PROVEN WORKS LIMITED##END USER LICENCE AGREEMENT##NOTICE TO USER: PLEASE READ THIS LICENCE CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE THE LEGAL ENTITY USING THE SOFTWARE OR ON WHOSE BEHALF THE SOFTWARE IS USED (“LICENCEE”) ACCEPTS THE FOLLOWING TERMS FROM PROVEN WORKS LIMITED OF CHILTERN CHAMBERS, ST PETERS AVE, CAVERSHAM, READING RG4 7DH, UNITED KINGDOM (“PROVEN WORKS”). YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS LICENCE. YOU AGREE THAT IT IS ENFORCEABLE AS IF IT WERE A WRITTEN NEGOTIATED LICENCE SIGNED BY YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, DO NOT USE THE SOFTWARE. IF THIS LICENCE AGREEMENT WAS PROVIDED WITH AN INVOICE AND IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE AGREEMENT, YOU MAY OBTAIN A REFUND OF THE AMOUNT PAID FOR THE SOFTWARE IF YOU: (A) DO NOT USE THE SOFTWARE AND THE ACCOMPANYING ITEMS (INCLUDING ALL ELECTRONIC MATERIALS, DOCUMENTS ETC) AND (B) NOTIFY PROVEN WORKS IN WRITING OF YOUR NON ACCEPTANCE OF THIS LICENCE AGREEMENT, WITH PROOF OF PAYMENT, AT THE ADDRESS SET OUT BELOW WITHIN 30 DAYS OF THE PURCHASE DATE. ON USE OF THIS SOFTWARE OR ON BEHALF OF BY THE LICENCEE, PROVEN WORKS SHALL DEEM THAT THE TERMS OF THIS LICENCE AGREEMENT HAVE BEEN AGREED BY THE LICENCEE.####DEFINITIONS## “Documentation” means the electronic information supplied with the Software, if any. ## “Credits” means credits for use of a particular Service and available to purchase from Proven Works through submission of an Order. ## “Effective Date” means the date of first use of the Software on the Platform by the Licencee. ##1.4 “Licence Fee” means the annual Licence Fee payable by Licencee in advance in respect of the use of the Software, as specified in an invoice issued by Proven Works and calculated in accordance with the [price list on the Salesforce App Exchange website]. ##1.5 “Licence Renewal Date” means the anniversary of the Effective Date, or the date on which any trial, evaluation or free period of use has expired.##1.6 “Maintenance” means maintenance of the Service Platform that requires interruption of a Service.##1.7 “Network Administrator” means a suitably experienced and qualified employee of the Licencee notified by Licencee to Proven Works by email or in writing from time to time as being responsible for the implementation, administration and maintenance of the Software within Licencee organization. ##1.8 “Order” means an online order submitted by the Licencee to Proven Works for Credits. ##1.9 “Permitted Number” means the number of unique users for which the Licencee is permitted to use the Software as set out on applicable invoice or otherwise confirmed in writing or by email by Proven Works to Licencee.##1.10 “Platform” means the Licencee’s combination of the hardware and software comprising the Salesforce.com technology platform licensed from [Salesforce.com Limited] as may be modified or amended from time to time by Salesforce.com Limited and/or the Licencee.##1.11 “Releases” means the upgrades to the Software released from time to time at Proven Works’ discretion and made generally available to Proven Works’ licencees.##1.12 “Scheduled Maintenance” means Maintenance in respect of which the Licencee has been given prior written notice.##1.13 “Salesforce.com” means salesforce.com EMEA Limited and its subsidiary and affiliated companies.##1.14 “Service(s)” means an on-demand service supplied by Proven Works or a Third Party Provider and which adds features or functionality to the Software. ##1.15 “Software” means the object code form of the software in respect of which this Licence Agreement is provided as set out in the applicable invoice or otherwise confirmed in writing or by email by Proven Works to Licencee.##1.16 “Technical Support” means the provision of technical support by Proven Works in respect of the use and operation of the Software to a Network Administrator available during the hours of 9:00 to 17:30 UK local time, Monday to Friday excluding all bank and public holidays via email to support@ProvenWorks.com. ##1.17 “Third Party Provider” means a provider of a Service. ##1.18 “Validity Period” means the period the relevant Credits are valid for, as may vary according to the Service, and as set out in an Order or by Proven Works in writing (including by e-mail).##1.19 “Working Days” means Monday to Friday, excluding United Kingdom bank and public holidays.##GRANT OF RIGHTS; RESTRICTIONS##Subject to all the terms and conditions of this Licence Agreement, Proven Works hereby grants Licencee an annually renewable, worldwide, nonexclusive, nontransferable licence to install and use the Software for the Permitted Number for its own internal use only. ##Except as expressly permitted in this Licence Agreement, Licencee shall not, and shall not permit others to: (i) modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices), in whole or in part; (ii) reverse engineer, decompile, disassemble or otherwise reduce the Software to source code form; (iii) distribute, sublicence, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes, or otherwise transfer the Software or Licencee’s right to use the Software; (iv) remove or modify any copyright, trademark, or other proprietary notices of Proven Works affixed to the media containing the Software or contained within the Software; or (v) use the Software in any manner not expressly authorised by this Licence Agreement. ##2.3 Licencee agrees, subject to reasonable prior notice, to give Proven Works such access and assistance to Licencee’s systems as may be necessary to confirm the number of users does not exceed the Permitted Number. In lieu of access, Proven Works will be provided with evidential assurance that the Permitted Number is not being exceeded.##2.4 Proven Works shall, in its sole discretion, notify Licencee in writing or by email if it is eligible for any trial, evaluation or free period of use of the Software.##SUPPORT AND RELEASES##Proven Works may provide Releases from time to time, such Releases to be provided as downloads from the Salesforce.com website and shall be deemed to be included in the definition of Software in this Agreement.##3.2 The Network Administrator may use the Technical Support Line to receive Technical Support in respect of the Software. Such Technical Support may be provided by telephone or email or at the Licencee’s premises at Proven Works’ sole discretion on a case-by-case basis.##3.3 On receipt of a Technical Support query from the Network Administrator, Proven Works shall use reasonable endeavours to respond to such query within 2 working days. ##PROPRIETARY RIGHTS##Proven Works has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein. This Licence Agreement conveys a limited licence to use the Software and shall not be construed to convey title to or ownership of the Software to Licencee. All rights in and to the Software not expressly granted to Licencee are reserved by Proven Works.##LICENSE FEE AND TECHNICAL SUPPORT FEE##5.1 In consideration for the annual licence to use the Software on the Platform granted to Licencee hereunder, Licencee shall pay Proven Works an annual nonrefundable Licence Fee in advance. The first such Licence Fee shall be due and payable on receipt of the invoice in respect thereof and thereafter shall be payable at least seven (7) days prior to the Licence Renewal Date. Such Licence Fee is exclusive of VAT or other sales tax which, if applicable, shall be payable by the Licencee. ##5.2 In the event that such Licence Fee is not paid in accordance with the provisions herein then on notice to Licencee, Proven Works may terminate this Agreement or suspend the provision of the Software on the Platform and, in the event of termination the provisions of clause 7.3 shall take effect.##5.3 If any applicable law requires Licencee to withhold amounts from any payments to Proven Works hereunder, (i) Licencee shall effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Proven Works with tax receipts evidencing the payments of such amounts, and (ii) the sum payable by Licencee upon which the deduction or withholding is based shall be increased to the extent necessary to ensure that, after such deduction or withholding, Proven Works receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Proven Works would have received and retained in the absence of such required deduction or withholding. ##CREDITS ##During the term of this Licence Agreement, the Licencee may request Credits by submitting an Order to Proven Works. Each Order shall be deemed to be an offer by the Licencee to Proven Works subject to the terms set out in the Order and this Licence Agreement. Acceptance of each Order is at Proven Works’ sole discretion.##The fees due to Proven Works from the Licencee in respect of the Credits shall be as set out in each Order and payable by the Licencee in advance.##Credits shall be available for use within the Validity Period. ##Unless otherwise stated to the contrary in an Order, Credits will only be available for use in respect of the Service stated on the corresponding Order. For the avoidance of doubt, Credits are non transferable and may not be used for any other Service offered by Proven Works or any Third Party Provider.##Use of a Service is subject to Licencee’s acceptance of Proven Works’ and/or Third Party Provider’s terms and conditions. ##Subject to clause 6.7 and 6.8, in the event a Service is unavailable for more than 48 consecutive hours during the Working Days, the Licencee shall be entitled to a refund of any unused Credits at the time of the Service affecting event. ##The Licencee must notify Proven Works of the Service affecting event within seven (7) days.##The Service shall only be considered as unavailable during periods of unplanned Maintenance. For the avoidance of doubt, a Service shall not be considered as unavailable during:##Scheduled Maintenance;##Licencee caused outages or disruptions;##outages or disruptions attributable in whole or in part to events beyond Proven Works’ reasonable control.##The provisions of this clause 6 state the Licencee’s full and exclusive right and remedy, and Proven Works’ (including its licensors, agents and subcontractors, if any) only obligation and liability, in respect of unavailable Services.##TERM AND TERMINATION##This Licence Agreement shall commence on the Effective Date and continue in effect for consecutive annual periods, unless and until terminated in accordance with Clause 5.2 or clause 7.2. ##If either party breaches this Licence Agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within thirty (30) days after the breaching party’s receipt of such notice, this Licence Agreement shall terminate without any further notice required (but no cure period is required for any breach that cannot be cured).##Upon any termination of this Licence Agreement, (a) the rights and licences granted to Licencee herein shall terminate; (b) Licencee shall cease all use of, and uninstall the Software; and (c) Proven Works may take all necessary steps to disable the use of the Software by Licencee. Clauses 1, 4, 5 (to the extent of unpaid Licence Fees), 7.3 and 9 shall survive any termination of this Licence Agreement.##WARRANTIES, INDEMNITY AND LIABILITY##Proven Works warrants that the Licencee’s use of the Software in accordance with the terms of this Licence Agreement shall not infringe any third party intellectual property rights. In the event that any third party brings a claim against the Licencee that the use of the Software in accordance with the terms of this Licence infringes such third party’s intellectual property rights (“Claim”), Proven Works shall indemnify Licencee against any payments that Licencee has to make to such third party in respect of the Claim provided that:##the Licencee gives prompt written notice to Proven Works of any such Claim and grants Proven Works the full authority to proceed as contemplated herein;##Proven Works has exclusive right to defend at its expense any such Claim and to make settlements thereof at its own discretion;##Licencee does not settle or compromise any such Claim, except with the prior written consent of Proven Works; ##Licencee gives such assistance and information as Proven Works may reasonably require in connection with the investigation, defence or settlement of such Claims.##8.2 Proven Works warrants that, on the Effective Date, the Software will operate on the Platform in accordance with the Documentation. The Licencee’s sole remedy for a breach of such warranty shall be limited to a refund of the initial Licence Fee provided always that Licencee notifies Proven Works of such breach of warranty within five (5) working days of the Effective Date. ##8.3 The Licencee hereby represents that it shall (i) comply with all applicable local and foreign laws and regulations which may govern the use of the Software, and (ii) use the Software only for lawful purposes and in accordance with the terms of this Licence Agreement.##8.4 The warranties set forth in this clause 8 are exclusive and in lieu of all other warranties, express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade, all of which are hereby excluded and disclaimed.##Licencee’s sole remedy with respect to any claims arising out of this licence agreement shall be limited in the aggregate to the monies paid by licencee to Proven Works under this licence agreement during the twelve (12) month period preceding the event giving rise to such liability. ##In no event shall Proven Works be liable for any special, indirect, incidental, or consequential damages, including loss of profits and goodwill, business or business benefit, or the cost of procurement of substitute products by licencee even if advised of the possibility of such damages. Additionally, licencee acknowledges that whilst the software may be used in combination with third party software, Proven Works bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of the software to integrate with licencee or third party software. Notwithstanding any other provision herein, Proven Works shall not be liable to licencee in the event that the software ceases to function either partly or in its entirety due to an amendment or modification to the platform or the integration and subsequent modification of any service, or for any reason outside of Proven Works’ control. Licencee’s sole remedy, in such circumstances, shall be limited to terminating this agreement by notice in writing and receiving a pro-rated refund of the licence fees paid in advance for the period after the date of termination.##GENERAL##Licencee shall not assign this Licence Agreement, in whole or in part, without the written consent of Proven Works.##Licencee consents to the use by Proven Works of Licencee’s name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between Licencee and Proven Works. ##This Licence Agreement and its performance shall be governed by and construed in accordance with and the parties hereby submit to the exclusive jurisdiction of the laws of England and Wales.##Licencee agrees that because of the unique nature of the Software and Proven Works’ proprietary rights therein, a demonstrated breach of this Licence Agreement by Licencee would irreparably harm Proven Works and monetary damages would be inadequate compensation. Therefore, Licencee agrees that Proven Works shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Licence Agreement.##If any provision of this Licence Agreement is declared void, illegal, or unenforceable, the remainder of this Licence Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by the applicable law, achieves the purposes intended under the invalid or unenforceable provision.##Any failure by any party to this Licence Agreement to enforce at any time any term or condition under this Licence Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Licence Agreement.##Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the nonperforming party uses reasonable efforts to avoid or remove such causes of nonperformance and continues performance hereunder with reasonable dispatch whenever such causes are removed.##Save for agreements evidenced in writing or by e-mail pursuant to clause 1.6 and 1.9, this Licence Agreement (i) constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof, and (ii) cannot be altered except by agreement in writing executed by an authorised representative of each party. No purchase order and/or standard terms of purchase provided by Licencee shall supersede this Licence Agreement.##9.9 Nothing in this Agreement shall give, directly or indirectly, any third party any enforceable benefit or any right of action against Proven Works and such third parties shall not be entitled to enforce any term of this Agreement against Proven Works.##If you have any questions regarding this Licence Agreement or if you wish to discuss the terms and conditions contained herein please contact Proven Works Limited using the contact details at www.provenworks.com or at Proven Works Limited, CHILTERN CHAMBERS, ST PETERS AVE, CAVERSHAM, READING RG4 7DH, UNITED KINGDOM.
