PLEASE REVIEW THESE TERMS AND CONDITIONS (THIS “AGREEMENT”) CAREFULLY AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “CUSTOMER”) AND Balink CORPORATION (“Balink”). BY PURCHASING, DOWNLOADING, INSTALLING, OR OTHERWISE USING Balink FOR SALESFORCE (THE “APPLICATION”), YOU HEREBY AGREE TO BE BOUND BY EACH OF THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ANY SUCH TERM OR CONDITION, YOU MAY NOT PURCHASE, DOWNLOAD, INSTALL, COPY OR OTHERWISE USE THE APPLICATION. ## ##1. USE OF APPLICATION WITH THE SERVICE. The Application provides the Customer with an interface between Customer’s Salesforce account and Balink solutions and services. In order to use the Application, Customer must subscribe for, and maintain in good standing, an Balink customer account (the “Customer Account”). Accordingly, Customer’s use of the Application is, and shall be, subject to the terms and conditions set forth in Balink's end user services agreement posted at www.balink.net (the “EUSA”), which is incorporated herein by reference and which hereby is accepted by Customer. For purposes hereof, the definition of “Service” set forth in Section 1 of the EUSA shall be amended to include the Application to the extent applicable (as determined by Balink in its sole discretion). Except as otherwise expressly set forth herein, in the event of a conflict between any term or condition set forth herein and in the EUSA, the term or condition which most favors Balink, as determined by Balink, shall govern. ## ##2. LICENSE GRANT. The Application and all intellectual property rights associated therewith are and shall remain the sole and exclusive property of Balink. Accordingly, Customer acknowledges that Balink owns all right, title and interest in and to the Application, including, without limitation, all Israel and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto; provided, however, that subject to the terms and conditions set forth herein, Balink hereby grants to Customer a personal, limited, revocable, nonexclusive, non-sublicensable and non-transferable license to use the Application in connection with the Service. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Application. Customer acknowledges that the Application contains proprietary information and trade secrets of Balink. Customer will not take any actions inconsistent with Balink ownership of any of Balink rights in and to the Application. 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 Application, or make the Application available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Application for any purpose, including without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Application on a bulletin board, intranet, extranet or web site; (iv) use or distribute the Application in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Application in any format other than machine-readable format. All rights in the Application not explicitly granted herein are reserved by Balink. If Customer is using the Application in any country within the European Union, the prohibitions set forth herein will not affect Customer’s rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs. In the event of a conflict or inconsistency between any term or condition set forth in Section 11 of the EUSA and in this Section 2, the latter shall govern. ## ##3. OBLIGATION TO SUPPORT. With respect to the Application, Balink will use commercially reasonable efforts to provide Customer with customer support in accordance with Balink standard business practices and policies. Balink has no obligation to provide maintenance or installation services of any kind, error corrections, bug fixes, patches, updates or other modifications to the Application (“Fixes”). In the event that Balink provides any Fixes to Customer, such Fixes will be considered part of the Application and will be subject to the terms and conditions set forth herein. Support requests, questions, complaints and claims regarding the Application may be directed on the website at www.balink.net## ##4. DISCLAIMER OF WARRANTIES. THE APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Balink AND ITS AFFILIATES, RESELLERS, DISTRIBUTORS, 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 APPLICATION. THE REPRESENTATIVES DO NOT WARRANT THAT THE APPLICATION WILL MEET CUSTOMER’S REQUIREMENTS NOR DO THEY GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE APPLICATION. ## ##5. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL Balink 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 APPLICATION OR TO THE PERFORMANCE OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF PROFITS, EVEN IF Balink OR ITS REPRESENTATIVE HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL Balink 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 OR THE APPLICATION EXCEED THE ACTUAL FEES CUSTOMER PAID TO Balink FOR THE SERVICES DURING THE TWELVE (12)- MONTH PERIOD ENDING ON THE DATE OF THE CAUSE OF ACTION GIVING RISE TO SUCH CLAIM, LOSS, OR DAMAGE. ## ##6. DATA ACCESS, TRANSFERS AND USE. By using the Application, Customer hereby grants Balink the automatic right to access its Customer Account through the Application and hereby consents to automatic transfers of Customer’s data between its Customer Account and Customer’s Salesforce account during the course thereof. In addition, Customer acknowledges that Balink may receive from Salesforce certain information about Customer’s configuration and usage of the Application. While in the Balink system, Balink obligations with respect to such data and information are set forth in the EUSA. To the extent that Customer’s data is transmitted or resides out of the Balink system, Customer hereby acknowledges and agrees that Balink will not be responsible for the privacy, security or integrity of such data, including, but not limited to, for any alteration, modification, loss or damage to such data, as a result of Customer’s use of the Application and/or the Services. Customer hereby releases Balink from any claim arising from Balink use of Customer data and information in accordance with the terms and conditions set forth in this Section 6, including, without limitation, any claim that Balink breached any term or condition set forth in the EUSA. ## ##7. OTHER AGREEMENTS. Customer hereby acknowledges and agrees that in order to use the Application, it must comply with the usage rules set forth in the AppExchange Terms of Use User Agreement (the “User Agreement”). Customer is solely responsible for complying with each term and condition set forth in each of the User Agreement and for paying all applicable fees associated therewith. ## ##8. TERM. This Agreement shall commence on the earlier of the date the Application is downloaded, installed, purchased or used by Customer and shall terminate upon the earliest to occur of: (i) the termination or cancellation of the Customer Account; (ii) Customer’s de-installation or removal of the Application; (iii) Customer’s breach of any term or condition, or of any of its representations or warranties, set forth herein or in the EUSA; (iv) Salesforce.com, Inc.’s exercise of its right to terminate Customer’s access to the Application pursuant to the User Agreement or any other terms and conditions governing access to the Application; and (v) any termination of the AppExchange Terms and Conditions accepted by Balink.
