PLEASE READ THIS MASTER AGREEMENT BEFORE USING SERVICES OFFERED BY CACFP SOLUTIONS, LLC. BY ACCESSING OR USING ANY OF THE CACFP SOLUTIONS OFFERINGS, YOU (“the Customer”) CONFIRM YOUR ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITION SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS MASTER AGREEMENT, DO NOT USE THE SERVICES.
WHEREAS, Customer wishes to obtain access to the Services offered by CACFP Solutions; and CACFP Solutions wishes to provide the Services to Customer, each on the terms and conditions set forth in this Agreement.
THEREFORE, in consideration of the mutual agreements and promises set forth, and other valuable consideration, the parties agree as follows:
This Agreement establishes the terms and conditions under which CACFP Solutions agrees to provide:
(a) certain hosted “software as a service” applications, referred to as (“SaaS Services”), with each application together with any other documentation, programming, and user interfaces, a (“Platform”) to Authorized Users, as further set forth on the (“Order Form”) associated with this Agreement, and;
(b) if applicable, all other software implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and;
(c) all claim processing services, CACFP program and business training, project, and consultation services (“Professional Services,” together with SaaS Services, being referred to as the “Services” related to Customer’s access to, and use of, such Services, as further set forth on Exhibit A (SaaS Services) and Exhibit B (“Scope of Professional Services”) issued in accordance with this Agreement, Order Forms, and Exhibits, may sometimes be referred to jointly as a “Statement of Services”.
Subject to the terms and conditions of this Agreement, during the Term, CACFP Solutions will use commercially reasonable efforts to provide (i) Customer and Authorized Users access to each Platform, and (ii) Customer with the Professional Services described in Exhibit B. Subject to the terms and conditions of this Agreement, during the Term, CACFP Solutions hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, nontransferable, worldwide license to access and use each Platform, solely for internal business purposes as set forth herein.
Each applicable Contract or Order Form, in conjunction with Exhibit A, shall specify and further describe the SaaS Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable Platform, user limitations, fees, service term and other applicable terms and conditions.
(a) No Software Copies. Customer acknowledges that this Agreement for SaaS Services is a service agreement. CACFP Solutions will not be delivering copies of the Software to Customer as part of the SaaS Services.
(b) No Contingencies. Customer agrees that its entry into this Agreement is not contingent on the delivery of any future functionality or features by CACFP Solutions.
(c) Existing Features and Functions. The current features and functions available to the Customer are described in the attached Exhibit A.
(d) New Features and Functions. In no event will CACFP Solutions be obligated to provide any new features or enhancements free of charge.
(e) Enhancements. Improvements that significantly alter the functionality or design of the Platform the Customer and its Authorized Users consistently rely on will be deployed with no less than 2-weeks advance notice to the Customer, but typically no less than 30-90 days advance notice, depending on the nature and significance of the deployment.
(f) Changes to Platform. CACFP Solutions may, at its sole discretion, make any changes to any Platform that it deems necessary or useful to (a) maintain or enhance the quality or delivery of CACFP Solutions’ products or services to its customers, (b) improve the competitive strength of, or market for, these products or services, (c) improve such Platform’s cost efficiency or performance, or (d) to comply with applicable law or official agency requirements
Exhibit B, and any other applicable Scopes of Service that may be established, shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
(a) Work Staff. CACFP Solutions will be solely responsible for facilitating staffing and work locations required to perform only the services described in Exhibit B.
(b) No Liability for Others Failure to Perform. Customer agrees that CACFP Solutions’ performance of the Professional Services will be conditional upon the Customer and its Account Holders’ performance of the obligations necessary for CACFP Solutions to provide the Services in this Agreement.
(c) Third Party Hardware or Software. Customer will be solely responsible for the evaluation, selection, installation, implementation, compatibility, use, performance of, and results obtained, from any hardware, systems software, utility software, security software, telecommunication equipment or software, and applications software used in connection with the Professional Services, unless (and only to the extent) otherwise expressly agreed in this Agreement.
(d) Third Party Products or Services. Where the Professional Services to be provided by CACFP Solutions involve the acquisition by Customer of products or services of third parties (such as delivery services), CACFP Solutions will not be responsible for delays in the delivery of such services by third parties or for services’ faulty quality, defective performance, or failure to perform in accordance with published specifications or accepted standards.
(e) Contingent on SaaS Services. CACFP Solutions is only able to provide to Customer the Services described in Exhibit B in collaboration with the SaaS Services to be provided under Exhibit A. This means CACFP Solutions cannot perform the Professional Services if Customer relies on a SaaS Service that is not owned, operated, or licensed to the CACFP Solutions.
In this Agreement, unless the context others requires, capitalized terms will have the meaning assigned to them here, including the following:
a) “Account” means a record that tracks all activities, business events, documents, or related business matters for the Customer or the Customer’s site-level organizations (daycare or at-risk sites).
b) “Account Holder” means an individual or sitelevel organization designated by Customer or CACFP Solutions, respectively, to whom an Account is issued.
c) “Applicable Laws” means all applicable laws and regulations as well as orders of courts or laws, regulations, bylaws or ordinances of applicable governmental agencies.
d) “Authorized Users” means users who have been authorized by the CACFP Solutions or the Customer to access the SaaS Platform or the Professional Services outlined in this Agreement.
e) “CE Manager User” and ” CE Owner User” means each employee of the Customer who is designated by Customer to serve as the primary contract manager and administrator of the SaaS Services on Customer’s behalf. Each CE Manager User must complete training and qualification requirements reasonably required by CACFP Solutions.
f) “Claims” means a claim for reimbursement with the Texas Department of Agriculture, Food & Nutrition Division, or in the more traditional business sense, “Claims” means liabilities, actions, proceedings, claims, causes of action,
demands, debts, losses, damages, charges and costs, including reasonable legal costs, any amount paid to settle any action or to satisfy a judgment and expenses of any kind and character whatsoever incurred in connection with this Agreement.
g) “Communications Facilities” means all communication facilities between the hosting facilities for the Platforms and users of the Platforms, whether by accountholders or third part users.
h) “Confidential Information” has the meaning set out in §7.1.
i) “Content” or “Data” means all materials and content, including designs, editorials, text, graphics, audiovisual materials, multimedia elements, photographs, videos, music, sound recordings, reports, documents, software, information, formulae, patterns, data, and any other work, and “Customer Content” is data entered, uploaded, or inputted into the Platforms by or on behalf of Customer or their authorized users.
j) “Customer Content” means all data belonging to the Customer or its authorized users and materials provided by Customer to CACFP Solutions for use in connection with the SaaS Services, including, without limitation, customer applications, data files, and graphics.
k) “Documentation” means the user guides, online help, release notes, training materials and other documentation provided or made available by CACFP Solutions to Customer regarding the use or operation of the SaaS Services.
l) “Enhancement” means enhancements, developments, modifications, updates, additions, and improvements made to the Platforms, other than New Features and Functions.
m) “Exhibit” is a written document attached to this Agreement for further clarification of the terms of service.
n) “Force Majeure” means circumstances beyond a party’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, or hosting service provider failures or delays.
o) “Host” means the computer equipment on which the Software is installed, which is owned and operated by CACFP Solutions or its vendors.
p) “Identity Cube” means a unique collection of identity data for an individual user that will be granted access to and/or managed by the SaaS Services for the purposes of providing single sign-on, managing passwords, or certifying user access. Identity data may be physically or logically maintained in a single repository or in separate physical or logical repositories. Although Identity Cubes for user accounts that have been deactivated may remain in the identity management system, those inactive Identity Cubes will not be included in the number of Identity Cube licenses in use by Customer.
q) “Intellectual Property Rights” means any and all (i) proprietary rights provided under patent law, copyright law, trade-mark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other applicable statutory provision or otherwise arising at law or in equity, including, without limitation, trade secret law, that may provide a right in works, software, source code, object code, marks, ideas, formulae, algorithms, concepts, methodologies, techniques, inventions, or know-how, or the expression or use thereof, (ii) applications, registrations, licenses, sublicenses, agreements, or any other evidence of a right in any of the foregoing, and (iii) past, present, and future causes of action, rights of recovery, and claims for damage, accounting for profits, royalties, or other relief relating, referring, or pertaining to any of the foregoing.
r) “Maintenance Services” means the support and maintenance services provided by CACFP Solutions to Customer pursuant to this Agreement and Exhibit B.
s) “New Features and Functions” means any update, revision, new version, new modules or upgrades of the Platforms made available by CACFP Solutions from time to time (i) that adds new functions or features to the Platforms and (ii) for which CACFP Solutions may or may not charge a fee to its customers in order to obtain same.
t) “Other Services” means all technical and nontechnical services performed or delivered by CACFP Solutions under a separate Order for Services not covered in the scope of this Agreement. Such services may include implementation services, other professional services, training and education services, or similar services.
u) “Permitted Purposes” means CACFP Solutions is providing to the Customer these services and software Platforms for the explicit purpose of providing support to the Customer in fulfilling their duties as an approved participant of the USDA Child & Adult Care Food Program in the state of Texas.
v) “Platforms” means the software that is owned, operated, and/or licensed to CACFP Solutions or related entities, and that will be made available to Customer as a service under this Agreement via a designated website or websites, as may be designated by CACFP Solutions, from time to time, together with the related documentation, Content (other than Customer Content and Customer Data) and end user materials delivered.
w) “Professional Services” has the meaning set out in §1.4.
x) “SaaS Services” refer to the specific CACFP Solutions’ internet-accessible service identified in Exhibit A that provides use of CACFP Solution’s CACFP management Platforms that are hosted by CACFP Solutions or its services provider and made available to Customer over the internet on a term-use basis.
y) “Schedule” is a written document attached to this Agreement to further clarify the terms.
z) “Service Start Date” means the date the Services in this Agreement shall commence.
aa) “Service End Date” is the last date Services will remain in effect for this Agreement.
bb) “Site-Level” means actual day care or at-risk facilities (sites) and their staff who may be account holders and authorized users, Customers of either the CE, or Customers of the CACFP Solutions.
cc) “Software” means the object code version of any software to which Customer is provided access as part of the Service, including any updates or new versions.
dd) “Service Period” shall mean that period specified in the Order during which Customer will have on-line access and use of the Software through CACFP Solutions’ SaaS Services.
ee) “Scope of Services” has the meaning set out in Exhibits A & B.
ff) “Term” means either of period of time during which this Agreement is in effect, or the actual conditions necessary for both parties to enter into this Agreement.
gg) “User” means an individual with an identity cube who has been assigned access to the Platforms, whether at the Customer level or the Customer’s site-level access.
hh) “Work Product” means all improvements, enhancements and derivatives developed by CACFP Solutions for the purposes of providing the Professional Services under this Agreement or otherwise and any and all other work products developed by CACFP Solutions for the purposes of providing the Professional Services or Software as a Service under this Agreement.
In this Agreement, unless expressly stated otherwise or the context otherwise requires:
(a) headings and captions are for convenience only and will not be deemed to explain, limit or modify the provisions;
(b) the word “including” is not to be construed as limiting the general statement or term, and the word “or”, when connecting two or more matters, will not imply an exclusive relationship between the matters;
(c) a reference to a “person” or “entity” means an individual, corporation, firm, limited liability company, partnership, syndicate, joint venture, society, association, trust or unincorporated organization or governmental authority or trustee, executor, administrator or other legal representative, including any successor to that person;
(d) a word importing a corporate entity includes an individual, and vice versa;
(e) words, phrases and acronyms not otherwise defined herein that have a meaning commonly understood and accepted by persons familiar with the Internet and computing services professionals will be interpreted and understood to have that meaning, and;
(f) in the event of any conflict or inconsistency between the terms of this Agreement and the terms of the Exhibits herein, the terms of the Exhibits and the Order Form affiliated with this Agreement will prevail to the extent necessary to resolve such conflict or inconsistency.
During the configuration and set-up process for each Platform, Customer will identify a primary CE Manager and/or CE Owner username and password for Customer’s CACFP Solutions account. CACFP Solutions reserves the right to refuse registration of or cancel usernames and passwords it deems inappropriate.
Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its accounts, passwords, and files accessible by Customer’s authorized users. CACFP Solutions is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
CACFP Solutions will issue Accounts, or permit Customer to issue Accounts, to authorized users as selected by Customer. Only authorized users may access or use the Platforms and each user’s access to the Platforms requires valid login credentials, including at least user identification and secure passwords (each an “Account”). The login credentials of an authorized user may not be used by more than one individual unless the Account of a user is reassigned in its entirety to another authorized user.
Customer shall be solely responsible for the acts and omissions of its authorized users. CACFP Solutions shall not be liable for any loss or omission of data or functionality caused directly or indirectly by the Customer’s authorized users.
The Customer shall provide commercially reasonable information and assistance to CACFP Solutions to enable CACFP Solutions to deliver the Services set out in this Agreement. Customer acknowledges that CACFP Solutions’ ability to deliver the Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
All parties shall comply with applicable local, state, national, and foreign laws in connection with its use of the Services, including those laws related to data privacy and the transmission of technical or personal data. Customer acknowledges that CACFP Solutions exercises no control over the content of the information transmitted by the Customer or the Identity Cube users through the SaaS Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
Customer retains ownership and intellectual property rights in and to its Customer Data. CACFP Solutions or its licensors retain all ownership and intellectual property rights to the Services and anything developed and delivered under the Agreement.
CACFP Solutions shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation of the Services.
CACFP Solutions will provide training to Customer’s staff during any implementation period. This training will be in the form of in-person/on-site training and/or remote/online training. Customer’s staff will also have access to all on-line training materials made available by CACFP Solutions to its customers including live and pre-recorded webinars or video series.
The Customer agrees that the SaaS Services under this Agreement must be fully utilized by the Customer and their authorized users as a pre-requisite for CACFP Solutions to perform any Professional Services under this Agreement.
Customer may purchase Services by entering into an Order or Contract with CACFP Solutions.
Customer will pay all fees and charges in connection with the Services as set forth in the applicable order and/or Exhibit C (Pricing Schedule).
Fees payable by Customer to CACFP Solutions for the Services are payable on a monthly basis, beginning with the 1st month of service and per the (“Pricing Schedule”) in Exhibit C. All fees payable by Customer per the Order will be paid without any deduction, adjustment or set-off whatsoever, unless otherwise agreed to in writing by both parties.
Fees for use of the services do not include any taxes, and Customer agrees to pay any applicable sales, use, value-added and other taxes, due as a result of any amounts paid to CACFP Solutions under this Agreement.
Unless otherwise specified in an Order, Customer will reimburse CACFP Solutions for all preapproved, out-of-pocket expenses incurred in performing the Other Services. CACFP Solutions will include reasonably detailed documentation of all such expenses with each related invoice, where applicable.
Unless otherwise agreed to in writing, Customer will be assessed a late fee as specified in Exhibit C (Pricing Schedule) if any invoice is not paid in full within 10 days of the invoice due date.
(a) Customer’s failure to pay any invoice in full within 15 days of the invoice due date will result in a material default under this Agreement.
(b) In this event, CACFP Solutions will immediately cease providing any further Services and any access to the Platform by any of the Customer’s authorized users will be suspended.
Customer will notify CACFP Solutions in writing regarding any invoice disputes within 7 days of delivery of that invoice. The Customer agrees to pay any undisputed portion of the invoice in accordance with the payment terms in Exhibit C (Pricing Schedule).
All prices in this Agreement are in United States (US) dollars.
Subject to the limited licenses granted herein, all right, title and interest, including all Intellectual Property Rights, in and to the Platforms and CACFP Solutions is and will at all times be fully vested in CACFP Solutions or its licensors, as the case may be.
Customer shall not, and shall not permit anyone to (a) Copy, republish, or make available the Services to any person other than Authorized Users, (b) use or access the Services to provide service bureau, time-sharing or other computer hosting services to third parties, (c) modify or create derivative works based upon the Services or documentation, (d) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Service platforms or documentation, (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code any prototypes, software, or other tangible objects used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, (f) access the Services or use the Documentation in order to build a similar or competitive product or service.
Content accessed or available through the Platforms may be owned by thirdparties other than CACFP Solutions or Customer (collectively, “Third Party Content”) and may be protected by applicable Intellectual Property Rights.
From time to time during the term of this Agreement, Customer and accountholders may provide CACFP Solutions with comments, suggestions, ideas and impressions of the Platform (“Feedback”). Customer acknowledges and agrees that the provider will be granting to CACFP Solutions a royalty-free, worldwide, transferable, sub-licensable, non-exclusive, irrevocable and perpetual license to use, modify, adapt, improve or incorporate such Feedback into the Platforms. Customer acknowledges and agrees that the right to use the Platforms is good and sufficient consideration for any contributions, through the Feedback or otherwise, to the design, improvement, or functionality of the Platforms and the transfer to CACFP Solutions.
CACFP Solutions does not claim ownership of, and assumes no liability or responsibility for any Customer Data, including Customer Content, except for where CACFP Solutions has entered data into the Platforms, or relied on software functionality in Platforms, to provide the Professional Services described in Exhibit B.
Parties agree that Customer Content may contain sensitive information and that
(a) CACFP Solutions will
(i) comply with all Applicable Laws relating to personal information privacy, and
(ii) use standard industry practices, technologies and security to protect the integrity, safety and security of Customer Data in both physical and electronic form, and
(iii) will not use Customer Data for any purpose other than to provide the functionality of the Platforms to Customer and its users, to ensure adherence to or enforce the terms of this Agreement, or (only in aggregate form) for site metrics, and
(b) Customer acknowledges and agrees that its use of the Platforms will utilize, in whole or in part, the public Internet and third party networks to transmit communications, which transmissions may be intercepted by other parties or stored, cached, routed, transmitted or received in jurisdictions outside of the jurisdiction of Customer.
This Agreement shall remain in effect until its termination as provided below (the “Term”). The term of the Services shall begin on the applicable “Services Start Date” and continue through the “Service End Date,” as specified in the Contract or Order Form.
This Agreement will be effective for a period of twelve (12) months following the start date as outlined in the Contract or Order Form. There will be an option for both parties to renew yearly. Renegotiations of the price charged to the Customer will be allowed each renewal year to the extent that the new price is commercially reasonable for the services. Price changes must be agreed to in advance by all parties no later than 30 days prior to the current term’s expiration date.
The occurrence of any of the following shall constitute a material default under this Contract:
a) The Customer’s failure to make a required payment as specified in this Agreement.
b) The insolvency or bankruptcy of either party.
c) CACFP Solutions’ failure to make available or deliver the Services in the time and manner agreed to.
d) The failure of either party to comply with any material terms, covenants, or warranties included in the Agreement.
e) The failure of the Customer to remain a valid Contracting Entity in good standing with the Texas Dept. of Agriculture, Food & Nutrition Division.
f) The Customer’s failure to fulfill any of their responsibilities as specified in this Agreement, Exhibit A, Exhibit B, or any other terms relevant to this Agreement.
Either party may terminate this Agreement if the other party fails to cure any material breach within fifteen (15) days after receipt of written notice of such breach.
CACFP Solutions reserves the right to immediately suspend delivery of the Services if CACFP Solutions reasonably concludes that Customer, or an authorized user of the Customer, is causing immediate and ongoing harm to CACFP Solutions or the security, integrity, or availability of the Services. This includes actions or inactions by the Customer that represent reasonably consistent disregard for CACFP policies and/or guidelines which could place them approved Contracting Entity (CE) in a serious deficiency status
(a) CACFP Solutions will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any suspension.
(b) In the extraordinary case that CACFP Solutions must suspend delivery of the Services, CACFP Solutions will promptly notify Customer of the suspension and the parties will diligently attempt to resolve the issue.
(c) CACFP Solutions will not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to any suspension of the Services in accordance with this section. Nothing in this section will limit CACFP Solutions’ other rights under this section.
If either party terminates this Agreement early without legal cause, or without mutual agreement by all parties, the contract will be deemed an early termination.
(a) An early termination by CACFP Solutions may only occur in the event of the Customer’s default on the Agreement.
(b) If the Agreement is terminated early by the Customer, the Customer will immediately be subject to early termination fees as described in Exhibit C (Pricing Schedule). CACFP Solutions is under no obligation to continue services through the proposed termination date if all outstanding invoices (including early termination fees) have been paid in full.
Except in the case of CACFP Solutions terminating this Agreement for cause, CACFP Solutions is not required to perpetually store, or to provide access to, Customer data created during the service period.
(a) Upon termination, the Customer will be given a fifteen (15) day grace period to extract or export data from any area of the Platform where access was provided by the CACFP Solutions to the Customer.
(b) Limited access will be provided to one authorized user, as chosen by the Customer, during this grace period. CACFP Solutions is under no obligation to provide this grace period of all outstanding invoices have not been paid in full.
(c) Where system functionality may limit the Customer’s ability to extract data in a commercially acceptable format, the Customer must submit a written request to CACFP Solutions within 15 days of their Service End Date. CACFP Solutions will produce the export files and provide to the Customer within 30 days of the Service End Date at no cost to the Customer.
(d) After such 15 day period, CACFP Solutions will have no obligation to maintain or provide any Customer Data and shall, unless legally prohibited, be entitled to delete all Customer data; provided, however, that CACFP Solutions will not be required to remove copies of the Customer Data from its backups until such time as the backup copies are scheduled to be deleted in the normal course of business; provided further that in all cases, CACFP Solutions will continue to protect the Customer Data in according with this Agreement.
(e) CACFP Solutions will only be responsible for fulfilling such requests for data when the Customer is not able to perform these actions independently.
(f) During the Term, Customer may extract Customer Data from the Platform using CACFP Solutions’ standard web services.
Upon expiration or termination of this Agreement, all licenses to the Platform and access to the Services granted to Customer under this Agreement and all Contracts or Orders placed relating to this Agreement will immediately terminate and Customer will cease using the Service, except as permitted in this Agreement.
(a) Expiration or termination by Customer for any reason other than termination by Customer for a material breach by CACFP Solutions will not relieve Customer of the obligation to pay all amounts due under all Orders.
(b) Any Sections of this Agreement covering Restrictions, Intellectual Property, Contracts, Orders, Billing, Payments, Disclaimers, Limitations of Liability, Indemnification, Confidentiality, and General Provisions will survive the expiration or termination of this Agreement for any reason.
Neither party will, without the prior written approval of the other party, disclose or use for any purpose other than exercise of its rights or performance of its obligations under this Agreement any information, documents, know-how, trade secrets, workflows or processes, technology, policies, procedures, or practices of the other party, including the terms of this Agreement and such other information that is not in the public domain including, in respect of the Customer Data and, in respect of the Platform (collectively, “Confidential Information”) that may come to its knowledge or possession by reason of exchange of information under this Agreement or entering into this Agreement.
Each party will protect the other’s Confidential Information using the same standard of care that it would use to protect its own similar information, but in any case no less than a reasonable standard of care for information of similar sensitivity.
All rights, title, and interest (including all Intellectual Property Rights) in and to each party’s Confidential Information will be and remain vested in such party.
Each party will not disclose Confidential Information of the other party to any person except to the first party’s employees, agents, and sub-contractors on a strictly “need-to know” basis, and provided that such persons have are subject to confidentiality obligations equivalent to the obligations imposed hereunder. Notwithstanding such disclosures, each party will be fully responsible for any breaches of confidentiality caused by such persons to whom the Confidential Information is disclosed as if such breach were committed by such party.
Neither party will have an obligation with respect to Confidential Information where such party can establish, through documentary evidence, that such information
(a) was previously known to it free of any obligation to keep it confidential,
(b) is or becomes publicly available other than by unauthorized disclosure,
(c) is legally disclosed by third parties without restrictions of confidentiality,
(d) is required to be produced by law, or
(e) has been independently developed by without reference to the other party’s Confidential Information.
Notwithstanding anything else in this Agreement, if a party is required to disclose any Confidential Information to a government body or court of law or as otherwise required by law, it may do so provided that it gives the other party sufficient advance notice as reasonable in the circumstances subject to applicable law to enable the owner of such Confidential Information the opportunity to contest the disclosure or obtain a protective order and assists the owner of such Confidential Information in contesting or protecting same.
THE PARTIES AGREE TO THE FOLLOWING CACFP DISCLOSURES.
(A) CUSTOMER AGREES THAT (I) ALL SERVICES TO BE PERFORMED BY CACFP SOLUTIONS ARE REQUIRED BY THE CUSTOMER IN SUPPORT OF THE ADMINISTRATION AND/OR MANAGEMENT OF THE CACFP, (II) THE SERVICES HAVE BEEN PROPERLY PROCURED BY THE CUSTOMER IF ANY FEDERAL FUNDS ARE BEING USED TO PAY FOR SERVICES, (III) THAT NO FEDERAL FUNDS ARE USED TO PAY FOR THE SERVICES IF THE SERVICES HAVE NOT BEEN PROPERLY PROCURED, AND (IV) CUSTOMER ACCEPTS COMPLETE AND FINAL ADMINISTRATIVE AND FINANCIAL RESPONSIBILITY FOR THE OPERATION OF THE CACFP.
(B) CACFP SOLUTIONS AGREES THAT ITS ORGANIZATION, NOR ANY OF ITS EMPLOYEES OR CONTRACTORS, ARE INCLUDED ON THE NATIONAL DISQUALIFIED LIST (NDL) OR THE TEXAS EXCLUDED SFSP LIST (TEXSL). ALL PARTIES AGREE TO COOPERATE WITH PROGRAM GUIDELINES.
(C) THE CLIENT RETAINS FULL AND FINAL RESPONSIBILITY FOR PREPARATION OF ALL PROGRAM RECORDS.
CACFP Solutions represents and warrants to Customer that:
(a) the Platform for SaaS Services will perform materially in accordance with this Agreement under normal use and circumstances.
(b) the Professional Services will be performed in a diligent and workmanlike manner consistent with standards generally observed in the Professional Services industry, and the Work Product will materially conform to the Scope of Services in this Agreement upon acceptance.
(c) CACFP Solutions will use all commercially reasonable efforts to remedy any material nonconformance in an expeditious manner.
(d) The functionality of the Platform will not be materially decreased during the Term, subject to the other provisions of this Agreement.
(e) For clarity, CACFP Solutions will not be responsible for, and the warranties provided by CACFP Solutions do not apply to, situations where improper or inadequate installation or maintenance of software or hardware that Customer uses to access or utilize, or otherwise in connection with, the Platform or Customer Data, or failure to properly configure the Platform for use in connection with such hardware or software is the cause of a failure or malfunction.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement and to fully abide by the terms and conditions hereof.
THE PLATFORM AND THE WORK PRODUCT ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS AND CACFP SOLUTIONS DOES NOT GUARANTEE THAT THE PLATFORM WILL FUNCTION ERROR-FREE OR UNINTERRUPTED.
(a) CUSTOMER ACKNOWLEDGES THAT CACFP SOLUTIONS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES PROVIDED UNDER THIS AGREEMENT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
(b) CACFP SOLUTIONS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THERE ARE NO REPRESENTATIONS, CONDITIONS OR WARRANTIES OTHER THAN THOSE EXPRESSLY PROVIDED IN THIS AGREEMENT.
(c) THE CONDITIONS, REPRESENTATIONS AND WARRANTIES EXPRESSLY SET OUT HEREIN ARE IN LIEU OF, AND CACFP SOLUTIONS EXPRESSLY DISCLAIMS, ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED CONDITIONS, WARRANTIES OR REPRESENTATIONS IN RESPECT OF QUALITY, CONDUCT, PERFORMANCE, RELIABILITY, AVAILABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY USAGE OF TRADE, BY COURSE OF DEALING, BY COURSE OF PERFORMANCE, AT LAW, IN EQUITY, BY STATUTE OR OTHERWISE HOWSOEVER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
NEITHER PARTY (NOR ANY LICENSOR OR OTHER SUPPLIER OF CACFP SOLUTIONS) SHALL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA, OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 6 MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE PARTIES’ OBLIGATIONS (OR ANY BREACH THEREOF) UNDER THIS AGREEMENT REGARDING ANY RESTRICTIONS, INDEMNIFICATION, OR LIABILITY LIMITATIONS OF LIABILITY.
To the fullest extent permitted by law, CACFP Solutions will indemnify and hold harmless Customer, and its officers, employees and agents from and against any and all Claims brought or made against, or incurred by, the Indemnified Persons, or any one of them, arising out of a claim by a third party that the Platform or the Work Product infringes the Intellectual Property Rights of a third party enforceable in the United States, or arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance caused, in whole or in part, by the willful misconduct or negligent acts or omissions of CACFP Solutions or its employees, CACFP Solutions, or agents.
CACFP Solutions will not be required to defend or indemnify any Indemnified Person if, and to the extent that, the Claim would not have arisen but for
(a) any Indemnified Person’s combination of the Platform or Work products with software, services or products not supplied by CACFP Solutions,
(b) any breach by an Indemnified Person of any provision of this Agreement, or
(c) any refusal by the Indemnified Person to use a noninfringing version of the Platform or the Work Product offered by CACFP Solutions.
Customer will indemnify and hold harmless CACFP Solutions and its officers, employees and agents from and against any and all Claims brought or made against, or incurred by, the Indemnified Persons, or any one of them, arising out of a claim by a third party that Customer Data, or Customer use of Customer Data
(a) infringes the Intellectual Property Rights of a third party, or
(b) is defamatory, obscene or otherwise breaches any Applicable Law.
Customer acknowledges that the Services are provided on a nonexclusive basis. Nothing shall be deemed to prevent or restrict CACFP Solutions’ ability to provide these
Services to other parties.
The Customer agrees to the following:
(a) CACFP Solutions’ performance of this Agreement may require them to process, transmit and/or store Customer personal data or the personal data of Customer employees and Affiliates.
(b) By submitting personal data to CACFP Solutions, Customer agrees that CACFP Solutions is given authorization to conduct such activities to the extent necessary for them to perform the obligations under this Agreement.
(c) Customer will obtain all necessary consents and make all necessary disclosures before including Personal Data in the Platform and using the Services.
(d) Remain solely responsible for any Personal Data that may be contained in the Platform, including any information that any Authorized User of CACFP Solutions shares with third parties on Customer’s behalf.
CACFP Solutions agrees to the following:
(b) CACFP Solutions reserves the right to provide the Services from Host locations. CACFP Solutions will only process Customer Personal Data in delivering the Services in this Agreement.
Neither party may assign this Agreement or any right under this Agreement, without the consent of the other party, which consent shall not be unreasonably withheld or delayed; provided however, that either party may assign this Agreement to an acquirer of all or substantially all of the business of such party to which this Agreement relates, whether by merger, asset sale or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Either party may employ CACFP Solutions in performing its duties under this Agreement, provided, however, that such party shall not be relieved of any obligation under this Agreement.
Except as otherwise permitted in this Agreement, official notices under this Agreement shall be in writing and shall be deemed to have been given
(a) five (5) business days after mailing if sent by delivery service with a tracking number
(b) when transmitted if sent by email and receipt is confirmed,
(c) when sent electronically via an electronic document signature application with document tracking. All notices shall be sent to the other party at the address set forth on the cover page of this Agreement or to email address(es) of CACFP Solutions’ staff given to Customer for the purpose of communicating electronically.
Each party will be excused from performance for any period during which, and to the extent that, such party or any CACFP Solutions is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
In addition to all other rights a party may have available by law, if a party defaults by failing to substantially perform any term of this Agreement, the other party may terminate the Contract by providing written notice to the defaulting party.
(a) This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s).
(b) Unless waived in writing by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.
This Agreement (including all Schedules and exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement.
(a) The Agreement may be modified through a written amendment signed by both parties.
Sections 6, 8, 9, 10, and 11 shall survive the expiration or termination of this Agreement for any reason.
Each party may use the other party’s name in its news releases, marketing, and promotional materials and the like provided that such will comply with any standards set by the other party from time to time. Each party will cease to use the other party’s name upon any expiration or termination of this Agreement.
This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners, customers, or upon any other person or entity.
The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.
CACFP Solutions may anonymously compile statistical information related to the performance of the Services for purposes of improving the Services, provided that such information does not identify Customer’s data or include Customer’s name.
This Agreement shall be governed by the laws of the State of Texas, excluding its conflict of law principles.
CACFP Solutions shall comply with all applicable local, state, national and foreign laws in connection with its delivery of the Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.
Each party agrees to maintain insurance in commercially reasonable amounts calculated to protect itself and the other party to this Agreement from any and all claims of any kind or nature for damage to property or personal injury, including death, made by anyone, that may arise from activities performed or facilitated by this Agreement, whether these activities are performed by that party, its employees, agents, or anyone directly or indirectly engaged or employed by that party or its agents.
Customer’s satisfaction is an important objective to CACFP Solutions in performing its obligations under this Agreement. Except with respect to intellectual property rights, if a dispute arises between the parties relating to the interpretation or performance of this Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days of written request by either party, attended by individuals with decision-making authority, to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If this process is followed and
the parties have not succeeded in resolving the dispute, both parties agree to settle the dispute by arbitration, and judgment on the award rendered by the Arbitrator(s) shall be binding, conclusive, and nonappealable and may be entered in any court having jurisdiction.