Contracts
- Master Services Agreement (MSA)
- Salesforce.com Platform Addendum
- Professional Services Terms
- Service Level Agreement
- Technical Support
- Application Management Support Terms & Conditions
- X-Author Terms
- Data Security Exhibit
- End User License Agreement
- Education Packaged Offerings
- Apttus Education Services Terms
- CLM Essentials Accelerator SOW
- CLM Quick Start Accelerator SOW
- TAM Terms & Conditions
- Product Specific Terms
- Professional Services On Demand Terms & Conditions
- CPQ Essentials Accelerator SOW
- CPQ Essentials Accelerator Plus SOW
- CLM Accelerator Add-On Amendment
- Conga Sign Essentials/Essentials Plus Accelerator Services SOW
- Conga Assist Terms & Conditions
- Conga Architect Terms & Conditions
- CLM Generator Accelerator SOW
- CLM Initiator Accelerator SOW
- CLM Business or Enterprise Edition Accelerator SOW
- CLM Generator and CLM Initiator Accelerator Add-On Amendment
- Global Customer Travel & Expense Policy
- CLM Solution Assurance SOW
- CPQ Program Architect SOW
Master Services Agreement (MSA)
Effective February 11, 2021
DownloadTable of Contents
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.
Effective January 7, 2021 to February 11, 2021
DownloadTable of Contents
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.
Effective December 3, 2019 to January 7, 2021
DownloadTable of Contents
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.
Effective August 26, 2019 to December 3, 2019
DownloadTable of Contents
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.
Effective March 7, 2019 to August 26, 2019
DownloadTable of Contents
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.
Effective January 31, 2019 to March 7, 2019
DownloadTable of Contents
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.
Effective July 7, 2017 to January 31, 2019
DownloadTable of Contents
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.
Effective July 7, 2017 to July 7, 2017
DownloadSummary of changes
capitalization of APTTUS; general clean-up; removal of XA provisions
Table of Contents
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.
Effective February 9, 2017 to July 7, 2017
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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.
Salesforce.com Platform Addendum
Effective February 11, 2021
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This Salesforce.com Platform Addendum (“Addendum”) constitutes a legal agreement between you or your employer or other entity on whose behalf you enter into this Addendum (the “Customer”) and Apttus Corporation (“Conga”). Notwithstanding the foregoing, Annex A below constitutes a legal agreement between you and salesforce.com, inc. ("SFDC").
IF YOU ARE AGREEING TO THIS ADDENDUM 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.
This Addendum applies in addition to the master subscription services agreement (whether formed by separately executed agreement or by acceptance of the Conga Master Services Agreement located at http://legal.apttus.com/#master-services-agreement) in place between Customer and Conga (“Agreement”). In the event of any conflict between this Addendum and the Agreement, this Addendum shall prevail to the extent of any inconsistency. In the event of any conflict between this Addendum and any Order executed hereunder, this Addendum shall prevail to the extent of any inconsistency.
Conga may amend this Addendum 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 Conga written notice of rejection of the amendment. In the event of such rejection, this Addendum 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 Subscription Services following the effective date of an amendment will confirm Customer’s consent thereto. This Addendum may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
“SFDC Platform Service Agreement” means the terms governing Customer’s access to the salesforce.com platform in using the Subscription Services, as set forth in Annex A below.
2. Applicability. This Addendum applies, in addition to the Agreement, if Customer is accessing and using the Subscription Services on the SFDC Platform.
3. SFDC’s Role. Customer recognizes and agrees that: (a) the Subscription Services are hosted on a technology platform called salesforce.com, provided by SFDC; and (b) to access and use the Subscription Services, Customer agrees to comply with the SFDC Platform Service Agreement (see Annex A).
5. Admin User subscriptions provided by Conga may be used only to configure and administer the Conga Subscription Services.
6. Sandbox subscriptions provided by Conga are (i) for testing and development of the Subscription Services, not for production use; and (ii) may solely be used with Conga objects, and the following salesforce.com objects: Contacts, Accounts, Events, Tasks, and Calendars. In the event Customer violates the restrictions associated with the Sandbox subscription contracted pursuant to this Order, Customer is responsible for any additional fees and/or penalties associated with such violation, including those that may be assessed by SFDC.
Annex A – SFDC Platform Service Agreement
THESE TERMS APPLY SOLELY TO YOUR ACCESS TO THE PLATFORM AS PERTAINS TO YOUR USE OF THE CONGA SUBSCRIPTION SERVICES. THEY DO NOT SUPERCEDE OR ALTER ANY TERMS YOU MAY HAVE IN PLACE DIRECTLY WITH SFDC.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Combined Solution” means the combination of the Reseller Application and the Platform.
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means Apttus Corporation.
“Reseller Application” means the Reseller quote-to-cash modules to which You subscribe.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
1. Use of Platform.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
(c) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
(d) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
(e) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service 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 that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
(f) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
2. Audit. SFDC may audit use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to SFDC, within thirty (30) days of SFDCs notice of the audit results the difference between the price charged by SFDC to Reseller for the applicable User subscription and SFDCs then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
3. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
4. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
5. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
6. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
7. Suspension and Termination; Platform Continuity.
(a) Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) subject to Section 7(b) below, the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
(b) Platform Continuity. In the event that SFDC terminates this Agreement because Reseller has become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or Reseller ceases business in the ordinary course (any of which would be an “End of Operations Event” or “EoOE” for Reseller), SFDC will continue to make the Platform available to You and SFDC will take no self-initiated steps to (a) remove the Reseller Application from SFDC’s systems or (b) block Your access to the Reseller Application via the Platform for the remainder of Your current order term with Reseller (the “Transition Period”), provided that: (i) You pay to SFDC in advance all fees owed to SFDC with respect to the Platform pursuant to a separate order between You and SFDC; (ii) You remain in compliance with this Platform Agreement; (iii) You are legally entitled to continued access to and use of the Reseller Application in combination with the Platform after an EoOE through a written agreement with Reseller or its successor in interest in anticipation of or as a consequence of any EoOE; and (iv) there are no legal impediments to SFDC continuing to host the Reseller Application (as reasonably determined by SFDC). Notwithstanding SFDC’s continued provision of the Platform, You understand and acknowledge that SFDC shall not be responsible for providing (other than hosting “as is” subject to the above conditions), updating, maintaining or supporting the Reseller Application during the Transition Period.
8. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU 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 YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Third Party Beneficiary. Notwithstanding anything to the contrary in the Agreement, SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
11. Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC (“Directly Purchased SFDC Services“). To the extent Your Data is submitted by You to Directly Purchased SFDC Services and is resident on the Directly Purchased SFDC Services, Your Data will constitute “Customer Data” as defined in the agreement between SFDC and You with respect to the Directly Purchased SFDC Services.
Effective March 10, 2020 to February 11, 2021
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This Salesforce.com Platform Addendum (“Addendum”) constitutes a legal agreement between you or your employer or other entity on whose behalf you enter into this Addendum (the “Customer”) and Apttus Corporation (“Apttus”). Notwithstanding the foregoing, Annex A below constitutes a legal agreement between you and salesforce.com, inc. ("SFDC").
IF YOU ARE AGREEING TO THIS ADDENDUM 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.
This Addendum applies in addition to the master subscription services agreement (whether formed by separately executed agreement or by acceptance of the Apttus Master Subscription Services Agreement located at http://legal.apttus.com/#apttus-master-subscription-services-agreement) in place between Customer and Apttus (“Agreement”). In the event of any conflict between this Addendum and the Agreement, this Addendum shall prevail to the extent of any inconsistency. In the event of any conflict between this Addendum and any Order executed hereunder, this Addendum shall prevail to the extent of any inconsistency.
Apttus may amend this Addendum 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, this Addendum 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 Subscription Services following the effective date of an amendment will confirm Customer’s consent thereto. This Addendum may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
“SFDC Platform Service Agreement” means the terms governing Customer’s access to the salesforce.com platform in using the Subscription Services, as set forth in Annex A below.
2. Applicability. This Addendum applies, in addition to the Agreement, if Customer is accessing and using the Subscription Services on the SFDC Platform.
3. SFDC’s Role. Customer recognizes and agrees that: (a) the Subscription Services are hosted on a technology platform called salesforce.com, provided by SFDC; and (b) to access and use the Subscription Services, Customer agrees to comply with the SFDC Platform Service Agreement (see Annex A).
5. Admin User subscriptions provided by Apttus may be used only to configure and administer the Apttus Subscription Services.
6. Sandbox subscriptions provided by Apttus are (i) for testing and development of the Subscription Services, not for production use; and (ii) may solely be used with Apttus objects, and the following salesforce.com objects: Contacts, Accounts, Events, Tasks, and Calendars. In the event Customer violates the restrictions associated with the Sandbox subscription contracted pursuant to this Order, Customer is responsible for any additional fees and/or penalties associated with such violation, including those that may be assessed by SFDC.
Annex A – SFDC Platform Service Agreement
THESE TERMS APPLY SOLELY TO YOUR ACCESS TO THE PLATFORM AS PERTAINS TO YOUR USE OF THE APTTUS SUBSCRIPTION SERVICES. THEY DO NOT SUPERCEDE OR ALTER ANY TERMS YOU MAY HAVE IN PLACE DIRECTLY WITH SFDC.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Combined Solution” means the combination of the Reseller Application and the Platform.
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means Apttus Corporation.
“Reseller Application” means the Reseller quote-to-cash modules to which You subscribe.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
1. Use of Platform.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
(c) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
(d) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
(e) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service 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 that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
(f) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
2. Audit. SFDC may audit use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to SFDC, within thirty (30) days of SFDCs notice of the audit results the difference between the price charged by SFDC to Reseller for the applicable User subscription and SFDCs then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
3. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
4. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
5. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
6. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
7. Suspension and Termination; Platform Continuity.
(a) Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) subject to Section 7(b) below, the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
(b) Platform Continuity. In the event that SFDC terminates this Agreement because Reseller has become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or Reseller ceases business in the ordinary course (any of which would be an “End of Operations Event” or “EoOE” for Reseller), SFDC will continue to make the Platform available to You and SFDC will take no self-initiated steps to (a) remove the Reseller Application from SFDC’s systems or (b) block Your access to the Reseller Application via the Platform for the remainder of Your current order term with Reseller (the “Transition Period”), provided that: (i) You pay to SFDC in advance all fees owed to SFDC with respect to the Platform pursuant to a separate order between You and SFDC; (ii) You remain in compliance with this Platform Agreement; (iii) You are legally entitled to continued access to and use of the Reseller Application in combination with the Platform after an EoOE through a written agreement with Reseller or its successor in interest in anticipation of or as a consequence of any EoOE; and (iv) there are no legal impediments to SFDC continuing to host the Reseller Application (as reasonably determined by SFDC). Notwithstanding SFDC’s continued provision of the Platform, You understand and acknowledge that SFDC shall not be responsible for providing (other than hosting “as is” subject to the above conditions), updating, maintaining or supporting the Reseller Application during the Transition Period.
8. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU 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 YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Third Party Beneficiary. Notwithstanding anything to the contrary in the Agreement, SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
11. Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC (“Directly Purchased SFDC Services“). To the extent Your Data is submitted by You to Directly Purchased SFDC Services and is resident on the Directly Purchased SFDC Services, Your Data will constitute “Customer Data” as defined in the agreement between SFDC and You with respect to the Directly Purchased SFDC Services.
Effective December 3, 2019 to March 10, 2020
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This Salesforce.com Platform Addendum (“Addendum”) constitutes a legal agreement between you or your employer or other entity on whose behalf you enter into this Addendum (the “Customer”) and Apttus Corporation (“Apttus”).
IF YOU ARE AGREEING TO THIS ADDENDUM 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.
This Addendum applies in addition to the master subscription services agreement (whether formed by separately executed agreement or by acceptance of the Apttus Master Subscription Services Agreement located at http://legal.apttus.com/#apttus-master-subscription-services-agreement) in place between Customer and Apttus (“Agreement”). In the event of any conflict between this Addendum and the Agreement, this Addendum shall prevail to the extent of any inconsistency. In the event of any conflict between this Addendum and any Order executed hereunder, this Addendum shall prevail to the extent of any inconsistency.
Apttus may amend this Addendum 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, this Addendum 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 Subscription Services following the effective date of an amendment will confirm Customer’s consent thereto. This Addendum may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
1.1. “SFDC” means salesforce.com, Inc., a third party.
1.2. “SFDC Platform Service Agreement” means the terms governing Customer’s access to the salesforce.com platform in using the Subscription Services, as set forth in Annex A below.
2. Applicability. This Addendum applies, in addition to the Agreement, if Customer is accessing and using the Subscription Services on the SFDC Platform.
3. SFDC’s Role. Customer recognizes and agrees that: (a) the Subscription Services are hosted on a technology platform called salesforce.com, provided by SFDC; and (b) to access and use the Subscription Services, Customer agrees to comply with the SFDC Platform Service Agreement (see Annex A).
4. As a User of the Subscription Services, Customer may access and use the following SFDC standard objects: Accounts, Activities, Tasks, Calendar, Events, Contacts, Content, Documents, Ideas, and Products. Access and use of any other SFDC objects is subject to the appropriate licensure directly from SFDC.
5. Admin User subscriptions provided by Apttus may be used only to configure and administer the Apttus Subscription Services.
6. Sandbox subscriptions provided by Apttus are (i) for testing and development of the Subscription Services, not for production use; and (ii) may solely be used with Apttus objects, and the following salesforce.com objects: Contacts, Accounts, Events, Tasks, and Calendars. In the event Customer violates the restrictions associated with the Sandbox subscription contracted pursuant to this Order, Customer is responsible for any additional fees and/or penalties associated with such violation, including those that may be assessed by SFDC.
Annex A – SFDC Platform Service Agreement
THESE TERMS APPLY SOLELY TO YOUR ACCESS TO THE PLATFORM AS PERTAINS TO YOUR USE OF THE APTTUS SUBSCRIPTION SERVICES. THEY DO NOT SUPERCEDE OR ALTER ANY TERMS YOU MAY HAVE IN PLACE DIRECTLY WITH SFDC.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Combined Solution” means the combination of the Reseller Application and the Platform.
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means Apttus Corporation.
“Reseller Application” means the Reseller quote-to-cash modules to which You subscribe.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
1. Use of Platform.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
(c) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
(d) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
(e) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service 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 that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
(f) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
2. Audit. SFDC may audit use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to SFDC, within thirty (30) days of SFDCs notice of the audit results the difference between the price charged by SFDC to Reseller for the applicable User subscription and SFDCs then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
3. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
4. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
5. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
6. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
7. Suspension and Termination; Platform Continuity.
(a) Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) subject to Section 7(b) below, the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
(b) Platform Continuity. In the event that SFDC terminates this Agreement because Reseller has become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or Reseller ceases business in the ordinary course (any of which would be an “End of Operations Event” or “EoOE” for Reseller), SFDC will continue to make the Platform available to You and SFDC will take no self-initiated steps to (a) remove the Reseller Application from SFDC’s systems or (b) block Your access to the Reseller Application via the Platform for the remainder of Your current order term with Reseller (the “Transition Period”), provided that: (i) You pay to SFDC in advance all fees owed to SFDC with respect to the Platform pursuant to a separate order between You and SFDC; (ii) You remain in compliance with this Platform Agreement; (iii) You are legally entitled to continued access to and use of the Reseller Application in combination with the Platform after an EoOE through a written agreement with Reseller or its successor in interest in anticipation of or as a consequence of any EoOE; and (iv) there are no legal impediments to SFDC continuing to host the Reseller Application (as reasonably determined by SFDC). Notwithstanding SFDC’s continued provision of the Platform, You understand and acknowledge that SFDC shall not be responsible for providing (other than hosting “as is” subject to the above conditions), updating, maintaining or supporting the Reseller Application during the Transition Period.
8. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU 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 YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Third Party Beneficiary. Notwithstanding anything to the contrary in the Agreement, SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
11. Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC (“Directly Purchased SFDC Services“). To the extent Your Data is submitted by You to Directly Purchased SFDC Services and is resident on the Directly Purchased SFDC Services, Your Data will constitute “Customer Data” as defined in the agreement between SFDC and You with respect to the Directly Purchased SFDC Services.
Effective August 26, 2019 to December 3, 2019
DownloadTable of Contents
This Salesforce.com Platform Addendum (“Addendum”) constitutes a legal agreement between you or your employer or other entity on whose behalf you enter into this Addendum (the “Customer”) and Apttus Corporation (“Apttus”).
IF YOU ARE AGREEING TO THIS ADDENDUM 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.
This Addendum applies in addition to the master subscription services agreement (whether formed by separately executed agreement or by acceptance of the Apttus Master Subscription Services Agreement located at http://legal.apttus.com/#apttus-master-subscription-services-agreement) in place between Customer and Apttus (“Agreement”). In the event of any conflict between this Addendum and the Agreement, this Addendum shall prevail to the extent of any inconsistency. In the event of any conflict between this Addendum and any Order executed hereunder, this Addendum shall prevail to the extent of any inconsistency.
Apttus may amend this Addendum 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, this Addendum 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 Subscription Services following the effective date of an amendment will confirm Customer’s consent thereto. This Addendum may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
1.1. “SFDC” means salesforce.com, Inc., a third party.
1.2. “SFDC Platform Service Agreement” means the terms governing Customer’s access to the salesforce.com platform in using the Subscription Services, as set forth in Annex A below.
2. Applicability. This Addendum applies, in addition to the Agreement, if Customer is accessing and using the Subscription Services on the SFDC Platform.
3. SFDC’s Role. Customer recognizes and agrees that: (a) the Subscription Services are hosted on a technology platform called salesforce.com, provided by SFDC; and (b) to access and use the Subscription Services, Customer agrees to comply with the SFDC Platform Service Agreement (see Annex A).
4. As a User of the Subscription Services, Customer may access and use the following SFDC standard objects: Accounts, Activities, Tasks, Calendar, Events, Contacts, Content, Documents, Ideas, and Products. Access and use of any other SFDC objects is subject to the appropriate licensure directly from SFDC.
5. Admin User subscriptions provided by Apttus may be used only to configure and administer the Apttus Subscription Services.
6. Sandbox subscriptions provided by Apttus are (i) for testing and development of the Subscription Services, not for production use; and (ii) may solely be used with Apttus objects, and the following salesforce.com objects: Contacts, Accounts, Events, Tasks, and Calendars. In the event Customer violates the restrictions associated with the Sandbox subscription contracted pursuant to this Order, Customer is responsible for any additional fees and/or penalties associated with such violation, including those that may be assessed by SFDC.
Annex A – SFDC Platform Service Agreement
THESE TERMS APPLY SOLELY TO YOUR ACCESS TO THE PLATFORM AS PERTAINS TO YOUR USE OF THE APTTUS SUBSCRIPTION SERVICES. THEY DO NOT SUPERCEDE OR ALTER ANY TERMS YOU MAY HAVE IN PLACE DIRECTLY WITH SFDC.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Combined Solution” means the combination of the Reseller Application and the Platform.
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means Apttus Corporation.
“Reseller Application” means the Reseller quote-to-cash modules to which You subscribe.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
1. Use of Platform.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
(c) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
(d) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
(e) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service 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 that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
(f) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
2. Audit. SFDC may audit use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to SFDC, within thirty (30) days of SFDCs notice of the audit results the difference between the price charged by SFDC to Reseller for the applicable User subscription and SFDCs then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
3. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
4. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
5. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
6. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
7. Suspension and Termination; Platform Continuity.
(a) Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) subject to Section 7(b) below, the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
(b) Platform Continuity. In the event that SFDC terminates this Agreement because Reseller has become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or Reseller ceases business in the ordinary course (any of which would be an “End of Operations Event” or “EoOE” for Reseller), SFDC will continue to make the Platform available to You and SFDC will take no self-initiated steps to (a) remove the Reseller Application from SFDC’s systems or (b) block Your access to the Reseller Application via the Platform for the remainder of Your current order term with Reseller (the “Transition Period”), provided that: (i) You pay to SFDC in advance all fees owed to SFDC with respect to the Platform pursuant to a separate order between You and SFDC; (ii) You remain in compliance with this Platform Agreement; (iii) You are legally entitled to continued access to and use of the Reseller Application in combination with the Platform after an EoOE through a written agreement with Reseller or its successor in interest in anticipation of or as a consequence of any EoOE; and (iv) there are no legal impediments to SFDC continuing to host the Reseller Application (as reasonably determined by SFDC). Notwithstanding SFDC’s continued provision of the Platform, You understand and acknowledge that SFDC shall not be responsible for providing (other than hosting “as is” subject to the above conditions), updating, maintaining or supporting the Reseller Application during the Transition Period.
8. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU 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 YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Third Party Beneficiary. Notwithstanding anything to the contrary in the Agreement, SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
11. Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC (“Directly Purchased SFDC Services“). To the extent Your Data is submitted by You to Directly Purchased SFDC Services and is resident on the Directly Purchased SFDC Services, Your Data will constitute “Customer Data” as defined in the agreement between SFDC and You with respect to the Directly Purchased SFDC Services.
Effective November 7, 2017 to August 26, 2019
DownloadSummary of changes
Updated numbering
Table of Contents
This Salesforce.com Platform Addendum (“Addendum”) constitutes a legal agreement between you or your employer or other entity on whose behalf you enter into this Addendum (the “Customer”) and APTTUS Corporation (“APTTUS”).
IF YOU ARE AGREEING TO THIS ADDENDUM 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.
This Addendum applies in addition to the master subscription agreement (whether formed by separately executed agreement or by acceptance of the APTTUS General Terms of Use located at http://legal.apttus.com/legal.html#apttus-general-terms-of-use) in place between Customer and APTTUS (“Agreement”). In the event of any conflict between this Addendum and the Agreement, this Addendum shall prevail to the extent of any inconsistency. In the event of any conflict between this Addendum and any Order Form executed hereunder, this Addendum shall prevail to the extent of any inconsistency.
APTTUS may amend this Addendum 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, this Addendum 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. This Addendum may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
1.1. “SFDC” means salesforce.com, Inc., a third party.
1.2. “SFDC Platform Service Agreement” means the terms governing Customer’s access to the salesforce.com platform in using the Service, as set forth in Annex A below.
2. Applicability. This Addendum applies, in addition to the Agreement, if Customer is accessing and using the Service on the SFDC Platform.
3. SFDC’s Role. Customer recognizes and agrees that: (a) the Service is hosted on a technology platform called salesforce.com, provided by SFDC; and (b) to access and use the Service, Customer agrees to comply with the SFDC Platform Service Agreement (see Annex A).
4. As a User of the Service, Customer may access and use the following SFDC standard Objects: Accounts, Activities, Tasks, Calendar, Events, Contacts, Content, Documents, Ideas, and Products. Access and use of any other SFDC Objects is subject to the appropriate licensure directly from SFDC.
5. Admin User subscriptions provided by APTTUS may be used only to configure and administer the APTTUS Service.
6. Sandbox subscriptions provided by APTTUS are (i) for testing and development of the Service, not for production use; and (ii) may solely be used with APTTUS objects, and the following salesforce.com objects: Contacts, Accounts, Events, Tasks, and Calendars. In the event Customer violates the restrictions associated with the Sandbox subscription contracted pursuant to this Order Form, Customer is responsible for any additional fees and/or penalties associated with such violation, including those that may be assessed by SFDC.
Annex A – SFDC Platform Service Agreement
THESE TERMS APPLY SOLELY TO YOUR ACCESS TO THE PLATFORM AS PERTAINS TO YOUR USE OF THE APTTUS SERVICE. THEY DO NOT SUPERCEDE OR ALTER ANY TERMS YOU MAY HAVE IN PLACE DIRECTLY WITH SFDC.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Combined Solution” means the combination of the Reseller Application and the Platform.
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means APTTUS Corporation.
“Reseller Application” means the Reseller quote-to-cash modules to which You subscribe.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
1. Use of Platform.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
(c) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
(d) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
(e) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service 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 that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
(f) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
2. Audit. SFDC may audit use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to SFDC, within thirty (30) days of SFDCs notice of the audit results the difference between the price charged by SFDC to Reseller for the applicable User subscription and SFDCs then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
3. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
4. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
5. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
6. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
7. Suspension and Termination; Platform Continuity.
(a) Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) subject to Section 7(b) below, the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
(b) Platform Continuity. In the event that SFDC terminates this Agreement because Reseller has become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or Reseller ceases business in the ordinary course (any of which would be an “End of Operations Event” or “EoOE” for Reseller), SFDC will continue to make the Platform available to You and SFDC will take no self-initiated steps to (a) remove the Reseller Application from SFDC’s systems or (b) block Your access to the Reseller Application via the Platform for the remainder of Your current order term with Reseller (the “Transition Period”), provided that: (i) You pay to SFDC in advance all fees owed to SFDC with respect to the Platform pursuant to a separate order between You and SFDC; (ii) You remain in compliance with this Platform Agreement; (iii) You are legally entitled to continued access to and use of the Reseller Application in combination with the Platform after an EoOE through a written agreement with Reseller or its successor in interest in anticipation of or as a consequence of any EoOE; and (iv) there are no legal impediments to SFDC continuing to host the Reseller Application (as reasonably determined by SFDC). Notwithstanding SFDC’s continued provision of the Platform, You understand and acknowledge that SFDC shall not be responsible for providing (other than hosting “as is” subject to the above conditions), updating, maintaining or supporting the Reseller Application during the Transition Period.
8. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU 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 YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Third Party Beneficiary. Notwithstanding anything to the contrary in the Agreement, SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
11. Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC (“Directly Purchased SFDC Services“). To the extent Your Data is submitted by You to Directly Purchased SFDC Services and is resident on the Directly Purchased SFDC Services, Your Data will constitute “Customer Data” as defined in the agreement between SFDC and You with respect to the Directly Purchased SFDC Services.
Effective September 18, 2017 to November 7, 2017
DownloadSummary of changes
Updated Sandbox language (Section 6)
Table of Contents
This Salesforce.com Platform Addendum (“Addendum”) constitutes a legal agreement between you or your employer or other entity on whose behalf you enter into this Addendum (the “Customer”) and APTTUS Corporation (“APTTUS”).
IF YOU ARE AGREEING TO THIS ADDENDUM 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.
This Addendum applies in addition to the master subscription agreement (whether formed by separately executed agreement or by acceptance of the APTTUS General Terms of Use located at http://legal.apttus.com/legal.html#apttus-general-terms-of-use) in place between Customer and APTTUS (“Agreement”). In the event of any conflict between this Addendum and the Agreement, this Addendum shall prevail to the extent of any inconsistency. In the event of any conflict between this Addendum and any Order Form executed hereunder, this Addendum shall prevail to the extent of any inconsistency.
APTTUS may amend this Addendum 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, this Addendum 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. This Addendum may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
1.1. “SFDC” means salesforce.com, Inc., a third party.
1.2. “SFDC Platform Service Agreement” means the terms governing Customer’s access to the salesforce.com platform in using the Service, as set forth in Annex A below.
2. Applicability. This Addendum applies, in addition to the Agreement, if Customer is accessing and using the Service on the SFDC Platform.
3. SFDC’s Role. Customer recognizes and agrees that: (a) the Service is hosted on a technology platform called salesforce.com, provided by SFDC; and (b) to access and use the Service, Customer agrees to comply with the SFDC Platform Service Agreement (see Annex A).
4. As a User of the Service, Customer may access and use the following SFDC standard Objects: Accounts, Activities, Tasks, Calendar, Events, Contacts, Content, Documents, Ideas, and Products. Access and use of any other SFDC Objects is subject to the appropriate licensure directly from SFDC.
5. Admin User subscriptions provided by APTTUS may be used only to configure and administer the APTTUS Service.
6. Sandbox subscriptions
provided by APTTUS are (i) for testing and development of the Service,
not for production use; and (ii) may solely be used with APTTUS objects, and
the following salesforce.com objects: Contacts, Accounts, Events, Tasks, and
Calendars. In the event Customer violates the restrictions associated with the
Sandbox subscription contracted pursuant to this Order Form, Customer is
responsible for any additional fees and/or penalties associated with such
violation, including those that may be assessed by SFDC.
Annex A – SFDC Platform Service Agreement
THESE TERMS APPLY SOLELY TO YOUR ACCESS TO THE PLATFORM AS PERTAINS TO YOUR USE OF THE APTTUS SERVICE. THEY DO NOT SUPERCEDE OR ALTER ANY TERMS YOU MAY HAVE IN PLACE DIRECTLY WITH SFDC.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Combined Solution” means the combination of the Reseller Application and the Platform.
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means APTTUS Corporation.
“Reseller Application” means the Reseller quote-to-cash modules to which You subscribe.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
1. Use of Platform.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
(c) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
(d) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
(e) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service 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 that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
(f) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
2. Audit. SFDC may audit use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to SFDC, within thirty (30) days of SFDCs notice of the audit results the difference between the price charged by SFDC to Reseller for the applicable User subscription and SFDCs then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
4. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
5. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
6. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
7. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
8. Suspension and Termination; Platform Continuity.
(a) Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) subject to Section 8(b) below, the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
(b) Platform Continuity. In the event that SFDC terminates this Agreement because Reseller has become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or Reseller ceases business in the ordinary course (any of which would be an “End of Operations Event” or “EoOE” for Reseller), SFDC will continue to make the Platform available to You and SFDC will take no self-initiated steps to (a) remove the Reseller Application from SFDC’s systems or (b) block Your access to the Reseller Application via the Platform for the remainder of Your current order term with Reseller (the “Transition Period”), provided that: (i) You pay to SFDC in advance all fees owed to SFDC with respect to the Platform pursuant to a separate order between You and SFDC; (ii) You remain in compliance with this Platform Agreement; (iii) You are legally entitled to continued access to and use of the Reseller Application in combination with the Platform after an EoOE through a written agreement with Reseller or its successor in interest in anticipation of or as a consequence of any EoOE; and (iv) there are no legal impediments to SFDC continuing to host the Reseller Application (as reasonably determined by SFDC). Notwithstanding SFDC’s continued provision of the Platform, You understand and acknowledge that SFDC shall not be responsible for providing (other than hosting “as is” subject to the above conditions), updating, maintaining or supporting the Reseller Application during the Transition Period.
9. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU 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 YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Third Party Beneficiary. Notwithstanding anything to the contrary in the Agreement, SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
12. Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC (“Directly Purchased SFDC Services“). To the extent Your Data is submitted by You to Directly Purchased SFDC Services and is resident on the Directly Purchased SFDC Services, Your Data will constitute “Customer Data” as defined in the agreement between SFDC and You with respect to the Directly Purchased SFDC Services.
Effective August 24, 2017 to September 18, 2017
DownloadSummary of changes
Updated link reference in section 8 to '8(b)'
Table of Contents
This Salesforce.com Platform Addendum (“Addendum”) constitutes a legal agreement between you or your employer or other entity on whose behalf you enter into this Addendum (the “Customer”) and APTTUS Corporation (“APTTUS”).
IF YOU ARE AGREEING TO THIS ADDENDUM 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.
This Addendum applies in addition to the master subscription agreement (whether formed by separately executed agreement or by acceptance of the APTTUS General Terms of Use located at http://legal.apttus.com/legal.html#apttus-general-terms-of-use) in place between Customer and APTTUS (“Agreement”). In the event of any conflict between this Addendum and the Agreement, this Addendum shall prevail to the extent of any inconsistency. In the event of any conflict between this Addendum and any Order Form executed hereunder, this Addendum shall prevail to the extent of any inconsistency.
APTTUS may amend this Addendum 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, this Addendum 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. This Addendum may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
1.1. “SFDC” means salesforce.com, Inc., a third party.
1.2. “SFDC Platform Service Agreement” means the terms governing Customer’s access to the salesforce.com platform in using the Service, as set forth in Annex A below.
2. Applicability. This Addendum applies, in addition to the Agreement, if Customer is accessing and using the Service on the SFDC Platform.
3. SFDC’s Role. Customer recognizes and agrees that: (a) the Service is hosted on a technology platform called salesforce.com, provided by SFDC; and (b) to access and use the Service, Customer agrees to comply with the SFDC Platform Service Agreement (see Annex A).
4. As a User of the Service, Customer may access and use the following SFDC standard Objects: Accounts, Activities, Tasks, Calendar, Events, Contacts, Content, Documents, Ideas, and Products. Access and use of any other SFDC Objects is subject to the appropriate licensure directly from SFDC.
5. Admin User subscriptions provided by APTTUS may be used only to configure and administer the APTTUS Service.
6. Sandbox subscriptions provided by APTTUS are not for production use, and may be used solely for testing and development of the APTTUS Services.
Annex A – SFDC Platform Service Agreement
THESE TERMS APPLY SOLELY TO YOUR ACCESS TO THE PLATFORM AS PERTAINS TO YOUR USE OF THE APTTUS SERVICE. THEY DO NOT SUPERCEDE OR ALTER ANY TERMS YOU MAY HAVE IN PLACE DIRECTLY WITH SFDC.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Combined Solution” means the combination of the Reseller Application and the Platform.
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means APTTUS Corporation.
“Reseller Application” means the Reseller quote-to-cash modules to which You subscribe.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
1. Use of Platform.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
(c) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
(d) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
(e) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service 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 that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
(f) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
2. Audit. SFDC may audit use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to SFDC, within thirty (30) days of SFDCs notice of the audit results the difference between the price charged by SFDC to Reseller for the applicable User subscription and SFDCs then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
4. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
5. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
6. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
7. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
8. Suspension and Termination; Platform Continuity.
(a) Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) subject to Section 8(b) below, the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
(b) Platform Continuity. In the event that SFDC terminates this Agreement because Reseller has become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or Reseller ceases business in the ordinary course (any of which would be an “End of Operations Event” or “EoOE” for Reseller), SFDC will continue to make the Platform available to You and SFDC will take no self-initiated steps to (a) remove the Reseller Application from SFDC’s systems or (b) block Your access to the Reseller Application via the Platform for the remainder of Your current order term with Reseller (the “Transition Period”), provided that: (i) You pay to SFDC in advance all fees owed to SFDC with respect to the Platform pursuant to a separate order between You and SFDC; (ii) You remain in compliance with this Platform Agreement; (iii) You are legally entitled to continued access to and use of the Reseller Application in combination with the Platform after an EoOE through a written agreement with Reseller or its successor in interest in anticipation of or as a consequence of any EoOE; and (iv) there are no legal impediments to SFDC continuing to host the Reseller Application (as reasonably determined by SFDC). Notwithstanding SFDC’s continued provision of the Platform, You understand and acknowledge that SFDC shall not be responsible for providing (other than hosting “as is” subject to the above conditions), updating, maintaining or supporting the Reseller Application during the Transition Period.
9. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU 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 YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Third Party Beneficiary. Notwithstanding anything to the contrary in the Agreement, SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
12. Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC (“Directly Purchased SFDC Services“). To the extent Your Data is submitted by You to Directly Purchased SFDC Services and is resident on the Directly Purchased SFDC Services, Your Data will constitute “Customer Data” as defined in the agreement between SFDC and You with respect to the Directly Purchased SFDC Services.
Effective July 7, 2017 to August 24, 2017
DownloadSummary of changes
applicability; capitalization; third party beneficiaries
Table of Contents
This Salesforce.com Platform Addendum (“Addendum”) constitutes a legal agreement between you or your employer or other entity on whose behalf you enter into this Addendum (the “Customer”) and APTTUS Corporation (“APTTUS”).
IF YOU ARE AGREEING TO THIS ADDENDUM 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.
This Addendum applies in addition to the master subscription agreement (whether formed by separately executed agreement or by acceptance of the APTTUS General Terms of Use located at http://legal.apttus.com/legal.html#apttus-general-terms-of-use) in place between Customer and APTTUS (“Agreement”). In the event of any conflict between this Addendum and the Agreement, this Addendum shall prevail to the extent of any inconsistency. In the event of any conflict between this Addendum and any Order Form executed hereunder, this Addendum shall prevail to the extent of any inconsistency.
APTTUS may amend this Addendum 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, this Addendum 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. This Addendum may not be amended in any other way except through a written agreement by authorized representatives of each party.
1. Definitions.
1.1. “SFDC” means salesforce.com, Inc., a third party.
1.2. “SFDC Platform Service Agreement” means the terms governing Customer’s access to the salesforce.com platform in using the Service, as set forth in Annex A below.
2. Applicability. This Addendum applies, in addition to the Agreement, if Customer is accessing and using the Service on the SFDC Platform.
3. SFDC’s Role. Customer recognizes and agrees that: (a) the Service is hosted on a technology platform called salesforce.com, provided by SFDC; and (b) to access and use the Service, Customer agrees to comply with the SFDC Platform Service Agreement (see Annex A).
4. As a User of the Service, Customer may access and use the following SFDC standard Objects: Accounts, Activities, Tasks, Calendar, Events, Contacts, Content, Documents, Ideas, and Products. Access and use of any other SFDC Objects is subject to the appropriate licensure directly from SFDC.
5. Admin User subscriptions provided by APTTUS may be used only to configure and administer the APTTUS Service.
6. Sandbox subscriptions provided by APTTUS are not for production use, and may be used solely for testing and development of the APTTUS Services.
Annex A – SFDC Platform Service Agreement
THESE TERMS APPLY SOLELY TO YOUR ACCESS TO THE PLATFORM AS PERTAINS TO YOUR USE OF THE APTTUS SERVICE. THEY DO NOT SUPERCEDE OR ALTER ANY TERMS YOU MAY HAVE IN PLACE DIRECTLY WITH SFDC.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Combined Solution” means the combination of the Reseller Application and the Platform.
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means APTTUS Corporation.
“Reseller Application” means the Reseller quote-to-cash modules to which You subscribe.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
1. Use of Platform.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
(c) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
(d) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
(e) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service 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 that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
(f) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
2. Audit. SFDC may audit use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to SFDC, within thirty (30) days of SFDCs notice of the audit results the difference between the price charged by SFDC to Reseller for the applicable User subscription and SFDCs then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
4. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
5. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
6. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
7. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
8. Suspension and Termination; Platform Continuity.
(a) Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) subject to Section 9(b) below, the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
(b) Platform Continuity. In the event that SFDC terminates this Agreement because Reseller has become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or Reseller ceases business in the ordinary course (any of which would be an “End of Operations Event” or “EoOE” for Reseller), SFDC will continue to make the Platform available to You and SFDC will take no self-initiated steps to (a) remove the Reseller Application from SFDC’s systems or (b) block Your access to the Reseller Application via the Platform for the remainder of Your current order term with Reseller (the “Transition Period”), provided that: (i) You pay to SFDC in advance all fees owed to SFDC with respect to the Platform pursuant to a separate order between You and SFDC; (ii) You remain in compliance with this Platform Agreement; (iii) You are legally entitled to continued access to and use of the Reseller Application in combination with the Platform after an EoOE through a written agreement with Reseller or its successor in interest in anticipation of or as a consequence of any EoOE; and (iv) there are no legal impediments to SFDC continuing to host the Reseller Application (as reasonably determined by SFDC). Notwithstanding SFDC’s continued provision of the Platform, You understand and acknowledge that SFDC shall not be responsible for providing (other than hosting “as is” subject to the above conditions), updating, maintaining or supporting the Reseller Application during the Transition Period.
9. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU 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 YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Third Party Beneficiary. Notwithstanding anything to the contrary in the Agreement, SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
12. Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC (“Directly Purchased SFDC Services“). To the extent Your Data is submitted by You to Directly Purchased SFDC Services and is resident on the Directly Purchased SFDC Services, Your Data will constitute “Customer Data” as defined in the agreement between SFDC and You with respect to the Directly Purchased SFDC Services.
Effective January 1, 2017 to July 7, 2017
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This Addendum (“Addendum”) to the Apttus General Terms of Use (“Terms”) constitutes a legal agreement between you or your employer or other entity on whose behalf you enter into this Addendum (the “Customer”) and APTTUS Corporation (“APTTUS”).
1. Definitions.
1.1. “SFDC” means salesforce.com, Inc., a third party.
1.2. “SFDC Platform Service Agreement” means the terms governing Customer’s access to the salesforce.com platform in using the Service, as set forth in Annex A below.
2. Applicability. This Addendum applies, in addition to the Terms, if Customer is accessing and using the Service on the SFDC Platform.
3. SFDC’s Role. Customer recognizes and agrees that: (a) the Service is hosted on a technology platform called salesforce.com, provided by SFDC; and (b) to access and use the Service, Customer agrees to comply with the SFDC Platform Service Agreement (see Annex A).
4. (Replaces Section 12.2 of the Terms) No Third-Party Beneficiaries. There are no third-party beneficiaries to the Terms except as may be set forth in the SFDC Platform Service Agreement.
Annex A – SFDC Platform Service Agreement
THESE TERMS APPLY SOLELY TO YOUR ACCESS TO THE PLATFORM AS PERTAINS TO YOUR USE OF THE APTTUS SERVICE. THEY DO NOT SUPERCEDE OR ALTER ANY TERMS YOU MAY HAVE IN PLACE DIRECTLY WITH SFDC.
“AppExchange” means the online directory of on-demand applications that work with the SFDC Service, located at http://www.appexchange.com or at any successor websites.
“Combined Solution” means the combination of the Reseller Application and the Platform.
“Platform” means the online, Web-based platform service provided by SFDC to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Reseller” means Apttus Corporation.
“Reseller Application” means the Reseller quote-to-cash modules to which You subscribe.
“SFDC Service” means the online, Web-based service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding Third-Party Applications. For purposes of this SFDC Service Agreement, the SFDC Service does not include the Platform.
“SFDC” means salesforce.com.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties and are identified as third-party applications, including but not limited to those listed on the AppExchange and the Reseller Application.
“Users” means Your employees, representatives, consultants, contractors, agents and third parties with whom You conduct business who are authorized to use the Platform subject to the terms of this SFDC Service Agreement as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by SFDC or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this SFDC Service Agreement, together with any other terms required by Reseller.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the Platform or SFDC Service.
1. Use of Platform.
(a) Each User subscription to the Reseller Application shall entitle one User to use the Platform via the Reseller Application, subject to the terms of this SFDC Service Agreement, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Platform). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the SFDC Service generally or to use it in connection with applications other than the Reseller Application. If You wish to use the SFDC Service or any of its functionalities or services other than those included in the Reseller Application, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.salesforce.com to contract directly with SFDC for such services. In the event Your access to the Reseller Application provides You with access to the SFDC Service generally or access to any Platform or SFDC Service functionality within it that is in excess of the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with SFDC for such access, then You agree to not access or use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
(b) If Your subscription to use the Platform hereunder includes Salesforce Mobile, You understand that prior to purchasing Salesforce Mobile, You should refer to the Mobile Device list located at http://www.salesforce.com/mobile/devices/ for information on mobile devices that are supported by SFDC. You agree that SFDC will not provide any refunds, credits or other compensation or remedies in connection with Your purchase of Salesforce Mobile for any mobile devices that are not supported by SFDC. Third party mobile device, operating system and network connectivity providers may, at any time, cease distribution of, interrupt, deinstall and/or prevent use of Salesforce Mobile clients on supported mobile devices without entitling You to any refund, credit or other compensation or remedies.
(c) Notwithstanding any access You may have to the Platform or the SFDC Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, SFDC has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
(d) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the SFDC Service, and shall notify Reseller or SFDC promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform.
(e) You shall use the Platform and the SFDC Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the SFDC Service available to any third party, other than to Users or as otherwise contemplated by this SFDC Service 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 that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the SFDC Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the SFDC Service or its related systems or networks.
(f) You shall not (i) modify, copy or create derivative works based on the Platform or the SFDC Service; (ii) frame or mirror any content forming part of the Platform or the SFDC Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the SFDC Service; or (iv) access the Platform or the SFDC Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Platform or the SFDC Service.
2. Audit. SFDC may audit use of this User subscription through the SFDC Service. Should any audit reveal any unauthorized use of this User subscription, You agree to pay to SFDC, within thirty (30) days of SFDCs notice of the audit results the difference between the price charged by SFDC to Reseller for the applicable User subscription and SFDCs then-current list price for the full-use version of the User subscription for all of the User subscriptions in the same Org showing unauthorized use (taken as a group), beginning with the date of the first violation through the end of the then current subscription term (the “Prohibited Use Penalty”). Upon payment of the Prohibited Use Penalty, all User subscriptions showing unauthorized use will be converted into full-use subscriptions at SFDCs then-current list pricing for such full-use subscriptions for the remainder of the then current subscription term or subsequent terms during the Term of the Agreement.
4. Integration with Third-Party Applications. If You install or enable Third-Party Applications for use with the Platform or SFDC Service, You acknowledge that SFDC may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third Party Applications with the Platform or SFDC Service. SFDC shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. In addition, the Platform and SFDC Service may contain features designed to interoperate with Third-Party Applications (e.g., Google, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from their providers. If the provider of any such Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Platform or SFDC Service features on reasonable terms, SFDC may cease providing such Platform or SFDC Service features without entitling You to any refund, credit, or other compensation.
5. Proprietary Rights. Subject to the limited rights expressly granted hereunder, SFDC reserves all rights, title and interest in and to the Platform and the SFDC Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in this SFDC Service Agreement. The Platform and the SFDC Service is deemed SFDC confidential information, and You will not use it or disclose it to any third party except as permitted in this SFDC Service Agreement.
6. Compelled Disclosure. If either You or SFDC is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
7. Suggestions. You agree that SFDC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any SFDC products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the SFDC Service.
8. Suspension and Termination; Platform Continuity.
(a) Suspension and Termination. Your use of the Platform and the SFDC Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of this SFDC Service Agreement by You or any User, (b) subject to Section 9(b) below, the termination or expiration of Reseller’s agreement with SFDC pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to SFDC with respect to the subscriptions it is providing to You in connection with this SFDC Service Agreement. If You use the Reseller Application in combination with a SFDC Service Org other than the Org provisioned solely for use with the Reseller Application (a “Shared org”) You acknowledge and understand that (i) access to such Org, including the Reseller Application used in connection with such Org, may be suspended due to Your non-payment to SFDC or other breach of Your Agreement with SFDC, and (ii) in the event Your relationship with SFDC is terminated as a result of non-payment or other material breach of Your agreement with SFDC, Your Platform subscriptions would also be terminated. In no case will any such termination or suspension give rise to any liability of SFDC to You for a refund or other compensation.
(b) Platform Continuity. In the event that SFDC terminates this Agreement because Reseller has become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors or Reseller ceases business in the ordinary course (any of which would be an “End of Operations Event” or “EoOE” for Reseller), SFDC will continue to make the Platform available to You and SFDC will take no self-initiated steps to (a) remove the Reseller Application from SFDC’s systems or (b) block Your access to the Reseller Application via the Platform for the remainder of Your current order term with Reseller (the “Transition Period”), provided that: (i) You pay to SFDC in advance all fees owed to SFDC with respect to the Platform pursuant to a separate order between You and SFDC; (ii) You remain in compliance with this Platform Agreement; (iii) You are legally entitled to continued access to and use of the Reseller Application in combination with the Platform after an EoOE through a written agreement with Reseller or its successor in interest in anticipation of or as a consequence of any EoOE; and (iv) there are no legal impediments to SFDC continuing to host the Reseller Application (as reasonably determined by SFDC). Notwithstanding SFDC’s continued provision of the Platform, You understand and acknowledge that SFDC shall not be responsible for providing (other than hosting “as is” subject to the above conditions), updating, maintaining or supporting the Reseller Application during the Transition Period.
9. No Warranty. SFDC MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SFDC DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE SFDC SERVICE, AND/OR THE RESELLER APPLICATION, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10. No Liability. IN NO EVENT SHALL SFDC HAVE ANY LIABILITY TO YOU 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 YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Third Party Beneficiary. SFDC shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to this SFDC Service Agreement.
12. Applicability. The terms of this SFDC Service Agreement govern the Platform provided to You by Reseller in connection with Reseller’s provision of the Reseller Application to You. For clarity, the terms of this SFDC Service Agreement do not supersede any agreement between SFDC and You with respect to SFDC Services purchased by You directly from SFDC (“Directly Purchased SFDC Services“). To the extent Your Data is submitted by You to Directly Purchased SFDC Services and is resident on the Directly Purchased SFDC Services, Your Data will constitute “Customer Data” as defined in the agreement between SFDC and You with respect to the Directly Purchased SFDC Services.
Professional Services Terms
Effective February 1, 2021
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These Professional Services Terms (“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”). This Agreement applies only to the extent that Customer and Conga execute a Statement of Work (“SOW”) for the provision of Professional Services to be provided by Conga for Customer.
YOU MUST READ AND AGREE TO THIS AGREEMENT PRIOR TO USING THE PROFESSIONAL SERVICES. BY CLICKING ON THE “ACCEPT” BUTTON, SIGNING AN ASSOCIATED SOW, AND/OR USING THE PROFESSIONAL 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.
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 Statement of Work term following the Proposed Amendment Date. Customer’s continued use of the Professional 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.
Whereas, Customer wishes to have Conga provide certain Professional Services pursuant to one or more SOWs.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PROFESSIONAL SERVICES.
1.1 Scope. Conga will provide such professional services as are specifically described in the applicable SOW (“Professional Services”), and Customer will reasonably cooperate with Conga with regard to performance of Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
1.2 Acceptance. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof (e-mail sufficient) from Customer or two (2) business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the material failure to conform to its specifications. In response to rejection, Conga may revise and redeliver the Deliverable, and thereafter the procedures of this Section 1(b) will repeat.
2. FEES & PAYMENT TERMS.
2.1 Payment. Customer will pay Conga the fees specified in each SOW. Unless the SOW provides otherwise, Customer will pay Conga within thirty (30) calendar days from the date of invoice. All payments made under SOWs will be made in US dollars.
2.2 Other Expenses. Customer will reimburse Conga for travel time and other expenses incurred in performance of Professional Services pursuant to the Conga travel policy (a copy of which will be made available upon request).
2.3 Taxes. Unless explicitly set forth otherwise, fees set forth in a 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 Professional Services, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in this Addendum.
2.4 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.
3. TERM AND TERMINATION.
3.1 Term. Each SOW will continue for the term set forth therein, if any. Unless earlier terminated as set forth below, these PS Terms will continue until termination or expiration of the SOW.
3.2 Termination. Unless the SOW provides to the contrary, Customer may terminate a SOW for convenience upon thirty (30) days’ written notice to Conga. Either party may terminate a SOW or these PS Terms for the other’s material breach of such SOW or PS Terms, as applicable, on thirty (30) days’ written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate. Additionally, all SOWs will immediately terminate upon termination or expiration of the Master Services Agreement (or equivalent SaaS subscription agreement) or these PS Terms.
3.3 Effect of Termination. Upon termination of a SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay Conga such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay Conga the reasonable value of the Professional Services received from Conga up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW.
4. INTELLECTUAL PROPERTY IN DELIVERABLES. Conga owns and retains ownership of all Deliverables, including without limitation, preexisting software and other materials incorporated into Deliverables and new software and other materials created during Professional Services and incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable except to the extent that the applicable SOW provides a license thereto (e.g., with regard to client-side software). In the absence of such license, Customer’s sole right with regard to Deliverables is to use them in conjunction with the subscription services during the applicable subscription term(s) subject to any additional subscription services licensing terms pursuant to other agreements between the parties. Further Conga owns and retains ownership of 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 as related to Conga’s subscription services (collectively, "Conga Technology");
5. WARRANTY. Professionalism & Function. Conga warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. Conga further warrants that the Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and Conga’s sole liability and responsibility for breach of any warranty in this Section 5 will be for Conga to re-perform the Professional Services in question, including creation of Deliverables.
6. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH SECTION 5 ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE DELIVERABLES OR THE PERFORMANCE OF PROFESSIONAL SERVICES HEREUNDER, 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 DELIVERABLES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE DELIVERABLES. IN PARTICULAR, CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE DELIVERABLES, THAT THE DELIVERABLES WILL CONTINUE TO FUNCTION WITH ANY SUBSCRIPTION SERVICES AFTER THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD, OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS.
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 Addendum (including pricing and other terms reflected in all SOWS hereunder), customer data, subscription services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of any 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.
7.2 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 Addendum, 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.
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 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 Addendum and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7.4 Indemnity Miscellaneous. Notwithstanding the foregoing, Customer acknowledges and agrees that (i) multiple customers may require similar customizations or configurations to subscription services and that Conga may be developing similar customizations or configurations for other third parties, (ii) Conga may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information of Customer, (iii) nothing will prohibit Conga from developing or having developed for it customizations, configurations, feature, concepts, systems or techniques that are similar to the Deliverables, and (iv) nothing will prohibit Conga from re-using with another customer or making generally available as part of subscription services all or part of any customization, feature, concept, system or technique developed hereunder.
8. IP INDEMNITY.
8.1 Indemnification by Conga. Subject to this Addendum, 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 Deliverable(s) 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 Deliverable(s) with non-Conga products or services; or (III) any use of the Deliverable(s) not in compliance with this Addendum. In the event of a Claim, Conga may, in its discretion and at no cost to Customer (A) modify the Deliverable(s) so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Deliverable(s) in accordance with this Addendum, or (C). to suspend use of the Deliverable in question and refund to Customer a pro rata portion of the fees paid for every month during which Customer is prevented from using the infringing Deliverable as a result of such infringement, during the first three years after delivery of such Deliverable.
8.2 Indemnification by Customer. Subject to this Addendum, 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 Deliverables with non-Conga products or services; or (III) Customer’s use of the Deliverables , other than as authorized in this Addendum, 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.
For clarity, THIS SECTION 8 STATES CONGA’S SOLE OBLIGATION, AND CUSTOMER’S SOLE REMEDY, WITH REGARDS TO CLAIMS THAT THE DELIVERABLES INFRINGE ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9. LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS SET FORTH IN SECTION 2, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE PS TERMS OR ANY SOW SHALL, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE SOW TO WHICH THE CLAIM RELATES. 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. 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, 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. MISCELLANEOUS
10.1 Construction. In the event of a conflict, the provisions of these PS Terms will prevail over those of a SOW. Neither party’s acts or omissions related to Professional Services, to a SOW, or to these PS Terms, including without limitation breach of a SOW or of these PS Terms, will give the other party any rights or remedies not directly related to the SOW in question.
10.2 Independent Contractor. The relationship between the parties will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, agency, joint venture, or employer-employee relationship between Conga and Customer (including Customer’s employees and contractors, or conversely to Conga’s employees and contractors). Customer is not the agent of Conga, nor is Conga agent of Customer, and therefore neither party is authorized to make any representation or commitment on behalf of the other party. Neither party is, nor will be entitled to any of the benefits that the other party may make available to its employees, such as group insurance, profit sharing or retirement benefits. Each party agrees to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, disability and other contributions based on fees paid to the other party, its agents or employees under this Agreement.
10.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
10.4 Notices. 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.
10.5 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 Professional Services upon written notice.
10.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Addendum 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.
10.7 Severability. If any provision of this Addendum 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 Addendum will remain in effect.
10.8 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 Addendum 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 Addendum) 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 Addendum in breach of this Section will be void and of no effect. Subject to the foregoing, this Addendum will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.9 Governing Law and Venue. This Addendum will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules. 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 Addendum. 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 Addendum.
10.10 Export Control Laws. The use and delivery of the Professional Services, Deliverables, 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 Addendum. Customer understands that it will receive the Deliverables 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.
10.11 Entire Agreement. This Addendum, including all exhibits and addenda hereto and all SOW(s) and change 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 Addendum will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation will be incorporated into or form any part of the terms of this Addendum, and all such terms or conditions will be null and void.
Effective October 12, 2020 to February 1, 2021
DownloadTable of Contents
These Professional Services Terms (“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”). This Agreement applies only to the extent that Customer and Conga execute a Statement of Work (“SOW”) for the provision of Professional Services to be provided by Conga for Customer.
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.
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.
Whereas, Customer wishes to have Conga provide certain Professional Services pursuant to one or more SOWs.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PROFESSIONAL SERVICES.
1.1 Scope. Conga will provide such professional services as are specifically described in the applicable SOW (“Professional Services”), and Customer will reasonably cooperate with Conga with regard to performance of Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
1.2 Acceptance. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof (e-mail sufficient) from Customer or two (2) business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the material failure to conform to its specifications. In response to rejection, Conga may revise and redeliver the Deliverable, and thereafter the procedures of this Section 1(b) will repeat.
2. FEES & PAYMENT TERMS.
2.1 Payment. Customer will pay Conga the fees specified in each SOW. Unless the SOW provides otherwise, Customer will pay Conga within thirty (30) calendar days from the date of invoice. All payments made under SOWs will be made in US dollars.
2.2 Other Expenses. Customer will reimburse Conga for travel time and other expenses incurred in performance of Professional Services pursuant to the Conga travel policy (a copy of which will be made available upon request).
2.3 Taxes. Unless explicitly set forth otherwise, fees set forth in a 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 Professional Services, Customer has an ongoing obligation to notify Conga of such location(s) if different than Customer’s business address listed in this Addendum.
2.4 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.
3. TERM AND TERMINATION.
3.1 Term. Each SOW will continue for the term set forth therein, if any. Unless earlier terminated as set forth below, these PS Terms will continue until termination or expiration of the SOW.
3.2 Termination. Unless the SOW provides to the contrary, Customer may terminate a SOW for convenience upon thirty (30) days’ written notice to Conga. Either party may terminate a SOW or these PS Terms for the other’s material breach of such SOW or PS Terms, as applicable, on thirty (30) days’ written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate. Additionally, all SOWs will immediately terminate upon termination or expiration of the MSSA or these PS Terms.
3.3 Effect of Termination. Upon termination of a SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay Conga such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay Conga the reasonable value of the Professional Services received from Conga up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW.
4. INTELLECTUAL PROPERTY IN DELIVERABLES. Conga owns and retains ownership of all Deliverables, including without limitation, preexisting software and other materials incorporated into Deliverables and new software and other materials created during Professional Services and incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable except to the extent that the applicable SOW provides a license thereto (e.g., with regard to client-side software). In the absence of such license, Customer’s sole right with regard to Deliverables is to use them in conjunction with the subscription services during the applicable subscription term(s) subject to any additional subscription services licensing terms pursuant to other agreements between the parties. Further Conga owns and retains ownership of 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 as related to Conga’s subscription services (collectively, "Conga Technology");
5. WARRANTY. Professionalism & Function. Conga warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. Conga further warrants that the Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and Conga’s sole liability and responsibility for breach of any warranty in this Section 5 will be for Conga to re-perform the Professional Services in question, including creation of Deliverables.
6. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH SECTION 5 ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, CONGA AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE DELIVERABLES OR THE PERFORMANCE OF PROFESSIONAL SERVICES HEREUNDER, 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 DELIVERABLES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE DELIVERABLES. IN PARTICULAR, CONGA DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE DELIVERABLES, THAT THE DELIVERABLES WILL CONTINUE TO FUNCTION WITH ANY SUBSCRIPTION SERVICES AFTER THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD, OR THAT CONGA WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS.
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 Addendum (including pricing and other terms reflected in all SOWS hereunder), customer data, subscription services, the Conga Technology, business plans, technology and technical information, screen and product designs, interoperability of any 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.
7.2 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 Addendum, 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.
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 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 Addendum and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7.4 Indemnity Miscellaneous. Notwithstanding the foregoing, Customer acknowledges and agrees that (i) multiple customers may require similar customizations or configurations to subscription services and that Conga may be developing similar customizations or configurations for other third parties, (ii) Conga may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information of Customer, (iii) nothing will prohibit Conga from developing or having developed for it customizations, configurations, feature, concepts, systems or techniques that are similar to the Deliverables, and (iv) nothing will prohibit Conga from re-using with another customer or making generally available as part of subscription services all or part of any customization, feature, concept, system or technique developed hereunder.
8. IP INDEMNITY.
8.1 Indemnification by Conga. Subject to this Addendum, 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 Deliverable(s) 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 Deliverable(s) with non-Conga products or services; or (III) any use of the Deliverable(s) not in compliance with this Addendum. In the event of a Claim, Conga may, in its discretion and at no cost to Customer (A) modify the Deliverable(s) so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Deliverable(s) in accordance with this Addendum, or (C). to suspend use of the Deliverable in question and refund to Customer a pro rata portion of the fees paid for every month during which Customer is prevented from using the infringing Deliverable as a result of such infringement, during the first three years after delivery of such Deliverable.
8.2 Indemnification by Customer. Subject to this Addendum, 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 Deliverables with non-Conga products or services; or (III) Customer’s use of the Deliverables , other than as authorized in this Addendum, 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.
For clarity, THIS SECTION 8 STATES CONGA’S SOLE OBLIGATION, AND CUSTOMER’S SOLE REMEDY, WITH REGARDS TO CLAIMS THAT THE DELIVERABLES INFRINGE ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9. LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS SET FORTH IN SECTION 2, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE PS TERMS OR ANY SOW SHALL, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE SOW TO WHICH THE CLAIM RELATES. 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. 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, 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. MISCELLANEOUS
10.1 Construction. In the event of a conflict, the provisions of these PS Terms will prevail over those of a SOW. Neither party’s acts or omissions related to Professional Services, to a SOW, or to these PS Terms, including without limitation breach of a SOW or of these PS Terms, will give the other party any rights or remedies not directly related to the SOW in question.
10.2 Independent Contractor. The relationship between the parties will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, agency, joint venture, or employer-employee relationship between Conga and Customer (including Customer’s employees and contractors, or conversely to Conga’s employees and contractors). Customer is not the agent of Conga, nor is Conga agent of Customer, and therefore neither party is authorized to make any representation or commitment on behalf of the other party. Neither party is, nor will be entitled to any of the benefits that the other party may make available to its employees, such as group insurance, profit sharing or retirement benefits. Each party agrees to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, disability and other contributions based on fees paid to the other party, its agents or employees under this Agreement.
10.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
10.4 Notices. 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.
10.5 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 Professional Services upon written notice.
10.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Addendum 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.
10.7 Severability. If any provision of this Addendum 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 Addendum will remain in effect.
10.8 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 Addendum 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 Addendum) 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 Addendum in breach of this Section will be void and of no effect. Subject to the foregoing, this Addendum will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.9 Governing Law and Venue. This Addendum will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules. 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 Addendum. 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 Addendum.
10.10 Export Control Laws. The use and delivery of the Professional Services, Deliverables, 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 Addendum. Customer understands that it will receive the Deliverables 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.
10.11 Entire Agreement. This Addendum, including all exhibits and addenda hereto and all SOW(s) and change 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 Addendum will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation will be incorporated into or form any part of the terms of this Addendum, and all such terms or conditions will be null and void.
Effective August 26, 2019 to October 12, 2020
DownloadTable of Contents
These Professional Services Terms (“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”). This Agreement applies only to the extent that Customer and Apttus execute a Statement of Work (“SOW”) for the provision of Professional Services to be provided by Apttus for Customer.
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.
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.
Whereas, Customer wishes to have Apttus provide certain Professional Services pursuant to one or more SOWs.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PROFESSIONAL SERVICES.
1.1 Scope. Apttus will provide such professional services as are specifically described in the applicable SOW (“Professional Services”), and Customer will reasonably cooperate with Apttus with regard to performance of Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
1.2 Acceptance. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof (e-mail sufficient) from Customer or two (2) business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the material failure to conform to its specifications. In response to rejection, Apttus may revise and redeliver the Deliverable, and thereafter the procedures of this Section 1(b) will repeat.
2. FEES & PAYMENT TERMS.
2.1 Payment. Customer will pay Apttus the fees specified in each SOW. Unless the SOW provides otherwise, Customer will pay Apttus within thirty (30) calendar days from the date of invoice. All payments made under SOWs will be made in US dollars.
2.2 Other Expenses. Customer will reimburse Apttus for travel time and other expenses incurred in performance of Professional Services pursuant to the Apttus travel policy (a copy of which will be made available upon request).
2.3 Taxes. Unless explicitly set forth otherwise, fees set forth in a 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 Professional Services, Customer has an ongoing obligation to notify Apttus of such location(s) if different than Customer’s business address listed in this Addendum.
2.4 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.
3. TERM AND TERMINATION.
3.1 Term. Each SOW will continue for the term set forth therein, if any. Unless earlier terminated as set forth below, these PS Terms will continue until termination or expiration of the SOW.
3.2 Termination. Unless the SOW provides to the contrary, Customer may terminate a SOW for convenience upon thirty (30) days’ written notice to Apttus. Either party may terminate a SOW or these PS Terms for the other’s material breach of such SOW or PS Terms, as applicable, on thirty (30) days’ written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate. Additionally, all SOWs will immediately terminate upon termination or expiration of the MSSA or these PS Terms.
3.3 Effect of Termination. Upon termination of a SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay Apttus such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay Apttus the reasonable value of the Professional Services received from Apttus up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW.
4. INTELLECTUAL PROPERTY IN DELIVERABLES. Apttus owns and retains ownership of all Deliverables, including without limitation, preexisting software and other materials incorporated into Deliverables and new software and other materials created during Professional Services and incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable except to the extent that the applicable SOW provides a license thereto (e.g., with regard to client-side software). In the absence of such license, Customer’s sole right with regard to Deliverables is to use them in conjunction with the subscription services during the applicable subscription term(s) subject to any additional subscription services licensing terms pursuant to other agreements between the parties. Further Apttus owns and retains ownership of 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 as related to Apttus’ subscription services (collectively, "Apttus Technology");
5. WARRANTY. Professionalism & Function. Apttus warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. Apttus further warrants that the Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and Apttus’ sole liability and responsibility for breach of any warranty in this Section 5 will be for Apttus to re-perform the Professional Services in question, including creation of Deliverables.
6. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH SECTION 5 ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, APTTUS AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE DELIVERABLES OR THE PERFORMANCE OF PROFESSIONAL SERVICES HEREUNDER, 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 DELIVERABLES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE DELIVERABLES. IN PARTICULAR, APTTUS DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE DELIVERABLES, THAT THE DELIVERABLES WILL CONTINUE TO FUNCTION WITH ANY SUBSCRIPTION SERVICES AFTER THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD, OR THAT APTTUS WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS.
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 Addendum (including pricing and other terms reflected in all SOWS hereunder), customer data, subscription services, the Apttus Technology, business plans, technology and technical information, screen and product designs, interoperability of any 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.
7.2 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 Addendum, 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.
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 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 Addendum and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7.4 Indemnity Miscellaneous. Notwithstanding the foregoing, Customer acknowledges and agrees that (i) multiple customers may require similar customizations or configurations to subscription services and that Apttus may be developing similar customizations or configurations for other third parties, (ii) Apttus may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information of Customer, (iii) nothing will prohibit Apttus from developing or having developed for it customizations, configurations, feature, concepts, systems or techniques that are similar to the Deliverables, and (iv) nothing will prohibit Apttus from re-using with another customer or making generally available as part of subscription services all or part of any customization, feature, concept, system or technique developed hereunder.
8. IP INDEMNITY.
8.1 Indemnification by Apttus. Subject to this Addendum, 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 Deliverable(s) 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 Deliverable(s) with non-Apttus products or services; or (III) any use of the Deliverable(s) not in compliance with this Addendum. In the event of a Claim, Apttus may, in its discretion and at no cost to Customer (A) modify the Deliverable(s) so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Deliverable(s) in accordance with this Addendum, or (C). to suspend use of the Deliverable in question and refund to Customer a pro rata portion of the fees paid for every month during which Customer is prevented from using the infringing Deliverable as a result of such infringement, during the first three years after delivery of such Deliverable.
8.2 Indemnification by Customer. Subject to this Addendum, 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 Deliverables with non-Apttus products or services; or (III) Customer’s use of the Deliverables , other than as authorized in this Addendum, 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.
For clarity, THIS SECTION 8 STATES APTTUS’ SOLE OBLIGATION, AND CUSTOMER’S SOLE REMEDY, WITH REGARDS TO CLAIMS THAT THE DELIVERABLES INFRINGE ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9. LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS SET FORTH IN SECTION 2, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE PS TERMS OR ANY SOW SHALL, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE SOW TO WHICH THE CLAIM RELATES. 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. 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, 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. MISCELLANEOUS
10.1 Construction. In the event of a conflict, the provisions of these PS Terms will prevail over those of a SOW. Neither party’s acts or omissions related to Professional Services, to a SOW, or to these PS Terms, including without limitation breach of a SOW or of these PS Terms, will give the other party any rights or remedies not directly related to the SOW in question.
10.2 Independent Contractor. The relationship between the parties will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, agency, joint venture, or employer-employee relationship between Apttus and Customer (including Customer’s employees and contractors, or conversely to Apttus’ employees and contractors). Customer is not the agent of Apttus, nor is Apttus agent of Customer, and therefore neither party is authorized to make any representation or commitment on behalf of the other party. Neither party is, nor will be entitled to any of the benefits that the other party may make available to its employees, such as group insurance, profit sharing or retirement benefits. Each party agrees to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, disability and other contributions based on fees paid to the other party, its agents or employees under this Agreement.
10.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
10.4 Notices. 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.
10.5 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 Professional Services upon written notice.
10.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Addendum 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.
10.7 Severability. If any provision of this Addendum 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 Addendum will remain in effect.
10.8 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 Addendum 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 Addendum) 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 Addendum in breach of this Section will be void and of no effect. Subject to the foregoing, this Addendum will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.9 Governing Law and Venue. This Addendum will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules. 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 Addendum. 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 Addendum.
10.10 Export Control Laws. The use and delivery of the Professional Services, Deliverables, 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 Addendum. Customer understands that it will receive the Deliverables 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.
10.11 Entire Agreement. This Addendum, including all exhibits and addenda hereto and all SOW(s) and change 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 Addendum will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation will be incorporated into or form any part of the terms of this Addendum, and all such terms or conditions will be null and void.
Effective January 31, 2019 to August 26, 2019
DownloadTable of Contents
These Professional Services Terms (“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”). This Agreement applies only to the extent that Customer and Apttus execute a Statement of Work (“SOW”) for the provision of Professional Services to be provided by Apttus for Customer.
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.
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.
Whereas, Customer wishes to have Apttus provide certain Professional Services pursuant to one or more SOWs.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PROFESSIONAL SERVICES.
1.1 Scope. Apttus will provide such professional services as are specifically described in the applicable SOW (“Professional Services”), and Customer will reasonably cooperate with Apttus with regard to performance of Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
1.2 Acceptance. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof (e-mail sufficient) from Customer or two (2) business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the material failure to conform to its specifications. In response to rejection, Apttus may revise and redeliver the Deliverable, and thereafter the procedures of this Section 1(b) will repeat.
2. FEES & PAYMENT TERMS.
2.1 Payment. Customer will pay Apttus the fees specified in each SOW. Unless the SOW provides otherwise, Customer will pay Apttus within thirty (30) calendar days from the date of invoice. All payments made under SOWs will be made in US dollars.
2.2 Other Expenses. Customer will reimburse Apttus for travel time and other expenses incurred in performance of Professional Services pursuant to the Apttus travel policy (a copy of which will be made available upon request).
2.3 Taxes. Unless explicitly set forth otherwise, fees set forth in a 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 Professional Services, Customer has an ongoing obligation to notify Apttus of such location(s) if different than Customer’s business address listed in this Addendum.
2.4 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.
3. TERM AND TERMINATION.
3.1 Term. Each SOW will continue for the term set forth therein, if any. Unless earlier terminated as set forth below, these PS Terms will continue until termination or expiration of the SOW.
3.2 Termination. Unless the SOW provides to the contrary, Customer may terminate a SOW for convenience upon thirty (30) days’ written notice to Apttus. Either party may terminate a SOW or these PS Terms for the other’s material breach of such SOW or PS Terms, as applicable, on thirty (30) days’ written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate. Additionally, all SOWs will immediately terminate upon termination or expiration of the MSSA or these PS Terms.
3.3 Effect of Termination. Upon termination of a SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay Apttus such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay Apttus the reasonable value of the Professional Services received from Apttus up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW.
4. INTELLECTUAL PROPERTY IN DELIVERABLES. Apttus owns and retains ownership of all Deliverables, including without limitation, preexisting software and other materials incorporated into Deliverables and new software and other materials created during Professional Services and incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable except to the extent that the applicable SOW provides a license thereto (e.g., with regard to client-side software). In the absence of such license, Customer’s sole right with regard to Deliverables is to use them in conjunction with the subscription services during the applicable subscription term(s) subject to any additional subscription services licensing terms pursuant to other agreements between the parties. Further Apttus owns and retains ownership of 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 as related to Apttus’ subscription services (collectively, "Apttus Technology");
5. WARRANTY. Professionalism & Function. Apttus warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. Apttus further warrants that the Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and Apttus’ sole liability and responsibility for breach of any warranty in this Section 5 will be for Apttus to re-perform the Professional Services in question, including creation of Deliverables.
6. DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH SECTION 5 ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, APTTUS AND ITS THIRD PARTY PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE DELIVERABLES OR THE PREFORMANCE OF PROFESSIONAL SERVICES HEREUNDER, 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 DELIVERABLES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE DELIVERABLES. IN PARTICULAR, APTTUS DOES NOT WARRANT UNINTERRUPTED OR ERROR- FREE OPERATION OF THE DELIVERABLES, THAT THE DELIVERABLES WILL CONTINUE TO FUNCTION WITH ANY SUBSCRIPTION SERVICES AFTER THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD, OR THAT APTTUS WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS.
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 Addendum (including pricing and other terms reflected in all SOWS hereunder), customer data, subscription services, the Apttus Technology, business plans, technology and technical information, screen and product designs, interoperability of any 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.
7.2 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 Addendum, 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.
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 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 Addendum and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein for the protection of Confidential Information.
7.4 Indemnity Miscellaneous. Notwithstanding the foregoing, Customer acknowledges and agrees that (i) multiple customers may require similar customizations or configurations to subscription services and that Apttus may be developing similar customizations or configurations for other third parties, (ii) Apttus may currently or in the future be developing information internally, or receiving information from other parties, that is similar to the Confidential Information of Customer, (iii) nothing will prohibit Apttus from developing or having developed for it customizations, configurations, feature, concepts, systems or techniques that are similar to the Deliverables, and (iv) nothing will prohibit Apttus from re-using with another customer or making generally available as part of subscription services all or part of any customization, feature, concept, system or technique developed hereunder.
8. IP INDEMNITY.
8.1 Indemnification by Apttus. Subject to this Addendum, 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 Deliverable(s) 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 Deliverable(s) with non-Apttus products or services; or (III) any use of the Deliverable(s) not in compliance with this Addendum. In the event of a Claim, Apttus may, in its discretion and at no cost to Customer (A) modify the Deliverable(s) so that they are no longer the subject of an infringement claim, (B) obtain a license for Customer’s continued use of the Deliverable(s) in accordance with this Addendum, or (C). to suspend use of the Deliverable in question and refund to Customer a pro rata portion of the fees paid for every month during which Customer is prevented from using the infringing Deliverable as a result of such infringement, during the first three years after delivery of such Deliverable.
8.2 Indemnification by Customer. Subject to this Addendum, 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 Deliverables with non-Apttus products or services; or (III) Customer’s use of the Deliverables , other than as authorized in this Addendum, 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.
For clarity, THIS SECTION 8 STATES APTTUS’ SOLE OBLIGATION, AND CUSTOMER’S SOLE REMEDY, WITH REGARDS TO CLAIMS THAT THE DELIVERABLES INFRINGE ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9. LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS SET FORTH IN SECTION 2, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE PS TERMS OR ANY SOW SHALL, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE APPLICABLE SOW TO WHICH THE CLAIM RELATES. 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. 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. MISCELLANEOUS
10.1 Construction. In the event of a conflict, the provisions of these PS Terms will prevail over those of a SOW. Neither party’s acts or omissions related to Professional Services, to a SOW, or to these PS Terms, including without limitation breach of a SOW or of these PS Terms, will give the other party any rights or remedies not directly related to the SOW in question.
10.2 Independent Contractor. The relationship between the parties will be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, agency, joint venture, or employer-employee relationship between Apttus and Customer (including Customer’s employees and contractors, or conversely to Apttus’ employees and contractors). Customer is not the agent of Apttus, nor is Apttus agent of Customer, and therefore neither party is authorized to make any representation or commitment on behalf of the other party. Neither party is, nor will be entitled to any of the benefits that the other party may make available to its employees, such as group insurance, profit sharing or retirement benefits. Each party agrees to accept exclusive liability for complying with all applicable state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, disability and other contributions based on fees paid to the other party, its agents or employees under this Agreement.
10.3 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
10.4 Notices. 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.
10.5 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 Professional Services upon written notice.
10.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Addendum 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.
10.7 Severability. If any provision of this Addendum 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 Addendum will remain in effect.
10.8 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 Addendum 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 Addendum) 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 Addendum in breach of this Section will be void and of no effect. Subject to the foregoing, this Addendum will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.9 Governing Law and Venue. This Addendum will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules. 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 Addendum. 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 Addendum.
10.10 Export Control Laws. The use and delivery of the Professional Services, Deliverables, 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 Addendum. Customer understands that it will receive the Deliverables 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.
10.11 Entire Agreement. This Addendum, including all exhibits and addenda hereto and all SOW(s) and change 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 Addendum will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation will be incorporated into or form any part of the terms of this Addendum, and all such terms or conditions will be null and void.
Effective November 28, 2018 to January 31, 2019
DownloadTable of Contents
These Professional Services Delivery Terms (“Terms”) constitute a legal agreement between you or your employer or other entity on whose behalf you agree to these Terms (the “Customer”) and APTTUS Corporation (“APTTUS”).
IF YOU ARE ENTERING INTO THESE TERMS 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.
The delivery of APTTUS Professional Services are governed by these Terms and, where present, the generally applicable terms of the master subscription agreement (whether formed by separately executed agreement or by acceptance of the APTTUS General Terms of Use located at http://legal.apttus.com/legal.html#apttus-general-terms-of-use) in place between Customer and APTTUS (“Agreement”). Capitalized terms used but not defined herein have the meanings assigned to them in the Agreement.
These Terms apply in addition to the Agreement. In the event of any conflict between these Terms and the Agreement, as pertains to APTTUS Professional Services only, these Terms shall prevail to the extent of any inconsistency. In the event of any conflict between these Terms and any Statement of Work executed hereunder, these Terms shall prevail to the extent of any inconsistency, except with regard to any provision of any Statement of Work that specifically identifies a conflicting provision of these Terms and states that the conflicting provision of these Terms does not prevail.
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 term following the Proposed Amendment Date. Customer’s continued use of the services purchased hereunder 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. “Service” means the online, Web-based service, including associated offline components, provided or managed by APTTUS under an order document.
2. Applicability. These Terms apply only to the extent that Customer and APTTUS execute a Statement of Work (“SOW”) for the provision of Professional Services to be provided by APTTUS for Customer.
3. Professional Services.
3.1. Scope. APTTUS will provide such professional services as are specifically described in the applicable SOW (“Professional Services”), and Customer will reasonably cooperate with APTTUS with regard to performance of Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
3.2. Acceptance. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof from Customer or 5 business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the Deliverable’s material failure to conform to its specifications. In response to rejection, APTTUS may revise and redeliver the Deliverable, and thereafter the procedures of this Section 3.2 will repeat.
4. Fees & Payment Terms.
4.1. Payment. Customer will pay APTTUS the fees specified in each SOW. Unless the SOW provides otherwise, Customer will pay APTTUS within thirty (30) calendar days from the date of invoice.
4.2. Other Expenses. Customer shall reimburse APTTUS for travel time and other expenses incurred in performance of Professional Services pursuant to the APTTUS travel policy, so long as Customer has previously approved the expense or range of expenses in question.
5. Term and Termination.
5.1. Term. Each SOW will continue for the term set forth therein, if any.
5.2. Termination. Unless the SOW provides to the contrary, Customer may terminate an SOW for convenience upon 30 days’ written notice to APTTUS. Either party may terminate a SOW for the other’s material breach of such SOW, including of any related obligations set forth in these Terms, on 30 days’ written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate.
5.3. Effect of Termination. Upon termination of an SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay APTTUS such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay APTTUS the reasonable value of the Professional Services received from APTTUS up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW or these Terms or the Agreement.
6. Intellectual Property in Deliverables. APTTUS owns and retains ownership of all Deliverables, including without limitation preexisting software and other materials incorporated into Deliverables and new software and other materials created during Professional Services and incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable except to the extent that the applicable SOW provides a license thereto (e.g., with regard to client-side software). In the absence of such a license, Customer’s sole right with regard to Deliverables is to use them in conjunction with the Service during the applicable Subscription Term(s). APTTUS does not acquire any intellectual property rights or any other rights in the Customer Data, Confidential Information, products, systems, software, hardware, or networks provided by or on behalf of Customer and being used by APTTUS in connection with the provision of Professional Services under this Agreement.
7. Warranty.
7.1. Intellectual Property. APTTUS represents and warrants that, to the best of its knowledge as of the date of delivery, no Deliverable will infringe upon the intellectual property rights of any third party. APTTUS’ sole responsibility and liability for breach of the warranty in the preceding sentence, and Customer’s sole remedy, shall be for APTTUS: (1) to substitute substantially functionally similar products or services for the infringing Deliverable; (2) to procure for Customer the right to continue using the Deliverable; or if neither of the foregoing is commercially practical in APTTUS’ reasonable judgment, (3) to suspend use of the Deliverable in question and refund to Customer 1/36th of the fees paid for every month during which Customer is prevented from using it as a result of such infringement, during the first three years after delivery.
7.2. Professionalism & Function. APTTUS warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. APTTUS further warrants that Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and APTTUS’ sole liability and responsibility for breach of any warranty in this Section 7.2. shall be for APTTUS to re-perform the Professional Services in question, including creation of Deliverables.
8. IP Indemnity. Subject to the 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 Deliverable 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. Relationship with the Service & the Agreement.
9.1. Service vs. Professional Services. Professional Services are not part of the Service as such term is used in the APTTUS General Terms of Use. .
9.2. Construction. The provisions of the Agreement govern SOW’s and these Terms. In the event of a conflict, the provisions of these Terms will prevail over those of a SOW (and the provisions of the Agreement will prevail over those of these Terms). Neither party’s acts or omissions related to Professional Services, to a SOW, or to these Terms, including without limitation breach of an SOW or of these Terms, will give the other party any rights or remedies not directly related to the SOW in question. For clarity, APTTUS’ breach of an SOW that does not otherwise violate APTTUS’ obligations under the Agreement will not give Customer any rights or remedies not directly related to the SOW in question, including the right to terminate the Agreement or the right to a refund of fees paid for the Service or of other fees paid not pursuant to such SOW. This, however, does not limit any other rights or remedies that Customer may have under the Agreement related to APTTUS’ obligations. In addition to such other limits of liability as apply, including pursuant to the Agreement, APTTUS’ TOTAL AGGREGATE LIABILITY FOR ANY LOSS ARISING OUT OF OR RELATED TO A SOW SHALL BE LIMITED TO THE FEES PAID PURSUANT TO SUCH SOW.
Effective July 7, 2017 to November 28, 2018
DownloadSummary of changes
Clean up; Apttus does not take prop rights
Table of Contents
These APTTUS Professional Services Delivery Terms (“Terms”) constitute a legal agreement between you or your employer or other entity on whose behalf you agree to these Terms (the “Customer”) and APTTUS Corporation (“APTTUS”).
IF YOU ARE ENTERING INTO THESE TERMS 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.
The delivery of APTTUS Professional Services are governed by these Terms and, where present, the generally applicable terms of the master subscription agreement (whether formed by separately executed agreement or by acceptance of the APTTUS General Terms of Use located at http://legal.apttus.com/legal.html#apttus-general-terms-of-use) in place between Customer and APTTUS (“Agreement”). Capitalized terms used but not defined herein have the meanings assigned to them in the Agreement.
These Terms apply in addition to the Agreement. In the event of any conflict between these Terms and the Agreement, as pertains to APTTUS Professional Services only, these Terms shall prevail to the extent of any inconsistency. In the event of any conflict between these Terms and any Statement of Work executed hereunder, these Terms shall prevail to the extent of any inconsistency, except with regard to any provision of any Statement of Work that specifically identifies a conflicting provision of these Terms and states that the conflicting provision of these Terms does not prevail.
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 term following the Proposed Amendment Date. Customer’s continued use of the services purchased hereunder 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. “Service” means the online, Web-based service, including associated offline components, provided or managed by APTTUS under an order document.
2. Applicability. These Terms apply only to the extent that Customer and APTTUS execute a Statement of Work (“SOW”) for the provision of Professional Services to be provided by APTTUS for Customer.
3. Professional Services.
3.1. Scope. APTTUS will provide such professional services as are specifically described in the applicable SOW (“Professional Services”), and Customer will reasonably cooperate with APTTUS with regard to performance of Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
3.2. Acceptance. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof from Customer or 5 business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the Deliverable’s material failure to conform to its specifications. In response to rejection, APTTUS may revise and redeliver the Deliverable, and thereafter the procedures of this Section 3.2 will repeat.
4. Fees & Payment Terms.
4.1. Payment. Customer will pay APTTUS the fees specified in each SOW. Unless the SOW provides otherwise, Customer will pay APTTUS within thirty (30) calendar days from the date of invoice.
4.2. Other Expenses. Customer shall reimburse APTTUS for travel time and other expenses incurred in performance of Professional Services pursuant to the APTTUS travel policy, so long as Customer has previously approved the expense or range of expenses in question.
5. Term and Termination.
5.1. Term. Each SOW will continue for the term set forth therein, if any.
5.2. Termination. Unless the SOW provides to the contrary, Customer may terminate an SOW for convenience upon 30 days’ written notice to APTTUS. Either party may terminate a SOW for the other’s material breach of such SOW, including of any related obligations set forth in these Terms, on 30 days’ written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate.
5.3. Effect of Termination. Upon termination of an SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay APTTUS such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay APTTUS the reasonable value of the Professional Services received from APTTUS up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW or these Terms or the Agreement.
6. Intellectual Property in Deliverables. APTTUS owns and retains ownership of all Deliverables, including without limitation preexisting software and other materials incorporated into Deliverables and new software and other materials created during Professional Services and incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable except to the extent that the applicable SOW provides a license thereto (e.g., with regard to client-side software). In the absence of such a license, Customer’s sole right with regard to Deliverables is to use them in conjunction with the Service during the applicable Subscription Term(s). APTTUS does not acquire any intellectual property rights or any other rights in the Customer Data, Confidential Information, products, systems, software, hardware, or networks provided by or on behalf of Customer and being used by APTTUS in connection with the provision of Professional Services under this Agreement.
7. Warranty.
7.1. Intellectual Property. APTTUS represents and warrants that, to the best of its knowledge as of the date of delivery, no Deliverable will infringe upon the intellectual property rights of any third party. APTTUS’ sole responsibility and liability for breach of the warranty in the preceding sentence, and Customer’s sole remedy, shall be for APTTUS: (1) to substitute substantially functionally similar products or services for the infringing Deliverable; (2) to procure for Customer the right to continue using the Deliverable; or if neither of the foregoing is commercially practical in APTTUS’ reasonable judgment, (3) to suspend use of the Deliverable in question and refund to Customer 1/36th of the fees paid for every month during which Customer is prevented from using it as a result of such infringement, during the first three years after delivery.
7.2. Professionalism & Function. APTTUS warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. APTTUS further warrants that Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and APTTUS’ sole liability and responsibility for breach of any warranty in this Section 7.2. shall be for APTTUS to re-perform the Professional Services in question, including creation of Deliverables.
8. IP Indemnity. Subject to the 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 Deliverable 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. Relationship with the Service & the Agreement.
9.1. Service vs. Professional Services. Professional Services are not part of the Service as such term is used in the APTTUS General Terms of Use. .
9.2. Construction. The provisions of the Agreement govern SOW’s and these Terms. In the event of a conflict, the provisions of these Terms will prevail over those of a SOW (and the provisions of the Agreement will prevail over those of these Terms). Neither party’s acts or omissions related to Professional Services, to a SOW, or to these Terms, including without limitation breach of an SOW or of these Terms, will give the other party any rights or remedies not directly related to the SOW in question. For clarity, APTTUS’ breach of an SOW that does not otherwise violate APTTUS’ obligations under the Agreement will not give Customer any rights or remedies not directly related to the SOW in question, including the right to terminate the Agreement or the right to a refund of fees paid for the Service or of other fees paid not pursuant to such SOW. This, however, does not limit any other rights or remedies that Customer may have under the Agreement related to APTTUS’ obligations. In addition to such other limits of liability as apply, including pursuant to the Agreement, APTTUS’ TOTAL AGGREGATE LIABILITY FOR ANY LOSS ARISING OUT OF OR RELATED TO A SOW SHALL BE LIMITED TO THE FEES PAID PURSUANT TO SUCH SOW.
Effective January 1, 2017 to July 7, 2017
DownloadTable of Contents
These APTTUS Professional Services Terms & Conditions (“Terms”) constitute a legal agreement between you or your employer or other entity on whose behalf you enter into these Terms (the “Customer”) and APTTUS Corporation (“APTTUS”).
IF YOU ARE ENTERING INTO THESE TERMS 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.
APTTUS Professional Services (“Professional Services”) are governed by these Terms and, where applicable, the terms of the master subscription agreement in place between Customer and APTTUS (“Agreement”). Capitalized terms used but not defined herein have the meanings assigned to them in the Agreement.
These Terms apply in addition to the Agreement. In the event of any conflict between these Terms and the Agreement, these Terms shall prevail to the extent of any inconsistency. In the event of any conflict between these Terms and any Statement of Work executed hereunder, these Terms shall prevail to the extent of any inconsistency, except with regard to any provision of any Statement of Work that specifically identifies a conflicting provision of these Terms and states that the conflicting provision of these Terms does not prevail.
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. “Service” means the online, Web-based service, including associated offline components, provided or managed by APTTUS under an order document.
2. Applicability. These Terms apply only to the extent that Customer and APTTUS execute a Statement of Work (“SOW”) for the provision of Professional Services to be provided by APTTUS for Customer.
3. Professional Services.
3.1. Scope. APTTUS will provide such professional services as are specifically described in the applicable SOW (“Professional Services”), and Customer will reasonably cooperate with APTTUS with regard to Professional Services. The requirements of a SOW may be altered only through a change order executed by both parties.
3.2. Acceptance. Unless otherwise set forth in a SOW, configured software environments and other materials provided through Professional Services (“Deliverables”) will be considered accepted upon written notice thereof from Customer or 5 business days from delivery if Customer has not first provided written notice of rejection, provided Customer may only reject Deliverables to the extent that they materially fail to conform to their specifications set forth in the SOW. To be effective pursuant to the preceding sentence, notice of rejection must specifically disclose the Deliverable’s material failure to conform to its specifications. In response to rejection, APTTUS may revise and redeliver the Deliverable, and thereafter the procedures of this Section 3.2 will repeat.
4. Fees & Payment Terms.
4.1. Payment. Customer will pay APTTUS the fees specified in each SOW. Unless the SOW provides otherwise, Customer will pay APTTUS within thirty (30) calendar days from the date of invoice.
4.2. Other Expenses. Customer shall reimburse APTTUS for travel time and other expenses incurred in performance of Professional Services pursuant to the APTTUS travel policy, so long as Customer has previously approved the expense or range of expenses in question.
5. Term and Termination.
5.1. Term. Each SOW will continue for the term set forth therein, if any.
5.2. Termination. Unless the SOW provides to the contrary, Customer may terminate an SOW for convenience upon 30 days’ written notice to APTTUS. Either party may terminate a SOW for the other’s material breach of such SOW, including of any related obligations set forth in these Terms, on 30 days’ written notice, provided that if the other party cures the breach before expiration of such notice period, the SOW will not terminate.
5.3. Effect of Termination. Upon termination of an SOW: (1) if such SOW provides for an hourly or per unit fee, Customer will pay APTTUS such fee for the work performed up to the date of termination; and (2) if the SOW provides for a fixed fee, Customer will pay APTTUS the reasonable value of the Professional Services received from APTTUS up to the termination date. Termination of a SOW for any reason, including without limitation breach, will not terminate any other SOW or these Terms or the Agreement.
6. Intellectual Property in Deliverables. APTTUS owns and retains ownership of all Deliverables, including without limitation preexisting software and other materials incorporated into Deliverables and new software and other materials created during Professional Services and incorporated into Deliverables. Customer receives no intellectual property rights to any Deliverable except to the extent that the applicable SOW provides a license thereto (e.g., with regard to client-side software). In the absence of such a license, Customer’s sole right with regard to Deliverables is to use them in conjunction with the Service during the applicable Subscription Term(s).
7. Warranty.
7.1. Intellectual Property. APTTUS represents and warrants that, to the best of its knowledge as of the date of delivery, no Deliverable will infringe upon the intellectual property rights of any third party. APTTUS’ sole responsibility and liability for breach of the warranty in the preceding sentence, and Customer’s sole remedy, shall be for APTTUS: (1) to substitute substantially functionally similar products or services for the infringing Deliverable; (2) to procure for Customer the right to continue using the Deliverable; or if neither of the foregoing is commercially practical in APTTUS’ reasonable judgment, (3) to terminate the SOW in question and refund to Customer 1/36th of the fees paid for the Deliverable for every month during which Customer is prevented from using it as a result of such infringement, during the first three years after delivery.
7.2. Professionalism & Function. APTTUS warrants that all Professional Services will be performed in a professional manner and materially in conformance with the SOW. APTTUS further warrants that Deliverables will conform to their specifications set forth in the SOW. Customer’s sole remedy and APTTUS’ sole liability and responsibility for breach of any warranty in this Section 7.2. shall be for APTTUS to re-perform the Professional Services in question, including creation of Deliverables.
8. IP Indemnity. Subject to the 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 Deliverable 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. Relationship with the Service & the Agreement.
9.1. Service vs. Professional Services. Professional Services are not part of the Service.
9.2. Construction. The provisions of the Agreement govern SOW’s and these Terms. In the event of a conflict, the provisions of these Terms will prevail over those of a SOW (and the provisions of the Agreement will prevail over those of these Terms). Neither party’s acts or omissions related to Professional Services, to a SOW, or to these Terms, including without limitation breach of an SOW or of these Terms, will give the other party any rights or remedies not directly related to the SOW in question. For clarity, APTTUS’ breach of an SOW that does not otherwise violate APTTUS’ obligations under the Agreement will not give Customer any rights or remedies not directly related to the SOW in question, including the right to terminate the Agreement or the right to a refund of fees paid for the Service or of other fees paid not pursuant to such SOW. This, however, does not limit any other rights or remedies that Customer may have under the Agreement related to APTTUS’ obligations. In addition to such other limits of liability as apply, including pursuant to the Agreement, APTTUS’ TOTAL AGGREGATE LIABILITY FOR ANY LOSS ARISING OUT OF OR RELATED TO A SOW SHALL BE LIMITED TO THE FEES PAID PURSUANT TO SUCH SOW.
Service Level Agreement
Effective February 11, 2021
DownloadTable of Contents
This Service Level Agreement (“SLA”) applies in addition to the Master Services Agreement, or similar subscription agreement, (whether formed by separately executed agreement or by acceptance of the Master Services Agreement located at http://legal.apttus.com/#master-services-agreement) in place between Apttus Corporation ("Conga") and Customer (“Agreement”). In the event of any conflict between this SLA and the Agreement, this SLA shall prevail to the extent of any inconsistency.
Conga may amend this SLA 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 Conga written notice of rejection of the amendment. In the event of such rejection, this SLA will continue under its 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 Subscription Services following the effective date of an amendment will confirm Customer’s consent thereto. This SLA may not be amended in any other way except through a written agreement by authorized representatives of each party.
Definitions.
“Subscription Services” means the the online subscription services, including associated offline components, related online training and packaged technical support services provided or managed by Conga.
Availability: Conga warrants the Subscription Services will generally be available 99% of the time, except as provided below. General availability will be calculated per calendar quarter, as follows:
[(total – nonexcluded – excluded) *100] > 99%
total – excluded
Where:
total means the total number of minutes for the quarter
nonexcluded means downtime that is not excluded
excluded means the following:
- Any planned downtime. (NOTE - Conga planned downtime for scheduled maintenance takes place between 12:00 am and 11:59 am PT Saturdays. If the Subscription Services are hosted on the salesforce.com platform, then Conga will use the same maintenance schedule as published and used by salesforce.com.)
- Any period of unavailability lasting less than 5 minutes.
- Any unavailability caused by circumstances beyond Conga’s reasonable control, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Conga employees), or delays involving hardware, software or power systems not within Conga possession or reasonable control, and network intrusions or denial of service attacks.
Unavailability for some specific features or functions within the Subscription Services, while others remain available, will not constitute unavailability of the Subscription Services, so long as the unavailable features or functions are not, in the aggregate, material to the Subscription Services as a whole.
Penalties: Should Conga fail to meet 99% general availability of the Subscription Services for a calendar quarter, and this downtime significantly affected Customer’s ability to use the Subscription Services, Customer may continue to use the Subscription Services, but will receive credit for one half day of its Conga subscription, in that quarter, for each two hours of general Subscription Services unavailability below 99%. Any such credit may be applied ONLY against future invoices for Subscription Services. The penalties specified in this “Penalties” section shall be the sole remedies available to Customer for breach of this SLA.
Reporting and Claims: To file a claim under this SLA, Customer must send an email to sla@apttus.com with the following details:
- Billing information, including company name, billing address, billing contact and billing contact phone number
- Downtime information with dates and time periods for each instance of downtime during the relevant period
- An explanation of the claim made under this SLA, including any relevant calculations
Claims may only be made on a calendar quarter basis and must be submitted within 30 days after the end of the relevant quarter, except for periods at the end of a subscription agreement that do not coincide with a calendar quarter, in which case Customer must make any claim within 30 days after the end of its subscription agreement.
All claims will be verified against applicable system records. Should any periods of downtime submitted by Customer be disputed, Conga will provide to Customer a record of Subscription Services availability for the period in question. Conga will only provide records of system availability in response to good faith Customer claims.
Effective October 12, 2020 to February 11, 2021
DownloadTable of Contents
This Service Level Agreement (“SLA”) applies in addition to the master subscription agreement (whether formed by separately executed agreement or by acceptance of the Master Subscription Services Agreement located at http://legal.apttus.com/) in place between Apttus Corporation ("Conga") and Customer (“Agreement”). In the event of any conflict between this SLA and the Agreement, this SLA shall prevail to the extent of any inconsistency.
Conga may amend this SLA 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 Conga written notice of rejection of the amendment. In the event of such rejection, this SLA will continue under its 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 Subscription Services following the effective date of an amendment will confirm Customer’s consent thereto. This SLA may not be amended in any other way except through a written agreement by authorized representatives of each party.
Definitions.
“Subscription Services” means the the online subscription services, including associated offline components, related online training and packaged technical support services provided or managed by Conga.
Availability: Conga warrants the Subscription Services will generally be available 99% of the time, except as provided below. General availability will be calculated per calendar quarter, as follows:
[(total – nonexcluded – excluded) *100] > 99%
total – excluded
Where:
total means the total number of minutes for the quarter
nonexcluded means downtime that is not excluded
excluded means the following:
- Any planned downtime. (NOTE - Conga planned downtime for scheduled maintenance takes place between 12:00 am and 11:59 am PT Saturdays. If the Subscription Services are hosted on the salesforce.com platform, then Conga will use the same maintenance schedule as published and used by salesforce.com.)
- Any period of unavailability lasting less than 5 minutes.
- Any unavailability caused by circumstances beyond Conga’s reasonable control, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Conga employees), or delays involving hardware, software or power systems not within Conga possession or reasonable control, and network intrusions or denial of service attacks.
Unavailability for some specific features or functions within the Subscription Services, while others remain available, will not constitute unavailability of the Subscription Services, so long as the unavailable features or functions are not, in the aggregate, material to the Subscription Services as a whole.
Penalties: Should Conga fail to meet 99% general availability of the Subscription Services for a calendar quarter, and this downtime significantly affected Customer’s ability to use the Subscription Services, Customer may continue to use the Subscription Services, but will receive credit for one half day of its Conga subscription, in that quarter, for each two hours of general Subscription Services unavailability below 99%. Any such credit may be applied ONLY against future invoices for Subscription Services. The penalties specified in this “Penalties” section shall be the sole remedies available to Customer for breach of this SLA.
Reporting and Claims: To file a claim under this SLA, Customer must send an email to sla@apttus.com with the following details:
- Billing information, including company name, billing address, billing contact and billing contact phone number
- Downtime information with dates and time periods for each instance of downtime during the relevant period
- An explanation of the claim made under this SLA, including any relevant calculations
Claims may only be made on a calendar quarter basis and must be submitted within 30 days after the end of the relevant quarter, except for periods at the end of a subscription agreement that do not coincide with a calendar quarter, in which case Customer must make any claim within 30 days after the end of its subscription agreement.
All claims will be verified against applicable system records. Should any periods of downtime submitted by Customer be disputed, Conga will provide to Customer a record of Subscription Services availability for the period in question. Conga will only provide records of system availability in response to good faith Customer claims.
Effective October 1, 2019 to October 12, 2020
DownloadTable of Contents
This Service Level Agreement (“SLA”) applies in addition to the master subscription agreement (whether formed by separately executed agreement or by acceptance of the Master Subscription Services Agreement located at http://legal.apttus.com/) in place between Customer and Apttus (“Agreement”). In the event of any conflict between this SLA and the Agreement, this SLA shall prevail to the extent of any inconsistency.
Apttus may amend this SLA 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, this SLA will continue under its 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 Subscription Services following the effective date of an amendment will confirm Customer’s consent thereto. This SLA may not be amended in any other way except through a written agreement by authorized representatives of each party.
Definitions.
“Subscription Services” means the the online subscription services, including associated offline components, related online training and packaged technical support services provided or managed by Apttus.
Availability: Apttus warrants the Subscription Services will generally be available 99% of the time, except as provided below. General availability will be calculated per calendar quarter, as follows:
[(total – nonexcluded – excluded) *100] > 99%
total – excluded
Where:
total means the total number of minutes for the quarter
nonexcluded means downtime that is not excluded
excluded means the following:
- Any planned downtime. (NOTE - Apttus planned downtime for scheduled maintenance takes place between 12:00 am and 11:59 am PT Saturdays. If the Subscription Services are hosted on the salesforce.com platform, then Apttus will use the same maintenance schedule as published and used by salesforce.com.)
- Any period of unavailability lasting less than 5 minutes.
- Any unavailability caused by circumstances beyond Apttus’ reasonable control, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Apttus employees), or delays involving hardware, software or power systems not within Apttus possession or reasonable control, and network intrusions or denial of service attacks.
Unavailability for some specific features or functions within the Subscription Services, while others remain available, will not constitute unavailability of the Subscription Services, so long as the unavailable features or functions are not, in the aggregate, material to the Subscription Services as a whole.
Penalties: Should Apttus fail to meet 99% general availability of the Subscription Services for a calendar quarter, and this downtime significantly affected Customer’s ability to use the Subscription Services, Customer may continue to use the Subscription Services, but will receive credit for one half day of its Apttus subscription, in that quarter, for each two hours of general Subscription Services unavailability below 99%. Any such credit may be applied ONLY against future invoices for Subscription Services. The penalties specified in this “Penalties” section shall be the sole remedies available to Customer for breach of this SLA.
Reporting and Claims: To file a claim under this SLA, Customer must send an email to sla@apttus.com with the following details:
- Billing information, including company name, billing address, billing contact and billing contact phone number
- Downtime information with dates and time periods for each instance of downtime during the relevant period
- An explanation of the claim made under this SLA, including any relevant calculations
Claims may only be made on a calendar quarter basis and must be submitted within 30 days after the end of the relevant quarter, except for periods at the end of a subscription agreement that do not coincide with a calendar quarter, in which case Customer must make any claim within 30 days after the end of its subscription agreement.
All claims will be verified against applicable system records. Should any periods of downtime submitted by Customer be disputed, Apttus will provide to Customer a record of Subscription Services availability for the period in question. Apttus will only provide records of system availability in response to good faith Customer claims.
Effective March 7, 2019 to October 1, 2019
DownloadTable of Contents
This Service Level Agreement (“SLA”) applies in addition to the master subscription agreement (whether formed by separately executed agreement or by acceptance of the Master Subscription Services Agreement located at http://legal.apttus.com/) in place between Customer and Apttus (“Agreement”). In the event of any conflict between this SLA and the Agreement, this SLA shall prevail to the extent of any inconsistency.
Apttus may amend this SLA 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, this SLA will continue under its 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 Subscription Services following the effective date of an amendment will confirm Customer’s consent thereto. This SLA may not be amended in any other way except through a written agreement by authorized representatives of each party.
Definitions.
“Subscription Services” means the the online subscription services, including associated offline components, related online training and packaged technical support services provided or managed by Apttus.
Availability: Apttus warrants the Subscription Services will generally be available 99% of the time, except as provided below. General availability will be calculated per calendar quarter, as follows:
[(total – nonexcluded – excluded) *100] > 99%
total – excluded
Where:
total means the total number of minutes for the quarter
nonexcluded means downtime that is not excluded
excluded means the following:
- Any planned downtime. (NOTE - Apttus planned downtime for scheduled maintenance takes place between 12:00 am and 11:59 am PT Saturdays. If the Subscription Services are hosted on the salesforce.com platform, then Apttus will use the same maintenance schedule as published and used by salesforce.com.)
- Any period of unavailability lasting less than 5 minutes.
- Any unavailability caused by circumstances beyond Apttus’ reasonable control, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Apttus employees), or delays involving hardware, software or power systems not within Apttus possession or reasonable control, and network intrusions or denial of service attacks.
Unavailability for some specific features or functions within the Subscription Services, while others remain available, will not constitute unavailability of the Service, so long as the unavailable features or functions are not, in the aggregate, material to the Subscription Services as a whole.
Penalties: Should Apttus fail to meet 99% general availability of the Subscription Services for a calendar quarter, and this downtime significantly affected Customer’s ability to use the Subscription Services, Customer may continue to use the Subscription Services, but will receive credit for one half day of its Apttus subscription, in that quarter, for each two hours of general Subscription Services unavailability below 99%. Any such credit may be applied ONLY against future invoices for Subscription Services. The penalties specified in this “Penalties” section shall be the sole remedies available to Customer for breach of this SLA.
Reporting and Claims: To file a claim under this SLA, Customer must send an email to sla@apttus.com with the following details:
- Billing information, including company name, billing address, billing contact and billing contact phone number
- Downtime information with dates and time periods for each instance of downtime during the relevant period
- An explanation of the claim made under this SLA, including any relevant calculations