A REFERENCE IN THESE TERMS AND CONDITIONS ("AGREEMENT") TO “YOU” OR “YOUR” IS A REFERENCE TO THE PERSON ACCEPTING THIS AGREEMENT OR, IF APPLICABLE, THE LEGAL ENTITY THAT SUCH PERSON REPRESENTS WHEN ACCEPTING THIS AGREEMENT. A REFERENCE TO “WE” OR “US” IS A REFERENCE TO S. P. KEASEY TRADING CO LLC.##BY CLICKING TO DOWNLOAD OR INSTALL OUR APPLICATIONS (“APPLICATION”) AND/OR THROUGH ANY USE OF THE APPLICATIONS, YOU ACCEPT THE FOLLOWING TERMS AND CONDITIONS WHICH GOVERN YOUR USE OF THE APPLICATION. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF SOMEONE ELSE (SUCH AS A COMPANY), YOU REPRESENT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH THAT OTHER PERSON. ####1. Purpose and commencement of the Agreement. This Agreement governs your use of the Application you have downloaded, installed and/or used. This Agreement commences on the date that is the earlier of the date that you accept its terms by downloading, installing or using the Applications, (the “Effective Date”).##2. License and restrictions.##2.1. Licence. On payment by you of all applicable fees, we will grant to you a personal, non-sublicensable, non-transferable, non-exclusive, revocable licence to use the Applications for the number of users and instances agreed in the ordering process (each a “User” and an “Instance”, respectively).##2.2. Your use of the Applications. You agree that your Users will only use of the Applications in accordance with the documentation, manuals and instructions provided by us and updated from time to time (“Documentation”) and solely for your internal business purposes. ##2.3. Additional Users. Please contact us if you wish to add additional Users or increase the number of authorized Instances (“Additional Use”). Once we agree to the quantity and price of the Additional Use, and any additional fees have been paid, we will make the Applications available for the Additional Use on the terms and conditions of this Agreement.##2.4. Restrictions. You and your Users must not: (a) license, sublicense, sell, resell, use as a service bureau, or otherwise use the Applications for a third party’s benefit unless we agree to the use in writing; (b) transfer, assign, distribute or otherwise commercially exploit the Applications or make the Applications or any Documentation or other materials available to any third party; (c) modify or make derivative works based upon the Applications or Documentation; (d) duplicate in any way the Applications on any other server; (e) reverse engineer or decompile the Applications; or (f) use the Applications in any manner not consistent with the Documentation.##2.5. Reservation of other rights. This Agreement contains a complete statement of your rights and we reserve all rights not expressly granted to you in this Agreement.##3. Your responsibilities. You are responsible for all activity occurring under your User accounts and you must comply with all applicable laws, regulations, codes, policies and recommended practices in connection with your use of the Applications. Without limiting the matters in clause 2, you must: (a) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Applications; and (b) report to us immediately and use commercially reasonable efforts to stop any unauthorized copying or distribution of the Applications and Documentation that is known or suspected by your Users.##4. Privacy and Data##4.1. Data. We do not own any of your Data and you are solely responsible for the collection, handling, currency and requests for return/removal of all Data. You will not provide, post or transmit any Data or other material or information that: (a) infringes the proprietary rights of a third party (including intellectual property rights); (b) breaches any rights of publicity or privacy or any other rights at law; or (b) contains any viruses, macros, programming routines or other elements that may damage, surreptitiously intercept or expropriate any system, data or personal information. We may take remedial action, including immediate suspension of your access to the Applications, if we suspect that you, your Users or your customers/partners have breached this provision.##5. Security. We do not control, and we accept no responsibility or liability for, the security of the Application or any issues caused by any Partners. You acknowledge and agree that your use of or connection to the internet provides the potential opportunity for unauthorized third parties to circumvent any security precautions and to illegally gain access to the Application and Customer Data.##6. Availability and support.##6.1. Support. We will provide you with support in accordance with the standards and response times stated on our website at https://appexchange.salesforce.com/listingDetail?listingId=a0N30000009xQiKEAUY or as notified to you in writing in response to your order.##6.2. Level of availability. You understand that: (a) your use of the Application may be distrupted and we don’t guarantee it will be available all of the time; and (b) if we do not have the Access then your use of the Applications may be interrupted or prevented, and we will be excused from any default or liability resulting from failure to provide such Access.##6.3. Third party technology or services. You acknowledge that the availability of the Application is dependent on availability and performance of internet connectivity, network connectivity, third party services, software, and internet technology, including any Partners, and we are not liable for performance issues or downtime of the Application to the extent caused by such technology. You are solely responsible for providing, at your own expense, all network access to the Application, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Application. YOU ARE SOLELY RESPONSIBLE FOR PROVIDING INTERNET ACCESS IN ORDER TO ACCESS AND USE THE APPLICATION. THE APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.##7. Intellectual Property##7.1. Ownership. We or our licensors own all rights, title and interest (including intellectual and industrial property rights) in and to: (a) the Application; and (b) any enhancement, configuration, customisation, patch, fix, upgrade, update and other addition to the Application. We will have an irrevocable, perpetual, worldwide, sub-licensable, transferrable, fully paid-up licence to use, reproduce and adapt any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Application for any purpose. Our name and logos belong to us, whether or not they are the subject of a registered trade mark.##7.2. Data. You retain all right, title and interest in and to your Data. You grant to us all necessary licenses and rights in and to your Data solely as is necessary for us to fulfil our obligations or exercise our rights under this Agreement or as required by law.##8. Term. This Agreement commences on the Effective Date and will continue for an initial term as agreed between us and you (“Initial Term”) unless terminated earlier as allowed in this Agreement. Upon the expiration of the Initial Term, the term of this Agreement may be extended by agreement for successive terms of 1 year at our then-current fees (“Renewal Term”). The Initial Term and any Renewal Term(s) shall constitute the “Term”.##9. Fees, Billing, Renewal##9.1. Fees. Fees for your use of the Application and for any Support (if applicable) are described in our quote or invoice. Any fees during a Renewal Term will be at our then-current rates. We can modify our fees by providing you with reasonable notice (which shall be no less than 30 days prior). Unless otherwise stated, our fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on our income. All amounts are quoted in and you must pay all amounts owed in U.S. Dollars.##9.2. Payment. We will issue you with an invoice. We may require you to pay any invoice via direct debit or with a valid credit card, and you hereby authorize us to charge such credit card or carry out such direct debit for the fees for the Initial Term and fees for any Renewal Term(s). Such charges shall be paid in advance, either annually or in accordance with any different billing frequency we agree to with you. Unless otherwise agreed, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information. All payment obligations are non-cancellable and all amounts paid are non-refundable. If there is Additional Use or if you allow use of the Service by more than the paid-for number of Users, or process Instances in excess of the agreed limits, we may invoice you for the additional applicable fees.##9.3. Interest on overdue amounts. Overdue amounts are subject to a late charge of 1.0% per month, or the maximum permitted by law, whichever is less, plus all reasonable expenses of collection.##10. Suspension and Termination.##10.1. Your breach. If you are in breach of this Agreement, we may terminate or suspend your access to and use of the Application until you have cured the breach. Additionally, we may terminate this Agreement upon written notice to you if you materially breach the Agreement and do not cure such breach within 14 days of that notice. Upon the termination of this Agreement for any reason: (a) any amounts owed to us by you under this Agreement before such termination will become immediately due and payable; (b) you will return to us, uninstall or obliterate all of our property in your possession or control (including permanent removal of all Instances of the Application), and (c) we will terminate your access to or use of the Application. Any rights and duties that by their nature extend beyond termination or expiry of this Agreement shall survive beyond such time.##10.2. Termination of trial period. We reserve the right to terminate any trial period, at any time without notice.##10.3. Non-Payment. In addition to any other rights granted to us, we reserve the right to suspend your access to and use of the Application if you fail to pay any undisputed amount owed on or before its due date. We reserves the right to impose a reconnection fee in the event your access to and/or use of the Application is suspended.##11. Representations & Warranties##11.1. Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.##11.2. Data Warranty. You represent and warrant that you own or have obtained all rights, consents, permissions, or licenses necessary to access and use the Application and to allow us the Access.##11.3. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN SECTION, WE MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE APPLICATION AND THE APPLICATION AND ALL CONTENT AND ASSISTANCE IS PROVIDED TO YOU STRICTLY ON AN “AS IS, AS-AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY US TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.##12. Your indemnity. You shall indemnify and hold us, our licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of, or in connection with a claim arising from your or your Users’ use of the Application or in relation to our access to, or possession, manipulation, processing, or use of the Data.##13. Limitation of liability. IN NO EVENT SHALL OUR AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU IN THE 6 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL WE AND/OR OUR LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER LOSS OR 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 THE APPLICATION, OR THIS AGREEMENT, EVEN IF WE HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.##14. Confidentiality.##14.1. Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business, products, or services of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information, including information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”).##14.2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than exercising its rights or exercising its obligations under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty under this Agreement. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.##14.3. Exceptions. The Receiving Party’s obligations under this Agreement with respect to any Confidential Information of the Disclosing Party will not apply if such information: (a) was already known to the Receiving Party without restriction at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure. Disclosure pursuant to this Agreement shall not render Confidential Information as non-confidential or remove such Confidential Information from the obligations of the confidentiality obligations set forth in this section.##14.4. Return of Confidential Information. The Receiving Party will return to the Disclosing Party or use reasonable efforts to destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control promptly upon the written request of the Disclosing Party upon the expiration or termination of the Agreement. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations of confidentiality under this section.##15. Assignment and changes in control. This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void.##16. General.##16.1. Governing law. This Agreement shall be governed by the laws of New York, USA, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts located in New York.##16.2. No modification of terms. No text or information set forth on any other purchase order, pre-printed form or document (other than an associated our quote or invoice, if applicable) shall modify the terms and conditions of this Agreement.##16.3. Unenforceable terms. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.##16.4. Relationship of the parties. You and we are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between you and us.##16.5. No waiver. Our failure to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by us in writing.##16.6. Entire Agreement. This Agreement, together with any associated quote or invoice issued by us, comprises the entire agreement between you and us and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein, including any previously executed electronic version of an our agreement.##16.7. Notices. All notices, required or permitted under this Agreement must be delivered in writing by courier, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address provided. Notice hereunder will be effective: (a) upon receipt or 3 days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner; or (b) if delivered by email, on the same day.##16.8. Force majeure. Any delay in or failure of performance under this Agreement will not be considered a breach of this Agreement, and will be excused, to the extent caused by any event beyond the reasonable control of a party.
