Master Services Agreement (MSA)
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This Master Services Agreement (“Agreement”), including any applicable addenda, appendices, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Conga Corporation (“Conga”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period.
Conga may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”), unless Customer first gives Conga written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Services Agreement applies to Customer’s use of the online subscription services, including associated offline components and packaged technical support services, provided or managed by Conga (collectively, the “Subscription Services”) that are listed in one or more Conga ordering documents signed by the parties (each, an “Order Form”). This Master Services Agreement and all executed Order Forms, including any addenda, appendices, and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order Form.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order Form (the “Subscription Term”), Conga will (i) provision and/or make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; and (ii) the functionality of the Subscription Services will not be materially decreased from that available as of the Effective Date. Conga may release updates or upgrades, including push upgrades, to the Subscription Services during the Subscription Term, however, Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Conga with respect to future functionality or features. Customer’s affiliates (“Affiliates”) may purchase Subscription Services from Conga pursuant to this Agreement. In such event, all references to “Customer” hereunder shall instead refer to such Affiliate identified in the applicable Order Form(s).
1.3 Subscription Services Users. Subject to the applicable entitlements, limits, and constraints set forth in the Order Form, Customer may authorize Customer’s (or its Affiliates’) named employees, representatives, consultants, contractors, partners, or agents (each, a natural person) to use the Subscription Service by supplying user identifications and passwords for such individuals (“Users”). Additionally, if applicable, Users may use Service Events, SMS Events, or Conga Sign Transactions, or other volume-based Subscription Services, subject to the applicable entitlements, limits, and constraints set forth in the Order Form. Customer may increase the quantity of Subscription Services pursuant to mutual execution of an additional Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Conga will make the Subscription Services available in accordance with the Conga Service Level Agreement further described at /legal-center/service-level-agreement (“SLA”).
1.5 Technical Support. Conga will provide technical support services in accordance with the level of technical support indicated in the Order Form ("Technical Support").
1.6 Service Descriptions. Conga will publish and maintain Service Descriptions that describe the material functionality of, and product-specific terms applicable to, the Subscription Services (“Service Descriptions”), which shall be updated from time-to-time and located at: /legal-center/service-descriptions.
1.7 Professional Services. If Customer wishes to purchase implementation or other professional services from Conga relating to the Subscription Services (“Professional Services”), such work will be described in one or more separate statement(s) of work (“SOW”) or Order Form(s), in certain cases. Any Professional Services to be provided to Customer by Conga will be governed by the SOW and the Professional Services Terms found at: /legal-center/professional-services-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order Form or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, and reliability of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Conga promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Customer grants Conga a limited license to process and store Customer Data, where applicable, to provide, operate, maintain, and improve the Subscription Services in accordance with this Agreement. Customer will ensure all Customer-controlled system settings for Users are consistent with applicable entitlements, limits, and constraints, including license types and quantities, set forth in each Order Form, or otherwise in this Agreement. Seat based licenses are intended for direct use by named Users and automated or programmatic use is not permitted. Transactions, including Service Events (each as defined in the Order Form, if applicable), may be used in automated or programmatic workflows and may also be consumed by seat-based Users. If Customer exceeds a contractual usage limit (e.g., User count, Transactions, Service Events, Document Ingestions, etc.), Conga may work with Customer to align Customer’s usage to the applicable entitlements, limits, and constraints. If, notwithstanding Conga’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Subscription Services promptly upon Conga’s request, and/or pay any invoice for excess usage in accordance with Section 4 (Fees and Payment) below.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; (vii) access the Subscription Services for purposes of penetration, vulnerability, or other security testing, load testing, benchmarking, or competitive purposes; or (viii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order Form or in this Agreement. User subscriptions are for individual Users and cannot be shared or used by more than one User at a time, but may be reassigned to new Users replacing former Users who no longer require use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers (“Third-Party Providers”) offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to Customer's use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Conga is not responsible for, and does not warrant any such Third-Party Providers or any of their products or services. Customer is solely responsible for obtaining any necessary rights or licenses thereto, and the results therefrom. Any exchange of data or other interaction between Customer and a Third-Party Provider, and any purchase by Customer of any product or service offered by such provider, is solely between Customer and such Third-Party Provider. Notwithstanding the foregoing, to the extent Customer purchases such third-party products or services directly from Conga, the providers of such products or services shall not be considered Third-Party Providers hereunder.
2.4 SFDC’s Role. If the applicable Subscription Services are hosted on the customer relationship management platform provided by Salesforce.com, Inc. ("Salesforce Platform"), Customer recognizes and agrees that its access to the Salesforce Platform via the Subscription Services is subject to the SFDC Terms of Use, made available by Salesforce here: https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/Agreements/alliance-agreements-and-terms/Reseller-Pass-Through-Terms.pdf.
3. Security and Data Protection.
3.1 Protection of Customer Data. Conga has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security and privacy of Customer Data, as further described in the Data Security Exhibit found at /legal-center/data-security-exhibit. Conga will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Conga or its Sub-processors (as such term is defined in the DPA).
3.2. Data Privacy. Conga’s Data Processing Addendum is available at /legal-center/dpa and is incorporated into this Agreement by reference when applicable data protection law(s) applies to Customer’s use of the Subscription Services.
3.3 Use of Services Attributes and Anonymized Data. Conga may collect, use and disclose quantitative and other usage information, including data derived from Customer Data, (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. Services Attributes will be considered in the aggregate form only and will be anonymized, so as not to identify Customer or its Users . Conga retains all rights, title and interest in and to Services Attributes.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Order Forms hereunder. Except as otherwise provided in an Order Form(s), all fees will be invoiced and paid in United States dollars. Except as expressly set forth otherwise in the Agreement, fees (i) are based on quantities of Subscription Services detailed in an Order Form; (ii) will not be prorated or refunded if actual usage or number of Users is less than expected; and (iii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order Form will not offset any fees due under any other Order Form.
4.2 Invoicing & Payment. Fees for Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order Form. All amounts are due and payable thirty (30) days from the invoice date.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, fees in an Order Form or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Conga is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice, unless Customer provides Conga with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for paying all Taxes, excluding only taxes based on Conga’s income and personal property. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in the applicable Order Form.
4.5 Suspension of Subscription Services. If Customer is in violation of this Agreement, or if Customer has an outstanding invoice that is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Conga reserves the right to suspend the Subscription Services, without liability to Customer, until such violation ceases and/or overdue amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Conga may utilize (A) Conga Corporation and Conga marks and brands, including the conga.com name, the Conga logo, the Conga.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Conga Technology"); and (ii) that the Conga Technology is covered by intellectual property rights owned or licensed by Conga (collectively, "Conga IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Conga Technology or Conga IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Conga Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including data contained within Conga database fields or objects, available to anyone other than Users, or use the Subscription Services, including information or data contained within Conga database fields or objects, for the benefit of any non-User; (iv) permit direct or indirect access to or use of any Subscription Services in a way that circumvents a contractual usage limit, or use any Subscription Services to access, copy or use any of Conga Technology, except as permitted under this Agreement or an Order Form, (v) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) create Internet "links" to or from the Subscription Service, or "frame" or "mirror" any content forming part of the Subscription Service for the benefit of non-Users; (vii) use or access the Subscription Services or Conga Technology to build, support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (viii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Conga and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement. During the Subscription Term, Customer may extract all Customer Data from the Subscription Services at its sole discretion.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Subscription Services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranties Disclaimer.
7.1 Warranties.
(a) Mutual Warranty. Each party represents and warrants that it has the legal power to enter into this Agreement.
(b) Data Warranty. Customer represents and warrants that Customer owns and has obtained all rights, consents, permissions, or licenses necessary to allow the Subscription Service’s access to, or possession, manipulation, processing, or use of the Customer Data and Customer templates.
(c) Subscription Services Warranty. Conga represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) perform in all material respects in accordance with the applicable Service Description(s), as updated from time to time; and (iii) that it owns or otherwise has sufficient rights to the Subscription Services to perform its obligations herein.
(d) Malicious Code. Customer represents and warrants that it will not upload any Customer Data or Customer templates to the Subscription Services that contain any programming routines, code, files, scripts, macros, or other elements that may damage, surreptitiously intercept or expropriate any system, data, or personal information through agents or programs intended to do harm, including for example viruses, worms, time bombs and Trojan horses (“Malicious Code”). Conga warrants and represents that Conga shall use all commercially reasonable efforts to prevent the introduction of any Malicious Code to Customer.
7.2 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CONGA DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. CONGA DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Conga. Subject to this Agreement, Conga will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Conga in a monetary settlement of such Claim. Conga’s obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data or Customer technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Conga will, in its discretion and at no cost to Customer do one of the following: (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF CONGA AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST CONGA FOR ANY CLAIM UNDER THIS SECTION.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Conga by a third party alleging that (I) Customer Data, Customer’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly give written notice of the Claim to the indemnifying party; (b) give the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in the defense of the indemnified matter, using counsel of its own selection, at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION), CUSTOMER’S PAYMENT OBLIGATIONS, AND EACH PARTY’S DATA SECURITY AND PRIVACY OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF ITS BREACH OF DATA SECURITY AND PRIVACY OBLIGATIONS HEREUNDER, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, SHALL EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWENTY-FOUR (24) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERRORS OR, INACCURACY OF OUTPUT; (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY; (iii) LOSS OF BUSINESS OR LOST PROFITS; (iv) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (v) MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date set forth in the relevant Order Form(s) and continue for the Subscription Term specified therein. Unless advised in writing by Customer (via email to renewallt@conga.com) at least forty-five (45) days prior to the expiration of the then-current Subscription Term, Conga may automatically renew the Subscription Services described in the active Order Form(s) for a new Subscription Term equal to the longest Subscription Term of such expiring Order Form(s). The Subscription Services fees and Technical Support fees shall increase by ten percent (10%) for each and any renewal term, provided the product type(s), quantity(ies), and Subscription Term duration are the same as in the expiring Order Form(s).
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Conga provided software related to the Subscription Services, including managed packages.
10.4 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Conga will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.5 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Conga prior to the effective date of termination.
10.6 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Publicity Rights. Conga may identify Customer as a Conga customer on its website and other marketing promotions. The parties agree to work together to draft and publish a press release regarding the relationship between Customer and Conga, with final wording subject to Customer approval.
11.3 Insurance. At its own expense, Conga shall maintain insurance coverage necessary to protect against insurable risks related to the Subscription Services and other related services, including cyber errors and omissions insurance, employer liability insurance, automobile insurance, network security and privacy liability insurance, and worker’s compensation insurance as required by applicable law. Conga shall procure blanket named insured coverage for Customer. Conga will provide Customer with a Certificate of Insurance evidencing the above policies and limits, no more than once yearly, and upon written request.
11.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.5 Notices. Conga may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal or via email. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Conga’s account information. All legal or dispute-related notices will be sent by first class mail, email, or express delivery, if to Conga, attention General Counsel, at P.O. Box 7839, Broomfield, Colorado 80021 U.S.A., or legal@conga.com, and if to Customer, to Customer's account representative and address on record in Conga’s account information or such other addresses as either party may designate in writing from time to time.
11.6 Force Majeure. Excluding Customer’s payment obligations under Section 4, neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.10 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules.
11.11 Venue. The state and federal courts located in the State of Delaware will 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.
11.12 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.13 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Services Agreement (“Agreement”), including any applicable addenda, appendices, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Conga Corporation (“Conga”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period.
Conga may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”), unless Customer first gives Conga written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Services Agreement applies to Customer’s use of the online subscription services, including associated offline components and packaged technical support services, provided or managed by Conga (collectively, the “Subscription Services”) that are listed in one or more Conga ordering documents signed by the parties (each, an “Order Form”). This Master Services Agreement and all executed Order Forms, including any addenda, appendices, and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order Form.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order Form (the “Subscription Term”), Conga will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) the functionality of the Subscription Services will not be materially decreased from that available as of the Effective Date. Conga may release updates or upgrades, including push upgrades, to the Subscription Services during the Subscription Term, however, Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Conga with respect to future functionality or features. Customer’s affiliates (“Affiliates”) may purchase Subscription Services from Conga pursuant to this Agreement. In such event, all references to “Customer” hereunder shall instead refer to such Affiliate identified in the applicable Order Form(s).
1.3 Subscription Services Users. Subject to the applicable entitlements, limits, and constraints set forth in the Order Form, Customer may authorize Customer’s (or its Affiliates’) named employees, representatives, consultants, contractors, partners, or agents to use the Subscription Service by supplying user identifications and passwords for such individuals (“Users”). Additionally, if applicable, Users may use Service Events, SMS Events, or Conga Sign Transactions, or other volume-based Subscription Services, subject to the applicable entitlements, limits, and constraints set forth in the Order Form. Customer may increase the quantity of Subscription Services pursuant to mutual execution of an additional Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Conga will make the Subscription Services available in accordance with the Conga Service Level Agreement further described at /legal-center/service-level-agreement (“SLA”).
1.5 Technical Support. Conga will provide technical support services in accordance with the level of technical support indicated in the Order Form ("Technical Support").
1.6 Service Descriptions. Conga will publish and maintain Service Descriptions that describe the material functionality of, and product-specific terms applicable to, the Subscription Services (“Service Descriptions”), which shall be updated from time-to-time and located at: /legal-center/service-descriptions.
1.7 Professional Services. If Customer wishes to purchase implementation or other professional services from Conga relating to the Subscription Services (“Professional Services”), such work will be described in one or more separate statement(s) of work (“SOW”) or Order Form(s), in certain cases. Any Professional Services to be provided to Customer by Conga will be governed by the SOW and the Professional Services Terms found at: /legal-center/professional-services-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order Form or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, and reliability of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Conga promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Customer grants Conga a limited license to process and store Customer Data, where applicable, to provide, operate, maintain, and improve the Subscription Services in accordance with this Agreement. Customer will ensure all Customer-controlled system settings for Users are consistent with applicable entitlements, limits, and constraints, including license types and quantities, set forth in each Order Form, or otherwise in this Agreement. Seat based licenses are intended for direct use by named Users and automated or programmatic use is not permitted. Transactions, including Service Events, are intended to be used for automated or programmatic use and can also be consumed by seat-based Users. If Customer exceeds a contractual usage limit, Conga may work with Customer to align Customer’s usage to the applicable entitlements, limits, and constraints. If, notwithstanding Conga’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Subscription Services promptly upon Conga’s request, and/or pay any invoice for excess usage in accordance with Section 4 (Fees and Payment) below.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; (vii) access the Subscription Services for purposes of penetration, vulnerability, or other security testing, load testing, benchmarking, or competitive purposes; or (viii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order Form or in this Agreement. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers (“Third-Party Providers”) offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to Customer's use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Conga is not responsible for, and does not warrant any such Third-Party Providers or any of their products or services. Customer is solely responsible for obtaining any necessary rights or licenses thereto, and the results therefrom. Any exchange of data or other interaction between Customer and a Third-Party Provider, and any purchase by Customer of any product or service offered by such provider, is solely between Customer and such Third-Party Provider. Notwithstanding the foregoing, to the extent Customer purchases such third-party products or services directly from Conga, the providers of such products or services shall not be considered Third-Party Providers hereunder.
2.4 SFDC’s Role. If the applicable Subscription Services are hosted on the customer relationship management platform provided by Salesforce.com, Inc. ("Salesforce Platform"), Customer recognizes and agrees that its access to the Salesforce Platform via the Subscription Services is subject to the SFDC Terms of Use, made available by Salesforce here: https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/Agreements/alliance-agreements-and-terms/Reseller-Pass-Through-Terms.pdf.
3. Security and Data Protection.
3.1 Protection of Customer Data. Conga has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security and privacy of Customer Data, as further described in the Data Security Exhibit found at /legal-center/data-security-exhibit. Conga will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Conga or its Sub-processors (as such term is defined in the DPA).
3.2. Data Privacy. Conga’s Data Processing Addendum is available at /legal-center/dpa and is incorporated into this Agreement by reference when applicable data protection law(s) applies to Customer’s use of the Subscription Services.
3.3 Use of Services Attributes and Anonymized Data. Conga may collect, use and disclose quantitative and other usage information, including data derived from Customer Data, (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. Services Attributes will be considered in the aggregate form only and will be anonymized, so as not to identify Customer or its Users . Conga retains all rights, title and interest in and to Services Attributes.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Order Forms hereunder. Except as otherwise provided in an Order Form(s), all fees will be invoiced and paid in United States dollars. Except as expressly set forth otherwise in the Agreement, fees (i) are based on quantities of Subscription Services detailed in an Order Form; (ii) will not be prorated or refunded if actual usage or number of Users is less than expected; and (iii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order Form will not offset any fees due under any other Order Form.
4.2 Invoicing & Payment. Fees for Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order Form. All amounts are due and payable thirty (30) days from the invoice date.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, fees in an Order Form or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Conga is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice, unless Customer provides Conga with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for paying all Taxes, excluding only taxes based on Conga’s income and personal property. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in the applicable Order Form.
4.5 Suspension of Subscription Services. If Customer is in violation of this Agreement, or if Customer has an outstanding invoice that is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Conga reserves the right to suspend the Subscription Services, without liability to Customer, until such violation ceases and/or overdue amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Conga may utilize (A) Conga Corporation and Conga marks and brands, including the conga.com name, the Conga logo, the Conga.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Conga Technology"); and (ii) that the Conga Technology is covered by intellectual property rights owned or licensed by Conga (collectively, "Conga IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Conga Technology or Conga IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Conga Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including data contained within Conga database fields or objects, available to anyone other than Users, or use the Subscription Services, including information or data contained within Conga database fields or objects, for the benefit of any unrelated third party or as a component of any non-Conga database fields or objects; (iv) permit direct or indirect access to or use of any Subscription Services in a way that circumvents a contractual usage limit, or use any Subscription Services to access, copy or use any of Conga Technology, except as permitted under this Agreement or an Order Form, (v) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (v) use or access the Subscription Services or Conga Technology to build, support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vi) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Conga and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement. During the Subscription Term, Customer may extract all Customer Data from the Subscription Services at its sole discretion.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Subscription Services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranties Disclaimer.
7.1 Warranties.
(a) Mutual Warranty. Each party represents and warrants that it has the legal power to enter into this Agreement.
(b) Data Warranty. Customer represents and warrants that Customer owns and has obtained all rights, consents, permissions, or licenses necessary to allow the Subscription Service’s access to, or possession, manipulation, processing, or use of the Customer Data and Customer templates.
(c) Subscription Services Warranty. Conga represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) perform in all material respects in accordance with the applicable Service Description(s), as updated from time to time; and (iii) that it owns or otherwise has sufficient rights to the Subscription Services to perform its obligations herein.
(d) Malicious Code. Customer represents and warrants that it will not upload any Customer Data or Customer templates to the Subscription Services that contain any programming routines, code, files, scripts, macros, or other elements that may damage, surreptitiously intercept or expropriate any system, data, or personal information through agents or programs intended to do harm, including for example viruses, worms, time bombs and Trojan horses (“Malicious Code”). Conga warrants and represents that Conga shall use all commercially reasonable efforts to prevent the introduction of any Malicious Code to Customer.
7.2 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CONGA DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. CONGA DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Conga. Subject to this Agreement, Conga will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Conga in a monetary settlement of such Claim. Conga’s obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data or Customer technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Conga will, in its discretion and at no cost to Customer do one of the following: (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF CONGA AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST CONGA FOR ANY CLAIM UNDER THIS SECTION.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Conga by a third party alleging that (I) Customer Data, Customer’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly give written notice of the Claim to the indemnifying party; (b) give the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in the defense of the indemnified matter, using counsel of its own selection, at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION), CUSTOMER’S PAYMENT OBLIGATIONS, AND EACH PARTY’S DATA SECURITY AND PRIVACY OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF ITS BREACH OF DATA SECURITY AND PRIVACY OBLIGATIONS HEREUNDER, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, SHALL EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWENTY-FOUR MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERRORS OR, INACCURACY OF OUTPUT; (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY; (iii) LOSS OF BUSINESS OR LOST PROFITS; (iv) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (v) MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date set forth in the relevant Order Form(s) and continue for the Subscription Term specified therein. Unless advised in writing by Customer (via email to renewallt@conga.com) at least forty-five (45) days prior to the expiration of the then-current Subscription Term, Conga may automatically renew the Subscription Services described in the active Order Form(s) for a new Subscription Term equal to the longest Subscription Term of such expiring Order Form(s). The Subscription Services fees and Technical Support fees shall increase by ten percent (10%) for each and any renewal term, provided the product type(s), quantity(ies), and Subscription Term duration are the same as in the expiring Order Form(s).
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Conga provided software related to the Subscription Services, including managed packages.
10.4 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Conga will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.5 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Conga prior to the effective date of termination.
10.6 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Publicity Rights. Conga may identify Customer as a Conga customer on its website and other marketing promotions. The parties agree to work together to draft and publish a press release regarding the relationship between Customer and Conga, with final wording subject to Customer approval.
11.3 Insurance. At its own expense, Conga shall maintain insurance coverage necessary to protect against insurable risks related to the Subscription Services and other related services, including cyber errors and omissions insurance, employer liability insurance, automobile insurance, network security and privacy liability insurance, and worker’s compensation insurance as required by applicable law. Conga shall procure blanket named insured coverage for Customer. Conga will provide Customer with a Certificate of Insurance evidencing the above policies and limits, no more than once yearly, and upon written request.
11.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.5 Notices. Conga may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal or via email. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Conga’s account information. All legal or dispute-related notices will be sent by first class mail, email, or express delivery, if to Conga, attention General Counsel, at P.O. Box 7839, Broomfield, Colorado 80021 U.S.A., or legal@conga.com, and if to Customer, to Customer's account representative and address on record in Conga’s account information or such other addresses as either party may designate in writing from time to time.
11.6 Force Majeure. Excluding Customer’s payment obligations under Section 4, neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.10 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules.
11.11 Venue. The state and federal courts located in the State of Delaware will 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.
11.12 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.13 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Services Agreement (“Agreement”), including any applicable addenda, appendices, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Conga”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period.
Conga may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”), unless Customer first gives Conga written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Services Agreement applies to Customer’s use of the online subscription services, including associated offline components and packaged technical support services, provided or managed by Conga (collectively, the “Subscription Services”) that are listed in one or more Conga ordering documents signed by the parties (each, an “Order Form”). This Master Services Agreement and all executed Order Forms, including any addenda, appendices, and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order Form.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order Form (the “Subscription Term”), Conga will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) the functionality of the Subscription Services will not be materially decreased from that available as of the Effective Date. Conga may release updates or upgrades, including push upgrades, to the Subscription Services during the Subscription Term, however, Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Conga with respect to future functionality or features. Customer’s affiliates (“Affiliates”) may purchase Subscription Services from Conga pursuant to this Agreement. In such event, all references to “Customer” hereunder shall instead refer to such Affiliate identified in the applicable Order Form(s).
1.3 Subscription Services Users. Subject to the applicable entitlements, limits, and constraints set forth in the Order Form, Customer may authorize Customer’s (or its Affiliates’) named employees, representatives, consultants, contractors, partners, or agents to use the Subscription Service by supplying user identifications and passwords for such individuals (“Users”). Additionally, if applicable, Users may use Service Events, SMS Events, or Conga Sign Transactions, or other volume-based Subscription Services, subject to the applicable entitlements, limits, and constraints set forth in the Order Form. Customer may increase the quantity of Subscription Services pursuant to mutual execution of an additional Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Conga will make the Subscription Services available in accordance with the Conga Service Level Agreement further described at /legal-center/service-level-agreement (“SLA”).
1.5 Technical Support. Conga will provide technical support services in accordance with the level of technical support indicated in the Order Form ("Technical Support").
1.6 Service Descriptions. Conga will publish and maintain Service Descriptions that describe the material functionality of, and product-specific terms applicable to, the Subscription Services (“Service Descriptions”), which shall be updated from time-to-time and located at: /legal-center/service-descriptions.
1.7 Professional Services. If Customer wishes to purchase implementation or other professional services from Conga relating to the Subscription Services (“Professional Services”), such work will be described in one or more separate statement(s) of work (“SOW”) or Order Form(s), in certain cases. Any Professional Services to be provided to Customer by Conga will be governed by the SOW and the Professional Services Terms found at: /legal-center/professional-services-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order Form or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, and reliability of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Conga promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Customer grants Conga a limited license to process and store Customer Data, where applicable, to provide, operate, maintain, and improve the Subscription Services in accordance with this Agreement. Customer will ensure all Customer-controlled system settings for Users are consistent with applicable entitlements, limits, and constraints, including license types and quantities, set forth in each Order Form, or otherwise in this Agreement. Seat based licenses are intended for direct use by named Users and automated or programmatic use is not permitted. Transactions, including Service Events, are intended to be used for automated or programmatic use and can also be consumed by seat-based Users. If Customer exceeds a contractual usage limit, Conga may work with Customer to align Customer’s usage to the applicable entitlements, limits, and constraints. If, notwithstanding Conga’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Subscription Services promptly upon Conga’s request, and/or pay any invoice for excess usage in accordance with Section 4 (Fees and Payment) below.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; (vii) access the Subscription Services for purposes of penetration, vulnerability, or other security testing, load testing, benchmarking, or competitive purposes; or (viii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order Form or in this Agreement. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers (“Third-Party Providers”) offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to Customer's use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Conga is not responsible for, and does not warrant any such Third-Party Providers or any of their products or services. Customer is solely responsible for obtaining any necessary rights or licenses thereto, and the results therefrom. Any exchange of data or other interaction between Customer and a Third-Party Provider, and any purchase by Customer of any product or service offered by such provider, is solely between Customer and such Third-Party Provider. Notwithstanding the foregoing, to the extent Customer purchases such third-party products or services directly from Conga, the providers of such products or services shall not be considered Third-Party Providers hereunder.
2.4 SFDC’s Role. If the applicable Subscription Services are hosted on the customer relationship management platform provided by Salesforce.com, Inc. ("Salesforce Platform"), Customer recognizes and agrees that its access to the Salesforce Platform via the Subscription Services is subject to the SFDC Terms of Use, made available by Salesforce here: https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/Agreements/alliance-agreements-and-terms/Reseller-Pass-Through-Terms.pdf.
3. Security and Data Protection.
3.1 Protection of Customer Data. Conga has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security and privacy of Customer Data, as further described in the Data Security Exhibit found at /legal-center/data-security-exhibit. Conga will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Conga or its Sub-processors (as such term is defined in the DPA).
3.2. Data Privacy. Conga’s Data Processing Addendum is available at /legal-center/dpa and is incorporated into this Agreement by reference when applicable data protection law(s) applies to Customer’s use of the Subscription Services.
3.3 Use of Services Attributes and Anonymized Data. Conga may collect, use and disclose quantitative and other usage information, including data derived from Customer Data, (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. Services Attributes will be considered in the aggregate form only and will be anonymized, so as not to identify Customer or its Users . Conga retains all rights, title and interest in and to Services Attributes.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Order Forms hereunder. Except as otherwise provided in an Order Form(s), all fees will be invoiced and paid in United States dollars. Except as expressly set forth otherwise in the Agreement, fees (i) are based on quantities of Subscription Services detailed in an Order Form; (ii) will not be prorated or refunded if actual usage or number of Users is less than expected; and (iii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order Form will not offset any fees due under any other Order Form.
4.2 Invoicing & Payment. Fees for Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order Form. All amounts are due and payable thirty (30) days from the invoice date.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, fees in an Order Form or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Conga is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice, unless Customer provides Conga with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for paying all Taxes, excluding only taxes based on Conga’s income and personal property. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in the applicable Order Form.
4.5 Suspension of Subscription Services. If Customer is in violation of this Agreement, or if Customer has an outstanding invoice that is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Conga reserves the right to suspend the Subscription Services, without liability to Customer, until such violation ceases and/or overdue amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Conga may utilize (A) Apttus Corporation and Conga marks and brands, including the apttus.com name, the conga.com name, the Apttus logo, the Conga logo, the Apttus.com domain name, the Conga.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Conga Technology"); and (ii) that the Conga Technology is covered by intellectual property rights owned or licensed by Conga (collectively, "Conga IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Conga Technology or Conga IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Conga Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including data contained within Conga database fields or objects, available to anyone other than Users, or use the Subscription Services, including information or data contained within Conga database fields or objects, for the benefit of any unrelated third party or as a component of any non-Conga database fields or objects; (iv) permit direct or indirect access to or use of any Subscription Services in a way that circumvents a contractual usage limit, or use any Subscription Services to access, copy or use any of Conga Technology, except as permitted under this Agreement or an Order Form, (v) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (v) use or access the Subscription Services or Conga Technology to build, support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vi) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Conga and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement. During the Subscription Term, Customer may extract all Customer Data from the Subscription Services at its sole discretion.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Subscription Services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranties Disclaimer.
7.1 Warranties.
(a) Mutual Warranty. Each party represents and warrants that it has the legal power to enter into this Agreement.
(b) Data Warranty. Customer represents and warrants that Customer owns and has obtained all rights, consents, permissions, or licenses necessary to allow the Subscription Service’s access to, or possession, manipulation, processing, or use of the Customer Data and Customer templates.
(c) Subscription Services Warranty. Conga represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) perform in all material respects in accordance with the applicable Service Description(s), as updated from time to time; and (iii) that it owns or otherwise has sufficient rights to the Subscription Services to perform its obligations herein.
(d) Malicious Code. Customer represents and warrants that it will not upload any Customer Data or Customer templates to the Subscription Services that contain any programming routines, code, files, scripts, macros, or other elements that may damage, surreptitiously intercept or expropriate any system, data, or personal information through agents or programs intended to do harm, including for example viruses, worms, time bombs and Trojan horses (“Malicious Code”). Conga warrants and represents that Conga shall use all commercially reasonable efforts to prevent the introduction of any Malicious Code to Customer.
7.2 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CONGA DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. CONGA DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Conga. Subject to this Agreement, Conga will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Conga in a monetary settlement of such Claim. Conga’s obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data or Customer technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Conga will, in its discretion and at no cost to Customer do one of the following: (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF CONGA AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST CONGA FOR ANY CLAIM UNDER THIS SECTION.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Conga by a third party alleging that (I) Customer Data, Customer’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly give written notice of the Claim to the indemnifying party; (b) give the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in the defense of the indemnified matter, using counsel of its own selection, at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION), CUSTOMER’S PAYMENT OBLIGATIONS, AND EACH PARTY’S DATA SECURITY AND PRIVACY OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF ITS BREACH OF DATA SECURITY AND PRIVACY OBLIGATIONS HEREUNDER, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, SHALL EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWENTY-FOUR MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERRORS OR, INACCURACY OF OUTPUT; (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY; (iii) LOSS OF BUSINESS OR LOST PROFITS; (iv) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (v) MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date set forth in the relevant Order Form(s) and continue for the Subscription Term specified therein. Unless advised in writing by Customer (via email to renewallt@conga.com) at least forty-five (45) days prior to the expiration of the then-current Subscription Term, Conga may automatically renew the Subscription Services described in the active Order Form(s) for a new Subscription Term equal to the longest Subscription Term of such expiring Order Form(s). The Subscription Services fees and Technical Support fees shall increase by ten percent (10%) for each and any renewal term, provided the product type(s), quantity(ies), and Subscription Term duration are the same as in the expiring Order Form(s).
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Conga provided software related to the Subscription Services, including managed packages.
10.4 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Conga will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.5 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Conga prior to the effective date of termination.
10.6 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Publicity Rights. Conga may identify Customer as a Conga customer on its website and other marketing promotions. The parties agree to work together to draft and publish a press release regarding the relationship between Customer and Conga, with final wording subject to Customer approval.
11.3 Insurance. At its own expense, Conga shall maintain insurance coverage necessary to protect against insurable risks related to the Subscription Services and other related services, including cyber errors and omissions insurance, employer liability insurance, automobile insurance, network security and privacy liability insurance, and worker’s compensation insurance as required by applicable law. Conga shall procure blanket named insured coverage for Customer. Conga will provide Customer with a Certificate of Insurance evidencing the above policies and limits, no more than once yearly, and upon written request.
11.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.5 Notices. Conga may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal or via email. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Conga’s account information. All legal or dispute-related notices will be sent by first class mail, email, or express delivery, if to Conga, attention General Counsel, at P.O. Box 7839, Broomfield, Colorado 80021 U.S.A., or legal@conga.com, and if to Customer, to Customer's account representative and address on record in Conga’s account information or such other addresses as either party may designate in writing from time to time.
11.6 Force Majeure. Excluding Customer’s payment obligations under Section 4, neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.10 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules.
11.11 Venue. The state and federal courts located in the State of Delaware will 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.
11.12 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.13 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Services Agreement (“Agreement”), including any applicable addenda, appendices, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Conga”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period.
Conga may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”), unless Customer first gives Conga written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Services Agreement applies to Customer’s use of the online subscription services, including associated offline components and packaged technical support services, provided or managed by Conga (collectively, the “Subscription Services”) that are listed in one or more Conga ordering documents signed by the parties (each, an “Order Form”). This Master Services Agreement and all executed Order Forms, including any addenda, appendices, and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order Form.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order Form (the “Subscription Term”), Conga will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) the functionality of the Subscription Services will not be materially decreased from that available as of the Effective Date. Conga may release updates or upgrades, including push upgrades, to the Subscription Services during the Subscription Term, however, Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Conga with respect to future functionality or features. Customer’s affiliates (“Affiliates”) may purchase Subscription Services from Conga pursuant to this Agreement. In such event, all references to “Customer” hereunder shall instead refer to such Affiliate identified in the applicable Order Form(s).
1.3 Subscription Services Users. Subject to the applicable entitlements, limits, and constraints set forth in the Order Form, Customer may authorize Customer’s (or its Affiliates’) named employees, representatives, consultants, contractors, partners, or agents to use the Subscription Service by supplying user identifications and passwords for such individuals (“Users”). Additionally, if applicable, Users may use Service Events, SMS Events, or Conga Sign Transactions, or other volume-based Subscription Services, subject to the applicable entitlements, limits, and constraints set forth in the Order Form. Customer may increase the quantity of Subscription Services pursuant to mutual execution of an additional Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Conga will make the Subscription Services available in accordance with the Conga Service Level Agreement further described at /legal-center/service-level-agreement (“SLA”).
1.5 Technical Support. Conga will provide technical support services in accordance with the level of technical support indicated in the Order Form ("Technical Support").
1.6 Service Descriptions. Conga will publish and maintain Service Descriptions that describe the material functionality of, and product-specific terms applicable to, the Subscription Services (“Service Descriptions”), which shall be updated from time-to-time and located at: /legal-center/service-descriptions.
1.7 Professional Services. If Customer wishes to purchase implementation or other professional services from Conga relating to the Subscription Services (“Professional Services”), such work will be described in one or more separate statement(s) of work (“SOW”) or Order Form(s), in certain cases. Any Professional Services to be provided to Customer by Conga will be governed by the SOW and the Professional Services Terms found at: /legal-center/professional-services-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order Form or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, and reliability of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Conga promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Customer grants Conga a limited license to process and store Customer Data, where applicable, to provide, operate, maintain, and improve the Subscription Services in accordance with this Agreement. Customer will ensure all Customer-controlled system settings for Users are consistent with applicable entitlements, limits, and constraints, including license types and quantities, set forth in each Order Form, or otherwise in this Agreement. Seat based licenses are intended for direct use by named Users and automated or programmatic use is not permitted. Transactions, including Service Events, are intended to be used for automated or programmatic use and can also be consumed by seat-based Users. If Customer exceeds a contractual usage limit, Conga may work with Customer to align Customer’s usage to the applicable entitlements, limits, and constraints. If, notwithstanding Conga’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Subscription Services promptly upon Conga’s request, and/or pay any invoice for excess usage in accordance with Section 4 (Fees and Payment) below.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; (vii) access the Subscription Services for purposes of penetration, vulnerability, or other security testing, load testing, benchmarking, or competitive purposes; or (viii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order Form or in this Agreement. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers (“Third-Party Providers”) offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to Customer's use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Conga is not responsible for, and does not warrant any such Third-Party Providers or any of their products or services. Customer is solely responsible for obtaining any necessary rights or licenses thereto, and the results therefrom. Any exchange of data or other interaction between Customer and a Third-Party Provider, and any purchase by Customer of any product or service offered by such provider, is solely between Customer and such Third-Party Provider. Notwithstanding the foregoing, to the extent Customer purchases such third-party products or services directly from Conga, the providers of such products or services shall not be considered Third-Party Providers hereunder.
2.4 SFDC’s Role. If the applicable Subscription Services are hosted on the customer relationship management platform provided by Salesforce.com, Inc. ("Salesforce Platform"), Customer recognizes and agrees that its access to the Salesforce Platform via the Subscription Services is subject to the SFDC Terms of Use, made available by Salesforce here: https://www.salesforce.com/content/dam/web/en_us/www/documents/legal/Agreements/alliance-agreements-and-terms/Reseller-Pass-Through-Terms.pdf.
3. Security and Data Protection.
3.1 Protection of Customer Data. Conga has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security and privacy of Customer Data, as further described in the Data Security Exhibit found at /legal-center/data-security-exhibit. Conga will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Conga or its Sub-processors (as such term is defined in the DPA).
3.2. Data Privacy. Conga’s Data Processing Addendum is available at /legal-center/dpa and is incorporated into this Agreement by reference when applicable data protection law(s) applies to Customer’s use of the Subscription Services.
3.3 Use of Services Attributes and Anonymized Data. Conga may collect, use and disclose quantitative and other usage information, including data derived from Customer Data, (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. Services Attributes will be considered in the aggregate form only and will be anonymized, so as not to identify Customer or its Users . Conga retains all rights, title and interest in and to Services Attributes.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Order Forms hereunder. Except as otherwise provided in an Order Form(s), all fees will be invoiced and paid in United States dollars. Except as expressly set forth otherwise in the Agreement, fees (i) are based on quantities of Subscription Services detailed in an Order Form; (ii) will not be prorated or refunded if actual usage or number of Users is less than expected; and (iii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order Form will not offset any fees due under any other Order Form.
4.2 Invoicing & Payment. Fees for Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order Form. All amounts are due and payable thirty (30) days from the invoice date.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, fees in an Order Form or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Conga is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice, unless Customer provides Conga with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for paying all Taxes, excluding only taxes based on Conga’s income and personal property. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in the applicable Order Form.
4.5 Suspension of Subscription Services. If Customer is in violation of this Agreement, or if Customer has an outstanding invoice that is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Conga reserves the right to suspend the Subscription Services, without liability to Customer, until such violation ceases and/or overdue amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Conga may utilize (A) Apttus Corporation and Conga marks and brands, including the apttus.com name, the conga.com name, the Apttus logo, the Conga logo, the Apttus.com domain name, the Conga.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Conga Technology"); and (ii) that the Conga Technology is covered by intellectual property rights owned or licensed by Conga (collectively, "Conga IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Conga Technology or Conga IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Conga Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including data contained within Conga database fields or objects, available to anyone other than Users, or use the Subscription Services, including information or data contained within Conga database fields or objects, for the benefit of any unrelated third party or as a component of any non-Conga database fields or objects; (iv) permit direct or indirect access to or use of any Subscription Services in a way that circumvents a contractual usage limit, or use any Subscription Services to access, copy or use any of Conga Technology, except as permitted under this Agreement or an Order Form, (v) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (v) use or access the Subscription Services or Conga Technology to build, support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vi) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Conga and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement. During the Subscription Term, Customer may extract all Customer Data from the Subscription Services at its sole discretion.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Subscription Services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranties Disclaimer.
7.1 Warranties.
(a) Mutual Warranty. Each party represents and warrants that it has the legal power to enter into this Agreement.
(b) Data Warranty. Customer represents and warrants that Customer owns and has obtained all rights, consents, permissions, or licenses necessary to allow the Subscription Service’s access to, or possession, manipulation, processing, or use of the Customer Data and Customer templates.
(c) Subscription Services Warranty. Conga represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) perform in all material respects in accordance with the applicable Service Description(s), as updated from time to time; and (iii) that it owns or otherwise has sufficient rights to the Subscription Services to perform its obligations herein.
(d) Malicious Code. Customer represents and warrants that it will not upload any Customer Data or Customer templates to the Subscription Services that contain any programming routines, code, files, scripts, macros, or other elements that may damage, surreptitiously intercept or expropriate any system, data, or personal information through agents or programs intended to do harm, including for example viruses, worms, time bombs and Trojan horses (“Malicious Code”). Conga warrants and represents that Conga shall use all commercially reasonable efforts to prevent the introduction of any Malicious Code to Customer.
7.2 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CONGA DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. CONGA DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Conga. Subject to this Agreement, Conga will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Conga in a monetary settlement of such Claim. Conga’s obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data or Customer technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Conga will, in its discretion and at no cost to Customer do one of the following: (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF CONGA AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST CONGA FOR ANY CLAIM UNDER THIS SECTION.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Conga by a third party alleging that (I) Customer Data, Customer’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly give written notice of the Claim to the indemnifying party; (b) give the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provide to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in the defense of the indemnified matter, using counsel of its own selection, at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION), CUSTOMER’S PAYMENT OBLIGATIONS, AND EACH PARTY’S DATA SECURITY AND PRIVACY OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF ITS BREACH OF DATA SECURITY AND PRIVACY OBLIGATIONS HEREUNDER, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, SHALL EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWENTY-FOUR MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERRORS OR, INACCURACY OF OUTPUT; (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY; (iii) LOSS OF BUSINESS OR LOST PROFITS; (iv) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (v) MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date set forth in the relevant Order Form(s) and continue for the Subscription Term specified therein. Unless advised in writing by Customer (via email to renewallt@conga.com) at least forty-five (45) days prior to the expiration of the then-current Subscription Term, Conga may automatically renew the Subscription Services described in the active Order Form(s) for a new Subscription Term equal to the longest Subscription Term of such expiring Order Form(s). The Subscription Services fees and Technical Support fees shall increase by ten percent (10%) for each and any renewal term, provided the product type(s), quantity(ies), and Subscription Term duration are the same as in the expiring Order Form(s).
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Conga provided software related to the Subscription Services, including managed packages.
10.4 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Conga will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.5 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Conga prior to the effective date of termination.
10.6 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Use of Customer Name and Logo. With approval of Customer, Conga may issue a press release regarding the relationship between Customer and Conga, refer to Customer in marketing initiatives, and use Customer’s logo for such purposes. With approval of Customer, Conga may request that Customer participate in Conga’s reference program and work with Conga’s representatives, at Conga’s cost and expense, on a use case overview video or written testimonial.
11.3 Insurance. At its own expense, Conga shall maintain insurance coverage necessary to protect against insurable risks related to the Subscription Services and other related services, including cyber errors and omissions insurance, employer liability insurance, automobile insurance, network security and privacy liability insurance, and worker’s compensation insurance as required by applicable law. Conga shall procure blanket named insured coverage for Customer. Conga will provide Customer with a Certificate of Insurance evidencing the above policies and limits, no more than once yearly, and upon written request.
11.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.5 Notices. Conga may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal or via email. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Conga’s account information. All legal or dispute-related notices will be sent by first class mail, email, or express delivery, if to Conga, attention General Counsel, at P.O. Box 7839, Broomfield, Colorado 80021 U.S.A., or legal@conga.com, and if to Customer, to Customer's account representative and address on record in Conga’s account information or such other addresses as either party may designate in writing from time to time.
11.6 Force Majeure. Excluding Customer’s payment obligations under Section 4, neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.7 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.10 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules.
11.11 Venue. The state and federal courts located in the State of Delaware will 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.
11.12 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.13 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Services Agreement (“Agreement”), including any applicable addenda, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Conga”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period.
Conga may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives Conga written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Services Agreement applies to Customer’s use of the online subscription services, including associated offline components and packaged technical support services, provided or managed by Conga (collectively, the “Subscription Services”) that are listed in one or more Conga ordering documents signed by the parties (each, an “Order Form”). This Master Services Agreement and all executed Order Forms, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order Form.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order Form (the “Subscription Term”), Conga will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) the functionality of the Subscription Services will not be materially decreased from that available as of the Effective Date. Conga may release updates or upgrades, including push upgrades, to the Subscription Services during the Subscription Term, however, Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Conga with respect to future functionality or features. Customer’s affiliates (“Affiliates”) may purchase Subscription Services from Conga pursuant to this Agreement. In such event, all references to “Customer” hereunder shall instead refer to such Affiliate identified in the applicable Order Form(s).
1.3 Subscription Services Users. Subject to the limits set forth in the Order Form, Customer may authorize, via the Salesforce LMA (License Management Application), if applicable, Customer’s named employees, representatives, consultants, contractors, partners, or agents to use the Subscription Service by supplying user identifications and passwords for such individuals (“Users”). Additionally, if applicable, Users may use Service Events, SMS Events, or Conga Sign Transactions subject to the limits set forth in the Order Form. Customer may increase the number of Users, Service Events, or SMS Events pursuant to an add-on Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Conga will make the Subscription Services available in accordance with the Conga Service Level Agreement further described at /legal-center/service-level-agreement (“SLA”).
1.5 Technical Support. Conga will provide trouble handling and break/fix support services in accordance with the level of technical support indicated in the Order Form.
1.6 Service Descriptions. Conga will publish and maintain Service Descriptions that describe the material functionality of, and product-specific terms applicable to, the Subscription Services (“Service Descriptions”), which shall be updated from time-to-time and located at: /legal-center/service-descriptions.
1.7 Professional Services. If Customer wishes to purchase implementation or other professional services from Conga relating to the Subscription Services (“Professional Services”), such work will be described in one or more separate statement(s) of work (“SOW”) or Order Form(s), in certain cases. Any Professional Services to be provided to Customer by Conga will be governed by the SOW and the Professional Services Terms found at: /legal-center/professional-services-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order Form or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, and reliability of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Conga promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Conga reserves the right to, in cooperation with Customer, audit Customer’s use of the Subscription Services. In the event that Conga discovers that Customer’s actual usage of the Subscription Services exceeds the number of Users, Service Events, SMS Events or otherwise as set forth in the applicable Order Form, then, without limiting Conga’s other rights and remedies under this Agreement, Conga will be entitled to issue an invoice to Customer for such additional use.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; or (vii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order Form. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers (“Third-Party Providers”) offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to Customer's use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Conga is not responsible for, and does not warrant any such Third-Party Providers or any of their products or services. Customer is solely responsible for obtaining any necessary rights or licenses thereto, and the results therefrom. Any exchange of data or other interaction between Customer and a Third-Party Provider, and any purchase by Customer of any product or service offered by such provider, is solely between Customer and such Third-Party Provider. Notwithstanding the foregoing, to the extent Customer purchases such third-party products or services directly from Conga, the providers of such products or services shall not be considered Third-Party Providers hereunder.
2.4 SFDC’s Role. Customer recognizes and agrees that, if the applicable Subscription Services are hosted on the technology platform called salesforce.com, provided by salesforce.com, inc. ("SFDC"), then Customer's access and use of the Subscription Services, is subject to the Salesforce.com Platform Addendum found at /legal-center/salesforce-platform-addendum.
3. Security and Data Protection.
3.1 Protection of Customer Data. Conga has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security and privacy of Customer Data, as further described in the Data Security Exhibit found at /legal-center/data-security-exhibit. Conga will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Conga, including the Internet.
3.2. Data Privacy.
(A) Data Processing Addendum. Conga’s Data Processing Addendum is available at /legal-center/dpa and is incorporated into this Agreement by reference when the General Data Protection Regulation, California Consumer Privacy Act (“CCPA”), or other applicable data protection law(s) applies to Customer’s use of the Subscription Services.
(B) CCPA. Conga will not: (a) sell Customer Data; (b) collect, retain, use, or disclose Customer Data for any purpose other than performance of its obligations under this Agreement, including for any commercial purpose other than to perform the Subscription Services; or (c) collect, retain, use, or disclose Customer Data for any purpose outside the direct business relationship between Conga and Customer. As used in this Section 3.2: (i) “sell” means selling, renting, releasing, disclosing, disseminating, making available, or transferring data, or otherwise communicating it orally, in writing, or by electronic or other means, to another business or a third party for monetary or other valuable consideration; and (ii) “commercial purpose” means to advance Conga’s commercial or economic interests, including without limitation by inducing another to buy, rent, lease, join, subscribe to, provide, or exchange products, goods, property, or services, and by enabling or effecting, directly or indirectly, a commercial transaction. Conga hereby certifies that it understands the restrictions set forth in this Section 3.2(B) and will comply with them. The parties agree that, for purposes of this Agreement, and when the CCPA applies to Customer’s use of the Subscription Services, Conga is a “Service Provider” (not a “third party”) to Customer pursuant to the CCPA.
3.3 Use of Services Attributes and Anonymized Data. Conga may collect, use and disclose quantitative and other usage information (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. For the sake of clarity, no Personal Data or Customer Data will be collected. Services Attributes will be considered in the aggregate form only and will not identify Customer or its Users (“Anonymized Metadata”). Conga retains all rights, title and interest in and to Anonymized Metadata.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Order Form(s) hereunder. Except as otherwise provided in an Order Form, all fees are quoted in United States dollars. Except as expressly set forth otherwise in the Agreement, fees (i) are based on number of Users, SMS Events, Service Events, or other mechanism detailed in an Order Form for subscriptions purchased in the relevant Order Form; (ii) will not be prorated if actual usage is less than expected, or if the number of Users set forth in the relevant Order Form exceeds those that are ultimately assigned to individual persons; and (iii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order Form will not offset any fees due under any other Order Form.
4.2 Invoicing & Payment. Fees for Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order Form. All amounts are due and payable thirty (30) days from the invoice date. All payments made under this Agreement will be in United States dollars.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, fees in an Order Form or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Conga is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice, unless Customer provides Conga with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for paying all Taxes, excluding only taxes based on Conga’s income and personal property. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in the applicable Order Form.
4.5 Suspension of Subscription Services. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Conga reserves the right to suspend the Subscription Services, without liability to Customer, until such overdue amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Conga may utilize (A) Apttus Corporation and Conga marks and brands, including the apttus.com name, the conga.com name, the Apttus logo, the Conga logo, the Apttus.com domain name, the Conga.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Conga Technology"); and (ii) that the Conga Technology is covered by intellectual property rights owned or licensed by Conga (collectively, "Conga IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Conga Technology or Conga IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Conga Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including data contained within Conga database fields or objects, available to anyone other than Users, or use the Subscription Services for the benefit of any unrelated third party; (iv) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) use or access the Subscription Services or Conga Technology to build, support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Conga and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement. During the Subscription Term, Customer may extract all Customer Data from the Subscription Services at its sole discretion.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Subscription Services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranties Disclaimer.
7.1 Warranties.
(a) Mutual Warranty. Each party represents and warrants that it has the legal power to enter into this Agreement.
(b) Data Warranty. Customer represents and warrants that Customer owns and has obtained all rights, consents, permissions, or licenses necessary to allow the Subscription Service’s access to, or possession, manipulation, processing, or use of the Customer Data and Customer template.
(c) Subscription Services Warranty. Conga represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) perform in all material respects in accordance with the applicable Service Description(s), as updated from time to time; and (iii) that it owns or otherwise has sufficient rights to the Subscription Services to perform its obligations herein.
(d) Malicious Code. Customer represents and warrants that it will not upload any Customer Data or Customer templates to the Subscription Services that contain any programming routines, code, files, scripts, macros, or other elements that may damage, surreptitiously intercept or expropriate any system, data, or personal information through agents or programs intended to do harm, including for example viruses, worms, time bombs and Trojan horses (“Malicious Code”). Conga warrants and represents that Conga shall use all commercially reasonable efforts to prevent the introduction of any Malicious Code to Customer.
7.2 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CONGA DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. CONGA DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Conga. Subject to this Agreement, Conga will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Conga in a monetary settlement of such Claim. Conga’s obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Conga will, in its discretion and at no cost to Customer do one of the following: (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF CONGA AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST CONGA FOR ANY CLAIM UNDER THIS SECTION.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Conga by a third party alleging that (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly gives written notice of the Claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION) AND CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) LOST PROFITS OR LOSS OF USE (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date set forth in the relevant Order Form(s) and continue for the Subscription Term specified therein. Unless advised in writing by Customer at least forty-five (45) days prior to the expiration of the then-current Subscription Term, the Subscription Services described in the active Order Form(s) shall automatically renew for a new Subscription Term equal to the longest Subscription Term of such expiring Order Form(s). The Subscription Services fees and Technical Support fees shall increase by ten percent (10%) for each renewal term in the event of auto-renew.
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Conga provided software related to the Subscription Services, including managed packages, as well as any model data pertaining to Conga AI Analyze, if applicable.
10.4 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Conga will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.5 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Conga prior to the effective date of termination.
10.6 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Use of Customer Name and Logo. With approval of Customer, Conga may issue a press release regarding the relationship between Customer and Conga, refer to Customer in marketing initiatives, and use Customer’s logos for such purposes. With approval from Customer, as Conga may request from time to time, Customer shall participate in Conga’s reference program and shall work with Conga’s representatives, at Conga’s cost and expense, on a use case overview and video or written testimonial, with content subject to review and approval by Customer.
11.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.4 Notices. Conga may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal or via email. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Conga’s account information. All legal or dispute-related notices will be sent by first class mail, email, or express delivery, if to Conga, attention Chief Legal Officer, at P.O. Box 7839, Broomfield, Colorado 80021 U.S.A., or legal@conga.com, and if to Customer, to Customer's account representative and address on record in Conga’s account information or such other addresses as either party may designate in writing from time to time.
11.5 Force Majeure. Excluding Customer’s payment obligations under Section 4, neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules.
11.10 Venue. The state and federal courts located in the State of Delaware will 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.
11.11 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.12 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Services Agreement (“Agreement”), including any applicable addenda, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Conga”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period.
Conga may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives Conga written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Services Agreement applies to Customer’s use of the online subscription services, including associated offline components and packaged technical support services, provided or managed by Conga (collectively, the “Subscription Services”) that are listed in one or more Conga ordering documents signed by the parties (each, an “Order Form”). This Master Services Agreement and all executed Order Forms, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order Form.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order Form (the “Subscription Term”), Conga will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) the functionality of the Subscription Services will not be materially decreased from that available as of the Effective Date. Conga may release updates or upgrades, including push upgrades, to the Subscription Services during the Subscription Term, however, Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Conga with respect to future functionality or features. Customer’s affiliates (“Affiliates”) may purchase Subscription Services from Conga pursuant to this Agreement. In such event, all references to “Customer” hereunder shall instead refer to such Affiliate identified in the applicable Order Form(s).
1.3 Subscription Services Users. Subject to the limits set forth in the Order Form, Customer may authorize, via the Salesforce LMA (License Management Application), if applicable, Customer’s named employees, representatives, consultants, contractors, partners, or agents to use the Subscription Service by supplying user identifications and passwords for such individuals (“Users”). Additionally, if applicable, Users may use Service Events, SMS Events, or Conga Sign Transactions subject to the limits set forth in the Order Form. Customer may increase the number of Users, Service Events, or SMS Events pursuant to an add-on Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Conga will make the Subscription Services available in accordance with the Conga Service Level Agreement further described at /legal-center/service-level-agreement (“SLA”).
1.5 Technical Support. Conga will provide trouble handling and break/fix support services in accordance with the level of technical support indicated in the Order Form.
1.6 Service Descriptions. Conga will publish and maintain Service Descriptions that describe the material functionality of, and product-specific terms applicable to, the Subscription Services (“Service Descriptions”), which shall be updated from time-to-time and located at: /legal-center/service-descriptions.
1.7 Professional Services. If Customer wishes to purchase implementation or other professional services from Conga relating to the Subscription Services (“Professional Services”), such work will be described in one or more separate statement(s) of work (“SOW”) or Order Form(s), in certain cases. Any Professional Services to be provided to Customer by Conga will be governed by the SOW and the Professional Services Terms found at: /legal-center/professional-services-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order Form or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, and reliability of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Conga promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Conga reserves the right to, in cooperation with Customer, audit Customer’s use of the Subscription Services. In the event that Conga discovers that Customer’s actual usage of the Subscription Services exceeds the number of Users, Service Events, SMS Events or otherwise as set forth in the applicable Order Form, then, without limiting Conga’s other rights and remedies under this Agreement, Conga will be entitled to issue an invoice to Customer for such additional use.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; or (vii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order Form. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers (“Third-Party Providers”) offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to Customer's use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Conga is not responsible for, and does not warrant any such Third-Party Providers or any of their products or services. Customer is solely responsible for obtaining any necessary rights or licenses thereto, and the results therefrom. Any exchange of data or other interaction between Customer and a Third-Party Provider, and any purchase by Customer of any product or service offered by such provider, is solely between Customer and such Third-Party Provider. Notwithstanding the foregoing, to the extent Customer purchases such third-party products or services directly from Conga, the providers of such products or services shall not be considered Third-Party Providers hereunder.
2.4 SFDC’s Role. Customer recognizes and agrees that, if the applicable Subscription Services are hosted on the technology platform called salesforce.com, provided by salesforce.com, inc. ("SFDC"), then Customer's access and use of the Subscription Services, is subject to the Salesforce.com Platform Addendum found at /legal-center/salesforce-platform-addendum.
3. Security and Data Protection.
3.1 Protection of Customer Data. Conga has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security and privacy of Customer Data, as further described in the Data Security Exhibit found at /legal-center/data-security-exhibit. Conga will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Conga, including the Internet.
3.2. Data Privacy.
(A) Data Processing Addendum. Conga’s Data Processing Addendum is available at /legal-center/dpa and is incorporated into this Agreement by reference when the General Data Protection Regulation, California Consumer Privacy Act (“CCPA”), or other applicable data protection law(s) applies to Customer’s use of the Subscription Services.
(B) CCPA. Conga will not: (a) sell Customer Data; (b) collect, retain, use, or disclose Customer Data for any purpose other than performance of its obligations under this Agreement, including for any commercial purpose other than to perform the Subscription Services; or (c) collect, retain, use, or disclose Customer Data for any purpose outside the direct business relationship between Conga and Customer. As used in this Section 3.2: (i) “sell” means selling, renting, releasing, disclosing, disseminating, making available, or transferring data, or otherwise communicating it orally, in writing, or by electronic or other means, to another business or a third party for monetary or other valuable consideration; and (ii) “commercial purpose” means to advance Conga’s commercial or economic interests, including without limitation by inducing another to buy, rent, lease, join, subscribe to, provide, or exchange products, goods, property, or services, and by enabling or effecting, directly or indirectly, a commercial transaction. Conga hereby certifies that it understands the restrictions set forth in this Section 3.2(B) and will comply with them. The parties agree that, for purposes of this Agreement, and when the CCPA applies to Customer’s use of the Subscription Services, Conga is a “Service Provider” (not a “third party”) to Customer pursuant to the CCPA.
3.3 Use of Services Attributes and Anonymized Data. Conga may collect, use and disclose quantitative and other usage information (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. For the sake of clarity, no Personal Data or Customer Data will be collected. Services Attributes will be considered in the aggregate form only and will not identify Customer or its Users (“Anonymized Metadata”). Conga retains all rights, title and interest in and to Anonymized Metadata.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Order Form(s) hereunder. Except as otherwise provided in an Order Form, all fees are quoted in United States dollars. Except as expressly set forth otherwise in the Agreement, fees (i) are based on number of Users, SMS Events, Service Events, or other mechanism detailed in an Order Form for subscriptions purchased in the relevant Order Form; (ii) will not be prorated if actual usage is less than expected, or if the number of Users set forth in the relevant Order Form exceeds those that are ultimately assigned to individual persons; and (iii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order Form will not offset any fees due under any other Order Form.
4.2 Invoicing & Payment. Fees for Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order Form. All amounts are due and payable thirty (30) days from the invoice date. All payments made under this Agreement will be in United States dollars.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, fees in an Order Form or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Conga is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice, unless Customer provides Conga with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for paying all Taxes, excluding only taxes based on Conga’s income and personal property. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in the applicable Order Form.
4.5 Suspension of Subscription Services. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Conga reserves the right to suspend the Subscription Services, without liability to Customer, until such overdue amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Conga may utilize (A) Apttus Corporation and Conga marks and brands, including the apttus.com name, the conga.com name, the Apttus logo, the Conga logo, the Apttus.com domain name, the Conga.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Conga Technology"); and (ii) that the Conga Technology is covered by intellectual property rights owned or licensed by Conga (collectively, "Conga IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Conga Technology or Conga IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Conga Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including data contained within Conga database fields or objects, available to anyone other than Users, or use the Subscription Services for the benefit of any unrelated third party; (iv) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) use or access the Subscription Services or Conga Technology to build, support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Conga and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement. During the Subscription Term, Customer may extract all Customer Data from the Subscription Services at its sole discretion.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Subscription Services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranties Disclaimer.
7.1 Warranties.
(a) Mutual Warranty. Each party represents and warrants that it has the legal power to enter into this Agreement.
(b) Data Warranty. Customer represents and warrants that Customer owns and has obtained all rights, consents, permissions, or licenses necessary to allow the Subscription Service’s access to, or possession, manipulation, processing, or use of the Customer Data and Customer template.
(c) Subscription Services Warranty. Conga represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) perform in all material respects in accordance with the applicable Service Description(s), as updated from time to time; and (iii) that it owns or otherwise has sufficient rights to the Subscription Services to perform its obligations herein.
(d) Malicious Code. Customer represents and warrants that it will not upload any Customer Data or Customer templates to the Subscription Services that contain any programming routines, code, files, scripts, macros, or other elements that may damage, surreptitiously intercept or expropriate any system, data, or personal information through agents or programs intended to do harm, including for example viruses, worms, time bombs and Trojan horses (“Malicious Code”). Conga warrants and represents that Conga shall use all commercially reasonable efforts to prevent the introduction of any Malicious Code to Customer.
7.2 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CONGA DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. CONGA DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Conga. Subject to this Agreement, Conga will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Conga in a monetary settlement of such Claim. Conga’s obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Conga will, in its discretion and at no cost to Customer do one of the following: (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF CONGA AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST CONGA FOR ANY CLAIM UNDER THIS SECTION.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Conga by a third party alleging that (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly gives written notice of the Claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION) AND CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) LOST PROFITS OR LOSS OF USE (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date set forth in the relevant Order Form(s) and continue for the Subscription Term specified therein. Unless advised in writing by Customer at least forty-five (45) days prior to the expiration of the then-current Subscription Term, the Subscription Services described in the active Order Form(s) shall automatically renew for a new Subscription Term equal to the longest Subscription Term of such expiring Order Form(s). The Subscription Services fees and Technical Support fees shall increase by eight percent (8%) for each renewal term in the event of auto-renew.
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Conga provided software related to the Subscription Services, including managed packages, as well as any model data pertaining to Conga AI Analyze, if applicable.
10.4 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Conga will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.5 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Conga prior to the effective date of termination.
10.6 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Use of Customer Name and Logo. With approval of Customer, Conga may issue a press release regarding the relationship between Customer and Conga, refer to Customer in marketing initiatives, and use Customer’s logos for such purposes. With approval from Customer, as Conga may request from time to time, Customer shall participate in Conga’s reference program and shall work with Conga’s representatives, at Conga’s cost and expense, on a use case overview and video or written testimonial, with content subject to review and approval by Customer.
11.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.4 Notices. Conga may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal or via email. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Conga’s account information. All legal or dispute-related notices will be sent by first class mail, email, or express delivery, if to Conga, attention Chief Legal Officer, at P.O. Box 7839, Broomfield, Colorado 80021 U.S.A., or legal@conga.com, and if to Customer, to Customer's account representative and address on record in Conga’s account information or such other addresses as either party may designate in writing from time to time.
11.5 Force Majeure. Excluding Customer’s payment obligations under Section 4, neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules.
11.10 Venue. The state and federal courts located in the State of Delaware will 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.
11.11 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.12 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Services Agreement (“Agreement”), including any applicable addenda, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Conga”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICES IF YOU ARE AN CONGA COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF CONGA.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period.
Conga may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives Conga written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Services Agreement applies to Customer’s use of the online subscription services, including associated offline components and packaged technical support services, provided or managed by Conga (collectively, the “Subscription Services”) that are listed in one or more Conga ordering documents signed by the parties (each, an “Order Form”). This Master Services Agreement and all executed Order Forms, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order Form.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order Form (the “Subscription Term”), Conga will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) the functionality of the Subscription Services will not be materially decreased from that available as of the Effective Date. Conga may release updates or upgrades, including push upgrades, to the Subscription Services during the Subscription Term, however, Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Conga with respect to future functionality or features. Customer’s affiliates (“Affiliates”) may purchase Subscription Services from Conga pursuant to this Agreement. In such event, all references to “Customer” hereunder shall instead refer to such Affiliate identified in the applicable Order Form(s).
1.3 Subscription Services Users. Subject to the limits set forth in the Order Form, Customer may authorize, via the Salesforce LMA (License Management Application), if applicable, Customer’s named employees, representatives, consultants, contractors, partners, or agents to use the Subscription Service by supplying user identifications and passwords for such individuals (“Users”). Additionally, if applicable, Users may use Service Events, SMS Events, or Conga Sign Transactions subject to the limits set forth in the Order Form. Customer may increase the number of Users, Service Events, or SMS Events pursuant to an add-on Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Conga will make the Subscription Services available in accordance with the Conga Service Level Agreement further described at /legal-center/service-level-agreement (“SLA”).
1.5 Technical Support. Conga will provide trouble handling and break/fix support services in accordance with the level of technical support indicated in the Order Form.
1.6 Service Descriptions. Conga will publish and maintain Service Descriptions that describe the material functionality of, and product-specific terms applicable to, the Subscription Services (“Service Descriptions”), which shall be updated from time-to-time and located at: /legal-center/service-descriptions.
1.7 Professional Services. If Customer wishes to purchase implementation or other professional services from Conga relating to the Subscription Services (“Professional Services”), such work will be described in one or more separate statement(s) of work (“SOW”). Any Professional Services to be provided to Customer by Conga will be governed by the SOW and the Professional Services Terms found at: /legal-center/professional-services-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order Form or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Conga promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Conga reserves the right to, in cooperation with Customer, audit Customer’s use of the Subscription Services. In the event that Conga discovers that Customer’s actual usage of the Subscription Services exceeds the number of Users, Service Events, SMS Events or otherwise as set forth in the applicable Order Form, then, without limiting Conga’s other rights and remedies under this Agreement, Conga will be entitled to issue an invoice to Customer for such additional use.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; or (vii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order Form. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers (“Third-Party Providers”) offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to customers’ use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Conga is not responsible for, and does not warrant any such Third-Party Providers or any of their products or services. Customer is solely responsible for obtaining any necessary rights or licenses thereto, and the results therefrom. Any exchange of data or other interaction between Customer and a Third-Party Provider, and any purchase by Customer of any product or service offered by such provider, is solely between Customer and such Third-Party Provider. Notwithstanding the foregoing, to the extent Customer purchases such third-party products or services directly from Conga, the providers of such products or services shall not be considered Third-Party Providers hereunder.
2.4 SFDC’s Role. Customer recognizes and agrees that, if the applicable Subscription Services are hosted on the technology platform called salesforce.com, provided by salesforce.com, inc. ("SFDC"), then Customer's access and use of the Subscription Services, is subject to the Salesforce.com Platform Addendum found at /legal-center/salesforce-platform-addendum.
3. Security and Data Protection.
3.1 Protection of Customer Data. Conga has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security and privacy of Customer Data, as further described in the Data Security Exhibit found at /legal-center/data-security-exhibit. Conga will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Conga, including the Internet.
3.2. Data Privacy.
(A) Data Processing Addendum. Conga’s Data Processing Addendum is available at /legal-center/dpa and is incorporated into this Agreement by reference when the General Data Protection Regulation, California Consumer Privacy Act (“CCPA”), or other applicable data protection law(s) applies to Customer’s use of the Subscription Services.
(B) CCPA. Conga will not: (a) sell Customer Data; (b) collect, retain, use, or disclose Customer Data for any purpose other than performance of its obligations under this Agreement, including for any commercial purpose other than to perform the Subscription Services; or (c) collect, retain, use, or disclose Customer Data for any purpose outside the direct business relationship between Conga and Customer. As used in this Section 3.2: (i) “sell” means selling, renting, releasing, disclosing, disseminating, making available, or transferring data, or otherwise communicating it orally, in writing, or by electronic or other means, to another business or a third party for monetary or other valuable consideration; and (ii) “commercial purpose” means to advance Conga’s commercial or economic interests, including without limitation by inducing another to buy, rent, lease, join, subscribe to, provide, or exchange products, goods, property, or services, and by enabling or effecting, directly or indirectly, a commercial transaction. Conga hereby certifies that it understands the restrictions set forth in this Section 3.2(B) and will comply with them. The parties agree that, for purposes of this Agreement, and when the CCPA applies to Customer’s use of the Subscription Services, Conga is a “Service Provider” (not a “third party”) to Customer pursuant to the CCPA.
3.3 Use of Services Attributes and Anonymized Data. Conga may collect, use and disclose quantitative and other usage information (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. For the sake of clarity, no Personal Data or Customer Data will be collected. Services Attributes will be considered in the aggregate form only and will not identify Customer or its Users (“Anonymized Metadata”). Conga retains all rights, title and interest in and to Anonymized Metadata.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Order Forms hereunder. Except as otherwise provided in an Order Form, all fees are quoted in United States dollars. Except as expressly set forth otherwise in the Agreement, fees (i) are based on number of Users, SMS Events, Service Events, or other mechanism detailed in an Order Form for subscriptions purchased in the relevant Order Form; (ii) will not be prorated if actual usage is less than expected, or if the number of Users set forth in the relevant Order Form exceeds those that are ultimately assigned to individual persons; and (iii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order Form will not offset any fees due under any other Order Form.
4.2 Invoicing & Payment. Except as set forth in Section 2.1, fees for the Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order Form. All amounts are due and payable thirty (30) days from the invoice date. All payments made under this Agreement will be in United States dollars.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, fees in an Order Form or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Conga is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice, unless Customer provides Conga with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for paying all Taxes, excluding only taxes based on Conga’s income and personal property. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in the applicable Order Form.
4.5 Suspension of Subscription Services. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Conga reserves the right to suspend the Subscription Services, without liability to Customer, until such overdue amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Conga may utilize (A) Apttus Corporation and Conga marks and brands, including the apttus.com name, the conga.com name, the Apttus logo, the Conga logo, the Apttus.com domain name, the Conga.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Conga Technology"); and (ii) that the Conga Technology is covered by intellectual property rights owned or licensed by Conga (collectively, "Conga IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Conga Technology or Conga IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Conga Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including data contained within Conga database fields or objects, available to anyone other than Users, or use the Subscription Services for the benefit of any unrelated third party; (iv) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) use or access the Subscription Services or Conga Technology to build, support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Conga and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement. During the Subscription Term, Customer may extract all Customer Data from the Subscription Services at its sole discretion.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Subscription Services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranty Remedies; Warranties Disclaimer.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Conga represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) perform in all material respects in accordance with the applicable Service Description(s), as updated from time to time.
7.2 Warranty Remedies. If Customer purchases Professional Services from Conga, Customer will notify Conga of any warranty deficiencies under Section 7.1 within 30 days of the performance of the relevant Professional Services, and Customer's exclusive remedy will be the re-performance of the deficient Professional Services, or as otherwise specified in a SOW.
7.3 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CONGA DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. CONGA DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Conga. Subject to this Agreement, Conga will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Conga in a monetary settlement of such Claim. Conga’s obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Conga will, in its discretion and at no cost to Customer do one of the following: (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF CONGA AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST CONGA FOR ANY CLAIM UNDER THIS SECTION.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Conga by a third party alleging that (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly gives written notice of the Claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION) AND CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) LOST PROFITS OR LOSS OF USE (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified therein. Except as otherwise provided in this Agreement or applicable Order Form, at the end of the then current Subscription Term, the Subscription Services described in the active Order Form(s) shall automatically renew for a new Subscription Term equal to the longest Subscription Term of such expiring Order Form(s). Unless otherwise agreed by the parties, the unit prices for the Subscription Services fees, and the fees for associated technical support, shall increase by eight percent (8%) for each renewal term, provided the subscription quantity, type(s), and term are substantially similar to those in the expiring Order Form(s). If Customer wishes to discontinue use of the Subscription Services, decrease the quantity of the Subscription Services, or otherwise modify its purchase of the Subscriptions Services, for such renewal Order Form(s), it must provide Conga with forty-five (45) days’ notice prior to the expiration of the applicable Order Form(s).
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Conga provided software related to the Subscription Services, including managed packages, as well as any model data pertaining to Conga AI Analyze, if applicable.
10.4 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Conga will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.5 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Conga prior to the effective date of termination.
10.6 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Use of Customer Name and Logo. With approval of Customer, Conga may issue a press release regarding the relationship between Customer and Conga, refer to Customer in marketing initiatives, and use Customer’s logos for such purposes. As Conga may request from time to time, Customer shall participate in Conga’s reference program and shall work with Conga’s representatives, at Conga’s cost and expense, on a use case overview and video or written testimonial, with content subject to review and approval by Customer.
11.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.4 Notices. Conga may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal or via email. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Conga’s account information. All legal or dispute-related notices will be sent by first class mail, email, or express delivery, if to Conga, attention Chief Legal Officer, at P.O. Box 7839, Broomfield, Colorado 80021 U.S.A., or legal@conga.com, and if to Customer, to Customer's account representative and address on record in Conga’s account information or such other addresses as either party may designate in writing from time to time.
11.5 Force Majeure. Excluding Customer’s payment obligations under Section 4, neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules.
11.10 Venue. The state and federal courts located in the State of Delaware will 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.
11.11 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.12 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Services Agreement (“Agreement”), including any applicable addenda, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Conga”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICES IF YOU ARE AN CONGA COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF CONGA.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period.
Conga may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives Conga written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Services Agreement applies to Customer’s use of the online subscription services, including associated offline components and packaged technical support services, provided or managed by Conga (collectively, the “Subscription Services”) that are listed in one or more Conga ordering documents signed by the parties (each, an “Order Form”). This Master Services Agreement and all executed Order Forms, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order Form.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order Form (the “Subscription Term”), Conga will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) the functionality of the Subscription Services will not be materially decreased from that available as of the Effective Date. Conga may release updates or upgrades, including push upgrades, to the Subscription Services during the Subscription Term, however, Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by Conga with respect to future functionality or features. Customer’s affiliates (“Affiliates”) may purchase Subscription Services from Conga pursuant to this Agreement. In such event, all references to “Customer” hereunder shall instead refer to such Affiliate identified in the applicable Order Form(s).
1.3 Subscription Services Users. Subject to the limits set forth in the Order Form, Customer may authorize, via the Salesforce LMA (License Management Application), if applicable, Customer’s named employees, representatives, consultants, contractors, partners, or agents to use the Subscription Service by supplying user identifications and passwords for such individuals (“Users”). Additionally, if applicable, Users may use Service Events, SMS Events, or Conga Sign Transactions subject to the limits set forth in the Order Form. Customer may increase the number of Users, Service Events, or SMS Events pursuant to an add-on Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Conga will make the Subscription Services available in accordance with the Conga Service Level Agreement further described at /legal-center/service-level-agreement (“SLA”).
1.5 Technical Support. Conga will provide trouble handling and break/fix support services in accordance with the level of technical support indicated in the Order Form.
1.6 Service Descriptions. Conga will publish and maintain Service Descriptions that describe the material functionality of, and product-specific terms applicable to, the Subscription Services (“Service Descriptions”), which shall be updated from time-to-time and located at: /legal-center/service-descriptions.
1.7 Professional Services. If Customer wishes to purchase implementation or other professional services from Conga relating to the Subscription Services (“Professional Services”), such work will be described in one or more separate statement(s) of work (“SOW”). Any Professional Services to be provided to Customer by Conga will be governed by the SOW and the Professional Services Terms found at: /legal-center/professional-services-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order Form or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Conga promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Conga reserves the right to, in cooperation with Customer, audit Customer’s use of the Subscription Services. In the event that Conga discovers that Customer’s actual usage of the Subscription Services exceeds the number of Users, Service Events, SMS Events or otherwise as set forth in the applicable Order Form, then, without limiting Conga’s other rights and remedies under this Agreement, Conga will be entitled to issue an invoice to Customer for such additional use.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; or (vii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order Form. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers (“Third-Party Providers”) offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to customers’ use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Conga is not responsible for, and does not warrant any such Third-Party Providers or any of their products or services. Customer is solely responsible for obtaining any necessary rights or licenses thereto, and the results therefrom. Any exchange of data or other interaction between Customer and a Third-Party Provider, and any purchase by Customer of any product or service offered by such provider, is solely between Customer and such Third-Party Provider. Notwithstanding the foregoing, to the extent Customer purchases such third-party products or services directly from Conga, the providers of such products or services shall not be considered Third-Party Providers hereunder.
2.4 SFDC’s Role. Customer recognizes and agrees that, if the applicable Subscription Services are hosted on the technology platform called salesforce.com, provided by salesforce.com, inc. ("SFDC"), then Customer's access and use of the Subscription Services, is subject to the Salesforce.com Platform Addendum found at /legal-center/salesforce-platform-addendum.
3. Security and Data Protection.
3.1 Protection of Customer Data. Conga has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security and privacy of Customer Data, as further described in the Data Security Exhibit found at /legal-center/data-security-exhibit. Conga will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Conga, including the Internet.
3.2. Data Privacy.
(A) Data Processing Addendum. Conga’s Data Processing Addendum is available at /legal-center/dpa and is incorporated into this Agreement by reference when the General Data Protection Regulation, California Consumer Privacy Act (“CCPA”), or other applicable data protection law(s) applies to Customer’s use of the Subscription Services.
(B) CCPA. Conga will not: (a) sell Customer Data; (b) collect, retain, use, or disclose Customer Data for any purpose other than performance of its obligations under this Agreement, including for any commercial purpose other than to perform the Subscription Services; or (c) collect, retain, use, or disclose Customer Data for any purpose outside the direct business relationship between Conga and Customer. As used in this Section 3.2: (i) “sell” means selling, renting, releasing, disclosing, disseminating, making available, or transferring data, or otherwise communicating it orally, in writing, or by electronic or other means, to another business or a third party for monetary or other valuable consideration; and (ii) “commercial purpose” means to advance Conga’s commercial or economic interests, including without limitation by inducing another to buy, rent, lease, join, subscribe to, provide, or exchange products, goods, property, or services, and by enabling or effecting, directly or indirectly, a commercial transaction. Conga hereby certifies that it understands the restrictions set forth in this Section 3.2(B) and will comply with them. The parties agree that, for purposes of this Agreement, and when the CCPA applies to Customer’s use of the Subscription Services, Conga is a “Service Provider” (not a “third party”) to Customer pursuant to the CCPA.
3.3 Use of Services Attributes and Anonymized Data. Conga may collect, use and disclose quantitative and other usage information (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. For the sake of clarity, no Personal Data or Customer Data will be collected. Services Attributes will be considered in the aggregate form only and will not identify Customer or its Users (“Anonymized Metadata”). Conga retains all rights, title and interest in and to Anonymized Metadata.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Order Forms hereunder. Except as otherwise provided in an Order Form, all fees are quoted in United States dollars. Except as expressly set forth otherwise in the Agreement, fees (i) are based on number of Users, SMS Events, Service Events, or other mechanism detailed in an Order Form for subscriptions purchased in the relevant Order Form; (ii) will not be prorated if actual usage is less than expected, or if the number of Users set forth in the relevant Order Form exceeds those that are ultimately assigned to individual persons; and (iii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order Form will not offset any fees due under any other Order Form.
4.2 Invoicing & Payment. Except as set forth in Section 2.1, fees for the Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order Form. All amounts are due and payable thirty (30) days from the invoice date. All payments made under this Agreement will be in United States dollars.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, fees in an Order Form or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Conga is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice, unless Customer provides Conga with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for paying all Taxes, excluding only taxes based on Conga’s income and personal property. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in the applicable Order Form.
4.5 Suspension of Subscription Services. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Conga reserves the right to suspend the Subscription Services, without liability to Customer, until such overdue amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Conga may utilize (A) Apttus Corporation and Conga marks and brands, including the apttus.com name, the conga.com name, the Apttus logo, the Conga logo, the Apttus.com domain name, the Conga.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Conga Technology"); and (ii) that the Conga Technology is covered by intellectual property rights owned or licensed by Conga (collectively, "Conga IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Conga Technology or Conga IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Conga Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including data contained within Conga database fields or objects, available to anyone other than Users, or use the Subscription Services for the benefit of any unrelated third party; (iv) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) use or access the Subscription Services or Conga Technology to build, support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Conga and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement. During the Subscription Term, Customer may extract all Customer Data from the Subscription Services at its sole discretion.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Subscription Services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranty Remedies; Warranties Disclaimer.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Conga represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) perform in all material respects in accordance with the applicable Service Description(s), as updated from time to time.
7.2 Warranty Remedies. Customer will notify Conga of any warranty deficiencies under Section 7.1 within 30 days of the performance of the relevant Subscription Services, and Customer's exclusive remedy will be the re-performance of the deficient Subscription Services. If Conga cannot re-perform such deficient Subscription Services as warranted, Customer will be entitled to terminate the deficient Subscription Services under Section 10.5 below and recover a pro-rata portion of the fees paid to Conga for such deficient Subscription Services, and such refund will be Customer’s sole remedy and Conga’s entire liability.
7.3 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CONGA DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. CONGA DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Conga. Subject to this Agreement, Conga will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Conga in a monetary settlement of such Claim. Conga’s obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Conga will, in its discretion and at no cost to Customer do one of the following: (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term. THIS SECTION 8.1 SETS FORTH THE ENTIRE OBLIGATION OF CONGA AND CUSTOMER’S EXCLUSIVE REMEDY AGAINST CONGA FOR ANY CLAIM UNDER THIS SECTION.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Conga by a third party alleging that (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly gives written notice of the Claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION) AND CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) LOST PROFITS OR LOSS OF USE (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified therein. Except as otherwise provided in this Agreement or applicable Order Form, at the end of the then current Subscription Term, the Subscription Services described in the active Order Form(s) shall automatically renew for a new Subscription Term equal to the longest Subscription Term of such expiring Order Form(s). Unless otherwise agreed by the parties, the unit prices for the Subscription Services fees, and the fees for associated technical support, shall increase by eight percent (8%) for each renewal term, provided the subscription quantity, type(s), and term are substantially similar to those in the expiring Order Form(s). If Customer wishes to discontinue use of the Subscription Services, decrease the quantity of the Subscription Services, or otherwise modify its purchase of the Subscriptions Services, for such renewal Order Form(s), it must provide Conga with forty-five (45) days’ notice prior to the expiration of the applicable Order Form(s).
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Conga provided software related to the Subscription Services, including managed packages, as well as any model data pertaining to Conga AI Analyze, if applicable.
10.4 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Conga will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.5 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Conga prior to the effective date of termination.
10.6 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Use of Customer Name and Logo. With approval of Customer, Conga may issue a press release regarding the relationship between Customer and Conga, refer to Customer in marketing initiatives, and use Customer’s logos for such purposes. As Conga may request from time to time, Customer shall participate in Conga’s reference program and shall work with Conga’s representatives, at Conga’s cost and expense, on a use case overview and video or written testimonial, with content subject to review and approval by Customer.
11.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.4 Notices. Conga may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal or via email. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Conga’s account information. All legal or dispute-related notices will be sent by first class mail, email, or express delivery, if to Conga, attention Chief Legal Officer, at P.O. Box 7839, Broomfield, Colorado 80021 U.S.A., or legal@conga.com, and if to Customer, to Customer's account representative and address on record in Conga’s account information or such other addresses as either party may designate in writing from time to time.
11.5 Force Majeure. Excluding Customer’s payment obligations under Section 4, neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules.
11.10 Venue. The state and federal courts located in the State of Delaware will 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.
11.11 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.12 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Services Agreement (“Agreement”), including any applicable addenda, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Conga”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICES IF YOU ARE AN CONGA COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF CONGA.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period. Other Conga subscription modules are available, subject to separate terms and conditions.
Conga may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives Conga written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Services Agreement applies to Customer’s use of the online subscription services, including associated offline components related online training and packaged technical support services provided or managed by Conga (collectively, the “Subscription Services”) that are listed in one or more Conga subscription-based ordering documents signed by the parties (each, an “Order”). This Master Services Agreement and all executed Orders, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order (the “Subscription Term”), Conga will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; and (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written public comments made by Conga with respect to future functionality or features.
1.3 Subscription Services Users. Subject to the limits set forth in the Order, Customer may authorize Customer’s employees and contractors, acting on its behalf, to use the Subscription Services and will supply (or request Conga to supply) user identifications and passwords for such individuals (“Users”). Customer may increase the number of Users pursuant to an add-on Order(s). Unless otherwise specified in the relevant Order, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Conga will make the Subscription Services available in accordance with the Service Level Agreement further described at http://legal.apttus.com/#apttus-service-level-agreement (“SLA”).
1.5 Technical Support. Conga will provide trouble handling and break/fix support services in accordance with the level of technical support indicated in the Order, and as further described at: http://legal.apttus.com/#apttus-technical-support.
1.6 Professional Services. If Customer wishes to purchase implementation or other professional services from Conga relating to the Subscription Services (“Professional Services”), the parties will mutually execute one or more separate Conga-based statement of work (“SOW”). Any Professional Services to be provided to Customer by Conga will be governed by the Professional Services Terms found at: http://legal.apttus.com/#apttus-professional-services-delivery-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Conga promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Conga reserves the right to audit Customer’s use of the Subscription Services no more than once each calendar year to ensure compliance with the terms of the Agreement. In the event that Conga discovers that Customer’s actual usage of the Subscription Services exceeds the amount of Users set forth in the applicable Order, then, without limiting Conga’s other rights and remedies under this Agreement, Conga will be entitled to issue an invoice to Customer for such additional Users.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; or (vii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers, some of which may be listed on Conga's website, offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to customers’ use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Conga is not responsible for, and does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Conga as "certified," "validated" or otherwise, and Customer will be solely responsible for obtaining any necessary rights or licenses thereto. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
2.4 SFDC’s Role. Customer recognizes and agrees that, if the applicable Subscription Services are hosted on the technology platform called salesforce.com, provided by salesforce.com, inc. ("SFDC"), then Customer's access and use of the Subscription Services, is subject to the Salesforce.com Platform Addendum found at http://legal.apttus.com/#salesforce-platform-addendum.
3. Security and Data Protection.
3.1 Protection of Customer Data. Conga has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data, as further described in the Data Security Exhibit found at http://legal.apttus.com/#data-security-exhibit. Conga will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Conga, including the Internet.
3.2 Use of Services Attributes and Anonymized Data. Conga may collect, use and disclose quantitative and other data related to Customer’s use of the Subscription Services (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. Services Attributes will be considered in the aggregate form only, and will not identify Customer or its Users (“Anonymized Data”). Conga retains all rights, title and interest in and to Anonymized Data.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Orders hereunder. Except as otherwise provided in an Order, all fees are quoted in United States dollars. Except as expressly set forth otherwise in the Agreement (i) fees are based on number of User subscriptions purchased in the relevant Order, and fees will not be prorated if actual usage is less than the number of Users set forth in the relevant Order; and (ii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order will not offset any fees due under any other Order.
4.2 Invoicing & Payment. Except as set forth in Section 2.1, fees for the Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order. All amounts are due and payable thirty (30) days from the invoice date. All payments made under this Agreement will be in United States dollars.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, Fees set forth in an Order or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Conga is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice. Customer is responsible for paying all Taxes, excluding only taxes based on Conga’s income and personal property. If Conga has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Conga with a valid tax exemption certificate authorized by the appropriate taxing authority. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in the applicable Order.
4.5 Suspension of Subscription Services. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Conga reserves the right to suspend the Subscription Services, without liability to Customer, until such amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Conga utilizes (A) the apttus.com name, the conga.com name, the apttus.com logo, the conga.com logo, the apttus.com domain name, the conga.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Conga Technology"); and (ii) that the Conga Technology is covered by intellectual property rights owned or licensed by Conga (collectively, "Conga IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Conga Technology or Conga IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Conga Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including Conga database field, available to anyone other than Users, or use the Subscription Services for the benefit of any unrelated third party; (iv) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) use or access the Subscription Services or Conga Technology to build or support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Conga and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Subscription Services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranty Remedies; Warranties Disclaimer.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Conga represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) perform in all material respects in accordance with the Conga online user guide for the Subscription Services, accessible via the Conga Customer Success Portal, as updated from time to time.
7.2 Warranty Remedies. Customer will notify Conga of any warranty deficiencies under Section 7.1 within 30 days of the performance of the relevant Subscription Services, and Customer's exclusive remedy will be the re-performance of the deficient Subscription Services. If Conga cannot re-perform such deficient Subscription Services as warranted, Customer will be entitled to terminate the deficient Subscription Services under Section 10.5 below and recover a pro-rata portion of the fees paid to Conga for such deficient Subscription Services, and such refund will be Customer’s sole remedy and Conga’s entire liability.
7.3 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CONGA DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. CONGA DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Conga. Subject to this Agreement, Conga will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Conga in a monetary settlement of such Claim. Conga’s obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Conga may, in its discretion and at no cost to Customer (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Conga by a third party alleging that (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly gives written notice of the Claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION) AND FOR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERROR OR INTERRUPTION OF USE, INACCURACY, OR LOSS OF BUSINESS OR DATA; (ii) LOST PROFITS OR LOSS OF USE; (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order and continue for the Subscription Term specified therein. At the end of the then current Subscription Term, the Subscription Services described in the active Order(s) may be extended upon execution of a new Order(s). The Subscription Services fees for each renewal term will increase by five percent (5%) over the prior Subscription Term.
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Conga provided software related to the Subscription Services. This includes managed packages or other software that has been installed in Customer environments.
10.4 Return of Customer Data. Upon request by Customer made within thirty (30) days of the effective date of termination or expiration of this Agreement, Conga will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. Customer will pay service fees for any additional data migration activities. After such thirty (30) day period, Conga will have no obligation to maintain or provide any Customer Data and thereafter may delete all Customer Data in its systems or otherwise in its possession or under its control.
10.5 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Conga will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.6 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Conga prior to the effective date of termination.
10.7 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Use of Customer Name and Logo. With approval of Customer, Conga may issue a press release regarding the relationship between Customer and Conga, refer to Customer in marketing initiatives, and use Customer’s logos for such purposes. As Conga may request from time to time, Customer shall participate in Conga’s reference program and shall work with Conga’s representatives, at Conga’s cost and expense, on a use case overview and video or written testimonial, with content subject to review and approval by Customer.
11.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.4 Notices. Conga may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Conga’s account information. All legal or dispute-related notices will be sent by first class mail or express delivery, if to Conga, attention Chief Legal Officer, at 1400 Fashion Island Blvd., Suite 100, San Mateo, California 94404, U.S.A., and if to Customer, to Customer's account representative and address on record in Conga’s account information or such other addresses as either party may designate in writing from time to time.
11.5 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than twenty (20) days, either party may cancel unperformed Subscription Services upon written notice.
11.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
11.10 Venue. The state and federal courts located in San Francisco County, California will 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.
11.11 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.12 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Orders executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Subscription Services Agreement (“Agreement”), including any applicable addenda, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Conga”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICES IF YOU ARE AN CONGA COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF CONGA.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period. Other Conga subscription modules are available, subject to separate terms and conditions.
Conga may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives Conga written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Subscription Services Agreement applies to Customer’s use of the online subscription services, including [associated offline components] related online training and packaged technical support services provided or managed by Conga (collectively, the “Subscription Services”) that are listed in one or more Conga subscription-based ordering documents signed by the parties (each, an “Order”). This Master Subscription Services Agreement and all executed Orders, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order (the “Subscription Term”), Conga will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; and (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written public comments made by Conga with respect to future functionality or features.
1.3 Subscription Services Users. Subject to the limits set forth in the Order, Customer may authorize Customer’s employees and contractors, acting on its behalf, to use the Subscription Services and will supply (or request Conga to supply) user identifications and passwords for such individuals (“Users”). Customer may increase the number of Users pursuant to an add-on Order(s). Unless otherwise specified in the relevant Order, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Conga will make the Subscription Services available in accordance with the Service Level Agreement further described at http://legal.apttus.com/#apttus-service-level-agreement (“SLA”).
1.5 Technical Support. Conga will provide trouble handling and break/fix support services in accordance with the level of technical support indicated in the Order, and as further described at: http://legal.apttus.com/#apttus-technical-support.
1.6 Professional Services. If Customer wishes to purchase implementation or other professional services from Conga relating to the Subscription Services (“Professional Services”), the parties will mutually execute one or more separate Conga-based statement of work (“SOW”). Any Professional Services to be provided to Customer by Conga will be governed by the Professional Services Terms found at: http://legal.apttus.com/#apttus-professional-services-delivery-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Conga promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Conga reserves the right to audit Customer’s use of the Subscription Services no more than once each calendar year to ensure compliance with the terms of the Agreement. In the event that Conga discovers that Customer’s actual usage of the Subscription Services exceeds the amount of Users set forth in the applicable Order, then, without limiting Conga’s other rights and remedies under this Agreement, Conga will be entitled to issue an invoice to Customer for such additional Users.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; or (vii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers, some of which may be listed on Conga's website, offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to customers’ use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Conga is not responsible for, and does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Conga as "certified," "validated" or otherwise, and Customer will be solely responsible for obtaining any necessary rights or licenses thereto. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
2.4 SFDC’s Role. Customer recognizes and agrees that, if the applicable Subscription Services are hosted on the technology platform called salesforce.com, provided by salesforce.com, inc. ("SFDC"), then Customer's access and use of the Subscription Services, is subject to the Salesforce.com Platform Addendum found at http://legal.apttus.com/#salesforce-platform-addendum.
3. Security and Data Protection.
3.1 Protection of Customer Data. Conga has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data, as further described in the Data Security Exhibit found at http://legal.apttus.com/#data-security-exhibit. Conga will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Conga, including the Internet.
3.2 Use of Services Attributes and Anonymized Data. Conga may collect, use and disclose quantitative and other data related to Customer’s use of the Subscription Services (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. Services Attributes will be considered in the aggregate form only, and will not identify Customer or its Users (“Anonymized Data”). Conga retains all rights, title and interest in and to Anonymized Data.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Orders hereunder. Except as otherwise provided in an Order, all fees are quoted in United States dollars. Except as expressly set forth otherwise in the Agreement (i) fees are based on number of User subscriptions purchased in the relevant Order, and fees will not be prorated if actual usage is less than the number of Users set forth in the relevant Order; and (ii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order will not offset any fees due under any other Order.
4.2 Invoicing & Payment. Except as set forth in Section 2.1, fees for the Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order. All amounts are due and payable thirty (30) days from the invoice date. All payments made under this Agreement will be in United States dollars.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, Fees set forth in an Order or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Conga is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice. Customer is responsible for paying all Taxes, excluding only taxes based on Conga’s income and personal property. If Conga has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Conga with a valid tax exemption certificate authorized by the appropriate taxing authority. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in the applicable Order.
4.5 Suspension of Subscription Services. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Conga reserves the right to suspend the Subscription Services, without liability to Customer, until such amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Conga utilizes (A) the apttus.com name, the conga.com name, the apttus.com logo, the conga.com logo, the apttus.com domain name, the conga.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Conga Technology"); and (ii) that the Conga Technology is covered by intellectual property rights owned or licensed by Conga (collectively, "Conga IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Conga Technology or Conga IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Conga Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including Conga database field, available to anyone other than Users, or use the Subscription Services for the benefit of any unrelated third party; (iv) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) use or access the Subscription Services or Conga Technology to build or support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Conga and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Subscription Services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranty Remedies; Warranties Disclaimer.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Conga represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) perform in all material respects in accordance with the Conga online user guide for the Subscription Services, accessible via the Conga Customer Success Portal, as updated from time to time.
7.2 Warranty Remedies. Customer will notify Conga of any warranty deficiencies under Section 7.1 within 30 days of the performance of the relevant Subscription Services, and Customer's exclusive remedy will be the re-performance of the deficient Subscription Services. If Conga cannot re-perform such deficient Subscription Services as warranted, Customer will be entitled to terminate the deficient Subscription Services under Section 10.5 below and recover a pro-rata portion of the fees paid to Conga for such deficient Subscription Services, and such refund will be Customer’s sole remedy and Conga’s entire liability.
7.3 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. CONGA DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. CONGA DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Conga. Subject to this Agreement, Conga will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Conga in a monetary settlement of such Claim. Conga’s obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Conga may, in its discretion and at no cost to Customer (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Conga by a third party alleging that (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Conga products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly gives written notice of the Claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION) AND FOR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERROR OR INTERRUPTION OF USE, INACCURACY, OR LOSS OF BUSINESS OR DATA; (ii) LOST PROFITS OR LOSS OF USE; (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order and continue for the Subscription Term specified therein. At the end of the then current Subscription Term, the Subscription Services described in the active Order(s) may be extended upon execution of a new Order(s). The Subscription Services fees for each renewal term will increase by five percent (5%) over the prior Subscription Term.
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Conga provided software related to the Subscription Services. This includes managed packages or other software that has been installed in Customer environments.
10.4 Return of Customer Data. Upon request by Customer made within thirty (30) days of the effective date of termination or expiration of this Agreement, Conga will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. Customer will pay service fees for any additional data migration activities. After such thirty (30) day period, Conga will have no obligation to maintain or provide any Customer Data and thereafter may delete all Customer Data in its systems or otherwise in its possession or under its control.
10.5 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Conga will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.6 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Conga prior to the effective date of termination.
10.7 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 Use of Customer Name and Logo. With approval of Customer, Conga may issue a press release regarding the relationship between Customer and Conga, refer to Customer in marketing initiatives, and use Customer’s logos for such purposes. As Conga may request from time to time, Customer shall participate in Conga’s reference program and shall work with Conga’s representatives, at Conga’s cost and expense, on a use case overview and video or written testimonial, with content subject to review and approval by Customer.
11.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.4 Notices. Conga may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Conga’s account information. All legal or dispute-related notices will be sent by first class mail or express delivery, if to Conga, attention Chief Legal Officer, at 1400 Fashion Island Blvd., Suite 100, San Mateo, California 94404, U.S.A., and if to Customer, to Customer's account representative and address on record in Conga’s account information or such other addresses as either party may designate in writing from time to time.
11.5 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than twenty (20) days, either party may cancel unperformed Subscription Services upon written notice.
11.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.9 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
11.10 Venue. The state and federal courts located in San Francisco County, California will 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.
11.11 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.12 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Orders executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Subscription Services Agreement (“Agreement”), including any applicable addenda, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Apttus”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICES IF YOU ARE AN APTTUS COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF APTTUS.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period. Other Apttus subscription modules are available, subject to separate terms and conditions.
Apttus may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives Apttus written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Subscription Services Agreement applies to Customer’s use of the online subscription services, including [associated offline components] related online training and packaged technical support services provided or managed by Apttus (collectively, the “Subscription Services”) that are listed in one or more Apttus subscription-based ordering documents signed by the parties (each, an “Order”). This Master Subscription Services Agreement and all executed Orders, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order (the “Subscription Term”), Apttus will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; and (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written public comments made by Apttus with respect to future functionality or features.
1.3 Subscription Services Users. Subject to the limits set forth in the Order, Customer may authorize Customer’s employees and contractors, acting on its behalf, to use the Subscription Services and will supply (or request Apttus to supply) user identifications and passwords for such individuals (“Users”). Customer may increase the number of Users pursuant to an add-on Order(s). Unless otherwise specified in the relevant Order, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Apttus will make the Subscription Services available in accordance with the Apttus Service Level Agreement further described at http://legal.apttus.com/#apttus-service-level-agreement (“SLA”).
1.5 Technical Support. Apttus will provide trouble handling and break/fix support services in accordance with the level of technical support indicated in the Order, and as further described at: http://legal.apttus.com/#apttus-technical-support.
1.6 Professional Services. If Customer wishes to purchase implementation or other professional services from Apttus relating to the Subscription Services (“Professional Services”), the parties will mutually execute one or more separate Apttus based-statement of work (“SOW”). Any Professional Services to be provided to Customer by Apttus will be governed by the Apttus Professional Services Terms found at: http://legal.apttus.com/#apttus-professional-services-delivery-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Apttus promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Apttus reserves the right to audit Customer’s use of the Subscription Services no more than once each calendar year to ensure compliance with the terms of the Agreement. In the event that Apttus discovers that Customer’s actual usage of the Subscription Services exceeds the amount of Users set forth in the applicable Order, then, without limiting Apttus’ other rights and remedies under this Agreement, Apttus will be entitled to issue an invoice to Customer for such additional Users.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; or (vii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers, some of which may be listed on Apttus' website, offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to customers’ use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Apttus is not responsible for, and does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Apttus as "certified," "validated" or otherwise, and Customer will be solely responsible for obtaining any necessary rights or licenses thereto. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
2.4 SFDC’s Role. Customer recognizes and agrees that, if the applicable Subscription Services are hosted on the technology platform called salesforce.com, provided by salesforce.com, inc. ("SFDC"), then Customer's access and use of the Subscription Services, is subject to the Salesforce.com Platform Addendum found at http://legal.apttus.com/#salesforce-platform-addendum.
3. Security and Data Protection.
3.1 Protection of Customer Data. Apttus has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data, as further described in the Data Security Exhibit found at http://legal.apttus.com/#data-security-exhibit. Apttus will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Apttus, including the Internet.
3.2 Use of Services Attributes and Anonymized Data. Apttus may collect, use and disclose quantitative and other data related to Customer’s use of the Subscription Services (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. Services Attributes will be considered in the aggregate form only, and will not identify Customer or its Users (“Anonymized Data”). Apttus retains all rights, title and interest in and to Anonymized Data.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Orders hereunder. Except as otherwise provided in an Order, all fees are quoted in United States dollars. Except as expressly set forth otherwise in the Agreement (i) fees are based on number of User subscriptions purchased in the relevant Order, and fees will not be prorated if actual usage is less than the number of Users set forth in the relevant Order; and (ii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order will not offset any fees due under any other Order.
4.2 Invoicing & Payment. Except as set forth in Section 2.1, fees for the Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order. All amounts are due and payable thirty (30) days from the invoice date. All payments made under this Agreement will be in United States dollars.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, Fees set forth in an Order or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Apttus is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice. Customer is responsible for paying all Taxes, excluding only taxes based on Apttus’ income and personal property. If Apttus has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Apttus with a valid tax exemption certificate authorized by the appropriate taxing authority. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Apttus of such location(s) if different than Customer’s business address listed in the applicable Order.
4.5 Suspension of Subscription Services. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Apttus reserves the right to suspend the Subscription Services, without liability to Customer, until such amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Apttus utilizes (A) the Apttus.com name, the Apttus.com logo, the Apttus.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Apttus Technology"); and (ii) that the Apttus Technology is covered by intellectual property rights owned or licensed by Apttus (collectively, "Apttus IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Apttus Technology or Apttus IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Apttus Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including Apttus database field, available to anyone other than Users, or use the Subscription Services for the benefit of any unrelated third party; (iv) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) use or access the Subscription Services or Apttus Technology to build or support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Apttus and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Subscription Services, the Apttus Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranty Remedies; Warranties Disclaimer.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Apttus represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) perform in all material respects in accordance with the Apttus online user guide for the Subscription Services, accessible via the Apttus Customer Success Portal, as updated from time to time.
7.2 Warranty Remedies. Customer will notify Apttus of any warranty deficiencies under Section 7.1 within 30 days of the performance of the relevant Subscription Services, and Customer's exclusive remedy will be the re-performance of the deficient Subscription Services. If Apttus cannot re-perform such deficient Subscription Services as warranted, Customer will be entitled to terminate the deficient Subscription Services under Section 10.5 below and recover a pro-rata portion of the fees paid to Apttus for such deficient Subscription Services, and such refund will be Customer’s sole remedy and Apttus’ entire liability.
7.3 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, APTTUS AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. APTTUS DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. APTTUS DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT APTTUS WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. APTTUS DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Apttus. Subject to this Agreement, Apttus will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Apttus in a monetary settlement of such Claim. Apttus’ obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Apttus products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Apttus may, in its discretion and at no cost to Customer (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Apttus by a third party alleging that (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Apttus products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly gives written notice of the Claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION) AND FOR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERROR OR INTERRUPTION OF USE, INACCURACY, OR LOSS OF BUSINESS OR DATA; (ii) LOST PROFITS OR LOSS OF USE; (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order and continue for the Subscription Term specified therein. At the end of the then current Subscription Term, the Subscription Services described in the active Order(s) may be extended upon execution of a new Order(s). The Subscription Services fees for each renewal term will increase by five percent (5%) over the prior Subscription Term.
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Apttus provided software related to the Subscription Services. This includes managed packages or other software that has been installed in Customer environments.
10.4 Return of Customer Data. Upon request by Customer made within thirty (30) days of the effective date of termination or expiration of this Agreement, Apttus will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. Customer will pay service fees for any additional data migration activities. After such thirty (30) day period, Apttus will have no obligation to maintain or provide any Customer Data and thereafter may delete all Customer Data in its systems or otherwise in its possession or under its control.
10.5 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Apttus will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.6 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Apttus prior to the effective date of termination.
10.7 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3 Notices. Apttus may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Apttus’ account information. All legal or dispute-related notices will be sent by first class mail or express delivery, if to Apttus, attention Chief Legal Officer, at 1400 Fashion Island Blvd., Suite 100, San Mateo, California 94404, U.S.A., and if to Customer, to Customer's account representative and address on record in Apttus’ account information or such other addresses as either party may designate in writing from time to time.
11.4 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than twenty (20) days, either party may cancel unperformed Subscription Services upon written notice.
11.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
11.9 Venue. The state and federal courts located in San Francisco County, California will 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.
11.10 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.11 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Orders executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Subscription Services Agreement (“Agreement”), including any applicable addenda, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Apttus”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICES IF YOU ARE AN APTTUS COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF APTTUS.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period. Other Apttus subscription modules are available, subject to separate terms and conditions.
Apttus may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives Apttus written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Subscription Services Agreement applies to Customer’s use of the online subscription services, including [associated offline components] related online training and packaged technical support services provided or managed by Apttus (collectively, the “Subscription Services”) that are listed in one or more Apttus subscription-based ordering documents signed by the parties (each, an “Order”). This Master Subscription Services Agreement and all executed Orders, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order (the “Subscription Term”), Apttus will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; and (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written public comments made by Apttus with respect to future functionality or features.
1.3 Subscription Services Users. Subject to the limits set forth in the Order, Customer may authorize Customer’s employees and contractors, acting on its behalf, to use the Subscription Services and will supply (or request Apttus to supply) user identifications and passwords for such individuals (“Users”). Customer may increase the number of Users pursuant to an add-on Order(s). Unless otherwise specified in the relevant Order, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Apttus will make the Subscription Services available in accordance with the Apttus Service Level Agreement further described at http://legal.apttus.com/#apttus-service-level-agreement (“SLA”).
1.5 Technical Support. Apttus will provide trouble handling and break/fix support services in accordance with the level of technical support indicated in the Order, and as further described at: http://legal.apttus.com/#apttus-technical-support.
1.6 Professional Services. If Customer wishes to purchase implementation or other professional services from Apttus relating to the Subscription Services (“Professional Services”), the parties will mutually execute one or more separate Apttus based-statement of work (“SOW”). Any Professional Services to be provided to Customer by Apttus will be governed by the Apttus Professional Services Terms found at: http://legal.apttus.com/#apttus-professional-services-delivery-terms. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Apttus promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Apttus reserves the right to audit Customer’s use of the Subscription Services no more than once each calendar year to ensure compliance with the terms of the Agreement. In the event that Apttus discovers that Customer’s actual usage of the Subscription Services exceeds the amount of Users set forth in the applicable Order, then, without limiting Apttus’ other rights and remedies under this Agreement, Apttus will be entitled to issue an invoice to Customer for such additional Users.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; or (vii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers, some of which may be listed on Apttus' website, offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to customers’ use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Apttus is not responsible for, and does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Apttus as "certified," "validated" or otherwise, and Customer will be solely responsible for obtaining any necessary rights or licenses thereto. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
2.4 SFDC’s Role. Customer recognizes and agrees that, if the applicable Subscription Services are hosted on the technology platform called salesforce.com, provided by salesforce.com, inc. ("SFDC"), then Customer's access and use of the Subscription Services, is subject to the Salesforce.com Platform Addendum found at http://legal.apttus.com/#salesforce-platform-addendum.
3. Security and Data Protection.
3.1 Protection of Customer Data. Apttus has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data, as further described in the Data Security Exhibit found at http://legal.apttus.com/#data-security-exhibit. Apttus will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Apttus, including the Internet.
3.2 Use of Services Attributes and Anonymized Data. Apttus may collect, use and disclose quantitative and other data related to Customer’s use of the Subscription Services (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. Services Attributes will be considered in the aggregate form only, and will not identify Customer or its Users (“Anonymized Data”). Apttus retains all rights, title and interest in and to Anonymized Data.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Orders hereunder. Except as otherwise provided in an Order, all fees are quoted in United States dollars. Except as expressly set forth otherwise in the Agreement (i) fees are based on number of User subscriptions purchased in the relevant Order, and fees will not be prorated if actual usage is less than the number of Users set forth in the relevant Order; and (ii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order will not offset any fees due under any other Order.
4.2 Invoicing & Payment. Except as set forth in Section 2.1, fees for the Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order. All amounts are due and payable thirty (30) days from the invoice date. All payments made under this Agreement will be in United States dollars.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, Fees set forth in an Order or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Apttus is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice. Customer is responsible for paying all Taxes, excluding only taxes based on Apttus’ income and personal property. If Apttus has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Apttus with a valid tax exemption certificate authorized by the appropriate taxing authority. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Apttus of such location(s) if different than Customer’s business address listed in the applicable Order.
4.5 Suspension of Subscription Services. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Apttus reserves the right to suspend the Subscription Services, without liability to Customer, until such amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Apttus utilizes (A) the Apttus.com name, the Apttus.com logo, the Apttus.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Apttus Technology"); and (ii) that the Apttus Technology is covered by intellectual property rights owned or licensed by Apttus (collectively, "Apttus IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Apttus Technology or Apttus IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Apttus Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including Apttus database field, available to anyone other than Users, or use the Subscription Services for the benefit of any unrelated third party; (iv) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) use or access the Subscription Services or Apttus Technology to build or support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Apttus and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Subscription Services, the Apttus Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranty Remedies; Warranties Disclaimer.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Apttus represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) perform in all material respects in accordance with the Apttus online user guide for the Subscription Services, accessible via the Apttus Customer Success Portal, as updated from time to time.
7.2 Warranty Remedies. Customer will notify Apttus of any warranty deficiencies under Section 7.1 within 30 days of the performance of the relevant Subscription Services, and Customer's exclusive remedy will be the re-performance of the deficient Subscription Services. If Apttus cannot re-perform such deficient Subscription Services as warranted, Customer will be entitled to terminate the deficient Subscription Services under Section 10.5 below and recover a pro-rata portion of the fees paid to Apttus for such deficient Subscription Services, and such refund will be Customer’s sole remedy and Apttus’ entire liability.
7.3 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, APTTUS AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. APTTUS DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. APTTUS DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT APTTUS WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. APTTUS DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Apttus. Subject to this Agreement, Apttus will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Apttus in a monetary settlement of such Claim. Apttus’ obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Apttus products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Apttus may, in its discretion and at no cost to Customer (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Apttus by a third party alleging that (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Apttus products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly gives written notice of the Claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION) AND FOR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERROR OR INTERRUPTION OF USE, INACCURACY, OR LOSS OF BUSINESS OR DATA; (ii) LOST PROFITS OR LOSS OF USE; (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order and continue for the Subscription Term specified therein. At the end of the then current Subscription Term, the Subscription Services described in the active Order(s) will auto-renew for a period of three (3) years, unless (i) Customer notifies Apttus at least forty-five (45) days in advance of their intent not to renew; (ii) the Subscription Services are no longer commercially available; or (iii) renewal Order(s) have already been negotiated. The Subscription Services fees for each auto-renew term will increase by five percent (5%) over the prior Subscription Term.
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Apttus provided software related to the Subscription Services. This includes managed packages or other software that has been installed in Customer environments.
10.4 Return of Customer Data. Upon request by Customer made within thirty (30) days of the effective date of termination or expiration of this Agreement, Apttus will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. Customer will pay service fees for any additional data migration activities. After such thirty (30) day period, Apttus will have no obligation to maintain or provide any Customer Data and thereafter may delete all Customer Data in its systems or otherwise in its possession or under its control.
10.5 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Apttus will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.6 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Apttus prior to the effective date of termination.
10.7 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, and 11.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3 Notices. Apttus may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Apttus’ account information. All legal or dispute-related notices will be sent by first class mail or express delivery, if to Apttus, attention Chief Legal Officer, at 1400 Fashion Island Blvd., Suite 100, San Mateo, California 94404, U.S.A., and if to Customer, to Customer's account representative and address on record in Apttus’ account information or such other addresses as either party may designate in writing from time to time.
11.4 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than twenty (20) days, either party may cancel unperformed Subscription Services upon written notice.
11.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
11.9 Venue. The state and federal courts located in San Francisco County, California will 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.
11.10 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.11 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Orders executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Subscription Services Agreement (“Agreement”), including any applicable addenda, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Apttus”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICES IF YOU ARE AN APTTUS COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF APTTUS.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period. Other Apttus subscription modules are available, subject to separate terms and conditions.
Apttus may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives Apttus written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Subscription Services Agreement applies to Customer’s use of the online subscription services, including [associated offline components] related online training and packaged technical support services provided or managed by Apttus (collectively, the “Subscription Services”) that are listed in one or more Apttus subscription-based ordering documents signed by the parties (each, an “Order”). This Master Subscription Services Agreement and all executed Orders, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order (the “Subscription Term”), Apttus will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; and (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written public comments made by Apttus with respect to future functionality or features.
1.3 Subscription Services Users. Subject to the limits set forth in the Order, Customer may authorize Customer’s employees and contractors, acting on its behalf, to use the Subscription Services and will supply (or request Apttus to supply) user identifications and passwords for such individuals (“Users”). Customer may increase the number of Users pursuant to an add-on Order(s). Unless otherwise specified in the relevant Order, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Apttus will make the Subscription Services available in accordance with the Apttus Service Level Agreement further described at http://legal.apttus.com/ (“SLA”).
1.5 Technical Support. Apttus will provide trouble handling and break/fix support services in accordance with the level of technical support indicated in the Order, and as further described at: http://legal.apttus.com/.
1.6 Professional Services. If Customer wishes to purchase implementation or other professional services from Apttus relating to the Subscription Services (“Professional Services”), the parties will mutually execute one or more separate Apttus based-statement of work (“SOW”). Any Professional Services to be provided to Customer by Apttus will be governed by the Apttus Professional Services Terms found at: http://legal.apttus.com/. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Apttus promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Apttus reserves the right to audit Customer’s use of the Subscription Services no more than once each calendar year to ensure compliance with the terms of the Agreement. In the event that Apttus discovers that Customer’s actual usage of the Subscription Services exceeds the amount of Users set forth in the applicable Order, then, without limiting Apttus’ other rights and remedies under this Agreement, Apttus will be entitled to issue an invoice to Customer for such additional Users.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; or (vii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers, some of which may be listed on Apttus' website, offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to customers’ use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Apttus is not responsible for, and does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Apttus as "certified," "validated" or otherwise, and Customer will be solely responsible for obtaining any necessary rights or licenses thereto. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
3. Security and Data Protection.
3.1 Protection of Customer Data. Apttus has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data, as further described in the Data Security Exhibit found at http://legal.apttus.com/. Apttus will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Apttus, including the Internet.
3.2 Use of Services Attributes and Anonymized Data. Apttus may collect, use and disclose quantitative and other data related to Customer’s use of the Subscription Services (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. Services Attributes will be considered in the aggregate form only, and will not identify Customer or its Users (“Anonymized Data”). Apttus retains all rights, title and interest in and to Anonymized Data.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Orders hereunder. Except as otherwise provided in an Order, all fees are quoted in United States dollars. Except as expressly set forth otherwise in the Agreement (i) fees are based on number of User subscriptions purchased in the relevant Order, and fees will not be prorated if actual usage is less than the number of Users set forth in the relevant Order; and (ii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order will not offset any fees due under any other Order.
4.2 Invoicing & Payment. Except as set forth in Section 2.1, fees for the Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order. All amounts are due and payable thirty (30) days from the invoice date. All payments made under this Agreement will be in United States dollars.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, Fees set forth in an Order or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Apttus is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice. Customer is responsible for paying all Taxes, excluding only taxes based on Apttus’ income and personal property. If Apttus has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Apttus with a valid tax exemption certificate authorized by the appropriate taxing authority. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Apttus of such location(s) if different than Customer’s business address listed in the applicable Order.
4.5 Suspension of Subscription Services. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Apttus reserves the right to suspend the Subscription Services, without liability to Customer, until such amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Apttus utilizes (A) the Apttus.com name, the Apttus.com logo, the Apttus.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Apttus Technology"); and (ii) that the Apttus Technology is covered by intellectual property rights owned or licensed by Apttus (collectively, "Apttus IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Apttus Technology or Apttus IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Apttus Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including Apttus database field, available to anyone other than Users, or use the Subscription Services for the benefit of any unrelated third party; (iv) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) use or access the Subscription Services or Apttus Technology to build or support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Apttus and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Subscription Services, the Apttus Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranty Remedies; Warranties Disclaimer.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Apttus represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) perform in all material respects in accordance with the Apttus online user guide for the Subscription Services, accessible via the Apttus Customer Success Portal, as updated from time to time.
7.2 Warranty Remedies. Customer will notify Apttus of any warranty deficiencies under Section 7.1 within 30 days of the performance of the relevant Subscription Services, and Customer's exclusive remedy will be the re-performance of the deficient Subscription Services. If Apttus cannot re-perform such deficient Subscription Services as warranted, Customer will be entitled to terminate the deficient Subscription Services under Section 10.5 above and recover a pro-rata portion of the fees paid to Apttus for such deficient Subscription Services, and such refund will be Customer’s sole remedy and Apttus’ entire liability.
7.3 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, APTTUS AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. APTTUS DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. APTTUS DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT APTTUS WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. APTTUS DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Apttus. Subject to this Agreement, Apttus will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Apttus in a monetary settlement of such Claim. Apttus’ obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Apttus products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Apttus may, in its discretion and at no cost to Customer (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Apttus by a third party alleging that (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Apttus products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly gives written notice of the Claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION) AND FOR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL HAVE WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERROR OR INTERRUPTION OF USE, INACCURACY, OR LOSS OF BUSINESS OR DATA; (ii) LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order and continue for the Subscription Term specified therein. At the end of the then current Subscription Term, the Subscription Services described in the active Order(s) will auto-renew for a period of three (3) years, unless (i) Customer notifies Apttus at least forty-five (45) days in advance of their intent not to renew; (ii) the Subscription Services are no longer commercially available; or (iii) renewal Order(s) have already been negotiated. The Subscription Services fees for each auto-renew term will increase by five percent (5%) over the prior Subscription Term.
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Apttus provided software related to the Subscription Services. This includes managed packages or other software that has been installed in Customer environments.
10.4 Return of Customer Data. Upon request by Customer made within thirty (30) days of the effective date of termination or expiration of this Agreement, Apttus will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. Customer will pay service fees for any data migration activities. After such thirty (30) day period, Apttus will have no obligation to maintain or provide any Customer Data and thereafter may delete all Customer Data in its systems or otherwise in its possession or under its control.
10.5 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Apttus will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.6 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Apttus prior to the effective date of termination.
10.7 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, 11 and 12.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3 Notices. Apttus may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Apttus’ account information. All legal or dispute-related notices will be sent by first class mail or express delivery, if to Apttus, attention Chief Legal Officer, at 1400 Fashion Island Blvd., Suite 100, San Mateo, California 94404, U.S.A., and if to Customer, to Customer's account representative and address on record in Apttus’ account information or such other addresses as either party may designate in writing from time to time.
11.4 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than twenty (20) days, either party may cancel unperformed Subscription Services upon written notice.
11.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
11.9 Venue. The state and federal courts located in San Francisco County, California will 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.
11.10 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.11 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Orders executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
This Master Subscription Services Agreement (“Agreement”), including any applicable addenda, annexes, exhibits, or other similar agreements, constitute a legal agreement between you, your employer, or other entity on whose behalf you enter into this Agreement (the “Customer”), and Apttus Corporation (“Apttus”).
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO DOWNLOADING AND/OR USING THE SUBSCRIPTION SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER, OR DOWNLOADING, INSTALLING AND/OR USING THE SUBSCRIPTION SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SUBSCRIPTION SERVICES IF YOU ARE AN APTTUS COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF APTTUS.
If you receive a free trial, the Agreement will also govern your use of the Subscription Services during the trial period. Other Apttus subscription modules are available, subject to separate terms and conditions.
Apttus may amend this Agreement from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor or designated contact shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective thirty (30) days after such notice (the “Proposed Amendment Date”) unless Customer first gives Apttus written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue in its existing form, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Subscription Services following the Proposed Amendment Date will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Subscription Services.
1.1 Scope. This Master Subscription Services Agreement applies to Customer’s use of the online subscription services, including [associated offline components] related online training and packaged technical support services provided or managed by Apttus (collectively, the “Subscription Services”) that are listed in one or more Apttus subscription-based ordering documents signed by the parties (each, an “Order”). This Master Subscription Services Agreement and all executed Orders, including any addenda and exhibits, are collectively referred to as the “Agreement.” All capitalized terms not defined herein will have the meanings attributed to them in the Order.
1.2 Provision of Subscription Services. During the period of time beginning on the applicable Subscription Start Date and ending on the Subscription End Date, as set forth in the Order (the “Subscription Term”), Apttus will (i) make the Subscription Services available to Customer for access and use solely for Customer’s internal business purposes in accordance with the terms and conditions set forth in this Agreement; and (ii) provide the Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Customer agrees that its purchase of the Subscription Services is not contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written public comments made by Apttus with respect to future functionality or features.
1.3 Subscription Services Users. Subject to the limits set forth in the Order, Customer may authorize Customer’s employees and contractors, acting on its behalf, to use the Subscription Services and will supply (or request Apttus to supply) user identifications and passwords for such individuals (“Users”). Customer may increase the number of Users pursuant to an add-on Order(s). Unless otherwise specified in the relevant Order, the term of the additional User subscriptions will be coterminous with the expiration of the then current Subscription Term.
1.4 Service Level Agreement. Apttus will make the Subscription Services available in accordance with the Apttus Service Level Agreement further described at http://legal.apttus.com/ (“SLA”).
1.5 Technical Support. Apttus will provide trouble handling and break/fix support services in accordance with the level of technical support indicated in the Order, and as further described at: http://legal.apttus.com/.
1.6 Professional Services. If Customer wishes to purchase implementation or other professional services from Apttus relating to the Subscription Services (“Professional Services”), the parties will mutually execute one or more separate Apttus based-statement of work (“SOW”). Any Professional Services to be provided to Customer by Apttus will be governed by the Apttus Professional Services Terms found at: http://legal.apttus.com/. Professional Services are separate and apart from the Subscription Services, and neither party’s obligations in connection with the Subscription Services are dependent in any way on any Professional Services. Training services purchased via Order or SOW will be considered Professional Services.
2. Use of the Subscription Services.
2.1 Customer Responsibilities. Customer is responsible for all User activities and User accounts. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data or information submitted by Customer to the Subscription Services (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Subscription Services, and notify Apttus promptly of any such unauthorized access or use; (iii) comply with all applicable local, state, federal, and foreign laws in using the Subscription Services; and (iv) use the Subscription Services only in accordance with the Agreement. Apttus reserves the right to audit Customer’s use of the Subscription Services no more than once each calendar year to ensure compliance with the terms of the Agreement. In the event that Apttus discovers that Customer’s actual usage of the Subscription Services exceeds the amount of Users set forth in the applicable Order, then, without limiting Apttus’ other rights and remedies under this Agreement, Apttus will be entitled to issue an invoice to Customer for such additional Users.
2.2 Use Guidelines. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Subscription Services available to any third party, other than as contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Subscription Services or the data contained therein; (vi) attempt to gain unauthorized access to the Subscription Services or related systems or networks; or (vii) use the Subscription Services in excess of the usage limitations set forth in the applicable Order. User subscriptions are for individual Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who no longer require ongoing use of the Subscription Services. At all times, Customer remains responsible for Users and their use of the Subscription Services in accordance with the terms of the Agreement. A breach of the Agreement by any User will be considered a breach by Customer hereunder.
2.3 Third-Party Providers. Certain third-party providers, some of which may be listed on Apttus' website, offer products and services related to the Subscription Services, including implementation, customization and other consulting services related to customers’ use of the Subscription Services and software, applications (both offline and online), and software-as-a-service offerings that work in conjunction with, or may be integrated with the Subscription Services, such as CRM applications. Apttus is not responsible for, and does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by Apttus as "certified," "validated" or otherwise, and Customer will be solely responsible for obtaining any necessary rights or licenses thereto. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
3. Security and Data Protection.
3.1 Protection of Customer Data. Apttus has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data, as further described in the Data Security Exhibit found at http://legal.apttus.com/. Apttus will not be responsible for loss of data processed, stored or transmitted on systems or networks not owned or operated by Apttus, including the Internet.
3.2 Use of Services Attributes and Anonymized Data. Apttus may collect, use and disclose quantitative and other data related to Customer’s use of the Subscription Services (“Services Attributes”) for industry benchmarking, analytics, marketing, and other business purposes. Services Attributes will be considered in the aggregate form only, and will not identify Customer or its Users (“Anonymized Data”). Apttus retains all rights, title and interest in and to Anonymized Data.
4. Fees & Payment.
4.1 Fees. Customer will pay all fees specified in all Orders hereunder. Except as otherwise provided in an Order, all fees are quoted in United States dollars. Except as expressly set forth otherwise in the Agreement (i) fees are based on number of User subscriptions purchased in the relevant Order, and fees will not be prorated if actual usage is less than the number of Users set forth in the relevant Order; and (ii) are non-cancellable and non-refundable. Any fees paid pursuant to an Order will not offset any fees due under any other Order.
4.2 Invoicing & Payment. Except as set forth in Section 2.1, fees for the Subscription Services will be invoiced annually in advance and otherwise in accordance with the Order. All amounts are due and payable thirty (30) days from the invoice date. All payments made under this Agreement will be in United States dollars.
4.3 Overdue Payments. Unpaid invoices not the subject of a written good faith dispute are subject to a finance charge at the rate of one percent (1%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, plus all reasonable expenses of collection.
4.4 Taxes. Unless explicitly set forth otherwise, Fees set forth in an Order or SOW do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). In the event that Apttus is legally obligated to collect Taxes, such taxes will be set forth in the applicable invoice. Customer is responsible for paying all Taxes, excluding only taxes based on Apttus’ income and personal property. If Apttus has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Apttus with a valid tax exemption certificate authorized by the appropriate taxing authority. Where Taxes are based upon the location(s) receiving the benefit of the Subscription Service, Customer has an ongoing obligation to notify Apttus of such location(s) if different than Customer’s business address listed in the applicable Order.
4.5 Suspension of Subscription Services. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Apttus reserves the right to suspend the Subscription Services, without liability to Customer, until such amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Customer acknowledges (i) that in providing the Subscription Services, Apttus utilizes (A) the Apttus.com name, the Apttus.com logo, the Apttus.com domain name, the product and service names associated with the Subscription Services, and other trademarks and service marks; (B) certain audio and visual information, documents, software and other works of authorship; and (C) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "Apttus Technology"); and (ii) that the Apttus Technology is covered by intellectual property rights owned or licensed by Apttus (collectively, "Apttus IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the Apttus Technology or Apttus IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
5.2 Restrictions. Customer will not, and will ensure that its Users do not, directly or indirectly, (i) modify, copy, translate or create derivative works based on the Subscription Services or Apttus Technology; (ii) remove any proprietary notices or labels from the Subscription Services; (iii) make the Subscription Services, including Apttus database field, available to anyone other than Users, or use the Subscription Services for the benefit of any unrelated third party; (iv) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Subscription Services or any software, documentation or data related to or provided with the Subscription Services; (vi) use or access the Subscription Services or Apttus Technology to build or support, and/or assist a third party in building or supporting, competitive products or services, or similar ideas, features, functions or graphics of the Subscription Services; or (vii) include the Subscription Services in a service bureau or outsourcing offering.
5.3 Customer Data. As between Apttus and Customer, all Customer Data is owned by Customer. Customer Data is considered Confidential Information and shall be used solely as expressly permitted in the Agreement.
6. Confidentiality.
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Subscription Services, the Apttus Technology, business plans, technology and technical information, screen and product designs, interoperability of the Subscription Services with third-party products and software, and business processes. Confidential Information will 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Non-Disclosure and Use Restrictions. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. If the Receiving Party is required by law or court order to disclose Confidential Information, it will give prior written notice to the Disclosing Party (to the extent legally permitted) and reasonable assistance at the Disclosing Party’s cost to contest the disclosure.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event will either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7. Warranties; Warranty Remedies; Warranties Disclaimer.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Apttus represents and warrants that the Subscription Services will (i) be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (ii) perform in all material respects in accordance with the Apttus online user guide for the Subscription Services, accessible via the Apttus Customer Success Portal, as updated from time to time.
7.2 Warranty Remedies. Customer will notify Apttus of any warranty deficiencies under Section 7.1 within 30 days of the performance of the relevant Subscription Services, and Customer's exclusive remedy will be the re-performance of the deficient Subscription Services. If Apttus cannot re-perform such deficient Subscription Services as warranted, Customer will be entitled to terminate the deficient Subscription Services under Section 10.5 above and recover a pro-rata portion of the fees paid to Apttus for such deficient Subscription Services, and such refund will be Customer’s sole remedy and Apttus’ entire liability.
7.3 Warranties Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1 ABOVE AND IN THE SLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, APTTUS AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. APTTUS DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SUBSCRIPTION SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SUBSCRIPTION SERVICES. APTTUS DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE SUBSCRIPTION SERVICES OR THAT APTTUS WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. APTTUS DISCLAIMS ALL FAILURES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET.
8. Mutual Indemnification.
8.1 Indemnification by Apttus. Subject to this Agreement, Apttus will (i) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Subscription Services as contemplated hereunder directly infringes the intellectual property rights of such third party, and (ii) pay (a) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (b) those damages agreed to by Apttus in a monetary settlement of such Claim. Apttus’ obligations to defend or indemnify will not apply to the extent that a Claim is based on (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Apttus products or services; or (III) any use of the Subscription Services not in compliance with this Agreement. In the event of a Claim, Apttus may, in its discretion and at no cost to Customer (A) modify the Subscription Services so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Subscription Services in accordance with this Agreement, or (C) terminate the subscription for the infringing Subscription Services and refund to Customer any prepaid fees for the remainder of the Subscription Term.
8.2 Indemnification by Customer. Subject to this Agreement, Customer will (i) defend, or at its option settle, any Claim made or brought against Apttus by a third party alleging that (I) Customer Data, Customer’s or a third party’s technology, software, materials, data or business processes; (II) a combination of the Subscription Services with non-Apttus products or services; or (III) Customer’s use of the Subscription Services, other than as authorized in this Agreement, violates applicable law or regulations or infringes the intellectual property rights of, or has otherwise harmed, a third party; and (ii) pay (a) any final judgment or award directly resulting from such Claim, or (b) or those damages agreed to in a monetary settlement of such Claim.
8.3 Procedure. As a condition to the indemnifying party’s obligations under this Section 8, the party seeking indemnification must (a) promptly gives written notice of the Claim to the indemnifying party; (b) gives the indemnifying party sole control of the defense and settlement of the Claim (provided that indemnifying party may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (c) provides to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance. Notwithstanding the foregoing, the indemnified party will have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at the indemnified party’s expense.
9. Limitation of Liability.
9.1 Limitation of Liability. EXCEPT FOR A PARTY’S LIABILITY ARISING FROM SECTION 8 (MUTUAL INDEMNIFICATION) AND FOR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.2 Exclusion of Consequential and Related Damages. NO PARTY WILL HAVE WILL BE LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE STRICT LIABILITY OR OTHER THEORY, FOR ANY (i) ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA; (ii) LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (iii) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; OR (iv) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10. Term & Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and ends on the date that all User subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order and continue for the Subscription Term specified therein. At the end of the then current Subscription Term, the Subscription Services described in the active Order(s) will auto-renew for a period of three (3) years, unless (i) Customer notifies Apttus at least forty-five (45) days in advance of their intent not to renew; (ii) the Subscription Services are no longer commercially available; or (iii) renewal Order(s) have already been negotiated. The Subscription Services fees for each auto-renew term will increase by five percent (5%) over the prior Subscription Term.
10.3 Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete from all Customer desktop, mobile, server, web and other environments, any Apttus provided software related to the Subscription Services. This includes managed packages or other software that has been installed in Customer environments.
10.4 Return of Customer Data. Upon request by Customer made within thirty (30) days of the effective date of termination or expiration of this Agreement, Apttus will make available to Customer for download a file of Customer Data in comma separated value (.csv) format. Customer will pay service fees for any data migration activities. After such thirty (30) day period, Apttus will have no obligation to maintain or provide any Customer Data and thereafter may delete all Customer Data in its systems or otherwise in its possession or under its control.
10.5 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, Apttus will refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
10.6 Outstanding Fees. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Apttus prior to the effective date of termination.
10.7 Surviving Provisions. The following provisions will survive any termination or expiration of this Agreement: Sections 5, 6, 7, 8, 9, 10, 11 and 12.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
11.3 Notices. Apttus may give general notices for Subscription Services applicable to all customers by means of a notice on the Subscription Services web portal. Specific notices applicable to Users of the Subscription Services, technical support, system security and other account notices will be given by electronic mail to Customer's e-mail address on record in Apttus’ account information. All legal or dispute-related notices will be sent by first class mail or express delivery, if to Apttus, attention Chief Legal Officer, at 1400 Fashion Island Blvd., Suite 100, San Mateo, California 94404, U.S.A., and if to Customer, to Customer's account representative and address on record in Apttus’ account information or such other addresses as either party may designate in writing from time to time.
11.4 Force Majeure. Neither party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than twenty (20) days, either party may cancel unperformed Subscription Services upon written notice.
11.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will 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.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 will remain in effect.
11.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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 (provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement) by providing the non-assigning party with prompt written notice of assignment. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Governing Law. This Agreement will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
11.9 Venue. The state and federal courts located in San Francisco County, California will 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.
11.10 Export Control Laws. The use and delivery of the Subscription Services and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party will comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Subscription Services under a United States distribution license and restrictions on re-export or use to facilitate transactions with embargoed individuals or companies must be complied with.
11.11 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Orders executed hereunder, constitute the entire agreement between the parties, and supersede 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order executed hereunder, the terms of this Agreement will prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
These APTTUS Terms of Use (“Terms” or “Agreement”), including any applicable Addendums, Annexes, Exhibits, etc., constitute a legal agreement between you or your employer or other entity on whose behalf you enter into this Agreement (the “Customer”) and APTTUS Corporation (“APTTUS”).
YOU MUST READ AND AGREE TO THESE TERMS PRIOR TO DOWNLOADING AND/OR USING THE SERVICE. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER FORM, OR DOWNLOADING, INSTALLING AND/OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SERVICE IF YOU ARE AN APTTUS COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF APTTUS.
If you register for a Free Trial, the Terms will also govern your use of the Service during the trial period. Other APTTUS subscription modules are available, subject to separate terms and conditions.
APTTUS may amend these Terms from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives APTTUS written notice of rejection of the amendment. In the event of such rejection, these Terms will continue under their original provisions, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. These Terms may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
1.1. “Affiliate” means any legal entity in which Customer, directly or indirectly controls more than 50% of the voting rights or shares. Any such legal entity shall be considered an Affiliate for only such time as such interest is maintained.
1.2. “APTTUS Database Field” refers to and means a designated storage area within the Service
1.3. “Customer Data” means all electronic data or information submitted by Customer to the Service.
1.4. “Effective Date” means the date that Customer signs the applicable Order Form.
1.5. “Free Trial” means a no-cost trial or evaluation of the Service for which Customer may register with APTTUS via Order Form or through an application marketplace . Additional terms and conditions applicable to a Free Trial may appear on the trial registration web page, which are incorporated into this Agreement by reference and are legally binding.
1.6. “Order Form” means the ordering documents (including those associated with online commerce) representing a purchase of the Service that are executed hereunder and that specify, among other things, the number of subscriptions ordered, the Subscription Term, applicable fees, and applicable level of Technical Support.
1.7. “Purchased Service” means Service that Customer purchases under an Order Form, as distinguished from that provided pursuant to a Free Trial.
1.8. “Service” means the online, Web-based service, including associated offline components, provided or managed by APTTUS under an Order Form pursuant to a Free Trial or a Purchased Service.
1.9. “Service Attributes” means Service usage data related to Customer’s account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
1.10. “Subscription Term” means the period of time between the applicable Subscription Start Date and Subscription End Date as set forth in an Order Form. The Subscription Term for Free Trials is the earlier of (a) 30 days from the date of Service installation, or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service.
1.11. “Technical Support” means the trouble handling and break/fix support services provided by APTTUS, as such services are further described at: http://legal.apttus.com/legal.html#apttus-technical-support.
1.12. “User Guide” means the online user guide for the Service, accessible via the APTTUS Customer Success Portal, as updated from time to time.
1.13. “Users” means Customer’s and its Affiliates employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by APTTUS at Customer’s request).
1.14. “X-Author” means an APTTUS offering that, if purchased by Customer, is part of the Service and enables Users to add and update CRM records from certain spreadsheet applications.
2. Service.
2.1. Provision of Service. APTTUS shall make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement and all Order Forms executed hereunder. During the term of this Agreement, (i) the Service shall perform in accordance with the User Guide, and (ii) the functionality of the Service will not be decreased from that available as of the Effective Date. Customer agrees that its purchase of subscriptions is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by APTTUS with respect to future functionality or features.
2.2. Additional Users. Additional User licenses may be provisioned subject to execution of add on Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions shall be coterminous with the expiration of the then current Subscription Term.
2.3. Minimum System Requirements and Third Party Components. Customer recognizes and agrees that in order to utilize the Service (i) certain minimum system requirements exist; and (ii) certain other third-party software or applications (e.g. CRM application) may need to be acquired and/or licensed directly by Customer or from APTTUS. APTTUS is not responsible for, nor does it warrant the performance of such third-party components.
2.4 Service Level Agreement. APTTUS warrants the availability of the Service in accordance with the Service Level Agreement further described at: http://legal.apttus.com/legal.html#apttus-service-level-agreement ("SLA").
2.5 Professional Services. Any professional services to be provided to Customer by APTTUS will be governed by the APTTUS Professional Services Delivery Terms, which are found at: http://legal.apttus.com/legal.html#apttus-professional-services-terms-of-use.
2.6 Free Trial. Free Trials may only be installed in sandbox environments and used solely for evaluation purposes and not for the maintenance or processing of any data on which Customer would typically rely in a production capable environment. Customer Data, and any customizations made to the Service by or for Customer during a Free Trial will be lost at the end of the Free Trial. Customer engages in a Free Trial at its discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) APTTUS DISCLAIMS ANY LIABILITY FOR ISSUES THAT MAY ARISE DURING OR AS A RESULT OF CUSTOMER’S USE OF THE SERVICE DURING A FREE TRIAL, and (ii) either party may terminate a Free Trial at any time with or without cause, immediately upon notice to the other party. The parties may extend the Subscription End Date set forth in the respective Free Trial Order Form upon mutual written agreement (email being sufficient).
3. Use of the Service.
3.1. APTTUS Responsibilities. APTTUS shall use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, as further set forth and described in the SLA. As part of the Service, APTTUS agrees to provide Customer with Technical Support consistent with such support level purchased by Customer. Standard Technical Support is included in Customer's subscriptions at no additional charge.
3.2. Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify APTTUS promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Service.
3.3. Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) knowingly send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) knowingly send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vi) attempt to gain unauthorized access to the Service or its related systems or networks: or (vii) use the Service in excess of the licensed quantity as set forth in the applicable Order Form. User subscriptions are for named Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who have terminated an employment or some other prior relationship with Customer, or no longer require ongoing use of the Service. At all times Customer remains responsible for Affiliates’ use of the Service and related User Guide. A breach of the Agreement by a Customer Affiliate shall be considered a breach by Customer hereunder.
3.4. Third-Party Providers. Certain third-party providers, some of which may be listed on pages within APTTUS’ website, offer products and services related to the Service, including implementation, customization and other consulting services related to customers’ use of the Service and applications (both offline and online) that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality within the user interface of the Service through use of the Service’s application programming interface. APTTUS does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by APTTUS as “certified,” “validated” or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
4.Security and Data Privacy.
4.1. Protection of Customer Data. APTTUS has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data. APTTUS shall not be responsible for loss of data transmitted on networks not owned or operated by APTTUS, including the Internet.
4.2. Use of Service Attributes and Anonymized Data. APTTUS may process, use and share certain Service Attributes for internal business purposes, for example, to support proper functioning of the Service, to provide Customer with support services and to investigate fraud, abuse or violations of this Agreement. APTTUS may also process, share, reproduce, or otherwise use Service Attributes and Customer Data in the form of Anonymized Data in any way, in APTTUS’ sole discretion. “Anonymized Data” means Service Attributes and/or Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.
5. Fees & Payment.
5.1. User Fees. Customer shall pay all fees specified in all executed Order Forms hereunder. Except as otherwise provided, all fees are quoted in United States dollars. Fees are based on the number of User subscriptions purchased in the relevant Order Form, not the extent of actual usage. Except as otherwise provided, fees are non-refundable, and the number of subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Order Form.
5.2. Invoicing & Payment. License fees for the term of the Service will be invoiced annually in advance and otherwise in accordance with the terms set forth in the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net 30 days from the invoice date. Unless otherwise stated in the Order Form, all payments made under this Agreement shall be in United States dollars. Invoices submitted via email should be sent in individual attachments (one invoice per attachment) in either PDF or TIFF formats to an email address provided by Customer.
5.3. Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at APTTUS’ discretion, late charges at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.4. Suspension of Service. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, APTTUS reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
5.5 Taxes. Unless otherwise stated, APTTUS’ fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes“). Customer is responsible for paying all Taxes, excluding only taxes based on APTTUS’ income. If APTTUS has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides APTTUS with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Proprietary Rights.
6.1.Reservation of Rights. Customer acknowledges (a) that in providing the Service, APTTUS utilizes (i) the apttus.com name, the apttus.com logo, the apttus.com domain name, the product and service names associated with the Service, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “APTTUS Technology“) and (b) that the APTTUS Technology is covered by intellectual property rights owned or licensed by APTTUS (collectively, “APTTUS IP Rights“). Other than as expressly set forth in this Agreement, no license or other rights in or to the APTTUS Technology or APTTUS IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
6.2. License Grant. APTTUS grants Customer and its Users a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service for its internal business purposes and otherwise in accordance with the terms of this Agreement. APTTUS reserves the right, with reasonable notice to Customer, to audit Customer’s use of the Service no more than once each calendar year to ensure compliance with the terms of the Agreement.
6.3. Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or APTTUS Technology; (ii) allow non-Users to access information contained inside an APTTUS Database Field without sufficient APTTUS licenses; (iii) access the Service via any sort of ‘bot’ or ‘script’; or (iv) disassemble, reverse engineer, or decompile the Service or APTTUS Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.
6.4. Customer Data. As between APTTUS and Customer, all Customer Data is owned exclusively by Customer. Customer Data shall be considered Confidential Information subject to the terms of this Agreement.
7. Confidentiality.
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party“) disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, the APTTUS Technology, business and marketing plans, technology and technical information, screen and product designs interoperability of the Service with third-party products and software, and business processes. Confidential Information (except for 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2. Non-Disclosure and Use Restrictions. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
7.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party shall, except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information. The Receiving Party shall be responsible for any use or disclosure of Confidential Information by any of its, and its Affiliates’, employees, contractors and/or agents.
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
8. Warranties & Disclaimers.
8.1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. APTTUS represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it owns or otherwise has sufficient rights to the Service and the APTTUS Technology to grant the rights and licenses granted herein; and (iii) the Service and APTTUS Technology do not infringe any intellectual property rights of any third party.
8.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, APTTUS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. APTTUS HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. Mutual Indemnification.
9.1. Indemnification by APTTUS. Subject to this Agreement, APTTUS shall (a) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party, and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by APTTUS in a monetary settlement of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to APTTUS; (b) gives APTTUS sole control of the defense and settlement of the Claim (provided that APTTUS may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to APTTUS, at APTTUS’ cost, all reasonable assistance. Customer will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
9.2. Indemnification by Customer. Subject to this Agreement, Customer shall (a) defend, or at its option settle, any Claim made or brought against APTTUS by a third party alleging that the Customer Data or Customer’s unlawful use of the Service (as opposed to the Service itself) infringes the intellectual property rights of, or has otherwise harmed, a third party and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by Customer in a monetary settlement of such Claim; provided, that APTTUS (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases APTTUS of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance. APTTUS will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
10. Limitation of Liability.
10.1. Limitation of Liability. EXCEPT FOR A VIOLATION OF SECTION 5 (FEES AND PAYMENTS), SECTION 6 (PROPRIETARY RIGHTS), SECTION 7 (CONFIDENTIALITY), OR LIABILITY ARISING FROM SECTION 9 (MUTUAL INDEMNIFICATION), NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
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, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11. Term & Termination.
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2. Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified therein. At the end of the initial Subscription Term, the Service(s) described in the active Order Form(s) will auto-renew for a period of 3 years, unless (i) Customer notifies APTTUS at least forty-five (45) days in advance of their intent not to renew; or (ii) renewal Order Form(s) have already been negotiated. The Subscription fees for the auto-renew term will increase by 5% over prior Subscription Term.
11.3. Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete, from all Customer desktop, mobile, server, web and other environments, any APTTUS provided software related to the Service. This includes managed packages or other software that has been installed in Customer environments.
11.4. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, APTTUS shall refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
11.5. Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to APTTUS prior to the effective date of termination.
11.6. Return of Customer Data. Upon request by Customer made within 30 days of the effective date of termination, APTTUS will make available to Customer for download a file of Customer Data in comma separated value (.csv) format at no charge. Customer shall pay service fees for any additional data migration activities. After such 30-day period, APTTUS shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
11.7. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 5, 6 (excluding Section 6.2), 7, 8, 9, 10, 11 and 12.
12. General Provisions.
12.1. Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.3. Notices. All notices under this Agreement 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) the second business day after sending by email.
12.4. 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.
12.5. 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.
12.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. Attorneys’ Fees. In any legal action or proceeding arising from, related to, or brought to enforce, construe, interpret, rescind or cancel this Agreement or any of its provisions (including any Order Forms executed hereunder), the prevailing party shall be entitled to recover from the other party reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, in addition to any other relief to which it may be entitled.
12.8. Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
12.9. Venue. The state and federal courts located in San Francisco County, California 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.
12.10. Export Control Laws. The license and delivery of the Service and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Service under a United States distribution license and restrictions on reexport or use to facilitate transactions with embargoed individuals or companies must be complied with.
12.11. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement shall prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Installation and/or use of third party software applications may require the User to accept certain “click-through” terms. Such terms flow directly between the User and such third party.
These APTTUS Terms of Use (“Terms” or “Agreement”), including any applicable Addendums, Annexes, Exhibits, etc., constitute a legal agreement between you or your employer or other entity on whose behalf you enter into this Agreement (the “Customer”) and APTTUS Corporation (“APTTUS”).
YOU MUST READ AND AGREE TO THESE TERMS PRIOR TO DOWNLOADING AND/OR USING THE SERVICE. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER FORM, OR DOWNLOADING, INSTALLING AND/OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SERVICE IF YOU ARE AN APTTUS COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF APTTUS.
If you register for a Free Trial, the Terms will also govern your use of the Service during the trial period. Other APTTUS subscription modules are available, subject to separate terms and conditions.
APTTUS may amend these Terms from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives APTTUS written notice of rejection of the amendment. In the event of such rejection, these Terms will continue under their original provisions, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. These Terms may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
1.1. “Affiliate” means any legal entity in which Customer, directly or indirectly controls more than 50% of the voting rights or shares. Any such legal entity shall be considered an Affiliate for only such time as such interest is maintained.
1.2. “APTTUS Database Field” refers to and means a designated storage area within the Service
1.3. “Customer Data” means all electronic data or information submitted by Customer to the Service.
1.4. “Effective Date” means the date that Customer signs the applicable Order Form.
1.5. “Free Trial” means a no-cost trial or evaluation of the Service for which Customer may register with APTTUS via Order Form or through an application marketplace . Additional terms and conditions applicable to a Free Trial may appear on the trial registration web page, which are incorporated into this Agreement by reference and are legally binding.
1.6. “Order Form” means the ordering documents (including those associated with online commerce) representing a purchase of the Service that are executed hereunder and that specify, among other things, the number of subscriptions ordered, the Subscription Term, applicable fees, and applicable level of Technical Support.
1.7. “Purchased Service” means Service that Customer purchases under an Order Form, as distinguished from that provided pursuant to a Free Trial.
1.8. “Service” means the online, Web-based service, including associated offline components, provided or managed by APTTUS under an Order Form pursuant to a Free Trial or a Purchased Service.
1.9. “Service Attributes” means Service usage data related to Customer’s account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
1.10. “Subscription Term” means the period of time between the applicable Subscription Start Date and Subscription End Date as set forth in an Order Form. The Subscription Term for Free Trials is the earlier of (a) 30 days from the date of Service installation, or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service.
1.11. “Technical Support” means the trouble handling and break/fix support services provided by APTTUS, as such services are further described at: http://legal.apttus.com/legal.html#apttus-technical-support.
1.12. “User Guide” means the online user guide for the Service, accessible via the APTTUS Customer Success Portal, as updated from time to time.
1.13. “Users” means Customer’s and its Affiliates employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by APTTUS at Customer’s request).
1.14. “X-Author” means an APTTUS offering that, if purchased by Customer, is part of the Service and enables Users to add and update CRM records from certain spreadsheet applications.
2. Service.
2.1. Provision of Service. APTTUS shall make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement and all Order Forms executed hereunder. During the term of this Agreement, (i) the Service shall perform in accordance with the User Guide, and (ii) the functionality of the Service will not be decreased from that available as of the Effective Date. Customer agrees that its purchase of subscriptions is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by APTTUS with respect to future functionality or features.
2.2. Additional Users. Additional User licenses may be provisioned subject to execution of add on Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions shall be coterminous with the expiration of the then current Subscription Term.
2.3. Minimum System Requirements and Third Party Components. Customer recognizes and agrees that in order to utilize the Service (i) certain minimum system requirements exist; and (ii) certain other third-party software or applications (e.g. CRM application) may need to be acquired and/or licensed directly by Customer or from APTTUS. APTTUS is not responsible for, nor does it warrant the performance of such third-party components.
2.4 Service Level Agreement. APTTUS warrants the availability of the Service in accordance with the Service Level Agreement further described at: http://legal.apttus.com/legal.html#apttus-service-level-agreement ("SLA").
2.5 Professional Services. Any professional services to be provided to Customer by APTTUS will be governed by the APTTUS Professional Services Terms of Use, which are found at: http://legal.apttus.com/legal.html#apttus-professional-services-terms-of-use.
2.6 Free Trial. Free Trials may only be installed in sandbox environments and used solely for evaluation purposes and not for the maintenance or processing of any data on which Customer would typically rely in a production capable environment. Customer Data, and any customizations made to the Service by or for Customer during a Free Trial will be lost at the end of the Free Trial. Customer engages in a Free Trial at its discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) APTTUS DISCLAIMS ANY LIABILITY FOR ISSUES THAT MAY ARISE DURING OR AS A RESULT OF CUSTOMER’S USE OF THE SERVICE DURING A FREE TRIAL, and (ii) either party may terminate a Free Trial at any time with or without cause, immediately upon notice to the other party. The parties may extend the Subscription End Date set forth in the respective Free Trial Order Form upon mutual written agreement (email being sufficient).
3. Use of the Service.
3.1. APTTUS Responsibilities. APTTUS shall use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, as further set forth and described in the SLA. As part of the Service, APTTUS agrees to provide Customer with Technical Support consistent with such support level purchased by Customer. Standard Technical Support is included in Customer's subscriptions at no additional charge.
3.2. Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify APTTUS promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Service.
3.3. Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) knowingly send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) knowingly send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vi) attempt to gain unauthorized access to the Service or its related systems or networks: or (vii) use the Service in excess of the licensed quantity as set forth in the applicable Order Form. User subscriptions are for named Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who have terminated an employment or some other prior relationship with Customer, or no longer require ongoing use of the Service. At all times Customer remains responsible for Affiliates’ use of the Service and related User Guide. A breach of the Agreement by a Customer Affiliate shall be considered a breach by Customer hereunder.
3.4. Third-Party Providers. Certain third-party providers, some of which may be listed on pages within APTTUS’ website, offer products and services related to the Service, including implementation, customization and other consulting services related to customers’ use of the Service and applications (both offline and online) that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality within the user interface of the Service through use of the Service’s application programming interface. APTTUS does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by APTTUS as “certified,” “validated” or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
4.Security and Data Privacy.
4.1. Protection of Customer Data. APTTUS has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data. APTTUS shall not be responsible for loss of data transmitted on networks not owned or operated by APTTUS, including the Internet.
4.2. Use of Service Attributes and Anonymized Data. APTTUS may process, use and share certain Service Attributes for internal business purposes, for example, to support proper functioning of the Service, to provide Customer with support services and to investigate fraud, abuse or violations of this Agreement. APTTUS may also process, share, reproduce, or otherwise use Service Attributes and Customer Data in the form of Anonymized Data in any way, in APTTUS’ sole discretion. “Anonymized Data” means Service Attributes and/or Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.
5. Fees & Payment.
5.1. User Fees. Customer shall pay all fees specified in all executed Order Forms hereunder. Except as otherwise provided, all fees are quoted in United States dollars. Fees are based on the number of User subscriptions purchased in the relevant Order Form, not the extent of actual usage. Except as otherwise provided, fees are non-refundable, and the number of subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Order Form.
5.2. Invoicing & Payment. License fees for the term of the Service will be invoiced annually in advance and otherwise in accordance with the terms set forth in the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net 30 days from the invoice date. Unless otherwise stated in the Order Form, all payments made under this Agreement shall be in United States dollars. Invoices submitted via email should be sent in individual attachments (one invoice per attachment) in either PDF or TIFF formats to an email address provided by Customer.
5.3. Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at APTTUS’ discretion, late charges at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.4. Suspension of Service. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, APTTUS reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
5.5 Taxes. Unless otherwise stated, APTTUS’ fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes“). Customer is responsible for paying all Taxes, excluding only taxes based on APTTUS’ income. If APTTUS has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides APTTUS with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Proprietary Rights.
6.1.Reservation of Rights. Customer acknowledges (a) that in providing the Service, APTTUS utilizes (i) the apttus.com name, the apttus.com logo, the apttus.com domain name, the product and service names associated with the Service, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “APTTUS Technology“) and (b) that the APTTUS Technology is covered by intellectual property rights owned or licensed by APTTUS (collectively, “APTTUS IP Rights“). Other than as expressly set forth in this Agreement, no license or other rights in or to the APTTUS Technology or APTTUS IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
6.2. License Grant. APTTUS grants Customer and its Users a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service for its internal business purposes and otherwise in accordance with the terms of this Agreement. APTTUS reserves the right, with reasonable notice to Customer, to audit Customer’s use of the Service no more than once each calendar year to ensure compliance with the terms of the Agreement.
6.3. Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or APTTUS Technology; (ii) allow non-Users to access information contained inside an APTTUS Database Field without sufficient APTTUS licenses; (iii) access the Service via any sort of ‘bot’ or ‘script’; or (iv) disassemble, reverse engineer, or decompile the Service or APTTUS Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.
6.4. Customer Data. As between APTTUS and Customer, all Customer Data is owned exclusively by Customer. Customer Data shall be considered Confidential Information subject to the terms of this Agreement.
7. Confidentiality.
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party“) disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, the APTTUS Technology, business and marketing plans, technology and technical information, screen and product designs interoperability of the Service with third-party products and software, and business processes. Confidential Information (except for 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2. Non-Disclosure and Use Restrictions. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
7.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party shall, except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information. The Receiving Party shall be responsible for any use or disclosure of Confidential Information by any of its, and its Affiliates’, employees, contractors and/or agents.
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
8. Warranties & Disclaimers.
8.1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. APTTUS represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it owns or otherwise has sufficient rights to the Service and the APTTUS Technology to grant the rights and licenses granted herein; and (iii) the Service and APTTUS Technology do not infringe any intellectual property rights of any third party.
8.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, APTTUS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. APTTUS HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. Mutual Indemnification.
9.1. Indemnification by APTTUS. Subject to this Agreement, APTTUS shall (a) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party, and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by APTTUS in a monetary settlement of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to APTTUS; (b) gives APTTUS sole control of the defense and settlement of the Claim (provided that APTTUS may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to APTTUS, at APTTUS’ cost, all reasonable assistance. Customer will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
9.2. Indemnification by Customer. Subject to this Agreement, Customer shall (a) defend, or at its option settle, any Claim made or brought against APTTUS by a third party alleging that the Customer Data or Customer’s unlawful use of the Service (as opposed to the Service itself) infringes the intellectual property rights of, or has otherwise harmed, a third party and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by Customer in a monetary settlement of such Claim; provided, that APTTUS (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases APTTUS of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance. APTTUS will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
10. Limitation of Liability.
10.1. Limitation of Liability. EXCEPT FOR A VIOLATION OF SECTION 5 (FEES AND PAYMENTS), SECTION 6 (PROPRIETARY RIGHTS), SECTION 7 (CONFIDENTIALITY), OR LIABILITY ARISING FROM SECTION 9 (MUTUAL INDEMNIFICATION), NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
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, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11. Term & Termination.
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2. Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified therein. At the end of the initial Subscription Term, the Service(s) described in the active Order Form(s) will auto-renew for a period of 3 years, unless (i) Customer notifies APTTUS at least forty-five (45) days in advance of their intent not to renew; or (ii) renewal Order Form(s) have already been negotiated. The Subscription fees for the auto-renew term will increase by 5% over prior Subscription Term.
11.3. Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete, from all Customer desktop, mobile, server, web and other environments, any APTTUS provided software related to the Service. This includes managed packages or other software that has been installed in Customer environments.
11.4. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, APTTUS shall refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
11.5. Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to APTTUS prior to the effective date of termination.
11.6. Return of Customer Data. Upon request by Customer made within 30 days of the effective date of termination, APTTUS will make available to Customer for download a file of Customer Data in comma separated value (.csv) format at no charge. Customer shall pay service fees for any additional data migration activities. After such 30-day period, APTTUS shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
11.7. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 5, 6 (excluding Section 6.2), 7, 8, 9, 10, 11 and 12.
12. General Provisions.
12.1. Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.3. Notices. All notices under this Agreement 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) the second business day after sending by email.
12.4. 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.
12.5. 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.
12.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. Attorneys’ Fees. In any legal action or proceeding arising from, related to, or brought to enforce, construe, interpret, rescind or cancel this Agreement or any of its provisions (including any Order Forms executed hereunder), the prevailing party shall be entitled to recover from the other party reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, in addition to any other relief to which it may be entitled.
12.8. Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
12.9. Venue. The state and federal courts located in San Francisco County, California 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.
12.10. Export Control Laws. The license and delivery of the Service and technology is subject to the jurisdiction of the United States, including regulations issued by the Department of Commerce, Department of State, the International Trade Administration, and the Bureau of Export Administration. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement. Customer understands that it will receive the Service under a United States distribution license and restrictions on reexport or use to facilitate transactions with embargoed individuals or companies must be complied with.
12.11. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement shall prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Installation and/or use of third party software applications may require the User to accept certain “click-through” terms. Such terms flow directly between the User and such third party.
These APTTUS Terms of Use (“Terms” or “Agreement”), including any applicable Addendums, Annexes, Exhibits, etc., constitute a legal agreement between you or your employer or other entity on whose behalf you enter into this Agreement (the “Customer”) and Apttus Corporation (“APTTUS”).
YOU MUST READ AND AGREE TO THESE TERMS PRIOR TO DOWNLOADING AND/OR USING THE SERVICE. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED ORDER FORM, OR DOWNLOADING, INSTALLING AND/OR USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS ON BEHALF OF CUSTOMER.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AS THE CUSTOMER.
YOU MAY NOT ACCESS THE SERVICE IF YOU ARE AN APTTUS COMPETITOR, EXCEPT WITH THE PRIOR WRITTEN CONSENT OF APTTUS.
If you register for a Free Trial, the Terms will also govern your use of the Service during the trial period. Other Apttus subscription modules are available, subject to separate terms and conditions.
APTTUS may amend these Terms from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s project sponsor shall be deemed sufficient in this case). Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”) unless Customer first gives APTTUS written notice of rejection of the amendment. In the event of such rejection, these Terms will continue under their original provisions, and the amendment will become effective at the start of Customer’s next Subscription Term following the Proposed Amendment Date. Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. These Terms may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
1.1. “Affiliate” means any legal entity in which Customer, directly or indirectly controls more than 50% of the voting rights or shares. Any such legal entity shall be considered an Affiliate for only such time as such interest is maintained.
1.2. “APTTUS Database Field” refers to and means a designated storage area within the Service
1.3. “Customer Data” means all electronic data or information submitted by Customer to the Service.
1.4. “Effective Date” means the date that Customer signed the applicable Order Form.
1.5. “Free Trial” means a no-cost trial or evaluation of the Service for which Customer may register with APTTUS via Order Form or through any relevant application marketplace (such as Salesforce.com AppExchange, https://appexchange.salesforce.com/). Additional terms and conditions applicable to a Free Trial may appear on the trial registration web page, which are incorporated into this Agreement by reference and are legally binding.
1.6. “Order Form” means the ordering documents (including those associated with online commerce) representing a purchase of the Service that are executed hereunder and that specify, among other things, the number of subscriptions ordered, the Subscription Term, applicable fees, and applicable level of Technical Support.
1.7. “Purchased Service” means Service that Customer purchases under an Order Form, as distinguished from that provided pursuant to a Free Trial.
1.8. “Service” means the online, Web-based service, including associated offline components, provided or managed by APTTUS under an Order Form pursuant to a Free Trial or a Purchased Service.
1.9. “Service Attributes” means Service usage data related to Customer’s account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.
1.10. “Subscription Term” means the period of time between the applicable Subscription Start Date and Subscription End Date as set forth in an Order Form. The Subscription Term for Free Trials is the earlier of (a) 30 days from the date of Service installation, or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service.
1.11. “Technical Support” means the trouble handling and break/fix support services provided by APTTUS, as such services are further described at: http://legal.apttus.com/legal.html#apttus-technical-support.
1.12. “User Guide” means the online user guide for the Service, accessible via the APTTUS Customer Success Portal, as updated from time to time.
1.13. “Users” means Customer’s and its Affiliates employees, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Customer (or by APTTUS at Customer’s request).
1.14. “X-Author” means an APTTUS offering that, if purchased by Customer, is part of the Service and enables Users to add and update CRM records from certain spreadsheet applications.
2. Service.
2.1. Provision of Service. APTTUS shall make the Service available to Customer pursuant to the terms and conditions set forth in this Agreement and all Order Forms executed hereunder. During the term of this Agreement, (i) the Service shall perform in accordance with the User Guide, and (ii) the functionality of the Service will not be decreased from that available as of the Effective Date. Customer agrees that its purchase of subscriptions is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by APTTUS with respect to future functionality or features.
2.2. Additional Users. Additional User licenses may be provisioned subject to execution of add on Order Form(s). Unless otherwise specified in the relevant Order Form, the term of the additional User subscriptions shall be coterminous with the expiration of the then current Subscription Term.
2.3. Minimum System Requirements and Third Party Components. Customer recognizes and agrees that in order to utilize the Service (i) certain minimum system requirements exist; and (ii) certain other third-party software or applications (e.g. CRM application) may need to be acquired and/or licensed directly by Customer or from APTTUS. APTTUS is not responsible for, nor does it warrant the performance of such third-party components.
2.4 Service Level Agreement. APTTUS warrants the availability of the Service in accordance with the relevant Service Level Agreement, which is found at: http://legal.apttus.com/legal.html#apttus-service-level-agreement.
2.5 Professional Services. Any professional services to be provided to Customer by APTTUS will be governed by the APTTUS Professional Services Terms of Use, which are found at: http://legal.apttus.com/legal.html#apttus-professional-services-terms-of-use.
2.6 X-Author. Customer may not use X-Author in conjunction with third-party products that are competitive with the Service without prior written consent of APTTUS. X-Author may not function in conjunction with such third-party products. If Customer purchases X-Author on a standalone basis, no license or other access to the salesforce.com or Microsoft Azure platform will be included with the X-Author license purchased from APTTUS. Customer must in that case have an appropriate API-enabled license to the objects that are intended to be accessed with X-Author. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IF CUSTOMER CHOOSES TO USE X-AUTHOR APPLICATION TEMPLATES CREATED BY A THIRD PARTY, IN NO EVENT SHALL APTTUS HAVE ANY LIABILITY TO CUSTOMER OR ANY USER FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2.7 Free Trial. Free Trials may only be installed in sandbox environments and used solely for evaluation purposes and not for the maintenance or processing of any data on which Customer would typically rely in a production capable environment. Customer Data, and any customizations made to the Service by or for Customer during a Free Trial will be lost at the end of the Free Trial. Customer engages in a Free Trial at its discretion. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) APTTUS DISCLAIMS ANY LIABILITY FOR ISSUES THAT MAY ARISE DURING OR AS A RESULT OF CUSTOMER’S USE OF THE SERVICE DURING A FREE TRIAL, and (ii) either party may terminate a Free Trial at any time.
3. Use of the Service.
3.1. APTTUS Responsibilities. APTTUS shall use commercially reasonable efforts to make the Service generally available 24 hours a day, 7 days a week, as further set forth and described in the applicable Service Level Agreement. As part of the Service, APTTUS agrees to provide Customer with Technical Support consistent with such support level purchased by Customer.
3.2. Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify APTTUS promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Service.
3.3. Use Guidelines. Subject to Customer’s compliance with all the terms and conditions of the Agreement, and subject to the termination provisions of the Agreement, APTTUS grants to Customer a non-exclusive, non-transferable right during the Subscription Term to use the Service solely for its internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) knowingly send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) knowingly send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iv) knowingly send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (vi) attempt to gain unauthorized access to the Service or its related systems or networks: or (vii) use the Service in excess of the licensed quantity as set forth in the applicable Order Form. User subscriptions are for named Users and cannot be shared or used by more than one User but may be reassigned from time to time to new Users replacing former Users who have terminated an employment or some other prior relationship with Customer, or no longer require ongoing use of the Service. At all times Customer remains responsible for Affiliates’ use of the Service and related User Guide. A breach of the Agreement by a Customer Affiliate shall be considered a breach by Customer hereunder.
3.4. Third-Party Providers. Certain third-party providers, some of which may be listed on pages within APTTUS’ website, offer products and services related to the Service, including implementation, customization and other consulting services related to customers’ use of the Service and applications (both offline and online) that work in conjunction with the Service, such as by exchanging data with the Service or by offering additional functionality within the user interface of the Service through use of the Service’s application programming interface. APTTUS does not warrant any such third-party providers or any of their products or services, whether or not such products or services are designated by APTTUS as “certified,” “validated” or otherwise. Any exchange of data or other interaction between Customer and a third-party provider, and any purchase by Customer of any product or service offered by such third-party provider, is solely between Customer and such third-party provider.
4.Security and Data Privacy.
4.1. Protection of Customer Data. APTTUS has adopted and will maintain industry-standard administrative, physical, and technical safeguards designed to protect the security, privacy and integrity of Customer Data. APTTUS shall not be responsible for loss of data transmitted on networks not owned or operated by APTTUS, including the Internet.
4.2. Use of Service Attributes and Anonymized Data. APTTUS may process, use and share certain Service Attributes for internal business purposes, for example, to support proper functioning of the Service, to provide Customer with support services and to investigate fraud, abuse or violations of this Agreement. APTTUS may also process, share, reproduce, or otherwise use Service Attributes and Customer Data in the form of Anonymized Data in any way, in Apttus’ sole discretion. “Anonymized Data” means Service Attributes and/or Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.
5. Fees & Payment.
5.1. User Fees. Customer shall pay all fees specified in all executed Order Forms hereunder. Except as otherwise provided, all fees are quoted in United States dollars. Fees are based on the number of User subscriptions purchased in the relevant Order Form, not the extent of actual usage. Except as otherwise provided, fees are non-refundable, and the number of subscriptions purchased cannot be decreased during the relevant Subscription Term stated on the Order Form.
5.2. Invoicing & Payment. License fees for the term of the Service will be invoiced annually in advance and otherwise in accordance with the terms set forth in the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net 30 days from the invoice date. Unless otherwise stated in the Order Form, all payments made under this Agreement shall be in United States dollars. Invoices submitted via email should be sent in individual attachments (one invoice per attachment) in either PDF or TIFF formats to an email address provided by Customer.
5.3. Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at APTTUS’ discretion, late charges at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
5.4. Suspension of Service. If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, APTTUS reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
5.5 Taxes. Unless otherwise stated, APTTUS’ fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes“). Customer is responsible for paying all Taxes, excluding only taxes based on APTTUS’ income. If APTTUS has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides APTTUS with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. Proprietary Rights.
6.1.Reservation of Rights. Customer acknowledges (a) that in providing the Service, APTTUS utilizes (i) the apttus.com name, the apttus.com logo, the apttus.com domain name, the product and service names associated with the Service, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; and (iii) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, “APTTUS Technology“) and (b) that the APTTUS Technology is covered by intellectual property rights owned or licensed by APTTUS (collectively, “APTTUS IP Rights“). Other than as expressly set forth in this Agreement, no license or other rights in or to the APTTUS Technology or APTTUS IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
6.2. License Grant. APTTUS grants Customer and its Users a worldwide, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right to access and use the Service in accordance with the terms of this Agreement. APTTUS reserves the right, with reasonable notice to Customer, to audit Customer’s use of the Service no more than once each calendar year to ensure compliance with the terms of the Agreement.
6.3. Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Service or APTTUS Technology; (ii) allow non-Users to access information contained inside an APTTUS Database Field without sufficient APTTUS licenses; (iii) access the Service via any sort of ‘bot’ or ‘script’; or (iv) disassemble, reverse engineer, or decompile the Service or APTTUS Technology, or access it in order to (A) build a competitive product or service, (B) build a product or service using similar ideas, features, functions or graphics of the Service, or (C) copy any ideas, features, functions or graphics of the Service.
6.4. Customer Data. As between APTTUS and Customer, all Customer Data is owned exclusively by Customer. Customer Data shall be considered Confidential Information subject to the terms of this Agreement.
7. Confidentiality.
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party“) disclosed 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, the APTTUS Technology, business and marketing plans, technology and technical information, screen and product designs interoperability of the Service with third-party products and software, and business processes. Confidential Information (except for 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) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
7.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
7.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. The Receiving Party shall, except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information. The Receiving Party shall be responsible for any use or disclosure of Confidential Information by any of its, and its Affiliates’, employees, contractors and/or agents.
7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 7, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
8. Warranties & Disclaimers.
8.1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. APTTUS represents and warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) it owns or otherwise has sufficient rights to the Service and the APTTUS Technology to grant the rights and licenses granted herein; and (iii) the Service and APTTUS Technology do not infringe any intellectual property rights of any third party.
8.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, APTTUS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. APTTUS HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. Mutual Indemnification.
9.1. Indemnification by APTTUS. Subject to this Agreement, APTTUS shall (a) defend, or at its option settle, any claim, demand, action or legal proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party, and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by APTTUS in a monetary settlement of such Claim; provided, that Customer (a) promptly gives written notice of the Claim to APTTUS; (b) gives APTTUS sole control of the defense and settlement of the Claim (provided that APTTUS may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to APTTUS, at APTTUS’ cost, all reasonable assistance. Customer will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
9.2. Indemnification by Customer. Subject to this Agreement, Customer shall (a) defend, or at its option settle, any Claim made or brought against APTTUS by a third party alleging that the Customer Data or Customer’s unlawful use of the Service (as opposed to the Service itself) infringes the intellectual property rights of, or has otherwise harmed, a third party and (b) pay (i) any final judgment or award directly resulting from such Claim to the extent such judgment or award is based upon such alleged infringement or (ii) those damages agreed to by Customer in a monetary settlement of such Claim; provided, that APTTUS (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases APTTUS of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance. APTTUS will have the right to participate in the defense, including retention of and/or advice of separate counsel, at its own expense.
10. Limitation of Liability.
10.1. Limitation of Liability. EXCEPT FOR A VIOLATION OF SECTION 5 (FEES AND PAYMENTS), SECTION 6 (PROPRIETARY RIGHTS), SECTION 7 (CONFIDENTIALITY), OR LIABILITY ARISING FROM SECTION 9 (MUTUAL INDEMNIFICATION), NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
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, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11. Term & Termination.
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2. Term of User Subscriptions. User subscriptions commence on the start date specified in the relevant Order Form and continue for the Subscription Term specified therein. At the end of the initial Subscription Term, the Service(s) described in the active Order Form(s) will auto-renew for a period of 3 years, unless (i) Customer notifies APTTUS at least forty-five (45) days in advance of their intent not to renew; or (ii) renewal Order Form(s) have already been negotiated. The Subscription fees for the auto-renew term will increase by 5% over prior Subscription Term.
11.3. Uninstall and Delete. Upon termination or expiration of this Agreement, Customer will uninstall and delete, from all Customer desktop, mobile, server, web and other environments, any APTTUS provided software related to the Service. This includes managed packages or other software that has been installed in Customer environments.
11.4. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such 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. Upon any termination for cause by Customer, APTTUS shall refund Customer any prepaid fees for the remainder of the Subscription Term after the date of termination.
11.5. Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to APTTUS prior to the effective date of termination.
11.6. Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 5, 6 (excluding Section 6.2), 7, 8, 9, 10, 11 and 12.
12. General Provisions.
12.1. Relationship of the Parties. This Agreement does not create a franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.3. Notices. All notices under this Agreement 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) the second business day after sending by email.
12.4. 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.
12.5. 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.
12.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement together with all rights and obligations hereunder, without consent of the other party, 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. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7. Attorneys’ Fees. In any legal action or proceeding arising from, related to, or brought to enforce, construe, interpret, rescind or cancel this Agreement or any of its provisions (including any Order Forms executed hereunder), the prevailing party shall be entitled to recover from the other party reasonable attorneys’ fees and costs incurred in connection with such action or proceeding, in addition to any other relief to which it may be entitled.
12.8. Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules.
12.9. Venue. The state and federal courts located in San Francisco County, California 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.
12.10. Export Control Laws. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
12.11. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede 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 signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement shall prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.