Business ONETouch Business Success Package Monthly Service
Everything you need – Sales, Marketing, Commerce – in a Solution Unified by a dashboard that shows you every detail of your business in real time!
Here's what's included:
|Dashboard||8 Gauges: Sales, Email, Calls Contacts, Web, Facebook, Twitter, LinkedIn|
|ONETouch Publishing||Web, Facebook, Twitter, LinkedIn, Email|
|Commerce||Shopping Cart, Custom Landing Pages, Order Forms, Credit Card Processing|
|Customer Management||Autotagging, no limit on contacts|
|Unified Marketing||Phone, email, social media, web; all with cross-channel tracking|
|Unified Communications||Reach customers on one channel; follow up on another|
|Phone numbers||4 marketing numbers included|
|Email addresses||4 included|
|Domain hosting||1 included|
|Web site hosting||1 included|
|Product setup||Up to 100|
|Maintenance & Upgrades||Included|
|First Name *|
|Last Name *|
|Address Line 2|
|State *||ZIP Code *|
|Payment Type *||Credit Card Number *||Expiration Date *||Security Code *|
|Requires Prior Approval.
Selecting this option may delay delivery of products.
BUSINESS ONETOUCH SOFTWARE AS A SERVICE AGREEMENT
("Business OneTouch"). By executing this agreement (the "Agreement"), Client has ordered software as a service, related business products, and related business services from Business OneTouch LLC set forth in the Request for Service which is attached hereto and incorporated herein for all purposes.
The term "Client’s Data" refers to the data and content provided by Client that resides in Client’s services environment and may be shared on SAAS.
The term “SAAS” mean software as a service. The term includes, but is not limited to, software, system configuration, system administration, system management, system monitoring, system support, system training and related services that may be requested in a Request for Service to be provided by Business OneTouch or by a Reseller of Business OneTouch Products.
The term “Reseller” means an company that has executed a reseller agreement with Business OneTouch that authorizes such company to resell Business OneTouch Products
The term "Business OneTouch Products" refers to SAAS and in addition, includes all other hardware and software products licensed, distributed, leased or sold by or through Business OneTouch to which Business OneTouch grants Client’ Users access as part of the SAAS.
The term "Users" shall mean those individuals authorized by Client or on behalf of Client to use the services, as defined in the Request for Services.
The term "Request for Service" is an order to purchase in a form satisfactory to Business OneTouch for Business OneTouch Products. Requests for Service must be in writing, whether physical or electronic. A Request for Service is and shall always be subject to the terms of this Agreement.
This Agreement is a open ended contract. This Agreement governs not only for the initial Request for Service specified on any Request for Service attached to this Agreement, but also for any and all subsequent Requests for Service to be performed by Business OneTouch. To the extent a Request for Service is severable from another Request for Service, the Request for Service is a separate contract governed by this Agreement. This Agreement is termed a master contract because the terms of this Agreement applies to all Requests for Service. Client is responsible for the Requests for Service made by Client’s Users and employees unless Business OneTouch is notified before its performance starts that the User or employee does not have authority to make such Request for Service. Business OneTouch may indicate its acceptance of a Request for Service by written notice of acceptance prior to performance or by its beginning to perform the Request for Service. A Request for Service can limit the duration or limit the scope of any obligations Business OneTouch may have under this Agreement, but a Request for Service cannot extend the duration or expand any obligation of Business OneTouch. If there is a conflict between this Agreement and the Reseller Agreement as it relates to a customer of the Client, then the Reseller Agreement shall control the rights and duties between Business OneTouch, Client and Client’s customer as it relates to Business OneTouch Products used by the Client’s customer.
In addition to using Business OneTouch Products in its own internal operation, Client may also apply to become a Reseller. Only a Client demonstrating high business standards and effective revenue generation may apply. If Client desires to become a Reseller, Client shall execute the Business OneTouch Reseller Agreement. Under the term of the Reseller Agreement, Client shall receive a commission at a rate or for a period of time as set forth in the Reseller Agreement. Business OneTouch in its sole discretion may decline to approve any applicant to be a Reseller.
Client is hereby granted the nonexclusive, nonâ€‘assignable, limited right to use the SAAS solely for the purpose of Client’s internal business operations and subject to the terms of this Agreement. Client may allow Client’s Users to use the SAAS for the same purpose and subject to the terms of this Agreement. Client is responsible for the compliance of each User with the terms of this Agreement. The terms submitted in any Request for Service submitted by Client after the initial Request for Service shall not modify the terms of this Agreement, unless the modification is expressly agreed upon in writing by an authorized representative of Business OneTouch. Upon Business OneTouch's acceptance of a Request For Service from Client, Business OneTouch will provide Business OneTouch Products. Client’s rights granted herein shall begin once Business OneTouch notifies Client that the Products are available for use by Client. Client acknowledges that the rights granted herein will terminate in the event of a default by Client a specified below. Upon termination of this Agreement or one or more of the services hereunder, Client’s right to use the Business OneTouch Products and access to any data using Business OneTouch Products, shall terminate.
Client retains all ownership and intellectual property rights in and to Client’s Data. Business OneTouch and any Business OneTouch licensors retain all ownership and intellectual property rights to the SAAS and Business One Touch Products. Business One Touch retains all ownership and intellectual property rights to anything developed and delivered to Client under this Agreement, including without limit, new products, new services, new applications of existing Business OneTouch Products, any integrations or configurations involving Client’s system or third party software and products. Any and all such developed services and products shall immediately become part of the Business OneTouch's Products. The SAAS is based upon an internet cloud based service. Business OneTouch has no obligation to deliver a physical copy of the Business OneTouch programs to Client as part of the SAAS.
Notwithstanding the language of the paragraph entitled Rights Granted, Client’s use is subject to the following restrictions:
Client shall not remove or modify any program markings, labels or any notice of Business OneTouch's Products or that of any third party;
Client shall not make the Business OneTouch's Products available in any manner to any third party for use in the third party's business operations unless expressly allowed in writing by Business OneTouch;
Client shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Business OneTouch's Products, or use the SAAS to build or support, or assist a third party in building or supporting, products or services similar to Business OneTouch; and
Client shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, timeshare or service bureau use, or otherwise commercially exploit Business OneTouch Products to any third party.
Client shall not cannot be shared or used by anyone other than Client. If ownership of Client changes by 50% or more, then Business OneTouch shall have the right to immediately terminate this Agreement and Client shall no longer have any right to access or use the license unless and until a new service agreement is executed between Business OneTouch and the new majority owner of Client;
Client shall not no part of the SAAS may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
Client shall not Client agrees to make every reasonable effort to prevent unauthorized third parties from accessing the Business OneTouch Products.
Third party technology that may be desirable or necessary for use for Business One Touch to perform the Request for Service. Business One Touch shall have the right to use third party technology to perform the Request for Service if Business One Touch, in its sole discretion, deems it advisable to perform the Request for Service. Client’s right to use such third party technology is primarily governed by the terms of the third party technology licensing agreement, and secondarily governed by this Agreement The use of the third party technology shall not be inconsistent with this Agreement in a manner that is to the detriment of Business OneTouch.
Business OneTouch warrants that the services will perform in all material respects in accordance with their intended purpose. If the SAAS provided to Client for any given month did not performed as warranted, Client must provide written notice to Business OneTouch within five business days after the problem is noticed by Client and then Business OneTouch shall have five business days to cure the problem.
BUSINESS ONETOUCH DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERRORâ€‘FREE OR UNINTERRUPTED, OR THAT BUSINESS ONETOUCH WILL CORRECT ALL SERVICES ERRORS. CLIENT ACKNOWLEDGE THAT BUSINESS ONETOUCH DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT ANY SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BUSINESS ONETOUCH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
FOR ANY BREACH OF THE ABOVE WARRANTIES, BUSINESS ONETOUCH WILL CREDIT THE SAAS A PRO RATA MONTHLY FEE FOR THE SAAS SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO BUSINESS ONETOUCH, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT CLIENT’S EXCLUSIVE REMEDY, AND BUSINESS ONETOUCH'S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.
THESE WARRANTIES ARE EXCLUSIVE. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES. THERE ARE NO WARRANTIES FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
If offered by Business OneTouch, Client may request in a Request for Service that certain services be used by Client on a trial basis for nonproduction purposes subject to the terms and conditions of this Agreement. Services acquired for trial purposes are provided "as is". Business OneTouch does not offer any warranties for trial services.
If a third party makes a claim against either Client or Business OneTouch ("Recipient" which may refer to Client or Business OneTouch depending upon which Party received the claim), claiming that any information, design, specification, instruction, software, service, data, or material (collectively "Material") furnished by either Client or Business OneTouch ("Provider" which may refer to Client or Business OneTouch depending on which Party provided the Material), infringes either Party’s intellectual property rights, then the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses if awarded by the court to the third party finding infringement has occurred or the settlement agreed to by the Provider, if the Recipient does the following:
If the Provider believes or it is determined that any of the Material may have violated a third party's intellectual property rights, the Provider may choose to either modify the Material to be nonâ€‘infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid for such Material. If such return materially affects Business OneTouch's ability to meet its obligations under the relevant Request For Services, then Business OneTouch may, at its option and upon 30 days prior written notice, terminate the Request For Services. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of authorized use or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (I) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to Client within or from the service (e.g., a third party Web page accessed via a hyperlink). Business OneTouch will not indemnify Client to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Business OneTouch. Business OneTouch will not indemnify Client for infringement caused by Client’s actions against any third party if the services as delivered to Client and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights. Business OneTouch will not indemnify Client for any infringement claim that is based on: (1) a patent that Client were made aware of prior to the effective date of this Agreement (pursuant to a claim, demand, or notice); or (2) Client’s actions prior to the effective date of this Agreement. This section provides the parties' exclusive remedy for any infringement claims or damages. Nothing herein shall prevent either Party from filing a counterclaim against the third party for any reason including but not limited to the filing of a groundless, harassing or bad faith lawsuit.
Support services provided by Business OneTouch must be referenced in the Request for Service. If support services are not referenced in the Request for Service, then support services are not provided.
Client represents, warrants, covenants and agrees as follows:
Client shall not enter into any subsequent agreement that would materially impair or conflict with Client's obligations hereunder. Client shall take such further actions as Business OneTouch may reasonably request from time to time to perfect or continue the perfection of Business OneTouch's interest in Business OneTouch Products. Performance of this Agreement does not conflict with or result in a breach of any material agreement to which Client is bound. During the term of this Agreement, Client will not transfer or otherwise encumber its assets to the extent that Client cannot perform this Agreement. Client shall promptly advise Business OneTouch of any change in the composition of Client equal to or greater that 50% of the ownership of Client’s company. All information supplied by Client to Business OneTouch is accurate and complete in all material respects. The executive officer of Client signing this Agreement has authority of Client to execute same. Client will promptly notify Business OneTouch in writing of any event that materially adversely affects Client’s ability to perform its obligations under the terms of this Agreement, including, but not limited to, insolvency, bankruptcy, appointment of a receiver, and/or the service of any legal process against Client.
The following events shall be Events of Default:.
Any representation or warranty of the Company in this Agreement shall prove to be false;
Services provided under this Agreement shall be provided for the period of one year unless earlier terminated by an Event of Default which has not been cured within the time allowed by this Agreement. This Agreement shall automatically renew for additional one year period unless terminated by either Party upon 60 prior written notice to the other Party. At the end of this Agreement, all access and use to the Business OneTouch Products, including the SAAS, shall end.
If an event of Default occurs, then Business OneTouch may, at its sole option, terminate this Agreement. All money due to Business OneTouch from Client shall remain due and owing by Client to Business OneTouch. Client must pay within 30 days all amounts which have accrued prior to such termination, as Well as all sums remaining unpaid for the services requested under any pending Request for Service, plus any related taxes and other expenses.
If an event of Default occurs, Business OneTouch may immediately suspend Client’s password, account, and access to or use of the services. Any suspension by Business OneTouch of the services under this paragraph shall not excuse Client from Client’s obligation to make payment(s) under this Agreement.
At Client’s request, and for a period of up to 60 days after the termination of the applicable Request for Services, Business OneTouch may permit Client to access the services solely to the extent necessary for Client to retrieve a file of Client’s Data then in the services environment. Client agrees and acknowledge that Business OneTouch has no obligation to retain Client’s Data and that Client’s Data may be irretrievably deleted after 60 days following the termination of the Request for Services.
Provisions that survive termination or expiration of this Agreement include but are not limited to those relating to limitation of liability, infringement, indemnity, payment, and others which by their nature are intended to survive. In the Event of Default, Client will pay Business OneTouch’s attorney’s fees to enforce this Agreement. Any unpaid balance of account owed by Client to Business Onetouch shall bear an interest rate of 18% per annum from the date payment was due by Client until paid.
Client agrees to pay for all services requested in the applicable Request for Services. All fees due under this Agreement are nonâ€‘calculable and the sums paid nonrefundable. Client agrees to pay any sales, valueâ€‘added or other similar taxes imposed by applicable law that Business OneTouch must pay based on the services Client ordered, except for taxes based on Business OneTouch's income. Client will reimburse Business OneTouch for reasonable expenses related to providing any onâ€‘site portion of the services. Fees for services listed in an Request for Service are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable in advance or as incurred.
By virtue of this Agreement, the Parties may have access to information that is confidential to one another ("confidential information"). The Parties agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms and pricing under this Agreement, Client’s Data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.
A party's confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other Party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
Each Party agrees to hold the other Party’s confidential information in confidence for a period of three years from the date of disclosure. Also, each Party agrees to disclose confidential information only to those employees or agents need to know the information and who are advised to protect it against unauthorized disclosure. Business OneTouch will protect the confidentiality of Client’s Data residing in the services environment in accordance with the Business OneTouch then current security practices. Nothing shall prevent either Party from disclosing the terms of this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the confidential information to a governmental entity as required by law.
Client agrees that this Agreement (including the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete Agreement for the services ordered by you, and that this Agreement supersedes all prior or contemporaneous Agreements or representations, written or oral, regarding such services. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement. It is expressly agreed that the terms of this Agreement, including any Business OneTouch Request for Services, shall supersede the terms in any purchase order or other nonâ€‘Business OneTouch document and no terms included in any such purchase order or other nonâ€‘Business OneTouch document shall apply to the services ordered. The Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the Business OneTouch Store by authorized representatives of Client and of Business OneTouch.
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. BUSINESS ONETOUCH'S MAXIMUM LIABILITY FOR ANY DADAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR CLIENT’S ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWIS, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO BUSINESS ONETOUCH FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN CLIENT’S FAVOR AGAINST BUSINESS ONETOUCH SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY CLIENT UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the services. Client agrees that such export control laws govern Client’s use of the services (including technical data) and any services deliverables provided under this Agreement, and Client agrees to comply with all such export laws and regulations (including "deemed export" and "deemed reâ€‘export" regulations). Client agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
To Business OneTouch at:
Business OneTouch LLC
2351 W. Northwest Highway
Dallas, TX 75220
With copy to:
Stephen Niermann, Attorney
Niermann and Olivo
1622 E. Beltline Rd., Suite 100
Carrollton, TX 75006
Business OneTouch may give notice applicable to Business OneTouch's software as a service Client base by means of a general notice on the Business OneTouch portal for the services, and notices specific to Client by electronic mail to Client’s eâ€‘mail address on record in Business OneTouch's account information or by written communication sent by first class mail or preâ€‘paid post to Client’s address on record in Business OneTouch's account information.
Neither Party shall be responsible for failure or delay of performance under the terms of this Agreement, if performance caused by an act of war, hostile acts, terrorism, or sabotage; act of God; electrical interruption, denial of service attack, internet service interruption, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. The Parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either Party may cancel unperformed portion of the Request for Service upon written notice of election to terminate to the other Party. This section does not excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures or Client’s obligation to pay for the services rendered.
Business OneTouch reserves the right to provide SAAS from multiple locations of its choosing. Client agrees to comply with all laws, rules and regulations related to the performance of this Agreement including but not limited to, giving any notices and obtaining any consents related to Client’s use of SAAS and Business OneTouch's provision of SAAS, including those related to the collecting, using, processing, transferring, hosting and disclosing of personal information contained in Client’s Data. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, security, appropriateness and ownership of all of Client’s Data.
Client agrees not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk eâ€‘mail, "junk mail", "spam" or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, rules and regulations. In addition to any other remedies afforded to Business OneTouch under this Agreement, Business OneTouch reserves the right to remove or disable access to any material that violates the foregoing restrictions. Business OneTouch shall have no liability to Client in the event that Business OneTouch takes such action. Client agrees to defend and indemnify Business OneTouch against any claim arising out of a violation of Client’s obligations under this Agreement.
Business OneTouch may use tools, scripts, software, remote access to the extent granted by Client, and utilities (collectively, the "Tools") to monitor and administer the SAAS and to help perform any Request for Service. The Tools will not collect, report or store any of Client’s Data residing in the Client’s production environment, except as necessary to perform or troubleshoot Request for Service or other problems with SAAS. Data collected by the Tools (excluding Client’s Data) may also be used to assist in managing Business OneTouch's Products and for license management as it relates to Client’s use. In the unlikely event, any Client Data is accessed, the content of such Client Data will be immediately deleted from Business OneTouch from its computer and from any other place.
If Business OneTouch provides Client with access to or use of any Tools in connection with the services, Client’s right to use such Tools is governed by this Agreement. Client shall have a nonâ€‘transferable, nonâ€‘exclusive, limited right to use such Tools solely to facilitate Client’s administration and monitoring of Client’s service environment, subject to the terms of this Agreement. Any such Tools are provided by Business OneTouch on an "as is" basis and Business OneTouch does not provide technical support or offer any warranties for such Tools. Client’s right to use such Tools will terminate upon the earlier of (a) Business OneTouch's notice of termination of the access and use of the Tools, (b) the end of this Agreement or (c) the date that the license to use such Tools terminates under any license terms specified for such Tools. Client agrees that except as set forth in this paragraph, (a) Client may not access or use the Tools, and (b) Client will not use or restore the Tools from any tape backup at any time following termination of this Agreement.
Business OneTouch may compile statistical information related to the performance of the SAAS, and may make such information publicly available, provided that such information does not incorporate Client’s Data and/or identify Client’s confidential information. Business OneTouch retains all intellectual property rights in such information.
The Business OneTouch Products may enable Client to add links to websites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Business OneTouch is not responsible for any third party websites or third party content provided on or through the SAAS and Client bear all risks associated with the access and use of such websites and third party content, products and services.
Client agrees (i) that Business OneTouch may identify Client as a recipient of SAAS and use Client’s logo in sales presentations, marketing materials and press releases, and (ii) to develop, upon request, a brief Client profile for use by Business OneTouch on Business OneTouch.com for promotional purposes.