SalesPad Cloud End User Services Agreement
REVISED OCTOBER 24, 2016
THANK YOU FOR CHOOSING THE SALESPAD® SOFTWARE (“SOFTWARE”). THE SOFTWARE WILL BE PROVIDED TO YOU AS A SERVICE (“SERVICES”), WHICH YOU MAY ACCESS ONLY BY PURCHASING A SUBSCRIPTION FOR A LIMITED, RENEWABLE TERM FROM SALESPAD OR ITS AUTHORIZED RESELLERS.
THIS END USER SERVICES AGREEMENT IS THE LEGAL AGREEMENT (“AGREEMENT”) BETWEEN YOU, THE CUSTOMER WHO HAS ACQUIRED THE SOFTWARE (“YOU”) AND SALES PAD, LLC (“SALESPAD” “WE” OR “US”). PLEASE READ THIS AGREEMENT CAREFULLY.
SALESPAD OR ITS AUTHORIZED RESELLER IS ONLY WILLING TO PROVIDE ACCESS TO THE SERVICE TO YOU ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. YOU ACCEPT THIS AGREEMENT EITHER BY: (A) ACCESSING OR USING THE SERVICES, (B) CLICKING THE “I ACCEPT” OR SIMILAR ICON WHEN YOU ACCESS THE SERVICE, OR (C) OTHERWISE ELECTRONICALLY INDICATING ACCEPTANCE.
YOUR ACCESS AND USE OF THE SERVICES, INCLUDING ACCESS UNDER A FREE TRIAL, IS GOVERNED BY THIS AGREEMENT.
YOU MAY NOT ACCESS THE SERVICES IF YOU ARE A DIRECT COMPETITOR OF SALESPAD OR FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
IF YOU ARE UNWILLING TO ACCEPT THIS AGREEMENT, DO NOT USE THE SERVICES.
CAPITALIZED TERMS ARE DEFINED WHEN FIRST USED.
1.1 Description of Services. The Services consist of: (a) SalesPad providing to you online access to the Software; and (b) support as described herein, all subject to and in accordance with the terms of this Agreement and the then-current SaaS services guide (“Guide”) and end user documentation (“Documentation”) that we publish on our website. SalesPad may update the Guide and Documentation from time to time during the term of this Agreement.
1.2 Orders. You may not use or otherwise access the Services unless you have purchased a subscription to the Services from SalesPad or its authorized reseller. You may purchase a subscription to Services by entering into an ordering document or online order with SalesPad (“Order Form”) that specifies the Services to be provided, the subscription term, which will be deemed a renewable one (1) year term unless otherwise specified in the ordering document (“Subscription Term”), the maximum number of permitted Users, and other limitations, restrictions or conditions on your right to access the Services. “User” means your employees or individual independent contractors working within your enterprise. Unless otherwise specified in the applicable Order Form, the maximum number of permitted Users with respect to each Subscription Term is one (1).
1.3 Users. You may not allow the Service to be accessed by more than the maximum number of permitted Users. Unless otherwise specified on the applicable Order Form, each permitted User account must provide a specifically named individual. You may from time to time designate, upon notice to us, different individuals as named Users, such as to replace a User who leaves your employ or changes job functions, but you may not re-designate the same person as a named User more than once within any rolling twelve (12) month period.
1.4 Our Responsibilities. We will: (a) provide the Services during the applicable Subscription Term in accordance with this Agreement, the then-current Guide and Documentation and the applicable Order Form; (b) provide support services in accordance Section 6.5 below; (c) use commercially reasonable efforts to make the Services available twenty-four (24) hours per day, seven (7) days per week, except for scheduled downtime (of which we will give you advance notice as provided in the then-current Guide) or as caused by circumstances beyond our reasonable control as specified in Section 13.6 below; and (d) maintain confidentiality of the data that you enter or upload into the Services (“Customer Data”) in accordance with Sections 6 and 8 below.
1.5 Your Responsibilities. You will: (a) ensure that persons accessing the Services on your behalf or with your permission (including your and your affiliates’ employees and contractors) comply with this Agreement); (b) be responsible for the accuracy, quality, and legality of Customer Data, the means by which you acquired the Data, and the results that you obtain using the Services; (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify us promptly of any such unauthorized access or use of which you become aware; (d) use Services only in accordance with this Agreement and applicable laws and government regulations; and (e) provide computer and telecommunications facilities necessary for you to access the Services via the Internet.
1.6 Free Trials. We may make Services available to you on a trial basis without charge for a period of sixty (60) days or such shorter period that we specify (“Free Trial”). We may terminate a Free Trial for any reason upon notice to you. A Free Trial will also terminate if you enter into a paid subscription for the Services. You will not use or otherwise access Services through a Free Trial for any purpose other than to evaluate the Services for purchase by you. At the conclusion of the Free Trial, you will no longer be able to use or otherwise access Customer Data entered into or generated by the Services during the Free Trial unless you have purchased a paid subscription to the Services. SalesPad’s warranty, indemnify, support, and other obligations hereunder will not apply to Free Trials. NOTWITHSTANDING SECTION 9 BELOW, SERVICES PROVIDED IN A FREE TRIAL ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
1.7 Beta Services. We may make Services available at no charge that permit access to versions of the Software designated as beta, pilot, limited release, developer preview, non-production, evaluation, or the like (“Beta Services”). Beta Services are available for a period of one (1) year or such shorter period that we specify. You will not use or otherwise access Beta Services for any purpose other than to evaluate the Beta Services. When the Beta Services are no longer available to you, you will not be able to use or otherwise access Customer Data entered into or generated by the Beta Services unless you have purchased a paid subscription to the Services You may not use Beta Services for production purposes. SalesPad’s warranty, indemnify, support, and other obligations hereunder will not apply to Beta Services. NOTWITHSTANDING SECTION 9 BELOW, BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Other Services. No services (other than Services as defined herein) are provided under this Agreement. Additional services such as installation, customization, and training may be available for purchase from SalesPad or its resellers pursuant to a separate agreement at the provider’s then-current terms and prices. A breach by a party of its obligations with respect to such other services will not by itself constitute a breach by that party of its obligations hereunder even if the services are enumerated in the same Order Form.
1.9 Activation Codes. SalesPad or its authorized reseller may provide you with unique activation codes, passwords, or other credentials for use in accessing the Services. You agree to keep such credentials secure and to use them solely to access the Services as permitted under this Agreement. You may not allow Users to share passwords with each other or any other person, particularly for the purpose of allowing multiple individuals to access Services under a single named User’s account.
2. Rights Granted.
2.1 Services. If you have purchased Services, then SalesPad grants you the non-transferable, non-exclusive, personal, revocable, worldwide right and license, during the applicable Subscription Term, to use, access, customize, and configure the Services for your own internal business purposes in accordance with the then-current Guide and Documentation, subject to the terms and conditions of this Agreement and the applicable Order Form.
2.2 Software. If you have purchased Services, then SalesPad grants you a non-transferable, non-exclusive, personal, revocable, worldwide license during the applicable that Subscription Term to: (a) install and execute Ancillary Software (if any), in object code format only, on Authorized Machines (as defined below) solely for your own internal use in accessing and using Services; (b) modify configurable components of the Software, as identified in the then-current Documentation, as necessary to customize and configure the Services. With the exception of Ancillary Software, you have no right under this Agreement to receive a copy of the Software used to provide Services or to install or execute Software on any computer other than the hosted facilities made available to you by SalesPad for this purpose. “Ancillary Software” means Software ancillary to the Services, that is provided to you by SalesPad, for installation at your premises, to facilitate your access and use of the Services and that, by itself, provides no substantial functionality apart from the Services. “Authorized Machines” are machines that you own or lease and that are operated in your business.
2.3 Other Releases. The access rights that you acquire pursuant to this Agreement cover any future maintenance releases, upgrades, or other releases of the Services that are made available to you during the applicable Subscription Term. The provision of such maintenance releases, upgrades, or other releases does not expand your rights under this Agreement.
2.4 Ownership. Software is not sold, even if for convenience we make reference to words such as “sale” or “purchase” in this Agreement. The Software is protected by copyrights, trade secrets, and other intellectual property rights. You agree that all worldwide copyright and other intellectual property rights in the Services, Software, and Documentation and all copies of the Software however made, are the exclusive property of SalesPad and its licensors. All rights in and to the Services, Software, and Documentation not expressly granted to you in this Agreement are reserved by SalesPad. There are no implied licenses under this Agreement. Technical information provided to you under this Agreement, including APIs and related documentation, is confidential and proprietary to SalesPad and may not be disclosed by you to third parties without SalesPad’s express written permission.
2.5 Rights Granted to SalesPad. You hereby grant to SalesPad and its contractors a transferrable, non-exclusive, worldwide right and license, during the applicable Subscription Term to reproduce, distribute, create derivative works of, transmit, make, have made, use, sell, offer for sale, import, and export data that you enter into or generate using the Service (“Customer Data”) solely as necessary to provide Services to you.
2.6 Feedback. If you request features or provide other feedback or suggestions in relation to the Services (collectively “Feedback”), you hereby grant to SalesPad a perpetual, irrevocable, fully-paid, royalty-free, non-exclusive, transferable, worldwide license, under SalesPad’s intellectual property rights in such Feedback, to make, have made, use, sell, offer for sale, import, export, reproduce, distribute, create derivative works of, publicly display, publicly perform such Feedback in any product or service.
3. Term and Termination.
3.1 Term. This Agreement continues until terminated under the terms of this Agreement.
3.2 Termination for Convenience. Each party may terminate this Agreement in its entirety upon thirty (30) days’ prior written notice to the other party, if at the time of notice there is no Subscription Term in effect.
3.3 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement or the applicable Order Form for the affected service and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party. Either party may terminate this Agreement upon written notice if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that is not dismissed within ninety (90) days of its commencement or an assignment for the benefit of creditors.
3.4 Subscription Terms. Subscription Terms will be one (1) year or such other time as specified in the applicable Order Form. Except as otherwise specified in an Order Form, Subscription Terms will automatically renew at SalesPad’s then-current pricing and terms for additional periods equal to the original duration of the expiring term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the then current term. Upon expiration or termination of a Subscription Term, your right to use or otherwise access the Service will terminate and subject to Section 3.6 you will be no longer able to access Customer Data.
3.5 Effect of Termination of Agreement. Upon termination of this Agreement for any reason: (a) all Services will cease, the applicable Subscription Terms will be deemed terminated, and you will stop access and use of the Services, including Free Trials or Beta Services; (b) if this Agreement is terminated by SalesPad for cause pursuant to Section 3.3, any fees that would have been due during the remainder of Subscription Term in effect at the time of termination will accelerate and be immediately due and payable by you; if this Agreement is terminated by you for cause pursuant to Section 3.3, and you have purchased Services directly from us (and not a reseller), then we will refund any prepaid fees covering the remainder the Subscription Term in effect at the time of termination; and (c) you will pay fees accruing prior to termination accordance with the terms of this Agreement.
3.6 Data Portability and Deletion. Upon request by you made within thirty (30) days after the expiration or termination of a Subscription Term, we will make Customer Data available to you for download from the Services as provided in the then-current Documentation. After such thirty (30) day period, we will have no obligation to maintain or provide any Customer Data, we may thereafter retain, delete, or destroy all copies of Customer Data in our systems.
3.7 Additional Termination Rights. SalesPad may from time to time amend this Agreement, the Guide, or Documentation by posting such amendments to its website at least five (5) days in advance of their effective date. Such amendments will be binding upon Customer subject to this Section 3.7. Amendments to the Guide or Documentation will be binding upon the parties as of their effective date. Amendments to this Agreement will be binding upon the parties as of the renewal of the then-current Subscription Term, so long as the amendment is posted more than thirty (30) days before such renewal. Customer may, within thirty (30) days after the effective date of an amendment to the Guide or Documentation, notify SalesPad that Customer objects to the amendment (specifying the specific language to which Customer objects), in which case SalesPad will within ten (10) days after its receipt of such notification either: (a) retroactively revert to the prior version of the Guide or Documentation; (b) stipulate that Customer will remain bound by the prior version of the Guide or Documentation; or (c) terminate the Subscription Term and refund to Customer any prepaid fees for the portion of the original Subscription Term remaining at the time of such termination; and in such cases the amendment to the Guide or Documentation, as applicable, will not be binding upon Customer.
4. Financial Matters.
4.1 Payment Terms. If you purchase Services directly from SalesPad, then the terms in this Section 4 will apply. All orders are non-cancellable and all fees paid to SalesPad are non-refundable except as expressly provided in this Agreement. Unless otherwise specified on the applicable Order Form, fees for each Subscription Term are due in advance at the time access to Services is granted, and due in advance for each renewal of the Subscription Term at the outset of the renewal term. Fees not paid within thirty (30) days after invoice will accrue interest at a rate of one and one-half percent (1.5%) per month or the legal maximum interest rate, whichever is lower, applied as of the date of invoice. You may issue a purchase order consistent with the terms of this Agreement, but a purchase order is not required. If you issue a purchase order, then it will be for the full amount of the fees due, and any additional, different, or conflicting terms appearing in a purchase order will not amend or supplement this Agreement or any Order Form.
4.2 Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for Services is late by more than thirty (30) days, SalesPad may, without limiting its other rights and remedies, accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Services to you until such amounts are paid in full.
4.3 Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Services, other than taxes based on SalesPad’s net income. If SalesPad has the legal obligation to pay or collect Taxes for which you are responsible under this Section 4.3, it will invoice you and you will pay that amount unless you provide SalesPad with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4 Credit Card. You may elect to pay fees hereunder by credit card or ACH debits to a checking or savings account by authorizing SalesPad to charge your specified card or account in the Order Form or otherwise. You represent to SalesPad in such cases that you are the authorized holder of the specified card or checking account. Such authorization will remain in effect until you cancel it in writing. If you pay by credit card, you agree to notify SalesPad in writing of any changes in your account information or termination of this authorization at least fifteen (15) days prior to the next payment due date. For ACH debits to your checking/savings account, funds may be withdrawn from your account upon the scheduled transaction date. If ACH debit is rejected for non-sufficient funds (NSF), SalesPad may at its discretion attempt to process the charge again within thirty (30) days after the rejection, and you agree to pay to SalesPad an additional $35 charge for each attempt returned NSF, which will be initiated as a separate transaction from the authorized recurring payment. You acknowledge that the origination of ACH transactions to your account must comply with the provisions of U.S. law.
5. Restrictions on Use.
You may not do (or permit others to do) any of the following with respect to the Software or Services: (a) use Software or Services in excess of contractual limitations on usage specified in this Agreement or an Order Form; (b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute Software or Services or otherwise make them available for access by third-parties; (c) use or access Software or Services for the purpose of developing or operating products or services intended to be offered to third-parties in competition with Software or Services; (d) modify, adapt, alter, translate, or create derivative works of the Software or Services; (e) reverse engineer, decompile, or disassemble the Software or Services, or otherwise attempt to derive the source code of the Software except and only to the limited extent that such activities are expressly permitted by applicable law notwithstanding this limitation; (f) remove or modify any copyright or propriety notices on, in, or displayed by the Software or Services; (g) reproduce or use the Ancillary Software on any machine other than an Authorized Machine; (h) use Services to reproduce, distribute, display, transmit, or use material in violation of copyright or other intellectual property rights; (i) use Services to create, use, transmit, or store viruses or other harmful computer code or otherwise engage in a malicious act or disrupt security, integrity, or operation of Services; (j) access, erase or disable any data or program on Services (other than your own Customer Data) or interfere with or disrupt the integrity or performance of the Services; or (i) attempt to gain unauthorized access to the Services or its related systems or networks. Before you exercise any of the foregoing actions that you believe you are entitled to, you will provide SalesPad with thirty (30) days’ prior written notice to you or, if applicable law or the relevant court order does not allow for such notice, then the maximum amount of notice allowable, and provide reasonably requested information to allow SalesPad to assess your claim and, at SalesPad’s sole discretion, provide alternatives that reduce adverse impacts on SalesPad’s intellectual property and other rights.
6. Confidential Information.
6.1 Definition. “Confidential Information” of a party means any technical or non-technical information related to the past, current or proposed operations, products, technology, services, and business of such party disclosed or otherwise made available in any manner by such party to the other party, or to which the other party may gain access in the performance of this Agreement, whether disclosed orally, visually, or otherwise, that the disclosing party designates as being confidential or which, under the circumstances of disclosure, would reasonably be considered to be confidential. The Software or Services and the terms of this Agreement will be deemed Confidential Information of SalesPad. Confidential Information will not include, and no duty of confidentiality will apply to, information that the receiving party can document: (a) is or subsequently becomes (through no improper action or inaction by the receiving party) generally available to the public; (b) was already in the receiving party’s possession or known by the receiving party prior to receipt from the disclosing party; (c) was rightfully disclosed to the receiving party by a third-party free of any obligation of confidence; or (d) is independently developed by the receiving party without reference to the Confidential Information.
6.2 Duties. A party receiving the Confidential Information of the other party will: (a) at all times protect it from unauthorized disclosure with the same degree of care that it uses to protect its own confidential information, and in no event using less than reasonable care and (b) not use it except to the extent necessary to exercise rights or fulfill obligations under this Agreement. Each party will limit the disclosure of the other party’s Confidential Information to those of its employees and contractors with a need to access such Confidential Information for a party’s exercise of its rights and obligations under this Agreement, provided that all such employees and contractors are subject to binding disclosures and use restrictions at least as protective as those set forth herein. Each party’s obligations set forth in this Section 6 will remain in effect during the term and for five (5) years after termination of this Agreement. The receiving party will, at the disclosing party’s request or upon termination of this Agreement, return all originals, copies, reproductions, and summaries of Confidential Information, or at the disclosing party’s option, certify destruction of the same; provided, however, that the recipient may retain copies of Confidential Information as embedded in its backup files made and retained in the ordinary course of the receiving party’s business so long as such files are maintained confidential in accordance with this Section 6.2. Notwithstanding the foregoing, each party will treat each Order Form as Confidential Information of the other party; provided, however, that each party may disclose the Order Form (and the terms of this Agreement) to its actual or prospective advisors, investors, and finance providers who are subject to a duty of confidentiality.
6.3 Required Disclosures. This Agreement will not be construed to prevent the receiving party from disclosing the other party’s Confidential Information to a court or governmental body pursuant to a valid court order, law, subpoena, or regulation, provided that the receiving party: (a) gives twenty (20) days’ notice (or such shorter period as is the maximum notice permitted under applicable law) before making the disclosure, unless prohibited by law; (b) provides reasonable assistance to the disclosing party in any lawful efforts by the disclosing party to resist or limit the disclosure of such Confidential Information; and (c) discloses only that portion of the disclosing party’s Confidential Information which is legally required to be disclosed.
6.4 Equitable Remedies. The parties agree that the receiving party’s disclosure of Confidential Information except as provided herein may result in irreparable injury for which a remedy in money damages may be inadequate. The parties further agree that in the event of such disclosure or threatened disclosure, the disclosing party may be entitled to seek an injunction to prevent the breach or threatened breach without the necessity of proving irreparable injury or the inadequacy of money damages, in addition to remedies otherwise available to the disclosing party at law or in equity.
6.5 Maintenance and Support. During the Subscription Term, SalesPad will provide you with: (a) maintenance releases and upgrades to the Services on a when-and-if-available basis, as made generally available by SalesPad to its customers; (b) support to you via telephone and email during SalesPad’s normal business hours in accordance with SalesPad’s support policies as set forth in the Guide, as updated from time to time.
7. Service Level Agreement.
7.1 Definitions. “Available” means that the Services can be accessed by authorized users. “Permitted Downtime” means times during a given month when the Services are not Available due to: (a) schedule maintenance not to exceed ten (10) hours per month or (b) events described in Section 13.6 below.
7.2 Commitment. SalesPad promises that the Services will be Available at least ninety-nine and nine tenths percent (99.9%) of the time during each calendar month, excluding Permitted Downtime (“Required Uptime”) so long as you promptly notify SalesPad when you become aware that the Services are not Available. Your exclusive remedy, and SalesPad’s sole liability, for breach of this warranty is to request, within ten (10) days after the conclusion of the calendar month in which the breach occurred, that the applicable Subscription Term be extended by the number of minutes equal to the Required Uptime less the actual number of minutes (rounded to the nearest minute) that the Services were Available during the calendar month. Such requests must be accompanied by dates and exact times when the Services were not available.
8. Customer Data and Security.
Customer Data will remain your Confidential Information; provided, however, that SalesPad may collect, use, and disclose data (in aggregate form only) derived from your use of Services or Software for analysis, benchmarking, analytics, marketing, and other business purposes so long as such data does not identify you or your users. During the Subscription Term, SalesPad will use reasonable efforts to comply with any security policies set forth in the then-current Guide. You will not use the Services to process personal data (as described in the EU Data Protection Directive 95/46/EC) within the European Economic Area (EEA).
9. Limited Warranty.
SalesPad warrants to you and to no one else, that, for a period of thirty (30) days after the initial commencement of the Services (other than a Free Trial or Beta Services), that the Services will perform without Nonconformity. A “Nonconformity” is a material, reproducible failure of the Services to substantially perform in accordance with the Documentation, excluding a failure to meet the commitment of Section 7.2 above. Your exclusive remedy for breach of this warranty is to notify SalesPad within the warranty period specifying in reasonable detail the nature of the Nonconformity, whereupon SalesPad will update the Services or Software, or provide you with a reasonably practical work-around, to correct or otherwise resolve the Nonconformity. If SalesPad is unable to correct or otherwise resolve the Nonconformity, then you may terminate this Agreement and receive from SalesPad a refund of the amounts that you have prepaid for use of the Services during the remainder of the original Subscription Term.
10. DISCLAIMER OF WARRANTY.
EXCEPT FOR THE EXPRESS LIMITED WARRANTY OF SECTION 9, THE SERVICES AND SOFTWARE PROVIDED HEREUNDER ARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND. SALESPAD HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS, OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE SOFTWARE OR SERVICES ARE ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. YOU ASSUME THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES. TO THE EXTENT THAT SALESPAD MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
11. LIMITATION OF LIABILITY.
IN NO EVENT WILL SALESPAD (OR ANY AUTHORIZED RESELLER OF SALESPAD FROM WHOM YOU MAY HAVE ACQUIRED THE SOFTWARE) BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COST OF PROCURING SUBSTITUTE GOODS OR SERVICES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, EVEN IF SALESPAD OR ITS AUTHORIZED RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF SALESPAD IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE GREATER OF US $1,000 OR THE TOTAL AMOUNT OF FEES (IF ANY) THAT YOU PAID TO SALESPAD FOR USE OF THE SOFTWARE OR SERVICES (NOT INCLUDING ADDITIONAL FEES FOR CUSTOMIZATION, TRAINING, OR CONSULTING) DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH ANY CLAIMS OF LIABILITY AROSE. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMIT. YOU ACKNOWLEDGE THAT THE LICENSE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SALESPAD WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO LICENSOR OR OTHER SUPPLIER TO SALESPAD WILL HAVE ANY LIABILITY TO YOU, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE UNDER THIS AGREEMENT OR IN RELATION TO THE SOFTWARE OR SERVICES. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION WILL APPLY EVEN IF AN EXCLUSIVE REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
12. Third Party Software Programs.
The Software includes certain open-source and other programs or content licensed by third-party developers (“Third-Party Programs”). Copyright notices and additional license terms for Third-Party Programs will be provided in the Guide or Documentation, as specified by the respective third-party developers. By using the Services and Software, you agree to comply with these additional third-party terms for the benefit of the applicable third-party. SALESPAD PROVIDES THIRD-PARTY PROGRAMS TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND.
13.1 No Trademark License. No rights to use SalesPad’s logos or other trademarks are granted under this Agreement. If you would like to use SalesPad’s logos or other trademarks, please contact SalesPad to discuss becoming an authorized reseller.
13.2 Choice of Law and Venue. Regardless of where you are located, this Agreement will be governed by the laws of the State of Michigan and the United States, without giving effect to any choice of law principles that would require the application of the laws of a different country or state. Any legal action between you and SalesPad arising out of this Agreement or your use of the Software must be instituted exclusively in the federal or state courts located in Kent County, Michigan, and you consent to jurisdiction and venue in such courts. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (USA) do not apply to this Agreement.
13.3 Compliance with Laws. You will comply with all applicable export and import control laws and regulations in your use of the Software and, in particular, you will not export or re-export the Software without all required government licenses. Regardless of any disclosure made to SalesPad of an ultimate destination of the Software including its accompanying technical documentation, you acknowledge that all such materials are being released or transferred to you in the United States and may be subject to U.S. export control laws and regulations including regulations of the U.S. Bureau of Industry and Security. You will defend, indemnify, and hold harmless SalesPad and its suppliers from and against any claim arising from your violation of such laws or regulations.
13.4 U.S. Government Rights. If you are a branch or agency of the U.S. Government, then you acknowledge that the Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Any technical data provided with such Software is commercial technical data as defined in 48 C.F.R. 12.211. Consistent with 48 C.F.R. 12.211 through 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, and 48 C.F.R. 252.227-7015, all U.S. Government end users acquire the Software with only those rights set forth in this Agreement.
13.5 Records. During the term of this Agreement and for one (1) year after its expiration or termination, you will keep reasonably complete records of your installation and use of the Software. You will permit SalesPad or its representatives to review and verify those records to ensure compliance with this Agreement. SalesPad will give you at least ten (10) days advance notice of any such review and will conduct the same during normal business hours in a manner that does not unreasonably interfere with your normal operations. SalesPad will treat your records as your confidential information.
13.6 Force Majeure. No party will be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including without limitation: strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), trespassing, sabotage, theft or other criminal acts, failure of energy sources or transport network, acts of God, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather.
13.7 Notice. Except as expressly otherwise provided herein, all notices will be in writing and deemed delivered the earlier of: (a) actual receipt; (b) upon delivery by a nationally recognized overnight courier (receipt requested) to the receiving party’s address as specified herein or updated by written notice; or (c) when received via electronic communications as evidenced by either party’s contemporaneously created computer records. Your address for purposes of notice will be the address and e-mail address provided by you when registering for access to the Services or on the applicable Order Form. SalesPad’s address for notice will be as set forth below.
13.8 Relationship Between the Parties.The parties are independent contractors. Neither party is the agent, partner, employee, fiduciary, or joint venturer of the other party under this Agreement.
13.9 Assignments. You may not assign or transfer, by operation of law or otherwise, any of your rights under this Agreement (including your licenses with respect to the Software) to any third party without SalesPad’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. SalesPad may freely assign its rights or delegate its obligations under this Agreement.
13.10 Language. This Agreement is in the English language and its English language version will be controlling over any other translation, except as otherwise required by applicable law. The parties to this Agreement have expressly required that the present Agreement and its Exhibits be drawn up in the English language. / Les parties aux presents ont expressement exige que la presente convention et ses Annexes soient redigees en langue anglaise.
13.11 Remedies. Except as otherwise provided herein, the parties’ rights and remedies under this Agreement are cumulative. You acknowledge that the Software contains valuable trade secrets and proprietary information of SalesPad and its suppliers, that any actual or threatened breach of this Agreement by you will constitute immediate, irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
13.12 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
13.13 Severability. If any provision of this Agreement is held unenforceable by a court, such provision may be changed and interpreted by the court to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, you agree that Sections 10 and 11 will remain in effect notwithstanding the unenforceability of any other provision of this Agreement.
13.14 Entire Agreement. This Agreement constitutes the final and entire agreement between the parties regarding the subject of this Agreement and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms of any purchase order or similar document submitted by you to SalesPad will have no effect. If the terms of this Agreement conflict with an Order Form, the Guide, or Documentation, then the terms of this Agreement will control.
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