Access License and Service Terms Agreement####This Access License and Service Terms Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity) (“You” or “Customer”) and Strategic Sales Systems, Inc., a division of XTIVIA, Inc., with its principle place of business at 2035 Lincoln Highway, Suite 1010, Edison, NJ 08817 (“SSS”) setting forth the terms and conditions under which SSS will grant You the right to access and use certain SSS software described in the accompanying or online documentation (“Software”). ####1. DEFINITIONS##“SFDC” means either the company Salesforce.com or the Web-based platform services provided by Salesforce.com via http://www.salesforce.com and/or other designated websites as described in the SFDC User Guide##“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.##"AppExchange" means the online directory of applications that interoperate with Web-based platform services provided by SFDC, located at http://www.salesforce.com/appexchange or at any successor websites.##“Customer” means the party named above and its Affiliates, representatives, agents and employees.##“Customer Data” means all electronic data or information submitted by Customer to the Services.##“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.##“Acceptance Date” means the date on which SSS accepts and signs the Service Order Form and Contract from the Customer for subscription services.##“Services” means the license to use the online SSS application that is installed into and interoperates with the Web-based platform services provided by SFDC via http://www.salesforce.com and /or other designated websites as described in the SFDC User Guide that are ordered by Customer. Services do not include project development or customization work performed by SSS.##“Service Order Form” means the corresponding order form or Statement of Work (hereinafter “SOF”) issued pursuant to this Agreement.##“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, including but not limited to SSS, that interoperate with the Web-based platform services provided by SFDC, including but not limited to those listed on the AppExchange.##“User Guide” means the online user guide for the Services, accessible via online help or http://www.SSSworld.com, as updated from time to time.##“Users” means individuals who are authorized by Customer to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied a license via the SFDC License application utilized by SSS, by Customer (or by SSS at Customer’s request). Users may include but are not limited to employees, consultants, contractors and agents of Customer.####2. SERVICES##a. Service Order Form. For Services provided hereunder Customer and SSS shall complete and execute the then applicable SOF which shall set forth the term of the contract. Once executed by the parties, each SOF along with this Agreement shall be deemed a separate agreement for the Software Licenses and Services provided in the SOF. Should there be a conflict between the terms of the SOF and this Agreement, the SOF shall govern. Nothing herein shall be construed or interpreted to obligate either party to enter into any SOF with the other. For the avoidance of doubt, to the extent SSS provides development and/or customization work to Customer, such work shall be governed under the terms and conditions of a Master Services Agreement (“MSA”) required between SSS and Customer and not this Agreement.##b. Term and Termination of the SOF. The SOF shall be effective as of the date of purchase and shall continue until its expiration or termination in accordance with the terms hereof. Termination of any SOF shall not affect any other SOF then in effect and the Agreement shall continue to govern such SOFs until they are terminated or performance thereunder has been completed.##c. Payment of Services. The payment provisions for the license and/or Services provided under each SOF shall be stated in the applicable SOF.##d. Provision of Services. Subject to Customer’s payment of all applicable fees and its compliance with the terms of this Agreement, SSS shall make the Services available to Customer pursuant to this Agreement and the applicable SOF.##e. User Subscriptions. Services that are User subscription-based may be accessed by no more than the number of Users specified in the applicable SOF. Additional User subscriptions may be added by written request by Customer. Any User subscriptions added during the subscription term will be prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added and the added User subscriptions shall terminate on the same date as the pre-existing User subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services by written notice provided to SSS.##f. SSS Responsibilities. SSS shall: (i) provide to Customer basic support for the Services and licenses provided in a SOF at no additional charge except in the case of services specifically indicated to be unsupported. SSS will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime by which will be communicated to Customer, or (b) any unavailability caused by circumstances beyond SSS’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving SSS employees), or Internet service provider failures or delays. SSS will provide the Services in accordance with applicable laws and government regulations.##g. Software Updates. SSS reserves the right, in its sole discretion, to automatically apply certain upgrades or updates to the Software and push such upgrades or updates to Customer.####3. CUSTOMER RESPONSIBILITIES ##Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify SSS promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. Customer shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the 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) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.####4. THIRD-PARTY PROVIDERS ##a.Third Party Services. Service features that interoperate with native map programs such as Bing, Apple, or Google services depend on the continuing availability of the respective application programming interface (“API”) and program for use with the Services. If either company ceases to make the API or program available on reasonable terms for the Services, SSS may cease providing such Service features without entitling Customer to any refund, credit, or other compensation and without any liability on the part of SSS to Customer. SSS has the right in its sole discretion to replace Bing, Apple, or Google services with equivalent services for the purposes of continuity of Services. To the extent SSS ceases providing the Services under this section or fails to replace Bing, Apple or Google services with an equivalent service in order to continue providing the Services, Customer may terminate this Agreement and any open SOFs without any further liability to SSS except for any fees owed by Customer to SSS for Services provided through the date of termination.##b. End User License Agreement. By accepting this Agreement, the Customer also accepts all third party end user license agreements of any component, API, application, source code utilized or packaged and delivered by the Service provided SSS provides Customer with such third party end user license agreements if requested to do so in writing.####5. SERVICE TERMS##a. User Subscriptions. If Customer is in breach of this Agreement, which breach is not cured within five (5) days of notice of such breach provided by SSS to Customer, SSS may, without limiting its other rights and remedies, suspend Customer’s access to the Services upon notice to Customer and SSS shall have not liability to Customer with respect to any such suspension.####6. PROPRIETARY RIGHTS##a. Reservation of Rights. Subject to the limited rights expressly granted hereunder, SSS reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.##b. Restrictions. Customer shall not (i) permit any third party to access the Services except as permitted herein or in a SOF, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer's own intranets or otherwise for its own internal business purposes, (iv) reverse engineer the Services, (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services, (vi) remove or destroy any copyright notices or other proprietary markings.##c. Ownership of Customer Data. As between SSS and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data.##d. Suggestions. SSS shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services.##e. Federal Government End Use Provisions. SSS provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with SSS to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.####7. CONFIDENTIALITY##a. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer shall include Customer Data; Confidential Information of SSS shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all SOF, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party.##b. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses 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 Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its employees, contractors and agents who need access to such Confidential Information for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.##c. Protection of Customer Data. SSS shall maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. SSS shall not (a) disclose Customer Data except as compelled by law in accordance with the “Compelled Disclosure” section below or as expressly permitted in writing by Customer, or (b) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer's request in connection with customer support matters.##d. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.####8. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS##a. SSS Warranties. SSS warrants that (i) the Services shall perform materially in accordance with the User Guide, and (ii) subject to the “Third party Services” section above, the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Customer’s exclusive remedy from SSS, and SSS’s sole liability to Customer, shall be to terminate this Agreement as provided in the “Termination for Cause” section below, provided that, Customer provides written notice of such non-conformance of Services under this Section 8(a) no more than thirty (30) days after the date such Services are provided.##b. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).##c. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8, SSS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR COURSE OF PERFORMANCE, AND SSS HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, SSS DISCLAIMS ANY WARRANTY THAT THE SERVICES MEET CUSTOMER’S REQUIREMENTS OR THAT SERVICES WILL BE PROVIDED OR OPERATE UNINTERRUPTED OR ERROR-FREE.####9. MUTUAL INDEMNIFICATION##a. SSS Indemnification. SSS shall, at its own expense, indemnify, defend and hold Customer harmless from any claim or suit alleging that the Services as delivered by SSS infringe any registered United States copyright, or that SSS has knowingly misappropriated any trade secret or other intellectual property right of any other entity, including any losses, damages, or expenses arising from any such claim or suit. Customer shall provide SSS with authority to proceed as contemplated herein and reasonable assistance to settle and/or defend any such claim or suit.##b. Customer Indemnification.##i. Customer shall, at its own expense, indemnify, defend and hold SSS harmless from any claim or suit arising out of or relating to the misuse or misappropriation of, or any use in violation of this Agreement, of the Services, including any losses, damages or expenses arising from any such claim or suit. SSS agrees to cooperate with Customer in the defense or settlement of any such claim or suit, provided that SSS shall be reimbursed for all reasonable out-of-pocket expenses incurred in providing any cooperation requested by Customer.##ii. Customer agrees to indemnify, defend, and hold harmless SSS, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including without limitation, reasonable attorneys’ fees, to the extent that such action is based upon a claim that any of the Customer Data to be provided by Customer hereunder infringes or violates any rights of third parties, including without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets, and/or licenses.##c. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.####10. LIMITATION OF LIABILITY##a. Limitation of Liability. OTHER THAN LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SSS SERVICES, OR WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT.##b. 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 OR FOR LIABILITY ARISING FROM A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION).####11. TERM AND TERMINATION##a. Term of Agreement. This Agreement commences on the purchase date and continues until all User subscriptions or licenses granted in accordance with an applicable SOF have expired or been terminated.##b. Term of User Subscriptions. User subscriptions commence on the start date specified in Customer’s SOF to SSS for such subscriptions and continue for the subscription term specified therein. Unless otherwise stated in the SOF, the SOF will automatically renew for a period of twelve (12) months unless either party gives thirty (30) days’ prior written notice (which includes notice via email) of its intent not to renew prior to the expiration of the then current term.##c. Termination for Cause. A party may terminate this Agreement and any open SOF’s for cause (i) upon thirty (30) days’ prior written notice to the other party of a material breach if such breach remains uncured at the expiration of such 30-day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.##d. Surviving Provisions. The sections titled “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Surviving Provisions” and “General Provisions” shall survive any termination or expiration of this Agreement.####12. GENERAL PROVISIONS##a. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each of SSS and Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.##b. 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.##c. Publicity. SSS may use Customer trademarks, service marks, trade names, trade dress, domain names or other source identifiers without Customer’s prior written consent. SSS may (i) refer to or identify Customer in SSS’s press releases or marketing, advertising or promotional materials, or on SSS’s websites, or (ii) otherwise disclose to any other person or entity that SSS has furnished or contracted to furnish to Customer the Services, or the terms, conditions or scope of this Agreement.##d. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.##e. Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv), except for notices of termination or an indemnifiable claim (“Legal Notices”), the first business day after sending by email. Notices to SSS shall be addressed to the attention of its President, with a copy to its General Counsel at the address listed at the beginning of this Agreement. All notices to Customer shall be addressed to the relevant Service system administrator designated by Customer. Legal Notices to Customer shall also be addressed to Customer’s signatory of this Agreement or any person designated beneath the signature area below.##f. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.##g. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.##h. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement and any open SOF upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.##i. Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of New Jersey, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.##j. Venue; Waiver of Jury Trial. The state and federal courts located in Middlesex County, New Jersey shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.##k. Entire Agreement. This Agreement constitutes the entire agreement between SSS and Customer and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter between SSS and Customer; provided, however, this agreement does not supersede or replace the MSA (as applicable). No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any SOF, the terms of such exhibit, addendum or SOF shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer order documentation (excluding SOF) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.##l. Expiration or Termination. Upon expiration or termination of the Agreement or any SOF, SSS will provide Customer with a file containing Customer Data in a format acceptable to Customer.
