MASTER SERVICES AGREEMENT
1. Introduction and Acceptance.
This Access License Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity) (“You”, “Your” or “Customer”) and Inspire Planner Inc. (“Inspire Planner”) setting forth the terms and conditions under which Inspire Planner will grant You the right to access and use certain Inspire Planner software described in the accompanying or online documentation (“Software”). BEFORE YOU AGREE TO THE TERMS AND CONDITIONS, CAREFULLY READ THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING TO INDICATE YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (THE “ORDER FORM”), YOU AGREE TO BE BOUND BY ALL TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SOFTWARE.
2. License.
Subject to the restrictions set forth below and the payment of all applicable Fees (as defined in Section 6), Inspire Planner grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to download the Software for installation in Customer’s salesforce.com instance (“SFDC Instance”) for use by Customer in connection with Customer’s SFDC Instance for the number of users for which Customer has paid the applicable subscription Fees. Use of the Software shall be solely for Customer’s internal business purposes. Notwithstanding the foregoing and subject to the terms of this Agreement, Customer may access and use the Software on a trial basis and free of charge for a period not to exceed thirty (30) calendar days (“Trial Period”). Customer may also grant third parties access to use the Software via a portal offered by Inspire Planner. Customer’s access to the Software will automatically terminate following such Trial Period unless Customer has paid in full all applicable Fees for a yearly subscription in accordance with this Agreement.
3. Software Availability.
Customer acknowledges that access to and use of the Software is dependent on the availability and proper functioning of Customer’s SFDC Instance and that Inspire Planner has no control over Customer’s SFDC Instance or the salesforce.com service. Inspire Planner disclaims responsibility and liability for any inability to access or use the Software, or degradation of the performance of the Software, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, Customer’s SFDC Instance or other third party owned or controlled technology. Customer is solely responsible for the configuration of Customer’s SDFC Instance and all technology and services necessary to access and use the Internet and Customer’s SFDC Instance.
4. Ownership.
4.1 The rights granted hereunder do not constitute a transfer or sale of Inspire Planner’s or its licensors’ ownership rights in or to the Software, including, without limitation: (a) the Software and the applicable documentation; (b) Inspire Planner name, logo, domain name, Inspire Planner product names and other trademarks; and (c) hardware, processes, algorithms, user interfaces, know-how and other trade secrets or technology (collectively, “Inspire Planner Technology”). The Inspire Planner Technology is protected by applicable intellectual property laws, including, but without limitation, Canadian copyright laws and international treaties. Except for the rights granted above, Inspire Planner and its licensors retain all right, title and interest in and to Inspire Planner Technology, including all intellectual property rights therein.
4.2 As between Inspire Planner and Customer, Customer owns the information in Customer’s SFDC Instance and Inspire Planner makes no claim of ownership to any information in Customer’s SFDC Instance. Customer acknowledges and agrees that the Software will access and use Customer information from Customer’s SFDC instance solely to the extent necessary for the Software to perform as intended pursuant to this Agreement. This access and use does not permit the Software, or Inspire Planner, to access or use such Customer information outside of Customer’s SFDC instance or for any other purpose, except as expressly permitted in writing by Customer. Customer is solely responsible for the accuracy of all information in Customer’s SFDC Instance.
5. Restrictions; Responsibilities.
5.1 CUSTOMER MAY NOT (AND MAY NOT ALLOW A THIRD PARTY TO) RENT, LEASE, SUBLICENSE, SELL, CHARGE, ASSIGN, LOAN, USE FOR TIMESHARING OR SERVICE BUREAU PURPOSES OR OTHERWISE TRANSFER THE SOFTWARE OR ANY OF CUSTOMER’S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT; PROVIDED HOWEVER, CUSTOMER MAY USE THE SOFTWARE AND PROVIDE ACCESS TO THIRD PARTIES TO USE THE SOFTWARE VIA A PORTAL OFFERED BY INSPIRE PLANNER. Customer may not (and may not allow a third party to): (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Software by any means whatsoever, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; (c) attempt to circumvent any use restrictions or gain unauthorized access to the Software, computer systems or networks related to the Software; (d) modify or create derivative works based on the Software; (e) copy or distribute the Software; (f) allow use of the Software by anyone other than as set forth in this Agreement and the user(s) authorized and paid for by Customer; (g) knowingly transmit through the Software unlawful, libelous, tortious, defamatory, threatening, vulgar, or obscene material or material containing viruses or other harmful code; or (h) otherwise use the Software other than as permitted in Section 2. Customer acknowledges that Inspire Planner may utilize technological license control features that can limit Customer’s access to or use of Software to ensure Customer’s compliance with this Agreement; provided that, no such features shall interfere with or delay Customer’s use of Software in accordance with this Agreement.
5.2 Customer is responsible for all activity occurring under its user accounts and shall abide by all applicable local, state, provincial, national and foreign laws, treaties, and regulations in connection with its use of the Software, including those related to data privacy, international communications and the transmission of technical or personal data. Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, and will notify Inspire Planner promptly of any unauthorized use of any password or account or any other known security breach under applicable law; (ii) report to Inspire Planner promptly upon discovery and use reasonable efforts to stop immediately any unauthorized copying or distribution of content that is known or suspected by Customer ; and (iii) not impersonate another Inspire Planner user or provide false identity information to gain access to or use the Software. Customer will not attempt to or use its access to the Software to knowingly interfere with or disrupt the integrity or performance of the Software or the data contained therein.
6. Fees and Payment.
If Customer subscribes to the Software with an annual contract, Customer shall pay in advance an annual fee to access and use the Software for each user that will access or use the Software (the “Fees”). Fees are described in the Order Form. Inspire Planner will invoice Customer annually and provide access to the Software only when the Fees have been paid. The Fees for the Initial Term shall be due on the earlier of (i) the day that Customer first accesses the Software, or (ii) the activation date set forth on Customer’s Order Form. Unless otherwise specified or agreed to, all invoices for the Fees are payable upon receipt. The Fees do not include any taxes or duties of any kind, which may be imposed by any governmental entity on the transactions contemplated by this Agreement, and Customer shall be solely responsible for all such taxes imposed on Customer, except that Customer shall not be responsible for taxes based on Inspire Planner’s income. Payment obligations are non-cancelable, and all Fees paid hereunder are non-refundable, except as specifically set forth herein. Customer may purchase additional user licenses at any time on a pro-rata basis so that all licenses will have the same expiration date. All amounts are quoted in and must be paid in US dollars. In addition to any other rights granted to Inspire Planner herein, Inspire Planner reserves the right to suspend Customer’s access to and use of the Software if Customer fails to pay any undisputed amount owed on or before its due date. Furthermore, all amounts that are not paid by Customer by the date required by this Agreement shall be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month and the maximum allowed by applicable law.
Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Inspire Planner regarding future functionality or features of the Software.
7. Term.
The initial term of this Agreement shall be one (1) year from the date of first access by Customer (the “Initial Term”. This contract shall automatically renew for additional successive one (1) year terms (each an “Additional Term”) at the Inspire Planner then-current list price, unless terminated by either party upon thirty (30) days’ notice prior to the expiration of the then current term. The Initial Term and any Additional Term shall collectively be referred to herein as the “Term”.
8. Termination.
Either party shall have the right to terminate this Agreement in the event of a breach by the other party of the Agreement, which breach has not been cured within thirty (30) days of the receipt of written notice thereof, except in the case of Customer’s failure to pay any fees when due hereunder, which must be cured within five (5) days after receipt of written notice from Inspire Planner. Either party may terminate this Agreement if the other party becomes the subject of an involuntary petition in bankruptcy or other proceeding relating to insolvency, receivership, or liquidation, if such petition is not dismissed within sixty (60) days of filing. Upon termination of this Agreement for any reason, the rights granted to Customer hereunder will immediately terminate and Customer shall immediately discontinue any use of the Software; provided that, Customer may receive access to the Software to recover Customer’s data and information, including but not limited to information in Customer’s SFDC Instance. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Inspire Planner prior to the effective date of termination.
9. Support and Updates.
During the Term, Inspire Planner will provide email support to Customer for the then-current versions of the Software. Inspire Planner will investigate all of Customer’s questions and problems promptly. Customer agrees to provide in a timely manner, any supporting information requested by Inspire Planner to assist Inspire Planner in the investigation and to confirm that any reported problems have been resolved. Inspire Planner does not provide a guaranteed response time but will make a good faith effort to answer emails and voice mails within forty-eight (48) hours or less during weekdays, excluding holidays.
Inspire Planner may, in its sole discretion, from time to time, update the Software and make sure updates are available to Customer, provided Customer has paid all applicable fees then due hereunder.
10. Confidentiality.
“Confidential Information” means information disclosed by either party to the other, whether orally, electronically or in writing, which is designated as confidential or would reasonably be considered to be confidential under the circumstances by a reasonable person. Inspire Planner’s “Confidential Information” shall include, but not be limited to, Software, documentation, technology and technical information, product designs and business processes. Customer’s “Confidential Information” shall include, but not be limited to, all information in Customer’s SFDC Instance. Each party agrees to use the other party’s Confidential Information solely to perform obligations and exercise rights under this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third-party without the other’s prior written consent. Each party shall safeguard the Confidential Information of the other party using the same measures it uses to protect its own confidential information, but in no event less than reasonable care. Notwithstanding the foregoing, neither party bears responsibility for safeguarding information that is publicly available without breach of an obligation owed to the disclosing party hereunder, obtained from third parties not under confidentiality restrictions, independently developed or known to the recipient without breach of an obligation owed to the disclosing party, or required to be disclosed by order of court or other governmental entity. Each party agrees that the in the event of a breach or threatened breach of this Agreement, the non-breaching party will have no adequate remedy at law and shall therefore be entitled to immediate injunctive and other equitable relief. In the event of a required disclosure by order of court or other governmental entity, the receiving party shall forward such order to the disclosing party, the disclosing party shall have an opportunity to object or challenge such order, and, if no challenge or objection is made or such is unsuccessful, the parties shall cooperate to limit the disclosure to only that information required to comply with the order.
11. Warranties.
11.1 Limited Warranty. During the Term, Inspire Planner warrants that the Software will operate in substantial conformance with the then-current Inspire Planner published documentation under normal use.
11.2 Customer Warranties. Customer shall be solely responsible for all activities in connection with the Software that occur under Customer’s username(s), except to the extent related to or caused by Inspire Planner. Without limiting the generality of the foregoing, Customer shall: (i) comply with all applicable laws and regulations; and (ii) be solely responsible for the accuracy, reliability, and quality of any information or data submitted by Customer to Inspire Planner or processed using the Software. Customer warrants that any data, content, or materials used, stored, or created by Customer using the Software will not infringe the copyright, trade secret, patent, privacy, publicity, or other proprietary or intellectual property right of any third party.
12. Breach of Warranties.
In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties or obligations, or in the event that Customer infringes or misappropriates Inspire Planner’s intellectual property rights, then, in addition to any other remedies available at law or in equity, Inspire Planner will have the right to immediately, at its sole discretion, suspend Customer’s access to or use of the Software and/or terminate this Agreement, if deemed reasonably necessary in order to prevent any harm to Inspire Planner or its business.
13. Indemnity.
13.1 Customer shall indemnify and hold Inspire Planner and its subsidiaries, affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses, or costs (including reasonable attorneys’ fees and costs), arising out of a claim or demand alleging that any data or content submitted by Customer to Inspire Planner infringes, misappropriates, or violates any rights of a third party including any third-party intellectual property rights.
13.2 Inspire Planner shall indemnify and hold Customer and its subsidiaries, affiliates, officers, agents and employees harmless from any claims by third parties, and any related damages, losses, or costs (including reasonable attorneys’ fees and costs), arising out of a claim or demand alleging that any data or content or part of the Software infringes, misappropriates, or violates any rights of a third party including any third-party intellectual property rights.
13.3 If any action is instituted by a third party against Customer based upon a claim that the Software, as provided, infringes a Canadian or United States patent, copyright, or trademark, then Inspire Planner will defend such action at its own expense on behalf of Customer and will pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. Inspire Planner may, at its option and expense and as Customer’s exclusive remedy hereunder: (a) procure for Customer the right to continue using the Software; (b) replace or modify the Software so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Customer’s access to the Software and refund any amounts previously paid for the Software attributable to the remainder of the then-current Term of this Agreement. Inspire Planner will have no liability to Customer for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Software (i) if such infringement action arises due to a modification to the Software by Customer or a third party without Inspire Planner’s prior written consent, or (ii) in combination with any other service, equipment, software, or process not provided by Inspire Planner where the combination is the basis for the infringing activity.
13.4 Inspire Planner’s obligations under this Section are conditioned upon the following: (i) upon becoming aware of a claim, Customer provides to Inspire Planner prompt written notice of the claim; (ii) Customer gives to Inspire Planner sole authority and control of the defense and/or settlement of the claim; provided, however, that Inspire Planner shall not enter into any settlement that binds Customer in any way without the consent of the Customer, which consent shall not be unreasonably withheld, delayed, and/or conditioned; and (iii) Customer, at Inspire Planner’s expense, provides all reasonable information and assistance requested by Inspire Planner to handle the defense and/or settlement of the claim. Customer, at its own expense, may hire legal counsel of its choice to participate in an advisory capacity in discussions, negotiations, or proceedings of the claim.
13.5 This Section sets forth the entire obligation of Inspire Planner and Customer’s exclusive remedy against Inspire Planner or any of its suppliers for any infringement claim.
14. Warranty Disclaimer.
THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR SELECTION OF THE SOFTWARE TO ACHIEVE ITS INTENDED RESULTS AND FOR THE USE OF AND RESULTS OBTAINED FROM THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INSPIRE PLANNER DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE. INSPIRE PLANNER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, OR ERROR-FREE.
15. Limitation of Liability.
EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY, OR ITS LICENSORS’ BE LIABLE FOR LOSS OF PROFITS, BUSINESS OR DATA OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13, A BREACH OF THE CONFIDENTIALITY PROVISIONS HEREOF, CUSTOMER’S OBLIGATIONS UNDER SECTION 4 AND 5, OR IN THE EVENT OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL CUSTOMER’S, INSPIRE PLANNER’S, ITS LICENSORS’ OR SALESFORCE.COM’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE TIME THAT THE CAUSE OF ACTION AROSE. THE ABOVE WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY AND DAMAGES INURE TO THE BENEFIT OF THE CUSTOMER, INSPIRE PLANNER, ITS LICENSORS AND SALESFORCE.COM.
16. Audit Rights.
Inspire Planner may, at any time, audit Customer’s use of the Software by accessing the Software through the Inspire Planner servers to ensure compliance with the terms of this Agreement. Each Inspire Planner employee or contractor who gains access to the Software shall be made aware and agree to be bound by the confidentiality restrictions set forth in this Agreement. Unless specifically authorized in writing in advance by Inspire Planner, Customer may not rent, lease or timeshare the Software or provide subscription services for the Software or permit others to do so.
17. Survival.
The following provisions will survive any expiration or termination of this Agreement: Sections 4 (Ownership), 5 (Restrictions), 6 (Fees and Payment), 8 (Termination), 10 (Confidentiality), 11 (Customer Warranties), 13 (Indemnity), 14 (Warranty Disclaimer), 15 (Limitation of Liability), 17 (Survival), 18 (General).
18. General.
This Agreement shall be governed by the laws of the Province of Ontario without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Software shall be subject to the exclusive jurisdiction of the provincial and federal courts located in Toronto, Ontario Canada. This Agreement may not be assigned by either party without the prior written approval of the other party (such approval not to be unreasonably withheld) except in connection with: (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party; (ii) a sale or other disposition of all substantially all of the assets of a party; or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void. No text or information set forth on any other purchase order, preprinted form, or document (other than an associated Inspire Planner’s Order Form, quote or invoice, if applicable) shall modify the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors, and this Agreement does not create any joint venture, partnership, employment, or agency relationship between Customer and Inspire Planner. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by the other party in writing. This Agreement, together with any associated Inspire Planner Order Form, quote or invoice, comprises the entire agreement between Customer and Inspire Planner and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the parties regarding the subject matter contained herein. All notices required or permitted under this Agreement must be delivered in writing by courier, email or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement. Notice hereunder will be effective (a) upon receipt or three (3) days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner, or (b) if delivered by email, upon receipt of email. Any notice to Inspire Planner will be delivered to Inspire Planner Inc., PO Box 75335 Leslie Street PO, Toronto ON M4M 1B0 Canada. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure. For purposes of this Agreement, “Force Majeure” shall mean circumstances beyond a party’s reasonable control, including, but not limited to, acts of God, fire, labour dispute or government measure.