EMPLOYER is an organization interested in managing its base of employees and track attendance, discipline and commendation reports on a comprehensive and mechanized basis at EMPLOYER’s location(s) listed under its signature below.
SECCHI Inc. is a consulting and software firm that provides a web-based software solution (the “Software”) to tracking attendance, discipline and commendation reports on a comprehensive and mechanized basis with the goals of Improved employee performance documentation; increased workforce performance; reduced HR administrative research; increased employee engagement; increased frontline to HR event insights and feedback; and better discipline decisions.
EMPLOYER desires to engage SECCHI to provide the Software and support to EMPLOYER subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECCHI has created and shall make available the Software, including any revisions or updates, in a timely fashion in accordance with industry standards.
(a) Provide SECCHI from time to time with EMPLOYER’s updated employee roster (“EMPLOYER Data”).
(b) Provide to EMPLOYER’s managers network access to SECCHI’s web-based Software and maintain the sole and exclusive responsibility for EMPLOYER’s own facilities, systems and equipment.
(c) Provide a roster of managers who are Authorized Users. EMPLOYER shall maintain an up-to-date list of its Authorized Users. Upon request by SECCHI, EMPLOYER shall provide to SECCHI at no cost an electronic copy of the then-current roster of EMPLOYER’s Authorized Users. EMPLOYER shall promptly advise SECCHI regarding any change in Authorized Users.
(d) Be responsible for ensuring that each of its Authorized Users comply with the terms of End User License Agreement attached to this Agreement to the same extent as if each Authorized User had entered in that End User License Agreement.
(e) Be responsible for complying with all applicable employment laws and regulations applicable in the jurisdiction(s) where EMPLOYER operates.
(f) Shall not, nor shall it permit or assist any other person to, disassemble, decompile, reverse engineer, copy, modify, create or add interfaces to, transcribe, store, translate, sell, lease, authorize non-Authorized Users to access, or otherwise transfer or distribute any of the Software, the Documentation in whole or in part, except as expressly permitted under this Agreement. EMPLOYER shall not use the SOFTWARE for the benefit of any third party or in a "service bureau" capacity. EMPLOYER shall not attempt to interface, link, or relate the SOFTWARE with any third-party technology system without the express written consent of SECCHI in its discretion.
(g) After 120 days from the Effective Date, be responsible for training new employees and onboarding new users on the system and facilities processes; SECCHI may be contracted at consulting rates plus travel expenses for more sessions.
(h) Deliver all EMPLOYER Data to SECCHI within the time frames established by the parties in a format identified by SECCHI. SECCHI shall have no liability or responsibility for late delivery or loss of or damage to EMPLOYER Data at the point that EMPLOYER delivers EMPLOYER Data to SECCHI or for any inaccuracy, omission, inconsistency, or other error in the EMPLOYER Data as delivered by EMPLOYER.
In addition to designing the Software, SECCHI shall:
(a) Provide the CORE4 package as described in its attached proposal to track (1) attendance; (2) employee recognition; (3) employee performance; and (4) supervisor coaching.
(b) Provide to EMPLOYER on a limited, non-exclusive, royalty-free license access to copy the Documentation only to the extent reasonably necessary for EMPLOYER and its Authorized Users to use the Software. “Documentation” means any instructions, manuals or other materials relating to the installation or operation of the Software provided by SECCHI or any underlying service providers to EMPLOYER pursuant to this Agreement.
(c) Provide a web hosting site that supports the online access to the Software.
(d) Provide any additional upgrades or services identified in Exhibit B (Additional Services).
(f) Provide training services to EMPLOYER and its Authorized Users in accordance with an agreed-upon training plan. EMPLOYER agrees to comply, at its expense, with all reasonable training requirements implemented by SECCHI or any underlying service providers from time to time.
(g) Make available to EMPLOYER telephone and email access to SECCHI’s technical support staff who will attempt to answer questions and assist in resolving problems regarding the use of the SOFTWARE. Technical assistance will be reasonably available via telephone during normal business hours. Further support packages may be negotiated. SECCHI and EMPLOYER shall establish guidelines for following expected support processes to prevent excessive erroneous technical support calls that SECCHI must field from EMPLOYER. If EMPLOYER has an excessive number of technical support calls that do not follow the guidelines, SECCHI reserves the right to set a limit on the number of technical support calls it will field from EMPLOYER in a certain period of time. SECCHI shall have no obligation to provide technical support except as provided in this subsection and as otherwise agreed in the guidelines established by the parties.
(a) Except for the express rights granted to EMPLOYER under this Agreement, all right, title and interest to the Software, the Documentation and any other information, software or materials SECCHI provides to EMPLOYER under this Agreement, including all intellectual property rights, shall at all times remain solely with SECCHI, or its respective licensors and Vendors. EMPLOYER must reproduce all copyright and trademark notices appearing on all copies of the Documentation and shall not alter any copyright notices or other information pertaining to copyright appearing within or in connection with the Software.
(b) If EMPLOYER submits a written request to SECCHI to have SECCHI license any additional third-party software, EMPLOYER shall execute any required third-party license agreements upon request of SECCHI. EMPLOYER hereby appoints SECCHI as EMPLOYER’s agent and attorney-in-fact to enter into, on EMPLOYER’s behalf and upon EMPLOYER’s written request, any third-party agreements pertaining to goods, services or licenses required for SECCHI to provide the Software and/or any amendment, addendum, or statement of work associated with such third-party license.
(c) EMPLOYER is the sole and exclusive owner of EMPLOYER Data. SECCHI may not use EMPLOYER Data for any purpose other than rendering services to EMPLOYER and, provided that the data is anonymized and de-identified, may be used solely for internal research purposes focused on improving the SOFTWARE and SECCHI’s business model (“Research Purposes”). EMPLOYER hereby grants to SECCHI a limited license to copy, store, record, transmit, display, and view the EMPLOYER Data, but only to the extent necessary to perform the services under this Agreement and for Research Purposes. Except as expressly provided for herein or with the advance written consent of EMPLOYER, SECCHI may not replicate, produce, alter, use, distribute, rent, lease, lend, supply or market the EMPLOYER Data. Neither SECCHI nor any of its employees, agents, or consultants shall have any rights in the EMPLOYER Data or to use any of the EMPLOYER Data in any form, including but not limited to, raw data, blended data, stripped data, aggregated data or cumulated data, except such right to use the EMPLOYER Data as is necessary for SECCHI to fulfill its obligations under the Agreement or for Research Purposes.
(a) Each Party (as the “Receiving Party”) shall retain in confidence and shall not, without the prior written consent of the other Party (as the “Disclosing Party”) disclose in any manner or use, except in performance of its obligations or enjoyment of its rights under this Agreement, any non-public, confidential information disclosed by the Disclosing Party, whether or not marked at the time of disclosure, that would be reasonably understood to be non-public, confidential or proprietary given the nature of the information (“Confidential Information”). The Software and the Documentation shall be deemed Confidential Information of SECCHI, regardless of how marked or identified. This Section shall impose no obligation upon the Receiving Party with respect to any information that: (i) is publicly available at the time the Receiving Party receives it; (ii) becomes publicly available other than by breach of the Receiving Party’s obligations hereunder; (iii) is known to the Receiving Party prior to receipt from the Disclosing Party; (iv) is received by Receiving Party from a third party if such third party has the right to make such disclosure; (v) is independently developed by the Receiving Party without use of Confidential Information; or (vi) is required to be disclosed by law.
(b) The Receiving Party shall protect the Confidential Information of the Disclosing Party with the same degree of care that it uses to protect its own Confidential Information but not less than a reasonable degree of care.
(c) Each of EMPLOYER’s Authorized Users will be assigned a token with a personal, unique username and password for access to the Software. EMPLOYER understands and agrees that EMPLOYER is responsible for all computer access under EMPLOYER's Authorized Users’ usernames and passwords and for all entries in the Software under EMPLOYER's Authorized Users’ usernames and passwords. EMPLOYER understands that information stored in the computer system is confidential information and must be treated with at least the same protection accorded to information maintained in paper records. EMPLOYER agrees to protect and to cause its Authorized Users to protect the security of the usernames and passwords and to refuse to knowingly allow any other individual to use the token to access SECCHI computer systems.
(d) SECCHI shall ensure that all information that identifies or could be used to identify an individual (e.g., name, home address, age, email address, employee ID number, etc.) (“Privacy Restricted Data”) that is collected or accessed by SECCHI is collected , processed, secured, used, disclosed, and maintained in accordance with all applicable privacy laws governing the collection, use, processing, disclosure, or storage of such Privacy Restricted Data, and will not itself become, and will not cause EMPLOYER to become, in violation of any applicable international, federal, state or local laws, rules and regulations governing the collection, access, use, maintenance and disclosure of Privacy Restricted Data.
(e) SECCHI shall employ reasonable and appropriate administrative, physical and technical safeguards (including safeguards against viruses, worms, Trojan horses, and other disabling or damaging codes) that (i) prevent the loss or unauthorized collection, access, use and disclosure of Privacy Restricted Data, and (ii) meet or exceed industry standards for physical security, computing systems security, and information security including, without limitation, ISO 27001 or its successor provisions.
(f) Each Party agrees to respect and abide by all federal, state and local laws pertaining to the confidentiality of identifiable personal and financial information. EMPLOYER further agrees to take reasonable steps to protect itself from malicious software. SECCHI agrees to take necessary steps to protect the SOFTWARE from infiltration by malicious software or code.
(g) EMPLOYER will report to SECCHI any attempted or successful unauthorized access, use, disclosure, modification, or destruction of PHI or interference with system operations in SECCHI information systems of which the EMPLOYER becomes aware.
(a) Initial Term. This Agreement commences as of the Effective Date of this Agreement and shall remain in effect for 3 years (the “Initial Term”). The Agreement shall continue for additional 1-year Terms (each a “Renewal Term”) unless one party provides a notice of termination more than 6 months before the end of the then-effective Term.
(b) Termination for Cause. Either party can terminate this Agreement for an uncured Event of Default subject to the procedures set forth in Section 9 below.
(a) Limited Warranty. SECCHI warrants that it will support the Software in a good and workmanlike manner by properly trained and qualified personnel and otherwise in a manner that is consistent with prevailing industry standards and applicable laws, and that any computer programs and reports included in the Software will conform to their design specifications and the other requirements and specifications set forth in the Agreement. SECCHI further warrants that the Software will not infringe, misappropriate or otherwise violate any intellectual property right of any third party and do not require any license to use the intellectual property of a third party, other than any licenses currently held by SECCHI for the purpose of providing the Software. Except as set forth in this agreement, neither party makes any warranties, express or implied, including any warranty of merchantability or fitness for a particular purpose.
(b) Errors or Omissions. EMPLOYER will establish procedures to regularly verify the accuracy of all feedback returned by SECCHI. EMPLOYER shall promptly (but in any event within 14 days after delivery of work product to SECCHI) notify SECCHI of all errors, omissions, or inaccuracies (“Error”) in any data, record, statement, or other document processed, distributed, or delivered by SECCHI In the event of any Error resulting from any breach or failure by SECCHI, SECCHI shall correct the Error within a reasonable time, not to exceed 30 days, at SECCHI's cost and expense.
(c) Limitation of Liability. In no event shall either party be liable under this Agreement for consequential, incidental, punitive, exemplary damages, and except for a party’s confidentiality / data security or indemnification obligations hereunder or claims arising out of a party’s gross negligence or willful misconduct, in no event shall either party be liable for other damages in excess of the total amount paid or payable by EMPLOYER under the Agreement for the two years preceding the date the claim arose.
(a) Event of Default. For purposes of this Agreement, the occurrence of any one or more of the following events shall be deemed on "Event of Default" (taking into account any required notice and opportunity to cure pursuant to Section 9(b): (i) SECCHI shall fail to provide the Software in accordance with this Agreement or materially breach its obligations under this Agreement; (ii) EMPLOYER fails to timely pay all undisputed amounts due SECCHI under this Agreement; (iii) EMPLOYER or SECCHI fails to perform any other duties or obligations under this Agreement after notice and reasonable opportunity to cure; (iv) EMPLOYER suffers or permit any Change of Control; (v) either party (A) fails or admits in writing its inability to pay its obligations, (B) makes an assignment for the benefits of creditors, or petitions or applies to any tribunal for the appointment of a custodian, receiver, or trustee for a substantial part of its assets, (C) commences any proceeding under any bankruptcy, reorganization, dissolution, liquidation, or similar law or statute, (D) has any such petition or application filed or any such proceeding commenced against it in which an order for relief is entered or adjudication or appointment is made and which is not dismissed within 60 days, (E) consents to, approves, or acquiesces in any such petition, application, or proceeding or order for relief or the appointment of a custodian, receiver, or trustee for all or any substantial part of its properties, or (F) has any substantial part of its assets or property become subject to any levy, seizure, assignment, application, or sale for or by a creditor or governmental agency; or (vi) either party engages in fraud, criminal conduct, or willful misconduct.
(b) Notice of Breach and Opportunity to Cure. Upon the occurrence of an Event of Default described in Section 9(a)(ii) (non-payment by EMPLOYER), SECCHI may immediately cease delivery of the Software and terminate this Agreement. Upon the occurrence of any other Event of Default described in 9(i)-(iii) above, the non-defaulting party shall notify the breaching party of the circumstances giving rise to such Event of Default, whereupon the breaching party shall have 30 days from the date of notice to cure the default. If the breaching party fails to cure the Event of Default within the 30-day period, the non-defaulting party may terminate this Agreement by written notice to the breaching party.
(c) Remedies. In the event SECCHI elects to terminate this Agreement after the occurrence of an Event of Default by EMPLOYER, SECCHI shall be entitled to recover immediately from EMPLOYER (i) all sums due for Software provided prior to the termination, together with (ii) all sums due during the then-current Term of the Agreement.
(d) Advance Deposit. If SECCHI elects not to terminate the Agreement upon the occurrence of an EMPLOYER Event of Default, it may thereafter, by written notice to EMPLOYER, require that EMPLOYER deposit funds with SECCHI in advance of SECCHI’s delivery of the Software.
(e) Actions on Termination. Upon termination for any reason, EMPLOYER shall cease using the Software and shall return or destroy all Documentation and copies of the Software and provide an officer’s certificate certifying the completion of the return and destruction. Upon termination for any reason and the payment of all sums due and owing by EMPLOYER, SECCHI Inc will return EMPLOYER data in a machine-readable form. The termination of this Agreement shall not relieve either Party from obligations incurred prior to termination.
The Software may be accessed only by Authorized Users, each of whom will be subject to the attached End User License Agreement.
During the Term of this Agreement, SECCHI may, with EMPLOYER's prior written approval as to the form and content of such reference and/or press release, identify EMPLOYER by company name and use of logo, orally and in writing, as a customer of SECCHI and may publish a press release announcing in general terms that SECCHI and EMPLOYER have entered into this Agreement and SECCHI may, in general terms, describe the activities contemplated hereunder. SECCHI hereby acknowledges and agrees that, except for the limited rights of publicity described in this subsection, EMPLOYER shall be the sole and exclusive owner of its properties and corporate identity.
Neither party may assign this Agreement without the written consent of the other party, provided however that this Agreement may be assigned in connection with a merger or reorganization or a transfer of all or substantially all of a party’s or its business units’ assets, stock or other securities. This Agreement shall be binding upon the parties and their respective affiliates, assigns and successors in interest, each party shall insure that their respective affiliates do not take or cause to be taken any action which would be a breach hereunder by such party, and shall inure solely to the benefit of the parties and their respective permitted assigns and successors in interest, and no other person shall be entitled to any of the benefits conferred by this Agreement.
No amendment, modification or permanent waiver of any provision of this Agreement shall be valid unless in writing and signed by the parties.
All notices provided for in this Agreement shall be in writing and may be mailed or delivered to the parties at the addresses set forth above or at other addresses specified by notice hereunder.
This Agreement along with its attached EULA constitutes the complete and exclusive statement of the agreement between the parties with regard to the matters set forth herein, and it supersedes all other agreements, proposals, and representations, oral or written, express or implied, with regard thereto. No other agreements, policies or provisions in any other form or media (e.g., order forms, other EULAs, websites, etc.) shall supplement or amend this Agreement.
Each party to this Agreement (as “the Indemnifying Party”) shall indemnify the other (as “the Indemnified Party”) against all claims made against the Indemnified Party as a result in whole or in part of the actions of the Indemnifying Party or the Indemnifying Party’s employees, as well as for breaches of the Indemnifying Party’s obligations under this Agreement. The obligations created by this paragraph include an obligation on behalf of the Indemnified Party to advise the Indemnifying Party of any claims made and an obligation to cooperate with the Indemnifying Party in the conduct of any resulting litigation. The Indemnifying Party shall be responsible for all attorneys’ fees resulting from claims subject to this indemnity. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, AND FOR BREACHES OF SECTIONS 5 AND 3(H) AND (I) OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF THE PARTIES HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
Neither party shall be liable for any delay, nonperformance, loss, or damage due to acts of God, acts of government, wars, riots, civil unrest, strikes, accidents, or other causes beyond the reasonable control of the parties ("Force Majeure Event"); provided that, upon the occurrence of a Force Majeure Event, the affected party immediately notifies the other of the occurrence of the Force Majeure Event and uses commercially reasonable efforts to recommence performance as soon as possible. If a Force Majeure Event prevents either party from performing for 15 days or more, the other party may terminate this Agreement with written notice to the affected party. SECCHI warrants that it maintains an industry standard disaster recovery plan designed to minimize any interruption to the Services upon the occurrence of a Force Majeure Event and agrees that nothing herein shall be deemed to excuse SECCHI from activating such disaster recovery plan upon the occurrence of such an Event or as otherwise may be reasonably appropriate under the circumstances.
This Agreement and the rights of the parties under it shall be governed by and construed in all respects in accordance with the laws of the United States of America and the State of Wisconsin. Any action brought under this Agreement or relating to the Software shall be brought only in the courts serving Milwaukee County, Wisconsin.
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