Terms & Conditions
1. SERVICES AND SUPPORT
1.1. Provision of Services. Subject to the terms of the Agreement and Customer’s payment of undisputed fees, Company grants Customer a non-exclusive, non-transferable (except in accordance with 10.2), non-sublicensable right to access and use the Services solely for Customer’s internal use during the Term (as defined below). Company will provide Customer with reasonable technical support services for the Services.
1.2. Authorized Users. Customer may authorize individuals to access and use the Services (each, a “User”), and Users may include Customer’s employees, affiliates and contractors acting on its behalf, so long as Customer remains responsible for their compliance hereunder. From the group of Users authorized by Customer, Customer will identify an individual User’s account to serve as the administrative account for the Services.
1.3. Usage Limits. Each subscription to the Services is subject to usage limits (e.g., a certain number of Contact Tracking Leads) more fully described in the Order Form. Additional quantities of the Services may be purchased as specified in the Order Form. Any added quantities will terminate on the same date as the underlying subscription. Except as otherwise provided herein, the listed quantities of the Services specified in the Order Form cannot be decreased prior to the end of the then-current Initial Service Term or Renewal Term, regardless of any termination, non-payment, or non-use by Customer.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Customer and its Users will be responsible for (a) maintaining the security of its and their accounts, passwords and files, and (b) all uses of its and their accounts (with or without Customer’s knowledge or consent) ,but excluding any uses by Company.
2.2. Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to any portion of the Services, unless this restriction is not permitted under applicable law; (b) copy, modify, translate, or create derivative works based on any portion of the Services (except to the extent expressly permitted by Company or authorized within the Services); (c) sell, rent, lease, pledge, assign or use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels contained in the Services; (e) use any portion of the Services for any fraudulent or unlawful purposes or in violation of any third party’s proprietary or contractual rights; (f) use any portion of the Services to build any products or services that are competitive to any portion of the Services or to create similar ideas, features, or functions of any portion of the Services; (g) interfere or attempt to interfere with the proper working of the Services or any other user’s use of the Services; (h) bypass any measures Company or its licensors may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected) scan or test vulnerability of the Services or related products and services without Company’s prior written consent; or (i) access any portion of the Services for any benchmarking, comparative or competitive purposes.
2.3. A platform provided by Workato, Inc. (“Workato”) that is designed to connect applications and automate workflows may be provided to Customer through the Services (the “Workato Platform”). Recipes and Connectors (each as defined below) created by Customer are private by default, which means that only Customer has access to such Recipes and Connectors in its account. Workato, will not resell or reuse or distribute, or permit any third party to resell, reuse or distribute, any private Recipe or any private Connector created by Customer. Customer can decide (at its own discretion) to share the private Recipes and private Connectors with other Workato users by marking them “public,” and Customer grants Workato an irrevocable, perpetual, transferable, sublicensable and worldwide license under any rights Customer owns in those Recipes and Connectors that are marked public, to view, use, copy, modify and distribute those Recipes and Connectors. Those Recipes and Connectors will become part of the broader community Recipes and Connectors in the Workato Platform (as defined below). Customer agrees that it will not assert any claim or prosecute any action against Workato or any Workato users for infringement or misappropriation of any Recipes or Connectors which are similar to, or the same as, any Recipes and Connectors created by Customer. As used herein, (a) “Recipes” are a set of commands to the Workato Platform that request the Workato Platform to carry out certain actions across software applications based on the occurrence of a designated trigger event; and (b) “Connectors” allow the transfer of data between software applications through the Workato Platform by using software scripts or application programming interfaces.
2.4. Customer represents and warrants that Customer has all the rights, power and authority necessary to collect, share, and grant the rights granted herein to any data, information, text, graphics, or other materials, including without limitation the Personal Data (as defined below) regarding Customers contacts and leads provided by Customer to Company (collectively referred to as “Customer Data”), that Customer uses in association with the Services. “Personal Data” means any information that relates to, describes, is capable of being associated with, or could reasonably be linked to (directly or indirectly) an identified or identifiable natural person or household, where identifiable means that it can be identified, directly or indirectly, in particular by referencing an identifier such as a name, an identification number, location data, online identifier, or to one or more factors specific to physical, physiological, genetic, mental, economic, cultural, or social identity. Customer will be solely responsible for the accuracy, quality and legality of Customer Data. Customer hereby grants Company a worldwide, non-exclusive, royalty-free, fully sublicensable, license to host, copy, transmit, display, and otherwise process and use Customer Data, solely as necessary for Company to carry out its obligations and exercise its rights under this Agreement. Except as may be expressly stated in the applicable Order Form, Company will not sell, disclose, or share any Customer Data (or any part or derivative thereof) to or with any third party, except that Company may share Customer Data with Company’s service providers as necessary for Company to carry out its obligations and exercise its rights under this Agreement. Customer Data will not be transmitted to, processed or stored outside of the United States without prior written consent from Customer.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Company’s Proprietary Information includes non-public information regarding features, functionality, and performance of the Services. Customer’s Proprietary Information includes non-public Customer Data. The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information and the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the Receiving Party takes with its own Proprietary Information, (b) not to use (except in performance of the Services or as otherwise permitted in this Agreement) or divulge to any third party any such Proprietary Information, and (c) give access to such Proprietary Information solely to those employees , advisors, contractors and agents with a need to have access thereto for purposes of this Agreement. The Disclosing Party agrees that the foregoing will not apply with respect to any information after 5 years following the disclosure thereof or any information that the Receiving Party can document: (i) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party; or (ii) was in its possession or known by it prior to receipt from the Disclosing Party without restriction; or (iii) was or is rightfully disclosed to it without restriction by a third party; or (iv) was or is independently developed without use of any Proprietary Information of the Disclosing Party; or (v) is required to be disclosed by law or judicial or governmental order. The Receiving Party shall give the Disclosing Party reasonable prior notice of any disclosure required by judicial or government in order to allow the Disclosing Party to contest such order.
3.2. Customer owns and retains all right, title and interest (including all intellectual property rights) in and to the Customer Data. Except for any Customer Data, including data or information inferred or derived directly from Customer Data, therein Company will own and retain all right, title and interest in and to: (a) the Services and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions, or other technology developed or used by Company in connection with the Services or support; and (c) all intellectual property rights related to any of the foregoing.
3.3. Notwithstanding anything to the contrary set forth herein, Company and its licensors will (i) compile statistical and other information related to the performance, operation and users’ use of the Services, and (ii) data related to identifiable users’ usage of features and functionality within the Services (collectively, “Usage Data”). Usage Data is used solely (i) for billing during the Term (as defined below), (ii) during and after the Term to implement, operate, maintain and improve the Services and to fulfill its obligations hereunder; (iii) and during and after the Term, and in aggregated and anonymized (as each such term is defined in any applicable privacy law, and provided that such aggregated and anonymized Usage Data cannot under any circumstances be reidentified to a natural person) form, to create statistical analyses and for research and product development. If Company discloses any Usage Data to third parties for the foregoing purposes, such disclosure will be in a manner that does not identify, and cannot under any circumstances be reidentified to, Customer or its users.
3.4. During the Term, Customer may provide Company with feedback concerning the Services, or Customer may provide Company with other comments and suggestions for new products, features, or improvements (collectively, “Feedback”). Except for Customer Data therein, Customer acknowledges that Company will own all right, title, and interest in and to the Feedback, and Customer hereby irrevocably transfers and assigns to Company all of its right, title and interest in such Feedback, including all intellectual property rights therein. All Feedback provided by Customer to Company shall be provided on an “as is” basis with no warranty. For the sake of clarity, Customer is not obligated to provide Company with any Feedback under this Agreement. For the avoidance of doubt, under no circumstances will Customer Data constitute Feedback under this Agreement.
4. PAYMENT OF FEES
4.1. Customer will pay Company the undisputed fees described in the Order Form for the Services in accordance with the terms set forth in such Order Form (the “Fees”). If Customer’s use of the Services exceeds the quantity set forth on the Order Form or otherwise requires the payment of additional fees, Company will provide Customer with prior notice of any additional charges for such extra usage, Customer will be billed for such extra usage and Customer agrees to pay the additional fees invoiced by Company in accordance with this Section 4. Except as expressly provided for herein, the Fees are non-refundable and non-cancellable. Company reserves the right to change the Fees or applicable charges and to institute new charges and fees at the end of the Initial Service Term or each Renewal Term, upon 30 days prior notice to Customer (which may be sent by email).
4.2. Full payment for undisputed invoices must be received by Company within 30 days after Customer’s receipt of each such invoice. Undisputed unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer will be responsible for all taxes, including but not limited to sales and use tax and VAT, associated with the Services (other than U.S. taxes based on Company’s real property or net income).
5. TERM AND TERMINATION
5.1. Term. Subject to earlier termination as provided below, this Agreement will start on the Effective Date and will continue for the Initial Services Term; thereafter this Agreement will automatically renew for additional periods of the same duration as the Initial Service Term (each a “Renewal Term” and together with the Initial Service Term, the “Term”), unless either party requests termination at least 30 days prior to the end of the then-current Initial Service Term or Renewal Term.
5.2. Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days written notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such period; or (b) 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. Within 15 business days of the effective date of termination, Customer will pay Company any remaining amounts owed.
5.3. Effect of Termination for Cause. If this Agreement is terminated by Customer in accordance with Section 5.2, Company will refund Customer any prepaid Fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by Company in accordance with Section 5.2. Customer will pay any unpaid fees covering the remainder of the Term. For the sake of clarity, in no event will termination relieve Customer of its obligation to pay any fees payable to Company for the period prior to the effective date of termination. Following termination or expiration of the Agreement and unless prohibited by law, Company will delete all Customer Data provided by Customer.
5.4. Money Back Guarantee. If at the end of the Initial Services Term, the Revenue Generated (as defined below) from sales made by Customer to Contact Tracking Leads is less than the Annual Service Fee, despite that Customer (a) provided Company with at least 10,000 unique contacts to track, (b) contacted at least 30% of the Contact Tracking Leads provided by Company and (d) is using Company’s Salesforce App to receive Contact Tracking Leads, then Customer may terminate this Agreement with written notice to Company and receive a refund equal to: (1) the Annual Service Fee paid by Customer during such Initial Service Term minus (2) Revenue Generated. “Revenue Generated” means the sum of Closed-Won Revenue of all opportunities with UserGems-Created Contacts (as defined below) in an Opportunity Contact Role as confirmed by UserGems via API read access to these Salesforce objects. For the sake of clarity, if UserGems is not able to confirm Closed-Won Revenue because Customer has not given UserGems sufficient access to the applicable Salesforce objects, then this Section 5.4 does not apply. “UserGems-Created Contact” means (i) a Contact that was created by UserGems or that previously existed in Customer’s Salesforce but did not have any Activity, or (ii) a Lead that was created by UserGems or that previously existed in Customer’s Salesforce but did not have any Activity and was converted into a Contact. As used herein, “Contact,” “Lead”, “Closed-Won Revenue”, “Opportunity Contact Role” and “Activity” shall have the meanings customarily given to them by users of Salesforce’s CRM platform.
5.5. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. PRIVACY AND SECURITY
6.1. Company will keep and maintain access to Customer Data in strict confidence, using such degree of care as is appropriate for Company’s size and complexity, the nature and scope of its activities, and the sensitivity of Customer Data, including following Company’s own security and privacy policies and procedures.
6.2. Company will implement, maintain, and follow reasonable, industry-standard technical and organizational measures to secure and protect Customer Data, in compliance with all applicable laws, rules, and regulations, including, but not limited to, those relating to data protection and privacy. Company is SOC 2 Type 2 compliant and will provide Customer with a copy of its SOC 2 Type 2 report upon request by Customer. Company will not process Customer Data except in accordance with this Agreement and the DPA. Customer understands and agrees that all data will be transmitted directly to and hosted by Azure, a Microsoft Company (or any subsequent cloud hosting provider (the “Hosting Provider”). The Hosting Provider has a suite of compliance certificates for their data centers, including full SSAE 16 (SOC 1, SOC 2, and SOC 3) compliance. Upon request by Customer, Company will provide to Customer, without charge, copies of any, including the most recent versions of all, third-party audit or compliance certificates for the Hosting Provider that are available to Company and are allowed to be shared with third parties. The Customer Data will be stored and maintained in accordance with the Hosting Provider’s applicable terms and conditions. Company makes no guarantees as to the availability of the Hosting Provider’s services.
6.3. If either party suspects that there may be or has been unauthorized access or use of any Customer Data or materials relating to the Services (a “Security Breach”), that party will promptly notify the other party with confirmation of such notification in writing. Each party will take such actions and measures as may be reasonably necessary or appropriate to mitigate, or protect against, any loss, liabilities, or damages to Customer or Company (including preventing any further Security Breach) and will keep each other reasonably informed of all material developments in connection with such Security Breach.
6.4. Company will have in place a disaster recovery plan for business continuity and infrastructure redundancy (“DRP”) in the event of any event or circumstance that could materially adversely affect the Services or continued operation of Company as required under this Agreement (a “Disaster”). During the Term, Company will (a) provide a copy of the DRP to Customer upon request and (b) periodically update and test the operability of the DRP. In the event of any Disaster, Company will implement the DRP and otherwise use all necessary continuous efforts to reinstate the affected Services as quickly as possible. Except as provided for herein, Company will have no responsibility for making or retaining back-up copies of Customer Data. In the event of any loss of or damage to Customer Data hosted by or on behalf of Company, Company will use commercially reasonable efforts to restore such lost or damaged Customer Data from the latest back-up of such Customer Data. Upon written request, Company will return or (at Customer’s election) destroy all Customer Data in Company's possession within 30 days from the date of such request, and thereafter, if Customer requests in writing, will certify such return and/or destruction to Customer.
7. WARRANTY AND DISCLAIMER
7.1. Each party represents and warrants that (a) this Agreement constitutes a valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement and (b) it will comply with all applicable laws in carry out its obligations and exercising its rights under this Agreement.
7.2. Company warrants that the Services will materially conform to the description set forth in the Order Form as used consistent with the terms of this Agreement. As Company’s sole and exclusive liability and Customer’s sole and exclusive remedy for the breach of the warranty set forth in this Section 7.2, Company will use commercially reasonable efforts to correct the Services to comply with such warranty without charge. If Company is unable to make the Services operate as warranted within 30 days after Customer’s written notice, then Customer or Company may terminate this Agreement and/or the applicable Order Form, and Company will refund any fees actually paid by Customer (excluding any implementation fees or other one-time fees for professional services) to Company for the remainder of the then-current Initial Term or Renewal Term.
7.3. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control; however, Company will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. Customer should note that in using the Services, sensitive information will travel through third party infrastructures or third-party products, which are not under Company’s control. Company makes no warranty to Customer hereunder with respect to the security of such third-party infrastructures or third-party products. .EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT.
8. INDEMNITY
8.1. By Company. Company will indemnify, defend and hold harmless Customer and its shareholders, officers, directors, employees, affiliates and agents (each a “Customer Indemnified Party”) from and against any and all damages, liabilities, costs, expenses, and losses (including, without limitation, reasonable legal fees) (“Losses”) incurred by such Customer Indemnified Party arising out of any claim, suit, action or proceeding by a third party to the extent that such Losses arise from allegations that the Services infringe, misappropriate, or violate any U.S. Intellectual Property Rights. If any portion of the Services becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (i) procure for Customer the right to continue using the Services; (ii) replace the Services with non-infringing software or services that do not materially impair the functionality of the Services; (iii) modify the Services so that it becomes non-infringing; or (iv) terminate this Agreement and refund any fees actually paid by Customer to Company for the remainder of the then-current Initial Service Term or Renewal Term, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, Company will have no obligation under this section or otherwise with respect to any infringement claim based upon: (x) any use of the Services not in accordance with this Agreement; (y) any use of the Services in combination with other products, equipment, software or data not recommended or supplied by Company; or (z) any modification of the Services by any person other than Company or its authorized agents. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDY AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED ACTIONS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
8.2. By Customer. Customer will indemnify, defend and hold harmless Company and its shareholders, officers, directors, employees, affiliates and agents (each a “Company Indemnified Party”) from and against any and all Losses incurred by such Company Indemnified Party arising out of any claim, suit, action or proceeding by a third party that arises from (a) the Customer Data (excluding claims or actions arising from Company’s unauthorized use of Customer Data) or (b) Customer’s use of the Services in violation of this Agreement.
8.3. Procedure. Each party’s obligations set forth above are expressly conditioned upon each of the foregoing: (a) the party seeking indemnification (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”) in writing of any threatened or actual claim or suit, except that the Indemnified Party’s failure to promptly notify the Indemnifying Party will not affect the Indemnifying Party’s obligations hereunder except to the extent that such delay prejudices the Indemnifying Party’s ability to defend such claim or suit; (b) the Indemnifying Party will have sole control of the defense or settlement of any claim or suit, except that the Indemnifying Party may not settle a claim or suit without the Indemnified Party’s prior written consent (not to be unreasonably withheld) if the settlement requires the Indemnified Party to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials); and (c) the Indemnified Party will cooperate with the Indemnifying Party to facilitate the settlement or defense of any claim or suit.
9. LIMITATION OF LIABILITY
TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY NOR ITS SUPPLIERS WILL BE LIABLE TO THE OTHER FOR: (A) ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, OR (B) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO ANY CLAIMS OR LIABILITIES ARISING UNDER SECTIONS 3, 6 OR 8 (COLLECTIVELY, “EXCLUSIONS”); PROVIDED THAT EACH PARTY’S AGGREGATE LIABILITY FOR THE EXCLUSIONS WILL NOT EXCEED THREE TIMES (3X) THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
10. MISCELLANEOUS
10.1. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2. Assignment. This Agreement is not transferable or assignable by either party, whether in whole or in part, without the prior written consent of the other party, except that either party may transfer or assign this Agreement to an affiliate or in a merger, consolidation or sale. Subject to the foregoing, this Agreement and each and every provision hereof, will be binding upon and will inure to the benefit of the parties and their respective permitted successors and assigns.
10.3. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
10.4. Export. Customer may not remove or export from the United States or allow the export or re-export of the Services, or any portion thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
10.5. No Agency. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. Company is an independent contractor of Customer. Company is solely responsible and liable for its own taxes, insurance premiums and employment benefits. No Company employee is eligible for any benefits (including stock options, health insurance or retirement benefits) provided by Customer to its employees. Company will not make any commitment binding on Customer or represent that it has authority to do so.
10.6. Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.7. Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Company will be sent to ShelfFlip Inc. 2443 Fillmore Street #380-3416, San Francisco, CA 94115- Attention: Stephan Kletzl or to such other address as Company designates in writing. Notices to Customer will be sent to the address stated in the most recent Order Form on file for Customer or to such other address as Customer designates in writing.
10.8. Governing Law; Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. Each party irrevocably agrees that the state and federal courts located in California will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement.