ActivePrime, Inc. Data Quality On Demand Subscription User Agreement

IMPORTANT- READ THIS ACTIVEPRIME DATA QUALITY ON DEMAND SUBSCRIPTION USER AGREEMENT (THIS "USER AGREEMENT") CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE ACCEPTING THIS USER AGREEMENT THROUGH AN ORDER DOCUMENT/FORM THAT INCORPORATES THIS USER AGREEMENT, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. IF YOU ARE ENTERING INTO THIS USER AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS USER AGREEMENT AND, IN SUCH EVENT, "YOU" AND "YOUR" AS USED IN THIS USER AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS USER AGREEMENT, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICES.

This User Agreement is between you and ActivePrime, Inc. ("ActivePrime"). The terms of this User Agreement shall apply to use of the subscription-based solutions identified as Data Quality On Demand Subscriptions ("Subscriptions") in the Order Form as well as all other solutions provided by ActivePrime that are set forth in such Order Form (including, any exhibits and/or statements of work thereunder). The Subscriptions include access to online solutions for maintaining data quality in your CRM system, such as CleanEnterTM and others as added from time to time. The terms of this User Agreement shall control over any different or additional terms of any purchase order or other non-ActivePrime Order Form, and no terms included in any such purchase order or other non-ActivePrime Order Form shall apply to the Subscriptions, Services and/or Materials. The terms of the Order Form between you and ActivePrime shall control over any conflicting terms in this User Agreement.

If you are obtaining or have obtained the Subscriptions from a third party authorized by ActivePrime ("Partner"), then: (a) the terms of this User Agreement shall apply to all Subscriptions that are being obtained or were obtained by you from Partner; (b) this User Agreement is between ActivePrime and you; however, the terms of the agreement by which you order the Subscriptions and any related products from Partner (which shall be referred to herein as the "Partner Order") is between you and the Partner who has executed the Partner Order with you; (c) if Partner is executing this User Agreement on your behalf, it and you hereby represent and warrant that Partner has been authorized to do so on your behalf and that this User Agreement is binding and enforceable against you; (d) for purposes of interpreting this User Agreement, the Partner Order shall be deemed to be the "Order Form", and collectively with this User Agreement, the "Agreement"; and (e) notwithstanding the last sentence of the preceding paragraph, the Partner Order shall not amend or modify any terms of this User Agreement, and the terms of this User Agreement shall control over any conflicting terms in the Partner Order.

If you are obtaining or have obtained the Subscriptions from a third party authorized by ActivePrime ("Partner"), then: (a) the terms of this User Agreement shall apply to all Subscriptions that are being obtained or were obtained by you from Partner; (b) this User Agreement is between ActivePrime and you; however, the terms of the agreement by which you order the Subscriptions and any related products from Partner (which shall be referred to herein as the "Partner Order") is between you and the Partner who has executed the Partner Order with you; (c) if Partner is executing this User Agreement on your behalf, it and you hereby represent and warrant that Partner has been authorized to do so on your behalf and that this User Agreement is binding and enforceable against you; (d) for purposes of interpreting this User Agreement, the Partner Order shall be deemed to be the "Order Form", and collectively with this User Agreement, the "Agreement"; and (e) notwithstanding the last sentence of the preceding paragraph, the Partner Order shall not amend or modify any terms of this User Agreement, and the terms of this User Agreement shall control over any conflicting terms in the Partner Order.

1. Definitions

As used in this User Agreement and in any Order Forms now or hereafter associated herewith:

  • "ActivePrime, Inc." means ActivePrime, Inc., a Delaware corporation, having its principal mailing address at 800 West El Camino Real, Suite 180, Mountain View, CA 94040;

  • "Affiliate" means any entity controlled by, under common control with or controlling a party. For the purposes of this definition, "control" means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by trust, management agreement, contract or otherwise.

  • The "Agreement" means this User Agreement, any Order Forms, whether written or submitted online and any materials available on ActivePrime’s website specifically incorporated by reference herein, as such materials, including the terms of this User Agreement, may be updated from time to time by ActivePrime in its sole discretion.

  • "Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Subscription;

  • "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you agree to be bound by the terms and conditions of this User Agreement and the Order Form and and you have made your initial payment as required under the applicable Order Form;

  • "Initial Term" means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is quarterly, the Initial Term is the first quarter);

  • "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

  • "License Administrator(s)" means those Users designated by you who are authorized to purchase licenses online or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service;

  • "License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);

  • "Order Form(s)" means the form evidencing the initial subscriptions for the Services and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this User Agreement;

  • "Service(s)" means the specific application or solution identified and subscribed for by you in the Order Form and developed, operated, and maintained by ActivePrime, accessible via http://www.activeprime.com or another designated web site or IP address, or ancillary online or offline products and subscriptions provided to you by ActivePrime, to which you are being granted access under this Agreement, including the Technology and the Content;

  • "Web Services" means the accessing the functionality of the Services by another software system or application over the Internet or a network that is offered by ActivePrime under the terms of this Agreement

  • "Technology" means all of ActivePrime's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by ActivePrime in providing the Service;

  • "User(s)" means your employees, representatives, consultants, contractors, or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by ActivePrime at your request) and who are bound or agree to be bound by the terms of this User Agreement.

  • “Average Daily Hits” means the average number of times you separately access the Web Services on a daily basis.

2. Privacy & Security; Disclosure

ActivePrime's privacy and security policies may be viewed under the About link the applicable ActivePrime Subscription Service. ActivePrime reserves the right to modify its privacy and security policies in its reasonable discretion from time to time without your consent, provided such modifications do not result in policies that are materially less protective of you. Individual users when they initially log in, may be asked whether or not they wish to receive marketing and other non-critical Service-related communications from ActivePrime from time to time. They may opt out of receiving such communications at that time or at any subsequent time. Note that because the Service is a hosted, online application, ActivePrime occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that ActivePrime can disclose the fact that you are a paying customer and the Solution of the Service that you are using.

3. Licenses from ActivePrime.

ActivePrime grants to you, during the License Term as defined in the applicable Order Form, the nontransferable (except in connection with an assignment pursuant to Section 23), nonexclusive, worldwide right to permit Users to use the Services and any materials developed by ActivePrime or its third party suppliers ("Third Party Providers") and delivered to you in the course of performing Services (the "On Demand Materials") solely in connection with the Subscriptions, all solely for your own internal business operations in accordance with the terms of this User Agreement, including the online documentation for any Subscriptions. The Subscriptions include solutions for maintaining data quality in your CRM system. The Subscriptions are provided by ActivePrime from a data center facility to which your Users have remote access. The rights granted to you in this User Agreement are subject to all of the following agreements and restrictions by the following agreements and restrictions: (i) unless you have subscribed for Web Services, the maximum number of Users that you authorize to access the Services shall not exceed the number of User licenses (also referred to as "subscriptions") you have purchased, as evidenced in the Order Form; (ii) User licenses cannot be shared or used by more than one individual User (unless it is reassigned in its entirety to another authorized User, in which case the prior authorized User shall no longer have any right to access or use such license); (iii) you shall not license, sell, rent, lease, transfer, assign (except in connection with an assignment pursuant to Section 23), distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Service or the On Demand Materials available, to any third party other than a User; (iv) you shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service or On Demand Materials or access or use the Service or On Demand Materials in order to build a similar or competitive product or service; (v) except as expressly stated herein, no part of the Service or On Demand Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; (vi) you shall not disclose the results of any performance tests to any third party without ActivePrime's prior approval; (vii), you shall not use or access the Service or On Demand Materials to build or support, and/or assist a third party in building or supporting, products or subscriptions competitive to ActivePrime, (viii) you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Service; and (ix) you acknowledge and agree that ActivePrime or its Third Party Providers shall own all right, title and interest in and to all Intellectual Property Rights (including all derivatives or improvements thereof) in the Service and the On Demand Materials and any suggestions, enhancement requests, feedback, recommendations or other similar information provided by you or any other party relating to the Service or the On Demand Materials; and (x) you acknowledge and agree that a condition to your use of any Services of any Third Party Providers is your ongoing agreement to such Third Party Providers’ terms of use or similar requirements imposed by such Third Party Providers prior to use thereof and that you will comply with such requirements throughout the License Term.

4. Trial Subscriptions.

If offered, you may order Trial Subscriptions, which you may use for trial, non-production purposes only. You may not use the Trial Subscriptions to provide or attend third party training on the content and/or functionality of the Service. Upon lapse of the Trial Period, your usage rights shall terminate. If you decide to use any of the Service after the Trial Period, you must purchase the Service from ActivePrime via a separate Order Form. The Trial Subscriptions provided for trial purposes are provided "as is" and ActivePrime does not provide technical support or offer any warranties for these subscriptions.

5. Your Data.

You hereby grant Active Prime a nonexclusive, royalty-free limited license during the License Term to use Your Data solely for the purpose of performing the Services. ActivePrime will protect any data or information provided by you in connection with the performance of the Services ("Your Data") as confidential in accordance with Sections 2 & 14. You acknowledge and agree that Your Data may be transferred or stored outside of the country or other jurisdiction where you and your Users are located, such as in connection with the provision of Customer Support. In addition, you acknowledge and agree that under applicable law you may be obligated to inform third parties of the use, processing, or transfer of Your Data and to ensure that such third parties have given their consent to such use, processing, and transfer as required by all applicable data protection legislation. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Your Data, and ActivePrime shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data.

6. Intellectual Property Ownership

ActivePrime alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the ActivePrime Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other similar information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the ActivePrime Technology or the Intellectual Property Rights owned by ActivePrime. The ActivePrime name, the ActivePrime logo, and the product names associated with the Service are trademarks of ActivePrime or third parties, and no right or license is granted to use them.

7. Billing and Payment.

You agree to pay in advance for all products and subscriptions ordered under this User Agreement except as set forth in an Order Form. ActivePrime Subscriptions are billed as set forth in the Order Form. The initial charges will be equal to the current number of total User licenses in your CRM system times the User license fee set forth in the Order Form currently in effect, unless you have subscribed for Web Services in which case your charges will be based on your Average Daily Hits as set forth in the Order Form. The renewal charge will be equal to the current number of total User licenses in your CRM system times the User license fee set forth in the Order Form for the renewal period, unless you have subscribed for Web Services in which case your charges will be based on your Average Daily Hits as set forth in the Order Form.

All fees due under this User Agreement are non-cancelable and the sums paid nonrefundable, except as otherwise specified in Section 11 of this User Agreement. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used, or for your committed level of Average Daily Hits if you have subscribed for Web Services even if actual Average Daily Hits are less than such committed level. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current license fee set forth in the applicable Order Form; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. ActivePrime reserves the right to modify its fees and charges and to introduce new charges at any time in connection with additional costs incurred that were not originally contemplated by the Order Form, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party. Fees for other services will be charged on an as-agreed basis. ActivePrime's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities that ActivePrime must pay based on the Services or Subscriptions you ordered (examples include sales, value-added or use taxes), and you shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed on an Order Form, excluding only taxes based solely on ActivePrime's income. You will reimburse ActivePrime for reasonable pre-approved expenses related to providing any Services or Subscriptions.

You will provide ActivePrime with valid and updated credit card or approved purchase order information and complete and accurate billing and contact information. If you provide credit card information to ActivePrime, you authorize ActivePrime to bill such credit card (a) at the time that you order any products, Services, or Subscriptions for all set forth in the Order Form, and (b) at the time of any renewal, for the amount charged for any renewal Subscription Term(s). You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, ActivePrime reserves the right to terminate your access to the Service in addition to any other legal remedies. If ActivePrime, in its discretion, permits you to make payment using a method other than a credit card, ActivePrime will invoice you at the time of the initial Order Form and at least one month in advance of the start of any renewal or subsequent billing period. All amounts invoiced hereunder are due and payable immediately. This paragraph does not apply where you are being invoiced by and making payments directly to a Partner and not by ActivePrime.

If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. If you are being invoiced by a Partner, your adjustment or credit will be provided by such Partner.

8. Term and Termination.

This User Agreement is valid for the Order Form in which this User Agreement is incorporated by reference. The term of the Subscriptions set forth in the Order Form hereunder shall commence upon the date of enablement of the Subscriptions (as identified in ActivePrime's first invoice after execution of such Order Form), or as otherwise set forth in such Order Form, and shall continue for the License Term. Upon the expiration of the Initial Term, this User Agreement will automatically renew for successive renewal terms of one year at ActivePrime’s then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least thirty (30) days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Subscription or by email indicating the remaining number of days in the free trial shall constitute notice of termination. Except as otherwise provided in an Order Form issued by ActivePrime, Subscriptions shall be renewed under ActivePrime's then-current applicable policies and terms, subject to ActivePrime’s acceptance and your payment of fees for such Service. In the event of any material breach of this User Agreement by either party, the non-breaching party shall have the right to terminate the applicable Order Form for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. ActivePrime may immediately suspend your password, account, and access to or use of the Service during such cure period if (i) you fail to make payment due to ActivePrime under this User Agreement and do not cure such non-payment within ten business days after ActivePrime has provided you with notice of such failure, or (ii) you violate any provision within Section 3 or Section 17 of this User Agreement. Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension or for your committed level of Average Daily Hits if you have subscribed to Web Services. Any suspension by ActivePrime of the Service under the preceding sentence shall not excuse you from your obligation to make payment(s) under the Agreement. ActivePrime reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Subscriptions. Upon any termination of the Order Form, your right to access and use the Subscriptions specified in the Order Form (including the Materials) shall terminate. If ActivePrime terminates the Order Form under this Section or under Section 17 below, you must pay within 30 days all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for subscriptions received under the Order Form plus related taxes and expenses. You agree and acknowledge that ActivePrime has no obligation to retain Your Data and that Your Data may be irretrievably deleted after 30 days following the termination of the Order Form. In addition, ActivePrime may terminate a free account at any time in its sole discretion. The following provisions shall survive any termination of this User Agreement: Sections 6, 8, 12-14, 17, 24, 27 and 28.

9. Third Party Interactions

During use of the Subscriptions, you may enter into correspondence with and purchase goods and/or services with a third-party related to the Subscriptions. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. ActivePrime and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. ActivePrime provides the Service to you pursuant to the terms and conditions of this Agreement which is completely independent of any agreement you may have with your CRM system provider. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.

10. Customer Support.

As part of the Subscriptions, ActivePrime will provide you with Customer Support under ActivePrime's Customer Support Policies in effect at the time such Customer Support is provided. ActivePrime shall have the right to modify the Customer Support Policies at any time in its sole discretion; however, by any such modification, ActivePrime will not materially reduce the Customer Support levels provided to you for the period for which you have paid for such Subscriptions.

11. Representations, Warranties & Exclusive Remedy.

Each party represents and warrants that it has the power and authority to enter into this User Agreement, and you further represent and warrant that the person accepting this User Agreement on your behalf has been properly authorized by you to do so and that this User Agreement is binding and enforceable against you. ActivePrime warrants that (a) the Services will perform substantially in accordance with its online documentation under normal use, (b) the Services will be provided in a manner consistent with generally accepted industry standards, You must notify ActivePrime of any warranty deficiencies within 30 days from performance of the relevant Service in order to receive warranty remedies. For any breach of the express warranty as set forth above including any warranty deficiencies of any Third Party Provider, as your exclusive remedy, ActivePrime or such Third Party Provider will re-perform the deficient Services, as applicable, and if ActivePrime, or such Third Party Provider, as the case may be, is unable to re-perform such deficient Services as warranted, you shall be entitled to recover the portion of the fees paid to ActivePrime for such deficient Services of ActivePrime or such Third Party Provider, as the case may be, and such refund shall be ActivePrime's entire liability.

12. Indemnities.

If a third party makes a claim against either you or ActivePrime ("Recipient" which may refer to you or ActivePrime depending upon which party received the Material), that any information, design, specification, instruction, software, system, solution, service, data, or material ("Material") furnished by either you or ActivePrime ("Provider" which may refer to you or ActivePrime depending on which party provided the Material), and used by the Recipient infringes or misappropriates its Intellectual Property Rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:

  • notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law), provided that failure to do so will not affect Provider’s indemnification obligation except to the extent the Recipient is prejudiced thereby;
  • gives the Provider sole control of the defense and any settlement negotiations (provided that the Provider may not settle or defend any claim unless the Provider unconditionally releases the Recipient of all liability and such settlement does not affect the Recipient’s business or Service); and
  • gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.

If the Provider believes or it is determined that any of the Material may have violated a third party's Intellectual Property Rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid for such Material. If you are the Provider and such return materially affects ActivePrime's ability to meet its obligations under the relevant Order Form, then ActivePrime may, at its option and upon 30 days prior written notice, terminate the Order Form. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider's user documentation or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by the Provider. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by the Provider. The Provider will not indemnify you for infringement caused by your actions against any third party if the Materials as delivered to you and used in accordance with the terms of this User Agreement would not otherwise infringe any third party intellectual property rights. This section provides the parties' exclusive remedy for any infringement claims or damages covered by this section. As used in this Section, the term “you” and “ActivePrime” includes each such party’s parent organizations, subsidiaries, Affiliates, officers, directors, Users, employees, attorneys and agents.

13. Mutual Indemnification

You shall indemnify and hold ActivePrime, its licensors and each such party's parent organizations, subsidiaries, Affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (ii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that ActivePrime (a) gives written notice of the claim promptly to you, provided that failure to do so will not affect your indemnification obligation except to the extent you are prejudiced thereby; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release ActivePrime of all liability and such settlement does not affect ActivePrime's business or Service); and (c) provides to you all available information and reasonable assistance; and (d) has not compromised or settled such claim.

ActivePrime shall indemnify and hold you and your parent organizations, subsidiaries, Affiliates, officers, directors, Users, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by ActivePrime of its representations or warranties; or (ii) a claim arising from breach of this Agreement by ActivePrime; provided that you (a) promptly give written notice of the claim to ActivePrime, provided that failure to do so will not affect your indemnification obligation except to the extent you are prejudiced thereby (b) give ActivePrime sole control of the defense and settlement of the claim (provided that ActivePrime may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to ActivePrime all available information and assistance; and (d) have not compromised or settled such claim. ActivePrime shall have no indemnification obligation, and you shall indemnify ActivePrime pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(es).

14. Confidential Information.

Each party may have access to information that is confidential to the other party ("Confidential Information"). Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential. Confidential Information of ActivePrime shall include the software programs provided as part of the Services and the On Demand Materials. Confidential Information of yours shall include Your Data. A party's Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure or; (iv) is independently developed by the other party without reference to the other party's Confidential Information. The parties agree to use reasonable care to prevent the unauthorized disclosure or misuse of the other party's Confidential Information and to only disclose the other party’s Confidential Information to those directors, officers, advisors, Users, employees, agents and contractors of a party (including, in the case of you, your Affiliates) and Third Party Providers (like a CRM manufacturer) who have a need to know the Confidential Information, which, in the case of ActivePrime, is required for performance of its obligations hereunder, and, in the case of you, is required for the conduct of your business. Any such disclosure shall be subject to terms and conditions substantially the same as those provided herein. The parties agree not to disclose or transfer the Confidential Information directly or indirectly, to any other person, firm, corporation, entity or third party not stated here. The Parties agree to hold each other’s Confidential Information in confidence for a period of three years from the date of disclosure. Notwithstanding the foregoing, you acknowledge and agree that (1) ActivePrime may disclose your Confidential Information to its Third Party Providers to the extent necessary to provide products, Services, or Subscriptions under the Agreement, and (2) for a period of at least until three years after the end of the License Term. ActivePrime's obligations regarding personally identifiable information and other information concerning you and your Users shall be governed by the terms of the then-current ActivePrime Privacy Policy available on the ActivePrime website. Further, ActivePrime may identify you on its customer lists and in its marketing and advertising materials, and announce that you are a customer of the Services, and reproduce your company name, logo, trademark, trade name, service mark, or other commercial designations in connection therewith.

15. Your Responsibilities.

You will ensure that any use of the Subscriptions and Services by you and your Users is in accordance with the terms and conditions of this User Agreement, and you shall be responsible for any breach by any User of such terms and conditions. In addition, you will obtain any consents required for ActivePrime and its Third Party Providers to perform the Subscriptions and Services under this User Agreement. You are responsible for ensuring that your network and systems comply with specifications that ActivePrime provides. ActivePrime is not responsible for your network connections or for conditions or problems arising from or related to your network connections (e.g., bandwidth issues, excessive latency, network outages), or caused by the internet. 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) notify ActivePrime immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to ActivePrime immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another ActivePrime user or provide false identity information to gain access to or use the Service.

16. Notices.

ActivePrime may give notice applicable to ActivePrime's general Services customer base by means of a general notice on the Services portal and notices specific to you by electronic mail to your e-mail address on record in ActivePrime's account information or by written communication sent by first class mail or pre-paid post to your address on record in ActivePrime's account information. If you have a dispute with ActivePrime or you wish to provide a notice under this User Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: ActivePrime, Inc., at the address set forth in Section 1, Attention: General Counsel, Legal Department.

17. Restrictions on Use.

You may use the Service only for your own internal business purposes and shall not use or permit use of the Subscriptions, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property; (b) involve the publication of any material that is false, defamatory, harassing or obscene; (c) violate privacy rights or promote bigotry, racism, hatred or harm; (d) constitute unsolicited bulk e-mail, "junk mail", "spam" or chain letters; (e) constitute an infringement of Intellectual Property Rights; (f) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (h) attempt to gain unauthorized access to the Service or its related systems or networks; or (i) otherwise violate applicable laws, ordinances or regulations. ActivePrime reserves the right to remove or disable access to any material that violates the foregoing restrictions or to terminate the Subscriptions for a violation of your obligations under this section in accordance with Section 8. ActivePrime shall have no liability to you in the event that ActivePrime takes such action. You agree to defend and indemnify ActivePrime against any claim arising out of a violation of your obligations under this section.

18. Verification.

At ActivePrime's written request, but not more frequently than annually, you shall furnish ActivePrime with a document signed by your authorized representative verifying that the Services is being used pursuant to the provisions of this User Agreement and the applicable Order Form. You agree to provide such information and documents reasonably requested by ActivePrime with respect to your use of, and payment of fees for, the Subscriptions. Also, ActivePrime retains the right to verify the number of users licensed (and the number of Average Daily Hits if you use Web Services) on your CRM system on a quarterly basis (this can be done electronically with no resource impact on your staff). If the verification described in this section reveals that you have underpaid fees to ActivePrime, you shall promptly pay to ActivePrime such fees at the prices set forth in the applicable Order Form. You are responsible for implementing reasonable means to monitor your compliance with the terms of this User Agreement.

19. Export.

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Subscriptions, the Materials and any services deliverables. You agree that such export control laws govern your use of the Subscriptions, the Materials and any services deliverables (including technical data), and you agree to comply with all export laws and regulations (including "deemed export" and "deemed re-export" regulations). You agree that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

20. Force Majeure.

Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either party may cancel unperformed services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the Subscriptions and/or Services provided.

21. Subscriptions Tools.

ActivePrime may use tools, scripts, software, and utilities (collectively, the "Tools") to review and administer the Services, and to help resolve your service requests. The Tools will not collect, report or store any of Your Data residing in the Services, except as necessary to troubleshoot service requests or other problems in the Services. Since data collected by the Tools is current, the data may also be used to assist in managing ActivePrime's product and service portfolio and for license management.

22. Statistical Information.

ActivePrime may compile statistical and performance information related to the provision of the Subscriptions, and may make such information publicly available, provided that such information does not incorporate Your Data and/or identify your Confidential Information. ActivePrime retains all Intellectual Property Rights in such information.

23. Assignment; Change in Control.

This Agreement may not be assigned by either party without the prior written approval of the other but may be assigned without the other party’s consent to (i) an Affiliate, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of ActivePrime directly or indirectly owning or controlling 50% or more of you shall entitle ActivePrime to terminate this Agreement for cause immediately upon written notice.

24. General provisions.

Any action related to this User Agreement will be governed by California law and controlling U.S. federal law. Any disputes, actions, claims or causes of action arising out of or in connection with this User Agreement shall be subject to the exclusive jurisdiction of the state courts of San Francisco County, California, and the federal courts of the Northern District of California. The Uniform Computer Transactions Act does not apply to this Agreement. This User Agreement and the information which is incorporated into this User Agreement by written reference (including reference to information contained in a URL or referenced policy), together with the Order Form and, in the case of the CleanCRM Desktop software, the End User Software License Agreement for that solution, represents the parties' entire understanding relating to the Subscriptions, the Services and the On Demand Materials, and supersedes any prior or contemporaneous, conflicting or additional, communications. The exchange of a fully executed Order Form by fax shall be sufficient to bind the parties to the terms and conditions of this User Agreement and Order Form. The terms and conditions of this User Agreement may be amended only by written agreement of the parties. If any provision of this User Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between ActivePrime and you as a result of this User Agreement or use of the Subscriptions. ActivePrime reserves the right to provide some or all of the Subscriptions, On Demand Materials, or Services from locations, and/or through use of Third Party Providers, worldwide. The failure of either party to enforce any right or provision in this User Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of ActivePrime's proprietary rights, no action, regardless of form, arising out of or relating to this User Agreement may be brought by either party more than two years after the cause of action has accrued. Any rights not expressly granted herein are reserved by ActivePrime.

25. Modification to Terms

ActivePrime reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Subscriptions at any time, effective upon posting of an updated version of this Agreement on the Subscriptions. You are responsible for regularly reviewing this Agreement. Continued use of the Subscriptions after any such changes shall constitute your consent to such changes.

26. Internet Delays

ACTIVEPRIME'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ACTIVEPRIME IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

27. Disclaimer of Warranties.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11 ABOVE, ACTIVEPRIME AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE ON DEMAND MATERIALS AND THE SUBSCRIPTIONS INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF SERVICE. ACTIVEPRIME AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY OR COMPLETENESS OF THE ON DEMAND MATERIALS, OR THE SUBSCRIPTIONS OR THE RESULTS YOU MAY OBTAIN BY USING THE SUBSCRIPTIONS, THE ON DEMAND MATERIALS, OR THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ACTIVEPRIME AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES OR ON DEMAND MATERIALS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE SUBSCRIPTIONS WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER ACTIVEPRIME NOR ITS THIRD PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES AND ON DEMAND MATERIALS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. ACTIVEPRIME IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY ACTIVEPRIME, THE SERVICES, AND THE ON DEMAND MATERIALS ARE PROVIDED TO YOU ON AN "AS IS" BASIS.

28. Limitation of Liability.

EXCEPT IN CONNECTION WITH THE PARTIES INDEMNIFICATION OBLIGATIONS IN SECTION 12 OR 13, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR A PARTY’S BREACH OF SECTION 14 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY OR THE THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS (EXCLUDING FEES UNDER THIS USER AGREEMENT), USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS USER AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHERWISE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CONNECTION WITH THE PARTIES INDEMNIFICATION OBLIGATIONS IN SECTION 12 OR 13, A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR A PARTY’S BREACH OF SECTION 14 (CONFIDENTIALITY), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY AND THE THIRD PARTY PROVIDERS FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS USER AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO ACTIVEPRIME UNDER THIS USER AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM (PRO RATED IN THE CASE OF UPFRONT PAYMENTS). AND IF SUCH LIABILITY RESULTS FROM YOUR USE OF A PARTICULAR PORTION OF THE SERVICES, ON DEMAND MATERIALS, OR SERVICES UNDER THIS USER AGREEMENT, SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID TO ACTIVEPRIME FOR THE DEFICIENT PORTION OF THE SERVICES, ON DEMAND MATERIALS, OR SERVICES GIVING RISE TO THE LIABILITY FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM (PRO RATED IN THE CASE OF UPFRONT PAYMENTS). Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.