PLEASE REVIEW THIS END USER SERVICES AGREEMENT (THIS "AGREEMENT") CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU ("YOU" OR "CUSTOMER") AND OUTSIDE IN SALES & MARKETING LTD ("OISM" OR "WE") WITH RESPECT TO YOUR USE OF OISM'S SOFTWARE, SERVICES AND APPLICATIONS (THE "SERVICES"). BY USING THE SERVICES, YOU AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU WILL NOT BE ALLOWED TO USE THE SERVICES.##1. Services. The Services provide customers with an application to support the management of sales activity in Salesforce. The use of the application is for internal use only. The Customer agrees that the Services are used only for Customer's business purposes. ##2. Site and Policies. During the Term (as defined below) and subject to the terms and conditions set forth herein and in any guidelines, rules or operating policies that we may establish and post from time to time on http://www.dealsheet.oism.co.uk ("the "Site") each of which is incorporated herein by reference (collectively, the "Policies"), OISM agrees to use commercially reasonable efforts to provide Customer with the Services. From time to time, OISM may modify the terms and conditions set forth in this Agreement and/or in the Policies. All such changes shall become effective once posted on the Site, and Customer's use of the Services thereafter shall be subject thereto. In the event of any conflict between any term or condition set forth in this Agreement and in a Policy, the former shall govern. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by OISM with respect to future functionality or features.##3. Free Trials. Trials can be arranged by agreement between Customer and OISM. In the event Customer is permitted to use the Services on a trial basis, Customer will not be billed for such use for a period equal to thirty (30) days or, if a different number of days are posted on the AppExchange through which Customer subscribes to use the Services, that different number of days, beginning on the date on which Customer first subscribes to use the Services and indicates its agreement with the terms and conditions set forth in this Agreement (the "Trial Period"). Once Customer completes its free trial period the Trial Period will terminate. Upon such termination, Customer may purchase a subscription for the Services. Customer's access to the Services will be disabled until payment therefore is received. OISM reserves the sole and exclusive right to modify the duration of the Trial Period.##4 Purchase. Pricing for the Service is based upon the number of users that Customer chooses to purchase as indicated on the agreed sales order (the "Sales Order"). The Sales Order records Customer's user commitment, term and other account information. If the number of users exceeds the level set forth in the Sales Order, Customer access to and use of the Services may be disabled until Customer: (i) reduces the number of users; or (ii) upgrades its user level. Customer may upgrade (but not downgrade) Customer user level at any time during the term of this Agreement.##5 Fees and Payment. In consideration for the Services to be provided by OISM, Customer agrees to pay the subscription fees in advance for the term set forth in the Sales Order (the "Subscription Fees"). Paid Subscription Fees are non-refundable. The Fees shall include all applicable taxes payable with respect to this Agreement. If Customer is paying for the Services by credit card and such credit card is declined, OISM will send Customer notice thereof to Customer's email address on record.##6 Late Payment. In the event Customer fails to make timely payments when due, OISM may, at its election, discontinue, terminate or suspend the Services, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Fees until this Agreement is terminated in accordance with the termination provisions set forth herein. If Customer misses a payment, OISM may notify Customer by phone or mail, but has no obligation to do so. Any payment due and not received by OISM by the due date may be subject, at OISM’s sole discretion, to a late fee equal to 8% above Barclays base rate (or the maximum rate permitted by law) of the amount then due, for each month overdue until paid in full. For amounts outstanding after ninety (90) days from its receipt of the invoice therefore, Customer shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to, legal fees and expenses. From time to time, and at any time, OISM may require reasonable credit guarantees before continuing its provision of the Services hereunder. ##7. Customer Information. OISM collects certain personal and business-related information about its Customers, which generally includes, but is not limited to, contact information and payment information (the "Customer Information"). OISM collects such information in order to provide the Services and related technical support. If you have provided your Customer Information, OISM may contact you for marketing purposes by various means, including, but not limited to, regular mail, email or telephone.##8. Data Disclosures. Except as otherwise set forth herein, OISM does not disclose, sell or rent Data or Customer Information (collectively, the "Data"), without Customer's prior consent or unless required by order or other requirement of a court, administrative agency, or other governmental body or applicable law. Customer expressly permits OISM to disclose the Data to OISM personnel who access and manage the Data in connection with the Services.##9. Passwords. In connection with OISM’s provision of the Services, we will send to Customer's email address (as designated by Customer on registration to our support site) , information such as user-IDs and/or passwords which will enable Customer to access to our support site (the "Passwords"). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify OISM promptly if there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer's negligence or intentional misconduct. Any unauthorized use of the Passwords by Customer will constitute a material breach of this Agreement.##10. Proprietary Rights. This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services, the Professional Services, and in any applications developed, owned or controlled by OISM (as applicable) (the "Software"), and the Services, are and shall remain the sole and exclusive property of OISM. Accordingly, Customer acknowledges that, as between OISM and Customer, OISM owns all right, title and interest in and to the Software and the Services, including, without limitation, all UK, United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer acknowledges that the Software contains proprietary information and trade secrets of OISM. Customer will not take any actions inconsistent with OISM ownership of each of OISM’s rights in and to the Software. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including, without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by OISM. If you are using the Services in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.##11. Use of Services. Customer acknowledges and agrees that it will use the Services only to access, employ, utilize, or display the Software solely for Customer's "internal business purposes" by Customer's employees or by independent contractors hired by Customer. ##12. No Tampering. Customer agrees that it will not remove, disable, modify or attempt to remove, disable or modify the footer information except as otherwise expressly permitted in writing by OISM. ##13. Confidential Information. Each of OISM and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). For purposes hereof, "Confidential Information" means any information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") that relates to such Disclosing Party's business affairs, internal operations, personnel, subscribers, customers, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party's possession prior to receipt of the same hereunder, as evidenced by the Receiving Party's prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law; (iv) can be proven by competent written evidence to have been independently developed by the Receiving Party; or (v) is approved in writing for release by the Disclosing Party. For purposes hereof, Customer Recipient Data and Customer Information are considered Customer's Confidential Information. Nothing set forth herein shall be construed to prohibit OISM from disclosing Customer's Confidential Information to any third party that has a need to know such information in connection with its performance of the Services. From time to time, OISM may be required to disclose Customer's Confidential Information by order or other requirement of a court, administrative agency, or other governmental body or applicable law, as determined by OISM or its legal counsel. In such event, Customer hereby permits OISM to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this Section 13.##14. Disclaimer of Warranties. THE SERVICES (AND THE PROFESSIONAL SERVICES, AS APPLICABLE) ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OISM AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS, AGENTS, DEALERS AND SUPPLIERS (COLLECTIVELY, THE "REPRESENTATIVES") DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICES OR THE PROFESSIONAL SERVICES. THE REPRESENTATIVES DO NOT WARRANT THAT THE SERVICES OR THE PROFESSIONAL SERVICES WILL MEET CUSTOMER'S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE SERVICES OR THE PROFESSIONAL SERVICES.##15. Limitation of Liability. IN NO EVENT WILL OISM OR ANY REPRESENTATIVE BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICES (OR THE PROFESSIONAL SERVICES, IF APPLICABLE), OR TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF OISM OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL OISM OR ANY REPRESENTATIVE'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT, THE SERVICES, OR THE PROFESSIONAL SERVICES, EXCEED THE ACTUAL FEES CUSTOMER PAID TO OISM FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION GIVING RISE TO THE CLAIM, LOSS, OR DAMAGE. No claim may be asserted by Customer against OISM more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or OISM’s non-provision, of the Services (or the Professional Services as the case may be), Customer's sole and exclusive remedy shall be for OISM to use commercially reasonable efforts to repair or provide the Services (or the Professional Services as the case may be).##16. Indemnification. Customer agrees to indemnify, defend and hold harmless OISM, the Representatives, and its and their respective affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising from: (i) Customer's acts or omissions; (ii) Customer's violation of any applicable law, or the Policies; (iii) Customer's breach of any term or condition set forth in this Agreement (including in the Policies); (iv) Customer's breach of any of its representations or warranties set forth herein; and/or (v) Customer's infringement or misappropriation of any intellectual property rights or other rights of any person or entity.##17. Term and Termination. The Sales Order determines the initial term (the "Initial Term") of your Agreement. Upon expiration of the Initial Term, this Agreement will automatically renew for successive terms equal to the same period of time as the Initial Term (each, a "Successive Term," together with the Initial Term, the "Term"), and you will continue to be billed for the Fees until this Agreement is terminated in accordance with the terms and conditions set forth herein. Sixty (60) day’s notice must be given for termination prior to the end of the term otherwise the invoice will be raised automatically for the next term . At any time during the Term, either Customer or OISM may terminate this Agreement for any reason. If Customer desires to terminate this Agreement, Customer may request a termination by contacting OISM at support@oism.co.uk, Monday to Friday, between the hours of 8:00 a.m. (GMT) and 12:00 a.m. (GMT) (a "Valid Termination Notice"). Customer acknowledges that allowing a credit card to expire or failing to submit payment by check does not constitute a Valid Termination Notice. Any Customer termination request that occurs in the middle of a payment period (whether monthly, quarterly or annually, as set forth in the Sales Order) will be made effective on the final day of such term. OISM may terminate this Agreement immediately effective upon delivery to Customer of notice thereof. Such right to terminate this Agreement shall include OISM’s right to terminate its provision of the Services and to pursue all available equitable and legal remedies (in the event Customer breaches any term or condition, or any of its representations or warranties set forth herein). Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay OISM Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be. ##18. Arbitration. Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by arbitration. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. ##19. Relationship. This Agreement does not create a partnership, joint venture or agency relationship between OISM and Customer. Customer does not have any right, power, or authority to act as a legal representative of OISM.##20. Assignment. Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of OISM. Any such transfer, assignment, sublicense or delegation without consent will be null and void.##21. Severability. In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.##22. Survival. The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.##23. Entire Agreement. This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between OISM and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the OISM and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement. At any time prior to, or during, its use of the Services, Customer may enter into certain other agreements with OISM which are subject, expressly or otherwise, to the terms and conditions set forth in this Agreement. In the event of any conflict between a term or condition set forth therein and herein, the term or condition which most favours OISM, as determined by OISM, shall govern.##24. No Waivers. OISM’s failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.##25. Notice. OISM may provide Customer with general notice by electronic mail to Customer's e-mail address of record, or by written communication sent by first class mail or pre-paid post to Customer's address of record, or to such other address designated by Customer and communicated to OISM in accordance with the notice delivery provisions of this Section 25. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by electronic mail. Except as otherwise provided herein, Customer must give notice to OISM (such notice shall be deemed given when received by OISM) by using one of the following means: (i) letter delivered by a nationally recognized overnight delivery service; or (ii) by first class postage, return receipt requested, prepaid mail to OISM; in either event, to the following address: OISM, 96 High Street, Henley in Arden, B95 5BY, United Kingdom. Not withstanding the foregoing, Customer must adhere to the terms and conditions set forth in Section 17 above to provide OISM with notice of its intention to terminate this Agreement. Either Customer or OISM may designate a different mailing address for notice delivery by providing the other party with such different address in accordance with the notice delivery provisions of this Section 25.##26. Consent to Use of Electronic Signatures and Records. As a convenience and courtesy to you, OISM may provide access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree to the terms and conditions set forth in any agreement posted on the Site: ##o you agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;##o you have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, the Policies and any amendments hereto or thereto;##o you agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;##o you are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto; and##o you agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.##If you wish to withdraw this consent, please contact us at support@oism.co.uk in which case OISM shall have the right to terminate your use of the Services.##27. Miscellaneous. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by OISM and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third party beneficiaries.
