GENERAL TERMS AND CONDITIONS##These General Terms and Conditions (“Agreement”) between MAPADORE S.r.l., with its registered seat at 8, via Carducci – Milano 20123, Italy (“MAPADORE”) and the customer indicated in the Service Order Form, as defined below, (“Customer”) shall be effective as of the date of acceptance by Customer (the “Effective Date”). ##MAPADORE and Customer are collectively referred to herein as the “Parties”, and each, individually, a “Party”. ##RECITALS##WHEREAS, MAPADORE licenses a software application hosted inside the Salesforce.com (“Salesforce”) technology stack and offered through the Salesforce web-based platform via http://www.salesforce.com and/or other designated websites as described in the Salesforce documentation and user guide, which allows end users of Salesforce.com to select, process and rank information more efficiently, as better described in the User Guide (“Software”);##WHEREAS, the Software is offered by MAPADORE as a service;##WHEREAS, the Software can be used by any Salesforce end user, and uses only data provided by Customer to Salesforce;##WHEREAS, MAPADORE intends to license the Software to Customer subject to the terms and conditions of this Agreement and that Customer intends to license the Software from MAPADORE subject to this Agreement.##NOW, THEREFORE, the Parties agree as follows: ##1. DEFINITIONS##“Acceptance Date” means the date on which MAPADORE accepts the Service Order Form from the Customer for subscription services. ##“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity (for purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity). ##“Authorized User” means any person, individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity, authorized by Customer to access and use the Software through Customer’s account under this Agreement.##“Customer” means the party named above and its Affiliates, representatives, agents and employees. ##“Customer Data” means all electronic data or information submitted by Customer to Salesforce.##“Derivative Works” mean a work consisting of any correction, modification, update, upgrade, enhancement, improvement, translation, adaptation, release or other change relating to the Software. ##“Laws” means any and all applicable laws, treaties, conventions, directives, regulations, ordinances, and judicial decisions in courts and tribunals of competent jurisdiction that relate to the Software or a Party, including any subsequent amendments, modifications and revisions thereto, or subsequent versions thereof. ##“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. ##“Service Order Form” or “SOF” has the meaning set forth in Section 2.a.ii(a). ##“Software License” means a world-wide, non exclusive license to use: (1) the MAPADORE Software ordered by Customer, including free and open source software and any third-party or other software; and (2) all new versions, updates, revisions, enhancements, improvements and modifications of the foregoing, that MAPADORE provides remote access to and use of as part of the Services. Software License does not include project development or customization work performed by MAPADORE.##“Specifications” means the specifications for the Software set forth in the applicable Service Order Form. ##“Term” has the meaning set forth in Section 11(a). ##“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, including but not limited to MAPADORE, interoperate with the Web-based platform services provided by Salesforce, including but not limited to those listed on the AppExchange, the online directory of applications that interoperate with Web-based platform services provided by Salesforce, located at http://www.salesforce.com/appexchange or at any successor websites. ##“User Guide” means the online user guide for the Services, accessible online through http://wiki.MAPADORE.com as updated from time to time. ##“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied a license via the Salesforce License application utilized by MAPADORE, by Customer (or by MAPADORE at Customer’s request). Users may include but are not limited to employees, consultants, contractors and agents of Customer, or third parties with whom Customer transacts business. ##2. SERVICES ##a. Services. Throughout the Term and at all times in connection with its actual or required performance under this Agreement, MAPADORE shall, in accordance with all terms and conditions set forth in this Agreement and each applicable Service Order Form:##i. grant the Software License; and##ii. provide to Customer and its Authorized Users the following services (“Services”):##the hosting, management and operation of the Software and other services for remote electronic access and use by the Customer and its Authorized Users as described in one or more written, sequentially numbered, service order forms specifically referencing this Agreement, including all Specifications set forth in such service orders, which, upon their acceptance will be deemed to be a Schedule to this Agreement and by this reference are incorporated in and made a part of this Agreement (each, a “Service Order Form” or “SOF”); ##service maintenance and support as set forth in Section 2(g) and in the Service Order Form; and##such other services as may be specified in the applicable Service Order Form. ##b. Service Order Form. For Services provided hereunder Customer and MAPADORE shall complete and accept the then applicable SOF which shall set forth the term of that SOF. Once accepted by the Parties, each SOF along with this Agreement shall be deemed a separate agreement for the Software License and Services provided in the SOF. Should there be a conflict between the terms of the SOF and this Agreement, the SOF shall govern. Nothing herein shall be construed or interpreted to obligate either Party to enter into any SOF with the other.##c. Customization Work. If Customer wishes to engage MAPADORE to perform any development and/or customization work relating to the Software, such work shall be governed under the terms and conditions of a separate Service Order Form. ##d. Term and Termination of the SOF. The SOF shall be effective as of the date of the Acceptance Date of the applicable SOF and shall continue until its expiration or termination in accordance with the terms of the applicable SOF. Termination of any SOF shall not affect any other SOF then in effect and the Agreement shall continue to govern such SOFs until they are terminated or performance thereunder has been completed. ##e. Payment of Services. Payment for the Software License and/or Services must be made immediately after the Acceptance Date and MAPADORE will not grant Software License and/or Services unless and until the Customer has paid for them in full.##f. User Subscriptions. Services that are User subscription-based may be accessed by no more than the number of Users specified in the applicable SOF. Additional User subscriptions may be added by written request by Customer and issuance of a new SOF. Any User subscriptions added during the subscription term will be prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added and the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services by written notice provided to MAPADORE. All licenses expire at the end of the subscription term. ##g. MAPADORE Responsibilities. MAPADORE shall: (i) provide to Customer basic support for the Services and for the Software License provided in a SOF at no additional charge except in the case of services specifically indicated to be unsupported. MAPADORE will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime, which will be communicated to Customer prior to such downtime, or (b) any unavailability caused by circumstances beyond MAPADORE’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays. MAPADORE will provide the Services in accordance with applicable Laws. ##h. Upgrades and Enhancements. MAPADORE reserves the right, in its sole discretion, to automatically apply certain upgrades or updates to the Software. ##3. CUSTOMER RESPONSIBILITIES. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and promptly notify MAPADORE of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and the Laws. Customer shall not (a) sub-license the Software or 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, libelous, 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, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. ##4. THIRD-PARTY PROVIDERS ##a. Third Party Services. Software features that interoperate with Google services depend on the continuing availability of the respective application programming interface (“API”) and program for use with the Services. If the API or program cease to be available on reasonable terms for the Services, MAPADORE may cease providing such Service features without entitling Customer to any refund, credit, or other compensation and without any liability on the part of MAPADORE to Customer. MAPADORE has the right in its sole discretion to replace Google services with equivalent services for the purposes of continuity of Services. To the extent MAPADORE discontinues the Services under this section or fails to replace Google services with an equivalent service in order to continue providing the Services, Customer may terminate this Agreement and any open SOFs without any further liability to MAPADORE except for any fees owed by Customer to MAPADORE for Services provided through the date of termination.##b. End User License Agreement. By accepting this Agreement, the Customer also accepts all third party end user license agreements of any component, API, application, source code utilized or packaged and delivered by the Service, provided that MAPADORE provides Customer with such third party end user license agreements if requested to do so in writing. ##5. SERVICE TERMS. If Customer is in breach of this Agreement, which breach is not cured within thirty (30) days of notice of such breach provided by MAPADORE to Customer, MAPADORE may, without limiting its other rights and remedies, suspend Customer’s access to the Services upon notice to Customer and MAPADORE shall have no liability to Customer with respect to any such suspension. ##6. PROPRIETARY RIGHTS ##a. Reservation of Rights. Subject to the limited rights expressly granted hereunder, MAPADORE reserves all rights, title and interest in and to the Software, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.##b. Restrictions. Customer shall not (i) permit any third party to access the Software except as permitted herein or in a SOF, (ii) create Derivative Works based on the Software, (iii) copy, frame or mirror any part or content of the Software, other than copying or framing on Customer's own intranets or otherwise for its own internal business purposes, (iv) reverse engineer the Software and the Services, (v) access the Software in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services, (vi) remove or destroy any copyright notices or other proprietary markings. ##c. Ownership of Customer Data. Customer exclusively owns and will continue to own all rights, title and interest in and to all Customer Data. ##d. Ownership of Derivative Works. To the extent Customer or its agents conceive or create Derivative Works of the Software, Customer acknowledges that such Derivative Works shall be solely and exclusively owned by MAPADORE. ##e. Suggestions. MAPADORE shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Software any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Software. ##7. CONFIDENTIALITY ##7.1. Definition of Confidential Information. As used herein, "Confidential Information" means 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 and the circumstances of disclosure. Confidential Information shall include Customer Data, Software, Services, this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.##7.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither Party shall disclose the terms of this Agreement to any third party other than its Affiliates and their legal counsel and accountants without the other Party’s prior written consent.##7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by Law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.##7.4 Return of Customer Information. Any and all information and material supplied by Customer to MAPADORE, including any information regarding customer data gathered by MAPADORE in connection with the performance of the services (“Customer Information”) shall remain the property of Customer. MAPADORE will not make copies of Customer Information except to the extent reasonably necessary to perform services required hereunder. Upon request, MAPADORE shall provide Customer with copies of Customer Information. In the event of termination of this Agreement for any reason, at the request of Customer, all Customer Information, including any copies, shall be returned to Customer by MAPADORE, at no additional cost to Customer. After returning such Customer Information as specified above in the event of termination of this Agreement for any reason, MAPADORE shall have no obligation to maintain or provide any of such Customer Information and shall thereafter, unless legally prohibited, delete all of such Information in its systems or otherwise in its possession or under its control.##7.5 Privacy Protection. Non-public personal information regarding customers or employees of Customer that is disclosed to MAPADORE (“NPPI”) will be used by MAPADORE only to the extent necessary to perform the Services. MAPADORE agrees to maintain the confidentiality of any such NPPI and to use and re-disclose it only as Customer specifically directs. MAPADORE agrees that it shall (i) not disclose or use any NPPI except to the extent necessary to carry out its obligations under this Agreement and for no other purpose, (ii) not disclose NPPI to any third party, including, without limitation, its affiliates, agents and consultants, without the prior written consent of Customer and an agreement in writing from such third party to use or disclose such NPPI only to the extent necessary to carry out MAPADORE’s obligations under this Agreement and for no other purposes, (iii) maintain, and shall require all authorized third parties utilized in the performance of the services to maintain, effective information security measures to protect NPPI from unauthorized disclosure or use, and (iv) provide Customer with information regarding such security measures upon the reasonable request of Customer, and, upon reasonable notice, Customer shall have the right to audit such security measures. In the event of disclosure of loss, inability to account for, or unauthorized access to NPPI by MAPADORE or any third party, MAPADORE shall immediately notify Customer in writing and take appropriate action to prevent further disclosure or loss, or unauthorized access. MAPADORE shall cooperate with Customer to provide any notices and information regarding such unauthorized access to appropriate law enforcement agencies and government regulatory authorities that Customer in its sole discretion deems necessary.##8. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS ##a. MAPADORE Warranties. MAPADORE warrants that (i) the Software and the Services shall perform materially in accordance with the User Guide, and (ii) subject to the “Third Party Services” under section 4(a) above, the functionality of the Software and of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Customer’s exclusive remedy from MAPADORE, and MAPADORE’s sole liability to Customer, shall be to terminate this Agreement as provided in the “Termination for Cause” section below, provided that Customer provides written notice of such nonconformance of Services under this Section 8(a) no more than thirty (30) days after the date such Services are provided. ##b. Mutual Warranties. Each Party represents and warrants that: ##i. it is a duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; ##ii. it will not transmit to the other Party any Malicious Code; ##iii. acceptance of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such Party; and##iv. when accepted by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms. ##c. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, MAPADORE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE AND THE SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR COURSE OF PERFORMANCE, AND MAPADORE HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, MAPADORE DISCLAIMS ANY WARRANTY THAT THE SOFTWARE AND THE SERVICES MEET CUSTOMER’S REQUIREMENTS OR THAT SERVICES WILL BE PROVIDED OR OPERATE UNINTERRUPTED OR ERROR-FREE.##9. MUTUAL INDEMNIFICATION ##a. MAPADORE Indemnification. MAPADORE shall, at its own expense, indemnify, defend and hold Customer harmless from any claim, demand, cause of action, debt, liability or suit (i) alleging that the Software and/or Services as delivered by MAPADORE infringe any registered United States copyright, or that MAPADORE has knowingly misappropriated any trade secret or other intellectual property right of any other entity, including any losses, damages, or expenses arising from any such claim or suit, or (ii) arising out of or relating to any breach of this Agreement by MAPADORE or any wrongful act or omission or willful misconduct or violation of Laws by MAPADORE in connection with this Agreement. Customer shall provide MAPADORE with authority to proceed as contemplated herein and reasonable assistance to settle and/or defend any such claim or suit.##b. Customer Indemnification. ##i. Customer shall, at its own expense, indemnify, defend and hold MAPADORE harmless from any claim, demand, cause of action, debt, liability, allegation or suit arising out of or relating to the misuse or misappropriation of, or any use in violation of this Agreement, of the Software or of the Services, including any losses, damages or expenses arising from any such claim or suit. MAPADORE agrees to cooperate with Customer in the defense or settlement of any such claim or suit, provided that MAPADORE shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Customer. ##ii. Customer agrees to indemnify, defend, and hold harmless MAPADORE, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt, liability, allegation or suit including without limitation, reasonable attorneys’ fees, to the extent that such action is based upon a claim that any of the Customer Data to be provided by Customer hereunder infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses. ##c. Indemnification Procedures. An indemnifying Party’s indemnification obligations under this Section 9 are subject to the indemnified Party’s(ies)’ compliance with the following procedures: (1) the indemnified Party(ies) must provide the indemnifying Party with prompt written notice of such claim or action, provided, however, that the indemnifying Party’s obligations under this Section shall continue even if the indemnified Party(ies) does not give the indemnifying Party such prompt notice of any such liability, cost, damage, claim or allegation so long as such failure does not materially prejudice the indemnifying Party; (2) the indemnifying Party shall have the right to control the defense and negotiation of all claims or allegations; provided, however, that the indemnifying Party may not settle any claim or allegation without the consent of the indemnified Party(ies) if such settlement admits liability on the part of the indemnified Party(ies) or imposes any liability or obligation upon the indemnified Party(ies), in each instance without the indemnified Party’s(ies’) prior written consent (which consent shall not be unreasonably withheld or delayed); (3) the indemnified Party(ies) may, at its/their expense, retain counsel to assist and observe the indemnifying Party’s defense of such claim; and (4) all indemnified Parties shall cooperate fully with the indemnifying Party in connection with such claim, demand, cause of action, debt, liability, allegation or suit at the indemnifying Party’s expense. ##d. Exclusive Remedy. This “Mutual Indemnification” section 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.##10. LIMITATION OF LIABILITY ##a. Limitation of Liability. OTHER THAN LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 7 (CONFIDENTIALITY) OR A PARTY’S OBLIGATIONS UNDER SECTION 9 (MUTUAL INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE MAPADORE SERVICES FOR THE RELATING SOF. ##b. Exclusion of Consequential and Related Damages. 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, COVER 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 LAWS OR FOR LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 9 (MUTUAL INDEMNIFICATION). ##11. TERM AND TERMINATION ##a. Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions or licenses granted in accordance with an applicable SOF have expired or been terminated. ##b. Term of User Subscriptions. User subscriptions commence on the start date specified in Customer’s SOF to MAPADORE for such subscriptions and continue for the subscription term specified therein. Unless otherwise stated in the SOF, the SOF will automatically renew for a period of twelve (12) months unless either Party gives sixty (60) days’ prior written notice (which includes notice via email) of its intent not to renew prior to the expiration of the then current term. [Upon the renewal of an applicable SOF, MAPADORE reserves the right to increase the price of the Software up to five percent (5%) of the Customer’s current price at the time of renewal.]##c. Termination for Cause. A Party may terminate this Agreement and any open SOF’s for cause (i) upon thirty (30) days’ prior written notice to the other Party of a material breach if such breach remains uncured at the expiration of such 30-day period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. ##d. Surviving Provisions. The following sections shall survive any termination or expiration of this Agreement: Section 6 (“Proprietary Rights”), Section 7 (“Confidentiality”), Section 8 (“Warranties, Exclusive Remedies and Disclaimers”), Section 9 (“Mutual Indemnification”), Section 10 (“Limitation of Liability”), Section 11(d) (“Surviving Provisions”), and Section 13 (“General Provisions”). ##Full Master Service Terms of Use Agreement downloadable at: http://bit.ly/2p0EKyE
