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In this Agreement, which includes any Order Forms now or hereafter associated herewith, the following expressions shall, unless the context otherwise requires, have the following meanings:-
1.1 "Additional Licence Fees" means the licence fees due to us by you under the Additional Licences;
1.2 "Additional Licences" means any and all licences (except the Initial Licence) granted to you by us in respect of the use of the Service;
1.3 "Agreement" means this agreement, including any Order Forms now or hereafter associated herewith;
1.4 “CRM System” means the customer relationship management software system used by Users;
1.5 “Customer” means the customer specified in the Order Form(s) and referred to in this Agreement as “you” or “your” as the context permits.
1.6 "Customer Data" means any data, information or material provided or submitted, or to which access is permitted or authorised, by you to the Service in the course of using the Service;
1.7 “End Date” means the End Date specified on the Order Form;
1.8 "Initial Licence" means the initial licence granted to you by us in respect of the use of the Service and governed by this Agreement;
1.9 "Initial Licence Fees" means the licence fees due to us by you under the Initial Licence;
1.10 “Initial Term” means the contract term of the Initial Licence, beginning on the Start Date and ending on the End Date, specified on the applicable Order Form;
1.11 "Intellectual Property Rights" means any and all inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
1.12 "Licence Administrator" means a User designated by you who is authorised to create User accounts and otherwise administer your use of the Service;
1.13 "Licence Fees" means the Initial Licence Fees and the Additional Licence Fees;
1.14 “Licence Term” means the period during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s), being the Initial Term and any renewal term;
1.15 "Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the Customer, the Customer’s address, the number of licences and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);
1.16 "Output" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
1.17 "Service" means the services operated and maintained by us, accessible via the Website, or ancillary online or offline products and services provided to you by us, to which you are being granted access under this Agreement, including the Technology and the Output;
1.18 “Service User Licences” means the Initial Licence and the Additional Licences;
1.19 “Start Date” means the earliest Start Date specified on any Order Form associated with this Agreement;
1.20 "Technology" means all of our proprietary technology (including but not limited to software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by us in providing the Service;
1.21 "Users" means your employees, representatives, consultants, contractors or agents who are authorised by you to use the Service or who make use, during the course of their duties, of the CRM System that provides data to be analysed and reported on by the Service;
1.22 "we", "us" or "our" means Visual Insight Limited (Reg. No. SC324149);
1.23 "Website" means www.visualinsight.com, www.salespipeinsight.net or another designated web site or IP address.
2. Grant of Licence and Service Levels
2.1 You are hereby granted a non-exclusive, non-transferable, right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement.
2.2 Other than data created using the Service (of which data you shall have ownership), you shall not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available in any way to any third party the Service or the Output in any way.
2.3 The number of Additional Licences may only be reduced with effect from the end of the Licence Term and by giving at least 30 days' prior written notice.
2.4 An authorised License Administrator may subscribe for Additional Licences by submitting an Order Form which once accepted by us will be binding. Additional Licences will: (i) be coterminous with the pre-existing Licence Term (either the Initial Term or a renewal term); (ii) be subject to Additional Licence Fees; and (iii) be charged in from the month in which they are added.
2.5 It is acknowledged that the Service is provided online via the Website and, accordingly, while we shall use all reasonable endeavours to ensure that access to the Service is available at all times and that the Service operates to an appropriate standard, continuous access cannot be guaranteed, but we shall use our best efforts to ensure that any steps taken by us for maintenance or upgrading of the Service are taken at times to ensure minimum disruption to subscribers.
2.6 Services will be provided by us using all reasonable care and skill but other than as expressly stated in this Clause 2 time shall not be of the essence.
2.7 In relation to the Service, you shall be entitled to credits against future Licence Fees as set out in terms of this Clause 2.7:
2.7.1 Subject to Clause 2.5, if we fail to meet the service level outlined below in any given calendar month, we shall, as our sole obligation and your sole and exclusive remedy for failure to meet such service level, credit your account according to the following schedule(s):
Uptime of 99.99% or higher (Less than 5 minutes of downtime) No Credit
Uptime of 99.9% - 99.99% (Between 5 and 43 minutes of downtime) 1%
Uptime of 99.0% - 99.9% (Between 43 and 432 minutes of downtime) 2%
Uptime of 98.0% - 98.9% (Between 432 and 864 minutes of downtime) 3%
Uptime of 97.0% - 97.9% (Between 864 and 1,296 minutes of downtime) 5%
Uptime of 95.0% - 96.9% (Between 1,296 and 2,160 minutes of downtime) 10%
Uptime of 90.0% - 95.0% (Between 2,160 and 4,320 minutes of downtime) 15%
Less than 90% (More than 4,320 minutes of downtime) 33%
*(Percentage of the total managed services monthly fees due to Visual Insight for that calendar month. The total credit from all Service Level Guarantees will not exceed 33% of such fees due to Visual Insight for that calendar month.)
2.7.2 You will only be entitled to credit(s) as outlined above if you: (1) provide written notice to us of the circumstances giving rise to the credit request; (2) provide such written notice within five (5) days after the last day of the month within which you state we failed to comply with the applicable service level; and (3) identify in such notice the relevant ticket(s) relating to the service level for which you seeks credit(s). For any billing month in which we acknowledge we have failed to meet the service levels specified above, you will (subject to the other provisions of this Clause 2) receive one credit, based on the credit structure above.
2.7.3 Credit will not be issued under this Clause 2 for any covered outage that, as determined by us in our reasonable judgment, results from:
• Downtime due to Customer-initiated changes whether implemented by Customer or Visual Insight on behalf of Customer;
• Downtime caused as a result of the Customer exceeding system capacity;
• Downtime due to viruses;
• Downtime due to Customer required operating system software revisions and hardware/software configurations that are not Visual Insight tested and approved;
• Downtime due to problems caused by Customer-supplied Web site content or software (e.g. faulty CGIs or third party applications);
• Downtime due to scheduled or unscheduled maintenance of Salesforce.com, or other interruptions to the service provided by Salesforce.com
• Downtime due to Customer failure to adhere to Visual Insight’s change management process and procedures;
• Downtime due to the acts or omissions of Customer, its employees, agents, third party contractors or vendors, or anyone gaining access to Visual Insight’s network or to the Customer’s Web site at the request of Customer;
• Downtime caused by Acts of God or natural disasters;
• Any event or condition not wholly within the control of Visual Insight; and violations of Visual Insight’s Acceptable Use Policy;
• The negligence or wilful misconduct of Customer or others authorised by Customer to use the Services provided by Visual Insight;
• Any failure of any component for which Visual Insight is not responsible, including but not limited to all Customer-provided or Customer-managed electrical power sources, networking equipment, computer hardware, computer software or web site content;
• Any failure of Customer-provided local access facilities;
• Any scheduled or emergency maintenance up to an accumulated total of 24 hours per month;
• Any failures that cannot be corrected because the Customer is inaccessible.
2.7.4 The Service shall be considered as available at all times at which they function as intended without any significant interruption and credits shall be based upon the actual duration of the Service not being available in terms of this Clause 2, measured form the issue of a trouble ticket to our Network Operations Centre to the restoration of the impacted service to being available.
3. Your Obligations
3.1 You are responsible for all activity on your Users’ accounts and you shall procure that you and each User complies with all applicable laws and regulations in connection with your use of the Service, including those related to data protection, international communications and the transmission of technical or personal data.
3.2 You shall: (i) notify us immediately of any unauthorised use of any password or account or any other known or suspected breach of security; and (ii) report to us immediately and use reasonable efforts to stop immediately any copying or distribution of Output that is known or suspected by you or any of your Users.
3.3 You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and we shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
3.4 You agree to act as a reference site for the Service.
3.5 You acknowledge that we may wish to publish a press release about your use of the Service and, whilst you retain final sign-off on all press release/case study content or statistics used, you agree that such sign-off will not be unreasonably withheld or delayed.
3.6 You agree to give us the right to mention that you are a Customer and to the use of your logo on our Website showing that you are a client.
3.7 You agree to support us in the creation of a case study on your use of the Service within 3 months of the Start Date. You further agree to provide us with any headline data on the success of the Service in order to help create the case study.
4. Charges and Payment of Fees
4.1 You shall pay all Licence Fees, fees and/or charges to your account in accordance with the fees and charges specified in the Agreement.
4.2 Our fees and charges may be amended and new charges introduced at any time, upon at least 30 days' prior notice to you, effective at the commencement of the next succeeding Licence Term (if any). All pricing terms are confidential, and you agree not to disclose them to any third party.
5.1 The Customer shall pay all Licence Fees to us on the terms specified in this Agreement or otherwise within 14 days following the date on which the invoice is issued.
5.2 All Licence Fees payable to Visual Insight under this Agreement shall be paid in Pounds Sterling by electronic transfer to such bank account as Visual Insight may direct from time to time.
5.3 All payments due to us under this Agreement shall be exclusive of Value Added Tax and any sales or other applicable taxes, levies or charges, which shall, if applicable law so requires, be paid by the Customer in addition to such payments at the applicable rate from time to time.
5.4 In the event of any delay in effecting payments due under this Agreement by the relevant due date, the Customer shall pay to Visual Insight interest calculated on a daily basis on the overdue payment, from the date such payment was due to the date of actual payment, at a rate of 3% over the base lending rate of The Royal Bank of Scotland plc from time to time.
6. Non-Payment and Suspension of Service
6.1 In addition to any other rights, we reserve the right to suspend or terminate this Agreement and your access to the Service if any amount due to us is in arrears.
6.2 You will continue to be charged for Licence Fees during any period of suspension. On termination you will be obliged to pay the balance due on your account calculated in accordance with Clauses 4 and 5 above.
6.3 We reserve the right to impose a reconnection fee in the event you are suspended and request access to the Service. You agree and acknowledge that we have no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more in arrears.
7. Intellectual Property
7.1 We (and our licensors, where applicable) own all right, title and interest, including all related Intellectual Property Rights, in and to our Technology, the Output and the Service.
7.2 Other than the right to use the Service as licensed by this Agreement you require no right to use any of such items and have no right to any Intellectual Property Right in them.
8.1 You shall indemnify and hold us and our licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including solicitors' fees and costs) arising out of or in connection with: (i) any claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) any claim, which if true, would constitute a breach by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement.
8.2 Subject to Clause 8.4, we undertake to defend you at our own expense from and against any claim or action that your sue of the Service in terms of this Agreement infringes the intellectual property rights of a third party (“IPR Claim”) and shall fully indemnify you from and against any losses, damages, costs (including all reasonable legal fees) and expenses incurred or awarded against you as a result of or in connection with that IPR Claim.
8.3 You agree that :
8.3.1 you shall as soon as reasonably practical notify us in writing of any IPR Claim of which you have notice;
8.3.2 you shall not make any admission as to liability or agree to any settlement of or compromise any IPR Claim without our prior written consent, which consent shall not be unreasonably withheld or delayed; and
8.3.3 we shall, on request and at our own expense be entitled to have the conduct of or settle negotiations and litigation arising from any IPR Claim and you shall, at our request and expense, give us all reasonable assistance in connection with those negotiations and litigation.
8.4 We shall have no obligation pursuant to this Clause to the extent such IPR Claim arises from any use of the Services by you other than in terms of this Agreement.
9.1 Upon the expiration of the Initial Term your subscription to the Service on terms of this Agreement will automatically renew for successive renewal terms of one year at our then current fees.
9.2 Either party may terminate this Agreement with effect from the expiration of the then current Licence Term, by at least thirty (30) days' prior written notice.
9.3 We may, at our sole discretion, terminate your account and/or use of the Service if you breach or otherwise fail to comply with this Agreement.
Subject to the express provisions of this Agreement:
10.1 NEITHER WE NOR OUR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT THEREOF. NEITHER WE NOR OUR LICENSORS REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (D) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS, (E) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, OR (F) ERRORS OR DEFECTS WILL BE CORRECTED.
10.2 ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY US AND OUR LICENSORS.
11. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNT ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Confidentiality, Security and Data Protection
12.1 Each of us undertakes to the other to treat the confidential information of the other (including without limitation information relating to its business, software, technology, security, financial results, know how, techniques, models, suppliers, customers and any intellectual property rights whether or not the same is marked as confidential) as secret and confidential and not to use, copy or disclose the whole or any part of the same except insofar as may be necessary for the proper fulfilment of its obligations under this Agreement.
12.2 The obligations contained in Clause 12.1 shall not apply to such confidential information which:
12.2.1 is in or enters the public domain otherwise than by breach of this Agreement;
12.2.2 is received from an independent third party having the right to disclose the same;
12.2.3 is shown to have been in the possession of the other party prior to the date of receipt from the first party; or
12.2.4 is required by law to be disclosed to any court or other competent authority.
12.3 These obligations of confidentiality shall survive the termination or expiry of this Agreement.
12.4 It is acknowledged that data extracted by us from your account with salesforce.com is Confidential Information and shall only be disclosed by us for the proper provision of the Service in accordance with the terms of this Agreement or otherwise as agreed with you.
12.5 In dealing with your Confidential Information we shall act at all times in accordance with our IT security policies which, in order to comply with the standards set by Salesforce.com, requires, among other aspects, strict access controls including encryption of credentials required for access to your Salesforce.com data. We warrant that we are accredited by Salesforce.com as an AppExchange Partner, and that the Service has been certified by Salesforce.com to meet the standards required by them in relation to security and other aspects.
12.6 Each of us undertakes to the other that it shall comply at all times with its obligations under the provisions of the Data Protection Act 1998. At your request, we shall destroy all copies of Confidential Information of you held by us in the course of providing the Services, it being acknowledged that we shall have no liability for complying with such request.
13. Modification to Terms
We reserve the right to modify, alter, delete or add terms and conditions of and/or to this Agreement or our policies relating to the Service at any time by 30 days’ written notice, with effect from commencement of the next succeeding Licence Term (if any). Continued use of the Service after any such changes shall constitute your consent to such changes.
This Agreement may not be assigned by you without our prior written approval but may be assigned without your consent by us.
15.1 We may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in our account information, or by written communication sent by first class mail or pre-paid post to your address on record in our account information.
15.2 You may give notice to us (such notice shall be deemed given when received by us) at any time by written communication sent by first class mail or pre-paid post to our registered office.
15.3 Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
16. Governing law and Jurisdiction
This Agreement shall be governed by the laws of Scotland and by registering for or using the Service you agree to submit to the non-exclusive jurisdiction of the Scottish courts.