SALESCLIC FOR SALESFORCE TERMS AND CONDITIONS######1. SOME DEFINITIONS USED IN THIS AGREEMENT####1.1 The definitions and rules of interpretation in this clause apply in this Agreement.####Authorized Users: those employees, agents, independent contractors and other authorized associates of the Customer who are authorized by the Customer to use the Services and the Documentation.####Business Day: any day which is not a Saturday, Sunday or public holiday in Ireland.####Confidential Information: information that is proprietary or confidential to either party including information relating to its know-how, business, prospects, clients, prices, services and sales forecasts or which is clearly labeled as proprietary or confidential or identified as Confidential Information in this Agreement.####Customer Data: the data inputted by the Customer, Authorized Users, or Nimble Apps on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.####Documentation: the documentation made available to the Customer by Nimble Apps online via www.salesclic.com, the AppExchange or such other web address notified by Nimble Apps to the Customer from time to time, which sets out a description of the Services and user instructions for the Services.####Initial Subscription Term: the initial term of this Agreement.####Normal Business Hours: 09.00 to 18.00 CET, each Business Day.####Services: the subscription service known as SalesClic for Salesforce provided by Nimble Apps to the Customer under this Agreement, as more particularly described in the Documentation.####Software: the online software application(s) provided by Nimble Apps as part of the Services.####Subscription Fees: the subscription fees payable by the Customer to Nimble Apps for the User Subscriptions.####Subscription Term: has the meaning given in clause 14.1.####User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorized Users to access and use the Services and the Documentation in accordance with this Agreement.####Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; or prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.####1.2 The headings contained in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms, conditions or provisions of this Agreement.######2. USER SUBSCRIPTIONS & SOME REASONABLE USEAGE RESTRICTIONS####2.1 Subject to the terms and conditions of this Agreement, Nimble Apps grants to the Customer a non-exclusive, non-transferable right to permit the Authorized Users to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.####2.2 In relation to the Authorized Users, the Customer undertakes that:##(a) the maximum number of Authorized Users that it authorizes to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time; and##(b) each Authorized User shall keep a secure password for his or her use of the Services and Documentation.####2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:##(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;##(b) facilitates illegal activity;##(c) depicts sexually explicit images;##(d) promotes unlawful violence;##(e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity;##(f) infringes any intellectual property or other rights; or##(g) causes damage or injury to any person or property,##(h) and Nimble Apps reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.####2.4 The Customer shall not:##(a) except as may be allowed by any applicable law that is incapable of exclusion by agreement between the parties:##(b) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or##(c) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; ##(d) access all or any part of the Services and Documentation in order to build a product or service that competes with the Services and/or the Documentation;##(e) use the Services and/or Documentation to provide services to third parties which are the same or substantially similar to the Services;##(f) subject to clause 15.5, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorized Users; or##(g) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.####2.5 The Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Nimble Apps.####2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer, without the prior written consent of Nimble Apps.######3. ADDITIONAL USER SUBSCRIPTIONS####3.1 Subject to clause 3.2, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the initial User Subscriptions and Nimble Apps shall grant access to the Services and the Documentation to such additional Authorized Users in accordance with the provisions of this Agreement.####3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Nimble Apps in writing. If Nimble Apps approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 Business Days of the date of Nimble Apps’ invoice, pay to Nimble Apps the relevant fees for such additional User Subscriptions as requested and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any renewal period during the Subscription Term (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current renewal period (as applicable).######4. SERVICES THAT WE PROVIDE####4.1 Nimble Apps shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.####4.2 Nimble Apps will, as part of the Services and at no additional cost to the Customer, provide the Customer with online and email customer support services during Normal Business Hours. Nimble Apps will use reasonable commercial endeavors to provide an initial response to all customer support queries within one Business Day from the receipt of such emails.######5. YOUR DATA & DATA PRIVACY####5.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.####5.2 Nimble Apps shall follow its standard archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Nimble Apps to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Nimble Apps in accordance with the archiving procedure described in its Back-Up Policy. Nimble Apps shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Nimble Apps to perform services related to Customer Data maintenance and back-up).####5.3 Nimble Apps shall, in providing the Services, comply with its Privacy Statement relating to the privacy and security of Customer Data currently available at www.salesclic.com as such document may be amended from time to time by Nimble Apps. The Privacy Statement is incorporated into and forms part of this Agreement. Please note, in particular, that Nimble Apps will not, without your consent, disclose information about identifiable individuals or other Customer Confidential Information to third parties, but we may make commercial use of anonymized statistical or aggregate data to compile and publish sectoral indices, industry benchmarking reports or for other analytical, research or academic purposes.####5.4 If Nimble Apps processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and Nimble Apps shall be a data processor and in any such case:##(a) the Customer shall ensure that it is entitled to transfer the relevant personal data to Nimble Apps (including Nimble Apps’ data processors) so that Nimble Apps may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf;##(b) Nimble Apps shall process the personal data only in accordance with the terms of this Agreement and any instructions given by the Customer from time to time;##(c) each party shall take appropriate technical and organizational security measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage; and##(d) Nimble Apps agrees to answer the Customer’s reasonable enquiries to enable it to monitor compliance with these obligations from time to time.######6. THIRD PARTY PROVIDERS####6.1 All servers used by Nimble Apps for provision of the Services are operated by third parties behind secure firewalls that are intended to provide protection from illegal access (hacking) and are subject to appropriate contractual terms with Nimble Apps. Nimble Apps agrees to take all steps reasonably necessary to ensure that Customer Data is stored securely.####6.2 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Nimble Apps makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Nimble Apps. Nimble Apps recommends that the Customer refers to the third party’s website terms and conditions and privacy statement prior to using the relevant third-party website. Nimble Apps does not endorse or approve any third-party website nor the content of any third-party website made available via the Services.######7. OUR OBLIGATIONS TO YOU####7.1 Nimble Apps undertakes that the Services will be performed substantially in accordance with the Documentation and with all reasonable skill and care.####7.2 Nimble Apps will use commercially reasonable endeavors to ensure that the Services will (subject to other terms of this Agreement) be available twenty-four hours a day, seven days a week, except for planned downtime for which notice will be given in advance and which will be scheduled to the extent practicable outside Normal Business Hours.####7.3 The undertakings at clauses 7.1 and 7.2 shall not apply to the extent that any non-conformance is caused by use of the Services contrary to Nimble Apps’ instructions, or modification or alteration of the Services by any party other than Nimble Apps or Nimble Apps’ duly authorized contractors or agents. If the Services do not conform to the foregoing undertakings, Nimble Apps will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertakings set out in clauses 7.1 and 7.2. Notwithstanding the foregoing, Nimble Apps:##(a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free nor that the Services, Documentation and/or the information obtained by the Customer through the Services will always meet the Customer's requirements; and##(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.##(c) Except as expressly provided in this Agreement, the entire risk as to the Services provided by Nimble Apps is with the Customer, including for quality and performance and for accuracy or quality of any information transmitted, received or otherwise delivered via the Services and for reliance placed on sales or other forecasts or analysis (whether individually requested by the Customer or not) delivered as part of the Services. ####7.4 This Agreement shall not prevent Nimble Apps from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.######8. YOUR OBLIGATIONS TO US####The Customer shall:##(a) provide Nimble Apps with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by Nimble Apps in order to render the Services, including but not limited to provision of Customer Data, security access information and configuration services;##(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;##(c) carry out all Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Nimble Apps may adjust any agreed timetable or delivery schedule as reasonably necessary;##(d) ensure that its Authorized Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User’s breach of this Agreement;##(e) obtain and maintain all necessary licenses, consents, and permissions necessary for Nimble Apps, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;##(f) ensure that its network and systems comply with any relevant specifications provided by Nimble Apps from time to time; and##(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Nimble Apps’ data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the Internet.######9. SUBSCRIPTION FEES####9.1 Unless otherwise expressly stated, the Customer will pay a Subscription Fee for the Service each year in advance. Subscription Fees may be varied from time to time (except during the first year) by Nimble Apps giving to the Customer at least 90 days’ prior written notice. Such variation shall take effect upon expiry of the notice period unless the Customer elects to terminate this Agreement in accordance with its terms.####9.2 Trial period##(a) The Customer will be entitled to a trial of the Services.##(b) Any data specific to SalesClic for Salesforce that the Customer enters in the course of using the Services, and any customizations made to the Services by or for Customer, during Customer’s trial will be permanently lost unless Customer purchases a subscription to the same Services as those covered by the trial or downloads such data, before the end of the trial period. ##(c) Notwithstanding any other provision of this Agreement, in particular, clause 13 (some reasonable limitations of liability) and clause 7 (our obligations to you), during the trial period the Services are provided “as is” without any warranty or indemnity. ####9.3 Unless payment has been arranged by credit card or other means acceptable to Nimble Apps, Subscription Fees will be invoiced as specified in the Documentation. Invoices are payable within 30 days of the invoice date. All prices are stated and payable in the currency specified in the Documentation and are exclusive of VAT or other applicable sales taxes.####9.4 Customer may not withhold or “set off” any amounts due to Nimble Apps. In the event of late/non-payment of any of the Subscription Fees or any other fees or charges payable under this Agreement, Nimble Apps reserves the right (without liability) to bar the Customer access to all or any part of the Software and/or Services by whatever means it deems appropriate until such time as payment is received in full. Nimble Apps reserves the right to assess a late fee of 1.5%, or the maximum rate allowed under applicable law, whichever is less, on any amounts not paid when due for each month or portion thereof that such payments remain outstanding.######10. WE CARE ABOUT OUR INTELLECTUAL PROPERTY RIGHTS####10.1 The Customer acknowledges and agrees that Nimble Apps and/or its licensors own all intellectual property rights in the Software, Services and Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licenses in respect of the Software, Services or the Documentation.####10.2 Nimble Apps confirms that it has all the rights in relation to the Software, Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.######11. MUTUAL PROTECTION OF CONFIDENTIAL INFORMATION####11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:##(a) is or becomes publicly known other than through any act or omission of the receiving party;##(b) was in the other party's lawful possession before the disclosure;##(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;##(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or##(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.####11.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement or as specifically requested by the other party during the provision of the Services. ####11.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.####11.4 Nimble Apps acknowledges that the Customer Data is Confidential Information of the Customer. Likewise, the Customer acknowledges that the Software, Documentation and details of the Services constitute Nimble Apps’ Confidential Information.####11.5 Unless otherwise agreed by the parties, Nimble Apps will be entitled to make reasonable use of the Customer’s name and/or logo on Nimble Apps’ publicity materials in the course of advertising the Services.####11.6 This clause 11 shall survive termination of this Agreement, however arising.######12. MUTUAL INDEMNITIES FOR BOTH PARTIES’ PROTECTION####12.1 The Customer shall defend, indemnify and hold harmless Nimble Apps against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:##(a) the Customer is given prompt notice of any such claim;##(b) Nimble Apps provides reasonable co-operation to the Customer in the defense and settlement of such claim, at the Customer's expense; and##(c) the Customer is given sole authority to defend or settle the claim.####12.2 Nimble Apps shall defend, indemnify and hold harmless the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any patent, copyright, trade mark, database right or right of confidentiality enforceable in France and effective as of the Effective Date and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:##(a) Nimble Apps is given prompt notice of any such claim;##(b) the Customer provides reasonable co-operation to Nimble Apps in the defense and settlement of such claim, at Nimble Apps’ expense; and##(c) Nimble Apps is given sole authority to defend or settle the claim.####12.3 In the defense or settlement of any claim, Nimble Apps may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 5 Business Days’ notice to the Customer without any additional liability to the Customer. ####12.4 In no event shall Nimble Apps, its employees, agents and sub-contractors be liable to the Customer to the extent that any alleged infringement is based on:##(a) a modification of the Services or Documentation by anyone other than Nimble Apps; or##(b) the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Nimble Apps; or##(c) the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Nimble Apps or any appropriate authority.####12.5 The foregoing states the Customer's sole and exclusive rights and remedies, and Nimble Apps’ (including Nimble Apps’ employees', agents' and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, and database right or right of confidentiality.######13. SOME REASONABLE LIMITATIONS OF LIABILITY####13.1 Except as expressly and specifically provided in this Agreement:##(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Nimble Apps shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Nimble Apps by the Customer in connection with the Services, or any actions taken by Nimble Apps at the Customer's direction;##(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and##(c) the Services and the Documentation are provided to the Customer on an "as is" basis.####13.2 Nothing in this Agreement excludes or limits the liability of Nimble Apps for death or personal injury caused by Nimble Apps’ negligence, for fraud or fraudulent misrepresentation or for any other liability that cannot be excluded or limited under applicable law. ####13.3 Subject to clauses 13.1 and 13.2:##(a) Nimble Apps shall not be liable whether in tort (including for negligence) or breach of statutory duty, contract or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and##(b) Nimble Apps’ total aggregate liability in contract, tort (including for negligence) or breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid by the Customer to Nimble Apps during the 12 month period immediately preceding the date on which the claim arose.######14. TERM AND TERMINATION####14.1 This Agreement shall take effect on the first day of the trial and shall continue for the Initial Subscription Period and thereafter on a rolling yearly basis (the “Subscription Term”) until or unless terminated by either party giving to the other written notice not less than 30 days prior to the expiration of the then current annual term, in which case, the Agreement will expire at the end of such term, subject always to earlier termination as specified in this Agreement.####14.2 Notwithstanding any other provisions in this Agreement, and without prejudice to any other rights such party serving notice may have, either party may immediately terminate this Agreement by written notice to the other if any of the following events shall occur:##(a) if the other party commits a material breach of the terms or conditions of this Agreement including the terms, conditions and provisions of any relevant Order Form and fails to remedy such breach (if capable of remedy) within 30 days after receiving written notice from the party requiring it so to do;##(b) if the other party shall become insolvent or have a liquidator, examiner, receiver or administrator appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a good faith scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall enter into any voluntary arrangement##(c) with its creditors or suffers or undergoes any analogous or similar process to any of the above anywhere in the world.####14.3 On termination of this Agreement for any reason:##(a) all licenses granted under this Agreement shall immediately terminate; ##(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party; and##(c) Nimble Apps may destroy or otherwise dispose of any of the Customer Data in its possession unless Nimble Apps receives, no later than 10 days after the effective date of termination, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Nimble Apps shall use reasonable commercial endeavors to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination).######15. GENERAL POINTS####15.1 Force Majeure: Neither party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including without limitation, act of God, act or omission of government or regulatory body, war, fire, flood, explosion or civil commotion or any other act or omission whether similar to the foregoing or not. In the event that such an event continues for a period of more than sixty (60) days either party shall have the right to terminate this Agreement immediately upon written notice.####15.2 Waiver & Modification: A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law. No addition to, or modification of, any provision of this Agreement shall be binding on the parties unless made by a written instrument and signed by a duly authorized representative of each of the parties.####15.3 Severance: If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.####15.4 Entire Agreement: This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.####15.5 Assignment: The Customer shall not, without the prior written consent of Nimble Apps, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.####15.6 Notices: All notices which are required to be given under this Agreement shall be in writing and shall be sent to the address of the recipient as set out in this Agreement or such other address as the recipient may designate for this purpose.####15.7 Governing Law: This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of Ireland. The parties irrevocably agree that the courts of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
