” shall have the meaning given in Section 2.1. 

“Source Code” shall have the meaning given in Section 2.7. 

“SOW” shall mean any Statement of Work executed hereunder. 

“Wind Down Period” shall have the meaning given in Section 6.5. 

Additional terms contained in the Privacy and Security Exhibit attached hereto as Exhibit A shall be as defined therein. 

  1. SOFTWARE AND SERVICES

2.1          Applicability; Order of Precedence. This MSA applies to the software as a service application (“Software”) and any related consulting, customization and configuration, and other services, which services may be further described in a Statement of Work (“SOW”) (such Software and services collectively the “Services”), all as set forth in one or more order forms (each an “Order Form”). In the event of any inconsistency between this MSA and any SOW or Order Form, the order of precedence shall be as follows: (a) this MSA, (b) the terms of any SOW, but only with respect to any matters specifically stated in such SOW(s), and (c) any Order Form, but only with respect to the matters specifically stated in such Order Form(s).  An SOW may take precedence over the provisions of this MSA only if specifically stated therein. 

2.2          Rights to Use Software; Additional Services. Upon TrendzAct’s acceptance of Customer’s order and for the duration of the term specified in the Order Form, TrendzAct grants to Customer the nonexclusive, non-transferable, assignable (in the event of a assignment or change of control as described in Section 10.1), irrevocable (during the Term), limited right and license to use the Software listed on the Order Form solely for Customer’s business operations and subject to the terms of the Agreement. Additional services may be agreed upon by the parties, and shall be memorialized in one or more SOWs or Order Forms. 

2.3          Proprietary Technology. The Services contain technology of TrendzAct which may be proprietary or constitute trade secrets. Unauthorized use and/or copying of such technology are prohibited by law, which may include United States and foreign copyright law.  Customer shall not reverse compile, disassemble or otherwise convert the Software or other software comprising the Services into uncompiled or unassembled code.  Customer shall not use any third-party software programs (or the data models therein) included in the Services except solely as part of and in connection with its use of the Services.

2.4          Authorized Users. Customer may authorize its third-party contractors and consultants to access the Services through Customer’s administrative access privileges on an as needed basis, provided Customer: (a) abides by its obligations to protect Confidential Information as set forth in the Agreement; (b) remains responsible for all such third-party usage and compliance with the Agreement; and (c) the third-party is not a TrendzAct competitor. New competitors could arise during the term of the agreement but current TrendzAct competitors include Salesforce, Nice InContact, ZenDesk, and other enterprise-grade, multi-tenant CRM specifically for sales and support contact centers.

2.5          Ownership. Customer acknowledges and agrees that, as between Customer and TrendzAct, TrendzAct retains ownership of all right, title and interest to the Services, all of which are protected by copyright and other intellectual property rights, and that, other than the express rights granted herein and under any other agreement in writing with Customer, Customer shall not obtain or claim any rights in or ownership interest to the Services or any associated intellectual property rights in any of the foregoing.  Customer agrees to comply with reasonable access restrictions imposed by TrendzAct, and to refrain from removing copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Customer through the Services.

2.6          Protection of Customer Content; Privacy and Security Exhibit. TrendzAct will maintain administrative, physical, and technical safeguards designed to protect against reasonably foreseeable intrusions of the security, confidentiality and integrity of all content of Customer and its users, which for purposes of this Agreement shall include all information of any kind that Customer or others acting on behalf of or through Customer post or otherwise input into the Software (“Customer Content”). Customer Content shall be stored in a secure environment, hosted by a reputable and well-known data hosting company, located within the United States only. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Content by TrendzAct personnel except as strictly necessary to make the Software available, provide the Services, prevent or address service or technical problems, or as otherwise may be compelled by law (but subject to a duty of prior notification of Customer in the case of use, modification, or disclosure that is compelled by law, unless prohibited by law). Under no circumstances may TrendzAct or any of its affiliates contact any of Customer’s users outside of the context of the Services, including (but not limited to) for any direct marketing purposes, or share any Customer information with any third party absent written Customer approval. TrendzAct and its officers, directors, employees, representatives, agents, and subcontractors shall comply with the provisions of Exhibit A hereto (“Privacy and Security”) with respect to any and all information pertaining to Customer, its employees, or its users. 

2.7          Source Code Escrow.  TrendzAct acknowledges and agrees that the Services are intended to perform numerous functions for Customer, many of which are critical to all aspects of Customer’s operations.  Moreover, TrendzAct acknowledges and agrees that Customer has invested or will invest substantial financial and other resources in supporting the development of and/or improvements to the Software and Services by TrendzAct, the majority of which could be at risk in the event that TrendzAct were to cease to function as a going concern or to otherwise breach the Agreement.  Accordingly, and without limiting any remedies that may otherwise exist in Customer’s favor, TrendzAct agrees to deposit with a reputable escrow company to be agreed upon by the parties (such company, the “Escrow Agent”) a copy of all source code developed for or in connection with the Software or Services, which shall include copies of any material updates to the same, which shall deposited into escrow not less than thirty (30) days after such update(s) are performed, and not less than once per every three (3) months in any event (collectively the “Source Code”).  Upon the occurrence of any Release Event as defined below, TrendzAct shall within five (5) business days notify the Escrow Agent to release the Source Code (including all versions and updates thereto) to Customer. Customer, acting through its employees or subcontractors, may use the Source Code in any manner and for any purpose reasonably intended to enable Customer to continue to utilize the Software and Services as provided hereunder, which may include without limitation support and updates to the Software.  In addition, and only if the Customer has upgraded to a dedicated hosting solution, upon the occurrence of any Release Event, TrendzAct shall provide prompt and unrestricted access for Customer and Customer’s representatives to the live environment (including access to hosting services and other core functionality) for the Service.  For clarification, if the Customer’s Service resides within the standard multi-tenant hosting environment, then TrendzAct shall maintain the hosting environment through the Wind Down period without releasing the hosting server access.

For purposes of the Agreement, a “Release Event” shall consist of any one or more of the following:

(a)           which indicates TrendzAct is no longer providing the obligated services under this MSA and subsequent SOWs or providing the services in the ordinary course of business, excluding short-term (not to exceed 3 business days) issues and force majeure situations.

  1. TrendzAct’s insolvency as defined under applicable law, the filing by or against TrendzAct of any proceeding in bankruptcy, or any other workout or reorganization in which TrendzAct is the debtor;
  2. An assignment by TrendzAct of any assets or receivables for the benefit of creditors;
  3. Appointment of a trustee or receiver for TrendzAct or a substantial part of its property or assets (including intellectual property);

(b)           The entering into an agreement, including any letter of intent or memorandum of understanding, by TrendzAct or its shareholders pertaining to a merger, acquisition, or change of control as described in Section 10.1 other than as approved by Customer;

(c)           The loss of Matt Gabrielson as Key Employee in violation of Section 7.2, below; or

(d)           Any other uncured material breach of the Agreement which Customer reasonably considers a threat to the value to Customer of the Agreement, including any obligation of support contained in the Agreement.

Any dispute as to whether a Release Event has taken place shall be resolved via the procedure set forth in Section 10.2. 

In the event of a release of Source Code pursuant to this Section 2.7, the Source Code shall be maintained as Confidential Information of TrendzAct consistent with the provisions of Section 8 except that Customer may use such Source Code as permitted by this Section 2. 

  1. ACCEPTABLE USE

3.1          No Unauthorized Access. Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have such access shall take any action that would be in violation of the Agreement.

3.2          Customer Content. Customer shall ensure that Customer has the sufficient rights to upload to the Software any applicable Customer Content.  Customer shall ensure that any Customer Content which it uploads to the Software: (a) does not infringe or violate any third-party right, including but not limited to intellectual property, privacy, or publicity rights; or (b) does otherwise not violate applicable law.

3.3          Prohibitions. Customer will not (a) use, or allow the use of (to the extent that such use is under Customer’s reasonable control), the Services in contravention of any applicable federal, state, local, foreign or other law, or applicable rules or regulations of regulatory or administrative organizations; (b) introduce into the Software any virus or other code or routine intended to disrupt or damage the Software, or alter, damage, delete, retrieve or record information about the Software or its users other than as permitted under this Agreement; (c) excessively overload the TrendzAct systems used to provide the Software beyond the levels specified in an applicable SOW (taking into account growth in Customer’s utilization of the Service); or (d) use any tool designed to automatically emulate the actions of a human user (e.g., robots, stress testing, etc.) without reasonable prior notice to TrendzAct. Customer shall provide reasonable advance notice to TrendzAct in the event that Customer plans to expand the numbers of APIs accessing the Service, in order to afford TrendzAct an opportunity to perform additional load testing if necessary. 

  1. CONNECTIVITY AND ACCESS

Customer acknowledges that Customer shall (a) be responsible for securing, paying for, and maintaining Customer’s connectivity to the Software (including any and all Customer-hosted hardware, software, third party services, and related equipment and components); and (b) provide TrendzAct and TrendzAct’s representatives with such physical or remote access to Customer’s computer and network environment as TrendzAct and Customer deem reasonably necessary in order for TrendzAct to perform its obligations under the Agreement.

  1. FEES AND PAYMENT

5.1          Fees and Expenses. Customer shall pay TrendzAct the fees and expenses for the Services as set forth in the applicable Order Form or SOW, and no other fees or expenses. Any applicable taxes incurred in connection with the Services (except for taxes based on TrendzAct’s gross or net income, real property, or personal property) will be invoiced to and paid by Customer. In the event that Customer extends the Agreement beyond the initial term stated in Section 6.1, below, the amount of any price increase during such extension term (if any) shall be limited to an amount equal to the greater of five percent (5%) or the “All Items” increase of the published Consumer Price Index (“CPI”) for the year immediately prior to the date of such extension, as published by the U.S. Department of Labor (https://www.bls.gov/charts/consumer-price-index/consumer-price-index-by-category.htm#). 

5.2          Invoices. Unless otherwise indicated on an Order Form or SOW, payment for all undisputed items shall be due 30 days following the date such invoice is actually received by Customer, but in no event sooner than such Services are actually provided.  Undisputed accounts not paid within 30 days of the date of the date referenced on Exhibit B, assuming the invoice has been sent to Customer: are subject to a 1.0% monthly finance charge, or the maximum allowable by law. TrendzAct is responsible for providing complete and accurate billing and contact information to Customer and notifying Customer of any changes to such information. Except as expressly set forth in the Agreement, or as otherwise specified in an applicable SOW, all amounts paid to TrendzAct are non-refundable.

  1. TERM / TERMINATION

6.1          Term. The MSA commences on the Effective Date and remains in effect until the conclusion of the fourth (4th) year following the Effective Date or the expiration or termination of all SOWs or Order Forms, unless terminated earlier by the parties hereunder as stated below. Thereafter, the MSA may be extended at Customer’s option for such additional one-year periods as Customer may specify at such time. The expiration of this MSA shall terminate any Order Form or SOW then in effect, unless a particular SOW has specific language to extend this MSA beyond the existing termination date.

6.2          Termination or Suspension for Breach. Either party may terminate this MSA and any SOW or Order Form upon a material breach by the other party if such breach is not cured following the breaching party’s receipt of written notice by the nonbreaching party. In the case of Customer as the terminating party such notice shall be given not less than thirty (30) days in advance of the effective date of such termination.  In the case of TrendzAct as terminating party, such notice shall be given not less than one (1) year in advance of the effective date of such termination.  In the case of Customer as the terminating party, such breach may include any failure of the Services to perform in accordance with the requirements of any SOW or Order Form executed hereunder, provided that the parties shall engage in the escalation process described in Section 10.2 prior to Customer exercising its termination right.  Notwithstanding the foregoing, Customer may immediately terminate the Agreement upon any actual or reasonably suspected violation of Section 8 (Confidentiality).

6.3          Additional Grounds for Termination.  Either party may terminate this MSA and any SOW or Order form: (a) if the other party is liquidated, dissolved, or files for (or has filed against such party) a bankruptcy or receivership case, or (b) if the other party is insolvent, is unable to pay its debts as they become due, or makes an assignment to or for the benefit of its creditors, or (c) in the case of Customer as the terminating party, if TrendzAct or its officers, directors, employees, agents, representatives, or subcontractors commit or allow any acts or omissions which could, in the reasonable opinion of Customer, create the risk of harm to the products, services, reputation, or market perception of Customer, or (d) in the case of Customer as the terminating party, if Matt Gabrielson is no longer as Key Employee in violation of Section 7.2 below, provided that Customer shall not be required to terminate in such an event, or (e) in the case of Customer as terminating party, in the event that TrendzAct enters into any agreement (including a letter of intent or similar document) pertaining to a proposed assignment or change of control as described in Section 10.1, if payment for all undisputed items of an invoice remains unpaid for three (3) months. In addition, Customer may terminate and take possession of the Source Code in the case of TrendzAct material breach, following the procedures described in Section 27(f).  In the case of Customer as the terminating party such termination shall be effective immediately upon notice, except that Customer may, upon notice to TrendzAct, delay the effective date of such termination by a period not to exceed one (1) year from the date of such notice in the case of termination pursuant to subsection (e) of this Section 6.3.  In the case of TrendzAct as terminating party, such termination shall be effective not less than one (1) year following Customer’s receipt of TrendzAct’s notice thereof. 

6.4          Payments upon Termination.  In the event of termination due to Customer’s material breach, Customer shall pay TrendzAct, within 30 days of such termination, all undisputed fees accrued under the Agreement for Services actually provided prior to the effective date of such termination.  If Customer terminates for material breach of the Agreement by TrendzAct, or for any of the other acts or omissions described above, TrendzAct shall refund to Customer within five (5) days any prepaid fees for Services not delivered by TrendzAct as of the termination effective date.

6.5          Effect of Termination. Customer’s right to access and use the Services shall cease immediately on the effective date of termination or expiration and be of no further force or effect; provided, however, that Customer may (but shall not be required to) elect in its discretion to require TrendzAct to continue to perform under this Agreement for a period of an additional six (6) months past the effective date of such termination or expiration, upon the financial and other terms then currently in effect (such additional period the “Wind Down Period”).  No more than 15 days after termination or expiration of the Agreement or conclusion of the Wind Down Period (or upon Customer’s written request at any time during the term), TrendzAct will provide to Customer, at no charge to Customer, all copies of the Customer Content, and shall thereafter destroy or remove any other copies from its systems (including backups) and certify the same in writing to Customer, unless such backup is required by law or to defend against future claims. After such time, TrendzAct shall have no further obligation to store or make available the Customer Content. Customer agrees to timely return all TrendzAct -provided materials related to the Services to TrendzAct at Customer’s expense or, alternatively, destroy such materials and provide TrendzAct with certification of the destruction thereof.

6.6          Additional Services of Key Employee.  Following (a) termination or expiration of this Agreement and all SOW and Order Forms (and of the Wind Down Period, if applicable), or (b) the occurrence of a Release Event under Section 2.7, and regardless of alleged fault of any party, the Key Employee identified in Section 7.2 shall make himself available on a consulting basis for a period of up to six (6) months to assist Customer with transition or any other reasonably requested services.  Fees for such services shall be agreed upon by the parties at such time, and shall be commercially reasonable in any event. 

6.7          Survival.  The following provisions of shall survive termination or expiration of this Agreement and/or any SOW or Order Form, regardless of cause of actual or alleged fault of any party: 1, 2.5, 2.6, 6, 8, 9, 10.1, and 10.3 through 10.11. 

  1. PROVISION OF SERVICES; KEY EMPLOYEE; LIMITED WARRANTY; DISCLAIMER OF WARRANTIES

7.1          Provision of Services.  TrendzAct shall provide all Services in a professional and workmanlike manner, consistent with best industry standards and in compliance with all applicable laws, rules and regulations and the provisions of all agreements known to TrendzAct by which Customer is bound.  Unless otherwise specified in an applicable SOW, TrendzAct personnel providing the Services shall at all times be considered the employees of TrendzAct and not Customer.  Under no circumstances shall TrendzAct’s personnel be entitled to wages, benefits, health insurance, or any other thing of value provided by Customer for its employees. 

7.2          Key Employee.  A major value represented by this Agreement, and the primary inducement for Customer to entrust the implementation and customization of mission-critical matters such as the Software and Services to TrendzAct, is the commitment by TrendzAct that its founder and principal, Matt Gabrielson will be personally available and perform (or personally supervise) critical tasks at all times throughout the Term.  In the event that Matt Gabrielson should cease to be associated with TrendzAct, or fail to be available to Customer’s request for resolution of any critical issues arising in connection with the Software or Services, such unavailability shall be considered a material breach of this Agreement for which the remedies specified in this Agreement shall apply, including release to Customer of the Source Code. 

7.3          Limited Warranty. TrendzAct warrants that it will provide the Services using in accordance with the terms of this Agreement and any SOW and any Order Form, and with any written documentation in effect at any time during the Term. In the event of a breach of this warranty by TrendzAct, Customer may, at its election: (a) require re-performance of the affected Services until such Services are deemed acceptable by Customer; (b) terminate the applicable Service and obtain a full and prompt refund of the portion of any fees paid to TrendzAct by Customer for the nonconforming Service (including any fees paid for preparation or development of such nonconforming Services); or (c) exercise such other rights and remedies as may exist under the Agreement or pursuant to applicable law. The warranty for a Service ends when the Service ends. In addition to the foregoing, TrendzAct represents and warrants that it owns or has sufficient rights in all products or services to be provided hereunder (including the Software and Services as defined herein), and that all such products and services (including the Software and Services as defined herein) shall not violate any right of any third party, including any third party’s intellectual property rights.  Such warranty shall survive for so long as any part of the Agreement is in effect. 

7.4          Disclaimer of Warranty. EXCEPT FOR THE WARRANTIES PROVIDED BY TRENDZACT AS EXPRESSLY SET FORTH IN THE AGREEMENT, TRENDZACT AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, HOSTED SOLUTION (INCLUDING ANY SOFTWARE OR HARDWARE), WORK PRODUCT, INNOVATIONS, INFORMATION, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT OR ANY SERVICES PROPOSAL.  UNLESS OTHERWISE STATED IN THIS AGREEMENT, TRENDZACT AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.  TRENDZACT AND ITS SUPPLIERS DO NOT WARRANT THAT ANY MAINTENANCE AND SUPPORT, HOSTING SERVICES, PROFESSIONAL SERVICES, SOFTWARE OR WORK PRODUCT PROVIDED WILL BE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE OR ANY WORK PRODUCT PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED.  TRENDZACT DOES NOT ASSUME ANY LIABILITY WHATSOEVER FOR ANY THIRD-PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES. CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE, WORK PRODUCT, MAINTENANCE AND SUPPORT, HOSTING SERVICES AND PROFESSIONAL SERVICES TO ACHIEVE ITS BUSINESS OBJECTIVES. No modification or addition to the limited warranties set forth in the Agreement is authorized unless it is set forth in writing, references the Agreement, and is signed on behalf of TrendzAct by a corporate officer.

  1. CONFIDENTIALITY

8.1          Definition. “Confidential Information” means information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential, or that is of such a nature as would reasonably be considered confidential between business parties, except as provided in the next sentence.  Confidential Information shall not include information that:  (a) is or becomes generally known to the public without any wrongful conduct by the recipient, (b) is demonstrated by the recipient to rightfully have been in the recipient’s possession prior to its disclosure by the disclosing party, (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure, or (d) is demonstrated by recipient to have been independently developed by recipient without breach of its obligations. Without limiting the foregoing, the Software or any software developed as part of the Services will be deemed Confidential Information of TrendzAct. As between the parties, any personal information of Customer, its employees, or its users shall be deemed Confidential Information of Customer

8.2          Obligation of Confidentiality. Each party will protect the Confidential Information of the other party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, that such party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither party shall disclose to third parties the other party’s Confidential Information or use it for any purpose not explicitly authorized herein, without the prior written consent of the other party. Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any consultants, contractors, or counsel who have a need to know in connection with the Agreement and have executed a non-disclosure agreement, or are under a confidentiality requirement under law or regulation, with obligations at least as stringent as in the Agreement, (b) by law, or by a court or governmental agency, but only (if legally permitted) after giving the disclosing party advance notice and cooperating with the disclosing party in seeking limitations upon disclosure or other protections, or (c) if necessary in any proceeding to establish rights or obligations under the Agreement; provided, the receiving party shall, unless legally prohibited, provides the disclosing party with reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure, and shall reasonably cooperate with the disclosing party in stipulating to confidential treatment to the extent possible.

  1. LIABILITY AND INDEMNITY

9.1          Limit of Liability. EXCEPT FOR CLAIMS WHICH ARE SUBJECT TO A DUTY OF INDEMNIFICATION AND DEFENSE (SECTION 9.2) OR BREACH OF CONFIDENTIALITY OR PRIVACY AND SECURITY OBLIGATIONS HEREUNDER (SECTION 8 AND EXHIBIT A), EACH PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATED TO THE AGREEMENT WILL NOT EXCEED THE AMOUNTS TO BE PAID BY CUSTOMER TO TRENDZACT DURING THE TERM OF THIS AGREEMENT, INCLUDING ANY SOW AND ORDER FORMS, REGARDLESS OF THE BASIS OF THE CLAIM. EXCEPT FOR CLAIMS WHICH ARE SUBJECT TO A DUTY OF INDEMNIFICATION AND DEFENSE (SECTION 9.2) OR BREACH OF CONFIDENTIALITY OR PRIVACY AND SECURITY OBLIGATIONS HEREUNDER (SECTION 8 AND EXHIBIT A), NEITHER PARTY WILL BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY, STRICT LIABILITY, OR OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE.  THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE. THESE LIMITATIONS APPLY COLLECTIVELY TO EACH PARTY, ITS AFFILIATES, CONTRACTORS, SUBPROCESSORS, AND SUPPLIERS.

9.2          Indemnification. TrendzAct will indemnify, defend, and hold harmless Customer, its subsidiaries and affiliates, and each of their officers, directors, agents, representatives, employees, and subcontractors (each an “Indemnified Party”) from any and all third-party claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) (collectively “Claims”) to the extent arising from or relating to (a) any allegation that TrendzAct’s products or services (including the Software and Services as defined herein) violate the rights of a third party (including by infringing such third party’s intellectual property rights); (b) TrendzAct’s noncompliance with any applicable laws, rules, or regulations in the performance of this Agreement; or (c) actual or alleged violation of this Agreement or an applicable SOW, to the extent such violation results in liability to a third party. The Indemnified Party shall promptly: (i) notify TrendzAct in writing of the claim; (ii) supply information requested by TrendzAct; and (iii) allow TrendzAct to control, and reasonably cooperate in the defense and settlement of, such Claim(s), including mitigation efforts; provided that neither party may settle a Claim without the approval of the other party, which approval may not be unreasonably withheld. TrendzAct has no responsibility for claims based on non-TrendzAct software; items not provided by TrendzAct; or any violation of law or third-party rights caused by Customer Content, unless the use of such software or items was contemplated under this Agreement or otherwise approved by TrendzAct. In the event that any portion of any Service is held or is believed by TrendzAct to infringe or misappropriate any intellectual property right of a third party, TrendzAct will have the option, at its expense, to (A) replace the Service with a non-infringing or non-misappropriating equivalent, (B) modify the Service to be non-infringing or non-misappropriating, (C) obtain for Customer a license to continue using the Service, or (D) require that Customer discontinue use of that Service and refund all fees paid by Customer for the infringing Service for any time following the date of discontinuation, as well as any development fees paid by Customer in connection with the Software or Services prior to the date of such discontinuation.

  1. MISCELLANEOUS

10.1        Binding Nature and Assignment and Change of Control. The Agreement binds the parties and their respective successors and permitted assigns. Neither party may assign the Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld; provided, however that Customer may assign this Agreement or any part thereof in connection with a sale, acquisition, or merger of Customer, including any change of control or the sale of all or substantially all of the assets of Customer, or the sale or other disposition of a controlling interest in the voting shares of Customer. TrendzAct shall notify Customer immediately upon entering into any agreement (including a letter of intent or similar document) pertaining to a proposed assignment or change of control of more than twenty percent (20%) of TrendzAct and Customer shall not reasonable withhold such approval . Upon receipt of such document, Customer shall have the rights specified in Section 6 (including subsections). 

10.2        Escalations.  In the event of a dispute arising in connection with this Agreement, the parties will immediately meet and attempt to resolve the issue.  Initial resolution will occur at the most senior level of TrendzAct leadership with the Director of Customer’s customer care of operations.  If the initial attempt at resolution is unsuccessful, the issue will next be immediately escalated to Customer’s VP of customer care.  In the event that TrendzAct reasonably determines that, notwithstanding such efforts at resolution, a significant issue remains with respect to an intellectual property violation by Customer, TrendzAct shall have the right to seek a preliminary injunction. In such a case the Agreement shall not be terminated unless and until the parties agree, or upon order of a court of competent jurisdiction finding Customer to be in breach. In the event that Customer reasonably determines that, notwithstanding such efforts at resolution, a significant issue remains with respect to performance of the Software or the Services, or that TrendzAct is otherwise in material breach of this Agreement, Customer may declare such issue or breach to constitute a Release Event under Section 2.7 above and order the release of the Source Code as set forth therein.  Such issue or breach shall constitute a material breach permitting termination under Section 6.2, above.

10.3        Entire Agreement, Amendment, Waiver. The MSA along with its attachments, exhibits, schedules and any SOWs and Order Forms, executed hereunder constitute the entire agreement between the parties concerning the subject matter hereof, and supersede any prior or contemporaneous understandings, agreements or representations. No supplement, modification, amendment or waiver of this MSA shall be binding unless executed in writing by both parties. The failure of either party to enforce any of the provisions in the Agreement shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions.

10.4        Notices. Any notices, demands, consents and reports necessary or provided for under the Agreement shall be in writing and shall be (a) personally delivered with a written receipt of delivery; (b) sent by a reputable overnight delivery service requiring a written acknowledgement of receipt or providing a certification of delivery or attempted delivery; or (c) sent by certified or registered first-class mail, return receipt requested, postage prepaid. All notices shall be sent to the addressee at the address on the applicable Order Form or such other address as a party provides through notice to the other party. All notices required or permitted under the Agreement shall be deemed received (a) when delivered personally, (b) the next business day if sent by a reputable overnight delivery service requiring a written acknowledgement of receipt or providing a certification of delivery or attempted delivery; or (c) five (5) business days after depositing with US Postal Service by certified or registered first-class mail, return receipt requested, postage prepaid.

10.5        Severability. In the event that any part of the Agreement shall be held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from this Agreement and the remaining portions of the Agreement shall be valid and enforceable.

10.6        Independent Contractor. The parties are independent contractors and the Agreement shall not be construed to create any other relationship between the parties, as principal and agent, joint ventures or otherwise. No party is authorized to enter into agreements for or on behalf of the other, collect any obligation due or owed to the other party, accept service of process for the other party or bind the other party in any manner whatsoever.

10.7        References/Publicity. Neither party may, without the prior approval of the other party, issue any public statement (including a press release) referring to the other party, the Agreement, the scope of the parties’ relationship, or the Software or Services provided under the Agreement. TrendzAct may not, without the prior approval of Customer, prepare, publish, or distribute, for its sales, marketing, advertising, or any other purposes, case studies describing the applications for which the Software will be used by Customer.

10.8        Headings. The headings contained in this MSA have been inserted only as a matter of convenience and in no way define, limit, extend, or describe the scope of this MSA or the intent of any provision hereof.

10.9        Intentionally Omitted.

10.10      Force Majeure.

(a)           Except for Customer’s payment obligation, neither party shall be liable for any default or delay in the performance of its obligations if and to the extent such default or delay is caused by any of the following (each, a “Force Majeure Event”):

(i)            fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; strikes, lockouts, malicious acts of third parties, interruption of telecommunications service; or any other similar cause beyond the reasonable control of the affected party; and that

(ii)           the affected party could not have prevented by: (i) execution of a disaster recovery plan, (ii) use of alternate sources, work-around plans or similar means, or (iii) reasonable precautions and safeguards (including, without limitation, standard commercial anti-virus products and procedures, emergency power supplies, required back-up systems, fire-suppression systems, or other measures that are standard in the industry).

(b)           The party affected by a Force Majeure Event shall give notice to the other party as promptly as practicable and shall be excused from such performance to the extent made necessary by such event. The non-affected party shall not be responsible for any charges that accrue during the period of such non-performance.

10.11      Counterparts; Facsimile Signatures. This MSA may be executed in any number of counterparts, each of which shall be deemed an original but all of which when taken together shall be deemed an original and shall constitute one and the same MSA. In order to facilitate the transaction contemplated herein, electronically mailed, facsimile, or digital signatures may be used in place of original signatures on this MSA. Each party intends to be bound by the signatures on the electronically mailed, facsimiled, or digitally signed document, is aware that the other party will rely on such signatures, and hereby waives any defenses to the enforcement of the terms of this MSA based on the form of signature.

IN WITNESS WHEREOF, the parties hereto have executed this MSA as of the Effective Date.

TRENDZACT LICENSING ORDER ACKNOWLEDGEMENT FORM

Order Date:

Point of Contact:

Client Corporate Address:

This Order Form (“Order Form”) is subject to and by this reference made a part of the Master Services Agreement (“MSA”) between the parties (collectively, the “Agreement”). Execution of this Order Form shall obligate Trendzact to provide, and Client to accept and pay for, the Services described in accordance with the terms of the Agreement. In the event of a conflict between the terms of this Order Form and the MSA, the terms of the MSA will control.

Term: One (1) Year

Payment Terms: Net 30

Billing Frequency: Monthly
License Fee:  $100 per month

By executing this Order Form below, the undersigned represents and warrants to Trendzact that it has the authority to execute this Order Form. Any counterpart to this Order Form transmitted by facsimile or electronic means shall have the same force and effect as an original. Each party accepts the terms of this Order Form by signing this Order Form by hand or, where recognized by law, electronically. Any reproduction of this Order Form made by reliable means is considered an original.

TRENDZACT, LLC

By:________________________________________________

Name: Matt Gabrielson______________________________

Title: President_____________________________________

CLIENT

By:________________________________________________

Name:

Title:

TRENDZACT PRIVACY AND SECURITY POLICY

This Exhibit shall be updated prior to Jan 1 2020 to comply with the California Consumer Privacy Act of 2018 (CCPA) including the Online Privacy Protection Act and Shine the Light.

The terms of this Exhibit are incorporated by reference as terms of the Agreement and may, from time to time, be modified by mutual consent of both Parties.

Introduction

This Privacy and Security Exhibit (“Exhibit”) governs the manner in which specified information shall be handled or processed by Company (referred to in the Agreement as TrendzAct).

Definitions

“Affiliate Companies” shall mean any companies controlling, being controlled by, or under common control with another company.

“Company” shall mean the party entering into an agreement with Customer, under this Addendum which has been incorporated by reference, as well as all Affiliate Companies of said Company.

“Confidential Information” shall mean Information which (i) is proprietary to, about, or created by a specific person or company; (ii) gives the specified person or company some competitive business advantage or the opportunity of obtaining such advantage, or the disclosure of which could be detrimental to the interests of the specified person or company; (iii) is designated as Confidential Information by the specified person or company, or from all the relevant circumstances should reasonably be assumed by the receiving party to be confidential and proprietary to the specified person or company.

“Individual” shall mean, unless otherwise indicated, any natural person.

“Customer” shall mean ____________________. and its Affiliate Companies.

“Customer Confidential Information” shall mean Customer Personal Information and Confidential Information pertaining to Customer.

“Customer Personal Information” shall mean Personal Information received or collected by Customer or Company pertaining to Customer’s current, former, or potential customers and Personal information pertaining to Customer staff members, employees, contractors and subcontractors, or other agents.

“Personal Information” (“PI”) shall mean any factual or subjective information that pertains to an individual about an identifiable person.  PI can include, but is not limited to:  name, address, phone number, fax number, email address, financial profile, medical information or profile, tax return information as defined under IRC 7216, taxpayer identification number or other governmental identifier, credit card information, personal profile, age, income, credit information, unique identifier, biometric information, and IP address.  For the purposes of this Addendum, information about an individual in the business context is considered Personal Information.  For example, business contact information is considered Personal Information.

Data Handling and Access

Customer maintains internal privacy policies that govern how Customer and its third parties manage Customer Personal Information.  These policies follow the principles set forth below:

Notice – Offer clear, conspicuous notice before collection of Customer Personal Information from any individual.

Choice – Provide individuals choice regarding additional uses of Customer Personal Information, including but not limited to marketing-related uses; and before sharing Customer Personal Information with other third parties not acting as agent.

Security – Provide adequate protections against unauthorized access and exposure of Personal Information, commensurate with the sensitivity of the Personal Information.

Data Integrity – Take reasonable steps to ensure that Personal Information is relevant, reliable for its intended use, accurate, complete, and current.

Access – Take reasonable measures to provide individuals the ability to view, and in some cases, amend or correct, their Personal Information.

Enforcement – Provide specific mechanisms for ensuring compliance with these principles, including recourse, and consequences for non-compliance.

Company shall comply with the above principles, the terms of this Exhibit, the applicable Customer Privacy Statement(s), and all applicable laws, policies, rules and regulations relating to the collection or use of Customer Personal Information.  Company agrees to impose and enforce compliance of this Exhibit on all its employees, contractors, and other third party service providers with access to Customer Personal Information. 

Company shall document in writing Confidential Information handling procedures designed to implement technical and organization measures to protect Customer Confidential Information as required by the applicable Privacy Statement, laws, and this Exhibit.  Company will train employees/contractors/vendors on and implement said procedures in a way that produces the same degree of care as is used with its own Personal Information and Confidential Information, but never less than a reasonable degree of care, to prevent the unauthorized collection, use, sharing, retention/destruction, and other inappropriate or prohibited Confidential Information handling practices.

Company and its authorized agents and vendors shall never sell, rent, or lease Customer Confidential Information to any individual, organization, or third party.

Access to Customer Confidential Information stored on Company’s systems and with Company’s third party providers must not be granted to members of Company’s staff, subcontractors, or other agents, unless the following conditions are met:

The staff member, subcontractor, or other agent has a need to view the information in order to perform authorized work;

The staff member, subcontractor, or other agent is trained in the proper handling of Customer Confidential Information;

The staff member, subcontractor, or other agent is subject to an obligation to handle Customer Confidential Information in ways at least as restrictive as those practices outlined in this Addendum;

The staff member, subcontractor, or other agent requesting the access can be uniquely identified (e.g., by a unique User ID);

The staff member, subcontractor, or other agent requesting the access has entered a correct password or other authorizing token to indicate that he/she is the authorized user of the Customer account.  If passwords are the only method used for authentication, they must satisfy certain minimal standards mutually agreeable to Customer and Company (e.g., eight characters minimum length, required use of special- and/or mixed-case characters, no words that could be found in a dictionary, and required to be changed every ninety (90) days) that make them sufficiently robust to effectively resist both educated guessing and brute-force attacks.

In all cases, access permissions must be established in a manner that allows only for the minimum access level(s) required for each staff member, subcontractor, or other agent to perform his or her job function.  The ability to read, write, modify or delete Customer Confidential Information must be limited to those individuals who are specifically authorized to perform those data maintenance functions.

The date, time, requestor, and nature of the access (i.e., read-only or modify) has been recorded in a log file.

Customer Confidential Information stored on Company’s systems must be stored behind firewalls with access to such data limited as described in the preceding requirement.

Passwords used by Customer’s Customers are not required to conform to the password standard described above; however, Company must ensure that Customers do not have access to Confidential Information other than that which pertains to them.

Company must always encrypt the following Customer Confidential Information when it is stored on Company’s systems:

Account numbers

Credit Card Information

Background check information

Beneficiary information

Government Issued Identifying Number (e.g. Driver’s license number, Social Security Number)

Encryption keys

Passwords

Tax return information

In addition, Company must encrypt all Personal Information stored on laptops or other portable devices.

At a minimum, financial services industry-standard encryption techniques must be employed to safeguard such Information in Company’s systems from retrieval by unauthorized persons.  Company shall adopt best industry practices where appropriate.  Whenever possible, message digest algorithms such as SHA-256 shall be used to hash and verify the user’s password, and “salt” shall be added to the input string prior to encoding to ensure that the same password text chosen by different users will yield different encodings.

Procedures must be in place to modify or revoke access permissions to Confidential Information when staff members leave Company or when their job responsibilities change.

Printed material that contains Customer Confidential Information must be stored in secured areas to which access is limited to those staff members who have a business need to access it.  It must also be disposed of in a secure manner.  At a minimum, financial services industry-standard protections must be employed to ensure the secure storage and destruction of printed Confidential Information.  Whenever possible, secure disposal alternatives such as on-site shredding prior to recycling or placement in publicly-accessible trash bins with subsequent off-site shredding by a licensed contractor shall be implemented.

Company shall under no circumstances collect, access, use, store, destroy, reproduce, disclose, or otherwise handle or process Customer Confidential Information other than as specifically authorized by this Addendum or the Agreement which this Addendum is incorporated.  Should Company become legally obligated to handle Customer Confidential Information other than as permitted by this Addendum or the associated agreement, it shall, unless legally prohibited from doing so, first provide notice to Customer.

Transmission of Confidential Information

Except as restricted by law, Company must not electronically transmit Customer Confidential Information over publicly-accessible networks without using 128-bit encryption in transit (SSL, TLS, etc.) or another mechanism that affords similar or greater security and confidentiality.

Confidential Information must never be passed in a URL (e.g., using a GET method) in a manner that potentially exposes the information to third parties and causes such information to appear in log files.

Company shall only send Customer Confidential Information in an email message over publicly-accessible networks if one of the following conditions is met

The email message is between representatives of Company and representatives of Customer.

The content of the email has been approved in advance by Customer.

The email is encrypted using a previously-approved encryption mechanism or is otherwise made secure with an approach that has been mutually agreed upon in advance by Customer and Company.

Maintaining a Secure Environment

To protect the accuracy and integrity of Customer Confidential Information, all such data must be backed up regularly (no less often than weekly unless otherwise stipulated in this agreement), and the backups stored in secure, environmentally-controlled, limited-access facilities.

Company must run internal and external network vulnerability scans at least monthly and after any change in the network configuration (e.g., new system component installations, changes in network topology, firewall rule modifications, or product upgrades).

Company must promptly install any security-related fixes identified by its hardware or software vendors, if the security threat being addressed by the fix is one that threatens the privacy or integrity of any Confidential Information covered by this Addendum.  Such upgrades must be made as soon as they can safely be installed and integrated into Company’s existing architecture and systems.

Customer may, from time to time, advise Company of recent security threats that have come to its attention, and require Company to implement specific modifications to its software, policies, or procedures that may be necessary to counter these threats.  Company must implement these modifications within a mutually-agreeable time, or must obtain written permission from Customer to take some other course of action to ensure that the privacy and integrity of any Confidential Information is preserved.

Notwithstanding the minimum standards set forth in this Addendum, Company should monitor and periodically incorporate reasonable industry-standard security safeguards.

Reviews, Audits and Remedies

Company shall maintain records to demonstrate its compliance with the terms of this Addendum and shall permit Customer, or a third party chosen by Customer and reasonably acceptable to Company, to audit Company’s books, records, facilities, computer systems, and practices relating to its obligations under this Addendum upon reasonable notice and during regular business hours, and at Customer’s expense, at the locations where such records and data are maintained, for purposes of verifying Company’s compliance.  Notwithstanding the foregoing, if Customer in good faith believes that a threat to security exists that could affect Confidential Information, Company must provide Customer or its agent access to its premises immediately upon request by Customer.

Customer may inspect or employ third parties to conduct studies of Company’s operational processes, systems, vulnerability scan results and computer network security relating to the collection, transmission, and storage of Customer Confidential Information.  Customer agrees to coordinate the scheduling of any such study with Company to minimize disruption to Company’s business.  Company agrees to cooperate with Customer to commence such a study within thirty (30) days from Company’s receipt of written notice of Customer’s intent to conduct, or to employ a third party to conduct, such a study.  At Company’s request, Customer will require any third party it employs to conduct such a study, to sign a non-disclosure agreement and agree not to disclose any Confidential Information.  Customer will make the results of any such study available to Company and, depending on the seriousness of any problems found, may require Company to remedy any and all such deficiencies in a timely fashion.  Costs of such audits shall be borne by Customer, unless Company is deemed, as a result of such an audit, to be in material non-conformity with the Agreement or this Addendum.

Notwithstanding any time-to-cure provision in this Agreement to the contrary, it shall be completely within Customer’s discretion to require correction of any demonstrated security-related problem within a shorter period of time.  Customer shall provide written notice of the problem to Company, and Company must immediately take appropriate steps to correct the problem.  If Company fails to correct any demonstrated security problem within a commercially-reasonable time, considering the work that must be completed to address the problem and resulting in the material disclosure or threatened disclosure of Customer’s Confidential Information, Customer may instruct Company to take such interim measures as necessary to protect Customer’s Confidential Information.  If Company fails or refuses to take those interim and/or permanent measures which are necessary to prevent the material disclosure of Customer’s Confidential Information within a commercially-reasonable time, Customer may terminate any and all affected agreements between Customer and Company for cause.

Termination Obligations

Within ten (10) days after the expiration or termination of the Agreement, Company shall destroy all Customer Confidential Information in a manner that renders such information unrecoverable and certify that it has complied with the foregoing in writing.

Compliance with Applicable Laws and Regulations

In addition to any compliance requirements provided in the Agreement, Company will at all times be in compliance with and shall not violate any applicable privacy and security related international, national, state and local statutes, laws, rules or regulations.

In addition to the general requirement stated above, Company understands that if Personal Information includes sensitive tax return information subject to IRS regulations (including sections 6713 and 7216) governing its use and disclosure, the penalties for unauthorized disclosure or use of such tax return information under IRC 6713 and 7216 can result in criminal prosecution, imprisonment and the assessment of monetary fines.  Company shall access such Personal Information only to provide the services specifically authorized by this Addendum or the Agreement to which this Addendum is incorporated, and shall not disclose it to any third persons.  Additionally, Company shall notify, and hereby represents and warrants that it has notified, in writing any of its employees who may have access to such Personal Information of the applicability of sections IRC Sections 6713 and 7216 including a description of the requirements and penalties of those sections.

Changes to Requirements

Customer may amend this Addendum from time to time as may be required by law or otherwise.  If Company is not willing or is unable to meet the updated requirements of such amendments, Customer may terminate the Agreement under which this Addendum is incorporated upon thirty (30) days written notice.

Notifications

Immediately upon discovery, Company must notify Customer (a) if it knows or suspects that Customer Confidential Information has been compromised, disclosed to unauthorized persons, or used in an unauthorized manner, (b) if there have been any complaints about Company’s information and collection practices as they relate to Customer Confidential Information, or (c) if there has been any meaningful or substantial deviation from the requirements contained in the Agreement or this Addendum.

Company agrees that Customer shall have the right to participate in the investigation, response and/or correction of any of the above.  In addition, unless otherwise required by law, Customer shall have the right to control and direct any public communication, including but not limited to communication with Customer customers, regarding the same.

Additionally, Company must immediately notify the Customer Internet Operations Center (“IOC”) of any relevant, urgent security issues identified by Company, including, but not limited to, ongoing denial of service attacks, actively exploited vulnerabilities, and ongoing exposure of Customer Confidential Information.

Contact Information

Company agrees to designate a single point of contact as its Privacy and Security Coordinator.  This Privacy and Security Coordinator will (i) maintain responsibility for applying adequate protections to Customer Confidential Information, (ii) oversee application of Company compliance with the requirements of this Addendum, and (iii) serve as a single point of contact for internal communications and communications with Customer pertaining to this Addendum and compliance with or any breaches thereof.  

Additionally, both Customer and the Company shall designate a single point of contact for urgent security issues (a “Security SPOC”) and provide contact information for such Security SPOC.  Both parties agree that either the Security SPOC will be available at all times (“24/7/365”).

STATEMENT OF WORK FOR
Client Name
Client Project Name
Client Logo

1. STATEMENT OF WORK OVERVIEW

This Statement of Work, and the associated Order Form which is hereby incorporated into and made a part hereof, (“SOW” or “Statement of Work”) is entered into between Customer and Trendzact as of _____________ (“Effective Date”) and adopts and incorporates by reference the Master Services Agreement (“MSA”) entered into by the Parties. All capitalized terms not defined in this SOW have the meaning set forth in the MSA.

Described within this SOW is the project, which consists of the deliverables to be provided by Trendzact, and Trendzact responsibilities and related Customer responsibilities to be provided in accordance with the terms of this SOW. Any items or tasks not specifically described within this SOW are considered out of scope for the project.

Changes to this SOW will be processed in accordance with the procedure described in the Change Control Procedure below. The investigation and the implementation of changes may result in modifications to the estimated schedule, charges, and other terms of this SOW and the Agreement.

By signing this SOW, Customer agrees to license the Trendzact CRM SaaS application, including the functionality to be configured or customized under this SOW, for all functionality included in scope.

2. PROJECT OVERVIEW

Business Summary: As Client Name is maturing as a stand-alone company, its needs are evolving, and its staff need a more integrated, cost-effective CRM to replace a legacy CRM. Client Name wants a CRM that is cloud-based, based on modern architecture and framework, user-friendly, and adapted to meet certain Client Name-specific functionality requirements. The pricing strategy for the CRM should be clear and easy to understand.

High Level Solution: Using traditional project services, Trendzact will define, validate, plan, and execute configurations and customizations, as applicable, of Trendzact’s CRM SaaS application to provide Client Name with (TBD) main functional areas:

  1. TBD
  2. TBD

Appendix A lists the high-level core feature-functions schedule included in the Trendzact CRM SaaS application and enhancements Trendzact will build through our configuration and custom development efforts detailed in the external file “Discovery Document”.  It also lists those features that were discussed but are expressly out of scope for this SOW and will require a separate Statement of Work for completion.

3. PROJECT MANAGEMENT

The Trendzact Project Managers will develop a:

(a) detailed timeline in the external file “Release Schedule by Milestone” that incorporates the specific milestones of this project and key dates which must be considered in the planning and

(b) requirements matrix that outlines the key functionality that the project aims to achieve. Your Trendzact Project Managers will manage status meetings, weekly email updates, scope monitoring, and coordination of resources. If at any point your needs exceed the available scope or available timeline, it is the responsibility of the Trendzact Project Managers to work with you to determine an appropriate resolution. This could mean a change in the schedule, or the addition of scope to the project or an adjustment of planned services. Your Trendzact Project Managers will work with you to determine the best strategy for success. The scope for project management time is estimated based on approximate timeline. If significant timeline delays occur due to client requests or lack of response, additional project management time will be required.

KEY TRENDZACT PERSONNEL

Because of the importance to Customer of having Matt Gabrielson involved in the project for the purposes of identifying and validating Customer’s CRM Solution requirements, Trendzact will ensure that Matt Gabrielson is available and participates in the project through the Final Delivery milestone, subject to his reasonable availability considering other commercially reasonable business responsibilities and scheduled or unscheduled time off, among other reasons.

CUSTOMER PROJECT MANAGER

Upon execution of this SOW, Customer will designate Customer Project Manager(s) to whom all communications for this project will be addressed and who will have the authority to act on behalf of Customer in all matters regarding this SOW. The Customer Project Managers’ responsibilities include the following:

  • Provide overall strategic guidance for the project and act as a final decision maker for project prioritization, direction, alignment of processes, and project changes;
  • Manage Customer personnel and responsibilities for this project in accordance with the project timeline;
  • Serve as the interface between Trendzact and all Customer departments participating in the project;
  • Administer the Change Control Procedure with the Trendzact Project Manager;
  • Participate in project meetings;
  • Obtain and provide in a timely manner the information, data, and decisions requested by Trendzact’s;
  • Review deliverables submitted by Trendzact in accordance with the Acceptance Procedure; and
  • Help resolve project issues and Customer’s deviations from the estimated schedule, and escalate issues within Customer’s organization, as necessary;

4. DISCOVERY

The Trendzact Implementation Team has worked with the Customer Project Managers & their team to create a release schedule based on the Customer’s prioritized list.  The Discovery Document provides details of all requirements and the prescribed solutions to accomplish each requirement.  Should requirements be captured beyond the scope of this project, which changes will be handled through the Change Control Procedure.

5. IMPLEMENTATION AND CUSTOM DEVELOPMENT

Using the Discovery Document developed during the Discovery Phase, Trendzact will customize and configure the Trendzact CRM SaaS application to provide the QB Functionality and CRM Functionality using an iterative development process to produce the required system within the budget and milestone timeline. Trendzact mitigates risk by using Jira (commercially available project management, ticketing, and time tracking software), and Confluence (project document management system). Unit tests are written for every ticket and perform feature-function user acceptance testing. Additional requirements identified during the project beyond those identified in the requirements documentation that require custom code will be considered out-of-scope and will be handled via the Change Control Procedure. Services may be performed both at the Customer’s locations and remotely. Trendzact may use personnel and resources in locations worldwide and third-party suppliers to support the delivery of Services, provided however, that the Customer Content will be hosted within the United States.

Customer will:

  • provide UAT testers who understand Customer’s requirements;
  • coordinate user acceptance testing (UAT) and provide a point of contact for UAT coordination, if not the Customer Project Manager;
  • provide testing devices for UAT with current browser software prior to testing (PC Chrome, PC Firefox, and Mac Safari);
  • provide sample data load files as requested by Trendzact;
  • assist with defect triage support and correct any non-Trendzact software and configuration, as applicable;
  • understand that feedback from UAT will be collected and divided into fixes and enhancements (fixes will be corrected and validated while enhancements will be validated for either a Change Control Procedure for this project or inclusion in a separate SOW;
  • provide acceptance in accordance with the Acceptance Procedure once UAT has been completed.

6. DATA MIGRATION

The scope of this SOW includes data migration for contact information, case information, and notes.  It does not include attachments, logs, or other information not explicitly included.

  • TBD

Trendzact will use a staged approach to check for duplicates or incomplete entries to ensure the best data parity from your legacy system to the CRM Solution. We map, clean, dedupe and move your data from your legacy system(s) into your CRM Solution instance accurately.

During this phase, Customer will:

  • provide as needed access to subject matter experts who are knowledgeable about the legacy data and how it is structured;
  • coordinate data migration UAT and provide a point of contact for data migration UAT coordination, if not the Customer Project Manager;
  • assist with defect triage support;
  • provide acceptance in accordance with the Acceptance Procedure once data migration UAT has been completed.

7. INTEGRATION WITH THIRD-PARTY SERVICES

The scope of this SOW includes integration into the following third-party applications or data sets, and only for the explicit purpose defined below.

  • TBD

During this phase, Customer will:

  • provide as needed access to subject matter experts who are knowledgeable about the third-party data and how it is structured;
  • coordinate integration UAT and provide a point of contact for integration UAT coordination, if not the Customer Project Manager;
  • assist with defect triage support;
  • provide integration UAT testers who understand Customer’s requirements; and
  • provide acceptance in accordance with the Acceptance Procedure once integration UAT has been completed.

8. ACCEPTANCE, TRAINING AND DEPLOYMENT

Within ten (10) days of receipt of a deliverable, the Customer Project Manager will either accept the deliverable or provide Trendzact with a written list of requested revisions; otherwise the deliverable will be deemed accepted. The revisions recommended by Customer and agreed to by Trendzact will be made and the deliverable will be resubmitted and deemed accepted. The revisions recommended by Customer and not agreed to by Trendzact will be managed through the Change Control Procedure. In the event of an acceptance dispute, the Parties will follow the MSA Escalations procedure.

Trendzact will create user documentation for functionality with step-by-step instructions and screenshots to assist with the customer training and user adoption. Trendzact will provide scenario and group-based custom trainings for key administrative and business users that will supplement the relevant trainings provided by Trendzact Knowledge Base. The assigned Trendzact Project Manager will provide suggested self-study

assignments, including links to recorded trainings or documentation to maximize live training hours spent on customized topics.

After acceptance, Trendzact will deploy the Trendzact CRM SaaS application into the production environment for go-live use by Customer. Trendzact will provide unlimited phone & online support, plus the onsite Trendzact resources listed below (all domestic expenses included).

  • TBD

9. OTHER CUSTOMER RESPONSIBILITIES

Trendzact’s performance is dependent upon Customer’s fulfillment of its responsibilities at no charge to Trendzact. Any delay or idle time in performance of Customer’s responsibilities may result in additional charges and/or delay of the completion of the Services and will be handled in accordance with the Change Control Procedure.

Customer will:

  • if required, provide safe access, suitable office space, supplies, high speed connectivity to the Internet, and other facilities needed by Trendzact personnel while working at Customer’s location;
  • have Customer staff with appropriate skill and experience available to provide assistance and provide reasonable access to Customer senior management as Trendzact reasonably requires enabling Trendzact to provide the Services;
  • provide all information and materials reasonably required to enable Trendzact to provide the Services as Trendzact will not be responsible for any loss, damage, delay, or deficiencies in the Services arising from inaccurate, incomplete, or otherwise deficient information or materials supplied by or on behalf of Customer;
  • have appropriate agreements in place with third parties whose work may affect Trendzact’s ability to provide the Services and be responsible for the management and performance of the third parties and for any third-party hardware, software or communications equipment used in connection with the Services; and
  • allow Trendzact to publicly refer in a publicity or marketing communication to Customer as using the CRM Solution.

10. CHARGES

The Services will be conducted on a fixed price basis, subject to changes under the Change Control Procedure. The fixed price for performing the Services defined in the SOW will be $ TBD, which price will include Customer’s license fee for the CRM Solution through the Alpha and Beta phase. This fixed price is inclusive of any domestic travel and living expenses incurred in connection with the Services, and any applicable taxes. Trendzact will invoice monthly for any additional reasonable expenses incurred in connection with the Services but not covered in this Statement of Work (ie: required international travel).

The fixed price for this project is based on a continuous work schedule. It does not account for schedule delays during performance of the Services. Any Customer caused or required delay in the project schedule will be handled by the Change Control Procedure and may result in an increase in charges and/or schedule. In such event, Trendzact, at its option, may change the resources/skills assigned to the project.

The table below summarizes the fees for the Services segmented into milestones with estimated completion dates. Notwithstanding the segmentation of fees, the Parties acknowledge and agree that the total fees charged by Trendzact under this SOW cover the entire scope of effort for the Services and no individual fee payment is intended to represent the total cost of the effort provided by Trendzact up to that milestone.

Milestone

Fee

Estimated Completion Date

Discovery (non-refundable)

QB Checkpoint
Client Name The fixed price for this project is based on a continuous work schedule. It does not account for schedule delays during performance of the Services. Any Customer caused or required delay in the project schedule will be handled by the Change Control Procedure and may result in an increase in charges and/or schedule. In such event, Trendzact, at its option, may change the resources/skills assigned to the project. The table below summarizes the fees for the Services segmented into milestones with estimated completion dates. Notwithstanding the segmentation of fees, the Parties acknowledge and agree that the total fees charged by Trendzact under this SOW cover the entire scope of effort for the Services and no individual fee payment is intended to represent the total cost of the effort provided by Trendzact up to that milestone.UAT approval from Trendzact TEST environment of at least 50% of the QB Functionality function-features within the SOW. The initial test data extract-transform-load will be performed with (2) years of Quickbase data.

QB General Acceptance (100 users)

Client Name UAT approval from Trendzact PROD environment of all QB function-features within the SOW.

The final data extract-transform-load will be performed with (2) years of Quickbase data.

CRM Checkpoint

Client Name UAT approval from Trendzact TEST environment of at least 50% of the CRM function-features within the SOW.

The initial test data extract-transform-load will be performed with (2) years of Salesforce, and all QCare Contacts.

CRM Beta (175 agents)

Client Name UAT approval from Trendzact PROD environment of all of the CRM function-features within the SOW.

The final updated data extract-transform-load will be performed with (2) years of Salesforce, and all QCare Contacts.

Incremental data sync with the legacy SF instance is included through Final Delivery

CRM General Acceptance (1000 users)

Client Name migration of all active users is complete.

Incremental data sync with the legacy SF instance is terminated.

Total

TBD

11. CHANGE CONTROL PROCEDURE

Any change in scope, requirement, or deliverable that results in a material change in the level of effort required, time needed, or cost incurred must be documented in a change request and signed by both Parties prior to change orders are initiated.

12. SOW EXECUTION

This SOW, its Appendices, and the MSA, are the complete agreement regarding the Services, and supersede any course of dealing, discussions, or representations between Customer and Trendzact. Each party accepts the terms of this SOW by signing this SOW by hand or, where recognized by law, electronically. Any reproduction of this SOW made by reliable means is considered an original. If there is a conflict between the terms of this SOW and the MSA, the terms of the SOW will govern.

TRENDZACT, LLC

By:________________________________________________

Name:_____________________________________________

Title:______________________________________________

CLIENT NAME INC.

By:________________________________________________

Name:_____________________________________________

Title:______________________________________________

APPENDIX A

This is a summary of the features to be enabled, customized and developed for Client Name QB an CRM Functionality and external documents provide specific information

  • Discovery Document provides details of all requirements and the prescribed solutions to accomplish each requirement.
  • Release Schedule incorporates the specific milestones of this project, key dates and the requirements matrix outlining the key functionality of the project.
  • Ticket Data Elements provide specific details for every Ticket Type
    • Field Name, Type, Description and Calculated Field business logic
    • Sections to be enabled
    • Gadgets to be enabled
    • Integrations required
    • Workflow Stage-Status, Appointment Sync, Trigger Actions
    • Pick List values
    • Nested Pick List values

Core Features-Functions-Modules enabled

Contact Relationship Management Complete view of your contacts and their activity from a single page, including communications history, key attributes, events and tasks.  Trendzact reduces wasted “tool time” by thoughtfully placing critical information within the agent view and controls the engagement with customized workflows; and, links between contacts, organizations and the business relationships they share. 

Contact Activity Log A log event is automatically created for every customer interaction (create, update, view) and certain fields are stored in the change log, so you’ll never need to decipher who changed what, or when an engagement occurred.

Contact Attachments Keep files secure and linked to their respective contact.  Administrators can enforce access and retention policies to reduce risk.

Contact Data Hygiene We automate your data entry using address autocomplete, email domain validation, and phone number (NPA-Nxx) validation.  This eliminates duplicate accounts and ensures follow-up communication deliverability.

Contact Notes Our notes are always in context, can be assigned to specific tickets, and supports basic text formatting such as bold, italics, color text, and highlight.

Contact Tasks Our task management tools help your agents create and track individual tasks associated with a contact.  They are date/time stamped and include resolution tracking.

Analytics Dashboard Get a real-time visual snapshot of your organization’s key metrics, so you see how you’re pacing (choose 5 for implementation) progress funnel, progress status, escalation rates, ticket trends, ticket rates per hour, contact rates per hour, NPS score, or resolution rates. [see Appendix]

Analytics Mobile App Get real-time insights into trends, customer engagement, and team performance with mobile dashboards so you can make informed decisions when you’re on the go, in a meeting, or relaxing on the beach.

Analytics Reports Slice and dice your Trendzact CRM data with over ten (10) standard reports can be used as-is or customized for a specific use.  Reports return data from different data sets, so you can process and use it efficiently.  Data visualization and ad hoc, customized reports are native to the application (5 customized reports included with implementation). [see Appendix].

Integration API RESTful and Webhook Web Services Your business needs more than just automation to manage all its activities.  You might use different applications for everything from accounting and analytics, to email and event management, so our REST APIs let you collaborate, communicate, and share information with hundreds of external apps.  Trigger (POST) or Webhooks URL parameters to put your CRM in conversation with hundreds of other apps with ease.  (2 use cases included in implementation).  Included are submit/regular retrieval of Survey Monkey NPS responses, and PureCloud ACD screen pop using webhook URL parameters (or Embedded Framework).

Integration Intelligent Web Scraper Eliminate “swivel chair entry” for external, third-party software that cannot be accessed via APIs.  This browser-based JavaScript framework can embed either a client-side app or server-side technology inside the Trendzact CRM to auto-fill fields and scrape outcomes (not included in implementation).

Integration Secure File Transfer & Storage emailing files with sensitive data is a security breach. Contacts and agents can confidently transfer and attach files to the contact record (Rackspace Cloud Files API 1.0).

Organization User Groups Creating and assigning users takes just a few clicks.  Create unlimited groups and organize them according to their hierarchy, then add leaders, users, and associations to the group.  Our unique naming method makes it easy to track associations.  Roles, rights, and restrictions can be set at a Group level which is then inherited by the Group users (50 users and 10 groups included with implementation). [see Appendix]

Organization User Roles & Rights Permission Simultaneously ensure data security and enable collaboration.  Use profiles in Trendzact CRM to restrict users from deleting or exporting customer records; give each team member access to only the functions they need.  Trendzact CRM’s enterprise-level security features allow administrators to set different levels of access permissions.  Each role must be assigned a security profile, which enables a range of key functions and determines the security access associated with that role (4 customized roles included with implementation). [see Appendix]

Settings Dynamic Nested Dependency Lookup uniquely groups a set of inputs together under a tiered framework.  Our technology guides agents by prompting them for the next bit of information and responsive scripting in the correct sequence (2 included in implementation).  This process speeds adoption for new hires, as well as reinforces best practices for seasoned agents. [see Appendix]

Settings Localization reflect your brand identity by adding your company logo, customize your interface with your brand colors and map the application to your own domain (2 iterations included with implementation).  Rename menu items and some fields to use your own corporate jargon and terminology, choose languages, and global mailing address standards. [see Appendix]

Settings Template Editor Using our powerful template builder you can create a library of emails, SMS, notes, webhooks and basic documents that your agents can access, customize and send on the fly.  Templates can pull in most fields, then as a communication is generated, Trendzact inserts the values from each recipient’s record (think mail merge).  This creates a personalized touch with no extra effort or user mistakes (5 templates included with implementation). [see Appendix]

Settings Ticket Layout Editor with visual drag and drop interface enables your power users to add System Fields, Optional Fields, Pick Lists, System Controllers, and Custom Controllers to make it more applicable to your business needs. (2 iterations included with implementation).

Settings Ticket Types Tier 1, Tier 2, Office of the President (OOP), Change of Email, Refunds

Settings Workflow Automation Queue up a series of emails and deliver them to a prospect on a schedule you set.  When a rule is triggered by a status, the platform performs the defined action.  Communications can go out to your contacts, users, leaders, or any active email address.  In addition to sending emails, a workflow can also SMS text messages, post a note, assign a task and fire webhooks (4 workflow customization included with implementation).

Workforce Email Sync Our CRM suite includes tools that can sync an agent’s or team’s email account to make every engagement easier.  Agents can select canned, templated messages, attach relevant documents to individual emails, and send them directly from Trendzact.  Each email is stored in the contact’s record for historical reference.

Workforce Gamification Encourage both competition and collaboration within your team to drive improvement.  Our gamification helps your teams stay focused and improve their metrics every day by treating each engagement like a competition.  Real-time posting of customer satisfaction survey responses makes an impact on productivity (requires survey response integration, not included in implementation).

Workforce Internal Chat Agent Our internal chat functionality allows the agent to invite a team leader or group to have a real-time chat conversation which is converted into notes and comments once complete.  This unique concept enables the agents to reduce escalation transfers and improve customer satisfaction.

Workforce Message Center Our internal messaging and critical alerts center allows scheduled or immediate messages to individual users or groups, and admins can report on active users who have unread critical alerts.

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