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LICENSE AND SUBSCRIPTION AGREEMENT<BR>THIS LICENSE AND SUBSCRIPTION AGREEMENT governs the acquisition and use of all Shift CRM Products and/or Services involving the license of intellectual property of Shift CRM Inc. (“Shift CRM”) for use of the Product and/or Services. <BR>YOU AGREE THAT THE TERMS AND CONDITIONS CONTAINED HEREIN MAY BE ACCEPTED BY YOU AS FOLLOWS: (I) BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR (II) BY CLICKING THE "I ACCEPT" BUTTON. IN EITHER INSTANCE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF THE PRODUCTS AND SERVICES (DEFINED BELOW), AND ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE DO NOT ACCEPT THE TERMS AND CONDITIONS CONTAINED HEREIN. THIS AGREEMENT IS EFFECTIVE WHEN YOU CLICK “I ACCEPT” BELOW (“EFFECTIVE DATE”). Either party may, but is not required to, email a PDF signed copy of this Agreement, including in counterparts, to the other party to evidence validity of this Agreement. To the extent you have a consulting services agreement and/or SOW with Shift CRM or its Affiliates, such agreement remains in effect and creates independent obligations.<BR>1. Definitions<BR>“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with another entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of an entity. <BR>“Agreement” means this License and Subscription Agreement.<BR>“Data” means all data or information submitted by you for or in respect of the Product or Services.<BR>“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.<BR>“Non-Shift CRM Applications” means online applications and offline software products which are provided by entities or individuals other than Shift CRM and that inter-operate with the Products and/or Services.<BR>“Order Form” means an order form by which a client purchases access to any Product and/or Services for use, and for the period of time, as described therein.<BR>“Product” means any proprietary technology of Shift CRM (including software, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) contained in any product of Shift CRM that is or may be downloaded or otherwise accessed for use for a fee and includes, without limitation, Ultimate Account.<BR>“Services” means the support services of Shift CRM that are ordered by you pursuant to an Order Form as part of your license to access a Product during Shift CRM’s standard support hours (Monday - Friday, from 9:00 AM - 5:00PM EST). Services include general inquiries and troubleshooting regarding the Product but do not include customization or development work. <BR>“Subscription Term” has the meaning specified in Section 7.2 hereof.<BR>“Term” has the meaning specified in Section 7.1 hereof.<BR>“you” or “your” means you personally or the legal entity for which you are accepting this Agreement, and Affiliates of that entity. <BR>“Users means individuals who are authorized by you to access and use the Products and Services and for whom you have paid the required fees. Users may include but are not limited to your employees, consultants, contractors and agents, and third parties with which you transact business who have a saleforce license to access your saleforce information. <BR>2. Products and Services<BR>2.1 Provision of Products and Services. Shift CRM hereby grants you a non-exclusive, non-transferable subscription to access and use the Products and Services, solely for your own internal business purposes, during the Term, solely for the number of Users which you have paid for, and shall make the Products and Services available to you pursuant to this Agreement during the Subscription Term outlined in the Order Form pertaining to such Products and/or Services. You acknowledge that a physical copy of the Product is not being provided to you but that you shall be accessing the Products via an internet connection. You agree that your subscription for the Products and/or Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Shift CRM regarding future functionality or features. Affiliates shall be entitled to access the Product for so long as such Affiliates remain your Affiliates and provided that all fees associated with such use have been paid by you. You agree that you are responsible for all acts and omissions of your Affiliates and all other Users <BR>2.2 Shift CRM Responsibilities. Shift CRM agrees to provide support for the Product if and as specifically provided as Services in an Order Form. <BR>2.3 Your Responsibilities. You agree to: (i) be responsible for Users’ compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Product, and notify Shift CRM promptly of any such unauthorized access or use, and (iii) access and use the Product and Services only in accordance with all applicable laws and government regulations. In addition, you agree and shall not: (a) make the Product or Services available to anyone other than Users, (b) sell, resell, or lease, directly or indirectly, the Product or Services, (c) access or use the Product or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) access or use the Product or Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Product or Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Product or Services or their related systems or networks or (g) reverse engineer, decrypt, de-compile, disassemble, or create any derivative works of the Products and/or Services. <BR>2.4 Limitations on Use. The Product and Services may be subject to such other limitations as are specified in the Order Form. You may not access the Product or Services if you are a direct competitor, except with Shift CRM’s prior written consent. In addition, you may not access any Product or Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.<BR>3. Non-Shift CRM Providers<BR>3.1 Acquisition of Non-Shift CRM Products and Services. Any acquisition by you of non-Shift CRM products and/or services, and any exchange of data between you and any non-Shift CRM provider, is solely between you and such provider. Shift CRM does not warrant or support non-Shift CRM products or services.<BR>3.2 Non-Shift CRM Applications and your Data. If you install or enable Non-Shift CRM Applications for use with the Product or Services, unless as a Product or the Services provided pursuant to an Order Form, Shift CRM shall not be responsible for any disclosure, modification or deletion of your Data resulting from any such access by Non-Shift CRM Application providers.<BR>3.3 Integration with Non-Shift CRM Applications. The Shift CRM Products and/or Services may contain features designed to inter-operate with Non-Shift CRM Applications. If a provider of a Non-Shift CRM Applications ceases to make a Non-Shift CRM Application available for inter-operation with the corresponding Product or Services, Shift CRM may cease providing such Product or Services, or support thereto and any refund, credit, or other compensation related to ongoing support for a Product or Services shall be governed by the relevant Order Form. <BR>4. Fees and Payment<BR>4.1 Fees. Fees for Products and Services ordered by Order Form are as specified in such Order Form. Products and Services subscription fees are based on annual, quarterly or monthly periods as specified in the Order Form and begin on the subscription start date and each annual, quarterly, or monthly anniversary thereof. Fees for subscriptions added in the middle of the specified period will be charged pro-rata for that period and the periods remaining in the Subscription Term. All amounts paid are non-refundable and non-cancellable. <BR>4.2 Invoicing and Payment. For Products and Services ordered pursuant to an Order Form, Shift CRM may, in its discretion, either require credit card payment from you at the time of ordering or may invoice you and, in such an event, payment is required in accordance with the relevant Order Form <BR>5. Proprietary Rights<BR>5.1 Reservation of Rights in Products and Services. Shift CRM reserves all right, title and interest in and to the Products and Services, including all intellectual property rights. No rights are granted other than the right of access and use, as expressly set forth herein.<BR>5.2 Reservation of Rights in Services. Shift CRM reserves all right, title and interest in and to the Services, including all intellectual property rights.<BR>5.3 Restrictions. You agree to and shall not: (i) permit any third party to access the Products or Services only as permitted herein, (ii) create derivate works based on the Products or Services, (iii) copy, frame or mirror any part or content of the Products or Services, other than copying or framing for your own internal business back-up, retention or other internal business purposes, (iv) reverse engineer the Products or Services, or (v) access the Products or Services in order to build a competitive product or service, or copy any features, functions or graphics of the Products or Services.<BR>5.4 Your Applications and Code. If you, a third party acting on your behalf, or a User creates applications or program code using the Products and/or Services, you authorize Shift CRM to copy, transmit, display and adapt such applications and program code as necessary for Shift CRM to provide the Products and/or Services in accordance with this Agreement. <BR>5.5 Data. Subject to the limited rights granted by you hereunder, Shift CRM acquires no right, title or interest in or to your Data, including any intellectual property rights therein.<BR>5.6 Suggestions/Feedback. Any feedback, ideas, modifications, enhancement requests, recommendations, suggestions, improvements, and the like made or provided by you, including Users, with respect to the Product and/or Services (“Supportive Information”) will be the property of Shift CRM. You hereby agree to assign, and hereby assign (and confirm that all Users have assigned and agreed to assign), all right, title, and interest worldwide in the Supportive Information and the related intellectual property rights to Shift CRM and agree to assist Shift CRM in perfecting and enforcing such rights. Shift CRM may disclose or use Supportive Information for any purposes whatsoever without any obligation to you. This Section shall survive the expiry or termination of this Agreement.<BR>6. Warranties and Disclaimers<BR>6.1 Warranties. Shift CRM warrants that it has the legal authority to enter into this Agreement. You warrant that you have the legal authority to enter into this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity and its Affiliates as applicable.<BR>6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.<BR>6.3 Trial Services. From time to time Shift CRM may invite you to try or participate in, at no charge, Shift CRM products or services that are described as in beta, pilot, limited release, developer preview, non-production or a description of similar import. If you choose to try or participate you will be asked to sign a Participant Agreement. Such products and services are or will be provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. Such products and services are not considered within the definition of “Products” or “Services” hereunder and are provided “as is” with no express or implied warranty. Shift CRM may discontinue any such products and services at any time in Shift CRM’s sole discretion and may never make them generally available.<BR>7. Term and Termination Obligations<BR>7.1 Term of Agreement. This Agreement is effective between you and Shift CRM as of the date you purchase any Product or Service, and continues for the duration of your use of a Product and/or Services (the “Term”).<BR>7.2 Subscription Term. Products and Services subscriptions purchased by you commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein (the “Subscription Term”). Except as otherwise specified in the applicable Order Form, all Products and Services subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is shorter), unless a party gives the other notice of non-renewal at least 30 days before the end of a Subscription Term. <BR>7.3 Termination. If you are in breach of any term of this Agreement, Shift CRM may suspend your access to and use of the Products and Service until you have cured the breach. Additionally, either party may terminate this Agreement upon written notice if the other party breaches a material term of this Agreement and does not cure such breach within 30 days after written notice of such breach. Upon the termination of this Agreement for any reason: (a) any amounts owed to Shift CRM by you under this Agreement before such termination will become immediately due and payable, (b) you will no longer be authorized to access the Products and Services and (c) Shift CRM will terminate your access to or use of the Products and Services. <BR>7.4 Survival. Upon termination or expiration of the Term of this Agreement, the following Articles and Sections of this Agreement shall continue and survive: 5 (Proprietary Rights), 7.4 (Survival), 8 (Limitation of Liability), 9 (Confidentiality) or 10 (Other Provisions). <BR>8. Limitation of Liability<BR>IN NO EVENT WILL SHIFT CRM BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT. SHIFT CRM’S TOTAL CUMULATIVE LIABILITY FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO SHIFT CRM BY YOU UNDER THIS AGREEMENT IN THE PREVIOUS 12 MONTHS. YOU ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SHIFT CRM WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. <BR>9. Confidentiality<BR>You acknowledge that the Products and Services will include Confidential Information. You agree to maintain the confidentiality of all Confidential Information and you can only be permitted to disclose confidentiality to those employees and other third parties permitted by this Agreement who have agreed in advance, in writing, to maintain the confidentiality of such Confidential Information. You agree to use such Confidential Information solely for purposes of making use of the Products and Services in accordance with the terms of this Agreement. For purposes of this Agreement, “Confidential Information” means all non-public information of Shift CRM including, without limitation, the Products and Services, methods and concepts used in the Products and/or Services, any technical or business information of Shift CRM, marketing plans of Shift CRM. “Confidential Information” does not include information which you can clearly establish was lawfully known to or independently developed by you before being received from Shift CRM or which has become available to the general public through other than as a result of disclosure by you. <BR>10. Other Provisions<BR>10.1 Notices. Any notice given pursuant to this Agreement shall be in writing and may be effectively given if delivered personally, via courier or sent by facsimile to the registered business address for a party. Any notice received by personal delivery, courier or facsimile transmission before 4:00 p.m. on a business day in the jurisdiction of the recipient shall be deemed to have been given on that business day. Any notice received by a recipient by personal delivery or facsimile transmission after 4:00 p.m. on a business day, or any other day, shall deemed to have been given on the next business day.<BR>10.2 Dispute Resolution and Governing Law. If any dispute arises between the parties pertaining to this Agreement which the parties are unable to resolve amicably, such dispute shall be submitted to mediation. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario without regard to conflicts of interest provisions, and the parties attorn to the jurisdiction of the courts in Toronto, Ontario for the final resolution of any disputes. Notwithstanding the foregoing, nothing in this Section shall prevent either party from seeking immediate equitable relief<BR>10.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.<BR>10.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.<BR>10.5 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.<BR>10.6 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. <BR>10.7 Assignment. You agree that you shall not be entitled to assign any rights under this Agreement. Any attempted or purported assignment shall be null and void and shall result in the termination of this Agreement as of the date of the purported assignment. Shift CRM shall be entitled to assign this Agreement and/or any of its rights under this Agreement without your consent.<BR>10.8 Audit Rights. Shift CRM will have the right, during normal business hours and upon at least ten (10) days prior notice, to audit your use of the Product and Services in order to verify that you have paid to the correct amounts owed under this Agreement and otherwise complied with the terms of this Agreement. The audit will be conducted at Shift CRM’s expense, unless the audit reveals that you have underpaid the amounts owed to Shift CRM by five percent (5%) or more, in which case you agree to reimburse Shift CRM for all costs and expenses incurred by Shift CRM in connection with such audit. <BR>10.9 Entire Agreement. This Agreement and the Order Form constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by each of the parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the Order Form, the terms of this Agreement shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a purchase order or other order or work or services documentation sent by you to Shift CRM (excluding Order Forms which are accepted by Shift CRM) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.