Starting at $650 USD per company per month - Supports all editions of Salesforce Marketing Cloud. - Ongoing support and advanced functionality require a monthly subscription to Basic, Standard, or Enterprise package.
Leverage the pre-built cartridge from Salesforce Commerce Cloud (formerly Demandware) to connect to the Salesforce Marketing Cloud (formerly ExactTarget). Engage your customers, increase sales, and reduce systems complexity.
This agreement (hereinafter “Agreement”) is made by and between Digital Fusion, LLC, a Colorado limited liability company having a place of business in Lakewood, Colorado, and its Affiliates (“Company”), and Client as set forth on the Order Form. This Agreement is effective as of May 1, 2017 the “Effective Date.” Company and Client are referred to each as a “Party” and collectively as the “Parties”.
1. General. This Agreement establishes the general terms and conditions governing the relationship between Company and Client. Company will provide digital marketing services described on the Order Form and associated services (the “Services”) as may be agreed upon in one or more written Statements of Work (“SOW”) attached hereto. To the extent that the terms and conditions of any Order Form or SOW are inconsistent with the terms and conditions of this Agreement, this Agreement will control unless otherwise expressly stated in such Order Form or SOW.
2. License to the Platform. Company grants to Client for the duration of this Agreement, a worldwide, revocable, non-transferable, non-sublicensable, non-exclusive right and license to access a proprietary on-line suite of software-as-a-service applications (the “Platform”). This includes corresponding applications, application programming interface (API), (collectively, the “Licensed Applications”), to administer social media, website, text message/SMS/mobile, email programs and other digital marketing initiatives for Client and Client’s customers. Client may designate a number of employees or agents to be “Authorized Users” on behalf of Client, and shall ensure that each adheres to this Agreement. Client is responsible for protecting the confidentiality of all passwords and user identifications of its Authorized Users to restrict and protect access to the Platform and Client data. Client agrees that it will, in its use of the Platform, adhere to Company’s Acceptable Use Policy located on its website at digitalfusion.com/legal, as the same may be updated from time to time, including, without limitation, the anti-SPAM provisions thereof, as well as current industry guidelines for mobile and email marketing.
3. Intellectual Property Rights. Subject to any licenses expressly granted herein, Client understands that Company retains all intellectual property rights in and title to all Licensed Applications. Unless otherwise agreed upon in writing by the Parties, upon payment in full of amounts due to the Company, Client receives and retains all right, title and interest in and to work product performed by Company. Client retains all intellectual property rights in all of Client’s pre-existing content and other Client materials, including but not limited to customer data, text, pictures, sound, graphics, logos, symbols, marks, copyright material, video, and other materials supplied by Client (“Client Content”). Client hereby grants Company and its agents and suppliers a non-exclusive, non-sublicensable, non-transferable, revocable license to use the Client Content for the sole purpose of providing Services to Client under this Agreement and, by providing such Client Content to the Company, Client represents that it has adequate license and permission to use and distribute such Client Content in accordance with this Agreement. Without limiting the foregoing, Client hereby represents and covenants that Client will not provide to the Company any Client Content, messages or subscriber lists that: (a) infringe or violate any intellectual property rights, publicity or privacy rights, law or regulation, or are defamatory, harmful to minors, obscene or contain or refer to (including by way of URLs or other hyperlinks) pornography or any kind; (b) promote hate or hate activity, or discrimination on the basis of race, sex religion, national origin or nationality, disability, sexual orientation or age; (c) contain any viruses, worms, trojan horses, cancelbots and other harmful code, including but not limited, to any codes or instructions that may be or will be used to access, modify, delete or damage any data files or other computer programs used by the Company or any recipient; or (d) are false, libelous, defamatory, misleading, inaccurate or malicious.
4. Confidentiality. Each Party agrees that at all times during the term hereof and thereafter it will not make use of, disseminate, or in any way disclose the other Party’s Confidential Information (including without limitation proprietary and/or confidential intellectual property, data, methods, processes, technical or financial data, customer names or other information related to customers, products under development, trade secrets, policies or procedures) to anyone, except as authorized by this Engagement Letter and to the extent necessary for performance hereunder. Each Party agrees that it will disclose Confidential Information only to those of its employees and contractors who need to know such information and who have previously agreed to be bound by the non-disclosure terms and conditions hereof. Each Party agrees that it will treat all Confidential Information of the other Party with the same degree of care as it accords its own Confidential Information, but in no event less than reasonable care.
5. Term and Termination. The initial term of this Agreement shall expire three years from the Effective Date and automatically renews for a successive one-year renewal term unless a Party notifies the other Party in writing of its desire not to renew this Agreement at least 30 days prior to the expiration of the then-current term. This Agreement may be terminated immediately by either Party upon the material breach by the other Party, provided, however, that with respect to breaches that are capable of cure, the allegedly breaching party shall have a sixty-day opportunity to cure. Upon expiration or termination hereof, any undisputed amounts owed to Company hereunder shall be immediately due and payable. Those Sections which by their nature are intended to survive termination or expiration of this Agreement shall so survive.
6. Fees / Payment. Unless otherwise agreed upon by the Parties, all one-time fees and the monthly fees for the first quarter are invoiced upon and due within 10 days from Client Signature Date. Commencement of work is subject to receipt of all initial fees. Subsequent invoices remitted by Company to Client hereunder shall be paid electronically and due within 30 calendar days of the invoice date unless otherwise provided in an applicable SOW. Quarterly service fees are billed 30 days before the beginning of the next quarter of Services. Software and messaging are billed annually. Digital ad buys are invoiced in advance and due upon receipt. Incremental variable usage (e.g., email sends, hosting utilization, etc.) are invoiced the following month and are due upon receipt. Unused messages do not roll over to the subsequent term. Future wireless carrier and other third-party fee increases may be added to Client fees. For undisputed invoices, a late charge of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date. If Client delays work for the initial Services in the first SoW beyond 120 calendar days from kick-off meeting, Company will charge Client +10% of one-time fees each month. If Client accrues unpaid balance(s) over 30 days past due, Company, at its discretion and in addition to other remedies, may suspend the Services until such past due balances for undisputed invoices are paid. All out-of-town travel expenses that are approved in writing by Client prior to travel will be paid for by Client.
7. Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, except that either Party may, without the consent of the other, assign the Agreement to a controlled subsidiary of that Party or a purchaser of all or substantially all of that party's assets used in connection with performing this Agreement, or its successor in interest pursuant to a merger or other corporate combination, provided the assigning Party causes the assignee to assume in writing all obligations of the assignor under this Agreement. The rights and obligations of this Agreement shall bind and benefit any successors or assigns of the Parties.
8. Taxes. Each Party shall comply with all applicable governmental, legal and regulatory requirements and pay all taxes pertaining to this Agreement. Client will conduct and be responsible for appropriate legal review for all Services, programs & campaigns delivered by Company.
9. Disclaimer of Warranties. The Platform Applications and Services are provided on an “as-is” and “as-available” basis without warranties of any kind, either expressed or implied, including without limitation, any warranty of merchantability or fitness for a particular purpose. Further, Company does not warrant, guarantee or make any representations regarding the use, or the results of the use, of the software or written material in terms of correctness, accuracy, reliability, or otherwise.
a. Each Party shall defend the other against any third party claim, action, suit, or proceeding arising from any alleged negligent act, negligent omission, or misrepresentation by such Party hereunder, or a breach by such Party of this Agreement, any term of the Acceptable Use Policy, or of any terms of an SOW or Order Form.
b. Client shall be responsible for compliance with, and shall indemnify the Company for any losses, damages, liabilities, costs, fines and expenses (including, without limitation, reasonable attorneys’ fees) arising out of the by the failure by the Client to comply with any anti-SPAM laws, rules or regulations in the US or elsewhere, compliance with opt-in/opt-out requirements of any jurisdiction to which it sends emails or other correspondences. Client shall indemnify the Company and hold it harmless with respect to any losses, damages, liabilities, costs, fines and expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Company with respect to any patents, patent rights or other intellectual property rights related to the Client’s use of the Services. The parties agree and acknowledge that the price for the Services is established, in part, on the basis of these indemnifications and the other limitations on liability set forth herein, and the Company would not be willing to provide the Services at the price agreed to by the parties if this indemnification and other limitations of liability were not in place.
11. Limitations on Liability. Except with respect to gross negligence or willful misconduct or breaches under the Confidentiality Section, the liability of the Company under this agreement shall be limited to actual damages, the aggregate amount of which shall not exceed the amount paid by Client to Company hereunder during the previous twelve (12) months, and in no event shall either Party be liable under or in connection with this Agreement to the other or any other person or entity for any loss of profit or any consequential, special, exemplary, punitive or indirect damages of any nature, for any reason, whether such liability is asserted on the basis of contract, tort (including negligence or strict liability) or otherwise, even if advised of the possibility of such damages.
12. Force Majeure. Neither Party shall be responsible to the other for any failure to comply with the terms of this Agreement due to causes beyond its reasonable control.
13. Publicity. Unless otherwise limited in writing by Client, Company may publicly refer to Client as a client of Company as part of its marketing activities, including but not limited to displaying Client and Customer logo(s) on Company websites.
14. Governing Law. The validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the Parties shall be governed by the laws of the State of Colorado, without regard to its conflict of laws principles.
15. Entire Agreement. This Agreement, together with any SOWs, Order Forms and other attachments hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any and all agreements or understandings, whether written or oral, between the Parties with respect to such subject matter.