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This Subscription Agreement (“Agreement”) is between Prolifiq, an Oregon corporation, (“Prolifiq”) and the person or entity (“Customer”) who has ordered the use of the Prolifiq online suite of software tools and services (the “Services”) that are available in connection with this Agreement. It constitutes the complete agreement between the parties regarding the Services, and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning that same subject matter. Any modifications to this Agreement must be in writing signed by a duly authorized representative of both parties.
PLEASE READ THIS SUBSCRIPTION AGREEMENT CAREFULLY BEFORE USING THE SERVICES. BY ENABLING USE OF THE SERVICES IN YOUR SALESFORCE.COM (“SFDC”) ACCOUNT THROUGH THE APPEXCHANGE, YOU ARE AGREEING TO THIS AGREEMENT. IF YOU ARE USING THE SERVICES ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT UNCONDITIONALLY AGREE TO THIS AGREEMENT, YOU MUST DISABLE THE SERVICES, AND YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES.
TERMS AND CONDITIONS
Prolifiq provides the Services via the SFDC AppExchange platform (the “Platform”). Any use of the Services is subject to the Customer maintaining an appropriate account with SFDC.
1. Ordering. Customer and Prolifiq may from time-to-time enter into orders for the Services on a form provided by Prolifiq (each, an “Order”), and any such Order shall be governed by this Agreement. This Agreement governs any conflicts between it and any Order. Any additional provisions that Customer may add to a purchase order or similar ordering document are hereby rejected.
2. Services; Applications. In exchange for payment of the fees listed on the Order (“Fees”) and subject to the restrictions listed below in Section 3 and any listed in the Order, Customer may have the number of Users authorized by the Order access and use the Services listed on the Order for the duration of the time period listed in the Order (the “Subscription Period”). A “User” means a specific individual identified by Customer who is an employee, contractor, consultant, or agent of Customer or any Affiliate of Customer, and who is authorized by the Customer to use the Services on Customer’s behalf. “Affiliate” means any corporation, firm, partnership or other entity that directly or indirectly controls, or is controlled by, or is under common control with Customer.
3. Restrictions. Other than as allowed by this Agreement, Customer will not: (a) allow any person who is not a User access and use the Services through any means; (b) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Services; (c) distribute, transfer, grant sublicenses, or otherwise make available the Services to third parties (including as an application service provider, service bureau, or rental source); (d) embed or incorporate in any manner the Services into websites other than the Platform; (e) except as enabled by an interface approved by Prolifiq, create add-ons, plug-ins, extensions, modifications to or derivative works of the Services; (f) use the Services in a manner not authorized under the documentation on the Platform or in violation of any applicable law, rule or regulation, including any export/import laws; or (g) in any way access or use the Services to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Services. Other than as stated in Section 2, Prolifiq reserves all right, title and interest in the Services. The Services embody certain patents, as listed on the Prolifiq website. The Services do not include the means by which to connect to the Services via the Internet. Customer is responsible for obtaining and maintaining all such means, including telecommunications services and equipment, and Customer’s account with SFDC. In the event that Customer provides comments, suggestions and recommendations to Prolifiq with respect to the Services (“Feedback”), Customer hereby grants Prolifiq a world-wide, royalty-free, irrevocable, transferable, perpetual license to use and otherwise commercially exploit any such Feedback for any purpose.
4. Users. Customer will ensure that all Users (a) provide accurate, current and complete information as may be prompted by any registration forms ("Registration Data"), (b) maintain the security of any passwords and identification, and (c) maintain and promptly update the Registration Data and any other information provided to Prolifiq. Customer is responsible and liable for the acts and omissions of any User. Customer may not allow any person other than the User to use such User’s account.
5. Duration. The Agreement will begin on the Effective Date, and will last unless terminated in accordance with this Section 5. Unless otherwise stated in the Order, an Order shall automatically renew for the same Subscription Period unless either party elects against renewal in writing at least sixty (60) days prior to the end of the then-current Subscription Period.
5.1. Suspension of Access. Prolifiq may suspend Customer’s access to and use of the Services if any Fees that are due remain unpaid for more than thirty (30) days past the payment due date, or if Customer is in material breach of Section 10.2. Prolifiq will provide Customer with ten (10) days of notice (which may be via email) prior to suspending the account. The suspension will last until all Fees have been paid or the breach has been cured, and will not extend the Customer’s Subscription Period.
5.2. Termination without Cause. Either party may terminate this Agreement or a particular Order without cause by giving the other party at least thirty (30) days prior written notice. If Customer has terminated without cause, all Fees that were not yet due become immediately due and payable as of the termination date, and Customer is not entitled to any refunds. Termination of Customer’s SFDC account is deemed to be a termination of this Agreement by Customer without cause. If Prolifiq has terminated without cause, Prolifiq will within thirty (30) days after termination refund to Customer any amounts in pre-paid Fees that correspond to unused portions of the Subscription Period (prorated by day).
5.3. Termination for Breach. Either party may terminate this Agreement or any Order if the other party has materially breached any of the terms and conditions and failed to cure the breach following at least thirty (30) days written notice. If Customer has terminated under this Section, within thirty (30) days after termination Prolifiq will refund to Customer the pro-rated amount of the Fees that corresponds to the terminated portion of a Subscription Period. If Prolifiq has terminated under this Section, all Fees that were not yet due become immediately due and payable as of the termination date.
5.4. Termination for Bankruptcy. Either party may terminate this Agreement immediately upon written notice if (a) the other party is declared insolvent or adjudged bankrupt by a court of competent jurisdiction, or (b) a petition for bankruptcy or reorganization or an arrangement with creditors is filed by or against that party and is not dismissed within sixty (60) days. If this Agreement terminates under this Section, Customer shall pay Prolifiq all Fees that are due and payable up to the date of termination, and Customer is not entitled to any refund of Fees that cover any unused portion of a Subscription Period.
5.5. Effect of Termination. Termination of this Agreement terminates all outstanding Subscription Periods as of the same date. Termination of an Order terminates only that Order’s Subscription Period. Upon termination for any reason, (a) Customer will cease all access to the affected Services, and (b) each party will within ten (10) days destroy all Confidential Information (defined in Sections 8 and 9) of such other party within its possession (including deleting it from any computer systems)(except that each party may retain a single copy of Confidential Information in its archives, such Confidential Information to remain subject to Section 8 or 9, as applicable). Prolifiq is not responsible for maintaining any Customer Data; Customer Data is stored with SFDC. The following terms survive termination for any reason: 3, 5.5, 8.4, and 9 through 14.
6. Fees. Unless otherwise stated in an Order: (a) Customer will pay the fees stated in the Order (“Fees”) in U.S. Dollars and in accordance with this Section 6; (b) all Fees are non-cancellable and non-refundable; (c) 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”); (d) Customer is responsible for paying all Taxes associated with this Agreement (if Prolifiq has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Prolifiq with a valid tax exemption certificate authorized by the appropriate taxing authority; for clarity, Prolifiq is solely responsible for taxes assessable against it based on Prolifiq’s income, property and employees); (e) Customer will pay all invoiced amounts within thirty (30) days of the invoice date; (f) in addition to any other rights and remedies Prolifiq may have (including termination and suspension of Services), any balance that is not paid when due will bear interest at the rate of one and a half percent (1.5%) per month or the highest rate allowed by the applicable law, whichever is less, until fully paid; and (g) the Fee for any renewal Subscription Period shall increase by up to seven percent (7%) over the prior Subscription Period, unless Prolifiq notifies Customer of different pricing at least sixty (60) days prior to the beginning of the renewal Subscription Period.
7. Support. Prolifiq will provide the support to Customer that is stated in the Order. Prolifiq may modify the support in its discretion.
8. Customer Data.
8.1. Definition. “Customer Data” means any information, in any form, which Customer discloses to Prolifiq during a Subscription Period (including all information that Customer transfers into the Services or that is generated by the Services from Customer Data (such as reports)). “Customer Data” may include an individual’s name, work email address, work address, and work phone number, but otherwise does not include an individual person’s “Personal Information” (such as image, likeness, voice, home address, home phone number, personal e-mail address, IP address, financial account numbers, social security number or other government-issued identifier, credit information, medical or health information and personal financial information). Prolifiq disclaims any responsibility or liability for any Personal Information that is included in Customer Data outside of what is described in the foregoing sentence.
8.2. Ownership; Use. Customer retains ownership of all right, title, and interest in the Customer Data. Customer grants Prolifiq a nonexclusive, worldwide, royalty-free, license to reproduce, display, adapt, modify, transmit, distribute, and otherwise use such Customer Data in order to provide the Services. Prolifiq will not use the Customer Data for any other purpose; provided, that Prolifiq may use Customer Data in anonymized and aggregated form in connection with Prolifiq’s business.
8.3. Security. Prolifiq will use security methodologies consistent with industry best practice to protect Customer Data from unauthorized access or disclosure. The specific methods used may vary from time to time, and Prolifiq does not represent or warrant that such security measures will be infallible. In the event of the unauthorized access to or disclosure of Customer Data (a “Data Breach”), Prolifiq will promptly notify Customer and will cooperate with Customer’s efforts to resolve the Data Breach. The Services are not intended for use as an archive, and should not be used to store original copies of Customer Data.
8.4. Confidentiality. This paragraph applies to any Customer Data that is marked as “confidential” when disclosed or that Prolifiq knew or should have known under the circumstances was considered confidential by the Customer (including without limitation any Customer Data that is loaded into the Services) (“Confidential Customer Data”). Prolifiq will not disclose Customer Confidential Data to any third-party, except as may be allowed by this paragraph, and will protect the confidentiality of Confidential Customer Data in the same manner that Prolifiq protects its own confidential information (which will be at least a reasonable standard of care). Prolifiq will limit access to Confidential Customer Data to those of its employees and contractors who have a need to know such information in order to provide the Services, and all such persons will be under obligations of non-disclosure that are no less protective than those of this paragraph. However, the obligations of this paragraph do not apply to any Confidential Customer Data that (i) was known to Prolifiq prior to Customer’s disclosure, (ii) is publically disclosed without restriction through no fault of Prolifiq, or (iii) was independently developed by Prolifiq without use of the Customer Confidential Data. Furthermore, Prolifiq may disclose any Customer Confidential Data pursuant to any legal proceeding or as otherwise required by law, subject to Prolifiq giving reasonable prior notice of such compelled disclosure to Customer, and cooperating with Customer’s attempts to seek protective or other orders to prevent or limit such disclosure.
9. Confidential Prolifiq Information. During the course of this Agreement Prolifiq may disclose to Customer information that is marked as “confidential” when disclosed or that Customer knew or should have known under the circumstances was considered confidential by the Prolifiq (“Confidential Prolifiq Information”). Customer will not disclose Confidential Prolifiq Information to any third-party, except as may be allowed by this paragraph, will protect the confidentiality of Confidential Prolifiq Information in the same manner that Customer protects its own confidential information (which will be at least a reasonable standard of care), and will use the Confidential Prolifiq Information only in connection with the Services. Customer will limit access to Confidential Prolifiq Information to those of its employees and contractors who have a need to know such information in order to enjoy the benefits of the Services, and all such persons will be under obligations of non-disclosure that are no less protective than those of this paragraph. However, the obligations of non-disclosure in this paragraph do not apply to any Confidential Prolifiq Information that (i) was known to Customer prior to Prolifiq’s disclosure, (ii) is publically disclosed without restriction through no fault of Customer, or (iii) was independently developed by Customer without use of the Confidential Prolifiq Information. Furthermore, Customer may disclose any Confidential Prolifiq Information pursuant to any legal proceeding or as otherwise required by law, subject to Customer giving reasonable prior notice of such compelled disclosure to Prolifiq, and cooperating with Prolifiq’s attempts to seek protective or other orders to prevent or limit such disclosure.
10. Representations and Warranties; Disclaimer.
10.1. Prolifiq Warranties. Prolifiq represents and warrants that (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations, (c) in the form provided by Prolifiq, the Services do not contain any Harmful Code (defined below), and (d) to the best of Prolifiq’s knowledge, use of the Services as authorized by Prolifiq does not violate or infringe upon the intellectual property rights of any third party. “Harmful Code” means any software code that contains any virus, “back door”, “time bomb”, “Trojan Horse”, “worm”, “drop dead device” or other software routine designed to (i) permit unauthorized access to, or use of, computing equipment or networks, (ii) replicate, transmit, or activate itself without control of a person operating the computing equipment on which it resides, or (iii) alter, disable, damage, or erase any other software without authorization.
10.2. Customer Warranties. Customer represents and warrants that (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations, (c) Customer owns all rights to the Customer Data, or Customer otherwise has the right to grant the license stated in Section 8.2, (d) the Customer Data does not contain any Harmful Code, (e) the Customer Data does not violate this Agreement and does not and will not infringe upon or violate any rights of any third party or cause injury to any person or entity, and (f) the Customer Data does not contain any Personal Information.
10.3. DISCLAIMER. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, NEITHER PARTY PROVIDES ANY OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PROLIFIQ DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. PROLIFIQ DOES NOT REPRESENT OR WARRANT ANYTHING REGARDING THE PLATFORM; ANY ISSUES WITH THE PLATFORM OR ANY OTHER SOFTWARE OR SERVICE PROVIDED BY SFDC ARE TO BE ADDRESSED BETWEEN THE CUSTOMER AND SFDC.
11.1. Obligation. Subject to the conditions and exceptions listed below, each party (as an “Indemnifying Party”) will defend the other and the other’s shareholders, directors, and employees (the “Defendants”) against a third party’s claim that arises from or relates to a breach of the Indemnifying Party’s warranties and representations in Section 10 (in each case, a “Claim”), and will further indemnify and hold harmless the Defendants against any damages, penalties, costs and expenses (including reasonable attorney fees) which are awarded in a final award, judgment or settlement of the Claim.
11.2. Exceptions. Prolifiq has no obligation as an Indemnifying Party with respect to any Claim based upon or otherwise relating to (a) any use of the Services that is not authorized by this Agreement, (b) the combination of the Services with the Platform or any other products, services, equipment, software, or data not supplied by Prolifiq (provided that the Claim would not have accrued but for the combination), or (c) any modification of the Services by any person other than Prolifiq or its authorized agents.
11.3. Conditions. An Indemnifying Party’s obligations under Section 11.1 are conditioned on (a) Defendants notifying the Indemnifying Party immediately upon receiving a Claim and providing a written copy of the Claim, (b) Defendants cooperating with the Indemnifying Party in the defense or settlement of the Claim, and (c) Defendants providing the Indemnifying Party with all necessary authority to defend or settle the Claim. A Defendant may participate in the defense or settlement of the Claim at its own expense.
11.4. Injunctions. Following notice of a Claim, or if in its discretion Prolifiq determines that a Claim is likely, Prolifiq may, at its sole option, procure for Customer the right to continue to use the Services as furnished, or replace or modify the Services to make them non-infringing, or terminate this Agreement and refund to Customer any Fees paid for unused portions of the Subscription Period.
11.5. Exclusive Remedy. This Section 11 states each party’s sole liability and sole remedy for indemnification that arises from or relates to this Agreement.
12. Limitation of Liability. EXCEPT AS STATED BELOW, EACH PARTY’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT IS LIMITED AS FOLLOWS:
(A) NEITHER SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, RELIANCE, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, LOST DATA OR LOST SAVINGS) (“INDIRECT DAMAGES”); PROVIDED THAT THIS LIMITATION SHALL NOT APPLY TO CLAIMS THAT ARISE FROM THE UNLICENSED USE OF THE SERVICES, BREACHES OF SECTIONS 8.3 (DATA SECURITY), 8.4 (CONFIDENTIALITY), OR 9 (CONFIDENTIAL PROLIFIQ INFORMATION), AND FURTHER PROVIDED THAT ANY INDIRECT DAMAGES AWARDED TO A THIRD PARTY FOR WHICH A PARTY MUST INDEMNIFY THE OTHER WILL NOT BE LIMITED BY THIS RESTRICTION.
(B) NEITHER SHALL BE LIABLE TO THE OTHER FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO PROLIFIQ UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY; PROVIDED THAT THIS LIMIT WILL NOT APPLY TO ANY CLAIM FOR UNPAID FEES, OR THE UNLICENSED USE OF THE SERVICES.
OTHER THAN AS STATED ABOVE, THESE LIMITS APPLY REGARDLESS OF THE FORM OF CLAIM (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THIS SECTION IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH EVENT, LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
13. Applicable Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, applicable to agreements made and to be entirely performed within the State of Oregon, without resort to its conflict of law provisions. Customer agrees that any action at law or in equity arising out of or relating to this Agreement shall be filed only in the state and federal courts located in Multnomah County, Oregon and Customer hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts over any suit, action or proceeding.
14.1. Notices. All notices to be given under this Agreement must be in writing addressed to the receiving party’s designated recipient specified in the Order. Notices are validly given upon the earlier of confirmed receipt by the receiving party or three (3) days after dispatch by courier or certified mail, postage prepaid, properly addressed to the receiving party. Notices may also be delivered as fully scanned images sent via email and will be validly given upon oral, electronic or written confirmation of receipt. Either party may change its address for purposes of notice by giving notice to the other party in accordance with these provisions.
14.2. Waivers; Severability. Either party’s failure to enforce any provision of this Agreement will not be deemed a waiver of the future enforcement of that provision or enforcement of any other provision. In order to be binding, a waiver must be in writing and signed by the party giving the waiver. If any provision in this Agreement is found to be invalid or unenforceable as written, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision is to be construed (and, if necessary, modified) so that it is valid and enforceable to the greatest extent possible.
14.3. Independent Contractors. The parties are independent contractors. Neither party is the agent or partner of the other party, or has any power or authority to act on behalf of the other party.
14.4. Attorneys’ Fees. The prevailing party in any action to enforce this Agreement will be entitled to recover costs and expenses including reasonable attorneys’ fees.
14.5. Remedies. Except where this Agreement expressly provides exclusive remedies, all rights and remedies of either party (including termination rights) are cumulative. Each party acknowledges that the other party may not have an adequate remedy at law in the event of any breach or threatened breach of Sections 3, 8.4, or 9, and the aggrieved party may suffer irreparable injury as a result. In the event of any such breach or threatened breach, each party agrees that the other may seek injunctive relief, without the need to post any bond or other security.
14.6. Force Majeure. Each party will be excused from performance of its obligations under this Agreement to the extent that performance is rendered impossible by an event or circumstance beyond that party’s reasonable control, such as earthquake, fire, flood, governmental action, or labor disruptions.
14.7. Construction. Section headings in this Agreement are for convenience only. The word “including” is not intended to be limiting. No rule of strict construction is to be used when interpreting this Agreement.
14.8. Assignment. Neither party may assign or otherwise transfer this Agreement or any of its rights hereunder, nor delegate any of its obligations hereunder, to any third party without the prior written consent of the other party; provided, however, that a party may upon written notice to the other party (i) assign this Agreement to any entity that acquires all or substantially all of such party's assets or its business that is the subject hereof, or (ii) assign this Agreement to any entity that is an Affiliate as part of a re-organization or re-structuring.
14.9. Entire Agreement. This Agreement (including the Order) and any other referenced documents reflect the entire agreement between the parties concerning the Services, and supersede any prior or contemporaneous agreements, communications, or understandings (whether written or oral). Both parties must agree in writing to any amendments or modifications.