Consulting, Development Services and Peeklogic Products Terms and Conditions
Peeklogic LLC a company organized under the laws of OH, USA, with a place of business at 14060 Pine Forest Drive, 206, OH 44133
You (“Client”) agree to the following Peeklogic Consulting and Development and Consulting Services Terms and Conditions:
- Definitions and Interpretation
1.1. Defined terms in this Agreement:
Agreement means these Consulting and Development and Consulting Services Terms and Conditions and any Statement of Works executed as a part of and in connection with the Services specified herein.
Business Day means a day on which banks are open for business in Sydney or San Francisco (as applicable depending on your contracting party), other than a Saturday, Sunday or public holiday.
Business Hours means the hours of 9am until 5pm on Business Days.
Confidential Information means any information relating to the business or financial affairs of a party or any trade secret, technical knowledge, concepts, ideas, designs, programs, processes, procedures, innovations, databases, customer lists or information, sales plans or marketing plans, research, software, records, intellectual property or other information concerning a party.
Corporations Act means the Corporations Act 2001 (Cth).
Deliverable means any software, equipment, material, solution, report or document agreed to be delivered by Peeklogic to the Client in the performance of a Statement of Work, and specifically referred to as a Deliverable in the applicable Statement of Work.
Delivery Period means the number of days for the delivery of Services as set forth in the Statement of Work.
Enterprise Development and Consulting Services Packages means any of the Development and Consulting Services packages as more specifically outlined in Section 5 offered by Peeklogic that Client may elect to purchase pursuant to a Statement of Work, that provide Client certain incident management and problem management Development and Consulting Services.
Fees means the fees payable by the Client for the Services, as specified in the applicable Statement of Work.
Insolvent means being an insolvent under administration, or insolvent (each as defined in the Corporations Act) or having a controller (as defined in the Corporations Act) appointed, or being in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent) or being otherwise unable to pay debts when they fall due, or having something with the same or a similar effect happen under the laws of any jurisdiction.
Incident Tracking System incorporates the Information Technology Infrastructure Library (ITIL) terminology for incident and problem management. These are defined as follows:
Incident means any event which is not part of the standard operation of a service and which causes, or may cause, an interruption to, or a reduction in, the quality of that service.
Known Error is a condition identified by successful diagnosis of the root cause of a problem, and the subsequent development of a work-around.
Problem means a condition often identified as a result of multiple Incidents that exhibit common symptoms. Problems can also be identified from a single significant Incident, indicative of a single error, for which the cause is unknown, but for which the impact is significant.
Intellectual Property means all patents, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, computer programs, know-how, logos, designs, circuit layouts, trademarks, domain names, business names, copyright and similar industrial or intellectual property, whether or not now existing, and whether or not registered or unregistered.
Intellectual Property Rights means all intellectual property rights including all rights in the Intellectual Property, Moral Rights, any right to have Confidential Information kept confidential, and any application or right to apply for registration of any of these rights.
Services means the services set forth in a Statement of Work.
Service Levels means the service levels for the Development and Consulting Services as outlined in the Statement of Work and as part of the Enterprise Support Service Package that is purchased by Client.
Specifications mean the Client’s specifications and requirements for the Services, as set forth in a Statement of Work.
Statement of Work or SOW means a document agreed by the parties in accordance with Section 2.1.
Support means activities that are provided by Peeklogic relating to the Services or Products being provided pursuant to a Statement of Work. Typical examples of support include calls logged directly to the Peeklogic Support Centre, incident diagnosis, server restarts, (scheduled or unscheduled) and escalation of support requests. This explanation cannot be interpreted as definitive and Peeklogic reserves the right to determine the category of any work carried out under this Agreement. Activities of a consulting nature such as new feature development, design etc. are excluded from the definition of support.
Development and Consulting Services means the Incident resolution and Problem management services described in a Statement of Work.
Tax means any sales tax, use tax, goods and services tax, value-added tax or other similar tax under any applicable law, but excludes any tax on income or capital gains.
Training Credits means a prepaid right to a certain amount of training as more fully described in a Statement of Work.
Training means the provision of onsite or offsite training classes for third party enterprise solutions delivered by Peeklogic.
Headings are for convenience only and do not affect interpretation. The singular includes the plural and conversely.
2.1. Statements of Work
Peeklogic and the Client will work together to develop and agree upon one or more Statement of Works in relation to Services provided under this Agreement. The Statement of Work provides an estimate of the time needed to complete the Deliverables.
2.2. Service Delivery
(a) perform the Services in accordance with the applicable Statement of Work;
(b) perform the Services with due care, skill and judgment, in a proper workmanlike manner, and in accordance with the Specifications;
(c) ensure that only suitably qualified and experienced personnel work on the provision of the Services;
(d) use reasonable commercial efforts to perform the Services in accordance with the timeframes set out in the relevant Statement of Work but will not be responsible for delays caused by the Client or for reasons beyond Peeklogic’s control;
(e) use reasonable efforts to perform the Development and Consulting Services in accordance with the Service Levels but will not be responsible for delays caused by the Client for reason beyond Peeklogic’s control; and
(f) in performing the Services, comply with all applicable laws and regulations.
2.3 Delays Caused by Client
If the Services provided are not complete at the end of the Delivery Period (as defined in the SOW) due to the failure by Client to make the necessary resources available or to perform its obligations, such Services will be deemed to have been complete at the end of the Delivery Period. If the Services provided are not complete at the end of the Delivery Period due to Peeklogic’s failure to make the necessary resources available to Client or to perform our obligations, the Delivery Period will be extended to allow Peeklogic to complete the Services.
Peeklogic will provide the Services remotely or in person, as determined by Peeklogic in the exercise of its discretion. Further in the event of a designated pandemic, epidemic or other catastrophic severe public health or safety event or if Peeklogic otherwise determines that the health or safety of its personnel is at risk, Peeklogic reserves the right to remove its personnel from Client’s premises and conduct the Services remotely.
- Changes to Statements of Work
Either party may request a change to a Statement of Work. No such change is binding upon the parties unless:
(a) Peeklogic’s proposal for implementing the change;
(b) the amount of additional fees, if any, payable by the Client to Peeklogic as a result of the change; and
(c) the impact, if any, on the timeframes and/or the Service Levels for Development and Consulting Services, if any, set out in the relevant Statement of Work, as a result of the change, are agreed upon in writing signed by the parties.
Invoicing is performed as per MSA and SOW agreements signed with each customer
Unless otherwise stated, the Client must pay the Fees within 15 Calendar Days of the date of the relevant invoice.
(a) Unless expressly included, the consideration for any supply under, or in connection with, this Agreement does not include Tax.
(b) Subject to the foregoing, each party must comply with its respective obligations under any applicable law in relation to Tax.
4.4 Hourly Rates
Unless otherwise specified on a Statement of Work, hourly rates that are outside of Business Hours shall be charged at one and half times the hourly rate specified on the Statement of Work.
4.5 Price Adjustment
Peeklogic reserves the right to increase Client’s fees on each annual anniversary of the execution of this Agreement, subject to no less than 30 days prior written notification to Client.
5.Enterprise Development and Consulting Services
5.1. Description of the Enterprise Development and Consulting Services Packages
Subject to the quarterly upfront payment of the applicable subscription fees as outlined on a Statement of Work, Client may elect to purchase from Peeklogic, any of those certain Enterprise Development and Consulting Services Packages offered by Peeklogic as more specifically outlined at http://marketplace.Peeklogic.com/product/enterprise-support. Peeklogic may update the levels of Development and Consulting Services (including the Service Levels) offered in such Enterprise Development and Consulting Services Packages from time to time and may change the annual subscription amounts upon reasonable notice to Client. The Development and Consulting Services offered in the Enterprise Development and Consulting Services Packages are classified as “Services” under this Agreement, and will be more specifically outlined in a Statement of Work.
5.2. Response Times
All requests for Development and Consulting Services received by Peeklogic’s support centre in accordance with this Agreement will receive a response from Peeklogic in accordance with the level of support purchased as detailed in the Statement of Work. This request will be logged by Peeklogic in the Incident Tracking System, and the details of the report (including tracking number) will be communicated to Client contact that made the request.
Once a request has been logged in the Incident Tracking System in accordance with Section 5.2, Peeklogic will commence work to try and repair the issue in accordance with the timeframes defined in the Statement of Work. To avoid doubt, Peeklogic does not guarantee (under this Agreement or otherwise) to be able to resolve any issue.
5.4. Assumptions and Dependencies
Peeklogic is only responsible for Service Levels with regard to Supported Applications that Peeklogic has agreed to support as set forth in a Statement of Work. Levels of Support provided by Peeklogic are subject to the following dependencies:
(a) Availability of, and accessibility to, the Client’s network and server infrastructure;
(b) Time waiting for responses from third parties will not be counted towards the response times included in the Service Levels;
(c) Time waiting for user acceptance sign-off or time delays due to incorrect logging of incidents is not included in determining whether Service Levels have been met; and/or
(d) The quality of the Development and Consulting Services depends on the accuracy of up to date information provided by the Client to Peeklogic.
5.5. Client Responsibilities
(a) Provision of Development and Consulting Services by Peeklogic is dependent on the Client meeting its responsibilities as set out below:
(b) The Client will organize required account privileges for all systems that Peeklogic is required to support as part of the Development and Consulting Services; and
(c) The Client will provide Peeklogic with access to all required resources, including (but not limited to) network and servers. The level of access is at the discretion of Client and may affect the level of Support that Peeklogic can provide.
5.6. Hours of Operation
Peeklogic’s support centre will provide Development and Consulting Services for issues raised with it by email or telephone depending on the level of support purchased under an Enterprise Development and Consulting Services Package and as outlined on a Statement of Work.
Each party acknowledges that in the course of their association with each other they will have access to Confidential Information.
Each party will, and will procure that their respective employees and contractors:
(a) treat all Confidential Information as confidential, not use such confidential information except as permitted hereunder, and not make public or disclose to any other person that Confidential Information without the prior written consent of the disclosing party;
(b) prevent third parties from gaining access to Confidential Information;
(c) immediately return all of the disclosing party’s Confidential Information (including all copies) upon written request of the disclosing party.
This Agreement imposes no obligation on the receiving party with respect to Confidential Information which:
(a) was in the receiving party’s possession before receipt from the disclosing party;
(b) is or becomes a matter of public knowledge through no fault of such receiving party;
(c) is rightfully received by such receiving party from a third party without a duty of confidentiality;
(d) is independently developed by the receiving party;
(e) is required by law to be disclosed by the receiving party in response to a valid order of a court of competent jurisdiction or authorized government agency, provided that the receiving party cooperates with the disclosing party’s efforts to seek a protective order or other appropriate remedy; or
(f) is disclosed by receiving party with the disclosing party’s prior written approval.
6.4. Equitable Relief
Each party acknowledges that money damages may not be sufficient compensation for a breach of this Section 6, and each party agrees that the other may seek and obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other equitable remedy to stop Confidential Information from becoming public in breach of this Section 6.
Each party’s obligations under this Section 6 shall survive the termination of this Agreement for any reason whatsoever.
7.1 Collection of Information
Peeklogic does in some cases capture and aggregate system health, performance and utilization data from the systems its add-ons are installed on. However, Peeklogic does not read or capture Application Content that the Client creates while using the plug-in or application.
The aggregated data is used to (a) better understand the usage of the add-ons; (b) identify usage patterns; and (c) enhance the ability to provide technical support and greater value to Clients. On occasion, the collected system, performance and utilization data will be used for the purposes of developing and refining sales and marketing programs.
For purposes hereof, “System” means the operating system, plug-in and the application to which it integrates. The term “Application Content” means content directly inputted into the system by the Client.
The Client has the option to opt out by notifying Peeklogic via email at legal@Peeklogic.com.
- Intellectual Property
8.1. Pre-Existing and General Intellectual Property
The Intellectual Property Rights owned by each party before Peeklogic commences providing the Services shall remain the property of that party. Any ideas, concepts, techniques or other intellectual property developed by Peeklogic in the course of producing a Deliverable remain the property of Peeklogic.
8.2. Client Intellectual Property
Unless otherwise agreed in a Statement of Work, and subject to Section 8.1, ownership of all Intellectual Property Rights in a Deliverable will vest in the Client upon receipt of the final payment to Peeklogic for the deliverables as detailed in the SOW.
8.3. Third Parties
Third party Intellectual Property Rights will remain the property of such third party.
To the extent permitted by applicable law, each party is prohibited, during and for a period of 18 months after the expiration or termination of this Agreement, from soliciting or endeavouring to entice away from the other party any employee of the other party engaged by that other party at any time for Services under a Statement of Work, without the prior written consent of the other party. In the event of a breach of this section by either party, the parties agree, that the soliciting party shall pay the non-soliciting party a sum equal to twenty-five percent (25%) of such employee’s first year salary, including guaranteed bonuses.
- Disclaimer of Warranties and Limitation of Liability
10.1. Disclaimer of Warranties
THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND WITH ALL FAULTS. IN PARTICULAR, PEEKLOGIC DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR DELIVERABLES WILL MEET CLIENT’S REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PEEKLOGIC DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IF AND TO THE EXTENT ANY WARRANTIES OR CONDITIONS CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED, PEEKLOGIC’S SOLE AND EXCLUSIVE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY CLAIM UNDER SUCH WARRANTY OR CONDITION SHALL BE, AT THE OPTION OF PEEKLOGIC, SUPPLYING THE SERVICES AGAIN OR REFUNDING TO CLIENT ALL AMOUNTS PAID BY THE CLIENT FOR THE AFFECTED SERVICE OR DELIVERABLE.
10.2. Limited Liability
Certain legislation, including the Competition and Consumer Act 2010 (Cth), may imply warranties or conditions or impose obligations upon Peeklogic, which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read subject to these statutory provisions. If these statutory provisions apply, to the extent to which Peeklogic is entitled to do so, Peeklogic limits its liability in respect of any claim under those provisions to, at the option of Peeklogic to supplying the services again; or paying the cost of having the services supplied again.
10.3. Consequential Loss
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL PEEKLOGIC BE LIABLE TO THE CLIENT ON ACCOUNT OF ANY CLAIM (WHETHER BASED IN CONTRACT, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY OR OTHERWISE) FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OF OR INTERRUPTION TO THE CLIENT’S BUSINESS, OR FOR ANY DAMAGES OR SUMS PAID BY THE CLIENT TO THIRD PARTIES, EVEN IF PEEKLOGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY PEEKLOGIC OF THIS AGREEMENT THAT RESULTS IN DIRECT DAMAGES PEEKLOGIC’S LIABILITY FOR SUCH DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO PEEKLOGIC HEREUNDER.
11.1. Third Party IP Infringement Claim
Peeklogic shall indemnify Client against any third party claim that Peeklogic’s provision of the Services or any Deliverable infringes upon or violates any Intellectual Property Rights of third parties, and shall pay those costs and damages awarded by a court of law in a final non-appealable order against Client that are specifically attributable to such claim. The foregoing obligations are conditioned on Client notifying Peeklogic promptly in writing of such claim.
11.2. Limitation on Peeklogic Indemnification
Notwithstanding the foregoing, Peeklogic shall have no obligation under this Section 11 or otherwise with respect to any infringement claim based upon (i) any use of the Deliverables not in accordance with this Agreement, (ii) any use of the Deliverables in combination with other products, equipment, software, or data not supplied by Peeklogic, (iii) Client’s continued use of any non-current, unaltered version of the Deliverables following notification by Peeklogic of the requirement that Client must use a more recent version of the Deliverables, or (iv) any modification of the Deliverables by any person other than Peeklogic.
11.3. Peeklogic’s Rights to Procure, Replace or Refund
In addition to and not in lieu of Peeklogic’s obligations above, if any third party claim is made against Client, and/or Peeklogic reasonably believes, that Client’s use of the Deliverables violates the Intellectual Property Rights of any third party, Peeklogic may, at its option and expense: (a) procure for Client the right to continue using the Deliverables as provided herein or (b) replace or modify the Deliverables so that they become non-infringing, or (c) refund to Client all fees paid by Client to Peeklogic hereunder for such Deliverables. This Section 11 sets forth Peeklogic’s entire liability and Client’s exclusive remedies in the event of a claim of infringement.
Either party may terminate this Agreement immediately by written notice to the other party if the other party breaches any provision of this Agreement, and the breach has not been remedied within 20 Business Days after service of written notice of the breach.
12.2. Failure to Pay, Insolvency and Cessation of Business
Either party may terminate this Agreement immediately by written notice to the other party if that other party:
(a) fails to make a payment within the time period specified under this Agreement;
(b) becomes, threatens or resolves to become Insolvent; or
(c) ceases or threatens to cease conducting business in the normal manner.
Either party may terminate this Agreement by providing 30 days’ advance written notice to the other party and in the case of Client, paying in full all amounts due and owing hereunder, without liability to pay any termination fee, except if a Statement of Work has not been completed. For the avoidance of doubt, Annual Development and Consulting Services cannot be terminated for convenience.
- Consequence of Termination
13.1. Payments on Termination
Upon termination of this Agreement, the Client shall pay to Peeklogic any outstanding amounts (either billed or accrued) which are payable to Peeklogic as of the date of termination.
13.2. Return of Information on Termination
Upon termination of this Agreement, each party must return, or destroy, at the other party’s option, all documentation and information relating to the other party’s business (in whatever form it is held including but not limited to written, graphic or electromagnetic form, and all copies) in that party’s possession or control. Such information includes, without limitation, any Confidential Information and any records relating to a party’s Intellectual Property.
13.3. Effect of Termination
Termination of this Agreement will not prejudice any rights or any claim that either party may have accrued against the other party up to the date of termination including, without limitation, any claim for damages as a result of the occurrence of an event which gives rise to a right of termination.
Notices given under this Agreement:
(a) must be in writing addressed to the intended recipient at the address last notified by the intended recipient to the sender;
(b) must be signed by a person duly authorized by the sender; and
(c) will be taken to be served when delivered, received or left at the intended recipient’s address, but if delivery or receipt occurs on a day on which business is not generally carried on in the place to which the notice is sent, or later than 5pm on that date at that place, it will be taken to have been served at the commencement of business on the next day on which business is generally carried on in that place.
14.3. Entire Agreement
This Agreement embodies the entire agreement between the parties with respect to its subject matter and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter or any term of this Agreement.
14.4. Nature of engagement
Peeklogic is engaged by the Client as an independent contractor. Nothing in this Agreement creates a relationship between the parties of employer and employee, principal and agent, partnership or joint venture.
All additions or modifications to this Agreement must be made in writing and must be signed by both parties.
Neither party may assign or otherwise transfer its rights under this Agreement without the prior written consent of the other party, except that Peeklogic may assign this Agreement to any affiliate or other entity in connection with a reorganization, merger, consolidation, acquisition or other re-structuring involving all or substantially all of the voting securities or assets of Peeklogic.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability, but will not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.
14.9. No Waiver
No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver, nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that right, power or remedy.
14.10. Governing Law
This Agreement is governed by the laws of the countries specified in the table above in Section 14.1 without giving effect to (i) its conflict of laws provisions, or (ii) the United Nations Convention for Contracts for the International Sale of Goods, which is explicitly excluded. The parties submit to the non-exclusive jurisdiction of such courts.
Client agrees to participate in Peeklogic’s reasonable marketing activities that promote the benefits of the Products to other potential clients and use of Client’s name and logo on Peeklogic’s website and in Peeklogic promotional materials, subject to Peeklogic’s compliance with Client’s logo guidelines. Client agrees that Peeklogic may disclose that Client is a customer of Peeklogic.
Peeklogic Jira Connector
Peeklogic Jira Connector – is an AppExchagne Application developed natively on Salesforce.com platform. It allows to create and manage Jira issues directly from Salesforce. All data is passed from Salesforce to Jira and backwards without any third party solutions, and directly. Peeklogic LLC does not have any kind of access to information transmitted.
Peeklogic Jira connector costs $20 per Salesforce User per month. Minimum order is 1 Salesforce User. Minimum order amount per month is $20. Minimum order amount is $20. Trial period is 60 days after Peeklogic Jira Connector is installed in production.
Peeklogic Jira Connector does not require any commitments of usage and Peeklogic team intention was to bring value to different businesses and make cooperation between Sales and Support teams time and cost effective. Usage of the app is considered to be canceled/suspended the same day when payment was not made. Usage of the app can be renewed after payment is made.
Smart Duplicate Manager
Smart Duplicate Manager – is an AppExchange Application developed natively on Salesforce.com platform. It allows to merge duplicate leads, contacts, accounts and person accounts. All data is processed within your Salesforce environment and no third party services is involved in processing your data.
Salesforce Duplicate Manager costs $20 per 1 Salesforce Organization per month. Minimum order amount per month is $20. Minimum order amount is $20. Trial period is 60 days after Smart Duplicate Manager is installed in production.
Salesforce Duplicate Manager does not require any commitments of usage and Peeklogic team intention was to bring value to different businesses and allow Salesforce users to manage duplicate data effectively. Usage of the app is considered to be canceled/suspended the same day when payment was not made. Usage of the app can be renewed after payment is made.
Peeklogic Report Sender
Salesforce Report Scheduler – is an AppExchange Application developed to allow users to schedule reports and send them to external email address as XLS or CSV attachments. All data is processed within your Salesforce instance and no third party services are involved to process your date.
Salesforce Report Sender – including all it’s features is absolutely free and unlimited in usage
There are no commitments in usage, user can cancel usage any time.