DATA.COM DEPENDENCY FINDER APP##STANDARD TERMS AND CONDITIONS####THIS IS A LEGAL AGREEMENT BETWEEN TRACTION SALES AND MARKETING INC. (“TRACTION”) AND YOU. THIS AGREEMENT GOVERNS YOUR USE OF THE APP. ##WHEREAS:####Traction has developed a software application, the Data.com Dependency Finder App (the “App”), that scans the Host Salesforce Org for pre-defined Data.com dependencies and reports the dependencies found.####AGREEMENT:##In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Traction and You agree as follows:####1. Definitions. Unless the context requires otherwise, capitalized terms in this Agreement shall have the following meanings:####“Affiliate” means, with respect to a party, any person, partnership, joint venture, corporation, or other entity, that directly or indirectly controls, is controlled by, or is under common control with such party.####"Aggregate Information" means the Data.com dependencies found within the host Salesforce Org and reported by the App, Share Output, the SalesForce Instance Org and App scan information about Customer’s activities on or in connection with the Services that cannot be used to identify, locate, or contact Customer.####“Agreement” means this Agreement between Traction and You.####“App” means the software application described as Data.com Dependency Finder by Traction (or a similar name or derivation thereof) available through the SalesForce AppExchange, including any updates, upgrades, patches, bug fixes, modifications, enhancements and features that may be added or removed by Traction from time to time and including all written information, documentation, and materials provided to You in respect of same.####“Beta Testing Phase” means the period of time, as determined by Traction, when You are voluntarily testing the App as listed on the SalesForce private listing App Exchange.####“Data.com Dependencies” means the limited set of pre-defined Data.com dependencies the App may fully or partially scan and report upon within a Host Salesforce Org. The set of pre-defined dependencies are listed within the current version of the App and may include specific formula fields, validation rules, workflows, Apex Classes and data integration rule field maps as defined by Salesforce.####“Host Salesforce Org” means Your Salesforce Org to which You have installed the App.####“Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), algorithms, tool-kits, technology, widgets, formulae, programs, concepts, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.####“Intellectual Property Rights” means all copyrights, moral rights, rights associated with works of authorship, trademark rights, trade name rights, trade secret rights, patent and industrial property rights (whether registered or not), and other proprietary rights, in Intellectual Property.####“Service(s)” means the services and functionality provided by the App.####“Salesforce” means Salesforce.com Inc.####“Salesforce License” means a single Enterprise or Performance Edition license for a single user to use Salesforce.####“You” or “Your” means the party entering into this Agreement with Traction and includes the person, entity, or organization having control of the use of the App and any successor or assignee of same. The person agreeing to this Agreement represents and warrants that they are authorized to enter into this Agreement on behalf of the party, entity, or organization using the App.####2. Use and License. You may use the App only in and for Your own internal purposes and business operations, all for whom a Salesforce License has been purchased. You may only use the App during the currency of Your Salesforce License, or until Traction requires You to cease using the App. You may not use the App as a service for any third party. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the App, in whole or in part, is granted except as expressly provided by this Agreement. You shall not modify, copy, create derivative works from, reverse engineer, decompile or disassemble the App. Nothing in this Agreement will entitle You to access or use the source code of the App. Notwithstanding any other term or condition contained herein, in no case may You use the App in any manner or for any purpose that is beyond the scope of Your Salesforce License(s). You shall not download or use the App, and if downloaded You shall immediately uninstall and destroy the App if Your download, installation or use of the App is prohibited under applicable laws. Traction reserves the right to deny You access to the App at any time. You shall provide Traction copies of Your App scan reports and, if required by Traction, access to Your Host Salesforce Org for the duration of Your voluntary use of the Beta Testing Phase. You acknowledge and agree that Traction may collect, analyze, and use Aggregate Information from Your use of the App.####3. Your Responsibilities. You are responsible for all of Your use of the App. You shall:####a. prevent unauthorized access to, or use of, the App, and notify Traction promptly of any such unauthorized access or use and if such unauthorized access or use results in additional fees payable by Traction you shall pay such amounts forthwith to Traction;####b. comply with all applicable local, state, provincial, federal and foreign laws in using the App, including without limitation all applicable laws. You shall not use the App to engage in any deceptive, misleading, illegal or unethical marketing activities or activities that otherwise may be detrimental to Traction or to Salesforce; ####c. not attempt to gain unauthorized access to the App; and####d. maintain and backup Your Data.com Dependencies.####4. Support. You shall direct all support queries with respect to the App to Traction and not to Salesforce. Traction may, at its discretion, provide reasonable telephone, web-based, or e-mail technical support to You during normal business hours (Pacific Standard Time) on such terms and conditions as Traction reasonably determines, in its sole discretion. Traction will make reasonable efforts to respond to Your support queries.####5. Confidentiality. You acknowledge that the App and any other information provided to You by Traction incorporate confidential and proprietary information developed by, acquired by, or licensed to Traction or an Affiliate of Traction (“Confidential Information”). You will take all reasonable precautions necessary to safeguard the confidentiality of the Confidential Information. Neither You nor any of Your Affiliates will make any unauthorized use of the Confidential Information or disclose, in whole or in part, any part of the Confidential Information to any individual or entity, except to those of Your employees or consultants who require access for Your authorized use of the Confidential Information and who agree to comply with the use and nondisclosure restrictions applicable to the Confidential Information under this Agreement. You acknowledge that any unauthorized use or disclosure by You or any of Your Affiliates of the Confidential Information may cause irreparable damage to Traction. If Traction becomes aware of Your breach or threatened breach of this section, Traction may suspend any and all rights granted to You under this Agreement and shall be entitled to injunctive relief, in addition to all legal or equitable relief that may be available to Traction. In all cases, You shall use the same degree of care to protect the Confidential Information as You use to protect Your own information of a confidential and proprietary nature, but in no event shall You use less than a reasonable degree of care. ####6. Indemnification. You shall defend, indemnify, and hold Traction and its directors, employees, Affiliates and licensors harmless against any liability, loss, damage, or cost (including reasonable attorneys’ fees) incurred in connection with a claim, demand, suit, or proceeding alleging that Your Use of the App has harmed a third party or infringes upon the privacy rights of a third party or is in violation or alleged violation of any applicable local, state, provincial, federal and foreign laws.####7. Representations And Warranties. You represent and warrant as follows:####a. That You have all necessary Salesforce licenses;####b. That You shall not use the App in a way that will or may infringe on any copyright, patent, trade secret or other proprietary right held by any third party; and####c. That You shall not use the App in a manner that violates any international, federal, provincial, state, or local law or regulation relating to individual privacy.####8. Outage Policy. YOU ACKNOWLEDGE AND UNDERSTAND THAT TRACTION DOES NOT WARRANT THAT THE APP WILL BE UNINTERRUPTED OR ERROR FREE AND THAT TRACTION MAY OCCASIONALLY EXPERIENCE DISRUPTION INCLUDING BUT NOT LIMITED TO INTERNET DISRUPTIONS, disruptions in SALESFORCE SERVICES OR OTHER SUCH SERVICES THAT ARE REQUIRED FOR THE APP. ANY SUCH DISRUPTION SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT.####9. Ownership. All Intellectual Property Rights in the App or made available or disclosed to You in the provision of the App are and shall remain the sole and exclusive property of Traction and except for the limited license to use the Intellectual Property as part of Your use of the App in accordance with this Agreement, no right, title, or interest is granted in the Intellectual Property. Traction and its Affiliates shall own all rights, title and interest, including all Intellectual Property Rights, in and to any improvements to the App or any new programs, upgrades, modifications or enhancements thereto, even when such refinements and improvements result from Your requests or comments. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Traction or its Affiliates by virtue of this Agreement or otherwise, You hereby transfer and assign to Traction all rights, title, and interest which You may have to such refinements and improvements.####10. Term and Termination.##This Agreement shall commence on the earlier date of (a) Your acceptance of this Agreement; and (b) delivery or download or first use of the App (the “Commencement Date”), and shall continue until Traction terminates Your right to use the App or until You uninstall the App, whichever is earlier. Traction may terminate this Agreement immediately in the event that the App is no longer available for use in conjunction with Salesforce’s services.####Upon the termination or expiration of this Agreement, You shall immediately discontinue use of the App and You shall delete or destroy all electronic and physical stand-alone copies of the App in Your possession or control.####11. Limitation of Liability and Disclaimers####a. Disclaimer Of Warranties. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE APP IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, TRACTION AND IT’S AFFILIATES EACH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE APP, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE APP, WHETHER MADE BY EMPLOYEES OF TRACTION OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY TRACTION FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF TRACTION WHATSOEVER. THE DATA.COM DEPENDENCIES SEARCHED AND REPORTED BY THE APP ARE NOT PRODUCED BY TRACTION AND TRACTION DOES NOT GUARANTEE THE ACCURACY OR COMPLETELESS OF THE APP’S SEARCH OR REPORTS. THE APP MAY NOT FIND OR REPORT ALL OF YOUR DATA.COM DEPENDENCIES. TRACTION WILL NOT BE RESPONSIBLE FOR ANY OF YOUR DATA.COM DEPENDENCIES. YOUR USE OF THE APP IS ENTIRELY AT YOUR OWN RISK. TRACTION DOES NOT GUARANTEE THAT THE APP WILL BE AVAILABLE UNINTERRUPTED OR TRANSMITTED THROUGH SECURE MEANS. ####b. UNDER NO CIRCUMSTANCES SHALL (i) TRACTION OR IT’S AFFILIATES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF TRACTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; OR (ii) SHALL THE ENTIRE LIABILITY OF TRACTION TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED $1,000.00.####12. Changes. Traction reserves the right to modify these terms and conditions, including the addition of fees and payment terms, at any time, and should You elect not to agree to such modified terms and conditions, your sole remedy shall be to terminate this Agreement in accordance with its terms. Your continued use of the App will be deemed acceptance thereof.####13. Audit and Inspection. Traction shall have the right to evaluate Your use of the App to ensure compliance with this Agreement (“Audit Data”). You will provide to Traction’s auditors or agents (including but not limited to internal audit staff and external auditors or lawyers) (collectively, “Audit Representatives”) access at all reasonable times, after providing You with at least two (2) days advance notice, to such of Your facilities or the Audit Data as Traction may require for the purpose of performing audits pursuant to this section. You will maintain the Audit Data and records of all materials relating to any Audit Data for a period of two years from the commencement of the later of the Initial Term or, if the Initial Term has expired, the then current term. You will be entitled to your reasonable direct costs associated with any audit lasting more than three (3) business days except that if the audit reveals any fraud, or under reporting of the Audit Data, or other material breach of this Agreement, then no costs are recoverable by You in respect of the audit and Traction shall be entitled to a full reimbursement of all costs incurred in carrying out the same. You shall, at no cost to Traction (except as expressly contemplated by this section), co-operate in any audits carried out pursuant to this section, make available on a timely basis the information reasonably required to conduct the audits, and assist the Audit Representatives as reasonably necessary.####14. Miscellaneous.####a. Proper Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and Canada and the parties agree to attorn to the exclusive jurisdiction of British Columbia.####b. Survival. Sections 2, 3, 5, 6, 9, and 11 of this Agreement shall survive any expiration or termination of this Agreement for any reason.####c. Headings. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement.####d. No Assignment. This Agreement may not be transferred or assigned by You without the prior written consent of Traction, which consent Traction may withhold at its sole discretion, except that Traction will not unreasonably withhold its consent in the event of a sale, merger or other transfer of substantially all of Your business and assets. Traction may assign this Agreement to an Affiliate without Your consent. The terms and conditions of this Agreement shall enure to the benefit of and be enforceable by the parties hereto and their permitted successors and assigns.####e. Notice. Any notice or communication from one party to the other required or permitted to be given hereunder shall be in writing and either personally delivered, sent by postal service or sent via courier (with evidence of delivery in any case). All notices shall be in English and shall be effective upon actual receipt, irrespective of the date appearing thereon. Unless otherwise requested, all notices to Traction shall be sent to the attention of “Legal” and may be sent by mail or courier to #500 - 2700 Production Way, Burnaby, B.C. V5A 0C2.####f. Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to, earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, act of terrorism, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including Internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.####g. Waiver. The waiver by any party hereto of a breach or a default of any provision of this Agreement by another party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.####h. Relationship. The Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of the Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in the Agreement.####i. Gender, Plural and Singular. In the Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive” and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of the Agreement may be made accordingly as the context requires.####j. Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the subject matter herein. This Agreement supersedes all previous communications between the parties, whether written or oral, with respect to the subject matter herein.
