BOONPLUS, LLC Web-Based Application Services Agreement####IMPORTANT-READ THIS BOONPLUS, LLC (“BOONPLUS”) WEB-BASED APPLICATION SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING. BY CLICKING THE "I ACCEPT" BUTTON, ACCEPTING THIS AGREEMENT THROUGH AN ORDERING PROCESS THAT INCORPORATES THIS AGREEMENT, OR OTHERWISE INSTALLING, ACCESSING OR USING ANY APPLICATIONS OR SERVICES OFFERED BY BOONPLUS HEREUNDER, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICES. THIS AGREEMENT IS EFFECTIVE WHEN YOU CLICK “I ACCEPT” BELOW (THE “EFFECTIVE DATE”).####This Agreement was last updated on May 07, 2012.####A. Applicability of the Agreement####This Agreement governs your access to and use of the BoonPlus web-based applications and services identified during the ordering process, associated documentation, software code and other materials and services made available by BoonPlus (collectively referred to in this Agreement as the “Services”). This Agreement applies to any updates, supplements or support for the Services, unless other terms accompany such updates, supplements or support, in which case such other terms apply. ####B. License and Access####Upon BoonPlus’s acceptance of your order (the “Order”) for the Services and for the duration of the term of Services defined in any Order, BoonPlus grants you a nonexclusive, non-transferable, limited right to access and use the Services solely for your internal business operations and subject to the terms of the Agreement. Unless otherwise specified in the Order, Services are purchased as User-based subscriptions and access and use of the Services is limited to the number of Users set forth in the Order. If you wish to add additional Users (“Additional Users”), you must submit a new Order (“New Order”) (New Orders and Orders are collectively referred to herein as an Order). Upon BoonPlus’s acceptance of the New Order, BoonPlus shall make the Services available to the Additional Users on the terms and conditions set forth in this Agreement, the Order and the New Order. You are responsible for your Users’ compliance with the Agreement. For purposes of this Agreement, a “User” shall mean any individual that you authorize on your behalf to access and use the Services as defined in the Order (a “User”). BoonPlus and its licensors reserve all rights not expressly granted to you in this Agreement. ####You acknowledge that BoonPlus has no delivery obligation and will not provide physical copies of any BoonPlus web-based applications, documentation or other materials to you as part of the Services. You agree that you do not acquire under the Agreement any license to use any BoonPlus web-based applications specified in the Order in excess of the scope and/or duration of the Services. Upon the end of the Agreement or the Services thereunder, your right to access or use the BoonPlus web-based applications specified in the Order and the Services shall terminate.########You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. ####C. General Restrictions on Access and Use####You may not, nor allow any third party to,: (i) decompile, disassemble, or reverse engineer the Services, except to the extent expressly permitted by applicable law, without BoonPlus's prior written consent; (ii) remove or modify any product identification or proprietary rights notices of the Services; (iii) license, lease, lend, distribute, transfer, access or use the Services for any timesharing or service bureau purposes ; (iv) transfer, assign, license, sublicense, distribute, reproduce, display, transmit or otherwise commercially exploit or make the Services available to any third party not authorized by BoonPlus; (v) modify or create derivative works of the Services, (vi) otherwise access, use, copy or interfere with the performance or integrity of the Services in any manner not consistent with their intended use, this Agreement or the Order, or (vii) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.####Third party technology that may be appropriate or necessary for use with all or a portion of the Services is specified in the Services documentation and/or Order. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by BoonPlus and not under the Agreement. ####D. Security and Your Data ####You acknowledge and agree that in order to provide the Services to you, you must allow the Services brief but periodic access to your Salesforce.com account to retrieve, manipulate, process, and/or modify the information (including without limitation personally identifiable information) provided, made available or submitted by you in connection with use of the Services or retrieved from your Salesforce.com account by the Services (“Data”). You expressly consent to the Services’ accessing your Salesforce.com account to process your Data solely as is necessary to provide the Services. If the Services cannot for any reason access your Salesforce.com account or otherwise access and process your Data, BoonPlus may not be able to provide you the Services, and BoonPlus will be excused from any nonperformance of Services arising from the Services’ inability to access to your Salesforce.com account or otherwise access and process your Data. You acknowledge that to provide the Services, your Data leaves the Salesforce.com system. Salesforce.com is not responsible for your Data when it is outside of the Salesforce.com system. ####BoonPlus maintains and operates the Services at and through reputable third party service providers and hosting facilities and that access and use of the Services may require transmission of your Data over the Internet. BoonPlus does not control, and has no responsibility or liability for, security or other issues caused by those third party service providers and hosting facilities, including Salesforce.com. You acknowledge and agree that use of or connection to the Internet in use of the Services provides the potential opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and your Data. ####BoonPlus does not own nor store your Data. You are solely responsible for your Data including without limitation the accuracy, quality, integrity, legality, reliability, appropriateness of the foregoing, and obtaining any ownership of or right to use the foregoing. You will not provide, post or transmit any Data that: (i) infringes or violates any intellectual property rights or publicity/privacy rights of another or any other law or regulation; or (ii) contains any viruses or programming routines, macros, or other elements that may damage, surreptitiously intercept or expropriate any system, data or personal information. BoonPlus may take remedial action, including immediate suspension of your access to the Services, if your Data violates this Agreement. BoonPlus is under no obligation to review your Data for accuracy or potential liability. ####E. Ownership of Intellectual Property ####BoonPlus or its licensors retain all ownership and intellectual property rights to the Services and any BoonPlus web-based applications. BoonPlus retains all ownership and intellectual property rights to anything developed and delivered under the Agreement. ####You retain all ownership and intellectual property rights in and to your Data. You grant to BoonPlus all necessary licenses and rights in and to your Data solely as necessary for to provide the Services to you or as required by law. You will be solely responsible for providing all Data required for the proper operation of the Services. BoonPlus will not knowingly use or access your Data except as necessary to provide the Services or as otherwise authorized by you. ####F. Support ####BoonPlus will use commercially reasonable efforts to provide you with technical assistance relating to your use of the Services, including (i) a basic question related to the use or configuration of the Services where the use or configuration is consistent with guidance provided in applicable documentation for the Services, (ii) a reproducible non-conformity in the Services causing the Services not to operate in substantial conformance with the applicable documentation for the Services and (iii) otherwise at the discretion of BoonPlus (each a “Support Incident”). Technical assistance for Support Incidents related to remedying a reproducible non-conformity in the Services causing the Services not to operate in substantial conformance with the applicable documentation for the Services, as determined by BoonPlus at its discretion, will be provided at no charge. For all other technical assistance, BoonPlus will use commercially reasonable efforts to provide you with technical assistance for three (3) Support Incidents per year at no charge or as otherwise set forth in the Order or at the discretion of BoonPlus. You will incur a charge for all other technical assistance provided by BoonPlus at its then current customary rates for such technical assistance. To receive technical assistance, you must email support@boonplus.com.####You acknowledge that the Services are dependent on availability of and proper performance of third party services, software, and Internet technology, including Salesforce.com, and we are not liable for performance issues or downtime of the Services to the extent caused by such technology. You are solely responsible for providing, at your own expense, all network access to the Services, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Services. ####G. Fees ####You agree to pay for all Services ordered as set forth in the applicable Order. BoonPlus can modify its fees for use of the Services by providing you at least 30 days prior notice before the next renewal term of the Agreement. BoonPlus’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on BoonPlus’s income. All amounts are quoted in and you must pay all amounts owed in U.S. Dollars. ####BoonPlus will issue an invoice to you on or before the Effective Date and at least 30 days before the subsequent anniversary of the Effective Date for renewal terms, or as otherwise quoted. All amounts described in the invoice are due within 15 days of your receipt of the invoice. If you have provided BoonPlus with valid and current credit card information, you authorize us to charge such credit card for all Services listed in the Order for any initial subscription and renewal terms. All payment obligations are non-cancelable and all amounts paid are nonrefundable. If you add Additional Users (or allow use of the Services by more than the paid-for number of Users), BoonPlus may invoice you for any additional applicable fees. If you believe your bill is incorrect, you must contact us in writing within 15 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. You must provide BoonPlus with complete and accurate billing and contact information in connection with any request for an adjustment or credit. ####In addition to any other rights granted to BoonPlus herein, BoonPlus reserves the right to suspend your access to and use of the Services if you fail to pay any undisputed amount owed on or before its due date. Overdue amounts are subject to a late charge of 1.5% per month, or the maximum permitted by law, whichever is less, plus all expenses of collection, including reasonable attorneys’ fees. If you or BoonPlus initiates termination of this Agreement, you will be obligated to pay the balance due on your account. BoonPlus reserves the right to impose a reconnection fee in the event the Services are suspended. ####You agree that you have not relied on the future availability of any Services, programs or updates in entering into the payment obligations in the Order; however, the preceding does not relieve BoonPlus of its obligation to deliver Services that you have ordered per the terms of the Agreement.####H. Confidentiality####By virtue of the Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Each party agrees during the term of this Agreement and thereafter to take all steps necessary to hold in trust and confidence Confidential Information of the other and to protect such Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own confidential or proprietary information of a similar nature and, in any event, with no less than reasonable care. Confidential Information includes, but is not limited to, the Services, your Data, technical and business information relating to our respective inventions or products, research and development, production, manufacturing and engineering processes, costs, customers, marketing and production and recent and future business plans and information that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary by the disclosing party. No party receiving Confidential Information of the other party will disclose such Confidential Information to anyone other than such personnel of the receiving party who have a need to know such Confidential Information for performing or receiving Services hereunder and will not use such Confidential Information for any purpose other than performing or receiving Services provided hereunder or enforcing its rights or exercising its obligations under this Agreement. Each party’s obligations with respect to Confidential Information also extend to any third party's proprietary or confidential information disclosed in the course of providing or receiving Services.####Notwithstanding the other provisions of this Agreement, nothing received by a party will be considered to be Confidential Information if the receiving party can demonstrate that: (i) it has been published or is otherwise generally available to the public other than by a breach of this Agreement; (ii) it has been rightfully received by the receiving party from a third party without confidentiality limitations; (iii) it was known to the receiving party prior to its first receipt from the disclosing party; or (iv) was independently developed by receiving party without reference to Confidential Information of the disclosing party and separate from the Services provided under this Agreement.####In addition, the receiving party will be allowed to disclose Confidential Information of the disclosing party to the extent that such disclosure is (i) approved in writing by the disclosing party, (ii) necessary for the receiving party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the receiving party notifies the disclosing party of such required disclosure promptly and in writing and cooperates with the disclosing party, at the disclosing party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.## ##I. Term and Termination####This Agreement commences on the Effective Date and will continue for an initial period as set forth in the Order (“Initial Term”) unless terminated earlier as allowed in this Agreement. Upon the expiration of the Initial Term, the term of this Agreement will automatically extend for successive terms of the same length as the Initial Term at BoonPlus’s then-current fees, provided that either party may terminate this Agreement or reduce the number of Users, effective upon the expiration of the Initial Term or the then-current extension period, by notifying the other party in writing at least 30 business days prior to the expiration of the Initial Term or then-current extension term, as applicable. In the case of free trials, notifications provided through the Services indicating the remaining number of days in the free trial shall constitute notice of termination. BoonPlus reserves the right to terminate any trial period, at any time without notice. ####If you are in breach of this Agreement, BoonPlus may suspend your access to and use of the Services (i) immediately without notice if you are using the Services in any manner that BoonPlus, in its sole discretion, believes is or may be degrading or disrupting to the Services or (ii) if you fail to cure a breach of any other obligation within 10 days of receiving notice of the breach from BoonPlus. Additionally, either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach within 30 days after written notice of such breach. Upon the termination of this Agreement for any reason: (a) any amounts owed to BoonPlus by you under this Agreement before such termination will become immediately due and payable; (b) each party will return to the other all property of the other party in its possession or control, and (c) BoonPlus will terminate your access to or use of the Services. The rights and duties of the parties under Sections C, D, E, F, G, H, I, J, K, L, M, N, O, and P will survive the termination or expiration of this Agreement. ####J. Warranties, Disclaimers, Limitation of Liability and Exclusive Remedies ####BoonPlus warrants that, during the term of the Services, the Services will be performed and be provided in a manner consistent with generally accepted industry standards. The preceding warranty will not apply if: (i) the Services are not used in accordance with this Agreement; (ii) the Services or any part thereof has been modified by any entity other than BoonPlus; or (iii) a malfunction in the Services has been caused by any equipment, service or software not supplied by BoonPlus. If the Services provided to you for any given month during the Services term were not performed as warranted, you must provide written notice to BoonPlus no later than ten business days after the last day of that particular month. ####TO THE EXTENT PERMITTED BY LAW, BOONPLUS'S (INCLUDING ITS SUPPLIERS') SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE ABOVE WARRANTY SHALL BE LIMITED TO RE-PERFORMANCE OF THE SERVICES, UNLESS, IN BOONPLUS'S OPINION, SUCH RE-PERFORMANCE WOULD BE INADEQUATE OR IMPRACTICAL, THEN YOU WILL HAVE THE RIGHT TO TERMINATE YOUR ACCESS TO THE SERVICES AND REQUEST A REFUND OF THE UNUSED PORTION OF THE FEES PAID BY YOU FOR THE SERVICES. BOONPLUS DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT BOONPLUS WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT BOONPLUS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BOONPLUS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.####EXCEPT FOR WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL SERVICES TO BE PROVIDED BY BOONPLUS HEREUNDER ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER, AND BOONPLUS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, TERMS OR CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, INCLUDING ANY, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, REGARDING THE SERVICES PROVIDED HEREUNDER SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF BOONPLUS WHATSOEVER. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.####IN NO EVENT SHALL BOONPLUS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUE OR SAVINGS, OR THE LOSS OF USE OF ANY DATA, EVEN IF BOONPLUS HAS BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, , IN NO EVENT SHALL BOONPLUS’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY OR OTHERWISE, SHALL EXCEED THE TOTAL AMOUNT OF COMPENSATION PAID OR PAYABLE TO BOONPLUS PURSUANT TO THIS AGREEMENT.####TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.####K. Free or Trial Use Services ####If specified in the Order, you may order certain Services for free or for trial, nonproduction purposes subject to the terms and conditions of the Agreement. Services acquired for free or for trial purposes are provided “as is” and BoonPlus does not offer any warranties for such Services. ####L. Indemnification ####You shall indemnify and hold BoonPlus, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim arising from or related to BoonPlus’s access to, or possession, manipulation, processing, or use of the Data as is necessary to provide the Services. ####If any action is instituted by a third party against you based upon a claim that the Services, as provided, infringe a United States patent, copyright or trademark, then BoonPlus will defend such action at its own expense on behalf of you and will pay all damages attributable to such claim which are finally awarded against you or paid in settlement of such claim, if you do the following:####• notify BoonPlus promptly in writing, not later than 30 days after you receive notice of the claim (or sooner if required by applicable law);##• give BoonPlus sole control of the defense and any settlement negotiations; and##• give BoonPlus the information, authority, and assistance BoonPluss needs to defend against or settle the claim. ####BoonPlus may, at its option and expense, and as your exclusive remedy hereunder: (a) procure for you the right to continue using the Services; (b) replace or modify the Services so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and your access to the Services and refund any amounts previously paid for the Services attributable to the remainder of the then-current term of this Agreement. BoonPlus will have no liability to you for any infringement action that arises out of a breach of the terms and conditions of this Agreement by you or of the use of the Services (i) after it has been modified by you or a third party without BoonPlus’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by BoonPlus where the combination is the basis for the infringing activity. THIS SECTION SETS FORTH THE ENTIRE OBLIGATION OF BOONPLUS AND YOUR EXCLUSIVE REMEDY AGAINST BOONPLUS OR ANY OF ITS SUPPLIERS FOR ANY INFRINGEMENT CLAIM. ####M. Entire Agreement ####You agree that the agreement (including the information which is incorporated into the Agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the Services ordered by you, and that the Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services, including any previously accepted electronic versions hereof. If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement. It is expressly agreed that the terms of the Agreement, including any Order, shall supersede the terms in any purchase order issued by you or other non-BoonPlus document and no terms included in any such purchase order or other non-BoonPlus document shall apply to the Services ordered. The Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online by authorized representatives of you and of BoonPlus. ####N. Export####Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Services. You agree that you shall comply with such export laws and regulations in providing and using the Services. Without limiting the foregoing, (i) you represent that you are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) you shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction. ####O. General Provisions####This Agreement shall be governed by and construed in accordance with the laws of California without giving effect to any conflicts of laws principles that would require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between you and BoonPlus. The failure of BoonPlus to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by BoonPlus in writing. All notices, required or permitted under this Agreement must be delivered in writing by courier, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in the Order. Notice hereunder will be effective (a) upon receipt or 3 days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner, or (b) if delivered by email, upon receipt of email if delivered by email with a fax confirmation sent on the same day. Any notice to BoonPlus must be delivered to BoonPlus LLC, P.O. Box 2086, Sunnyvale, CA 94087-0086 www.boonplus.com. Except for nonpayment or breach of BoonPlus’s proprietary rights in the Services, no action, regardless of form, arising out of this Agreement may be brought by either party more than 2 years after a party knew or should have known of the claim####P. Customer Reference ####You agree (i) that BoonPlus may identify you as a recipient of Services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by BoonPlus on BoonPlus.com for promotional purposes.
