TERMS AND CONDITIONS SALESFORCE.COM TO MICRO FOCUS CONTENT MANAGER (TRIM/RECORDS MANAGER) CONNECTOR.####THE FOLLOWING LICENSE AGREEMENT IS BETWEEN FUSE INFORMATION TECHNOLOGIES LIMITED (HEREINAFTER REFERRED TO AS “LICENSOR”) AND YOU HEREINAFTER REFERRED TO AS (“LICENSEE”) AND GOVERN THE TERMS AND CONDITIONS UNDER WHICH LICENSOR LICENCES THE SALESFORCE.COM TO MICRO FOCUS CONTENT MANAGER CONNECTOR (“CONNECTOR”). ####BY DOWNLOADING AND USING THE CONNECTOR YOU WHOLLY AND UNCONDITIONALLY ACCEPT THIS LICENSE AGREEMENT AS SET-OUT BELOW. FURTHERMORE, YOU CONFIRM THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT AND/OR YOU ARE AUTHORIZED TO BIND ANOTHER PERSON (INCLUDING A LEGAL ENTITY) AS A PARTY TO THIS LICENSE AGREEMENT.####IF YOU CANNOT CONFIRM ABOVE OR YOU DISAGREE WITH ALL OR ANY OF THE PROVISIONS IN THE LICENSE AGREEMENT YOU MUST NOT USE THE CONNECTOR.######1. DEFINITIONS##“Connector” means the Salesforce.com to Micro Focus Content Manager (TRIM/RM) Connector, and any future Upgrades of the connector or specific products and services developed, operated, and maintained by FuseIT related to the Connector as governed by this License Agreement.####“Third-Party Applications” means the online, web-based applications and offline software products that are provided by third parties, that interoperate with the Connector, and are identified as third-party applications, including but not limited to Salesforce.com applications and Micro Focus Content Manager (TRIM/RM) applications. Both Salesforce.com and Micro Focus are Registered Trademarks of their respective owners.####“Confidential Information” means all confidential information disclosed by either Licensor or Licensee whether orally or in writing, that is designated as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure.####“Upgrade(s)” as used in this Agreement means a new version of the Connector or an improvement in the use or functionality of the Connector that Licensor in its sole discretion defines to constitute an “Upgrade” and may from time to time provide to Licensees.####“Effective Date” means the earlier of either the date this Agreement is accepted by selecting the “I Accept” option presented on the screen after this Agreement is displayed or the date Licensee begins using the Service.####“Initial Term” means the initial period during which Licensee is obligated to pay for the Connector equal to the billing frequency selected by Licensee during the licensing process (e.g., if the billing frequency is annual, the Initial Term is the first year).####“Subscription Term(s)” means the period(s) after the Initial Term during which a specified number of Users are licensed to use the Connector pursuant to the Order Form(s).####“License Fee” is a fee that will be charged for a period during which a specified number of Users are subscribing to the Connector pursuant to the Order Form(s).####“Support Fee” is a fee that will be charged as a Fixed Price addition or added Percentage of the License Fee of the Connector pursuant to the Order Form(s).####“Order Form(s)” means the form evidencing the initial license for the Connector and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).####“User(s)”means employees of Licensee and representatives, consultants, contractors or agents appointed by Licensee who are authorized to use the Connector and have been supplied user identifications and passwords by Licensor.####"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.####2. LICENSE AGREEMENT####2.1. Scope of this Agreement##Upon payment in full of the License Fee, Licensor grants Licensee a non-exclusive, non-transferable, non-assignable, non-sub licensable license to use the Connector subject to the terms and conditions set forth in this Agreement. All rights not expressly granted to Licensee are reserved by Licensor.####2.2. Term of the Agreement##This Agreement shall commence on the Effective Date. The license is granted for the Initial Term or the Subscription Term except if terminated for reasons as specified in Article 7.3.####3. SUPPORT SERVICE####3.1. Scope of the Support Service##The optional Support Service is available for the Term of this Agreement after Licensee has paid the applicable Support Fee.####3.2. Term of the Support Service##Use of the Support Service is at Licensee’s sole risk. The Service is provided on an “as is” and “as available” basis. Technical support is only provided to Licensees who pay the Support Fee and is only available via email. The Service shall commence on the Effective Date and shall remain in effect until terminated in accordance with Article 7.####4. USE OF THE CONNECTOR####4.1. Description of Functionality##The connector integrates the Salesforce.com Customer Relationship Management System (“Salesforce CRM”) with Micro Focus’s Content Manager ("Micro Focus Content Manager" previously known as "HP TRIM" and "HPE Records Manager") Application.####4.2. Permitted Use of the Connector##Permitted use of the Connector is limited to the exchange between Salesforce CRM and Micro Focus Content Manager's (TRIM/RM) Web Services of data owned by Licensee.####4.3. Third Party Rights##By accepting this License Agreement Licensee confirms to have valid Salesforce CRM and Micro Focus Content Manager (TRIM/RM) application licenses and agrees to comply with applicable license conditions of both applications. It is Licensee’s own responsibility (i) to keep these licenses up-to-date and (ii) to actively check the scope and application of the respective license agreements.####4.4. Third Party Application Restrictions##Licensor shall have no liability, obligation or responsibility as to the functionality and operation of Salesforce CRM, Micro Focus Content Manager (TRIM/RM) and any other Third Party application inter-operating with Salesforce CRM and/or Micro Focus Content Manager (TRIM/RM).####5. FEES AND PAYMENT####5.1. License Fees Payable##Licensee shall pay all fees or charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payment obligations are non-cancellable and fees paid are non-refundable, except in the event Licensee terminates this Agreement due to Licensor’s breach pursuant to Section 7.1. Neither party will disclose any pricing terms or other terms of this Agreement to anyone other than its attorneys, accountants, nor other professional advisors under a duty of confidentiality except (a) as required by law, or (b) as mutually agreed between parties.####5.2. Billing and Renewal##Licensor charges and collects in advance the License Fees for use of the Connector and for any optional Support Services as agreed. Licensor will automatically renew and issue an invoice to Licensee each year on the subsequent anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current number of total licenses times the License Fee in effect during the prior term unless Licensor has given at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis.####Licensee agrees to provide Licensor with complete and accurate billing and contact information. This information includes Licensee’s company name, street address, e-mail address, and names and telephone number of an authorized billing contact. Licensee agrees to inform Licensor of any changes within 30 days of these changes becoming effective. If the contact information Licensee provides is false or fraudulent, Licensor reserves the right to terminate use of the Connector in addition to any other legal remedies. If Licensee believes billing is incorrect, Licensee must contact Licensor in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.####5.3. Term and Termination##This Agreement continues until the Subscription Term granted in accordance with this Agreement has expired or been terminated. If Licensee elects to use the Connector for a free trial period and does not purchase a license before the end of that period, this Agreement will terminate at the end of the free trial period. A license purchased by Licensee commences on the Effective Date of this Agreement and continues for the Subscription Term specified therein.####All licenses shall automatically renew for additional periods equal to the expiring Subscription Term unless either party gives the other notice of cancellation (non-renewal) at least 15 days before the end of the relevant Subscription Term. The Licensing Fee during any such renewal term shall be equal to the License Fee in the prior term unless Licensor has given Licensee written notice of increased License Fee at least 30 days before the end of such prior term, in which case the increased License shall become effective from the first day of the renewal period.####5.4. Currencies##Fees are payable in the currency quoted in the Order Form.####5.5. Taxes##Unless otherwise stated License 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 called " Taxes"). Licensee is responsible for paying all Taxes associated with the purchases of the Connector. If Licensor has the legal obligation to pay or collect Taxes for which Licensee is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Licensor with a valid tax exemption certificate authorized by the appropriate taxation authority.####6. PROPRIETOR RIGHTS####6.1. Reservation of Rights##Subject to the limited rights expressly granted in this Agreement, Licensor reserves all rights, title and interest in and to the Connector, including all related Intellectual Property Rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.####6.2. Restrictions##Other than third party consultants tasked with implementing the integration of Licensor’s products, Licensee shall not (i) permit any third party to use the Connector except as permitted herein or in the Order Form, (ii) create derivate works based on the Connector, (iii) copy, frame or mirror any part or content of the Connector, (iv) reverse engineer the Connector, or (v) access the code of the Connector in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the product.####6.3. Unpermitted Use##Licensee shall not use the Connector to (i) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) intentionally store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (iv) attempt to gain unauthorized access to Third party systems or networks.####6.4. Ownership of Data##Licensee exclusively owns all rights, title, and interest in and to all of the data as processed by the Connector.####7. TERMINATION BY CAUSE####7.1. Termination for Material Breach##Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured such breach within thirty (30) days of written notice specifying the breach. Consent to extend the cure period shall not be unreasonably withheld, so long as the breaching party has commenced cure during the thirty (30) days period and is pursuing such cure diligently and in good faith.####7.2. Failure to Make Payment##Notwithstanding anything in this Section 7 to the contrary, if Licensee fails to make payment on any due date, Licensor shall have the right to suspend the issuing of a new license and, if such failure to make payment has not been cured within thirty (30) days of the due date, upon written notice terminate this Agreement.####7.3. Termination for Insolvency##Either party may terminate this Agreement immediately upon written notice if the other party enters into insolvency or bankruptcy proceedings of any sort.####7.4. Effect of Termination##Licensor shall cease to support the Connector after this Agreement has been terminated.####If termination is due to a Material Breach of this Agreement as outlined in Article 7.1., or by Insolvency as meant in Article 7.3., Licensor shall immediately cease to use the Connector.####Termination of this Agreement shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall termination relieve Licensee of its obligation to pay all charges and expenses accrued prior to such termination.####8. CONFIDENTIALITY##Except as otherwise permitted in writing Licensor and Licensee shall use the same degree of care that they use to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the other party for any purpose outside the scope of this Agreement.####9. INDEMNIFICATION##Licensee shall defend Licensor against any claim made or brought against Licensor by a third party alleging that the use of the Connector in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Licensor for any damages finally awarded against, and for reasonable attorney’s fees incurred by Licensor in connection with any such claim; provided, that Licensor (a) promptly gives Licensee written notice of the claim; and (b) gives Licensee sole control of the defense and settlement of the claim. Without limiting any of Licensor’s rights or remedies or the indemnity above, if the Software or Documentation, when used in accordance with the terms hereof, is held to constitute an infringement of another person’s rights, and use thereof is enjoined, Licensor shall, at its election and expense, either: procure the right to use the infringing element of the Software or Documentation; or replace or modify the element of the work so that the infringing portion is no longer infringing and still performs the same function without any material loss of functionality, and shall make every reasonable effort to correct the situation with minimal effect upon the operations of the Licensee. Notwithstanding the foregoing, both the Licensor and Licensee will have the right to terminate this Agreement in the event of an infringement claim.####10. LIMITATION OF LIABILITY####10.1. Limitation of Liability##EXCEPT AS PROVIDED IN PARAGRAPH 9, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM LICENSEE, WITH RESPECT TO ANY SINGLE INCIDENT, IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THE FOREGOING SHALL NOT LIMIT LICENSEE’S PAYMENT OBLIGATIONS UNDER ARTICLE 5.####10.2. Exclusion of Consequential and Related Damages##IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.####10.3. Disclaimer of Warranties##THE CONNECTOR AND THE ASSOCIATED DOCUMENTATION ARE SUPPLIED TO LICENSEE "AS IS.” LICENSOR (DEFINED IN THIS SECTION AS LICENSOR’S PARENT, AFFILIATES, SUBSIDIARIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES) MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE CONNECTOR, THE ASSOCIATED DOCUMENTATION, THE OPERATION OF THE CONNECTOR, OR ANY OTHER GOODS OR SERVICES RENDERED BY LICENSOR TO LICENSEE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, PERFORMANCE, ACCURACY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES THAT THE CONNECTOR WILL RUN PROPERLY ON ANY HARDWARE, THAT THE CONNECTOR WILL MEET LICENSEE’S REQUIREMENTS OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY LICENSEE, OR THAT THE OPERATION OF THE CONNECTOR WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. LICENSOR MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND REGARDING ANY SEPARATELY LICENSED SOFTWARE THAT MAY BE USED WITH THE CONNECTOR.####11. GOVERNING LAW; VENUE##This Agreement shall be governed by the internal laws of New Zealand. Any legal action or proceeding relating to this Agreement shall be instituted in the Nelson High/District Court. Licensee and Licensor agree to submit to the jurisdiction of, and agree that venue is proper in, said court.####12. NOTICE##All notices hereunder shall be in writing and shall be delivered to the address of the other party’s Registered Office. Notice shall be effective upon receipt.####13. WAIVERS##All waivers must be in writing and signed by authorized representatives of the parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.####14. SEVERABILITY##In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.####15. ASSIGNMENT##Licensee may not assign this Agreement. Licensor may assign this Agreement to a successor (whether by merger, a sale of all or a significant portion of its assets, a sale of a controlling interest of its capital stock, or otherwise) which agrees in writing to assume Licensor’s obligations under this Agreement.####16. ENTIRE AGREEMENT##This Agreement constitutes the complete agreement between the parties and supersedes all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter thereof. This Agreement shall not be modified or amended except in a writing signed by a duly authorized representative of each party.####Dated 19 March 2019.
