This ACCESS LICENSE (“Agreement”) is made as of the date the Client installed Mogli Technologies software (the “Effective Date”), by and between Tact, L3C, a Vermont Low Profit Limited Liability Company with its principal business address as PO BOX 65 Niwot, CO 80544, dba Mogli Technologies, LLC and having a place of business at 104 2nd Avenue, Niwot, Colorado 80503 (“Company”) and the party installing the Company Software (the “Client”); together (the Parties). BY USING COMPANY SOFTWARE, YOU CONSENT TO THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE PLEASE DO NOT USE THE SOFTWARE. ####ACCESS LICENSE ##By using the Software, you represent that you have read and agree to all of the terms and conditions of this Agreement, which also include and incorporate Company’s Acceptable Use Policy. These terms and conditions will remain in effect throughout your use of the Software and continue after this Agreement expires, cancels or is terminated. These terms and conditions are legally binding should you choose to use the Software. You may not use the Software and may not accept the terms if (a) you are not of legal age to form a binding contract with Company, or (b) you are a person barred from receiving the Software under the laws of the United States or other countries including the country in which you are resident or from which you use the Software. ##If you are accepting on behalf of your employer or another entity, you represent and warrant that: ##you have full legal authority to bind your employer, or the applicable entity, to these terms of service; ##you have read and understand this Agreement; and ##you agree, on behalf of the party that you represent, to all of the terms of this Agreement. If you do not have the legal authority to bind your employer or the applicable entity, please do not use the Software. ##Company reserves the right to change these Terms of Service from time to time without notice by posting them to Mogli SMS’s Appexchange site and/or website. When Company does, Company will also revise the “last update” date of these Terms of Service. Client’s continued use of the Software after such posting will constitute acceptance by Client of such amendments to these Terms of Service. ##SOFTWARE. Subject to the restrictions set forth below and the payment of all applicable fees, Company grants to Client and those individuals authorized by Client (“End Users”) a limited, non-exclusive, non-transferable, non-sublicensable license during the Term to download the Software for installation in Client’s salesforce.com instance (“SFDC Instance”) in connection with the SFDC Instance for the number of users and numbers for which Client has paid applicable subscription fees for Client internal business purposes. Notwithstanding the foregoing and subject to the terms of this Agreement, Client may access and use the Software on a trial basis and free of charge for a period not to exceed fifteen calendar days (“Trial Period”). Client’s access to the Software will automatically terminate following such Trial Period, unless Client has paid in full all applicable fees in accordance with this Agreement.##SOFTWARE AVAILABILITY. Client acknowledges that access to and use of the Software is dependent on the availability and proper functioning of the SFDC Instance and that Company has no control over the SFDC Instance or the salesforce.com service. Company disclaims any and all responsibility and liability for any Client’s inability to access or use the Software, or degradation of the performance of the Software, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to the SFDC Instance or other third party owned or controlled technology. Client is solely responsible for the configuration of the SDFC Instance and all technology and services necessary to access and use the Internet and the SFDC Instance.##OWNERSHIP.##NON TRANSFER. The rights granted hereunder do not constitute a transfer or sale of Company's or its licensors’ ownership rights in or to the Software, including, without limitation: (a) the Software and the applicable documentation; (b) Company name, logo, domain name, Company product names and other trademarks; and (c) hardware, processes, algorithms, user interfaces, know-how and other trade secrets or technology (collectively, “Company Technology”). The Company Technology is protected by applicable intellectual property laws, including, but without limitation, United States copyright laws and international treaties. Except for the rights granted above, Company and its licensors retain all right, title and interest in and to Company Technology, including all intellectual property rights therein. ##INFORMATION OWNERSHIP. As between Company and Client, Client owns the information in the SFDC Instance and Company makes no claim of ownership to any information in the SFDC Instance. Client acknowledges and agrees that the Software will access and use Client information from the SFDC instance, but solely to the extent necessary for the Software to perform as intended. This access and use does not permit the Software, or Company, to access or use such Client information outside of the SFDC instance or for any other purpose, except as expressly permitted in writing by Client. Client is solely responsible for the accuracy of all information in the SFDC Instance.##RESTRICTIONS; RESPONSIBILITIES.## USE. CLIENT MAY NOT (AND MAY NOT ALLOW A THIRD PARTY TO) RENT, LEASE, SUBLICENSE, SELL, CHARGE, ASSIGN, LOAN, USE FOR TIMESHARING OR SERVICE BUREAU PURPOSES OR OTHERWISE TRANSFER THE SOFTWARE OR ANY OF CLIENT’S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT. Client may not (and may not allow a third party to): (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Software by any means whatsoever, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; (c) attempt to circumvent any seat or use restrictions or gain unauthorized access to the Software, computer systems or networks related to the Software; (d) modify or create derivative works based on the Software; (e) copy or distribute the Software; (f) allow use of the Software by anyone other than user(s) authorized and paid for by Client; (g) knowingly transmit through the Software unlawful, libelous, tortious, defamatory, threatening, vulgar, or obscene material or material containing viruses or other harmful code; or (h) otherwise use the Software other than as permitted in Section 2. Client acknowledges that Company may utilize technological license control features that can limit Client access to or use of Software to ensure Client compliance with this Agreement.##COMPANY ACCEPTABLE USE POLICY. This Acceptable Use Policy describes actions that Company prohibits when you use its Software. BY USING THE SOFTWARE, YOU CONSENT TO THE TERMS AND CONDITIONS OF THIS ACCEPTABLE USE POLICY. IF YOU DO NOT AGREE TO THIS ACCEPTABLE USE POLICY PLEASE DO NOT USE THE SOFTWARE. ##All features of the Software may only be accessed and used pursuant to the Software Order Form. ##Company may in its sole discretion determine whether you are in violation of this Acceptable Use Policy. The Software may be used only for lawful purposes and may not be used for any illegal activities. Using the Software in an illegal, abusive or any other unacceptable manner is prohibited. ##The following list gives examples of illegal, abusive, interfering or otherwise unacceptable or inappropriate behavior while using the Software. This list is provided by way of example and shall not be considered exhaustive. ##Attempting to bypass or break any security mechanism on any of the Software or using the Software in any other manner that poses a security or service risk to Company, to any user of our Software, or to any of our or their respective customers.##Testing or reverse-engineering the Software in order to find limitations, vulnerabilities or evade filtering capabilities.##Using the Software in any manner that may subject Company or any third party to liability, damages or danger.##Using the Software in any manner that violates any applicable third party policies or requirements that Company has communicated to the customer.##Using the Software in any manner that violates the Mobile Marketing Association guidelines and/or best practices, carrier guidelines, or any other industry standards.##Engaging in fraud with respect to your account.##Using your account to engage in fraudulent activity with respect to third parties or otherwise using your account to bypass phone identification systems such as those by classified advertising websites.##Using any of the Company Properties or Company Marks other than as expressly permitted in the Terms of Service##Transmitting any material that may infringe the intellectual property rights or other rights of third parties, including but not limited to trademark, copyright or rights of publicity or otherwise violating, infringing, or misappropriating the rights of any third party.##Engaging in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.##Using the Software in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls, SMS or text messages, over the top messaging such as WhatsApp and Facebook Messenger, voice mail, or faxes.##Using phone numbers provided by Company (“Company Phone Numbers” or “Gateway Phone Numbers”) for SMS in a manner that is not designed to enhance or augment the person-to-person nature of SMS communications.##Offering any Emergency Services to users. “Emergency Services” shall mean services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services.##Promoting or engaging in illegal activities.##Engaging in activities or transmitting through the Software any information that may be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.##Harvesting or otherwise collecting information about others, including email addresses or phone numbers without their express consent.##Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call using your account.##Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs.##Violating or facilitating the violation of any U.S. or foreign law regarding the transmission of technical data or software.##Interfering with or disrupting networks connected to the Software or violating the regulations, policies or procedures of such networks.##Improperly engaging in activity for which the United States Federal Communications Commission has restricted or regulated with regard to proper use of the public telephony network.##Using the Software, or a component of the Software, in a manner not authorized by Company.##Company reserves the right to change the Acceptable Use Policy from time to time without notice by posting changes to Company’s Appexchange site and/or website. When Company does, Company will also revise the “last update” date of the Acceptable Use Policy. ##Violation of this Acceptable Use Policy may result in the immediate suspension or termination of your account, civil and/or criminal liability, and Company may, in addition to any remedy that it may have at law or in equity, terminate permission for you to use the Software. In such event, you are still liable for any and all outstanding charges accumulated through your use of the Software, including uses in violation of this Acceptable Use Policy or the laws of any jurisdiction. In addition, Company may investigate incidents that are contrary to this Acceptable Use Policy and provide requested information to third parties who have provided notice to Company stating that they have been harmed by your failure to abide by this Acceptable Use Policy. Company’s failure to enforce this policy in each and every instance in which it might have application does not amount to a waiver of Company’s rights hereunder. ##ACTIVITY. Client is responsible for all activity occurring under Client’s user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Client use of the Software, including those related to data privacy, international communications and the transmission of technical or personal data. Client shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, and will notify Company promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Company immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of content that is known or suspected by Client or Client’s users; and (iii) not impersonate another Company user or provide false identity information to gain access to or use the Software. Client will not attempt to or use access to the Software to knowingly interfere with or disrupt the integrity or performance of the Software or the data contained therein. ##PUBLICITY. Company may create a general contract announcement press release indicating that the Parties have entered into this Agreement, (a) use Client’s business name and logo in written materials identifying Company’s Clients and in other appropriate promotional materials; (b) identify Client in applicable case studies; and (c) identify Client as a reference for prospective Clients and the media (Client shall not be obligated to comment in any way). ##FEES AND PAYMENT.## ANNUAL CONTRACT. Client shall pay in advance an annual fee to access and use the Software for each user that will access or use the Software. Fees are described in the applicable Software listing on the Salesforce Appexchange, the Mogli SMS Website or through a Software Order Form. Company will invoice Client annually, and Client will not be given access to the Software until Client has paid the applicable fees. The first annual fee shall start to accrue as of the first day immediately following the Trial Period or upon the Effective Date of this Agreement. ## TAXES. The fees do not include any taxes or duties of any kind, which may be imposed by any governmental entity on the transactions contemplated by this Agreement, and Client shall be solely responsible for all such taxes other than taxes based solely on Company’s income. All amounts paid are non-refundable. Client may purchase additional user licenses at any time on a pro-rata basis so that all licenses will have the same expiration date. All amounts are quoted in and must be paid in US dollars. In addition to any other rights granted to Company herein, Company reserves the right to suspend Client’s access to and use of the Software if Client fails to pay any undisputed amount owed on or before its due date. ##TERM.##ANNUAL CONTRACT. If Client subscribes to the Software with an annual contract, the initial term of this Agreement shall be one year from the “Software Order Effective Date” in the Software Order Form (“SOF”). This contract shall automatically renew for additional successive one year terms at the Company’s then-current list price, or renewal price otherwise noted in the Software Order Form, unless terminated by either party upon thirty days’ notice prior to the expiration of the then-current term, or unless otherwise noted in Section 3 (Subscription Period) of the Software Order Form.##TERMINATION. Either party shall have the right to terminate this Agreement in the event of a breach by the other party, which breach has not been cured within thirty days of the receipt of written notice (email or physical letter) thereof, except in the case of Client’s failure to pay any fees when due hereunder, which must be cured within five days after receipt of written notice from Company. Either party may terminate this Agreement if the other party becomes the subject of an involuntary petition in bankruptcy or other proceeding relating to insolvency, receivership, or liquidation, if such petition is not dismissed within sixty days of filing. Upon termination of this Agreement for any reason, the rights granted to Client hereunder will immediately terminate and Client shall immediately discontinue any use of the Software. Termination shall not relieve Client of the obligation to pay any fees accrued or payable to Company prior to the effective date of termination.##SUPPORT AND UPDATES.##During the Term, Company will provide chat and email to Client for current versions of the Software. Standard support includes questions and usage of Software, and evaluation of bugs for prioritization in upcoming software releases. Company will investigate all of Client’s questions and problems promptly. Client agrees to provide adequate information to Company to assist in the investigation and to confirm that any problems have been resolved. Company targets a support case reply time of twenty-four hours or less during weekdays, excluding US Federal Public Holidays, during the normal business hours of 9am-5pm Mountain Time, USA. Optional flexible support hours for Software customizations, customized training, and support outside of normal business hours may be purchased separately.##Company may, in its sole discretion, from time to time provide updates to the Software and may include such updates, free of charge, in the Software, provided Client has paid all applicable fees then due hereunder. Timing and procedures for any updates will be coordinated with Client via email and/or telephone to minimize downtime. ##CLIENT WARRANTIES. Client shall be solely responsible for all activities in connection with the Software that occur under Client’s username(s). Without limiting the generality of the foregoing, Client shall: (i) comply with all applicable laws and regulations; and (ii) be solely responsible for the accuracy, reliability, and quality of any information or data submitted by Client to Company or processed using the Software. Client warrants that any data, content, or materials used, stored or created by Client using the Software will not infringe the copyright, trade secret, patent, privacy, publicity, or other proprietary or intellectual property right of any third party. ##BREACH OF CLIENT WARRANTIES. In the event of any breach, or reasonably anticipated breach, of any of Client’s warranties or obligations, or Client infringes or misappropriates Company's intellectual property rights, in addition to any other remedies available at law or in equity, Company will have the right to immediately, in Company's sole discretion, suspend Client’s access to or use of the Software and/or terminate this Agreement, if deemed reasonably necessary by Company to prevent any harm to Company or its business. ##INDEMNITY. ## CLIENT. Client shall indemnify and hold Company and its subsidiaries, affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorneys’ fees and costs), arising out of a claim or demand alleging that any data or content submitted by Client to Company infringes, misappropriates, or violates any rights of a third party including any third party intellectual property rights. ## THIRD PARTY. If any action is instituted by a third party against Client based upon a claim that the Software, as provided, infringes a United States patent, copyright or trademark, then Company will defend such action at its own expense on behalf of Client and will pay all damages attributable to such claim which are finally awarded against Client or paid in settlement of such claim. Company may, at its option and expense, and as Client exclusive remedy hereunder: (a) procure for Client the right to continue using the Software; (b) replace or modify the Software so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Client access to the Software and refund any amounts previously paid for the Software attributable to the remainder of the then-current term of this Agreement. Company will have no liability to Client for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Client or of the use of the Software (i) after it has been modified by Client or a third party without Company's prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Company where the combination is the basis for the infringing activity. This Section sets forth the entire obligation of Company and Client exclusive remedy against Company or any of its suppliers for any infringement claim. ##WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. CLIENT ASSUMES ALL RESPONSIBILITY FOR SELECTION OF THE SOFTWARE TO ACHIEVE ITS INTENDED RESULTS AND FOR THE USE OF AND RESULTS OBTAINED FROM THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS, BE UNINTERRUPTED, OR ERROR-FREE. ##LIMITATION OF LIABILITY. EXCEPT FOR COMPANY’S OBLIGATIONS UNDER SECTION 14.2, UNDER NO CIRCUMSTANCES WILL COMPANY, ITS LICENSORS, OR PARTNERS BE LIABLE FOR LOSS OF PROFITS, BUSINESS OR DATA (EVEN IF THE SAME WERE JUDGED BY A COURT TO BE DIRECT LOSSES) OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER SUCH PECUNIARY LOSS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR COMPANY’S OBLIGATIONS UNDER SECTION 14.2, IN NO EVENT SHALL COMPANY, ITS LICENSORS’ OR SALESFORCE.COM’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE LICENSE FEES PAID BY CLIENT FOR THE SOFTWARE FOR THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THEIR ESSENTIAL PURPOSE. THE ABOVE WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY AND DAMAGES INURE TO THE BENEFIT OF COMPANY’S LICENSORS AND SALESFORCE.COM. CLIENT ACKNOWLEDGES AND AGREES THAT THIS SECTION (LIMITATION OF LIABILITY) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CLIENT AND COMPANY.##DATA PROTECTION. Where Client is a business, company or similar organization, to the extent that Company may Process Personal Data on Client’s behalf in connection with the Agreement and (a) the Personal Data relates to individuals located in the EEA or (b) Client is located in the EEA, the parties agree that Company will Process such Personal Data in accordance with the Data Processing Addendum offered by SFDC. For the purposes of this section, the terms "Personal Data", "Process" and "EEA" have the meanings given in the cSFDC Data Processing Addendum.##MISCELLANEOUS. ##SURVIVAL. The following provisions will survive any expiration or termination of this Agreement: Sections: 4 (Ownership), 5 (Restrictions), 7 (Fees and Payment), 10 (Termination), 13 (Client Warranties), 14 (Indemnity), 15 (Warranty Disclaimer), 16 (Limitation of Liability). ##FORCE MAJURE. No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to a force majeure event, including acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.##GOVERNING LAW and VENUE. This Agreement shall be governed by the Uniform Commercial Code of the United States as applicable substantive law. All disputes arising in connection with this Agreement, if not amicably settled between the parties within thirty (30) days of written notice of such dispute given by one party to the other, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the Rules. The arbitration proceedings shall take place in Boulder, Colorado. This Agreement and all Statements of Work and Software Orders will be governed by and interpreted in accordance with the laws of the State of Colorado, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ## REMEDIES. Except as otherwise expressly provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. If any legal action is brought by a party to enforce this Agreement, the prevailing party is entitled to recover from the non-prevailing party all reasonable attorneys’ fees, court costs, other collection expenses, all travel and lodging costs related to attending depositions and court proceedings in addition to any other relief it may receive. ##COMPLETE AGREEMENT. This Agreement contains the final, complete and exclusive statement of the agreement between the Parties with respect to the transactions contemplated herein and all prior or contemporaneous written or oral agreements with respect to the subject matter hereof are merged herein.##ENFORCEMENT. Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision will be effective only if in writing and signed by the parties hereto. The waiver of any breach of any provision will not constitute a waiver of any subsequent breach of the same other provisions hereof.##SEVERABILITY. If any provision is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.##EXPORT CONTROLS. The parties agree to comply fully with all Applicable Laws of the United States, or of any foreign government to or from where a party is shipping, to in connection with the import, export or re-export, directly or indirectly, of Services in connection with this Agreement.
