SMART COMMUNICATIONS##SmartCOMM™ FOR SALESFORCE ##SUBSCRIPTION AGREEMENT####This Agreement is made upon the earlier of the date you clicked a box accessible via login at http://www.salesforce.com and/or our Website indicating Your acceptance of these terms and conditions and or You executed an Order Form ("Effective Date") and it governs Your access to and use of the Services. 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 this Agreement. If You do not have such authority or agree to these terms and conditions, You may not access or use the Services. You may not access the Services if You are a direct competitor of Ours, (except with Our prior written approval) or for purposes of monitoring their availability, performance or functionality, or for any other competitive purposes. ####1. Definitions####"Affiliate" any entity which directly or indirectly controls, is controlled by, or is under common control of the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.##"Agreement" the above specified version of these terms and conditions available at the Effective Date including Our guidelines, rules, forms or policies including in particular the Usage Policy which are hereby incorporated by reference.##"AppExchange" the online directory of applications that interoperate with the Services, located at http://www.salesforce.com/appexchange or at any successor website(s).##"API" Application Programming Interface.##"Charges" Our charges for the provision of the Services including in respect of any Overages as specified on an Order Form as may be revised by Us from time to time.##"Collaborative Page" means a Page which is amended or otherwise modified in a DocBox.## "Confidential Information" all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information. ##"Consultancy Fees" Our charges and expenses for the provision of the Consultancy Services at the rates and or amounts specified in the Order Form. ##"Consultancy Services" the provision by Us of general consultancy services including: project management, delivery, installation, implementation, training; the initial amounts of which required by You and any timeframe for delivery all being as specified in or otherwise referred to in the Order Form;## “DocBox” means a facility allowing collaborative changes to be made to a Collaborative Page.##"Malicious Code" any automatic restraint, viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs that interfere with Our provision of the Services.##"Nonpublic Personal Information" or "NPI" information identifying individuals which We may access or hold in connection with the Services, that either individually or when combined with other information, could be used to derive information specific to a particular individual, such as that individual’s identity, social security number, driver’s license number, telephone number, credit or debit card number, address, e-mail address, account information, payroll information, financial information, health information, employee identification number, criminal or employment history, place of birth, mother’s maiden name, biometric records, or other factors specific to that individual’s physical, mental, economic, financial, or cultural identity.##"Order Form" Our documents for placing of orders for Services and or Consultancy Services hereunder, including addenda thereto, that are entered into between You and Us or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. ##"Our," "Us" or "We" the Smart Communications company listed in Section 13 of this Agreement.##"Overage" the charges at the rates to be specified by Smart Communications or otherwise specified in the Order Form which We may apply if You exceed the parameters of use as also specified in the Order Form.##"Page" each 20 kilo byte unit of data (in any format and whether text or graphic) generated or recorded through the Services.##"Privacy Laws" laws, directives and regulations governing the privacy, confidentiality, processing and transit of NPI.##"Privacy Policy" the policy as displayed on the Website from time to time regarding how We collect and how We use information obtained from visitors to our Website.##"Service(s)" access to the online, web-based software applications known as ‘Smart Correspond for Salesforce’ (previously known as ‘ONE Correspond for Salesforce’) provided by Us via Your login link at http://www.salesforce.com and/or our Website, including any associated offline components, that You or Your Affiliates have ordered under one or more Order Forms, but excluding any Third Party Applications.##"Solution" means the particular on line web based Smart Communications product specified in an Order Form;##"Subscription Term" the minimum period specified in the Order Form for which You agree to pay for the Services.##"Support" basic assistance in use of the Services as specified on the Website from time to time.##"Tenancy" means the login facility made available to Customer as part of the Services.##"Third Party Applications" any online applications and offline software products that interoperate with the Services that are not provided by Us, including but not limited to those listed on the AppExchange and those identified as Force.com Labs or by a similar designation.##"Trial Service(s)" services that are ordered by You on a free trial basis and made available by Us online via the customer login link at http://www.salesforce.com and/or other web pages designated by Us, including associated offline components, as described in the User Guide but excluding Third Party Applications.##"Usage Policy" the policy as specified in an Order Form or otherwise displayed on the Website from time to time regarding limits on Our resources available to You when utilising the Services. ##"User Guide" the online user guide for the Services, accessible via login at http://www.salesforce.com, as updated from time to time. ##"Users" individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents.##"Website" wwww.smartcommunications.com and/or other domain names we designate from time to time.##"You" "Your" or "Customer" the person, firm, company or other legal entity on behalf of whom you are accepting this Agreement.##"Your Data" all electronic data or information submitted by You to the Service including any document templates created by You in the course of using the Service. ####2. Trial Services##2.1 If You register via login at http://www.salesforce.com for a free trial, We will make Trial Services available to You free of charge until the earlier of: (i) the end of the free trial period for which You registered; (ii) the start date of any Services ordered by You; or (iii) termination of the Trial Services by Smart Communications at its discretion.##2.2 Any data entered into the Trial Service will be permanently lost even if You purchase a subscription to the same services as those covered by the trial unless you export the data before the end of the trial period.##2.3 The Trial Services are provided “as-is” without any warranty.####3. Services ##3.1 We shall make the Services available to You on a non-exclusive, non-transferable basis during the Subscription Term. You agree that Your ordering of the Services hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding existing or future functionality or features of Our services. Order Forms shall only become legally binding upon Smart Communications once Smart Communications accepts the relevant Order Form by signing the same and issuing a serial number which will allow You to download the software necessary to use the Services. ##3.2. Unless otherwise specified in the applicable Order Form, (i) Services are priced as User subscriptions and may be accessed by no more than the specified number of Users in conjunction with a single Salesforce.com organisation ID, (ii) Services may only be used for document generation purposes in conjunction with standard services provided to You by Salesforce.com, (iii) additional User subscriptions may be added during the applicable Subscription Term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the Subscription Term in effect at the time the additional User subscriptions are added, and (iv) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User.##3.3 You acknowledge and agree that if collaborative products are comprised in the Services when You invite Third Parties into a DocBox to collaborate on changes to the Data comprised in a document, if those Third Parties are not Users they will need to accept Smart Communications’ standard conditions of use and complete the security requirements in order to access the relevant DocBox.####4. Use of the Services##4.1 We shall: (i) provide Support at the rates specified in the Order Form, (ii) use all reasonable endeavours to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime which We shall schedule to the extent practicable during the weekend hours from 9:00 p.m. Friday, through 3:00 a.m. Monday, UK time or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Our employees), Internet service provider failures or delays or unavailability of the Salesforce.com platform, (iii) provide the Services only in accordance with laws and governmental regulations applicable to Smart Communications and (iv) maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not: (a) modify Your Data; (b) disclose Your Data; or (c) access Your Data; except in each case as: (i) may be compelled by law in accordance with Section 8.1; or (ii) expressly permitted in writing by You; or (iii) to provide the Services; or (iv) is necessary to prevent or address Support or other technical issues. You consent to receiving communications from Us regarding the Services and to being included in our social media community for which purposes You permit Us to access Your Data notwithstanding the terms of sub Section (c) above. Please contact Us should you not wish Us to communicate with You in this manner. ##4.2. You shall: (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use best efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or their related systems or networks or (g) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.##4.3. Services are subject to limitations which are referred to in the User Guide, Order Form and Our Usage Policy. We reserve the right to suspend Your access to the Services should such limitations be exceeded and or treat the same as a material breach of this Agreement.####5. Third Party Applications##5.1. If You use Third Party Applications with the Services, You accept that those Third Party Applications will, in order to operate with the Services, access Your Data. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third Party Applications.##5.2 Service features that interoperate with Third Party Applications which includes Salesforce.com depend on the continuing availability of the relevant API for use with the Services. If the providers of the Third Party Applications cease to make the API available on reasonable terms for the Service, We may cease providing such Service features without entitling You to any refund, credit, or other compensation.##5.3 Notwithstanding Section 5.2 and the Subscription Term, You acknowledge that the availability and Your use of the Services is conditional upon You having a valid license to use the relevant Third Party Application supplied by Salesforce.com.####6. Fees and Payment##6.1 You agree to pay the Charges and Consultancy Fees as specified in all Order Forms issued hereunder. Except as otherwise specified herein or in an Order Form, (i) Charges are based on Services ordered, (ii) payment obligations are non-cancellable and payments are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Order Form. Consultancy Fees are due monthly in arrears where Consultancy Services are provided on a time & materials basis and in advance where provided on a fixed price basis. You further agree that if You do not fully utilise any pre-paid Consultancy Services within ninety (90) days of them being ordered You shall not have the right to cancel or obtain any refund in respect thereof, the pre-payment for which shall be retained by Us as additional consideration.##6.2 You will provide Us with valid purchase order or alternative document reasonably acceptable to Us. Charges shall be made annually in advance, or in accordance with any different billing frequency stated in the applicable Order Form. We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, payment is due net 30 days from the invoice date ("due date"). You are responsible for maintaining complete and accurate billing and contact information in respect of the Services and or Consultancy Services. ##6.3 If any payments are not received by Us by the due date, then at Our discretion, We may: (i) charge You interest on the overdue amount, payable immediately on demand at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, accruing on a daily basis and compounded quarterly and/or (ii) advance the due date in respect of any renewals of the Subscription Term and/or (iii) accelerate the payment of Charges due over Subscription Term so that all such obligations become immediately due and payable, and/or (iv) suspend Services and or Consultancy Services until such amounts are paid in full.##6.4 Charges and or Consultancy Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your ordering and use of the Services and or Consultancy Services. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section, the appropriate amount will be itemised in our invoice and shall be paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.####7. Intellectual Property Rights##7.1 Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights and will have and maintain ownership of all copyrightable works and other intellectual property rights created or produced by Us while performing the Consultancy Services. No rights are granted to You other than as expressly set forth in this Agreement. You shall not: (i) permit any third party to access the Services except as permitted in the Agreement, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services (except to the extent permitted by law), or (v) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services.##7.2 We acknowledge that You own all rights, title and interest in and to all of Your Data. You grant Us permission to copy Your Data to enable us to fulfil Our obligations under this Agreement. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all of Your Data and the consequences arising from Your failure to meet such responsibilities and We shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data.####8. Confidentiality and Privacy##8.1 We agree that Your Confidential Information shall include Your Data and You agree that Our Confidential Information shall include the Services and that Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the Disclosing Party. However, Confidential Information shall not include any information that is trivial or obvious, in the public domain, already known by the Receiving Party, or is required to be disclosed by law or any securities exchange or regulatory or governmental body.##8.2 Receiving Party agrees on behalf of itself and its Affiliates that it may only disclose the Confidential Information which it receives from the Disclosing Party to such of its officers, employees, contractors and agents as need to know for purposes consistent with this Agreement. Receiving Party shall ensure that such officers, employees, contractors and agents are bound by equivalent obligations in respect of the Confidential Information to those set out in this Agreement and shall use its best endeavours to ensure that they abide by such obligations. Receiving Party shall be fully responsible for any unauthorised disclosure or use of the Confidential Information by such officers, employees, contractors and agents.##8.3 You agree that You are primarily responsible for and will comply with all requirements regarding the collection, use, processing, storage, protection, disclosure, transfer and destruction of NPI. To the extent that We access or hold NPI in connection with the Services, You acknowledges that We do not incur any liability or obligation with respect to NPI under the Privacy Laws or have any responsibility to You beyond that stated in Section 8.2 above or generally under Our Privacy Policy.####9. Warranties and Disclaimers##9.1 We warrant that: (i) We have full right, title and power to enter into this Agreement, (ii) the Services will operate substantially in accordance with the User Guide, and (iii) We will exercise reasonable skill and care when providing the Consultancy Services; subject to each of the foregoing, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise in respect of the Services and or Consultancy Services and the performance by Us of Our obligations hereunder, including any warranties of merchantability, satisfactory quality or fitness for a particular purpose are hereby excluded to the fullest extent permitted by law. In the event of a breach of the express warranties contained in this Section 9 Your exclusive remedy shall be the prompt correction of the breach by the provision of Support although We do not warrant that We will be able to rectify any defects in the Services, nor that any defect which does not materially affect Your use of the Services will be corrected. ####10. Indemnification##10.1 We shall defend You against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that (i) You promptly give Us written notice of the Claim; (ii) You give Us sole control of the defence and settlement of the Claim; (iii) You do not prejudice Our defense of the Claim (iv) the Claim does not arise as a result of modifications and/or improvements to the Service introduced or made by You and (v) You provide to Us all reasonable assistance, at Our expense.##10.2 You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that (i) We promptly give You written notice of the Claim; (ii) We give You sole control of the defence and settlement of the Claim; (iii) We do not prejudice Your defense of the Claim (iv) the Claim does not arise as a result of modifications and/or improvements to the Service introduced or made by Us and (v) We provide to You all reasonable assistance, at Your expense.##10.3 This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.####11. Limitation of Liability##11.1 Neither party's aggregate liability arising hereunder, whether in contract, tort or under any other theory of liability, shall exceed the lesser of the total Charges paid by You in the 12 months preceding the incident or £100,000. The foregoing shall not limit your payment obligations under Section 6.##11.2 In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.####12. Term and Termination##12.1 User subscriptions purchased by You under this Agreement commence on the start date specified in the applicable Order Form and continue for the relevant Subscription Term. All User subscriptions shall automatically renew for subsequent consecutive one year periods, unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant Subscription Term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.##12.2 Either party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains unremedied at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceedings relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.##12.3 Any termination of this Agreement shall be without prejudice to any other rights or remedies either party may be entitled to hereunder or at law or in equity and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. You acknowledges that it shall not under any circumstances be entitled to a refund of Charges.##12.4 Upon expiry of the Subscription Term or earlier termination of this Agreement, You shall, cease to be entitled to use the Services and We shall have no obligation to maintain or forward any of Your Data and We shall, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.####13. Contracting Parties, Law, Jurisdiction and Notice##13.1 Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts can adjudicate any such lawsuit, depend on where You are domiciled as follows:####If You are domiciled in: ##United States of America or Canada##You are contracting with: SmartComms, LLC. ##Notices should be addressed to: 250 Commercial Street Suite 4006 The Waumbec Mill Building Manchester NH 03101 USA ##The governing law is: Virginia and##The courts having exclusive jurisdiction are: United States federal law controlling Norfolk, Virginia, U.S.A.####If You are domiciled in: ##A Country in Asia or the Pacific region##You are contracting with: SmartComms Pty Ltd.##Notices should be addressed to: Level 18.02 175 Pitt Street Sydney NSW, 2000 New South Wales, Australia New South Wales.##The governing law is: New South Wales and##The courts having exclusive jurisdiction are: The Courts of New South Wales####If You are domiciled in: ##A Country in Europe, the Middle East or Africa or a Country outside of the above##You are contracting with: SmartComms SC Limited ##Notices should be addressed to: Catalyst House, 720 Centennial Court, Centennial Park, Elstree Hertfordshire, WD6 3SY##The governing law is: England.##The courts having exclusive jurisdiction are: The Courts of England.####13.2 Unless otherwise specified in this Agreement, any notice or other communication sent or given with respect to this Agreement shall be in writing and shall be sent or given by (i) personal delivery; (ii) overnight courier; (iii) telefacsimile; or (iv) first class or recorded delivery mail. Notwithstanding anything to the contrary contained in this Agreement, however, any notice or other communication sent or given with respect to a breach of this Agreement shall be sent or given by personal delivery or first class or recorded delivery mail. Such notices as are: (a) personally delivered shall be deemed to be given when they are delivered; (b) sent by overnight courier shall be deemed to be given on the date on which the sender designates them for delivery; (c) sent by telefacsimile shall be deemed to be given on the date on which the sender sends them; and (d) sent by recorded delivery mail shall be deemed to be given on the date of signature evidencing receipt. ####14. Miscellaneous##14.1 This Agreement, including all documents incorporated by reference, such as the Order Form, is the entire agreement between the parties with respect to the subject matter of this Agreement and this Agreement supersedes all prior agreements and understandings, oral or written, between the parties relating to the subject matter hereof. No modification of this Agreement shall be effective unless it is in writing and such writing is either signed or accepted electronically by authorised representatives of the parties. ##14.2 The failure of either party at any time to require performance of the other of any provision of this Agreement shall in no way affect its right thereafter to require performance of the other of such provision, nor shall such failure be held to be a waiver of any succeeding breach of such provision or a waiver of such provision itself..##14.3 If an ambiguity or question of intent arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favouring or disfavouring either party by virtue of authorship of any of the provisions of this Agreement.##14.4 You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without Our prior written consent (not to be unreasonably withheld). We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of Our rights or obligations under this Agreement.##14.5 No person who is not a party to this Agreement (including any employee, officer, agent, representative or subcontractor of either party) shall have the right to enforce any term of this Agreement without the express prior agreement in writing of the parties.##14.6 If any provision of this Agreement or any part of any such provision is held to be invalid or unenforceable, such provision or part (as the case may be) shall be ineffective only to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable or otherwise prejudicing or affecting the remainder of such provision or any other provision of this Agreement.##14.7 Sections 6, 7, 8, 9, 10, 11 shall survive expiration or termination of this Agreement.##14.8 Customer agrees to be a reference site for Smart Communications and carry out the following activities:##14.8.1 Smart Communications may display the name and logo of the Customer on its website identifying them as a customer of Smart Communications. ##14.8.2 Within thirty (30) days of the Effective Date of this Agreement Smart Communications may issue a contract win press release.##14.8.3 Co-operate in the production of a case study that Smart Communications may use as part of its promotional materials.##14.8.4 Participate in the production of a video interview regarding the implementation, use and benefits of the Services which Smart Communications may use as part of its promotional materials.##14.8.5 Speak to prospective Smart Communications customers about the use & benefits of the Services (via telephone and/or a site visit).####Edition September 2017
