End User License Agreement
Rev. May 2, 2016
Thank you for choosing the accompanying SalesPad® software (together with its accompanying documentation, the “software”). This license is the legal agreement (“agreement”) between you, the customer who has acquired the software (“you” or “customer”) and SalesPad, LLC (“SalesPad” or “we”). Please read this agreement carefully.
SalesPad or its authorized reseller is only willing to provide the software to you on the condition that you accept all of the terms contained in this agreement. You accept this agreement either by: (a) installing or using the software, (b) clicking the “i accept” or similar icon when you download the software, or (c) otherwise electronically indicating acceptance.
If you are unwilling to accept this agreement, do not use the software. If you have already paid for a license to the software without having a prior opportunity to review this agreement, and are now unwilling to agree to these terms, you may, within ten (10) days after the date on which you acquired the software, return it to the party from whom you acquired it for a full refund.
If you did not acquire the software from SalesPad or its authorized reseller, then you may not enter into this agreement or use the software. No other party has the right to transfer a copy of the software to you
1. Ownership. The Software (exclusive of its physical packaging if any) is licensed to you under the terms set forth in this Agreement. It is not sold, even if for convenience we make reference to words such as “sale” or “purchase” in this Agreement. The Software is protected by copyrights, trade secrets, and other intellectual property rights. You agree that all worldwide copyright and other intellectual property rights in the Software, and all copies of the Software however made, are the exclusive property of SalesPad and its suppliers. All rights in and to the Software not expressly granted to you in this Agreement are reserved by SalesPad. There are no implied licenses under this Agreement.
- 2.1 Purchase of Licenses. You may only use the Software if you have acquired a valid license from either SalesPad or its authorized reseller. The terms of each license are as set forth in this Agreement. Evidence that you have acquired a license, as well as the parameters of that license, may be indicated on packaging that accompanies the Software, on the applicable quote, invoice, license certificate or other product documentation provided to you by SalesPad, or on the screens displayed by the Software on its About or installation screens (collectively, the “License Documents”).
- 2.2 License Grant. Each license granted under this Agreement is subject one or more of the following license parameters: License Type, Authorized Number of Users, Maximum Number of Authorized Machines and Authorized Machines. The definitions and (for each Software product) default values of these parameters are set forth in the license schedule attached hereto (“License Schedule”). Different license parameter values for Authorized Number of Users and the Maximum Number of Authorized Machines may be specified in the applicable License Documents, which shall control over the default values in the License Schedule. If you purchase a license for a particular Software, then SalesPad grants to you a personal, limited, non-transferable, non-exclusive, revocable worldwide license during the term of this Agreement to install and execute that Software, in object code format only, on Authorized Machines (as defined in the License Schedule) solely for your own internal use subject to and in accordance with the applicable license parameters set forth on the License Schedule and License Documents.
- 2.3 Backup License. You may make a reasonable number of backup copies of the Software otherwise licensed to you during the term of this Agreement so long as you do not use such backup copies for any purpose other than to replace the original copy of the Software provided to you by SalesPad if such copy is damaged or destroyed. You may not run multiple copies of the Software for use in two (or more) different production environments.
- 2.4 ERP Licenses. The Software is designed as an add-on to third-party enterprise resource planning platforms (“ERP Platforms”). The third-party developers or owners of such ERP Platforms may impose limitations or additional license requirements regarding your use of add-ons (including the Software) with such ERP Platforms. You are responsible for obtaining a valid license to the ERP Platform with which you intend to use the Software and ensuring that your use of the Software is in compliance with such license.
3. Other Releases. The licenses that you acquire pursuant to this Agreement cover any future maintenance releases, upgrades, or other releases of the Software that you may acquire from SalesPad unless such releases are subject to a separate license agreement. The provision regarding maintenance releases, upgrades or other releases does not expand your license rights under this Agreement. If you acquired the accompanying copy of the Software as a maintenance release, upgrade or other update to a previously-installed release (as indicated on the applicable License Documents), then you may use the maintenance release, upgrade or other update only if you have a valid license to that previously-installed release. Your rights to the previously-installed release terminate once you install the accompanying Software.
4. Activation Codes. When you purchase a license pursuant to this Agreement, SalesPad or its authorized reseller may provide you with a unique activation code or other credential for use in accessing the licensed Software. Each activation code or other credential may be used to install or activate the Software under the specific license with which that credential is associated. In some cases, we will issue you a credential based on information about your computer or its software configuration (for example, based on the license code of your third-party ERP Platform) collected when you first register the Software using our online registration process, and the Software will thereafter only operate on that specific computer or software configuration. If a license granted to you under this Agreement is for a limited term, then the activation code or other credential issued under that license will expire – and the corresponding copy of the Software will no longer continue to operate – upon expiration of the limited license term. IN THAT CASE, YOU WILL NO LONGER BE ABLE TO ACCESS ANY DATA OR PROGRAMS THAT YOU HAVE CREATED USING THAT COPY OF THE SOFTWARE UNTIL YOU PURCHASE A NEW LICENSE, IF AVAILABLE, AT SALESPAD’S THEN-CURRENT TERMS AND PRICES.
5. Restrictions on Use. You may not do (or permit others to do) any of the following: (a) modify, adapt, alter, translate, or create derivative works of the Software; (b) merge or otherwise integrate the Software with external components or other software except as described in SalesPad’s documentation or as approved in writing by SalesPad; (c) sublicense, lease, rent, loan, assign, or otherwise transfer the Software or any license hereunder to any third party; (d) host, upload, use, or access the Software via a time sharing, service bureau, virtualization, hosting, or other remote access arrangement; (e) reverse engineer, decompile or disassemble the Software, or otherwise attempt to derive the source code of the Software except and only to the limited extent that such activities are expressly permitted by applicable law notwithstanding this limitation; (f) remove, alter, or obscure any confidentiality or proprietary notices (including copyright or trademark notices) of SalesPad or its suppliers on, in, or displayed by the Software; (g) reproduce or use the Software an any machine other than an Authorized Machine or in any manner that exceeds the license parameters specified on the License Schedule or applicable License Documentation; or (h) install, circumvent, or provide for use a program intended to circumvent, technological measures (such as activation codes) provided by SalesPad to control installation and use of the Software. Technical information provided to you under this Agreement, including APIs, is confidential and proprietary to SalesPad and may not be disclosed by you to third parties without SalesPad’s express permission.
6. Maintenance. You must purchase maintenance with each Software license. Maintenance is provided by SalesPad for a one (1) year term, which automatically renews for successive one (1) year terms unless this Agreement terminates or either you or SalesPad notifies the other party of the intention not to renew at least thirty (30) days before the expiration of the then-current maintenance term. While your maintenance term is in effect, SalesPad shall provide you with: (a) maintenance releases and upgrades on a when-and-if-available basis during the then-current maintenance term, as made generally available by SalesPad to its customers; (b) support to you via telephone and email during SalesPad’s normal business hours in accordance with SalesPad’s support policies posted at www.salespad.net/support, as updated from time to time. Maintenance releases and upgrades do not include new products, and SalesPad’s published characterization of a release as a maintenance release, upgrade or new product will be dispositive. If you elect not to renew maintenance, you may not subsequently reinstate maintenance without paying a reinstatement fee equal to fee that you would have paid for maintenance had you renewed without interruption. No other services are provided under this Agreement. You are responsible for installing and operating the Software on your computer as permitted under this Agreement. Additional services such as installation, customization and training may be available for purchase from SalesPad or its reseller pursuant to a separate agreement at the provider’s then-current terms and prices. Regardless of whether you initially purchase a license from a reseller or SalesPad, fees for renewal of maintenance shall be billed by and paid directly to SalesPad.
7. Fees and Payment. If you purchase a license, maintenance or other service directly from SalesPad, then the terms in this Section 7 shall apply. All orders are non-cancellable and all fees paid to SalesPad are non-refundable except as expressly provided in this Agreement. Fees do not include shipping, sales or use tax, withholding tax, excise tax, VAT, or customs duties, all of which you are responsible for paying above and beyond the license fees due to SalesPad. License fees and first year’s maintenance fees are due at the time license is granted. Fees for each annual renewal of maintenance are due at the outset of each renewal Term. Fees not paid within thirty (30) days after invoice shall accrue interest at a rate of one and one-half percent (1.5%) per month or the legal maximum interest rate, whichever is lower, applied as of the date of invoice. Customer may issue a purchase order consistent with the terms of this Agreement, but a purchase order is not required. If Customer issues a purchase order, then it shall be for the full amount of the fees due, and any additional or conflicting terms appearing in a purchase order shall not amend this Agreement.
8. Limited Warranty. SalesPad warrants to you, the original purchaser and to no one else, that, for a period of thirty (30) days after the initial delivery of the Software to you, that the Software will perform without Nonconformity. A “Nonconformity” is a material, reproducible failure of the Software to substantially perform in accordance with its end-user documentation that we have provided. Your exclusive remedy for breach of this warranty is to notify SalesPad within the warranty period specifying in reasonable detail the nature of the Nonconformity, whereupon SalesPad will provide to you either an updated version of the Software or a reasonably practical work-around that corrects or otherwise resolves the Nonconformity. This limited warranty does not apply to any maintenance releases or upgrades to the Software that are provided to you after expiration of the thirty (30) day warranty period.
9. DISCLAIMER OF WARRANTY.DISCLAIMER OF WARRANTY. EXCEPT FOR THE EXPRESS LIMITED WARRANTY OF SECTION 8, THE SOFTWARE AND SERVICES PROVIDED HEREUNDER ARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND. SALESPAD HEREBY EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS, OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE SOFTWARE IS ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. YOU ASSUME THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES. TO THE EXTENT THAT SALESPAD MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
10.LIMITATION OF LIABILITY. IN NO EVENT WILL SALESPAD (OR ANY AUTHORIZED RESELLER OF SALESPAD FROM WHOM YOU MAY HAVE ACQUIRED THE SOFTWARE) BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COST OF PROCURING SUBSTITUTE GOODS OR SERVICES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SALESPAD OR ITS AUTHORIZED RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF SALESPAD (INCLUDING ANY AFFILIATE OF SALESPAD FROM WHOM YOU MAY HAVE ACQUIRED THE SOFTWARE) IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THE GREATER OF US $1,000 OR THE TOTAL AMOUNT OF LICENSE FEES (IF ANY) THAT YOU PAID TO SALESPAD (OR ITS AFFILIATE) FOR USE OF THE PARTICULAR SOFTWARE PRODUCT GIVING RISE TO LIABILITY (NOT INCLUDING FEES FOR MAINTENANCE OR PRODUCTS OTHER THAN THE SOFTWARE). THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMIT. YOU ACKNOWLEDGE THAT THE LICENSE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SALESPAD WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NO LICENSOR OR OTHER SUPPLIER TO SALESPAD WILL HAVE ANY LIABILITY TO YOU, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE UNDER THIS AGREEMENT OR IN RELATION TO THE SOFTWARE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION WILL APPLY EVEN IF AN EXCLUSIVE REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
11. Termination. This Agreement will remain in effect until the expiration of the copyrights in the Software unless the license granted to you under this Agreement is for a limited term (as indicated on the License Schedule or on the applicable License Documents), in which case this Agreement and your rights hereunder terminate upon expiration of that limited term. You may also terminate this Agreement at any time and for any reason by giving written notice to SalesPad. SalesPad may terminate this Agreement, effective immediately upon written notice to you if you (a) fail to pay any portion of the fees hereunder when due and fail to cure such non-payment within thirty (30) days after receipt of notice of same, or (b) if you otherwise breach any provision of this Agreement. Upon expiration or termination of this Agreement for any reason, your license rights hereunder terminate and you must erase or otherwise destroy all copies of the Software licensed hereunder. Sections 1, 5, 9, 10, 11, 12 and 13 will survive expiration or termination of this Agreement for any reason.
12. Third Party Software Programs. The Software includes certain open-source and other programs or content licensed by third-party developers (“Third-Party Programs”). Copyright notices and additional license terms for Third-Party Programs will be provided in the Software’s “About” screen or in the documentation that accompanies the Software, as specified by the respective third-party developers. By using the Software, you agree to comply with these additional third-party terms for the benefit of the applicable third party. SALESPAD PROVIDES THIRD-PARTY PROGRAMS TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND.
- 13.1 No Trademark License. No rights to use SalesPad’s logos or other trademarks are granted under this Agreement. If you would like to use SalesPad’s logos or other trademarks, please contact SalesPad to discuss becoming an authorized reseller.
- 13.2 Choice of Law and Venue. Regardless of where you are located, this Agreement will be governed by the laws of the State of Michigan and the United States, without giving effect to any choice of law principles that would require the application of the laws of a different country or state. Any legal action between you and SalesPad arising out of this Agreement or your use of the Software must be instituted exclusively in the federal or state courts located in Kent County, Michigan, and you consent to jurisdiction and venue in such courts. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (USA) do not apply to this Agreement.
- 13.3 Compliance with Laws. You will comply with all applicable export and import control laws and regulations in your use of the Software and, in particular, you will not export or re-export the Software without all required government licenses. Regardless of any disclosure made to SalesPad of an ultimate destination of the Software including its accompanying technical documentation, you acknowledge that all such materials are being released or transferred to you in the United States and may be subject to U.S. export control laws and regulations including regulations of the U.S. Bureau of Industry and Security. You will defend, indemnify, and hold harmless SalesPad and its suppliers from and against any violation of such laws or regulations by you.
- 13.4 U.S. Government Rights. If you are a branch or agency of the U.S. Government, then you acknowledge that the Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Any technical data provided with such Software is commercial technical data as defined in 48 C.F.R. 12.211. Consistent with 48 C.F.R. 12.211 through 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, and 48 C.F.R. 252.227-7015, all U.S. Government end users acquire the Software with only those rights set forth in this Agreement.
- 13.5 Records. During the term of this Agreement and for one (1) year after its expiration or termination, you will keep reasonably complete records of your installation and use of the Software. You will permit SalesPad or its representatives to review and verify those records to ensure compliance with this Agreement. SalesPad will give you at least ten (10) days advance notice of any such review and will conduct the same during normal business hours in a manner that does not unreasonably interfere with your normal operations. SalesPad will treat your records as your confidential information.
- 13.6 Relationship Between the Parties. The parties are independent contractors. Neither party is the agent, partner, employee, fiduciary, or joint venturer of the other party under this Agreement.
- 13.7 Assignments. You may not assign or transfer, by operation of law or otherwise, any of your rights under this Agreement (including your licenses with respect to the Software) to any third party without SalesPad’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. SalesPad may freely assign its rights or delegate its obligations under this Agreement.
- 13.8 Language. This Agreement is in the English language and its English language version will be controlling over any other translation, except as otherwise required by applicable law. The parties to this Agreement have expressly required that the present Agreement and its Exhibits be drawn up in the English language. / Les parties aux presents ont expressement exige que la presente convention et ses Annexes soient redigees en langue Anglaise.
- 13.9 Remedies. Except as otherwise provided herein, the parties’ rights and remedies under this Agreement are cumulative. You acknowledge that the Software contains valuable trade secrets and proprietary information of SalesPad and its suppliers, that any actual or threatened breach of this Agreement by you will constitute immediate, irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
- 13.10 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- 13.11 Severability. If any provision of this Agreement is held unenforceable by a court, such provision may be changed and interpreted by the court to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, you agree that Sections 9 and 10 will remain in effect notwithstanding the unenforceability of any other provision of this Agreement.
- 13.12 Entire Agreement. This Agreement (including the Licensing Schedule) constitutes the final and entire agreement between the parties regarding the subject of this Agreement and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms of any purchase order or similar document submitted by you to SalesPad will have no effect. License Documents are not part of, and do not modify, the terms of this Agreement, except insofar as they specify one or more of the license parameters expressly defined on the License Schedule. If the terms of this Agreement conflict with the Licensing Schedule or any Licensing Document, then the terms of this Agreement shall control.
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