Last modified: June 12th, 2023
FIVECRM AND THE LICENSEE AGREE THAT THESE FIVECRM LICENSE TERMS AND CONDITIONS (“THE TERMS”) SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY FIVECRM PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO THE LICENSEE AS SET FORTH IN A DOCUMENT INCORPORATING THESE TERMS (AN “ORDERING DOCUMENT”). AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENT, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS WITH RESPECT TO SUCH AGREEMENT.
Licensee and FiveCRM agree as follows:
“FiveCRM” has the meaning set forth in Section 13.11 below.
“Licensee” means the party to whom FiveCRM is to provide products or services pursuant to the Ordering Document (whether identified as “licensee”, “customer”, “client” or similar designation in the Ordering Document). If “Licensee” includes more than one legal person, the obligations imposed upon each shall be joint and several. The act of, notice from or to, or signature of any one or more of the persons included within “Licensee” shall be binding on all such persons with respect to all rights and obligations under this Agreement, including but not limited to any renewal, extension, termination, or modification of this Agreement.
1.1 FiveCRM, directly or through an affiliate, agrees to provide to Licensee the products and/or services set forth in the Ordering Document (the “Services”). The Services may include information (the “Licensed Materials”), access to and/or use of software or other technology (the “FiveCRM Technology”), or other services including premium support. Specific Services may be defined by and are subject to the Services Definitions and Service-Specific Terms and Conditions included with the Ordering Document. FiveCRM will make the Services available to the Licensee via password-protected online access accessible by Licensee with usernames and passwords, via an application programmer interface (“API”), or as otherwise mutually agreed by the parties. Subject to the terms and conditions herein, FiveCRM grants to Licensee a non-exclusive, non-transferrable license to access and use the Services in accordance with this Agreement and during the Term of this Agreement.
1.2 The services offered by the Company include a “software as a service” (SaaS) application (the “Application” and the “Service(s)” respectively). The Services shall be provided through Company’s servers and/or third party’s external servers or cloud-based servers, to be determined by the Company, in its sole discretion. The Company shall provide support services in connection with the Services in accordance with the service level set forth in section 13.12 below.
1.3 Ownership. Licensee acknowledges and agrees that, as between Licensee and FiveCRM, the Licensed Materials, the FiveCRM Technology, and any related documentation (including, without limitation, the content, layout, functions, design, appearance, trademarks, service marks, copyrights, patents, and other intellectual property comprising the Licensed Materials or FiveCRM Technology) are the property of FiveCRM, whether or not they are trademarked, copyrighted, or patented. Licensee acknowledges and agrees that this Agreement does not transfer any ownership, right, title, or interest in the Licensed Materials or FiveCRM Technology, nor any part thereof, except the limited license provided hereunder, and Licensee expressly disclaims and waives any and all claims to any ownership interest in any such information or materials. This includes, without limitation, any Licensed Materials that Licensee downloads, prints, saves, or incorporates into other materials. Licensee further acknowledges and agrees that the Licensed Materials, in whole or in part, are unique, special, and valuable. Subject to the limited rights expressly granted hereunder, FiveCRM, its affiliates and/or its licensors reserve all right, title, and interest in and to the Licensed Materials and FiveCRM Technology, including all related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein. All other trademarks, registered trademarks, product names, and company names or logos mentioned in or on the FiveCRM Technology are the property of their respective owners. Reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by FiveCRM nor any endorsement, sponsorship, or recommendation of FiveCRM by any such person or entity.
1.4 Third Party Applications. “Third Party Applications” means computer software programs and other technology that are provided or made available to Licensee or Authorized Users by third parties, including those with which the FiveCRM Technology may interoperate, including, for example, Licensee’s VOIP, marketing automation software, or sales enablement software, if any. FiveCRM may make available certain “Integration Tools”, which consist of FiveCRM Technology designed to allow Licensee to use FiveCRM Technology and the Licensed Materials in such a way as to interoperate with one or more Third Party Applications. FiveCRM is not responsible for and does not endorse any Third Party Applications or websites linked to by FiveCRM Technology.
1.5 Support. FiveCRM will provide reasonable assistance and ongoing support to assist Licensee and Authorized Users in accessing the Software. FiveCRM will make its personnel available by email, online chat, or phone for feedback, problem solving, or general questions between the hours of 3:30 a.m. and 5:00 p.m. Eastern Time (Monday – Friday) and will make reasonable efforts to acknowledge support requests within 24 business hours. Time on telephone support is governed by a fair use policy (time in excess of 4 hours per month may result in suggestions for chargeable training sessions). All onsite support will be charged at the prevailing FiveCRM rate plus travel but FiveCRM shall not incur any charges without the Customer's express written consent. FiveCRM will provide support for the FIVE CRM application and data in the FIVE CRM database; all hardware and other software are not covered. FiveCRM does not provide support for integrations between the Service and third party applications, unless otherwise expressly agreed between the Parties in writing. Premium support services are subject to any service-specific terms and conditions included with the Ordering Document.
2.2 Qualification of Authorized Users. Licensee shall not designate any person as an Authorized User unless such person is: (a) a natural person and (b) an employee of Licensee. Licensee may designate a non-employee (i.e., an independent contractor) as an Authorized User only with FiveCRM’s prior permission and provided Licensee takes reasonable steps to ensure such non-employee uses the Services only as permitted under this Agreement. If the employment of any Authorized User that was in effect as of the date such person was designated as an Authorized User terminates, such person’s authorization to access the Services shall be revoked automatically without any further action by FiveCRM. In the event of a termination as described in the previous sentence, Licensee shall promptly notify FiveCRM and take all reasonable steps to ensure that such person ceases accessing the Services. Licensee may reassign Authorized User designations in good faith, subject to the foregoing qualification requirements.
2.3.1 copy, modify, adapt, translate or otherwise create derivative works of Company's technology, Application and any of the Services and/or the work products thereof;
2.3.2 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of Company’s technology and/or Application and/or the work products of the Services;
2.3.3 rent, lease, sell, assign or otherwise transfer rights in or to Company’s technology, e, Application and/or any of the Services;
2.3.4 remove any proprietary notices or labels on Company’s technology, e Application and/or the work products thereof or placed by the Services;
2.3.5 use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of Company’s technology, Application and/or any of the Services;
2.3.6 access (or attempt to access) the administrative interface of the Services by any means other than through the interface that is specifically provided by Company in connection with the Services, unless Customer has been explicitly allowed to do so in a separate written agreement with Company; or
2.3.7 engage in any activity that interferes with or disrupts any of the Services (or the servers and networks which are connected to the Services). Customer may not access the Application and/or any other Services for the purpose of bringing an intellectual property infringement claim against Company or for the purpose of creating a product or service which may be, directly or indirectly, competitive with the Application and/or any other Services. Customer will comply with all applicable laws and regulations in Customer use of and access to Company's Application and/or any other Services.
2.4. Restrictions on Offensive or Illegal Use. Company strictly prohibits the use of the Services or any of its functionalities for offensive, illegal or harming purposes. Customer agrees not to use the Services to create, edit, post, upload, transmit or otherwise provide any content, information and/or data that is or may be harmful, unlawful, obscene, libellous, racist, hateful, or criminal or that violates the privacy of others or any other illegal, offensive or inappropriate content. Customer agrees to abide by all applicable local, state, national and international laws and regulations, including but not limited to, any laws regarding the export of data or software. Customer is and shall remain solely responsible for all acts or omissions that occur under Customer’s account and/or in connection with Customer’s use of the Services, including, without limitation, in connection with the content, information and/or data that Customer creates, edits, posts, uploads, transmits or otherwise provides through the Services. Without derogating from the above, in the course of Customer’s use of the Services, Customer is prohibited from performing any activity that Company determines, in its sole discretion, to constitute network abuse. Company reserves the right to remove any content, information and/or data created, edited, posted, uploaded, transmitted or otherwise provided by Customer which it deems to be in contrast with any of the terms set forth herein, in Company’s sole discretion, and/or to take action against Customer, if Customer shall use the Application and/or any of the Services (or any of their functionalities) for offensive, illegal or harming purposes or otherwise not in full compliance with this Agreement, including, but not limited to, suspending or terminating any or all use of the Services, in any way or manner, and/or terminating Customer’s account.
2.5 Limitations on Use of the Services. Licensee shall use the Services in a responsible and professional manner consistent with the intended and permissible uses herein and consistent with standard industry practice. Licensee shall not override or circumvent, or attempt to override or circumvent, any security feature, control, or use limits of the FiveCRM Technology. Licensee will not use the FiveCRM Technology for commercial purposes not permitted under this Agreement and shall not designate any person as an Authorized User if Licensee has reason to believe such person is likely to use the Services on behalf of a third party or otherwise in violation of this Agreement. FiveCRM may use technological means to place reasonable use limits to prohibit excessive use, including excessive downloads or screen views that indicate a violation of this Agreement, such as sharing with third parties or attempting to circumvent limitations to concurrent users. If Licensee’s access to the Services is limited under this paragraph, it may request that the limit be removed, and FiveCRM may remove or modify a particular limitation if it determines in its sole and absolute discretion that the proposed use by Licensee is in good faith and otherwise consistent with this Agreement. FiveCRM operates a fair use policy and may charge for excessive data storage. FiveCRM reserves the right to charge excess storage fees but FiveCRM shall not incur any charges without the Customer's express written consent.
2.6 Identification of Materials. Any Licensed Materials that are downloaded and/or integrated into any Third Party Applications must be maintained with identifying information indicating that such materials originated with FiveCRM by, for example, maintaining a report originator of “FiveCRM.”
2.7 Licensee Data. Licensee is solely responsible for all data, graphics, images, files, information, text, voice content, recordings, and other content and materials that are collected, uploaded, posted, delivered, provided, or otherwise transmitted or stored by Licensee in connection with Licensee’s use of the Services (collectively, “Licensee Data”), and Licensee represents and warrants that it has all rights and authority necessary to provide Licensee Data to FiveCRM without violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights. Licensee shall be solely responsible for making any required notices (including without limitation any privacy notices required by applicable local, state, federal, and international laws and regulations) and for obtaining any required consents sufficient to authorize FiveCRM’s performance of its obligations and exercise of its rights as set forth in this Agreement.
2.8 Unauthorized Access and Use. In the event FiveCRM has a reasonable belief that Licensee or any Authorized User is engaged in or facilitated any unauthorized access or use of the FiveCRM Technology in violation of this Agreement, FiveCRM, in its sole discretion, may immediately suspend Licensee’s access to the FiveCRM Technology until such violation is resolved to FiveCRM’s reasonable satisfaction. FiveCRM will have no liability to Licensee for such period of suspension and a suspension shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee.
3.1 Term. The Initial Term of the Agreement is that which is set forth in the Ordering Document (together with any period of extension under Section 3.2 hereof, the “Term”). The Agreement is not cancellable and shall remain in effect until it expires or is earlier terminated according to its terms.
3.2 Automatic Extension of the Term. On the date that is 60 days prior to the last day of the Term (the “Extension Date”), the Term will automatically extend for a period equal to the length of the Initial Term or one year, whichever is longer, unless either party, on or before the Extension Date, notifies the other in writing that the Term shall not so extend. In the event that the Term is extended under this paragraph: (a) Licensee shall remain subscribed during such period of extension to the Services to which it was subscribed as of the Extension Date, and (b) the Subscription Fees to be paid to FiveCRM for such Services during such period of extension shall be equal to the annualized amount of the Subscription Fee applicable to all Services to which Licensee was subscribed as of the Extension Date, plus 10% of such fee, plus any applied discount, multiplied by the length of the term in years. Subscription Fees for the period of extension hereunder shall be due upon extension of the Term and shall be payable as invoiced. FiveCRM will invoice Subscription Fees for any period of extension on an annual basis or in a manner substantially consistent with the payment schedule that applied to the Agreement as of the Extension Date, in FiveCRM’s discretion.
3.3 Termination. Either party may terminate this Agreement immediately, without further obligation to the other party, in the event of a material breach of this Agreement by the other party that is not remedied within twenty-one (21) days after the breaching party’s receipt of written notice of such breach. The parties may terminate this Agreement at any time upon their mutual Agreement.
3.4 Effect of Termination.
3.4.1 Expiration or Termination for any Reason. Upon expiration or termination of this Agreement for any reason, Licensee acknowledges and agrees that its access to the Services may be automatically terminated, all passwords and individual accounts removed, and all information that has been uploaded into FiveCRM’s systems by Licensee destroyed.
3.4.2 Termination by FiveCRM. If this Agreement is terminated by FiveCRM due to an uncured material breach by Licensee, all Subscription Fees payable to be paid to FiveCRM for the remainder of the then-current Term shall be immediately due and payable to FiveCRM, and Licensee shall promptly remit all such fees to FiveCRM.
3.4.3. Termination by Licensee. If this Agreement is terminated by Licensee due to an uncured material breach by FiveCRM, FiveCRM shall promptly refund the pro-rata amount of any pre-paid Subscription Fees attributable to periods after the date of such termination. 3.4.4 Upon termination of its contract, the customer can export all their data and then delete all data in the database. FiveCRM reserves the right to raise a charge if additional assistance is required. Following a written request, FiveCRM will permanently delete the current live database and all its backups; on completion, FiveCRM will provide a certificate of confirmation of the deletion.
4.1 Licensee shall pay all fees stated in the Ordering Document and any other fees applicable to its subscription to Services as provided hereunder (the “Subscription Fee”). All Subscription Fees are due upon execution of the Ordering Document, or notice of a deemed subscription as provided herein, and payable on the terms set forth therein. If no payment schedule is specified for any Subscription Fees, the entire amount shall be payable within 30 days of FiveCRM’s transmission to Licensee of an appropriate invoice. All amounts payable by Licensee under this Agreement will be paid to FiveCRM without setoff or counterclaim, and without any deduction or withholding. FiveCRM’s acceptance of partial payment or any payment of less than the full amount payable at any given time shall not constitute a waiver or release of FiveCRM’s right to unpaid amounts.
4.2 If Licensee fails to timely make any payment of Subscription Fees, FiveCRM may, in its sole discretion, take any or all of the following actions: (a) restrict or suspend Licensee’s access to the FiveCRM Technology until all past-due payments are made, (b) terminate this Agreement, or (c) accelerate the payment of Subscription Fees such that all unpaid Subscription Fees shall be immediately payable. FiveCRM shall have the right to charge interest at the rate of 1.5% per month (or, if less, the highest rate permitted by law) on any late payments. Restriction or suspension of Licensee’s online access to the Licensed Materials during period of non-payment shall have no effect on the Term of this Agreement nor on Licensee’s obligation to pay the Subscription Fee.
4.3 Licensee is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Licensee’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the Ordering Document, all fees, rates, and estimates exclude sales taxes. If FiveCRM believes any such tax applies to Licensee’s subscription and FiveCRM has a duty to collect and remit such tax, the same may be set forth on an invoice to Licensee unless Licensee provides FiveCRM with a valid tax exemption certificate, direct pay permit, or multi-state use certificate, and shall be paid by Licensee immediately or as provided in such invoice. Licensee shall indemnify, defend, and hold harmless FiveCRM and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns against any and all actual or threatened claims, actions, or proceedings of any taxing authority arising from or related to the failure to pay taxes owed by Licensee, except to the extent that any such claims, action, or proceeding is directly caused by a failure of FiveCRM to remit amounts collected for such purpose from Licensee. FiveCRM is solely responsible for taxes based upon FiveCRM’s net income, assets, payroll, property, and employees.
4.4 Refund policy. All transactions between FiveCRM and the Customer are final. FiveCRM does not issue refunds.
5.2 “Confidential Information” of a party means such party’s (or its affiliate’s): inventions, discoveries, improvements, and copyrightable material not yet patented, published, or copyrighted; special processes and methods, whether for production purposes or otherwise, and special apparatus and equipment not generally available or known to the public; current engineering research, development, design projects, research and development data, technical specifications, plans, drawings and sketches; business information such as product costs, vendor and customer lists, lists of approved components and sources, price lists, production schedules, business plans, and sales and profit or loss information not yet announced or not disclosed in any other way to the public; and any other information or knowledge not generally available to the public. “Confidential Information” does not include the Licensed Materials (which are subject to other restrictions under this Agreement) nor otherwise include business contact or firmographic information regarding third parties. All business terms of this Agreement, including, but not limited to, pricing and access, shall be considered Confidential Information of FiveCRM.
5.3 Each party shall keep in confidence all Confidential Information of the other party obtained prior to or during the Term of this Agreement and shall protect the confidentiality of such information in a manner consistent with the manner in which such party treats its own confidential material, but in no event with less than reasonable care. Without the prior written consent of the other party, a party shall not disclose or make available any portion of the other party’s Confidential Information to any person, firm, association, or corporation, or use such Confidential Information, directly or indirectly, except for the performance of this Agreement. The foregoing restrictions shall not apply to Confidential Information that: (a) was known to such party (as evidenced by its written record) or was in the public domain prior to the time obtained by such party; (b) was lawfully disclosed to such party by a third party who did not receive it directly or indirectly from such party and who is under no obligation of secrecy with respect to the Confidential Information; (c) became generally available to the public, by publication or otherwise, through no fault of such party or (d) was developed independently by the receiving party as evidenced by written records without reference to the Confidential Information of the other party. The parties shall take all necessary and appropriate steps in order to ensure that its employees and subcontractors adhere to the provisions of this section. All Confidential Information shall be returned to the disclosing party or destroyed upon receipt by the receiving party of a written request from the disclosing party. The receiving party may disclose the disclosing party’s Confidential Information to the extent required by law or legal process, provided, however, the receiving party will (unless prohibited by law or legal process): (a) give the disclosing party prior written notice of such disclosure to afford the disclosing party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the disclosing party, at the disclosing party’s expense, in its efforts to obtain a protective order or other legally available means of protection.
5.4 Personal Information. To the extent that either party transmits or receives personal information under this Agreement, such party shall comply with all applicable laws, rules, and regulations regarding privacy and the lawful processing of personal information. Each party shall have an obligation to immediately notify the other party if it makes a determination that it can no longer meet compliance obligations under applicable privacy or data protection laws. To the extent that personal data obtained by Licensee under this Agreement is subject to the E.U. General Data Protection Regulation (the “GDPR”) or the retained version of the GDPR applicable in the UK (the “UK GDPR”, together with the GDPR the “UK/EU GDPR”), each party agrees: (a) that it is a “controller” with respect to such data as defined in the GDPR; and (b) to comply with all applicable provisions. Notwithstanding anything in this Agreement to the contrary, Licensee shall not use any information subject to the UK/EU GDPR unless it is for a purpose that constitutes a “legitimate interest” (including direct marketing) as defined in the applicable UK/EU GDPR, or Licensee has another lawful basis to process such information. Within the FiveCRM Technology, FiveCRM may publish a list of persons who have requested that their personal information be removed from FiveCRM’s database. Licensee agrees to review such list on a regular basis (no less frequently than once per month) and to remove from its possession any Licensed Materials Contact records relating to such persons in its possession, unless Licensee has established an independent lawful basis to process such person’s personal information.
5.5 Related Information. FiveCRM may access, collect, and use any information from or relating to Licensee and Licensee’s use of the Services (“Related Information”) for customer and technical support, for regulatory and third party compliance purposes, to protect and enforce FiveCRM’s rights, to monitor compliance with and investigate potential breaches of the terms of this Agreement, and to recommend additional products or services to Licensee. FiveCRM may share this information with FiveCRM’s partners or affiliates for the same purposes. Licensee grants FiveCRM and FiveCRM affiliates the perpetual right to use Related Information for purposes such as to test, develop, improve, and enhance FiveCRM’s products and services, and to create and own derivative works based on Related Information, so long as neither Licensee, Authorized User nor any other individual is identifiable as the source of such information.
5.6 The Customer acknowledges that FiveCRM neither owns nor controls the content, availability, accuracy or any other aspect of the information, data, files, images or content in any format or of any type (collectively referred to as the "Content") uploaded by the Customer or its end users through the Service. FiveCRM warrants that for any customer data uploaded to FIVE CRM servers, FiveCRM (a) will not to use it for any of its own purposes; (b) will not to pass such data to third parties; and (c) will return such data to the Customer when the agreement terminates upon payment for such services. Customers are able to export all their data at any time free of charge so long as there is a current subscription in place.
6.1 Each party represents and warrants that: (a) it is duly organized and validly existing and authorized to do business in the jurisdictions where it operates; and (b) it has the requisite power and authority to enter this Agreement and entering and complying with its obligations under this Agreement does not violate any legal obligation by which such party is bound.
6.2 Licensee represents and warrants, and covenants that it will not, in connection with this Agreement, including its use of or access to the Services, engage in, encourage, or permit conduct that violates or would violate any applicable law, rule, or regulation or any right of any third party.
6.3 FiveCRM represents and warrants that it possesses all necessary authority and permissions to provision Licensee with access to the FiveCRM Technology.
7.1 Remedies not Exclusive. No remedy provided in this Agreement shall be deemed exclusive of any other remedy that a party may have at law or in equity unless it is expressly stated herein that such remedy is exclusive.
7.2 Provisional Remedies. Each party recognizes that the unauthorized disclosure of Confidential Information or, as to Licensee may cause irreparable harm to the other party for which monetary damages may be insufficient, and in the event of such disclosure, such other party shall be entitled to seek an injunction, temporary restraining order, or other provisional remedy as appropriate without being required to post bond or other security.
8.1 Attorney Fees. In the event of any dispute arising under this Agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses actually incurred in endeavoring to enforce the terms of this Agreement, including reasonable attorney fees.
8.2 Mandatory Arbitration. Except for Litigation Claims (defined below), any dispute, claim, or controversy arising out of or relating to this Agreement, including, without limitation (a) claims relating to the breach, termination, enforcement, interpretation or validity thereof, (b) claims alleging tortious conduct (including negligence) in connection with the negotiation, execution, or performance thereof, or (c) the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. The arbitration shall be heard by a single arbitrator. The arbitration award shall be final and binding, and such award may be entered in any court having jurisdiction. This section shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall have the power to award any remedy provided under applicable law, except that the arbitrator shall have no power to award: (a) punitive, exemplary, or multiple damages under any legal theory, except in the event of a party’s or its agent’s gross negligence or intentional misconduct; (b) mandatory or prohibitory injunctive relief, except for temporary relief in aid of the arbitration or to secure the payment of an award; or (c) any damages in excess of the limits set forth in this section or Section 10 (Limitation of Liability) of this Agreement.
8.3 Class Action Waiver. No party shall commence or seek to prosecute or defend any dispute, controversy, or claim based on any legal theory arising out of or relating to this Agreement, or the breach thereof, other than on an individual, non-class, non-collective action basis. No party shall seek to prosecute or defend any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach thereof, in a representative or private attorney general capacity. The arbitrator shall not have the power to consolidate any arbitration under this Agreement with any other arbitration, absent agreement of all parties involved, or otherwise to deal with any matter on a non-individual, class, collective, representative, or private attorney general basis.
8.4 Litigation Claims. The following claims (“Litigation Claims”) shall be litigated and not arbitrated: (a) claims against a party to this Agreement under the provisions involving claims by third parties; (b) claims by a party for the unauthorized use, or the misuse, by the other party of the first party’s Confidential Information; (c) claims by FiveCRM to collect Subscription Fees; and (d) claims for mandatory or prohibitory injunctive relief, except for temporary relief in aid of arbitration or to secure the payment of an arbitration award under this Agreement. The Litigation Claims are not subject to arbitration and are expressly excluded by the parties from arbitration unless otherwise agreed in writing.
9.1 Licensee agrees to indemnify, defend, and hold harmless FiveCRM and its officers, directors, employees, shareholders, agents, partners, successors, and permitted assigns from and against any and all actual or threatened claims of third parties arising out of or in connection with (a) Licensee’s access or use of the FiveCRM Technology in violation of any law, (b) Licensee’s violation of any provision of this Agreement, (c) Licensee’s sending of any information, messages, or materials using FiveCRM Technology (including, but not limited to, through e-mail, mail, or fax) in violation of any law or the rights of any third party, or (d) the use of any FiveCRM Technology by any third party to whom Licensee has granted access (including access obtained by such third party through use of the usernames and passwords assigned to Licensee and its personnel).
9.2 FiveCRM shall indemnify Licensee for any damages finally awarded by any court of competent jurisdiction against Licensee in, or for amounts paid by Licensee under a settlement approved by FiveCRM in writing of, any legal proceeding brought by a third party alleging that the FiveCRM Technology infringes upon or violates the intellectual property rights of any such third party. The foregoing indemnification obligations do not apply if (a) the allegation does not state with specificity that the Services are the basis of the claim against Licensee; (b) a claim against Licensee arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by FiveCRM, if the Services or use thereof would not infringe without such combination; or (c) a claim against Licensee arises from Licensee’s breach of this Agreement.
9.3 As a condition to any right to indemnification under this Agreement, the indemnified party must (a) promptly give the indemnifying party written notice of the claim or proceeding, (b) give the indemnifying party sole control of the defense and settlement of the claim or proceeding (except that the indemnifying party may not settle any claim or proceeding unless it unconditionally releases the indemnified party of all liability), and (c) give the indemnifying party all reasonable assistance, at the indemnifying party’s expense. This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any claim or proceeding subject to indemnification hereunder.
THE COMPANY SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF DATA, BUSINESS OR PROFITS), RESULTING FROM ANY ASPECT OF CUSTOMER’S USE OF THE APPLICATION AND/OR ANY OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM ERROR OR BUG THEREIN, AND/OR DAMAGES ARISING FROM THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE APPLICATION AND/OR ANY OF THE SERVICES - WITH RESPECT TO ALL - WHETHER SUCH LIABILITY ARISES FROM A CLAIM BASED UPON CONTRACT, TORT OR OTHERWISE, AND WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE APPLICATION AND/OR ANY OF THE SERVICES OR ANY LINKS ON THE APPLICATION. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
EXCEPT FOR ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, THE LICENSED MATERIALS, FIVECRM TECHNOLOGY, AND ANY OTHER SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
FIVECRM DOES NOT REPRESENT, COVENANT, WARRANT, OR PROMISE THAT ANY OF THE SERVICES MAY BE USED OR RELIED UPON BY LICENSEE OR ANY OTHER PARTY TO COMPLY WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, NOR THAT ANY OF THE SERVICES WILL RENDER LICENSEE NOR ANY OTHER PARTY COMPLIANT WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, AND FIVECRM EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW ANY SUCH REPRESENTATION, COVENANT, WARRANTY, OR PROMISE. IF AND TO THE EXTENT THAT LICENSEE USES ANY OF THE SERVICES WITH THE INTENTION OF OR FOR THE PURPOSE OF COMPLYING WITH ANY LAW, RULE, REGULATION, INDUSTRY STANDARD, OR POLICY, LICENSEE ACKNOWLEDGES AND AGREES THAT SUCH SERVICES ARE, IN THAT REGARD, PROVIDED “AS IS,” AND LICENSEE ASSUMES FULL RESPONSIBILITY FOR ITS COMPLIANCE. LICENSEE AGREES THAT FIVECRM SHALL HAVE NO LIABILITY TO LICENSEE FOR LICENSEE’S USE OF OR RELIANCE ON ANY SERVICES FOR SUCH PURPOSES. THIS PARAGRAPH IS NOT INTENDED TO DIMINISH, MODIFY, OR RELEASE ANY EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN.
During the Term of this Agreement and for a period of two (2) years after its expiration or termination, Licensee shall maintain complete and accurate records of Licensee’s use of the FiveCRM Technology sufficient to verify compliance with this Agreement. Licensee shall permit FiveCRM and its auditors, upon reasonable advance notice and during normal business hours, to examine such records and any systems used by Licensee in connection with the Licensed Materials. The scope of any such audit will be limited to verification of Licensee’s compliance with the terms of this Agreement. Any audit performed under this paragraph shall be at FiveCRM’s expense, unless the audit uncovers material non-compliance with this Agreement, in which case, Licensee shall reimburse FiveCRM for its reasonable out-of-pocket expenses incurred in performing such audit.
13.1 Marketing. Licensee hereby authorizes FiveCRM to use Licensee’s name and logo for its marketing efforts unless and until such authorization is revoked in writing.
13.2 Assignment. Either party hereto may assign this Agreement to a successor-in-interest pursuant to an acquisition of such party (whether by merger, stock sale, or asset sale) without the other party’s consent, provided however that (a) Licensee’s assignment hereof shall be effective only after fourteen (14) days’ written notice to FiveCRM, and (b) Licensee may not assign this agreement to any competitor of FiveCRM without FiveCRM’s express written consent. No rights or obligations under this Agreement may be assigned or delegated except as provided in this section without the prior written consent of the other party, and any assignment or delegation in violation of this section shall be void.
13.3 Notices. Licensee shall provide an email address for notices under this Agreement. All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address provided by the other party for such purpose and shall be deemed given when sent. Notices to FiveCRM shall be sent to email@example.com. If Licensee fails to provide an email address for notices, FiveCRM may provide notices hereunder by any means reasonably calculated to provide Licensee with actual notice thereof.
13.4 Currency. All monetary amounts specified in this Agreement are in United States dollars unless otherwise expressly stated.
13.5 Suggestions and Feedback. FiveCRM shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Licensee, including Authorized Users, relating to the operation of the Services provided such information does not include any Licensee Confidential Information.
13.6 Entire Agreement. This Agreement constitutes the entire Agreement of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter hereof, whether oral or written. Any un-expired subscription set forth in any Ordering Document or agreement between the parties for access to FiveCRM Services shall be governed by the terms hereof.
13.7 Amendment. FiveCRM may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Licensee informs FiveCRM that it does not accept such amendments. In the event Licensee informs FiveCRM that it does not accept the proposed amendments, the proposed amendments will not take effect and the existing terms will continue in full force and effect. No other modification or claimed waiver of any provision of this Agreement shall be valid except by written amendment signed by authorized representatives of FiveCRM and Licensee.
13.8 Force Majeure. Neither FiveCRM nor any of its affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.9 Export Compliance. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. FiveCRM and Licensee each represents that it is not on any U.S. government denied-party list. Licensee will not permit any Authorized User to access or use any Services in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
13.10 Unenforceability and Survival. If any provision of this Agreement is held to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not permitted by law), and the rest of this Agreement is to remain in effect as written. Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement will survive the expiration or termination of this Agreement.
13.11 FiveCRM Contracting Entity, Governing Law, and Venue. The meaning of FiveCRM, the law governing this Agreement, and the jurisdiction in which disputes shall be adjudicated are set forth in the table below, in each case based on where the Licensee is domiciled.
Please view this section on a wider screen as it contains a table providing details about the
FiveCRM entities, governing laws, courts with exclusive jurisdiction, and arbitration proceeding
locations based on the licensee's domicile in a readable format.
1 The parties hereby agree to exclude all rights to seek a determination by the court of a preliminary point of law under section 45 of the Arbitration Act 1996 and all rights of appeal on a point of law from any arbitration award under section 69 of the Arbitration Act 1996. A person who is not party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement.
2 Each party irrevocably consents to the personal jurisdiction of the state and federal courts located in the State of Nevada for purposes of any lawsuit seeking to enforce this Agreement, and agrees that the exclusive venue for any litigation, action, suits, or proceeding arising out of or relating to this Agreement shall lie in the County Court in and for Clark County, Nevada, or, if federal jurisdiction exists, in the United States District Court for the District of Nevada.
13.12 United States Government End-Users. The Services provided by FiveCRM are “commercial items” consisting in part of “commercial computer software” and “computer software documentation,” as such terms are used in the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFARS”). In accordance with FAR 12.211 (Technical data) and FAR 12.212 (Computer software), and DFARS 227.7102 (Commercial items, components, or processes) and DFARS 227.7202 (Commercial computer software and commercial computer software documentation), as applicable, the rights of the United States government to use, modify, reproduce, release, perform, display, or disclose computer software, computer software documentation, and technical data furnished in connection with the Services will be pursuant to the terms of this Agreement. This United States government rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software, computer software documentation, or technical data. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights.
13.13 Target Availability - Company will use commercially reasonable efforts to make each Service Available (as defined below) with an uptime of 99.8% of each calendar year. “Available” means the Application is able to perform its core functions, including but not limited to update records, make calls, send emails and generate reports. Exclusions. Notwithstanding the above, the calculation of uptime will not include unavailability to the extent due to: (a) use of the Service by Customer in a manner not authorized herein or in the Agreement or the applicable documentation; (b) general Internet problems, force majeure events or other factors outside of Company's reasonable control; (c) Customer's equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) Scheduled Maintenance (as defined below) or reasonable emergency maintenance. “Scheduled Maintenance” means Company’s scheduled routine maintenance of the Services for which Company notifies Customer at least twenty-four (24) hours in advance. Scheduled Maintenance will not exceed eight (8) hours per month. It is clarified that the foregoing shall not derogate from anything in the Agreement, however in the event of a contradiction between the foregoing Support and Maintenance Services and the Agreement, the foregoing shall prevail.
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