“SFDC” means salesforce.com.
“SFDC Service” means the online, Web-based application and platform service generally made available to the public via http://www.salesforce.com and/or other designated websites, including associated offline components but excluding AppExchange applications.
“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.
“Your Data” means all electronic data or information submitted by You as and to the extent it resides in the SFDC Service.
“SFDC Instance” means a separate set of Your Data and SFDC product customizations held by SFDC in a logically separated database (i.e., a database segregated through password-controlled access).
“Reseller” means Audit9 Limited.
“Reseller Application” means Oval Accounting.
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of this Access License Agreement, together with any other terms required by Reseller.
1. Introduction and Acceptance.
This Access License Agreement (the “Agreement”) is a legal agreement between You and the Reseller setting forth the terms and conditions under which the Reseller will grant You the right to access and use the Reseller Application.
BEFORE YOU AGREE TO THE TERMS AND CONDITIONS, CAREFULLY READ THIS AGREEMENT. IF YOU ARE A CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER ENTITY, THEN THE PERSON SIGNING THIS AGREEMENT ON THE ENTITY’S BEHALF REPRESENTS THAT HE OR SHE IS AUTHORISED TO SIGN FOR AND BIND THE ENTITY. IF YOU ARE NOT AUTHORISED TO SIGN FOR AND BIND THE ENTITY, THEN DO NOT AGREE TO THE TERMS AND CONDITIONS AND DO NOT ACCESS OR USE THE SOFTWARE. BY CLICKING “I ACCEPT” BELOW OR INSTALLING THE RESELLER APPLICATION, YOU ARE SIGNING THIS AGREEMENT, AND ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.
2. Software.
Subject to the restrictions set forth below and the payment of all applicable subscription fees, the Reseller grants You a limited, non-exclusive, non-transferable, non-sublicenseable right to install the Reseller Application in Your SFDC Instance for use by You in connection with Your internal business purposes. This right extends to a single production (non-Sandbox) Salesforce instance only. Notwithstanding the foregoing and subject to the terms of this Agreement, You may access and use the Reseller Application on a trial basis and free of charge for a period not to exceed thirty (30) calendar days (“Trial Period”). It is not recommended that the Reseller Application be used for any purpose within your production Salesforce Instance during the trial period without consultation with the Reseller. The Reseller disclaims responsibility and liability for any consequence of doing so. Your information will be disclosed to Salesforce and will be used by Salesforce pursuant to its privacy policy available at http://www.salesforce.com.
3. Software Availability.
You acknowledge that access to and use of the Reseller Application is dependent on the availability and proper functioning of Your SFDC Instance and that the Reseller has no control over your SFDC Instance or the SFDC Service. The Reseller disclaims responsibility and liability for any inability to access or use the Reseller Application, or degradation of the performance of the Reseller Application, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, Your SFDC Instance or other third party owned or controlled technology. You are solely responsible for the configuration of Your SDFC Instance and all technology and services necessary to access and use the Internet and Your SFDC Instance.
4. Ownership.
4.1 The rights granted hereunder do not constitute a transfer or sale of the Reseller’s ownership rights in or to the Reseller Application, including, without limitation: (a) the Reseller Application and the applicable documentation; (b) Reseller name, logo, domain name, Reseller Application name, logo, domain name and other trademarks; and (c) hardware, processes, algorithms, user interfaces, know-how and other trade secrets or technology (collectively, “Proprietary Technology”). The Proprietary Technology is protected by applicable intellectual property laws, including, but without limitation, United Kingdom copyright laws and international treaties. Except for the rights granted above, the Reseller retains all right, title and interest in and to the Proprietary Technology, including all intellectual property rights therein.
4.2 As between the Reseller and You, You own the information in Your SFDC Instance and the Reseller makes no claim of ownership to any information in Your SFDC Instance. You grant the Reseller all rights to the information in your SFDC Instance that are necessary for the Reseller Application to perform as intended. You are solely responsibility for the accuracy of all information in Your SFDC Instance.
5. Restrictions; Responsibilities.
5.1 YOU MAY NOT (AND MAY NOT ALLOW A THIRD PARTY TO) RENT, LEASE, SUBLICENSE, SELL, CHARGE, ASSIGN, LOAN, USE FOR TIMESHARING OR SERVICE BUREAU PURPOSES OR OTHERWISE TRANSFER THE RESELLER APPLICATION OR ANY OF YOUR RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT. You may not (and may not allow a third party to): (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Reseller Application by any means whatsoever, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; (c) attempt to circumvent any use restrictions or gain unauthorised access to the Reseller Application, computer systems or networks related to the Reseller Application; (d) modify or create derivative works based on the Reseller Application; (e) copy or distribute the Reseller Application; (f) allow use of the Reseller Application by anyone other than user(s) authorised and paid for by You; (g) knowingly transmit through the Reseller Application unlawful, libellous, tortious, defamatory, threatening, vulgar, or obscene material or material containing viruses or other harmful code; or (h) otherwise use the Reseller Application other than as permitted in Section 2. You acknowledge that the Reseller may utilise technological license control features that can limit Your access to or use of Reseller Application to ensure Your compliance with this Agreement.
5.2 You are responsible for all activity occurring under your user accounts, including the consequential impact on Your Data, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Reseller Application, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) use commercially reasonable efforts to prevent unauthorised access to, or use of, the Reseller Application, and will notify the Reseller promptly of any unauthorised use of any password or account or any other known or suspected breach of security; (ii) report to the Reseller immediately and use reasonable efforts to stop immediately any unauthorised copying or distribution of content that is known or suspected by you or your users; and (iii) not impersonate another user or provide false identity information to gain access to or use the Reseller Application. You will not attempt to or use your access to the Reseller Application to knowingly interfere with or disrupt the integrity or performance of the Reseller Application or the data contained therein.
6. Fees and Payment.
You subscribe to the Reseller Application with an annual subscription and shall pay in advance an annual fee to access and use the Reseller Application. An initial invoice will be provided on the date of order confirmation; upon payment your subscription to the Reseller Application will be activated for a 12-month fixed term. The end date of this subscription term will be referred to as the subscription renewal date. 30 days before the subscription renewal date a renewal invoice will be provided; upon payment your subscription will be activated for a further 12-month fixed term from the subscription renewal date. Payment must be made on or prior to the subscription renewal date; failure to do so will result in your subscription to the Reseller Application being terminated. The fees do not include any taxes or duties of any kind, which may be imposed by any governmental entity on the transactions contemplated by this Agreement, and You shall be solely responsible for all such taxes other than taxes based solely on the Reseller’s income. All amounts paid are non-refundable. All fee amounts are quoted in and must be paid in GBP Sterling. In addition to any other rights granted to the Reseller herein, the Reseller reserves the right to suspend your access to and use of the Reseller Application if you fail to pay any undisputed amount owed on or before its due date.
7. Term.
You subscribe to the Reseller Application with a fixed-term (the “Agreement Term”) comprised of one or more annual Subscription Terms (each of which is 12 calendar months elapsed). This subscription will automatically renew within the Agreement Term, unless terminated by either party. Renewals outside of the Agreement Term are not automatic.
8. Termination.
Either party shall have the right to terminate this Agreement in the event of a breach by the other party, which breach has not been cured within 30 days of the receipt of written notice thereof, except in the case of Your failure to pay any fees when due hereunder, which must be cured within 5 days after receipt of written notice from the Reseller. Either party may terminate this Agreement if the other party becomes the subject of an involuntary petition in bankruptcy or other proceeding relating to insolvency, receivership, or liquidation, if such petition is not dismissed within 60 days of filing. Upon termination of this Agreement for any reason, the rights granted to You hereunder will immediately terminate and You shall immediately discontinue any use of the Reseller Application. Termination shall not relieve You of the obligation to pay any fees accrued or payable to the Reseller prior to the effective date of termination. Unilateral termination for convenience by You within a multi-year Agreement Term will require termination fees to be settled equal to the value of all discounts received to date plus 25% of the fees due for future Subscription Terms within the Agreement Term.
9. Support.
The Reseller will provide email support to You for current versions of the Reseller Application. The Reseller will investigate all of Your questions and problems promptly. You agree to provide adequate information to the Reseller to assist in the investigation and to confirm that any problems have been resolved. The Reseller does not provide a guaranteed response time as standard, but will make good faith effort to respond to all support enquiries within twenty-four (24) hours or less during weekdays, excluding holidays. The Reseller operates in the United Kingdom and will observe standard UK business hours. The Reseller may, in its sole discretion, from time to time update the Reseller Application and may include such updates, free of charge, in the Reseller Application, provided You have paid all applicable fees then due hereunder.
10. Confidentiality.
“Confidential Information” means information disclosed by either party to the other, whether orally, electronically or in writing, which is designated as confidential or would reasonably be considered to be confidential under the circumstances by a reasonable person. The Reseller “Confidential Information” shall include, but not be limited to, Reseller Application, documentation, technology and technical information, product designs and business processes. Each party agrees to use Confidential Information solely to perform obligations and exercise rights under this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party without the other’s prior written consent. Each party shall safeguard the Confidential Information of the other party using the same measures it uses to protect its own confidential information, but in no event less than reasonable care. Notwithstanding the foregoing, neither party bears responsibility for safeguarding information that is publicly available without breach of an obligation owed to the disclosing party hereunder, obtained from third parties not under confidentiality restrictions, independently developed or known to the recipient without breach of an obligation owed to the disclosing party, or required to be disclosed by order of court or other governmental entity. If either party breaches, or threatens to breach the provisions of this Section 10, each party agrees that the non-breaching party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief.
11. Customer Warranties.
You shall be solely responsible for all activities in connection with the Reseller Application that occur under Your username(s). Without limiting the generality of the foregoing, You shall: (i) comply with all applicable laws and regulations; and (ii) be solely responsible for the accuracy, reliability, and quality of any information or data submitted by You to the Reseller or processed using the Reseller Application. You warrant that any data, content, or materials used, stored or created by You, using the Reseller Application will not infringe the copyright, trade secret, patent, privacy, publicity, or other proprietary or intellectual property right of any third party.
12. Breach of Customer Warranties.
In the event of any breach, or reasonably anticipated breach, of any of Your warranties or obligations, or You infringe or misappropriate the Reseller’s intellectual property rights, in addition to any other remedies available at law or in equity, the Reseller will have the right to immediately suspend Your access to or use of the Reseller Application and/or terminate this Agreement, if deemed reasonably necessary by the Reseller to prevent any harm to the Reseller or its business.
13. Indemnity.
Customer shall indemnify and hold the Reseller and its subsidiaries, affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses or costs (including reasonable legal fees and costs), arising out of a claim or demand alleging that any data or content submitted by You to the Reseller infringes, misappropriates, or violates any rights of a third party including any third party intellectual property rights.
14. WARRANTY DISCLAIMER.
THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTION OF THE RESELLER APPLICATION TO ACHIEVE ITS INTENDED RESULTS AND FOR THE USE OF AND RESULTS OBTAINED FROM THE RESELLER APPLICATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE RESELLER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE. THE RESELLER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE RESELLER APPLICATION WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, OR ERROR-FREE.
15. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES WILL THE RESELLER OR SALESFORCE.COM BE LIABLE FOR LOSS OF PROFITS, BUSINESS OR DATA (EVEN IF THE SAME WERE JUDGED BY A COURT TO BE DIRECT LOSSES) OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER SUCH PECUNIARY LOSS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, ARISING OUT OF THE USE OR INABILITY TO USE THE RESELLER APPLICATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE RESELLER OR SALESFORCE.COM’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY YOU FOR THE RESELLER APPLICATION FOR THE IMMEDIATELY PRECEDING 12 MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THEIR ESSENTIAL PURPOSE. THE ABOVE WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY AND DAMAGES INURE TO THE BENEFIT OF THE SALESFORCE.COM.
16. Survival.
The following provisions will survive any expiration or termination if this Agreement: Sections 4 (Ownership), 5 (Restrictions), 6 (Fees and Payment), 8 (Termination), 10 (Confidentiality), 11 (Customer Warranties), 13 (Indemnity), 14 (Warranty Disclaimer), 15 (Limitation of Liability), 16 (Survival), 17 (General).
17. General.
This Agreement shall be governed by United Kingdom law without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the United Kingdom. This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii) any other form of combination or reorganisation involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void. No text or information set forth on any other purchase order, preprinted form or document (other than an associated Reseller quote or invoice, if applicable) shall modify the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between You and the Reseller. The failure of the Reseller to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by the Reseller in writing. This Agreement, together with any associated Reseller quote or invoice, comprises the entire agreement between you and the Reseller and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. All notices, required or permitted under this Agreement must be delivered in writing by courier, or by registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement. Notice hereunder will be effective (a) upon receipt or 3 days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner, or (b) if delivered by email, upon receipt of email if delivered by email.
Any notice to the Reseller will be delivered in writing to:
Audit9 Limited
Suite 105 Mistral House
Kingfisher Way
Newcastle-upon-Tyne
NE28 9NX
United Kingdom
Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure.
