LICENSE AGREEMENT FOR ADVENTACE SALES MANAGEMENT SYSTEM™##TERMS AND CONDITIONS ####PLEASE READ CAREFULLY: BY CLICKING ON THE „I AGREE“ BUTTON BELOW, YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT („AGREEMENT“) WITH ADVENTACE, LLC („ADVENTACE“) AND AGREEING TO COMPLY WITH AND BE LEGALLY BOUND BY THE FOLLOWING TERMS AND CONDITIONS RELATED TO YOUR ACCESS AND USE OF ADVENTACE’S SALES MANAGEMENT SYSTEM („SMS“), AND RECEIPT OF APPLICABLE SUPPORT. THIS AGREEMENT CONSISTS OF THESE TERMS AND CONDITIONS AND THE SUPPLEMENT SHEET, WHICH WILL BE REQUIRED IF YOU ELECT TO HAVE AN ACTIVE, FEE-BASED, LICENSE. IF ANY OF THE TERMS OF THIS AGREEMENT ARE UNACCEPTABLE TO YOU, DO NOT CLICK THE “I AGREE“ BUTTON. BY CLICKING THE ”I AGREE“ BUTTON AND/OR INSTALLING, ACCESSING OR OTHERWISE USING SMS, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ THIS AGREEMENT CAREFULLY, THAT YOU HAD THE OPPORTUNITY TO HAVE THIS AGREEMENT REVIEWED BY LEGAL COUNSEL AND THAT YOU ARE AT LEAST 18 YEARS OLD, AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.IF YOU DO AGREE, PLEASE BE AWARE YOUR ACCESS TO SMS WILL BE PROVIDED THROUGH YOUR SALESFORCE.COM ENVIRONMENT, AND NO SOFTWARE WILL BE DELIVERED TO YOU OR DOWNLOADED TO YOUR COMPUTER BY ADVENTACE.####Any software associated with SMS is copyright registered and protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.####This Agreement applies to any updates, supplements or support services for SMS, which may also include other applicable terms accompanying those items. If so, those other terms apply as well.####"You" refers to the individual who registered to use SMS or, if SMS is being used by an entity, an individual authorized to represent such entity, then "You" refers to such entity. References to “Your” shall be construed accordingly. Any terms set out in the “Additional Terms” section of the Supplement Sheet take precedence over these Terms and Conditions.####1. Definitions.####1.1. “Application” refers to the Adventace SMS functionality implemented in Your Salesforce.com environment that provides the functions described in the Functional Specifications of SMS and any associated documentation, software code or other materials made available by Adventace.##1.2 “Confidential Information” means all proprietary, non-public and trade secret information relating to Adventace’s business, the Application, and other proprietary information including without limitation Adventace’s research and development, marketing and business strategies and plans, the identity of clients and personnel thereof, computer programs, algorithms, names and expertise of employees and consultants, know-how, formulae, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies, and any/all other Adventace information and/or data in any way transmitted to or received by You. ####1.3 “Functional Specifications” means those specifications detailing the functions of SMS, its various components and operations.####1.4. “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trade secrets, know-how and any other proprietary intellectual property rights recognized in any country or jurisdiction in the world.####1.5. “Proprietary Technology” means the Application, any Application tools, specifications, ideas, concepts, know-how, processes, and techniques used or developed by Adventace and/or its third party contractors, relating to Adventace SMS.####1.6 “Service” means the Salesforce.com online service only, including offline components.####1.7 “User” or “Users” means You, Your employees, representatives, consultants, contractors or agents who are authorized by You to use the Application, and for whom You have paid Adventace the applicable license fees for such use, as applicable. ####2. License and Ownership.####2.1. Rights Granted. Subject to the terms and conditions of this Agreement, including but not limited to all payment and reporting obligations, Adventace grants You a nonexclusive, non-transferable, license to use the Application solely for use with the Service, for Your internal business purposes only, and solely for the number of User licenses purchased by You.####2.2. Restrictions on Use. The Application and Proprietary Technology (as defined below) may be used only by You and Your authorized Users, only in connection with the internal operations of Your business. You may not transfer, sell, assign, or sublicense the Application or Proprietary Technology to any person, or disclose the Application or Proprietary Technology or any part of the Application or Proprietary Technology to any other person or use it for any other person’s benefit, except as expressly permitted herein, or use it to infringe any personal or proprietary right of any kind of any third party. You shall not copy the Application or its documentation except to make a reasonable number of back-up copies for Your internal use only. You may not remove any Adventace or product identification, copyright, trademark, patent or other notices or proprietary restrictions from the Application or Proprietary Technology. You may not modify, reverse-engineer, create derivative works, decrypt, re-compile, or decompile the Application, or Proprietary Technology. You agree not to use the Application on any system other than the Service unless otherwise agreed in writing by Adventace. All rights not expressly granted to You hereunder are reserved to Adventace.####2.3. Ownership. Adventace owns all worldwide right, title and interest in and to the Application and any and all Proprietary Technology, including without limitation all Intellectual Property Rights therein. Nothing herein or otherwise shall be deemed to prohibit or limit in any way Adventace's right to use the Proprietary Technology, in whole or in part, to develop any application that is the same in any or all respects as the Application or to develop other software products or applications for other Adventace customers.####2.4. Confidential Information. You acknowledge that the Application is and contains Confidential Information of Adventace and/or its licensors and any use of the Confidential Information, except as expressly permitted hereunder, would be harmful to the interests of Adventace, and considered a material breach of this Agreement. You will use your best efforts to safeguard all Confidential Information of Adventace, including but not limited to copies of the Application, against disclosure using at least the same degree of care that You use to safeguard Your own confidential and proprietary materials. You shall not permit any unauthorized third parties to access any Confidential Information of Adventace. You shall use the Confidential Information of Adventace only as expressly permitted in this Agreement and will disclose such Confidential Information within Your organization only to those employees and consultants who need to know the Confidential Information.####2.5. Export. You will not export or re-export any of the Application, or any portion thereof, to any country except in compliance with the Export Regulations of the United States Department of Commerce and the United States Department of State, as applicable. You will be responsible to obtain all necessary approvals prior to exporting or re-exporting the Application, or any portion thereof.####3. Payment. You are only authorized to use the Application as permitted herein for so long as it is in compliance with payments owed to Adventace as set forth on the Fee Schedule on the Supplement Sheet. ####4. Representations and Warranties by Adventace. ####4.1 Performance Warranty. Adventace warrants to You that for 90 days from the date the Application is installed as permitted hereunder the Application will perform the functions described in the Functional Specifications. In the event the Application fails to perform the functions described in the Functional Specifications, Adventace's sole obligation, and Your sole remedy, shall be for Adventace to correct the defective item(s) in such Application, at Adventace's expense. ####4.2 Modifications to the Service. If the Service is modified during the Term (as defined below) in a manner that affects the functionality of the Application such that it no longer functions as described in the Functional Specifications, Adventace will use reasonable commercial efforts to modify the Application to make it compatible with the Service. If, in Adventace’s reasonable judgment, it cannot so modify the Application without incurring additional expense, it may, at Adventace’s option, either reasonably increase the fees payable by You hereunder, or have You reimburse Adventace for the cost of such modification. If such modifications cannot be made or Adventace and You cannot agree to a modified Fee Schedule or reimbursement to Adventace for the costs of such modification, then either party shall have the right to terminate this Agreement, and Adventace shall return to You a prorata share of the fees paid hereunder based on the date of such termination.####5. Support Services####5.1 Provided that all applicablefees are fully paid as set forth herein, Adventace will provide Support Services for SMS. Support Services will be provided solely in circumstances where the functionality of SMS is materially impaired (“Error”).####5.2 Support Services will be provided on the following basis: (i) You will provide Adventace with a named contact within Your organization for Support Services, (ii) Your named contact will notify Adventace (by email to support@adventace.com) of any Error (a “Support Request”), and (iii) You will provide assistance to Adventace, as Adventace may reasonably request, to assist Adventace in the performance of its Support Services.####5.3 Your Requirements. Within 24 hours of the time of receipt (or, if this would require a response on a day which is not a regular United States business day (“Business Day”), on the next following Business Day) of a Support Request from Your named contact, Adventace will contact Your named contact via email or telephone to acknowledging receipt of such Support Request and to ascertain the priority of the Support Request. Adventace will assign a priority level to the Service Request as follows:####Level 1 The Application is not functioning and is impacting the business of all Users. No work-around is possible. ####Level 2 The Application is not functioning properly and impacting multiple Users or causing time-critical information to be delayed. If a work-around is possible, it will cause major functional restrictions.####Level 3 The Application is not functioning properly but a work-around is functioning or Your Users have indicated that the impact to their business is not immediate or critical.####Level 4 Your Users are experiencing one of the following: (i) occasional problems are occurring with Application but it is generally performing correctly with minor restrictions; or (ii) information has been requested.####Level 5 A cosmetic or non-performance impacting issue has been identified.####Adventace will make reasonable commercial efforts to resolve Service Requests within the following time frames: ####Level Targeted Resolution Time After Initial Response by Adventace##Level 1 1-3 Business Days##Level 2 2-4 Business Days##Level 3 5 Business Days##Level 4 10 Business Days##Level 5 During planned maintenance or determined by Adventace####If requested by Adventace, You will provide login access to the Application until a Service Request is resolved.####5.4 Adventace Responsibilities. Adventace will make reasonable commercial efforts to meet response times associated with a Support Request, communicating with You about those Support Requests, and, when appropriate, making fixes to the Application to resolve those Support Requests. ####5.5 Planned Maintenance. Planned maintenance will take place from time to time to make fixes to the Application and, at the discretion of Adventace, add additional capability. You will be given at least 8 hours electronic notice and Adventace will make reasonable commercial efforts to schedule planned maintenance during the weekend hours between 6:00 PM Friday and 3:00 AM Monday EST. ####6. Indemnification. You agree to indemnify and hold harmless Adventace, its successors and assigns, and their respective officers, directors, employees, licensors and agents, from and against all claims, actions, suits, damages, liabilities and costs (including, without limitation, reasonable legal fees) resulting from your breach of any provision of this Agreement or your use of the Application. Adventace shall indemnify, defend and hold You harmless from any claim that the Application, as provided to you by Adventace, infringes the proprietary rights of any third party.####7. Warranty Limitation. The warranties set forth herein will not apply if (a) the Application is used other than in accordance with Adventace's instructions; (b) the Application software has been altered, modified or converted by You or any third party; (c) the operation of the Application is affected by a malfunction in any of Your equipment or software; (d) You have not installed any error corrections or updates by Adventace or continue to use the Application after receipt of written notice by Adventace that such use may cause errors; (e) any other cause within the control of You results in the Application becoming inoperative; or (f) You materially breach this Agreement and such breach affects the functionality of the Application. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE APPLICATION IS PROVIDED "AS IS," AND ADVENTACE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE APPLICATION OR THE RESULTS THAT MAY BE OBTAINED BY USING THE APPLICATION, AND DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.####8. Limitation of Liability. Adventace's cumulative liability to You for any and all proven, direct damages related to the Application arising out hereof shall not exceed the total amount of license fees paid by You to Adventace for such Application hereunder. NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY HEREIN, , IN NO EVENT WILL ADVENTACE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RESULTING FROM LOSS OF PROFITS OR BUSINESS WHETHER FORESEEABLE OR UNFORESEEABLE, OR RESULTING FROM ANY ERROR IN THE APPLICATION, OR RESULTING FROM ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON THE APPLICATION, OR RESULTING FROM ANY UNAVAILABILITY OF THE SERVICE, OR RESULTING FROM HARM TO OR LOSS OF EQUIPMENT, SOFTWARE OR DATA, OR RESULTING FROM ANY CLAIM AGAINST YOU BY A THIRD PARTY), WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF OR IN CONNECTION WITH THE APPLICATION, EVEN IF ADVENTACE IS NEGLIGENT OR OTHERWISE AT FAULT, AND REGARDLESS OF WHETHER ADVENTACE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing exclusions and limitations of liability and remedies will apply, to the fullest extent permitted by law, in all actions of any kind, whether based on contract, tort, or any other legal or equitable theory. Each of these exclusions and limitations is intended to be separately enforceable, without regard to the other exclusions and limitations, and without regard to whether any other remedy under this Agreement fails of its essential purpose. You acknowledge that the warranty exclusions and limitation of remedies provided hereunder are neither unreasonable nor unconscionable and if Adventace's liability had not been so limited, the fees charged to You hereunder would have been substantially higher.####9. Term/Termination.####9.1. Term. This Agreement and the licenses granted hereunder will commence as of the Agreement Effective Date and will remain in effect until terminated pursuant to this Section 9 (the “Term”).####9.2. Termination. (a) You may terminate this license at any time by uninstalling and ceasing to use all copies of the Application. You shall not be entitled to any refunds in such event and shall be obligated to pay Adventace for all amounts due under the applicable Fee Schedule from the Supplement Sheet that have accrued as of the date of such termination. (b) Either party will have the right to terminate this Agreement if (a) the other party breaches any material provision hereof and fails to make substantial progress to cure such breach within 30 days after receipt of written notice of the breach from the non-breaching party (ten (10) days in the event of nonpayment); or (b) a petition or any other papers are filed with a court of competent jurisdiction involving the insolvency, bankruptcy, suspension of business, assignment of assets for the benefit of its creditors, voluntary dissolution, or appointment of a trustee for all or a substantial portion of the other party's assets.####9.3. Effect of Termination. Unless the parties mutually agree otherwise in writing, upon termination of this Agreement for any reason, Your license to the Application shall terminate and You shall return all copies of the Application and any other Proprietary Technology in Your possession, to Adventace. Upon Adventace's termination hereof as a result of any of the events set forth in Section 9.2(b) above, all rights granted to You hereunder shall immediately terminate and You will be responsible for and will pay Adventace for all Application license fees incurred up to the effective date of such termination. The Application license fees payable by You hereunder will be calculated in accordance with the payment terms specified in the Agreement. Upon termination hereof for any reason, You will deliver or destroy all records (electronic, written, or in any other tangible or intangible medium or expression) containing Adventace’s Confidential Information.####9.4. Nonexclusive Remedy. Termination hereof by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.####10. Application Information and Data. Adventace does not own any data or information that You load or create using the Application ("Customer Data"). You, not Adventace, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Adventace shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Adventace reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Your non-payment. Upon termination for cause, Your right to access or use Customer Data through the Application shall immediately cease.####11. Internet and Hosting Service Provider Delays. ADVENTACE’S APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS AND THE HOSTING SERVICE PROVIDER. ADVENTACE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.####12. Miscellaneous.####12.1. Notices. All notices and other communications hereunder must be in writing and will be deemed to have been duly given if delivered by hand, or on the next business day if delivered by a recognized overnight courier, or on the third business day if mailed (by certified or registered mail, return receipt requested, first class postage prepaid), to You and to Adventace at 2166 Chardonnay Circle, Gibsonia, PA 15044, Attn: CEO.####12.2. Rights and Remedies. All rights and remedies of either party shall be cumulative and may be exercised singularly or concurrently. No delay or failure by either party to exercise any right hereunder and no partial or single exercise thereof shall constitute a waiver of such right or of any other rights hereunder. Client acknowledges that any breach of this Agreement is likely to cause Adventace substantial and irrevocable damage and therefore, in the event of any such breach, Client agrees that Adventace, in addition to such other remedies that may be available, shall be entitled to specific performance and other injunctive relief. Any dispute or other action arising out of this Agreement must be brought within one year of the date the cause of action accrued, except that an action for nonpayment may be brought within one year of the date of last payment.####12.3. Assignment. You may not assign any rights or obligations hereunder without the prior written consent of Adventace, and any such attempted assignment shall be voidable at Adventace's election and deemed a material default hereof. Adventace may assign this Agreement.####12.4. Change in Control. You acknowledge the importance of Adventace knowing the party possessing, and controlling the use of Adventace's Confidential Information and Application. You agree, therefore, that Adventace has the right to terminate this Agreement for cause if You (i) transfer a majority interest in Your ownership and/or the control of to any person or entity, or (ii) consolidates with or merges into or with another entity, or acquires all or substantially all of the assets or stock or other ownership of any person or entity, or (iii) sells or transfers all or substantially all of its assets to any person or entity.####12.5. Survival of Rights and Obligations. The rights and obligations of the parties contained in Sections 1, 2.3, 2.4, 6, 7, 8, 9.3, and 12 will survive any termination hereof.##12.6. Severability. If any part hereof shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law.##12.7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the conflicts of law provisions of that or any other jurisdiction.####12.8. Arbitration. If any controversies, claims or disputes of any nature arise out of or relate to this Agreement, or the breach thereof, including any claim for negligence or tort liability, then the sole remedy for dispute resolution of any legal claims by the parties hereto is to proceed to binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (in the Pittsburgh, Pennsylvania office only) (the "AAA"), and judgment upon the award rendered by the arbitration panel may be entered in a court having jurisdiction in Pittsburgh, Pennsylvania. Upon determination by arbitrators, the fees, costs, and expenses of the arbitration, including attorneys' fees, shall be borne by the party against whom the arbitration is determined.####12.9. Modification. This Agreement may not be modified except by a written instrument duly executed by the parties hereto. The failure of either party to enforce, in any one or more instances, any of the terms and conditions of the Agreement, shall not be construed as a waiver of the future performance of any such term or condition, and in no event shall such a waiver be construed unless in writing signed by the party against whom such waiver is asserted.##12.10 Force Majeure. In no event will Adventace be liable for any delay or failure to perform hereunder as a result of acts of God, acts of the public enemy, fires, floods, strikes, and other causes beyond the reasonable control of Adventace. ##Last updated: _July 2 , 2014
