TRACTION COMPLETE####STANDARD TERMS AND CONDITIONS####THIS IS A LEGAL AGREEMENT BETWEEN TRACTION SALES AND MARKETING INC. (“TRACTION”) AND YOU. THIS AGREEMENT GOVERNS YOUR USE OF THE APP. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU ARE NOT AUTHORIZED TO USE THE APP. YOUR USE OF THE APP SHALL CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS. ##WHEREAS:##Traction has developed a software application that improves and enhances D&B data by automatically compiling certain information from the Dunn & Bradstreet database and presenting it in a visual account hierarchy form for use by End Users. ##AGREEMENT:##In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Traction and You agree as follows:##1. Definitions. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:##a. “Affiliate” means, with respect to a party, any person, partnership, joint venture, corporation, or other entity, that directly or indirectly controls, is controlled by or is under common control with such party.##b. “Agreement” means this Agreement between Traction and You.##c. “Anti-Spam Legislation” means all applicable legislation regulating the use and misuse of electronic messages and marketing e-mails.##d. “App” means the software application described as Traction Complete (or a similar name or derivation thereof) including any updates, upgrades, patches, bug fixes, modifications, enhancements and features that may be added or removed by Traction from time to time and including all written information, documentation, and materials provided to You in respect of same.##e. “End User” means each of Your employees, consultants, contractors, partners, representatives, agents, or other individuals who is authorized by You to use the App in accordance with this Agreement and for whom a Salesforce License has been properly obtained.##f. “Fees” means the aggregate of all fees payable by You to Traction for the use of the App in accordance with this Agreement, plus all duties, levies, and taxes in association with such fees.##g. “Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), algorithms, tool-kits, technology, widgets, formulae, programs, concepts, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes. ##h. “Intellectual Property Rights” means all copyrights, moral rights, rights associated with works of authorship, trademark rights, trade name rights, trade secret rights, patent and industrial property rights (whether registered or not), and other proprietary rights, in Intellectual Property.##i. “Premium Clean Service License” means a data.com site-wide license for users to access the Premium Clean Service.##j. “Salesforce” means Salesforce.com, Inc., and includes the Salesforce.com software as a service (SaaS) platform and Data.com.##k. “Salesforce License” means a single Enterprise or Performance Edition license for a single user to use Salesforce. ##l. “You” or “Your” means the party entering into this Agreement with Traction and includes the person, entity, or organization having control of the use of the App by End Users and any successor or assignee of same. The person agreeing to this Agreement represents and warrants that he/she is authorized to enter into this Agreement on behalf of the party, entity, or organization using the App. ####2. Use and License. You and Your Affiliates may use the App only in and for Your and Your Affiliates own internal purposes and business operations and for End Users, all for whom a Salesforce License has been purchased. You may only use the App for End Users during the currency of their Salesforce License. You may not use the App as a service for any third party. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the App, in whole or in part, is granted except as expressly provided by this Agreement. You shall not, and you shall not permit any End Users or Affiliates to, modify, copy, create derivative works from, reverse engineer, decompile or disassemble the App. Nothing in this Agreement will entitle You or any of Your End Users or Affiliates to access or use the source code of the App. Notwithstanding any other term or condition contained herein, in no case may You use or authorize End Users to use the App in any manner or for any purpose that is beyond the scope of Your or Your End Users’ Salesforce License(s) or Your Premium Clean Service License. All restrictions on Your use and End Users’ use of the Premium Clean Service shall apply to Your use of the App and the Data.com Information. You shall not download or use the App, and if downloaded You shall immediately uninstall and destroy the App if Your download, installation or use of the App is prohibited under applicable laws. Traction reserves the right to deny You or any End Users access to the App at any time, provided that in such a case, you will not be charged Fees for those End Users for whom use of the App has been denied in a given monthly period. ####3. Your Responsibilities. You are responsible for all of Your use (including use by End Users) of the App. You shall: ##a. Take commercially reasonable actions to prevent unauthorized access to, or use of, the App, and notify Traction promptly of any such unauthorized access or use and if such unauthorized access or use results in additional fees payable by Traction for use of the Premium Clean Service, you shall pay such amounts forthwith to Traction on demand; ##b. comply with all applicable local, state, provincial, federal and foreign laws in using the App, including without limitation all applicable laws and regulations in marketing activities, and the Anti-Spam Legislation. You shall not use the App to engage in any deceptive, misleading, illegal or unethical marketing activities or activities that otherwise may be detrimental to Traction or to Salesforce; and ##c. not attempt to gain unauthorized access to the App. ####4. Support. You shall direct all support queries with respect to the App to Traction and not to Salesforce. Traction will provide reasonable telephone, web-based, and / or e-mail technical support to You during normal business hours (Pacific Standard Time) on such terms and conditions as Traction reasonably determines, in its sole discretion. Traction will make reasonable efforts to respond to Your support queries within one business day of Traction’s receipt of a support query. In the event You request services that extend beyond support for the use of the App in its current form, including, without limitation, changes to the design, use, or functionality of the App or upgrades, improvements, modifications, features, changes, customizations, increased functionality, or additions to the App (collectively, “Extended Support”), Traction shall have the option, but not the obligation, to provide Extended Support and in such a case, the parties will enter into an Extended Support Agreement on terms and conditions reasonably satisfactory to the parties. Such Extended Support Agreement will include terms and conditions customary for Extended Support, including fees or method of calculating fees, specifications of Extended Support, exclusions (if any), and method and manner of providing Extended Support. ##5. Confidentiality. The App and any other information provided to You by Traction incorporate confidential and proprietary information developed by, acquired by, or licensed to Traction or an Affiliate of Traction (“Confidential Information”). You will take (and will cause Your Affiliates and End Users to take) all reasonable precautions necessary to safeguard the confidentiality of the Confidential Information. Neither You nor any of Your Affiliates will make any unauthorized use of the Confidential Information or disclose, in whole or in part, any part of the Confidential Information to any individual or entity, except to those of Your employees or consultants who require access for Your authorized use of the Confidential Information and who agree to comply with the use and nondisclosure restrictions applicable to the Confidential Information under this Agreement. You acknowledge that any unauthorized use or disclosure by You or any of Your Affiliates of the Confidential Information may cause irreparable damage to Traction. If Traction becomes aware of Your breach or threatened breach of this section, Traction may suspend any and all rights granted to You under this Agreement and shall be entitled to injunctive relief, in addition to all legal or equitable relief that may be available to Traction. In all cases, You shall use the same degree of care to protect the Confidential Information as You use to protect Your own information of a confidential and proprietary nature, but in no event shall You use less than a reasonable degree of care. Confidential Information shall not include information which: (a) is or becomes known publicly without Your breach of this Agreement; or (b) was otherwise lawfully known, received or independently developed by You without breach of this Agreement. ####6. Indemnification.####6.1 Indemnification by You. You shall defend, indemnify, and hold Traction and its directors, employees, Affiliates and licensors harmless against any loss, damage, or cost (including reasonable attorneys’ fees) incurred in connection with a claim, demand, suit, or proceeding alleging that Your Use of the App has harmed a third party or infringes upon the privacy rights of a third party or is in violation or alleged violation of any Anti-Spam Legislation or does not comply with applicable local, state, provincial, federal and foreign laws, including without limitation all applicable laws and regulations in marketing activities and the Anti-Spam Legislation, provided You are notified in writing by Traction as soon as reasonably practicable as to any such claim. Traction shall provide reasonable information, cooperation and assistance in defending any such claim. ####6.2 Indemnification by Traction. Traction shall defend, indemnify, and hold You, your directors, officers, and employees, and Your Affiliates and Your Affiliates’ directors, officers, and employees harmless against any loss, damage, cost, claim, and any lawsuit to the extent based thereon, that is brought by a third party against You alleging that the App infringes any patent, trade secret, copyright or other Intellectual Property Rights (“Infringement Claim”), so long as Traction is notified in writing by You as soon as reasonably practicable as to any such claim. You shall provide reasonable information, cooperation and assistance in defending the Infringement Claim. ####7. Representations And Warranties. You represent and warrant as follows:##a. That You have all necessary Salesforce Licenses and Premium Clean Service License(s) as may be required in order to use the App for each End User; and##b. That You shall not use the App in a manner that violates any international, federal, provincial, state, or local law or regulation relating to individual privacy, including but not limited to the Anti-Spam Legislation.##8. Outage Policy. YOU ACKNOWLEDGE AND UNDERSTAND THAT TRACTION DOES NOT WARRANT THAT THE APP WILL BE UNINTERRUPTED OR ERROR FREE AND THAT TRACTION MAY OCCASIONALLY EXPERIENCE DISRUPTION DUE TO INTERNET DISRUPTIONS OR DISRUPTIONS IN THE AVAILABILITY OF THE PREMIUM CLEAN SERVICE OR SALESFORCE SERVICES THAT ARE NOT WITHIN TRACTION’S CONTROL. ANY SUCH DISRUPTION SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT. ##9. Ownership. All Intellectual Property Rights in the App or made available or disclosed to You in the provision of the App are and shall remain the sole and exclusive property of Traction and except for the limited license to use the Intellectual Property as part of Your use of the App in accordance with this Agreement, no right, title, or interest is granted in the Intellectual Property. Traction and its Affiliates shall own all rights, title and interest, including all Intellectual Property Rights, in and to any improvements to the App or any new programs, upgrades, modifications or enhancements thereto, even when such refinements and improvements result from Your requests or comments. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Traction or its Affiliates by virtue of this Agreement or otherwise, You hereby transfer and assign (and, if applicable, shall cause Your Affiliates and End Users to transfer and assign) to Traction all rights, title, and interest which You or any of Your Affiliates or End Users may have to such refinements and improvements. ##10. Fees and Payment Terms.##You shall pay all Fees for Your use of the App in advance, promptly when due in accordance with the following: ##a. All Fees will be billed monthly or yearly, based on a subscription model, on the first day of the month or the year, as applicable, of the subscription term; ##b. Fees are based on the number of End User Salesforce Licenses being used to access the App;##c. In the event you increase the number of End Users who access the App during a subscription term, you must immediately notify Traction and Traction may, at its sole discretion, increase the Fees to correspond to the increased number of End Users;##d. All Fees will be billed and paid through a third party credit card processor in accordance with such third party’s standard terms and conditions, unless otherwise agreed to between the parties in writing;##e. Failure to pay Fees shall constitute a material breach of this Agreement;##f. All outstanding amounts owing under this Agreement will incur interest at a rate of 1.5 percent per month (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), commencing on the due date, calculated monthly, until such time as they are paid in full; ##g. You are solely responsible for payment of any goods and services taxes, sales taxes, value added taxes, and excise taxes, as applicable, resulting from your use of the App; and##h. Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in U.S. Dollars (USD), unless otherwise agreed to between the parties in writing.####11. Term and Termination.##a. This Agreement shall commence on the earlier date of (a) Your acceptance of this Agreement; and (b) delivery or download or first use of the App (the “Commencement Date”), and shall continue for one year (the “Initial Term”) unless otherwise agreed to between the parties, in writing, or unless otherwise terminated earlier by either party pursuant to this Agreement. Unless otherwise agreed to between the parties in writing, at the end of the Initial Term, this Agreement will automatically renew for additional consecutive periods of same length as the Initial Term, unless terminated earlier by either party pursuant to this Agreement or unless either party gives notice of non-renewal to the other party in accordance with subsection (b) immediately below. ##b. At the end of the Initial Term, either party may terminate this Agreement without cause upon providing at least thirty (30) days written notice to the other, specifying the date of termination, which shall be the same day in the month as the day in the month of the Commencement Date. ##c. Either party may terminate this Agreement for cause immediately upon a material breach of this Agreement by the other party. Without limitation, improper use of the Data.com Information that amounts to a breach or alleged breach of this Agreement shall constitute a material breach. Except in the case of termination by You for cause, termination under this part shall not relieve You of Your obligation to pay any Fees accrued or payable to Traction under the terms of this Agreement and You shall remain obligated to pay all Fees owed for the remainder of any subscription term(s) for the App, all of which Fees shall become immediately due and payable in full.##d. Traction may terminate this Agreement immediately in the event that the App is no longer available for use in conjunction with Salesforce’s services and / or the App is no longer able to access the Data.com Information. In such a case, Traction will provide You a prorated refund of any prepaid Fees paid by You to Traction for the remainder of the Term. ##e. Upon the termination or expiration of this Agreement, You shall, and You shall require that Your End Users shall, immediately discontinue use of the App and You shall and You shall require that Your End Users shall delete or destroy all electronic and physical stand-alone copies of Data.com Information in Your and Your End Users’ possession or control, except as expressly permitted under your Premium Clean Service License(s). ####12. Limitation of Liability and Disclaimers##a. Disclaimer Of Warranties. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE APP IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRACTION AND ITS AFFILIATES EACH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE APP, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE APP, WHETHER MADE BY EMPLOYEES OF TRACTION OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY TRACTION FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF TRACTION WHATSOEVER. THE DATA.COM INFORMATION ACCESSABLE THROUGH THE APP IS NOT PRODUCED BY TRACTION AND TRACTION DOES NOT GUARANTEE THE ACCURACY OR COMPLETELESS OF THE DATA.COM INFORMATION. YOUR USE OF THE DATA.COM INFORMATION IS ENTIRELY AT YOUR OWN RISK. TRACTION DOES NOT GUARANTEE THAT THE DATA.COM INFORMATION WILL BE AVAILABLE UNINTERRUPTED OR TRANSMITTED THROUGH SECURE MEANS.##b. UNDER NO CIRCUMSTANCES SHALL (i) TRACTION OR IT’S AFFILIATES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF TRACTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; OR (ii) SHALL THE ENTIRE LIABILITY OF TRACTION TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE LESSER OF $10,000.00 AND THE AMOUNTS ACTUALLY PAID BY YOU TO TRACTION UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE CLAIM AROSE.##13. Changes. Traction reserves the right to modify these terms and conditions, including the Fees and payment terms, at any time, by providing notice to you, and should you elect not to agree to such modified terms and conditions, your sole remedy shall be to terminate this Agreement in accordance with its terms. Your continued use of the App will be deemed acceptance thereof. In the event you have paid Fees for use of the App in advance, and Traction increases Fees for use of the App, such increase shall not commence until the end of the term for which you have paid Fees.##14. Trial Accounts. Traction may, but is not obligated to, provide a trial account for You to use the App, the length of which will be as described at the point of download, but in any event, no longer than 60 days (the “Trial Period”). In the event Traction provides a trial account to You, the following terms and conditions shall apply to your use of the App during the Trial Period, in addition to the terms and conditions contained herein:##a. You shall not use the App, during the Trial Period, on, in relation to, or for, more than 1,000 leads;##b. Traction may disclose all registration information to Salesforce, which may be used by Salesforce in accordance with its privacy policy. Traction shall not be liable for Salesforce’ use of such registration information; ##c. If, at the end of the Trial Period or earlier, you determine that you do not wish to purchase license(s) for End User(s) to use the App, you will promptly discontinue, and will require that all End Users discontinue, using the App; and##d. All terms and conditions contained herein, except for payments terms and except as modified by this section 14, shall apply to your use during the Trial Period. ##15. Audit and Inspection. Traction shall have the right to evaluate Your use of the App, no more than once per year during the currency of this Agreement, to ensure compliance with this Agreement and to verify that You have properly reported the number of End User Salesforce Licenses upon which the Fees are based for any given period (“Audit Data”). You will provide to Traction’s auditors or agents (including but not limited to internal audit staff and external auditors or lawyers) (collectively, “Audit Representatives”) access, during normal business hours, at all reasonable times, after providing You with at least ten (10) days advance notice, to such of Your facilities or the Audit Data as Traction may require for the purpose of performing audits pursuant to this section. You will maintain the Audit Data and records of all materials relating to any Audit Data for a period of two years from the commencement of the later of the Initial Term or, if the Initial Term has expired, the then current term. You will be entitled to your reasonable direct costs associated with any audit lasting more than three (3) business days except that if the audit reveals any fraud, or under reporting of the Audit Data, or other material breach of this Agreement, then no costs are recoverable by You in respect of the audit and Traction shall be entitled to a full reimbursement of all costs incurred in carrying out the same. You shall, at no cost to Traction (except as expressly contemplated by this section), reasonably co-operate in any audits carried out pursuant to this section, make available on a timely basis the information reasonably required to conduct the audits, and assist the Audit Representatives as reasonably necessary.##16. Miscellaneous.##a. Proper Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and Canada and the parties agree to attorn to the exclusive jurisdiction of British Columbia.##b. Survival. Sections 2, 3, 5, 6, 9, and 12 of this Agreement shall survive any expiration or termination of this Agreement for any reason.##c. Headings. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement. ##d. Assignment. This Agreement may not be transferred or assigned by You without the prior written consent of Traction, which consent Traction may withhold at its sole discretion, except that Traction will not unreasonably withhold its consent in the event of a sale, merger or other transfer of substantially all of Your business and assets. Traction may assign this Agreement. The terms and conditions of this Agreement shall enure to the benefit of and be enforceable by the parties hereto and their permitted successors and assigns##e. Notice. Any notice or communication from one party to the other required or permitted to be given hereunder shall be in writing and either personally delivered, sent by postal service or sent via courier (with evidence of delivery in any case). All notices shall be in English and shall be effective upon actual receipt, irrespective of the date appearing thereon. Unless otherwise requested, all notices to Traction shall be sent to the attention of “Legal” and may be sent by mail or courier to #500 - 2700 Production Way, Burnaby, B.C. V5A 0C2.##f. Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to, earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, act of terrorism, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including Internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.##g. Waiver. The waiver by any party hereto of a breach or a default of any provision of this Agreement by another party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.##h. Relationship. The Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of the Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in the Agreement.##i. Gender, Plural and Singular. In the Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive” and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of the Agreement may be made accordingly as the context requires.##j. Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter herein. This Agreement supersedes all previous communications between the parties, whether written or oral, with respect to the subject matter herein.
