Version: 1.4 SaaS EULA CCRM

Transcription

1 Version: 1.4 SaaS EULA CCRM 1. Introduction 1.1 We provide an on line automation tool which allows s to be captured and stored within Salesforce.com database ( CCRM ). 1.2 CCRM is provided as software as a service ( SaaS ). 1.3 This license sets out the terms on which we permit such access to you. 2. Interpretation 2.1 In this license: (a) a reference to using or accessing CCRM means only using or accessing its software functionality through SaaS; (b) a reference to us, we or our CCRM Company CCRM.com Licensor is a reference to CCRM.com Pty Ltd ACN of York Street South Melbourne, Victoria 3205, Australia; (c) a reference to you or your is a reference to the end user of the CCRM. (d) a reference to software functionality means only CCRM and not Salesforce.com; and (e) subject to clause 6.1, a reference to CCRM includes a reference to any form, letters, reports and report structures, and other content comprised in it, and any code on a SaaS Platform (or any particular MX or other DNS configuration that we require) that is rendered by a client interface to allow access to CCRM. 2.2 We may customize, modify, enhance, adapt, update or replace the CCRM in our absolute discretion, and a reference to CCRM includes such customization, modification, enhancement, adaptation, update or replacement. 3. License 3.1 We will notify you when your account is ready for use, and provide you with account access details to enable CCRM from within Salesforce.com. 3.2 You may then use CCRM for as long as you: (a) (b) (c) (d) (e) (f) have our agreement to use it; are required to under the minimum term of this license; use Salesforce.com; ensure that the number of simultaneous End Users does not exceed the number licensed (unless we agree otherwise in writing); pay all fees and charges due to us in respect of the use of CCRM as and when due; and comply with this license. 3.3 Any access to or use of CCRM by you constitutes acceptance of the terms of this license. 3.4 Subject to clause 4.1, you or your contractors may set up a user account and account access details.

2 3.5 Before you provide access to an account setup in accordance with clause 3.4, you must ensure that the person who is going to use the account complies with the terms of this document. 3.6 A breach of this agreement by any person that you provide access to CCRM, is deemed to be a breach of this license by you. 3.7 We currently offer two types of service: (a) CCRM Pro; and (b) CCRM Enterprise; 3.8 Depending on the type of service you choose, you may be required to update your MX records to point to our servers. 3.9 Where you nominate the CCRM Enterprise licence, we will use the MailGuard mail filtering service to provide CCRM to you in which case MailGuard s standard terms of service (found at or such other location as maybe notified from time to time) apply to your agreement with us (in addition to these terms), on the basis that a reference to MailGuard is a reference to us and a reference to the customer is a reference to you; 3.10 If we, in our sole discretion, offer you a limited time trial of CCRM these terms apply to your use during that trial period Consideration for your acceptance of these terms during the trial period is your agreement that at the end of your limited time trial, you will automatically enter into a 12 month minimum term contract with us for CCRM Pro and a 36 month minimum term for CCRM Enterprise (in accordance with clause21), unless you notify us in writing (in accordance with clause 22) that you do not wish to continue beyond the limited time trial. 4. Fees 4.1 In order to obtain account access and a license to use CCRM in accordance with the terms of this license you may be asked to pay an upfront set up fee ( Setup Fee ) in accordance with our then current price list. 4.2 As well as the Setup Fee, you must pay a service fee for the use of CCRM, in accordance with our then current price list (which can be found on our website or which is available on request). 4.3 If you fail to pay any fee within our payment terms, your license to use CCRM may be terminated or suspended by us in accordance with this agreement but we will only suspend your account if your fees are at least 7 days overdue. 4.4 Despite clauses 4.1, and 4.2, we may, in our sole discretion, agree to alternative payment plans or payment terms in writing. 5. Functionality We will make software functionality apparent: 5.1 through the design of the client interface; 5.2 through instruction manuals and other documentation supplied to you; and / or 5.3 by other instructions to you.

3 6. IP Ownership 6.1 We will be the sole and exclusive owner of CCRM and all customization, modifications, enhancements, adaptations, updates or replacements of it as well as any other material or data used by us which is not customer data ( CCRM Software ). Title to all rights in the CCRM Software, including all rights to patents, trademarks, trade names, trade secrets and copyrights applicable thereto, shall remain vested in Licensor. You shall not remove or interfere with the display of, and shall reproduce and include as part of the informational content, any patent, trademark, copyright, proprietary or other notice or notices as Licensor from time to time may believe to be necessary or advisable in order to protect the rights of Licensor, or anyone else designated by Licensor in and to the CCRM Software, on any copies in any form that Licensee at any time uses, has access to or possesses of the CCRM Software, in whole or in part, whether or not modified, and, in any format. 6.2 You retain ownership in your s that are processed through CCRM ( customer data ). 6.3 Your rights under this license are not exclusive. We may license CCRM to anyone else we choose. 6.4 You consent to: (a) us using your details (including the number of s) for statistical, audit, compliance and marketing purposes; (b) receiving promotional, marketing material or information updates from us, including by way of delivery; (c) disclosure by us of this information to our Related Entities (as defined by section 9 of the Corporations Act 2001). 6.5 If you require customer data from us, we may impose a fee for providing it. 7. Using CCRM You must: 7.1 only use or attempt to use software functionality as intended by us; 7.2 comply with the current editions of all technical and instructional manuals and documentation provided by us from time to time; 7.3 comply with any operational guidelines or emergency directions issued by us; 7.4 not copy, decompile, replicate, reverse engineer, assign or sublicense any part of CCRM ; 7.5 promptly report to us any errors, defects or malfunctions you experience or observe, in as much detail as you are reasonably able to; 7.6 not do anything calculated to damage or impair CCRM or the SaaS Platform; 7.7 comply with all laws; 7.8 comply with any rules or terms which Salesforce.com may publish from time to time; 7.9 not publish any material which gives rise to, or is likely to give rise to, any civil or criminal liability, including the publication of defamatory material or the infringement of a third party s intellectual property;

4 7.10 not purport to grant any interest in, sub-license of or derivative right to use CCRM except as permitted by this document; 7.11 not do anything that is detrimental to us, our business, our officers, employees, distributors or agents. 8. Access and security You must: 8.1 only access CCRM using account access details supplied and approved by us; 8.2 keep your account access details secure and confidential; you agree and understand that you are solely and entirely responsible for any and all activities that occur under your account. 8.3 subject to compliance with clause 12.2, only disclose your account access details to your own servants, agents or contracted consultants (your people ) on a need-to-know-basis; 8.4 regularly change access passwords and keep records of all passwords used or disclosed, in accordance with good computer security practice; 8.5 if you become aware that account access details are in unauthorized hands: (a) change any compromised access password immediately; (b) take any other step reasonably necessary to ensure that no-one suffers harm as a result; and 8.6 keep your computer system, network and internet connectivity secure and confidential in accordance with good computer security practice; and 8.7 make regular backups of all customer data which passes through CCRM unless we have agreed in writing to provide backup services for you. 9. User documentation All manuals, instructions, literature and other documentation supplied in connection with CCRM ( user documentation ) are copyright to us and provided by way of loan only. 10. Support 10.1 If you require technical support we may choose to provide: (a) telephone support; or (b) or online support Where we provide technical support we will endeavour to respond to critical requests within 3 working days, however we do not provide any service levels on response times unless we agree otherwise in writing Where we provide support: (a) we only provide application support during business hours (9am to 5pm Australian Eastern Standard Time) and on business days (Monday to Friday, except on public holidays in the State of Victoria Australia), unless we agree otherwise in writing; (b) we may:

5 (i) (ii) in our sole discretion, impose a fee for support services that we provide in accordance with the fee schedule attached herein as Exhibit A Fees for Support Services; and subcontract the support services to a third party, and ask them to collect fees on our behalf. 11. Limitation on obligations 11.1 Subject to clause 14.3, our obligations under this license are limited to the express obligations set out in it To avoid doubt, unless we say otherwise nothing in this license obliges us to provide user documentation, training or any other support in relation to CCRM. If such services, or other services, are to be provided, they will first be documented in writing. 12. Staff Control You may allow your people (and Contractors) to access or use CCRM, but: 12.1 their acts and omissions with respect to CCRM are taken to be your acts and omissions; and 12.2 you must ensure that they do not do, or fail to do, anything that would breach this license if you did, or failed to do, that thing. 13. Technical requirements, performance and availability 13.1 We will publish minimum technical requirements for the use of CCRM, and may revise them from time to time You acknowledge that: (a) connection to the internet poses significant security and virus threats, and that the use of regularly updated anti-virus software and a firewall is very important; (b) we do not provide service levels or uptime for these services, and that scheduled maintenance, emergencies or unscheduled outages may occur from time to time which may leave the services unavailable or with limited functionality; access to and use of CCRM may be impaired or prevented by a variety of factors that are beyond our control, for instance defects in Salesforce.com and problems with internet connectivity between you and the SaaS Platform and we are not responsible for any such things or their effects. They do not constitute defects in CCRM Unless we agree in writing, we are not obliged to provide backups of your data that is captured by CCRM and where we do agree we may charge additional fees in accordance with our price list As CCRM is accessed by the Salesforce.com Platform: (a) we have no control over quality or availability; (b) we do not offer a service level agreement for CCRM or Salesforce.com; and (c) you may experience latency issues.

6 14. Indemnity, warranties, liability 14.1 To the extent permitted by relevant laws, we exclude all warranties, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose EXCEPT AS EXPRESSLY STATED HEREIN, THE CCRM SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED AND WE SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SUBJECT MATTER HEREOF, MAINTENANCE OR OTHER GOODS TO BE SUPPLIED, OR SERVICES TO BE PERFORMED BY LICENSOR. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, WE DO NOT WARRANT THAT THE CCRM SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED FOR USE BY YOU OR THAT THE CCRM SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE, NOR THAT ALL SOFTWARE ERRORS, DEFECTS OR INEFFICIENCIES WILL BE CORRECTED, NOR DO WE ASSUME ANY LIABILITY FOR FAILURE TO CORRECT ANY SUCH ERROR, DEFECT OR INEFFICIENCY. ANY AND ALL RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. OUR TOTAL LIABILITY UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LIABILITY FOR ANY ALLEGED NEGLIGENCE, GROSS NEGLIGENCE OR EVEN INTENTIONAL ACTS, TO YOU OR TO ANYONE CLAIMING ON BEHALF OF OR THROUGH YOU SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO US ATTRIBUTABLE TO THE CCRM SOFTWARE DIRECTLY INVOLVED IN THE ISSUES YOU BRING UP FOR THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE, OR THE COMPARABLE AMOUNT WHICH WOULD HAVE BEEN PAID OVER THAT PERIOD OF TIME, GIVING RISE TO ANY SUCH CLAIM AND YOU ACCEPT THIS AMOUNT AS BEING A REASONABLE MAXIMUM AMOUNT AS LIQUIDATED DAMAGES. IN NO EVENT WILL WE BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY DAMAGES RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM LOSS OF DATA, PROFITS, USE, BUSINESS OR LOSS OF MONIES DEPOSITED TO OR REMOVED FROM EQUIPMENT OR SYSTEM OR ANY AFFILIATED COMPONENTS OR PERFORMANCE OF PRODUCTS OR SOFTWARE, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, HOWEVER CAUSED, WHETHER BY THE NEGLIGENCE, GROSS NEGLIGENCE, OR INTENTIONAL ACTS BY US OR THOSE RELATED TO OR UNDER OUR CONTROL. THIS LIMITATION OF OUR LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR INTENTIONAL ACTS BY LICENSOR S EMPLOYEES. ANY ACTION AGAINST LICENSOR MUST BE BROUGHT WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES OR BE FOREVER WAIVED We do not warrant that CCRM will operate in environments other than as specified in the minimum technical requirements or that its operation will be uninterrupted or error-free. 15. Rights and remedies for PDH goods and services Important consumer information (for Australian Residents only): Full details of the consumer rights and remedies referred to in clauses 15 and 16 can be obtained from the

7 Australian Competition and Consumer Commission (ACCC) at or from a local consumer protection agency. (a) (b) If we supply you with goods or services of a kind ordinarily acquired for personal, domestic or household (PDH) use or consumption you have important rights under the Australian Consumer Law (ACL) including consumer guarantees and remedies. Nothing in your Contract limits those rights and remedies in any way. If we supply you with PDH Goods or Services, and you are told they come with a manufacturer s warranty or one year product assurance or similar, those rights are in addition to, and not instead of, your rights under the ACL. 16. Rights and remedies for non-pdh goods costing no more than AU$40,000 If we supply you with goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and cost no more than AU$40,000 you have important rights under the ACL including consumer guarantees and remedies but: (a) (b) (c) in relation to these goods, our liability for failure to comply with a consumer guarantee (other than certain guarantees about ownership and undisturbed use) is limited to: (i) replacing the goods or supplying equivalent ones; (ii) repairing the goods; (iii) paying the cost of replacing the goods or of acquiring equivalent ones; or (iv) paying the cost of having the goods repaired; and in relation to these services, our liability for failure to comply with a consumer guarantee is limited to: (i) supplying the services again; or (ii) paying the cost of having the services supplied again. If we supply you with non-pdh Goods or Services that cost no more than $40,000, and you are told they come with a manufacturer s warranty or one year product assurance or similar, those rights are in addition to, and not instead of, your rights under the ACL. 17. Personal injury or death To the extent that our negligence causes personal injury or death, we accept liability on normal principles of law. 18. Exclusion of implied terms and limitation of liability Important consumer information: Nothing in this clause 18 limits the consumer rights and remedies referred to in clauses 15 and 16 for Australian Residents Only. (a) (b) (c) Subject to clauses 15, 16, and 17: Any representation, warranty, condition or undertaking that would be implied in your Contract by legislation, common law, equity, trade, custom or usage or otherwise is excluded from your Contract to the fullest extent permitted by law. We do not warrant or represent the performance, accuracy, reliability or continued availability of CCRM or that it will operate free from faults, errors or interruptions. We are never liable to you for, and you release us from any Claim for, any Contract Loss.

8 19. Your liability to us General (a) (b) (c) (d) You must pay us all fee and other amounts due under your licence with us, within our payments terms. You must indemnify us for any loss or damage we suffer as a result of or in connection with: (i) your breach of your licence with us; (ii) your use of the service; You indemnify us for any loss or damage we suffer in connection with any claim made against us by a third party arising out of or in relation to your use of CCRM. Your obligations under this clause survive termination of your licence with us. 20. Your liability to us (alleged) illegal use, etc (a) (b) This clause applies where: (i) your Service is actually or allegedly used in a way that breaches any law or infringes the rights of any third party; and (ii) we suffer loss or reasonably incur expense as a result. You must make good our loss and reimburse our expenses on request. 21. Minimum Terms and Termination 21.1 Where we agree to provide you with CCRM for a minimum term you must acquire CCRM for that term, and you may not terminate this agreement during that minimum term Unless we agree otherwise in writing the minimum term of this agreement is 12 months for CCRM Pro and 36 months for CCRM Enterprise and we may require payment annually in advance The minimum term of your agreement with us continually and automatically renews for a further minimum term of 12 months unless one of us gives the other written notice that they do not wish to renew it at least 60 days before the end of the current term If a notice under clause 21.3 is given less than 90 days before the end of the then current minimum term, it takes effect at the end of the subsequent minimum term, not the end of the current minimum term If you breach clause 21.1, then you are not entitled to a refund of fees paid We may terminate the license and this agreement: (a) immediately, if you breach any term of this license; (b) on 30 days notice to you, where we no longer wish to provide the service, or for any other reason; (c) on 7 days notice to you, where you fail to pay money by its due date; 21.7 If you breach any term of this license you are also deemed to be in breach of any other agreement you have with us, and vice versa. 22. Notice 22.1 Either party can give the other notice:

9 (a) by (and in your case, our address or such other address as we may direct from time to time; and (b) in no other way Service of a notice is deemed to occur if it is ed: at the time it leaves the sender s server; 22.3 A notice from you must be signed and include the name and title of the sender. We are never obliged to verify any mark that purports to be your signature. If you are a corporation, we are never obliged to verify the authority of anyone who purports to sign on your behalf Any notice that is sent must be in the English language. 23. Severance If any provision in this agreement is unlawful or inconsistent with any law, then to the extent of the unlawful nature or inconsistency, that provision may be severed from without affecting the remainder of the agreement. 24. Waiver No right under this agreement can be waived except by notice in writing signed by the party waiving it. It a party overlooks a breach of this agreement by the other party on one or more occasions, it is not taken to have agreed to any future breach. 25. Variation Except for any express rights to vary this agreement, no variation is effective unless in writing, signed by both parties, and expressed to be intended to vary this agreement. 26. Assignment and novation 26.1 You cannot transfer, assign, novate or sublicense any or all of its rights, duties or obligations in this agreement to, or share them with, a third party, without our prior written approval We may transfer, assign, novate or sublicense this agreement without your consent at any time. 27. Inconsistency 27.1 If any term or condition of this agreement is inconsistent with the: (a) law, then the inconsistent term or condition will be read down to the extent of the inconsistency (or severed if absolutely inconsistent) without affecting the balance of the agreement. (b) terms referred to in clause 3.9, then these terms apply to the extent of the inconsistency. 28. Entire agreement 28.1 This agreement is the sole and entire agreement between the parties and supersedes in their entirety any and all oral or written agreements previously existing between the parties. For the avoidance of doubt, this Agreement shall in no way supersede any terms and conditions of any third-party software license agreement.;

10 28.2 Any prior representations, negotiations, arrangements or understandings are superseded by the terms of this agreement. 29. Governing law and jurisdiction and associated Rights 29.1 The law of the state of Victoria, Australia governs this license The parties submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their appeal courts. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The Parties consent to the personal jurisdiction of the above courts. In the event any proceeding or lawsuit is brought by either party in connection with this Agreement, the prevailing Party in such proceeding shall be entitled to receive its costs, expert witness fees and reasonable attorneys fees, including costs and fees on appeal. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of non-monetary terms of this Agreement by You will cause Us irreparable damage for which recovery of money damages would be inadequate, and that We therefore shall be entitled to obtain timely injunctive relief to protect this Our rights under this Agreement in addition to any and all remedies available at law. 30. Dictionary The following terms have these meanings: Account access details means any user name/s, passwords, software keys, or other information required to access CCRM Claim means any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim) Customer data has the meaning as defined in clause 6.2. Contract Loss means loss or damage suffered by a party and arising in connection with or out of your Contract or any supply made under it (whether pleaded in contract, tort, breach of statutory duty or on any other basis, and whether arising from acts or omissions, and whether or not loss or damage the risk of which another party was or should have been aware), including but not limited to: economic loss; business interruption; loss of revenue, profits, actual or potential business opportunities or contracts; anticipated savings; loss of profits; loss of data; indirect or consequential loss; an obligation to indemnify another person; an obligation to contribute to the compensation of loss or damage suffered by another person

11 SaaS platform means Salesforce.com and/or MailGuard servers that host software and/or process customer data, provided for use under this agreement Software functionality means the functionality of software provided for your use.

12 EXHIBIT A: FEES FOR SUPPORT SERVICES In accordance with Clause 10.3 (b)(i) the current hourly rate for support services is US$ This rate may be changed from time to time.