Terms & Conditions
(Version dated November 10, 2019)
1) Agreement. These Terms & Conditions, together with the relevant order form (the “Order Form”), comprise a legal agreement (the “Agreement”) between you, the individual or entity named in the Order Form (“you” or “Customer”), and The Sales Productivity Company, a Czech s.r.o. (“ClosePlan,” “we” or “us”), setting forth the terms and conditions under which ClosePlan will grant you the right to access and use certain ClosePlan software described in the Order Form (the “Service”).
2) License to Use Service. Subject to the restrictions set forth below and the payment of all applicable fees, ClosePlan grants you a limited, non-exclusive, non-transferable, non-sublicenseable right to access the Service through your Salesforce.com, Inc. instance (“Salesforce Instance”) for your internal business purposes in connection with your Salesforce Instance for the number of users for which you have paid applicable subscription fees.
3) Fees. You agree pay all fees in accordance with the Order Form, in respect of amounts, timing and manner. The fees do not include any taxes or duties of any kind, which may be imposed by any governmental entity on your subscription to the Service, and you will be solely responsible for all such taxes. All fees paid are non-refundable. All amounts are quoted in and must be paid in US dollars. In addition to any other rights granted to ClosePlan herein, we reserve the right to suspend your access to and use of the Service if you fail to pay any amount owed on or before its due date. You agree that your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
a) Prohibited Uses. You may not directly or indirectly rent, lease, sell, license, assign, loan, use for timesharing or service bureau purposes or otherwise transfer the Service to any third party. You may not directly or indirectly (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Service 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 unauthorized access to the Service, computer systems or networks related to the Service; (d) modify or create derivative works based on the Service; (e) copy or distribute the Service; (f) allow use of the Service by anyone other than user(s) authorized and paid for by you; (g) knowingly transmit through the Service unlawful, libelous, tortious, defamatory, threatening, vulgar, or obscene material or material containing viruses or other harmful code; or (h) otherwise use the Service other than as permitted in Section 2. You acknowledge that we may utilize technological controls to ensure your compliance with this Agreement.
b) Compliance. You are responsible for all activity occurring under your user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, 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 unauthorized access to, or use of, the Service, and will notify us promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to us immediately and use reasonable efforts to stop immediately any unauthorized 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 Service. You will not attempt to or use your access to the Service to knowingly interfere with or disrupt the integrity or performance of the Service or the data contained therein.
5) Term; Termination; Survival.
a) Term; Renewals; Price Increases. Unless stated otherwise in the applicable Order Form, the term of this Agreement will commence on the date of the Order Form and will remain in force until the first anniversary of such date. Thereafter, the Order Form will automatically renew for successive one-year renewal terms (each, a “Renewal Term”) unless you provide notice of non-renewal at least 60 days before the expiration of the then applicable term. If we wish to increase the price of the Service for any Renewal Term, we will give you notice of such proposed price increase not less than 90 days before the expiration of the then applicable term.
b) Termination. Either party shall have the right to terminate this Agreement in the event of a material breach of this Agreement by the other party, which breach has not been cured within 30 days of receipt of written notice thereof, except in the case of your failure to pay any fees when due hereunder, which must be cured within 7 days after receipt of written notice from us. Upon any termination for cause by you, we shall refund to you any prepaid, unused fees applicable to the remaining portion of the subscription term following the effective date of termination. 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 Service. Termination shall not relieve you of the obligation to pay any fees accrued or payable prior to the effective date of termination.
c) Survival. Sections 3, 4, 5(c), 7, 8, and 10-13 will survive any expiration or termination of this Agreement.
6) Updates and Support. We provide support via email for the current version of the Service. We strive to respond to all requests for support within 24 hours during weekdays, excluding holidays. Our ability to resolve problems will depend on you actively communicating with us and providing adequate information. From time to time, we may update the Service. Such updates are provided without charge provided that you have paid all applicable fees then due.
7) 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. our “Confidential Information” shall include, but not be limited to, Service, documentation, technology and technical information, product designs and business processes. Each party agrees to use Confidential Information solely to perform 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 7, 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.
8) Ownership of Rights.
a) ClosePlan Technology. The rights granted hereunder do not constitute a transfer or sale of ClosePlan’s or our licensors’ ownership rights in or to the Service, including, without limitation: (a) the Service and the applicable documentation; (b) our name, logo, domain name, product names and other trademarks; and (c) hardware, processes, algorithms, user interfaces, know-how and other trade secrets or technology (collectively, “ClosePlan Technology”). The ClosePlan Technology is protected by applicable intellectual property laws, including, but without limitation, United States copyright laws and international treaties. Except for the rights granted above, ClosePlan and its licensors retain all right, title and interest in and to ClosePlan Technology, including all intellectual property rights therein.
b) Customer’s Data. As between us, you own the data in your Salesforce Instance and we make no claim of ownership to any data in your Salesforce Instance. You acknowledge and agree that the Service will access and use customer data from your Salesforce Instance, but solely to the extent necessary to enable the Service. This access and use does not permit the Service to access or use such customer data outside of your Salesforce Instance or for any other purpose, except as expressly permitted in writing by you. You are solely responsibility for the accuracy of all data in your Salesforce Instance. The processing of any of your data is subject to our data processing addendum, a copy of which is available upon request and which is incorporated herein.
c) Feedback. You grant to ClosePlan a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your users relating to the operation of the Service.
9) Service Performance. You acknowledge that access to and use of the Service is dependent on the availability and proper functioning of your Salesforce Instance and that we have no control over your Salesforce Instance. We disclaim responsibility and liability for any inability to access or use the Service, or degradation of the performance of the Service, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, your Salesforce Instance or other third party owned or controlled technology. You are solely responsible for the configuration of your Salesforce Instance and all technology and services necessary to access and use your Salesforce Instance.
10) Warranties and Disclaimers.
a) Customer Obligations and Warranties. You shall be solely responsible for all activities in connection with the Service that occur under your username(s). Without limiting the generality of the foregoing, you shall: (i) comply with all applicable laws and regulations in performing your obligations hereunder; and (ii) be solely responsible for the accuracy, reliability, and quality of any information or data submitted by you to ClosePlan or processed using the Service. You warrant that any data, content, or materials used, stored or created by you using the Service will not infringe the copyright, trade secret, patent, privacy, publicity, or other proprietary or intellectual property right of any third party. In the event of any breach, or reasonably anticipated breach, of any of your warranties or obligations, or if you infringe or misappropriate our intellectual property rights, in addition to any other remedies available at law or in equity, ClosePlan will have the right to immediately, in our sole discretion, suspend your access to or use of the Service and/or terminate this Agreement, if deemed reasonably necessary by ClosePlan to prevent any harm to ClosePlan or its business.
b) ClosePlan Warranties. ClosePlan warrants that: (i) it shall comply with all applicable laws and regulations in performing its obligations hereunder; (ii) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) it owns or otherwise has sufficient rights in the Service to grant to you the rights to use the Service granted herein. Your exclusive remedy and our entire liability for a breach of the warranties in Section 10(b)(i) and 10(b)(ii) are those described in Section 5(b) (Termination) above and for a breach of the warranty in Section 10(b)(iii), the indemnification described in Section 11 (Indemnification).
c) Disclaimers. THE SERVICE IS PROVIDED ON AN “AS IS” BASIS. YOU ASSUME ALL RESPONSIBILITY FOR SELECTION OF THE SERVICE TO ACHIEVE ITS INTENDED RESULTS AND FOR THE USE OF AND RESULTS OBTAINED FROM THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE FUNCTIONS OF THE SERVICE WILL MEET YOUR REQUIREMENTS.
a) Subject to this Agreement, we shall defend you, at our expense, against any claims made or brought against you by a third party, arising out of a claim or demand alleging that your use of the Service as contemplated hereunder infringes a U.S. patent, copyright or trademark of a third party or misappropriates such third party’s trade secrets. Further, we shall indemnify and hold you harmless against all costs (including reasonable legal fees and expenses) finally awarded against you by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by us. We may, at our option and expense: (a) procure for you the right to continue using the Service; (b) replace or modify the Service so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and your access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current subscription term. We will have no liability to you for any infringement action that arises out of a breach of the terms and conditions of this Agreement by you or of the use of the Service (i) after it has been modified by you or a third party without our prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by us where the combination is the basis for the infringing activity.
b) Subject to this Agreement, you shall defend us, at your expense, against any claims made or brought against us by a third party, arising out of a claim or demand alleging that any data or content submitted by you to us or the Service infringes, misappropriates, or violates any rights of a third party including any third party intellectual property rights. Further, you shall indemnify and hold us harmless against all costs (including reasonable legal fees and expenses) finally awarded by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by you.
c) Promptly upon receiving notice of a claim or demand, the indemnified party shall (a) give the indemnifying party prompt written notice of the claim; (b) give the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability); and (c) provide to the indemnifying party, at indemnifying party’s sole cost and expense, all reasonable assistance in the defense or settlement of such claim. The indemnifying party’s indemnification obligation shall be offset only to the extent its ability to defend or settle a claim is materially prejudiced by the indemnified party’s failure to provide prompt notice of the claim as required in subsection (a) of the aforementioned sentence.
d) This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 11.
12) Limitation of Liabilities. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES WILL A PARTY 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 SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION), OR YOUR BREACH OF THE RESTRICTIONS IN SECTION 4(a), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY YOU FOR THE SERVICE FOR THE IMMEDIATELY PRECEDING 6-MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THEIR ESSENTIAL PURPOSE.
a) Changes. We reserve the right to modify the terms and conditions of this Agreement at any time upon reasonable notice to you. Continued use of the Service after any such change shall signify your consent to such change.
b) Governing Law; Venue. This Agreement shall be governed by the law of the State of California 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 state and federal courts located in San Francisco, California. 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.
c) Assignment. 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 reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void.
d) Waiver; Force Majeure. Our failure 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 us in writing. 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” event.
e) Entire Agreement. This Agreement comprises the entire agreement between you and ClosePlan and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No text or information set forth on any other email or document shall modify the terms and conditions of this Agreement.
f) Notices. All notices, required or permitted under this Agreement must be delivered in writing by email, courier, or by certified or 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) if delivered by email, upon sending to the email address specified in the Order Form, or (b) if delivered by courier or certified or registered mail, three (3) days after being deposited in the mail with the carrier or postal authority of the receiving party’s country and addressed to the other party as specified in the Order Form.